author: MURRAY, Justice.

text:
    BROUGHAM et al. v. THOMPSON.
    No. 10837.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1940.
    A. Leonard Brougham, of Oklahoma City, Old., Seeligson, Cox & Patterson, of San Antonio, and Hugh L. Steger, of Rankin, for appellants.
    B. A. Greathouse, Morriss & Morriss, and Trueheart, McMillan & Russell, all of San Antonio, for appellee.
   MURRAY, Justice.

Appellee, D. D. Thompson, instituted this suit in 1939 against A. Leonard Brougham and others, seeking in trespass to try title to recover 1,068 acres of land, more or less, located in Real County, Texas. The usual statutory allegations, coupled with a claim of possession under the three, five, ten and twenty-five year statutes of limitation, were pleaded. The defendants, A. Leonard. Brougham and others, including Pecoval Royalty Trust, who claimed to own an undivided one-half interest in the oil, gas and other minerals in said land, answered by a plea of not guilty, of innocent purchaser and plead the four-year statute of limitation as a bar to the effort on the part of Thompson to set aside the mineral deed under which they claim title.

The trial was before the court without a jury and resulted in judgment in favor of D. D. Thompson for the recovery of the fee title to the land, from which judgment A. Leonard Brougham' and others, including Pecoval Royalty Trust, have prosecuted this appeal.

Appellants briefly and correctly state the issues involved in this suit as follows, to-wit:

1. “Whether or not the Trial Court erred in holding that the deed from D. D. Thompson to M. B. Leonard was not delivered and that there was no consideration paid to Thompson therefor.
2. “Whether or not the Defendant’s motion for continuance should have been granted in view of the fact that the inability of Leonard to attend the trial and testify that the deed was delivered and the recited consideration was paid deprived the Appellants of contradicting the testimony of the Plaintiff, except by the recitation in the instrument and the circumstances surrounding the final location of the instrument in the Appellant’s possession more than 20 years after its date, execution and acknowledgment.
3. “Whether or not the co-tenancy created by reason of the conveyance to Leonard and his assignees could be terminated by the purchase by Thompson at the tax foreclosure sale of the interest of his co-tenants and whether or not his purported possession of the surface was such adverse possession of the minerals as would vest title in him under the 3, 5 and 10-year statutes of limitation.”

We will discuss the third question first. D. D. Thompson is the undisputed common source of title. Prior to April 28, 1919, D. D. Thompson was the owner of the fee simple title to the 1068 acres herein involved. On that date he and his wife signed a deed purporting to convey an undivided one-half interest in the mineral rights lying under this land. On November 16, 1923, the State obtained a tax judgment for taxes assessed for 1922 separately against the one-half interest which is claimed by appellants, and D. D. Thompson purchased this undivided mineral interest for the sum of $246 at the tax sale. Appellants do not question the validity of the tax sale, but only question the right of ap-pellee to purchase said mineral interest at the sale for his own benefit, claiming that as a co-tenant he could only purchase the interest for the benefit of appellants.

We have concluded that appellee, Thompson, was not precluded from purchasing the undivided one-half interest of the minerals, claimed by appellants, at the tax sale because of his co-tenancy. Ap-pellee and appellants did not acquire their mineral interests by the same instrument, the tax sale was for taxes accruing against appellants’ one-half mineral interest after the alleged sale of such mineral interest to appellants and their privies in title.

The Texas rule is absolutely limited to tenants in common where they acquire the property by the same instrument or act of the parties or of the law, or there must be the relation of mutual trust and confidence. Niday v. Cochran, 42 Tex.Civ.App. 292, 93 S.W. 1027; Roberts v. Thorn, 25 Tex. 728, 78 Am.Dec. 552.

The outstanding title purchased must be against the joint estate and not merely against the estate of the other. Roberts v. Thorn, supra.

It is true that appellee, Thompson, in the alleged deed from him to appellants’ predecessors in title warranted the title to this mineral interest, but this would not preclude him from purchasing this interest at a tax sale for taxes accruing subsequent to the date of the alleged deed. Foster v. Johnson, 89 Tex. 640, 36 S.W. 67; Murray v. Murray, 159 Minn. 111, 198 N.W. 307.

In Bennet v. North Improvement Co., 23 Colo. 470, 48 P. 812, 814, 58 Am.St.Rep. 281, it is said: “A tenant in common can only be held bound to protect the interest of his co-tenant when some duty is cast upon him with reference to such interest; for instance, if it is shown to be his duty to pay all the taxes, he cannot allow the land to be sold for such taxes, and then avail himself of the tax title. * * * In the case before us the tax was levied upon undivided interest, and there was no obligation resting upon one tenant to pay the tax of his associátes. The interest of each was separately assessed, and Sharratt was not disqualified from taking the tax title.”

Appellee having secured good title to the one-half undivided mineral interest claimed by appellants, by reason of his purchase at the tax sale, it becomes immaterial whether or not there was a valid delivery of the original deed.

The judgment is affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    TAYLOR et ux. v. BATTE et al.
    No. 9009.
    Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1940.

      Ray Holder, of Dallas, for appellants.
    Camp & Camp, of Rockdale, and O. L. Kidd and Roy Baskin, both of Cameron, for appellee.
   BAUGH, Justice.

Suit was by appellants against Batte and others in trespass to try title to about 300 acres of land in Milam County; for damages for conversion of approximately $14,-000 worth of personal property; for exemplary damages; and to set aside a judgment in favor of Batte against them for said lands rendered in May, 1931. This suit was filed in April, 1939. The trial court overruled appellants’ motion to disqualify the trial judge from hearing the cause; their motion to change the venue of the case; their motion for a continuance; and rendered judgment that plaintiffs take nothing; hence this appeal.

The two contentions presented are that the trial court erred in overruling the motions above mentioned. That is, (1) that the trial judge was disqualified; (2) that they were entitled to a change of venue.

The case was tried to the court without a jury, and no statement of facts, accompanies the record. Because of the unusual allegations of appellants’ petition, we have carefully examined all pleadings shown in the record and the trial court’s action thereon. The plaintiffs’ (appellants) pleadings seek a threefold remedy: (a) recovery of title to the lands; (b) damages for conversion by defendants of personal property in 1928 and 1929; and (c) to set aside a judgment of the district court obtained by Batte against the appellant, Henry Taylor, for title to said lands in 1931. As stated, this suit was not filed until April, 1939, at least eight years after the wrongs complained of. The defendants interposed, among other defenses, pleas of limitation. It is manifest, we think, from plaintiffs’ own pleadings, that in order to recover title it was necessary for them to set aside the district court judgment against Henry Taylor, rendered in 1931. Manifestly a suit filed in 1939' for conversion of personal property in 1931, in the absence of any allegations of facts-sufficient to toll the applicable statutes of' limitation, would be subject to such plea.. Likewise the attack on the 1931 judgment comes too late, there being no allegation, that Henry Taylor did not know of such-judgment at the time that it was rendered' against him; and it affirmatively appearing, from his own pleadings that he at all times-thereafter knew all the facts and circumstances which he now asserts as grounds-for setting that judgment aside. See Levy v. Roper, 113 Tex. 356, 256 S.W. 251; Smith v. Lightfoot, Tex.Civ.App., 143 S.W.2d 151. Notwithstanding this, however, we have given full consideration to the contentions made by appellants, and have .concluded that neither of them should be sustained.

On the issue of disqualification of the trial judge, the record discloses the following: On May 10, 1939, appellants filed a motion alleging as grounds for such disqualification substantially the following: That at the time Henry Taylor obtained a loan against said lands (alleged to have been for the benefit of R. L. Batte) in March, 1928, from the Federal Land Bank, he did so through the Cameron National Farm & Loan Association, a subsidiary of the Federal Land Bank, of which former named organization the trial judge was then secretary, a stockholder in and attorney for said local Loan Association, and interested in said loan; that said local organization participated in the alleged fraud through which said loan was procured; that it is a party to the instant suit, and that the damages sought against it, if recovered, would be a charge against such corporation in which the trial judge would be interested. That he was therefore disqualified to hear this suit under the provisions of Art. 15, R.C.S.1925. This motion was duly controverted, both as to the facts alleged and the law applicable thereto, by written pleadings of the defendants. Amended motion of like effect was filed by plaintiffs on July 31, 1939.

There is nothing in the record to show that these motions were ever called to the attention of the trial court or ever acted upon by him. The judgment rendered makes no mention of them and no exceptions were taken by plaintiffs to any failure of the trial court to act upon them. If said motions be deemed to have been overruled, the facts alleged therein having been duly controverted, an issue of fact requiring the hearing of evidence thereon was presented by such pleadings. The mere allegations in the motion were not sufficient to establish the judge’s disqualification, and in the absence of any statement of facts we must presume that the trial judge found such facts against the plaintiffs. Slaven v. Wheeler, 58 Tex. 23; Henderson v. Lindley, 75 Tex. 185, 188, 12 S.W. 979; Wright v. Sherwood, Tex.Civ.App., 37 S.W. 468, writ refused.

The next proposition complains of the action of the trial court in overruling appellants’ motion for a change of venue. The motion, verified by both appellants, asserted “that there exists in Milam County, Texas, * * * a combination against them instigated by influential persons by reason of which they cannot expect a fair and impartial trial.” No persons, however, were named: The motion further stated that “they and each of them are in fear of losing their lives, or. of suffering serious bodily harm, if they should come within the jurisdiction of the court of Milam County, Texas; that their lives have been threatened by the defendants herein heretofore, and that this fear is now present and is real in the minds of these plaintiffs and exists in reality.”

Attached to such motion were the affidavits of five persons stating that such affi-ants knew Henry and Ella Taylor; that they had read the affidavit of Henry and Ella and believed “that the grounds for the change of venue stated in said affidavit is true and correct and that they do in fact exist.”

This application for change of venue was filed on July 31, 1939, and was controverted by a counter-affidavit made by six affiants jointly, filed on September 4, 1939. Hearing was had on this motion on October 23, 1939, and in the order overruling the court recited: “Thereupon the plaintiffs’ said motion for a change of venue was called and all parties announced ready for a trial thereof.” The order further recites that after hearing plaintiffs’ evidence on their said motion, he found same “wholly insufficient to sustain the same.” There is no statement of facts, nor anything in the record by bills of exception or otherwise, to show what evidence was before the court on this hearing.

The affidavits for change of venue having been controverted by the defendants as contemplated by the provisions of Art. 2171, R.C.S., the controversy thus presented invoked the discretion of the trial court to be exercised after such hearing. It is only where such discretion is shown to have been abused, that the appellate court will disturb his action. See 43 Tex. Jur., § 58, p. 779, and cases cited in footnotes. There being no record of the evidence heard by the trial court, it is manifest that we cannot disturb his action.

Finding no error in the record presented to us, the judgment of the trial court is affirmed.


author: WALKER, Chief Justice.

text:
    W. F. CHENAULT, Appellant, v. ABNEY & BOHANNON, Appellee.
    No. 3772.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1940.
    Callaway & Callaway, of Brownwood, for appellant.'
    Owen & Bohannon, of Brownwood, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted from the County Court of Brown County to the Austin Court of Civil Appeals, and transferred to this court by order of transfer of the Supreme Court.

Finding no error in the record, on authority of Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, the judgment of the lower court is affirmed without written opinion.

Affirmed.


author: O’QUINN, Justice.

text:
    FEDERAL UNDERWRITERS, Appellant, v. Watson WADE, Appellee.
    No. 3756.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1940.
    Rehearing Denied Jan. 22, 1941.
    James W. Peavy, of Austin, for appellant.
    Stunner Williams, Jr., of. Lufkin, for appellee.
   O’QUINN, Justice.

This is an appeal from the County Court of Nacogdoches County. After careful consideration of the record, we affirm the judgment without written opinion. Associated Indemnity Corp. v. Gatling, Tex.Civ.App., 75 S.W.2d 294; Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040; Fidelity & Guaranty Fire Corporation v. Roy Stubblefield, Tex.Civ.App., 140 S.W.2d 1115.


author: PER CURIAM.

text:
    Candelario MUNOZ, Appellant, v. Miguel BENITEZ et al., Appellees.
    No. 10836.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1940.
    Walter G. Weaver, Jr., of Donna, for appellant.
    Hill, Greer & Franki, of Mission, and Gus C. Garcia, of San Antonio, for appel-lees.
   PER CURIAM.

Affirmed without written opinion. Associated Indemnity Corporation et al. v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.


author: GERMAN, Commissioner.

text:
    WEAVER v. COMMISSIONERS’ COURT OF NACOGDOCHES COUNTY.
    No. 2349-7778.
    Commission of Appeals of Texas, Section A.
    Jan. 8, 1941.

      Seale & Thompson, of Nacogdoches, for plaintiff in error.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and Ocie Speer, Asst. Attys. Gen., amici curiae.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of Nacogdoches County by plaintiff in error, C. E. Weaver, against defendants in error, the Commissioners’ Court of Nacogdoches County and the constituent members thereof in their official capacities. The parties will be designated plaintiff and defendants. Plaintiff in his petition sought a writ of mandamus to compel defendants to record in the minutes of the commissioners’ court of said county, as provided by Article 1647 of the Revised Statutes, a duly certified copy of an order made April IS, 1939, by Hon. C. E. Brazil, District Judge of Nacogdoches County, which order is as follows:

"On this the ISth day of April, A. D. 1939, came on for consideration the reappointment of a county auditor for Nacogdoches County, Texas, because of the expiration of the term of the present incumbent on April 16, 1939, The Court after due and careful consideration finds there is a public necessity in the dispatch of the county’s business for a County Auditor for Nacogdoches County, and further finds that the present county auditor, C. E. Weaver, of Nacog-doches County, Texas, has satisfactorily performed the duties of said office during his present term, and that he possesses the qualifications as required by law; therefore the Court reappoints the said C. E. Weaver as County Auditor for Nacogdoch-es County, for a term of two years, beginning on April 16th, 1939. It is further ordered that the salary of the said C. E. Weaver as county auditor be paid from the general fund of said County, at the rate of' not less than $125.00 per million assessed valuation or major fraction thereof, per year as provided by statute.
“Said appointment effective April 16, 1939.
“C. E. Brazil, Judge of the District Court, Nacog-doches County, Texas.”

In the district court plaintiff was granted the relief prayed for. This judgment was by the Court of Civil Appeals reversed, and judgment rendered in favor of the defendants. 141 S.W.2d 764. On account of the fact that a public question was involved, the case was advanced for hearing in this court.

We have before us for decision two dominant questions:

First. Was there any legally sufficient action on the part of the Commissioners’ Court of Nacogdoches County and the presiding judge of the district court of that county prior to April 15, 1939, to constitute a legal appointment to the office of County Auditor of Nacogdoches County?

Second. If there was a legal appointment to said office of county auditor, was new action on the part of the commissioners’ court, such as is required by Article 1646 of the Revised Statutes of 1925, Vernon’s Ann.Civ.St. art. 1646, necessary to continue said office in said county after termination of each biennial appointment ?

It is admitted that in 1935, 1937 and 1939 Nacogdoches County was not entitled to an auditor, except when appointment to said office was made as provided for in Articles 1646 and 1647. The pertinent statutes are as follows:

Art. 1645. “In any county having a population of thirty-five thousand inhabitants, or over, according to the preceding Federal census, or having a tax valuation of fifteen million dollars or over, according to the last approved tax rolls, there shall be biennially appointed an auditor of accounts and finances, the title of said officer to be county auditor, who shall hold his office for two years, and who shall receive as compensation for his services one hundred and twenty-five dollars for each million dollars, or major portion thereof, of the assessed valuation, the annual salary to be computed from the last approved tax rolls, said annual salary from county funds shall not. exceed thirty-six hundred dollars, to be paid monthly out of the general funds of the county upon an order of the commissioners court.”
Art. 1646. '“When the commissioners court of a county, not mentioned and enumerated- in the preceding article shall determine that an auditor is a public necessity in the. dispatch of the county business, and shajl enter an order, upon the minutes of, said court fully setting out the reasons and necessity of an auditor, and shall, cause said order to be certified to the district judges'having jurisdiction in the county, said .judges shall, if such reason be considered good and sufficient, appoint a county auditor, as provided in the succeeding article, who shall qualify and perform all the -duties -required of county auditors by the laws of this State; provided said judge shall have the power to discontinue the office of such county auditor at any time after the expiration of one year when it is-clearly .shown that such auditor is not a public necessity and his services are not commensurate with his salary received.”
. Art. 1647. “The district judges having jurisdiction in the county, shall appoint the county auditor at a special meeting held for that purpose, a majority ruling *. * The action shall then be recorded in the -minutes of the district court of the county and the clerk thereof shall ■certify - the same to the commissioners court, which shall cause .the same to be recorded in its minutes together with an order directing the payment of the auditor’s salary.”

Prior to April 16, 1935, the following “petition” was furnished to Judge C. E. Brazil, .the presiding judge of the district court of Nacogdoches County:

“Nacogdoches, .Texas “April 10th, 1935.'
“To the Honorable Carmen Brazil “Nacogdoches, Texas.
“Comes now the Commissioners’ Court of Nacogdoches County and asks your honor to appoint Mr. R. C. Tompkins County Auditor for Nacogdoches County, The Commissioners’ Court would show that this office is made necessary by virtue of- the fact that our records in this County need to be constantly reviewed and that the financial condition of the county will be protected by the services of 'said officer, and that our business has been made more complicated by the States participation in our road bonds and warrants, which an auditor would be able to keep.' ...
“The Court therefore requests your hon- or to make the.appointment of Mr. Tomp-kins at the Statutory salary of $125.00 for each million dollars valuation in the County.
“Clyde Shofner, County Judge.
“G. H. Stone,
Commissioner Pre. No. 1.
“J. B. Wood,
Commissioner Pre. No. 2.
Commissioner Pre. No. 3.
“A. J. Waters,
Commissioner Pre. No. 4.”

The -contention is made (and same was upheld by the Court of Civil Appeals) that this instrument does not constitute an “order” such as is contemplated by Article 1646 set out above. The principal reasons for this contention are, first, that it purports to be the act of the coun-, ty judge and the commissioners personally, and', second, that it is not entered upon the minutes of the commissioners’ court. While there was no parol proof showing expressly that this was the official act of the court, yet there was none showing that it was not, and we think the circumstances were such as to warrant a finding that it represented the official act of the commissioners’ court, and not of its members individually. Aside from' being signed by the county judge and individual commissioners, it purports on its face to be strictly the action of the commissioners’ court as such. On April 16, 1935, Judge Brazil made the following order:

“Nacogdoches, Texas.
“On this 16th day of April 1935 came on to be heard a petition of the Commissioners’ Court of Nacogdoches County asking for the appointment of R. C. Tompkins as County Auditor for Nacogdoches County and it appearing to the Court that Mr. Tompkins is an accountant with several years experience as required by the Statutes and that there exists a necessity for said auditor, the Court hereby appoints the said R. C. Tompkins as County Auditor for Nacogdoches County.
“C. E. Brazil,
“District Judge 2nd Judicial District.”

The original paper of April 10, 1935, bearing the signatures of the county judge and the commissioners, with the original order signed by Judge Brazil, were found by the County Clerk in a “file for officers’ reports and miscellaneous papers.” It was contained in a jacket for April, 1935. The clerk was asked concerning this file the following: “Was that a file that revealed April, 1935, papers concerning the commissioners’ court?” To which question he answered, “Yes sir.”

In addition, the commissioners’ court actually entered on its minutes the following order: “On this the 18th day of April A. D. 1935, Court met in special session for the purpose of approving the official bond of R. C. Tompkins, who was on the 16th day of April, 1935, duly appointed county auditor of Nacogdoches County,, by C. E. Brazil, District judge, who acted upon an application presented to him by the County Commissioners, asking the Hon. C. E. Brazil to appoint Mr. Tompkins, County Auditor. Said bond above mentioned is this day approved by the Court.”

Mr. Tompkins thereafter served as audi-. tor of Nacogdoches County two years; and was regularly paid his salary under orders •of the court. We therefore think it conclusively appears that the commissioners’ •court itself recognized and acknowledged that the petition of April 10, 1935, constituted its official act. Being its official act the same undoubtedly met the requirements •of Article 1646, and is to be regarded as such an “order” as is contemplated by that article. It is a familiar rule that orders of the commissioners’ court, at least .as to form, are to be liberally construed.

It is well settled that an order of the •commissioners’ court actually passed is not void because not entered upon the minutes of the court, and'the fact that it was made can be shown, by parol evidence. Mecom v. Ford, 113 Tex. 109, 252 S.W. 491. See also Whitaker v. Dillard, 81 Tex. 359, 16 S.W. 1084. If the action of the court can be proven by parol evidence, certainly it can be proven by ■circumstances. We think it appears with •certainty that the petition of April 10, 1935, was the formal action of the court, and the act of the judge and commissioners in affixing their signatures to same conclusively shows that it was passed by the court.

It is our conclusion, therefore, that an appointment to the office of auditor of Nacogdoches County was legally made in 1935.

Again in 1937 the commissioners’ court entered an order requesting appointment of Mr. Tompkins as auditor. Acting upon this order the district judge appointed Mr. Tompkins for another two years. The commissioners’ court approved his bond and ordered payment of his salary. He served until November 25, 1937, when he resigned, and plaintiff C. E. Weaver'was appointed by Judge Brazil to fill out the unexpired term. He filed his official bond, which was approved by the commissioners’ court, took the oath of office, and was paid his salary until April 15, 1939. On April 15, 1939, Judge Brazil entered the order hereinabove set out and certified same to the commissioners’ court for entry, upon its minutes? On the"same day the commissioners’ court entered an order declaring that no necessity existed for an auditor and attempted to discontinue said office. On May 17, 1939, the court passed another order to the affect that the salary of plaintiff be not paid, “as the office of county auditor had been discontinued.” ' '

The Court of Civil Appeals held that the order of the commissioners’ court made in 1937 was' insufficient to confer on the district judge the power of appointment, and consequently the appointment made that year was void. We do not agree with this holding. We think the appointment was valid. However, it is unnecessary to- discuss this order in detail. The fact remains that if new action of the commissioners’ court at the end of each two-year appointment is required in order to make another valid appointment, then plaintiff is without relief, as admittedly there was no action of the commissioners’ court to authorize an appointment in 1939. This brings us to the second question, which appears to be the main source of contention between the parties. It is clearly set forth in the following excerpt from the defendant’s Brief: “It is almost impossible to brief this case without frankly stating to this Honorable Court that the matter constitutes primarily an argument between the Commissioners’ Court of Nacogdoches County and the District Judge of the 2nd Judicial District over the auditor’s office, the Court contending that at the expiration of every two years the office of auditor ceased to exist, and that it had to be recreated, and that before .the judge could do anything about appointing an auditor, the jurisdiction of his office had to be invoked by certificate from the Commissioners’ • Court certifying that a necessity continued to exist for the appointment of an auditor. Judge Brazil, on the other hand, contended that he alone had authority to do whatever he pleased about the auditor’s office.”

The legislature has undoubtedly created the office of county auditor. The creation of an office is peculiarly a legislative matter. The office exists for Nacog-doches County the same as for counties mentioned in Article 1645. In our opinion, the error in defendant’s position results from the idea that the commissioners’ court “creates” the office in the manner provided by Article 1646, or brings it into operation. In our judgment, this article merely furnishes a method by which an appointment to the office is made. It will be noted that Article 1646 provides that if the commissioners’ court shall determine that an auditor is a public necessity, and shall do certain things, the district judge shall appoint an auditor. After such appointment is made, the appointee “shall qualify and perform all the duties required of county auditors by the laws of this State.” The provisions that the district judge may “discontinue the office of such county auditor” manifestly means that he may discontinue the services of such auditor. Clearly it is not meant that the district judge may abolish the office. It is obvious that the legislature designedly placed the appointing power in the district judge rather than in the commissioners’ court. Likewise the power to discontinue the services of the auditor was wisely placed with such judge rather than with the court. The office of auditor has the most intimate relation to the actions of the commissioners’ court and the commissioners themselves. It is of the highest public concern that such an officer be left entirely free' from the control of these officers, even to the extent of a possible removal by the discontinuance of the duties of his office. In addition, it is of great public importance that a skilled and experienced officer of this kind, already familiar with the financial conditions of the county and its business, should not be subjected to the possible results of each biennial election. It is our opinion that when the commissioners’ court once takes action which leads to the appointment of an auditor for a county, such as is referred to in Article 1646, such county, so far as the office is concerned, and the appointment of an incumbent thereof is concerned, becomes exactly like counties designated in Article 1645; subject to the power of the district judge alone to discontinue the services of such auditor in the manner as provided in Article 1646.

Complaint is made because the county is not a party to this suit. This action is against the county judge and county commissioners in their official capacities and as constituting the commissioners’ court. Article 1647 makes it the duty of the commissioners’ court to cause the certificate of the district judge to be recorded in its minutes, with an order directing the payment of the auditor’s salary. This action seeks to have them perform that duty. Besides, the county clerk was asked this question: "“If the commissioners’ court was now to permit you to enter the last order of Judge Brazil in 1939, appointing C. E. Weaver as County Auditor, and directing his salary to be paid, would you issue the vouchers for that salary?” To this he answered “Yes.” It will thus be seen that the impediment to the collecting of his salary by plaintiff is the action of the commissioners’ court itself.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    GRIGSBY et al. v. FIRST NAT. BANK IN QUANAH et al.
    No. 1842-7558.
    Commission of Appeals of Texas, Section B.
    Jan. 8, 1941.

      For former opinion, see 144 S.W.2d 244.
    Charles Nordyke, of Stephenville, and McWhorter, Howard & Cobb and Charles L. Cobb, all of Lubbock, for Grigsby.
    E. L. Klett, of Lubbock, for the Bank.
   TAYLOR, Commissioner.

It is correctly stated in the opinion in this case at the beginning of the eighth paragraph 144 S.W.2d page 245, that Mrs. Borders was guardian of the minors from “November 18, 1929, until some time in 1936.” Complaint is made in the motion for rehearing that it is later incorrectly stated that November 15th “the date the money was put up,” was “three days before application for guardianship was filed”; also that “November 19th” is later stated to be ■“the day after the application for appointment as guardian was filed.” Both statements are erroneous. The word “granted” should have been used in each instead of the word “filed.” The application was filed •on November 6th, and was granted on November 18th. The opinion is hereby corrected so as to substitute the word “granted” for “filed” in the statements referred to. The further statement that the $11,000 draft was drawn by Mrs. Borders “ten” days before her appointment as guardian is also corrected so as to make it read “three” days before her appointment.

The errors pointed out and corrected have no bearing on either the conclusion reached, or the reasoning by which it was reached.

The bank sets up in its motion for rehearing the sole ground that the court ■erred in finding there is no evidence that the guardian received the cash payment made for the minor’s property.

The Court’s conclusion that the bank is liable is predicated upon no such finding. The entire motion for rehearing is taken nip with pointing out and discussing testimony to the effect that the terms of the sale of the minor’s property to Harper were complied with and that Mrs. Borders received payment therefor. These facts are mot questioned here and were not questioned upon original hearing.

The bank is liable, not upon the ground that Mrs. Borders did not receive payment for the minor’s property sold by her, but upon facts pointed out by the bank’s witnesses in connection with the prearranged method between Mrs. Borders and the bank and its officials whereby the payment was consummated with the result that the cash paid for the minor’s property was made available to Mrs. Borders for her individual use to enable her to purchase the Lubbock bakery.

The effect of the bank’s contention is, and was upon original hearing, that the making of the payment to Mrs. Borders for the minor’s property to Harper in the manner and with the result stated, when explained by the bank’s witnesses, relieves it of liability. The interpretation of the explanation by counsel for the bank in his supplemental argument is in effect that the cash was received by Mrs. Borders through the prearranged bank transaction, not as an individual loan to her, but as payment for the purchase price for the minor’s interest in the property.

That contention was overruled upon original hearing and is here overruled. The conclusion is predicated not upon a disbelief of the bank’s testimony, as counsel for the bank seems to infer, but upon the legal effect and consequences of that testimony. The mere fact that Mrs. Borders received payment does not relieve the bank of liability in the face of the bank’s own testimony showing that the bank and its officers in the process by which payment was made, participated in making the minor’s funds available to Mrs. Borders individually in the manner pointed out in the original opinion. There is no distinction from the standpoint of legal consequences between making the cash proceeds of the sale of the minor’s property available upon the personal check of Mrs. Borders by means of a loan to her, and making it available for her personal use in the form and manner pointed out under the bank’s explanation of the details as to how the transaction was handled. Counsel in his supplemental argument for the bank upon original hearing interprets the bank’s explanation as follows (the language quoted being counsel’s save that of the last two parentheses, which is inserted in keeping with the bank’s testimony) : “Under a three-way or four-way deal, Messrs. Caskey and Hughes (or the bank for Messrs. Caskey and Hughes or at their instance) on November 15 (three days before she became guardian) .deposited the required cash payment in the bank and the bank carried said money to the credit of the guardian, (in her individual account) with the understanding it was not a loan to her, and not subject to her check until the guardianship sale was completed. * * (Italics ours). Counsel further states in connection with the interpretation that “It may be, of course, that the transaction was awkwardly handled, and that some of the explanations may not appear reasonable or consistent, but nevertheless, under the opinion of Judge Williams in the Anderson case, supra [93 Tex. 119, 53 S.W. 821], the transaction was subject to explanation, in which the trial court, as well as the Court of Civil Appeals, had the right, as they found, to believe that Judge Welch and Mr. Hughes told the truth.”

As pointed out above, the disagreement of this Court with the courts below is not predicated upon a failure to give credence to the testimony of the bank’s witnesses, but upon the legal effect of that testimony, which alone is made the basis of the original opinion. Furthermore there is no parallel from the standpoint of the legal consequences flowing from the explanation of the purpose of the execution and handling of the note in the Anderson case and those flowing from the execution and handling of the note by Mrs. Borders in the present case. In the Anderson case the explanation was to the effect 'that the note made to the bank by Jernigan was made after he had already converted the county’s funds and constituted no part of the process whereby the conversion was consummated by him.

As stated in effect in the opinion upon original hearing, “looking through form to substance” the true source of the $7,500 was the minor’s property, and Such use was made of it by Mrs. Borders, the bank and its officials, jointly, in the process of making it available to her individually, as to invoke the principles applied in the Adoue & Lobit and Wichita Royalty Company cases [104 Tex. 379, 137 S.W. 648, 37 L.R.A.,N.S., 409, Ann.Cas.1914B, 667 and 127 Tex. 158, 89 S.W.2d 394, 93 S.W.2d 143] cited in the opinion; and, as further pointed out in the opinion, whether the $7,500 furnished by Hughes and'Caskey and credited by them to Mrs. Borders’ individual account in the bank was Harper’s money originally, or Mrs. Borders’, is immaterial so far as her liability, or that of the bank, is concerned.

After full consideration of the motion, for rehearing we adhere to our opinion upon original hearing. The motion is overruled.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge. GRAVES, Judge

text:
    RAINS v. STATE.
    No. 20826.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Rehearing Denied Jan. 8, 1941.

      Shead & Smith, of Longview, and Sam B. Hall and C. W. Field, both of Marshall, for appellant.
    Fred Erisman, Crim. Dist. Atty., and Mike Anglin, Asst. Crim. Dist. Atty., both of Longview, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

The case was tried in Harrison County on a change of venue from Gregg County.

According to the testimony of the state, appellant killed deceased without provocation. Appellant gave testimony which raised the issue of self-defense.

Bill of exception No. 1 is concerned with the introduction in evidence of the declaration made by the deceased a few minutes before he died. It is shown in the bill that about five minutes after he had been shot deceased stated to the attending physician that he did riot know why appellant shot him, and further said, “God forgive him.” The bill, as prepared by the court, shows that the declaration was res gestae.

Bill of exception No. 2 complains of the action of the trial court in ■ limiting the number of character witnesses for the appellant. It appears from the bill that after three witnesses had testified to appellant’s good general reputation as a peaceable and law-abiding citizen the state admitted before the jury in open court that appellant’s reputation in the respect mentioned was good up to the time of the trial. In view of this admission by the state, there was no error committed, by the court in declining to let appellant go through the formality of having other character witnesses testify. Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396.

It appears from bill of exception No-. 3 that an assistant district attorney who worked with the grand jury that indicted appellant testified that appellant appeared before the grand jury, and, after due warning, “admitted the whole thing.” Upon objection being made by counsel for appellant, the jury were promptly instructed not to consider the statement of the witness. In view of the instruction of the court, we are of opinion that the bill fails to present reversible error.

Bill of exception No. 5, as qualified, shows that the testimony set forth in said bill to which appellant objected was given by other witnesses without any objection upon the part of appellant. We quote from 4 Texas Jurisprudence, 587, as follows: “It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to * * See Trimmer v. State, 135 Tex.Cr.R. 372, 120 S.W.2d 265.

Bill of exception No. 7 presents the following occurrence: Appellant testified upon the trial that he did not tell the officers to whom he surrendered immediately after the homicide that he had seen a knife near the body of the deceased and had picked the knife up. He also testified that he had the knife in his possession when he voluntarily appeared before the grand jury which was investigating the case, and that he did not tell the grand jury about the knife, stating that he was not asked about it. The state introduced an assistant district attorney and members of the grand jury, all of whom testified that appellant was asked if he had seen a knife, gun or other weapon about the deceased at the time of the killing, and that appellant had stated before the grand jury that he did not see such weapon. The officers to whom appellant surrendered immediately after the homicide were also called as witnesses and they testified that when the appellant surrendered he gave up his gun, but that he did not mention to them that he had seen or had possession of a knife which he had obtained near the body of deceased. Appellant produced witnesses who testified that they had seen this knife or a similar knife in possession of the deceased prior to the homicide. The state introduced witnesses who worked for deceased and who testified that they had never seen such a knife in the possession of deceased. Appellant then offered to prove by the witness Orr that the next morning after the homicide he told Orr that he (appellant) obtained a knife near the body of the deceased and would show it to Orr sometime. The state’s objection to this testimony was sustained. The purported conversation with ■ the witness Orr was had the next day after the homicide and after appellant had been charged with murder and after he had made bond. In Browney v. State, 128 Tex.Cr.R. 81, 79 S.W.2d 311, 315, the rule is stated as follows: “It is well settled that where a witness has been impeached by showing that he made other and different statements in regard to the matter than those testified to by him on the trial, he can be supported by showing that he made similar statements to those testified to by him recently after the occurrence. However, if the supporting statement was made after a motive or inducement existed to fabricate, the supporting statement is then inadmissible.” We think the record 'reflects the fact that there existed a motive to fabricate at the time the appellant made the statement to Orr. See Porter v. State, Tex.Cr.App., 50 S.W. 380.

Bill of exception No. 8 relates to the argument of the district attorney. As qualified, the bill of exception shows that the argument of counsel for the state was invited by the argument of appellant’s counsel. See Nix v. State, 136 Tex.Cr.R. 240, 124 S.W.2d 386.

Failing to find reversible error, 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.

HAWKINS, Presiding Judge.

In his motion for rehearing it is forcibly urged by appellant that we erred in our original opinion in holding that bill of exception number seven presented no error.

The bill reflects the following occurrence : Appellant had testified that he shot deceased in self-defense, and after he had fallen appellant picked up near deceased’s body a large dirk, which was the knife exhibited to the jury. The State then proved by some of the grand jurors that while appellant was testifying before the grand jury he was asked whether or not he had seen a knife, gun or other weapon at the time of the killing, and appellant had replied that he had not. After this impeaching evidence was in appellant offered to prove by the witness Orr that appellant had told said witness that he had picked up a knife, and had it in his possession and would show it to Orr sometime. At the time appellant made said purported statement to Orr, appellant had been charged by complaint with murder and had been released on bond. Under these circumstances the trial court excluded Orr’s proffered testimony.

There is no uniformity in the holdings of the courts of different jurisdictions in regard to permitting a witness to be supported by statements consistent with his evidence on the trial where he had been impeached by proof of statements inconsistent with the evidence given by said witness. In some jurisdictions the supporting statement is excluded altogether; in others, proof of the supporting statement is admitted if made at a time prior to the inconsistent statement. See 70 C.C., Sec. 1135, with eolation of authorities from many courts.

In our own state the holding on the subject has been consistent from the beginning, the only variance occurring some time in the application of the rule in a particular case. The rule itself as adopted by this court is very clearly stated by Mr. Branch in his valuable Ann.Tex.P.C., in Sec. 181, page 110, as follows, relating to the State’s witnesses: “Where a State’s witness is attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the present trial, it is not error to permit the State to support the witness by showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial.” In the same section on page 111 the rule is stated as it applies to the defendant’s witnesses, and reads as follows: “Where defendant or his witness has been impeached or sought to be impeached by proof of contradictory statements, it is error to refuse to permit defendant to sustain his own testimony or that of his witness by proof of statements similar to those testified to on the trial which were made shortly after the transaction and before any motive or inducement existed to fabricate.” Many cases are cited supporting the rule in both instances.

In applying the principle where a defendant is the witness it must be remembered that this court is committed to the proposition that when a defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be cross examined, contradicted, impeached and sustained, the same as any other witness, unless there be some statutory limitation. Branch’s Ann.Tex.P.C., Sec. 147, 45 Tex.Jur., Sec. 309.

The reason why a supporting statement made by a witness after a motive to fabricate has arisen is held inadmissible is that to permit its' use would be obnoxious to the “general rule that a party cannot make evidence for himself, either by his acts or his declarations.”

Shribers v. State, 7 Tex.App. 450.

Appellant relies largely upon Hudson v. State, 49 Tex.Cr.R. 24, 90 S.W. 177, in support of his position that Orr’s testimony was admissible. Exactly the same reliance on the Hudson case was had in Blackburn v. State, 78 Tex.Cr.R. 177, 180 S.W. 268, 270. After reference to the Hudson case the opinion in Blackburn’s case proceeds as follows: “It has always been the rule in this state that when the state seeks to impeach a witness by proof of contradictory statements, he may support his testimony by showing that he had made similar statements to that he testified to on the trial. This is not only the rule announced in the Hudson' Case, supra, but it has been so held in Williams v. State, 24 Tex.App. [637], 666, 7 S.W. 333, Craig v. State, 30 Tex.App. 619, 18 S.W. 297, Campbell v. State, 35 Tex.Cr.R. [160], 163, 32 S.W. 774, Pitts v. State, 60 Tex.Cr.R. 524, 132 S.W. 801, and cases cited in Branch’s Crim.Law, § 874. But the rule is equally well settled in this state that proof of statements made in harmony with his testimony made after the motive existed which would likely prompt him to testify falsely cannot be introduced to support his testimony on the trial. Conway v. State, 33 Tex.Cr.R. [327], 330, 26 S.W. 401; Sanders v. State, 31 Tex.Cr.R. [525], 529, 21 S.W. 258; Anderson v. State, 50 Tex.Cr.R. [134], 136, 95 S.W. 1037; Porter v. State, [Tex.Cr.App.], 50 S.W. 380. * * * In the' Hudson Case it is not made to appear that it was after Hudson had been charged- with an offense that he made the statement held to be admissible, and if it did so appear it would not be in harmony with a long list of authorities in this state, and as announced in 7 Ency. of Ev. p. 286. See, also, Barkly v. Copeland, 74 Cal. 1, 15 P. 307, 5 Am.St.Rep. 413; McCord v. State, 83 Ga. 521, 10 S.E. 437; Waller v. People, 209 Ill. 284, 70 N.E. 681; State v. Vincent, 24 Iowa 570, 95 Am.Dec. 753; State v. Hendricks, 32 Kan. 559, 4 P. 1050; State v. Fontenot, 48 La.Ann. 283, 19 So. 113; Commonwealth v. Jenkins, 10 Gray (Mass.) 485; People v. Finnegan, 1 Parker, Cr.R. (N.Y.) 147; State v. Exum, 138 N.C. 599, 50 S.E. 283; Commonwealth v. Brown, 23 Pa.Super. 470; State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am.St.Rep. 661; Legere v. State, 111 Tenn. 368, 77 S.W. 1059, 102 Am.St.Rep. 781.”

It is worthy of note that Judge Davidson, who wrote in Hudson’s case, was still upon the court when the opinion in Blackburn’s case was written, and apparently acceded to the statement that the Hudson case was out of harmony with the cases mentioned in the Blackburn opinion unless given the construction therein indicated.

In addition to the authorities cited in our original opinion and those collated in the opinion in Blackburn’s case, we cite the following upon the general rule that the supporting statement sought to be introduced in evidence must have been made before there was any motive on the part of the witness to fabricate: Ballow v. State, 42 Tex.Cr.R. 263, 58 S.W. 1023; Browney v. State, 128 Tex.Cr.R. 81, 79 S.W.2d 311; Williams v. State, 120 Tex.Cr.R. 288, 49 S.W.2d 772; Bryan v. State, 121 Tex.Cr.R. 285, 50 S.W.2d 298; Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611; Naugle v. State, 118 Tex.Cr.R. 566, 40 S.W.2d 92; Stoker v. State, 118 Tex.Cr.R. 524, 42 S.W.2d 72. It will be observed from examination of the authorities that the rule excluding the proof of supporting statements of a witness who has been impeached by proof of contradictory statements has consistently been applied regardless of whether the witness be1 a State’s or an accused’s witness. In other words, the rule of evidence is, and should be, the same whether it aids or harms the State or the accused.

We take it that after an accused has been charged by complaint with a crime and been released on bond, as was appellant in the present case, it would not be debatable that a motive existed which would prompt him to make statements favorable to his defense against the accusation. That one so charged with the commission of an offense becomes a witness in his own behalf upon the trial should not change the rule of evidence regarding contradictory or supporting statements. There is no statutory limitation regarding such evidence. If appellant should be here permitted to introduce in evidence the statement claimed to have been made to Orr for the purpose of supporting appellant’s evidence on the trial after the State had proven the contradictory statement we would have one rule of evidence applying to witnesses for the State and another rule of evidence applying to witnesses for a defendant, or to a defendant when he becomes a witness for himself.

Such a condition would be most confusing, highly undesirable and improper.

For the reasons stated we adhere to the views expressed in our original opinion. The appellant’s motion for rehearing is overruled.

GRAVES, Judge

(dissenting).

Appellant has filed a vigorous motion wherein he alleges we were in error when we held that the trial court was correct in excluding the proffered testimony of W. W. Orr relative to a purported conversation had with appellant the next morning after the alleged homicide. This matter was properly excluded by the trial court, so we herein held in. the original opinion, because of the fact that same was self-serving and was made after a motive or inducement existed to fabricate. I confess this matter has given us much concern. I find in Mr. Branch’s Penal Code, p. Ill, the following statement: “Where defendant or his witness has been impeached or sought to . be impeached by proof of contradictory statements, it is error to refuse to permit defendant to sustain his own testimony or that of his witness by proof of statements similar to those testified to ón the trial which were made" shortly after the transaction and before any motive or inducement existed to fabricate.” This statement is supported by a citation of twelve cases, and is true as a general • proposition, and supported by these authorities on the general doctrine that a. witness who has been sought to be impeached by statements made outside those, made upon the trial, may introduce statements made to others that would tend to corroborate the statements made by him on such' trial. That, such statements thus sought to be introduced are self- . serving can not be denied, but the rigidity of such a rule is relaxed provided such statements made by the witness occurred at a time when no motive to fabricate existed. The ruling in this instant case hinges on; the above proviso and. on account of the fact that a motive to fabricate existed at the time that this self-serving declaration was supposed to have been made to Mr. Orr, such was herein held to be inadmissible. If this rule is thus enforced, it necessarily results in depriving all accused persons of its benefits. A motive to fabricate always exists so far as a defendant is concerned; the moment the offense is committed, and outside of the res gestae, the enforcement of such rule would mean that an accused could never combat any attempted impeaching and contradictory statements to the one made at the trial, by his self-serving declarations to the contrary of the statements used in the effort to impeach him.

It was held in Hudson v. State, 49 Tex.Cr.R. 24, 25, 90 S.W. 177, in substance, that where a boy, charged -with rape, testified on the stand that he was fourteen years old, the State in rebuttal thereof placed two officers upon the stand who testified that upon, Hudson’s arrest he told them he was sixteen years old, and Hudson then offered the county attorney who heard Hudson’s statement before the grand jury before whom he had testified, and alleged that such attorney’s testimony would be that he told the grand jury that he was fourteen years of age at the time of the commission of the offense. This •court held this testimony to be admissible, and no mention in such holding was made relative to the presence of a motive to fabricate.

In the Streight case, Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742, 751, this court, sáid“It is also well settled that, when a witness is sought to be impeached by proving contradictory statements, then such witness' can be supported by showing that she. made the same statement, as she makes on the trial, in a former recital of the matter. These were the main witnesses for defendant, and this action of the court was very material error.”

. This • court has long ago held that where a State’s witness has been impeached relative to some material testimony given by such witness upon the trial of the case, the State had the right to attempt to bolster up such witness’ testimony by showing that such witness had about the same time made to other persons statements similar to the ones made while testifying on the stand. The case of English v. State, 34 Tex.Cr.R. 190, 200, 30 S.W. 233, 235, in an opinion by Judge Hurt'holds as follows:. “Appellant complains of testimony to the effect that the witness gave on the night of the homicide a similar version of the facts attending same as sworn to by him on the trial. Appellant before this, had made an attack upon him, by trying to prove that his evidence was recently fabricated.' Under this state of case the state had the right to sustain her witness by proving that just after the homicide her witness made the same statement in substance as that sworn to on the trial, and by this means disprove that his testimony was recently fabricated.” This decision has been followed in Fondren v. State, 74 Tex.Cr.R. 552, 169 S.W. 411, 428. If such rule should and does apply relative to a witness for the State, the same reliance should be had thereon in behalf of the accused.

Mr. Wharton in his work on Criminal Evidence, 10th Ed., Vol. 1, Sec. 491, page 1019, makes the following statement: “And where a witness has been impeached through contradictory statements, some states allow proof of consistent statements to re-establish his character. In those states the consistent statements are admissible whether under oath or not, and whether written or verbal, but the consistent statement must be relevant, and it must correspond in substance with the statement to be sustained. Such statements may-be proved by any person who heard the corresponding statement.” As to the states adopting such a rule, this State is listed. by the following cases: Wallace v. State, 46 Tex.Cr.R. 341, 81 S.W. 966; Lee v. State, 44 Tex.Cr.R. 460, 72 S.W. 195; Hardin v. State, 55 Tex.Cr.R. 631, 117 S.W. 974, 977. These citations seem to support Mr. Wharton’s text.

We quote from Hardin v. State, supra: “If the state proved that appellant made different statements from those sworn to on the trial of this case, then it would be permissible to show that the appellant made other statements in consonance with his statement here sworn to; * *

From the case of Williams v. State, 24 Tex.Cr.R. 637, 7 S.W. 333, we quote the syllabus rather than a more lengthy paragraph of the opinion: “It is now a well settled rule of practice in this State that an impeached witness may be corroborated by proof that he had at other times made the same statements as those testified to by him on the trial, and about which he was impeached. Under this rule, it is held that the trial court erred in refusing to permit the defendant to introduce proof to support his impeached witness by showing that, prior to the trial, she made statements substantially the same as those she made on the trial and about which she was impeached.”

This rule above announced has been consistently adhered to throughout the history of our early jurisprudence. We quote from Bozeman v. State, 34 Tex.Cr.R. 503, 507, 31 S.W. 389, 390: “The appellant also contends that the court erred in refusing to permit the defendant to introduce the statement of Beulah Boze-man, the alleged injured party, made a few days after the alleged occurrence, in the preliminary examination. The state offered evidence in this case the tendency of which was to impeach the testimony of said Beulah by showing declarations that she made, subsequent to the alleged occurrence, inconsistent with her testimony given at the trial. In such a case it was proper to have admitted the testimony taken before the magistrate in rebuttal of said impeaching testimony, and the court erred in excluding same.”

The case of Campbell v. State, 35 Tex.Cr.R. 160, 163, 32 S.W. 774, holds in substance that where the prosecution has introduced testimony of contradictory statements in order to impeach a defendant’s testimony on the trial, defendant has the right in rebuttal to show by other witnesses that shortly after the transaction, a homicide, he had made statements to them consistent with his testimony on the trial.

I am aware of the fact that in an opinion by Judge Brooks in the Porter case, 50 S.W. 380, the doctrine of a motive to fabricate has been applied to an accused’s testimony, and therein it was held that the motive to fabricate was present because of the arrest and incarceration of the defendant at the time of the making of the self-serving declaration. The same holding also appears in an opinion by Judge Harper in the Blackburn case, 78 Tex.Cr.R. 177, 180 S.W. 268, in which he attempted to distinguish the Hudson case, 49 Tex.Cr.R. 24, 90 S.W. 177. From a reading of such case I am unable to say whether or not the Hudson case was. intended to be overruled. I do say that the Hudson case and further cases cited in an early paragraph hereof demand a clarification at least when read in the light of the Porter and Blackburn cases,_ supra, and that these two cases are the first time in our jurisprudence that I have been able to find the motive to fabricate limitation placed on this rule. That the motive to fabricate rule does not apply to an accused at least to such an extent that his self-serving declaration should be excluded as an effort upon his part to overcome an attempted impeachment by the State on a material matter, I think, is held, and I quote from the case of Hudson v. State, supra, in which Judge Davidson said: “The first bill was reserved to the refusal of the court to permit appellant to prove by District Attorney Baker that appellant testified before the grand jury that he would be 14 years of age on the 5th day of October, 1905. This assault should have occurred on the 3d day of June, 1905. The reason for excluding this was that it was a self-serving declaration. Appellant took the stand, and testified in his own behalf that he was under 14 years of age, and that his birthday was October 3, 1905. This conviction occurred on the 28th of September, 1905. To meet this statement of appellant, witnesses Johnson and Irvine were placed on the stand, and testified that they had warned defendant, while they had him under arrest for this offense, and that, after such warning, he stated to them that he would be 16 years old his next birthday. Appellant was carried before the grand jury by the district attorney, and, when his counsel requested that they be permitted to talk and counsel with him before testifying, the court refused them permission; and he did testify before the grand jury, and among other things stated that he would be 14 years of age the following October. When he was impeached and contradicted-by the statements of Johnson and Irvine, he ought to have been permitted to sustain himself by the statements made before the grand jury. These matters all occurred subsequent to the alleged transaction, and the testimony of Johnson and Irvine was used to contradict and impeach his testimony on the trial. His statement before the grand jury, then, should have been permitted to go in, to show that he had made the same statements out of court that he had made in court, and to meet the effect of the statements of Johnson and Irvine. The state also proved by Dock Wallace that defendant told him last winter that he would be 16 years of age his next birthday.- The rejected testimony was practically of the same character as that offered by the state; that is, statements of defendant contrary to his testimony on the trial. The statements made before the grand jury were confirmatory of his testimony on the trial, and practically of the same class of testimony. It should have been permitted to go to the jury, along with the impeaching statements.”

I think the rule relative to a motive to fabricate should not be held to apply to a self-serving declaration upon the part of an accused because of the fact that it is palpably evident that his motive to fabricate necessarily arises at the moment the offense is committed and the res gestae ceases to operate. He could never avail himself of the rule herein sought to be invoked, and would of necessity be deprived of. what has been found to be a salutary rule. The effect of a contrary holding would be to allow the exception to the rule to destroy the rule in so far as it affects an accused.

I do think, however, that such a rule relative to a motive to fabricate should be held not to apply to -the accused, because of the fact that it would inevitably work an injustice upon such accused to the extent of depriving him of any attempt to fortify his impeached statement on account of the fact that his motive to fabricate was born at the same time the offense was committed.

I think that the fairer and safer rule would be that where a defendant has been impeached by a showing that he has made other and different statements than the one made by him while on the stand, then he would have the right to show that at about the same time that he was said to have made the disserving statement, he made other statements in consonance with the statement made by him on the trial of the case.

To hold otherwise I think deprives him of the right to sustain himself when impeached by statements made outside the trial of the case because of the fact that his motive to fabricate exists immediately upon the commission of the offense, and unless this rule is relaxed to the above suggested extent, he can never endeavor to retrieve his standing before the court by ' showing similar statements made by him corroborative of the statement made while on the stand.

I am further of the opinion that we were in error in our original opinion herein where it was held that no error was shown in bill of exceptions No. 7. I think the exclusion of Mr. Orr’s testimony was error, and of sufficient gravity to cause a reversal of this cause.

I therefore respectfully enter my dissent.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    BOWLES v. STATE.
    Na. 21257.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Jan. 8, 1941.

      Combs & Dixie and J. William Wise-heart, all of Houston (King C. Haynie, of Houston, of counsel on appeal only), for appellant.
    Lloyd W. ¡Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is negligent homicide; the punishment, confinement in jail for six months.

The complaint and information embraced separate counts charging negligent homicide of the first degree and negligent homicide of the second degree. The trial was before the court without the intervention of a jury. After hearing the evidence, the trial court merely found appellant guilty and assessed his punishment at confinement in jail for six months. Nowhere in the judgment was it stated whether the appellant had been found guilty of negligent homicide of the first degree or of the second degree. We are without the aid of a statement of. facts. Appellant contends that the judgment is fundamentally defective in failing to state of which count in the complaint and information appellant was found guilty.

It is observed that the punishment upon a conviction for negligent homicide in either the first or second degree could have been six months’ confinement in jail. See Article 1237, P.C., and Article 1242, P.C. The punishment referred to in Article 1242, supra, relates to negligent homicide when the unlawful act “attempted or executed is known as a misdemeanor.” Article 1243, P.C., prescribes the punishment for negligent homicide in the second degree when the act “intended is one for which an action would lie, but not an offense against the penal law.” In the present case we are not concerned with the article last mentioned, as the complaint and information herein charged the negligent performance of a lawful act, as is described in Article 1231, P.C., and, further, the performance of an unlawful act made penal by law and called a misdemeanor. See Subdivision 1, Article 1240, P.C.

In Moody v. State, 52 Tex.Cr.R. 232, 105 S.W. 1127, 1128, it is shown that the complaint and information charged Moody with having committed an aggravated assault, which charge, by virtue of the statute, Art. 694, 695, C.C.P., included .simple assault. The jury merely found Moody guilty, not stating whether of aggravated assault or simple assault, both offenses having been submitted in the charge. The punishment assessed was a. fine of $25, which was the highest punishment for simple assault and the lowest for aggravated assault. This court held that the verdict was uncertain to the extent that a judgment could not be based upon it. We quote from the opinion, as follows: “Where both issues are submitted, a .jury should state of which degree they convict; and where, as in this case, the verdict may have been attributed to either degree, it is too uncertain, and the court cannot know for what offense the conviction was obtained, nor how to enter judgment.”

In Lewis v. State, 86 Tex.Cr.R. 135, 217 S.W. 695, Judge Lattimore, speaking for the court, used language as follows: .“The authorities all hold that, where the court submits to the jury different grades of an offense included by statute in the one charged in the information, and a general verdict of guilty is returned, fixing a punishment which might be given for more than one of the grades of offense submitted in the charge, such verdict will be bad; * * *.’’

It is the general rule that a verdict of conviction, in order to be sufficient, must “contain either in itself or by reference to the indictment or information all the elements of the crime of which the defendant is found guilty.” 42 Texas Jurisprudence, 470. Bearing in mind that the judgment of the court herein is based alone upon the finding of the court that appellant was guilty — there being no jury —it would appear that whether such finding under the circumstances reflected by the record is sufficiently definite should be determined in the light of the judicial precedents construing the sufficiency of verdicts. Giving application to the principles controlling, it is manifest that this court is in no position to determine from the finding of the trial judge herein whether appellánt had been convicted of negligent homicide of the first degree or negligent homicide of the second degree. In Hampton v. State, 92 Tex.Cr.R. 441, 244 S.W. 525, it 'was pointed out that negligent homicide in the first degree and negligent homicide in the second degree are fundamentally different. We quote Article 1231, supra, as follows: “Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action.”

We quote Article 1238, P.C., as follows: “The definitions, .rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions.”

Article 1240, P. C., reads as follows:

“Within the meaning of an ‘unlawful act’ as used in this chapter are included:
“1. Such acts as by the penal law are called misdemeanors; and
“2. Such acts, not being penal offenses, as would give just occasion for a civil action.”

It is seen from the statutes above quoted that in negligent homicide of the first degree the act is lawful, whereas in negligent homicide of the second degree the act performed by the accused is unlawful. It is evident from a reading of the complaint and information tljat the two counts embraced therein charge a single transaction resulting in the death of I. P. Smith. There being a fundamental difference between the offenses charged, and there being but a single transaction, appellant could not be found guilty of both offenses. Of which offense he has been convicted we are unable to determine from the record before us. It therefore follows that the failure of the court to specify whether the conviction was for negligent homicide of the first degree or negligent homicide of the second degree renders the judgment uncertain to the extent that it can not be amended by this court and especially would this be true in the absence of a statement of facts.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

We have before us the State’s motion for a rehearing.

In the absence of a statement of facts and any bill of exception, if by any legitimate construction the judgment of the trial court can be sustained, it is our duty to do so.

The case having been tried before the court without a jury, of course, we have no charge to a jury, nor the verdict of a jury to aid us. The finding of the court where the case is tried before him is equivalent to the verdict of a jury in the present instance, and as reflected by the judgment it apprises us of nothing save that the court found appellant “guilty”, and assessed a punishment of six months in the county jail. The judgment does not recite of what offense appellant was adjudged to be guilty, but simply remands him to jail for six months.

The question before us usually arises where an accused has been charged with an offense consisting of degrees, such as aggravated assault, .which includes simple assault, and the verdict or judgment simply finds accused “guilty”, and assesses a punishment which might be inflicted for either simple or aggravated assault. Illustrative, see Moody v. State, 52 Tex.Cr.R. 232, 105 S.W. 1127, cited in our original opinion; Winzel v. State, 47 Tex.Cr.R. 267, 83 S.W. 187; Kinchen v. State, 80 Tex.Cr.R. 106, 188 S.W. 1004, 1005. We wish to emphasize what was said by this court in the case last mentioned and quote therefrom as follows: “ * * * we wish to call the attention of trial courts and prosecuting" officers again to the necessity of having: the jury specify in the verdict the grade of the offense of which the appellant is convicted in cases where more than one degree or grade of the offense included in the indictment is given in charge to the jury. It saves trouble and prevents questions arising on the appeal that are unnecessary or ought to be unnecessary. These questions, ought not incumber records on appeal. For instance, where aggravated and simple assault are submitted to the jury, the jury should specify in their verdict of which grade of the offense they convict. There are numerous other statutes where inferior grades of offense are included or may be included under the evidence in the charge of the court. Wherever this is the case, the verdict of the jury should specify the degree of the offense of which the jury convict.”

While the court was there speaking of jury verdicts and judgments thereunder, it has equal application to similar cases tried before the court without a jury.

The State’s pleading in the present case in one count charges negligent homicide of the first degree, and in another negligent homicide of the second degree. The plea of appellant was not guilty to both counts. The very wording of the statute (Arts. 1230 to 1243 P.C., inclusive), makes negligent homicide an offense of two grades or degrees. Both were charged against appellant. The punishment assessed is applicable to either, yet neither the finding of the trial court nor the judgment entered disclose of which offense appellant was convicted.

There is a memoranda at the top of the judgment as follows: "March 30, 1940, Negligent Homicide Second Count.” This memoranda may hint that probably appellant was found guilty of negligent homicide of the second degree, but it does not supply the failure of the judgment to so recite. The seventh paragraph of appellant’s motion for new trial says: “The Court erred in finding defendant guilty of negligent homicide in second degree when the undisputed evidence showed the collision to be an unavoidable accident.”

The said motion was only a pleading in the cause and cannot be utilized by this court to supply deficiencies in the judgment, for which there seems little excuse.

The motion for rehearing is overruled.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    WYATT v. STATE.
    No. 21178.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Jan. 8, 1941.
    M. M. Crane, Jr., of Dallas, J. -R. Bo-gard, of San Augustine, and Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for burglary of a private residence at night. The penalty assessed is confinement in the state penitentiary for a term of fifty years.

The evidence adduced upon the trial is not brought up for review. In the. absence of a statement of facts, the bills of exception found in the record cannot be properly appraised by this court. See Jackson v. State, 127 Tex.Cr.R. 329, 76 S.W.2d 1046, and authorities there cited.

No error having been presented by the record before us, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a motion for rehearing in this cause and by brief and argument insists that this court should consider his objections and exceptions to the court’s charge.

It is first presented that these may be considered even in the absence of statement of facts and, specifically in the first paragraph of said motion, it is alleged that the ninth paragraph of the court’s charge is on the weight of the evidence, as is shown by the charge itself independent of statement of facts. If a fact is admitted to be true by both sides, a charge on the weight of such admitted evidence would be harmless error. Whether or not that is true in this case depends upon the statement of facts itself.

Appellant has not seen fit to have prepared and presented to this court a statement of facts in this case, and it will be presumed that there is found therein that which warrants the court’s charge. Similar reasoning rpay be indulged in each and every paragraph of the motion that is now before us.

We find in the record an amended motion for new trial setting up fifty-two grounds. Many of these have no merit under any state of facts, and the rest are dependent upon the facts of the case, without which they cannot be considered.

We adhere to the original holding and overrule the motion for rehearing.


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    McFarland v. State.
    No. 21179.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Jan. 8, 1941.

      Shead & Smith, of Longview, for appellant.
    - Lloyd W. Davidson, State’s Atty,, of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of establishing a lottery, and disposing of certain personal property by lottery, and by the jury fined $250, hence this appeal.

Appellant’s bill of exceptions No. 1 • complains because of the fact that the jury for the week having been reduced by excuses and the utilization of twelve members thereof in the trial of another case in the district court of Gregg County, there remained but eight members of the regularly drawn general panel for the week, and therefore the trial court ordered the sheriff of that county to summon additional jurors to fill out thé necessary members from which this jury was selected. We think such an action was in accordance with the statute, Art. 2116c, Sections 3, 4, and 5, Vernon’s Annotated Civil Texas Statutes.

Bill of exceptions No. 2 complains because of the failure of the trial court to charge the jury peremptorily to acquit appellant because of the fact that the “witnesses Willie Gray and Pearl Gray are accomplices or participants, the evidence showing that whatever game was indulged in or drawing had was participated in by the said Willie and Pearl Gray, and there is no sufficient corroboration of their testimony * *

We find in the record a requested charge that instructs the jury that such witnesses were accomplices, and that no conviction can be had “unless you find other evidence in the case to corroborate the testimony of the said Willie Gray and Pearl Gray you will find the defendant not guilty.” We also find under said- special instruction, above the court’s signature, the following: “Given -- Refused -.” We are left in doubt as to whether this charge was given or refused. We can only conjecture that because of its incompleteness that same was not given by the trial court. In any event we do not find any merit in this bill requesting a peremptory instruction. We do not think that the mere purchase of a ticket to this lottery drawing would constitute the purchaser a participant in the establishing a lottery, and again we think that the admitted evidence, outside these two witnesses’ testimony, shows the establishment of a lottery by appellant.

Bill of exceptions No. 3 states a sound legal proposition to the effect that one accomplice can not furnish sufficient corroborative testimony to that of another accomplice in order to meet the demands of the law. The application of this doctrine in the instant case depends, however, on matters set forth in bill of exceptions No. 3, which is concerned with a statement made to officers Lee and Whatley as to what appellant told them at the time they raided this device which is claimed to have been a lottery. The testimony shows that these officers looked through the window and saw appellant, the only white man, in a room filled with negroes, appellant shaking a bag of some kind and taking therefrom certain marbles, flat on one side with numbers thereon, and placing such numbered marbles on a table. When said marbles had been so placed, a ticket theretofore sold to some person bearing these numbers was the winning ticket, and its holder was rewarded with the payment of a certain sum of money.

A portion of this above set forth information was given through the testimony of the officers as seen by them while looking through the window of the house where this drawing was being held by appellant, and the portion as to how the award of money was made came from a statement given to the officers by appellant after they had entered the room where the drawing was being held. It was the contention of appellant that appellant “was under arrest at the time,” and that therefore the court should have instructed the jury to return a verdict of not guilty, the reason being that the witnesses, the Gray negroes, were accomplices, and there being no testimony other than that of these negroes and the two officers, the State had failed to make out a case.

The officers’ testimony shows that they arrested everybody in the room when they first entered it; however, upon the suggestion of appellant and his promise to bring in the four negroes employed by him, as well as come himself to the officers on the next day, they released all parties, and when they left they took no one with them, leaving all parties at the house where the game was being played.

In the first place we do not think that Willie and Pearl Gray were accomplices. Willie Gray was not at the house at the time. He and Pearl Gray merely bought a ticket from a negro agent of appellant, and had nothing to do with the establishment of this lottery. They owned none of this paraphernalia and shared in none of the profits. True, such game was in their house, but they were not interested in same, nor did they understand its operation. They merely bought a ticket for ten cents in this drawing. As to the statement of appellant to the officers, it is not shown when same was made, nor at what time during the raid, — whether during or after the officers had come into the house. If made when they entered the house immediately, as may be inferred, then it seems to be res gestae of the transaction, as the actual drawing was at such time taking place and appellant explained same to them. If the statement was made after the raid had taken place, then it would seem to have been made after appellant as well as his helpers had been released by the officers. In either event we think the same was admissible. We also think the trial court was correct in overruling the motion for an instructed verdict.

Bill of exceptions No. 4 relates to the court’s failure to give a peremptory instruction because there was no testimony going to show by what name the game thus established was called. We do not agree with this contention. A witness denominated the game as “Policy”. We think that was correct. It was also sometimes called the game of “Numbers”. However it was not material by what name the game was called; it was only material as to by what means it was played.

We also think that the indictment was sufficient when it alleged that the name of the game thus played was unknown to the grand jury, the name itself not being a material matter. We see no merit in bill No. 6 and same is overruled.

Bill No. 7 is multifarious and contains many different propositions and rulings thereon, and can not be considered by us.

We have carefully examined all other bills presented to us and find that they are but a reiteration of matters herein already passed upon, and same are deemed to be without merit and are overruled.

The judgment is affirmed.

On Motion for Rehearing’.

HAWKINS, Presiding Judge.

Appellant was tried in the County Court upon an indictment returned into the District Court of Gregg County.

No question as to the jurisdiction of the County Court was raised prior to nor during the trial, nor mentioned in the motion for new trial nor suggested upon original submission in this court. For the first time in his motion for rehearing here appellant seeks to raise the question of jurisdiction of the County Court for lack, as he contends, of an order of transfer of his case from the District Court to the County Court as provided in Article 419, C.C.P.

It will be found that some of the very cases relied upon by appellant were expressly overruled in Lenzen v. State, 112 Tex.Cr.R. 297, 16 S.W.2d 234, 235, in which the question of jurisdiction of the County Court was sought to be raised for the first time in this court. It was said in Lenzen’s case: “We are not in agreement with appellant that he may raise this matter in this court, and it appearing to have been here presented for the first time, we think it comes too late.”

It is not necessary to determine whether the Lenzen case should be followed here because we think appellant’s contention is based upon a misapprehension of the record.

The original transcript was filed in this court on May 11, 1940. It was discovered that in said transcript no order transferring the present indictment appeared. A supplemental transcript was obtained and filed in this court on September 16, 1940, from which it appears that the indictment was returned into the District Court of Gregg County on November 23d, 1939, and on December 4th, 1939, was ordered transferred to the County Court of said county. The County Clerk of said county attaches to said supplemental transcript a certificate “that the above and foregoing pages contains a true and correct copy of the original order or transcript transferring the case of State of Texas v. Emmett McFarland from the District Court to County Court as same appears filed in this office on December 4, 1939.” It is thus made to appear affirmatively that the County Court had jurisdiction of appellant’s case, but that the order of transfer was simply omitted from the original transcript.

Appellant renews his contention that the trial court should have instructed a verdict of not guilty, and that this court should not permit the conviction to stand, it being appellant’s position that Willie Gray and Pearl Gray were accomplice witnesses and that their evidence was not sufficiently corroborated to meet the requirements of Art. 718, C.C.P.(1925). It appears that Article 639, P.C. permitting conviction for certain gaming offenses on the unsupported testimony of an accomplice witness has no application where the prosecution, — as here — is for establishing a lottery. Art. 654, P.C., 1925. We remain of opinion as expressed originally that neither Willie Gray nor. Pearl Gray became accomplice witnesses in appellant’s offense of establishing a lottery from the mere fact that they purchased a ticket which permitted them to have a chance in the result of the lottery.

It is pointed out in appellant’s motion that the lottery in question was established at Willie Gray’s house and that he received compensation for permitting his house to be so used. Upon further consideration we think this fact admitted by said witness does characterize him as an accomplice witness. It does not follow, however, that a reversal should result. There is no evidence that Pearl Gray knew that her husband, Willie, was being paid for the use of his house, or that she had any connection with the lottery scheme further than purchasing a ticket, and it can not be said as a matter of law that she was an accomplice witness. Her evidence corroborates the testimony of her husband. It is further our opinion that even if both she and her husband were held to be accomplice witnesses, there is ample corroborating evidence in the record from appellant’s own admissions to the officers and the latter’s testimony as to the things seen by them before their presence became known to satisfy the demand of the statute, Art. 718, C.C.P.1925, that accomplice witnesses must be corroborated by other evidence tending to connect accused with the commission of the offense charged before a conviction can be had.

The indictment alleged that the lottery established by appellant was “under a name and denomination to the grand jurors unknown.” It is urged by appellant that under such averment it was incumbent on the State to show that the grand jury used ordinary diligence to ascertain the name of said lottery, and contends that the State failed to make such proof and that such failure is fatal to the State’s case. The rule invoked will be found stated in Branch’s Ann.Tex.P.C. § 2444,, and many supporting authorities are listed. As we understand the record the State undertook to support the averment mentioned by the evidence of Mr. Anglin, the Assistant District Attorney of Gregg County, who was with the grand jury when it was investigating the charged offense. He testified as follows: “I was present at the time the negroes that were arrested at this particular residence were questioned. I was present when Willie Gray and Pearl Gray and every witness in this case, when they testified before the Grand Jury what this game was called. Some called it Polly, some called it Policy Game, some said numbers, other did not know what it was called.”

It would appear from this testimony that the grand jury was trying to find out the name of the game, and when the witnesses did not agree on it, and some did not even pretend to know what it was, it occurs to us the grand jury was justified in saying that it did not know the name, and that there is no showing of lack of diligence to ascertain it.

The motion for rehearing is overruled.