text:
    Ex parte BLAND.
    No. 21507.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    T. R. Odell, of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant is confined in the state penitentiary under two convictions, the first from Lynn County for a sentence of five years, and the second from Lubbock County for two years, made cumulative with the first.

It is alleged and shown that appellant has served sufficient time to be discharged under the five-year sentence and he claims to be illegally held because,- (a) the judgment of conviction in - Lubbock County is void, being based on' a void indictment; and (b) that the district judge of Lubbock County did not have before him evidence authorizing him to make the sentence cumulative of the five year sentence from Lynn County. It is further claimed that he has earned overtime which had been allowed him and that this was arbitrarily and illegally deducted from his credits. The trial court held against this contention, and we think properly so under the record as it is before us.

Appellant had served part of his time in the penitentiary and was on a six months’ reprieve, or furlough, at the time of the commission of the second offense. He was then returned to the penitentiary on his five-year sentence, at which time his good rating was taken from him. Later it was restored without restoring his credit for overtime. It is sufficient to say that this process, whatever was taken, is not sufficiently definitely shown that we may be able to tell from the record whether or not it was in compliance with law and the rules in pursuance thereof. Consequently, it will not be further considered.

.Appellant’s chief complaint is lodged against the indictment returned in Lubbock County. That case was appealed to this court and, upon the showing in the transcript, was reversed because of the error as set out and complained of herein. Upon the State’s motion and its showing that the transcript was in error and that the indictment contained the necessary averment which had been omitted by the clerk in copying it, this order was set aside, and thereuppn the case was affirmed. Bland v. State, 137 Tex.Cr.R. 486,130 S.W.2d 292, 132 S.W.2d 274. The judgment at that time likewise made the sentence cumulative and was before us in the record.

Practically all officers of the court testified to the contents of the original indictment which has been lost from the record, and appellant’s then attorney testified that the omitted averment was in the copy of the indictment delivered to him and by him'transmitted to the appellant. Appellant produced on the trial of the case a photostat copy of the carbon copy of the indictment delivered to him which, he claims, did not contain such averment, but admitted that he had sent the copy itself beyond the bounds of the state so that it is not within reach of the court. . He knows where it is, but declined to produce it. No discussion of this situation could help his case, and there is no reasonable basis for his contention. It is sufficient to say that the question of the indictment and the judgment of the trial court making the sentence cumulative were matters properly to be brought before this court on the original appeal and, consequently, we do not feel called upon at this time to consider them. In view of the fact, however, that appellant has persistently presented these matters to different courts and caused the state to go to the trouble and expense of transporting him for other hearings, and with the prospects of his continued efforts, we may observe that there is nothing in the record which will sustain his contention on either of these two questions and they may be considered adjudicated against him.

It is further insisted that the judgment is void and may be attacked at any time. Under the allegations, if proven, the judgment wouldj at most, be voidable and not void. We do not mean by this to indicate that it is voidable even. It is uniformly held that the courts will not resort to the evidence of the case to determine whether or not it is void, and only matters appearing in the record will be considered. Tex.Jur. Vol. 3, Sec. 571 to 574, p. 808.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KRUEGER, Judge. CHRISTIAN, Judge.

license: Public Domain

text:
    BIRD v. STATE.
    No. 21334.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.

      R. B. Hood, of Weatherford, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an attempt to commit robbery by assault. The punishment assessed is confinement in the state penitentiary for a term of eight years.

The State’s evidence, briefly stated, shows that on the 4th day of December, 1938, G. H. Johnson, the injured party, received a written request from Ted Belmont of Fort Worth, Texas, to meet him at the Labor Temple on that evening, as he (Belmont) desired to pay him (Johnson) what he owed him. Johnson left his home near Weatherford about 4 P.M., went to Fort Worth and met Belmont at the designated place, where Belmont paid him $38. Johnson then started on his return trip to Weatherford, but when he reached “Cowboy Bill’s Place” he stopped and drank a bottle of beer. During the time he was at “Cowboy Bill’s Place”, the appellant and his wife came in. When Johnson left, they followed him to within a short distance of Weatherford where his (Johnson’s) car ceased functioning for want of fuel. Appellant and his wife drove their car alongside of Johnson’s and inquired of him what his trouble was. He told them that he was out of gasoline. Appellant offered to go back to a filling-station some two or three hundred yards away to get some gasoline and did go. He left his wife standing on the side of the road opposite Johnson’s car. Appellant soon returned, stating that the service station did not have any container in which to send the gasoline. Johnson then walked to the service station and obtained one gallon of gasoline in a jug while appellant and his wife remained in their car near where Johnson’s car was parked. When Johnson returned with the gasoline and was attempting to pour it' into the gasoline tank, appellant struck him several licks on the head with a hammer which rendered him unconscious. When Johnson regained consciousness, his head was bleeding profusely. His pocket-book was lying on or near his face and his money was missing. He managed to get back to the filling-station where he immediately told the owner thereof that he had been assaulted and robbed. . The officers were notified of the occurrence and immediately responded to the summons. Johnson was taken to a hospital where he received medical attention. The State also offered in evidence appellant’s purported voluntary confession.

Appellant took the witness-stand and admitted that he struck Johnson with a hammer on the night in question but contended that he did so because Johnson had insulted his (appellant’s) wife at the beer tavern of which she had informed him; that he then made up his mind to follow Johnson and give him a good whipping; that after they had overtaken Johnson and learned that he was out of gasoline, he offered to go to the filling-station and get some gasoline for him and did go, but was unable to obtain a container in which to bring it back to Johnson’s car. Appellant’s wife testified that when her husband went to get some gasoline for Johnson he left her standing on the side of the highway opposite Johnson’s car; that during the absence of her husband Johnson again made an indecent proposition to her; that after her husband returned without any gasoline and Johnson had started to the filling-station to get-some himself she informed the appellant of Johnson’s conduct and insult towards her. Appellant further testified that when his wife informed him of this last insult he made up his mind to whip Johnson and did so at the time and place in question without any intent to commit robbery, and that he did not take any money from the person of Johnson.

Appellant’s- first complaint is that the court erred in overruling his motion to quash the indictment on the ground that it is vague, indefinite and does not charge in what manner and by what means the assault, if any, was committed; that it does not apprise the defendant of what he will be required to meet in the proof. Omitting the formal parts, the indictment reads as follows: “ * * * that Arthur Riley Bird on or about the Sth day of December, One Thousand Nine Hundred and Thirty-eight, (A.D., 1938), and anteri- or to the presentment of this indictment, in the County of Parker and State of Texas, did then and there -unlawfully in and upon G. H. Johnson make an assault and did then and there by said assault and by. violence fraudulently and against the will of the said G. H. Johnson take from the person and possession of the said G. H. Johnson Thirty ($30.00) Dollars in money, the same being the property of the said G. H. Johnson and with the intent then and there to deprive the said G. H. Johnson of the value of the same and to appropriate it to the use of him the said Arthur Riley Bird, etc.”

The offense may be committed by an assault or violence or by putting the victim in fear of life or serious bodily injury for the purpose of fraudulently taking; from him or his possession any property with the intent to appropriate the same to the use of him, the taker. See Art. 1163, P.C.,1925. In case of robbery by assault, or violence or both, it is not necessary to set out in the indictment the means used. This is only necessary where the use of firearms or other deadly weapon was used in the commission of the offense and the extreme punishment is sought.

By Bill of Exception No. 2 appellant complains of the action of the trial court in declining to submit to the jury his special requested charges to the effect that unless the jury believed from the evidence beyond a reasonable doubt that the purported confession of the appellant offered in evidence was voluntary, then they should not consider it for any purpose. We find in the court’s main .charge, to which no objection was made, an instruction similar to those requested by appellant. Therefore, it was not necessary to give appellant’s requested charges as it would have been but a repetition of the court’s instruction on the subject.

By Bill of Exception No. 3 appellant complains of the trial court’s action in declining to submit to the jury his Special Charge No. 3. We note that the court in his main charge, to which no objection was interposed, gave an instruction similar to the one requested by appellant.

Bill of Exception No. 6 reflects the following occurrence: While G. H. Johnson, the injured party,'was testifying for the State, he was asked by the County Attorney the following question: “Where were you struck?”, to which he replied: “On top of the head and I fell along with the running board of the pick-up. I fell lengthwise with the running board. When I fell on the ground that time I realized that something like high-j ackers had me.”

Appellant objected to this testimony because it was an opinion and conclusion of the witness and was not a statement of any fact, and that his opinion and conclusion would not be admissible against the defendant. The objection was overruled and the appellant excepted.

We observe from the record that this was not all the testimony given by Johnson, the injured party. He further testified that he was struck on the head while pouring gasoline into his truck; that he dropped down on the running board; that as he tried to straighten up, another lick hit him on the top of the head and he fell lengthwise with the running-board; that he hollered and crawled under his pick-up; that he was pulled by his left foot from under the truck; that he was then struck again until he had to give up; that while lying down he felt his hip pocket rip; that he then turned over with his head towards appellant’s car where he could see the man who was about two steps away; that he heard something hit the pavement near his face; that he looked at it and saw it was his' pocket-book.

The fact that Johnson realized that something like high-j ackers had him was a logical and reasonable deduction from the facts within his knowledge and the circumstances surrounding him at the time. These were facts within his knowledge which would indicate that he was being high-jacked. Under the circumstances, we are of opinion that the. bill reflects no reversible error.

Bill of Exception No. 7 shows that appellant objected to the introduction of a post card which Mr. Belmont had written to the injured party requesting Johnson to meet him at the Labor Temple in Fort Worth on the afternoon in question; that he (Belmont) desired to pay Johnson what he owed him. Appellant objected to the introduction of the post card upon the ground that it did not appear to ever have been mailed; that it did not show where it came from; that it was hearsay and an ex parte statement. The court overruled the objection and we see no error in such ruling. Johnson, to whom the card was sent, testified without objection to everything stated on the card. It is well settled in this state that when testimony is introduced without objection which is similar to that objected to no reversible error is shown. Clayton v. State, Tex.Cr.App., 138 S.W.2d 1084.

Bill of Exception No. 8 complains of the testimony given by Johnson, the injured party, to the effect that in looking over his checks he found two of them had been cashed, prior to the Alleged robbery, at Cowboy Bill’s Beer Tavern. Appellant objected to said testimony because it was at a different time and wholly immaterial to any issue in the case and was prejudicial to the rights of the defendant. We’think this testimony was admissible. It appears from the record that appellant offered to show and .did prove that Johnson, on the night in- question, desired to get a check cashed at Cowboy Bill’s Beer Tavern, but that the owner (Mr. Herring) declined to cash the check. The purpose of this testimony on the part of appellant was to show that Johnson did not have any money when he left Cowboy Bill’s Beer Tavern and therefore had no money when the alleged assault was committed. Johnson denied that he sought to cash a check and offered this testimony to show that on two . different occasions in the past Mr. Herring had cashed checks for him. This tended to corroborate and sustain Johnson in his contention that he made no attempt and made no request on the night in question to have a check cashed. Moreover, it appears from the record that Mr. Herring, the owner of Cowboy Bill’s Beer Tavern, testified without objection that he had theretofore on two occasions cashed checks for Johnson. It is a wpll-established rule in this state that when there is testimony introdirced without objection which is similar to that objected to that no reversible error is shown. See Clayton v. State, Tex.Cr.App., 138 S.W.2d 1084; Martinez v. State, Tex.Cr.App., 140 S.W.2d 187, and cases there cited.

Bill of Exception No. 9 reflects the following: While Mrs. Almena Bullock, the owner of the service station, was testifying, she was asked by the prosecuting attorney if Johnson, the alleged injured party, came to her place of business a second time on the night in question and if so, whether she had a conversation with him relative to his bleeding head, to which appellant objected because it was not in the presence of the defendant, was too remote, was no part of the res gestae and was hearsay. The objection was overruled and the appellant excepted. Homer Wright, who was at Mrs. Bullock’s place of business at the time, was also asked if he was present when Johnson came up with his head bleeding and .if he heard what Johnson said, to which defendant again objected for the same reasons stated in his objection to the testimony of Mrs. Bullock. The objections were overruled by the court and both witnesses were permitted to testify that when Johnson arrived at the filling-station he said: “He got my money, but he did not get it all.” We think this was clearly a res gestae statement and admissible as such.

Bill of Exception No. 10 complains of the action of the court in declining to permit the State to ask Dr. Fyke if it was not a fact that Johnson told him that he had received some of the wounds on his head while on a drunken spree in Fort Worth, to which the witness answered, “No.” Thereupon counsel for the defendant propounded the following question: “Did Johnson tell you that or did some one else tell you?” The witness answered: “He just told me last week.” Thereupon counsel for defendant made the further inquiry: “Didn’t Johnson tell you that scar on his head had been there for some time ?” whereupon the court said: “We won’t go into that at this time.” Then counsel for the defendant asked the witness: “If recently, very recently, you were called on by the officers in this town and county to make an examination of Johnson (the witness) to determine whether or not he was drunk and you pronounced him drunk?” The State objected and the court sustained the objection, whereupon defendant duly excepted.

This bill is not entitled to consideration inasmuch as it is multifarious, containing three separate and distinct questions, not related to the same subject matter. Whether or not Johnson was drunk at any time after the commission of the offense certainly had no bearing upon any issue in the case and the objection thereto was properly sustained.

By Bill of Exception No. 11 appellant complains .of the action of the trial court in permitting the State to offer-in evidence the purported voluntary confession of the defendant, to which he objected on the ground that it was obtained by force, threats and fraud. Before admitting the confession in evidence the court heard testimony relative thereto. The officer who arrested the appellant and also the one to whom the confession was made testified that no force, threats or fraud were resorted to by them, or either of them, to induce the defendant to make the confession; that it was freely and voluntarily made after he had been duly warned that any statement which he made could be used in evidence against him on the trial for the offense to which it related. The court then admitted the purported confession but -instructed the jury that if they believed from the evidence that the purported confession offered in evidence was made by the defendant as a result of force, threats and fraud, they should not consider it for any purpose. We think that the procedure pursued by the court was in conformity with the rule announced by this court in the following cases: Anderson v. State, 87 Tex.Cr.R. 230, 220 S.W. 775; Wilson v. State, 103 Tex.Cr.R. 403, 281 S.W. 844.

What we have said with reference to Bill of Exception No. 10 applies with equal force to Bill No. 12. However, the bill is qualified by the court, who states in his qualification that the only objection made by appellant was, “We object to that”, without stating any ground of objection. In view of the court’s qualification the bill is wholly deficient. See Simms v. State, 67 Tex.Cr.R. 98, 148 S.W. 786.

In the case of Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301, 303, this court said: “It is the function of this court to determine whether, in receiving the evidence over the objection made, the trial court was in error, and unless the evidence is obviously inadmissible for any purpose, the bill complaining of its receipt must state the ground of objection.”-

Bill of Exception No. 13 disclosed the following occurrence: While the prosecuting attorney was cross-examining the wife of the appellant he held in his hand some written instruments which showed that she had been reporting to the matron of the Police Department of the City of Fort Worth every week and to the doctor. Appellant objected thereto because the same were ex parte statements and hearsay. These documents were not offered in evidence but were merely referred to by the prosecuting attorney in formulating his questions to the witness. She, in substance and effect, confirmed the statements contained in the documents. Consequently, the appellant’s objections are without merit.

Bill of Exception No. 14 fails to disclose any reversible error and for that reason is overruled without discussion.

By Bill of Exception No. 15 appellant complains of the action of the trial court in permitting the District Attorney on cross-examination of the appellant to ask him if he had not been indicted by the Grand Jury of Tarrant County for burglary and for theft of chickens, to which appellant objected on the ground that it was too remote and did not throw any light on any issue in the case, was prejudicial to the rights of the defendant, and because the evidence showed that said two cases had been dismissed. This testimony was not too remote. It was admissible for the purpose of affecting the credibility of the witness, and the court in his charge, to the jury limited said testimony to that purpose only.

It was the defendant’s theory that he struck Johnson at the time and place charged in the indictment because of an insult- to his (defendant’s) wife, and to support this theory he offered his wife as a witness. She testified that Johnson proposed to her that she go to Mineral Wells with him for a good time; that he first made this proposition to her at Cowboy Bill’s Beer Tavern, of which she informed her husband; and again, during the time her husband had gone to the service station to get some gasoline for Johnson. Thereupon, the State asked her if she was not a common prostitute and if she was not required under an ordinance of the City of Fort Worth to report every ten days to the matron of the Police Department. It was further shown that she had stated to two officers that she was “hustling” and that her husband knew it. We think that this testimony was germane to that elicited by appellant. It tended to show that his defensive theory was a fabrication. It would seem unreasonable that a woman who pursued the avocation of a prostitute should become offended at a proposition for sexual intercourse; and it seems equally unreasonable that a man who knows that his wife is pursuing such an avocation with his approval should become highly enraged when informed by his wife that the injured party had solicited sexual favors from her. The two are incompatible and irreconcilable. We think that the testimony was admissible under the case of Wood v. State, 31 Tex.Cr.R. 571, 21 S.W. 602.

Bill of Exception No. 16 reflects that while the witness, G. T. Hawkins, a policeman of the City of Fort Worth, was testifying for the State, he was asked: “Did you and another officer recently go up there to this hotel where Bird and his wife lived and talk to her ?” to which he replied in the affirmative. He was then asked: “What was the purpose of going up there?” to which he replied: “To check up on Mrs. .Bird’s blood test. When they have venereal diseases, they have to report each week, and I don’t think she had reported and we had gone up there to see why.” Appellant objected to this testimony on the ground that Mi'S. Bird had not been interrogated by defendant on any such matters; that it was immaterial to any issue in the case and could only serve to prejudice the minds of the jury against appellant. The court qualified, the bill and in his qualification states that appellant merely objected without stating any ground of objection. Appellant accepted the bill as qualified and is therefore bound thereby. A bill of exception to the admission of evidence must state the grounds of objection; a mere objection without stating any legal grounds is insufficient unless the evidence objected to is obviously inadmissible for any purpose. See Tex.Jur., Vol. 4, p. 306, sec. 213, and authorities there cited.

Appellant complains of the following remark by the District Attorney in his closing argument to the jury: “My opinion is that the defendant should be given a sentence of twenty-five years,” to which appellant objected and requested a special instruction to the jury to disregard the same and not consider it for any purpose, which instruction was refused. Appellant does not claim that the facts 'adduced upon the trial did not justify the remark.

In the case of Stalcup v. State, 130 Tex.Cr.R. 119, 92 S.W.2d 443, 445, the district attorney, in his closing argument, used the following language: “I am serious in what I am telling you, and I am thoroughly sold on the State’s side of the case, and I actually believe what I am saying, and I believe that this jury should inflict the death penalty.”

In disposing of that question this court said: “The bill fails to show that counsel who made the argument had any knowledge of the case, save that obtained from the evidence. The argument can reasonably be construed in no other light than an expression from counsel that in view of such evidence the death penalty should be inflicted. We see no error in this [citing Marinkovich v. State, 96 Tex.Cr.R. 59, 255 S.W. 734].”

See, also Jackson v. State, 63 Tex.Cr.R. 351, 358, 139 S.W. 1156; McCully v. State, 118 Tex.Cr.R. 562, 40 S.W.2d 116; Scott v. State, 79 Tex.Cr.R. 474, 185 S.W. 994; Woods v. State, 119 Tex.Cr.R. 100, 101, 46 S.W.2d 984.

In the present instance, there is nothing in the bill which shows that the argument of the district attorney and the conclusion which he expressed were not reasonable deductions from the testimony adduced.

All other matters complained of have been considered by us and are deemed to be without merit.

No error of a reversible nature having been discovered 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 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 adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge. BEAUCHAMP, Judge.

text:
    MITCHELL v. STATE.
    No. 21198.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    On Rehearing Jan. 15, 1941.
    David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of cattle theft, and on an allegation of a former conviction for a similar offense he was given a penalty of ten years.

The record is before us without bills of exception.

Appellant testified in his own behalf and said that he had taken the cattle at the instance of his cousin under the belief that they belonged to his cousin’s father and that he had authority to take them. The jury declined to accept the defensive theory presented by appellant, and assessed the very heavy penalty. The circumstances surrounding the taking of the cattle and the transporting of them to Plouston for sale, with which appellant was intimately connected, justifies the jury in reaching the conclusion which they did. It is not for this court to say that they exceeded their authority. The court overlooked giving effect to the indeterminate sentence law as provided by Art. 775, C.C.P., Vernon’s Ann. C.C.P. art. 775. The sentence is amended to direct that the punishment be confinement in the penitentiary for not less than two nor more than ten years. Otherwise the record appears to be in every way regular, and the judgment of the trial court as amended is affirmed.

On State’s Motion for Rehearing.

BEAUCHAMP, Judge.

On November 6, 1940, during the present term, the judgment in this case was reformed and affirmed. Subsequently the state has filed a motion to set aside that order on the ground that there was no notice of appeal in the record and that this court is without jurisdiction to enter such order.

Upon further examination of the record the motion is granted, the judgment of af-firmance set aside and the mandate of this court reflecting such judgment is recalled and the appeal is dismissed.


author: HAWKINS, Presiding Judge. HAWKINS, Presiding Judge'.

text:
    MITCHELL v. STATE.
    No. 21199.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    On Rehearing Jan. 15, 1941.
    David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of cattle, punishment assessed at ten years’ confinement in the penitentiary.

The record is before the court without statement of facts or bills of exception. Nothing of a procedural nature is presented for review. However, it appears that the court overlooked giving effect to the indeterminate sentence law as provided by Art. 775, C.C.P., Vernon’s Ann. C.C.P. art. 775. The sentence is amended to direct that the punishment be confinement in the penitentiary for not less than two nor more than ten years.

As thus amended the judgment is affirmed.

On State’s Motion for Rehearing

HAWKINS, Presiding Judge'.

Conviction was for cattle theft, with punishment assessed at ten years in the penitentiary.

At a former day of the present term, to-wit, on November 6, 1940, a judgment of affirmance was entered. In a motion filed December 12, 1940, the representative of the State calls attention to the fact that no notice of appeal appears in the transcript forwarded to this court, and, therefore, the court was without jurisdiction to entertain the appeal.

The motion of the State is granted, the judgment of affirmance is set aside, the mandate of this court reflecting said judgment is recalled, and the appeal is now dismissed.


author: BEAUCHAMP, Judge.

text:
    JONES v. STATE.
    No. 21262.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Bennett & Bennett, of Normangee, and Hughes & Monroe, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Grimes County, Texas, for the offense of cattle theft and, upon an enhanced penalty allegation, given a sentence of ten years in the penitentiary, from which he appeals.

The first question for our consideration is the sufficiency of the evidence. The state relies for conviction principally on the testimony of Luther Sloan, a boy eleven years of age, and of Thomas Hall, who, it appears, testified as an accomplice witness. The evidence making him such is not clearly understood, but he was at the time serving a term in the penitentiary on a plea of guilty for cattle theft and the court charged the jury that there must be other evidence corroborating his.

J. Marcus Smith testified to the ownership of seven calves, one of which being the calf alleged to have been stolen by appellant. It disappeared from his pasture on September 14, 1939. Luther Sloan, who was living on the place with his mother who was occupying the house with Thomas Hall and his mother, said that about the middle of July he had been fishing and on his way back saw appellant and a negro with a reddish brown calf tied down. Near it was a truck. He did not see them put it in the truck, take it away or do anything else. Upon reaching his home he told Thomas Hall about this occurrence. The boy testified positively that this was in the month of July. Mr. Smith saw his calf at a later date and- places its disappearance as September 14. Some time during the month of September appellant approached Thomas Hall in the town of Huntsville and asked him to engage himself with appellant in disposing of some stolen cattle. He says I got one from Marcus Smith’s pasture and butchered it. He told the witness Hall that he could get more cattle than he could dispose of. What followed and what connection Hall had with it is not revealed, but this testimony by Hall and that of Luther Sloan constitute the state’s case.

We find no evidence which will corroborate the testimony of Hall to any degree. Had the evidence given by Luther Sloan placed the date at a time consistent with the disappearance of the calf and the statement made to Hall by appellant, it might, under so*me circumstance, be considered as corroborating evidence. The time element is not the only weakness in it as the record appears before us, but it does make it an impossibility.

We recognize the chances for error in dates and the possibility that Mr. Smith might have been mistaken as to the time his calf disappeared, as well as the fact that Luther Sloan could have been mistaken as to the time he saw the things take place which he testified about, but evidence is evidence and this court is without power to change it in order to make it consistent, particularly in the nature of the issue before us. If an issue gets in the way of a proven fact it may become possible to excuse it or explain it away, but that is quite different to the problem with which the state is confronted in the instant case. Here we are called upon to rebuild it so as to construct something which the evidence does not do. We are unable to so view the testimony.

Under the court’s charge and in view of the case as it is before us, we think the jury did not have sufficient corroborating testi..mony to support the witness Thomas Hall and for this the judgment of the trial court will be reversed and remanded.

A question of importance in this case which we think must be decided arises on enhancement of the penalty.

Appellant had been convicted of a similar offense and served a term in the penitentiary. Subsequently the Governor granted him a full pardon. An allegation is found in the indictment setting out the former conviction and, upon proof of such former final conviction for a similar offense, appellant was given the highest penalty for cattle theft.

It is presented that because of the full pardon granted to him by the Governor, the state cannot now utilize that conviction for the purpose of enhancing his penalty in the present case. That this court has so held by a majority opinion in Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416, must be conceded. The very question was definitely decided in favor of appellant’s contention in that case.

In view of the wording of our statute and in view of the decisions of our courts in this and in other states, as well as of the Supreme Court of the United States, we feel that the question is before us to be passed on and that we must do so in the light of the authorities and reasoning, even those referred to in the Scrivnor case, and that in so doing w-e are at liberty to follow the Scrivnor case or refuse to do- so.

Blackstone has discussed the question and, of course, from the standpoint of the English Government and the relationship which the King bore to the decisions of the courts, at the time he wrote not taking into account a government like ours with three distinct and separate branches, the legislative, the executive and the judicial. The King had the power, upon appeal to him, to set aside the orders of the court. He alone could do so for the courts had no power over their final judgments. The executive in our form 'of government has, no such power. He can pardon, but, “as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate th'e fact of the commission of the crime and the conviction therefor; it does not wash out the moral stain. As has been tersely said, ‘it involves forgiveness and not forgetfulness.’’’ 46 C.J. 1193; United States v. Swift, D.C., 186 F. 1002; State v. Hazzard, 139 Wash. 487, 247 P. 957, 47 A.L.R. 538; Sipanek v. State, 100 Tex.Cr.R. 489, 272 S.W. 141.

In United States v. Swift, supra, it is said at page 1016 of 186 F.: “Amnesty or pardon obliterates the offense * * * to such extent that for all legal purposes the one-time offender is to be relieved in the future from all its results; but it does not obliterate the acts themselves. * * * it does not close the judicial eye to the fact that once'he had done the acts which constituted the offense.”

In State v. Edelstein, 146 Wash. 221, 262 P. 622, at page 630, it is said that the weight of authority is against appellant’s contention.

While earlier editions of Bishop on Criminal Law may be quoted as it was in the Scrivnor case in favor of that opinion, the Ninth Edition, par. 963, subdivision 4, says: “A person who has received clemency but instead of reforming persists in his evil ways certainly should not as to a subsequent offense be treated better than if the pardon had been denied. Accordingly the Kentucky court has held that Such a pardon does not relieve him from any penal conse.quences resulting from his subsequent offenses, and this reasoning has been adopted by the United States Supreme Court.”

We may concur in a statement that Mr. Bishop himself was more learned than those responsible for the revision of his work. We must also consider that they had additional authorities, and if and when they chose to write differently, we may well consider that they had good authority for doing so. They had what Mr. Bishop himself had said, and they had the opinions, of learned judges of all the courts of the land who, no doubt, had thoroughly considered the view taken in the early work as well as the changing conditions and purposes under and for which pardons are now being granted. If the Supreme Court of the United States and the. other courts have departed from the line of thought earlier noticed by Mr. Bishop, we will not be embarrassed to do so, particularly where, as in this case, the reasoning appeals to us as being’ sustained and in accord with the intention of the Legislature.

We will note some of the authorities considered by the Supreme Court of the State of Washington in the Edelstein case which we think support that conclusion and impel us to follow it as the law of this state.

Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989, 990, 88 Am.St.Rep. 303, held that: “The pardon relieved the convict of the entire penalty incurred by the offense pardoned, and nothing less or more. It neither did nor could relieve from any .penal consequence resulting from a different offense, committed after the pardon, and never pardoned. The increased punishment prescribed by the statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last, as aggravated by its repetition of the same crime. * * In any aspect, the augmented punishment is for the last, and not at all for the first, offense; * *

One of the leading cases on the subject is People v. Carlesi, 154 App.Div. 481, 139 N.Y.S. page 309. In it the court quotes with ‘approval from an opinion by Mr. Justice Fields in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. The New York court approved the holding to the effect that the conviction was not obliterated by the pardon, but remained a fact in the past history of defendant, holding that the punishment for the second offense was solely for that and not at all for the first offense, otherwise the statute providing for increased punishment for second offenses would be unconstitutional. This is further supported by People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 88 N.E. 38. It is further said that the fact of a former conviction is an element merely in determining the criminality of the second offense. It is then observed that the Legislature of New York, as it has done in Texas, viewed one who commits a crime after having been convicted of another crime as a greater offender than he would have been had he never committed the first offense and the punishment is for the second offense, to which a greater degree of criminality is not lessened by the fact of a pardon which affords him an opportunity to become a law-abiding citizen. The Carlesi case went to the Supreme Court of the United States (see Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843), and was upheld in an opinion by Justice White, who undoubtedly approved of the reasoning of the New York Courts and the authorities therein relied upon.

The enhancement statute is Article 62 of the Penal Code of Texas, which reads as follows: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

Whatever might have been the force and effect of the pardon as it originated in an early date appears to the writer to be immaterial. In our state, as in the other states of the Union, the executive is not given appellate jurisdiction over the acts of the judicial branch of the government, and without which he can have no power to destroy its judgments and decrees. He must take them as he finds them. In penal cases it becomes the duty of the executive branch to enforce the laws as written and interpreted. Clemency power is vested in the Governor to the extent only that he can remit fines imposed which remain uncollected and discharge the convict from further penal service. Prior to his proclamation so doing he exercises no influence on the judgment of conviction. He has no power to restore the convict to his license which may have been cancelled by reason of his conviction. He cannot set aside the divorce which the convict’s spouse has obtained on the ground of such conviction. He cannot restore him in his social standing contrary to public opinion and the edicts of the social order, or societies to which he once belonged. In civil actions for libel the publisher of the story of plaintiff’s conviction may prove the fact even though a full pardon has been granted.

Our own court has recognized the difficulty of its former decisions in writing on the subject in Warren v. State, 127 Tex.Cr.R. 71, 74 S.W.2d 1006, wherein it was called upon to apply the suspended sentence law, but avoided the impossible situation by the fact that the pardon therein questioned was a conditional one. Warren had asked for a suspended sentence which the trial court refused to submit to the jury because he had been convicted many years previously of another felony. In behalf of his application Warren submitted a pardon by the Governor, by reason of which he claimed, in accordance with the holding of this court, that his former conviction had been entirely wiped out. It recited on its face that Warren was granted a full pardon, restoration of citizenship and the right of suffrage. It was granted before the expiration of his sentence and was tp become effective upon his discharge. Holding this to be a conditional pardon even though time had wiped it out, the judgment of the trial court was affirmed. Judge Hawkins concurred in the affirmance, but dissented on the reasoning adopted and, consistent with his dissent in the Scrivnor case, said that the trial court would be correct even if the pardon be wholly unconditional.

If the majority had been willing to say in the Warren case that the pardon of the Governor wiped out the existence of the fact so that the applicant for a suspended sentence may file his affidavit stating that he had never been convicted of a felony in this state or any other state, they could easily have clarified the situation by so holding. Undoubtedly, the opinion discloses an unwillingness to do so. If the full and unconditional pardon of the Governor wipes out the existence of the fact for one purpose it must have wiped it out for all purposes.

Again this court has consistently held that a witness may be examined as to his previous conviction for the purpose of enlightening the jury as to his credibility and this though the Governor had granted him a full and unconditional pardon. We find no condition under which our courts have ever held the Governor’s pardon to effectively wipe out the existence of a fact, save and except in the application of the enhancement statute. Our holding herein will be consistent with the holding on the same subject in all other cases.

The Governor can forgive the penalty, but he has no power to direct that the courts shall forget either the crime or the conviction. The pages written by the court’s decree are in the minutes still.

“The Moving Finger writes; and, having writ,

Moves on; nor all your Piety nor Wit Shall lure it back to cancel half a Line, Nor all your Tears wash out a Word of it.”

All former decisions of this court holding contrary to the view herein expressed are hereby overruled, and the reasoning of the Supreme Court of the State of Washington in the Edelstein case, supra, and the courts of the State of New York and of the- Supreme Court of the United States in the Carlesi case are each herein referred to and adopted as the conclusion of this court on the question herein discussed.

Another question raised by the appeal is on the validity of the indictment. J. Marcus Smith, -the injured party, was foreman of the grand jury which indicted appellant. No motion was made and no steps taken at the time of the impaneling of the grand jury to have him removed therefrom, but it is now -contended that his service on the grand jury invalidated the indictment. The question has been passed on and we are unable to agree with appellant’s contention. Staton v. State, 93 Tex.Cr.R. 356, 248 S.W. 356.

For the insufficiency of the evidence, the judgment of the trial court is reversed and the cause remanded.


author: JACKSON, Chief Justice.

text:
    PYBUS v. PYBUS.
    No. 5247.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 13, 1941.
    Rehearing Denied Feb. 10, 1941.
    J. Shirley Cook, of Vernon, for appellant.
    Berry, Warlick & Bunnenberg, of Vernon, for appellee.
   JACKSON, Chief Justice.

Mrs. Ruby Louise Pybus, the appellee, instituted this suit in the District Court of Wilbarger County against the appellant, William Wiley Pybus, to obtain a judgment for divorce, for a partition of their community property and to require him to account to her for one-half the rents and revenues derived therefrom.

The appellee predicated her grounds for divorce on an allegation of cruelty to the effect that shortly after they were married he began a course of unkind, harsh and tyrannical conduct toward her which continued until she finally separated from him on or about the 6th day of December, 1939.

The appellant answered by general demurrer and denied generally and specially that he had ever treated the appellee in an unkind, harsh or cruel manner or that he had ever questioned her fidelity or manifested a jealous disposition toward her.

The case was tried before the court without the intervention of a jury and judgment rendered granting a divorce and a partition of the property described and a finding that since the property was not susceptible of partition that it be sold and the proceeds be divided, from which judgment this appeal is prosecuted.

The appellant challenges as error the action of the court in rendering judgment dissolving the bonds of matrimony between him and the appellee for he contends the testimony is wholly insufficient to support such judgment.

The record shows the plaintiff had been married to a former husband from whom she had been divorced prior to her marriage with the defendant and that she and her first husband had three children whose ages at the time of this trial were eighteen, sixteen and thirteen, respectively. After her separation from the first husband she was employed by the defendant to work in his cafe at $7 per week. Thereafter, the time not being shown, she became an equal partner in the cafe business which she and the defendant operated in the city of Vernon, Texas.

The defendant was divorced from his former wife in 1937 and he and the plaintiff were married to each other on May 26, 1938.

She testified that she had known the defendant six or seven years before their marriage and that they had been partners in the cafe for more than five years previous to their wedding. She worked at the cafe all the time after she was first employed by the defendant until she left him on December 6, 1939. In connection with the cafe they sold beer and the license authorizing the sale of the beer at the cafe was obtained in the name of plaintiff because the defendant’s license had been can-celled.

In contemplation of their marriage they purchased a place and furnished it for their home each advancing one-half of the payments made, presumably out of their partnership funds, however, this property was purchased partly for cash and partly on time and the unpaid balance was to be discharged in installments. After they married they secured possession of the property purchased for a home and occupied it for a while but she testified the defendant decided it would be to their advantage to move to a two-room apartment they had connected with the cafe and rent out the home since they would be nearer the business and their work, would not have to get up so early and could apply the monthly rent collected for the place on the deferred payments against the home and furniture which he anticipated they might not be able to meet otherwise. She says she would have preferred living at the home place but as they wanted to pay their debts and get the property in the clear she thought it best to move to the apartment, which they did, where they lived with some of her children and one of his boys who was there a part of the time. They both worked in the cafe, both had access to the cash register and both superintended the business. Some time previous to the date of their separation she' had a nervous breakdown, consulted a doctor who advised her she had overworked, overtaxed her strength, must rest and refrain from the use of all intoxicating liquors. They attended dances and other places together before they were married and he usually got mad if she danced with another man more than once because he was jealous, though without any cause. She thought if she married him they would get along better but they did not. The acts of cruelty which she testified to against him as grounds for divorce were that he would disagree with her whether she was right or wrong; he would get mad if she danced with another man as much as twice, fuss, jerk her around and want to go home; that on the occasion when she left him they attended a party, he got mad, began drinking, quarreled about her dancing with another man, wanted to go home and divide up their furniture and property saying he would not put up with her conduct any longer. She was not ready to go home and told him she would come later with friends and he said if any one brought her home it would be too bad for them and her; that he went home, packed her clothes, got his gun and reported to the officers that she had run off with another man; that this was not true, embarrassed and humiliated her and that she went home with a friend that night. However she testified his conduct and accusations did not impair her relation with her friends or her enjoyment of their society but she got angry about the way he acted and left but he didn’t know that she was leaving; that he had never accused her of infidelity except about her running off with this man this one night; that he never abused her or called her bad names. She says she drank a bottle of beer occasionally but admits that the doctor advised her that she must take a rest and refrain from drinking intoxicating liquor. After she left him he returned, apologized to her, said he had made a mistake, would take all the blame and had tried practically every day since to get her to make up with him and start over; that soon after she left him she went to East Texas and stayed a while and he came after her and brought her back; that he sent her groceries after she came back, paid the bills, hired some one to do her work and that she had been down to the cafe three or four times every week since she returned, had access to the cash register but exercised this privilege only two or three times for small amounts of money. She says she was frightened when he got his gun the night she left him and that she did not believe she could live happily with him “because he never has been able to provide a place for me to live and me to stay at it, because he never could pay the bills; I always had to help work and pay the bills, and so he never has had a place for me to stay, and therefore, he is not in as good a shape as when I quit him, and he couldn’t make it now because he hasn’t got as good a business now as when I left him, and I don’t think I could live up there without having to work myself.” She also says that she has never recovered from her nervousness and is afraid that she would not get well and therefore could not be happy as his wife. The treatment of which she complains apparently occurred at parties or other public gatherings but no One present was put on the stand to corroborate her evidence.

The defendant testified that he and the plaintiff had been partners since 1933 or 1934; that he did not know she was leaving when she quit him or why she left as she had made no complaint to him of his conduct and he didn’t even know she was offended at what occurred at the party; that he was not jealous, was not offended by her dancing with other men; that she had been nervous for some time before she quit him and the doctor advised her not to drink beer or intoxicating liquor and really the' only differences they ever had were trivial and arose almost in every instance out of his efforts to persuade her to discontinue drinking; that he had been to see her every night since he had brought her from East Texas and had done everything he knew to persuade her to return and continue to live with him as his wife; that she drank too much at times, gave the time, place and the parties with whom she was on the occasions of her excessive drinking, none of whom denied his evidence. Three witnesses who had been employed and worked at the cafe at different times in the capacity of cook or waitress testified that the plaintiff had been at the cafe, participated in the management thereof; had access to the cash register and that they had never seen the defendant mistreat or heard him quarrel or abuse the plaintiff in any way but he had always been kind and considerate and that they had seen the plaintiff drink on occasions. The plaintiff could not have really feared the defendant nor have been made nervous by his presence.

The courts in granting a divorce on “excesses, cruel treatment or outrages” or such conduct as renders the living together of the spouses insupportable must consider the conduct relied on to show cruelty in the light of all the facts and circumstances surrounding the parties, including the character/refinement and sensibility of the parties. The marriage contract is an obligation more sacred ’than a purely commercial transaction and the bonds of matrimony should not be dissolved for trivial matters or insignificant disagreements between the husband and wife.

Article 4632 of Vernon's Annotated Civil Statutes provides that a decree for a divorce “shall be rendered upon full and satisfactory evidence” which in the judgment of the court supports the material facts alleged in the petition. This language has been construed by the Supreme Court in Moore v. Moore, 22 Tex. 237; Murray v. Murray, 66 Tex. 207, 18 S.W. 506.

In Yosko v. Yosko, Tex.Civ.App., 97 S.W.2d 1023, 1025, it is said:

“More strict rules and stronger evidence is, and should be, required to dissolve the marital union and contract than would be sufficient to justify the setting aside of an ordinary contract. Article 4632, R.S. 1925; Parks v. Parks (Tex.Civ.App.) 55 S.W.(2d) 242; Aylesworth v. Aylesworth (Tex.Civ.App.) 292 S.W. 963; Blake v. Blake (Tex.Civ.App.) 263 S.W. 1075, and authorities in each cited.
“In such cases the findings of a jury, if a jury is used, or the findings of the trial court, on the facts, are not binding upon the appellate court, as in ordinary proceedings Aylesworth v. Aylesworth, supra; Jasper v. Jasper (Tex.Civ.App.) 2 S.W.(2d) 468.”

See also Harrell v. Harrell, Tex.Civ.App., 261 S.W. 205; Erwin et al. v. Erwin, Tex.Civ.App., 231 S.W. 834; Lohmuller v. Lohmuller, Tex.Civ.App., 135 S.W. 751.

As we view this record the testimony does not satisfactorily establish excesses, cruel treatment or outrages of such a nature as to render the living together of plaintiff and defendant insupportable. The judgment depends almost entirely on plaintiff’s testimony, all of which is controverted.

The judgment is reversed and the cause remanded.


author: GRISSOM, Justice.

text:
    STATE v. LAYTON et ux.
    No. 2076.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 3, 1941.
    F. B. Caqdle, of Mt. Vernon, and Troy Smith, of Tyler, for appellant.
    R. T. Wilkinson, of Mt. Vernon, and C. E. Florence, of Gilmer, for appellees.
   GRISSOM, Justice.

This is an appeal by the State of Texas from a judgment in a condemnation proceeding. The case was submitted to the jury on special issues inquiring, in substance, as follows: (1) What was the market value of the strip of defendants’ land condemned, at the time it was condemned? (2) What was the market value of defendants’ land, exclusive of the strip condemned, immediately before the strip was taken for highway purposes ? (3) What was the market value of the remainder of defendants’ tract of land immediately after the taking of the strip condemned? Said special issues were answered as follows: (1) $75 per acre; (2) $75 per acre; (3) $60.44 per acre.

It is clear from the evidence adduced on the motion for a new trial that the jury agreed to allow the defendants, Layton and wife, $500 damages to the land not taken, and then proceeded to answer the issues so as to compel a judgment for that amount. In other words, the jury ignored special issue No. 3, inquiring what was the market value of the remainder of defendants’ tract of land immediately after the taking of the strip condemned, and, instead of answering what the jurors believed from the evidence to be the then market value of such land, agreed to fix the defendants’ damages at $500, and undertook to find the land values before and after the taking so that a judgment for the defendants for $500 damages to the land not taken would result.

This identical question was passed upon by the Amarillo Court in Murray v. Morris, Tex.Civ.App., 17 S.W.2d 110, 112, writ dismissed. In Simmonds v. St. Louis, B. & M. R. Co., Tex.Com.App., 29 S.W.2d 989, 990, Judge Sharp, in discussing misconduct of a jury, under a comparable situation, said: “In other words, it is the duty of the jury to make findings of fact from the evidence, and that of the court to apply the law to the findings made by the jury and render a proper judgment thereon. The courts of this state have held, and it now seems to be the settled rule, that the purpose of article 2189 is to prevent a jury from first determining that they will give a party to the suit á verdict, and to then frame their answer so as to carry out their agreement. That the principal object in submitting a case to the jury upon special issues is that they should be removed from any bias or prejudice in favor of or against the parties by reason of the effect of their answers. The jury should answer each special issue as they find the facts to be from the evidence, without regard to its effect upon the judgment to be rendered in the cause.”

We think the evidence in the instant case clearly shows an agreement among the jurors to give the defendant $500 as damages to the land not taken and that they then framed their answers so as' to carry out such agreement. The jury violated the court’s instruction reading as follows: “You will not be concerned with what effect your answers may have on the final judgment which must be rendered by the court.” This was reversible error under the foregoing authorities. See, also, Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372, 375; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Moore v. Ivey, Tex.Com.App., 277 S.W. 106; Gulf, C. & S. F. R. Co. v. Harvey, Tex.Com.App., 276 S.W. 895; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213.

Defendants’ counsel on cross-examination of a witness for plaintiff asked: “Don’t you know it to be a fact that Hill was paid $700 for two acres of land for right-of-way on the same road near the defendants’ land?” The question was objected to by the State because it was irrelevant, immaterial, highly prejudicial to plaintiff’s rights and not in response to any issue in the case. The jury was instructed by the court not to consider the qttestion. The State presented a written motion to withdraw the case from the consideration of the jury and declare a mistrial, which motion was overruled and the State excepted. Said action is assigned as error,

The value of the land sought to be condemned and the damage to the remainder of the tract were sharply contested issues. The question propounded was improper and an answer thereto inadmissible. An affirmative answer thereto could have had only one effect; that is, to advise the jury that the State of Texas had paid another citizen $700 for two acres of adjacent land, while it was undertaking to place a valuation on the defendants’ land (1¾ acres) at from $50 to $100 per acre, and to show that no damage would result to the land not taken. Appellant contends the question had done'its damage and that the court’s instruction not to consider the question was insufficient to eliminate the prejudicial effect of counsel’s question. The question was improper. It is clear that the probable effect of the question was to cause the jurors to believe that the State was attempting to impose upon these defendants, and under similar circumstances had paid $700 for two acres of adjacent land, but were unwilling tO‘ pay these defendants more than $50 to $100 per acre, and, were unwilling to pay any damages to the land not taken.

We recognize that generally the mere asking of an improper question is not held to be reversible error. However, it must be admitted that the asking of the question was improper and that it is not clear that the jury was not improperly influenced thereby. The verdict indicates-they might have been. The harmful effect would have been more certainly obviated had the witness been permitted to answer and had he answered in the negative.

In Levinski v. Cooper, Tex.Civ.App., 142 S.W. 959, 962, the plaintiff was suing for damages for the death of his son in defendant’s swimming pool. Plaintiff’s counsel propounded the following question to the defendant: “Isn’t it a fact that you were so convinced that it was a dangerous place that you induced an indemnity company to make a bond for you ?” The court instructed the jury that the question was improper and that they should not consider it. A number of cases were cited by the court of civil appeals in which the mere asking of an improper question was held to be reversible error. The court said: “The question in this case of liability vel non, under the facts, was a closely contested issue; and it seems to us that the asking of this question, under the circumstances, was highly prejudicial to the rights of appellant, and may have, and likely did, influence the jury in returning their verdict. We therefore sustain the assignment presenting this question.”

The evidence solicited by the question was clearly improper and inadmissible. 16 Tex.Jur. 1037. Judge Neill, in Sullivan v. Missouri, K. &. T. R. Co., 29 Tex.Civ.App. 429, 68 S.W. 745, 748, in a condemnation case, said: “It is not competent as evidence of value to prove offers for adjacent and similar property, or the price at which the owners of such property have offered it for sale. Lewis, Em.Dom. (2d Ed.) 446, and authorities cited in note.” Missouri Pac. R. Co. v. Mitchell, 72 Tex. 141, 10 S.W. 411.

To the same effect, see Gulf, C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556, 557; Houston Ind. School Dist. v. Reader, Tex.Civ.App., 38 S.W.2d 610, 612; Dickey’s Estate v. Houston Ind. School Dist., Tex.Civ.App., 300 S.W. 250, 252; Missouri, K. & T. R. Co. v. Thomas, 63 Tex.Civ.App. 312, 132 S.W. 974, 976; Coon v. Manley, Tex.Civ.App., 196 S.W. 606; Strawn Coal Co. v. Trojan, Tex.Civ.App., 195 S.W. 256.

For the errors discussed the judgment is reversed and the cause remanded.


author: LESLIE, Chief Justice.

text:
    TEXARKANA BUS CO., Inc., v. MOTON.
    No. 2080.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 10, 1941.
    Lincoln & Harris, of Texarkana, for plaintiff in error.
    Geo. F. Edwardes, of Texarkana, Ark., and William E. Wiggins, of Texarkana, for defendant,in error.
   LESLIE, Chief Justice.

Josephine Moton instituted this suit against the Texarkana Bus Company, Inc., to recover damages alleged to have been sustained by her in an accident due to negligence of the defendant while she was a passenger upon its bus’. The defendant answered by general demurrer, general denial, etc. The plaintiff introduced all her testimony and rested her case. The defendant then moved for an instructed verdict but the court thereafter granted plaintiff permission to take a nonsuit and dismissed the case. The defendant protests this action of the trial court and appeals from said ruling and judgment.

It is the contention of the defendant that after the court had announced his ruling upon the motion for an instructed verdict' the plaintiff’s request for a nonsuit came too late.

The judgment of the trial court is very specific and fair in the statement of what transpired at the trial. The proceedings deemed material to the point raised are fully reflected by the judgment in the following excerpt therefrom:

“Thereupon and after the plaintiff had completed her testimony and rested her case, came the defendant by its attorneys of record and moved the court to instruct the jury to return a verdict for the defendant. The court thereupon retired said jury and the court heard arguments of the respective attorneys for the defendant and for the plaintiff upon said motion; and the court after hearing arguments of counsel for both sides and being fully advised with respect to' said motion and the law concerning the same, and of the facts in evidence, finds and is of the opinion that' said motion of the defendant should be granted.
“It is, therefore, ordered, adjudged and decreed by the court that the said motion of the defendant for the court to instruct the jury to return a verdict for the defendant be and the same is hereby in all things granted. On the granting of said motion counsel for plaintiff in open court advised the court that the plaintiff zvould not take a nonsuit, and the court thereupon caused the' jury to be brought back to the jury box, and proceeded with his instructions to the jury to return a verdict for the defendant in accordance with said motion; and while the court was so instructing the jury in keeping with his ruling upon said motion, and was instructing the jury to return a verdict for the defendant and before said verdict had been written out and signed by one member of the jury as foreman, and before the court had completed his instructions to the jury in this respect, plaintiff’s counsel arose and requested the court to permit the plaintiff to take a nonsuit, to this motion and request of the plaintiff at this stage of the proceedings, the defendant by its attorneys objected and protested on the grounds that the same came too late; but the court overruled such objection and protest of the defendant and granted the motion and request of the plaintiff for a nonsuit in said case.” (Italics ours.)

It is obvious that from the judgment that the plaintiff’s request for nonsuit did not come until after the court had announced his decision and ruling in effect sustaining the motion for a peremptory instruction. Hence, the request for nonsuit came too late under the following authorities: Art. 2182, R.S.1925; Texas Electric Ry. Co. v. Cox, Tex.Com.App., 49 S.W.2d 725, 89 A.L.R. 11; Cox v. Texas Electric Ry., Tex.Civ.App., 32 S.W.2d 669; Jacobs v. Gasow Howard Motor Co., Tex.Civ.App., 55 S.W.2d 641; Linguist v. Walker, Tex.Civ.App., 108 S.W.2d 737; Wood v. Moers, Tex.Civ.App., 289 S.W. 1017; Adams v. St. Louis & Southwestern Ry. Co., Tex.Civ.App., 137 S.W. 437; Continental State Bank v. Waggoner, Tex.Civ.App., 48 S.W.2d 1026. We are of the opinion that any fair interpretation of these authorities leads directly to the conclusion announced.

In the Cox case it was held in an opinion by the Commission of Appeals, that “Where the defendant moves for a peremptory instruction, the plaintiff’s right to a nonsuit is controlled by that portion of the statute applicable to cases tried before the court without the intervention of a jury. Under such- circumstances, the request for a nonsuit is timely if made before the judge has in open court announced his ruling granting such motion.” As authority for that conclusion the opinion in the Cox case cited Adams v. St. Louis & Southwestern Ry. Co., and Wood v. Moers, supra.

From the Adams case [137 S.W. 441], cited with approval by the Commission of Appeals opinion in the Cox case, we have the following holding: “ * * * where a-motion is made for an instructed verdict, as in this case, and the court decides that such motion should be sustained, the question of when the plaintiff can take a non-suit must be determined by the provisions of the statute governing a case being tried before the court without a jury. In the latter case, by our statute, a nonsuit may be taken at any time before the'decision of the court is announced. Whether there was any evidence in the case to sustain a verdict- in favor of the plaintiff was a question of law for the determination of the court; and when the court decided there was no such evidence, and stated to counsel for - plaintiff that he would sustain the motion to instruct the verdict-for the defendant, his decision was practically 'announced, and the whole case determined against' the plaintiff, and she could not thereafter take a nonsuit. The entering of the order sustaining the motion for .an instructed verdict, and the signing of such verdict by one of the jurors selected to try the case, were mere ministerial acts which did not have to be performed, before the plaintiff’s right to a nonsuit would be barred.”

The Court of Civil Appeals, on motion for rehearing in the Adams case, withdrew some portions of the opinion, but not that set out above, and in later cases the rule there laid down has been followed.

For instance, in Wood v. Moers, Tex.Civ.App., 289 S.W. 1017, 1018, commenting upon the rule taken from the Adams case, above quoted, it is stated that “Were the rule otherwise, there would rarely, if ever, be such a result in a trial as a judgment upon an instructed verdict for the defendant, because in such cases, the plaintiff would probably resort to a non-suit, rather than suffer the consequences of an instructed verdict against him.”

Later authorities have cited with approval the rules above stated and here employed. It is plainly to be seen from the court’s judgment as a whole, and especially the portions we have italicized that the request for a nonsuit came after the court’s ruling and decision on the motion for a peremptory instruction. The request was then too late.

For the reasons assigned, the judgment of the trial court is reversed and the judgment is here rendered for defendant.


author: RICE, Chief Justice.

text:
    FRUGE v. VITOPIL.
    No. 2275.
    Court of Civil Appeals of Texas. Waco.
    Jan. 23, 1941.
    Lewis & Ingram, of Houston, for appellant.
    J. G. Minkert, of Bryan, for appellee.
   RICE, Chief Justice.

Appellant appeals from an order of the district court of Brazos county overruling his plea of privilege to be sued in Plarris county, where he resided.

Upon the hearing by the court of the issue of venue appellee offered no evidence; and agreed in open court that the residence of appellant at the time of the filing of this cause and at the time of the presentation of the plea of privilege was Houston, Harris county, Texas.

Appellant assigns error to the action of the court in overruling his plea of privilege, in that no proof was made by appellee of the facts set out in her controverting affidavit, and she failed to discharge the burden of proof cast upon her by law.

We sustain this assignment. The burden rested upon appellee to establish by a preponderance of the evidence introduced on the hearing the facts upon which she relied to sustain venue in Brazos county. She offered no evidence. 43 Tex.Jur. 851, sec. 112; Curlee Clothing Co. v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677.

Because it is apparent that this case was not developed in the trial court, it is our opinion that it should be remanded for a further hearing. Lanford v. Smith, Chief Justice, 128 Tex. 373, 99 S.W.2d 593.

The judgment of the trial court is reversed and the cause remanded.


author: MURRAY, Justice.

text:
    ST. JOHN v. ARCHER et al.
    No. 10840.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 12, 1941.

      Crane & Glarner, of Raymondville, and Arthur A. Klein, of Harlingen, for appellant.
    B. D. Kimbrough, of McAllen, for appel-lees.
   MURRAY, Justice.

Mrs. Alice St. John, administratrix of the estate of A. D. Struthers, deceased, instituted this suit on February 10, 1939, in the County Court of Willacy County, against E. W. Archer seeking to recover the amount of principal, interest and attorney’s fees alleged to be due on one certain promissory note in the principal sum of $503.35, dated April 2, 1934, due thirty days after date, payable to A. D. Struthers, signed by E. W. Archer, and providing for 10% interest and 10% attorney’s fees.

Archer answered with a general demurrer, general denial, a plea of limitation, and also interpleaded Mrs. Henrietta Kinser, who, it was alleged, was asserting title to the note in suit. Mrs. Kinser answered alleging that A. D. Struthers had given her the note in suit during his lifetime and that she was the legal owner and holder of the note and. entitled to recover thereon.

The trial was to a jury, but after hearing evidence the trial judge granted Mrs. Henrietta Kinser’s motion for an instructed verdict, and upon such verdict proceeded, on the 24th day of November, 1939, to render judgment to the effect that Mrs. Alice St. John, administratrix, recover nothing and that Mrs. Henrietta Kinser recover from E. W. Archer the sum of $860, being the amount of the principal, interest and attorney’s fees due on the note.

Mrs. Alice St. John, administratrix, filed a formal motion for a new trial and on December 19, 1939, filed an amended motion for new trial, which was granted, a new trial ordered, and the cause restored to its place on the docket for trial at the next regular term of the court.

All of the above proceedings were had before the regular County Judge of Wil-lacy County, Honorable Charles R. Johnson. On December 24, 1939, Judge Johnson left the County for the holidays and never returned to the County until January 1, 1940. On December 30, 1939, Honorable Kennedy Smith was elected special County Judge of Willacy County and heard the motion of Henrietta Kinser to vacate the order of December 23, 1939, granting Mrs. St. John, administratrix, a new trial. This motion was granted by the special judge and the amended motion for a new trial overruled, from which action and judgment Mrs. St. John, as such adminis-tratrix, and E. W. Archer have prosecuted this appeal.

We are met at the threshold of this case with the question of whether the special judge had jurisdiction, under all of the circumstances, to set aside the order of the regular judge granting a new trial.

It is clear that a judge who enters an order or a judgment ordinarily retains jurisdiction over such order or judgment until the end of the term, or until such judgment passes beyond his control by reason of some other provision of the statute and he may change, amend or set aside such an order or judgment without hearing further evidence, and even upon his own motion. But his successor in office, or a special judge selected to act in his place and stead, does not have such control of orders and judgments rendered by such prior judge. It would seem that if the first judge had jurisdiction to render such order or judgment, that such succeeding or special judge would not have jurisdiction to change, amend or set aside such order. Staples v. Callahan, Tex.Civ.App., 138 S.W.2d 206; State ex rel. Bloom v. Superior Court, 171 Wash. 536, 18 P.2d 510; State ex rel. Nelson v. Superior Court, 184 Wash. 97, 49 P.2d 903, 54 P.2d 1215.

In the case at bar complaint is made that appellant’s amended motion for a new trial was not placed upon the motion docket, a copy was not filed for use by Henrietta Kinser, and neither Henrietta Kin-ser nor her counsel were notified of the filing of the amended motion for a new trial, or the time that it would be heard. The failure to do any one of the three things complained of would not deprive the regular judge of jurisdiction to hear and determine the motion. The matter of a new trial is directed to the discretion of the trial judge and may be granted upon his own motion. McCurley v. Texas Ins. Co., Tex.Civ.App., 62 S.W.2d 992; Ellis v. Jefferson Ins. Co., Tex.Civ.App., 99 S.W.2d 953. The regular judge had jurisdiction to make the order granting a new trial and the special judge had no authority to set such order aside and enter a different order.

The special judge in effect reviewed the action of the regular judge, found error. therein, and on account of such error set aside the order of the regular judge and proceeded to enter that order which in his opinion should have been entered by the regular judge. When he did so he exercised appellate jurisdiction rather than trial jurisdiction.

The order of the special judge being improperly made leaves the order of the regular judge granting a new trial in full force and effect, and thus there was no valid order in the case from which an appeal could be taken. The case, therefore, now stands upon the docket of the County Court of Willacy County subject to trial.

The holding we have above made precludes us from passing upon any other questions presented. The judgment will be reversed and the cause remanded for a new trial.


author: WALTHALL, Justice.

text:
    RUNYON v. VALLEY PUB. CO. et al.
    No. 4014.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1940.
    Rehearing Denied Jan. 23, 1941.

      N. G. Cofer and West & Hightower, all of Brownsville, and Cofer & Cofer, of Austin, for plaintiff in error.
    Davenport & Ransome and H. L. Yates, all of Brownsville, for defendant in error.
   WALTHALL, Justice.

This proceeding presents a motion of defendants in error to dismiss this case on the ground that this court is without jurisdiction to hear and determine this cause for the reason that plaintiff in error has failed to have before this court Prudencio Hino-josa, one of the defendants in the trial court. Plaintiff in error was the plaintiff in the suit in the trial District Court, in which suit H. R. Hudson (now deceased), Carl C. Magee, J. M. Stein, Frank Walker, J. E. Cronenwett, B. I. Martin, Brownsville Herald Publishing Company, the Valley Publishing Company, and Prudencio Hino-josa, were the defendants, and all of the defendants.

Prudencio Hinojosa was a party defendant with the other defendants, as evidenced by plaintiff’s petition, was continued as a party defendant when the cause was submitted to the jury by the court in its charge submitting the several special issues disposed of in the judgment in said cause charging, as to each defendant, a conspiracy, and in reference thereto the publication of an alleged libelous matter, of which a more specific statement we need not make.

The point submitted by appellees in their motion to discuss appellant’s appeal is to the effect that plaintiff’s petition for writ of error fails to name or make Prudencio Hino-josa a defendant in error; nor does the writ of erronbond name or make Prudencio Hinojosa a payee in said bond; nor does the citation in error or the alias citation in error name Prudencio Hinojosa a defendant in error.

Article 2257 of the Revised Civil Statutes of this State, 1925, provides, in part: “The petition [writ of error] shall state the names and residences of the parties adversely interested.”

The Supreme Court, in Barnard v. Tarleton, 57 Tex. 402, and in Thompson v. Pine, 55 Tex. 427, 429, held the statute mandatory.

It appears from the transcript filed in this case, Prudencio Hinojosa was a party adversely interested to the interest of Robert Runyon in the case, and was a defendant therein through the trial; the issues as to him were submitted to the jury and the jury made findings thereon. The court in the judgment adjudged and decreed that appellant “take nothing by his suit as against each and all of the defendants herein, and that each and all of the defendants recover all costs incurred in this cause of and from the plaintiff,” and authorized that execution issue.

From that judgment appellant prosecutes this appeal.

The judgment disposes of all of the issues and the parties, and on its face is a final judgment.

In response to appellees’ motion to dismiss the appeal appellant insists the motion should be denied, first, because by the terms of the judgment Hinojosa was dropped from the suit, and refers to the first few lines of the judgment, in which it is stated that appellant and his attorneys, and the defendants, naming those who appeared, appeared by their attorneys, naming the attorneys (Hinojosa’s name is not mentioned among those who appeared), “and all parties announced ready for trial and submitted their exceptions to the court for its actions thereon,” which the judgment recites the court heard and acted thereon, to which action on the exception appellee excepted. The judgment, then proceeding, recites that the cause proceeded to trial, in which the court on the trial submitted to the jury on special issues the cause of action as to Hinojosa as he did to each of the other defendants. The judgment does not expressly by its terms and provisions drop Hinojosa from the suit.

The second suggestion of appellant on the motion is :. By the recitals o,f the judgment Hinojosa was not disposed of, hence the judgment as to him was interlocutory. Appellant refers to. Hickman v. Swain, Tex.Civ.App., 210 S.W. 548, as analogous. We have fully considered that case and have concluded that what is' there said does not control the instant case. The facts in that case are too lengthy to review here.

Appellant further submits that Hinojosa, though a party defendant in the suit and a. party to the judgment, this writ of error could properly be prosecuted without him, “because in this, a libel suit, all defendants are not necessary and indispensable parties to the several recoveries plaintiff sought to obtain, and in such cases plaintiff has the right, by writ of error proceedings, to attack only so much of the judgment with respect to the parties as he may elect.”

In this case on the trial the court submitted to the jury the several liability to the plaintiff of each of the defendants, including that of defendant Hinojosa.

On the issue of damages alleged to have been sustained by plaintiff by reason of the alleged conspiracy and libel, the jury found as to each defendant, including Hinojosa, that plaintiff had sustained no damage. The verdict was received and judgment was entered thereon that plaintiff take nothing by his suit, and plaintiff gave notice and appealed from that judgment.

Neither Prudencio Hinojosa nor his adverse interest to appellant in the suit was disposed of in any way by appellant in his appeal; Hinojosa and his interest were simply omitted by appellant in his appeal. We think the omitting of his name from the appeal bond might have been cured here by giving a new bond.

Appellant in his brief insists that a mutual mistake was made in preparing the judgment that was entered. It is not said in what respect a mutual mistake was made; it is not claimed that .it was understood or agreed that Hinojosa was to be released-from liability in entering the judgment. The court entered the proper judgment on the verdict. The error, if any, as we see it, was in not relieving Hinojosa from the suit in view of the appeal, if such was appellant’s intention; otherwise, the case presents an appeal from a judgment against several defendants but omitting “to state the names and residences of the parties adversely interested,” in violation of the rule.

Appellees’ motion is sustained, and the appeal is dismissed.