text:
    WOODS v. KIERSKY.
    (No. 1193-4935.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.

      Sadler &' Cox, of Dallas, for plaintiff in er.ror.
    Coke & Coke, of Dallas, for defendant in-error.
   CRITZ, J.

This is a suit for injunction originally filed in the district court of Dallas county, Tex., by John W. Woods, plaintiff in error, hereafter called plaintiff, against Mrs. M. E. Kiersky, defendant in error, hereafter called defendant, to restrain said defendant from erecting a building alleged to be a garage on a lot owned by her, and situated at the corner of Gaston avenue and Moreland street. Plaintiff in error prayed for a temporary writ of injunction, and on presentation of said petition said temporary writ was issued. The defendant filed answer to the merits, and motion to dissolve the temporary injunction. The district court, upon a hearing, sustained a general demurrer to the petition, and plaintiff refusing to amend, dismissed the case.

The plaintiff’s petition is very voluminous- and comprises 14 pages of the transcript. Many allegations are contained in said petition charging disorderly conduct on the defendant’s premises. We do not consider any of these allegations germane, for the reason that - the only relief sought in this cause is an injunction to prevent the erection of a building on defendant’s lot, designed to be used as a garage on the lower floor and servants’ quarters on the upper floor.

The part of olaintift’s petition which we consider germane to the decision of this case charges, in substance: That he is the head of a family, and owns and occupies with his family, as a -residence, a two-story brick building located at 4513 Gaston avenue in Dallas, Tex., being a lot 75 feet fronting on Gaston avenue, and extending back northwesterly 257 feet, and is a part of block 769, between Carroll avenue and Moreland street; that the defendant uses and occupies a two-•story frame building used as a boarding and rooming house, located at 4519 Gaston avenue in said city, and situated on a lot facing 75 feet on said Gaston avenue and running back 257 feet, defendant’s lot lying immediately ■adjoining plaintiff’s said lot on the east, the east line of plaintiff’s said lot being the west line of defendant’s lot, and defendant’s lot bordering on Moreland street; .that about January 15, 1927, the defendant evidenced a purpose to make a change'with reference to certain buildings on her lot, and in pursuance of such determination, obtained a building permit from the city authorities permitting her to wreck and rebuild a garage and servants’ house on her lot and proceeding thereunder, defendant was preparing to construct a building on her said lot in close proximity to the west line thereof, and near the middle of said lot, from its front to its back being about 40 feet, and extending eastwardly about 24 feet, so that same would have a ground area ■of about 24x40 feet, two stories high, and so arranged as to have four apartments for ears downstairs, and four or more rooms upstairs, to face on Moreland street; that said building when completed would be used by the defendant as a garage downstairs, and a servants’ quarters upstairs. Plaintiff alleges that if said garage is permitted to be built its use will greatly disturb plaintiff’s family, and the tenants of plaintiff, and will greatly damage the value of the plaintiff’s property. Plaintiff also alleges that said garage will face on Moreland street and not on Gaston avenue, as required by the ordinance in question, and that an ordinance of said city prohibits the building of said garage at the point on said lot where defendant is preparing to build same.

Plaintiff’s petition contains numerous .allegations to the effect that negroes will use the upper story of said proposed building, and that its upper story will be on a level with the upper story of plaintiff’s house, etc. We do not consider any of these numerous allegations actionable to prevent the building of this proposed structure.

The part of the ordinance made the basis of this suit reads as follows:

“See. 166. That wherever 50% or over of the lots on any street or avenue in the residence section of the City of Dallas have been improved, and the building line of said residences on said street or avenue made permanent, all buildings hereafter erected on adjoining lots shall keep the front building line of such building at the average distance back from the front line as those already built, so that the same shall conform to the permanent building line observed by 50% or over of the improved lots on said street or avenue. Provided, further, that any building thereafter erected in any block or any street or avenue in the residence section of the City must have its front building line at the average distance back from the street as the front line of the buildings already built in any such block.
“That wherever any lots are laid off by any plat showing a frontage for said lots on any street or avenue in the residence section of the City all buildings erected on same, shall keep their frontage on said street or avenue so as to conform to the frontage of the lots shown on any such plat.
“Before any building is constructed a permit shall be obtained from the Building Inspector, and it shall be the duty of the said officer before issuing said permit to require that the provisions of this ordinance shall be fully observed.”
“Section 192. All private garages shall-be built at the rear of the lot upon which they are erected and at the angle of the lot. No such garage shall be nearer than twelve feet to the street line.”
“Art. 6. Sec. 78. Unless a penalty is otherwise provided herein for a violation of certain provisions of this ordinance, then any person, firm, company or corporation, their agents, servants or employees violating any of the provisions of this ordinance where a penalty is not otherwise provided, shall, upon conviction in the corporation court, be fined in any sum not exceeding $200.00, for each and every day that any person (as that term is defined herein) shall fail or omit, neglect or^ refuse to do any act required by the terms of this ordinance, or shall do any act in violation of the terms of this ordinance shall be subject to the penalty herein provided for not exceeding $200.00.”

We agree with the holding of the Court of Civil Appeals that the provisions of the above-quoted ordinance, which requires all buildings to face on the street on which the lot faces, only has reference to the main structures and not to subsidiary structures. City of Dallas v. Davis, 266 S. W. 544. Therefore all that part of the petition which seeks an injunction on account of the alleged fact that the building ■ faces on More-land street, and not on Gaston avenue, will be treated by us as surplusage, and having no bearing on the case.

The petition also contains numerous allegations with reference to a generally deplorable condition alleged to have previously existed with reference to disturbances of the peace, etc., on defendant’s premises. We are unable to see how these allegations can, even remotely, have any connection with, or bearing on, the only question involved in this case —the right to build the garage at the point in question—and all those parts of the petition will also be treated as surplusage.

Also the petition contains allegations that those occupying the upper rooms of the building in question here will be on a level with the upper rooms of plaintiff’s residence, and conditions and inconveniences, etc., that will result to plaintiff as'a result thereof, etc. We think that this part of plaintiff’s petition is also surplusage. Stated as a principle of law, defendant has the right to have a two-story building on her lot at the point alleged, and no court would have any right to enjoin such.

This brings us to the one question remaining, and that is whether the building alleged is in violation of section 192 of the ordinance above quoted, and, if so, whether plaintiff’s petition contains sufficient 'allegations, as against a general demurrer, to authorize a court of equity to grant injunctive relief.

aIt. is well settled as the law of this state that a private individual cannot maintain a suit to enjoin the violation of a penal law, unless such violation results in damage to such person, peculiar to him, and not common to the public in general. If the petition is sufficient, as against a general demurrer, to allege a violation of section 192 of the ordinance, and damages resulting therefrom, peculiar to plaintiff, and not common to the public, the trial court erred in sustaining the general demurrer, and the Court of Civil Appeals erred in affirming that decision. We think a careful examination of the petition will disclose that it. is sufficient, as against a general demurrer, to allege that the defendant is preparing to erect a private garage on her ■lot at a point not at the rear thereof, and at a point prohibited by said section 192, and damages resulting to the plaintiff that are peculiar to him, and not common to the general public, as a result thereof.

A garage, as a general thing, is “a station in which motorcars can be sheltered, stored, repaired, cleaned, and made ready for use; also a place of private storage for motorcars; a stable for a motorcar.” Century Diet, and Enc.

We have not been able to find a legal definition of the term “private garage," or of the opposite term “public garage,” but we are convinced that the term “private garage,” as used in the ordinance, means a private, as contradistinguished from a public, garage. Further, we think that general definitions of things of like character, such as warehouses, etc., will apply. 40, Cyc. p. 401, defines a public warehouse as: “The term ‘public warehouse’ is something applied to warehouses generally to distinguish them from places in which goods are kept by the owners, or for certain other persons, but not for the public generally,” etc.

Applying the same general principle a private garage, within the meaning of this ordinance, is a structure or building kept for the storage of motorcars by the owners, or certain other persons, but not for the general public. Garages provided by the owners of private residences, apartment houses, boarding houses, etc., for themselves and their guests or tenants, are private garages.

We are further of the opinion that a private garage, within the meaning of this ordinance, is a building or structure, the essential character and dominant features of which are those of a garage. The mere fact that a part of the building is to be used for servants’ quarters, or sleeping apartments, would not prevent the building from being a private garage within the meaning of the ordinance, if its essential character and dominant features are those of a garage.

As a consequence of what we have said, it follows also that the mere fact that a building, whose essential character and dominant features are for purposes other than those of a garage, that may contain places or apartments for the storage of motorcars, such, for instance, as private residences containing such features, would not be garages within the meaning of said section 192.

We are further of the opinion that where the facts are undisputed as to the kind and character of the building, and its dominant features, the question as to whether the building is a private garage becomes a matter of law, and that as a matter of law the building described in the plaintiff’s petition is a “private garage” within the meaning of the ordinance.

The Court of Civil Appeals holds that it is the duty of the city of Dallas to construe and enforce its own building ordinances. We agree with this holding as a general principle of law, but we do not believe that when the violation of a building ordinance, penal in its nature, results in damages to the owner of abutting property, which is peculiar to him, as above stated, the mere fact that the city has issued a permit for the violation of the ordinance can avail as a defense.

Believing that the petition, as against a general demurrer, is sufficient to allege a violation of section 192 of the ordinance above quoted, and resultant damages to ifiaintiff peculiar to him, we recommend that the judgments of the Court of Civil Appeals and of tlie district court be reversed, and the cause remanded to the district court for a new trial, and that the original temporary-injunction granted by the district court be adjudged to be in force from its original issuance, pending final disposition of this ease.

CURETON, G. J. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded to district court, and original injunction continued in force pending final judgment, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: LEDDV, J.

license: Public Domain

text:
    GREENWALL et al. v. LIGON et al.
    (No. 951-5071.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    Ross, Ross & Alexander and McCart, Curtis & McCart, all of Port Worth, for plaintiffs in error.
    T. J. Powell, R..C. Armstrong, Jr., and Virgil R. Parker, all of Port Worth, for defendants in error.
   LEDDV, J.

We adopt the following statement of the case made by the Court of Civil Appeals:

“Mitchell W. Greenwall sued Frank De Beque, W. L. Ligón, purporting to be the administrator of the estate of Maggie De Beque, deceased, May De Beque, a minor, and Guy J. Price, Jr., guardian of the estate of May De Beque, and for cause of action alleged: That W. L. Ligón was theretofore the duly appointed, qualified, and acting administrator of the estate of Maggie De Beque, deceased, that Guy J. Price, Jr., was the duly appointed and qualified guardian of the estate of May De Beque, a minor, and that Frank De Beque claimed to have been the common-law husband of Maggie De Beque, deceased. That on or about January 21, 1924, plaintiff made and executed his eight promissory notes in part payment for certain lots purchased; note No. 1 being for $2,500, due 6 months after date, note No. 2 for $2,-500, due 12 months after date, and notes S to 8, both inclusive, for $5,000 each, due on or before 2 to 7 years, respectively, after date, said notes reciting that they were payable to the estate of Maggie De Beque. That plaintiff paid note No. 1 for $2,500 unto said W. L. Ligón, as administrator of the estate of Maggie De Beque, deceased, and that said Ligón, under orders of the probate court as administrator, executed a release of said note and the lien securing the same. That on May 13, 1924, the-county court of Tarrant county entered an order authorizing said Ligón as administrator to sell the above-described note No. 2 to Stella H. Daggett, and that plaintiff subsequently paid said note in full to Stella E. Daggett, and the same was released by her. That, after the execution of said notes by plaintiff and the payment of the first two notes, plaintiff learned that Frank De Beque and W. L. Ligón, as administrator, and May De Beque, by her guardian, Guy J. Price, Jr., and other parties not necessary here to mention, were parties to a suit involving the estate of Maggie De Beque, deceased, the suit being cause No. 66897, styled Frank De Beque v. W. L. Ligón, Administrator, et ah, and by the terms of the judgment in said suit a decree was entered to the effect that the three parties not involved in this appeal were to be paid the sum of $7,500 each out of said estate, and that all the property of the estate of Maggie De Beque was the community property of herself and Frank De Beque. That May De Beque was the adopted child and only child of said Maggie De Beque, and that the estate of Maggie De Beque should go in equal portions to said Frank De Beque and May De Beque. That subsequently, on April 4, 1925, an order was entered in this cause, setting aside the above judgment, and on April 15. thereafter judgment was entered in said cause, based upon a verdict of the jury specially finding that May De Beque was a minor, and that her guardian and next friend was Guy J. Price, Jr., and that said minor and her guardian were to have and recover from the defendant W. L. Ligón and other parties all of the six unpaid vendor’s lien' notes executed by plaintiff. That said Ligón did not appeal from said last-named judgment, but that an appeal was taken by Frank De Beque, without his filing a supersedeas bond, and that a writ of error is now pending in the Supreme Oourt. That May De Beque and her guardian are claiming that said above six notes are the property of said May De Beque, and that they are entitled to receive payment thereof from plaintiff, and are demanding the same, and are contending that said judgment entered on April 15th is a final judgment as against Ligón, by reason of his not appealing therefrom. That said Li-gón has possession of said notes, and is claiming the same as administrator of the estate of Maggie De Beque, and is insisting that same be paid to him as said administrator, and is contending that said judgment herein-before mentioned is not a final judgment against him, for the reason that it is therein adjudged that it be certified to the probate court for observance. That said Ligón is still contending that he is the administrator of the estate of Maggie De Beque and as such is entitled to collect said note, in face of the fact that by said judgment said May De Beque and her guardian recovered judgment of him for the title and possession of said six notes, and in the face of the -fact that he did not appeal from said judgment. That, in said suit pending before the Supreme Court of Texas ([Tex. Com. App.] 292 S. W. 157) Frank De Beque is claiming that he is the surviving" husband of Maggie De Beque, and that said notes are a part of the community estate of himself and his deceased wife, Maggie De Beque. That he, as such community survivor, is entitled to the possession, control, and disposition of said six notes.
“Plaintiff alleged'that by reason of said three claims to the title and right of possession of the unpaid six vendor lien notes he was uncertain as to which one of the three he should make payment of the notes, and secure a valid release thereof; that he could not, because of said conflicting claims, safely pay the notes and interest to either of said conflicting claimants upon his release alone. Hence he interpleaded W. L. Ligón as administrator, May De Beque and her guardian, Guy J. Price, Jr., and Frank De Beque, and paid into court the amount he claimed to be due, which, with interest, amounted to $32,341.13.
“Frank De Beque answered by a general demurrer, a general denial, a plea of estop-pel, and further pleaded that W. L. Ligón as administrator of the estate of Maggie De Beque was entitled to recover from plaintiff the full amount of principal, interest, and attorney’s fees as provided in said notes.
“W. L. Ligón answered by way of a general demurrer, and specially admitted the execution of the notes by plaintiff, payable to the estate of Maggie De Beque, deceased. He specially pleaded a judgment rendered in the district court of the - Forty-Eighth judicial district, Tarrant county, which authorized Carl M. Johnson, commissioner, to' convey by proper deed the property and real estate described in plaintiff’s petition to plaintiff, and to accept eight vendor’s lien notes in the aggregate principal sum of $35,000 therefor, payable to the estate of Maggie De Beque, deceased. He alleged that as administrator of the estate he was entitled to the payment of said notes, and he prayed for a judgment against plaintiff for his debt, interest, and attorneys’ fees and for a foreclosure of the vendor’s lien.
“May De Beque pleaded the judgment of April 15, 1925, rendered by the Ninety-Sixth judicial district court of Tarrant county, in which said minor through her guardian recovered a judgment against Frank De Beque and W. L. Ligón, as administrator. In her answer she recited that only Frank De Beque appealed therefrom, and the judgment of the district court was affirmed by this court (286 S. W. 749), and that a writ of error had been granted by the Supreme Oourt, and the case at the time of the filing of the answer was pending in the Supreme Oourt. She prayed for an abatement of this suit, at least pending the decision of the Supreme Court. She entered a general demurrer and a general denial.
“As to the plea of plaintiff that he be allowed attorneys’ fees for bringing the suit, she alleged: That just prior to the filing, of this suit Aubrey Alexander, of the firm of Boss, Boss & Alexander, called upon Edwin T. Phillips, one of the attorneys of May De Beque, and Guy J. Price, Jr., as guardian, and stated that Mr. Greenwall wanted to pay off these notes, and Alexander was then and there advised by Edwin T. Phillips that so far as this estate was concerned they did not insist nor care about these notes being paid off at that time, and that they would prefer that same be allowed to continue drawing interest until the final determination of the issues in the cause now pending in the Supreme Oourt. That, while Mr. Alexander did advise said attorney that Mr. Ligón, as administrator, was willing to execute a release, he did not leave the impression or advise said attorney that it was imperative that some action be taken to allow Mr. Greenwall to pay these notes. That Phillips told Alexander that May De Beque, to whom these notes had been adjudicated in the judgment pending in the Supreme Oourt, would not insist upon these notes being paid because one or more of said notes was past due, and that, so far as she was concerned, or her guardian, they would not request the payment of said notes, and said minor’s estate, being the owner of same, would not do anything that would be detrimental to the rights of plaintiff. That he did not see how the administrator could insist upon attorneys’ fees if the property was finally adjudicated to May De Beque by the Supreme Oourt, and that at least said minor and her guardian would do anything that was reasonable and would not inflict any hardship upon Greenwall. That Mr. Alexander did not advise the attorneys for said minor that he was going to file a suit or in-terpleader, nor that it was absolutely necessary at this time that this matter be determined, or else some action would have been taken by way of agreement with all parties to relieve plaintiff from any responsibility. That, without so advising said attorney or the guardian of May De Beque, this suit was filed by plaintiff. She prayed that, if a judgment be entered herein, the property be decreed to be that of the said May De Baque, awarding the same to Guy J. Price, Jr., the guardian of her estate, and that no attorneys’ fees or costs of suit be allowed to plaintiff or his attorneys, but that all costs of this proceeding be taxed against them.
“The cause was tried before the court without the intervention of a jury, and the trial court held that the plea in abatement of May De Beque, or Guy J. Price, Jr., should be overruled, in so far as the plaintiff was concerned, and that all special exceptions to the original petition on the part of other defendants should be overruled. The court further found: That on or about the 1st day of January, 1924, in a suit entitled W. L. Ligón, Administrator v. Mitchell W. Greenwall, numbered 66200 on the docket of the Forty-Eighth judicial district court, the plaintiff Greenwall 'executed and tendered certain promissory notes, and that Oarl M. Johnson, as commissioner, was authorized to execute to plaintiff a deed to the lots in question, situated in Fort Worth, Tarrant County. That said notes were payable on or before the respective maturity dates, and that plaintiff, prior to the time he filed his original bill of inter-pleader, on, to wit, September 25, 1926, elected to pay the full amount due, both principal and interest, on each and all of said promissory notes. That on said September 25, 1926, and after said plaintiff elected to pay said notes, and when he filed his original bill of interpleader herein, the full amount of both principal and interest due and unpaid on all of said notes was the sum of $32,341.13. That plaintiff learned prior to said time that W. L. Ligón, as administrator of the estate of Maggie De Beque, deceased, Frank De Beque, and Guy J. Price, Jr., as guardian of the estate-of May De Beque, were each claiming that he was the owner and holder of each and all of said notes, and entitled to receive payment thereof, and, as there was a reasonable doubt both at law and in fact as to which of said defendants was the legal and equitable owner and holder of said notes and entitled to receive payment thereof, and there was such reasonable doubt as to which of said defendants plaintiff could safely pay said notes, that plaintiff had paid into court said sum of $32,-341.13, and that he had agreed that he would pay to his attorneys a reasonable attorneys’ fee, and the court concluded that $2,000 was a reasonable and proper fee to pay said attorneys, and that same should be taxed as a part of the costs herein, and paid out of the-fund deposited by the plaintiff. That it further appearing that defendants had not pleaded in the suit against each other, and the plaintiff was in no way interested in the respective rights and claims of the defendants as against each other to said funds, and was neither a proper or necessary party to a suit between said defendants involving ownership of said funds. That plaintin is entitled to have the matters in controversy between him and the defendants as a body kept separate and segregated from any controversy that has arisen or may hereafter arise as between the defendants as to their respective rights and claims to the funds deposited by plaintiff.
“It was accordingly adjudged that plaintiff have and recover of and from said defendants, and each of them, judgment in the amount so paid by him into court, and said sum so paid into court stand in the place of and in lieu of the notes hereinabove described, and the vendor’s lien retained upon the property to secure the payment thereof; that said plaintiff do have and recover from said defendants and each of them judgment forever canceling the six notes hereinabove described, and the vendor’s lien retained therein. It was further decreed that plaintiff recover $2,000 attorneys’ fees, and that said attorneys’ fees be taxed as a part of the costs in the suit, and the clerk of the court was directed to pay said $2,000 to the plaintiff and take his receipt therefor, and to pay all costs of the suit out of the funds so deposited in the court by plaintiff; and the question as to which of said defendants said costs shall be finally taxed against shall await the final disposition of this case between the defendants heroin on their pleadings. It was further adjudged and decreed by the court that defendants herein and each of them b.e required to plead as against each other, on or before the 1st day of March,'1927, setting up their right, title, claim, and interest as against each other in and to the balance of the funds on deposit herein and held by the clerk of the trial court. It was further adjudged and decreed that W. L. Logon, administrator of the estate of Maggie De Beque, take nothing by his cross-action against plaintiff, Greenwall, and that the costs of such cross-action be charged against defendant W. L. Digon as administrator. It was further adjudged and decreed that each of the defendants be denied any other relief that may have been requested by them, and that this cause as between said defendants on their respective rights and claims to said funds as against each other be set over for hearing after said defendants have inter-pleaded as between each other. All of the defendants gave notice of appeal, but only W. L. Ligón, as administrator of the estate of Maggie De Beque has perfected his appeal.”

The Court of Civil Appeals held that Greenwall was justified in refusing to make payment of the notes owed by him to W. L. Ligón, administrator of the estate of Maggie De Beque; that under the facts above detailed it was reasonably doubtful as to which of the conflicting claimants was entitled to receive payment. The court affirmed that part of the trial court’s judgment holding that Greenwall, under the circumstances, was entitled to file his bill of interpleader and be discharged with his costs and reasonable attorney’s fee. It was held, however, that the attorney’s fee allowed Greenwall’s counsel of $2,000 was excessive, and a reversal as to that part of the judgment was ordered, unless a remittitur of $1,250 was made. No re-mittitur was filed, and both sides applied for, and have been granted, a writ of error.

It is undisputed that Greenwall was willing to pay the full amount due on the notes to the person legally entitled to receive the same. He was therefore entitled to maintain an interpleader suit, if there existed a reasonable doubt, either of fact or law, as to which of the conflicting claimants was entitled to receive payment. Wright v. Grand Lodge K. P. (Tex. Civ. App.) 173 S. W. 271; Nixon v. Malone (Tex. Civ. App.) 95 S. W. 577; Melton v. American Surety Co. (Tex. Civ. App.) 240 S. W. 575; Williams v. Simon (Tex. Civ. App.) 235 S. W. 257; 33 C. J. p. 427.

It is insisted that, under the judgment rendered in the Forty-Eighth district court of Tarrant county, Ligón, as the administrator of the estate of Maggie De Beque, was authorized to receive payment on the notes owing by Greenwall and to execute proper release of the lien securing same, and that Frank and May De Beque were estopped by such judgment from asserting to the contrary.

The record discloses that W. L. Ligón did not plead the judgment above referred to as the basis for an estoppel against Frank and May De Beque’s right to receive payment due on the Greenwall notes. Assuming that he may be permitted to take advantage of such plea, which was made by his codefendant, we do not think Frank De Beque would be es-topped thereby from claiming at least one1 half the proceeds of the notes, if in fact he was the surviving husband of Maggie De Beque and such notes were a part of their community property.

It is true the judgment in the For'ty-Eighth district eourt required the notes made by Greenwall to be made payable to W. L. Ligón, as administrator of the estate of Maggie De Beque, deceased. It did not, however, undertake to adjudicate the rights of the respective defendants in Gre.enwall’s cross-action as to the notes, but provided that Ligón, administrator, Frank De Beque, May De Beque, and others, each and all of them, recover from the defendant Greenwall title and possession of said notes. The plaintiffs' in that suit, who were defendants in Green-wall’s cross-action, were not adversary parties. There was no effort by any of these parties by any character of pleading to have determined the respective interests held by each in the notes awarded them hy the judgment.

If these notes were community property of Frank and Maggie De Beque, husband and wife, Frank De Beque, upon the death of his wife, was the legal owner of one-half thereof, and was in fact entitled to the control of the entire community estate either as against the wife’s heirs or her executor or administrator. Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Cockburn v. Cherry (Tex. Civ. App.) 153 S. W. 161; Kidd v. Prince (Tex. Civ. App.) 182 S. W. 725; Stone v. Jackson, 109 Tex. 385, 210 S. W. 953.

In Moody v. Smoot, supra, Justice Gaines, speaking for the Supreme Court, in discussing the identical question here involved, said:

“Being liable to a suit on the community obligations, and to have his separate property sold under execution for their payment, it is but reasonable that upon the death of the wife he should have the right to administer the common estate for the payment of the common debts without interference on part of her legal representatives.”

It is contended that Greenwáll was not justified in filing a bill of interpleader because Frank De Beque, long after appearance day, and just before this cause was tried, filed a pleading herein in which it was alleged he was making no contention that Ligón, as administrator, was not entitled to receive payment on the notes owed by Greenwall, hut that he was merely asserting his right as legal owner to recover from Ligón the notes in question. This pleading could not in any way affect Greenwall’s right to file a bill of interpleader, as such right must be determined by the conditions existing at.the time of the filing of the same. It was shown, without dispute, that Greenwall desired to pay off the notes and sought through his counsel to obtain an agreement under which he would pay the amount due on the notes to Ligón, administrator, if Frank De Beque and the guardian of May De Beque would execute proper releases. Frank and May De Beque’s counsel declined on behalf of their respective clients to accede to this demand. At that time Frank De Beque had a suit pending in which he was setting up the claim that he was the sole owner of the notes owed by Greenwall, and entitled to the possession thereof as .the sole survivor of the community estate of himself and Maggie De Beque. Judgment was rendered against him in that suit in the district court, and the same had been affirmed by the Court of Civil Appeals, but, at the time of the filing of this suit, his application for writ of error had been granted, and the ease was pending in the Supreme Court. Subsequently the Supreme Court reversed the judgment of the Court of Civil Appeals, holding that Frank De Beque and Maggie De Beque were husband and wife at the time of her death. He was therefore legally entitled to the sole control and management of the community estate of himself and Maggie De Beque.

We conclude that, inasmuch as the judgment in the Forty-Eighth district court did not undertake to settle as between the defendants in Greenwall’s cross-action, including Ligón, the administrator, the particular interest owned by any of said parties in the notes in question, Frank De Beque was not estopped thereby to at least assert ownership to his community interest in the estate of himself and wife. Clearly Ligón, as administrator of the estate of Maggie De Beque, could not exercise any control or disposition over Frank De Beque’s individual property. The very judgment relied upon to bar his right to assert ownership in the notes vested in him and others collectively the ownership thereof. No attempt was made by such judgment to fix the respective rights of the joint owners of the notes or to determine their particular interest therein; hence this' question was not foreclosed by such judgment.

It is also insisted that Greenwall should have made payment of notes to the administrator, as he would have been protected by the administrator’s bond, if it was subsequently determined he was not the proper person to receive payment. It is the settled law of this state that, where an administrator or executor collects money, and it ■ later develops that he is not the proper party to make such collection, he would be individually liable, but his bondsmen would not be liable therefor. Thompson v. Duncan, 1 Tex. 485; Evans v. Oakley, 2 Tex. 185; Moore v. Morse, 2 Tex. 400; Provident Insurance Co. v. Johnson (Tex. Civ. App.) 235 S. W. 650; Ætna Life Insurance Co. v. Osborne (Tex. Civ. App.) 224 S. W. 815; Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Fidelity & Deposit Co. v. Wiseman, 103 Tex. 286, 124 S. W. 621, 126 S. W. 1109.

We conclude that, at the time Green-wall filed his bill of interpleader, there were conflicting claimants for the money owed by him, and a reasonable doubt existed as to the proper person legally authorized to receive payment, and he was therefore entitled to pay the amount necessary to discharge the notes into court and to interplead the various claimants and require them to assert their interest therein, and to be discharged with his costs and a reasonable attorney’s fee.

The action of the Court of Civil Appeals in requiring defendant in error to file a remittitur of a portion of the attorney’s fee awarded by the court cannot be sustained, for the reason that plaintiff in error did not present in its brief filed in that court any assignment of error complaining that the amount awarded as attorney’s fee was excessive. In the absence of such assignment, the Court of Civil Appeals is not authorized to set aside or modify a judgment of the trial court, unless fundamental error is shown. Hughes v. Galveston, H. & S. A. Ry. Co., 67 Tex. 595, 4 S. W. 219; Chappell v. Missouri Pac. Ry. Co., 75 Tex. 82, 12 S. W. 977; Gebhart v. Gebhart (Tex. Civ. App.) 61 S. W. 964; Dignowity v. Sullivan, 49 Tex. Civ. App. 582, 109 S. W. 428; Schaff v. Stripling (Tex. Civ. App.) 265 S. W. 264.

The question as to whether a verdict is excessive in amount does not present fundamental error. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 537, 124 S. W. 85; Goodhue v. Fuller (Tex. Civ. App.) 193 S. W. 170; McKenzie v. Imperial Irr. Co. (Tex. Civ. App.) 166 S. W. 497; Schaff v. Sanders (Tex. Civ. App.) 257 S. W. 675.

We recommend that the judgment of the Court of Civil Appeals be reversed and the judgment of the district court affirmed.

OURETON, C. J. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.


author: DEDDY, J.

text:
    FIRST NAT. BANK OF MT. CALM v. ROLLER et al.
    (No. 976-5034.)
    Commission of Appeals of Texas. Section B.
    March 13, 1929.
    Bryan & Maxwell, of Waco, and Black & Graves, of Austin, for plaintiff in error.
    Ira Lawley and J. E. Bradley, both of Groesbeck, Bailey & Bailey, of Dallas, Frank Oltorf, of Marlin, and I. W. Keys, of Mexia, for defendants in error.
   DEDDY, J.

The contentions of plaintiff in error, First National Bank, and defendant in error H. O. Roller that the trial court erred in rendering judgment in favor of Mrs. C. R. Menefee, an indorser of the notes sued upon, under her plea of coverture, are easily disposed of. It is undisputed that Mrs. Mene-fee was a married woman at the time she indorsed the notes. The bank, having failed to plead estoppel, cannot now insist that the evidence conclusively shows Mrs. Menefee was estopped to plead coverture.

While defendant in error Roller did plead that Mrs. Menefee was estopped to assert her coverture, nevertheless he is not in position to urge error to the refusal of the trial court to render judgment in his favor against Mrs. Menefee, for the reason he failed to apply for a writ of error, from the judgment of the Court of Civil Appeals, which affirmed the judgment of the trial court denying him a recovery against Mrs. Menefee, and such judgment is now final.

Under the state of the record there remains but one question to be disposed of, and that is whether Roller’s cause of action against plaintiff in error was ‘barred by the statute of limitation. ' The record discloses that, when Mrs. Menefee pleaded coverture as a defense against Roller’s right to recover a judgment against her because of her indorsement of the notes sued on, he filed an amended petition making the plaintiff in error a party to the suit and praying for a judgment against it on its indorsement, if it should develop that Mrs. Menefee was not liable by reason of coverture. This petition was filed on the 19th day of May, 1926, more than four years after the notes were transferred by the bank to Roller. At the time these notes were transferred, they were long past due, and were indorsed by the bank “without recourse.” Roller’s cause of action against the bank is based on the breach of its statutory warranty that “every person negotiating an instrument by delivery or .by a qualified endorsement, warrants: * * ⅜ That all prior parties had capacity to contract.” Section 65, art. 5936, B. S. 1925.

Defendant in error Roller insists that the statute of limitation did not begin to run against him until he discovered the incapacity of Mrs. Menefee, indorser, or until, by the exercise of reasonable diligence, he should have discovered such fact.

It is plaintiff in error’s theory that the statutory warranty implied by the bank’s indorsement “that all prior parties had capacity to contract” was breached at the time of the transfer of the notes to Roller on the 3d day of January, 1922, and therefore limitation began to run immediately, but, if notice of the cause of action was essential to start the running of-the statute of limitation, Roller had constructive notice of facts creating his cause of action by reason of the notes being long past due at the time he purchased same from the bank.

Assuming, without deciding, that knowledge or notice by Roller of his cause of action against the bank, on account of Mrs. Menefee’s incapacity to contract, was essential to start the running of the statute •of limitation, we think his purchase of the notes after maturity charged him with notice of e.very fact affecting the validity thereof, including the incapacity of Mrs. Menefee, so as to set in motion the statute of limitation. Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807; Kuhlman v. Baker, 50 Tex. 630; Carver v. Moore (Tex. Com. App.) 288 S. W. 156; Martinez v. Gutierrez (Tex. Civ. App.) 172 S. W. 766; Davis v. Heynes, 105 Kan. 75, 181 P. 566; Board of Commissioners of Garfield County v. Renshaw, 23 Okl. 56, 99 P. 638, 22 L. R. A. (N. S.) 207; Davis v. Willey (D. C.) 263 F. 588, affirmed (C. C. A.) 273 F. 397; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Powell v. March (Tex. Civ. App.) 169 S. W. 936; Black v. Black, 64 Kan. 689, 68 P. 662; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; 37 C. J. pp. 941, 969; Daniel on Negotiable Instruments (5th Ed.) § 782; Joyce. Defenses to Commercial Paper, § 625.

In Carver v. Moore, cited above, which was decided by this commission, certain land was sold by Carver to Moore. At the time of the sale one Jones was in possession of the land, but Moore purchased it under Carver’s representation that it belonged to him. It was held that Jones’ possession was constructive notice to Moore that Jones owned the land, and Moore was thereby put upon notice that the representation made to him as to the ownership of Carver was false so as to start the running of the statute of limitation from the date of the sale.

We are unable to see where the case before us differs in principle from the above case. Roller, having purchased past-due paper, was chargeable with knowledge of any defenses which existed in favor of the maker or in-dorser of the notes, and he took such paper-subject thereto. He was thereby immediately placed upon inquiry to ascertain the reason for the nonpajunent of the notes; hence, if he failed to discover the same within the statutory period of limitation, his right to recover became barred.

Defendant in error seems to be under the impression that no cause of action arose in his favor against plaintiff in error until Mrs. Menefee interposed a plea of coverture as a defense in a suit against her. We think this is a misconception of the basis of the bank’s liability. Liability of the bank to Roller is for a breach of its warranty that Mrs. Menefee had capacity to contract. Such warranty was breached at the time the transfer was made on account of Mrs. Menefee’s incapacity to contract at that time/ Roller could have maintained a suit against the bank for a breach of its warranty immediately upon the notes being transferred to him. He was not compelled to wait until Mrs. Menefee pleaded coverture, as the bank had warranted, not that Mrs. Menefee would not plead coverture when a liability was asserted against her as indorser, but that she had legal capacity to incur such liability at the time of her indorsement.

It must be held that Roller acquired these notes with constructive notice of the fact that Mrs. Menefee was a married woman. This being true, in order to entitle him to recover against the bank, he was required to institute his suit within four years from the date the notes were transferred to him.

We therefore recommend that the judgment of the Court of Civil Appeals in favor of Mrs. Menefee be affirmed; that the judgments of the trial court and the Court of Civil Appeals awarding Roller a recovery against the plaintiff in error be reversed; and that judgment be rendered in favor of plaintiff in error.

OURETON, C. J. Judgment of the Court of Civil Appeals in favor of Mrs. Menefee'is affirmed, ánd judgments of the district court and Court of Civil Appeals in favor of Roller against plaintiff in error are reversed, and judgment rendered for plaintiff in error.


author: HARVEY, P. J.

text:
    WEST’S EX’RS v. CAMERON COUNTY.
    (No. 1179-5169.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    Williams, Neethe & Williams, of Galveston, James R. Dougherty, of Beeville, and Den-man, Franklin & Denman, of San Antonio, for plaintiffs in error.
    T. H. Miller, of George West, A. H. Kirby, of Fort Worth, King & York and John T. Smith, all of Austin, and Davenport, West & Ransome, of Brownsville, for defendant in error.
   HARVEY, P. J.

This suit was brought September 29, 1925, by Cameron county against Geo. W. West to recover the amount alleged to be due the county on a promissory note executed to it by West on June 10, 1884, payable ten years after date. Foreclosure of the vendor’s lien on the land hereinafter mentioned is also sought. West died pending suit, and his executors have been made parties in his stead. The trial court rendered judgment in favor of the county for the sum of $102,206.33 on the note, with foreclosure of the lien. The Court of Civil Appeals has in effect, reformed and affirmed that judgment. 4 S.W.(2d) 111.

The material facts are undisputed. They are substantially as follows:

On June 10, 1884, Cameron county duly executed to West a deed to a league and a half of school land belonging to said county. For the purchase money, West executed his note for the sum of $20,000 being the note herein sued on. The vendor’s lien was expressly retained in said deed to secure the payment of the note. On February 12, 1895, the note was past due, and the principal and a considerable amount of interest that had accrued thereon was unpaid. On that day the commissioners’ court of Cameron county passed and entered upon its minutes the following order:

“On this 12th day of February, A. D. 1895 being a regular day of this a regular term and all the members of the Court being present, there came on to be heard the proposition of George W. West, to pay to this County the sum of Ten Thousand Dollars ($10,000.00) as principal, and the sum of Eight thousand four Hundred and Sixty Dollars ($8460.00) as interest aggregating the sum of Eighteen thousand four hundred and sixty Dollars (18460.00), in cash, in full settlement of his debt to this County evidenced by his promissory note for Twenty Thousand Dollars ($20,000.00) dated June 10th, A. D. 1884, and due ten (10) years thereafter and bearing interest from date paying annually at the rate of eight per cent, per annum, and which said sum of Eighteen 'thousand four hundred and Sixty Dollars ($18,460.00) is also to be paid by said West in compromise Settlement in full of his said indebtedness, and also in consideration of a conveyance of the title to the league of land and one half league of land hereinafter referred to. And thereupon in consideration of .said proposition it was made to appear to the Court that on June 10th, A. D. 1884 James Haynes County Judge of Cameron County had, executed to the said West a deed of conveyance to these two (2) tracts of land in said conveyance recited to be in McMullen County, yet in truth and in fact in the County of Live Oak, which were granted to Cameron County, the first of which is a grant of twenty five million (25,000,000) square varas, being Survey No. 33 Patent No. 50 in Volume 14, and dated April '25th, 1862. And the Second of which is one of twelve million five hundred thousand (12,500,000.00) Square varas, being Survey No. 32, by Patent No. 526 in Volume 15 and dated April 24th, 1862, and which said conveyance to the said West is now of record in Live Oak County Deed Registry in Book “H” pages 320 to 326 inclusive. And it was further made to appear to the Court that the said West has made certain payments amounting to the sum of Eight thousand three hundred Dollars ($8300.00) upon said indebtedness to Cameron County, but that was now unable to pay and satisfy the full amount of which would be owing upon said promissory note, and in the opinion of the Court the said West is not only unable to pay the full amount owing upon his said promissory note as above stated, but such amount of money cannot be made under execution against him, and that the only available property out of which the collection of the debt to this County could be enforced, are the two (2) grants of a league and a half of a league respectively hereinbefore specified and upon which the Vendor’s Lien' exists to secure the payment of said note, and that the said land is not probably worth, and would not bring at execution sale more than one dollar per acre. And it further appearing to the Court that there is a possible shortage in quantity of about one thousand acres in said land owing to conflicts with older grants, and that at least one Suit is now pending against the said West arising out of said conflicts. And it further appearing to the Court that the enforcement of said Vendor’s Lien would be accompanied with great expense to this County, and, in the opinion of the Court the said two (2) tracts of land are not worth and would not sell for the said principal sum of Ten thousand Dollars, now offered by the said West and would not in any possible event bring the said sum now offered by the said West, for the settlement of said debt and in consideration of a conveyance of the title in fee simple to said two (2) grants, aecording-ingly it is considered by the Commissioners Court of Cameron County, that it is to the interest, in all things in the premises, of said County of Cameron and its School Fund, that the proposition of said West to pay said aggregate sum of Eighteen thousand four hundred and Sixty dollars ($18,460.00) in settlement of said indebtedness be and the same is hereby accepted and the Honorable Thomas Carson County Judge of Cameron County, Texas, is hereby expressly made, constituted and appointed the agent and attorney in fact of this County of Cameron and as such expressly authorized and directed upon the receipt by him from the said George W. West of said sum of Eighteen thousand four hundred and sixty dollars ($18460.00) to deliver to him the said West, the said promissory note for twenty thousand Dollars ($20,000.00) above mentioned and executed by the said West as satisfied in full and to release said vendor’s lien now existing to secure its payment, and also to execute and deliver to the said West a deed of conveyance in fee simple with general covenants of warranty of the said grant to one league and said grant of one half of one league of land heretofore described.”

On February 19, 1895, Thomas Carson, the county judge, executed to West the following deed in pursuance of the above order:

“The State of Texas, County of Cameron:
“Know all men by these presents: That whereas, heretofore, to-wit, on the 12th day of February, A. D. 1895, the Commissioners Court of Cameron County made and entered its certain order accepting from George W. West the sum of Eighteen Thousand Four Hundred and Sixty ($18,460) Dollars, in full settlement of all principal and interest now owing upon the promissory note of the said West of date June 10th, 1884, and due June 10th, 1894, for the principal sum of $20,000.00 and bearing eight (8) per cent, interest, payable annually, and did in consideration of said sum of $18,460.00 authorize and direct the undersigned County Judge of Cameron County to deliver to the said George W. West his said promissory note aforementioned, and to execute to him the said George W. West the release of the vendor’s lien and the deed of conveyance hereinafter set forth;
“Now therefore, I, Thomas Carson, County Judge of Cameron County, Texas, in consideration of said sum of Eighteen Thousand Four Hundred and Sixty Dollars cash to me in hand paid for the County of Cameron by George W. West of Live Oak County, Texas, have and by these presents do acknowledge’ full payment and satisfaction of said promissory note for $20,-000.00 above mentioned, and do release the vendor’s lien which was retained to secure the payment of said note in the deed of conveyance of date June 10th, 1884, made by James Haynes, County Judge of Cameron County, to the said George W. West of the lands hereinafter described, which said conveyance is of record in Live Oak County Deed Registry in Book “H” pages 320 to 326 inclusive, and in consideration of the premises and by virtue of the authority given to me by said order of said Commissioners Court entered as aforesaid, in the name of the County of Cameron in the State of Texas, I grant, bargain, sell and convey unto the said George W. West, his heirs and assigns those two tracts of land which are more fully described in said deed recorded in said Book “H” pages 320 to 326 inclusive of Live Oak County Deed Registry, to which reference is here made, the same being a grant of 25,000,000 square varas, Survey No. 33, granted to Cameron County by Patent No. 50 in 'Yol. 14, dated April 25th, 1862, and a survey of 12,500,000 square varas, Survey No. 32, granted to Cameron County by Patent No. 526 in Yol. 15, dated April 24th, 1862.
“To have and to hold said conveyed premises, together with all and singular the rights, tenements and appurtenances thereto belonging unto the said George W. West his heirs and assigns, forever, And the said County of Cameron does bind-itself to warrant and forever defend all and singular the said conveyed premises unto the said George W. West, his heirs and assigns against any and all persons claiming or to claim the same or any part thereof.
“In testimony whereof, I, the said Thomas Carson, County Judge of Cameron County, and acting for and in its behalf, have executed these presents, and affix the seal of said County this 19th day of February, A. D. 1895.”

At the time this deed was executed, West paid in cash to the county the $18,460 mentioned in the deed; and the note in suit here was delivered to West and he retained same till his death. The note was introduced in evidence by the county in the court below. When the note was introduced in evidence, lines had been drawn with pen and ink through the signature of West, and the notation, “Paid in full,” appeared on the note in the handwriting of West.

By virtue of the provisions of section 55 of article 3 of the state Constitution, a county is restrained from releasing or extinguishing, in whole or in part, any indebtedness, liability, or obligation of any individual to such county. It is urged here that the transaction reflected by the order of the commissioners’ court, quoted above, and the deed made to West in pursuance of that order, constituted an attempt to release West, in violation of the above constitutional provision, from liability under his note of- June 10, 1884. This contention requires consideration, along with the above constitutional provision, of that part of section 6 of article 7 of the Constitution which reads as follows: “Each county may sell or dispose of its lands in whole or in part, in manner to be provided by the Commissioners’ Court of the county.”

It is not thought that the power here expressly conferred on the county to sell its lands in such manner as may be provided by the commissioners’ court is restricted, by virtue of the provisions of section 55 of article 3, to executed sales. This last-named section does not have effect to restrain a county from contracting an executory sale of its lands, such as results when the vendor’s lien is expressly reserved to secure payment of the purchase money, or from disaffirming such a sale upon breach of the other party’s obligation under the contract. In case of such a disaffirmance by the county, no liability to the county for the purchase money can survive. This results, of course, as an incident to the exercise by the county of the right, reserved in the county, to disaffirm the sale.

The sale of the land to West in 1884 was an executory sale. On February 12, 1895, West had defaulted in the payment of the purchase money under that sale. The county, therefore, had the right and power to disaffirm such sale and to make a new sale of the lands upon such terms as the commissioners’ court, in the exercise of its discretion, might provide. In effect, this was done. The action of the commissioners’ court, on the date last mentioned, and the deed conveying the land to West for the sum of $18,460 cash, had the effect of a disaffirmance by the county of the previous sale, and effected a new sale to West. Waggoner v. Wise County, 17 Tex. Civ. App. 220, 43 S. W. 839 (writ refused). See Delta County v. Blackburn, 100 Tex. 55, 93 S. W. 419.

We recommend that the judgment rendered by the trial court against the executors of the estate of Geo. W. West, deceased, and that of the Court of Civil Appeals affirming same, be reversed, that the defendant in error take nothing by its suit against said executors, and that judgment to this effect be here rendered.

OURETON, C. J. Judgments of the district court and Court of Civil Appeals reversed, and judgment rendered for plaintiffs in error.


author: CHRISTIAN, J. MORROW, P. J.

text:
    FAGAN v. STATE.
    (No. 12165.)
    Court of Criminal Appeals of Texas.
    Jan. 23, 1929.
    State’s Rehearing Denied March 6, 1929.

      A. B. Geppert, of Teague, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 99 years.

Appellant owned a whisky still, which was in operation about 4 miles from the town of Simsborough in Freestone county. Mr. Anderson, W. J. Hancock, and Tim Willard, special state rangers, watched the still from a point approximately 75 yards from its location for about 40) minutes. They saw appellant’s sons at the still. Appellant was not in view. The officers determined to approach the still from different directions. Hancock approached it from the southwest, Willard from the northeast, and Anderson from the south. According to the state’s testimony; when Hancock was about 24 steps from the still, he heard Willard holler: “Hold up, hold up.” At this time appellant’s sons were at the still. When Willard hollered, they straightened up, but made no immediate attempt to run. In a moment Hancock heard a gun shot. It was the report of a shotgun. He heard Willard say: “Oh, Lord.” After 5 or 6 seconds had elapsed, Hancock heard several pistol shots. Immediately after -the shotgun fired, appellant’s sons began to run away, going in a westerly direction. Hancock and Anderson pursued the boys, shooting in front of them in an endeavor to stop them. Hancock looked back while he was after the boys and saw appellant. Appellant was running north. Being unable to capture the boys, Hancock and Anderson returned to the point from where they had heard the first shot. They found Willard on the ground in a dying condition. Willard said to Hancock; “Mr. Hancock, they have got me, they have shot me all to pieces, and I am bound to die, do something for me quick.” He further stated that appellant shot him, and said that he shot him before “I ever seen him.” He stated that appellant shot him from a clump of trees, which he pointed out. He said that, after appellant shot him, he fired upon appellant with his pistol, that appellant was running away at the time, and that he dropped the shotgun, with which he had shot him “right across the branch.” A wagon sheet and coat were found in the clump of trees. A shotgun was found with an empty shell in it near the point pointed out by Willard as the place where appellant had dropped his gun. One barrel of the gun contained a cartridge loaded with buckshot. Appellant’s sons were unarmed, and made no effort to attack the officers. They merely attempted to evade arrest by running away. As far as the record discloses, they did nothing to encourage appellant to resist arrest by the officers. The state showed that appellant had threatened to kill the officers if they interfered with him in the operation of his still. Willard died from the effects of the wound received at appellant’s hands. The foregoing is a brief statement of the testimony introduced by the state.

Appellant denied that he had threatened Willard or any other person. He admitted that he was engaged in operating the still iñ question, but declared that his boys had nothing to do with its operation, and that they were mere visitors at the time the officers approached. Appellant declared that when Willard approached the still he (Willard) .began firing; that, as liis boys ran away, Willard fired at one of them; that the boy threw up his hands and fell on his face; that he (appellant) grabbed a shotgun and fired at Willard because he believed that Willard was going to kill his boy; that, after he shot at Willard, he (appellant) ran away, throwing his shotgun down as he ran; that Willard fired upon him several times; some of the shots striking him; that his boy was slightly wounded.

Bills of exception Nos. 4 and 5 deal with the same subject-matter. While the officers were testifying on cross-examination, they were asked by appellant: “From whom have you been receiving compensation?” The state objected to the question, and the objection was sustained. It is stated in the bill that the witnesses would have testified that they received compensation from those who had given them instructions to shoot when any one ran away from a still and it was necessary to stop them. The objection was properly sustained. The matter inquired about was wholly irrelevant and immaterial.

Bills of exception Nos. 8 and 9 deal with the action of the court in refusing to permit appellant’s boys to testify. It is shown by these bills that appellant’s case was called for trial on May 28, 1928, and that at that time no indictments had been returned against his sons. Thirteen days before the case was called for trial appellant had been indicted. On May 30th, two days after appellant’s trial had begun, indictments were returned against appellant’s sons charging them with the murder of Tim Willard. They had theretofore been held under complaint to await the action of the grand jury. The evidence on the preliminary trial of appellant’s sons was substantially the same as that disclosed by the record in the instant case; and it is a fair inference that the testimony heard by the grand jury was the same as that developed on the present trial, in view of the fact that appellant, his sons, Anderson, and Hancock were the only witnesses to the homicide. All of the state’s witnesses testified that appellant’s sons made no effort to attack the officers, that they were unarmed, and that they did nothing but attempt to evade arrest by running away. In short, it is disclosed by the record that there is no evidence tending to show or showing that appellant’s sons wore guilty of the offense for which appellant had been indicted. Appellant offered his sons as witnesses. If they had been permitted to testify, they would have corroborated appellant’s version of the homicide. The state promptly took advantage of the fact that appellant’s sons were under indictment for the murder of Tim Willard, and the court refused to permit said witnesses to testify. We are of the opinion that the court erred. The conclusion is irresistible that appellant’s sons had been indicted without evidence to connect them with the crime of murder charged against appellant, and that said indictments were returned for the sole purpose of depriving appellant of their testimony. In spite of the provisions of article 711, C. C. P., to the effect that persons charged as principals, accomplices, or accessories, either in the same or different indictments, cannot be introduced as witnesses for one another, the fact of such indictments would not avail the state in attempting to urge the disqualification of appellant’s sons as witnesses where it is shown by the record that the indictments were obtained for the purpose only of disqualifying such witnesses and that there was no evidence warranting the return of said indictments.

In Doughty v. State, 18 Tex. App. 179, 51 Am. Rep. 303, Judge Willson considered the question we are discussing here and said: “We can never give our sanction to such a procedure. These witnesses, if. disqualified, are disqualified by the act and procurement of the plaintiff in the cause, the State of Texas, and w'e must say that the record before us irresistibly forces upon us the conclusion that this disqualification is attempted for the sole purpose of depriving the appellant of this testimony.”

In Cundiff v. State, 86 Tex. Cr. R. 476, 218 S. W. 771, Judge Dattimore used language as follows: “While the presumption is in favor of the regularity and correctness of the rulings and acts of the courts, officers, and machinery of the state, yet when it is disclosed by the record that such action is without warrant of law or fact, and it is admitted that the purpose of such acts or rulings was other than that which the bona fides of the law contemplates, this court will not sanction same. If Annie Ashley was indicted without evidence to connect her with the crime charged, and same was admittedly for the purpose of ■bringing her back as a witness, the fact of such indictment did not avail the state in attempting to urge her disqualification as such witness.”

See, also, Ice v. State, 84 Tex. Cr. R. 509, 208 S. W. 343; Dodson v. State, 52 Tex. Cr. R. 247, 106 S. W. 378.

In connection with the law of self-defense, the court charged the jury as follows: “Whenever a person by his own wrongful acts produces a condition of things wherein it becomes necessary for his own safety that he should take the life of another or do him serious bodily harm, the law imputes to him his own wrong and its consequences to the extent that they may be considered in determining the grade of offense which but for such acts would never have been occasioned. If the defendant in this case was at the time he shot Tim Willard, if he did shoot him, by himself or in connection with his boys, or either of them, violating or in the act of violating the law, and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself or his boys or either of them against an attack, real or threatened, by Tim Willard, W. J. Hancock or Boone Anderson, or either of them, which was superinduced or created by his own wrong acting by himself or in connection with his boys, or either of them, then his right of self-defense is limited under the law and regulated in accordance with the magnitude of his own wrong, if any.”

This charge was properly excepted to. The court in effect told the jury that, if appellant was engaged in operating a still, such act would deprive him of the perfect right of self-defense. The question for the jury to determine was whether appellant or Willard fired the first shot. There was no issue of provoking a difficulty involved. Even in cases whore the issue of provoking a difficulty Is raised, this court has called attention to the fact that it is unnecessary to submit the charge above quoted, and has suggested that such abstract statement should be omitted. Moore v. State, 96 Tex. Cr. R. 493, 258 S. W. 476; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990.

We do not understand that appellant was deprived of the right of perfect self-defense because of the fact that he had committed a felony in view ofi the officers. If deceased was attempting the arrest of appellant and his sons in a lawful manner — that is, without the use of more force than was reasonably necessary for that purpose — and appellant resisted the arrest and fired at deceased, he would have been deprived of his right of self-defense. If appellant did not resist arrest, and his sons were merely attempting to evade arrest by running away, and deceased fired on them, and it reasonably appeared to appellant, viewed from his standpoint at the time, that his sons were in danger of death or serious bodily injury at the hands of deceased, he had the right to exert all necessary force to defend his sons. Hardin v. State, 40 Tex. Cr. R. 208, 49 S. W. 607. An officer making an arrest of an offender without warrant is justified in adopting all of the measures which he might adopt in case of an arrest under a warrant. Article 216, C. C. P. In making an arrest, an officer has no right to use greater force than is necessary to secure the arrest and detention of the accused. Article 241, O. C. P. An officer is required to use such force as may be necessary to prevent an escape when it is attempted, hut he must not in any case, kill one who attempts to escape, unless in making or attempting such escape the life of the officer is in danger or he is threatened with great bodily injury. Subdivision 8, art. 1212, P. C.

In paragraph 12 of the charge, the court predicated appellant’s right to defend his sons on a finding by the jury that the officers did not attempt to arrest appellant or his boys, but that they approached them and began firing at them in a manner showing an intent to kill them or do them serious bodily injury. This is not the law. Even if the officers had attempted to arrest appellant’s boys and they had evaded arrest by running away, the officers had no right to kill them in order to prevent their escape, and, if it reasonably appeared to appellant, viewed from his standpoint at the time, that his boys were in danger of death or serious bodily injury at the hands of the officers, he had the right to use all proper means to protect his sons. Hardin v. State, supra.

Because of the errors discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On State’s Motion for Rehearing.

MORROW, P. J.

The homicide took place on April 19th. The appellant and his two sons were arrested at once. At the examining trial, the two sons were placed under bond in the amount of $1,000. The court convened on May 7th. The appellant was indicted for murder on May 15th. The trial began on May 28th. The state closed its testimony on May 30th, and the testimony on behalf of the appellant began on the morning of June 1st. At the time of his announcement of ready for trial, and at the time the state closed its testimony, no indictment had been presented against either of the appellant’s son's. When they were offered as witnesses in behalf of the appellant on the morning of June 1st, their testimony was rejected by the court upon the initiative of the state by reason of the fact that they had been indicted for the offense of murder.

From bill of exceptions No. 8, it appears that the only eyewitnesses to the killing of Willard were the state’s witnesses Hancock and Anderson and the appellant’s two sons. Both Hancock and Anderson testified that neither of the boys shot nor made any effort to shoot, and that the only thing they did was to run. Neither the officers nor any other witness testified that either of the boys was connected with the killing of Willard. The appellant’s hill of exceptions would have been more complete if it had been made to appear that the appellant sought by proper motion to withdraw his announcement of ready for trial when it was ascertained that his sons, who would give testimony in his favor, had been disqualified as witnesses by the indictment against them under the circumstances detailed. Obviously, under article 551, C. C. P. 1925, he would have had a right to withdraw or continue the case because of the “unexpected occurrence,” and through other statutes would have had a right to have demanded a severance to the end that his sons (against whom, as it appears from the bill of exceptions, there was no evidence of guilt of the homicide) might be freed from the disability of the pending indictments and become witnesses in the appellant’s favor. When, from circumstances brought about by the conduct of his adversaries, one is deceived as to the presence of witnesses against him or in his favor when he announces ready for trial, he is entitled to relief upon proper demand. This rule was announced by the Supreme Court of this state in March v. State, 44 Tex. 64, and has been reaffirmed and applied in many subsequent cases. Among them are Lindley v. State, 11 Tex. App. 283; Hendrick v. State, 47 Tex. Cr. R. 371, 83 S. W. 711; Eldridge v. State, 12 Tex. App. 208; Hodde v. State, 8 Tex. App. 383. See, also, Ency. of Pleading & Practice, vol. 4, p. 863, par. 15; Vernon’s Tex. Ann. Code Crim. Proc. 1925, vol. 1, p. 472.

The remarks made in the original opinion concerning the charge of the court correctly state the views of this court touching the law applicable to the facts. Additional discussion of the matter is not deemed necessary. These remarks are made in the light of the motion for rehearing filed by the state, supported by the oral argument of state’s counsel.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J. HAWKINS, J.

text:
    DAVIS v. STATE.
    (No. 11979.)
    Court of Criminal Appeals of Texas.
    Dec. 19, 1928.
    Appeal Reinstated Jan. 16, 1929.
    Rehearing Denied March 13, 1929.

      Morgan & Morgan, of Greenville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is attempting to pass a forged instrument; the punishment confinement in the penitentiary for two years.

After the adjournment of court appellant filed an appeal bond, which was approved by the sheriff. The record fails to disclose that said bond was approved by the court trying the case. Article 818, C. C. P., requires that the appeal bond be approved by the sheriff and the court trying the ease, or his successor in office. In the absence of a recognizance or appeal bond approved as the law requires, this court is without jurisdiction to pass on the merits of the case. Jones v. State, 99 Tex. Cr. R. 50, 267 S. W. 985.

Appellant is granted 15 days in which to file a proper appeal bond.

The appeal is dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion to Reinstate Appeal.

LATTIMORE, J.

The appeal in this case was dismissed at a former day for lack of a proper appeal bond. Within the time allowed, the defect has been cured, and the appeal is now reinstated and the case decided on its merits.

Five bills of exception appear in the record. Bill No. 1 is to the refusal of a continuance sought because of the absence of Charlie Hart. In a qualification to this bill the court says there was no showing of diligence to get 1-Iart, and the facts are set out in the qualification. Hart testified on a former trial of this case in Hunt county. Venue was charged to Hopkins county. The trial term convened in Hopkins county on January 23, 1928. Hart was not then in attendance. No process was asked'for him. The criminal docket was taken up February 6, 1928. Hart was still absent, but no attachment was asked or other process at that time. On February 17, 1928, a subpcena was issued to Hunt county for Hart, returnable February 20th. It was returned not served. These facts wholly fail to show diligence. We see no necessity for citation of authorities supporting so plain a proposition.

Bill No. 2 sets out a question asked, and also what counsel intended to elicit thereby, but the bill fails to state what the answer of the witness would have been. Such bill is manifestly insufficient. Kalsky v. State, 37 Tex. Cr. R. 247, 39 S. W. 362.

Bill No. 3 sets out alleged error in the refusal of the court to allow in evidence all of a written statement made by appellant’s wife before the grand jury, it being stated that counsel for the state had read from such written statement in asking of said wife a question on cross-examination. The court makes the statement in a qualification to this bill that when the state’s attorney questioned Mrs. Davis, he had before him a piece of paper, none of the contents of which were introduced in evidence, and which the court did not know, which was not shown to be a statement made by Mrs. Davis anywhere; that no part of any statement made by Mrs. Davis before the grand jury was introduced in evidence." Accepting this as true, there is no merit in the bill. Por another reason the bill brings nothing before us. It is this: article 728, C. C. P., goes no further than to say that when any part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be put in evidence by the other party. Plainly an application of this to a case where it was shown that a witness was asked if she had not said in writing before the grand jury, “Bob Davis and I came to Greenville, brought this bond, and offered it to Walter Waid, who said the bond was not good,” would afford excuse only to the opposite party for introducing such part of the written statement in question as bore “on the same subject.” This bill to be good would have to set out that part of the statement “on the same subject,” which was not admitted. This it does not do, either in words or .substance. As affecting this question, see Earnest v. State, 83 Tex. Cr. R. 257, 202 S. W. 739; Wood v. State, 80 Tex. Cr. R. 398, 189 S. W. 474; Payne v. State, 85 Tex. Cr. R. 288, 212 S. W. 161; Miller v. State, 92 Tex. Cr. R. 259, 242 S. W. 1040.

Bill No. 4 seems taken to the refusal to admit in evidence a written statement made before the grand jury by Jeff Davis. Such written statement, if any there was, is not set out in whole or in part in the bill, and we cannot therefore appraise the soundness of this complaint. One offering such testimony, in order to show to us that error has been committed, must not only set out in his bill in words or substance the rejected testimony, but must show therein further such facts as will enable us to determine the justness of his contention.

Bill No. 5 sets out that the court erred in not admitting a statement made by appellant before the grand jury, it being stated that the court had permitted the district attorney to ask appellant various questions regarding' such statement. The qualification appended to this bill states that the district attorney was permitted . to ask appellant while a witness if he had not said certain things, and to read to appellant from a statement made by appellant before the grand jury; also that on redirect examination appellants’ attorney was permitted to ask him relative to all matters thus brought out by the state’s attorney regarding what he said before the grand jury; but, no part of the statement having been offered in evidence by the state, it was not deemed admissible on behalf of the appellant. We have examined the supposed written statement of appellant, attached to this bill, which statement, however, is in no way certified or verified as having been made by appellant before the grand jury; but if it was so approved, there seems nothing in it explanatory of or in aid of appellant’s testimony as given from the witness stand on this trial.

Appellant asked four special charges, two of which were given and two refused. Complaint is made of the refusal of special charge No. 4, in which it was sought to have the jury told that if appellant was drunk at the time he attempted to pass the alleged forged instrument, and that as the result of such condition his mind was so affected that he did not comprehend that such instrument was forged, an acquittal should result. No authorities are cited in the brief. In our opinion such charge was properly, refused. Little v. State, 42 Tex. Cr. R. 551, 61 S. W. 483; Stoudenmire v. State, 58 Tex. Cr. R. 258, 125 S. W. 399.

The facts seem to amply support the verdict and judgment. Appellant was with his kinsman when the latter tried to get one Anderson to sign an appearance bond. Anderson refused. Later appellant’s kinsman signed Anderson’s name to the bond, and, according to appellant’s own statement, told the latter of the fact that he had so signed Anderson’s name to said bond. Thereafter appellant tried to get the officers to accept said bond, but was met with refusal.

Einding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion appellant places much reliance on the claimed error of the trial court presented in bill of exception No. 5, and insists that our former disposition was erroneous.

Appellant was on trial charged with attempting to pass as true to the sheriff a bail bond purporting to bear, among others, the signature of A. Anderson as one of the sureties. It was alleged that Anderson’s name was a forgery and that appellant knew this when he attempted to pass the bond to the sheriff. Upon the trial appellant testified on direct examination that he did not know it was a “forged bond” until so informed by his wife the next morning after it was presented to the sheriff. , It was further developed from appellant on direct examination that he had made a statement with reference to the matter before the grand jury, and that after coming out of the grand jury room had said, “I told it straight,” and admonished his wife before she went before the grand jury to “tell it just like it is.” Upon cross-examination appellant admitted in response to the. questions of the district attorney that he had testified before the grand jury as follows: “ * * * We went on to Weaver, Willie Davis, Jeff Davis, my wife and myself went together and Willie Davis took the bond to A. Anderson and asked him to sign it and he said he couldn’t do it, Willie said that Mr. Anderson wouldn’t sign it but that he was going to sign Mr. Anderson’s name to it; ' I also testified there, on the way back home, somewhere I think between Sulphur Springs and Brasher the ear was stopped and Willie Davis signed A. Anderson’s name to the bond. * * * My wife and Jeff Davis were in the car with Willie when he signed A. Anderson’s name to the bond.” It is certified in the bill that in eliciting the foreg'oing admissions from appellant the district attorney read from a written instrument attached to the bill and certified to be a copy of the entire statement made by appellant before the grand jury. Immediately following the quoted admissions elicited from appellant on cross-examination there appears in the statement the following sentence: “While I did not see Willie Davis sign A. Anderson’s name to the bond, Willie told me that he had signed his name to it.”

This is the only thing in the statement outside the admissions elicited on cross-examination that relates to the subject of Anderson’s signature to the bond. The remainder of the statement relates to securing the signatures of other persons to the bond and is wholly foreign to the matter under investigation. The statement made by appellant before the grand jury, in so far as it related to Anderson’s signature, was available to the state as original evidence against appellant as well as to impeach his evidence given on the trial. After he admitted on cross-examination that his testimony before the grand jury was in direct contradiction to that given on the trial, there was no necessity for the state to put the grapd jury statement in evidence, and it did not do so. Appellant contends that in reading from the grand jury statement in forming his questions the district attorney had in effect placed in evidence that portion of the statement which appellant admitted he had made, ^nd therefore argues that such action gave appellant the right to introduce the “whole” of the statement. It is shown by the court’s qualification that no restriction was placed upon counsel for appellant in interrogating him regarding the statement. If under the circumstances the right accrued to appellant to introduce any part of the statement, his contention, we think, is broader than the statute (article 728, C. C. P.), which only authorized him to place in evidence the whole of the statement which bore upon the same subject. In disposing of appellant’s contention it might be conceded that the court should h£ve permitted appellant to introduce the .single sentence heretofore quoted which bore upon Anderson’s signature and which was omitted from the question propounded by counsel for the state, but the bill fails to show that appellant offered this particular portion of the statement, but he desired to introduce it all. In not admitting the particular portion of the statement referred to we are unable to perceive how the action of the court could have affected appellant injuriously unless we misapprehend the facts. The two questions the jury was investigating were whether Anderson’s signature was a forgery, and whether appellant knew it at the time he tried to induce the sheriff to approve the bond. The very portion of the statement which appellant might have had a right to introduce as bearing upon the same subject appears to us to be injurious to appellant, rather than helpful. Theref ore we must hold that, however the action of the court may be regarded, it presents no error for which this court would be justified in re-, versing the judgment.

The motion for rehearing is overruled.


author: LA.TTIMORE, J. HAWKINS, J.

text:
    GONCE v. STATE.
    (No. 12162.)
    Court of Criminal Appeals of Texas.
    Jan. 9, 1929.
    Rehearing Denied March 13, 1929.

      Fred K. Spurlock, of Eleetra, and Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LA.TTIMORE, J.

Conviction for possessing a still for the purpose of manufacturing intoxicating liquor; punishment, one year in the penitentiary.

A party of men went to a house situated about 25 miles from Henrietta. Members of the party testified they saw appellant looking at a pressure tank out in the yard. The party went on down to a river looking for a still, but returned some hour or two later to the house. Appellant was in the yard, but the pressure tank was gone. They asked appellant in regard to who had charge of the bam and outhouses, and he told them that he had nothing to do with them — that they belonged to another man. They asked him if they might go into the bam and search, and testified that appellant replied that it was nothing to him. They forcibly entered the barn, and found in it a large still in operation. A fire was under the boiler, and whisky was running out of the still. There was a cooling tank, said to be a 1,000-gallon tank; also a barrel of whisky and other paraphernalia. The pressure tank was in the bam at the time, and was connected by a hose leading to an underground tank. The barn was locked when the officers attempted to enter. At a later date, apparently the next morning, two other officers went back with a search warrant and searched the garage on said premises. They found a quantity of copper pipe, pieces of sheet copper, copper tubing, a quantity of corks, a copper container for whisky, a capper and caps, a large quantity of sugar, and a hydrometer. In another outhouse they found a bunch of soldering tools, and a lot of solder and heating apparatus for use in soldering pipe. There was also a sack of charcoal. On one side of the residence there was a tank or pond of water from which a water line ran to the residence, and then another water pipe went from the residence in opposite direction down to the bam where the still was found. The hydrometer, found was an instrument used for testing whisky and alcohol. The hydrometer was found in the dwelling house occupied by appellant. Appellant testified that some time before this search he had subleased the premises to one Bob Kiser, reserving only the occupancy of the dwelling till he could get another place, and that he had no connection with, or knowledge ofr what was in the bam or other outhouses.

There are six bills of exception. Bills-Nos. la, 2, and 4 set up objections to the- testimony of the officers as to what they found, in, the barn on the occasion of their search of same. It appears that the affidavit for the-search warrant, used by the officers upon the occasion of their second visit to the premises, was bad in law by reason of the fact that it was made on information and belief, but we note that the matters contained in the bills of exception last mentioned were found by the officers in the bam on the occasion of the first search, at which time they had no search warrant. Each of these bills is qualified at some length by the statement of the trial court, which appears to be verified by the facts in the case, to the effect that he admitted the testimony because appellant told said officers at the time that he had nothing to do with the barn in question, and had no control over the same. Authorities are numerous in this state to the effect that no person has a right to interpose an objection to a search save some person who is entitled to the right of possession of the premises so searched, who therefore has a right to consent or forbid such search of his own private dwelling. Laake v. State, 108 Tex. Cr. R. 566, 2 S.W. (2d) 227; Craft v. State, 107 Tex. Cr. R. 130, 295 S. W. 617; Dennis v. State, 108 Tex. Cr. R. 672, 2 S.W.(2d) 223. We think these three-bills manifest no error.

Bill of exceptions No. 3 sets out objections made to the testimony of Mr. Watson as to what was found in the garage and other outhouses and the residence itself. This bill of exceptions is defective. Same sets out the objections that were made to the testimony, all of which relate to the insufficiency of the affidavit and search warrant, but the bill wholly fails to set out any affidavit either in words or substance, and likewise fails to-set out the search warrant. It is well .settled that any error complained of must be made manifest by the bill of exceptions presenting the complaint, and this court will not undertake to look to any other part of the record to ascertain whether the complaint is well founded. Being unable to determine from the bill itself whether the objections were well taken, we are of opinion this bill shows no error.

Bill No. 5 was taken to the argument of the state’s attorney, in that he told the jury that principals were persons who acted together in the commission of a crime. Nothing in the bill shows the connection in which this argument was made, or how or why it was used. A bill merely setting out that a state’s attorney made to the jury a statement of law which appears to be in general correct, without furthgr making known to this court some reason, or some showing in fact that in the particular case an argument of that kind was unwarranted or injurious, would call for no unfavorable action on our part.

The first bill of exceptions was merely a general statement that appellant desired a bill to all the things set up in his other bills, and is not sufficient to call for a discussion on our part.

No error appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In our original opinion we inadvertently said that appellant’s punishment was for one year in the penitentiary, when in fact it was for three years. This mistake has been corrected in the original opinion.

Appellant complains seriously in his motion for rehearing because his bill of exception No. 3 was held defective. We do not think it necessary to enter into any extended discussion of the matter. We cite the following as a few only of the cases in which this court has dii-ectly held that a bill of exception complaining of the receipt in evidence of discoveries made by officers acting under what were claimed to be defective search warrants or affidavits were insufficient, unless such bills certified the substance of said instruments or set out the affidavit or warrant: Holmes v. State, 104 Tex. Cr. R. 42, 282 S. W. 585; Burns v. State, 105 Tex. Cr. R. 393, 288 S. W. 1087; Pierce v. State, 106 Tex. Cr. R. 116, 290 S. W. 1095; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569; Fisher v. State, 107 Tex. Cr. R. 383, 296 S W. 545; Levine v. State, 109 Tex. Cr. R. 331, 4 S. W.(2d) 553; Ford v. State (Tex. Cr. App.) 9 S.W.(2d) 344. In the present bill the claimed defects appear only as grounds of objection.

The motion for rehearing is overruled.


author: MARTIN, J.

text:
    NELSON v. STATE.
    (No. 12093.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    Cunningham & Lipscomb, of Bonham, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, unlawfully carrying a pistol; penalty, fine of $125.

Appellant was arrested by officers in front of his home. Pie had j-ust been talking to two white women in an automobile, which he was attempting to crank. Appellant was searched after his arrest and a pistol taken from him. This testimony with reference to the pistol given by the searching officers was objected to because in violation of the Constitution and our statute inhibiting the search of any person without first having obtained a search warrant. The bill of exception shows that the officers were not armed with a search warrant nor with a warrant of arrest for appellant, and that the pistol could not be seen by the officers prior to his arrest. There is no showing that the arresting officers had received information that appellant had a pistol. In fact, the record negatives the existence of such. The existence of the facts set out in article 487, P. C. (1925), giving the right of arrest without warrant, is not shown. Appellant’s wife testified that he had just a moment before been examining same after its return home by a borrower, and that he had stepped out of the house with it to crank the car for the two white ladies. The bill is qualified by the court to show that this testimony was admitted because the officers at the time were searching for the appellant to arrest him for vagrancy. The. right to arrest carries with it the right of search, but no facts are present in this record which authorized an arrest of appellant without a warrant. Under the facts shown herein, the result of the illegal search of the person of appellant was1 improperly admitted. Article 727a, C. C. P. (1925). See, also, Lawhorn v. State, 108 Tex. Cr. R. 202, 299 S. W. 413; Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095. The question has been so ofttimes discussed that we deem any further statement by us unnecessary.

Eor the error discussed, the judgment is reversed and cause remanded.

PER 'CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: ■CHRISTIAN, J.

text:
    Ex parte DONOHOE.
    (No. 12517.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    Storey, Leak & Storey, of Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ■CHRISTIAN, J.

This is an appeal from an order of the district judge denying bail. Appellant is charged by complaint with the murder of Herman Walden. The body of deceased was found in a pasture near an oil camp. There were shotgun wounds in the breast. Near the body were some empty 12-gauge shotgun shells. The body was rigid and stiff and looked like it had been in the position in which it was found for some time. The state introduced in evidence various circumstances tending to identify appellant as having committed the homicide. Touching the facts immediately attending the homicide, the record is silent. Without giving intimation as to their cogency if passed upon by a jury, this court does not feel warranted in concluding that on the evidence at hand a jury would probably inflict the death penalty. We do not deem it necessary to set out the facts in detail.

Bail is a matter of right, unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Alford, 97 Tex. Cr. R. 410, 261 S. W. 1031; Ex parte Powell, 107 Tex. Cr. R. 648, 298 S. W. 575. The burden is on the state to show that the accused is not entitled to bail; otherwise, he is entitled to bail as a matter of right. Article 1, § 11, Constitution of Texas; Ex parte Powell, supra.

The judgment denying bail is reversed, and bail granted in the sum of $10,000.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.


text:
    SAVAGE v. STATE.
    (No. 12338.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    J. R. Bell and Adams & Jones, all of Gainesville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, robbery; penalty, eight years in the penitentiary.

Motion is made by the state’s attorney to dismiss this appeal because of the escape from jail of appellant pending appeal. The motion is accompanied by proper affidavit from the sheriff of Cooke county that appellant after his conviction escaped from jail and from the custody of the sheriff on the 18th day of January, 1929, and was still at large on the 5th day of February, 1929. Under such circumstances this court is without jurisdiction. Miller v. State (Tex. Cr. App.) 9 S.W.(2d) 1039; Mitchell v. State (Tex. Cr. App.) 300 S. W. 60.

The state’s motion is accordingly granted, and the appeal dismissed.

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