text:
    DOYLE v. STATE.
    No. 20620.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.

      W. J. Baldwin, of Beaumont, and R. H. Jernigan, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for burglary; the punishment assessed is confinement in the state penitentiary for a term of 7 years.

This is a companion case to Warren Doyle v. State, Tex.Cr.App., 133 S.W.2d 972, this day decided by us but not yet reported in State Reports. The facts set out in that case are substantially the same as are revealed by this record. It will be noted, however, that this record reveals that the testimony shows that R. J. Fairly was an accomplice as a matter of law. Appellant made substantially the same objections to the court’s charge in this case as he did in that case. In addition he made some objection to the court’s failure to charge that Fairly was an accomplice as a matter of law. An examination of the record shows that in this cause, as in the case of Warren Doyle, supra, the trial court merely stated the law relative to accomplices and the necessity of corroboration of their testimony and did not attempt to apply the law to the facts of the case. The charge as given seems subject to the same criticism as was noted in the opinion rendered in that case. However in this case the charge is further deficient for the reason that it does not state that Fairly is an accomplice witness as a matter of law when the testimony clearly showed that he was. See Sec. 711 and 712, Branch’s Ann. P.C. and authorities cited; Huntress v. State, 130 Tex.Cr.R. 492, 94 S.W.2d 752, 754.

It will not be necessary to consider appellant’s contention that the court erred in failing to grant his application for a continuance and the other questions presented such as the argument of the state’s attorney in view of the disposition we are making of the cause, since they will probably not arise again on another trial.

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.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    ROBERTS v. STATE.
    No. 20621.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Wiley B. Thomas, of Groveton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the offense of forgery, and by the jury given a penalty of two years’ confinement in the State penitentiary.

The indictment upon which this conviction was had contained two counts, one for the making of a false instrument, and one for passing the same as true. The jury found appellant guilty on the first count, for the making of such instrument.

The instrument that was charged to have been forged is set forth in each count of the indictment, as follows:

“$612.00 Dec. 30th, 1937. I promise to pay to the order of Groveton Motor Company, hereinafter designated as Payee, Six Hundred Twelve and no/100 Dollars with interest from - at the rate of - per cent per annum until paid, negotiable and payable at the office of said payee. Payable in-installments, due after date as scheduled on the reverse side of this note.
This note is' given for-as described below:
18 notes at 34.00
Indictment
The title to which remains in said payee until this note and all further obligations are paid in full. The conditions of the sale and purchase of the property herein stated is that the title, ownership or possession does not pass out of the said payee, though delivered to the maker of the note, until this note, and all costs of collection, is paid in full, including attorney’s ■ fees, if collected at law. If any note given for the above described property remains unpaid for ten (10) days after maturity, then all notes given for said property shall become due and payable at once, and may be sued on without previous notice. I hereby waive all requirements of any statutory acts in conflict with this agreement. If I fail to pay promptly when due, it is agreed that 1 pay a collector for collecting this note. The drawers and endorsers severally waive presentment for payment, protest, and notice of protest, and non-payment of this note, and agree to pay all reasonable attorney’s or collector’s fees for collecting same, where collected by suit at law, or otherwise.

We confess that we have given much thought to the contents of this instrument, and. to the proposition of its vagueness and indefiniteness. We think the better pleading would have been f„r the pleader, by the use of innuendo aver-ments, to explain the patent ambiguities thereon. It appears to be three kinds of a written instrument: (1) A promissory note, payable either on demand, or on 18 different dates, whether weekly, monthly or yearly does not appear; (2) it may be a conditional sale contract, or (3) it may be a chattel mortgage. We are also at a loss to know what is meant by the phrase “18 notes at 34.00.” We can infer that such means that the amount of $612 is made up of such 18 installment notes of $34 each, but such is not stated in the indictment; in fact there are no in-nuendoes of any kind alleged therein, and inferences are not allowable in an attempt to assist the pleader in setting forth in an indictment in plain and intelligible language the violation of the law that is the basis of the complaint. See McBride v. State, 48 Tex.Cr.R. 213, 88 S.W. 237; also Branch’s Penal Code, p. 851, in which it is said:

“If the instrument in writing alleged to be forged contains unintelligible words or abbreviations, or misspelled or ambiguous words or figures, the indictment should explain what was intended thereby,” citing Colter v. State, 40 Tex.Cr.R. 165, 49 S.W. 379; Crawford v. State, 40 Tex.Cr.R. 344, 345, 50 S.W. 378; Polk v. State, 40 Tex.Cr.R. 668, 51 S.W. 909; Lynch v. State, 41 Tex.Cr.R. 209, 211, 53 S.W. 693; Lamb v. State, 67 Tex.Cr.R. 474, 148 S.W. 1088.

In 19 Tex.Jur. p. 852, we find the following :

“Irrespective of the character of the instrument involved, the indictment must explain every ambiguous or meaningless expression contained therein,” citing authorities.

We hold that this indictment is fatally defective on account of the lack of good pleading therein, and in the event of another trial hereof we think good pleading demands an indictment utilizing the services of innuendoes to explain the ambiguities in the instrument alleged to have been forged.

The conviction herein being for the making of an alleged forged instrument, we note that appellant had made and properly filed herein a statement under oath, denying her execution of such alleged forged instrument. It is also to be noted that no person testified to having seen appellant make such instrument, nor is there any direct testimony relative thereto. It is also noted that the only testimony outside of the comparison of handwriting was the fact that testimony was introduced relative to appellant having passed such instrument to Mr. Cauthen, an officer of the bank. We are doubtful whether this is sufficient to overcome the presence of appellant’s denial under oath as is provided by Art. 731, C.C.P.

In the first count of this indictment appellant was charged with the making of this instrument, and on that count she was convicted. The court failed to embody in his charge to the jury any charge on circumstantial evidence, and we find that all the testimony relative to the making of this alleged false instrument is circumstantial in its nature. The court should have embodied in his charge one on the law of circumstantial evidence. See Williams v. State, 86 Tex.Cr.R. 640, 218 S.W. 750.

The judgment is reversed and the prosecution ordered dismissed.


author: CHRISTIAN, Judge.

text:
    McCHRISTY v. STATE.
    No. 20631.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.

      H. D. Stringer, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing intoxicating liquor in a dry area for the purpose of sale; the punishment, confinement in jail for thirty days.

Operating under a search warrant, officers went to appellant’s residence and found therein approximately five gallons of “chock” beer. H. H. Cudd, a chemist of the Texas Liquor Control Board, testified that the liquor in question contained 3.53 per cent of alcohol by weight. He said: “I did not drink any of the liquid I analyzed because it was not drinkable.” Garrett Hawkins, Deputy District Supervisor of the Texas Liquor Control Board, who participated in the search and seizure, said: “I did not drink any of the liquid. It did not look fit to drink.” To the same effect was the testimony of W. C. Anderson, a witness for the state.

It was alleged in the information and complaint that the liquor the officers discovered in appellant’s home was an “Alcoholic Beverage.” Art. 666-3a, Vernon’s P.C. of the State of Texas, Annotated, reads in part as follows: “ ‘Alcoholic Beverage’ shall mean alcohol and any beverage containing more than one-half of one per cent of alcohol by volume which is capable of use for-beverage purposes, either alone or when diluted.” It is observed that the testimony was to the effect that the liquor in question was not drinkable. Lexicographers define “drinkable” as follows: “Capable of being drunk; fit to drink.” If the liquid in question was not drinkable it was not an alcoholic beverage as that term is defined in the statute. Hence the averment in the indictment that such liquid was an alcoholic beverage had no support in the evidence. It follows that the judgment must be reversed.

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: KREUGER, Judge. BEAUCHAMP, Judge.

text:
    MADDOX v. STATE.
    No. 20478.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Dec. 20, 1939.
    C. F. Stevens and Dick Young, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KREUGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 10 years.

The record shows that on the night of August 30, 1936, the deceased and a friend, accompanied by some ladies, attended a midnight show and later drove to a hamburger stand on North Main Street in Houston. After they had been served, some uncomplimentary remarks passed between the deceased and appellant, who was working in a screened kitchen. A personal encounter followed, and appellant stabbed the deceased in the abdomen with a knife which had a blade about five inches long and an inch wide at the hilt. The deceased died the next afternoon as a result of the stab. Appellant fled but was apprehended •in Rusk County and brought back to Houston where he made a confession, a portion of which he repudiated at the trial. Appellant testified that on two prior occasions the deceased had threatened t'o “whip hell out of him.” That on the night in question he call him a s- of a b-, and asked him to come out of .the screened kitchen or he would come in after him. He stated that the deceased came toward the door and he, appellant, undertook to latch it to prevent the deceased from entering, but that the door was jerked open and after several blows had passed, he drew his knife and stabbed the deceased. He also testified to certain threats that were made against him by the deceased and which were communicated to him by some of his friends. Mrs. Agnes Surrey testified that she was present at the hamburger stand on the night in question, but did not know any of the parties present. That she heard someone say “Someone is killed” and then saw a boy standing beside her wearing a white cap and apron and a knife in his belt who said, “God damned, I fixed him” and who then disappeared. We think the evidence is sufficient to sustain the jury’s conclusion of appellant’s guilt of murder with malice.

Bill No. 1 complains of the following remarks by the state’s attorney in his argument to the jury: “And if you believe the boy is guilty, stand up for the people here whom you represent. Don’t let little devils be running around with knives raising hell with hell in their hearts and killing people.” No ground of objection is stated in the bill. Consequently it fails to reflect any error. Moreover, we do not consider the argument as improper.

In his motion for a new trial, appellant complains of the misconduct of the jury. The state contested the motion. The evidence as to whether the parole law was mentioned after the verdict was agreed upon or before it was agreed upon was a controverted issue, and the court, after hearing evidence relative thereto, overruled appellant’s motion. From the evidence adduced at this hearing, we think the court was justified in concluding that the jury did not discuss the parole law until after they had agreed upon a verdict. Moreover no complaint is made of the court’s conclusion with reference thereto.

It might be noted that the setting up of radios in the jury room is a practice which should not be indulged in, as under some circumstances it might lead to the reversal of a case. All other complaints have been considered by us and are deemed to be without merit.

No error of a reversible nature appearing in the record, the judgment of' the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

We have carefully reviewed the record in the light of the motion for rehearing and find that all the issues which had been raised by the appeal were considered in the original opinion and we think the proper disposition was made of them. Consequently the motion for rehearing is overruled.


text:
    ESCOBEDO et al. v. STATE.
    No. 20616.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.

      Gus C. Garcia, of San Antonio, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the Slate.
   GRAVES, Judge.

Conviction for a, misdemeanor; the appellant J. M. Escobedo being assessed a fine of $100 and P. E. Coggins a fine of $50.

The record is before us without a statement of facts or bills of exception, hence no question is presented for review.

The judgment is affirmed.


author: BEAUCHAMP, Judge.

text:
    REID v. STATE.
    No. 20633.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Seale & Thompson, of Nacogdoches, Lfor appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Upon an indictment charging assault to murder, the appellant was convicted of aggravated assault; penalty assessed at a fine of $500.

In view of the disposition which we are making of this case and the possibility that a different conclusion may be reached as to the sufficiency of the evidence on a subsequent trial, we are overruling the contention of the appellant that he should have had an instructed verdict; but it is doubtful in its present state if the evidence would sustain a conviction for any offense higher than a simple assault. The court refused to charge the jury on this offense and this, we think, was improper.

The questions presented for review do not require a full statement of the facts of the case and it will be sufficient to say that the appellant was charged with the offense of assault to murder by indictment returned on March 3, 1939. The offense is-alleged to have been committed on or about the 3rd day of February, 1939. The case was set for trial on March 23rd, at which time a motion for a continuance was presented on account of the alleged fact that the appellant was in a bad state of health, both physically and mentally. The case was passed over until the 10th of April, 1939, at which time it was again called. A vigorous motion for a continuance was presented and a number of physicians were called to testify. They knew the appellant and stated that he was an epileptic and frequently suffered from two kinds of epilepsy, one of which was described as destroying his reasoning powers following an explosion, after which considerable time would elapse before the appellant would be able to understand and comprehend anything that was going 'on about him. They further testified to his then condition and concluded he was unable presently to go to trial, but should recover in a few weeks. This evidence was without dispute, and in its state, the action of the trial court in overruling the motion for a continuance presents an error for which the case must be reversed.

In this connection, another bill of exception complains of the continued action of the court under an unusual state of facts. When the appellant had been called from -Marlin, Texas, to Nacogdoches to attend his trial and the jury panel had been examined and before he made his challenges, he was subjected to a violent attack of epilepsy in the court room, and the physician who attended him said that it would be an hour or more before the appellant would be conscious of what was going on; that during this time he would be unaware of the business in which he was engaged. His attorney requested the court to recess until his client would be in a position so that he could assist him in striking the jury and selecting those who should pass on his case. The District Attorney joined in this request but the court declined it and forced the appellant’s attorney to strike the list of jurors without the assistance of his client. No record shows how much proceedings took place other than striking the jury list, but that is immaterial. There is no safeguard of human liberty more valuable than that guaranteed to every citizen in this country that he should be confronted by his accusers, and in furtherance of this, our Legislature has required that the defendant in all felony cases shall be permitted to be present during each and every step of his trial in the court room. So strict has been the interpretation placed upon that legislation by this court that it is a dangerous practice for any trial court, in a felony case, to take any action, even upon the suggestion or request of the defendant, in his absence. If a defendant should desire to leave the court room and agree that his trial may proceed, it is not always to be understood that he comprehends fully the things which may take place in his absence. If he has the privilege of waiving a right, it should be made certain that he knows what that right is before he waives it. The purpose of the court to speedily dispose of pending business is a laudable one, but to do it in strict accord with prescribed practices is much more to be desired. There is no more important step in the trial of a case than the selection of a jury of one’s peers to pass upon his guilt or innocence. Especially is this true where, as indicated in the case at bar, the defendant is well known to the panel from which the jury is to be selected. In the state of the facts before us, the trial court, in declining to postpone the proceedings, exceeded the discretion lodged in him, and for it, this cause must be reversed.

If a defendant in a felony case should be bodily present in the court room but in an unconscious condition, it cannot avail him his right to be present in the fullest sense, for it certainly cannot be said that he has the opportunity under such circumstances to assist his counsel in the conduct of his case. It would be a mere sham to say that he was confronted with his accusers if he were not able mentally to realize their presence. The duty of the court is stated in Amer.Jur., Vol. 14, p. 900, sec. 190, as follows: “If the defendant becomes too ill to be present in court at every stage of the trial, the case should be either temporarily passed to await his convalescence or a juror withdrawn and the case continued.”

In the case of Brown v. State, 38 Tex. 482, after announcing the doctrine above quoted, the Supreme Court of Texas said: “The accused should not only be within the walls of the court house, but he should be present where the trial is conducted, that he may see and be seen, hear and be heard, under such regulations as the law has established.”

Both the text writer and the Supreme Court give as their reason the defendant’s right to “see and be seen” and to “hear and to be heard”. While it may not be possible to so educate and train every individual that he will actually know and understand all of the proceedings involving him, yet it is guaranteed that his trial be so conducted that he have an opportunity to do so. We have no secret trials in our courts, but it would be just as well if we were to proceed while the party involved is in an unconscious condition from whatever cause other than his voluntary act. Vol. 12, Texas Digest, Criminal Law, page 81,

In Graham v. State, 72 Tex.Cr.R. 9, 160 S.W. 714, 715, we find the court dealing with a similar motion for a continuance which is disposed of in the following quoted paragraph: “There was another application filed for continuance by R. L. Tem-pleton. This application sets up the fact that defendant was neither physically nor mentally able to undergo the ordeal of his trial. The statement of facts shows he was in such condition that he was not, and could not perhaps be, placed upon the witness stand to testify. The wife of appellant was the only witness introduced during the trial. She testified to the facts of the assault, and stated that he was crazy, and that she had always regarded him as insane from the time that she married him, and so regarded him at the time of the trial. While this language of the witness may be a little strong, yet it tends strongly to support the application signed by the affiant, Templeton, that appellant was not in a condition to be tried, and he could not be of any assistance to his counsel during the trial. Taking these two applications for a continuance together, and especially the latter one, we are of opinion the court should not have tried appellant at the time that he was tried.”

In Steadham v. State, 119 Tex.Cr.R. 475, 43 S.W.2d 944, this court clearly indicates a holding that a trial court may properly be required to recess the trial of a case for causes not sufficient to require a continuance. The present case appears to present a proper opportunity for applying that rule. See, also, Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742.

By proper bill of exception the appellant complains of the closing argument of •the prosecuting attorney. This argument is very questionable and should not be indulged upon another trial.

Because of the errors pointed out, the cause is reversed and remanded.


author: WALKER, Chief Justice.

text:
    NATIONAL AID LIFE ASS’N v. HORNE et al.
    No. 3544.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1939.
    Rehearing Denied Nov. 29, 1939.
    See 135 S.W.2d 254.
    Wilcox & Wood, of Georgetown, for appellant.
    Ramsey & Ramsey, of San Augustine, for appellee.
   WALKER, Chief Justice.

This was an action by appellees against appellant on a life insurance contract. On trial to the court without a jury, judgment was rendered in favor of appellees against appellant for the sum of $529.71. Though this suit was filed in district court, the amount in controversy was within the jurisdiction of the county court. Following Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, the judgment of the lower court is affirmed, without a written opinion.


author: CODY, Justice.

text:
    JENSEN et al. v. WILKINSON et al.
    No. 10880.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1939.
    Rehearing Denied Nov. 29, 1939.
    Second Motion for Rehearing Denied Dec. 21, 1939.
    Lyel N. Jenkins, of Stevens Point, Wis., F. H. Jones, of Bay City, and Cole, Patterson & Cole, of Houston (Jesse W. McDaniel and Robt. L. Cole, both of Houston, of counsel), for appellants.
    A. Harris, of Bay City, and Eugene J. Wilson, J. L. Webb, and Baker, Botts, Andrews & Wharton, all of Houston, for appellees Smith & Gates,' Inc., Cockburn Oil Co., H. C. Cockburn, W. W. Wilkinson, J. C. Walter, Helen W. Smith, Paris A. Smith, J. J. Wilkinson, Mildred W. Harris, A. Harris, and Eugene J. Wilson.
    Burney Braly, John A. Braly, and G. R. Pate, all of Fort Worth, for appellee Continental Oil Co.
   CODY, Justice.

This suit was instituted by appellants in the form of trespass to try title to the oil, gas and other minerals in a certain specified 4,985.41 acres in Matagorda County. The common source of title was J. V. Brasfield, who acquired the fee simple title to the land involved on December 4, 1919. On the same day that he acquired the title to such land, Brasfield conveyed to Burke Vancil, Trustee for the benefit of the various and sundry beneficiaries named in the different deeds employed to convey same, the surface rights in the various tracts constituting such 4,985.41 acres, together with [/gth of the minerals in each such tract. And in each of such deeds Brasfield reserved to himself a %ths interest in the mineral rights in each such tract, using for the purpose of such reservation in each such deed the following language: “Excepting and reserving in me, the grantor herein, a seven-eighths interest in all oil, sulphur and other minerals in or under the surface of said land, with the right to prospect for, and develop, produce and secure, and to transport the same across and from said land, and the right of ingress and egress therefor.”

Thereafter, in the year 1920, Brasfield executed oil and gas leases to various lessees on the %ths undivided mineral interest which he had reserved to himself out of the tracts constituting the 4,985.41 acres involved, retaining for himself a ⅛⅛ royalty interest out of such %ths interest. In other words, each lease was a standard commercial Texas oil lease, providing for Brasfield an eighth royalty, and most of such leases being for the primary term of five years, and provided for payment of rentals in lieu of drilling operations. The ⅛⅛ royalty interest reserved to Brasfield was ⅜⅛ of the reserved %ths interest, or %4ths: The working interest which was assigned to the lessee was therefore the difference between the %ths and %4ths of the minerals.

Appellees were defendants below. Their claim to the %ths interest is based on an execution sale held on March 3, 1925, under an execution issued under a judgment obtained by Matt Pierce against Bras-field in a suit in the district court of Mata-gorda County, in cause No. 8654 in such court. At such execution sale the sheriff purported to sell all of Brasfield’s interest, right, etc., in the %ths of the minerals in the 4,985.41 acres; and Matt Pierce, plaintiff in judgment, and his attorney, bought in such interest for $2,300, being the amount of the judgment, interest and costs on the day of such sale.

Appellants conceded, as we understand it, that said sheriff’s sale was valid and effective to transfer the royalty interest retained by Brasfield in such leases, being Ygth of %ths of the oil and gas under the 4,985.41 acres, and no contention is 'made that said %4ths failed to pass by said sheriff’s sale. They contend, however, that Brasfield owned only a “possibility of re-verter” in such 4%4ths of the minerals which was then owned by the lessees, and that such an interest was too inchoate and incomplete to be levied upon or caught by an execution, and that therefore nothing passed to the purchasers at such execution sale, save and except the %4ths royalty interest in which Brasfield owned the right of present enjoyment. Therefore, so appellants contend, when the leases given by Brasfield, covering 4%4ths of the minerals in the 4,985.41 acres expired — which expiration occurred prior to March 6, 1930, some five years after the execution sale— such 4%4ths interest reverted to Brasfield. On March 6, 1931, Brasfield executed a deed to D. E. Frost, Harry Fisher, and S. D. Boynton, which undertook to convey the %ths mineral interest which Brasfield had reserved in his various deeds to Burke Vancil, Trustee, wherein he conveyed the surface rights and ⅛⅛ of the minerals in the 4,985.41 acres. The grantees, or their successors in interest, in the mineral deed of March 6, 1931, brought this suit (as above indicated) in trespass to try title. In the second count of their petition, they pled their title specially.

The trial was had before the court without a jury, upon an agreed statement of facts, the substance of which has been given above. The trial court found for appellees, and appellants seek to reverse the trial court’s judgment in so far as it awards appellees the 4%4ths interests of the oil, gas and other minerals in the 4,985.41 acres.

From the facts stated, Brasfield was the fee-owner of %ths of the minerals in the 4,985.41 acres before he covered it with mineral leases. The effect of the leases was doubtless to leave in himself the right of present enjoyment of a ⅛⅛ royalty in %ths of the minerals, and to place in the lessees a determinable fee to 4%4ths of the minerals, subject to an inchoate right to a reversion of such 4%rths, which our Supreme Court has identified as a “possibility of reverter”. Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566. No doubt such “possibility of reverter” or inchoate right to the reversion of the working interest in the minerals is an interest in land in Texas. Caruthers v. Leonard, Tex.Com.App., 254 S.W. 779, 782. Such a right can be deeded by its owner as an interest separate and apart from the surface rights or royalty. Id. Such inchoate reversionary right is conveyed by a general warranty deed to the land to which it is attached, even though it is not therein referred to. Robinson v. Jacobs, 113 Tex. 231, 254 S.W. 309. And the Statute of Frauds applies to a contract for the sale of such an interest. O’Brien v. Jones, Tex.Civ.App., 274 S.W. 242, 243, writ dismissed. See also Evans v. Mills, 5 Cir., 67 F.2d 840.

It is appellants’ contention, as we understand it, that Brasfield’s “possibility of re-verter” in the working interest under the leases was in its nature and with reference to its value so undetermined, uncertain and contingent that it would be incapable of being appraised or sold with fairness to both debtor and creditor, and therefore could not be levied upon.

Now we may, for convenience of discussion, break up Brasfield’s interest, at the time it was levied upon and sold, into such elements as royalty rights, or as the right to demand and receive the payment of rentals made’ in lieu of' drilling operations, or as his inchoate right to the reversion of the working interest held by the lessees. But actually such elements, at the time of the execution sale, were merged together in one ownership to form “all the right, title, interest and claim which the defendant in execution had in and to the property.” The language just quoted comes from Art. 3816. And by the terms of that article when the buyer at an execution sale complies with the terms of the sale he is entitled to a deed to all the right, title, interest and claim which the defendant in- execution has in the property sold. The sheriff did not undertake, in the execution sale we are concerned with, to deal with Brasfield’s “possibility of reverter” in the working interests under the leases, as such. But the execution deed conveyed all his right, title, interest and claim in the land. It may be that the value of Bras-field’s “possibility of reverter” in the working interest under the leases, was difficult or impossible to determine. There seems to have been no proof with reference to that. But the fact that it might have been difficult or impossible to determine the value of the “possibility of reverter” as a segregated element of Brasfield’s ownership in the land does not establish that it would have been difficult or impossible to determine the value of “all his right, title, interest or claim” in the 4,985.41 acres. It is a matter of common knowledge that the usual and customary way for a land-owner to realize on the value of his land for oil is to get it leased, retaining royalty rights, and through such royalty rights to share in the profits which it is hoped will issue from his land in the form of oil production, or to sell such royalty rights or portions thereof to .others. In other words, the usual method by which the land-owner realizes on his oil rights is through royalty rights; and the thing that gives value to a royalty right prior to actual production is the belief that the working interest, which is created by the -selfsame lease that creates the royalty rights, will be developed and operated. See Frost v. Standard Oil Company, Tex.Civ.App., 107 S.W.2d 1037, 1038. It would be more reasonable for an owner of oil rights in land to fear that their value would be sacrificed at a forced sale where the land is not under an oil lease, than where it is. But be that as it may, it seems very clear to us that by placing an oil lease on his land Brasfield did not thereby exempt his remaining interest therein from liability for execution for his debts. All of his interest was, it seems plain to us, liable to execution.

Assuming, however, that we are wrong in our view that appellants have no right to have Brasfield’s “possibility of reverter” treated as being separate and apart from his remaining oil interests in the land in question at the time of the execution sale, we still do not believe that we have any basis for holding that the interest of Bras-field was so undetermined, uncertain and contingent that it was incapable of being sold with fairness to the debtor and creditor, and so, not subject to being levied upon. In support of their contention appellants rely on such cases as Gushwa v. Gushwa, 93 Ind.App. 68, 177 N.E. 366; O’Neal v. Clymer, Tex.Civ.App., 61 S.W. 545; Moser v. Tucker, 87 Tex. 94, 26 S.W. 1044; and Chase v. Bank, 89 Tex. 316, 36 S.W. 406, 32 L.R.A. 785, 59 Am.St.Rep. 48.

In the Gushwa case it was held that a “possibility of reverter” was not subject to execution sale. However, it appears that in Indiana, where the case arose, the possibility of reverter after a condition subsequent — which we understand was the case in the Gushwa case — is not assignable. Federal Land Bank v. Luckenbill, 213 Ind. 616, 13 N.E.2d 531. If it was not subject to voluntary sale, it would not be subject to forced sale. Moser v. Tucker, 87 Tex. 94, 26 S.W. 1044.

The case of O’Neal v. Clymer, supra, is too long to review; as it seems distinguishable on the facts from the case before us, and is by the court based on Chase v. Bank, supra, we will not review it, the more especially as the Chase case does itself review the Texas cases upon which appellants rely, decided prior to its decisions — March 9, 1896. The facts of the Chase case, briefly stated, were that eleven parties contributed together to the purchase of nine tracts of land, situated near Denison, Texas, and caused the same to be conveyed to one of their number, P. E. Fairbanks, Trustee, by deeds from various parties; that it was the intention of the parties in having the property conveyed to Fairbanks as trustee, that he should have absolute title, to facilitate the transaction, and his only obligation to his various associates being to account to them for the proceeds of the sale.

W. P. Rice, one of these parties, had contributed $14,000 to the venture and M. H. French $6,000. They transferred their respective interests in said trust to other parties, of which said transfers the plaintiff, York County Savings Bank, had no notice at the time of their levy and attachment on the interests of said Rice and French in the land, in their suit for a judgment against Rice and French and foreclosure of their claimed attachment lien — the transfer not being recorded at said time.

The trial court decided the question in favor of Rice and French’s transferees and rendered judgment in their favor, but the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the bank, and the transferees secured a writ and assigned as error the ruling of the Court of Civil Appeals; and the Supreme Court reversed the judgment of the Court of Civil Appeals and reinstated that of the district court, Chase v. York County Savings Bank, 89 Tex. 316, 36 S.W. 406, 32 L.R.A. 785, 59 Am.St.Rep. 48.

The Supreme Court pointed out that equitable interests were not subject to execution sale at common law, and that to enable creditors to subject to the payment of their debts such interests of their debtors in lands as were held by others in trust for them, the Statute of 29 Charles II, Ch. 3, provided: “ ‘that * * * it shall * * * be lawful for every sheriff or other officer to whom any writ or precept * * * shall be directed, * * * upon any judgment,’ etc., ‘to do, make and deliver execution unto the party in that behalf suing, of all such lands * * * as any other person * * * shall be seized or possessed in trust for him against whom execution is so sued.’ * * * ‘This statute made a change in the common law, and, up to a certain extent, at least, made a trust the subject of inquiry and cognizance in a legal proceeding. We think that the trust that is to be thus treated must be a clear and simple trust for the benefit of the debtor; the object of the statute * * * to be merely to remove the technical objection arising from the interest in lands being legally vested in another person, where it is so vested for the benefit of the debtor.’ ” [89 Tex. 316, 36 S.W. 407, 32 L.R.A. 785, 59 Am.St.Rep. 48.] The court then quoted from Daugherty v. Cox, 13 Tex. 209: “‘It could not be contended that our statute, in the article cited [i. e., Article 3816 governing execution deed, quoted supra], went further than the statute of 29 Car. II. in subjecting equities and trust estates to execution, and perhaps its terms would go as far, but that would not be far enough to subject such an equity as the one claimed to be subject to execution in this [the Daugherty] case.’ ” The court concluded by holding that all Rice and French owned was a mere right in equity to demand an accounting of the proceeds of the sales of the land, and no interest in the land itself, and so their interest could not be reached by a writ of execution.

In Moser v. Tucker, 87 Tex. 94, 26 S.W. 1044, the Supreme Court passed on a certified question. The court there said, 87 Tex. at page 96, 26 S.W. at page 1045:

“It must be conceded that no property or interest in property is subject to sale under execution or like process unless the debtor, if sui juris, has powér to pass title to such property or interest in property by his own act. [Citing authorities.]
“There is no doubt that uncertain or contingent vested estates or rights in property may ordinarily be subjected to payment of debts through execution or like process * *
“It is not, however, every interest in property a debtor may have right to or to acquire that may be subjected to sale under execution or otherwise for payment of his debts, for in many instances his right is so remote and contingent that it is deemed more likely to subserve the ends of justice not so to subject it than to take the risk of sacrifice of contingent right by procedure which will most likely be of no practical benefit to the creditor, or may be ruinous to the debtor.
“This is illustrated by cases decided in this state.” (Citing Daugherty v. Cox, 13 Tex. 209; Hendricks v. Snediker, 30 Tex. 296 (both of which cases being among those reviewed in the Chase case), and Edwards v. Norton, 55 Tex. 405.)

Each of the cases cited related to the question of whether a mere equity could be subjected to execution. And, as indicated in the Chase case, such an interest is not subject to execution sale.

The true rule, as to property which can be levied on by a writ of execution and sold, where not exempt, is, we believe, indicated in Gregg v. First National Bank, Tex.Com.App., 26 S.W.2d 179, 181, in these words: “He possessed such an interest in the property as might be transferred by assignment, consequently it was subject to sale under execution.” (Citing authorities)

There are exceptions to such rule, such as are indicated by the Chase case, supra. A mere expectancy of inheritance is another. Hale v. Hollon, 90 Tex. 427, 39 S.W. 287, 36 L.R.A. 75, 59 Am.St.Rep. 819. Indeed, a mere expectancy of inheritance is not, properly considered, property at all, but a mere probability that the heir or next of kin of another will come to own his property when he, the then owner, through the disability of death, becomes incapable of ownership. The character of property, attaching to an expectancy of inheritance when it is sold, inheres in the contract which a court of equity will enforce under some circumstances, and not in the expectancy. But the interest which Bras-field owned, and which was levied upon and sold under execution, was, in our opinion, property that was subject to forced sale.

We have been greatly aided .in the consideration of this case by the exceptionally able and well prepared briefs filed by both sides, and take pleasure in thus acknowledging our indebtedness to counsel.

Believing that the judgment of the court below was correct, it is affirmed.

Affirmed.

On Motion for Rehearing.

As appears from the Chase case, Chase v. Bank, 89 Tex. 316, 36 S.W. 406, 32 L.R.A. 785, 59 Am.St.Rep. 48, cited in our original opinion, not every interest in property was subject to execution at common law. Equitable interests and estates were not subject, to. execution for the technical reason that a writ of execution issued only from law courts where equitable interests were not cognizable. This technical obstacle to subjecting equitable interests to execution, as appears from our original opinion, was removed by an act of Parliament passed in the reign of Charles II. This act resulted in making the property of a defendant in judgment, which he held by equitable title, subject to execution; it did not make mere equities, by which a defendant might acquire title to property or receive other relief, subject to execution, or expressed perhaps more conventionally, the act aforesaid subjected to execution property held by a defendant-in-judgment by a present vested equitable right, but did not affect equitable rights which were not "vested in possession but lay only in action, and which could become vested only after judgment had thereon. From the Chase case it is evident to us that our Supreme Court regards the aforesaid act of Parliament as forming a part o'f the common law of England relative to executions, and which was adopted as the rule of decision by the Legislature.

.In order, therefore, for appellants to have shown that the property sold at execution sale, was not subject to execu» tion, they would have had to have shown either that it was a mere equity, as distinguished from an equity title to property, or that it was property that had been made exempt by statute or constitution, changing the common law relative to executions. It is not pretended that Brasfield owned a mere equity to acquire title. He owned the fee simple title to the oil rights in %ths of the mineral, less the working-interest, at the time of the execution sale.

We adhere to the views expressed in our former opinion; and for those reasons, and for these reasons, appellants’ motion for rehearing is refused.

Refused.


author: BLAIR, Justice.

text:
    STATE v. FOX et al.
    No. 8823.
    Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1939.
    Rehearing Denied Nov. 29, 1939.

      Gerald C. Mann, Atty. Gen., and George W. Barcus, Asst. Atty. Gen., for appellant.
    Geo. E. Shelley, of Austin; A. D. Dyess, of Houston, and .West & Hightower, of Brownsville, for appellees.
   BLAIR, Justice.

Appellant, the State of Texas, sued ap-pellees, James J. Fox', Tax Collector of Cameron County, and the American Surety Company, as surety on his official bond, for $44,990.14, being a part of the ad valorem, poll, occupation, and automobile taxes collected by appellee Fox for the months of January and February, 1932. Appellee Fox deposited the taxes as collected in the Merchants National Bank of Brownsville, the county depository, which became insolvent before Fox’s checks remitting the taxes to the State Treasurer were presented and payment refused. The total amount of the taxes collected and deposited in the depository bank for the two months was $97,181.79, but that amount was reduced by dividends of the receiver of the depository bank to $44,990.14; for which amount the State sought judgment, and from an adverse judgment denying any recovery has appealed to this court.

The State predicated its right of recovery upon its construction of Art. 7260, Vernon’s Ann.Civ.St, as being mandatory and requiring that appellee Fox report and remit the taxes collected for the months of January and February, 1932, on or before February 25, 1932, and March 1, 1932, respectively; and the State also alleged that appellee Fox was negligent in not making his remittances on or before said dates. The material portions of the statute relied upon by the State read as follows :

“1. At the end of each month the Tax Collector shall, on forms to be furnished by the Comptroller, make ah itemized report under oath to the Comptroller, showing each and every item of ad valorem, poll and occupation taxes collected by him during said month, accompanied by a summarized statement showing full disposition of all State taxes collected, provided that said itemized reports for the months of December and January of each year may not be made for twenty-five (25) days after the end of such months if same cannot be completed by the end of such respective months.
“2. He shall present such report, together with the tax receipt stubs to the County Clerk, who shall within two (2) days compare said report with said stubs, and if same agree in every particular as regards names, dates and amounts, he shall certify to its correctness * * *.
“3. The Tax Collector shall then immediately forward his reports so certified to the Comptroller, and shall pay over to the State Treasurer all moneys collected by him for the State during said month * * *. The Tax Collector may, in making remittance of funds to the State Treasurer or any other State officer, board, commission or employe of the State, make the same by sending cash or a check on the county depository, if the funds are in the county depository, or if the same, in due course, are required to be in such depository. * * * If such funds are sent in cash, by registered letter, by Post Office Money Order, express money order or by bank draft or bank check or depository check, in. such event the liability of the persons sending the same shall not cease until the same money is actually received by the State Treasurer or the duly authorized State depository or other authorized officer in due course of business.”

The report required by the statutes of the taxes collected for the months of January and February, 1932, respectively, was each dated March 16, 1932, and both were forwarded by appellee Fox to the State Comptroller and were received and filed by him on March 21st and March 22, 1932, respectively.

Appellee Fox mailed his two checks, each dated March 16, 1932, drawn on the depository bank for the full amount of the taxes due the State for January and February, 1932, respectively, which checks were received by the State Treasurer, and on March 18, 1932, deposited by him in regular banking channels for collection, and were presented to the depository bank in due course for payment prior to March 24, 1932, and payment was refused, with the following notice appended to each check:

“This bank has until further notice declared a moratorium under the terms of which withdrawals of deposits are limited in amounts. This check exceeds that limit.
“Merchants National Bank,
“Brownsville, Texas.”

This moratorium was established by the resolution of the board of directors of the depository bank on March 10, 1932, and it was placed in the hands of a receiver on March 24, 1932.

The trial court, trying the case without a jury, sustained the several pleas or defenses of appellees as follows:

1. That the statute quoted was not mandatory but directory with respect to the time of making remittances of the taxes in question to the State Treasurer by ap-pellee Fox.

2. That appellee Fox was not negligent in failing to make remittances of the taxes on February 25, 1932, and March 1, 1932: (1) Because it was physically impossible for him to have done so with the help furnished; and (2) because if he had made such remittances on February 25, 1932,- or on any date thereafter the checks drawn on the depository bank would not have been paid by it because of insolvency.

3. That the sole proximate cause of the loss of the taxes by the State was the insolvency of the depository bank and/or the establishment by it of the moratorium referred to.

4. That if the checks for the remittances of the taxes had been presented and paid by the depository bank on February 25, 1932, or any date thereafter, such payment would have constituted a preference to the •State in violation of the National Banking Act; because _ at all such times the depository was in fact insolvent.

The controlling question presented is whether the provisions of Sec. 1 of Art. 7260 are mandatory and required appellee Tax Collector to remit the taxes collected during the months of January and February, 1932, respectively, not later than February 25th and March 1, 1932, respectively. We have reached the conclusion that the trial court correctly construed the statute as being directory.

The general rule relating to the construction of statutory law prescribing the time for the performance of the duties of public officials is well stated in 46 C.J. 1037, § 306, as follows: “As a rule a statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of the power after such time or the nature of the act or the statutory remedy shows that the time was intended as a limitation.”

Mr. Sutherland, at page 1117, § 612, of his book on Statutory Construction, also states the rule to be as follows : “Provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. Though a statute directs a thing to be done at a particular time, it does not necessarily follow that it may not be done afterwards. In other words, as the cases universally hold, a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officer.”

Again this same author observes, in § 611, p. 1114: .“Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purpose of the statute.”

This language of Mr. Sutherland was quoted with approval by the Commission of Appeals in the case of Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, opinion expressly approved by the Supreme Court, and wherein the court held that revenue' statutes are to be liberally construed to effectuate their purpose to collect money for the support of the government; - that ordinarily the time prescribed in revenue statutes for the collection is not the essence of the thing sought to be accomplished; and that such statutes prescribing the time in which public officers shall perform their duties in collecting revenues are generally deemed to be directory.

To the same effect are the following cases relating to construction of statutes as being mandatory or directory: Ferris Press Brick Co. v. Hawkins, 53 Tex.Civ.App. 578, 116 S.W. 80; City of Uvalde v. Burney, Tex.Civ.App., 145 S.W. 311; Huffman v. Wilkes, 143 Kan. 458, 55 P.2d 366; Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627; Bickle v. City of Panhandle, etc., 43 S.W.2d 640, 641; and Smith v. Morton Independent School Dist., 85 S.W.2d 853, 858; and Gayle v. Alexander, Tex.Civ.App., 75 S.W.2d 706, wherein the “man datory provision” of a statute is defined as being one, the omission of which under the proceeding to which the provision relates is illegal and void; and a “directory provision” is defined as being one, the observance of which is not necessary to the validity of the proceeding; and wherein it was further held that in determining whether the provision in a statute is mandatory or directory, the legislative intent as ascertained from consideration of the entire statute, and its nature, its object, and consequences that would result from both constructions, should be considered.

When the foregoing rules of statutory construction are applied to Art. 7260, it is obvious that the legislature intended it as a directory statute with respect to the time of making reports and remittances of state taxes by tax collectors. The statute is a taxation and revenue statute. It contains no language of prohibition for filing the reports or making the remittances in question after the dates named in the statutes. And as was held in Federal Crude Oil Co. v. Yount-Lee Oil Co., supra [122 Tex. 21, 52 S.W.2d 61], since the statute is a revenue statute it should be “liberally construed so as to effectuate the chief object and purpose of [its] enactment;” and that “in making provision for the collection of * * * revenue, ordinarily time is not of the essence of the thing sought to be accomplished.” Under this rule, a manifest reason for the fixing of the time for making the report and remittance of the taxes collected was for the purpose of securing the proper, orderly, and prompt conduct of the business; and the statute is directory in respect to time.

Appellees insist that a further reason for construing the statute as to time for making the report and remittance of the state taxes as being directory, is the fact that the state’s executive officers, the Comptroller and Treasurer, who are charged with the duty of enforcing the statute, have continuously so construed it. They show in this connection that the reports and remittances of the state tax have not been made for any year since the enactment of the statute at the time stated in Sec. 1 thereof by appellee; and that his reports and remittances have always been received by said executive officers; and that the Comptroller has by several letters commended appellee for his' promptness, even though for each of the years 1927 to 1930, both inclusive, his reports and remittances were made at later dates than the ones in question for the 1931 taxes. Appellees also showed that the same procedure had been applied to other large taxpaying counties, because from the beginning these executive officers found that delays incurred in making such reports and remittances necessarily arose because of the shortness of the time allowed. Appellees also sought to show and to contend that the statute in question was ambiguous, indefinite, confusing, and in conflict with the same or other acts of the legislature, which are in pari materia with respect to the time for making reports and remittances of county, school district, and irrigation district taxes by the same collector, and the time of making final adjustments, and the different modes or manner of remedies which collectors were given under the statutes as to time of making reports and remittances of taxes. Arts. 7260, 7262 and 7294, Revised Statutes, Vernon’s Ann. Civ. St. arts. 7260, 7262, 7294.

Having shown these facts and circumstances, and claimed conflicting statutes, appellees insist upon the application of the settled rule that executive or departmental construction of a revenue statute for a long period of time is entitled to' be given weight by the courts, and particularly where the statute is one of doubtful meaning. Neubert v. Chicago, R. I. & G. R. Co., 116 Tex. 644, 296 S.W. 1090, 53 A.L.R. 1224; Whittenberg v. Craven, Tex.Com.App., 258 S.W. 152; Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627; Federal Crude Oil Co. v. Yount-Lee Oil Co., supra. We doubt if this rule is applicable in the instant case, because the statute in question is not ambiguous or of doubtful meaning; nor is it necessarily in conflict with the statutes which require the same collectors to make reports of other caxes to other proper authorities. A reasonable classification of the different kinds of taxes collected by tax collectors, and differences with respect to the time, mode, and manner of reporting and remitting them are not for that reason alone ambiguous or of doubtful meaning; and are not necessarily in conflict either as between themselves or with respect to the remedies given the collectors of these different kinds of taxes. We prefer, as did the trial court, to base our conclusions upon the proper construction of this and all other statutes cited as being directory rather than mandatory with respect to the time of making reports and remittances of the taxes, rather than upon the rule of departmental construction of an ambiguous or doubtful statute. There is no proof whatever that the Comptroller or Treasurer had any difficulty in determining the meaning of the statute which provided that the reports and remittances be made on the dates named in the statute. They found, however, that from the beginning of the operation of the statute that delays incurred in making such reports and remittances necessarily arose because of the fact that the larger percent of taxes are paid during the latter part of the month of January, which entailed such a large amount of detail work on tax collectors that it was impossible for them to make their reports and remittances by the time named in the statutes, particularly in the larger taxpaying counties. To meet the exigencies of this situation, they simply construed the statute and determined that the provision with respect to time of making reports and remittances was directory and not mandatory. In so doing they applied the general rule of statutory construction upon wh'ich we have determined this case. That is, a statute which merely prescribes a time for an official act to be performed, is regarded as being directory, unless by its language or provisions it is shown that the legislature intended that the time was to be a limitation. No such limitation appears in the statute in question.

In further support of its contention that the provision of Sec. 1 of Art. 7260 with respect to the time of making the report and remitting the taxes is mandatory, the State cites the provision of Sec. 3 of said statute, which provides: “If such funds are sent in cash, by registered letter, by Post Office Money Order, express money order or by bank draft or bank check or depository check, in such event the liability of the persons sending the same shall not cease until the same money is actually received by the State Treasurer or the duly authorized State depository or other authorized officer in due course of business.”

We do not regard this provision of the statute as material to the case of the State, which is predicated solely upon the failure of appellee to transmit the taxes which were admittedly in the depository bank to the Treasurer not later than February 25, 1932, or February 27, 1932, allowing the clerk time to examine the report and approve it. We construe this provision of the statute as being intended solely to protect the state funds during transmission from the depository bank to the State Treasurer. That is, if the collector had taken the cash out of the depository bank for transmission to the Treasurer, or if he had attempted to transfer the funds by registered letter, money order, express money order, bank check, etc., the liability of the collector and his bondsmen would continue until the money so transmitted is actually received by the Treasurer. Ap-pellee made no such transmission of the funds, but mailed his check, drawn on the depository bank in favor of the State Treasurer, which method of remittance is specifically authorized by the statute. And it may be here observed that the State did not in any manner predicate its claim of liability upon the ground that appellee Fox was negligent in any manner with respect to the method used by him in attempting to transmit the taxes from the depository bank to the State Treasurer, because the statute specifically authorized him to make remittance of the taxes “by sending * * * a check on the county depository,” which he did. The Treasurer received the checks for the taxes and placed them in proper banking channels for collection; but payment was refused because of the insolvency of the bank. If the bank had been solvent, the checks would have been paid and no claim of liability against appellees could have existed even though the checks were sent at a later date than prescribed in Sec. 1 of the statute. Having held that this statute was not mandatory but directory as to time of making the remittance, the only question left in the case is whether appellee Fox was negligent in failing to make his remittance before the date he made it, or at any time prior to the time the depository bank became insolvent; and to which question we now pass.

The evidence fully sustains the finding of the trial court that appellee Fox was not negligent in failing to make his report and remittance, and that he could not have made such remittance of the taxes prior to March 16, 1932, the date on which he mailed his check drawn on the depository bank for the taxes, because it was physically impossible for him to have done so with the facilities and help furnished him by the Commissioners Court of Cameron County. The evidence on this issue is not controverted, and no useful purpose would be served by detailing it. Suffice it to say that it was shown that 80% of the taxes for Cameron County were paid during the month of January, 1932; that the Tax Collector was charged with the collection of state, county, navigation district, school district, poll taxes, automobile licenses, and other taxes which it was his duty to separate and report, and remit same to the authorities to whom it was due under the statute. It was shown that subdivisions into small tracts of land by the owners, such as town lots, required a large number of new receipts each year; that 40% of the taxpayers of Cameron County were non-residents, and their taxes were paid by remittances through the mail, which took time to collect and deposit in the depository. The evidence is undisputed that there were more than 18,000 entries made in connection with the collection of the taxes in question, and the report thereof to the State Treasurer. Appellee was furnished a stenographer who operated a combination typewriter and tabulation machine, and one chief deputy, and several other special employes, all of whom worked during the regular office hours, and for several weeks during the time in question all of said employes worked late at night, in an effort to prepare such report and remit the taxes as soon as possible. The County allowed compensation for the extra hours of work by the employes, but did not furnish sufficient help to complete it at an earlier date than it was completed. Both the Tax Collector and his chief deputy were skilled in their work from long years of experience, and both of them testified that it was impossible to make the report and remittance earlier than they were made on March 16, 1932. The record shows that the report and remittance were made earlier than any other report for any year made by the Tax Collector after the enactment of the present statute; and that he received commendatory letters from the Comptroller from time to time for the manner in which he discharged the duties of his office.

When the checks dated March 16, 1932, drawn on the county depository for the taxes in question, were presented on or about March 19, 1932, the depository refused payment under the terms of the moratorium above referred to; and on March 24, 1932, the depository bank was closed by order of the federal authorities in charge of such matters. In this connection, the trial court further found that if the checks had been drawn and presented on February 25, 1932, or any date thereafter, payment would not have been made thereon because the bank was insolvent at all such times. The evidence fully sustains this finding of the trial court. Suffice it to say that the president of the bank testified that from the middle of February, 1932, until the bank closed, they had privately refused to pay but a certain percentage of large deposits; and that on March 10th they declared the moratorium above referred to; all of which was with the knowledge and consent of the federal banking authorities; that due to the depression prevailing everywhere, and to local conditions with reference to freezing of crops and vegetables, they were unable to make collections on their loans, and that only a small sum was so collected. The president testified that if the checks drawn on the depository fund by appellee had been presented on February 25, 1932, or any date thereafter, they would not have been paid, because to have done so would have required the bank to have paid other large depositors, which the bank was refusing to do, and in consequence would have caused the bank to close its doors on that date.

There is no evidence whatever that appellee knew anything of the condition of the bank or of its pending insolvency at the time he made his deposits in the bank; or at any time before he made his report and remittance. He, himself, had both individual and trust funds in the bank at the time it became insolvent.

With respect to the question of the negligence of appellee Fox in failing to make his report and remittance of the taxes before February 25, 1932, this court passed upon a somewhat analogous situation in the case of State v. Hatcher, Tex.Civ.App., 52 S.W.2d 794, 800, wherein the State Treasurer and his bondsmen were sued for damages alleged to have been sustained as the result of delay in collecting a draft of the County Treasurer to take up school bonds. He- received the draft on April 10, 1926, and because of payment of millions of dollars of interest on permanent school fund bonds, and because the State furnished only one man for this work, who was unable to reach the draft for deposit and collection before May 26, 1926, on which date the county depository on which the draft was drawn became insolvent, the draft was not paid. This court held as follows: “In some detail the answers show that the volume of remittances coming to the treasurer at the time in question was so great that, with the limited assistance furnished by. the Legislature, it was impossible to reach the draft in the regular order of its receipt until after May 26th. Appellant’s contention is that this was not a legal excuse for failure to put the draft in due course of collection in accordance with banking customs. We overrule this contention. The treasurer could only employ such facilities as the State afforded in transacting the business of his office, and he should be held negligent only to the extent that he failed to make proper and efficient use of those facilities. The impossible should not be required of him, nor should he be required to resort to his private means in furnishing employees to transact the State’s business. To this extent, at least, the customs relating to banking or commercial transactions do not apply to him.”

Under the facts above stated, the finding and conclusion of the trial court that the bank was insolvent on February 25, 1932, and at all times thereafter, is sustained by both Federal and State authorities.

In Aycock v. Bradbury, 10 Cir., 77 F.2d 14, 16, the court held:

“Insolvency of a bank within the meaning of the statute is inability to meet its obligations as they accrue in the ordinary course of business. * * *
“It is settled law that a bank is in contemplation of insolvency when the fact becomes reasonably apparent to its officers that it will presently be unable to meet its obligations as they accrue and pay its creditors in -full; and realization of that fact cannot be deferred by blindly indulging in hope without reasonable basis of fact.”

In 6 Tex.Jur., 317, it is stated: “It is not insolvency in its popular sense that the law regulating banks and trust companies and kindred corporations deals with, but insolvency in its legal sense, which exists whenever such an institution, from any cause, is unable to pay its debts in the ordinary or usual course of business.”

See also Turkey State Bank v. Estelline, etc., Tex.Com.App., 272 S.W. 775; First Natl. Bank v. Neel, Tex.Civ.App., 10 S.W.2d 408.

There is no claim that appellee Fox was negligent in any manner after he mailed his checks for the taxes to the Treasurer on March 16, 1932, or that the checks would have been paid if presented to the depository bank after that date.

The above facts also sustain the conclusion of the trial court that the sole proximate cause of the loss of the taxes in question by the State was the insolvency of the depository bank. The evidence fully sustains the finding and conclusions of the trial court that if the checks remitting the taxes had been delivered to the State Treasurer on February 25, 1932, or February 27, 1932, and presented to the depository bank in due course of business, payment of the checks would have been refused because the bank was insolvent on such dates and ever thereafter.

We do not regard the finding and conclusion of the trial court that if the checks remitting the taxes had been presented and paid on February 25, 1932, the payment -would have constituted a preference in violation of the banking laws as material to a decision in the case.

The judgment of the trial court will be affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    Pete CHEFTIS, Appellant, v. J. L. C. McFADDIN et al., Executors, Appellees.
    No. 3554.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1939.
    Rehearing Denied Nov. 29, 1939.
    David L. Broadus, of Beaumont, for appellant.
    J. L. C. McFaddin, of Beaumont, for ap-pellees.
   O’QUINN, Justice.

This is an appeal from a judgment of the Jefferson County Court at Law. The case was tried to a jury upon one special issue which was answered in favor of the appel-lees. We have carefully examined the record and it is our conclusion that the judgment should be affirmed, and it is so ordered. On the authority of Associated Ind. Corp. v. Gatling, Tex.Civ.App., 75 S. W.2d 294; Kozielski v. Williams, Tex.Civ. App., 125 S.W.2d 1118; Farmers State Bank of Center v. Harris, Tex.Civ.App., 126 S.W.2d 1216, the affirmance is without written opinion. Affirmed.


text:
    E. R. HUDSON, Appellant, v. Elliott CAVANAUGH, Appellee.
    No. 3626.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1939.
    Sam H. Townsend, of Lufkin, for appellant.
    Sumner Williams, Jr., of Lufkin, for ap-pellee.
   O’QUINN, Justice.

Affirmed without written opinion. Associated Indemnity Corporation v. Gatling, Tex.Civ.App., 75 S.W.2d 294; Texas & New Orleans Railroad Company v. Futch, Tex.Civ.App., 127 S.W.2d 1040; Gilbert v. King, Tex.Civ.App., 128 S.W.2d 1214; Sagarin v. Holliday, Tex.Civ.App., 127 S.W.2d 1040.


author: PER CURIAM.

text:
    Ed. A. SEIDEMAN, Appellant, v. ALAMO PAINT & WALL PAPER CO., Inc., Appellee.
    No. 10622.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Gaines, Gaines & Roberts and Geo. R. Thomson, all of San Antonio, for appellant.
    Forrest Campbell, of San Antonio, for appellee.
   PER CURIAM.

The judgment will be affirmed without written opinion.


text:
    WADE v. STATE.
    No. 20656.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Glenn Faver and Roi Blake, both of Jas■per, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the crime of theft over $50, and sentenced to a term of two years in prison.

The testimony upon which a conviction is based consists of the fact that appellant was found in possession of the recently stolen property described in the indictment, and that he directed the officers .where such property could be and was found. We have searched the record for any evidence, however, where any admission is made by him as to the taking and confess our inability to find such admission. Mr. Branch in his Penal Code, p. 1340, Sec. 2478, says: “In cases of theft proof of possession of property recently stolen which is unexplained, or proof of such possession explained when the explanation does not admit the taking of the property from the person in whom possession is laid, is but a circumstance, and if there is no direct evidence of such taking a charge on circumstantial evidence is required,” citing a long list of cases.

Again he says in the same section: “If the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid, and if there is no direct evidence of such taking — the main fact — a charge on circumstantial evidence is required,” citing numerous cases.

It is also there held that an admission by defendant of possession of recently stolen property, unless same contains an unequivocal admission of the taking, is not sufficient, standing alone, to take such case out of the realm of circumstantial evidence. See Sec. 2478, supra.

We note that there is no further testimony in this record connecting appellant with this taking other than that he told the officers where this stolen goods could be found, and that in pursuance of such conversation same were found concealed in the home of appellant’s sister.

We also note that the trial court submitted the theft over $50 count in the indictment alone, and that the conviction herein was based thereon. It is also worthy of note that appellant objected at the proper time to the court’s failure to charge the law of circumstantial evidence. Such a charge should have been given, and the failure to give such charge should result in a reversal hereof.

We also think that under the testimony in this case, in the event of a new trial, the court should instruct trie jury relative to the taking at one time of property over the value of $50, and we further observe that whenever under Art. 727, C. C.P., a statement of the accused is made under arrest, not in writing under proper warning, but which statement contains facts or circumstances found to be true, which conduce to establish his guilt, such as the finding- of secreted or stolen property, etc., then all of the statement or confession so made becomes admissible, so far as the same is pertinent to the main fact at issue in the case. See McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157.

The judgment is reversed and the cause remanded.


text:
    STEVENS v. STATE.
    No. 20605.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Kirby, King & Overshiner and W. E. Martin, all of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant stands charged by indictment with the offense of rape; penalty assessed at confinement in the penitentiary for five years.

The prosecutrix, Mrs. Novice Anderson, is a widow twenty-two years of age. According to her testimony, a stranger came to the door of her home in Abilene, Texas, at night time and asked her to go riding with him to another city. This she declined to do because he was a stranger to her. He then invited her to go to his car to see some of her friends, but when she reached it, she found no one there. The appellant pushed her into the car and compelled her to ride with him for several miles through the city and to its outskirts, and upon reaching a secluded roadway, he compelled her to get into the back seat of his car where he undertook by force to 'have sexual intercourse with her. She described her efforts to prevent him from accomplishing his fiendish purpose. Her story is horrifying, and if given full credit by the jury, it justifies the infliction of the severest penalty.

Without detailing further the story she gave, it is sufficient to say that her description of what took place and her conclusion that his private parts penetrated hers, at least, raises a question of fact for the jury to pass on as to whether or not the penetration actually took place. In fact, a reading of the record would justify a .serious doubt as to the correctness of her "belief that there was penetration. At most the jury may have found either way under her testimony.

Appellant asked that the court submit the issue of assault to rape, which he refused to do. By proper bill of exception the question is brought before us for consideration. We think the appellant was entitled to this charge because there was evidence before the jury upon which they may reasonably have found him guilty of the lesser offense. The fact that they assessed only a five-year penalty under a charge of rape would indicate that in the minds of the jurors there was great doubt as to a ■completed transaction of rape having taken place. There is no other way to justify the penalty if we are to give credit to the jury for being average jurors. Whatever might have been their reason, the failure of the court to give the charge, under the facts of the case as it was before them, on assault to rape is error for which the case must be reversed.

On the question of the refusal of the court to instruct the jury on assault with intent to rape, it is stated in Tex.Jur.Vol. 35, p. 875, sec.. 81, as follows:

“Where the evidence so warrants, the defendant is entitled to have the jury instructed as to any lesser offense included in the one charged and for which he is tried. Thus, in a prosecution for rape, issues of assault with intent to rape, of aggravated assault and of simple assault should be submitted whenever they are raised by the evidence.”

In the case of Enfield v. State, 94 Tex.Cr.R. 226, 250 S.W. 162, it was held: .

“Where, upon trial of rape, upon a female under age of consent, the evidence on the question of penetration was contradictory, and there was evidence which raised the issues of assault with intent to rape, and aggravated assault, and defendant requested a charge upon these latter issues which was refused, the same is reversible error.”

Vigorous complaint is made also by appellant in numerous bills of exception because of the statements appearing in the closing argument of the District Attorney. Inasmuch as the case is being reversed upon other grounds, it does not become necessary to enter into a discussion of these bills in this opinion. The bills, as approved by the court, contain evidence of enthusiasm turned loose without sufficient restraint to insure that the prosecuting attorney would stay within reasonable bounds, and it is not to be expected that he will so 'indulge himself upon another trial. It is hardly thinkable that the same complaints could be made again.

Counsel for the State should know that any statement made or any series of statements which, taken together, are not based upon the evidence in the case and which create any prejudice in the minds of the jury against the party on trial will bring to a fruitless end his energetic and enthusiastic efforts. If the court should have a reasonable doubt as to whether or not such argument creates undue prejudice in the minds of the jury, it will be its duty to require that a new trial be given to the party who may have thus been injured by such argument. The privilege of arguing a case before a jury by either side is a valuable one, but the responsibility to stay within due bounds is certain and definite.

Complaint is also made of the question asked the appellant while on the witness stand as to whether or not he had a few days prior to the alleged offense approached another party and asked him to join in finding some women with whom they could make a date. There is nothing in this question that aids in any way the identification of the appellant as the party, or any other issue in the case. This was followed by the State calling the witness, presumably for impeachment purposes, to testify to such a conversation which was contradictory to the answer given by-the appellant. Under the authorities, the State was bound by the answer which the appellant gave and could not impeach him on immaterial matters. See Branch’s Ann. Tex.P.C., p. 97, art. 165; page 102, art. 168, and p. 104, art. 171; also cases there cited.

While the appellant was on the stand as a witness in his own behalf, he was asked by the District Attorney if he was not at that time under indictment for rape upon Marie Myricli. The question was a proper one only so far as it asked if he were then under indictment for rape. It would be error to go into the case and certainly served no proper purpose by calling for the name of the injured, party. Later, the prosecuting attorney called to the witness stand a party named Marie Myrick and asked her three questions, neither of which elicited an answer pertinent to anything in the case. If we are to assume, as we should, that the District Attorney expected to elicit pertinent testimony from this witness, then he would, of course, have had a right to place her on the stand and ask her the questions. 'Since it is now shown that she knew nothing of the case and of the parties involved, this should not occur upon another trial. It, therefore, becomes unnecessary for us to give further consideration to the bill complaining of this action.

Because of the errors committed, the judgment of the trial court is reversed and the cause remanded.