author: 'NORVELL, Justice.

text:
    PEERLESS OIL & GAS CO. v. TEAS.
    No. 10608.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1940.
    Rehearing Denied March 27, 1940.

      Swearingen & Miller, Eskridge & Groce, and Walter Groce, all of San Antonio, for appellant.
    Fagan Dickson and J. B. Lewright, both of San Antonio, for appellee.
   'NORVELL, Justice.

This is an action for damages based upon an alleged abuse of the process of garnishment brought by Paul C. Teas, plaintiff, against Peerless Oil and Gas Company defendant. The cause was tried to a jury and the judgment based upon the jury verdict awarded Teas both actual and punitive damages. The trial court required a remittitur of part of the exemplary damages found by the jury. Peerless Oil and Gas Company appealed and Teas presents cross-assignments of error, attacking the action of the trial court in requiring a remittitur as a precedent to an entry of judgment upon the verdict.

The parties will be here designated as Peerless and Teas.

This action results from certain prior lawsuits which must be noticed here in order to make clear the issues involved in this appeal.

On November 18, 1936, the 45th District Court of Bexar County,' Texas, entered judgment in the case of Paul C. Teas v. The Floboots Corporation et al. The court found that Teas was entitled to recover from the Floboots Corporation the sum of $36,085, and that a certain fund of $35,000 on deposit in the National Bank of Commerce should be applied to the discharge thereof, by payments to, be made as follows: To National Bank of Commerce for attorney’s fees, $250; to Helmerich & Payne, Inc., $20,939.36; to Peerless Oil and Gas Company, $9,403.40, and to Paul C. Teas, $4,407.24.

It was further provided that Teas, Hel-merich & Payne, Inc., and Peerless Oil and Gas Company have judgment against the other parties to the suit, including Flo-boots Corporation and Plateau Oil Company, establishing and fixing the respective interests of each of said parties, as above set out, in and to the fund of $34,750 held by the bank, being the amount remaining after the payment of the bank’s $250 fee.

Relating to the Peerless recovery, the decree provided: “It is further ordered, adjudged, and decreed, that the intervener Peerless Oil & Gas Company do have and recover of and from Plaintiff Paul C. Teas the sum of $9,040.28 principal, plus interest thereon at the rate of six per cent (6%) per annum from March 17, 1936 to the date of this judgment, being $363.12, aggregating $9,403.40, together with interest thereon at the rate of six per cent (6%) per annum from the date of this until paid, but no execution shall issue thereon until Peerless Oil & Gas Company has first applied for and sought payment of the sum awarded to it from the National Bank of Commerce as above provided, and payment thereof has been refused by said bank; and said sum in the National Bank of Commerce to which Peerless Oil & Gas Company has been adjudged to be entitled shall constitute a primary fund for the payment of this judgment and when received same shall constitute (sic) pro tanto on the judgment here rendered in its favor against Paul C. Teas.”

The Peerless Company, Floboots Corporation and the Plateau Oil Company gave notice of appeal. Floboots and Plateau attempted to perfect the same by the filing of a supersedeas bond: The sureties on this bond were Peerless Oil and Gas Company and Vernon F. Taylor. Taylor signed this bond not only as an individual, but as president of Plateau Oil Company, an appellant, and as president of the Peerless Company, a surety. The Plateau Company is a subsidiary of the Peerless Company, the majority of its stock being held by Peerless, and the officers of the two corporations being the same.

This supersedeas bond was held invalid by this Court. Teas v. Swearingen, Tex.Civ.App., 101 S.W.2d 334. Floboots and Plateau thereafter gave a new supersedeas bond and the appeal was decided adversely to Floboots and Plateau by this Court. Floboots Corporation v. Teas, Tex.Civ.App., 110 S.W.2d 180. While this appeal was pending, the Peerless Company caused writs of garnishment to be issued. These writs were served upon Gulf Oil Corporation and Shell Petroleum Corporation, both of whom were indebted to Teas. The writs were quashed by order of the 45th District Court of Bexar County, and that court’s judgment was affirmed by this Court. Peerless Oil & Gas Co. v. Gulf Oil Corporation, Tex.Civ.App., 112 S.W.2d 1083.

Teas in his petition set out the above facts relative to the history of the litigation, and pleaded that the writs of garnishment were wrongfully issued; that Peerless was actuated by malice, and caused said writs to be issued without probable cause therefor.

Teas further pleaded facts, alleged to have been known to Peerless at the time the application for garnishment was made, which constituted a basis for special actual damages. Teas prayed for a judgment of $40,325.38 actual damages, and $30,000 exemplary damages.

Briefly stated, Teas’ theory of the case was that the writs of garnishment were not issued in a good faith attempt to collect the Peerless judgment, but for the purpose of taking advantage of Teas’ existing financial and legal situation in order to force him to settle for a nominal amount, the judgment recovered in the Floboots case, in which the Plateau Oil Company, a Peerless subsidiary, was financially interested.

The findings of the jury upon special issues were as follows:

(1) That at the time of making application for writs of garnishment Teas had property in his possession in the State of Texas subject to execution, sufficient, when sold under execution, to satisfy the judgment for $9,403.45 with interest.

(2) That Peerless had knowledge on December 8, 1936, at the time of making the application for writs of garnishment, that Teas had property in his possession within this state, subject to execution, sufficient, when sold under execution, to satisfy the judgment for $9,403.45 with interest.

(3) That Peerless secured writs of garnishment to be issued and served on the ■Gulf and Shell with malice towards Teas.

(4) That Peerless had knowledge on December 8, 1936, that the issuance and service of writs of garnishment on Gulf and Shell would probably damage Teas in the operation of his business in the Smith-ville area.

(5) That the actual damages sustained by Teas were in the sum of $3,700.

(6) That the sum of $35,000 should be awarded Teas as exemplary damages.

In connection with Special Issue No. 2, the trial court gave the following definition of the word knowledge: “Knowledge of a fact means knowledge of such facts and circumstances as are sufficient to put a reasonably prudent person upon inquiry, which inquiry, if made with such diligence as would be used by a reasonably prudent person under existing circumstances, would lead to actual knowledge of such fact in question.”

The word malice, as used in Special Issue No. 3, was defined as follows: “Malice is a state of mind to be found from the facts in the case, and which characterizes an unlawful act intentionally done, without reasonable grounds for believing the act to be lawful. It is not necessary in order to find malice, that hatred, dislike, spite and resentment exist, but it may be inferred from the doing of an unlawful act without reasonable grounds for believing the same to be lawful.”

After the jury had returned its -verdict, the trial court on its own motion entered an order reciting that the court was of the opinion that the verdict of the jury for exemplary damages was excessive in the amount of $25,000 and decreed that should the plaintiff file a remittitur of said sum within ten days judgment would be entered for $3,700 actual damages and $10,-000 exemplary damages, otherwise a new trial would be granted. Both parties excepted to this order of the court. Plaintiff, however, did file a remittitur of $25,000 and judgment was entered for a total amount of $13,700.

. Peerless here presents propositions of law attacking the judgment awarding actual damages as well as exemplary damages.

We first discuss the question of actual damages. This is an action of abuse of process and is to be distinguished from an action based upon the malicious prosecution of a civil suit.

It seems that in Texas, the fact that a garnishment was “wrongfully” issued and levied gives rise to a cause of action for actual damages, even though the plaintiff in garnishment was not actuated by malice or had probable cause for the belief that grounds for garnishment existed. The garnishment is wrongful if the facts set forth in the affidavit prescribed by Article 4076, Vernon’s Civil Statutes, are untrue, Sayeg v. Federal Mortgage Company, Tex.Civ.App., 54 S.W.2d 238, or if the debt or judgment alleged to be the basis for the issuance of the garnishment be nonexistent or legally insufficient to support the writ. Barr v. Cardiff, 32 Tex.Civ.App. 495, 75 S.W. 341; Foster v. Bennett, Tex.Civ.App., 152 S.W. 233.

As to actual damages, we hold that under the facts of this case the issuance of the writs was “wrongful” because the judgment sought to be made the basis for the garnishments was legally insufficient for that purpose. This holding makes unnecessary a discussion of the definition of “knowledge” as used by the trial court in connection with Special Issue No. 2.

It is undisputed that the sum of money deposited with the National Bank of Commerce was a primary fund for the discharge of the Peerless judgment against Teas. That matter was determined by this Court in Floboots Corporation v. Teas, Tex.Civ.App., 110 S.W.2d 180, wherein the judgment of the trial court so providing was affirmed. In Peerless Oil & Gas Co. v. Gulf Oil Corporation, Tex.Civ.App., 112 S.W.2d 1083, 1084, it was held that the Peerless judgment against Teas would not support the issuance of the writs of garnishment “until after the primary fund had been exhausted, or had been diminished to such an extent that at the time of the application for writ of garnishment it could be determined, with mathematical certainty, to what extent the primary fund would not satisfy the judgment in favor of the Peerless Oil & Gas Company.”

The record in this case shows conclusively that such showing was not made, but, on the contrary, the judgment was satisfied out of the primary fund.

It therefore follows that the issuance of the writs of garnishment were “wrongful” and actual damages may be recovered.

As to the amount of the judgment for actual damages, we have concluded that the evidence supports the jury’s findings that the Peerless Company was in possession of sufficient facts concerning Teas’ financial situation, methods of operation anfl holdings in the Smithville area to make said company liable for the special actual damages found by the jury. Wallace v. Finberg, 46 Tex. 35; Foster v. Bennett, Tex.Civ.App., 152 S.W. 233; 17 C.J. 715.

We next consider the matter of exemplary damages. For the issuance of the writ of garnishment to be the basis for a recovery of exemplary damages, such issuance must be not only “wrongful,” but procured without probable cause and maliciously. The rules applicable to exemplary damages arising as a result of an abuse of judicial process are similar to those governing actions for malicious prosecution of civil or criminal proceedings. Both elements, malice and want of probable cause, must be present in order to sustain a recovery of exemplary damages in an action for abuse of process. The Peerless Company here by its propositions does not directly challenge the conclusion reached by the trial judge from the jury’s findings that the writs of garnishment were issued without probable cause. This explanation is made in order that it may be clearly understood that the element of malice is here discussed and not the element of probable cause. Peerless strenuously contends that the element of malice was improperly submitted to the jury and that the jury’s findings thereon are without support in the evidence.

We conclude that the evidence in this case is sufficient to suppo'rt the jury’s findings that the writs of garnishment were maliciously issued. The action of the Peerless Company in attempting to execute a supersedeas bond for the Plateau Company, its subsidiary, which would prevent the immediate payment of the Peerless judgment against Teas, and thus give an apparent basis for' the issuance of writs of garnishment against Teas is a circumstance from which the jury was authorized to infer malice. It is true that there was evidence, which, if believed by the jury, would show that the execution of this bond by Peerless was the result of a good faith effort on the part of Peerless to protect its subsidiary, Plateau, from what it believed to be an erroneous judgment. The conflict of evidence on this point raised a question for the determination of the jury, and that determination is conclusive here.

We next consider the manner in which the issue of malice was submitted to the jury. Peerless contends that the case must be reversed because, of the trial court’s failure to define the term “unlawful act” and the phrase “without reasonable grounds for believing the act to be lawful” as used by the trial court in its submission of special issue No. 3 to the jury.

The substance of the definition of malice given by the trial court has been approved by the Appellate Courts of this State. Carothers v. McIlhenny Co., 63 Tex. 138; Stansell & Younger v. Cleveland, 64 Tex. 660; Cotton v. Cooper, Tex.Civ.App., 160 S.W. 597, affirmed, Tex.Com.App., 209 S.W. 135.

In certain cases a further definition of the term "unlawful act” or "lawful” would be necessary in connection with the definition of malice. Grayce Oil Co. v. Peterson, 128 Tex. 550, 98 S.W.2d 781, where it was held that the term “wrongful” had substantially the same meaning as “unlawful.”

In this particular case, however, the “wrongful” or unlawful act involved was the running of the writs of garnishment, and, for the reasons above given, we have held that such act was “wrongful” or “unlawful,” and for that reason no error was committed by the trial court in refusing to further define the term “unlawful.” Alamo Downs, Inc. v. Briggs, Tex.Civ.App., 106 S.W.2d 733.

Complaint is also made of the trial court’s failure to submit the issue of malice separately as to Vernon Taylor, President, Thornton Davis, Vice President, and Knox Miller, attorney for Peerless and also the Plateau Oil Company. Peerless suggests that there may have been ill feeling between Miller and Teas, from which it' might be inferred that Miller was actuated by malice. It is then contended that Peerless could not be bound by the malice of Miller in the absence of a finding that Peerless knew of such malice and ratified Miller’s malicious acts. This contention is overruled. The alleged malicious act complained of was the issuance of writs of garnishment as a part of a plan to force a settlement of the judgment obtained by Teas in the Floboots suit. Taylor, individually and as president of Peerless, signed the supersedeas bond above discussed. Davis signed the application for garnishment. Miller was the attorney for Peerless. Under these circumstances it was not necessary to submit the issue of malice separately as to Taylor, Davis and Miller, nor was it necessary to submit the issue of ratification. A case in which corporate action taken upon advice of counsel would be a defense is not presented by the record. Jacobs, Bernheim & Co. v. Crum, 62 Tex. 401; Shannon v. Jones, 76 Tex. 141, 13 S.W. 477.

Peerless also contends that the trial court erred in the admission of certain testimony which tended to show that the company and its president, Taylor, were wealthy. The evidence admitted was an affidavit executed by Taylor in connection with the supersedeas bond given in the Floboots case and matters brought out by examination of witnesses relative thereto. The supersedeas bond proper was admitted without objection. This bond was for the sum of $72,500, and in itself indicated that the sureties were possessed of considerable wealth.

The affidavit was in effect a part of the supersedeas bond and contains recitations showing that the Peerless Company was a holding company owning at least fifty per cent of capital stock of Plateau Oil Company, an appellant in the Floboots case. The affidavit contained the statement that the Peerless Company and affiant, Taylor, were each worth in excess of $75,000.

This affidavit was admissible upon a vital part of Teas’ theory of the case, and was therefore properly received in evidence. The fact that it indicated that Taylor and Peerless possessed considerable wealth did not render the affidavit inadmissible. Houston Cotton Oil Company v. Trammell, 96 Tex. 598, 74 S.W. 899.

Peerless further contends that the trial court committed error in receiving in evidence excerpts from the briefs filed in this Court upon the former appeals heretofore mentioned. The statements contained in the briefs were of course privileged in the sense that an action of libel would not lie because of such statements. Kruegel v. Cockrell & Gray, Tex.Civ.App., 151 S.W. 352. It seems, however, that in malicious prosecution suits, the. conduct of the defendant in the case upon which the malicious prosecution is based is admissible in evidence. Suhre v. Kott, Tex.Civ.App., 193 S.W. 417; Meyer v. Viereck, Tex.Civ.App., 286 S.W. 894; Annotation, 12 A.L.R. 1259-1263; Wilmer v. Rosen, 102 W.Va. 8, 135 S.E. 225, 49 A.L.R. 261, and annotation thereto; 18 R.C.L. 31, 32. As above pointed out, a case for exemplary damages for abuse of process is very similar to one for malicious prosecution. According to Teas’ theory of this case, the judgment in the Floboots case was superseded by Plateau, á Peerless subsidiary, in order to prevent payment of that judgment and create an apparent basis for the issuance of the writs of garnishment. He had the right to introduce evidence in support of that theory, and considering the intimate connection between the Peerless and Plateau Companies, the fact that both companies had the same officers and attorneys, we have concluded that the evidence complained of was properly admitted. In cases in which the element of malice is in issue, a relatively wide range of evidence is permitted. Shaw v. Cone, Tex.Civ.App., 56 S.W.2d 667; 20 Am.Jur. 321.

This leaves to be discussed only the Peerless proposition that a new trial must be had because of the excessiveness of the verdict for exemplary damages, and the cross-assignments of Teas.

Teas contends that this Court should reverse the trial court’s judgment of $10,-000 exemplary damages and render judgment for $30,®00 (the amount of exemplary damages prayed for by Teas) upon the verdict of the jury.

Much of Teas’ brief on his cross-assignments is devoted to the proposition that he is entitled to present that contention here despite the fact that he filed a remittitur in the trial court under the circumstances above set out. We believe it would be the duty of this Court to render judgment here on the verdict of -the jury, providing we should hold that an award of $30,000 was not excessive under the facts of this case.

This Court has no authority to substitute different findings for those of the jury upon disputed issues of fact. Dolen v. Lobit, Tex.Com.App., 262 S.W. 731. We must accept the jury’s findings supported by the evidence as true. Applying this rule to the facts and findings of this case, we conclude that a recovery of exemplary damages may be sustained. A jury’s finding .as to the amount of damages stands upon a somewhat different basis than a finding of the existence or non-existence of a particular disputed fact. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962. The trial court held that the jury’s finding as to the amount of exemplary damages was excessive. That holding is approved by us. An award of $30,000 exemplary damages can not be sustained upon the record presented here.

In view of this holding, the case of World Oil Co. v. Hicks, supra, is controlling. The procedure followed by the trial court in this case was that discussed and approved in the Hicks case. The opinion in that case also disposes of the Peerless contention that a new trial must be granted because of the excessiveness of the verdict. Further discussion of that opinion would serve no useful purpose.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY,' Justice.

license: Public Domain

text:
    BOGGUS MOTOR CO. v. STANDRIDGE.
    No. 10709.
    Court of Civil Appeals of Texas. San Antonio.
    March 13, 1940.
    Rehearing Denied April 3, 1940.
    Kent & Brown, of Harlingen, for appellant.
    J. F. Carl, of Edinburg, and John Q. Adams, of Harlingen, for appellee.
   MURRAY,' Justice.

This suit was instituted in the District Court of Cameron County, 103d Judicial-District, by C. B. Standridge against Bog-gus Motor Company, a corporation, seeking to recover damages for injuries which he sustained while attempting to dismount from a truck which was upon a rack in the repair shop of the Motor Company.

The trial was to a jury, who made the following findings, to-wit:

1. That the front end of the truck in question was raised by the defendant acting by and through its employee, Frank Louk, after the plaintiff got into the truck and before he attempted to dismount therefrom.

2. That the truck was so raised after the plaintiff entered the cab so as to permit the same to tilt when the plaintiff undertook to dismount therefrom.

3. That when the plaintiff undertook to dismount from said truck, the same tilted by reason of having been raised as above inquired about.

4. That the aforesaid raising of said truck by defendant’s agent or employee, Frank Louk, in such manner as to permit the same to tilt when the plaintiff attempted to dismount, was negligence on the part of the defendant.

5. That such negligence was a proximate cause of the injuries received by the plaintiff.

6. That the failure of defendant to warn plaintiff after plaintiff got in the cab that the front end of the truck had been raised after the plaintiff had entered the cab of the truck, constituted negligence, and that such negligence was a proximate cause of the injuries complained of by the plaintiff.

7. That the plaintiff’s act in attempting to dismount from the truck backwards did not constitute negligence.

8. That the plaintiff did not fail to maintain a reasonable lookout for his own safety at and immediately prior to the accident in question.

9. That the sum of $2,000 would reasonably compensate the plaintiff for his injuries.

Judgment was entered accordingly and the Boggus Motor Company has prosecuted this appeal.

Appellant’s first proposition presents the contention that when appellee, Standridge, entered the truck while it was on the elevated rack he left a place of safety and went into a place where he knew it was dangerous, and where he was not invited but was at most only a licensee, and there received an injury, he was guilty of con-, tributory negligence as a matter of law.

The evidence shows that appellee took his truck to appellant’s garage for the purpose of having certain repairs made on the truck. It was turned over to an employee of appellant and by him driven upon an elevated rack. Appellee was then shown what repairs would be necessary and he left the repair shop to go to the front of the garage to telephone to his wife to come for him. He then remembered that he had left a small bag of peaches and some letters in the truck which he wished to take home with him. He returned to the repair shop and asked leave of one of appellant’s employees to enter the truck and get the peaches and the letters. Consent was given him; however, it is not shown that the employee had authority to give such consent. He entered the cab of the truck and secured his packages. While he was thus engaged, according to the finding of the jury, an employee of appellant jacked up the front end of the truck so that when appellee attempted to dismount the truck tilted and caused him to fall to the cement floor and fracture his skull. Appellee testified that he knew it was dangerous to enter the truck while it was on the rack, and especially if it was “tinkered with” while he was in it, and that he felt certain motions and heard certain noises while he was in the cab.

Appellant cites a great many cases to the effect that where one not suffering under some disability goes upon the premises of another as a licensee, knowing that such premises are dangerous, and is injured by such known dangers he cannot recover but is guilty of contributory negligence as a matter of law. Typical of these authorities is Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S.W. 375, 31 L.R.A.N.S., 1218, Ann.Cas.1913A, 111. There a boy got his foot caught in a cotton seed conveyor. He realized the danger when he went into the seed house as a licensee and under these circumstances was held to be guilty of contributory negligence as a matter of law.

The suit at bar is distinguishable from the cases cited by appellant in that here Standridge was injured as the proximate result of the active negligence of appellant’s employee, in that he jacked up the front end of the truck while he knew Standridge was temporarily in the truck for the purpose of getting some packages therefrom.

The rule is that an invitee or licensee cannot recover any damages by reason of injuries resulting from a dangerous condition, continuous in its nature, of the premises; but that he can recover, even though those dangerous conditions exist, if his injuries were caused by the active negligence of the licensor or in-vitar, and were not the result of, or caused by, such continuous dangerous conditions. Houston Belt & Terminal Railway Co. v. O’Leary, Tex.Civ.App., 136 S.W. 601; St. Louis S. W. Ry. Co. v. Balthrop, Tex.Civ.App., 167 S.W. 246.

In the case at bar the question of the contributory negligence of Standridge was submitted to the jury and found favorable to him. This finding of the jury stands unchallenged by any assignment.

Appellant’s second proposition reads as follows: “Since, as to the wheel alignment rack and that part of the premises on which it was situated, appellee occupied the status of a licensee, the rule of law governing the proprietor of premises’ duty toward invitees is not applicable and appellant was under no obligation to make that part of the premises safe for appellee, and any negligence chargeable to appellant by reason of an alleged new danger would consist, not in the creation of the danger, but in the failure to give notice or warning thereof, and where it is clearly evident from appellee’s own testimony that he realized the danger incident to his climbing up and around on the car and rack at the time in question, particularly if it was ‘tinkered’ with while he was up on -it, and he further testifies that he knew it was being ‘tinkered’ with while he was up there, the failure to give notice or warning, as found by the jury in Special Issues Nos. 6 and 7, could have no effect upon the issue as to responsibility in the face of appel-lee’s actual knowledge, and the trial court erred in overruling appellant’s Motion for an instructed verdict and Motion for Judgment Non Obstante Veredicto predicated on the proposition that appellee, a licensee, had neither pleaded or proven a cause of action entitling him to recover in that status.”

In view of the fact that appellee was injured not as a result of the dangerous condition of the premises when he entered them, but, rather, by the active negligence of the employee of appellant after he entered the premises, and in' view of the further fact that the jury findings are favorable to appellee, this proposition will be overruled.

By his third proposition appellant complains because the trial court did not submit to the jury the issue of unavoidable accident. We overrule this proposition. There is no evidence to show that appel-lee’s injuries were caused by some agency over which neither appellant nor appellee had control. The evidence does show that the injuries were the result of either the negligence of appellant or appellee. Under such circumstances, unavoidable accident is not in the case and the trial judge properly refused to submit it to the jury.

The judgment is affirmed.


author: ALEXANDER, Justice.

text:
    POTTINGER v. SOUTHWESTERN LIFE INS. CO.
    No. 2015.
    Court of Civil Appeals of Texas. Waco.
    March 7, 1940.
    Rehearing Denied March 28, 1940.

      Monning & Akin, of Amarillo, for plaintiff in error.
    Hamilton, Lipscomb, Wood & Swift, of Dallas, for defendant in error.
   ALEXANDER, Justice.

This suit was brought by Southwestern Life Insurance Company against Mrs. Bettie Kate Pottinger, individually and as independent executrix of the estate of J. V. Pottinger, deceased, and others for debt and to foreclose a deed of trust lien on 933 acres of land in Potter county. Mrs. Pot-tinger, in her answer by way of cross-action, alleged that she had paid off certain indebtedness owing by the estate of her deceased husband, J. V. Pottinger, for funeral expenses and expenses of last sickness with her own funds and had taken assignments of the accounts, and had become sub-rogated to the rights of the original creditors holding said claims, and that the estate owed certain claims for expenses of administration, and she prayed that said claims be classified as first class claims owing by said estate, and that the proceeds of the sale of said land be first applied to the discharge thereof. A trial before the court resulted in a judgment for plaintiff for its debt with foreclosure of its lien and denying Mrs. Pottinger any recovery on her cross-action. Mrs. Pottinger, individually and as executrix of said estate, removed the case to this court by writ of error.

In the outset it should be noted that the deed of trust here sought to be foreclosed was executed in 1927, .which was prior to the enactment of Vernon’s Ann.Civ.St. art. 3515a (Acts 1931, 42nd Leg., p. 79, chap. 52). Its enforcement is therefore regulated by the law as it existed pri- or to that Act. Laubhan v. Peoria Life Ins. Co., 129 Tex. 225, 102 S.W.2d 399; Second National Bank v. Ford, Tex.Com.App., 123 S.W.2d 867. Under the statutes as they existed prior to 1931, in the administration of estates through the probate court, claims for funeral expenses and expenses of last sickness were classified as first class claims, and expenses of administration were classified as second class claims, all of which were superior to lien claims, which'were classified as third class claims. Arts. 3531 (Vernon’s Ann.Civ.St. art. 3531), 3533, Revised Statutes. Under the amendment of 1931, above referred to, á lien creditor whose lien was created subsequent to that Act may ask for and have his claim approved as a preferred claim against the specific property covered by his lien only and in that event his claim as to the proceeds of the sale of the property in question is superior to all other claims. Wyatt v. Morse, 129 Tex. 199, 102 S.W.2d 396. The evidence in the main sustained the matters of fact alleged by Mrs. Pot-tinger in her cross-action and she is entitled to judgment on at least a part of the claim asserted by her unless her right thereto-is defeated by one or more of-the contentions made by the defendant in error.

The defendant in error’s first contention is that the provisions of R.S. arts. 3531 and 3533, relating to the classification and due order of payment of claims in the administration of estates of deceased persons, has no 'application to independent administrations, and consequently Mrs. Pot-tinger was not entitled to have the claims held by her for funeral and expenses of last sickness paid as preferred claims out of the proceeds of the sale of the land covered by its lien. We do not think the authorities sustain this contention. It is true the articles last cited are found in a chapter of our probate statutes regulating dependent administrations; but this alone is insufficient to justify a holding that they have no application when the estate is being administered independent of the probate court. In the case of Alexander v. Berkman, 3 S.W.2d 864, 870, this court, in an opinion by Chief Justice Gallagher, said: “Appellee stresses the fact that Berkman was an independent executor and that the estate of Mrs. Thomas was not being administered in the probate court. An independent executor is not a law unto himself. Plis ‘independence’ consists largely in his right in the administration of such estate to do without an order of the county court every act which he could do with such an order, were he acting under the control of such court. Dwyer v. Kaltayer, 68 Tex. 554, 563, 5 S.W. 75; Ellis v. Howard Smith Co., 35 Tex.Civ.App. 566, 80 S.W. 633, 634 (writ refused). His management of the estate is an ‘administration’ of the same in contemplation of the law, and for some purposes the estate remains all the while under the jurisdiction of the county court probating the will under which he is acting. Roy v. Whitaker, 92 Tex. 346, 355, 48 S.W. 892, 49 S.W. 367. An independent executor is required to conform to the provisions of our probate laws as far as applicable. R.S.1925, art. 3449. It is his duty to pay the debts of the testator and expenses of administration in the order of priority prescribed by articles 3531-3533 of the Revised Statutes, 1925. If he does not do so, any creditor holding an unpaid debt against the estate may, after the expiration of one year, enforce payment thereof by suit against him and.by a levy of execution on the property of the estate remaining in his hands. R.S.1925, article 3437. This statute, however, presupposes the solvency of the estate, and cannot be invoked to give one creditor a preference over another of the same or higher class, contrary to the provisions of said articles of- the statute, when the estate is insolvent. Farmers’ & Merchants’ Nat. Bank v. Bell, 31 Tex.Civ. App. 124, 71 S.W. 570 (writ refused).”

This same holding was made in Etter v. Tuck, Tex.Civ.App., 91 S.W.2d 875 and Jenkins v. First National Bank of Coleman, Tex.Civ.App., 101 S.W.2d 845. This contention is overruled.

R.S.- art. 3544 provides, in part as follows: “No executor or administrator shall purchase for his own use, either directly or indirectly, any claim against the estate he represents; and, should he do so, * * * such executor or administrator shall not be allowed to receive from the estate any portion of such claim.”

Defendant in error contends that under the above statute the executrix should not be permitted to collect on any of the accounts against the estate which she personally paid off with her own funds. It should be noted that the statute prohibits an executor or administrator from purchasing accounts against estates he represents “for his own use.” The object of this statute, we believe, was to prevent representatives of estates from using their office in purchasing accounts against estates at a discount and filing the same against the estate for their full value and thereby reaping a profit by means of their official positions. Gray v. Cockrell, 20 Tex.Civ.App. 324, 49 S.W. 247; Chevallier v. Wilson, 1 Tex. 161. The statute ought not to be so construed as to penalize a widow who, in order to avoid embarrassment, makes prompt payment of the account for the burial of her deceased husband and merely seeks to be reimbursed for the money so expended by her for the benefit of the estate. According to the testimony, the claims in question were' paid off by Mrs. Pottinger in full at their face value. There is therefore no evidence of any attempt to traffic in claims against the estate at the expense of the creditors thereof. We overrule this contention. See Lowenstein v. Watts, 137 S.W.2d 2, decided by Sup.Ct. Feb. 28, 1940.

There is evidence indicating that since the qualification of the executrix certain other creditors of the estate, the Lincoln National Life Insurance Company and Amarillo National Bank, have been permitted to foreclose on certain property covered by liens held by them and to apply to their debts the whole of the proceeds of the ■sale of such property, together with some rents that accrued thereon prior to foreclosure. Defendant in error here contends that the executrix by permitting this to be done has thereby allowed a preference to -such creditors and consequently has es-topped herself to here collect the full amount of the claims held by her out of the proceeds of the property covered by defendant in error’s lien. In the first place, no such defense was raised by the defendant in error in its pleadings. As we understand, estoppel, in order to be available, must be plead. 17.Tex.Jur. 146; Leon v. Gulf Production Co., Tex.Civ.App., 35 S.W.2d 1101. In the second place, the lien held by these creditors included the rents and were executed subsequent to the amendment of 1931, above referred to. These creditors therefore had a right to have their liens foreclosed as preferred claims against the specific property covered thereby. Wyatt v. Morse, 129 Tex. 199, 102 S.W.2d 396. The executrix violated no duty to the defendant in error by permitting the other named creditors to do what they were authorized to do under the law.

There was evidence that the executrix had made an allowance of $500 to herself in lieu of exempt property and an allowance in like amount for support and that she appropriated to herself in satisfaction of such claims several vacant lots of small value and the sum of $261 in cash, which she had received from the sale of certain furniture out of an apartment house belonging to the estate. The claims for funeral expenses and expenses of last sickness were superior to the widow’s claim for allowances in lieu of exempt property and for support, and the executrix was not authorized to so apply these funds so long as the preferred claims were_ unpaid. Upon another trial the value of these lots, together with the cash so appropriated by the executrix, should be applied as a credit on the preferred claims held by the executrix. R.S. arts. 3483, 3500.

Among other claims which the executrix asserted and sought to have allowed and paid out of the proceeds of the mortgaged property in question was a claim for attorney’s fees for representing the executrix in the administration of the estate. The evidence does not show what part of the attorney’s fees were incurred for representing the executrix in her official capacity and what part was incurred in representing her in her individual capacity. Upon another trial, this matter should be clarified, for the estate, of course, would not be liable for attorney’s fees incurred in representing Mrs. Pottinger individually.

The judgment of the trial court will be reversed and the cause remanded for another trial.


author: PER CURIAM.

text:
    133 Tex. 623
    LONG et al. v. LONG.
    Application No. 24441.
    Supreme Court of Texas.
    Oct. 4, 1939.
    Fred'H. Minor, of Denton, and W. F. Bane, Charles E. Long, Jr., and Storey, Sanders, Sherill & Armstrong, all of Dallas, 'for plaintiffs in error Frank O. Long and others.
    Thompson, Knight, Baker, Harris & Wright, of Dallas, for defendant in error Frances Mae Long.
   PER CURIAM.

This is the second appeal of this case to this court. The opinion in the former appeal is reported at 133 Tex. 96, 125 S.W.2d 1034. In the former appeal we remanded this cause to the Court of Civil Appeals to pass on the assignments of the appellant raising the issue of the insufficiency of the evidence to support the findings of the jury on certain issues fully set out in our original opinion. After the judgment of this court became final, the record was returned to the Court of Civil Appeals, and that court, after considering the assignments raising the question of insufficiency above indicated, overruled the same. We have no jurisdiction to disturb such ruling. It is therefore ordered that this application be “Dismissed W. O. J.”


author: SHARP, Justice.

text:
    ROSS AMIGOS OIL CO. et al. v. STATE.
    No. 7654.
    Supreme Court of Texas.
    April 3, 1940.

      Mann & Mann and Max A. Mendlovitz, all of Laredo, for plaintiffs in error.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and A. S. Rollins, Asst. Attys. Gen., for the State.
    J. W. Townsend, of Austin, for Tax Board.
    Edwin D. Guinn, of Rusk, for Secretary of State.
   SHARP, Justice.

The State of Texas brought this suit in the District Court of Webb County against the Ross Amigos Oil Company, a Texas Corporation, and its directors, to recover the amount of the franchise tax which the State claimed was due for the years 1930 to 1938, inclusive. Judgment was rendered in the trial court in favor of the State for the sum of $1,159. An appeal was taken by the defendant to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 131 S.W.2d 316. A writ of error was granted.

In this opinion we shall designate the State of Texas as the State, and the Ross Amigos Oil Company as the Oil Company.

Plaintiffs in error urge two main contentions : (1) That the Court of Civil Appeals erred in holding that Chapter 3 of Title 122, Article 7084 et seq., of the Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 7084 et seq., renders them liable to pay the corporate franchise tax imposed therein, after the Oil Company’s right to do business in this State had been forfeited by the Secretary of State; and (2) that when Article 141 of the Penal Code is considered in connection with Article 7084 et seq., supra, the law evidences a clear intention to levy a franchise tax on such corporations for the privilege of doing business in this State, and that when the Secretary of State forfeited the right of the Oil Company to do business, it was no longer liable for such franchise tax during the interim for which it was not privileged to do business in this State.

The cause is submitted on an agreed statement of facts. The Ross Amigos Oil Company was incorporated in 1922 under the law of Texas. It paid its franchise tax up to the year 1930. The Secretary of State, after proper notices, did, on August 1, 1930, notify the Oil Company that its right to do business in Texas had been forfeited, because of its failure to pay the franchise tax. The Oil Company was incorporated for the purpose of establishing and maintaining an oil and gas company, with the right to acquire real and personal property and enter into drilling contracts and acquire leases. On February 2, 1938, the Oil Company was dissolved, by consent of its stockholders. At the time of its dissolution the other plaintiffs in error herein were its directors and the corporation owned a considerable amount of property. The directors of the corporation, after its dissolution, took charge of the property as trustees, and were to pay all of the corporation’s debts and then divide the remainder of the property among the stockholders, as provided by law. No receiver was asked for or appointed.

The Oil Company for the period from August 2, 1930, to February 2, 1938, inclusive owned and operated producing oil wells in this State, receiving the annual gross receipts therefrom, and reporting their entire production to the Comptroller of Public Accounts, as required by law, and filed a capital stock tax return with the. Bureau of Internal Revenue as of the date of dissolution of said corporation on February 2, 1938.

This case involves the construction of Articles 7084 to 7097, inclusive, of the Revised Civil Statutes of Texas.

Article 7084 provides: “Except as herein provided, every domestic and foreign corporation heretofore or hereafter chartered or authorized to do business in Texas, shall, on or before May 1st of each year, pay in advance to the Secretary of State a franchise tax for the year following, * * Then follows the basis upon which the tax is calculated. Article 7089, as amended in 1931, Vernon’s Ann.Civ.St. art. 7089, provides: “all corporations now required to pay an annual franchise tax shall, between January 1st and March 15th of each year, make a sworn report to the Secretary of State, on blanks furnished by that officer, showing the condition of such corporation on the last day of its preceding fiscal year.” This article also provides what the reports shall contain, and further provides: “Any corporation which shall fail or refuse to make its report shall be assessed a penalty of ten per cent (10%) of the amount of franchise tax due by such corporation, payable to the Secretary of State, together with its franchise tax.”

Article 7091 in effect provides that any •corporation which fails to pay such franchise tax shall thereupon become liable to a penalty of 25% of the amount of such franchise tax due by such corporation. If the amount of such tax and penalty is not paid in full on or before the’first day of July thereafter, such corporation for such •default shall forfeit its right to do business in this State. Such Article also provides that such forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his. office relating to such corporation the words “right to do business forfeited” and the date of such forfeiture. Any corporation whose right to do business shall thus be forfeited shall be denied the right to sue •or defend in any court of the State, except in a suit to forfeit its charter.

Article 7092 provides how the notice •of such forfeiture shall be given by the Secretary of State, and the time and manner of giving such notice. It also provides that when such tax and penalty shall have been fully paid to the Secretary of State, he shall revive the right of the corporation to do business within this State by canceling the words “right to do business forfeited” upon his record, and by endorsing thereon the word “revived” and the date of such revival. This Article further provides that if any domestic corporation whose right to do business within this State shall hereafter be forfeited under the provisions of this law, and shall fail to pay the Secretary of State on or before the first day of January next following the revival the amounts necessary to entitle it to have its right to do business revived under the provisions of this law, such failure shall constitute sufficient ground for the forfeiture of its charter by judgment of any court of competent jurisdiction.

Article 7094 describes the corporations that are exempt from the provisions of this law.

Article 7095 provides that the Attorney General shall bring suit against “any such corporation which may be or become subject to or liable for any franchise tax or penalty under this law,” and for the forfeiture of the charter of such corporation.

Article 7097 provides the rule or method for calculating the franchise tax which corporations in the process of liquidation shall be required to pay.

Article 141 of the Penal Code provides that, in all cases in which the charter or right to do business of any private domestic corporation, chartered under the laws of this State, shall be forfeited, it shall be unlawful for any person, or persons, or stockholders or officers of such corporation at the time of such forfeiture, to do business under the name of such corporation; and provides penalties therefor.

A construction of the foregoing articles of the statutes resolves itself into one of legislative intent; which is to be determined from the language used and the purpose in view in enacting the law. When all the articles of this statute are considered together, and full effect given to the object sought to be attained therein, the conclusion is inescapable that this statute was enacted solely for the purpose of raising revenue. The ■ clear purpose of this law is to levy a franchise tax on each and every corporation that is chartered in the State, — with certain exemptions, which are not involved here. The penalties imposed for failure to pay the franchise tax are heavy, and were evidently provided ■ to hasten payment and to inflict a punishment on such corporations for failure to pay such tax.

The Oil Company could have made valid contracts, because the law does not expressly declare that contracts made by a corporation whose right to do business has been forfeited are void. Nor. does the law declare that the business transacted during the time of such forfeiture is void. It is undisputed that the Oil Company continued to do business in Texas as a chartered corporation. The only right or privilege taken away from such corporation by the forfeiture of its right to do business by the Secretary of State was its right to sue and defend in the courts of this State. Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W. 2d 56; Lyons v. Texorado Oil & Gas Co., Tex.Civ.App., 91 S.W.2d 375, error refused; Real Estate Land Title & Trust Co. v. Dildy, Tex.Civ.App., 92 S.W.2d 318, 319; Smythe Co. v. Ft. Worth etc., Co., 105 Tex., 8, 142 S.W. 1157; State Bank v. Holland, 103 Tex. 266, 126 S.W. 564; 10 Tex.Jur. p. 187, sec. 108; 37 C.J. p. 260, sec. 138.

It will be noted that the Attorney General brought no suit against the Oil Company to forfeit its charter, either for failure to pay the franchise tax or upon any other ground. The failure of a corporation to pay a franchise tax does not authorize the Secretary of State to declare a forfeiture of its charter. All that the law authorizes him to do is to forfeit the right of the corporation to do business, and it shall be denied the right to use the courts of this State. The law specifically places the burden on the Attorney General to effectuate a forfeiture of the charter of a corporation, by legal proceedings brought on behalf of the State for that purpose. Fox v. Robbins, Tex.Civ.App., 62 S.W. 815, Id., Tex.Civ.App., 70 S.W. 597, error refused, Rippstein et al. v. Haynes Medina Valley Ry. Co. et al., Tex.Civ.App., 85 S.W. 314.

It is undisputed that the Oil Company owned and operated producing oil wells in this State from 1930 to February 2, 1938, when it was dissolved by consent of its stockholders. The law undoubtedly levies a franchise tax against corporations such as this, regardless of whether or not they do business. This conclusion is fortified by the provisions of Article 7095, which specifically provides that the Attorney General shall bring suit against any such corporation which may be or become subject to or liable for any franchise tax or penalty under this law. This liability for such franchise tax applies to all corporations required to pay same, regardless of the forfeiture by the Secretary of State of the right of such corporation to do business; and this liability continues so long as such corporation remains undissolved, or until its charter is forfeited by legal proceedings as required by law.

In Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, 61, in discussing the effect of Articles 7091 and 7092, this court used the following language: “This statute is purely a revenue measure. Under it large sums are collected for the support of the state government. Statutes of this nature are always liberally construed so as to effectuate the chiéf object and purpose of their enactment. In making provision for the collection of public revenue, ordinarily time is not of the essence of the thing sought to be accomplished. The primary purpose of such a statute is to secure the payment of the taxes therein levied.”

It is undisputed that after the forfeiture of the Oil Company’s right to do business it exercised all the benefits and privileges conferred on a chartered corporation, except its right to sue and defend in the courts. It carried on its business, retained the proceeds derived therefrom, and up to the time it was finally dissolved it acted as though it had paid its franchise tax. To hold under these facts that a corporation' could refuse to pay its franchise tax, and thereby defeat its obligation to pay same, would nullify the dominant purpose of this law and defeat the very purpose for which it was enacted.

For a further discussion of this class of legislation by the various courts we cite the following decisions: In re G. H. Hammond Co., 246 Mich. 179, 224 N.W. 655; In re Detroit Properties Corporation, 254 Mich. 523, 236 N.W. 850; Michigan v. Michigan Trust Co., 286 U.S. 334, 52 S. Ct. 512, 76 L.Ed. 1136; State v. Acacia Mutual Life Ass’n, 214 Ala. 628, 108 So. 756; Minneapolis St. Paul & S. S. M. Ry. v. Oppegard, 38 N.D. 1, 118 N.W. 830; Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.2d 810; People ex rel. East River Terminal Ry. Co. v. State Board of Tax Commissioners, 79 Misc. 134, 140 N.Y.S. 722; Newton Creek Towing Co. v. Law, 205 App.Div. 209, 199 N.Y.S. 866, Id., 237 N.Y. 579, 143 N.E. 749; State ex rel. Preston Mill Co. v. Howell, 67 Wash. 377, 121 P. 861; Knoxville & Ohio R. R. Co. v. Harris, 99 Tenn. 684, 43 S.W. 115, 53 L.R.A. 921.

We have carefully considered all of the questions raised by plaintiffs in error, and same are overruled.

The judgment of the Court of Civil Appeals is affirmed.


author: SLATTON, Commissioner.

text:
    HARTMAN et al. v. HARTMAN et al.
    No. 1803—7349.
    Commission of Appeals of Texas, Section B.
    April 3, 1940.
    Wilcox & Graves, of Georgetown, and S. E. Wilcox, Jr., of Austin, for plaintiff in error.
    D. B. Wood and Wood & Wood, all of Georgetown, and W. C. Wofford, of Taylor, for defendants in error.
   SLATTON, Commissioner.

On February 8, 1932, Ethel Boyd Hartman obtained a judgment against A. P. Hartman in the district court of Williamson County for the sum of $1500 for moneys expended by her for necessaries for support of the three minor children of the said Ethel Boyd Hartman and A. P. Hartman. In June, 1935, Ethel Boyd Hartman procured a writ of garnishment upon her judgment of February 8, 1932, against the bank seeking to subject moneys in said bank appearing to the credit of Alma T. Hartman. In such garnishment proceedings it was alleged that in 1916 Ethel Boyd Hartman obtained a divorce from A. P. Hartman in the district court of Williamson County and was awarded the custody of their three minor children; that A. P. Hartman márried Alma T. Hartman in 1920; that in 1926 the mother of A. P. Hartman died and devised to him by will 594 acres of land in Calhoun County, together with other property; that on May 6, 1927 A. P. Hartman conveyed said land to his second wife, Alma T. Hartman, for the sole and only purpose of avoiding his legal liability to support his said minor children; that a part of the minerals in and under said land had ,been sold and the proceeds thereof deposited in the Taylor bank; that because of such facts said money in the name of Alma T. Hartman was subject to the payment of the judgment against A. P. Hartman. Alma T. Hartman answered in the garnishment proceeding that the land from which the minerals had been sold belonged to her separate estate and claimed title thereto in virtue of the three and five year statutes of limitation, Vernon’s Ann.Civ.St. arts. 5507, 5509, prior to the issuance of the writ of garnishment, and also pleaded' the four year statute of limitation, Vernon’s Ann.Civ.St. art. 5529, to the claim asserted by Ethel Boyd Hartman. She made no proof of facts to support the three year statute. A trial to the court resulted in a judgment in favor of Ethel Boyd Hartman and against Alma T. Hartman and A. P. Hartman. The aggrieved parties appealed to the Court of Civil Appeals at Austin, Texas, and the judgment of the trial court was reversed and rendered. 109 S.W.2d 218. Ethel Boyd Hartman was granted writ of error.

The trial court in rendering judgment against Alma T. Hartman evidently determined that the conveyance from A. P. Hartman to his second wife on May 6, 1927, was for the purpose of defrauding a future creditor, that is, to avoid his obligation to support and educate his minor children by his first wife. That such an obligation was a legal and continuing one imposed by law cannot be doubted. Gulley v. Gulley, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564. According to the evidence the conveyance from A. P. Hartman to his second wife was a gift and if such a gift was made with a fraudulent intent to evade future liabilities, such a conveyance is void as to subsequent creditors. Stevens v. Cobern, 109 Tex. 574, 213 S.W. 923; Cole et al. v. Terrell et al., 71 Tex. 549, 9 S.W. 668.

In the case of Williams et vir. v. Pure Oil Company et al., 124 Tex. 341, 78 S.W.2d 929, 931, Mr. Justice Critz, speaking for the Commission, said: “It seems to be the settled law of this state that limitation does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action”. (Citing authorities.)

Ethel Boyd Hartman filed her suit in the district court of Williamson County against A. P. Hartman on the second day of October, 1931. This suit was to recover money which had been expended by her for the maintenance, support and education of the minor children of herself and A. P. Hartman. That she had a right to file suit against A. P. Hartman before such time does not appear in the evidence, and under the record we must assume, in support of the judgment of the trial court, that she timely filed her suit. It cannot be said that Ethel Boyd Hartman had a right to attack the fraudulent deed before her cause of action against A. P. Hartman had accrued. When her cause of action against A. P. Hartman accrued she then for the first time had a right to pursue her remedies against the property fraudulently conveyed, that is, to attack the fraudulent deed or to reach the property through some species of execution. Whether the possession of the fraudulent grantee became adverse at the time Ethel Boyd Hartman’s cause of action against A. P. Hartman accrued or at the time such cause of action was reduced to judgment, we need not determine, for at either time the four or five year statutes of limitation does not preclude the claim asserted by Ethel Boyd Hartman.

It is true that a conveyance in fraud of creditors, where recorded and the conditions of the statute are met, will support title by limitation in the grantee. Rutherford v. Carr, 99 Tex. 101, 105, 87 S.W. 815; Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855. But in such cases the defrauded creditors had the right to proceed against the conveyances at the time of the commencement of the adverse possession of the grantees in said deeds. Here Ethel Boyd Hartman, being a future creditor, had not the right to enforce her claim against the property fraudulently conveyed until her cause of action had accrued against A. P. Hartman. It follows, therefore, that none of the statutes of limitation pleaded by Alma T. Hartman preclude the claim asserted by Ethel Boyd Hartman.

The judgment of the Court of Civil Appeals reversing and rendering the judgment of the trial court will be reversed and the judgment of the trial court will be affirmed.

Opinion adopted by the Supreme Court.


author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    WEEKS v. STATE.
    No. 20928.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied April 17, 1940.
    Myres & Myres, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the County Court of Johnson County for the offense of selling whisky in a dry area; and her punishment was assessed at a fine of $150.

Robert H. Williams, an employee of the Texas Liquor Control Board, testified that on July 20, 1939, he went to the premises of the appellant in company with one Red Brown and purchased from her a half pint of whisky and a can of beer; that he paid fifty-five cents for the whisky and twenty-five cents for the can of beer. The witness kept the whisky and beer as evidence against the appellant upon the trial of her case.

The appellant did not testify upon the trial, nor did she introduce any testimony in her behalf.

No bills of exception appear in the record, but in the motion for new trial, the contention is made that the representative of the Liquor Control Board was an accomplice whose testimony required corroboration. This question has been held many times contrary to the appellant’s contention, the leading case being Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906. Furthermore, the statute, Art. 666—23a, subdivision 8, Vernon’s Ann.P.C., (1939 Sup.), declares: “Upon a trial for a violation of any provision of either Article I or Article II of this Act [Texas Liquor Control Act], a conviction may be had upon the uncorroborated testimony of an accomplice.”

In the present instance, there is nothing in the evidence to the effect that the Liquor Control Board Inspector was an accomplice, but even if he were, his testimony would not require corroboration under the statute referred to above.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After re-examining the record in the light of appellant’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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


author: KRUEGER, Judge.

text:
    WEIR v. STATE.
    No. 20932
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Thos. J. Pitts, of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant challenges the sufficiency of the evidence to warrant and sustain his conviction. The state offered four witnesses, viz.: Benton, Hill, Barfield and Summers. Mr. Benton testified that he was the assistant manager of the Model Shop, a dry goods store, located in Odessa in Ector County. Thjat on Sunday night of June 4, 1939, some person broke into the store without his consent and permission and on Monday morning when he opened the store he found the cash register opened, the knob knocked off the vault door of the safe and the papers scattered over the floor. He further testified that he saw appellant on Monday, June Sth, in Odessa at the Driller’s Club. Mr. Hill testified that he investigated the burglary and discovered that the person who committed the crime entered the building by removing a glass from the skylight and descending into the building by means of a rope. He testified that he found papers scattered over the floor and a piece of.paper in front of the cash register, from which he was able to get a finger print. He turned this over to Mr. Barfield, a constable. Mr. Barfield testified that in addition to being constable in Odessa, he was a finger print expert and had been doing such work since 1933. That he took a course in finger print work and from his experience and training he was able to read and interpret finger prints. That he compared the finger prints found on the piece of paper by Mr. Hill with those of a number of suspects, including the appellant, and that the finger print on said piece of paper delivered to him by Mr. Hill corresponded with appellant’s left index finger. On cross-examination he admitted that he had only once testified in a case relative to identification of finger prints. Mr. Summers testified that he was the owner of the burglarized premises. He also testified that he saw the piece of paper on which appellant’s finger print was found lying on top of the cash register before the burglary was committed. Appellant did not testify but offered testimony fo the effect that on or about the 2d day of June and up to about the 25th day of said month, he was in Carlsbad, New Mexico. None of the property taken from the burglarized premises was found in the possession of the appellant.

It will be noted from the brief statement of the facts proved upon the trial that the state’s case depended entirely upon circumstantial evidence. In fact, there was but one circumstance shown- — that being appellant’s finger print upon a piece of paper which was found on the floor below the cash register. This piece of paper had been observed lying on the cash register in the store by the owner before the burglary was ever committed. To sustain this conviction, we would be forced to lay down the rule that any person whose finger prints might be discovered on a slip of paper found on the burglarized premises was either the person who committed the burglary or was connected therewith; this would, of course, be contrary to the well-established rule that the circumstances relied on to establish the guilt of the accused in cases depending on circumstantial evidence must exclude every other reasonable hypothesis except that of the defendant’s guilt. We do not think the evidence meets the requirement of the law. . ;

In view of the disposition we are making of the case, we do not deem it necessary to discuss the other contentions advanced by appellant, as they may not arise again upon another trial.

Having reached the conclusion that the evidence is insufficient to sustain the conviction, the judgment of the' trial court is reversed and the cause remanded.

PER CURIAM.

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


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    McCLELLAND v. STATE.
    No. 20876.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.
    John Duhig, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant challenges the sufficiency of the evidence to warrant and sustain his conviction. The testimony adduced by the State, briefly stated, shows that Mrs. Francis F. Bates, a widow, together with her two minor children, lived in Houston, Texas. On or about the 22d day of April, 1939, some one attempted to enter her home through a window. Her son was awake at the time. He heard some noise at the window and saw a man trying to enter the house. He awakened his mother, Mrs. Bates,' who saw a man with both arms on the window sill and screen resting on his back. The son telephoned the police department who immediately responded to the call. An investigation revealed the fact that the screen had a hole punched through it at each of the three places where it was fastened with hooks. These hooks had been unfastened. A pair of trousers belonging to the son were found in the driveway. These had been taken from inside of the house. A few minutes later appellant was arrested in the immediate vicinity and taken before Mrs. Bates and her son, who identified him as the man who they saw at the window of her home. Upon the trial, they again identified him as the person whom they saw at the window of their home on the night in question. Appellant did not testify or offer any affirmative defense. In our opinion the evidence is sufficient under Art. 1391 P. C., to show a burglary of a private residence at night. The identification of appellant was also sufficient.

Appellant complains because the court overruled his motion for a continuance. He failed to except to the ruling of the court thereon and bring the matter before this court for review by a proper bill of exception. Hence we cannot consider the same. See Womack v. State, 74 Tex.Cr.R. 640, 170 S.W. 139, 140; Northcutt v. State, 70 Tex.Cr.R. 577, 158 S.W. 1004, 1005; Sec. 304 Branch’s Ann. P. C., p. 183, and authorities there collated.

It also appears that appellant filed a plea in the nature of a plea of former jeopardy, but the record fails to disclose that any evidence was introduced in support of the plea, or any exception taken to the court’s action thereon. Hence the matter is not properly before this court for review.

It follows that the judgment of the trial court must be affirmed, and it is so ordered.

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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of appellant’s motion for rehearing we are constrained to hold that the proper disposition was made of the questions presented by appellant in the original opinion.

The motion for rehearing is overruled.

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, Judge.

text:
    WILLIAMS v. STATE.
    No. 20959.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    R. Homer Moore, of Frankston, and Greenwood & Reeves, of Palestine, for appellant. .
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing beer- in a dry area for the purpose of sale; the punishment, confinement in jail for 90 days.

Officers testified that they went to appellant’s place of business and discovered three cans of beer in an ice box and five cans in a window “stache.” According to their version they also found five empty beer cans that had just been emptied. There was proof to the further effect that appellant had a half pint of liquor in his pocket. Appellant and his wife testified that they had sold no beer. We quote from the testimony of appellant’s wife: “I did have some beer on the 8th of June, 1939, but I had it for medicinal purposes.” She testified further that it was upon the advice of a physician that she used the beer for medicinal purposes. Appellant testified as follows: “My wife had been in bad health for some time and I keep beer for her to drink. I do not sell beer or liquor. I had the beer introduced in evidence in my possession on the 8th day of June, 1939, but I did not have it for the purpose of sale. My wife had been in ill-health since the 12th day of November, 1938, and we have consulted about three doctors about her condition. Dr. Moss advised her to drink three bottles or cans of beer per day, that the beer would be good for her as a stimulant and as a tonic, and I had that beer in my possession for no other purpose than for her.”

The possession alone of beer in a dry area is not an offense. Before such possession is an offense it must be for the purpose of sale, and this fact must be shown by the evidence to be true. Appellant’s affirmative defense was that the beer was possessed for medicinal purposes. Notwithstanding appellant submitted a requested instruction covering his affirmative defense, the court declined to give such •charge, and nowhere in the main charge was such affirmative defense submitted. Under the circumstances, we must order a reversal of the judgment. See White v. State, 102 Tex.Cr.R. 456, 278 S.W. 203.

We disclaim any intention of holding that the evidence is insufficient.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    BLACKBURN v. STATE.
    No. 20747.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Granted March 20, 1940.
    State’s Motion for Rehearing Denied April 17, 1940.
    Stephens & Sams, of Benjamin, for ap pellant.
    Lloyd . W. Davidson, State’s Atty., ot, Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was charged by a bill of indictment in the District Court of Knox County with the offense of robbery by the use of firearms. A penalty of fifteen years in the penitentiary was assessed against him and he brings this appeal.

Ervin Nichols was engaged in running a filling station. He testified that on the 18th day of November, 1938, he was operating his station at Vera, in Knox County, Texas; that about ten o’clock at night he was the last one in town to close; that as he was doing so, he met a man as he walked to his car to leave, who had on a mask and a gun in his hand. The man demanded his money, consisting of $28 or $29, and took from him a flashlight, together with some checks, a driver’s license, etc. The witness was then told to get. in his car and leave. It transpired that he had trouble in starting his car. While he was working on it, the party held his gun on him and talked to him. At first, he seemed excited and the witness did not recognize his voice, but as the party became natural, he easily recognized his voice as that of the appellant. Nichols knew the appellant and positively recognized him as the robber. He telephoned the officers that night and when they came, he told them who it was that had robbed him. The officers claimed that they wanted better evidence and did not arrest the appellant at the time they approaached him. They arrested another boy in town and placed him in jail for three days. For reasons not disclosed they waited that length of time to arrest the appellant. The arrest was made in the city of Benjamin and the appellant was placed in jail. Immediately thereafter the sheriff obtained a search warrant and went to the home of the appellant and searched it. He found the flashlight which the prosecuting witness identified as the one taken from him . on the night of the robbery. The evidence of the State is very positive.

Appellant did not testify himself but placed his wife on the stand, who gave •just as positive testimony that her husband 'was at home from sundown on the day of the alleged robbery until the next morn-ling and could not possibly have been at the seat of the robbery. This is the sole-^defensive evidence.

There are two bills of exception in the record, one complaining of the affidavit for the search warrant, to which many objections are raised. The court’s qualification destroys most of these objections, and this court is unable to find merit in any of them. We have carefully examined the affidavit, and it appears that the statute was followed in securing the search warrant. According to the court’s qualification, which seems to be supported by the evidence in the case, all due returns were made and the requirements of the statute were completely met.

The second bill of exception complains that the sheriff, while being cross-examined by the appellant’s counsel, explained his reason for arresting the appellant at the time he did by saying that he had “heard of Hayne having some money”. This was hearsay evidence and inadmissible. Certainly it was very damaging to the appellant, but the bill, as found in the record, was filed on the 16th day of August, 1939, without the approval of the trial judge. In that condition, it cannot be considered for any purpose.

The record failing to disclose any error which this court may consider, the judgment of the trial court is affirmed.

On Motion for Rehearing.

By proper proceeding, appellant’s Bill of Exception No. 2 has been corrected so as to show that same was approved originally by the trial court and that the error in the ■ transcript was made by. the clerk. As indicated in the original opinion, the evidence complained of in said bill was improperly admitted and is of a nature that is very damaging to the appellant. The prosecuting witness testified that he reported to the sheriff, on the night of the robbery, that he had been robbed and that the appellant was the one who did it. The sheriff did not arrest him for several days. His failure to do so was considered by the appellant as a circumstance in denial of the evidence given by the prosecuting witness. To overcome this, the State offered to prove, and was permitted over appellant’s objection, to show by the sheriff that he was waiting to get additional information on the subject and that finally some one told him that the appellant had some money, which he took as a circumstance indicating his guilt and caused him forthwith to arrest the appellant. This evidence was the rankest hearsay, and of course, was inadmissible from the lips of the sheriff for any purpose. If it was evidence of guilt, to the sheriff, it would be as much so to the jury. Had the State offered the testimony of the party who saw the money, a different question would be presented.

The motion for rehearing is granted, and the cause is reversed and remanded.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

After careful consideration of the State’s motion for rehearing we have again examined the bill of exception upon which reversal was predicated; and we still believe that the case should have been reversed for the reasons stated in the opinion on appellant’s motion for rehearing, which was delivered March 20, 1940.

The State’s motion for rehearing is overruled.


text:
    BEADLES v. STATE.
    No. 20965.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Ramey A. Smith, of Sulphur Springsy for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was adjudged to be a delinquent child by the County Court of Hopkins County and ordered committed to the State Juvenile Training .School for girls at Gateville until the 15th day of June, 1'943⅛

The complaint, omitting the formal parts, reads as follows: “That on or about the 6th. day of December 1939 and before the making and filing of this complaint, in the County of Hopkins and State of Texas, Ida Mae Beadles did then and there unlawfully live the life of a vagrant, in that said complained of party was a common prostitute. And the said E. W. Banister, after being duly sworn, upon his oath deposes and says that said complained of party is a delinquent child in that she is incorrigible, and wanders in divers and suspicious places at night; and that the said Ida Mae Beadles is under eighteen years of age, etc.”

The information follows the wording of the complaint. The trial was before the court without the intervention of a jury. The court found appellant to be a delinquent child and ordered her committed as above set out. Appellant, by motion in arrest of judgment, attacked the sufficiency of the complaint and information. The motion was overruled, whereupon she filed a motion for a new trial based on the ground (among others) that the court erred in overruling her motion in arrest of judgment. This motion was also overruled and appellant excepted and gave notice of appeal to this court.

We are of the opinion that the trial court fell into error in declining to sustain the motion in arrest of judgment. Art. 5143a, Vernon’s Ann. Civ. Statutes, defines the term “delinquent child” as follows: “The term ‘delinquent child’ shall include any boy between the ages of ten (10) and seventeen (17) years and/or any girl between the ages of ten (10) and eighteen (18) years who violates any penal law of this State, or who is incorrigible * * * etc.

. Consequently it was necessary to charge in the complaint and information that the girl was over 10 and'under 18 years of age in order to bring her within the definition of a delinquent child. The question was passed on by this Court in the case of Homer & Billie Rose v. State, 137 Tex.Cr.R. 316, 129 S.W.2d 639; we do not deem it necessary to again discuss it here. See, also, Haywood v. State, Tex.Cr.App., 136 S.W.2d 866, delivered by this Court on February 14, 1940 and not yet reported [in State reports].

Upon authority of the above cases, the judgment 'is reversed and the prosecution ordered dismissed.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    SANDERS v. STATE.
    No. 20897.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.
    T. B. Sisco, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Collin County for the offense of driving an automobile upon a public highway while intoxicated, and his punishment was assessed at confinement in the county jail for five days and a fine of fifty dollars.

The indictment appears regular. The appellant entered a plea of guilty to the offense charged and waived a jury upon the trial. The record is before this court without statement of facts or bills of exception.

The judgment is affirmed.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    EATON v. STATE.
    No. 20862.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied April 17, 1940.
    Marvin P. McCoy, of Houston, and .Jimmie Cunningham, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of theft of property over the value of $50, and sentenced to five years in the penitentiary.

The testimony is presented to us in a confusing form, and, while in a narrative form, it appears as in the third person, and seems to be a narrative of the person preparing the statement as to what such person thought the witnesses said rather than a narrative of what the witnesses actually said. This form of a statement of facts is not satisfactory, and should not be indulged in.

We do gather, however, from the facts that there were some cloaks and an overcoat and a hat stolen from the automobile of Fred J. Meyer in the year 1937, while such car was parked near what was called “Jim’s place,” evidently a dine and dance hall, and thereafterwards these same lost articles were found in the home of one Herbert Eaton, and thereafterwards same were hidden in a brush pile near said home. The testimony is very unsatisfactory and vague and indefinite as to what connection the appellant had with the possession of these stolen articles. We confess we are unable to determine whether appellant was an original taker, an accessory after the fact, or a receiver and concealer of these articles after they had been thus unlawfully taken. ■

It seems that no one saw the coats when they were stolen; that a girl, a niece of appellant, testified that “they brought some coats to the house where she lived, and one day she heard Herbert (Eaton), her uncle, and appellant’s brother say: ‘Get those coats away from his house that he didn’t want them there,’ and that Earl (appellant) told Brittan, (the girl’s brother) ‘to get them away,’ and that Brittan said ‘no,’ and that ‘Earl said he had better get them away, that he would beat him to death,’ and that Earl told him to 'go and get them and bury them, or hide them somewhere, and then Brittan took them away.” That she heard Earl say that he was going to give the grey coat to his sweetheart, who lived in east Texas, and was going to make himself a coat out of the light check coat. That Earl went to east Texas after that, but did not take the coat with him.

A constable testified that in November, 1938, he found these coats wadded up and lying on a brush pile in Mrs. Eaton’s pasture in Jack County; Mrs. Eaton being the mother of áppellant. Mrs. Mary Hanchey testified that Herbert (Eaton) told her that they got these at a road house called Jim’s place. Earl (appellant) was present at that conversation.

Mrs. Ida 'Eaton, the mother and grandmother, testified that Herbert Eaton, her son, and Brittan Hanchey, her grandson, brought the overcoat to her home where she lived with appellant, and woke her and appellant up and told them they had taken the overcoat on a debt, and tried to sell it to the appellant; that appellant made them take the coat away. That her son Herbert wore a hat that looked like the stolen one, and said that he gave Brittan Hanchey twenty-five cents for it. That was ■ the same night that Herbert and Brittan came to her house with the coat and woke her and Earl up.

Mrs. Mary Hanchey testified that she saw the coats at Herbert Eaton’s house under a mattress, and same were shown to her by Herbert’s wife. That she heard Earl tell Brittan to get those coats away from there; that the officers were making inquiries about them.

From the testimony we are unable to say who was the guilty party- relative to the theft of these coats. It is too uncertain to convince one beyond a reasonable doubt that Earl Eaton was present at the time these articles were stolen from the Meyer automobile. No witness saw the theft take place, and the State was forced to rely upon circumstantial evidence to establish such unlawful taking, the evidence consisting of the possession of recently stolen property.

It is to be noted that this stolen property is placed by the witnesses in the possession of Herbert Eaton, and in his house under a mattress, and the stolen hat on Herbert Eaton’s head, with a conscious assertion of ownership thereof, the only connection of appellant being when he offered advice relative to disposing of the stolen property.

Appellant might have been an accessory after the fact, but he was not charged as such; he might have been a receiver and concealer of stolen property, but again he was not so charged. He was charged with straight theft, and we do not think the testimony sufficient to show him to have been one of the original takers. If he was in fact an accessory, nevertheless he could not be prosecuted as such because of the fact that he was related to the principal offenders within the'degree prescribed by statute as not punishable as an accessory under Art. 78, Penal Code.

Relative to possession by an accused of stolen property, Mr. Branch in his Penal Code, Sec. 2643, p. 1332, says; “To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant. Casas v. State, 12 Tex.App. 59; Lehman v. State, 18 Tex.App. 174 [51 Am.Rep. 298]; Robinson v. State, 22 Tex.App. 690, 3 S.W. 736; Moreno v. State, 24 Tex.App. 401, 6 S.W. 299; Field v. State, 24 Tex.App. 422, 6 S.W. 200; Bryant v. State, 25 Tex.App. [751], 754, 8 S.W. 937; Funderburg v. State, [Tex.Cr.App.], 34 S.W. 613 (as a charge to the jury this proposition is on the weight of the evidence. Franks v. State, 36 Tex.Cr.R. [149], 150, 35 S.W. 977; Berry v. State, 37 Tex.Cr.R. [44], 46, 38 S.W. 812; Ballow v. State, [Tex.Cr.App.], 69 S.W. 513; Stewart v. State [Tex.Cr.App.], 77 S.W. 791; Neblett v. State, [Tex.Cr.App.], 85 S.W. 17).

We do not think that the meagre proof relative to appellant’s possession of the stolen property is sufficient to overcome the presumption of innocence the law throws about one charged with an offense.

There are thirty-two bills of exception in the the record, many of which are not in a condition to be considered by us. Wherein they complain of the exclusion of testimony, they do not apprise this court of what the desired testimony would have been, and we can not determine whether the complained of ruling constituted error or not.

We also note that the indictment in this cause charges a theft from F. J. Myers; that the court’s charge sets forth the name of such party as Fred J. Myers, and that the statement of facts also shows that the witness himself stated that his name was Fred J. Meyer. In the event-of a new trial herein it would be well to find out what the true name of the alleged owner of these articles is, and see that such name is correctly set forth in an indictment.

For the reasons herein stated, this judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

The state insists in the motion for rehearing that the evidence is sufficient to connect appellant with the original taking of the property in question. After carefully reexamining the statement of facts, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    DAVIS v. STATE.
    No. 20933.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    M. G. McDonald and Thos. J. Pitts, both • of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of .Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Ector County for the offense of murder with malice, and his penalty was .assessed at confinement in the penitentiary ¡for ninety-nine years.

The indictment appears regular. The ■ evidence heard upon the trial is not brought forward for review. No complaints of the -, rulings of the trial court have been presented by bills of exception. No error appearing upon the record before us, the judgment is affirmed.


text:
    Ex parte BERRY.
    No. 20937.
    Court of Criminal Appeals ol Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

This is an appeal from an order of the Hon. Nat. W. Brooks, Judge of the Special District Court of Smith County, refusing to discharge relator under writ of habeas corpus. The record is before us without a statement of facts. It appears, however, that appellant was arrested by the Sheriff of Smith County, under, and by virtue of an extradition warrant issued by the Governer of this State. Appellant applied to the judge of the above named Court for a writ of habeas corpus and alleged in his application that he was being illegally restrained of his liberty by the sheriff and prayed that upon a hearing thereof he be discharged. The writ was issued as prayed for and upon a hearing thereof, it was shown that on the 11th day of August, 1939, the Governer of this State issued his executive warrant. The warrant, upon its face, appears to be in due and proper form. It shows that appellant is charged by affidavit and warrant with the crime of false pretenses, an offense against the laws of the State of Arkansas. That a demand for his arrest and surrender was made by the Governer of Arkansas upon the Governor of Texas, said demand being accompanied by copy of the affidavit, duly certified by the Governor of Arkansas as au-thenic. Insofar as this record shows, appellant did not challenge the correctness or authenticity of the executive warrant of the Governor of this State, or offer any evidence to controvert its recitals. It appears to be the uniform holding of this court, in the absence of a showing to the contrary, that it will be presumed that the action of the Governor in issuing his executive warrant, if sufficient on its face, was upon proper and legal requisition, and that the Governor performed his duty in accordance with the law. In Ex parte Hall, 104 Tex.Cr.R. 403, 284 S.W. 550, 551, the rule is stated as follows: “It seems to be a well-settled doctrine in this state that when the Governor issues a warrant for a fugitive from justice upon requisition from the Governor of another state, same is prima facie evidence, in a habeas corpus proceeding, that the fugitive should be returned to the demanding state, and that it devolves upon him to show by testimony that such writ was wrongfully issued. Ex parte Carroll, 86 Tex.Cr.R. 301, 217 S.W. 382, 8 A.L.R. 901; Ex parte White, 39 Tex.Cr.R. 497, 46 S.W. 639; Ex parte Hatfield, 90 Tex.Cr.R. 293, 235 S.W. 591.” Other authorities to the same effect are Ex parte Yawman, 113 Tex.Cr.R. 20, 18 S.W.2d 647; Hyatt v. People of New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657; Ex parte Gordon, 118 Tex.Cr.R. 150, 37 S.W.2d, 1023; Ex parte Wells, 108 Tex.Cr.R. 57, 298 S.W. 904; Ex parte Haynes, 98 Tex.Cr.R. 609, 267 S.W. 490; Ex parte Gradington, 89 Tex.Cr.R. 432, 231 S.W. 781; Ex parte Nix, 85 Tex.Cr.R. 307, 212 S.W. 507.

It follows from what we have said that the judgment of the trial court should be affirmed and it is so ordered.

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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant has filed a formal .motion for rehearing in which he states that the judgment of affirmance herein is contrary to the law. We think the original opinion properly disposed of all questions raised-by the appeal.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    BEAMER v. STATE.
    No. 20970.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Guy H. McNeely, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Wichita County for the offense of unlawfully driving an automobile upon a public highway while intoxicated and his punishment was assessed at confinement in the county jail for sixty ■days and a fine of $50.

The record is before us without statement •of facts or bills of exception. No question has been presented authorizing a reversal •of the conviction.

The judgment of the trial court is .affirmed.


author: CHRISTIAN., Judge.

text:
    OWENS v. STATE.
    No. 20952.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Williamson & Nordyke, of Stepheneville, dor appellant.
    Lloyd W., Davidson, State’s Atty., of .Austin, for the State.
   CHRISTIAN., Judge.

The offense is possessing beer in a dry :area for the purpose of sale; the punish•ment, a fine of $100. -

The transcript fails to disclose a judg-ment of conviction. Under the circumstances, this -court is without jurisdiction.

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.


author: GRAVES, Judge.

text:
    GALLAGHER v. STATE.
    No. 20964.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    R. Temple Dickson, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the sale of two half pints of whisky to a Liquor Control Board agent, and by the jury fined the sum of $250.

There are no bills of exception in the record. We do find a statement of facts, and upon a perusal thereof it is evident that appellant stoutly denied such sale, and corroborated such denial by other witnesses. There is evident a sharp contradiction of the State witnesses’ testimony. This, however, was a matter to be solved by the jury, and we have no disposition nor reasonable grounds for disturbing their judgment therein.

We find many matters complained of in.this trial set forth in the motion for a new trial, but same are not brought before us in a proper bill of exceptions, and they can not be considered by this court.

Finding no error herein, the judgment is affirmed.


text:
    KELLY v. STATE.
    No. 20954.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    . Mel Janes, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the unlawful sale of intoxicating liquor in a dry area, and by the jury fined the sum of $100.

In the complaint and information it is. alleged that Lubbock County was a dry area, in that at an election held for that purpose a majority of the qualified voters thereof had thus determined, etc;

We find no agreement in the statement of facts relative to such allegations, nor do we find any proof thereof in the statement of facts.

This being a special law, we have held • in many cases that proof of its adoption in a certain locality .must be made, or an agreement relative thereto in evidence. See Branch’s Penal Code, p. 695, Sec. 1231.

Because óf a failure to show in the statement of facts that Lubbock County is a dry area, this judgment is reversed, and the cause remanded.


text:
    CRAVEN v. STATE.
    No. 20864.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.
    F. H. Woodard, of Corpus Christi,. for appellant.
    Lloyd W. Davidson, State’s Atty., of. Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Nueces County for engaging as a plumber in the city of Corpus Christi, Texas, without a license, and his punishment was assessed at a fine of $25.

The evidence heard upon the trial is not-brought forward for review. No complaints of the rulings of the trial court have been presented by bills of exception,, and we have ■ been favored with no brief' in the case.

Upon the record before us, no reversible error has been discovered, and the.judgment is therefore affirmed.