author: KRUEGER, Judge. GRAVES, Judge.

text:
    FITE v. STATE.
    No. 21026.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Granted May 29, 1940.

      W. Ray Scruggs, of Houston, 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 period of twenty-five years.

The State’s testimony, briefly stated, shows that about 4:30 P. M. of May 14, 1939, the prosecutrix, Isabell Garcia, accompanied by two other Mexican girls, started to walk to Mason Park located in the suburbs of the City of Houston. About the time that they arrived near the park they noticed that appellant was following them with a large knife in his hand. The girls became frightened and ran toward Seventy-Fifth Street, called for help. Appellant pursued them, overtook prosecutrix, knocked her down and commanded her to pull up her dress, remove her underwear and inserted his privates into her privates. That he threatened to cut her head off with the large knife which he held against her throat if she refused to comply with his command. The companions of the prose-cutrix, being more fleet-footed than prose-cutrix, ran away and reported the occurrence to a lady who came along the street in an automobile. This lady immediately telephoned to the police station. In a very short time two policemen appeared, took prosecutrix to the police station and later took her to a physician for examination, who testified that from his examination of her he concluded that she had engaged in an act of sexual intercourse about a day or two prior thereto because he found dead germs. Flowever, there was some evidence that some men are sterile and emit dead 'germs while in the act of intercourse. Appellant did not testify. However, he proved an alibi by his wife and some friends.

From the foregoing brief statement of the salient and pertinent facts proven, it will be noted that an issue of fact was raised which the jury decided adversely to him. Therefore, the trial court did not err in declining to submit to the’ jury appellant’s requested peremptory instruction.

‘Ú

Appellant complains of the court’s action in overruling his second application for a continuance based on the absence of Dr. Mintz, who examined the prosecutrix within an hour or two after the commission of the offense. It appears from the record that the witness testified fully at the habeas corpus trial at the behest of appellant but had since then moved to Chicago, Illinois. However, appellant reproduced the testimony of the witness given at the habeas corpus proceeding. Consequently no reversible error is shown.

By bill of exception No. 1 appellant complains because the court would not permit him to prove by the court reporter that prosecutrix testified at the habeas corpus hearing that defendant told her to take them off (referring to her pants). He asked him if she had not stated that she took them off and the reason she took them off was that she would tear them if she did not take them off. Appellant asserts that he offered this testimony for the impeachment of the prosecutrix and also as original evidence tending to contradict the State’s theory of the case that the prose-cutrix was raped. This bill is deficient in that it fails to state that the testimony of the prosecutrix was materially different from that which she gave at the habeas corpus hearing. A bill of exception, to be sufficient, must bring forward the surrounding facts so as to enable this court to determine from the contents of the bill that an error was committed. See Hicks v. State, 94 Tex.Cr.R. 123, 249 S.W. 844; Gonce v. State, 112 Tex.Cr.R. 191, 14 S. W.2d 845; Williamson v. State, 131 Tex. Cr.R. 459, 99 S.W.2d 606, and authorities there cited. This bill only sets out the testimony given by the witness on the habeas corpus hearing and asserts it was offered to impeach the witness without any showing that there was any discrepancy in her testimony given on the trial and that given by her upon the habeas corpus hearing.

Bills of exception Nos. 2 and 4 show that appellant offered to prove by one Romo that the general reputation of the prosecutrix for chastity was bad. The State objected thereto on the ground that it was irrelevant and immaterial. The objection was sustained and appellant excepted. He contends' that this testimony was admissible; first, as an attack upon the corpus delicti; second, that if she had intercourse with any one on the occasion in question, it was with her consent; and third, as affecting her ■credibility as a witness.

The court qualified the bills and in his qualification states that appellant, on cross-examination, asked prosecutrix if :she was not a common prostitute, to which she replied in the negative. Had the question of consent been raised, then the proffered testimony may have been admissible, but in our opinion, the issue was not raised. The testimony given by all of appellant’s witnesses related to an alibi. Just how this testimony was an attack upon the corpus deliciti is not made clear to us. If it be conceded that she was a prostitute, this would not tend to show that she did not have sexual intercourse with a male person at the time and place in question, nor could appellant discredit her in that manner. If he sought to attack her credibility, he should have pursued the proper legal method. Had appellant admitted'the act of sexual intercourse and raised the issue of consent,, then the testimony would have been admissible as tending to sustain his theory, but such is not the case here. See Ross v. State, 60 Tex.Cr.R. 547, 554 and 555, 132 S.W. 793.

Bill of exception No. 3 is qualified by the court and as thus qualified it fails to reflect reversible error.

By bill of exception No. 5 appellant complains because the court, after the jury had retired to consider their verdict, declined to send to the jury room a photograph of one William Alvin Adkins, which Dorothy Ewing, one of the state’s witnesses, said resembled the man whom' she saw near the scene of the alleged offense but of which she was not sure. That at no time did she say that the man she saw near the scene of the commission of the offense was the person whose picture was exhibited to her for inspection. She was positive, however, that the defendant, whom she pointed out in the court room, was the man whom she saw near the scene of the offense at the time in question, as stated by the court in his qualification of the bill. The only exhibit which the jury carried with them, when they retired, was a map or drawing of the location of the place of the alleged offense, and the various streets leading to Mason Park. The court, however, told appellant if the jury should call for the photograph, he would send it to them. If it should be conceded that the court should have complied with appellant’s request and sent the photograph to the jury, we think the action of the court in this case was harmless error inasmuch as the photograph was offered in evidence, passed to the jury for inspection with the opportunity of observing appellant and comparing his appearance with that of the photograph. Just what useful purpose it might have served or what injury, if any, resulted to appellant from the court’s action is not made to appear from the record.

Bill of exception No. 7 complains in substance of the ruling of the court relating to the same testimony as in hills Nos. 2 and 4. What we have said in disposing of these two hills applies with equal force to this hill. The bill is also qualified by the court and no exception taken to the qualification. Hence, appellant is bound thereby.

Appellant addressed a great number of objections to the court’s charge and requested thirteen special charges, which the court declined to give. His main objection to the court’s charge is that the court failed to instruct the jury on an assault with an intent to commit rape or an aggravated assault. If the evidence had raised the issue, no matter from what source it came, the court should have given an adequate instruction on the law relative thereto, but we confess that we do not find any evidence in the record which raises that issue. If appellant was not at the place at the time of the commission of the offense, he could not any more be guilty of an assault than he was of rape.

Appellant complains because the court declined to submit to the jury his requested instruction on the law relative to the necessary force and her resistance thereto. These special charges are all drawn upon the theory of physical force alone and the necessary physical resistance on the part of the female under such circumstances. This rule has no application to the facts of this case. Here the physical force employed was not so great that she might not have overcome the same by strenuous resistance, but force alone was not the only means resorted to by appellant to accomplish his purpose. He combined force with serious threats to take the life of the prosecutrix with a large knife by cutting her head off if she resisted. He thus dominated her will power to resist. By this means he overcame her power of resistance. Consequently the same utmost physical exertion on her part to prevent sexual intercourse would not be required or expected of her by the law. Appellant cites a number of cases as supporting his contention. We are in accord with the doctrine therein expressed but they have no application to the facts of this particular case.

Appellant next contends that while the court, in his charge, instructed the jury relative to an alibi, he should have, in addition thereto, submitted appellant’s requested instruction on mistaken identity.If the issue was raised by the evidence, then he was entitled to such an instruction, but we fail to find sufficient proof in the record to require the submission of such an instruction. The testimony which appellant contends raises the issue came into the case in this manner: Dorothy Ewing, one of the two American girls who sat on the ground near the road when the three Mexican girls passed them and who were followed by a man, was shown a photograph and asked if that was the man. She replied that the picture resembled him but she wasn’t sure, but it looked like him. However, she positively identified appellant. There is not any testimony in the record that the picture did. not resemble appellant, nor that the man whose picture was exhibited to her was anywhere near the scene of the commission of the offense. So far as this record discloses, he might have been in confinement or in some other country. The fact that two of appellant’s witnesses testified that while returning from a hunt they saw a man at or near Seventy-Fifth Street about 4:30 P. M., who wore a light suit, light felt hat and appeared to be under the influence of intoxicating liquor, would not, in our opinion, be sufficient to raise the issue, because there is not any testimony that appellant was under the influence of intoxicating liquor. Hence, the description is not such as would fit appellant so as to raise a legal presumption that he might have been the culprit who committed the offense.

All other matters urged by appellant as constituting reversible error have been carefully considered by us and deemed to be without merit.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant has filed a lengthy motion for a rehearing herein, and lays down seven propositions as convincing to him at least why we were in error in our original opinion.

The first proposition now presented to us is relative to the trial court’s charge in which he defined “rape, as applied to this case, and as used in this charge,, is the carnal knowledge of a woman, other than the wife of the person having such carnal knowledge, without her consent, obtained by force, threats or fraud.”

It is asserted that the trial court erred in submitting to the jury the issue of fraud, there being no testimony of any kind suggesting such issue.

It is contended that the word “fraud” as used herein is of a restricted meaning, and does not include any and every fraudulent device that could have been practiced upon the person of a woman in order to obtain her consent to a carnal act. That because of its restricted meaning, and also because of the fact that the testimony fails to evidence any fraud of any kind, the trial court was in error in thus defining “rape as applied to this case,” being the carnal knowledge of a female by means of force, threats or fraud. The fraud contemplated by the statute is defined in Article 1186, Penal Code, and consists of the exercise of some stratagem, or the administration of some drug-like substance, etc.

That the mere statement just above quoted as a portion of the trial court’s charge, standing alone, is not error, we may understand, from the reasoning in the Salazar case, Salazar v. State, 55 Tex.Cr.R. 307, 116 S.W. 819. We may also infer, however, from such case that, an absence of fraud being shown in the testimony, it is the duty of the court to not charge thereon, nor to include the same in such charging part to the jury. This the trial court failed to do. We find in his charge to the jury the following: “Therefore, you are instructed that if you believe from the evidence, beyond a reasonable doubt, that the defendant did, as charged in the indictment, on or about the 14th day of May A. D. 1939, in the County of Harris, and State of Texas, make an assault in and upon the said Isabell Garcia, a woman not then and there the wife of the defendant, and did then and there by force, threats and fraud, ravish and have carnal knowledge of her, the said Isabell Garcia, without her consent and against her will, you will find the defendant guilty as charged and assess his punishment at death or confinement in the penitentiary for life, or for any term of years not less than five.”

Appellant strenuously insists that such charge was an error of serious import, and cites us to the early case of Miller v. State, 28 Tex.App. 445, 13 S.W. 646, which holds as follows: “While the indictment charges a burglary by means of force, threats, and fraud, the evidence shows conclusively that the means used was force alone. There is not a particle of evidence that threats and fraud, or either, were used in accomplishing that crime. Notwithstanding such is the case as made by the evidence, the trial judge instructed the jury as to a burglary committed not only by force, but by threats and fraud. This was error, and, having been promptly excepted to by the defendant, requires a reversal of the judgment of conviction. Levine v. State, 22 Tex.App. 683, 3 S.W. 660; Lott v. State, 17 Tex.App. 598; Serio v. State, 22 Tex.App. 633, 3 S.W. 784.”

In the case of Price v. State, 81 Tex.Cr. R. 208, 194 S.W. 827, the accused was indicted for an assault with intent to murder. Upon the trial the court submitted assault to murder and aggravated assault. In defining aggravated assault the court said: “An assault becomes aggravated when committed with premeditated design and by the use of weapons calculated to inflict great bodily injury.” Judge Morrow, in writing thereon, said: “Appellant insists that there was no evidence of premeditated design, and in this we think he is correct. So far as there is any evidence that appellant tried to shoot Gerald, it relates to what happened after appellant received the blow, and the circumstances negative the idea of premeditated design. The charge must be confined to the issues raised by the pleadings and evidence (McMurtry v. State, 38 Tex.Cr.R. 521, 43 S.W; 1010; Parks v. State, 29 Tex.App. 597, 16 S. W. 532; Whitcomb v. State, 30 Tex.App. 269, 17 S.W. 258; Taylor v. State, 17 Tex. App. 46) ; and under this rule the use of the language quoted has frequently resulted in reversals (Kouns v. State, 3 Tex.App. 13; Anderson v. State, 16 Tex.App. 132; McGee v. State, 5 Tex.App. 492; Ferguson v. State, 4 Tex.App. 156). See, also, cases cited in Vernon’s Ann.P.C. art. 1022, p. 575. In these cases the charge complained of has under similar circumstances been declared misleading and harmful.”

In the case of Powell v. State, 60 Tex. Cr.R. 201, 131 S.W. 590, 591, Powell was charged with robbery by assault and by putting the witness Hawkins in fear of life and bodily injury. The trial court copies the statute in his charge, setting forth both means of robbery charged in the indictment. The facts showed that only an assault was used in the perpetration of the robbery; that Hawkins was knocked down and his money taken from him by force No testimony was given relative to the witness being in fear of life or bodily injury. Judge Davidson said in that case: “The court should have confined the consideration of the jury, to the question of assault and violence, inasmuch as there was no testimony showing the old man was put in fear of his life. Upon another trial the charge of the court should be confined to the facts. It should be observed that charges of the court should only submit the law applicable to a state of facts that are pertinent to the allegations in the indictment. The jury is not authorized to convict on any state of facts not charged in the indictment, nor upon a state of facts not in evidence.”

It is our opinion that in the application of the law to the instant facts herein the trial court should not have charged on rape by fraud, there being no evidence under which such a rape could have been predicated.

Appellant’s second proposition contends because of the fact that the prose-cutrix denied to some of her friends the day after the alleged rape" that she was the party raped, that the trial court should have instructed the jury that although they believed that the offense' of rape had been committed, nevertheless they should believe beyond a reasonable doubt that same was committed upon the person of Isabell Garcia, the prosecutrix. We find in the portion of the charge just above quoted that the trial court required the jury to find that such an offense was committed upon the person of Isabell Garcia. We think that such an instruction was sufficient, and do not think there was a confusion of identity to such an extent that the question became a contested one before the jury. It is not every fanciful theory that might arise in biased minds that calls for an explicit instruction thereon, and we think that the above referred to instruction of the court was sufficient under the facts to charge, that the rape, if any, must have been committed upon the person of Isabell Garcia and no other.

Appellant’s third proposition is concerned with the court’s refusal to charge the jury on the question relative to the identity of appellant as the person who committed the offense. There may be some facts in this case that called for such a charge, although we are not greatly impressed with their-cogency. The suggestion is herein made, however, that in an excess of caution, in the event of another trial hereof, such a charge should be given. We do not think the charge on alibi fully covers the proposition that another person than the appellant committed the offense. In Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573, w.e find a charge relative to identity that was upheld by this court. Also see Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166.

As a fourth proposition appellant urges that the court should have submitted to the jury in its charge the issue of assault with intent to rape, as well as that of aggravated assault, and as a ground therefor he offers the testimony Of the witness to whom it was alleged the prosecu-trix said, on the day following this alleged occurrence, that the person raped was not her (prosecutrix) but some American girl, as well as many other claimed discrepancies in the testimony.

Appellant vigorously insists that we were in error in our holding in the original opinion wherein we held that this offense was either rape or nothing. We acknowledge that we are of the same opinion still. The prosecutrix testified that her female organ was penetrated by appellant’s male organ, and we find no denial thereof in the record on the part of anyone. The circumstances set forth as contradictory of prose-cutrix’s testimony, if looked upon as destructive of her testimony, would operate to tear down the whole structure and say there was nothing done at the alleged scene of this attack; they would not say that appellant’s male organ failed in ah ultimate purpose Of penetrating her body; they would not say that he indecently fondled her body, nor that he, an adult male, struck a female. These matters were but preliminary and incidental to a rape upon her bo'dy, and a penetration thereof, if true; if false, then the whole fabric of the State’s case is destroyed, and the elements that went to make up the whole case fall. Under the proven facts appellant is either guilty of rape or nothing, and under the doctrine of cases cited hereto these lesser offenses should not have been charged upon. See Dies v. State, 56 Tex.Cr.R. 32, 117, S.W. 979-981. It is to be noted that all of appellant’s efforts herein were directed to making proof that he was not the person who committed this alleged rape; that he was at another and different place when same occurred; that another man commit? ted this offense, if any, and that such offense never occurred. Never did he attempt to show that this woman’s body was not penetrated, nor did he attempt to show any indecent fondling or striking; he only claimed that it did not happen, and that if it did happen, then he was not the guilty party. We do not think the evidence as here presented to us raised the question of a lesser offense. See Fowler v. State, 66 Tex.Cr.R. 500, 148 S.W. 576.

While we are not greatly impressed with the matter raised relative to the statement of prosecutrix made on the habeas corpus hearing relative to why she took off her pants at the time of the alleged rape, we think that in the event of a new trial such testimony, if contradictory of that given on the trial, would be admissible.

Appellant’s sixth proposition relative to an attempt to show that prose-cutrix bore the reputation of a prostitute was properly excluded, and was properly treated in our' original opinion. A prostitute is capable of being the subject of rape, and unless consent vel non is made an issue, the matter of prosecutrix’s chastity can not be inquired into. We note herein that the matter of prosecutrix’s consent to the act was not in any way advanced by the proof herein. We quote from 35 Tex.Jur., p. 840, Sec. 53: “Where the consent of the prosecutrix is an issue in the case, her general reputation for un-chastity may be shown, for such evidence has a tendency to weaken the State’s claim of non-consent, or, as has been said, such evidence is admissible for the purpose of raising the presumption that the prosecu-trix yielded'her consent, and was not in fact forced. ‘And this presumption, it is said, will be stronger or weaker according to the degree of prostitution or degradation established by the evidence.’ But where consent is not an issue, evidence bearing on the prosecutrix’s reputation for unchastity is not admissible.”

The proposition relative to the picture of one Adkins not being sent into the jury room as an exhibit is the basis of appellant’s seventh proposition. It will be noticed from the testimony of the little girl who was shown this picture of'a man supposedly a stranger to this offense, that she said: “From the picture you show me, I think this picture (evidently of Adkins), resembles the man I saw there.. * * ⅜ I say this picture resembles him, I wouldn’t be sure, it looks like him.” We find naught in the record to show that her statement was not true, or that such picture did not resemble the appellant. She did testify, however, positively that appellant was the man that she saw at the scene of the alleged rape. The court qualifies this bill No. 5 -by saying that he would send the picture out of the jury in their room, if they called for same, but they had all seen it when it was introduced.

We see no error herein evidenced. If the court sent all exhibits introduced in many cases to the jury room, this matter might have some importance, but no serious error could evidence itself by a failure to send the exhibits to a jury room with the jury, especially when not requested so to do by the jury. They saw the picture and examined same when introduced, and a further examination does not seem to us to be necessary unless demanded by them.

For the error relative to the charge on a rape by fraud, the motion for a rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    Ex parte CLARK.
    No. 21176.
    Court of Criminal Appeals of Texas.
    May 29, 1940.

      G. Ray Lee and Margaret A. Brand, both of Dallas, for appellant.
    H. P. Kucera, City Atty., and W. B. Pope, Asst. City Atty., both of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Relator appeals from a judgment of the County Criminal Court of Dallas County, remanding him to the custody of the Chief of Police of the city of- Dallas; Texas, under a complaint charging a violation of ordinance No. 3003 of said city, commonly called the Fireworks Sale Ordinance.

This ordinance, in effect, prohibits, among other things, the sale, or offering for sale, or possession for the purpose of sale, of any combustible fireworks of any kind in the city of Dallas, Texas. There are some exceptions contained therein, but in the main its purpose is claimed to be based on the city’s police power in avoidance of fire hazards. Relator’s attorneys agree that the city has the power to pass a reasonable ordinance regulating the use, sale and storage of combustible fireworks in the city, but contend that this ordinance is prohibitory of the business of the sale of fireworks, and therefore is unreasonable, arbitrary and discriminatory, and violates his constitutional rights, and is therefore void.

We are cited by relator to 30 Tex. Jur., p. 120, Sec. 58, and find ourselves in accord therewith in its entirety. We quote the same in part as follows:

“Generally speaking, municipal corporations 'have the right, under the police power, to safeguard the health, comfort, and general welfare of their citizens by such reasonable regulations as are necessary for that purpose.

“The police power is not an arbitrary one; it has its limitations. Thus it is subject to the limitations imposed by -the Constitution upon every power of government, and will not be permitted to invade or impair the fundamental liberties of the citizen. Also it is founded in public necessity and only public necessity can justify its exercise. It is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The interests of the public generally, as distinguished from those of a particular class, must require the interference.

“All property is held subject to the valid exercise of the police power; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of ' such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such loss as is occasioned by the proper exercise of the police power. But the police power is subordinate to the right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody. It may be invoked to abridge the right of the citizen to use his private property when such use will endanger public health, safety, comfort or welfare, — and only when this situation arises.”

It is conceded that the regulation of the use of fireworks in a city the size of Dallas, where homes as well as business houses lie in close proximity to each other, is a legitimate exercise of the police power, but relator’s quarrel with this ordinance is that same is not regulatory but prohibitory, and therefore infringes upon his rights and deprives him of them as guaranteed him of his property privileges and immunities otherwise than by the due course of the law of the land.

Relator contends that none of the articles that he is charged with selling are harmful, he being charged with the sale of 1 dozen Cabin on fire, 1 dozen 10 Ball candles, 2 dozen sky rockets, crackers, etc. The combustibility of such thus charged articles, and their designation as such fireworks, was not denied. Their danger as a fire hazard not only to property, but also to persons, was also shown. The fire chief testified to a series of fires through the years as having been caused by the use of fireworks, and the amount of damage to property therefrom, and the health physician also testified to many injuries to persons from burns, etc., from such use.

Relator again contends that although it is granted that the firing of such prohibited articles might cause a fire hazard, nevertheless the city had no right to prohibit the possession for the purpose of sale. We are not impressed with such reasoning. It were the better policy to lock the door before the horse was taken rather than to wait to do the locking after the horse was gone. It were better to guard against the fire by prohibiting the sale of the fire producing agency before the fire is set. To some extent we find this portion of the ordinance on an equality with the local option feature of the liquor statutes in which it can be made an offense not only to sell intoxicating liquors in a certain locality, but also an offense to possess such liquor for the purpose of sale.

A further complaint is made because of the fact that said ordinance provides that under certain circumstances and in certain public demonstrations the fire chief of said city may give permission for a fireworks display under police and fire department supervision, but such a display shall be of such a character and so located that in the opinion of the fire department same shall not be hazardous to property nor dangerous to any person.

The city charter of Dallas provides: “that the City of Dallas may adopt any ordinance or regulation having for its purpose the prevention of fires or the removal of fire hazards * * * may define, prohibit, abate, suppress and prevent all things detrimental to the health,, morals, comfort, safety, convenience and welfare of the inhabitants of the city * *

And further provides: “May pass such ordinances as may be expedient for maintaining and promoting the peace, good government and welfare of the City, for the performance of the functions thereof, for the order and security of its inhabitants and to protect the peace, lives, health and property of such inhabitants, and may provide suitable penalties for the violation of any ordinance enacted by the City of Dallas.”

It occurs to us that under the powers above granted to the city of Dallas it can define, prohibit, abate or suppress the traffic in combustible fireworks, governed always by the rules of reason, and the exception, classification, or exclusion under certain well-supervised exhibitions does not seem to us to vitiate this ordinance which seems vital to the welfare and safety of the persons and property of the people of this great city. The fact that the power of allowing such exhibitions lies in a permit to be granted by a certain officer of such city would surely not cause the whole ordinance to fall, if such delegation of power were illegal, although it might cause the exception to fall should we grant relator’s contention that such delegation was unlawful, which we decline to do.

The complaint is vigorously urged that right to grant or refuse the right to have such exhibitions of fireworks in said city being subject to the arbitrary will and caprice of the thief of the fire department, and no rules being laid down for the exercise of this permissive right, that such a grant of power renders this entire ordinance void. We think that an answer to such reasoning is that relator has naught to do with such a requested exhibition, nor could the granting, nor a refusal thereof, affect his business, which is that of a retail seller of combustible fireworks, while the exhibition is concerned only with the portion of the ordinance that prohibits the firing of such máterials in the city of Dallas.

Again relator attacks such ordinance as discriminatory because it exempts from its provisions railroad flares and certain flashlight materials, the former evidently useful in the operation of railroads, and the latter also useful in photographic work. That such reasonable classifications can be made we recently held in Ex parte Tigner, Tex.Cr.App.,. 132 S.W.2d 88S, in a well-considered opinion by Judge Christian, and the reasoning therein was upheld by the Supreme Court of the United States, Tigner v. State, 60 S.Ct. 471, 879, 84'L.Ed.-. We think this classification and exception is a reasonable one that exempts from said ordinance these useful and less dangerous articles, possibly not dangerous at all as fire hazards. Not only do we note from the testimony, but it is also a matter of common knowledge that the combustion of fireworks, especially in the confines of a crowded city, is dangerous not only to property but also to persons, and results annually in a loss of property and sometimes in a loss of life. The State itself has seen fit to prohibit the use of certain fireworks. Art. 480, P.C., reads in part as follows: “Any person who * * * discharges any cannon cracker or torpedo on or across any public square, street or alley of any town or city or within one hundred yards of any business house in this State shall be fined,” etc., “a ‘cannon cracker’ is any combustible package more than two inches long and more than one inch through.”

In the case of Chappell v. City of Birmingham, 236 Ala. 363, 181 So. 906, 907, the Supreme Court of Alabama upheld an ordinance similar in its effect to the one here in question as a valid exercise of the police power not only upon the basis of its reason for enactment, but also upon its exceptions, which to some extent are strikingly alike this ordinance 3003. We quote therefrom:

“In the instant case the prohibitive provisions apply to all alike, except to persons possessing or using signaling devices for current daily consumption by railroads, vessels and others requiring them for signaling purposes.

“The basis of this classification is founded on reasonable distinctions having just relation to the. objects to be accomplished by the ordinance. Board of Commissioners of City of Mobile et al. v. Orr, supra [181 Ala. 308, 61 So. 920, 45 L.R.A., N.S., 575],

“In the exertion and application of the police power there is to be observed the sound distinction as to useful and harmless trades, occupations and businesses and as to businesses, occupations and trades recognized as hurtful to public morals, public safety, productive of disorder or injurious to public good. In applying it to the class last mentioned it may be exerted to destroy. Western Union Telegraph Co. v. City of Decatur, 16 Ala.App. 679, 81 So. 199; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am. St.Rep. 43; Tiedeman’s Limitations of Police Power, 273, 277, 278.

“It is a matter of common knowledge, of which the courts take notice, that the press at large, and especially health and medical journals, have for years agitated the prohibition of the sale and use of fireworks in pyrotechnical display in the celebrations of holidays, for sound reasons; also matters of common knowledge, that such indiscriminate use results in economic waste, encourages extravagance in the young, constitutes a menace to the life, limb and health to the users and their associates, increases the hazard and loss by fires, and constitutes a common public nuisance, which should be prohibited by law.”

It is axiomatic that fire creates fire, and that although of great benefit to man, when uncontrolled is destructive of both life and property; that the use of certain fireworks in the environs of a crowded city can be and has been prohibited by a state statute is evident, and is recognized as a salutary provision in behalf of the safety of the public. Under its charter granted powers, the city of Dallas has seen fit to utilize the same powers' as were used by the legislature and endeavor to remove the ability of one to thus use certain fireworks unlawfully by prohibiting their sale within its environs for the purpose of being used therein. We think this a proper exercise of its police power in thus attempting to safeguard the security, the peace, the lives, the health and the property of its inhabitants.

We.acknowledge the aid and assistance of relator’s attorneys as well as those of the city of Dallas in furnishing this court with comprehensive briefs herein.

Believing that ordinance No. 3003 is a valid and reasonable exercise of the police power vested in the city of Dallas, the judgment of the trial court is affirmed.


author: BEAUCHAMP, Judge.

text:
    RODRIGUEZ v. STATE.
    No. 21175.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Jake Jay Reich, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the County Court at Law No. 2 of Bexar County on a charge of aggravated assault and given a penalty of one year in the county jail upon the verdict of a jury.

We have examined the record in the case and the proceedings appear to he in all respects regular. We find no statement of facts and no hills of exception presenting any matter for the consideration of this court.

The judgment of the trial court is affirmed.


text:
    MILLER v. STATE.
    No. 20982.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    J. Mitch Johnson and Walter E. Gates, both of San Saha, for appellant.
    G. A. Walters, Co. Atty., of San Saba, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a jury of the unlawful possession of whisky for the purpose of sale, and under an allegation of a prior like offense he was fined the sum of $200.

Complaint is made relative to the introduction of a carbon copy of the affidavit and search warrant authorizing the search of appellant’s premises. Secondary evidence, we think, was admissible where it was shown that the original had been lost and after diligent search could not be found, in order to show execution, the presence and the contents of such an instrument.

On account of the matters set forth in bill of exceptions No. 7 we predicate a reversal of this case.

In the complaint and information the instant offense is alleged, and for the purpose of enhancing the punishment we find a further allegation that appellant had been convicted on May 22, 1939, in the same county court, in cause No. 1769 for an offense of like character.

It is shown by the record that on the day prior to this trial this same defendant had been tried for a similar offense," and for the purpose of an enhancement of the punishment this same additional cause No. 1769, of date May 22, 1939,' had been in-, troduced and used for the purpose of enhancing the penalty in that case. A former case of like character can be successfully used for enhancement purposes but once. We have heretofore held in the case of Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570, 571, that: “It is furthermore urged that these three same offenses were used in Nos. 26,836 and 26,837 in order to enhance the punishment against appellant; that is, said cases were used not only to enhance appellant’s punishment in the case on trial, but had previously been used in the two preceding cases. An inspection of the record sustains this contention. Evidently it was never intended that prior offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once.”

Also see the late case of Cothren v. State, Tex.Cr.App., 140 S.W.2d 860, decided May 22, 1940, not yet reported [in State Reports].

It is noticed that the jury responded to the court’s charge thereon and gave appellant double the lowest fine. See Art. 61, P.C.

On account of the use herein for enhancement of punishment of cause No. 1769, which had theretofore been used for such purpose, this judgment is reversed and the cause remanded.


text:
    COTHREN v. STATE.
    No. 20984.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    G. A. Walters, Co. Atty., of San Saba, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County-Court of San Saba County for violation of the liquor laws and was fined $300 by a jury verdict. From the judgment based on this verdict he appeals.

It is alleged in the information in the case that appellant sold one pint of whiskey and three cans of beer to John M. Henderson. It is further alleged that he was convicted in Cause No. 1744 in the County Court of San Saba County on November 30, 1938, of a similar offense and upon this allegation and proof of conviction and final judgment the court submitted the evidence to the jury for the purpose of enabling them to enhance the penalty.

It is shown by bill of exception number one that on a previous day appellant had been convicted of another sale of whiskey and that the complaint and information contained a clause alleging the same sale, conviction and final judgment in Cause No. 1744, San Saba County, on November 30, 1938, and the prosecution obtained against appellant an enhanced penalty because of this same former conviction. The submission of this evidence to the jury was timely objected to and here presented as error.

The same conviction cannot be twice used for the purpose of enhancing a penalty. This has been so frequently held by this court and in recent cases that we do not consider it necessary to here discuss the matter or cite authorities.

The other errors complained of will probably not arise upon another trial and for that reason are not considered.

The judgment of the trial court is reversed and remanded for a new trial.


author: SPEER, Justice.

text:
    STATE v. DAVIS et al.
    No. 14088.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1940.
    Rehearing Denied June 7, 1940.
    Ned McDaniel, of Wichita Falls, for appellant.
    W. E. Fitzgerald, of Wichita Falls, for appellees.
   SPEER, Justice.

The State of Texas sought to condemn a strip of land 100 feet wide through the 120 acre farm of George T. Davis, situated near Iowa Park, in Wichita County, Texas. The Federal Land Bank of Houston held a lien on the land and was made a party defendant. The controversy involves objections filed by defendants to the award of damages assessed by the Board of Special Commissioners appointed by the county judge, under Article 3265, R.C.S.

A jury trial was had on special issues. The verdict was favorable to defendants and the State has appealed.

The .form of the special issues submitted is as prescribed by the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, and no complaint is made of the issues, except as hereinafter indicated.

There are three propositions presented by plaintiff (the State) upon which reversal is requested. The first is, in substance, that the court erred in refusing to permit plaintiff to offer testimony that the construction of a modern concrete highway would enhance the value of the residue of defendants’ land in sufficient amount to overcome the losses sustained by them by reason of additional fences and any inconveniences that might follow on account of the location of the road.

The defendants’ pleadings show that their lands consist of a farm containing 120 acres in the general shape of an inverted “L”; better described as being all of a 160 acre square block excepting the southwest quarter. The east 80 acres are cultivating lands and the west 40 are in pasture; the improvements are located in the extreme southeast corner; the dwelling house faces east. A graded dirt road leads from the residence east 600 or 700 feet to a graveled road, which extends south about 1000 feet to the old concrete highway. The right-of-way across defendants’ farm is 100 feet wide, enters about 450 feet west of the southeast corner, extends in a northwesterly direction, cutting 8.3 acres of cultivating land off from the remainder and passes out over 600 feet north of their most Western southwest corner, leaving 6.3 acres of pasture land south of the road. The new highway is located about 400 feet to the rear of the residence. Defendants claim damages to the residue of their property, by reason of the lessened size of their farm, as a whole, after deducting the appropriated highway and the smaller tracts cut off to its south, also the location of the highway at the rear of the improvements and the inaccessibility and inconvenience caused to the 8.3 acres of cultivating and the 6.9 acres of pasture lands, all contributing to a lessened market value of the property.

Replying to defendants’ allegations of damages, more especially to those alleged to the residue, the State plead that the location and construction of the concrete road 32 feet in width would be an advantage to the premises and enhance its value, rather than lessen it.

It is very difficult to present here a fair resume of the testimony and the identical questions complained of by the State for the reason the controversy covers 25 or more pages of the Statement of Facts before us. Also much of the record is consumed by questions and answers which réfer to “this” and “that” tract, doubtless shown on a plat in the record. The State offered the witness K. P. Abernathy. He testified that to assume that a highway was built as indicated by the plat, the market values of “this” and “that” land would not be changed, because they have a good road already. If the testimony meant that the land designated was the residue after appropriating the highway, then the State could not complain because it produced the evidence. Another inquiry made by the State of the witness was this:

“Question: * * * Would there be any demand for that piece of land on the market for any purpose other than farming — say for a filling station?” (The Court sustained an objection to the form of the question, and added, “but will permit ■ the proof on the present market value.”)

The witness then qualified to testify as to values of lands other than farm lands located along the highway, and being asked the market value of the 8.3 acres (cut off from the farm by the highway), said that his answer would only be an opinion and he would rather not give it. He was then excused.

We think no error is shown in the rulings of the court in connection with the evidence tendered. The question asked was sufficient to ascertain if the segregated tract had a market value for some other purpose than farming, such as that of a filling station, resulting from the location of the proposed highway. This, if proven and the course of inquiry pursued, may or may not have shown an increased value which would have been peculiar and special to the defendants, and not such a benefit as was common to the community. It appears, however, that no ruling of the court prevented the introduction of that evidence, and moreover the State’s witness hesitated to give his opinion and he was not asked to do so.

Ed McGrath testified at the instance of defendants concerning market values before and after the appropriation of the right-of-way strip. The State’s right to cross-examine him relative to matters about which it had attempted to examine the witness Abernathy is embraced in the proposition under discussion. He was asked by the State:

“Question: Considering the fact he’s (defendants) got a highway coming in here, good road, solid road into his farm, and all of this is accessible and usable, the value of this piece of land wouldn’t be changed, would it?”

Objection was made that the benefits inquired about were common to all persons adjacent to the highway, and sustained by the court in this language:

“Court: I will sustain the objection to the question in the form it is asked. I will let him testify to the value of the land on the north.”

Exception was taken to the ruling of the court and a request made that the bill of exception should show that the ‘.‘witnesses are not allowed to take into consideration the fact that the highway comes in or adjoins or is adjacent to the land, in determining the market value after the highway is put in.”

“Court: I will give you the bill on that. At the same time I will give you the right to ask the witness about any peculiar benefit to him by the highway or any peculiar disadvantage to the land by the highway, not common to the general community.”

Counsel for the State then asked the witness if the location of the highway was of any particular benefit to the land, and the witness replied that he did not think so.

If we properly understand the contention of the State in this case, it is that as against defendants’ claim for damages to the remainder of their land not taken for highway purposes, the condemnor has a right to off-set such damages by evidence that the location of the highway upon and necessarily adjacent to the owner’s land on both sides, is an advantage to the owner and thereby enhances the market value of the lands. The Court overruled the contention upon the grounds that if the location of the highway did enhance the value of the remainder, it was common to the community or to those similarly situated and not recoverable in off-set by the condemnor; but that any enhancement of values by reason of special or peculiar benefits to the owner could be considered by the jury in off-set against damages claimed.

We think the trial court properly construed the rule in such cases as this. State’s counsel depends largely upon the holding in the case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201. We have carefully studied that opinion and find that it is devoted to a discussion of the nature of damages which can be recovered by a condemnee to the remainder of his lands not appropriated, and to the manner in which the issues should be submitted to the jury. The very definite rule announced in that case is that a condemnee’s recovery for damages to the remainder of his land must be based upon the difference in the market value immediately before and immediately after the appropriation. After discussing elements of damages entering into a condemnee’s damages, this is said of condemnor’s right of off-set: “It is of course settled that enhancement in market value of the residue of the land by reason of ‘special benefits’ is a legitimate offset to damages thereto, but not to the value of the part actually taken. The statute has not defined ‘special benefits.’ It has only undertaken to define community benefits and negatively authorizes all other benefits to be taken into account. A finding as to market value would include such benefits, and should do so. It.should not include, however, value because of community benefits, and for this reason we have concluded that provision should be made in the charge for excluding such benefits.” For the reasons stated, the court in that case proposed a proper issue to be submitted in such cases. It reads: “Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use, and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ tract of land immediately after the taking of the strip condemned for highway purposes?” The trial court in the instant case copied and submitted the above suggested issue.

It will be observed that the State’s complaint here is that the trial court would not permit it to prove that the location of the highway through and adjacent to defendants’ land would prove a certain

'benefit to them, by which the "State hoped to off-set damages claimed to the remainder. The location of the highway certainly was a benefit to the whole community, common to everybody in that vicinity, and more especially to those close to it, as was defendants’ land. There is testimony in this record, however, which tends to show_ that such close proximity is a detriment produced by hazards of heavy traffic. It seems that the question of what are and what are not community benefits, and special or peculiar benefits, has been discussed many times by our courts. We think it can safely be said, as- applicable to the case at bar, that the State could off-set damages to the remainder of the land by any provable advantages or enhanced values which were special and peculiar to defendants and not common to the public. The converse of this is likewise true, that such damages could not be off-set by advantages and enhanced values that came to the community because of the road. In the interest of brevity, we cite 16 Tex.Jur., sects. 330, 331 and 332, Eminent Domain. The bill of exception in this case shows conclusively that the court only excluded condemnor’s evidence of community benefits, and qualified the bill by saying that plaintiff would be permitted to show, if it could, any peculiar and special benefits to defendants’ property. We see no error in the court’s ruling, and the proposition is overruled.

'The State urges three propositions as against the first Special Issue and its answer. The issue reads: “From a preponderance of the evidence, what do you find was the market value of the strip of land condemned by the State for highway purposes at the time it was condemned, considered as severed land?” The answer was, “$37.50 per acre.”

It is contended by second and third propositions, which we shall treat as one, that the issue was improper because there was no evidence upon which to base an answer thereto, since none of the evidence was confined to its value as severed land. It is unquestionably true that in arriving at the value of the strip appropriated, it must be determined independently of the value of the remainder which may have a greater or lesser value per acre for obvious reasons; such as a greater or lesser degree of fertility, contour, state of cultivation and improvements. To do otherwise would afford what might be termed a double recovery. The improvements on the whole give an additional value to each acre from what it would be if there were no improvements. The double recovery is complained of in the fourth proposition and all are briefed as presenting one error, adequately assigned, however.

We see no such error presented here as to require a reversal of the case. In the first place, no objection was made by the State to the evidence of values of the condemned strip when offered, and no request was made that the testimony be limited to a value as if severed from the remainder. In the next place, the fact that the jury fixed the market value of the strip taken at $37.50 per acre the same as some of the witnesses gave as the value per acre of the whole tract, does not mean that the verdict necessarily reflects a failure to ‘consider the values as severed land, as the issue inquired. The presumption prevails that the jury observed the court’s charge unless the contrary appears. The various witnesses estimated the market value of the whole, before the appropriation at from $35, the lowest, to $50, the highest, per acre. The cultivating land was shown to be most valuable. The record shows that 3.01 acres of cultivating and 2.56 acres of pasture land were taken and the jury found that the 5.57 acres in the strip was worth $37.50 per acre. No request was made that the court submit separate issues inquiring as to the value of the two types of land so taken, nor do we think such was necessary; the answer as made does not reflect that the jury did anything other than as requested in'the special issue, that is, to determine the value, as if it was severed from the remainder. This being done, no double recovery was had.

There is no error in the judgment entered, and it should be affirmed. It is so ordered.


author: FUNDERBURK, Justice.

text:
    TIPTON et al. v. TIPTON et al.
    No. 2006.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1940.
    Rehearing Denied May 31, 1940.

      Blanton & Blanton and Thomas L. Blan-ton, all of Albany, for appellants.
    Jack W. Frost, of Eastland, for appel-lees.
   FUNDERBURK, Justice.

Carrie Ella Tipton, joined pro forma by her husband, A. P. Tipton, the appellants herein, were the plaintiffs below. Josephine Tipton, a minor, and four other minor children of Carrie Ella Tipton, were the defendants. After suit Josephine Tipton married J. H. Latson, Jr., and, joined pro forma by her husband, answered in her own right. Jack W. Frost was appointed guardian ad litem of the defendants. At the time of trial said guardian ad litem .appeared only for the minor defendants, other than Josephine Tipton Latson.

The purpose of the suit was to cancel a deed executed by the plaintiff to the' defendants on April 6, 1936, by which the former conveyed to the latter certain real properties at the time constituting separate property of Carrie Ella Tipton.

The grounds upon which cancellation were sought were (1) threats by persons other than the defendants, constituting duress, inducing the execution of the deed, without consideration; (2) in the alternative, mental incapacity to execute such deed as a valid conveyance.

In a jury trial three issues were submitted, the verdict thereon being to the effect that (1) at the time of the execution of said deed Carrie Ella Tipton understood the nature of such deed and the effect of her executing the same; (2) that at or prior to the time of the execution of said deed, on April 6, 1936, John I. Chesley (brother) did not tell Carrie Ella Tipton that unless she executed such deed he would send her to an insane asylum and her children to an orphans’ home; (3) that Carrie Ella Tipton did not sign and acknowledge the deed in question, of date April 6, 1936, wholly through fear that she would be sent to the insane asylum and her children to an orphans’ home, unless she executed such deed.

It is from the judgment rendered in accordance with said verdict, denying a cancellation of the deed, that the plaintiffs have appealed.

The judgment denying a cancellation of the deed was not' erroneous insofar as cancellation was sought on the ground of mental incapacity'of Carrie Ella Tipton to execute the deed. It was not established, as a matter of law, that she was without sufficient mental capacity, since she was adjudged to have been restored to sanity on the same day the deed was executed, namely, April 6, 1936. It is immaterial that the deed was executed a few minutes before the judgment of the court was declared. In such a case the law takes no notice of the fractions of a day. The judgment, we think, was operative throughout the whole day of said April 6, 1936. O’Connor v. Towns, 1 Tex. 107; 41 Tex.Jur. 345, § 5; 62 C.J. p. 982; Dallas County v. Reynolds, Tex.Civ.App., 199 S.W. 702.

Further, the affidavit of restoration to sanity, which initiated the proceeding and invoked the jurisdiction of the court to declare Carrie Ella Tipton restored to sanity, was filed March 11, 1936. The affidavit was in accordance with law and to the effect that Carrie Ella Tipton “has been restored to her right mind and is now a person of sound mind.” (Italics ours.) R.S. 1925, Arts. 4282 to 4284, Vernon’s Ann. Civ. St. Arts. 4282 to 4284, inclusive. We think the judgment of restoration to sanity although rendered April 6, 1936, was effective from the date of filing of the affidavit on March 11, 1936..

There was no evidence tending to show that Carrie Ella Tipton had not been restored to sanity at the time of the execution of the deed. It is true an issue was submitted upon that question, the finding upon which was to the effect that she was not then of unsound mind.

The judgment of restoration to sanity immediately suspended the powers of the guardian to represent the estate. For all purposes material to this suit the judgment effectively ended the guardianship. It is immaterial that the formal order declaring the guardian discharged came later. R.S. 1925, Art. 4296; Files v. Buie, 131 Tex. 19, 112 S.W.2d 714; Pure Oil Co. v. Clark, Tex.Civ.App., 37 S.W.2d 1088; Green v. Marsters, Tex.Civ.App., 79 S.W.2d 184; Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427.

If the issue of duress was raised by any of the evidence it was determined against appellants by the jury’s verdict upon special issues Nos. 2 and 3. All propositions are, therefore, overruled by which it is, in effect, contended that the court erred in not granting appellants judgment on that ground.

The uncontroverted evidence did not, as contended by appellants, show that legal title to the property was in the guardian. The pendency of a guardianship proceeding does not divest legal title out of the ward, or vest same in the guardian.

The uncontroverted evidence did not show, as further contended by the appellants, that the conveyance sought to be canceled was without consideration. Even if so, however, the fact is of no conclusive importance. If it be granted that there was no valuable consideration the relation of the parties under the circumstances was such, in the absence of consideration, sufficient to show a gift. “Had the deed been a pure gift, it could not have been undone on the ground of want of consideration.” Newman v. Newman, Tex.Civ.App., 86 S.W. 635, 637; Lott v. Kaiser, 61 Tex. 665; 7 Tex.Jur. p. 937.

There was no Occasion for the court to give a definition of the terms “duress” or “undue influence” since neither term was used in the statement of any of the special issues. In a case submitted upon special issues, the only authority or requirement for giving definitions is the provision of R.S. 1925, Art. 2189, making it the duty of the court to “submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” It is needless to say that it is never necessary for the court to give an explanation or definition of a legal term which is not used in the statement of any of the special issues.

The assignments and propositions . based upon the action of the court in overruling objections to special issue No. 2 are likewise overruled. Special issue No. 2 was “Do you find from a preponderance of the evidence that prior to the time or at the time of the execution of the deed in question of date April 6, 1936 the witness John I. Chesley told plaintiff Carrie Ella Tipton that unless she executed such deed he would send her to an insane asylum and her children to an orphans’ home?” The issue as so stated did not, as contended, constitute two issues, nor was it subject to the criticism that it is merely evidentiary and not an ultimate fact issue.

The same may be said of assignments of error and propositions relating to the action of the court in overruling objections to special issue No. 3. That issue was “Do you find from a preponderance of the evidence that the plaintiff Carrie Ella Tipton signed and acknowledged the deed in question of date April 6, 1936 wholly through fear that she would be sent to the insane asylum and her children to an orphans’ home unless she executed such deed?” The issue as thus stated was a ground of duress, as alleged, and was, therefore, not subject to the objection that it gave undue prominence to evidence. Neither, we think, did the issue embrace the subject matter of two distinct issues. The real issue was the execution of the deed of which the signing and acknowledging were but elements of such execution.

The assignments of error ahd propositions by which it is contended that the judgment was contrary to the law and the evidence are also overruled. The verdict warranted and required the judgment. Hence, if there was any error it inhered in some other ruling or action of the court and not in the act of rendering the particular judgment which, as said before, was in accordance with the verdict.

We have examined the assignments of error and propositions relating to the admission and exclusion of evidence and our opinion is that no error is shown. It is deemed unprofitable to take each of these matters up and discuss them in detail.

All other assignments and propositions have also been considered and it is our conclusion that they should be overruled.

Being of the opinion that no material error is shown and that the judgment should be affirmed, it is accordingly so ordered.


author: STOKES, Justice.

text:
    WEST v. CITIZENS STATE BANK OF WHEELER.
    No. 5147.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1940.
    Rehearing Denied May 27, 1940.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, for plaintiff in error.
    Sanders & Scott, of Amarillo (Howard F. Saunders, of Amarillo, of counsel), for defendant in error
   STOKES, Justice.

This case was before this court on a former appeal by the Citizens National Bank of Lubbock from an adverse ruling upon a plea of privilege. Citizens Nat. Bank v. Citizens State Bank, 116 S.W.2d 1154. Upon the former appeal the judgment of the trial court was reversed and the cause remanded with instructions to sustain the plea of privilege filed by the appellant in that appeal. Before the case was again called for trial in the court below defendant in error, the Citizens State Bank of Wheeler, plaintiff below, filed its second amended original petition in which it omitted the Citizens National Bank of Lubbock as a defendant but sought to maintain its cause of action against the other defendant, viz., the T. F. West Grain Company, a corporation, and made T. F. West, individually, a party defendant. Defendant in error alleged that on or about the 18th of January, 1935, T. F. West employed one Frank Perry to buy grain in Wheeler County in the name of T. F. West Grain Company, giving him authority to purchase grain from individual farmers or others having grain to sell, and that Perry was furnished by plaintiff in error and the Grain Company with a supply of blank drafts to be issued by him upon the Grain Company and delivered to those from whom he purchased the grain. The form of these drafts was copied in the petition in blank, that is, the date, payee, amount for which the drafts were drawn and the number of pounds and kind of grain were omitted, but the form shows that they were payable to order. The petition alleged that the drafts were issued to the farmers from whom Perry purchased grain and that the copied form was used.

Further allegations of the petition are that a number' of farmers who had sold grain to Perry presented themselves at defendant in error’s bank and asked it to cash and clear the drafts through its bank. Before clearing the drafts, however, at the suggestion of those who presented them for collection, defendant in error communicated with the Citizens National Bank of Lubbock through "which the drafts were to be drawn, with reference to the financial responsibility of the T. F. West Grain Company and was informed by the Lubbock bank that the company was solvent and responsible and that T. F. West was in charge of it. It is alleged that defendant in error thereupon accepted and agreed to cash the drafts; that various and sundry drafts so issued and presented to it were paid by defendant in error and were honored and paid by the Citizens National Bank of Lubbock, but that a large number were dishonored and returned to defendant in error’s bank, a list of those which were dishonored being set out in the petition, amounting in the aggregate to $2,338.-69.

The petition then proceeds to allege certain acts and conduct on the part of Perry and plaintiff in error, T. F. West, and the Grain Company, which it alleges constituted fraud and a fraudulent scheme by which they sought to obtain the grain, sell it on the market and pay the indebtedness of the Grain Company to the Citizens National Bank of Lubbock instead of paying the drafts which had been issued by Perry to the farmers.

Citation was issued to T. F. West, individually, the Grain Company having already been served with citation, commanding him to appear at the ensuing term of the court to be holden at Wheeler on the 7th day of November, 1938. ' On the 5th of November, 1938, T. F. West filed a plea of privilege to be sued, in Tarrant County, which he alleged was the county of his residence. Appended to the plea of privilege was an affidavit in proper form which was signed by T. F. West, but the jurat of the notary public was not dated nor signed by a notary public-nor by any other officer authorized to administer oaths. On November 8, 1938, which was appearance day, judgment by default was rendered against T. F. West and T. F. West Grain Company, the judgment reciting that although cited to appear and answer they came not but wholly made default, whereupon the . court proceeded to hear the pleadings and evidence offered by the plaintiff in the case. It recites further that the court is of the opinion and finds that the plaintiff, defendant in error here, should recover of and from the defendants, jointly and severally, the sum of $2,338.69. Judgment was rendered accordingly, and from the judgment a writ of error has been duly perfected by T. F. West.

A number of assignments of error and propositions of law are presented for consideration, but the controlling issue is made by plaintiff in error’s first proposition urn der which he contends that the petition does not allege that defendant in error was the owner of the drafts sued upon nor that the drafts had been endorsed by the payees therein, nor contain any other allegation sufficient to show that defendant in error had the right to recover thereon. He asserts therefore that the petition was subject to general demurrer and does not constitute a legal basis for a judgment by default.

The petition does not contain an allegation to the effect that defendant in error is the owner and holder of the drafts. Although the copy of the drafts in blank is included in the petition and it is alleged they were payable to- the order of the various farmers from whom Perry had purchased the grain, there 'is no allegation the drafts were endorsed by the payees therein nor is there any allegation of any contractual relationship existing between the payees and the bank by which the bank became the purchaser of the drafts or any of them. It is elementary that, in order to maintain a suit, the plaintiff must show by .allegation and proof that he is the owner of the cause of action or in some manner has the right to institute it and maintain it. If the suit is upon a negotiable instrument the petition must allege that plaintiff is either the original payee in the instrument or that he is the legal owner and holder thereof. A petition in such a suit which fails to contain these allegations is subject to general demurrer and when such is revealed by the record on appeal it presents fundamental error. Thigpen v. Mundine, 24 Tex. 282; Commercial Credit Co. v. Moore, Tex.Civ.App., 288 S.W. 508, 509.

In the case of Commercial Credit Co. v. Moore, supra, this court, speaking through Chief Justice Hall, said: “The petition fails to allege that the note has been transferred to plaintiff by the original payee, or that plaintiff is the legal owner and holder thereof. A petition upon a note which fails to allege ownership in the plaintiff is bad as against a general'demurrer and presents fundamental error.”

Defendant in error contends that its allegations to the effect, that before cashing the drafts it communicated with the Citizens National Bank at Lubbock at the suggestion of the payees in the drafts to ascertain whether it would be safe for defendant in error to cash the drafts and was informed that the Grain Company was solvent and responsible and that defendant in error accepted and agreed to cash the drafts being so issued and presented are sufficient allegations to show that it was the owner and holder of the drafts sued upon. We cannot agree with defendant in error in this contention. If the drafts had been payable to bearer the petition would have presented a different situation, but the copy of the drafts contained in the petition shows they were payable to the order of the payees. Negotiable paper payable to bearer may be transferred by mere delivery and its possession is prima facie evidence of title in the holder. A different situation is presented, however, where it is payable to order. In case of negotiable paper payable to order, the endorsement of the payee, in addition to delivery, ordinarily is necessary to pass the title and it will be so held unless the party in possession alleges and shows ownership by other allegations and evidence not apparent on the instrument itself. From the mere fact that defendant in error cashed the drafts it does not necessarily follow that it became the owner of them. Pennington Produce Co. v. Browning, Tex.Civ.App., 293 S.W. 935. The only allegation in the petition which tends to set up ownership of the drafts in defendant in error is that the payees presented themselves and asked it to “cash and clear said drafts through its bank”, and that it accepted and agreed to cash them. This, in effect, is no more than an allegation to the effect that the bank accepted the drafts for collection. It is a well established rule in this state that banks through whose hands such instruments and their proceeds pass acquire no title to such instruments but are merely agents of each other and of the real owner of the instruments. Security Nat’l. Bank v. Morgan, Tex.Civ.App., 245 S.W. 455. As we construe the petition, containing, as it does, a copy of the drafts, payable to order, with the allegation that the payees therein were the farmers who sold the grain, it is nothing more than an allegation that the T. F. West Grain Company was indebted to the farmers respectively who constituted the payees in the drafts. This is necessarily true for the reason that the instruments sued upon were exhibited in the petition and the allegations show they were payable, not to defendant in error, but to those who sold the grain and presented them to be cashed and cleared through defendant in error bank. In the absence of an allegation that defendant in error became the owner of the .drafts or that they were endorsed by the payees therein, it necessarily follows that the cause of action pleaded by defendant in error was one in favor of the payees in the drafts instead of the bank who filed the suit and procured the default judgment.

It is no doubt true that an allegation to the effect that the bank purchased the drafts and, in good faith, became the owner of them by contracts or agreements with the payees would have been sufficient as an allegation of ownership even in the absence of an allegation that the drafts had been endorsed by the payees, but in the absence of some allegation either of an endorsement by the payees or a contract of purchase, the petition was subject to general demurrer and wholly insufficient to support the judgment by default that was rendered. The judgment must, therefore, be reversed. Heid Bros. v. Commercial Nat’l. Bank, Tex.Com.App., 240 S.W. 908, 24 A.L.R. 904:

Plaintiff in error urges other assignments of error concerning the power and authority of the court to render a judgment by default in the face of the plea of privilege which he filed on November 5, 1938, contending that the court was without power to render the judgment until the plea of privilege, although defective and not sworn to, had been disposed of either upon a motion to strike, or an exception, or appropriate pleading of some kind. The plea of privilege, not being sworn to as required by the statute, Art. 2007, Rev.Civ.St.1925,. was ineffective as a plea of privilege and did not deprive the-court of jurisdiction to proceed with the case. Speed v. Chas. Lyon Co., Tex.Civ. App., 69 S.W.2d 147; Rogers v. Alexander, Tex.Civ.App., 289 S.W. 1070. The most that can he said of the plea of privilege is that it was a mere unsworn pleading on file in the case. There is nothing in the record to indicate it was called to the attention of the court during the term at which the case was tried. Under such circumstances it will he presumed that the defendant waived the pleading and a judgment entered by the court in disregard of it will not be disturbed. Wood v. Love, Tex.Civ.App., 190 S.W. 235; London Assurance Corporation v. Lee, 66 Tex. 247, 18 S.W. 508.

The judgment of the court below will be reversed and the cause remanded.


author: FOLLEY, Justice.

text:
    SANDAGE v. TRADERS & GENERAL INS. CO.
    No. 5144.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1940.
    Rehearing Denied June 3, 1940.
    James O. Cade, of Amarillo, for appellant.
    Simpson, Dorenfield & Fullingim, of Amarillo, for appellee.
   FOLLEY, Justice.

This is a workmen’s compensation suit in which the appellant, Shirley Sandage, was the employee, C. S. Lambie & Company the employer/ and the Traders & General Insurance Company the appellee and insurer. At the close of appellant’s testimony the trial court peremptorily instructed the jury against the appellant and in favor of the appellee. The reason assigned by the court for such instruction was the failure of the appellant to show good cause for not filing his claim with the Industrial Accident Board within six months after sustaining the injury.

The appellant was an apprentice carpenter. He alleged that on or about August 15, 1936, while he was making some repairs at Walgreen’s Drug Store in Amarillo, Texas, under the direction of his employer, he stepped upon a ladder which slipped and turned with him throwing him through the air and seriously injuring his back. He further alleged that such injuries culminated in his total disability on December 15, 1938. The notice of the injury and the claim for compensation were each dated December 26, 1938 and were filed with the Industrial Accident Board on December 28, 1938, which latter date was two years, four months and thirteen days after the alleged accident. By his pleadings and testimony the appellant sought to excuse the belated filing of the notice and claim by reason of the fact that he did not appreciate the severity of his injuries until December IS, 1938, when, according to his testimony, he stooped over to pick up an empty sack and collapsed helplessly to the ground since which time he asserts he has been totally incapacitated.

The facts upon the issue of good cause are uncontroverted. The testimony shows that when the ladder slipped with the appellant on August IS, 1936 he caught on the top of the building with one arm and held himself in such manner until his fellow employee corrected the position of the ladder whereupon he descended to the floor. He immediately felt a severe pain in his hip joints and back bone. He remained on the job, however, tire remainder of the day and for four or five days thereafter but he was conscious during such time that he had received an injury. Upon his going home the night after he was injured in the afternoon his wife examined and massaged his back and noticed, that his back was swollen on the right side. Appellant at the same time reached his hand behind his back and felt a knot at the point of the inflammation. After working four or' five days from the time of his injury for C. S. Lam-bie & Company he either quit or was laid off. Immediately thereafter he worked a half day for another contractor but was physically unable to work longer on account of the injuries he had received on August 15th. About ten days after the accident his back was hurting him so badly he was compelled to go to bed where he remained for a week except at intervals when he went to see Dr. Roach who was a chiropractor. Dr. Roach examined and treated him. The appellant told the doctor that he had fallen on a ladder and hurt his back. The doctor examined him thoroughly and told him his opinion was that some of the vertebrae of appellant’s spine had been dislocated. After being treated about a week the appellant went back to work and worked for various contractors until about September, 1937 when he moved to a ranch in New Mexico where he was at the time he stooped over to pick up the empty sack on December IS, 1938. During the year following the accident while he worked in Amarillo his back pained him continuously and especially while he was on the job. He was also afflicted with headaches for some time. For six months after his injury he noticed pain in his back each night and knew it was caused by his slipping on the ladder. He complained to his foreman day after day through August, September, Oc--tober and November of 1936 about his back hurting him as a result of his fall. He thought about filing a claim and talked to a fellow employee in regard thereto soon after the accident occurred but did not do-so because he was under the impression that compensation was not payable so long as an employee was able to work. He further claimed that he did not realize how seriously he was injured until December IS, 1938 when he collapsed on the ranch in New Mexico. He knew then he was totally incapacitated but did not know why he waited thirteen days thereafter before filing his claim with' the Industrial Accident Board.

Under the above facts we think as a matter of law the appellant failed to excuse his failure to file his claim within the first six months following his injury and further failed to plead or prove continuing good cause thereafter up to the time the claim was filed. Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W. 2d 905; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088. If the testimony of the, appellant was true in regard to his failure to fully realize the seriousness of his injuries, we think he certainly had enough-information in this respect to have warranted a reasonably prudent person to have done so. From the very moment of the accident he suffered severe pains in his back. His back was swollen on the night after his injury and there was a large knot on the right side. He was barely able to work for the next few days and was finally compelled to go to bed for a week or more. The doctor of his choice informed him that some of the vertebrae of his spine were dislocated. It was with great difficulty that he was able to work for a year thereafter. His back was paining him constantly during such period. Although he said he was unable to work his testimony was that he worked in spite of his pain. Under such circumstances it is our opinion that reasonable minds could not differ on the proposition that the appellant knew, or by the use of reasonable diligence should have known, that he was disabled and that he had a claim for compensation that should have been filed. We therefore sustain the trial court’s action in directing a verdict for the insurance company. General Accident Fire & Life Assur. Corporation, Limited, v. Martin, Tex. Civ.App., 110 S.W.2d 258; Cunningham v. Fidelity & Casualty Co. of New York, Tex. Civ.App., 102 S.W.2d 1106; Odom v. Indemnity Ins. Co. of North America, Tex. Civ.App., Ill S.W.2d 1143; Texas Indemnity Ins. Co. v. Hayes, Tex.Civ.App., 106 S. W.2d 760; Holloway et al. v. Texas Indemnity Ins. Co., Tex.Com.App., 40 S.W.2d 75; Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053.

The judgment is affirmed.


author: BLAIR, Justice.

text:
    WHITE v. TEXAS INDEMNITY INS. CO.
    No. 8947.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1940.
    Walter C. Pierson, of Austin, for appellant.
    Hart & Brown, of Austin, for appellee.
   BLAIR, Justice.

This is a Workmen’s Compensation case. Appellant, U. L. White, alleged that he was the employee; that Montgomery Ward & Company was the employer and insured; and that, appellee, Texas Indemnity Insurance Company, was the insurer. The suit was an appeal from the award of the Industrial Accident Board, and was filed in the justice court, where appellant recovered a judgment for $91. Appellee, insurance 'company, appealed to the county court, where the trial to the court without a jury resulted in judgment denying appellant any recovery, upon the ground that he was not the employee of Montgomery Ward & Company at the time of his injury, but was the employee of P. J. Hill, who had an independent contract with Montgomery Ward & Company to furnish a truck and labor to deliver from the store merchandise sold by the store to purchasers in Austin.

The evidence was without dispute that P. J. Hill was an independent contractor, and that appellant was his employee. This appellant concedes, hut contends that the undisputed evidence showed him to be the “special employee” of Montgomery Ward & Company at the time he received his injury; and that he therefore comes within the rule that “where one master lends or hires his servant to another. for a particular employment, the servant in that employment must be dealt with as a servant of the master to whom he is hired or lent, although he remains a general servant to the person who hired or .lent him.” Judson & Little v. Tucker, Tex.Civ.App., 156 S.W. 225; Maryland Cas. Co. v. Donnelly, Tex.Civ.App., 50 S.W.2d 388. He predicates this proposition upon his own testimony and that of C. L. Hyltin, manager of the plumbing department of Montgomery Ward & Company. Appellant testified: “On September 13, 1938, I was working for Mr. P. J. Hill as a helper on his delivery truck. Mr. Hill was engaged in delivering, from Montgomery Ward & Company’s store at Austin, goods sold by the store to he delivered at the addresses of the purchasers. I had been working as a helper on this truck since about the 1st of June, 1938. Mr. Hill paid me $4.00 a week. On September 13th, I was in the Montgomery Ward & Company’s warehouse at Austin. Certain plumbing equipment had been sold by the store and was to be delivered by. the truck. Mr. Hyltin, manager of the plumbing department at the store, told me to move a large tractor wheel which was in the warehouse in order to get to the plumbing equipment which was to be placed in the truck for •delivery. While I was engaged in moving the tractor wheel, it slipped and fell across my right foot, breaking a bone in my foot.’’

Hyltin testified: “The contract required P. J. Hill to furnish a truck and driver ■and such assistance as was needed in making the deliveries. This contract between the store and Hill was made several years prior to September 13th, 1938. Hill employed his own labor for operation of the truck. I had no control over Hill or his employees. I merely told Plill what articles had been sold and were to be delivered. He and his employee loaded these articles on the truck and made ■ the deliveries. U. L. White had been working for Hill, as a helper on the truck, for several months prior to September 13, 1938. On the date of the injury, I showed U. L. White the plumbing fixtures which were to be delivered, and told him to move the tractor wheel out of the aisle so that he could load the fixtures on the truck. I had informed the driver of the Hill truck that certain plumbing articles had been sold and' were to be delivered.”

The only other testimony was that of appellant to the effect that in his employment with Hill he was required to do such work as unpacking merchandise, stacking stoves and other merchandise, cleaning the aisles and keeping them clear, and helping to make deliveries on the truck, and doing such other similar work as he might be required to do by his employer.

The evidence does not show appellant to be the special employee of Montgomery Ward & Company at the time he received his injury. The manager of the company merely pointed out the fixtures that were to be delivered and told him to move another piece of merchandise in order that the fixtures sold could be loaded for delivery. This did not assume. direction or control over the employee of Hill, because he could have so directed Hill himself to move the other piece of merchandise to facilitate the loading and delivery of the merchandise sold. Such direction to Hill or to his employee was necessary in order to obtain the results of the agreement and to require Hill to deliver the merchandise sold by the company. And from the facts stated the trial court could have reasonably concluded, if he was not as a matter of law required to do so, that Hyltin, the manager, was merely pointing out the merchandise which appellant as an employee of Hill was to deliver, which required that he remove from the aisle the piece of merchandise that fell on his foot. There is nothing in the testimony which would indicate that the manager of Montgomery Ward & Company attempted to control the employee in the performance of this labor, but at most merely directed that removal of the piece of machinery from the aisle would facilitate the handling of the piece of merchandise to be delivered.

We find no error in the. judgment of the trial court, and it will be affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    SCOTT v. VILBIG CONST. CO.
    No. 3699.
    Court of Civil Appeals of Texas. Beaumont.
    May 11, 1940.
    Rehearing Denied May 29, 1940.

      David E. O’Fiel, of Beaumont, for appellant.
    Renfro & Keen, of Beaumont, for appel-lee.
   WALKER, Chief Justice.

This was an action in County Court of Jefferson County at Law, Jefferson County, by appellant, Geo. S. Scott, against appellee, Vilbig Construction 'Company, a corporation, for $300, claimed as the balance due on a wage contract whereby appellant was employed by appellee as its night watchman on its road contract with the Texas State Highway Department. The theory of appellant’s petition was that though he was employed as a night watchman at $16 per week, appellee used him as “an unskilled laborer” within that classification of labor as made in appel-lee’s contract with-the State Highway Department. Appellee answered by pleas of general demurrer, general denial and payment. On trial to the court without a jury, judgment was entered in appellant’s favor for $70.40. In support of the judgment, the court found that appellant worked for ap-pellee 1,020 hours “as an unskilled laborer.” The court further found that appellant “worked without any objection to the amount of pay being received by him.” Appellant has duly prosecuted his appeal to this court and has briefed his assignments of error.

On the undisputed evidence, appellant worked seven days per week, twelve hours per day; so, he worked twelve and one-seventh weeks. Appellee paid him for this time on the basis of $16 per week, totalling $194.28. On the finding of the court that appellant had worked 1,020 hours, appellee was due him for his services $408. The judgment should have been in appellant’s favor for $213.72.

The finding of the court that appellant “worked without any objection to the amount of pay being received” is immaterial: 1st, because the contract provided for compensation at 40 cents per hour for unskilled labor; 2nd, because by the provisions of Article 5165, Vernon’s Ann.Civ.St, and of House Bill No. 115, Chapter 259, Acts 44th Legislature, Regular Session, p. 644, amending Article 1580 of the Revised Penal Code of 1925, Vernon’s Ann.P.C. art. 1580, and repealing Article 5166, R.C.S. of 1925, appellee was bound to pay appellant an unskilled laborer 40 cents per hour for his services.

The statement made by appellant in his brief does not make the issue of “time and a half” for overtime.

The judgment of the lower court is here reformed awarding appellant $213.72, and as reformed it is affirmed.