text:
    POPE v. STATE.
    (No. 3263.)
    (Court of Criminal Appeals of Texas.
    Oct. 21. 1914.)
    EMBEZZLEMENT (§ 11) — WHAT CONSTITUTES.
    Where accused, who was authorized to sign the name of the firm for which he worked, drew a cheek in the firm name and had a draft payable to his brother-in-law issued out of the proceeds, which draft accused used in payment of his own debt, signing the brother-in-law’s name to the draft, he was guilty of embezzlement of money, and not of the mere draft.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 9, 10; Dee. Dig. § 11.]
    Appeal from District Court, Potter County ; James N. Browning, Judge.
    D. W. Pope was convicted of embezzlement, and he appeals.
    Affirmed.
    Reeder & Dooley, of Amarillo, for appellant. Henry S. Bishop, Dist. Atty., and Crudgington & Works, all of Amarillo, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   HARPER, J.

Appellant was convicted of embezzlement, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant was bookkeeper and cashier of the Nobles Grocery Company, at Amarillo, Tex., with authority to draw checks and sign the corporation’s name thereto in payment of any debts due by the corporation. He drew a check on the Amarillo Bank & Trust Company, payable to the First State Bank, for $312.60, signing Nobles Bros.’ name thereto, by D. W. Pope. He carried this check to the First State Bank, where there was a draft due by Nobles Bros, for $107.42, which he paid, and then had St. Louis exchange issued for the remainder, $205.18, payable to his (appellant’s) brother-in-law, H. W. Tolbert. This draft or exchange appellant used in paying a debt due by him to Walter Crossett, indorsing the exchange in Tolbert’s and bis own name. The $312.60 check was, of course, charged to Nobles Bros.’ account by the Bank & Trust Company, they having money to their credit in that institution.

These facts are in no way disputed in the record, but clearly proven beyond all doubt, appellant’s contention being that if he embezzled anything it was the draft or exchange, and not money as charged in the indictment, and present the questions from several different viewpoints. Had appellant had the exchange made payable to Nobles Grocery Company, and subsequently appropriated it, there might be some strength to his contention, unless it was clearly shown that it was his intention to make use of it for his own benefit at the time he secured it. But no such case is presented, but the intention to appropriate is made manifest when he had the exchange issued in his brother-in-law’s name; the appropriation took place in having it so issued, and it was with his employer’s money in the bank he secured this draft to be issued. So it was at that very time an appropriation to his own use and benefit of that much money when he had the bank to issue the draft or exchange. The appropriation took place when he delivered the check, with the request that the exchange.,be issued and delivered to him. The evidence that he subsequently indorsed the draft in his brother-in-law’s name, so that it would be payable to him, and he then indorsed it in his own name when he delivered it to his creditor, is but evidence -that he had that intention and did embezzle the money when he had the draft or exchange issued in the name of his brother-in-law. The court correctly held that it was the money he embezzled, and not the draft or exchange. The various steps taken by him were but steps in the one scheme to appropriate his employer’s money, which he, by the confidence placed in him, had under his control to the extent he used the money in the bank in the purchase of the exchange payable to his brother-in-law.

The judgment is affirmed.


source: Caselaw Access Project

author: HARPER, J:

license: Public Domain

text:
    Ex parte CUMMINGS.
    (No. 3326.)
    (Court Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Habeas Cobpus (§ 113) — AppeaIt—Jurisdiction — Court of Criminal Appeals — Civil Pboceedings.
    Rev. St. 1911, art. 1529, provides that the Supreme Court shall have jurisdiction to issue writs of habeas corpus in all cases where any person is restrained by virtue of any order or commitment of a court or judge, on account of the violation of any order, judgment, or decree theretofore made in any civil cause, and shall have power, pending the hearing of the application, to admit to bail any person to whom the writ may be granted. Meld,, that where a relator was committed by a notary public for refusal
    to answer interrogatories pursuant to a commission to perpetuate testimony in a civil case, and a writ of habeas corpus was dismissed by the district judge, and the relator remanded, an appeal from such order lay to the Supreme Court, and not to the Court of Criminal Appeals.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.]
    Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.
    Habeas corpus on petition of O. S. Cummings. Erom an order dismissing the writ, and remanding the latter to custody, he appeals.
    Dismissed.
    L. A. Adamson and Lane, Wolters & Storey, all of Houston, for appellant. Hutcheson & Hutcheson, of Houston, and C. E. Lane, Asst. Atty. Gen., for the State. -¡

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J:

No statement of the evidence adduced on the hearing, if any, accompanies this record, and it appears to have been heard on purely questions of law. However, from the papers in the record, we ascertain that Ben Pumilia, in the district court of Harris county, obtained a judgment in the sum of $1,500 against the Bonded Underwriters of America Reciprocal Insurance Exchange. Thereafter Pumilia instituted proceedings in the justice court, as he recited, to perpetuate the testimony of O. S. Cummings to be used in an anticipated suit against unknown parties, who he alleged were liable for the payment of the judgment obtained against the. insurance company. Relator’s contention is that the purpose of the proceedings was not to perpetuate testimony, but to obtain the names of certain parties against whom suit might be brought The justice of the peace issued notice of the application to take the deposition, and five days after the issuance thereof issued a commission to take the deposition of Mr. Cummings in answer to the accompanying interrogatories. The commission was delivered to W. J. Walden, a notary public, who issued process for Cummings. Upon appearing before the notary, Cummings refused to answer the interrogatories, and the notary entered an order committing Cummings to jail until he should answer the interrogatories. Cummings sued out a writ of habeas corpus before Hon. A. R. Hamblen, District Judge. Upon hearing the writ, Judge Hamblen remanded the relator, from which judgment he prosecuted an appeal to this court.

The first question' that presents itself to our mind is: Is the case one in which we should entertain jurisdiction? Article 1529 of the Revised Statutes of 1911, reads:

“The Supreme Court of Texas, or any one of the justices thereof, shall have power, either in term time or vacation, to issue writs of habeas corpus in all eases where any person is restrained in his liberty by virtue of any order, process or commitment, issued by any court or judge, on account of the violation of any order, judgment or decree, theretofore made, rendered on entered by such court or judge in any civil cause; and said Supreme Court, or any one of the justices thereof, shall have power, either in term time or vacation, pending the hearing of the application for such writ, to admit to bail any person to whom the writ of habeas corpus may be so granted.”

We discussed this question fully in the cases of Ex parte Mussett, 162 S. W. 847, and Ex parte Zuccaro, 162 S. W. 844, and there held that, where the commitment grew out of proceedings had in a civil action, it was the intent of the Legislature to confer jurisdiction on the Supreme Court in all such cases.

In this case the questions raised are: First, that the information sought is not evidence to be perpetuated, but information on which to base a suit — a proceeding in the nature of a common-law bill of discovery; second, that a notary cannot commit one to jail for refusal to answer interrogatories propounded to him. These questions are mainly incident to civil proceedings, and have very little, if any, connection with criminal matters, and as the commitment grows out of a writ issued in a civil proceeding, we think the appeal should be to the Supreme Court, and not this court, for the reasons stated in the Mussett and Zuccaro Cases, supra. The pleadings raise the right to bring a civil action of the character instituted in this suit, as well as the constitutionality of the statute authorizing notaries to imprison for contempt.

Having his view of the matter, this case will be dismissed without prejudice to relator to prosecute an appeal to the Supreme Court, or, if the trial court will not permit him to amend the order giving notice of appeal, then .to sue out an original writ before the Supreme Court.

Appeal dismissed.


author: HARPER, J.

text:
    HEMPHILL v. STATE.
    (No. 3248.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Grand Juey (§ 19) — Challenge—Objections — Time.
    Code Or. Proe. 1911, art. 490, provides that any person, before the grand jury has been impaneled, may challenge the array or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Held, that where accused, a negro, was in jail when a grand jury was impaneled which returned an indictment against him, but made no request to challenge the grand jury, nor any objection thereto until the judgment rendered against him on the first trial had been reversed, it was then too late for him to move to quash the indictment because negroes were discriminated against in the selection of the grand jury.
    [Ed. Note. — Eor other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. § 19.*]
    2. Jury (§ 120*) — Panei>-Motion to Quash —Discrimination against Negroes.
    A motion to quash a panel of special veniremen summoned to try a negro, on the ground that the negro race had been discriminated against, was unsustainable, where the only testimony was that of a jury' commissioner that no intentional discrimination against the negro race was made in the selection of jurors for the particular term of court, but that the members selected good men whom they personally knew to act as jurors.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 547-549; Dec. Dig. § 120.*]
    3. Criminal Law (§ 134*) — 'Venue—Change oe Venue — Prejudice oe Inhabitants — Evidence.
    In a prosecution for murder, evidence held to require a finding that accused could have a fair trial within the county, and that he was therefore not entitled to a change of venue for prejudice of the inhabitants.
    [Ed. Note. — For other cases, see Criminal I/aw, Cent. Dig. §§ 243, 251, 252; Dec. Dig. § 134.*]
    4. Criminal Law (§ 1092*) — Appeal—Bill oe Exceptions — Filing—Time.
    Code Cr. Proe. 1911, art. 634, provides that an order granting or refusing a change of venue shall not be revised unless the facts on which it is based are presented in a bill of exceptions filed at the term of court at which the order is made. Held, that such rule applies to all matters, not arising on the trial, and hence where bills presenting such matters are not filed at the term at which the proceedings occur, they cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.*]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Will Hemphill was convicted of murder, and he appeals.
    Affirmed.
    See, also, 165 S. W. 462.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   HARPER, J.

This is the second appeal in this case, the death penalty being again assessed by the jury on this trial.

Appellant moved to quash the indictment, in his plea alleging that he is a negro, and that men of that race were discriminated against in the selection of the grand jury. The court heard evidence on this plea, and there was no proof offered tending to show that appellant is of that race, but if such proof had been offered, the evidence would wholly fail to sustain the plea. The evidence would show that there are some 3,000 white voters in the county, and only about 500 votes of the negro race, and of this latter class not over ten per cent, are qualified to serve as jurors, making only about 50 negroes in the county qualified to serve as jurors, while there are some 3,000 of the white race. The evidence further shows that at least one negro was drawn on the jury panel for the term of court at which appellant was indicted, and Mr. P. L. Herron, the only member of the jury commissioners placed on the witness stand, testified:

“We did not intentionally discriminate against the colored race in selecting the grand jurors and petit jurors at that time. I have no recollection of any discrimination at all. The judge told us to take our time for it, and we did. He said that he had got- tired of this quick jury business, to stay there until we got through. We did not intentionally fail or refuse to put a man on the grand jury simply on the ground that he was a negro, that I know anything about. The idea of the jury commissioners was to select the best and most responsible men from all over the county.”

Again, appellant was under arrest and in jail when the grand jury which indicted him was impaneled, and he made no request to be brought into court that he might challenge the array of grand jury men nor any member thereof. Neither did he on his first trial make any motion to quash the indictment on this or any other ground at this term of court; it being the third term of the district court of that county after this indictment had been returned before any such motion was filed. Under such circumstances the motion would come too late, as a motion to quash the indictment on this ground must be seasonably made — -when first presented an opportunity to do so. Article 409 of the Code of Criminal Procedure reads:

“Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge.”

It is true, the United States Supreme Court has held that where one has had no opportunity to challenge the array before the impaneling of the jury, he may do so in a plea of abatement at the first opportunity, but in this ease appellant was not only in jail when the grand jury that indicted him was impaneled, and made no request to be brought into court to challenge the men selected to serve as grand jurors, but when arraigned for trial he made no such plea and did not question the qualification of the grand jury. It is only after he has been tried, convicted, appealed his case to this court, had it reversed, that he makes this plea on being rearraigned for trial; therefore the court did not err in refusing to quash the indictment

Appellant also moved to quash the panel of special veniremen summoned from which to select jurymen to try him at this term of court on the ground that the negro race had been discriminated against. One of the jury commissioners, Herman Zipp, testified:

“We did not intentionally discriminate against the negro race in the selection of jurors for this term of the district court, so far as I know, and we, did ' not fail or refuse to put a negro on the jury simply because he was a negro; that was not spoken about. I selected good men that I knew personally, and the other members of the commission selected men they knew, and I can’t state now whether there were any negroes on the lists they selected or not.”

There was no testimony offered which showed that the negro race had been discriminated against because of his race, and the court correctly overruled the motion.

Application was made praying for a change of venue. This was contested by the state, and testimony was heard by the court. Only two witnesses testify to a state of facts that would tend to support the plea, Mr. H. E. Short, one of the attorneys for defendant on the former trial, and a colored man named Walter Coleman. State Senator Harley, and Messrs. Emil Mosheim, W. P. Neubauer, Sam Patton, August Weinert — in fact all other witnesses introduced, except the two first named — testify that in their opinion appellant could get a fair and impartial trial in Guadalupe county, and under such a showing it would have been improper for the court to have granted a change of venue.

However, there is another matter we would call attention to. The term of court at which appellant was tried adjourned May 21, 1914. None of the above three bills of exception were filed during that term of court — in fact not filed until some weeks after court had adjourned. Article 634 of the Criminal Code provides:

“The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term, of the court at which such order was made.”

The same rule applies to bills of exception to all matters excepting those relating to questions arising upon the trial of the case. Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263, and authorities there cited. We hope that attorneys hereafter will take cognizance of these provisions of the law, and file their bills of exception in term time, so that we will be authorized to grant relief should they be entitled to it. If they do not file them timely, we are powerless to grant any relief. .

There are but two other bills of exception in the record, and they relate to the failure of the court to give in charge special instructions Nos. 2 and 3 requested by appellant. The court gave charge No. 1, requested by appellant, and it and the main charge of the court fully covered all matters presented in the two refused charges. No objection was made to the charge of the court at the time it was given, and no exceptions appear in the record to evidence admitted or rejected on the trial.

The evidence supports the verdict, and the judgment will be affirmed.


text:
    SLOAN v. STATE.
    (No. 3241.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Gaming (§ 98) — Criminal Prosecutions —Sufficiency of Evidence.
    On a trial under an information charging, in two counts, that accused played cards at a place other than a private residence occupied by a family, and that he knowingly went into and remained at a place where a game of cards was being played, evidence held, sufficient to support a conviction for going into and remaining at a place where cards were being played.
    [Ed. Note. — Eor other eases, see Gaming, Cent. Dig. §§ 291-297; Dec. Dig. § 98.*]
    2. Criminal Law (§ 878*) — General Verdict — Applying to Count Established by Evidence.
    On a trial under an information charging, in two counts, that accused played cards at a place other than a private residence occupied by a family, and that he knowingly went into and remained at a place where cards were being played, where the evidence was sufficient to support a conviction under the second' count, a general verdict of guilty should be applied to that count.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. § 878.*]
    3. Criminal Law (§ 424*) — Evidence—Admissions by One Defendant.
    Where a number of persons, charged with playing cards and with going into, and remaining in a place where cards were being played, were tried together, an admission of one of the defendants, subsequent to the commission of the offense and in the absence of the other defendants, was properly admitted, as it was admissible against him.
    [Ed. Note. — Eor other cases, see Criminal Law, §§ 1002-1010; Dec. Dig. § 424.*]
    4. Criminal Law [§ 824*) — Instructions— Necessity of Requests.
    Under White’s Ann. Code Or. Proe. art. 719, providing that in criminal actions for misdemeanor the court is not required to charge the jury, except at the request of counsel on either side, on a trial for playing cards and going into and remaining in a place where cards were being played, the court was not bound to charge that an admission by one of the defendants subsequent to the offense could not be considered in passing on the guilt of the other defendants, where no such charge was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004: Dec. Dig. § 824.*]
    5. Gaming (§ 72*) — Criminal Offenses — Statutory Provisions.
    Under Pen. Code 1911, art. 548, providing that if any person shall play at a game of cards at any place, except a private residence occupied by a family, he shall be punished as there provided, and that the provision permitting gaming at a private residence shall not apply if the residence is one commonly resorted to for gaming, the number of times that games are played is not the sole criterion of whether the house is commonly resorted to for gaming; and a man, his friends, and invited guests may play frequently without violating the law, if the main object and purpose is not to gamble for money, while if a man throws open the doors of his home to any and all who desire to enter therein for the purpose of gambling with cards there is a violation of the law, though evidence that this was continuously or frequently done would add additional strength to the evidence.
    [Ed. Note. — Eor other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.*]
    6. Gaming (§ 72*) — Criminal Offenses — Statutory Provisions — “Trespasser” — “Private Residence Occupied by a Family.”
    Where a number of persons, none of whom resided in C.’s residence, obtained permission from C. to go to his house in the absence of himself and his family for the purpose of playing dominoes, and after having gone there under this permission proceeded to gamble with cards and bet money on the game, they were trespassers, and the house was not a private residence occupied by a family, within Pen. Code 1911, art. 548.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.*
    For other definitions, see Words and Phrases, First and Second Series, Private Residence; Trespasser.]
    7. Criminal Law (§ 721*) — Argument of Counsei — Reference to Failure to Testify.
    On a trial for playing cards at a place other than a private residence occupied by a family, where C. testified that he gave defendants permission to go to his residence in his absence for the purpose of playing dominoes, the statement of the state’s counsel in argument that the testimony of C. was all the testimony defendants had brought to contradict the state, that the defendants in latching the door and placing a quilt over the window were not perpetrating a joke on the officers, and that they brought no evidence that it was a joke, was not such a direct or indirect reference to defendant’s failure to testify as necessitated a reversal, as other persons might have been called to testify to the same facts as C., while, if defendants were perpetrating a joke, this could have been shown without defendants being called to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]
    Appeal from Hall County Court; John D. Bird, Judge.
    Harley Sloan was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted under an information containing two counts, one charging him with playing at a game of cards at a place other than a private residence occupied 'by a family, and the other charging him with knowingly going into and remaining at a place where a game of cards was being played, which said place was not a private Residence occupied by a family, the appellant then and there knowing that- said game was being played. The court submitted both counts to tie Jury, and a general verdict was returned finding him guilty.

J. E. King, sheriff of Hall county, testified: That on Sunday night, April 12th, he went to the house of Henry Cantrell about 8:30 o’clock. He could see a.-light in the room, but the windows had quilts spread over them, and witness could not see in the room.

That while standing there he could hear cards flipping, money rattling, and heard one party say he would open it for one dollar, and heard Farley say he would raise it, and he asked, “How many cards do you want.” That he recognized the voices of Farley and McOanne, hut did not recognize the voices of the others talking. That he broke into the house, and Farley, Alexander, and Stallings were around the table, on which a quilt was spread. Sloan and McOanne were on the bed; and he found a deck of cards between the mattresses on this bed, where he saw McOanne put something as he came into the room. On Monday following Farley had told him, when Alexander was present, that certain of the boys were not playing.

W. H. Lindsey, chief of police of Memphis, testified: That he was with the sheriff, and testifies to finding the house with a light in it and quilts over the windows, etc., and says he could hear the cards being dealt, the money rattling, and could hear talking in the room. That he heard some one say, “I’ll open it for a dollar,” and heard Jess Farley say, “ITL raise you a quarter.” Jess Farley asked how many cards he wanted, and the answer was “One.” That they stayed outside and listened for about 30 minutes, when they broke in. That Farley, Alexander, McOanne, appellant, and Stallings were in the room. That none of .these five men lived at this house. He also testified to finding the cards, and that the bed was alongside of the table, and a man could sit on the bed and be right against the table. That he heard money rattling, and the shuffling and dealing of cards, as plain as if he looked right at them.

Appellant earnestly insists that this evidence is insufficient to sustain a conviction against this defendant. If there was only one count in the information — that is, appellant was playing at á game with cards — his contention would be sound, for the testimony is perhaps insufficient to sustain a conviction against any of the five for playing cards, other than Jess Farley and one other. But the testimony, we think, conclusively shows or at least the circumstances are such that would authorize a jury to find, that a game of cards was being played in this room, and that appellant was present knowing that it was being played, and as one of the counts charges him with “knowingly going Into and remaining at a place where a game of cards was being played, which place was not a private residence occupied by a family, he then and there knowing that said game was being played,” the evidence will sustain a conviction under this count, unless it should be held that the place where the game was being played was a private residence occupied by a family at that time. The evidence would justify a jury in finding that a card game had been going on for at least a half hour, and that appellant was present during all that time.

Appellant refers us to some six cases, under the holdings of which he claims that the evidence is insufficient to sustain the v'erdict; the principal one upon which he seems to rely being Fallwell v. State, 48 Tex. Or. It. 35, 85 S. W. 1069. In that case no one heard Fallwell’s voice making any remark that would indicate he was in the game. It was the voice of Pearce that was heard to say, “Give me three cards,” and if Pearce’s case had been on appeal, there would have been no holding that the evidence was insufficient. So, in this ease, if appellant was only charged with playing cards, then the Fallwell Case would ÜS in noint, and he should have been acquitted; but appellant in this case is also charged with knowingly going into and remaining at a place where a game of cards was played, and the verdict, being general, can and should be applied to that count in the information. Isaacs v. State, 36 Tex. Or. R. 505, 38 S. W. 40; Shu-man v. State, 34 Tex. Or. R. 69, 29 S. W. 160.

It is also urged that the court erred in permitting Sheriff King to testify that, in a talk with Farley, Farley had said that certain of the boys did not play; that Alexander was standing near. If appellant had been alone on trial, his objection’should have been sustained, and it would have been error not to have done so. But the record discloses “that in this case the state of Texas and defendants agreed to submit the cases of all the defendants for your consideration.” As the eases against four defendants, including Alexander, were tried at one time, the evidence was admissible against Alexander, and, being admissible against him, the court did not err in overruling the objection. It would have been proper to have instructed the jury that they should not consider such testimony in passing on the guilt or innocence of Stallings, Sloan, and McOanne, as it was a remark made after the commission of the offense (if an offense was committed), out of the presence of these latter three; but, this being a misdemeanor, no request being made that such instructions be given, it was not incumbent on the court to give such charge, or any charge, to the jury. Article 719, White’s Ann. Code of Oriminal Procedure ; Waechter v. State, 34 Tex. Cr. R. 297, 30 S. W. 444, 800; Killman v. State, 2 Tex. App. 222, 28 Am. Rep. 432; Oarr v. State, 5 Tex. App. 153; Hobbs v. State, 7 Tex. App. 117; Murray v. State, 38 Tex. Cr. R. 677, 44 S. W. 830.

This brings us to the most serious question in the case. Henry Cantrell testified that he was a married man, and that he had been living at this house since February 1st last; the game of cards being alleged to have been played on the night of April 12th. He further .testified that he and his wife were not at home on the date the game of cards was played; that his wife had been out at her mother’s for about .two weeks, and he-had gone out there on Saturday before, returning Monday — tiie game of cards having been played on Sunday night, while he was at his mother-in-law’s home. He further .testified that he had given the hoys permission to go to his home and play dominoes. Under our statute it is no offense to play cards at a private residence occupied by a family, unless commonly resorted to for gaming, and appellant earnestly insists that the house where this card-playing took place was the private residence of Henry Cantrell, and within the meaning of the law was at the time occupied by a family. On the proper construction of this statute depends whether or not this conviction should he sustained. As applicable to this case article 548 of the Penal Code reads:

“If any person shall play at any game of cards * * * at any place except a private residence occupied by a family * * * he shall be fined not less than ten dollars nor more than twenty-five dollars,” provided the provision that permits gaming at a private residence shall not apply if the residence is one “commonly resorted to for * * * gaming.”

What was the object, intent, and purpose of the Legislature in so providing? It was to exempt' the members of a family from prosecution, should they see proper to engage in a social game of cards, and the exemption carried with it exemption for such of their neighbors and friends as they might invite into their home to engage in a game with them. ’ The number of times such games might be played is not the sole criterion to judge whether or not it was commonly resorted to for gaming. A man might have his neighbors and friends in his home frequently to engage in a social game of cards with him, if their object and purpose was not to engage in what might be termed as gambling for money — that being the main purpose— and violate no law. The statute was to protect the sanctity of the home, and let each member of society seek pleasure and enjoyment in this manner if he saw proper in his own home. But if a man were to throw the doors of his home open to any and all who desired to enter therein for the purpose of gambling with cards, and it was so known, it would not be the number of times that cards were played that would make it a common resort, but the fact that he had opened his doors for any and all persons to gamble with cards which would evidence a violation of the law. Of course, evidence that this was continuously or frequently done would add additional strength to the evidence; but under the exemption in the statute no person is authorized to open his doors to the public at large indiscriminately for the purpose of gambling with cards. A man, his friends, and invited guests may engage in social games of cards in his home and violate no law; but no man can make a gambling house out of his residence and escape the penalty of the law, and each case must stand upon the facts and circumstances in that case.

In this case these young gentlemen go to the house of Mr. Cantrell, when they know that all members of the family are absent from home, and apparently go there because of this fact. Mr. Cantrell says he gave them permission to go there and engage in a game of dominoes; but there is not the slightest intimation in the record that he invited them, or gave them permission, to go to his home and for the time being turn-it into a gambling room and engage in playing cards, betting money thereon. They sought nor asked no such permission, and the fact they knew they had no permission to do so is evidenced by the fact that they closed the doors and spread quilts over the windows and other openings, that they might not be seen while engaged in this unlawful gambling. Having obtained permission to enter this house by false pretenses, it was the same as though they had no permission, and they became mere naked trespassers. It was not the intent of the Legislature to exempt such game from the provisions of the law, and such construction would do violence to the whole spirit and intent of the statute. Their going to this house when they knew Mr. and Mrs. Cantrell were absent from home, and without permission, and without the knowledge of Mr. and Mrs. Cantrell, to deliberately engage in gambling with cards, the persons who did so would violate the law, for such house at such time and under the circumstances herein shown would not be a private residence occupied by a family within the spirit and intent of the law. And as the evidence — circumstantially at least — amply sustains a finding that at least Parley and another member of the party were engaged in gambling with cards on this occasion, and that appellant at least knowingly went into and remained in this place while such gambling took place, we will not disturb the verdict. If either of the young men had resided at this house, and invited the others to engage in the game with him, we might arrive at a different conclusion; but none of them lived at this house, and had selected a time to go there and engage in this game when they knew that the occupants of the house were absent and it was being occupied by no family at that time. Por further discussion, see Stallings v. State, 170 S. W. 159, decided at this term of court.

The only other contention in the record is that state’s counsel referred to the failure of defendants to testify in his address to the jury when he said “that the testimony of the witness Cantrell was all the testimony that the defendant had brought to contradict the state.” This is a mere recitation of a fact, and it would have to be a strained construction that would make it refer to the failure of the defendants to testify, for Mrs. Cantrell and perhaps a number of other persons could have been called, who could have testified to the same facts as did Mr. Cantrell, if true'.

Again, it is contended that he so referred when he said:

“Surely these defendants were not up there perpetrating a joke on the officers; up there housed in, as they were, with a quilt over the window and the door latched — surely they were not there to perpetrate a joke on the officers. And, gentlemen, they brought no evidence that it was a joke.”

Doubtless these remarks were made in reply to argument of counsel for the defense; but, if not, it is not such a direct or indirect reference to the failure of defendants to testify as would necessitate a reversal of the case. If they were in fact perpetrating a joke, there might be a number of ways this could be shown without either of them being called to testify. The record does not exclude such fact.

After careful consideration, we have come to the conclusion that the judgment should be affirmed; and it is accordingly so ordered.


author: PRENDERGAST, P. J.

text:
    STALLINGS v. STATE.
    (No. 3223.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Gamin® (§ 72) — Criminal Offenses — Statutory Provisions — “Private Residence Occupied uy a Family. ”
    Pen. Code 1911, art. 548, providing that, if any person shall play at any game of cards at any place except in a private residence occupied by a family, he shall be punished as there provided, was violated by persons who went to C.’s house in the absence of C. and his family, with C.’s permission to go there for the purpose of playing dominoes, and proceeded to gamble with cards, since it is not the private residence that protects the gaming from being unlawful, but the fact that the residence is at the time occupied by a family, and the length of time that the family is not occupying it is immaterial, so long as they are not occupying it at the time of the offense.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.*
    For other definitions, see Words and Phrases, First and Second Series, Private Residence.]
    Appeal from Hall County court; John D. Bird, Judge.
    Less Stallings was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

This is a companion case of the Harley Sloan Case, No. 3241, 170 S. W. 156, this day affirmed. Both were tried at the same time. In the opinion in the Sloan Case, Judge HARPER has stated the facts in both cases. The questions raised are the same in both. There is but one question we will further discuss in this in addition to its discussion in the Sloan Case, and that is whether or not the residence wherein this gaming and gambling was done was “a private residence occupied by a family.”

The statutes are:

“If any person shall play at any game of cards * * * at any place, * ■* * except
in a private residence occupied by a family, * * * he shall be fined,” etc. P. C. art. 548.
“If any person shall go into or remain in any * * * place where any of the games prohibited by this act are, within his knowledge, being played, * * * he shall be punished by a fine,” etc. P. C. art. 563.
“A residence may be a private residence, although it be not occupied by a family.” Williams v. State, 48 Tex. Cr. R. 327, 87 S. W. 1156.

In discussing whether two grown sons and a brother-in-law were members of a man’s family under the estray statute, in Goode v. State, 16 Tex. App. 414, 415, this court said:

“Mr. Webster defines the word ‘family’ to mean ‘the collective body of persons who live in one house, or under one head or manager or household.’ Mr. Bouvier defines it to be ‘all the individuals who live under the authority of another, including the servants of the family.’ ”

But the court held, in effect, that neither of said persons were members of his family. Under our gaming statute this court held, in Patterson v. State, 55 Tex. Cr. R. 393, 116 S. W. 1151, that a bachelor living in a residence with some hired hands did not make the habitation “a private residence occupied by a family.” And Robbins v. State, 57 Tex. Or. R. 8, 121 S. W. 504, held to the same effect. In McCollum v. State, 49 Tex. Or. R. 383, 92 S. W. 848, it was shown that a father lived for some time in one of his residences with two of his sons, one 17, the other 15, years old, together with other members of his family ; that some time before a game of cards was played in said residence he had gone and moved the rest of his family, other than his said two sons, to another of his residences, the said two sons remaining in said residence. The court held the habitation where the two sons remained was a residence, but not occupied by a family.

In Davis v. State, 151 S. W. 314, it was shown Fitch and wife lived in their residence, and Davis, an unmarried man, had been staying with them. Fitch and wife went on a trip, and were gone 13 or 14 days. Davis continued to stay at their residence while they were away, and permitted gambling therein several times during their absence. He was convicted for permitting property under his control to be used as a place for people to resort and gamble with cards, etc. He defended on the grounds 'that the place was “a private residence occupied by a family,” and the indictment did not negative this. This court held:

“For the time being, it was not a private residence occupied by a family; .but appellant, an unmarried man, was staying there by permission at least. It would be immaterial whether he was in possession by permission, or had taken possession during Mr. Fitch’s absence, believing that it would be agreeable with the owner. If one should in any manner, while the family was absent, take possession of a house, and permit gambling to he engaged in by all those who came to the house while he was in control of the house, and when it was shown that on five occasions during this time he permitted gambling to be carried on in the house, it would be an offense against the law.”

It is clear our statutes mate it an offense to play a game of cards at any place, or go into or remain at any place where such game is knowingly played, unless such game is played at a private residence and that that residence at the time the game is played is occupied by a family. It is not the private residence that protects the gaming from being unlawful, but it is the fact that that residence is at the time occupied by a family — not that some family makes it their residence, but for the time is away.

The uneontradieted evidence shows that the wife of Henry Cantrell, in whose residence the gaming occurred, had gone to her parents, and been there about two weeks, and that Cantrell himself was also at her parents’, having gone there the day before. Neither of them, nor any other constituent of the family, were occupying the residence at the time of the gaming. These young men who were gaming there got' permission from Cantrell to play dominoes — not to gamble with cards — while he and his family were not occupying their residence. The length of time they were not occupying it is not decisive. They did not have to be away from, and out of, and not occupying, their residence for a year, nor a month; just so they were distinctly not occupying it at the time is all that was necessary.

Our statute makes it an offense for any person to keep a bawdyhouse in any house owned, occupied, or controlled by him. This court, in Flynn v. State, 35 Tex. Cr. R. 220, 32 S. W. 1041, and Willis v. State, 34 Tex. Cr. R. 149, 29 S. W. 787, under said statute, in effect held that, although one person owns the house, yet if another has possession, charge, or control of it for the time being, the latter is the keeper, etc. This court, through Judge Hurt, in Stokeley v. State, 37 Tex. Cr. R. 638, 40 S. W. 971, expressly held that where a man, in the absence of his wife, permitted one woman for less than half of one night to occupy his residence and have sexual intercourse with men, made the residence a bawdyhouse, and he was guilty of keeping it as such house.

As stated above, these young men got possession of Cantrell’s residence, while unoccupied by him and his family, under the pretext to play the innocent and lawful game of dominoes ; but as soon as they got into it they at once converted it into a gambling house. This residence was not “occupied by a family,” in contemplation of our statute, under the facts and circumstances established in this case, so as to exempt appellant from conviction. Therefore the judgment will be ■affirmed.


text:
    ALEXANDER v. STATE.
    (No. 3243.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Appeal from Hall County Court; John D. Bird, Judge.
    Jim Alexander was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a . companion case to that of Harley Sloan v. State, 170 S. W. 156, this day decided. The record is an exact copy of the record in that case, with the exception that appellant’s name appears where Sloan’s appears in that record. The cases were jointly tried, under an agreement that a separate verdict should be entered against each.

For the reasons stated in that opinion, the judgment herein is affirmed.


text:
    FARLEY v. STATE.
    (No. 3244.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Appeal from Hall County Court; John D. Bird, Judge.
    Jess Farley was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to that of Harley Sloan v. State, 170 S. W. 156, decided at this term of the court. The other four defendants were tried jointly, while this defendant had a trial separate from the others. The evidence is in substance the same, only in this case appellant, Sloan, McCanne, and Alexander testified on this trial, and all denied that any one played cards at the residence of Cantrell that night. The testimony of Sheriff King and Mr. Lindsey is also fuller in regal’d to the statements made to them by Jess Farley; it being in substance an admission by Farley that all of them played, except Sloan and McCanne.

All the questions raised in this case were passed on in the Sloan Case, and on the authority of that ease the judgment is affirmed.


text:
    McCANNE v. STATE.
    (No. 3242.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Appeal from Hall County Court; John D. Bird, Judge.
    Scott McCanne was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to that of Harley Sloan v. State, 170 S. W. 156, decided at this term. The record is an exact copy of the record in that case, with the exception that appellant’s name appears where Sloan’s appears in that record. The cases were jointly tried, under an agreement that a separate verdict should be entered against each.

For the reasons stated in the Sloan Case, the judgment is affirmed.


author: HIGGINS, J.

text:
    GOOD v. SMITH.
    (No. 326.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1914.)
    1. Judgment (§ 266) — Verdict as Basis for Judgment.
    A verdict is the proper basis of a judgment, and on trial by jury the court has no power to enter judgment upon facts well pleaded and indisputably proven, unless the issue has been found by the verdict in favor of the party for whom the judgment is rendered.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 446-464; Dec. Dig. § 256.]
    2. Judgment (§ 256) — Conformity to Verdict or Findings.
    In an action for subrogation and to foreclose a lien, defendant’s failure to deny specifically under oath facts pleaded in support of the lien at most furnishes only a basis for dispensing with a specific finding in the verdict as to the lien, and a judgment of foreclosure is erroneous if the facts so pleaded do not sustain the lien.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    3. Subrogation (§ 23) — When Allowed.
    Where defendant, who sold a one-half interest in a ranch, agreed with the purchaser that the cash payment should be applied in satisfaction of a mortgage, and the purchaser deposited the money to defendant’s credit, and it was by the bank, the mortgagee, applied to the satisfaction of the incumbrance, the purchaser, upon rescission of the contract on other grounds, is not entitled to be subrogatéd to the bank’s rights; it being the defendant’s money, and not his, that was applied to the debt.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.]
    4. Subrogation (§ 23) — When Allowed.
    Where the seller of an interest in a ranch agreed with the purchaser that the cash payment should be used to extinguish a mortgage, and it was so used, the purchaser, upon rescinding the contract on other grounds, is not entitled to subrogation to any rights in the mortgage, which had been discharged with his consent.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.]
    Appeal from District Court, Midland County ; S. J. Isaacks, Judge.
    Action by J. P. Smith against E. C. Good. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    John B. Howard, of Pecos, and Anderson & Anderson, of Midland, for appellant. J. M. Caldwell, of Midland, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Smith sued Good, in substance alleging that he entered into a contract with Good whereby the latter agreed to convey and deliver to him a half interest in a ranch, together with certain horses, mules, and cattle thereon ranging, in consideration whereof he paid Good $5,000 cash and agreed to pay $20,000 more; that Good represented said property to be unincumber-ed, save as to 150 calves, 50 horses, and 4 mules, upon which there was a mortgage for $3,110 in favor of the Midland National Bank; that he (plaintiff) insisted that a sufficient amount of the cash payment should be applied to the extinguishment of such note, and the bank was instructed by Good to so apply a sufficient amount of such payment; that plaintiff in accordance with his agreement placed the money in said Midland National Bank to Good’s credit, and thereupon, according to the instructions given by defendant and defendant’s agreement with plaintiff, the same was applied to the ex-tinguishment of said note, so far as the bank was concerned; that defendant breached his contract to convey, and failed to make good his guaranty that the property was free of incumbrance, as represented, the fact being that there were incumbrances other than the one to said bank; that said representations with reference to the extent of incumbrances upon said property were falsely and fraudulently made; that plaintiff relied thereon, and was thereby induced to enter into said contract and pay said $5,000; that at the instance of Good and under his instructions, and with the knowledge of all parties and upon agreement between plaintiff and defendant, a sufficient amount of the $5,000, as soon as paid in by plaintiff, was applied by the bank to the extinguishment, so far as the bank was concerned, of said $3,110 note; that by virtue of payment being so made by consent upon said false representations, and the fact that, had the contract been valid, as it was supposed to be, and not tainted with fraud, the plaintiff would have had to pay same for the purpose of freeing the property from incumbrance, and since the contract could not be performed, plaintiff by said payment became subrogated to the lien of the bank. Judgment was prayed for recovery of said $5,000, and for subrogation and foreclosure of the mortgage lien upon said calves, horses, and mules.

A verdict was returned in Smith’s favor for $5,000, upon which the court rendered judgment, together with subrogation and foreclosure of the lien claimed upon the calves, horses, and mules. It is assigned as error that the verdict and judgment is unsupported by the evidence. We will not discuss the evidence, and it is sufficient to say that the verdict is amply supported by the evidence, and the judgment will not be disturbed, in so far as it relates to the recovery .of the $5,000 in controversy.

Under other assignments complaint is made of that portion of the judgment decreeing a subrogation and foreclosure of lien. In support of this decree it is first contended by appellee that it was properly entered, because appellant did not specially deny under oath the fraudulent acts pleaded in support of his asserted right of subrogation. The verdic^ is the proper basis of a judgment, and on trial by jury the court has no power to enter judgment upon facts well pleaded and indisputably proven, unless the issue presented and proven has been found by tbe verdict in favor of tbe party for whom tbe judgment is rendered. Government Hill Co. v. J. J. Mundy, 165 S. W. 78, and cases there cited. And this principle has been applied in case of lien foreclosure, it being held that tbe verdict must contain a specific finding upon which foreclosure may rest. Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79, 881; Hines v. Shafer, 74 S. W. 562. At most, a failure to deny specifically under oath, as is now required, facts pleaded in support of an asserted lien, might dispense with the necessity of a specific finding in the verdict with respect to the lien, upon the theory that such facts are not in issue and are in effect admitted of record. Whether it should be so held it is unnecessary for us to determine, and we express no opinion in respect thereto. But if the facts thus pleaded, and undenied, in law fail to show the existence of a lien, manifestly a decree of foreclosure based upon such failure to deny would be improper. So, in the instant case, Good’s failure to deny under oath the allegations upon which the decree of foreclosure is based would not authorize the entry of such decree, if such allegations, as a matter of law, are insufficient to show a right of subrogation.

In support of the right, appellee submits the proposition that a party who has paid a debt at the request of the debtor, and under circumstances which would operate as a fraud upon him if the debtor were afterwards allowed to insist that the security for the debt was discharged by his payment, may be subrogated to the security as against the debtor. Sheld. Subr. (2d Ed.) par. 247; Oury v. Saunders, 77 Tex. 278,13 S. W. 1030; Park v. Kribs, 24 Tex. Civ. App. 650, 60 S. W. 905; Young v. Pecos County, 46 Tex. Civ.' App. 319, 101 S. W. 1055; Newell v. Hadley, 206 Mass. 335, 92 N. E. 507, 29 L. R. A. (N. S.) 908. But the pleadings here disclose Smith did not pay the debt. He deposited the money in the Midland Bank to the account of Good, and it became Good’s money, and Good’s money paid the debt to the banjk. Smith did not pay it. So the facts pleaded in this respect do not fall within the principle invoked.

Furthermore, it is averred that by consent of all parties the money was paid to the bank, with the intention that the note should be paid and the lien extinguished, and while the principle of subrogation is very wide in its scope, it is believed it should never ■ be applied in a case where, at the time of payment, it was the express intention of the party asserting the right that the lien should be extinguished. To hold that it was not extinguished, and that there was an equitable assignment to him would be contrary to his 'express intention and purpose, and contrary to the fundamental principles upon which the doctrine rests.

For the reasons indicated, the decree of

foreclosure was improperly entered, and the judgment will be reformed so as to conform simply to the verdict rendered in Smith’s favor, and, as reformed, will be affirmed.

Reformed and affirmed.


author: FLY, C. J.

text:
    CITIZENS’ BANK & TRUST CO. v. ROGERS.
    (No. 5326.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Garnishment (§ 56) — Persons aNd Property Subject — Bank Deposits.
    Where Y. kept his bank account in the name of Y. Engineering Co., and the money was his own property, and was checked out for his personal and individual uses, no one else having any interest in it, his account was subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 110, 111; Dec. Dig. § 56.]
    2. Appeal and Error (§ 1043) — Review-Harmless Error.
    Where the number of the case in which the judgment was rendered was incorrectly given in the application for garnishment, though correctly given in the transfer of the judgment to plaintiff, and there was no question about the identity of the judgment and no other judgment against the debtor, the error was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. § 1043.]
    3. Appeal and Error (§ 909) — Review-Presumptions.
    In a garnishment proceeding, where all the execution dockets during- the life of the judgment against the debtor were not offered in evidence, it would be presumed that an execution on the judgment had been issued, so that the judgment would not be dormant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dee. Dig. J 909.]
    4. Garnishment (§ 144) — Proceedings — Pleading.
    The want of a valid judgment on which to base the garnishment must be pleaded by the garnishee in order to be available.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 270; Dec. Dig. § 144.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Garnishment by F. R. Rogers against the Citizens’ Bank & Trust Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. A. Wurzbaeh and Irvin R. Stone, both of San Antonio, for appellant. B. P. Dane and Gordon Bullitt, both of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Appellee applied for and ob-

tained a writ of garnishment against appellant, alleging that he was the owner of a certain judgment obtained by C. A. Am-brust against F. R. Young, in the county court of Bexar county; that Young had not, within the knowledge of appellee, any property subject to execution; and that he believed that appellant had in its hands effects belonging to Young. Appellant answered, denying that it had any effects belonging to Young. The answer was controverted by appellee. The cause was tried without a jury, and judgment was rendered in favor of appellee for $165.19.

The evidence is sufficient to show that money was deposited by F. R. Young with appellant in the name of the “Young Engineering Company,” and that the sum of $165.19 of the same was on deposit with appellant at the time the writ of garnishment was served upon it. The money so deposited was the property of F. R. Young, and was checked out for his personal and individual uses. If there was any partnership existing under the name of “Young Engineering Company,” which the evidence tends to show there was not, the money was the individual property of Young; no one else having any interest in it. These conclusions of fact dispose of the first, second, third, and fourth assignments of error.

The fifth, sixth, and seventh assignments of error are overruled. The number of the case in which the judgment was rendered was incorrectly given in the application for garnishment, but was correctly given in the transfer of the judgment to appellee. There was no- question about the identity of the judgment. The evidence showed that there was no other judgment against Young in favor of Ambrust.

If there was any testimony introduced to show that the judgment in the case of Ambrust v. Young was dormant by reason of failure to issue an execution within 12 months from its rendition, the record fails to show it. It is true that it is stated in the statement of facts that “counsel for defendants offered in evidence the records of the county court for civil cases, including the execution docket, to show that no execution had been issued on the judgment introduced in evidence in cause No. 3729, entitled C. A. Ambrust v. F. R. Young,” but that statement fails to show that the court permitted the evidence to be introduced, and, if he did, what it showed. There is nothing to indicate that all the execution dockets during the life of the judgment were offered in evidence. In the absence of such proof, the presumption would obtain that an execution had been issued. Baze v. Mfg. Co., 94 S. W. 460.

The answer of the garnishee did not attack the judgment on the ground of its dormancy, and it has been held that want of a valid judgment on which to base the garnishment must be pleaded by the garnishee in order to be available. Bassett v. Hammond, 1 White & W. Civ. Cas. Ct. App. § 108.

There being no pleading or evidence attacking the validity of the judgment upon which the writ of garnishment is based, it

becomes unnecessary for this court to pass on the question as to whether a dormant judgment will support a writ of garnishment. It may be stated, however, that the Supreme Court, in the case of White v. Casey, 25 Tex. 552, has held:

“But it is also contended that the justice’s judgment was dormant, and, therefore, could not support a garnishment. The writ of garnishment is but another mode of execution, having for its object the collection of money due on the judgment. If execution had been issued on the judgment, it would have been only voidable, not void. If the money had been paid on such an execution, it could not have been recovered back, either from the officer or the plaintiff in the judgment. We think the same principle must apply to the garnishment.”

This decision has been cited a number of times, but seems to have escaped the attention of two Courts of Civil Appeals in the cases of Friedman v. Early Grocery Co., 22 Tex. Civ. App. 285, 54 S. W. 278, and Bank v. Brown, 42 Tex. Civ. App. 584, 92 S. W. 1052; for in those cases a contrary rule is laid down. In the last case it is stated that it is well settled that a valid writ of garnishment cannot be issued upon a dormant judgment, and the case of Friedman v. Early Grocery Co. is cited as settling it. It would not seem to be so well settled when the Supreme Court has decided differently. We need not express an opinion on the subject until it is squarely before us for decision.

We discover no errors requiring a reversal, and the judgment is affirmed.


author: HUPP, C. J.

text:
    SLAUGHTER et al. v. BOYCE et al.
    (No. 593.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1914.
    Rehearing Denied Nov. 7, 1914.)
    1. Estoppel (§ 78) —Deed oe Teust —Release.
    Where a bank controlled by claimants, desiring- to transfer a note secured by a deed of trust, executed a release of the deed and an assignment of the note without recourse, but, because of doubt as to the validity of the deed, claimants were required to guarantee payment of the note, which they did, and thereafter were released to the extent of $1,200 on the assignee taking a new note from the original debtor and a new deed of trust, claimants, having subsequently been compelled to pay the balance of the debt unreleased, were estopped to claim, as against the assignee, that their claim against the debtor for the amount so paid was secured by a first lien on the security.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*]
    2. SüBEOGATION (§ 7*)— RIGHT TO SUBEOGAtion — Sureties.
    Where a surety for a part of a debt secured by a deed of trust was compelled to pay such part, he was only entitled to share in the security through the doctrine of subrogation, which conferred no rights on such surety until the demand of the creditor was fully paid.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 17, 18, 21-29, 58, 77, 83, 92; Dec. Dig. § 7.*]

      Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Action between W. B. Slaughter and others and A. G. Boyce and others. Prom a judgment in favor of the latter, the former appeal.
    Affirmed.
    Veale & Davidson, of Amarillo, for appellants. Del W. Harrington, of Amarillo, and R. E. Staicup, of 'Dalhart, for appellees.

      For otber cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Eep’r Indexes

   HUPP, C. J.

This cause originated in the probate court of Dallam county, from which it was appealed to the district court of that county, and from that court to this. The issues involved relate to the classification of certain claims and the dignity of the liens held by the respective parties. The issues will be sufficiently presented by the facts:

“On the 20th day of November/ 1906, appellants Slaughter, Clawson, and Imes loaned to C. D. Stepp and wife, Gertrude Stepp, the sum of $1,610, taking from them their note as an evidence of said indebtedness, due one year after date; also as security for same a deed of trust on the property involved in this suit, with other real estate. J. S. Bailey was named as trustee in the deed of trust, who also, as notary public, took the acknowledgment of Stepp and wife. This note had not been paid by the Stepps up to June, 1908. During this period of time appellant Slaughter was president of the First National Bank of Dalhart, Tex.; Ralph L. Moore was its cashier. About June, 1908, C. D. Stepp began negotiations with Col. A. G. Boyce, through his agent, J. H. Boyce, for the purpose of having Col. Boyce take over and carry the indebtedness. With a view to this end, Slaughter, Clawson, and Imes indorsed said note without recourse, and gave same to Ralph Moore to be delivered to Boyce, upon the payment into the First Nat-tional Bank of the amount of said Stepp’s note, with accrued interest; also Slaughter, Claw-son', and Imes executed their release of said deed of trust which was also delivered to Ralph Moore, with instructions to deliver same upon the payment of the amount of said Stepp note and accrued interest. Upon being advised by his attorney that said deed of trust was probably invalid, because the trustee named in same was also the notary who took the acknowledgment of Stepp and wife, J. H. Boyce refused to take over the note, unless Slaughter, Clawson, and Imes would indorse same in blank and guarantee its payment. Accordingly the ‘without recourse,’ indorsement was marked out, and Slaughter, Clawson, and Imes indorsed the note in blank and guaranteed its payment. The amount of the note was then paid to Ralph Moore, as the agent of Slaughter, Clawson, and Imes, and the note so indorsed was delivered to J. H. Boyce. In accordance with the instructions of Slaughter, the release of the deed of trust was also delivered by Ralph Moore. During the consummation of this transaction all of the parties concerned, including Slaughter, Clawson, and Imes, extended the note until November 30, 1908. On the date that this extension expired, November 30, 1908, Stepp and wife made ■ a new note to A. G. Boyce, for the full amount of the original indebtedness, including accrued interest to that date, and gave a new deed of trust on the property involved with other property; Boyce, however, holding Slaughter, Clawson, and Imes by reason of their guaranty on the old note. On December 16, 1908, having taken a new deed of trust from Stepp and wife, A. G. Boyce, through his agent, released Slaughter, Claw-son, and Imes to the extent of $1,200, by reason of their indorsement on the old Stepp note, this release being made by agreement between Judge Veale, attorney for Slaughter, Clawson, and Imes, and J. H. Boyce, acting for A. G. Boyce; and at this time all parties concerned agreed to extend the time until the 1st of March, 1909, at which time Slaughter, Claw-son, and Imes were to pay Boyce, under their guaranty, the difference between the original Stepp indebtedness and the $1,200 for which they had been so released. This agreement for extension was made for the purpose of giving Stepp an opportunity to procure additional or collateral security for his entire indebtedness, in the event of which Boyce was to release entirely Slaughter, Clawson, and Imes from their guaranty on the original Stepp note; but, should Stepp fail in this, then on the 1st day of March, 1909, Slaughter, Clawson, and Imes were to pay Boyce the entire Stepp indebtedness, less the $1,200 for which they had been so released, which sum amounted on March 1,1909, to $594.45. On March 3, 1909, Stepp having-failed to secure additional security for his indebtedness, Boyce demanded, and was paid by Slaughter, Clawson, and Imes, the $594.45, and said amount was then credited by Boyce on the new Stepp note held by him, thereby reducing the indebtedness of Stepp and wife to Boyce to the sum of $1,200. Stepp having died, and administration being had on his estate, Boyce filed his claim of $1,200, and accrued interest, with the administrator, and asked that it be allowed as a claim against the estate of Stepp, and that a first lien be declared on the property involved as security, which accordingly was done by the probate court. Slaughter, Claw-son, and Imes also filed in the probate court their claim for the amount which they had paid Boyce under their guaranty, with interest, and claimed a superior lien to that of Boyce on the property involved as security. The probate court allowed this claim and classified same, but denied to Slaughter, Clawson, and Imes their claim of a lien on the property involved as security for its payment. This suit was brought, and is being prosecuted, to determine the superiority of the lien held by Boyce and that claimed by appellants. The trial court having held that Boyce’s lien was superior to appellants’, this appeal has been prosecuted to review that judgment.”

This is the statement taken from appel-lees’ brief, which we find to be substantially correct.

The trial court finds that appellants executed a release to the lien on the lots to secure the note of $1,610. The facts are sufficient to sustain the finding. -Slaughter testified that he left the release with Moore — ■ “to be delivered when the money was paid, and when the money was paid he had a right to deliver the release, when he received the money or received a check for the money and the money was then passed to us. I left it there for the purpose of being- properly delivered when released. He had a right to deliver the release in case the money was paid — he or Mr. Haynes; I think it was Moore.”

There is no question made but the release was signed and acknowledged and left with Moore to deliver when the money was paid. Stepp made arrangements with Boyce to get the money, which was paid by a check of $1,703, drawn by Boyce and payable to appellants, and the testimony shows that the bank passed it to the credit of the appellants. The condition which appellants annexed to the delivery of the release was complied with. Subsequently, by agreement of all parties, a new deed of trust was executed on the property to secure the entire indebtedness. By this agreement appellants were released on their guaranty for the sum of $1,200 of the indebtedness, and were held liable for the balance of the indebtedness, which amounted, principal and interest, to $595. We think under this last agreement and arrangement it would be inequitable to postpone appellees, and revive a release mortgage for appellants’ benefit, which, in fact, would release them entirely from their guaranty and result in Boyce looking alone to the deed of trust for the payment of the entire indebtedness. This was not the agreement and the understanding by the parties at the time of entering the $1,200 credit. We believe it would be grossly inequitable to allow such a result, and we think, under the facts of this ease, that appellants by the release, contract, and deeds are estopped from now saying their claim is secured by a first lien.

The solution of this case, however, does not rest alone upon estoppel. The note was executed, by Stepp and wife to appellants. The appellants indorsed it to Boyce and guaranteed its payment. When they did so they transferred, not only the debt, but the lien. They have therefore no right to participate in the proceeds of the lien until the debt which it was given to secure is paid. If appellants’ contention is correct, that the release was not delivered, then the lien existed to satisfy the debt in full transferred to Boyce. When the debt was renewed by the new note and deed of trust executed on the property to secure it, it had the effect to renew the debt and the lien to secure the debt. The fact that the old note was credited with $1,200 by the new note and holding the guarantors only for the balance did not thereby create two debts, but was the method adopted to evidence appellants’ guaranty and the amount for which they obligated themselves to pay. The notes and deeds of trust evidence the same indebtedness and lien. Changing the form of the obligation did not change the debt or release the lien securing it. If appellants desire their claim paid out of the proceeds of the property under foreclosure, they should first pay the entire indebtedness due Boyce, which the lien secured.

The appellants, in other words, are entitled to be subrogated to Boyce’s lien when the debt due Boyce is paid, and not before. Neither of the deeds of trust secured appellants except through the doctrine of sub-rogation. They transferred the lien with the note to Boyce, whose debt was secured thereby.

“Even if a surety is liable only for a part of the debt and pays that part for which he is liable, he cannot be subrog;ated to the securities held by the creditor until the whole demand of the creditor is satisfied.” Sheld. Sub. § 127.

Until Boyce had been fully satisfied the appellants cannot enforce subrogation.

“When his debt has been only partially paid, it would be unreasonable to hold that the third party who made such payment thereby acquired a precedence over him, or was even placed upon an equal footing, in reference to the security for the payment of the remainder of his debt. No claim by subrogation, whether conditional or by operation of law, to the securities held or the. remedies enjoyed by a creditor for the collection of his demand, can be enforced until the whole demand of the creditor has been satisfied.” Cason v. Westfall, 83 Tex. 26, 18. S. W. 668; Darrow v. Summerhill, 24 Tex. Civ. App. 208, 58 S. W. 158, on page 164; Goddard v. Peeples, 11 Tex. Civ. App. 615, 33 S. W. 314.

See note to American Bonding Co. v. National, etc., Bank, 99 Am. St. Rep. 482, 483.

We think the trial court correctly held that the appellees should first be paid out of the proceeds obtained under foreclosure, and that appellants’ claim be postponed until appellees are fully satisfied.

The judgment is affirmed.


text:
    HOWARD et al. v. OLIVER, Tax Collector.
    (No. 5386.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1914.)
    Schools and School Distbicts (§ 107)— School Taxes — Collection — Election —Want of Notice.
    Where no notices of a school tax election were posted, the burden was on the collector, in a suit to restrain collection of a tax, to show that such a majority of the voters in a district had actual notice of the election as to preclude the idea that the result would have been affected if all who did not have notice had been present and voted, under the rule that elections will not be set aside for want of notice unless failure to notify the voters resulted in stifling the voice of a majority of the voters.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by J. W. Howard and others against E. R. Oliver, tax collector, to restrain the collection of a school tax. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    S. A. Early, of Corpus Christi, for appellants. Jas. M. Taylor, of Corpus Christi, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Appellants brought this suit to restrain the collection of a - school tax in school district No. 5, Nueces county, on the ground that no notices of election on the tax proposition, although ordered by the county judge, wore issued nor posted by the sheriff, that the voters had no actual knowledge of the election, and that a majority would have voted against the tax proposition. After hearing the evidence the court denied the injunction sought by appellants.

The evidence showed that no notices of the election were posted by the sheriff or any one else, and when that appeared the burden. rested on appellee to show that such a majority of the voters of the district had actual notice of the election as to preclude the idea that the result of the election would have been affected if all who did not have notice had been present and had voted. Elections will not be set aside for want of notice, unless such failure to notify the voters resulted in stifling the voice of a maj'ority of the voters. The parties have sent up an “agreed statement of facts” which is so meager as to form a poor guide to this court. Appellee introduced no testimony. Appellant alleged that seven voters had failed to receive notice of the election, naming them, and six of them testified. Prom their testimony it was ascertained that three of them had no notice of the election, two of them had not paid their poll tax and were not qualified voters, and one of them, Robert Poenish, had actual knowledge that the election was to be held, but because his brother, who had been appointed to hold the election, told him he did not intend to hold it, did not go to the polls. The brother did not hold tne election, but it was held. The testimony fails to show how. Robert Poenish would have voted, or whether his brother, who favored the levy of the tax, cast his vote. The seventh man, J. R. Simmons, who was alleged to have had no notice of the election, was lost sight of or ignored, and this court does not know whether he received notice or not. Either no effort was made to develop the evidence, or after it was developed it was not written into the agreement. If the 3 men, who testified that they were not notified, and that if they had been notified they would have voted against the tax, be added to the 9 who voted against the tax, the poll would stand 13 in favor of any 12 against the tax. Then if one Poenish be added to each side, the position of the vote remains relatively the same. If Simmons was not notified as was alleged, his vote, added to the 13 against the tax, would cause a tie. The evidence does not clear up the situation, but leaves it in doubt as to whether a clear majority was for the tax. In this connection it may be said that a majority of those who voted will control, unless it be shown that enough voters were not notified to have changed the result had they voted.

If the two Poenishes who were notified be ignored in making a calculation, and only the tliree witnesses who swore they were not notified and Simmons be considered, we have the result that 13 voted for the tax, 9 voted against it, and 4 were not notified, making a tie vote.

The duty devolved on appellee to show-that such a majority of the voters had notice of the election that the result of the election would not have been altered if all had been notified. This was not done, and the court should not have rendered judgment in favor of appellee. While this is true, it does not follow that judgment should be here rendered for appellant, because we do not feel disposed to declare an election null and void where it is so evident that the matter has not been fully developed.

The judgment is reversed, and the cause remanded.


author: HUFF, C. J.

text:
    WICHITA VALLEY RY. CO. et al. v. LEATHERWOOD.
    (No. 712.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1914.)
    Appeal and Error (§ 59) — Court oj? Civil Appeals — Jurisdiction—“Amount in Controversy.”
    Rev. St. 1911, arts. 1589, 2078, give to Courts of Civil Appeals jurisdiction of cases of which the county courts have appellate jurisdiction when the “amount in controversy” exceeds $100, exclusive of interest and costs. Article 2178 provides that if a claim for injury to stock is not paid within 30 days after presentation, the claimant may sue therefor, and if he shall finally establish his claim and obtain judgment for the full amount as presented for payment, he may recover the amount of the claim and all costs of suit, and in addition thereto a reasonable amount as attorney’s fees, provided he has employed an attorney, not to exceed $20. Held, that such $20 attorney’s fees is not a part of the costs, but rather a part of the damages ; and hence, where plaintiff sued for $100 for injuries to a mule and also for reasonable attorney’s fees not to exceed $20 under such act, the attorney’s fees constituted a part of the amount in controversy so as to'confer appellate jurisdiction on the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 270-274; Dec. Dig. § 59. For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]
    Appeal from Dickens County Court; O. S. Ferguson, Judge.
    .Action by M. G. Leatherwood against the Wichita Valley Railway Company and others. Judgment for plaintiff, and defendants appeal. On motion to dismiss.
    Denied.
    W. T. Andrews, of Stamford, and Chapman & Coombes, of Anson, for appellants. W. D. Wilson, of Spur, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellee, by motion,, seeks a dismissal of this cause on the ground that this court is without jurisdiction, for the reason that the suit originated in the justice court, of which the county court had appellate jurisdiction, and that the amount in controversy does not exceed $100. The record shows that the suit was brought in the justice court, precinct No. 3, Dickens county, in which court appellee obtained judgment, from which appellant appealed to the county court of said county and in which latter court appellee again obtained judgment for $100, and the further sum of $20, attorney’s fees. The demand of appel-lee filed in the justice court was substantially stated as follows: To injury and damage to a mule while being loaded on the car through the negligence of the servants of appellants, $100; “also for reasonable attorney’s fees, not to exceed $20, as provided by article 2178 of the Revised Civil Statutes of the state of Texas, plaintiff having employed an attorney in this cause and made demand in writing upon the Wichita Valley Railway Company for the payment of said claim, more than 30 days before filing of this suit.” As we understand the contention of the appellee, the attorney’s fee is claimed by him to be part of the costs, and not part of the amount in controversy.

The Courts of Civil Appeals have jurisdic-tibn of cases of which the county courts have appellate jurisdiction when the amount in controversy shall exceed $100, exclusive of the* interest and costs. Articles 1589, 2078, R. O. S. The statute authorizing a recovery of attorney’s fees provides that a person having a bona fide elaiift against any person or corporation doing business in this state for stock injured by such person or corporation, upon the presentation of the claim to such parties or their authorized agents in the county where the suit may be instituted, and if the same is riot paid within 30 days after presentation, he may sue therefor, and if he shall finally establish his claim and obtain judgment for the full amount thereof, as presented for payment, he shall be entitled to recover “the amount of such claim and all costs of suit, and, in addition thereto, a reasonable amount as attorney’s fees,” provided he has an attorney employed, not to exceed $20, to be determined by the court or jury trying the case. Article 2178, R. C. S. It will be noted the act itself makes attorney’s fees an amount additional to costs. It is not to be recovered and taxed as costs, but attorney’s fee is to be reasonable and not to exceed $20, which is to be determined by the court or a jury, and the judgment must be for the full amount of the claim presented, and 30 -days must have elapsed after such claim is presented before suit is brought, etc. These are all the facts which must be alleged and proven before a recovery can be had for attorney’s fees — it is thereby made part of the “amount in controversy.” Its recovery is a matter of controversy, both as to the right of recovery as well as the amount thereof. We gather from the law that it was the intention of the Legislature to allow it as in the nature of a penalty for the failure to settle claims which are just or bona fide, without forcing the holder to the necessity of bringing suit thereon. We follow the case of Gulf, C. & S. F. Ry. Co. v. Werchan, 3 Tex. Civ. App. 478, 23 S. W. 30, which holds an attorney’s fee recoverable under the act of April 5, 1889 (Gen. Laws 1889, p. 131), more in the nature of a penalty than that of costs, the act there under consideration is substantially the same as the law now under review. Gulf & I. R. Ry. Co. v. Gregory, 59 S. W. 310. The Missouri courts, under statutes similar to ours, hold attorney’s fees recoverable in their nature penalties which inhere in the cause of action, in addition to the principal sum recoverable at common law, as enhanced damages, savoring of penalty for vexatious conduct in causing litigation to be prosecuted. Bucholz v. Metropolitan Life Ins. Co., 176 Mo. App. 464, 158 S. W. 451, and authorities cited.

We conclude that we have jurisdiction of the appeal, and overrule appellee’s motion to dismiss.