author: TIREY, Justice.

text:
    STEGALL, Sheriff, v. McLENNAN COUNTY.
    No. 2209.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1940.
    Rehearing Denied Nov. 28, 1940.
    McCraw & Holt, of Dallas, and Geo. W. Barcus, of Austin, for appellant.
    Willard McLaughlin and Leonard Gorin, both of Waco, for appellee.
   TIREY, Justice.

Leslie Stegall brought this suit against McLennan County to recover excess fees which he alleged he paid to said co.unty while he was in the office as sheriff. At the conclusion of the testimony, the court gave a directed verdict for McLennan County, and plaintiff has appealed. The parties will be designated as in the trial court.

Plaintiff was sheriff of McLennan County for the period beginning January 1922 and ending with December 1932. His salary was paid on what is commonly known as the “fee basis.” Plaintiff, each respective year, filed his annual report with defendant, which report accounted for all monies received by him as sheriff during the preceding year and disbursed by him in his official capacity, and which report reflected the amount of compensation to be retained by him and the amount of excess fees to be turned over to McLennan County. These reports were audited and approved by the Commissioners’ Court of said county. In July 1933, the State of Texas made demand of plaintiff for $848.-'30 for fees which plaintiff had collected illegally from the state. Thereafter, in August 1933, plaintiff, without any court action, paid to the State of Texas the sum of $121.24 and delivered to the state for cancellation two deficiency certificates which he held in the sum of $90.55 and $636.51, respectively. This was in settlement of illegal fees claimed by the state for the years of 1923 to 1926, inclusive. Thereafter, the state filed suit against Leslie Stegall in the District Court of Travis County for the sum of approximately $4,-900, to recover illegal fees collected by him as sheriff for the years 1927 to 1932, inclusive. According to plaintiff’s allegation, this demand was “for fees claimed and collected by this plaintiff from the State of Texas for mileage charged and arrests made, in the main, on warrants issued out of the Justice Courts of McLennan County, Texas, before an indictment had been returned by the grand jury of Mc-Lennan County.” The county was not made a party to this suit. On July 9, 1935, Leslie Stegall made a compromise settlement with the State of Texas and an agreed judgment was entered in said suit, wherein the state acknowledged receipt of $1,250 in cash from Stegall in full payment of any items illegally collected during his tenure of office. On August 7, 1935, plaintiff filed a claim with the Commissioners’ Court of McLennan County for $2,098.30. This claim consisted of two items. The first item was for the sum of $848.30 and was made up of the items constituting the settlement he made with the state in August 1933. The second item of $1,250 represented the money actually paid by Stegall to the state in his compromise settlement. Plaintiff’s claim was denied by the Commissioners’ Court on July 17, 1937, by order entered on the minutes of said court. About thirty days thereafter, this suit was filed in the 74th District Court of McLennan County. Defendant interposed general demurrer and, among other defenses, pleaded that the cause of action alleged by plaintiff was barred by the two-year statute of limitation, and further that plaintiff “voluntarily and without consulting the defendant and without any solicitation on the part of the defendant paid to the State of Texas the alleged illegal fees; that same was paid by plaintiff without any fraud, duress or extortion and when same was not an obligation on the part of the defendant.”

We think the directed verdict must be sustained on two grounds. First of all, the plaintiff’s cause of action as pleaded, as well as the facts introduced to support same, shows that the fees in question collected by him from the state and accounted by him to said county were done solely as the result of a mistake of law. As we view the matter, there was no mistake of fact. That is to say, the sheriff rendered the service that he claimed to have rendered on each of the warrants for which payment was made to him by the state, and his charge to the state therefor and collection of the items so charged was a mistake of law. It was likewise a mistake of law when he took such sums into consideration in his accounting to and with defendant county. It appears that our courts have uniformly held that an action does not lie in such cases. Limestone County v. Robbins, 120 Tex. 341, 38 S.W.2d 580, point p. 582; Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757; Taylor v. Hall, 71 Tex. 213, 216, 9 S.W. 141. We think the rule in Texas is: “When money is paid under a mutual mistake of law, the mistake of law, in and of itself, is no ground for recovering it back. All persons are equally presumed to know the law, and in such case both parties are equally at fault, and equally innocent of wrong done. To admit ignorance of law to be legally recognized as a fact sufficient in itself to pervert the will of the parties doing the act, so that it should be said and held that the will did not concur with the act done, thereby relieving him from the responsibility for and the consequences of the act, would render the administration of the law impracticable; and hence the rule is founded upon a political necessity, as well as upon public policy.” Galveston County v. Gorham, 49 Tex. 279, point page 303.

Surely, this record discloses that each of the acts done by Sheriff Leslie Stegall and McLennan County in connection with the matter in question was done voluntarily, without compulsion or duress under a mutual mistake of law. If the acts done by Stegall had been legal, a mistake of fact could not have occurred. Under the foregoing theory, we think that the peremptory instruction must be sustained.

We think the directed verdict must be sustained under the two-year statute of limitation. Vernon’s Ann.Civ.St. art. 5526. The rule as to the running of limitation in matters involving mutual mistake is within the same rule as fraud. See Oldham v. Medearis, 90 Tex. 506, 39 S.W. 919; 28 Tex.Jur. p. 166; 37 C.J. p. 950. In fraud actions, “the rule is that limitation begins to run from the time of the discovery of the fraud, or from the time it might have been discovered by the use of reasonable diligence." Glenn v. Steele, Tex.Sup., 61 S.W.2d 810; American Indemnity Co. v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763. Now plaintiff alleged, and admitted in his brief, that the illegal fees in question, in the main, were for charges made by the sheriff in going out of McLennan County and arresting parties charged with crime and returning them to said county before they had been indicted. The plaintiff received notice from the state in July 1933 that the fees collected for such service were illegal. The state having called plaintiff’s attention to the fact that he had collected illegal fees for the service rendered, it occurs to us that if the plaintiff intended to make claim against the county by virtue of the fact that such fees had been taken into account by him in his settlement to and with McLennan County, that it was his legal duty to call said facts to the attention of the county at once in order to give it an opportunity to make such investigation as it desired to make with reference thereto. The county had no control over plaintiff’s conduct and acts to and with the state, but it had the right to examine the account of the sheriff to and with it and determine what its liability was to the sheriff. We are of the opinion that limitation began to run in favor of the county from the time such claim as the sheriff had against it matured, whether presented, to the Commissioners’ Court and by them rejected or not. The sheriff was required and made his annual report to the county at the end of each fiscal year. Therefore, when it was brought to his attention that he had collected illegal fees, we think it was his duty to make such report to the Commissioners’ Court of McLennan County within a reasonable time in order that it could use such means as it had at its command to determine, if it so desired, what offsets or claims, if any, it had. This rule was announced in Noel Young Bond & Stock Co. v. Mitchell County, 21 Tex.Civ.App. 638, 54 S.W. 284, point page 289, writ refused. Smith v. Wise County, Tex.Civ.App., 187 S.W. 705, 706, writ refused; Nolan County v. Yarbrough, Tex.Civ.App., 34 S.W.2d 302; 11 Tex.Jur., p. 691. It is true that under Article 1573, Vernon’s Ann.Civ.Stats., the county can not be sued unless the claim has been first presented to the Commissioners’ Court for allowance, but we believe that our courts have held that the statute begins to run before the presentment of the claim to the Commissioners’ Gourt. See Stanley v. United States, D.C., 23 F.2d 870. The court, in Nolan County v. Yarbrough, supra [34 S. W.2d 304], in discussing the question of the presentment of the claim to the Commissioners’ Court, said: “It cannot be said that the right to delay the presentation of such a claim is given to the sheriff, and that he can, by merely failing or refusing to present his claim, toll the running of the statute and reserve for himself the right to sue within two years from such time as he decides to present it.”

We think the reason given is sound and that it is applicable to the case at bar. We therefore hold that notice having been brought home to the plaintiff in July 1933 that he had collected illegal fees for services rendered, that it was his duty to, within a reasonable time, advise McLennan County of such fact and make claim therefor, and that his failure to do so until August 7, 1935, was an unreasonable time and that the two-year statute of limitation bars such rights, if any, that he had against McLennan County.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: JACKSON, Chief Justice.

license: Public Domain

text:
    GARTIN v. FURGESON.
    No. 5225.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 18, 1940.
    Ronald Smallwood, of Lubbock, for plaintiff in error.
    McWhorter & Howard, of Lubbock, for defendant in error.
   JACKSON, Chief Justice.

The record discloses that Mrs. J. B. Gartin on the 19th‘day of February, 1929, at a regular term of the District Court of Lubbock County, Texas, in Cause No. 3584, recovered a judgment against W. W. Fur-geson for the sum of $218.02 with interest thereon at the rate of 10% per annum from date and costs in the sum of $8.20. Thereafter on March 26, 1929, Mrs. Gartin had execution issued on the judgment and the writ delivered to the sheriff of. Lubbock County, Texas, who on the. same day returned the execution unsatisfied. W,. W. Furgeson paid Mrs. Gartin $125, which was credited on the judgment, but no alias execution was ever issued and on the 26th day of March, 1939, ten years had elapsed since the issuance of the first execution, March 26, 1929.

On the 25th day of July, 1939, more than ten years after any execution was issued, Mrs. J. B. Gartin as plaintiff instituted this suit against W. W. Furgeson as defendant to have her judgment revived against him for the amount of $1,319.24.

The defendant answered by general demurrer, general denial, and pleaded that more than ten years immediately preceding the institution of this suit had elapsed since the issuance of execution on the judgment; that the judgment had long ceased to be valid and was of no force and effect because barred by the statute of ten years limitation.

The case was tried before the court without the intervention of' a jury and he found in favor of the plea of limitation and rendered judgment that plaintiff take nothing by her suit from which as plaintiff in error she prosecutes this appeal.

There is no controversy on the ‘facts, and the only question for determination is whether or not limitation had barred the right of plaintiff in error to have her judgment revived after ten years had elapsed since the execution was issued.

Article 3773 of Vernon’s Annotated Civil Statutes, as amended by the Acts of 1933, provides: “If no execution is issued within ten years after the rendition of a judgment in any court of record, the judgment shall become dormant and no execution shall issue thereon unless such judgment be revived. If the first execution has issued within the ten years, the judgment'shall not become dormant, unless ten years shall have elapsed between the issuance of executions thereon, and execution- may issue at any time within ten years after the issuance of the preceding execution.” This article provides a simple and inexpensive remedy for extending the life' of a judgment indefinitely by having executions issued as provided therein. Article 5532, hereafter considered, furnishes an additional remedy which authorizes the judgment holder at any time within ten years to revive a judgment from its dormancy. Commerce Trust Co. v. Ramp, Tex.Com.App., 138 S.W.2d 531.

Had plaintiff in error secured the issuance of an alias writ within ten years after the issuance and return of the first execution, the running of the statute of limitation would have been thereby interrupted and the judgment prevented from becoming barred for a period of ten years from the issuance of the alias writ. Grissom et al. v. F. W. Heitmann Co. et al., Tex.Civ.App., 130 S.W.2d 1054.

Article 5532 of Vernon’s Annotated Civil Statutes provides: “A judgment in any court of record, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought thereon within ten years after date of such judgment, and not after.”

In P. J. Willis & Brother v. E. B. Stroud, 67 Tex. 516, 3 S.W. 732, the court held that the judgment of a court is barred by the statute of limitation after ten years have expired from the date that the last execution thereon was issued and that the period of dormancy has no effect on fixing the date when the statute begins to run.

See also M. J. and J. W. Millican et al. v. H. J. Ware, 84 Tex. 308, 19 S.W. 475.

In Mingus et ux. v. Kadane, Tex.Civ.App., 125 S.W.2d 630, the court holds that if execution has issued on a judgment and been returned not satisfied a scire facias proceeding to revive the judgment may be instituted within ten years after the issuance of the last execution but not afterward.

To the same effect is the holding in Gillam v. Matthews, Tex.Civ.App., 122 S.W.2d 348; Zummo Packing Co. v. Cotham, Tex.Civ.App., 135 S.W.2d 177.

In view of the failure of plaintiff in error to have an alias execution issued within ten years from March 26, 1929, when execution was first issued and her failure to institute a suit within that time to revive the judgment, it is our opinion that the action of the court in sustaining the plea of limitation is correct, and the judgment is affirmed.


author: CODY, Justice.

text:
    GREAT AMERICAN ACCIDENT INS. CO. v. ROGGEN.
    No. 11081.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1940.

      Kemper, Hicks & Cramer, of Houston (John G. Cramer, of Houston, of counsel), for appellant.
    Charles E. Heidingsfelder, Jr., of Houston, for appellee.
   CODY, Justice.

This is a suit on a hospitalization contract or insurance policy to recover $122.-50, which originated in a justice court of Harris County. From an adverse judgment there the appellant Insurance Company appealed to the County Court.

Appellee alleged her illness, and an operation, and the right to recover $122.50 under the terms of the policy.

Appellant pled that appellee had failed to pay the premium ($2) which was due on June 20, 1939, until the following day, and that the policy was thereby forfeited. That appellee was furnished with a receipt book in connection with the policy of insurance which showed the dates that monthly payments were due, and contained blank spaces in which to enter the dates payments were actually received by appellant. That paragraph “3” of “Standard Provisions” of the policy provided: “If default be made in the payment of agreed premiums for this policy, the subsequent acceptance of a premium by the Company or by any of its authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained and such sickness as may begin more than 15 days after the date of such acceptance.” Appellant also pled paragraph 5 of the General Provisions of the policy: “The time of payment of premiums shall be deemed to have expired, and insurance forfeited if premium has not been received at the office of the Company by 12:00 noon Central Standard Time on the morning of the day the premium is due. Payment of any premium to any agent of the Company shall not effect renewal. * * if»

The case was submitted to the court on an agreed statement of facts, and from an adverse, judgment the Insurance Company appeals.

In response to appellant’s demand therefor, the court filed findings of fact and conclusions of law. The material facts found by the court were in substance these:

That premiums were accepted on said policy on the 24th day of April, 1939, in the sum of $4, being a $2 payment for April and a $2 payment for May; that on June 21, 1939, a $2 payment was made for June, and that on July 22, 1939, a payment of $4 was made, $2 of which was for July and $2 for August; that all payments were due on the 20th of the month and that all of said payments were accepted without reservation. That the illness as a result of which plaintiff based her claim for benefits under, the policy, originated less than 15 days from June 21, 1939. That plaintiff filed her claim for benefits under the policy for such illness; and that defendant on August 25, 1939, wrote a letter denying liability under paragraph 3 of General Provisions, which reads: “This policy shall not cover when the immediate and contributing cause is due to either injury or disease which had its inception prior to the issuance of the policy.” And that defendant’s letter further stated, “For the foregoing reasons as well as other reasons, none of which are being waived by us, we are of the opinion that no liability exists under this claim.” And that defendant in said letter tendered payment to plaintiff of all sums she had paid it under the policy, being $10. That on August 30, 1939, plaintiff’s attorney wrote defendant demanding the payment of the claim in the sum of $122.50, and returned defendant’s refund check in the sum of $10, of the premiums which plaintiff had paid, and gave notice that this suit would be filed, if his client’s claim was not paid. That later, after defendant had received such letter, plaintiff’s attorney went to the office of defendant, and was advised that one of the principal reasons that defendant denied liability, was that plaintiff had allowed her policy to lapse, and that she was not covered for any sickness that might begin within less than fifteen days after the date of the acceptance of such premium, and that the claim in question arose from a sickness that originated less than 15 days after the date of such payment.

Appellant objected to so much of the findings of fact as is italicized above, reading, “all of said payments were received without reservation.”

In view of the fact that this case originated in the justice court where the pleadings may be oral, or partly oral and partly written, we will assume that appel-lee orally pled both a waiver of timely payment by, and an estoppel against, appellant taking advantage of the day-late payment. Gordon v. Zoes, Tex.Civ.App., 125 S.W.2d 1049, and cases there cited. Do the findings by the court sustain such presumed oral pleas of appellee?

Upon the face of the policy the provision providing for the penalty for late payment is- a harsh one. It works a fifteen-day forfeit of the monthly term of hospital protection provided for in case of sickness, as distinguished from accidental injury. But the provision is lawful in this type of mutual insurance. And the only basis urged for sustaining the judgment of the trial court is that the insurance company waived the late payment and forfeiture which resulted by its letter of August 25, 1939. And the contention that such waiver was established is based on the authority of National Aid Life Ass’n v. Murphy, Tex.Civ.App., 78 S.W.2d 223, 227. In that case it was held by the Dallas Court of Civil Appeals, “Again, we think defendant waived the defense, if any it had, based upon the alleged breach of said health provision of the certificate, and is estopped to urge same, for the reason that, with full knowledge of all the material facts involved, defendant denied liability and refused payment of the claim upon certain specific grounds, other than the breach of the good health provision of the certificate, and failed altogether to urge or rely upon that matter, until long after plaintiff had employed counsel and filed this suit. * * The general rule applicable to the subject under consideration is stated in 32 C.J. p. 1354, § 636, as follows: ‘Where the (insurance) company refuses to pay a loss upon a specific ground, it is estopped from asserting other grounds relieving it from liability of which it had full knowledge where insured has acted upon its position as announced and has incurred expense in consequence of it, or, as the rule is sometimes more broadly stated, when one specific ground of forfeiture is urged against a policy of insurance and the validity thereof denied on that ground alone, all other grounds are waived.’ ”

We are constrained to hold that the rule just referred to does not apply to the facts found by the court, because, as appears from the letter, the Insurance Company in effect stated that it was waiving no grounds which it had for not paying the claim. The intention to waive grounds of defense, which are not expressly stated, cannot be implied against the express statement that such grounds are not waived. The insured is authorized to imply, and act on such implication, that where the insurer specifies one ground of forfeiture, and is silent as to all others, that the insurer is waiving all others. But where the insurer expressly states to the insured that it is not waiving any grounds of defense, then neither the law of waiver or estoppel is applicable, nor can be applied. When assured, through her attorney, made specific inquiry, it appears from the court’s findings that the insurer stated to said attorney the defense here urged.

The judgment of the court below therefore is reversed, and the case having been fully . developed, judgment is here rendered .for appellant.

Reversed and rendered.


author: HAWKINS, Presiding Judge.

text:
    Levi BOYLES, Appellant, v. STATE, Appellee.
    No. 21439.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    LeRoy Neal, of Gladewater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

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

■Since the jurisdiction of this court attached, appellant hás filed his affidavit advising the court that he does not desire further to prosecute his appeal, and at his request the same is ordered dismissed. '


author: GRAVES, Judge.

text:
    Gilbert SINGLETON and Eldon Lee, Appellants, v. STATE of Texas, Appellee.
    No. 21358.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    F. H. Hammond, of Burnet, and Tom L. Robinson, of Gatesville, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Upon appellants’ plea of guilty of the offense of theft of one sheep, and the waiver of a trial by jury, the court assessed their penalty at two years’ confinement in the ■penitentiary each.

Accompanying the record is the written motion of the appellants, duly verified, requesting the privilege of withdrawing their appeal. The request is granted and the appeal is dismissed.


text:
    Gilbert SINGLETON and Eldon Lee, Appellants, v. STATE of Texas, Appellee.
    No. 21359.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    F. H. Hammond, of Burnet, and Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellants each were convicted for the theft of sheep, punishment of each assessed at two years in the penitentiary.

Since the jurisdiction of this court attached appellants have filed their respective affidavits advising the court that they do not desire longer to prosecute their appeals, and the same will be dismissed at the request of appellants.


author: WALKER, Chief Justice.

text:
    A. J. KLEIN et ux, Plaintiffs in Error, v. UVALDE ROCK ASPHALT CO., Defendant in Error.
    No. 3744.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1940.
    W. R. Blain, of Beaumont, for plaintiffs in error.
    Geo. A. Weller, of Beaumont, for defendant in error.
   WALKER, Chief Justice.

This appeal was prosecuted from County Court of Jefferson County, at Law, Jefferson County, Texas. An examination of the assignments and propositions does not disclose error. On authority of Texas & N. O. R. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, the judgment of the lower court is affirmed without written opinion.


text:
    SOUTHERN UNION CASUALTY COMPANY, Appellant, v. Joe BABINO, Appellee.
    No. 3732.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 8, 1940.
    Rehearing Denied Nov. 20, 1940.
    Gammage, Gammage & Bauer, of Houston, for appellant.
    Lefler, Lefler & Black, of Beaumont, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted from the County Court of Jefferson County at Law, Jefferson County.- The action was on an insurance policy in the principal sum of $185. Appellee plead for statutory damages and attorney’s fees in a sufficient amount to confer jurisdiction on the county court. Appellant replied by general demurrer, general denial, and certain special defenses. On trial to the court without a jury, judgment was for only the principal amount of the policy with interest, from which appellant duly prosecuted its appeal to this court.

We have examined all of appellant’s assignments of error and, on authority of Texas & N. O. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, the judgment is affirmed without a written opinion.

On appellant’s proposition, advanced only under its general demurrer, appellee’s petition does not show on its face that appellant was a mutual assessment association, and therefore not liable for statutory damages and attorney’s fees, within the rule restated by this court in Mutual Life & Loan Ass’n v. Houston, 58 S.W.2d 1035, and authorities therein cited.

The judgment of the lower court is affirmed.


text:
    STANDARD INVESTMENT CO. v. R. T. NUTT.
    No. 3735.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 31, 1940.
    H. B. Houston, of Dallas, and Sanders & McLeroy, of Center, for appellant.
    E. B. Lewis and Davis & Avery, all of Center, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted from the county court of Shelby county. No errors appearing on appellant’s assignments and propositions, the judgment is affirmed, on authority of Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, without written opinion.


author: HICKMAN, Commissioner.

text:
    BROWN v. ÆTNA CASUALTY & SURETY CO. et al.
    No. 2324—7539.
    Commission of Appeals of Texas, Section A.
    Dec. 4, 1940.
    Morris Pepper, J. A. Collier, and James A. Copeland, all of Houston, for plaintiff in error.
    Burris & Benton, of Houston, for Jones & Brown.
    Bracewell & Spiner, of Houston, for Robinson.
    Fulbright, Crooker & Freeman, Paul Strong, and Lester Settegast, all of Houston, for .¿Etna Casualty Co.
   HICKMAN, Commissioner.

This suit was filed in the trial court in the form of an appeal by the compensation insurance carrier, .¿Etna Casualty & Surety Company, from an order of the Industrial Accident Board awarding plaintiff in error, Pearl Brown, compensation for the death of. Adolphus Brown, her husband, and the controlling question here is whether or not the case is cognizable exclusively by-a cpurt of admiralty of the United States. The case was submitted to a jury upon'special issues, all of which were, answered in accordance with the Contentions of; plaintiff in error. It was stipulated by the parties before the evidence was introduced that the question of jurisdiction might be taken .up and decided'along with the merits, of the case. The case thereupon proceeded to trial on its merits, and after verdict was returned the surety company filed its motion to dismiss the cause and set aside the award of the Industrial Accident Board on the ground that any claim for Adolphus Brown’s death came “under the exclusive jurisdiction of the Courts of the United States or of the state courts applying only the admiralty or common law, and precluding the application of the Workmen’s Compensation Act of the State of Texas to such claim.” Subject to the foregoing it filed a motion for judgment in its favor non ob-stante veredicto. Subject to both of the foregoing motions it filed its motion that the court disregard the jury’s findings in answer to certain named special issues and enter judgment, after disregarding such findings, in its favor. Upon hearing of the motion to dismiss for want of jurisdiction same was granted and the cause was dismissed. The other motions were therefore not reached. The trial court’s judgment was affirmed by the Court of Civil Appeals. 122 S.W.2d 261, 263.

The facts material to'the question under review are few. Adolphus Brown was employed by Shippers Compress Company. He was used as a utility man to do anything he was called upon to do about the compress. The president of the compress company owned a yacht, “Sarnette,” sixteen tons gross, eleven tons net, forty-six feet long, and twelve feet wide which drew four feet and five inches of water. It was licensed by the United States Government to proceed from port to port of the United States and was used to go out into the Gulf during the summer months. While the yacht was owned by the president of the compress company, it was used largely to entertain customers and prospective customers of the company. The company paid a part at least of the operating expenses thereof. In September, 1935, the yacht was brought up Buffalo Bayou and tied up for the winter at the compress company’s docks on the bayou. In December thereafter there occurred an unprecedented flood in Houston. We take the following statement from the opinion of the Court of Civil Appeals, which was copied from one of the briefs filed in that court: “ * * * The swift water caused the boat’s lines to. chafe and cut in two, and the boat broke loose on Sunday morning (December 8, 1935). It started down the bayou, but men from the compress jumped in their cars and went down to the ‘Saap’ bridge and caught the boat as it came under the bridge, which was about one-fourth of a mile from the Shippers Compress. The boat was tied downstream from the bridge by two lines on shore to telephone posts, one line to a tree and one line to the bridge, all of which were fixed to the bow of the boat. The lines were so attached and arranged as to permit the boat to be moved and its position maintained in the middle of the bayou. There was a small line on the boat that could be tightened to pull it away from the bank. They intended to leave the boat tied to the bridge until the water went down, when it was to be brought back to the docks. On Monday, December 9, 1935, at about 5 :00 or 5:30 o’clock P. M., Thomas Stewart took Charlie Chandler and Adolphus Brown, the deceased, down to where the boat was tied at the ‘Saap’ bridge. Mr. Armstrong, the boss, had given Charlie and Adolphus orders to go down and watch the boat. According to Stewart, the deceased had been a utility man at the compress, and apparently had not worked on this boat before. He principally loaded cotton on drays. Adol-phus Brown, the deceased, was to stay on the boat and Charlie on the land, and they were to manipulate the lines to keep the boat out in the middle, or channel, so that it would not ground when the tide went out or the water went down. When they went there at 5:00 o’clock, Adolphus, as was his duty, got on the boat and Charlie stayed on shore. One of them had to be on shore, and the other had to be on the boat. About 1:00 o’clock that night the accident happened. The tide went out and the boat grounded. Adolphus was on the boat. He said ‘We have got to let slack on the rope to get it off the land.’ Charlie loosened the lines. Adolphus was to hold the boat by a rope and keep it from going too far in the channel. He was to manipulate the lines from the boat. The boat straightened out in the channel and that was the last that Charlie saw of Adolphus. They searched for him. His body was found in May, 1936.”

The question presented appears to have been settled contrary to the holding of the courts below. In a copius note in 25 A.L.R. the rule is deduced from the authorities at page 1035 that: “Where the injured person was employed under a non-maritime contract, state compensation acts, whether compulsory or elective, have been held applicable, whether the injury occurred on land, or on water within admiralty jurisdiction.”

In a further annotation of the subject in 56 A.L.R., at page 356, that rule is reaffirmed. In 1 Am.Jur., Admiralty, Sec. 50, p. 576, the rule is stated in this language: “State statutes providing compensation for employees through commissions may be treated as amending or modifying the maritime law in cases where they concern purely local matters and occasion no interference with the uniformity of such law in its international and interstate relations. Thus, where the injured person was employed under a nonmaritime contract, state compensation acts, whether compulsory or elective, have been held applicable, whether the injury occurred on land, or on water within admiralty jurisdiction.”

Many cases from different jurisdictions are cited in the annotations and in American Jurisprudence in support of the rule, but we have examined only decisions from the Supreme Court of the United States, because its decisions are controlling on questions of this nature. Among such decisions are the following: Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; State Industrial Commission v. Nordenholt Corporation, 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A.L.R. 1013; State Industrial Board v. Terry & Tench Co., 273 U.S. 639, 47 S.Ct. 90, 71 L.Ed. 817; Alaska Packers’ Association v. Industrial Accident Commission, 276 U.S. 467, 48 S.Ct. 346, 72 L.Ed. 656; Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470.

The case last cited affirms the judgment of this court in the same case, reported as Millers’ Indemnity Underwriters v. Boudreaux, Tex.Com.App., 261 S.W. 137. In that case a diver was suffocated while sawing off the timbers of an abandoned set of ways once used for launching ships,- but which had become an obstruction to navigátion; and it was hel3 by this court that our compensation statutes were applicable.

Stronger argument. could be made that •that case came exclusively within the admiralty jurisdiction -of the Federal courts than could be made .in .the. instant, case. Here the deceased employee yras more certainly employed by a nonmaritime contract than in that case. In general his employment came squarely within the terms of our "Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., and. the fact 'that he lost his life in navigable waters does mot bring about a situation wherein to permit him to recover compensation under the contract of insurance would work any “material prejudice to the characteristic features to the general maritime law.”

It would not be expected that we review all of the many cases cited in the briefs and no useful service wtrnld be .rendered by our doing so. But, since defendant in error seems to place much reliance upon two decisions of the Supreme Court of the United States, we shall take notice of them in this opinion. The first of these cases is London Guarantee & Accident Co. v. Industrial Accident Commission, 279 U.S. 109, 49 S.Ct. 296, 299, 73 L.Ed. 632. In that casé an employee of Morris Pleasure Fishing Company was drowned. The company operated fishing boats for hire off the California Coast. One of the company’s boats broke loose from its moorings and the employee went out in a small boat to attempt to save her. This' small boat was overturned and he was drowned. It was.held in that case that the maritime jurisdiction of the Federal courts was exclusive, and that no recovery could be had under the California Workmen’s Compensation Law. The opinion in that case, written by Chief Justice Taft, is a very exhaustive one, which carefully reviews and distinguishes the decisions upon- the question presented. One distinction between that case and some of those reviewed was pointed out to be that the contract there before the court was one calling for maritime services purely. By no reasoning could the contract in the instant case be classified as maritime.

The Braud case, which, as above noted, affirmed the judgment of this court in the same case, was distinguished by this language : “ * * * The Braud Case was one of a maritime tort.. But it, had no characteristic feature ’of the general maritime law except locality, and it was very like 'in its relation to the state law to .the Rohde Case. The employment was not maritime, and the, transaction and the circumstances thus seemed to have but one characteristic that was maritime. * * * ” •

. Another case upon which defendant in ' error places much reliance is the case of Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88, 89, 73 L.Ed. 232. The following quotation from the opinion in thát .case reflects the distinction between it and ..the case before us: “Strand’s employment 'contemplated that he should labor both upo.n 'the land and the water. When killed, he was doing longshore or stevedore work ón a vessel lying in navigable waters, according to his undertaking. His employment, so far- as it pertained to such work, was maritime; the tort was maritime; and the rights of the parties must be ascertained upon a consideration of the maritime law. * * *"

Our conclusion is, as indicated above, that the trial court erred in sustaining the plea to its jurisdiction and the Court of Civil Appeals erred in affirming its judgment.

The opinion of the Court of Civil Appeals discusses the question of whether or not the deceased, Adolphus Brown, was drowned while in the usual course of the business of his employer. It is our view that that court was without jurisdiction to decide that question in this proceeding. As stated in the opening part of this opinion, the jury found in favor of plaintiff in error upon that issue. No assignment attacked that finding in the Court of Civil Appeals. Its conclusion on that question would not have the effect of affirming the trial court’s judgment upon another ground, but its effect would be to render judgment on the merits against the appealing party. A motion for judgment non obstante veredicto was filed by defendant in error in the trial court subject to its plea to the jurisdiction, and a motion for judgment on the verdict was filed by plaintiff in error. Those motions were not reached and the trial court has not ruled upon the question of the character of the judgment to be rendered on the merits. Until that question is reached and decided by the trial court there is nothing for review except its action in dismissing the cause. That portion of the opinion of the Court of Civil Appeals which discusses the merits of the claim for compensation will therefore not be regarded by the tflal court as binding upon it when this case is remanded thereto. We express no opinion upon the question, because of want of jurisdiction to decide same in this proceeding.

• There remains the question of what order to enter in this case. From what is written above it is manifest that it is our opinion that the judgments of the trial court and the Court of Civil Appeals should both be reversed and the cause remanded to the trial court. The effect of our order setting aside the order of the trial court dismissing the case for want of jurisdiction is to restore the case to the status of one which has been tried on its merits and in which no order has been entered on plaintiff in error’s motion for judgment on the verdict or upon defendant in error’s motion for judgment non obstante veredicto. In such situation the trial court is authorized to enter judgment on the merits nunc pro tunc. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875.

Accordingly we direct that the judgments of the trial court and the Court of Civil Appeals both be reversed and that the cause be remanded to the trial court with instructions to that court that it is authorized to render judgment upon the merits of the case, after reasonable notice to the parties. We do not suggest the character of judgment to be rendered; that is a question within the province of the trial court to decide in the first instance. We merely direct that it proceed without another trial to render final judgment in this case. That judgment will, of course, be subject to being set aside upon motion for new trial and to review as any other final judgment. Reversed and remanded with instructions.

Opinion adopted by the Supreme Court.


author: BEAUCHAMP, Judge.

text:
    CASTILLO v. STATE.
    No. 21258.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Russell & Decker, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted on a charge of theft and was assessed a penalty of thirty days in jail.

The proceedings appear to be regular. The record is before us without a statement of facts or bills of exception and nothing is presented for our consideration.

The judgment of the trial court is affirmed.


text:
    TENNER v. STATE.
    No. 21283.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    E. H. Lasseter, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a- jury of driving an automobile upon a public highway while intoxicated, and was sentenced to serve two years in the penitentiary.

There is practically but one question presented to this court, and that is concerned with the overruling of the motion for a new trial, the grounds upon which such motion is predicated being newly discovered evidence.

It is shown by the facts that appellant, in company with some other negroes, was driving a Model T Ford at a high rate of speed, and in a dangerous manner, inside the city of Henderson. Mr. Lewis, a State’s witness, testified, in part, as follows: “On or about that date I saw this defendent on Whipperwill Lane twice, both times he was driving an automobile. I saw him come up the street driving a car at an excessive speed and driving what I would call all over the street, not any certain place in it. They went past my house a block and stayed up there approximately five minutes and blew the horn and raced the motor, then turned around and came back about as fast as the old car would run. There were children up and down the street, it being Sunday.” This car continued on . its drive until same run into a ditch and threw the negroes out on a country road soon after it left the town of Henderson.

Appellant himself testified that he had been drinking, and other witnesses testified that appellant was intoxicated. Appellant did not hire an attorney, and introduced no testimony upon the trial save his own.

Upon the motion for a new trial he offered the testimony of one Jessie Jordan, who testified that he, Jordan, was the driver of the car and not appellant. It was also shown that this witness was under subpoena and present at the time of the trial, and talked with appellant at such time.

Daniel Brown, a negro, testified that he saw the car when it was wrecked, and that he saw appellant and did not think he was drunk at the time of the wreck; He saw him and talked to him.

Appellant was indicted by the grand jury on May 10, 1940; he gave bond and remained at large until his case was called for trial on May 20, 1940. His claim was that he relied on the white man, Mr. Hall-back, for whom he was working, to obtain counsel for him and look after his witnesses in this trial, and therefore paid no further attention to the trial until same was called for trial.

None of this testimony could have been called newly discovered. He knew of course that the man Jordan was present in the car when it was wrecked, and he also knew that Jordan was not only present at the trial but he talked to him. He also knew that Brown was present at the scene of the wreck, and that he there talked to him. He was not unfamiliar with court trials it being shown that appellant had been charged and tried in this same trial court in 1937 in three cases involving theft.

This proffered proof is lacking in the necessary and constituent elements of newly discovered evidence. Mr. Branch in his Penal Code, p. 124, § 192, says: “To warrant a new trial on the ground that new testimony has been discovered since the trial it is incumbent on defendant to satisfy -the court that the new testimony has come to his knowledge and that it was not known beforehand, and it must be such as reasonable diligence could not have secured at the former trial; it must be competent, material to the issue, and probably true, going to the merits and not merely cumulative or collateral nor merely to impeach a former witness; and it must appear that it is reasonably probable that it will change the result,” citing numerous cases.

Again he says on the same page: “Applications for-new trial upon the ground that new testimony material to the defendant has been discovered since the trial will be ¡scrutinized by the appellate court with much strictness. They are addressed much to the discretion of the trial court, and where the trial court has refused such an application the appellate court will not reverse unless it shall appear that the trial court has abused its discretion and that thereby injustice may have been done the defendant.”

We think the trial court was correct in overruling the motion for a new trial.

We perceived no error shown herein, and the judgment is affirmed.


text:
    ELLIS v. STATE.
    No. 21264.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.

      R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for selling whisky in dry territory; punishment assessed being a fine of $100.

The transcript fails to show that any judgment was entered of record. In fact, a memoranda on the margin of the transcript — presumably made by the Clerk of the County Court — shows affirmatively that no judgment is of record. A memo-randa on the trial docket recites that a verdict was returned by the jury fining appellant $100 and “judgment entered in accordance with said verdict.” Such entry' on the trial docket does not meet the requirement of Art. 766, C.C.P., which .contemplates the entry of the judgment in the minutes of a court of record. Walling v. State, 90 Tex.Cr.R. 463, 235 S.W. 888. Without a final judgment the jurisdiction of this court does not attach. Hellman v. State, 87 Tex.Cr.R. 460, 222 S.W. 980.

The appeal is dismissed.


text:
    GOODEN v. STATE.
    No. 21273.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    R. G. Allen, of Houston (King C. Hay-nie, of Houston, of counsel on appeal only), for appellant.
    W. C. McClain, Dist. Atty., and Ned G. Wallace, Asst. Dist. Atty., both of Conroe, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the burglary of a store owned and controlled by Roy Jackson in the town of Montgomery, Texas, and under further allegations of two prior convictions he was sentenced to the State penitentiary for life.

The indictment, in its charging part, alleges that appellant “in the County of Montgomery and State of Texas, did by force, threats and fraud, break and enter a house then and there occupied and controlled by J. Roy Jackson, without the consent of the. said J. Roy Jackson, and with the intent then and there to fraudulently .take therefrom corporeal personal property therein being, and then and there belonging to the said J. Roy Jackson,” etc.

It will be noted that the present charged offense was burglary with intent to commit theft.

The trial court in its charge defined the offense of burglary in the terms of the statute, substantially stated as the entry of a house by means of force, threats or fraud with the intent to commit a felony or the crime of theft.

Again he instructed the jury that “the indictment in this case having charged that the burglarious entry was made with the intent to commit a felony or the crime of theft, before you would be warranted in finding a verdict of guilty you must be satisfied from the .evidence, beyond a reasonable doubt, that the entry was made with the intent to commit a felony or the crime of theft.”

Again the court’s charge says: “Now, bearing in mind the foregoing definition, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the 7th day of March 1940, as alleged, in the County of Montgomery and State of Texas, by force did enter the house of J. Roy Jackson as charged in the indictment, with the intent to commit a felony or the crime of theft, you will find him guilty of the crimp of burglary, and so say by .your verdict, and assess his punishment at confinement in the penitentiary not less than two nor more than twelve years.”

It is to be noted however that no objections nor exceptions to the court’s charge were taken nor filed. It is contended by appellant that for the trial court to authorize a conviction herein on a burglary with intent to commit a felony, when such was not charged in the indictment, was fundamental error, and an exception to the court’s charge was not necessary.

That the giving of such a charge was error finds support in many decisions of this court. In the Williams case, Williams v. State, 53 Tex.Cr.R. 2, 108 S.W. 371, 372, Judge Davidson said: “But the error particularly emphasized is that the court authorized a conviction of appellant if he committed a felony, and that the allegations of the indictment did not authorize this portion of the charge, but that the charge' did authorize a conviction of appellant outside of the allegations in the indictment, which confined his specific intent to a breaking with the intent to commit-theft. This charge of the court constituted error. The indictment charged burglary with the intent to commit theft. There was no felony intent charged in the said indictment, and the court’s charge authorized the jury to convict if they believed that either a felony was intended or the crime of theft. The court certainly could not have submitted to the jury any theory of intent to commit felony, unless it may have been theft. The property taken was of less value than. $1Q. The court’s charge authorized a conviction for an offense not charged, to wit, a burglary with the intent to commit a felony. Under the following authorities, we are of opinion’ that this was error of such moment as requires a reversal of the judgment. Miller v. State, 28 Tex.App. 445, 13 S.W. 646; Bravo v. State, 20 Tex.App. [188], 189; Serio v. State, 22 Tex.App. 633, 3 S.W. 784; Lott v. State, 17 Tex.App. 598; Buntain v. State, 15 Tex.App. 485; Weeks v. State, 13 Tex.App. 466; Sullivan v. State, 13 Tex.App. 462; Hobbs v. State, 44 Tex. 353; Wilcox v. State, 45 Tex. 146.”

Again the same Judge said in Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834, 835: “The indictment charged burglary with intent to commit the crime of theft. The court gave the general definition of burglary with intent to commit a felony or the crime of theft; and, in applying the law to the case, he instructed the jury that, if they should believe beyond a reasonable doubt that appellant broke and entered the house by force with intent to commit a felony or theft, they should convict. This character of charge under this particular form of indictment has been condemned in many cases. Among the later cases decided by this court is that of Williams v. State [53 Tex.Cr.R. 2], 108 S.W. 371. This case collates quite a number of authorities. The exception to the charge was that the jury were authorized to convict appellant if he was found guilty of entering the house, and his purpose was to commit any felony or with intent to commit theft. There was no allegation in the indictment with reference to committing any felony; the intent of the burglary being alleged to commit only the crime of theft. The rule is universal and has been emphasized frequently by appellate courts, and in a great number of cases by the appellate courts of this state, that the charge must be limited to the allegations in the indictment. A jury would not be authorized to convict appellant of any other offense than that specifically charged, and the court should confine the consideration of the jury in the charge to the allegation contained in the indictment. We are of opinion that this phase of the charge was erroneous.”

It is contended by appellant that the giving of such charge under an indictment charging burglary with intent to commit the crime of theft is fundamental error, and therefore saves itself without being objected to at the proper time. It seems that the authorities sustain this proposition. We quote from Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683, 684:

“Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.
“It is error of a fundamental nature to authorize a conviction for any other offense than that charged, and this is true whether there was an exception reserved or not to the action of the court in so charging the jury. Grant v. State, 59 Tex.Cr.R. 123, 127 S.W. 173.”

Also see Sullivan v. State, 13 Tex.App. 462, 463.

It is also worthy of note that the testimony evidences a burglary with intent to commit the crime of theft, and the trial court was in error in charging relative to a burglary with intent to commit a felony. The error was fundamental, and for which this judgment is reversed and the cause remanded.


author: CHRISTIAN, Judge.

text:
    GOODEN v. STATE.
    No. 21317.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    R. G. Allen, of Houston (King C. Haynie, of Houston, of counsel on appeal only), for appellant.
    W. C. McClain, Dist. Atty., and Ned G. Wallace, Asst. Dist. Atty., both of Conroe, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary. The indictment embraced counts showing that on two previous occasions appellant had been convicted of felonies less than capital. Because of repetition of offenses the penalty was assessed at confinement in the penitentiary for life. See Article 63, P.C.

It is shown that at a time prior to this trial this defendant had been tried for a similar offense, and that for the purpose of an enhancement of the punishment, the previous convictions used in the present case had been used for the purpose of enhancing the penalty in the former case. Tex.Cr.App., 145 S.W.2d 177. The same conviction can not be twice used for enhancement purposes. In Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225, 79 S.W. 570, 571, this court said: “Evidently it was never intended that prior offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once.” See also Miller v. State, Tex.Cr.App., 140 S.W.2d 859, and Cothren v. State, Tex.Cr.App., 140 S.W.2d 860.

The indictment in the present case charged appellant with burglarizing the house of Hill Shannon with the intent to commit theft. In the charge the cortrt authorized a conviction in the event the jury found that the appellant entered the house with the intent to commit theft or any felony. The charge of the court should have been limited to the allegations embraced in the indictment. Stated in another way, the jury would not have been warranted in convicting the appellant if they found that he had entered the building with the intent to commit some felony, it being alleged that the entry was to commit theft only. Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834, 835.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    GARCIA v. STATE.
    No. 20676.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Robert M. Sellers, of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of El Paso County under a charge of assault with intent to murder.

It is alleged in the indictment charging assault to murder that he was duly and legally convicted in the District Court of the United States for the Western District of Texas on January IS, 1937, for a felony, to-wit, unlawfully entering into the United States of America after having been legally deported. It alleges another conviction on a similar charge in the United States District Court for the District of Arizona on the 4th day of May, 1935. It is further alleged that on the 19th day of November, 1926, he was convicted in the Superior Court of Marin County, California, for a felony less than capital, to-wit, escaping from the state prison. It is.further alleged that on the 11th day of April, 1922, he was convicted in the Superior Court of Estanislaus County, California, for a felony less than capital, to-wit, burglary.

.Upon the court’s charge on these issues, the jury found appellant guilty and assessed his punishment at life imprisonment in the penitentiary.

• The enhanced penalty is fixed in this case by authority of Article 63, Vernon’s Annotated Penal Code, which reads as follows: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life iñ the peniténtiary.”

It is contended by the appellant that in order to support the life sentence under the statute quoted, , the previous felonies must have been committed within the State of Texas, and that they must have been convictions in the state courts. These contentions will not be sustained. This court has heretofore held that a conviction in the Federal Court of previous offenses will support the imposition o.f the life sentence. See Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997. It is. well settled that convictions of a felony in other states will support the enhancement of the penalty.

The only question which we consider to be open for interpretation by this court is whether or not the prior convictions must be for offenses which are denounced by the laws of Texas as felonies.. By statutory enactments, several states, among them Louisiana, California and New York, provide that the convictions, if had in other states, must be for felonies denounced as such by the laws of these states. So far as we are able to find, no state has, by statutory enactment, provided specifically that -the life imprisonment or increased punishment may be imposed because of convictions in another state for a felony not so denounced by the laws of the convicting state.

The history of that section of our statute is not such as will reveal the intention of the Legislature in this regard. It first ■appears in the original codification known as Texas Codes, dated 185/1. There is but little difference in the language, and no substantial difference in the meaning of this article, as it appeared in the various codifications of our penal statutes through the years.

Arnold v. State, dated May 30, 1934, and reported in 127 Tex.Cr.R. 89, 74 S.W.2d 997, 999, makes this pronouncement: “The offense of which the appellant was convicted in the federal court is one that is denounced as a felony punishable by imprisonment in the penitentiary by the statutes of this state and of the United States.”

It is further said in the same opinion: “The exact point that appellant stresses, namely, that the conviction in the federal court cannot be used to enhance the penalty against him, as above stated, has not been passed on so far as the members of this court are aware. Considered in the light of the precedents, however, upon the general subject of .the trial of habitual criminals, no sound reason is perceived for setting aside the present judgment. As stated above, one of the prior convictions against the accused was in the United States court. It was in the state of Texas, however, and was for an offense denounced by the statutes of the state.”

While it may be understood that this opinion lays down no rule on the subject, it is a strong intimation that the felony conviction in another state, in order to be used to enhance the punishment in this state, should also be one that is denounced as a felony by our law. So far as this court is able to discover, as above stated, the exact question has been decided by only one court of last resort, that of the State of Wisconsin in the case of Kirschner v. State, 9 Wis. 140, decided in 1859. The following excerpt from that opinion is in point: “Inasmuch as each state has a criminal code peculiar to itself, so that what may be regarded as an infamous crime in one state may not be in another; we are furthermore of opinion that the record offered in this case was defective in not containing a copy of the indictment upon which the conviction is alleged to have taken place. Without the indictment it is impossible for the foreign tribunal to know the nature or degree of the offence, or whether it was an offence denominated infamous or not in the state where it is to be used.”

This case is so remote in time and the statute, though it has appeared in practically every state one hundred years and more, has not been generally resorted to until in recent years. In this, there is an indication that changing conditions have created a greater demand for its enforcement, and a proper analysis of these conditions might reveal that it is a new demand. If a new demand, a different interpretation may be given.

In the case before us for consideration, it is only shown that appellant was once convicted for an offense that was a felony under the laws of the State of Texas,— that of burglary in the State of California. The record of his convictions reflect enough to show that there were other convictions than the four relied upon. This is not a case in which we may indulge any sympathy for the particular individual involved. He seems to have been a Mexican outlaw. He had been convicted of crime under the laws of the United States and forbidden to re-enter it. He has shown every contempt for the law and for the Government. In the present offense, there is no denial of his guilt. He had stolen an automobile on the Texas side, and in escaping across the line into Mexico he attempted to kill'a deputy sheriff who stopped him at the border. It is a bad case, but it has been aptly said that, “bad cases make bad laws”.

It has often been commented that such a statute is a harsh one and it is generally conceded that harsh statutes must be strictly construed. There is no good reason why the- Legislature should not have written into its statute, if it had so intended, as Louisiana, California and New York .have written, that in order to support the life imprisonment the convictions for felonies in other states must be, for crimes denounced as felonies in this state. For a still better reason, if the Legislature had intended to define a felony as including any offenses which the statutes of Texas do not include, it might have said so. (Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225, 79 S.W. 570, has long been in the books.) The Legislature has met many times since and has taken no action to change the law. Three regular sessions of the Legislature have been held since Judge Morrow wrote the opinion in the Arnold case. While he did not lay down a rule, he did give a strong intimation, sufficient to call the attention of the Legislature to the view which this court would take. In these three regular sessions the Legislature has not acted, and we can only construe their failure to act as an indorsement of the construction of our statute which these cases give to it.

An example of legislative enactment which may be of assistance in discovering the legislative intent in the matter before us is found in the suspended sentence law. Vernon’s Ann.C.C.P. art. 776. There it is provided that a suspended sentence may be given to one who “has never before been convicted of a felony in this or in any other State.” Clearly, there it was meant to include a felony as defined by the laws of any other state. This court has so held. The language is in contrast with the enhancement statute. The Legislature could have said, “in this or in any "other state” and by the addition of that phrase it would have been shown that the intention was to apply to all felony convictions in other states, whether the crime was denounced as a felony in Texas or not. Inasmuch as they failed to do so in the one case, it may be reasonably presumed that they did not intend to so include all such convictions.

While feeling free under the decisions of this state, and of other states, to construe the statute in the light of legislative intent, we are constrained to believe that the rules of construction direct that we should hold that convictions for "felonies in another state will not support the enhanced penalty in Texas'uniess'''they are for_crimes_that are demruncecTliiv'^the Legislature“of Texas as felomesTA

We overrule all other matters presented in this appeal.

The cause is reversed and remanded for a new trial.


text:
    GILSON et al. v. STATE.
    No. 21265.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.

      H. B. Galbraith and H. L. Yates, both of Brownsville, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

A fine of five hundred dollars each was assessed against the appellants upon a conviction for aggravated assault.

Two women gave testimony which, if accepted by the jury would have entitled appellants to an acquittal. It is shown that there was nothing in the testimony adduced upon the trial or in the demeanor or appearance of these women indicating that they were women of ill-fame. In their motion for new trial, appellants alleged that the jury, after retiring to deliberate "upon the case, received other testimony. The specific complaint was that, before the verdict was reached, one of the jurors stated, in the presence and hearing of the •other jurors, that the women to whom we have referred were whores. According to the testimony heard upon the motion for new trial, it was uncontroverted that ■one of the jurors, in referring to the women in question, said to the other jurors: “Well, John’s (referring to appellant ■Gilson) lined up two of his whores to •testify for him.” Again, according to .the testimony, the juror, in referring to the women, made this statement: “Them whores didn’t do a good job of lying.”

We think the trial court fell into error in refusing to grant the motion for new trial. Information given by one of the jurors to others is new and other testimony. Holland v. State, 107 Tex.Cr.R. 582, 298 S.W. 898, and authorities cited. Where, after retiring, the jury receive other evidence damaging to the .appellant, the presumption of injury obtains. Holland v. State, supra.

Upon another trial the state should not be permitted to prove that appellant ■Gilson had filed his application for citizenship and that over a period of nineteen years such application had been refused.

A witness who testifies that he knows the general reputation of the accused as a peaceable and law-abiding man should’ be permitted to testify that such general reputation in that respect is "good, notwithstanding such witness states that he has never heard that reputation discussed in the community. See Henderson v. State, Tex.Cr.App., 39 S.W. 116. A different rule prevails where the witness testifies that the reputation is bad. In such event, if the witness states that he has never heard any person say that the reputation of the accused was bad, he is not qualified to speak. Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248. If the witnesses offered by appellants touching their good reputation as peaceable and law-abiding men should, upon another trial, state that they had never heard that reputation discussed, although they had been in a position to hear it discussed, they would be qualified to state that such general reputation was good.

It appears from one of the bills of exception that the injured party had filed a civil action against the appellants for the purpose of recovering damages for the assault they had made upon him. Appellants complain of the action of the court in not permitting them to question the injured party in more detail relative to the suit he had filed. While not predicating a reversal upon the bill of exception last mentioned, in view of another trial, we call attention to the following statement of the rule made by Mr. Branch in Section 163 of his Texas Annotated Penal Code: “The defendant is entitled to show animus and prejudice on the part of a state witness towards him, and its extent, and in such examinations great latitude is allowed when the object is to impeach the credit of such witness.” In support of the text many authorities are cited, among them being Edwards v. State, 75 Tex.Cr.R. 647, 172 S.W. 227, 233.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    FARMER v. STATE.
    No. 21272.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in Travis County on a charge of driving while intoxicated and assessed a penalty of sixty days in jail.

The proceedings appear to be regular. The record is before us without a statement of facts or bills of exception and nothing is presented for our consideration.

The judgment of the trial court is affirmed.


text:
    SANDERS v. STATE.
    No. 21294.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Bennett & Bannett, of Normangee, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for two years.

J. C. Cleere testified that on or about the 22nd of June, 1939, he lost two head of cattle. It was the theory of the state, given support in the evidence, that Richard Brown and William Ashley stole the cattle and sold them to appellant, appellant knowing such cattle to have been acquired by theft at the time he bought them. It was the further version of the state that the stolen cattle were butchered by appellant and sold to the C. & W. Grocery Company, which was situated in Madisonville.

The state introduced in evidence appellant’s voluntary statement, which omitting the warning, reads as follows: “About nine o’clock on the evening of June 22nd, 1939, Rich Brown and William Ashley, both negroes, came to my house in Madisonville and told me they had two yearlings tied out on the hill at Mr. J. L. Cleere’s pasture of State Highway No. 21, they got in my truck with me and we went out there together and got one white and one red yearling, the red may have had some roan color but I am not positive. We took these yearlings to my house that night and butchered them the next morning around seven or eight o’clock, and sold them to the C. & W. Grocery store in Madisonville, and give the C. & W. Grocery store the hides of these yearlings. I gave William Ashley seventeen dollars for these yearlings, he did not tell me where he got these yearlings. I got $58.32 for these two yearlings. They did not say how they got this stuff or yearlings, they told me they had the yearlings out there. Rich Brown had helped me butcher cattle before. When we got out to Mr. Cleerels pasture I turned my headlights off and drove in the pasture and back to some timber or shade trees where the yearlings were tied and we loaded them on a truck' and William Ashley left us and Rich Brown and myself drove on out the pasture and when I got to the gate I turned my lights back on and went home in the Eastern part of Madisonville. I paid William Ashley the seventeen dollars for these yearlings on Saturday morning, June 24th, 1939, down on the jail lot in the town of Madi-sonville, Texas. William Ashley told me Wednesday the 21st of June that he had two yearlings that he wanted to sell me.”

For the purpose of supporting the theory that appellant knew the cattle were stolen at the time he received them, the state proved by the sheriff that when he questioned appellant concerning the stolen animals, appellant told him that he bought such animals from parties other than Richard Brown and William Ashley. It is appellant’s contention, as shown by a proper bill of exception, that he was under arrest at the time he made the declarations in question, and that the provisions of Article 727, C.C.P., relating to confessions, had not been complied with. We quote said article, in part, as follows:

“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

As shown in the bill of exceptipn relating to the question, the Sheriff testified as follows :

“I am sheriff of this county and was in 1939. I know the defendant. I saw him along the 23rd, 24th or 25th of June, 1939. I remember hearing about Mr. Cleere losing some cattle along about that time. I first saw the defendant along that date in Fred Westmoreland’s store. I didn’t have a conversation with him no more than just spoke to him. There was no discussion with reference to Mr. Cleere’s cattle at that time. Later I sent for Mr. Sanders and had him brought into my office to question him. I questioned Sanders when he was brought to my office. I asked him if he butchered for the C. & W. Friday and he said he did. I asked him what he butchered. He said he butchered a white calf and a red one. I asked him,where he got those two calves. He said he bought one of them from a negro out here at Bus Terrell’s which is about 7 miles out of Madisonville. He said he had bought the other one from Cap Westmoreland down here east of town. I asked him if he could show me the negro that he bought this white calf from. He said he didn’t know, but if I would go with him he would show me. He said if I would go with him he would carry me and show me the negro he bought the white calf from. I told him I was ready. We got in Johnny Sander’s car and went out 21. Mr. Sanders, the defendant, was driving the car. We went out 21 beyond Cottonwood Prairie Store, where the school house is to the left, and I asked the defendant where he was going and he said that he was going to show me the man he bought the calf from. I told'him he told me he bought it from a negro on Bus Terrell’s place and he said he would show me who he bought it from. He carries me to Clint Magness’ down in the Kickapoo community and we got up there right at 12 o’clock. That is about 10 miles from here. The defendant called him out' there and asked if he didn’t sell him a white calf some three or four weeks before hand and Clint wanted to know what was the trouble and he said, ‘Well, the sheriff wants to know where I got a certain calf’ and Clint said he sold him a Jersey calf three or four weeks before that. I asked Clint if it was a white Jersey calf and he said ‘no, it was a cream-colored calf. I have its mother out there and the calf was exactly the col'or of it’s mother, only one a cow and the other a c%lf.’ So we looked at the cow. She was a cream-colored Jersey cow. I told him that was all I wanted to know and the defendant and myself got in the car and came back to Madisonville and it wasn’t mentioned. I did not have him arrested. We came into Madisonville and drove around there and I got out of his car and asked him to go with me to dinner. It was then IS minutes after 12. The defendant said that he had to go in; that he had some work to do. I said ‘no, you have got to satisfy me about these cows first. You meet me back down here at one o’clock.’ I went on to the house and came back and didn’t see the defendant any more until three or 3 :30 that afternoon. I left the defendant about 15 minutes until one o’clock. When I saw the defendant the next time he was in jail talking to Rich Brown bu't we had Rich Brown arrested and put in jail and the defendant was standing there talking to him. I had the defendant arrested and put in there with Rich. That was around two or three o’clock in the afternoon. I never did go to see that negro that Sanders was talking about. The defendant did not go with me anywhere else but I went to Cap Westmoreland’s to know if Cap had sold him a red heifer calf. Cap said he ■ had never sold Johnny Sanders a calf or a cow in his life. I sent Mr. Martin, my deputy sheriff, to go and tell the defendant to come over to where I was. I didn’t have the defendant under surveillance from that time until I saw him at'the jail. If I had I wouldn’t have turned him loose. The defendant asked me coming in if that satisfied me and I said ‘No, you haven’t told me nothing.’ When I left the defendant at lunchtime I told him I wanted him to" meet me back down here at 1 or 1:30 and the defendant told me he had some work to do. I told the defendant he had me to satisfy about the yearling first. I was acting as sheriff when I was talking to him. I went with the defendant out to the place I just was talking about. He proposed to carry me out and show me the negro he had got this white calf from. I don’t believe that I would have let the defendant go until he had taken me out and showed me something. At the time we went out there I don’t know where my car was.”

It is manifest from the sheriff’s testir mony that he had learned that Mr. Cleere had lost some cattle; that he (the sheriff) had appellant brought to his office for the purpose of questioning him; that he had determined at the time he had appellant brought to his office that he would not release appellant until he (the sheriff) became satisfied that appellant had no guilty connection with the transaction involving the theft of the cattle; that if appellant had been in his actual custody between the noon hour and the time he saw appellant at the jail he would not have released him; that when he found appellant at the jail talking to Brown he immediately arrested appellant. It is further noted that the testimony of the sheriff, in effect, shows that he suspected appellant had some guilty connection with the taking of the cattle in question.

We think the objection to the testimony of the sheriff was well taken. We quote the-language of Judge Davidson in Buddy v. State, 88 Tex.Cr.R. 403, 227 S.W. 323, 324, as follows: “One of the questions presented is that during the day of the 26th the justice of the peace sent for appellant. Appellant went to his office, and was there questioned with reference to this transaction, and his statement seems to have been reduced to writing. The whole matter came up before the justice of the peace with reference to the robbery transaction. Immediately after this appellant was arrested. Objection was made to the introduction of this testimony, which we think was well.taken. Appellant was not strictly under arrest at the time, but he was suspeeted of crime and being questioned with reference to it by the justice of the peace. He was not warned. Under such circumstances this court has held in quite a number of cases that this character of testimony,' either for impeachment or as original, was not introducible. See Wood v. State, 22 Tex.App. 431, 3 S.W. 336; Reynolds v. State, 82 Tex.Cr.R. 443, 199 S.W. 636; Oliver v. State, 81 Tex.Cr.R. 529, 197 S.W. 185; Calloway v. State, 55 Tex.Cr.R. 262, 116 S.W. 575; Fry v. State, 58 Tex.Cr.R. 169, 124 S.W. 920; Simmons v. State, 79 Tex.Cr.R. 341, 184 S.W. 226.”

In Bonatz v. State, 85 Tex.Cr.R. 292, 212 S.W. 494, 496, Judge Davidson, speaking for the court, said: “It is also a well-settled rule that a defendant may be shown to be under arrest by surrounding facts and environments. It is not necessary that the officer should make an arrest in formal words.” See, also, Rollins v. State, 126 Tex.Cr.R. 545, 73 S.W.2d 541, and Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    GEORGE v. STATE.
    No. 21293.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Jack H. Shields, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by complaint and infoririation with operating a' motor vehicle upon a public highway in Jefferson County “which had not been registered as required by law,” and in a verdict of guilty, he was assessed a fine of' $10.

The complaint upon which this prosecu^ tion is based is as follows:

“In the Name and by the Authority of the State of Texas:
“I, -do solemnly swear that I believe and have good reasons to believe that on or about the 22nd day of March, A. D. 1940, One Thousand Nine Hundred and Forty and before the making and filing of this affidavit, in the County of Jefferson and State of Texas Mike George alias Mike Kouchoucos did then and there unlawfully operate, upon a public highway of the State of Texas, in Jefferson County, Texas, towit, upon Highway No. 90, in said County, a motor vehicle, towit, an automobile, which had not been registered as required by law, against the peace and dignity of the State.
“H. C. Blades, Affiant
“Sworn to and subscribed by - a creditable person-, before me, on this 12th day of April, A. D., One Thousand Nine Hundred and Forty.
“John P. Blair, Assistant County Attorney of Jefferson County, Texas.”

It is our opinion that the above allegation is not sufficient to apprise appellant in what way he had failed to follow the requirements of the law relative to the registration of the automobile that he was operating on such highway. There is more than one article of the statute governing the proper registration of motor vehicles, and the complaint as herein presented might include a violation of any one of such articles as a basis of this prosecution. Appellant is entitled to have the complaint apprise him in no uncertain terms of the specific requirement of the law that he had failed to comply with, and if necessary prepare a defense, if possible or desired. See Branch’s Penal Code, p. 255. We note that this complaint practically copies the statute, Art. 804, P.C., under which this prosecution is based; but we have often held that sometimes it is not sufficient to merely copy the statute in the charging portion of a complaint or indictment. Again Mr. Branch says, p. 255: “It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the legislature or from the application of known principles of law,” citing many authorities.

It is patent from the evidence that the pleader who drew the complaint intended to charge appellant with not having registered his automobile for the current year in the county of his residence, as was required by the statute, and we think appellant was entitled to have the complaint state such allegations, not in such general terms as to refer to all the statutes governing the registration of motor vehicles, but in the specific instance that was intended wherein he violated such law.

Thus believing, on account of the defect in the complaint the judgment is reversed and the prosecution ordered dismissed.


author: KRUEGER, Judge.

text:
    COX v. STATE.
    No. 21309.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Joe Bailey Morris, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is passing a forged instrument. The punishment assessed is confinement in the state penitentiary for three years.

No notice of appeal appears in the record. This is necessary to give this court jurisdiction of the case. See Art. 827, C. C.P., and cases cited under said article in Vernon’s Ann.Tex.C.C.P. Vol. 3, p. 197. See, also, Branch’s Ann.Tex.P.C § 588 and cases cited.

The appeal is dismissed.

PER CURIAM.

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


text:
    COX v. STATE.
    No. 21310.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Joe Bailey Morris, of Dallas, for appellant.

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

The appeal is from a sentence of three years in the penitentiary on ■ a charge of passing a forged instrument.

Appellant pleaded guilty and there are no hills of exception. We have examined the record, including a statement of facts, and are of the opinion that the proceedings are regular. The judgment entered is warranted and there is no question before this court for our consideration.

The judgment of the trial court is affirmed.


text:
    COX v. STATE.
    No. 21312.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.
    Joe Bailey Morris, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is passing a forged instrument; the punishment, confinement in the penitentiary for three years.

The appellant waived a jury and entered a plea of guilty before the court. The state introduced evidence showing that appellant passed a forged check in the sum of fifty dollars to W. J. Johnson. There was sufficient proof before the court showing that at the time appellant passed the check he knew it had been forged. Appellant did not testify.

No bills of exception are brought forward.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

PER CURIAM.

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


text:
    BIELECKI v. STATE.
    No. 21285.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.

      Gaston H. Wilder, Jr., of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, a fine of one hundred dollars and confinement in jail for ninety days.

The injured party, Clara Dean Dionne, was approximately six years old at the time of the alleged offense. She testified that appellant took her into a garage and, after exposing his male organ, placed his hand on her female organ. She declared that he did not hurt her. According to her testimony, she reported the matter to her stepmother. Mrs. .Dionne testified that the injured party reported appellant’s misconduct to her. Testifying in his own behalf, appellant said: “I understand that I have been accused of indecent fondling of this young girl, the daughter of Dionne, and I will say that it is not true, that I did not do such a thing.”

It is shown in bill of exception No. 2 that counsel for the state asked Frances Ann Miller, a girl about seven years of age, the following question: “Sometime ago did he (meaning the defendant) do anything to you?” The question was timely and properly objected to, but before the court had the opportunity to rule upon such objection the witness answered in the affirmative. Obviously, the question and answer advised the jury that appellant had been guilty of indecently fondling the person of a child other than the injured party. Such testimony was not admissible under any exception to the rule excluding collateral offenses. See Hagood v. State, 104 Tex.Cr.R. 429, 284 S.W. 547. Hence the bill of exception reflects error, and, under the circumstances reflected by the record, we would not feel warranted in holding such error to be harmless.

We doubt whether the injured party was shown to be a competent witness. It has been observed that she was only six years of age. It is well settled that children, who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to .which they are interrogated, or who do not understand the obligation of an oath, are incompetent witnesses. See Jimenez v. State, 103 Tex.Cr.R. 163, 280 S.W. 829. A thorough examination of the witness might have shown her to be competent. However, the examination shown in the present record is not deemed sufficient to reflect that she possessed sufficient intelligence to relate the transactions concerning which she was interrogated or that she understood the obligation of an oath.

Because of the first error herein discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    FITZGERALD v. STATE.
    No. 21286.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1940.

      Clyde Suddath, of Henrietta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary. The indictment embraced a count showing that appellant had theretofore been convicted of the offense of burglary. Because of repetition of offenses, his punishment was assessed at confinement in the penitentiary for twelve years.

J. L. Blackwelder testified that his barn was burglarized on the 21st of October, 1939, and, among other things, a post hole digger taken therefrom. The post hole digger was traced to the possession of George Levethan in Fort Worth, who testified that he bought it from a younger brother of appellant. He testified further that appellant was in a car with his younger brother and others at the time the post hole digger was delivered to him (the witness). He was unable to recall who was driving the car. His testimony on recross-examination indicates that appellant was merely present with those who were exercising dominion over the property in question. In short, it appears from the testimony of the witness, when analyzed, that appellant sat passively in the car while the sale was made. We quote from his testimony: “I don’t recall who was driving the car. This defendant didn’t talk to me. He didn’t bring that post hole digger up to me. ■ He was just in the car when it was brought up, and he didn’t say anything to me at all.” There is nothing in the testimony to show that appellant said anything to his companions indicating that he was interested in the post hole digger. There is nothing to show that he had anything to say to the witness Levethan or to any other person. Berl Wright, an accomplice witness, testified for the state to the effect that he, appellant, Clifford Fitzgerald and others committed the burglary. The witness was not present when the post hole digger was sold to Levethan. There was no testimony other than that of the accomplice witness Wright placing appellant in Clay County on the occasion of the burglary.

Appellant contends that the evidence is insufficient to corroborate the testimony of the accomplice witness Wright to the effect that appellant was present and participated in the burglary. We are constrained to agree with this contention. A conviction can not be had “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed”, and “the corroboration is not sufficient if it merely shows the commission of the offense,” but it must tend to connect the accused with its commission. Article 718, C.C.P.; Freeman v. State, 118 Tex.Cr.R. 102, 40 S.W.2d 105. The test as to the sufficiency of the corroboration, often given application by this court is to eliminate from the case the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view of ascertaining if there be inculpa-tory evidence; that is, evidence of incriminating character which tends to connect the accused with the commission of the offense. If there be such evidence, the corroboration is sufficient; otherwise, not. Durham v. State, 106 Tex.Cr.R. 85, 290 S.W. 1092. Applying the test,, it is observed that the sole circumstances relied upon by the state to corroborate the testimony of the accomplice witness was that appellant was passively present in an automobile with his brother and others at the time the post hole digger was sold by appellant’s brother to the witness Levethan. We are unable to reach the conclusion that such proof, under the conditions reflected by the record, was evidence of an incriminating character which tended to connect appellant with the commission of the offense of burglary.

The judgment is reversed and the cause remanded.

PER CURIAM.

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