author: CODY, Justice.

text:
    BEELER et al. v. LOOCK et al.
    No. 10983.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 7, 1939.
    Rehearing Denied Jan. 4, 1940.

      J.. S. Bracewell, of Houston, for appellants.
    Ernest A. Knipp and H. T. Fleming, both of Houston, for appellees.
   CODY, Justice.

This is an election contest, arising over the election of school trustees in the Ad-dicks Independent School District, in April of this year. The district is incorporated under the general law, and this election was the first succeeding regular election after the district’s incorporation, thereby necessitating the election of a full ticket of seven trustees. There were fourteen candidates for the seven places on the board. As will be noted from returns as made to the Commissioners’ Court, there were only thirteen votes difference between the highest and lowest candidates:

George Grosche ... A. A. Beckendorf.. Rudolph Hoffman . W. C. Hillendahal.. A. E. Marks. W. J. Habermacher A. W. Gleason. Arthur H. Beeler.. W. R. Euton. William Hammond L. H. Sauer. D. J. Dockal. O. H. Loock. G. M. Goar. 1 — ‘I—1 I — 1 r — 1 I — 1 h*-4 I — 1 1 — l)—1|—1>—*I——4 ⅜ — 4 O O O 1 — 1 I — 1 I — 1 i — 1 I — l I — 1 I — 4 | — l | — ⅛ I — l (-U ChO\COMOWGJOoCoAülOia\VO

This contest was filed by four of the losing candidates against seven of the other candidates. Three of the candidates who were shown to have been elected by the Commissioners’ Court canvass, were not made parties to the suit, and did not become parties to it. Those three candidates which were not made parties to the suit, it would appear, belonged to the same “slate” as did the contestants. The con-testees who were shown by the canvass to have been elected, urged that there was a want of necessary parties, which plea was by the court overruled.

The trial court ordered the ballot box opened and a retabulation count made of all votes. The court sustained several challenges made by contestants, and overruled all challenges made by the con-testees. The court rendered judgment materially changing the result of the election. Marks, one of the contestees, was declared defeated. Beeler, one of the contestees, who was not claiming to have been elected, was declared to have been elected. And Habermacher and Euton, contestants, were declared elected.

Appellants predicate their appeal on three points:

1. That our statutes only authorize the contest of the election of a party holding an .election certificate, therefore, there is' no authority to contest an election of a person who is defeated, or who receives a tie vote, so that he has received no certificate of election.

2. That in an election such as this, where none of the candidates are seeking any particular place, it is necessary to make all the candidates shown by the canvass to have been elected, parties to the suit, especially where there are enough votes challenged to change the result as to the parties who are not made parties to the suit.

3. That the court erred in sustaining certain of the challenges made by contestants, and in refusing certain of the challenges made by the contestees.

It is appellees’ contention that this court is without jurisdiction of this appeal at all — raised by motion to dismiss the appeal, and urged as part of the answer to appellants’ contentions. The grounds urged by appellees in support of this claim are that appellants have failed to appeal from the judgment of the trial court in conformity with the requirements of Art. 3056, which is the authority for appealing election contests. The article provides in part: “Either the contestant or contestee may appeal from the judgment of the district court to the Court of Civil Appeals, under the same rules and regulations as are provided for appeals in civil cases * * It is ap-pellees’ contention that, as appellants filed a motion for a new trial below, and appealed' from the court’s refusal to grant a new trial, that they did not appeal from the judgment of the district court with respect to the election contest, but merely appealed from the ruling on the motion for a new trial. Undoubtedly the jurisdiction of a district court in election contests will be strictly construed. Our contested election statute has been construed as restricting contests to the cases therein expressly provided for, and to the procedure provided for in the Act itself. “We therefore understand the construction placed on this statute to be that the legislature has so limited the manner in which the district court may exercise its constitutional jurisdiction over ‘contested elections’ as to exclude all contests and procedure not provided for in the act itself.” Calverley v. Shank, 28 Tex.Civ.App. 473, 67 S.W. 434, 435. But it was never contemplated that any strained construction should be placed on the act, such as might serve to entrap even the wary. It is a normal practice in civil cases, even when there is na jury, for one feeling aggrieved with a judgment to move for a new trial. Certain it is that the rules and regulations for “appeals in civil cases” contemplate that one feeling himself aggrieved at the judgment of the trial court, may within a prescribed time apply to the trial court for a new trial. If the act does not in terms authorize a party feeling aggrieved at the judgment of the trial court to first seek a new trial there, it certainly employs language the tendency of which is to lead a careful lawyer to believe that such procedure was intended to be authorized. In the recent case of Marks v. Jackson, Tex.Civ.App., 130 S.W.2d 925, we sustained the jurisdiction of the trial court to follow a normal and usual course of procedure which applied generally in civil cases. The Legislature cannot be taken to have intended any strained construction to be placed on language used in statutes authorizing appeals, which would have the effect of misleading careful and diligent lawyers to lose the right of appeal. What we have said also applies, we believe, to the right of contestees to file answers in court, and to amend such answers, so long as in doing so a normal practice followed in the trial of civil causes is pursued. Ap-pellees’ contention that we are without jurisdiction to consider this appeal is overruled. Their motion to the same effect, taken with the case, is refused.

Recurring now to the first two points relied on by appellants for reversal of the judgment of the court below, it seems to us that they are inconsistent with each other. If we understand appellants’ statement of their first point, then there is no authority under the law for a contestant to make any other candidate a party to the contest except such as had received a certificate of election. If we understand the reasoning appellants urge in support of their second point, then all candidates were indispensibly necessary parties to the contest.

As indicated above, our contested election statute has been construed as restricting contests to the cases and procedure therein expressly provided for. It is well known that the closer the vote is in any particular political race, the greater the likelihood that illegal votes, if counted, have affected the result; and the greater the likelihood that if they are thrown out, that the result of the election will be changed. If the result of the contested-election law was to authorize a contest in every instance except where the race was so extremely close as to be tied, this would be an absurdity that the Legislature certainl-y never intended. We hold that the legislative, intent manifested by the contested-election statute is sufficiently broad to authorize an election contest where the candidates have tied, by necessary implication. Surely had the Legislature intended to make such-an exception to the act, one so contrary to the purpose and spirit of the act, it,would have been expressed in terms. A tie, in a race for office, differs from other close races, only in the vote being closer and more nearly equal, and in increasing the logical justification for concluding that á recount will change the result. We do not regard the provision in the act relating to certificate of election as mandatory, but as merely directory at most. Vernon’s Ann. Civ.St. art. 3032. The issuing of the certificate to the candidate receiving the highest vote is a ministerial act. It is not the certificate that confers the right on the candidate to the office, but the highest vote. In the overwhelming number of instances, a count will show one of the candidates. received the greatest number of votes. And, in most elections, when it does happen that those who canvass the returns find a tie vote, the probability is certainly as great that those who counted the votes erred, as that there was really a tie. It is true that Article 2953 provides: “At any election, if there be an equal number of votes given to two or more persons for the same office, except executive offices as provided in the Constitution, and no one elected thereto, the officer to whom the returns are made shall declare such, election void as to such office only, and shall immediately order another election to fill such office.”

The quoted Article does not have the effect of making the tally of the votes returned uncontestable, where the votes appear from such return to be equal, if in fact, by a true count of the legal votes cast, the votes were unequal, and one of the candidates was actually elected. By its own terms the Article is intended to apply in cases where no one was actually elected.

In the present instance^ the trial court has found that, by a true count, seven sandidates were actually elected. In making this determination it acted within Articles 3053 and 3054. In the present instance, however, the fact that candidates might receive an equal number of votes, there being seven places, and not merely one, to fill, could not result in the election being void merely because two or more may have received an equal number of votes.

Appellants’ assignment based on their point one is therefore overruled.

Appellants’ second point is, in effect, that the three candidates who were not parties to the contest, Beckendorf, Hillendahl and Groschke, were indis-pensibly necessary parties. If appellants are correct then this cause will have to be reversed. Even if such a point were not raised in the trial court, and if such point appeared to the appellate court without having been raised, the case would have to be reversed because courts cannot try cases in the absence of indispensibly necessary parties. And appellants raised this point seasonably in the trial court.

We believe, contrary to appellants’ contentions, that every candidate for an office in a contested election case, is a proper party. It seems clear to us that, in the normal election, where there is a race for only one office, and there are several candidates, and certain of such candidates receive so few of' the votes cast that under no supposable facts could a recount of votes result in their election, such candidates could not be held as indis-pensibly necessary. Upon the same principle, in a case where there are seven places to be filled, certain of the candidates may conceivably receive so great a majority that under no supposable facts could a recount result in their defeat. Since the facts that are to be proven in an election-contest ■ case are made to appear in the statement or pleadings of the parties, we take it, that, as in every other case, the pleadings will be looked to, to determine whether or not the court has before it the parties indispensibly necessary to try the issues made by the pleadings.

An examination of the pleadings discloses that contestants and certain of contestees variously allege that illegal votes were counted, or legal votes not counted, enough to change the result of the election, but nowhere is it alleged by anyone that any illegal votes were counted for the three candidates not made parties. Contestants allege that illegal votes were cast for contestees, and such of the con-testees as filed other than formal answers, allege that illegal votes were counted for contestants. And the court did not find from the evidence, that enough illegal votes were cast for the candidates not made parties to change the result. Had such a result come about, the court would doubtless have been required to declare a mistrial, though that point is not before us for decision. For a court cannot adjudicate upon the rights of parties not brought before it, without giving them an opportunity to be heard. So far as we are able to determine, this chance of a mistrial all parties to the suit deliberately risked. We say this because all parties, to a suit are bound to know that no valid judgment can be rendered where there is a want of in-dispensibly necessary parties. Appellants contend that the three parties not made parties were- necessary, while appellees contended otherwise. If the court correctly determined what were legal votes, he was correct in his ruling that said parties were not necessary to a valid trial and judgment.

Appellants’ assignment based on their second point is overruled.

We have carefully read the trial court’s findings, as taken down, relative to the qualifications of the various voters, whose votes were contested. We have carefully considered the objections urged by both appellants and appellees, and what appellees have said in support of the court’s findings. We have concluded that there is sufficient evidence to support the court’s judgment.

The judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: CRITZ, Justice.

license: Public Domain

text:
    NATIONAL BISCUIT CO. v. STATE.
    No. 7618.
    Supreme Court of Texas
    Jan. 24, 1940.

      Levert J. Able, William Ryan, Sidney Benbow, C. R. Wharton, and Baker, Botts, Andrews & Wharton, all of Houston, for plaintiff in error.
    Gerald C. Mann, Atty. Gen., and A. S. Rollins and George W. Barcus, Asst. Attys. Gen., for defendant in error.
   CRITZ, Justice.

This suit was filed in the District Court of Travis County by National Biscuit Company, a foreign corporation, hereinafter designated the Company, against the State of Texas to recover the sum of $55,-040 paid by it in 1909 as a permit fee, and to recover the further sum of $38,367 paid by it as franchise taxes for the years from 1907 to 1917, both inclusive. The suit was authorized by joint resolution passed by the Texas Legislature in May, 1937. Trial in the district court resulted in a judgment for the State. On appeal by the Company the Court of Civil Appeals affirmed the judgment of the district court. . 129 S.W. 2d 494. The case is in the Supreme Court on writ of error granted on application of the Company.

As above stated, the suit was authorized by joint resolution passed by the Texas Legislature. Gen.Acts 1937, p. 1549. The resolution is as follows:

“Senate Concurrent Resolution No. 63 “By Stone.
“Whereas, National Biscuit Company is a foreign corporation with permit to do business in Texas, and has been doing business continuously in Texas since 1907; and
“Whereas, The said National Biscuit Company has paid filing fees and franchise taxes to the State of Texas continuously from 1907 to 1917, under the then existing franchise tax and filing fee laws, which have been declared unconstitutional by the Supreme Court of the United States, said decision holding that the taxes and filing fees so paid were illegally and unlawfully exacted from National Biscuit Company by the State of Texas; and
“Whereas, There is no provision of law, nor has there been any provision of law whereby this money unlawfully exacted could be returned or recovered except through a direct appropriation by the Legislature; and
“Whereas, There is no machinery set up by -the laws of the State of Texas to accurately and definitely determine just what amount of taxes should be returned, ifany; and
“Whereas, In order to definitely and accurately determine the same, it is the policy of this Legislature to let a court of competent jurisdiction pass upon the same; and'
“Whereas, The Legislature of the State of Texas has from time to time permitted other corporations, such as National Biscuit Company, to recover these taxes, and has made appropriations to pay the same; now, therefore, be it
“Resolved, By the Texas Senate, with the House of Representatives concurring, that National Biscuit Company he, and the same is hereby granted permission to bring suit against the State of Texas in any court of competent jurisdiction in Travis County, Texas, to determine definitely and accurately what amount of taxes and filing fees may have been heretofore illegally exacted of National Biscuit Company by the State of Texas and paid to the State of Texas, if any, as filing fees and franchise taxes under any such unconstitutional law as hereinabove mentioned, arid there is hereby appropriated out of the Treasury such funds as may be necessary not heretofore appropriated to pay any final judgment which may be obtained .by reason of the permission to sue the State of Texas herein granted, and service of citation for the purposes herein granted may be served upon the State of Texas by serving the Attorney General, Secretary of State and the Comptroller of Public Accounts.”

In 1889 the Texas Legislature enacted a law fixing permit fees to be paid by foreign corporations. Gen.Acts 1889, c. 78, p. 87. Under Section 5 of the 1889 Act, permit fees for foreign corporations were fixed as follows:

Corporations with a capital stock of $100,000, or less, paid $25. Corporations with a capital stock of more than $100,000, and less than $500,000, paid $50. Corporations with a capital stock of $500,000, and less than $1,000,000, paid $100. Corporations with a capital stock exceeding $1,-000,000 paid $200. These fees were payable annually.

The permit fee Act of 1889, supra, was carried into the codification of 1895 as Article 2439. In other words, under Article 2439, supra, the annual permit fees charged foreign corporations were the same as were charged under the Act of 1889, supra.

In 1905 the Legislature amended Article 2439, R.C.S.1895, supra, so as to charge foreign corporations permit fees as follows : Corporations with a capital stock of $10,000, or less, were charged $25. Corporations with capital stock exceeding $10,000 were charged $25 for the first $10,000, and $5 for each additional $10,000, or fractional part thereof. Gen.Acts 1905, c. 91, p. 135.

In 1907 the Legislature again amended Article 2439, R.C.S.1895, supra, as amended, so as to charge foreign corporations as follows: Corporations with capital stock of $10,000, or less, were charged $50. Corporations with capital stock exceeding $10,000 were charged $50 for the first $10,000, and $10 for each additional $10,000, or fractional part thereof. Gen.Acts 1907, 1st Called Sess. c. 22, p. 500.

In 1909 the Legislature again amended Article 2439, R.C.S.1895, as amended in 1905 and 1907, so as to charge foreign corporations the following permit fees: Corporations with capital stock of $10,000, or less, were charged $50. Corporations with capital stock exceeding $10,000 were charged $50 for the first $10,000, and $10 for each additional $10,000, or fractional part thereof. Gen.Acts 1909, 1st Called Sess., c. 4, p. 266.

The Act of 1909, supra, so far as applicable here, was codified as Article 3837, R.C.S.1911. In such Article permit fees charged foreign corporations were the same as provided by the Act of 1909, supra.

The permit fee statutes above mentioned have been amended since the codification of 1911, but we are not interested in such amendments in this suit.

In 1899 National Biscuit Company, hereinafter called the Company, obtained a permit to do business in Texas, and, we presume, paid the permit fee then required by statute, $200. ' Article 2439, R.C.S. 1895, supra.

In 1909 the Company renewed its permit to do business in this State. In order to effect such renewal the Company was required to pay the permit fees provided by Article 2439, R.C.S. 1895, as amended in 1909, supra, being the same fees required by Article 3837, R.C.S.1911. Under such statute the Company was required to pay the sum of $55,040.

In 1893 the Legislature passed an Act levying an annual franchise tax on foreign corporations, such as this, of $10. Gen. Acts 1893, c. 102, p. 158, sec. 5.

The Act of 1893, supra, was carried into the codification of 1895 as Article 5243Í. Under such Article the franchise tax charged a foreign corporation, such as this, was $10, regardless of capital stock.

In 1897 the Legislature amended Article 5243i, supra, along with Articles 5243e, 5243j, and 5243k, R.C.S.1895. The Act of 1897 levied franchise taxes on foreign corporations, such as this, as follows: “And each and every foreign corporation having an authorized capital stock of one hundred thousand dollars or less which has heretofore received a permit to do business in this State, under the laws of this State, shall pay to the Secretary of State an annual franchise tax as follows: Each and every foreign corporation having a capital stock of $25,000 or less, an annual franchise tax of $25.00; each and every foreign corporation having a capital stock of more than $25,000.00, and not exceeding $100,000.00, an annual franchise tax of $100.00 to be paid on or before the first day of May of each year; and every such corporation which shall hereafter receive such permit shall also pay to the Secretary of State an annual franchise tax of fifty dollars, the tax for the first year to be paid at the time such permit is issued, and the Secretary of State shall not be required or permitted'to issue said permit until said tax is paid, and each succeeding tax shall be paid on or before the first day of May of each year thereafter. And any such corporation having an authorized capital stock of more than one hundred thousand dollars shall in addition to the franchise tax of fifty dollars, as above provided, also pay a franchise tax of one dollar for every ten thousand dollars of their capital stock over and above one hundred thousand dollars.” Gen. Acts 1897, c. 104, p. 141.

Article 5243i, as amended, was again amended in 1897. The Act just mentioned levied franchise taxes on foreign corporations, such as this, as follows: “Each and every foreign corporation heretofore authorized to do business in this State under the laws of this State shall, on or before the first day of May of each year, and each and every such corporation which shall hereafter be so authorized to do business in this State, shall, at the time so authorized, and on or before the first day of May of each year thereafter, pay to the Secretary of State the following franchise tax: Every such corporation having an authorized capital stock of twenty-five thousand. dollars or less, an annual franchise tax of twenty-five dollars; every such corporation having an authorized capital stock of more than twenty-five thousand dollars and not exceeding one hundred thousand dollars, an annual franchise tax of one hundred dollars; every such corporation having an authorized capital stock of over one hundred thousand dollars, an annual franchise tax of one hundred dollars, and in addition thereto an annual franchise tax of one dollar for every ten thousand dollars of authorized -capital stock over and above one hundred thousand dollars and not exceeding one million dollars; and if such authorized capital stock exceeds one million dollars, then such corporation shall pay a still further additional tax of one dollar for every one hundred thousand dollars over and above one million dollars.” Gen. Acts 1897, c. 120, p. 168.

Article 5243i, R.C.S.1895, as amended, was again amended in 1905. The Act of 1905 levied annual franchise taxes on foreign corporations, such as this, as follows: “And each and every foreign corporation heretofore authorized, or that may hereafter be authorized, to do business in this State, shall, on or before the first day of May of each year, pay to the Secretary of State the following franchise tax for the year following, to-wit: One dollar on each one thousand dollars or fractional part thereof of the authorized capital stock of the corporation up to and including one hundred thousand dollars; and one dollar on each five thousand dollars or fractional part thereof of such stock in excess of one hundred thousand dollars, and up to and including one million dollars; and one dollar on each twenty thousand dollars or fractional part thereof of such stock in excess of one million dollars, and up to and including ten million dollars; and one dollar on each fifty thousand dollars of such stock in excess of ten million dollars; but such tax shall not be less than twenty-five dollars in any case. Whenever a corporation is chartered or authorized to do business in this State, it shall pay the proportional part of such annual franchise tax corresponding to the length of time before the next following first day of May, and if such tax be not then paid, no such charter shall be filed or permit issued. The franchise tax herein provided for shall be computed upon the basis of the total amount of the capital stock issued and outstanding, plus the surplus and undivided profits of the corporations, instead of upon the authorized capital stock, whenever such total amount is different from the authorized capital stock.” Gen. Acts 1905, c. 19, p. 22.

In 1907 the Legislature again amended our franchise tax laws, and in such Act repealed Article 5243i, R.C.S.1895, as amended. Under the terms of the Act of 1907, annual franchise taxes on foreign corporations, such as this, were levied as follows: “Sec. 2. Except as herein provided, each and every foreign corporation authorized or that may hereafter be authorized to do business in this State, shall on or before the first day of May of each year pay in advance to the Secretary of State a franchise tax for the year following, which shall be computed as follows, viz: One dollar on each one thousand dollars or fractional part thereof of the authorized capital stock of the corporation up to and including one hundred thousand dollars; and two dollars on each five thousand dollars or fractional part thereof of such stock in excess of one hundred thousand dollars and up' to and including one million dollars; and two dollars on each twenty thousand dollars or fractional part thereof of such stock in excess of one million dollars, and up to and including ten million dollars, and two dollars on each fifty thousand dollars of such stock in excess of ten million dollars; unless the total amount of the capital stock of such corporation issued and outstanding, plus its surplus and undivided profits, shall exceed its authorized capital stock, and in that event the franchise tax of such corporation for the year following shall be: two dollars on each one thousand dollars or fractional part thereof, of the authorized capital stock of such corporation, issued and outstanding, plus its surplus and undivided profits, up to and including one hundred thousand dollars; and two dollars, on each five thousand dollars, or fractional part thereof of such stock, surplus and undivided profits in excess of one hundred thousand dollars, and up to and including one million dollars; and two dollars on each twenty thousand dollars, or fractional part thereof of such stock, surplus and undivided profits in excess of one million dollars, and up to and including ten million dollars; and two dollars on each fifty thousand dollars of such stock, surplus and undivided profits in excess of ten million dollars; provided that such franchise tax shall not in any case be less than twenty-five dollars.” Gen. Acts 1907, 1st called Sess., c. 23, p. 503, sec. 2.

The franchise tax law as enacted in 1907, supra, so far as applicable here, was carried into the codification of 1911 as Article 7394. In other words, Article 7394, R.C.S.1911, levied the same annual franchise taxes on foreign corporations as the Act of 1907.

Our franchise tax laws have been amended since 1911, but such amendments all occurred after the payment of the franchise taxes here involved, and do not affect this case.

For the years from 1907 to 1917, both inclusive, this Company paid annual franchise taxes to the State- of Texas as follows :

April 15, 1907 . $ 1,783.00
April 24, 1908 . 3,566.00
May 1, 1909 . 3,608.00
April 30, 1910 . 3,628.00
April 28, 1911 .3,672.00
April 30, 1912 . 3,684.00
April 30, 1913. 3,714.00
April 27, 1914. 3,614.00
April 24, 1915 . 3,644.00
May 11, 1915. 26.00
April 19, 1916. 3,714.00
April 30, 1917. 3,714.00
Total . $38,367.00

The franchise taxes paid by this Company on April 15, 1907, amounting to $1,-783, must have been paid under the Act of 1905, page 22, supra, because it was the Act in force at the time such payment was made. In this connection, we call attention to the fact that the Act of 1907, page 503, supra, was approved May 16, 1907, and took effect ninety days after adjournment. The 1907 Act was therefore not in effect at the time this Company paid its 1907 franchise taxes. It appears that the franchise taxes paid by this Company from the years 1908 to 1917, both inclusive, were paid under the provisions of the Act of 1907, page 503, supra, and Article 7394, R.C.S.1911, supra.

The Act of 1905, supra, amending Article 5243i, R.C.S.1895, provided that any corporation, domestic or foreign, “which shall fail to pay the tax provided for in this Article at the time specified herein shall immediately become liable to a penalty of twenty-five per cent on the amount of the tax due by it, and if the amount of said tax and penalty be not paid in full on or before the first day of July thereafter, such corporation shall, for such default, forfeit its right to do business in the State, which forfeiture shall be consummated without judicial ascertainment, by the Secretary of State entering upon the margin of the ledger kept in his office relating to such corporation the word ‘forfeited,’ giving the date of such forfeiture; and any corporation whose right to do business may be thus forfeited shall be denied the right to sue or defend in any of the courts of this State, and in any suit against such corporation on a cause of action arising before such forfeiture, no affirmative relief may be granted to such corporation unless, its right to do business is revived, as provided in Article 5243j".”

By the Gen. Act of 1907, 1st Called Sess., c. 23, page 505, sec. 8, codified as Article 7399, R.C.S.1911, it was provided: “Art. 7399. Any corporation, either domestic or foreign, which shall fail to pay any franchise tax provided for in this chapter when the same shall become due and payable under the provisions of this chapter, shall thereupon become liable to a penalty of twenty-five per cent of the amount of such franchise tax due by such corporation; and, if the amount of such tax and penalty be not paid in full on or before the first day of July thereafter, such corporation shall for such default forfeit its right to do business in this state; which forfeiture shall be consummated without judicial ascertainment by the secretary of state entering upon the margin of the record kept in his office relating to such corporation, the words, ‘right to do business forfeited,’ and the date of such forfeiture; and any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any other courts of this state, except in a suit to forfeit the charter of such corporation; and, in any suit against such corporation on a cause of action arising before such forfeiture, no affirmative relief shall be granted to such corporation, unless its right to do business in this state shall be revived as provided by this chapter. And each and every director and officer of any corporation whose right to do business within this state shall be so forfeited shall, as to any and all debts of such corporation which may be created or incurred, with his knowledge, approval and consent, within this state, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporation were partners.”

In the case of Looney v. Crane Co., 245 U.S. 178, 38 S.Ct. 85, 62 L.Ed. 230, the, Supreme Court of the United States declared and adjudged that Articles 3837 and 7394, R.C.S. of Texas 1911, supra, were unconstitutional and void because in conflict with certain provisions of our Federal Constitution. In such opinion it was also held that such statutes were interdependent with each other. Also, the rule of law announced in such opinion would, in principle, render unconstitutional and void the franchise tax Act of 1905, page 22, supra.

By the express provisions of the franchise tax Acts of 1905 and 1907, supra, and Article 7399, R.C.S.1911, supra, any domestic or foreign corporation which failed to pay its franchise taxes was subject to the following penalties:

1. A penalty of twenty-five per cent, of such taxes was exacted.

2. If the amount of such taxes and penalties was not paid in full on or before July 1st next after .default, the corporation’s right to do business in Texas was forfeited. This forfeiture was consummated without any judicial action, by the Secretary of State simply entering a notation on the proper record to that effect.

3. After the forfeiture entry, supra, the corporation affected thereby was denied the right to do business in Texas, and was denied the right to sue or defend any action in the courts of this State, with certain exceptions.

An unconstitutional statute is a void statute. In other words, it is not a law at all. It follows that the permit fee or tax paid by this Company in 1909, with the exception of $200 which we will later discuss, and the franchise taxes paid for the years 1907 to 1917, both inclusive, were illegally exacted and collected by the State of Texas. Simply stated, so far as this case is concerned, the fees and taxes here involved, with the exception of $200, were exacted and collected in violation of the Constitution of the United States.

In the case of Austin National Bank v. Sheppard (Commission of Appeals, opinion adopted), 123 Tex. 272, 71 S.W.2d 242, this Court passed on the very questions of law involved in this case, and in effect held:

1. That a person who pays an illegal tax voluntarily, that is, without duress, has no valid claim for its repayment; but that a person who pays such tax under duress does have a valid claim f.or its repayment.

2. That duress in the payment of an illegal tax may be either express or implied, and the legal liability to repay or refund is the same in both instances.

3. That where a legislative Act by its terms visits upon a taxpayer the penalties and. punishments prescribed by the Acts here involved for failure to pay an illegal tax, such taxpayer need not take the risk ■of incurring such penalties and punishments while the invalidity of such tax is being litigated, in order to preserve his rights as a taxpayer under duress.

4. That in the absence of a statute to that effect, it is immaterial to the right of repayment whether or not an illegal tax is paid under protest.

5. That where a corporation paid illegal taxes under circumstances exactly the same as the circumstances under which these taxes were paid, such taxes were paid under duress, and such taxpayer had a valid claim against the State for repayment.

We still adhere to the views expressed in the opinion of Austin National Bank v. Sheppard, supra. A comparison of the facts of the case just mentioned with the facts of this case will show that the facts of the two cases are identical in law. In Austin National Bank v. Sheppard we held that the State was legally liable for the repayment of the taxes there involved. It must follow that the ■ State is liable in the same way in this action.

As we interpret it, the opinion of the Court of Civil Appeals in the instant case holds that the Company cannot recover for these taxes because it was guilty •of laches. In this connection, we interpret such opinion to hold that this Company was guilty of laches because it continued to pay the taxes exacted by these unconstitutional acts for ten years without, during such time, making any effort to have a judicial ascertainment had of the invalidity thereof. We are unable to give assent to such holding. It is settled as the law of this State that where a legislative act by its terms visits upon a taxpayer the penalties and punishments prescribed by these Acts for failure to pay an illegal tax, such taxpayer need not take the risk of incurring such penalties and punishments, while the invalidity of such taxes are being judicially ascertained, in ■order to preserve his rights as a taxpayer under duress. Austin National Bank v. Sheppard, supra. To our minds, the holding of the Court of Civil Appeals in this case regarding laches is in absolute conflict with our holding in Austin National Bank v. Sheppard, supra. Furthermore, even if we should uphold the rule of law as announced in the opinion of the Court of Civil Appeals, which we do not, still it could not possibly be said that this Company was guilty of laches with regard to the payment of all the illegal taxes here involved.

The resolution authorizing the State to be sued in this instance attempts to make an appropriation to pay any final judgment which may be obtained by the Company against the State by the following provision: “ * * * and there is hereby appropriated out of the Treasury such funds as may be necessary, not heretofore appropriated, to pay any final judgment which may be obtained by reason of the permission to sue the State herein granted, * * *.»

Section 6 of Article 8 of our Constitution, Vernon's Ann. St., among other things, in substance provides:

(a) That no money shall be drawn from the Treasury but in pursuance of a specific appropriation; and

(b) That no appropriation of money shall be made for a longer term than two years.

The State contends that this attempted appropriation violates both of the above-mentioned constitutional provisions.

As just stated, one of the provisions of Section 6 of Article 8 of our Constitution requires all appropriations of money out of the State Treasury to be specific. It is settled that no particular form of words is required to render an appropriation specific within the meaning of the constitutional provision under discussion. It is sufficient if the Legislature authorizes the expenditure by law, and specifies the purpose for which the appropriation is made. An appropriation can be made for all funds coming from certain sources and deposited in a special fund for a designated purpose. In such instances, it is not necessary for the appropriating Act to name a certain sum or even a certain maximum sum. 38 Tex.-Jur., pp. 844-845, sec. 27, and authorities there cited.

In spite of the above rules of law, we think that this attempted appropriation falls short of meeting the constitutional requirement that it be specific. It is absolutely conditional or contingent as to whether it will ever become effective, depending on when and if a final judgment shall be awarded. It is indefinite as to amount, or even as to a maximum amount, leaving that matter, not to the Legislature, but to another branch of the Government, the courts to determine. We do not believe that such an appropriation of money out of the State Treasury meets the constitutional requirements that it shall be specific.

As already shown, our Constitution prohibits the Legislature from-making any appropriation of money out of the State Treasury for a longer term than two years. A reading of this appropriation shows it was intended to take effect only when a final judgment shall be obtained. The appropriation was finally passed by the Legislature in May, 1937. It is now 1940. The constitutional biennium provided by the Constitution has already elapsed, and the appropriation is not yet effective because no final judgment has yet been obtained. This appropriation can therefore now never become effective. To uphold an attempted appropriation, such as this, after the two-year biennium has elapsed, wordd violate the very fundamental purpose of the two-year constitutional provision under discussion, and permit ohe Legislature to make appropriations of money in unlimited and undetermined amounts, and to take effect at unlimited and undetermined times in the future, regardless of how long that time might be.’

We think that the part of the resolution which authorizes the State to be sued is severable from the. part which attempts to make an appropriation. We therefore hold that the part giving authority to sue can stand, but that the part attempting to appropriate must fall.

The State contends that the resolution is void because it contains no title. It is true that it is absolutely without a title. We think, however, that there is no constitutional requirement that resolutions of this character shall Contain a title.

The State contends that the Company in 1909 was due to pay a permit fee of $200,.and that if it is given a judgment regarding the permit fee paid by it in 1909, such $200 should be deducted therefrom. We sustain this contention. At the time the permit fee for 1909 was paid, Article 2437, R.C.S.1895, was in effect—this because the subsequent unconstitutional Acts on such subject did not repeal such Article.

The State contends that the resolution made the basis of this suit does not authorize the State to be sued for the franchise taxes paid by the Company on April 15, 1907, amounting to $1,783. We have already demonstrated that such taxes were paid under the franchise tax Acts of 1905. The franchise tax Acts of 1907 did not go into effect until after the franchise taxes paid in 1907 had already become due, and had already been paid. The suit of Looney v. Crane Company, supra, in the United States Supreme Court, did not involve the constitutionality of the franchise tax Act of 1905. It did'involve the constitutionality of the Act of 1907, codified as Article 7394, R.C.S.1911. It is true that the principles of constitutional law as announced in Looney v. Crane Company, supra, which condemned as repugnant to the Federal Constitution the Act of 1907, Article 7394, R.C.S.1911, would also, in principle, condemn as repugnant to the Federal Constitution the Act of 1905, hut the case did not involve the last-named Act, and the court did not declare it unconstitutional. Simply stated, from a Federal constitutional standpoint the two Acts are alike, but the Act of 1905 was not involved or passed on in the Crane Company case.

The resolution giving permission to sue the State in this instance, in the second p'aragraph thereof, recites that National Biscuit Company “* * * paid filing fees and franchise taxes *, * * continuously from 1907 to 1917 under then existing franchise and filing fee laws, which have been declared unconstitutional' by the Supreme Court of the United States, * * *.” The seventh paragraph of such resolution grants National Biscuit Company permission “* * * to bring suit against the State of Texas * * * to determine definitely and accurately what amount of taxes and filing fees may have been heretofore illegally exacted of National Biscuit Company by the State of Texas and paid to the State of Texas, if any, as filing fees and franchise taxes under any 'unconstitutional law as hereinabove mentioned.” (Emphasis ours.) What does the phrase, “unconstitutional, law as hereinabove mentioned,” mean or refer to? Certainly its meaning or effect is to define what the Company may sue the State for. It limits the right to sue the State for the filing fees and franchise taxes paid under any such “unconstitutional law as hereinabove mentioned.” What unconstitutional law is “hereinabove mentioned”? Certainly they are the laws “which have been declared unconstitutional by the Supreme Court of the United States.” The Act of 1903, under which this Company paid franchise taxés on April 15, 1907, has never been declared unconstitutional by the Supreme Court of the United States. It follows that this resolution cannot be given effect to grant permission to sue for the taxes paid in 1907 under the Act of 1905.

The judgments of the Court of Civil Appeals and the district court are both reversed, and judgment here rendered as follows :

(a) National Biscuit Company is awarded judgment against the State for $55,040, less $200.

(b) National Biscuit Company is awarded judgment against the State for the franchise taxes paid by it for the years from 1908 to 1917, both inclusive, amounting to $36,584.

(c) National Biscuit Company is denied any recovery against the State for. the franchise taxes paid by it in 1907, amounting to $1,783.

(d) It is adjudged that no valid appropriation exists to pay the judgment in favor of National Biscuit Company hereinabo.ve awarded.


text:
    FIDELITY UNION INS. CO. et al. v. HUTCHINS et al.
    Motion Nos. 14282, 14286; No. 7376.
    Supreme Court of Texas.
    Jan. 24, 1940.
    For former opinion, see 133 S.W.2d 105.
    Wagstaff, Harwell, Wagstaff & Douthit and Cox & Hayden, all of Abilene, and Malone, Lipscomb, White & Seay, of Dallas, for plaintiffs in error.
    Kirby, King & Overshiner, of Abilene, for defendants in error.
   CRITZ, Justice.

The above-mentioned and entitled cause is before the Supreme Court on two motions for rehearing — Motions Nos. 14282 and 14286. The first motion just mentioned was filed by the defendants in error, Tate Hutchins et al. The other motion was filed by Commercial Casualty Insurance Company, plaintiff in error.

We have read and fully considered Motion' No. 14282 filed by Tate Hutchins et al., and in our opinion same should be overruled.

In Motion No. 14286 filed by Commercial Casualty Insurance Company, our attention is called to an error in our original opinion with reference to some of the names of the several insurance companies involved in this record. In our original opinion 133 S.W.2d 105, 108, it was stated: “After the entire community estate here involved had been lost to these minor plaintiffs, and even to the qualified community survivor, in the manner above detailed, these plaintiffs, who are the minor sons of G. B. Hutchins and his deceased wife, Eula E. Hutchins, by next friend, sued G. B. Hutchins, the survivor, and the surety on his official bond, Fidelity Union Casualty Company, a corporation, to recover a money judgment for the value of their one-half interest in the community estate here involved. Commercial Casualty Company, a corporation, is also sued. As shown by the opinion of the Court of Civil Appeals, the two corporations just named were consolidated after this bond was executed and approved. The corporation last named took over all the assets of the corporation first named, and ■ assumed all its liabilities, except no liability was assumed for any loss accruing prior to January 1, 1931.”

The facts are that this suit was filed by these minor plaintiffs against their father, G. B. Hutchins, and also against Fidelity Union Insurance Company, and Commercial Casualty Insurance Company. Fidelity Union Casualty Company was not sued. Fidelity Union Casualty Company was the original company that executed G. B. Hut-chins’ bond as surety in August, 1928. In 1930, Fidelity Union Casualty Company and Fidelity Union Insurance Company were consolidated, and Fidelity Union Insurance Company, plaintiff in error, took over the assets of Fidelity Union Casualty Company and assumed all its liabilities. On January 1, 1931, Commercial Casualty Insurance Company, one of the defendants here, entered into a contract with Fidelity Union Insurance Company by the terms of which it assumed certain liabilities on the bond in this suit. The opinion of the Court of Civil Appeals, which we quoted with approval in our original opinion, sets out the true facts in regard to the matters under discussion. We withdraw the above-quoted statement in our original opinion, and here now substitute therefor this opinion and the portion of the opinion of the Court of Civil Appeals which we quoted and approved in our original opinion.

This correction does not alter the result of our original holding. We still adhere to our original opinion with reference to all matters, except the corrections here made.

It is ordered'that the two motions for rehearing above mentioned be, and the same ate, in all things overruled.


author: HARVEY, Commissioner.

text:
    CRONE v. CHECKER CAB & BAGGAGE CO. et al.
    No. 2291—7443.
    Commission of Appeals of Texas, Section A.
    Jan. 24, 1940.
    Harry W. Freeman, of Houston, for plaintiff in error.
    Battaile, Burr & Holliday, of Houston, for defendants in error.
   HARVEY, Commissioner.

This suit was instituted by the plaintiff in error, George Crone, against the defendants in error, Checker Cab & Baggage Company (which will be hereinafter called the Cab Company), and Southern Utilities, the surety on the bond of the said Cab Company. The object of the suit is the recovery of damages for personal injuries alleged to have been sustained by Crone as the result of the negligence of the Cab Company pertaining to the operation by the Cab Company of a certain taxicab on a street in the City of Houston. Southern Utilities duly presented a plea in abatement of the suit on the ground that no cause of action on the Cab Company’s bond sued on, and upon which Southern Utilities is surety, has matured; and, on the further ground, that suit on the bond is mis-joined with the suit for damages against the Cab Company on account of the tort alleged to have been committed by said company. The plea in abatement was overruled by the trial court, and the case proceeded to trial before jury on the pleadings of the several parties and the testimony introduced. The trial resulted in a judgment against both defendants, jointly and severally, for the amount of damages found by the jury to have been sustained by Crone as the result of the negligence of the Cab Company in the operation of the taxicab. From said judgment both defendants appealed, and the Court of Civil Appeals held, in effect, that no cause of action has accrued on the bond sued on, and that there is a misjoinder of causes of action. Basing its action on this holding, the Court of Civil Appeals reversed the judgment of the trial court and dismissed the suit in so far as same is founded on said bond, and remanded the cause, as between Crone and the Cab Company, insofar as the alleged tort liability of the latter is involved. 117 S.W.2d 503. Crone applied to this court for the writ of error, which was granted.

In the application, the only ground of complaint presented is the ruling of the Court of Civil Appeals to the effect no cause of action has accrued on said bond and that the suit involves a misjoinder of causes of action. This is the only question we are called on to decide. In addition to what has been stated above, the material facts bearing on this question are substantially as follows:

The Cab Company, as a common carrier for hire, operated the taxicab in question, on the streets of the City of Houston. As a prerequisite to obtaining license to so operate the taxicab, the Cab Company was required to give the bond herein sued on. This bond was made to the Mayor of the City by the Cab Company, as principal, and Southern Utilities, as surety. The condition prescribed in the bond reads as follows: “Now, therefore, if the said Checker Cab and Baggage Company of Harris County, Texas, shall pay all final judgments which may be rendered against it for damages on account of death or injuries to property or person, including both passengers and the public, occasioned by the operation of the above described taxicab, then this obligation shall be null and void, otherwise it shall remain in full force and effect.”

The bond also contains the following provisions: “This bond, while made payable to the Mayor of the City of Houston, and his successors in office, shall be considered to be for the use and benefit of any person or persons entitled thereto by reason of any injury sustained through the operation of such vehicles as hereinabove set forth, and may be sued upon by such person or persons, or their legal - representatives, directly without joining the Mayor of the City of Houston. This obligation is performable in Harris County, Texas, and any and all suits which may be instituted on this obligation may be instituted and prosecuted to final judgment against either the principal or the surety hereon, or both, in any court in Harris County, Texas, which would, in the absence of any statute fixing the venue of such suit, have jurisdiction of the same, and all parties hereto, both principal and surety, waive the right, if any they have, to have said suit or suits instituted and prosecuted in any county than said Harris County, Texas.”

The condition prescribed in the bond, as set out above, imports an obligation on the part of the obligors “to pay all final judgments” which may be rendered against the Cab Company for damages on account of death or injuries occasioned by the operation of the taxicab. It is firmly established that no cause of action arises from such an obligation until a final judgment for damages is rendered against the principal. Furthermore, an action on such a bond cannot be properly joined in a suit against the principal to recover damages for the tort committed. Grasso v. Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482; Moxon v. Ray, 125 Tex. 24, 81 S.W.2d 488; Seaton v. Pickens, 126 Tex. 271, 87 S.W.2d 709, 106 A.L.R. 512; Bluth v. Neeson, 127 Tex. 462, 94 S.W.2d 407.

The other provisions of the bond, which are set out above, deal with the subject of institution and prosecution of suits on the bond, and plainly have no relation to the institution or prosecution of a suit for damages against the Cab Company because of its negligence.

The judgment of the Court of Civil Appeals is in all respects affirmed.

Opinion adopted by the Supreme Court.


author: HICKMAN, Commissioner.

text:
    J. WEINGARTEN, Inc., v. BROCKMAN et ux.
    No. 2286-7432.
    Commission of Appeals of Texas, Section A.
    Jan. 24, 1940.
    Sewell, Taylor, Morris & Garwood and W. J. Knight, all of Houston, for plaintiff in error.
    Ernest H. Folk and Blanchard & Wood-ul, all of Houston, for defendants in error.
   HICKMAN, Commissioner.

. This suit was brought by L. E. Brock-man and wife, Cora Lee Brockman, defendants in error, against J. Weingarten,. Inc., a private corporation, plaintiff in error, for damages for personal injuries sustained by Mrs. Brockman when she fell on a concrete surface near the store of plaintiff in error. When defendants in error rested their case the trial judge, in response to a motion by- the plaintiff in error,, peremptorily instructed the jury to return a verdict that they take nothing, and judgment to that effect was rendered on the verdict returned in obedience to such instruction. The Court of Civil Appeals reversed that judgment and remanded the-cause to the trial court. 115 SW.2d 753.

Plaintiff in error operated a grocery store on a corner lot in the City of Houston at the intersection of Taft and West Gray streets. It appears that the store-building was set back fifteen feet or more from the public sidewalk, and that the entire surface between the building and the-sidewalk was covered by concrete. Along the north wall of the building for a width of about five feet and extending its entire length the concrete surface was level with the surface of the floor of the building. The surface of the public sidewalk was -slightly lower than the surface of the floor of the building, and the area between the sidewalk and the five-foot strip next to the building, being about ten or twelve feet wide, was covered.with concrete, the surface of which was level with the public sidewalk. The difference in elevation between the two areas formed an offset five feet north of the building and extending, the entire length of the north side thereof, which was variously estimated at from one and one-half inches to three inches. Shortly before she sustained her injuries, Mrs. Brockman parked her car on West Gray-street, which was north of the store building, and entered such building by its north entrance to purchase some groceries. That was not the main entrance, but was used by customers. After making her purchases-she left the building through the same doorway with her arms full of bundles.. A few feet from the doorway she lost her footing and fell. Damages are sought for the injuries sustained by such fall.

On direct examination Mrs. Brock-man testified that she did not know why or how she fell. Thereafter her attorney propounded further questions to her designed to elicit from her more information upon that subject, but objections thereto were interposed by plaintiff in error and sustained by the court. No bills of exceptions are brought forward disclosing what would have been her answers to these questions, and no error is disclosed therefore in the rulings of the court sustaining such ■objections. 3 Tex.Jur. p. 470, Sec. 331.

The evidence of negligence contained in the record is very meager. About .all the evidence that we can glean therefrom having any probative force, except that afforded by .the description of the premises, is the testimony of Mrs. Brock-man to the effect that Mr. Davis, the manager of plaintiff in error’s store, saw her fall and rushed to her aid; that he then .asked her if she was hurt; that he took her name and address and said that he would send the company doctor to visit her; and that he said “you are the fifth or sixth lady who has fallen here.” This •testimony constituted some evidence, not only of notice to plaintiff in error of the ■condition there existing, but as well of its negligence in permitting such condition to exist. Fort Worth & D. C. Ry. Co. v. Measles, 81 Tex. 474, 17 S.W. 124; Texas & Pac. Ry. Co. et al. v. Hill, 71 Tex. 451, 9 S.W. 351; 45. C.J. p. 1246, Sec. 810.

The application for writ of error was ■granted in this case on the alleged conflict between the decision of the Court of Civil Appeals herein and the decision of the •Court of Civil Appeals at Beaumont in the case of Marshall v. San Jacinto Building Company, 67. S.W.2d 372, error refused. 'Obviously there is a similarity between the facts in the two cases, but they are not identical. The issue of whether or not given acts constitute negligence is essentially a jury question. The facts of each •case must be given independent consideration, and seldom-are the facts of any two -cases so identical as that the decision in one could be held to be authority for a like decision in the other. Examining the facts in the case before us, we are of the opinion that an issue is presented on the negligence of plaintiff in error in failing to maintain the premises in a reasonably safe condition. Jurors might conclude that the slight offset on the wide concrete area was deceptive and dangerous. The record does not disclose why such a slight offset should have been maintained or what purpose it served. Plaintiff in error invited the public, including Mrs. Brockman, to come through the north entrance of this store, thereby impliedly representing that it was safe for them to do so. If it was unsafe, the jury might have concluded that plaintiff in error should have made it safe, or, if that could not be done practically, should have discontinued the use of that entrance altogether. We cannot hold that this slight offset was so obvious as to exonerate plaintiff in error of all negligence as a matter of law.

The most difficult question in the case is that of whether there is any evidence that the injuries were próximately caused by the negligence of plaintiff in error. The evidence on the whole case is meager, particularly on the question of proximate cause; but we have concluded that there is ■ some evidence raising that issue. There was testimony to the effect that Mrs. Brockman fell on the offset. The manager said, according to her testimony, that other women had fallen there. That is some evidence that the offset caused her to fall. We had occasion recently to consider the province of jurors to infer proximate cause .from circumstances, and recognized that broad latitude was allowed them in that regard. See Peveto v. Smith, Tex.Com.App., 133 S.W.2d 572. There is room in this case for a legitimate inference of proximate cause, and the assignment presenting that question is therefore overruled.

Viewing this record as a whole, we are well convinced that it presents fact issues, and the judgment of the Court of Civil Appeals is accordingly affirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    DOCKUM et ux. v. MERCURY INS. CO. et al.
    No. 1794—7333.
    Commission of Appeals of Texas, Section B.
    Jan. 24, 1940.
    W. Sale Lewis, of Austin, Harley Jackson, of McAllen, and L. L. Gragg, of Edinburg, for plaintiffs in error.
    Kelley, Looney & Norvell, of Edinburg,, for defendants in error.
   TAYLOR, Commissioner.

C. B. Doclcum and wife, plaintiffs in error here, sued Mercury Insurance Company et al., in the district court of Hidaígo County,, for damage alleged to have been sustained on account of injury to their residence-caused b3> windstorm about the 5th or 6th of August, 1933. Damage was prayed for in the sum of $500 with interest. The loss was sought to be recovered under a contract of windstorm insurance alleged to. have been made with the Doclcums orally by Mrs. E. Adams on behalf of the Mercury Insurance Company through the McAllen. Insurance Office, or Agency, a few days before the damage occurred.

The trial court’s judgment for $200 in-favor of plaintiffs was reversed by the-Court of Civil Appeals and judgment was there rendered for the defendants. Writ of error was granted upon the conflicts al-, leged.

Upon a thorough examination of the-application for the writ we have concluded it was inadvertently granted.

. The suit being for exactly $500' exclusive of interest, is one of which the county court would have exclusive jurisdiction except for the statute providing for the jurisdiction of the district court of th'e 92nd judicial district (Hidalgo County). Vernon’s Texas Civ.St.1936, Art. 199, sec. 92. See in this connection Gulf C. & S. F. R. Co. v. Rambolt, 67 Tex. 654, 4 S.W. 3561 Wonderful Workers of the World Benev. Ass’n v. Bookman et al., Tex.Civ.App., 29 S.W.2d 890; Townes Texas Pleading, Sec. ed. pp. 155-6.

The case being one of which “a County Court would have had original * * * jurisdiction to try,” the judgment of the Court of Civil Appeals is “conclusive on the law and facts” unless it involves “conflicts between decisions of the Courts of Civil Appeals or between a decision of a Court of Civil Appeals and a decision of the Supreme Court.” Vernon’s Texas Civ.St.1936, Arts. 1821 and 1728. The mere fact that the opinion may have incorrectly declared the law has no bearing upon the question of jurisdiction presented.

The opinion in the present case is devoid of facts on its face which disclose a conflict within the cited statutes. It has often been held that in order for such conflict to he shown “the rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in. the other.” (Italics ours.) Garitty et al. v. Rainey, 112 Tex. 369, 247 S.W. 825, 827; Mooers et al. v. Hunter, Tex.Com.App., 67 S.W.2d 860, and cases there cited; Ziegelmeyer v. Pelphrey, Tex.Sup., 125 S.W.2d 1038; Harris et al. v. Willson et al., 122 Tex. 323, 59 S.W.2d 106; Thacker v. Lindahl et al., Tex.Com.App., 48 S.W.2d 588. The opinion in the present case is apparently made to turn upon whether there is any competent testimony in the record to support a finding that Mrs. Adams was ever actually or apparently the agent of the insurance company. The evidence is not set out or summarized in the opinion. It is stated in the case last cited that for the purpose of “producing a conflict” this Court “will not go behind the recorded opinion” of an appellate court in a prior case. For the same reason the Court will not go behind the recorded opinion in the present case to disclose whether there is an actual conflict with the cases cited in the application. .

The order granting the application for the writ is set aside as having been improvidently granted, and the application is dismissed for want of jurisdiction.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    CASTLEBERRY v. CASTLEBERRY.
    No. 2251—7512.
    Commission of Appeals of Texas, Section A.
    Jan. 24, 1940.
    Seale & Thompson, of Nacogdoches, Lee R. Stroud, of Kaufman, Howard H. Dailey, of Dallas, and R. W. Castleberry, of Amarillo, for plaintiff in error.
    James A. King, of Austin, for defendant in error.
   GERMAN, Commissioner.

On April 6, 1935, in Cause No. 53993 on the docket of’ the 98th Judicial District Court of Travis County, of which Judge J. D. Moore was Presiding Judge, a decree of divorce was entered in favor of Martha Anne Castleberry and against R. W. Castleberry. This judgment incorporated a written agreement of the parties by which the custody of Anne Elizabeth Castleberry, a child of tender years, was given to R. W. Castleberry; there being a declaration in the judgment that this was to the best interest of the child. Said judgment became final.

On November 23, 1935, and at a succeeding term of said court, with Judge W. F. Robertson presiding, what is designated a “Reformed Judgment” was entered in said cause. This so-called reformed judgment completely wiped out all provisions of the judgment of April 6, 1935, with respect to the custody of the child, and in lieu thereof awarded custody of said child to Martha Anne Castleberry, and in addition decreed that R. W. Castleberry should pay into the registry of the court the sum 'of $30 per month for the maintenance and support • of said chil4 until she should reach the age of fifteen years. While said purported judgment recites that application of plaintiff Martha Anne Castleberry for reformation of said judgment came on for hearing, and that defendant R. W. Castleberry had notice,'yet, so far as disclosed by the record, no petition, motion or application was ever filed, and defendant was not given any notice whatever. Furthermore, said purported judgment shows on its face that it was entered by default.

Within a few days after the entry of said purported decree plaintiff in error R. W. Castleberry filed motion to vacate or set aside same. Thereafter he filed several amendments of said motion, which are referred to in the opinion of the Court of Civil Appeals. First and last, said motion had as its prime purpose the setting aside and expunging from the record the purported judgment of November 23, 1935. The two principal grounds urged touching its invalidity were that it was entered without any notice whatever to plaintiff in error, and was entered without any pleading being filed upon which it could be based. The motion, as amended, was finally overruled on May 6, 1937, and notice of appeal was given. The order overruling same recites that it was taken up and acted upon in the. absence of the plaiAtiff in error.

Appeal by writ of error to the Court of Civil Appeals resulted in the judgment of November 23, 1935, being affirmed. 120 S.W.2d 468. It seems to us almost too clear for argument that the purported decree of November 23, 1935, was a nullity. In the first place, on appeal from a default judgment the record must show an appearance by defendant or due service of citation, independent of recitals in the judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934, and the great array of authorities there cited.

In the next place, while an action may be brought at a later term of court, or even in another court, concerning the custody of a child, yet such action is regarded as an independent suit, and undoubtedly cannot be brought without the filing of a petition in writing setting up facts sufficient to invoke the jurisdiction of the court. The record in this case fails to show that any petition, motion or application was filed to form the basis of the purported reformed judgment of November 23, 1935, but on the contrary negatives the idea that one was filed. Article 2278 of the Revised Statutes of 1925 makes it the duty of the clerk to deliver to the party applying therefor a transcript of the record, which shall, except in certain cases, “contain a full and correct copy of all the proceedings had in the cause.” This case does not fall within any exceptions. Article 2282 provides that the clerk shall certify to the correctness of the transcript, and shall state whether the same be a transcript of ■ all the proceedings in the cause, or a transcript agreed upon by the parties. The certificate of the district clerk to the transcript in this case shows that it is a “true and correct transcript of all proceedings had and orders entered” in this cause. It is certainly to be presumed that the clerk did his duty, that his certificate is correct, and that the transcript contains a complete record of the cause, as the certificate recites. Wyss v. Bookman, Tex.Com.App., 235 S.W. 567; Bomar v. Munn, Tex.Civ.App., 158 S.W. 1186; Palmer v. Spandenberg, 49 Tex.Civ.App. 331, 108 S.W. 477. If the transcript had not been complete, defendant in error had ample opportunity to show this and either file a complete transcript or get the.appeal dismissed.

The judgments of the Court of Civil Appeals and of the district court are reversed, and judgment is here rendered setting aside and holding for naught the purported decree of November 23, 1935.

Opinion adopted by the Supreme Court.


author: KRUEGER, Judge. KRUEGER, Judge.

text:
    DRAYTON v. STATE.
    No. 20629.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Rehearing Granted Jan. 17, 1940.
    H. M. Hood and Jos. H. Aynesworth, both of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is rape; the punishment assessed is confinement in the state penitentiary for a term of five years.

We do not deem it necessary to set out and discuss the evidence further than to say we deem it amply sufficient to sustain the conviction.

Appellant has a number of bills of exceptions in the record. All of these seem to have been filed too late to be considered by us. The motion for new trial was overruled and notice of appeal was given on April 1, 1939. Sixty days were allowed within which to file a statement of facts and bills of exceptions. This period expired on May 31, 1939. On May 22, 1939, the trial judge extended the time within which the statement of facts might be filed, but this order did not include the bills of exceptions. ' His bills were not filed until June 30, or approximately 30 days after the 60 day period within which they might properly have been filed. Consequently they were filed too late to be considered by us. The indictment is sufficient to charge the offense and procedural. matters appear to be in proper order. Appellant’s objections to the court’s charge are without merit.

No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing

KRUEGER, Judge.

Appellant, in his motion for .rehearing, has convinced us that his bills of exceptions should be considered. .The showing made, supported by affidavits and other documents, leads us to the conclusion that the failure to file them within the original 60 days granted by the court was not due to any want of diligence on his part and that the subsequent extension of an additional 30 days (in which the court failed to include bills of exceptions) was not due to negligence on his part. It appears from the motion that when the court granted the original 60 day period in which to file a statement of the facts and bills of exceptions, the court reporter advised him that he could not possibly get out the same within that period of time. Thereupon the court stated that if such a contingency arose, he would, of his own motion, extend the time for the filing of the same by the grant of another additional period of 30 days. Before the expiration of said 60 days, the court did make an order extending the time. He had the order filed with the clerk of the court and so notified the appellant’s attorney. But he failed to include in said last named order the extension for the bills of exceptions. It appears from the record that it was .the understanding of appellant’s attorney with the court (at the time of granting of the original 60 day period for the filing of said statement of facts and bills of exceptions) that if the reporter could not get out the statement of facts, together with the statement of facts proved upon the hearing of the amended motion for new trial, giving them the data of all that transpired upon the hearing, including a colloquy between the attorneys and the court, so as to show in detail all that transpired at the time, the time would be extended as aforesaid and a full bill would be allowed him. It occurs to us that from what transpired at the hearing of the motion for new trial, that appellant and his attorney were led to believe that the court would not only extend the time for the filing of the statement of facts, but also the bills of exceptions, and when he notified them that he had made the order, they were led to believe that the order included bills of exceptions, for the reason that the court reporter could not transcribe the proceedings in detail so as to give appellant a true and complete report thereof from which to prepare his bill of exception.

It appears from bill of exception number nine that the jury, after their retirement and while considering their verdict, discussed among themselves not only the evidence submitted to them under the ruling of the court, but the fact that appellant had served a term in the State Penitentiary of Oklahoma; that he had theretofore boasted that he had beat a rape case in Kansas and one in Oklahoma. It appears that when the State sought to elicit such testimony, the defendant objected and the court sustained the objection and in his charge instructed the jury only to consider the facts and circumstances in evidence and not to consider or receive from any source facts or circumstances that were not produced from testimony before them. Consequently' the jury discussed matters not in evidence and which were highly prejudicial to the rights of appellant. The effect of this discussion on the penalty assessed against the appellant is a matter upon which we cannot speculate. Taylor v. State, 108 Tex.Cr.R. 104, 299 S.W. 402, and authorities.

Inasmuch as we are reversing the cause, we deem it proper to state that we are of the opinion that bill of exception number 8, which complains of the testimony of O. B. Ellis, a deputy sheriff, as to what prosecutrix told him relative to the unpleasant affair some 20 hours after its occurrence and after she had talked to several parties about it early the next morning, reflects error. This testimony was not admissible as res gestae. It was a narration of a past event in response to questions propounded to her, and lacked that character of spontaneity which would bring it within the purview of the .res gestae rule. See Porterfield v. State, 64 Tex.Cr.R. 179, 141 S.W. 968; Nelson v. State, 128 Tex.Cr.R. 132, 79 S.W.2d 1096; Heidensfelder v. State, 128 Tex.Cr.R. 351, 81 S.W.2d 510.

The motion for a rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    CANTU v. STATE.
    No. 20577.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Jan. 31, 1940.

      Cameron & Hardin, of Edinburg, King C. Haynie, of Houston, and Ramon L. Longoria, of McAllen, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the state penitentiary for a term of 25 years.

The indictment, which contains four counts, alleges that the appellant unlawfully, voluntarily and with malice aforethought killed Narcisa Lupez Cantu by shooting her with a gun. The proof shows that on the afternoon of January 23, 1939, .appellant and his wife returned from a visit they had made to his mother’s. A few minutes after their return, Mrs. Cantu went out to feed the chickens, and appellant also went out into the back yard. They then went back into the house and a short time later a gun shot and a woman’s screams were heard. A few seconds later another shot was heard and soon thereafter appellant was seen going to the orchard with a bundle and a small oil can. Smoke was then seen, and appellant a short time later started the water pump and watered the cabbage which were growing in the garden. After this had been completed, he was seen to return to his house, come out again, get into his car and proceed toward town. In about an hour he returned with some ice which he placed in the cooler. He then called for his wife, but not receiving any reply he turned on the electric light and found her lying dead on the kitchen floor. He then inquired of a servant, Sofia Vela, who lived nearby, as to whether or not she had heard or seen anything during his absence. Upon being informed that she had not, he went to his brother’s home and informed him of his discovery upon returning from town to his home with the ice. The offi•cers and the undertaker were summoned. A doctor made a post mortem examination which revealed three wounds on the deceased’s body, two made by bullets and ■one being a superficial wound. One of the bullets had entered at the breast and gone through and the other had entered at the right ear and lodged in the skull. This bullet was recovered and appeared to have been fired from a 45-calibre pistol. An investigation of the premises failed to reveal .anything was missing, and while appellant owned shotguns and a 38-calibre pistol; nothing was said about owning a 45. On the following day, the officers in their, search found cartridges fitting a 45-calibre pistol. Appellant admitted that he had such a gun but stated that he had left it at the home of his parents. He admitted later that he had the 45-calibre pistol with him when he returned to his home with the ice and had it in his hand when he turned on the lights. Mr. Gonzaullas of the Department of Public Safety, who professed to be an expert on the identification of fire.arms, etc., testified that it was his .opinion that the bullet taken from the body of the deceased was fired from the 45-calibre pistol owned by the appellant and shown to have been in his possession about the time the offense was committed. It was shown that appellant carried two policies of insurance of $1,500 each on his wife’s life. It was also proved that on former occasions appellant abused and mistreated the deceased. There was some evidence offered on behalf of the appellant which tended to show that Sofia Vela, the servant, could not have seen what she claims to have seen from the window of her home. If this be conceded the fact remains that she heard two shots fired and screams of a woman coming from appellant’s home at the time appellant was present. The deceased had two gun-shot wounds in her body and these wounds were inflicted with what appeared to be a 45-calibre gun. No other person seems to have been seen in or about the premises on the afternoon in question except the appellant. We believe the evidence is sufficient to sustain the jury’s conclusion of appellant’s guilt. It might be noted that this cause was once before this court on habeas "corpus with the object in view of obtaining bail. See Ex Parte Cantu, 135 Tex.Cr.R. 281, 117 S. W.2d 1102.

By bill of exception number one, appellant complains because the witness, Sofia Vela, was permitted to explain why she told appellant when he came to her home and asked her what she had seen and heard that she had seen or heard nothing. She explained that the reason she told him she heard or saw nothing was due to the fact that she was afraid of him. Appellant objected on the ground that this was a conclusion of the witness. We do not so regard it. The witness had a right to explain why she made such a statement to the appellant. See Branch’s Ann.P.C., p. 60, Sec. 94; Cornett v. State, 54 Tex.Cr.R. 372, 373, 112 S.W. 1071.

Bill of exception number two complains of testimony given by Mr. Gon-zaullas, a professed expert on identification of firearms, bullets and cartridges. Appellant objected to all of his testimony on the ground that he had not qualified as an expert; that he failed to show a sufficient knowledge of the scientific subject upon which he gave his opinion and therefore his testimony had no probative value. We know of no legal standard by which to determine a person’s qualification as an expert on the subject mentioned. While the examination of the witness might have shown that his knowledge of the subject was more limited than might have first appeared, we would not be authorized to hold as a matter of law that he did not measure up to the standards of an expert. The question of whether or not an expert witness has so qualified is one which rests largely in the discretion of the trial judge and we would not be authorized to disturb his decision on the matter unless it clearly appeared that he abused his discretion. See Landry v. State, 117 Tex.Cr.R. 396, 35 S.W.2d 433; Guse v. State, 97 Tex.Cr.R. 212, 260 S.W. 852. The objection to his testimony seems to have gone more to its weight than its admissibility.

By bill of exception number three, appellant complains of the admission of a purported voluntáry statement made to the District Attorney, Mr. Hartley. His grounds of objection seems to be that the same was . not admissible in evidence against him since it was made through an interpreter, one Longoria, who translated what the defendant (who was unable to speak English) said from Spanish into English, then read the written statement over to the defendant, who signed it. It is the defendant’s contention that since the interpreter did not take the stand and testify to the effect that he properly interpreted the statement and since the district attorney who wrote down the statement did not understand Spanish, the state had not laid a proper predicate for its admission in evidence. It is true that Longoria did not verify the statement itself as being true and correct; or that the interpretation thereof was correct, but we noted from the record that another witness took the stand who was present at the time the statement was made, and testified as follows :

. “After the defendant made this statement and before it was signed by him it was read over to him by Mr. Longoria in Spanish and I am able to state that it was read to him correctly in Spanish, although there were some corrections made in the statement by the defendant * * * or at his instance. I would recognize that statement if I were to see it again * * * that is the statement that the defendant signed at the time I have just related.”

It is our opinion that a proper predicate was laid for the introduction of the purported confession and that the proper warning was given the defendant. We do not think our holding on this point in conflict with the holdings of this court in the cases of Turner v. State, 89 Tex.Cr.R. 615, 232 S.W. 801, arid Cervantes v. State, 52 Tex.Cr.R. 82, 105 S.W. 499. In those cases the state did not attempt to lay any predicate whatsoever and the testimony of the witnesses as to what the interpreter said was clearly hearsay.

Bill of exception number four complains of the same matter as bill number two. For the reasons there assigned, this bill is overruled.

Bill number five complains of the following remarks by the state’s attorney in his closing argument to the jury:

‘‘Counsel has made much ado about the actions' of the defendant in this case. He has told you about * * * this defendant down at Mercedes * * *. This very grilling he went through down there. I think the evidence discloses the examination began about eight o’clock or eight-thirty. * * * Mr. Hardin says they did not give him a drink of water, and Mr. Hardin says they did not offer him anything to eat — no, but this defendant, when he shot her down in cold blood, he did not say, ‘Do you want some water, or want something to eat.’ ”

Upon objection that the statements constituted unsworn testimony, the court retired the jury and gave the attorney for the state an opportunity to explain his statements. Upon recalling the jury, the state’s attorney stated to the jury as follows :

“ * * * I stated that the defendant shot his wife down in cold’blood, and that he did not give her a drink of water ■ or anything to eat. There is no evidence in this record as to whether or not the defendant gave his wife a drink of water or anything to 'eat, and I did not intend to convey to the jury that there was any evidence of that. * * * ”

The court then instructed the jury that they could consider the above remarks only as argument, and not as a statement of any fact. We think the prompt action of the trial court in his instruction to the jury and the admission of the state’s attorney before the jury properly confined them to a consideration of the statements as argument only. The argument that appellant shot his wife down in cold blood was, we think, a reasonable deduction from all the facts and circumstances in evidence. Furthermore it appears from the entire proceedings that a part of the argument complained of was in rebuttal to argument by appellant’s counsel.

Bill of exception number six complains of much argument by the state’s attorney, the greater part of which was clearly deduced by him from the facts in evidence. The remainder is disposed of by us in our discussion of bill of exception number five.

It appears from bill of exception number seven that in rebuttal to the expert testimony offered by the state the defendant introduced a ballistics expert who stated that after a careful examination of the evidence bullet it was his opinion that no expert would be warranted in saying that the bullet came from the 45-calibre pistol owned by the appellant. Thereupon the state offered to allow the jury to examine the bullet under a microscope. The state’s expert stated that it was his opinion, based on what people had told him who were not experts, but who had examined bullets under such a microscope under his supervision, that the jury could gain something by a comparative examination of the bullet taken from the skull of the deceased and by another bullet fired from the same gun. Upon strenuous objection of appellant’s attorney, the state withdrew its offer. The objection to these proceedings seems threefold: (1) That the state’s witness had not qualified as an expert; this contention we have disposed of in considering bills numbers two and four. (2) That what the witness stated about what people who had examined bullets at his direction had told him about being able to see certain things was purely hearsay. The bill shows that the court instructed the jury to disregard the hearsay statements. (3) That the defendant’s legal rights were prejudicially affected by this offer. It appears from the whole record that these proceedings were had at the instance of the court to determine if an examination by the jury of the bullet under the direction and supervision of the expert woqld elucidate any fact in issue. The state had a right to introduce rebuttal testimony which would tend to contradict an expert introduced by the defendant and to allow the jury to inspect the bullet under a microscope, provided any material fact could be discovered as a result of this inspection. The court, by allowing the above inquiries, was only attempting to determine whether or not these non-expert laymen, the jury in this case, could discover anything by inspection of the bullets under a microscope while supervised by an expert which might elucidate the issue. He was attempting to lay a predicate for the introduction of this evidence, with a view of determining its admissibility. The questions directed at the state expert witness by counsel seem clearly to have been directed to attain this objective. Moreover the state withdrew its offer of this evidence. As stated in appellant’s very able brief, there is no doubt that the comparison microscope as used is a very delicate instrument- — -one that should not be toyed with by novices; but here according to the state’s theory, the jury’s inspection was to be under the direct supervision of one who claimed to be an expert on the subject and who would properly direct them in its use. This issue was perhaps the most hotly contested one in the case, and the state had a right to strengthen its case and its witnesses by such an experiment if it could show that the same would elucidate the issue. As stated above, however, the state withdrew its offer. See Hickey v. State, 51 Tex.Cr.R. 230, 102 S.W. 417; Butler v. State, 61 Tex.Cr.R. 133, 134 S.W. 230; Short v. State, 63 Ind. 376.

By bill of exception number eight, appellant complains of the introduction in evidence of a second purported voluntary statement. His objection to its admission in evidence was that it was not voluntary and was obtained by the éxer-cise of undue influence exerted by the officers over appellant, and for the further reason that it did not comply with all the statutory requirements. It appears from the bill that the proper predicate was laid for its introduction. It does not appear, that any such undue influence was exercised by the officers over the appellant as would make the statement inadmissible. However the court, in his charge to the jury, instructed them that if they believed from the evidence that the confession was obtained as a result of coercion or undue influence exercised by these officers over, appellant, not to consider the same' for any purpose. This was the proper procedure under the established rule in this state, the question being one for the jury’s determination. See Bingham v. State, 97 Tex.Cr.R. 594, 595, 262 S.W. 747; Belcher v. State, 71 Tex.Cr.R. 646, 161 S.W. 459; Blake v. State, 110 Tex.Cr.R. 128, 7 S.W. 2d 579.

By bill of exception number nine, appellant complains of the action of the court in declining to sustain his challenge to the array of the grand jury. His challenge was based on the ground that one of the jury commissioners appointed by the court at the previous term (who selected the grand jury which returned the indictment against appellant) was not a freeholder in the state nor a householder in the county. The court heard evidence relative thereto and it was clearly developed that the designated jury commissioner was a freeholder. Moreover, we do not believe that the challenge was sufficient under Art. 361, C.C.P.

Appellant also addressed many obj ections to. the court’s charge. On the whole we think it was a fair application of the law to the facts. One objection addressed to the charge was that the court failed and refused to limit the testimony of Sofia Vela relative to antecedent quarrels, assaults, and batteries by appellant upon the deceased and to instruct them that they could only consider such testimony as tending to show motive. The court was ' not required to give such instruction, because motive is a part of the proof to establish the main offense. We quote from the language of Judge White in Hudson v. State, 28 Tex.App. 323, 13 S.W. 388, 390:

“Such evidence being legitimate and admissible to prove a main issue in the case, to-w'it, defendant’s motive and malice in the perpetration of the murder, it was not obligatory upon the court, in its charge, to limit and restrict the purposes for which the evidence was admitted. The rule as to restriction or limitation does not obtain with regard to evidence proving directly the main issue involved in the trial. Davidson v. State, 22 Tex.App. [372] 373, 3 S.W. 662.”

See also Millican v. State, 63 Tex.Cr.R. 440, 140 S.W. 1136, 1142; Gradington v. State, 69 Tex.Cr.R. 595, 155 S.W. 210; Branch’s Ann.P.C. Sec. 1885, p. 1047.

Appellant also objected to the court’s charge relative to his instruction on accomplice witnesses. We do not deem it necessary to discuss his criticism thereof, inasmuch as we are of the opinion that Sofia Vela was not an accomplice witness, and that ’ the evidence did not raise the issue as to whether or not she was an accomplice witness. Hence no instruction thereon was necessary. The only theory upon which appellant contended that she was an accomplice witness is that when appellant asked her on the day that the alleged offense was committed whether or not she had heard or seen anything during his absence, she replied in the negative. He seems to take the position that this raised the issue as to whether or not she was an accessory after the fact. The record discloses that this witness made no affirmative statement which would have exculpated appellant or raised an affirmative defense in his behalf. Neither did she withhold any fact from him which he did not already know. When he went to see her at. the servant house, he already knew his wife was dead on the kitchen floor and knew that the homicide had occurred within his own home. She suppressed no fact not known to him or which could be deemed as a concealment of any fact tending to prevent his detection, apprehension or prosecution for the offense. It is obvious to us that she was not an accomplice witness. The mere fact that she denied any knowledge of' the crime would not make her an accomplice. See Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 290; Franks v. State, 130 Tex.Cr.R. 577, 95 S.W.2d 128; Allen v. State, 127 Tex.Cr.R. 81, 75 S.W. 2d 101.

It might be well, however, for the courts in preparing instructions relative to accomplice testimony, to examine the case of Alsup v. State, 120 Tex.Cr.R. 310, 49 S.W. 2d 749.

All other matters complained of by appellant have been considered by us and are deemed to be without merit.

No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

Upon full consideration of the appellant’s motion for rehearing, we find that all the matters raised in said motion have been considered by the court and its conclusion reflected in the original opinion herein. We adhere to the views there expressed and overrule the motion for rehearing.