text:
    Ex parte BUSTAMENTE.
    No. 20985.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.

      Frank W. Steinle and R. R. Smith, both of Jourdanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

This is a habeas corpus proceeding.

Relator is under a purported indictment which was returned during the October term, 1939, of the District Court of Atas-cosa County. The grand jury for that term of court was impaneled at the beginning of the term and, having finished its labor, was by the order of the court discharged for the term on the 18th of October, 1939. Thereafter, on the 24th of October, the court entered an order reconvening the grand jury which had theretofore been finally discharged for the term. Only eleven of the grand jurors who had already been impaneled at the beginning of the term responded to the summons. The court failed to complete the panel as provided in Article 372, C.C.P. The indictment against relator was thereafter returned by the eleven members of the original grand jury, and he is now held in the custody of the sheriff by virtue of a capias based upon such indictment. It is relator’s contention that he is held without an indictment preferred by a grand jury, and therefore his restraint is illegal.

We are constrained to agree with relator’s contention. In Rainey v. State, 19 Tex.App. 479, Judge Hurt used language as follows: “But let us concede, for the argument, that the Legislature had, in the most explicit, emphatic and unquestionable language, declared that a grand jury should, may or could be composed of more or less than twelve persons: — the Constitution fixing the number at twelve, neither more nor less, could any man within this State, who is at all familiar with the principles of constitutional government, be found who would assert the validity of such an act? The simple proposition is this: — The Constitution says that a grand jury shall be •composed of twelve persons. The Legislature declares that a grand jury shall be composed of thirteen persons. Which shall prevail? Or, which is the legal grand jury, that composed of twelve, or that composed of thirteen? Does it require the slightest degree of legal acumen to answer this question? We think not; but on the contrary, we would have thought that a mere tyro in the profession would be master of the proposition and capable of solving it correctly. That the Constitution controls, and lienee a grand jury must be. composed of twelve persons, neither more nor less, is so clear a proposition as to be placed beyond the pale of discussion. There is nothing about which we can reason unless it be as to which is the supreme law of the State, a constitutional provision or an act of the Legislature. We will pursue this part of the subject no further than to remark that any matter declared by the Constitution cannot be ignored or changed by legislation. Section 29 of the Bill of Rights [Vernon’s Ann.St.] expressly declared that, ‘to guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto or to the following provisions shall be void.’ All remaining portions of the instrument are thus evidently embraced and referred to.”

In Trevinio v. State, 27 Tex.App. 372, 11 S.W. 447, 448, Presiding Judge White used language as follows: “After a grand jury has completed its labors, and been discharged as a body for the term by the court, as a body it ceases to exist, and its autonomy and personnel are-in a measure, if not completely, changed and destroyed. When it is sought to reassemble them, our statute upon the subject is that, ‘when a grand jury has been discharged by the court for the term, it may be reassembled by the court at any time during the term; and, in case of failure of one or more of the number to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance.’ Code Crim.Proc. art. 391. We think it clear, from the phraseology of this statute, that it was within the contemplation and intention of the legislature that, when the grand jury was reassembled, they could only be reorganized and impaneled with 12 men; that there must be at least that many present; that no less number would suffice; and that, if there were not 12 present, that number should be completed by impaneling other qualified persons to make up the deficiency to 12.”

In Lott v. State, 18 Tex.App. 627, in holding that Lott had not been indicted by a legal grand jury, Judge Willson, speaking for the court, said:

“It is provided in the Bill of Rights of this State, section 19, that ‘No citizen of this State shall be deprived of life, liberty, property or privileges, outlawed, exiled or in any manner disfranchised, except by due course of the law of the land.’ And again, it is declared that ‘No person shall be held to answer for a criminal offense unless on indictment of a grand jury,’ etc. (Bill of Rights, section 10.)
“We see from these provisions that a citizen can only be convicted and punished for a felony by the course of the law of the land, and by authority of an indictment of a grand jury. The district court can only acquire jurisdiction to hear and determine a felony case, by an indictment of a grand jury. It has no more authority to hear and determine a felony cáse, without an indictment of a grand jury first presented, than would a justice of the peace. No court in this State has such jurisdiction and authority.
“What constitutes a grand jury? Our Constitution answers the question plainly and emphatically. It says: ‘Grand and petit juries in the district courts shall be composed of twelve men; but nine members of a grand jury shall be a quorum to transact business and present bills.’ (Const., art. V, sec. 13.) There is no authority of law for a grand jury composed of any other number of men than twelve. Thirteen men do not and cannot constitute a grand jury. If thirteen could be considered a grand jury, so could one, five, fifty, or any other number that the fancy of the judge organizing the same might dictate. With respect to a petit jury, it is well settled that it must consist of the exact number prescribed by the Constitution. In Stell v. State, 14 Tex.App. 59, it is said: ‘The record must show that the jury was a legal one, and if it does not the error is a radical one which will be considered on appeal, whether properly availed of in the court below or not, because due course of' the law of the land demands a legal conviction by a legal jury.’ (See, also, Marks v. State, 10 Tex.App. 334; Allen v. State, 54 Ind. 461; Brown v. State, 16 Ind. 496; Hill v. People, 16 Mich. 351; Work v. State, 2 Ohio St. 296 [59 Am.Dec. 671]; S.C., 1 Leading Cr.Cas., 482.) And it has been held that a jury of thirteen is as fatal as one of less than twelve, and their verdict will be set aside. (Whitehurst v. Davis, 2 Hayw. 113 [3 N.Car. 113]; Wolfe v. Martin, 1 How. (Miss) 30.)
“If, then, a trial by petit jury composed of fewer or more than twelve, the constitutional number, be an infringement of the right of trial by jury, and not a trial by ‘due course of the law of the land,’ for the same reason the action of a body of men, fewer or more than twelve in number, cannot be regarded as the action of a grand jury. Such a body of men is unknown to the law, and its acts, being wholly without authority of 'law, are absolutely null, and a pretended indictment preferred by such body can have no legal standing or effect whatever. It cannot confer any jurisdiction of the case upon the .court.
“Our conclusion is that the matter presented by the motion in arrest of judgment is fundamental, and reaches to the very foundation of this- prosecution. It shows that the court in which this trial and conviction were had was without any jurisdiction of the case. Its assumed jurisdiction was in violation of the Bill of Rights. Such being the case, it matters not in what manner, or at what stage of the proceedings, this want of jurisdiction is presented. If presented for the first time on this appeal, it would be held fatal to the conviction. Or if it affirmatively appeared from the record that the defendant had been convicted of a felony without being indicted therefor by a grand jury, we would set aside the conviction and dismiss the prosecution for want of jurisdiction in the trial court, although the defendant had not, in any manner, made the objection.”

Art. 372, C.C.P., provides: “A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of them fail to reassemble, the court may complete the panel hy impaneling other men in their stead in accordance with the rules provided in this chapter for completing the grand jury in the first instance.”

Giving application to the announcement of the decisions of this court, we conclude that according to the provisions of Art. 372, supra, the court, was required to impanel a grand jury of twelve men when he reassembled the grand jury which had theretofore been discharged for the term. This is not a case involving the adjournment of the grand1 jury and is therefore not controlled by the holding of this court in Leech v. State, 63 Tex.Cr.R. 339, 139 S.W. 1147.

In view of the fact that the indictment under which appellant is held was found by a grand jury whose organization was void, relator is entitled to seek relief by way of habeas corpus. We quote from 21 Texas Jurisprudence, 432, as follows: "An indictment found by a body ofi-persons other than a legally constituted grand jury will be set aside on habeas corpus.” In support of the text several authorities are cited, among them being Ex parte Love, 49 Tex.Cr.R. 475, 93 S.W. 551; and Ex parte Reynolds, 35 Tex.Cr.R. 437, 34 S.W. 120, 60 Am.St.Rep. 54. See Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009, 96 Am.St.Rep. 860.

Relator is ordered discharged.

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.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    CHRISTENSON v. STATE.
    No. 20815.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty.» of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine- of $100.

Over appellant’s objection, the affidavit for the search warrant and the search warrant were read to the jury. It was alleged in said instruments, among other things, that appellant sold and possessed for the purpose of sale alcoholic beverages in his private dwelling. There seems to have been no issue upon which the contents of the affidavit and search warrant were relevant. There was no proof in the record, other than the statement embraced in the affidavit and search warrant, that appellant had sold intoxicating liquor. The state relied for a conviction upon the testimony of the officers to the effect that they found one pint of whisky and sixteen cans of beer in appellant’s house, and that, upon following a well-beaten trail from appellant’s home to a point 300 yards away, they found four pints of whisky covered in leaves. Some of this whisky appears to have been of the same brand as the whisky found in appellant’s house. Manifestly, the statements embraced in the affidavit and search warrant were hearsay and inadmissible. We are unable to say that their reception in evidence did not bring about appellant’s conviction. It follows that we are constrained to hold that the bill of exception reflects reversible error. See Uptmore v. State, 11(5 Tex.Cr.R. 181, 32 S.W.2d 474; and Dillon v. State, 108 Tex.Cr.R. 642, 2 S.W.2d 251.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: KRUEGER, Judge.

text:
    BACARISSE v. STATE.
    No. 20782.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Miller & Sapp, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The unlawful making of an assignment of an oil, gas and mineral lease upon land in which the appellant knew he had no interest is the offense. The penalty assessed is a fine of $500.

It appears from the record that appellant and his associates had an oil, gas and mineral lease from the owners of the land mentioned in the indictment. The owners contended that appellant forfeited his rights under said lease by not complying with the terms thereof relative to the drilling of a well or paying the annual rentals as stipulated. They, (the owners), requested a release of the lease contract, which appellant declined to give, contending that he had substantially complied with the. terms thereof.

At the March Term, 1939, of the District Court of Lavaca County, appellant was indicted, charged with the offense above stated, and on the 5th of June, he was put on trial in the County Court of Lavaca County and convicted. There are a number of questions presented for review. However, in our opinion, we need discuss only the one relating to the jurisdiction of the Court. On his trial, appellant challenged the right of the County Court of Lavaca County to try him, inasmuch as the alleged offense, if committed at all, was not committed in Lavaca but in Harris County. The State introduced in evidence the alleged assignment executed by appellant, bearing date February 28, 1939, and purporting to have been acknowledged by him on the same day before R. A. Davis, a Notary Public , in and for Harris County, Texas. Appellant testified that on his return from Dallas to Houston, he gave the assignment to Mr. Tunstill. There is not any evidence in the record from any source showing that appellant was even in Lavaca County on said date, much less that he made the assignment in- said last mentioned county-

Since the Legislature, when it enacted the law under which this conviction was had (Acts 42d Legislature, 1931, Reg. Sess., H.B. 195, Chapter 263, p. 439), failed to state where the venue for offenses under said act should lié, we are relegated to the general venue statute, Art. 211, C.C.P., which reads as follows: “If venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.”

It is true that this statute (under which the prosecution was had) was placed in the penal code under chapter 2 of Title 14, which chapter relates to the forgery of land titles, etc. In such place it is denominated as Art. 1011a, Vernon’s Ann.P.C.; but the act itself does not come within the definition of forgery, and no legislative authority anywhere appears for placing it under said chapter, so as to make the law with reference to venue in forgery cases apply. It is obvious that in the absence of any provision by the Legislature prescribing the venue of prosecutions for a violation of said act, the general venue statute would necessarily apply. Consequently, in applying the same to the facts of this case, we are constrained to hold that the ,venue of the case lies in Harris and not in Lavaca County. There was no assignment of the lease until it was signed, acknowledged and delivered; all of which occurred in Harris County. By Arts. 187 to 207, C.C. P., Vernon’s Ann.C.C.P. arts. 187-207, the Legislature has specifically provided where venue of certain offenses therein named should lie, but no such provision has been made for the .offense denounced by this statute.

It may not be amiss to remark that it appeals to us, from the record, that the matter involved in this-prosecution is more properly a subject for the civil courts, as the bone of contention'seems to be whether appellant had complied with the terms of the lease.

Having reached the conclusion that the Court should have sustained appellant’s plea to the jurisdiction, the judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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


text:
    STANLEY v. STATE.
    No. 20769.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Burch Downman and King C. Haynie, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is keeping and exhibiting a gaming device; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellant and F. E. Von Mockel “did directly and through their agent, M. A. Rutledge, keep and exhibit for the purpose of gaming a gaming device, to-wit: a marble machine.” The case was submitted to the jury alone upon the theory that appellant acted through Rutledge, his alleged agent. The marble machine in question was kept and exhibited in the barber shop of M. A. Rutledge. The state relied almost entirely upon the testimony of C. L. Permenter. He testified that he had bought from appellant a half interest in several marble machines. One of these machines, according to the testimony of Permenter, had been placed in the barber shop of Rutledge. Appellant testified that he had no interest in the machines but had sold them outright. He testified, further, that he had no control over the machines and received none of the revenue derived from their operation.

Bill of exception No. 12 presents the following occurrence: On his direct-examination, C. L. Permenter, a witness for the state, testified that he had a conversation with appellant in Houston, .Texas, in which appellant told him how the marble machines in question were to be operated. On cross-examination the witness denied that he had made a statement in the office of Burch Downman, in the City of Houston, on the 26th of November, 1938, to Miss Ann Linebarger to the effect that appellant had declined to discuss with him ^.ny phase of the ’marble machine business or the operation of the marble machines in question. The witness admitted that he was present in Mr. Downman’s office at the time in question and that Miss Ann Linebarger was also there. In his testimony appellant denied that he ever talked to Permenter about the operation of the marble machines. He testified, further, that he refused to discuss their operation with Permenter. Further, it was appellant’s version, as shown in the bill of exception, that he had sold' the marble machines, had retained no .interest in them, received no proceeds from them, and had nothing to do with their operation. At this juncture we1 quote from the bill of exception, as follows: “During the trial of this cause, on Saturday morning, at about 10:15 a. m., on the 13th day of May, A. D. 1939, and before the jury had been recalled to the jury box, and after both sides had closed, and before the main charge of the court had been read to the jury, the defendant requested the court to allow him to place Ann Linebarger on the witness stand, who was in the court room at that time, for the purpose of impeaching the testimony of the state’s witness, C. L. Permenter, wherein he had stated that he did not state in Mr. Down-man’s office as aforesaid, that Stanley (appellant) would not discuss any phase of the marble machine business or the operation of the particular machine in question. Counsel for defendant 'stated that he had been unable to locate said wit-' ness until the night of'May 12, 1939, and that the witness was in court at the time said testimony was offered. The court refused to permit said witness to testify in said cause, to which defendant, then and there in open court excepted.”

It is stated in the bill of exception that Miss Ann Linebarger would have testified that Permenter had stated to her on the occasion in question that appellant would not discuss with him “any phase of the marble machine business or the operation of the particular machine in question.” In his qualification' to the bill of exception the coui;t states that appellant had issued no process for Miss Line-barger; that she was an employee of Burch Downman, counsel for appellant; that both sides rested at 4 p. m., on > May 12, 1939.; .that no request was made by appellant or his counsel that they be permitted to secure the attendance of Miss Linebarger; that at the time the parties-rested both the witnesses for the state and the defendant had been excused. At this juncture- we quote from the. qualification, as follows: .“Such request was refused by the court, the court finding at said time that defendant and his counsel had had ample notice and opportunity to secure the attendance of said witness before both sides had rested and before the witnesses had’ been excused; and had failed to do so.”

It is observed that it was a closely contested issue whether appellant had any interest in the marble machines in question. It can not be said that the testimony of Miss Linebarger would not have probably turned the scales in appellant’s favor. It can not be assumed that counsel for’ appellant knew Miss Linebarger’s evidence would be pertinent until after Permenter had given testimony contrary to his statement in the presence of Miss Linebarger. In Steadham v. State, 119 Tex.Cr.R. 475, 43 S.W.2d 944, 950, it appears' that the trial had proceeded until 10:30 p. m., at which time the counsel for Steadham re'quested the court not to close the evidence but to hold the case until 9 o’clock the next morning in order that he might have an opportunity to produce certain material witnesses. The court refused the request but stated to counsel that he would give him until 12 o’clock that night to' produce the witnesses. Counsel replied that he was unable to produce the witnesses in the time allowed.- In holding that the action of the court in concluding the case was erroneous, this court said, in the opinion on motion for rehearing, that, under the circumstances, the request was not unreasonable. In the course of the opinion Judge Hawkins used language as follows: “If he had produced the witnesses the next morning and requested permission to use them he would have brought himself squarely within article 643, Code Cr.Proc.1925, which provides: ‘The court shall allow testimony to be introduced at any .time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.’ ”

In the Steadh'am case it is shown that the .testimony of the witnesses that Steadham was requesting the opportunity to present was purely impeaching. In the course of the opinion Judge Hawkins said: “It is well understood that ordinarily a case will not be continued or postponed, or a new trial granted, for purely impeaching testimony. Appellant was seeking none of these. The case was on trial and about to be concluded at 10:30 at night when the exigency arose which confronted appellant. His only request was that he be given until 9 o’clock next morning to produce the witnesses named. The request seems not unreasonable.”

In the present case appellant had his witness present before the court read his charge to the jury and prior to the time the argument began. Necessarily, further time would have been taken if the witness had been permitted to testify. However, it is not shown that a postponement would have resulted. In short, no facts and circumstances are presented which would in any manner indicate that the introduction of such testimony would have impeded the trial or would have in any way interfered with the due and orderly administration of justice.

In Stone v. State, 91 Tex.Cr.R. 313, 239 S.W. 209, 210, this court, speaking through Presiding Judge Morrow, used language as follows:

“It is within the discretion of the trial court to refuse to hear testimony proffered after the beginning of the argument, and only wlien the discretion is clearly abused will the action be reviewed. * * *
“Concerning the testimony offered before the argument begins, the discretion of the court is not so broad. DeLerosa v. State, 74 Tex.Cr.R. 604, 170 S.W. [312] 313. In .fact, under the latter circum-' stances, if the proffered evidence is material and bears directly on the main issues in the case, it would not be within the discretion of the court to exclude it unless it was offered under conditions which would impede the’ progress of the trial or in some way interfere with the due and orderly administration of justice.”

See Slone v. State, 118 Tex.Cr.R. 649, 37 S.W.2d 1019, and Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454.

We think the charge of the court assumed that Rutledge was the appellant’s agent. Upon another trial the jury should be required to find beyond a reasonable doubt that Rutledge was the agent of appellant. Also, the charge should instruct the jury, in substance, to acquit appellant if they entertain a reasonable doubt upon the question of agency. Appellant’s exceptions to the charge were probably not sufficient to have apprised the trial court that it was appellant’s position that the court had assumed in the charge that Rutledge was an agent of the appellant. However, we call attention to the matter in view of the fact that a proper instruction may be given in the event of another trial.

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

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    BOLTON v. STATE.
    No. 20838.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.

      James F. DeLoney, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction for violating the Local Option Law in which a fine of $100 was imposed by the County Court of Nacogdoches County.

The appellant is a negro, and was engaged in running a cafe and dance hall near the town of Garrison. Three officers invaded the premises one night about 8:30 o’clock while a dance was in progress and presumably a number of guests were present. The officers testified that before searching the premises they asked permission of the appellant to do so and that he consented thereto. The search yielded four pints of corn liquor and four pints of wine hidden in and about the premises. Five pints were under a sign board some eighteen or twenty steps from the building in a northwesterly direction, and the rest was in a draw behind the building, but the distance from it is not indicated. The officers also stated that there was a “little whisky in a jug” which was locked up in a back room.

Appellant testified that the room where the jug with some whisky in it was found was rented by the week to a girl who occupied it with another negro girl and that he personally knew nothing of the whisky in the jug. Other jugs were found in the room which the appellant testified were water jugs. There is no evidence that these jugs contained whisky or that they ever had.

We find nothing in the evidence connecting the appellant with the five pints of whisky found “eighteen or twenty steps” northwest of the building. Neither is there any indication that he knew or had any connection with that which was found in the ditch behind the premises. The amount of whisky in the jug found in the house is not indicated. There is no evidence that any sale had been made by the appellant or by any one with his knowledge. On the state of the facts of the case the evidence is wholly insufficient upon which to base a conviction.

The case is reversed and remanded.


text:
    CARTER v. STATE.
    No. 20844.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.

      ■ R. C. Wilson, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Travis County for the theft of an automobile and his punishment was assessed at confinement in the penitentiary for ten years.

The State’s testimony is to the effect that on the night of December 20, 1938, a 1939 model Chevrolet Coupe was taken from the premises of Louis Novy, who resided at 1117 Enfield Road in the city of Austin. Officers were summoned and the car was recovered that night about twelve o’clock at 1216 Baylor Street, which was about a block and a half away from the Novy home. At the time the car was discovered the appellant was in it. The officers found that the wires around the switch had been disconnected. About a box of matches which had been struck, a pair of pliers and a screw driver were found in the car. Appellant was arrested and placed in jail. The car was taken to the police station and delivered the next day to the owner.

Louis Novy testified that a 1939 model Chevrolet Coupe was taken from his home without his permission on the night of December 20, 1938; that he bought the car and registered it in his name, although he had given it to his son for his birthday. I-Iis son bought the gasoline for the car but that he (the witness) paid the bills.

Harold Novy, the sixteen year old son of Louis Novy, testified that he left the car in question in front of the house between 11:30 and 12 o’clock at night of the day of the alleged offense; that the car was recovered the next day at the police station. The witness testified that he put on the brakes of the car when he parked it that night; that he did not disturb the wiring of the car; that he had not left any matches, struck or unstruck, in the car, nor had he left any pliers or screw driver in the car; that the car was operating normally when he left it. The witness further testified that he did not give any one permission to take the car that night.

Appellant did not testify upon'the trial and offered no witnesses in his behalf.

For the purpose of enhancing the penalty, the State introduced in evidence an indictment dated May 6, 1936, charging the appellant, Preston- Carter, with the theft of an automobile belonging to M. H. Elliott. The final judgment and sentence were also introduced.

No bills of exception are found in the record, but in the motion for an instructed verdict the contention is made that there is a fatal variance between the indictment and the proof in that the ownership of the automobile is alleged to be in L. Novy, whereas'the testimony places the car in the possession and under the control of Harold Novy. As is indicated by the State’s evidence, Louis Novy testified that he bought the car and registered it in his own name but had given it to his son as a birthday gift; that he paid all the bills incurred in connection with the operation of the car. Harold Novy, the son, testified relative to the ownership of the car as follows: “I am the boss of the car until my father says for me to do something. When he tells me something to do about the car, I do it. Pie is the boss. * * * He drives it sometimes, not much. My mother and I drive the car. We switch around. * * * I stated that my dad had control over me and the car, all the time. I think the ■ car is registered in my father’s name.”

The rule seems to be well settled that “where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either”. C.C.P. Art. 402; also Tex. Jur. Vol. 41, p. 124, sec. 77. In the same text, p. 135, sec. 84, it is declared that “ownership of property belonging to a minor living with his parents may be alleged to be in either”.

In the case of Randall v. State, 134 Tex. Cr.R. 51, 112 S.W.2d 460, it was. held as follows: “An indictment for theft may properly allege the ownership and possession of stolen property belonging to a minor child as being either in minor or in parent.”

We find no variance between the allegations and the proof..

Counsel for appellant further contends in his motion for an instructed verdict that the evidence could not establish a more serious offense than “tampering” with an automobile. We are unable to agree with this contention. The car was found in the possession of the appellant about a block and a half from the premises of the prosecuting witness. At the time of his apprehension, the appellant made no statement accounting for his possession of the car. The nature of the “tampering” in this case indicates an intention to operate the car by wiring around the ignition switch so as to use it without a key.

It is a well-settled rule that the unexplained recent possession of stolen property is a sufficient' circumstance to authorize the jury's conclusion of guilt on the part of the taker. Evans v. State, 132 Tex.Cr.R. 557, 106 S.W.2d 1054, and cases there cited.

No error having been presented justifying a reversal, the judgment is affirmed;


text:
    SCOTT v. STATE.
    No. 20837.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    James F. DeLoney, of Nacogdoches,' for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Nacogdoches County on a charge alleging ’that on the 27th day of May, 1939, he unlawfully possessed for sale an alcoholic beverage, and his fine was assessed at $200.

The appellant lived in a rented room of a house owned a:nd occupied by Rosie Lee McKnight. Officers secured a. searqh, warrant and found six 32-ounce bottles of beer in the smoke-house out behind the dwelling in a tub on ice. The distance from the house is not stated. They searched the premises by authority of a search warrant, alleging it to be the property of the appellant.

The sheriff testified that he did not know who owned the property, but he searched it because he “had several complaints about Luther Scott bootlegging out there”.' When the officers searched the house they, failed to find any beer or whisky in the room occupied by the appellant or in ány other portion of the residence. Appellant was in the house when it was searched. There were other parties present, and in the yard, but the only evidence of the appellant’s connection with it is that the officers saw him there and his testimony that he had a room rented there. ■ The evidence connecting appellant with the beer found in the smoke house was materially strengthened before the jury by the statement of the sheriff that he “had several complaints about Luther Scott bootlegging out there;”. The deputy sheriff also volunteered the statement that he “was jumping the defendant up about bootlegging out there”. Neither of these statements were admissible against the appellant. The first is the rankest hearsay, and the second is the act and conduct of the deputy sheriff based on his own conclusion for some undisclosed reason. There is nothing else in the evidence which would in the remotest degree indicate that the appellant had been selling beer, and certainly the finding of the beer in the smoke-house, shown to be in charge of another and with which the evidence fails to connect the appellant in any manner, is insufficient to support the conviction. ,

The case is reversed and remanded.


text:
    LEAVELL v. STATE.
    No. 20645.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    J. T. Adams, of Orange, R. H. Jernigan, of Port Arthur, and D. C. Bennett, of Orange, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Orange County on a complaint and information alleging negligent homicide and appeals from a fine of $250.

The evidence in the case is to the effect that on November 30, 1938, the appellant was driving his automobile in a northerly direction onto and across State Highway No. 3, leading from Orange to Beaumont, upon which a car with four occupants was going west. It is alleged that appellant failed to stop at the intersection of the road on which he was traveling with the main State Highway No. 3, and failed to respect the right of the party in the car traveling westward and approaching from his right and did not yield the right-of-way to said car. Because of these violations of the law of the road, it is alleged that he negligently collided with said car so approaching the appellant from his right and by such negligence and carelessness in the performance of such unlawful acts, caused the death of Jerome Burton.

A number of witnesses testified, including those riding in the car with the victim. There is some difference of opinion as to how the accident occurred, it being the contention of the appellant that the car on Highway No. 3 ran into his car. The evidence of no witness is sufficient under the physical facts of this case to justify the appellant in failing to yield the road to the car approaching from his right. In addition, the jury’s finding precludes any further consideration of the controverted issues inasmuch as the trial court properly submitted them for the. jury’s consideration.

Tiie chief question in this appeal is whether or not the complaint and information in the case are sufficient to apprise the appellant of the charge for which he is tried. The material part of the- information reads .as follows: “That R. B. Leavell, on or about the 30th day of November, A.D., 1938, and before the making and filing of this Information, in the County of Orange, State of Texas, was in the performance of an unlawful act, to-wit, the said' R. B. Leavell was operating a motor vehicle upon a public road and arriving at intersection thereof with a public highway, to-wit: State Highway No. 3, failed to stop before driving said automobile upon State Highway No. 3 and did then and there fail to yield the right-of-way to the automobile then and there driven by Jerome Burton on said State Highway No. 3 and which was then and there approaching said intersection from the right side of the said R. B. Leavell, and did then and there in the performance of said act, by negligence and carelessness cause the death of Jerome Burton by then and there colliding with the car operated by Jerome 'Burton, whereby the said Jerome Burton was crushed, mangled, and killed by the said collision; there being .then and. there an apparent danger of causing the death of the said Jerome Burton, which danger would have been known to the said R. B.. Leavell if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances.”

The objection raised to this is that, according to the appellant’s construction, he was charged with three distinct offenses: •First, failing to stop before driving 'upon Highway No. 3; second, failing to yield 1he right-of-way to an automobile approaching him from his right; and third, causing the death of Jerome Burton by then and there colliding with the car operated by Jerome Burton.

Negligent homicide is of two kinds. The first is such as happens in the performance of a lawful act, and the second is that which occurs in the performance of an unlawful act.- One is guilty of negligent homicide'of the first degree when the death of the party results from negligence in the performance of a lawful act. A lawful act, as defined by our statute (Art. 1231, P.C.) is one not forbidden by the penal ■ law and which would give no just occasion for a civil action. Negligent homicide of the second degree can only be committed when the person guilty is in the act of committing or attempting to commit an unlawful act. An unlawful act is defined by our statute (Art. 1240, P.C.) as being such acts-as are forbidden by the penal laws classed: as misdemeánors and by such acts, hot-penal, as would give just occasion for a civil action.

The court’s charge in this case limited the jury to the consideration Of negligent homicide of the second degree. His definition of this act narrows the offense to such acts as are committed in violation of the penal laws of the state classed as misdemeanors, and-fails to'include that which would give rise to a civil action'. This discrepancy could not have harmed the appellant. We quote from the court’s charge as follows: “Now bearing in mind the foregoing instructions, you are further instructed that if you believe from the evidence, beyond a reasonable doubt, that on or about the 30th day of November, A.D., 1938, in the County of Orange, State of Texas, the defendant was in the performance of an unlawful act, to-wit: While operating a motor yehicle upon a public road in said county and arriving at intersection thereof with a public Highway, to-wit: State Highway No. 3, failed to stop before driving said automobile upon said Highway #3 and did then and there and thereby fail to yield the right-of-way to the automobile then and there driven by Jerome Burton, if any, on said Highway No. 3 which was then and there approaching said intersection from the right of said R. B. Leavell and did then and there in the performance of said unlawful act, if any, and without any apparent intention to kill, did then and thére by negligence and carelessness collide with the car operated by the said Jerome Burton, if any, whereby the said, Jerome Burton was crushed,: mangled and killed in and by said collision,- and you further find there was apparent danger of causing the death of said Jerome Burton, by such failure to yield the right-of-way to said Jerome Burton, if any, which danger would have been known to the said R. B. Leave'll if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances, you will find the defendant guilty o'f negligent homicide in th'e second degree and asse’ss his punishinent at imprisonment in the ■ county jail not exceeding three years .or by fine not to exceed the sum of three thousand dollars.”

By this charge the court has presented the law as it was enacted by the Legislature. Matters of affirmative defense were also embraced within said charge. Had the complaint, and information in this case failed to allege the unlawful acts of failing to stop and failing to yield the right-of-way, or one of them, it would have been fatally defective. Self v. State, 132 Tex.Cr.R. 234, 104 S.W.2d 16. The allegations of the unlawful acts set forth in the affidavit and information are essential elements to negligent homicide of the second degree without which there would be no basis for the charge. Morgan v. State, 135 Tex.Cr.R. 402, 120 S.W.2d 1063.

We are unable to find the confusion in the information as contended in the appellant’s brief. While there may be some superfluous words, it is clearly and properly alleged that appellant was guilty of negligent homicide of the second degree, i. e., he negligently caused the death of Jerome Burton while he (appellant), was perfdrming an unlawful act, to-wit: failing to yield the right-óf-way to a car approaching from his right. The allegation that he failed to stop at the sign may be a part of the same act, or it may be treated as a surplus allegation.

The other bills of exception in the case do not, in our opinion, require a discussion and are overruled.

The case is affirmed.


text:
    JONES v. STATE.
    No. 20787.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Sam H. Allred, Crawford C. Martin, and Vernon Allred, all of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is' theft of turkeys; the punishment, confinement in the penitentiary for one year.

Vernon Stansberry lost four turkey hens and a gobbler. They were traced to the possession of appellant. A witness for the state testified that shortly after the alleged theft he bought four turkey hens and a gobbler from appellant. After an investigation of the alleged theft had been instituted appellant paid Mr. Stansberry for four turkey hens and a gobbler. There was proof on the part of the state to the effect that appellant had made the statement that he knew the turkeys belonged to Mr. Stansberry at the' time he took them.

Appellant testified that his mother had some turkeys on his place. He said: “There was some turkeys that came there to our place last year, there was four hens and a gobbler. They had been coming there' on our place something like a couple of months. They would come there and fight my mother’s turkeys. They had been doing that for some time. I know what became of those turkeys, I sold them. I sold them in Rio Vista. When I caught the turkeys they were in my yard. * * * I took them away because they were molesting and bothering us. * * * I carried the turkeys to Rio Vista and sold them to Mr. Hall. I got $9.76 for them. I brought the money home and put it in the trunk. That was part of the same money that I paid to Mr. Stansberry.” Appellant testified, further, “I didn’t know whose turkeys they were. They didn’t roost there, I wasn’t out tracking them down to see where they did roost.” We quote further from his testimony: “When I picked those turkeys up off of the yard and carried them to Rio Vista and' sold them I didn’t do it with intent to hurt or harm anybody. I didn’t do it with any intention to sell the turkeys and use the money for my^ own benefit. I didn’t try to harm or injure the turkeys while they were on my place there depredating on my property because I didn’t want to kill some man’s turkeys, and I thought if I taken the turkeys and sold them and some one come along and proved up that the turkeys belonged to him, why I had the money there to pay for the turkeys, the $9.76 I received for the turkeys. It was never my purpose to pick those turkeys up and sell them and use the proceeds for my own use and benefit. I didn’t want to do any man any1 injury by reason of taking the turkeys to Rio Vista and selling them.”

Nowhere in the charge did the court submit an instruction covering appellant’s affirmative defense. Appellant presented to the court two requested instructions, the substance of which was that if appellant, when he took the turkeys, had no fraudulent intent to deprive the owner of the value of such turkeys and to appropriate them to his own use and benefit he should be acquitted. These charges (Nos. 5 and 6) were refused. We think they should have been submitted to the jury, and that the refusal of the court to submit' them constitutes reversible error. In Pyles v. State, 62 Tex.Cr.R. 49, 136 S.W. 464, it was shown that Pyles took some oats from the field of the injured party without his consent. Upon his trial for theft Pyles testified that when he took the oats he intended to pay for them. In holding that the testimony raised an affirmative defense which should have been submitted in the charge of the court, Judge Davidson, speaking for the court, used language as follows:

“The court instructed- the jury that if appellant fraudulently'took the oats, for. the purpose of appropriating to his own use and benefit, the jury should' convict him. Appellant requested three special instructions, the substance of which was that if appellant, when he took the oats, had no fraudulent intent, but took them with a view of paying for the_ same, and the jury so believed,.he was entitled to an acquittal. These charges were refused. The case is submitted to this court on the theory that these charges should have been-given. We are of opinion that his contention is correct. It is not all taking of property that is theft.

“The fraudulent intent must exist at the time of taking, and if this did not exist at that time, the taker would not be guilty of theft. Appellant, we think, had the legal right to have this phase of the testimony submitted to the jury under the instructions requested.”

See also Taylor v. State, 90 Tex.Cr.R. 83, 233 S.W. 846.

We quote from Branch’s Ann.P.C., Sec. 2457, as follows: “If there is evidence that the property was taken without any fraudulent intent the court should charge the jury affirmatively upon this issue.”

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    Ex parte BURTON.
    No. 21022.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.

      Leo Brewster, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

The Governor of the State of Texas issued an extradition warrant directing the return of appellant to the State of California. Appellant secured from the Criminal District Court of Tarrant County a writ of habeas corpus. Upon a hearing the court remanded appellant, from which order this appeal is prosecuted.

No statement of facts is found in the record and we observe nothing in the transcript which challenges the correctness of the remanding order.

The judgment is affirmed.


author: COMBS, Justice. '

text:
    SMITH v. HORN et al.
    No. 3572.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1940.
    Rehearing Denied Feb. 7, 1940.
    E. E. Davis, of Newton, for appellant.
    Minton & Minton, of Hemphill, for appel-lees.
   COMBS, Justice. '

This suit was for recovery of possession of a refrigerator placed in the home of ap-pellee T. J. Horn for demonstration purposes by an agent of appellant. It was alleged that appellee Horn and A. A. Wilson refused to allow removal of the refrigerator. Wilson was also made a party defendant. Both defendants answered by general demurrer and general denial. But upon the trial, the defendant Wilson offered proof to the effect that plaintiff’s agent had, by fraudulent representation, sold a refrigerator to Mrs. Wilson, wife of defendant, and collected therefor $264.50; that when he demanded return of his money the agent promised to leave the refrigerator in the Horn home as additional security for return of the money. The trial court rendered judgment for plaintiff for possession of the refrigerator but conditioned the possession with a requirement that plaintiff first refund to Wilson the $264.50 paid by Mrs. Wilson to appellant’s agent for the refrigerator which she bought.

Opinion.

The judgment is clearly erroneous. Under the pleadings and the evidence appellant is entitled to possession of the refrigerator sued for. Whatever action appellee Wilson has against appellant for fraud must be asserted in a separate suit upon proper aver-ments, either for damages or for rescission and an offer to return the refrigerator purchased by the wife. That cause of action could not properly have been asserted in this suit for repossession of the refrigerator placed by appellant’s agent with appel-lee Horn, even if it had been pleaded.

The judgment of the trial court will be reformed so as to award to appellant possession of the refrigerator sued for, unconditionally. As so reformed, the judgment is affirmed,

Reformed and affirmed. ..


author: PRICE, Chief Justice.

text:
    HANCOCK v. MOORE.
    No. 3878.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1939.
    Rehearing Denied Nov. 2, 1939.
    Moore & Moore, of Paris (W. F. Moore, of Austin, of counsel), for appellant.
    Long & Wortham and E. L. Myers, all of Paris, for appellee.
   PRICE, Chief Justice.

This is an action in trespass to try title originating in the District Court of Lamar County, Texas. The trial was before the court and judgment was in favor of the defendant, hereinafter called defendant, from which appellant, hereinafter called plaintiff, duly perfected her appeal.

The trial court made up and filed, on the request of plaintiff, findings of fact and conclusions of law, which are as follows:

“1.- I find that on-the 10th of-March, 1870, Elizabeth Arthur .was the .owner in fee simple of 327 .acres of land, more or less, in the Bennett T.- Logan survey in Lamar County, Texas.

“The south boundary line of said 327 acre tract of land was the north boundary line of a 500 acre tract of land in the Bennett T. Logan Survey, conveyed to John R. Craddock and W. T. F. Coles by virtue of an execution sale against Bennett T. Logan, January 10, 1845.

. “The patent to the Bennett T. Logan Survey was issued October 22, 1845, at which time its north boundary line fol■lowed the meanderings of Red River as Red River was then situated.

“2. I find that on March 19, 1870, Elizabeth Arthur, by special warranty deed, conveyed to Nannie S. Hancock an undivided one-half interest in the 327 acres of land owned by her in the said Bennett T. Logan Survey, and mentioned in the preceding paragraph hereof.

“The said 327 acre tract of land was located on the north end of the said Bennett T. Logan Survey and its. north boundary line was the north boundary line of the said Bennett T. Logan Survey, and the south boundary line was the north boundary line of the Craddock-.Coles 500 acre tract above referred to.

“3. I find that on February 5, 1880, said Nannie Hancock, joined by he.r husband, G. W. Hancock, by general warranty deed conveyed to Jeff Hancock 125½ acres, more or less, out of the 327 acres of land theretofore owned in common by Nannie Hancock and Elizabeth Arthur. This' 125½ acres so conveyed was the land allotted to Nannie Hancock by a prior partition of the said 327 acres.,of land formerly owned in common by Elizabeth Arthur and Nannie Hancock.

“On the date of the deed from Nannie Hancock and husband to Jeff Hancock, the Elizabeth Arthur-Nannie' Hancock 327 acre tract of land was then bounded on the north ,and also partially on the west, by Red River as said river was then situated on the ground.

“4. The beginning point of the description of‘the said 125½ acres conveyed by Nannie Hancock and "G. W. Hancock to Jeff Hancock on February 5, 1880, and above referred to, was the northwest corner of the Bennett T. Logan Survey on the bank of Red River as the river ran and was located .on that date.

“5. On June 12, 1891, Jeff Hancock and wife, Hattie O. Hancock, executed a general warranty deed to Jackson Becraft to-125½ acres of land of the Bennett T. Logan Survey in Lamar County. The land was described as beginning at a stake on the bank of Red River at the northwest corner of the Bennett T. Logan Survey, and was described as follows :

“ ‘A part of the Bennett T. Logan Hd. Right Survey;

“ ‘Beginning at a stake on the bank of Red River, it being the N. W. corner of said Hd. Right Survey;

“ ‘Thence South with the W. B. line of the said survey '28 poles to a stake;

“ ‘Thence East 144 poles to a stake;

“ ‘Thence North 34 poles to a stake;

“ ‘Thence West 58 poles to a stake;

“ ‘Thence North 25½° Ea'st 202 poles to a stake on the bank of Red River;

“ ‘Thence up said Red River with its meanderings to the place of beginning; containing 125½ acres of land, more or less.’

“6. On .May 9, 1892, Jackson Becraft and wife, Permelia Becraft, executed a general warranty deed to O. S. Casey to-125½ acres of land, more .or less, described as follows:

“ ‘A part of the Bennett T. Logan-Headright Survey;

“ ‘Beginning at a stake on the bank of Red River, it being the N. W. corner of' the Hd. Right "Survey;

“‘Thence South with the W. B. line of the same 28 poles to a stake;

“ ‘Thence East 144 poles to a stake;

“ ‘Thence North 34 poles to a stake;

“‘Thence West 38 poles to a stake;

“ ‘Thence North 23½ East 202 poles to a stake "oil the bank of Red River;

“ ‘Thence up said River with its meanderings to the 'place of beginning, containing 125½ acres of land, more or Íess7

“7. On October 26, 19¾ O. S. Caséy executed a general warranty deed to C. J. Hancock to 125½ acres of land, more or less, described as follows:

“ ‘Part of the B. Ti Logan Survey,

“ ‘Beginning at a stake on the bank of Red River, at its intersection with the W. B. line of the headright survey;

“ ‘Thence- south with said W. B. line 28-poles to a "stáke;

“ ‘Thence east 144 poles, a stake;

‘Thence north 34 poles, a stake;

“ ‘Thence west 58 poles, a stake;

“ ‘Thence north 25½° east 202 poles to a stake on the bank of Red River;

“ ‘Thence up said river with its meanderings to the place of beginning, containing 125½ acres of land, more or less.’

“8. From February 5, 1880 (the date of the deed from Nannie Ha'ncqck and husband, G. W. Hancock, to Jeff Hancock), to 1915, the waters of Red River at intervals washed and overflowed the south bank of said river until the land described in the deed to Jeff Hancock was taken and eroded by the gradual eating away of the south bank of Red River.

“9. In 1915, Red River, by its gradual encroachment upon the land to its south, had eroded and taken away the land on its south bank to the extent that in .said year the south bank of the river in said year was south of the north boundary line of the Craddock and Coles 500.acre tract on the northwest corner thereof.

“10. By the gradual change of Red River and the encroachments thereof upon the land described in the deed from Nannie Hancock and G. W..Hancock to Jeff Hancock (of da,te Feb. 5, 1880), all of the land described in that deed was washed away and taken by the erosive processes of Red River as it gradually changed its course to the south.

“11. Sometime in 1915 Red River began receding to the north, and since that time has gradually receded to the northward to where it now runs a distance of a mile or more north from its place of furthest advance south in the year 1915.

“The movement of the river northward was accompanied by accretions and deposits of the river to the land bordering on its south bank, during the time from the year 1915 to date.

“The land lying between the south bank of Red River as it ran during its furthest advance southward in the year 1915, and the south bank of Red River where it now runs, is land formed by deposits and accretions by the river as it receded gradually to its present location on the ground.

“12. The beginning point of the description of the land conveyed by Nannie Hancock and G. W. Flancock to Jeff Hancock by deed dated February 5, 1880, is not capable of being definitely located on the ground by reason of the various changes'of Red River since the date of said deed. And the exact location of the 125½ acres of land described in said deed cannot be definitely determined. But the south boundary line of the said 125½ acres of land conveyed by Nannie Hancock and G. W. Hancock to Jeff Hancock on February 10, 1880 is somewhere approximately one-fourth of a mile north of the north boundary line of the Craddock and Coles’ 500 acre tract.

“13. C. J. Hancock is dead and the plaintiff, Mrs. Nannie Hancock, is the sole beneficiary under his will and is independent executrix of the estate of said C. J. Hancock.

“Conclusions of Law.

“From the above set out facts I conclude as a matter of law as follows:

“1. That plaintiff did not establish title to the accreted land or' to any part thereof.

“2. That plaintiff did not identify the land sued for.

“3. That plaintiff did not show title to the land described in her petition.

“4. That the Court had no evidence upon which judgment could be rendered in favor of the plaintiff.

“5. That plaintiff should take nothing by reason of this suit.”

Plaintiff excepted to the judgment entered and by assignment of error and proper proposition attacked the ninth paragraph of the Court’s findings of fact, its tenth finding of fact, twelfth finding, and makes various attacks on the Court’s conclusions of law.

Plaintiff’s- first amended original petition' described the land as follows:

“Situated in the County of Lama.r and State of Texas, to-wit:

“A part of the Bennett T. Logan Survey, beginning at a stake on the WB line of said survey at the Northwest corner of a 500 acre tract of land out of said Survey formerly belonging to John R. Craddock and W. T. F. Coles, as shown by deed to them from John W. Smith, Deputy Sheriff of Lamar County, dated October 4, 1844, and recorded in Book A, B & C, page 642, of the Deed Records of Lamar County, Texas, and which beginning point is '28 poles South of the point where the Northwest corner of the Bennett T. Logan Survey bisected the South bank of Red River as it ran, and according to its location on the 5th day of February,' 1880, and which is the date of the deed from G. W. Hancock and wife, Nannie Hancock, to Jeff Hancock, which is recorded in Book 58, Page 185 of the Deed Records of Lamar County, Texas;

“Thence East with the NB line of the said Craddock and Coles 500 acre tract 2376 feet, a stake;

“Thence North 561 feet or 35 poles to a stake ;

“Thence West 957 feet or 58 poles to a stake; •

“Thence North 25 East 3800 feet, a stake in the south bank of Red River;

“Thence up said river as follows: North 56 west 200 feet;. North 70 West 800 feet; North-72 West 612 feet,, a stake in the South bank of said river for the Northwest corner of the tract of land herein described;

“Thence South with the WB line, of the Bennett L. Logan Survey 5755 feet to the place of beginning, containing 260 acres, more or less. And being the same land described in the ■ aforesaid deed from-G. W. Hancock and wife, Nannie Hancock, tó Jeff Hancock with the áddition of the accretions to said land which have accrued on account of the recession of Red River further North from its location as it existed in the year 1880.”

In addition, to the stereotyped allegations^ trespass to try title, various statutes .of limitation were plead on behalf of the plaintiff.

• Defendant’s reply was general demurrer, general denial, plea of not guilty, and specially setting up the various statutes of limitation. Further alleged that instead of the southwest corner of plaintiff’s alleged land . being' the northwest corner of the Craddock-Coles’ land, as alleged by plaintiff, said corner was at the timé of said deed to Jeff' Hancock", dated February 5, 1880, more than 28 poles north of -the said Craddock-Coles’ northwest corner; that by gradual erosion of plaintiff’s said alleged land by Red River-after the date of said deed, all of .said land ■ described in said deed was taken by the river and no land was left belonging to plaintiff at the time Red River began to recede, and no ac-crétions by reason of such recessions belong to plaintiff, or to which plaintiff has claim of title. ■ • ' ■

The land in controversy is part of the Bennett T.- Logan Survey and is a part of the 327-acre tract formerly owned by Elizabeth Arthur, an undivided one-half interest in and to which was conveyed to Nannie S. Hancock by Elizabeth Arthur on March 10, 1870. The description contained in this deed is as follows:

“The undivided one-half of a tract of land situated on Red River, Lamar County, Texas, and being part of the B. S'. Logan H. R. Beginning at the N. W. corner of said Logan’s survey, the same being the N. E. corner of Meredith Hart’s- on the bank of the river one mile :north and ⅛ mile east of the mouth of Bois D’arc. Thence south to the N. W. corner of a. 500 acre tract purchased by Craddock and Coles. Thence east with the north boundary line of said 500 acre tract to the west boundary of a tract of land surveyed by virtue of the H. R. of Dr. Hanslettel Thence north with the line of the same to Red River. Thence west up Red River ■ with its meanders to the place of beginning, containing by estimate in all 327 acres, more or less.”

Thereafter, on the 5th day of February, 1880; Nannie Hancock, joined by her husband; G. W. Hancock, by general warranty deed, conveyed to Jeff Hancock 125 acres, more or less, out of the 327 'acres of land theretofore owned in common1-by Nannie Hancock and Elizabeth Arthur. The • description in this deed is as follows: “Situated in the County of Lamar and. State of Texas: Being a part of the headright survey in the name of Bennett T. Logan, Beginning .at a stake on the bank of Red River it being the N. W. corner of said H. R. survey; Thence south w.ith the W. B. line of the same 28 poles to a stake; thence east 144 poles to a stake; thence north 34 poles to a stake; thence west 58 poles to a stake; thence north 25½ E. 202 poles to a stake on the bank of said river ; thence up said river with its various meanderings to the place of beginning, containing 125½ acres, more or less.”

' The plaintiff - is duly vested with any and all rights and title ■ passing by above mentioned deed.

There was no deed of partition in evidence partitioning as between Elizabeth Arthur and Nannie Hancock of the 327-acre tract which they jointly owned. There evidently was a partition of some character, however.

It will be observed that the beginning point of the description contained in plaintiff’s petition is on the west boundary-line of the Bennett T. Logan Survey at the northwest corner of a 500-acre tract of land out of said Survey formerly belonging to John R. Craddock and W. T. F. Coles, and which beginning point is 28 poles south of the point where the northwest corner of the Bennett T. Logan Sm> vey bisected the south bank of Red River as it ran and according to its location on the 5th dáy of February, 1880.

The 5th day of February, 1880 was the date of the deed from G. W. Hancock and wife, Nannie Hancock, to Jeff Hancock. In this latter deed the beginning point is a stake on the bank of Red River, it being the northwest corner of such headright survey (Logan); thence south with the west boundary line of the same 28 poles to a stake.

J. W. Crook, the County Surveyor of Lamar County, testified on behalf of the plaintiff. He stated that he had recently surveyed, the land twice; that he had assumed that the north boundary line of the Craddock-Coles’ land was the south line of the Hancock land, that is, the land described in' plaintiff’s petition; that it was very difficult to follow the calls contained in the Hancock deed, that is, the deed conveying to Jeff Hancock the 125½ acres, because of the various changes in Red River; that the present location of Red River was not its location February 5, 1880; that the call in. the Hancock deed was not for. the actual northwest corner of the Logan Survey; it was for the northwest corner of what was left of the survey; that that point did not stay fixed on account of the river constantly changing, but meant the northwest corner of what was then there of that portion of the Logan Survey. The witness further stated that the north line of the Craddock-Coles’ land had been located for years and years; that he presumed that the north boundary line of the Craddock-Coles’ land was the south boundary line of the Hancock land; that that was the presumption; that there was no call in the Hancock deed (referring to the deed to Jeff Hancock) for the north boundary of the Craddock-Coles’ land; that it just'said “begins on the River and to go so many poles; that there was no partition deed and there is no way on earth to tell how far the Arthur land goes, because I didn’t have any calls”; that in order to locate the 125-acre tract'it is necessary to determine where Red River was on February 5, 1880.

It is manifest from the testimony of this, witness that unless the first call from the point of beginning in the Hancock deed of February 5, 1880, terminated at the northwest corner of the Craddock-Coles’ 500-acre tract, that the evidence fails to identify the land described in the plaintiff’s petition with the land described in the deed conveying title to plaintiff to the 125%-acre tract. The present location of the point of beginning of the description in these deeds must be deduced from the location of the northwest corner of the 500-acre tract. It cannot be gainsaid that if you ran south 28-poles along the west boundary line of the Logan Survey to a stake, and that stake-was at the northwest corner of the 500-acre tract, that reversing the call and running, north from the northwest corner along the-west boundary line, the location of the beginning point on the river would be established. The difficulty is, however, that the course of the call is along the west boundary line of the Logan Survey, south 28-poles to a stake, and does not call for the northwest corner of the Craddock-Coles’' land for its termination or for any point in the northerly boundary line of that land.. It does not call for any monument, natural or artificial. The location on the ground of the other river points is a matter of inference only. The river is not where it ran. on February 5, 1880. There is nothing on the ground to locate it conclusively.

The deed from Nannie and G. W. Hancock, and practically all the deeds under-which plaintiff claims, is a recognition- of' the fact that there had been a partition of the 327-acre tract, more or less, held by-Elizabeth Arthur and Nannie Hancock in ¡ common.

Defendant offered in evidence a deed' from Ballard M. Reed to Robert Arthur,, dated January 1,- 1915, where the entire 327-acre tract is described and excepting, therefrom, the part partitioned to G. W. and Nannie Hancock. In the deed from. Robert Arthur and wife to defendant Moore, dated November 2, 1918, the description is confined to all' of the land' owned by the grantors in the Bennett T. Logan Survey situated and'lying north of' the 500-acre tr.act once owned by Craddock, .and Coles. ,

The evidence, fails to establish beyond an. issuable fact that under the partition the-.north line of the Craddock-Coles’ 500-acre.-: tract was the southerly line of the land partitioned to Nannie Hancock. In paragraph 12 of the Court’s findings of fact appears the following: “but the south boundary line of the said 125½ acres of land conveyed by Nannie Hancock and G. W. Hancock to Jeff Hancock on February 5, 1880, is somewhere approximately one-fourth of a mile north of the north boundary line of the Craddock and Coles’ 500 acre tract.”

In- order for plaintiff to recover a part of the land sued for it was requisite that the evidence definitely locate and distinguish same. Masterson Irr. Co. v. Foote, Tex.Civ.App., 163 S.W. 642.

The evidence was before the trial court and different conclusions might be reasonably drawn therefrom. The only evidence of the contract of partition and the consummation thereof was by acts of the parties. The acts of the parties at best leave it as an issuable fact whether the call in the deed under which plaintiff claims, same being a necessary link in her chain of title, reached the northwest corner of the Craddock-Coles’ land or just where the southern boundary of plaintiff’s land was located. The finding of the trial court was against the plaintiff on this issue. We cannot say that it was unsustained by the evidence.

The burden was upon plaintiff to apply the description as plead with the description as contained in the deeds under which she claimed. Jones v. Andrews, 62 Tex. 652; Jones v. Andrews, 72 Tex. 5, 9 S.W. 170; Butler v. Brown, 72 Tex. 342, 14 S.W. 136; McDonald v. Downs, 45 Tex. Civ.App. 215, 99 S.W. 892; Long v. Shelton, Tex.Civ.App., 126 S.W. 40; Welles v. Arno Co-Operative Irr. Co., Tex.Civ.App., 177 S.W. 985; Ruth v. Carter-Kelley Lbr. Co., Tex.Civ.App., 286 S.W. 322.

The trial court found that the land “by gradual change of Red River and the encroachments thereof upon the land described in the deed from Nannie Hancock and G. W. Hancock (to Jeff Hancock), of date February 5, 1880, all of the land described in that deed was washed away and taken by the erosive processes of Red River at it gradually changed its course to the south; that in 1915 Red River began receding to the north and since that time hás gradually receded to the northward to where it now runs, a distance of'-a mile or'more north of its place of furthest advance south in the year 1915; that the movement of the river northward was accompanied by accretions and deposits of the river to the land bordering on its south bfink, during the time from the year 1915 to date.” The legal consequence of the above finding as pronounced by the Court was in substance that plaintiff did not establish title to the accreted land. This legal conclusion follows from the fact found. Fulton v. Frandolig, 63 Tex. 330; Manry v. Robison et al. 122 Tex. 213, 56 S.W.2d 438; Wells v. Bailey, 10 A. 565; Wallace v. Driver, 61 Ark. 429, 33 S.W. 641, 31 L.R.A. 317; Widdecombe v. Chiles, 173 Mo. 195, loc. cit. 200, 73 S.W. 444, 61 L.R.A. 309, 96 Am.St.Rep. 507; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382.

These facts as found by the trial court justify the further legal conclusion, under the authorities just above cited, that the land described in the deed from Nannie Hancock and her husband to Jeff Hancock had ceased to exist.

The facts being established as to erosion and accretion, the law is well settled. There is more difficulty in determining the facts as to the processes involved in the changes of a river boundary. If the change. is by erosion and accretion, the process is gradual, and, during its occurrence, imperceptible. By the latter statement is meant that the process is imperceptible, but not the result. If the change in the boundary is by erosion and accretion, the accreted portion becomes a part of the land along the river boundary to which it accreted. On the other hand, if the change in the river boundary is by avulsion, its occurrence is relatively sudden and ordinarily perceptibly visible. A change by avulsion is ineffective to change the boundary of the land involved or to work a legal extinction of the title. A submergence of the land by fioodwaters, of itself, does not constitute an erosion such as to destroy the land, and if the lands subsequently reappear by reliction or accretion, the title is not changed.

It would not have been out of place, in discussing the question as to the identification of the land described in the field notes and the land described in the deeds under which plaintiff claims, to have, discussed the evidence as to the nature and .character of Red River in the location involved. In the question now under consideration such ⅛ discussion will at .least' tend to clarify matters.

It is to be borne in mind that Red River was part of the southerly border of the lands claimed under their deeds by both plaintiff and defendant; that Red River ran along the west side of a portion of the Hancock land. Under the evidence, in the locality involved here, the land is alluvial in character. The banks of the river have constantly changed from the date of the patent to the present time. Here we are primarily concerned with the changes in the river from February 5, 1880, the date of the deed from Nannie Hancock and her husband to Jeff Hancock. The evidence shows, or at least tends to show, that there were numerous changes in the river at this point. There was evidence of a washing away of the southerly bank of the river occurring in 1888, 1890, 1903, 1908 and 1915. These changes in the river all tend to throw the river further south. Further, that during their progress they reached some portions at least of the northerly part of the Craddock-Coles’ land. In 1915 the evidence shows there was a flood. This flood washed out part of the northwest corner of the Craddock-Coles’ land. After 1915 the southerly bank of the river, by accretion, proceeded gradually northward to its present position.

The above facts are not to be taken as to be conclusively established by the evidence, but merely that there was evidence tending to establish same.

The characteristics of Red River have been discussed by the courts. See Sharpe v. Womack, Tex.Civ.App., 73 S.W.2d 1058, 'in which was discussion of the effects of the overflow of 1915. The landthere involved is perhaps in the same general locality of the land here- involved. This case was before the Supreme Court, 127 Tex. 357, 93 S.W.2d 712.

In the Supreme Court the case of Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382, supra, is cited with approval, but on the question of fhe proper apportionment of áccretíons.

Red River was before the Supreme Court of the United States in the' case of Oklahoma v. Texas, 260 U.S. 606, 635, 43 S.Ct. 221, 226, 67 L.Ed. 428, 429. In the course of that opinion Judge Van Devanter said:

“Oklahoma and the United States question the applicability of the doctrine of erosion and accretion-to this river, particularly the part in western Oklahoma, and this because of the rapid and material changes effected during - rises in the river. But we think the habit of this river is so like that of the Missouri in this regard that the ruling relating to the latter in Nebraska v. Iowa, 143 U.S. 359, 368, 12 S. Ct. 396, 399 (36 L.Ed. 186 [190]), is controlling. It was there said [pp. 368, et seq.]: _

“ 'The Missouri river is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. * * * The large volume of water pouring down at the time of these, rises, with the rapidity of its current, has great and rapid action upon the loose soil of its banks. Whenever it impinges with direct attack upon the bank at a bend of the stream, and that bank is of the loose sand obtaining in the valley of the Missouri, it is not strange that the abrasion and washing away is rapid and great. Frequently, where above the loose substratum of sand there is a deposit of comparatively solid soil, the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of .the superstratum of soil into the river; so that it may, in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. * * * No engineering skill is sufficient to say where the earth in the bank, washed away and disintegrating into the river, finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or 50 miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side, and deposit of the same upon the other. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity of the change. caused by the velocity of the current; and this in itself, in the very nature of things, works no change in the principle underlying the rule of law in. respect thereto.

‘Our conclusions are that, notwithstanding the rapidity of the changes in the course of the channel, and the washing from "the one side and onto the other, the law of accretion controls on the Missouri river, as elsewhere, and that not only in respect to the rights of individual landowners,- but also in respect to the boundary lin.es between states.’ ”

The plaintiff relies for part of the land claimed on the process of accretion. The defendant’s theory is- erosion, consummating a complete destruction of plaintiff’s land .and the subsequent accretion to land the title to which was not vested in plaintiff. There is evidence tending to support both the theory of plaintiff and that of defendant. The court gave credence to the testimony of the defendant.

It is our conclusion that the findings of the trial court on the question ■of the failure of the evidence to identify the land as described in plaintiff’s petition with the land described in the deeds under which she claims are amply sustained by the evidence. The findings as to erosion and accretion are sustained by the evidence to the extent that we are unwarranted in disturbing same.

The judgment of the trial court is affirmed.