author: MORROW, J. PRENDERGAST, J. DAVIDSON, P. J.

text:
    SESSIONS v. STATE.
    (No. 4408.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.
    Dissenting Opinion, July 18, 1917.
    Concurring Opinion, Oct. 13, 1917.)
    1. Criminal Daw &wkey;951(l) — New Trial-Motion — When to be Fileb.
    While under Code Or. Proc. 1911, art. 839, the court is given discretion in felony cases to hear a motion for new trial after two days, in misdemeanor cases the motion must be filed within two days of conviction.
    2. Criminal Daw <&wkey;1129(l) — Appeal—Assignments op Error.
    Rev. St. 1911, art. 1612, relating to assignments of error, pertains to civil cases only.
    3. Criminal Daw <&wkey;1063(l), 1129(1) — Review-Assignments of Error — Necessity.
    Court rule 101a (159 ,S. W. xi), relating to assignments of error and motion for new trial, does not control the authority of the court to pass upon questions disclosed in the record on appeal.
    4. Courts &wkey;>78 — Court Rules — Statute.
    Court rule 101a, if intended to prevent review of record because there was no motion for a new trial, would be inconsistent with legislative enactment, and hence beyond the power of the Supreme Court, the procedure for criminal appeals being prescribed by statute.
    5. Criminal Daw <&wkey;1063(l) — Appeal—Motion for New Trial — Necessity.
    Vernon’s Ann. Code Cr. Proc. 1916, arts. 744, 844, relative to bills of exceptions and statements of facts, and other statutes providing the requisites of bills of exceptions and statements of facts, constitute the statutory means in criminal cases for bringing questions before the appellate court for review, and a motion for a new trial is unnecessary, except as to questions not raised by bills of exceptions or statement of facts.
    6. Criminal Daw <&wkey;778(5) — Instructions— Reasonable Doubt — Burden of Proof.
    In a prosecution for carrying concealed weapons, an instruction, “If you believe from the evidence beyond a reasonable doubt that the-defendant had on his person a pistol, as charged, but that he was on his own premises and not in the street, then the defendant would be guilty of no offense,” was erroneous, in that
      it put the burden on defendant to prove be was on bis own premises.
    Prendergast, J., dissenting.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Verge Sessions was convicted of crime, and be appeals.
    Reversed and remanded.
    Lee R. Stroud, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   MORROW, J.

Appellant was tried before a jury for unlawfully carrying a pistol, and on conviction bis punishment was fixed at a fine of $100.

Appellant complains that tbe court refused to consider his motion for a new trial, which appears to have been filed three days after tbe conviction. Under article 839, C. C. P., tbe court is given discretion to bear a motion for new trial in felony cases after two days, but the requirement that they should be filed within two days appears to be mandatory in misdemeanor cases. Banks v. State, 186 S. W. 840.

The record contains a statement of facts and hills of exceptions. The right to consider these in the absence of a motion for a new trial is challenged by the state. In Gant’s Case, 73 Tex. Cr. R. 280, 165 S. W. 142, it is held that this court will not review matters which have not been presented to the trial court in a motion for a new trial. This ruling has been followed in several cases. Smith v. State, 189 S. W. 484; Vinson v. State, 179 S. W. 574. This ruling is based upon a rule of the Supreme Court. Tbe Constitution authorizes the Supreme Court to make rules governing that and other courts in the state. Article 5, § 25. So far as our investigation has led us, the Supreme Court has under this provision made but three rules for the Court of Criminal Appeals. These were made in 1877, shortly after the Constitution was adopted, and will be found in volume 2, Court of Appeals Reports, p. 645. Neither of these rules prescribes any condition precedent to the review by this court of errors of the trial court. The Supreme Court has from time to time made rules for the district court, some of which are stated therein, for the purpose of directing the manner of preparing transcripts for appeal to this court. Some of these are discussed in Ratliff’s Case, 29 Tex. App. 249, 15 S. W. 596, and in eases listed in Harris’s Ann. Constitution, p. 489. None of these purport to affect the question on motion for new trial. Numerous rules have been made by the Supreme Court for that court and the Courts of Civil Appeals. 142 S. W. p. vii; 159 S. W. p. x. The rule on which the Gant Case and those following it are based is one relating to assignments of error.

Article 1612, Revised Civil Statutes of 1911, contains a provision with reference to assignments of error. It pertains to civil cases only. In fact, assignments of error have never been required in this court. Branch’s Ann. P. C. p. 311, § 604, and cases cited. That statute was amended in 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), so as to dispense with assignments of error in the civil courts where a motion for new trial was filed. In consequence of this statute, the Supreme Court added rule 101a to the rules for the district court. This will be found at page xi, 159 8. W.

We think it is a mistaken view to assume that this rule controls the authority of this court to pass upon questions disclosed in the record of appeals. The Supreme Court has not undertaken to make rules for this court for that purpose, and it is a mistake to hold that those made for other courts would have such effect.

Even if the rule mentioned had been intended to apply to this court and given the effect accorded it in Gant’s Case, it would have been, in our judgment, beyond the power of the Supreme Court. It has no power to make rules inconsistent with legislative enactment. Johnson v. State, 39 Tex. Cr. R. 625, 48 S. W. 70.

The procedure for appeals to the Court of Criminal Appeals is prescribed by statute. Article 914, O. C. P., provides that an appeal from' conviction may be taken at any time during the term, and article 915 provides that this is accomplished by giving notice of appeal and having it entered of record. There is no statute requiring a motion for a new trial to be filed. Title 9, c. 1, Vernon’s Ann. C. C. P. 1916, gives the convicted defendant the privilege of filing one; requires the court to grant it under certain circumstances; declares when it shall be filed; and article 840 gives its requisites as follows: “All motions for new trials shall be in writing, and shall set forth distinctly the grounds upon which the new trial is askedand article 844 of the same chapter provides: “Where the defendant has failed to move for a new trial he is, nevertheless, entitled, if he appeals, to have a statement of the facts certified, and sent up with the record.” Article 744 requires the trial court to sign a bill of exceptions on request showing his ruling, “in order that such decision, opinion, order, or charge may be revised upon appeal.” Prior to the passage of the act of 1913 (article 743, Vernon’s Ann. Code Cr. Proc. 1916), requiring an exception to the charge before it is read to the jury, exceptions were reserved to the charge in the motion for a new trial. The motion for a new trial was the first opportunity the trial court was given under the law to know the objections that a defendant had "to suggest. Since that enactment, exceptions to the charge and the refusal of special charges are reserved by bills of exceptions, the court having been given an opportunity to pass upon the questions before the charge was given. These statutes (article 744, relative to bills of exceptions, and article 844, with reference to statements of facts), and the decisions of this court, and the statute providing the requisites of bills of exceptions and statements of facts, constitute the statutory means of bringing before this court questions for review, except in those cases where some matter arises which neither a bill of exceptions nor a statement of facts would bring into the record. In such cases the motion for a new trial and the ruling of the court thereon, and the evidence heard in connection therewith, serve the purpose of making such matters a part of the record; and it is only with reference to such matters, in our judgment, under our statute, that a motion for a new trial becomes necessary to authorize a review of the proceedings, and it is necessary only with reference to such proceedings as are not otherwise a part' of the record.

Such we understand to be the view of the Supreme Court. Ry. Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471, wherein the rule referred to in the Gant Case, supra, was discussed in connection with article 2062, Revised Civil Statutes; and to the same effect is the decision of the Supreme Court in Western Union v. Mitchell, 89 Tex. 441, 35 S. W. 4, from which we copy the third subdivision of the syllabus, as follows:

“When the trial court overrules or sustains exceptions to the petition, admits or rejects evidence, or gives, refuses, or qualifies instructions, and such action becomes matter of record, being the action of the court itself, it is subject to revision. The aggrieved party is not bound to ask a revision of such ruling in a motion for new trial.”

Our conclusion from tbe foregoing authority is that where an appeal is prosecuted this court is required by the law to consider questions raised, by bills of exceptions properly prepared and made a part of tbe record, and a statement of facts prepared and filed In compliance with the statute, and that it is not absolved from tbis duty by the failure of the defendant below to file a motion for a new trial.

Acting on this conclusion, we proceed to consider the questions thus raised in this case. It appears that appellant while at work in an oil mill received information that he was in danger of attack from certain parties; that on his way home from work he purchased a pistol and carried it to his home, and after he reached home, before he had taken the pistol off of his person, some people came to his residence after night and attracted his attention, and he walked out to ascertain who they were and what was wanted, and that while doing so he was arrested with the pistol in his possession. There was a sharp issue of fact as to whether he stepped off of his premises or not, it being claimed by the state that he did walk a few feet off of his premises, and this the defendant denied. The officer who arrested him said that the appellant’s house was from five to eight feet back from the street; that there were parties in front of his house, and that the officer called these parties, and that the appellant walked off of his porch and came off of his yard and was arrested. We quote from the officer as follows:

“About that time the said two negroes in front of the house drove off in the buggy from where they were stopping, and then the defendant came around his house from his back porch and came walking along towards where I was when I had called to Burton and Rice, and when defendant had come off his yard toward me I spoke to him, and he started back and I grabbed him, and Mr. Keith also stepped up and took hold of him, and we searched him right there and took a pistol off his person. Defendant’s house is east of that street above five to-eight feet, and when I caught defendant and arrested him there with Mr. Keith he was not inside of his yard, but had advanced from off his yard towards me until he had g-otten off his yard into the street. He was in the street when I arrested him, for I never did leave the street myself, and he was in the street when I grabbed him. He had started back a little when I caught him toward the house, but was outside his yard.”

The appellant and. several witnesses testified that he did not go outside of his yard. The owner of the premises which appellant was occupying as a tenant testified that the ground in front of appellant’s house where the travel passed it was not in the street but ón tbe premises occupied by appellant. He said:

“There is a break, or ravine, at the west side of that street right opposite to his house, which so obstructs or impairs the street there as to cause the travel along there right opposite his house to slightly encroach upon the defendant’s, yard; that is, what appears to be the east side of the street is on a part of defendant’s yard for perhaps just a few feet.”

It is doubtful, in view of tbis testimony, whether the proof showed that appellant was off his premises with the pistol, and, even if he was, it is not clear that his act in-stepping out of his yard under the circumstances, with the pistol on his person, would show an offense. The court on this subject charged the jury as follows: (

“If you believe from the evidence beyond a-reasonable doubt that the defendant had on his-person a pistol, as charged, but that he was on his own premises and not in the street, then the defendant would be guilty of no offense under our laws.”

This charge was excepted to and is not accurate, because it puts tbe burden of proof on appellant to prove bis defense. Tbe appellant also requested a charge submitting tbis issue in a more accurate and in an affirmative manner, and, in our judgment, the bill of exceptions to tbe paragraph of the court’s, charge, mentioned in connection with the refusal of this special charge, presents error. Branch’s Ann. P. O. p. 560, § 975.

And because of tbis error it is ordered that the judgment of the lower court be reversed,, and the cause remanded.

PRENDERGAST, J.

(dissenting). The statute (article 839, O. G. P.) positively requires:.

“A new trial must be applied for within two days after the conviction; but, for good cause shown, the court, in oases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had. When the court adjourns before the expiration of two days from the conviction, the motion shall be made before the adjournment.”

This court has expressly held this statute is mandatory, and that, in misdemeanor convictions, motions for new trial cannot he filed nor considered unless filed within two days after conviction. Banks v. State, 186 S. W. 840. This statute and decision is expressly permitted to stand under the majority opinion herein.

The appellant did not file any motion for a new trial within two days after his conviction. When he attempted to do so later, the court, on the motion of the state, correctly struck out his motion for a new trial and expressly refused to consider it. Hence the case stands in this court without any motion for a new trial, and is so stated and treated by the majority opinion.

Under such circumstances, this court has heretofore uniformly, and in a great many decisions, held that this court cannot consider nor pass on any question not saved and raised by a motion for new trial in the trial court during term time. In other words, that this court can pass only on questions raised by appellant’s motion for new trial, and which must have been presented to and acted upon by the trial court at the term of conviction.

I will cite and quote some of these decisions:

In Keye v. State, 53 Tex. Cr. R. 322, 111 S. W. 402, appellant therein had a bill of exceptions to the exclusion of certain testimony offered by him, but he did not make that a ground of his motion for a new trial. Tnis court, through Judge Ramsey, held:

“Appellant contends that the court erred in excluding the testimony of the witness Bandalls in respect to statements of Margaret Speed, an inmate of Blanche Dumont’s house, that they (meaning the Dumont people) would be fixed for him if he came back. A sufficient answer to this contention is that it was not made a ground of the motion for a new trial. * * * ”

Judges Davidson, Brooks, and Bamsey then composed this court. All concurred in that decision.

In Veas v. State, 55 Tex. Cr. R. 126, 114 S. W. 830, this court, composed of the same judges, through Judge Brooks held:

“Various errors are suggested in appellant’s brief, in addition to the above grounds set up in the motion [for new trial], why this case should be reversed, but, under article 723 of the Code of Criminal Procedure, the present court has held that same will not be reviewed where there is no complaint in motion for new trial of such supposed errors.”

All the judges concurred.

In Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605, this court, composed of the same judges, through Judge Brooks held:

“We find no motion for a new trial in the record. We find an assignment of errors, but an assignment of errors has no place in this court. All errors in the charge must be reserved in a motion for a new trial. The assignment of errors is not filed in the lower court. In the absence of motion for a new trial, there is nothing in this record authorizing a review.”

On rehearing, 57 Tex. Cr. R. p. 8, 121 S. W. 605, it was held:

“Appellant contends there is a motion for a new trial in.the record'. There is an unsigned portion of what purports to be a motion for a new trial, though it does not appear to have been filed, and is indexed as an assignment of errors. Unless a motion for new trial is filed it cannot be reviewed by us.”

All the judges concurred.

In Daniels v. State, 58 Tex. Cr. R. 571, 126 S. W. 1154, when this court was composed of Judges Davidson, Bamsey, and McCord, this court, through Judge McCord, held:

“Counsel in their brief urge an objection to the charge of the court in that the court submitted the case to the jury on the question of assault to murder, and on aggravated assault growing out of an injury inflicted produced by passion aroused by an adequate cause, and did not submit the issue of aggravated assault if intent was not to kill. No such objection is urged in the motion for new trial, and therefore same cannot be considered.”

All the judges concurred.

In Frazier v. State, 61 Tex. Cr. R. 651, 135 S. W. 584, when this court was composed of Judges Davidson, Harper, and I, through Judge Harper we held:

“There are several criticisms of the charge of the court in the motion for a rehearing, but this court has always held that we would not consider grounds that were not assigned in the motion for new trial.”

All the judges concurred.

In Tilmeyer v. State, 62 Tex. Cr. R. 276, 136 S. W. 1063, while this court was composed of the same judges, through Judge Harper we held:

“Complaint is made that ‘assignments of error and propositions thereunder’ contained in appellant’s brief were not considered by the court. In the brief appellant admits no ‘assignments of error were filed in the lower court,’ and on appeal we consider only such matters as were presented in bills of exception and motion for a new trial presented to the trial court. In Harvey v. State, 57 Tex. Cr. R. 7 [121 S. W. 605], it is held: ‘We find an assignment of error, but an assignment of error has no place in this court. All errors in the charge must be reserved in motion for new trial. The assignment of error's is not filed in the lower court. In the absence of a motion for a new trial there is nothing to review.’ Again in Flournoy v. State, 57 Tex. Cr. R. 88 [122 S. W. 26], it is held: ‘There are some criticisms of the charge in the brief which are not mentioned in the motion for a new trial. As these matters are presented they cannot be considered.’ And in Veas v. State, 55 Tex. Cr. R. 125 [114 S. W. 830], this court says: ‘Various errors are suggested in appellant’s brief in addition to the above grounds set up in the motion for a new trial why this case should be reversed, but, under article 723 of the Code of Criminal Procedure, the present court has held that same will not be reviewed where there is no complaint in the motion for new trial.’ For a number of years it has been the rule of decision that this court will not consider ‘assignments of error.’”

All the judges concurred.

In the Elournoy Case, cited and quoted supra. Judge Davidson wrote the opinion. All the judges concurred therein. The court was then composed of Judges' Davidson, Brooks, and Ramsey.

In Day v. State, 62 Tex. Cr. R. 451, 138 S. W. 132, when Judges Davidson, Harper, and I composed this court, through Judge Harper we held:

“Appellant filed his motion for a new trial on October 10th, and it was overruled by the court on the same day. On December 10th appellant ■ filed assignments of error in which a number of matters are complained of not presented in the motion for a new trial. These we cannot consider. The unvarying rule in this court has been that nothing that is not presented in the motion for a new trial will be reviewed by this court on appeal. Harvey v. State, 57 Tex. Cr. R. 7 [121 S. W. 605]; Veas v. State, 55 Tex. Cr. R. 125 [114 S. W. 830].”

All the judges concurred.

In Vela v. State, 62 Tex. Cr. R. 370, 137 S. W. 120, we held the same. All the judges concurred.

In Taylor v. State, 62 Tex. Cr. R. 619, 138 S. W. 615, we held the same. ' All the judges concurred.

In Rome Ellington v. State, 63 Tex. Cr. R. 420, 424, 140 S. W. 1100, 1104, when the court was composed of Judges Davidson, Harper, and I, we held:

“The contentions in the brief, having no support in the motion for new trial cannot be considered by us. It has been the uniform holding of this court that error not assigned in the motion for a new trial cannot be reviewed by us on appeal (Bailey v. State, 45 S. W. 708), and a mere suggestion of error in the motion for a new trial is insufficient; it must point out the error, that the court may know in what the complaint consists. Martin v. State, 38 Tex. Cr. R. 462 [43 S. W. 352]. There being no error assigned in the motion for a new trial, the judgment is affirmed.”

All the judges concurred.

In the next case, of John Ellington v. State, 63 Tex. Cr. R. 424, 426, 140 S. W. 1100, 1104, we held the same way. All the judges concurred.

In Fifer v. State, 64 Tex. Cr. R. 211, 141 S. W. 989, when this court was composed of the same judges, Davidson, Harper, and I, we held:

“Neither can we consider the assignments of error in the transcript. This court has held that we can only look to the motion for a new trial, and consider such questions as there raised.”

All the judges concurred on this point. While Judge Davidson dissented on other points, he did not dissent on this.

In Wormley v. State, 65 Tex. Cr. R. 49, 143 S. W. 616, we held.

“These are all the grounds stated in the motion for a new trial, and we are not permitted, under the decisions of this court, to consider grounds stated in the assignments of error, filed later on, not included in the motion for a new trial. Harvey v. State, 57 Tex. Cr. R. 7 [121 S. W. 605].”

All the judges concurred.

In White v. State, 70 Tex. Cr. R. 287, 157 S. W. 152, when we same judges composed this court, we held as before. We all concurred.

In Gant v. State, 73 Tex. Cr. R. 280, 165 S, W. 143, we held:

“The record before us contains several bills of exception relating to the admissibility of certain testimony. These bills were not filed until after court adjourned, and in the motion for a new trial no complaint is made in regard to any of these matters. Our Constitution has provided that the Supreme Court may make rules for the government of proceedings in all the courts in this state, and the Supreme Court has provided in its rules that in a motion for a new trial filed in the trial court all grounds relied on shall be stated, or the court on appeal will not consider such grounds. Rules, vol. 142, S. W. pp. vii, et seq., 159 S. W. viii to xi. In the motion for a new trial the matters complained of in these bills of exception were not presented to the trial court as a reason why he should grant a new trial, and they are presented to us in bills of exception filed after term time. Of course, the bills can be filed after term time if the matter is presented to the trial court in the motion for new trial, but hereafter, to authorize this court to review these matters, the record must disclose that they ,were presented to the trial judge in the motion for a new trial, and that he overruled them. Motions for a new trial are required to be filed that the trial judge may correct his own errors, if error there be; it is not fair to him to present a matter to us and ask that we reverse a ruling which he was given no opportunity to rule on. We call attention to this matter, and will expect and require attorneys to present all the grounds upon which they rely in the motion for new trial filed in the court below. As frequently said by this court, ‘assignments of error,’ other than the motion for new trial, have no place in the record and will be stricken therefrom.”

We all concurred.

In Jones v. State, 73 Tex. Cr. R. 154, 165 S. W. 145, where I had the honor to write the opinion, yve held:

“This case was tried on October 30, 1913, after the new law and new rules of procedure had been in effect since July 1, preceding. Under these only such matters as are presented in appellant’s motion for new trial can be assigned as error and passed upon by this court. Gant v. State and authorities therein cited, decided March 18, 1914.”

We all concurred.

The latest decision before the majority opinion herein, was in Smith v. State, 189 S. W. 484, rendered on October 25, 1916, and in which a motion for rehearing, again presenting that question, was overruled on November 22, 1916 — just a little more than a month before Judge Morrow became a member of this court. In that ease Smith, the appellant therein, had, at the proper time, objected to the introduction of certain important evidence against him. The trial court overruled his objections, and he saved the point by a proper bill of exceptions, duly allowed and approved by the trial judge. But in his motion for a new trial he did not make this ruling and bill a ground for a new trial. We held: ■ •

“As to the bill complaining of admitting the alleged dying declaration in evidence, the state contends we should not consider it, because in the motion for a new trial this question was not raised, nor presented to the trial court as a reason why the trial court should have set the judgment aside, and we are referred to the case of Gant v. State, 73 Tex. Cr. R. 279, 165 S. W. 142, as supporting the state’s contention. See, also, rules, pp. viii to xi, 159 S. W.; Vinson v. State, 179 S. W. 574; Dees v. Crane, 175 S. W. 468. In that case, decided March 14, 1914, we called the attention of the bar to the fact that our Supreme Court was given authority to prescribe rules for the government of all courts, and had provided that grounds not presented to the trial court in' the motion for a new trial could not be considered on appeal. To consider the hill in this case, we must ignore that rule of the Supreme Court. Appellant admits that in his motion for a new trial there is no ground specifically assigning the admission of the dying declaration as error, but says it was an oversight, and contends that, inasmuch as we have always heretofore, in emphasizing that we must follow the rules adopted by the Supreme Court, gone into and discussed the bills, we should, notwithstanding the omission, consider his bill in this instance. We have never felt inclined, nor do we now feel inclined, to deprive an appellant of a substantial right by reason of a technical failure to observe the rules, but counsel ought to remember that, while this court is a court of final resort, yet the laws of the state and the rules governing the courts are and should be binding on us.”

This court was then composed of Judges Davidson, Harper, and I. We all concurred.

In Vinson v. State, 179 S. W. 575, appellant filed in the court below after the trial an “assignments of error,” seeking thereby to present errors not set up in his motion for a new trial. We held;

“Why is a motion for a new trial required to be filed? It is to enable the trial court to correct his own errors, if errors there be, in the trial of the case, and it is not fair to the trial court to seek to present error in the record to this court to which his attention was not called. It is the rule in this state in all the appellate courts now that all grounds relied on to present error must be contained in the motion for a new trial filed in the court below. The rules adopted by the Supreme Court now provide: ‘All errors not directly specified in the motion for a new trial shall be waived.’ Rule 101a (159 S. W. xi). The Constitution and laws of this state authorize the .Supreme Court to adopt rules for the government of all the courts in this state, and such rules govern, when not in conflict with some statutory provision. Of course, it is provided that fundamental error may be presented at any time. * * * Assignments of error, filed in vacation, have no place in a transcript in a criminal case. The motion for a new trial is what we look to, and that alone. Harvey [Jones] v. State, 55 Tex. Cr. R. 207, 116 S. W. 1147; Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830. * * * ”

Judges Davidson, Harper, and I then constituted this court. We all concurred.

The bills of exceptions to admitted or excluded evidence, or to the charge of the court, or to refused charges, or on any other grounds, are not of and within themselves “assignments of error” — they are solely a necessary basis upon which a claimed error can and must be raised and presented by a motion for a new trial, and without which this court cannot consider any claimed error. And unless so raised and saved by such motion they are waived and cannot be considered by this court.

If this court cannot consider “assignments of error” filed in the lower court, not based on grounds of a motion for new trial, then, of course, when no motion at all for new trial is filed and acted upon by the lower court, this court cannot do the more absurd thing of considering and passing on questions attempted to be raised by neither “assignments” nor a motion for a new trial.

There are many other decisions by this court exactly to the same effect as those cited and quoted above. It would be idle to cite or quote them.

I have searched diligently to find any case by either the Supreme Court, when it had jurisdiction of criminal cases, or this court, where it was ever held contrary to the decisions above. I have not found any such case. No such case is cited in the majority opinion herein. There is none.

Are all these decisions I have cited and quoted above at this late date to be overruled at one fell swoop by a divided court, and that, too, without any reason or authority? In fact, against, and in the face of, both reason and authority? I cannot think so. I cannot but believe that the majority opinion was rendered in haste without a full investigation and without mature deliberation, and that my Associates will correct it at the first opportunity. The law on this point was not even questioned in earlier days. No appellant, and no attorney for him, in those days, had the temerity to even contend that this court could go over the heads of the trial courts, and pass on questions not saved and made by their motions for new trials, and not presented to, nor passed on, by the trial judges under such motions, Every judge of this court in every case where the question has been passed on has expressly and many times, and at all times, held this could not be done.

If what was held by Judge Morrow so recently as February 28, 1917, in Lyle v. State, 193 S. W. 684, and which he cited with approval on June 27, 1917, in Gearheart v. State, 197 S. W. 187 (not yet officially reported), three weeks after he wrote the majority opinion herein, was good law then, it is certainly so now. I quote what he held:

“The force of rulings on the same legal principle by courts of the same jurisdiction should control its subsequent decisions, unless it is demonstrated that the prior decision was unsound. On this subject Chancellor Kent says: ‘Where a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review and never by the same court, except for very urgent reasons and upon clear manifestation of error; and if the practice were otherwise, it would be leading us in perplexing uncertainty as to the law.’ Kent’s Commentaries, vol. 1, p. 475; Cooley’s Const. Lim. (6th Ed.) p. 64, and eases cited.”

Prior to the act of April 4, 1913, p. 276, by which article 1612 of the Revised Civil Statutes of 1911 was amended (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), that article positively required that in civil cases “the appellant * * * shall in all cases file with the clerk of the court below all assignments of error,” etc. In the Revised Statutes of 1895 this article was 1018, and in the Revised Statutes of 1879 it was 1037, and still prior to that it was 1591 of Paschal’s Digest. This “assignments of error,” as every lawyer in Texas knows, was a separate paper filed alone with the clerk after the trial of a civil case had been concluded, and most frequently after the court had adjourned for the term, and with which the trial judge had nothing whatever to do, and could not in any way act on. Unless an appellant in a civil case so filed his “assignments of error,” the appellate court had nothing to pass on, and did not pass on any question except a fundamental error. All this is made perfectly clear by reading said article in full in said several revisions of the Civil Statutes and the decisions thereunder.

In all criminal cases appealed no such “assignments of error” has ever been permitted to be filed. In fact, the statute clearly forbids it. Article 915, C. C. P., prescribes, “An appeal is taken by giving notice thereof in open court, and having the same entered of record” — simply that and nothing more. Then article 916 says:

“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken.”

This law at first was inexorable. See Judge White’s Ann. C. C. P. § 1236. Eater it was so amended as that, when the papers were lost or destroyed before a transcript of them was made and sent to the appellate court, they could be substituted in the court below — but nothing could be added to nor taken therefrom. It is as expressed in Holy Writ, “In the place where the tree falleth, there it shall be.” Because of this statute and others this court has always held that an “assignments of error” has no place in this court and can never be considered, and that the motion for new trial must contain all claimed errors which this court can consider. It is true, any defendant convicted of either a felony or a misdemeanor can appeal to this court, and, in that event, is entitled to a statement of facts, without even making a motion for new trial. And it is true that in no case is an appellant compelled to máke a motion for a new trial in order to appeal. It is also true that no person on trial in a criminal case is compelled to object to any illegal evidence introduced against him, nor to legal evidence erroneously excluded. Nor to the charge of the court, nor to any other improper proceeding against him. But if he does not, this court always heretofore has held it cannot and will not pass on any such question however erroneous.

It is not infrequent that persons convicted of either a felony or misdemeanor, and even when they plead guilty, appeal their cases, and that, too, when they know they have no ghost of a chance for reversal and, in fact, set up no ground for reversal. They evidently do this for delay only. They know that thereby they can get a delay of many months — sometimes a year or more. Outside of such delay cases the sole object they have in appealing is to get a new trial from this court. Until the decision herein by the majority, this court has. always held that it cannot legally, and will not, consider any claimed error, unless the appellant sets up such error by his motion for new trial in the court below and has that court to pass on it. It makes no difference whether that court, during the actual trial, has then passed on the question or not — it must again be presented to the trial court in a motion for new trial, and be acted upon by that court. Every one knows that in the actual trial the trial judge must pass on many questions on the spur of the moment, without mature deliberation and without time for full investigation, such as arise on the impanelment of a jury, objections to evidence admitted or excluded, objections to his charge, and refusal of special charges, and many other matters which occur during the trial. When these questions are again presented to him in the motion for new trial he has more time and opportunity for deliberation and investigation. The defendant’s attorney, in the meantime, also has time for investigation, and can then present the- authorities to the judge, and has a much better opportunity thereby to _ convince the judge of his error, and secure a new trial if entitled to it. It will not do to say nor act on it: Well, the trial judge has already during the haste of the trial passed on this question, and therefore I will not give him an opportunity to again do so — in fact I will deny him an opportunity to again pass on it. I will waylay him and go over his head direct to the Cburt of 'Criminal Appeals, and have that court to give me a new trial. Thereby I will get a delay of many months, perhaps a year or more, and in the meantime the witnesses against me may die, get out of the way, or forget. When the state does force me to trial again a year or two hence, I’ll come clear of the crime of which I am guilty, I will thus go unpunished, the law be prostituted, and the courts brought into disrepute.

It will not do to say the trial judge will not, on motion for new trial, correct his error and grant a new trial, as the law and his sworn duty compels, him to do. This is well illustrated in many cases by the judges of ■this court granting rehearings and reversing themselves. Take as an example the very recent case of Fisher' v. State, 197 S. W. 189, from Taylor county, decided and affirmed June 18th, in an opinion by Judge Blorrow. Appellant in that case properly raised the question in the lower court and in this, in substance, that the court’s charge was incorrect in that it did not require the jury to find that he made the two sales alleged to the person named in the indictment, but permitted his conviction if he made one of those sales, and- a sale to another person. He urged this question in his oral argument and in his brief, and cited the cases in point. In the original opinion Judge Morrow expressly held against him as the trial Judge had done. He again urged the same question in his motion and brief for rehearing. Judge Morrow' and the other judges of this court were then and thereby convinced that he was in error in his first opinion, granted a rehearing, and reversed the case on that point alone, in the opinion on rehearing June 29th. Any number of other decisions by this court could be cited but it is unnecessary. The reports are full of them.

This case is a fair illustration of how a trial judge can be “waylaid,” if the decision herein is adhered to. Appellant filed no motion for a new trial as authorized and required by law if he really wanted a new trial, and the lower court was not authorized to act on any, nor did he act on any. By his failure or refusal to file any such motion, he waived his right to do so as effectually and as certainly as if he had in express language done so. He appealed though. He then waited the full 20 days allowed him by the trial judge after adjournment for the term to present to the judge his bills of exceptions and statement of facts. They were approved by the judge on the 20th day and on that day then filed. The trial judge then had no power or authority to grant him a new trial however many errors he had committed, and which, if they had been presented to him in a motion for new trial, he would have granted.

I will now show when and how said article 1612, R. S., was changed by said act of April 4,1913, in all civil cases. For a number of years prior to 1913, the people and press of the state so insistently demanded that the Legislature and the Supreme Court, under its constitutional power to make rules for the government of all the courts, should so amend our procedure as to prevent the trial judges of the lower courts from being “waylaid” by the attorneys, and thereby prevent unnecessary appeals and reversals. Both the Legislature and Supreme Court responded, and so enacted laws and rules to meet some of these necessities and demands.

By said Act of April 4, 1913, it amended said article 1612, R. S. It stated in the caption it amended said article, “and repealing the laws requiring assignments of- error' in civil cases, and providing that motions for new trial in such cases shall constitute the assignments of error, and repealing all laws in conflict therewith, and declaring an emergency.” This acf was passed unanimously by both houses and was approved by the Governor, and went into immediate effect. That amendment added this proviso:

“Provided that, where a motion for new trial has been filed, that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived. * * * ”

Thereby making the practice in civil cases the same as it is in criminal cases, and had been “whereof the memory of man runneth not to the contrary.”

I now come to a discussion of the rules adopted for all the courts by the Supreme Court. Our Constitution of 1876 for the first time (article 5, § 25, quoted in 2 Court of Appeals R'ep. p. 623) expressly conferred the power and duty on the Supreme Court to make rules and regulations for all the courts. This section 25 was amended by the people September 22, 1891 (Constitution, § 25, art. 5, by Harris), and, as amended, made some changes in the original not necessary to now note.

Prior to our Constitution of 1876, our Supreme Court had jurisdiction of all appeals in criminal as well as civil causes. That Constitution created a new court and named it “Court of Appeals”; took all jurisdiction in criminal cause away from the Supreme Court, and conferred it on said “Court of Appeals.” There were then no Courts of Civil Appeals. The whole of our Constitution on the judiciary was amended by the people on September 22, 1891, by which Courts of Civil Appeals were created, and the name of said “Court of Appeals” was changed to “the Court of Criminal Appeals.” In the meantime the Supreme Court on December 1, 1877, adopted rules for all the courts, and amended and readopted them time and again since then.

It is not amiss to here quote what the Supreme Court through Chief Justice Roberts said of these rules in Texas Land Co. v. Williams, 48 Tex. 603:

“The members of the convention, in giving the Supreme Court ‘the power to make rules and regulations’ for the express purpose of regulating the proceedings and expediting the business in the courts, must have designed more than the making of a few short rules of court, such as have formerly been made and practiced under. In the performance of this duty, the court has kept in view the statutes and the previous decisions of this court, and have sought to regulate the order and mode of proceeding in suits under them, so as that the points of controversy in judicial proceedings in all of the courts should be presented with distinctness and certainty, the want of which, under our present practice, produces delay, expense, and injustice in litigation, that have long been increasing from year to year, until they now amount to intolerable evils that must be remedied. The rules of the district court * * * are shaped with reference to each other, and are designed to establish a connected system of judicial procedure, from the petition filed in the district or county court to the final judgment in the Supreme Court or in the Court of Appeals.”

There can be no question but that all these rules were adopted and “shaped with reference to each other, and were designed to establish a complete system of judicial procedure,” from the beginning of the cause “to the final judgment in the Supreme Court, or [in the] Court of Appeals,” as held by Judge Roberts. He and his associates had just made and adopted all these rules. They were all by order of said Court of Appeals printed in volume 2, Tex. Ct. of App. Rep. p. 623 et seq., as well as printed in the Supreme Court Reports, vol. 47, p. 597 et seq., by order of that court. All these rules were binding on all the courts. Those for the district and county courts were just as binding on this court as those specifically made for this court. This court has always so held until this case was decided by the majority opinion.

In Ratcliff v. State, 29 Tex. App. 248, 15 S. W. 596, a question arose as to how a statement of facts should be prepared under the rules prescribed for the district court. This court held:

“The rules above cited are applicable in criminal as well as in civil cases, and are for the government of appeals to this as well as to the Supreme Court. The Supreme Court has the constitutional power to prescribe rules for_ the government of this court such as the rules cited. Const, art. 5, § 25.”

See, also, Blackshire v. State, 33 Tex. Cr. R. 161, 25 S. W. 771; Davis v. State, 52 Tex. Cr. R. 547, 107 S. W. 828; Davis v. State, 49 Tex. Cr. R. 247, 92 S. W. 256, and other cases exactly to the same effect. There is no decision of this court to the contrary.

Neither of the cases of Ry. Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471, and Western Union v. Mitchell, 89 Tex. 441, 35 S. W. 4, cited by Judge MORROW in the majority opinion, are in point or applicable herein. They were,both decided under said article 1612, >R. S., before it was amended by the said act of 1913, p. 276. That court, through Chief Justice Brown, in said Ry. Co. v. Beasley supra, expressly so stated. After quoting rule 24 [142 S. W. xii] for the Courts of Civil Appeals, he held:

“The language of the rule is not quite clear, but the Supreme Court cannot by rule set aside a statute; therefore rule 24 must be construed so as to harmonize with the articles of the Revised Statutes, copied herein, and with the former decisions of this court. Thus interpreted that rule does not require that the giving or refusing, charges to the jury shall be included in the motion for rehearing in the trial court. We have heard that the Legislature at its recent session enacted a law upon this subject, but we are not informed of its provisions. However, this opinion will not affect that act if there be such.”

He repeated that exact bolding in a still later opinion in that same case, 106 Tex. on page 177, 155 S. W. 183, 160 S. W. 471.

After this decision, and after said article 1612 had been amended as stated, the Supreme Court amended the rules so as to conform to said amended statute, and then reenacted or readopted said rules. The new and amended rules are copied in 159 S. W. viii to xi, and all others, as well as these, in an official certification and publication off them by the clerk of that court under date of September 1, 1913. 'Rule 101a is:

“In all cases in which a motion -for a new trial is filed, the assignments contained in such motion or amended motion as'finally ruled upon, by the trial court shall constitute the assignments of error-. All errors not distinctly specified in such motion, or in the assignments of error where a motion for a new trial is not filed, shall be waived. * * * ”

It is true that rule provides for an “assignments of error” when no motion for a new trial is filed. But evidently that contingency means fundamental errors, and possibly when a trial occurs before the judge* without a jury. Fundamental errors can always be assigned, even in the appellate court, without any motion whatever. And this has always been held by this and the Supreme Court. No other reasonable construction can be placed on said rule 101a and the statute it was designed to follow. If it could be held thereunder that any error could be assigned' when a motion for new trial had not been, filed, then both the statute and the rule-would be worse than idle. They would, amount to a snare and a delusion.

In order to show that the construction I place on said statute and rule is correct, I will cite some of the 'decisions of the several Courts of Civil Appeals where they have-so held from the very túne said statute was passed and said rule exacted down to this date.

In Edwards v. Youngblood, 160 S. W. 288 the Court of Civil Appeals, at Amarillo, after citing rules 24 and 25 for the Court of Civil Appeals, and the said amended article 1612, R. S., said:

“The courts have frequently referred to these rules, in passing on assignments, and suggested that the purpose was to require the complaining party to present the issues in the trial court relied on for reversal. Frequently, before these rules, issues were presented by assignments which had not been called to the attention of the trial judge. Some have regarded this practice as unfair, resulting in reversals on questions not thought of oí- presented in the court below. Doubtless it was some such evil our Supreme Court sought to remedy by the promulgation of the rules above mentioned. The-Legislature, by amendment, has emphasized this purpose. This law curtails labor and cost, and requires the presentation of the very question in the appellate court that was presented in the trial court. * * * We regard that part of the law providing that ‘the assignments, therein (the motion for new trial) shall constitute the assignments of error’ as mandatory. It does not vest us with discretionary power in determining what shall constitute the assignments. We are not at liberty to disregard this-plain mandate of the law.”

Even before said amended article 1612-went into effect, practically all of our Courts-of Civil Appeals, under the amended and added rules of 1912, had held expressly that the grounds of motions for new trials alone shall constitute the “assignments of error,” and that, unless presented and save'd in the lower courts by. such motions for new trial, they could not and would not be considered on appeal. I cite some of those cases: El Paso Elec. Ry. Co. v. Lee, 157 S. W. 749; Davidson v. Patton (Amarillo) 149 S. W. 757; Murphy v. Earl (El Paso) 150 S. W. 486; Ry. Co. v. Ledbetter (Dallas) 153 S. W. 646; Ry. v. Gray (Austin) 154 S. W. 259; Jones v. Edwards (San Antonio) 152 S. W. 727; Allen v. Kitchen (Austin) 156 S. W. 331; Salliway v. Grand Lodge, 164 S. W. 1042 (citing Ry. v. Pemberton, 106 Tex. 463, 161 S. W. 2, 168 S. W. 126); Bradshaw v. Kearby, 168 S. W. 436; Murphy v. Murphy, 171 S. W. 263; Farthing & Co. v. Illig, 179 S. W. 1092; Woodley v. Pike, 189 S. W. 746; Grant v. Grant, 190 S. W. 229; Levy v. Engle, 192 S. W. 548.

But whether the rules prescribed for the district court and Courts of Civil Appeals, requiring that no hrror of the lower court can be considered on appeal unless presented and preserved in a motion for new trial, applies to this court or not, that only such errors can be considered by this court is too well and long established to be now lightly or at all set aside. The holdings of this court are founded on reason, law, and justice. I therefore earnestly protest against the holding in' this case and respectfully dissent.

DAVIDSON, P. J.

(concurring). The judgment herein was reversed and remanded during the last term of the court, the opinion being written by Judge MORROW. In that opinion I concurred. During vacation of the court Judge PRENDERGAST filed a lengthy dissenting opinion. He lays down the proposition that no error, or supposed error, can be urged on appeal which is not set out in the motion for new trial. To this proposition I cannot give my consent under our statutes. Article 744 of the Code of Criminal Procedure reads as follows:

“On the trial of any criminal action, the defendant, by himself or counsel, may tender his bill of "exceptions to any decision, opinion, order, or charge of the court, or other proceedings in the case; and the judge shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order, or charge may be revised upon appeal.”

Plainly this statute gives the accused the right to reserve the provided exceptions “in order that such decision, opinion, order, or charge may be revised upon appeal.” It would seem all sufficiently clear from the terms of the statute that if the party properly takes such exceptions he may have the rulings of the appellate* court on appeal. It is not prerequisite or essential that he bring those matters forward in a motion for new trial. The statute does not so require. The court’s attention has been pointedly and specifically called to the matter not only at the time of the rulings by the court and when the exceptions are taken, but again it is called to his attention when the bills of exception are presented to him for his approval. That he may bring these matters forward in motion for new trial does not render nugatory the terms of the statute or deprive the accused of having his questions revised, if the terms of article 744, supra, have been followed. Article 844 of the Code of Criminal Procedure also prescribes that:

“If a new trial be refused, a statement of facts may be drawn up and certified, and accompany the record as in civil suits. Where the defendant has failed to move for a new trial he is, nevertheless, entitled, if he appeals, to have a statement of the facts certified, and sent up with the record.”

This does not prescribe that a new trial is necessary, but expressly enacts that it is not. In that event the exceptions reserved under the terms of article 744, supra, may be revised, in connection with the statement of facts, although a motion for new trial was not filed. It is not obligatory upon the accused to file a motion for new trial. He may do so or he may not. Whether he does or not is optional with him, and whether he does or not he is, nevertheless, entitled to have a statement of facts sent up with the record and his exceptions and matters of which he complains reviewed in the light of the testimony. It is well settled that, in the absence of a statement of facts, this court does not review, as a rule, many of the rulings of the trial court. These might be mentioned, but it is not necessary. Many of the cases cited by Judge PRENDERGAST are not applicable to the law as it is at present. Many of the decisions cited by him go to the effect that assignments of error will not be noticed in criminal cases. Properly understood, those decisions lay down a correct rule. This court does not consider assignments of error as substitutes for a motion for new trial, but treats such assignments of error as unnecessary. Assignments of error cannot take the place of a motion for new trial. This is the extent to which these decisions go. "Under article 723, supra (Code Cr. Proc. 1895), before its repeal (Acts 33d Leg. c. 138, § 4 [Vernon’s Ann. Code Cr. Proc. 1916, art. 743]), a motion for a new trial was requisite unless bills of exception were reserved to the charges asked and refused. Both — that is, bills of exception and motion for new trial — were not, under that statute, requisite or necessary. The matters might be presented either way; that is, by bills of exception or in motion for new trial. That statute only related to charges of the court given the jury, or such as were refused by the court, or were omitted from the charge. The decisions referred to by Judge PREN-DERGAST mainly apply to the construction of article 723, which has been repealed. It has been understood to be the correct rule that, if exceptions to the charge, to which that article alone applied, are set out either in bills of exception, or are raised upon motion for new trial, they will he considered. It would be useless to review those decisions. Take the Ellington Case, 63 Tex. Cr. R. 424, 140 S. W. 1100, as an illustration. Cited in the dissenting opinion, Judge Harper, in closing that opinion, makes this statement:

“We look alone to the bills of exception and the motion for a new trial, and, if errors are not there assigned, we do not review them on appeal.”

The correct rule, under article 723, supra, with reference to exceptions to charges, may he stated practically as the decisions hold; that is, in order to have the benefit of the failure of the court to correctly charge the law, the convicted party must reserve an exception to the charge at the time it was given, or set it out in motion for new trial. Both were not required, for the statute expressly laid down the rule in the alternative. When that statute was repealed and the present statute enacted, it became necessary for the court to read the charge to the jury before argument is begun. The present statute changed the rule, and it is now, generally speaking, necessary to except to the charge before given to the jury. It is not available on motion for new trial as under the previous statute. The alternative rule under article 723, supra, before its repeal, no longer exists. I do not now refer to fundamental error. Under the present statute it must be by exception. A motion for new trial under the present statute will have no force and effect if the party fails to object at the time the charges are given him and before being read to the jury. However, it might be added that, in case of fundamental error, it was the rule under article 723 that the case would be reversed when the question is first raised on appeal. Grant v. State, 59 Tex. Cr. R. 123, 127 S. W. 173. The failure to file motion for new trial does not prevent this court from considering an appeal. Ex parte Firmin, 60 Tex. Cr. R. 374, 131 S. W. 1113; Cotton v. State, 29 Tex. 186; C. C. P. arts. 744, 844. It is not now necessary to set out in the motion for new trial the errors committed by the court with reference to charges. The motion for new trial in that respect is not now available because of the terms of the recent statute. Article 744, supra, provides that matters reserved by bills of exception as therein provided shall be taken for the reason and for the purpose of revision by the appellate court, not for the purpose of being brought forward again in motion for new trial. The statement of facts also can be had without motion for new trial having been presented in the trial court. This emphasizes the right of the defendant to have errors, or supposed errors, to which he has reserved exceptions under the provisions of article 744, supra, revised. Statutes with reference to practice and procedure, where they redound to the benefit of the accused, are enacted to the end that the law may be fairly and legally enforced. It was never intended to give these statutes such a construction as would deprive parties of a fair legal trial. I am not discussing matters not known or discoverable before or at the time of the trial, such as misconduct of the jury, newly discovered evidence, etc. I do not' care to write further about it.

I concur with Judge MORROW in the disposition of the case.
      ®=5jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    MOORE v. STATE.
    (No. 4549.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    1. False Pretenses &wkey;>29, 30 — Indictment —Description of False Pretense and Falsity op Pretense.
    In a prosecution for swindling by selling personal property on the false representation that it was free from incumbrance, a mortgage on the property was not a .false pretense, required to be set out literally, but was merely evidence of the falsity of the pretense; and while it was necessary to negative the truth of the pretense, and to set out the mortgage with sufficient particularity to accurately describe it, it was not necessary to set it out in full. .
    2. False Pretenses i&wkey;30 — Indictment — Falsity oe Pretense.
    It was essential that the existence and validity of the mortgage be directly averred, and to accomplish this an allegation of the existence of the debt was imperative to show that the allegation that the property was unincum-bered was false.
    3. Indictment and Information <&wkey;70 — Inferential Allegations — Falsity of Pretense.
    An inferential allegation, such as that defendant knew that the debt secured by the mortgage was unpaid, was not a sufficient allegation that the mortgage was existent and unpaid; and the failure to make a direct averment to this effect was fatal to the validity of the indictment.
    4. Indictment and Information <&wkey;132(5)— Election Between Counts — Necessity.
    Where an indictment in one count charged defendant with swindling by selling personal property on the false representation that it was free from incumbrance¡ and in another count with the fraudulent disposition of mortgaged property, there was no error in failing to require an election between the two counts, since, when the evidence supporting two counts is identical, an election is .not required.
    5.-Indictment and Information <&wkey;132(5)— Election Between Counts — Acts Constituting.
    Where only the count charging swindling was submitted to the jury, this was equivalent to an election.
    6. False Pretenses <&wkey;26 — Indictment — Requisites.
    An indictment for swindling by selling personal property on the false representation that it was free from incumbrance should specifically allege that the money for the property was acquired by defendant.

      7. False Pbetenses <&wkey;31 — Indictment — Requisites.
    Such indictment should definitely allege the connection between the false pretense and the acquisition of the money by defendant.
    Appeal from District 'Court, Wichita County; Wm. N. Bonner, Judge.
    M. L. Moore was convicted of an offense, and he appeals.
    Reversed, and case ordered dismissed.
    T. F. Hunter and Walter Nelson, both of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of swindling on account of the acquisition of $600 in money in the sale of certain personal property on the false representation that it was free from incumbrance.

The facts are sufficient to support the verdict, but the indictment is assailed upon several. grounds. It was charged that the property sold was mortgaged to secure a debt of $621. Appellant claims that the rule which requires a false pretense to be specifically averred, and where such false pretense is in whole or in part in writing, or based on a written instrument, that the writing or instrument should be set out, would require the mortgage which constituted the alleged incumbrance upon the property to be set out in hsae verba in the indictment; citing Wilson v. State, 193 S. W. 669, and other cases.

The mortgage was not false pretense, but was a part of the evidence that the representations made were untrue. The law requires the truth of the pretense to be negatived. Wharton’s Criminal Law, § 1491. The negative allegation should be specific, but the cases relied on by appellant do not support the contention that, in order to allege that the statement that the property was unincumber-ed was untrue, it would be necessary to set out the mortgage in htee verba. It should be set out with sufficient particularity to accurately describe it, but not necessarily in full. It is essential that the existence and validity of the mortgage should be directly averred. To accomplish this, the allegation of the existence of the debt was imperative, in order to show that the allegation that the property was unincumbered was false. McElroy v. State, 67 Tex. Cr. R. 603, 150 S. W. 797; Robberson v. State, 3 Tex. App. 505; Satchell v. State, 1 Tex. App. 438; McCaskill v. State, 68 Ark. 490, 60 S. W. 234. The indictment contained no direct allegation that the debt which it was charged was secured by the mortgage was existent and uni>aid. An inferential allegation, such as that appellant knew the debt was unpaid, will not suffice. State v. Dyer, 41 Tex. 520; State v. Levi, 41 Tex. 563; Wills v. State, 24 Tex. App. 400, 6 S. W. 316; Vernon’s P. C. p. 912; 19 Cyc. p. 427. The failure to make such direct averment was, we think, fatal to the validity of the indictment.

There was a count in the indictment charging fraudulent disposition of mortgaged property, which was not submitted to the jury. Appellant claims there was error in failing to require an election by the state as between the two counts. When, as in this case, the evidence supporting the two counts is identical, an election by the state is not required. Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Branch’s Ann. P. O. p. 233, and cases listed. Moreover, the submission only of the count charging swindling was equivalent to election. Weathersby v. State, 1 Tex. App. 646; Betts v. State, 57 Tex. Cr. R. 391, 124 S. W. 424; Branch’s Ann. P. C. p. 232, and cases cited.

In writing another indictment the mortgage should be more fully and accurately described, the existence of the debt should be alleged, the allegation that the money was acquired by appellant should be more specific. Robinson v. State, 60 Tex. Cr. R. 354, 132 S. W. 354; Epperson v. State, 42 Tex. 79. The connection between the false pretense and the acquisition of the money should be more definitely alleged. Johnson v. State, 57 Tex. Cr. R. 347, 123 S. W. 143; Vernon’s P. C. art. 1421, note 8, p. 911, and cases cited.

Other points made by appellant have been examined, and they fail to disclose error.

Because the indictment is insufficient, the judgment is reversed, and the ease ordered dismissed.
      <@=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ICING, J.

text:
    DAVENPORT v. SHEPHERD.
    (No. 251.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 26, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Deeds <&wkey;211(3) — Fbaud—Evidence.
    In a suit to set aside a deed, evidence held insufficient to show fraud upon the part of the widow of a partner of plaintiff, at the time of settlement of a suit with plaintiff, when she was deeded a half interest of the land to which plaintiff claimed defendant’s husband had given him a deed, which was lost.
    2. Deeds <&wkey;2li(2) — Mutual Mistake — Evidence,.
    Evidence held insufficient to show mutual mistake in the settlement of a suit and execution of a deed.
    3. Deeds <&wkey;17(l) — Compromise and Settlement — CONSIDEBATION.
    A mere belief of a right to land is a sufficient consideration for a deed for a half interest given in settlement of a suit involving title to such land.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by W. H. Davenport against Eva Shepherd. Decree for defendant, and plaintiff appeals.
    Affirmed.
    J. F. Lanier, of Beaumont, for appellant. Bowers & Reed, of Beaumont, for appellee.
   ICING, J.

This suit was tried in the district court of Jefferson county, the venue having been changed by agreement from Hardin county, and the matters in controversy were submitted to the court for decision, without the intervention of a jury.

The material allegations of plaintiff’s petition are as follows:

Appellant sued appellee, individually and as survivor in community of T. W. Shepherd, deceased, alleging that Shepherd died on the 15th of November, 1912, and that appellee qualified as survivor in community; that Shepherd executed a deed of conveyance to appellant on the 11th day of February, 1909, for a valuable consideration, conveying certain lands in the town of Sour Late, Hardin county, and that said deed was duly acknowledged by Shepherd before a notary public of Jefferson county, Tex., February 11, 1909; that the notary did not make and keep any record of said acknowledgment, and that he had no recollection of the contents or the existence of said deed; that some time after the execution of said deed it became lost, without having been placed of record, until May 12, 1914, when appellant found it, and had same recorded in Hardin county; that after the death of Shepherd, and before said original deed was found, appellant informed appellee of the fact that her husband had, during his lifetime, executed said deed to him, and that he had lost the same without having placed it of record, and requested her to make him a deed to the land in her individual capacity, and in her capacity as community survivor, but that she refused to execute the deed, and refused to furnish any evidence of the existence and contents of said deed, and fraudulently disclaimed any knowledge thereof; that on the 8th day of November, 1914, he filed suit in the district court of Hardin county against the appellee; individually and as survivor in community of the estate of said Shepherd, seeking to recover the title ,and possession of the land in controversy, and to establish the existence and contents of said deed, and to substitute the same; that the value of the land was $2,500; that after said suit was filed appellee employed an attorney to contest said suit, filed an answer denying plaintiff’s allegations, and objected to plaintiff testifying in said cause, which he was disqualified from doing, and to aid her in concealing the truth and facts concerning said transaction, and refused to aid the plaintiff in any way at any time by testifying in his behalf, but declined to do so, concealing her knowledge, if she ever had any, about the execution and delivery of said deed, but of which she was bound to know under the law, it being a conveyance of community property by her husband to appellant; but she fraudulently denied, in her answer in said’ suit, all and singular the allegations of plaintiff, and intended to contest the suit to the end, not only iby refusing, as she had always theretofore done, to divulge the truth and facts concerning said deed, but objecting, as she always had, to the plaintiff testifying about it himself, as a witness, well knowing that the plaintiff had no witness to the execution and delivery of said deed, and that he was disqualified, under the law, from testifying to the execution and delivery of same; that plaintiff being in such predicament, and the result of the suit being an established loss to him* if tried, did make an agreement, without any consideration, good or valuable, paid by defendant, to convey to her an undivided one-half interest in said property, and she, in the same instrument, to convey to him the other undivided one-half of said land, which was done by joint deed, dated and executed February 21, 1914; that the notary before whom the acknowledgment was taken had no knowledge or recollection of the contents or existence of said deed; that he did not even read the same, and that he did not keep any record of the acknowledgment, or, if he did keep a record, the same had been lost; that, under the statute, appellant could not testify as to the transaction or any conversation relating to same, which occurred between him and said T. W. Shepherd; that said EVa Shepherd, concealing the truth, and intending to defraud the plaintiff out of his land, and knowing that he was disqualified as a witness from testifying as to the execution and contents of the deed of conveyance from said T. W. Shepherd to him, by reason of the common and statutory laws of Texas, and that he had no other, witness or evidence thereof, pretended to know nothing about the execution and delivery of said deed of conveyance, and refused to execute a deed in lieu thereof to the plaintiff, and withheld all knowledge from the plaintiff as to the execution and delivery of said deed, and refused in every way to furnish any evidence of the existence and contents of said deed, and fraudulently disclaimed any knowledge thereof, and refused to aid plaintiff in any way, by her evidence or otherwise, in establishing the existence and contents of said deed, and denied any knowledge of his title to said land, and refused to make plaintiff a substitute deed; that plaintiff, being without anything to prove the existence and contents and delivery of said deed, or acknowledgment thereof, and the result of a suit being an inevitable and certain loss to him, if tried, of all his interests and ownership in said land, which he owned in fee simple, did make an agreement without any consideration, good or valuable, to an undivided one-half interest to the land in controversy, and she, in the same instrument, to convey to him the other undivided one-half of said land; that by reason of his said inability to testify, and the fraudulent acts and conduct of appellee in withholding the information concerning the execution and delivery of the deed, and the loss, as hereinbefore alleged, and the making of the deed between plaintiff and defendant, dated February 21, 1914, the plaintiff has been deprived, unlawfully and inequitably, of his undivided one-half of said land; and that said compromise deed between him and defendant is void, and should be canceled. Appellant prayed for relief in keeping with the allegations of Ms petition.

Appellee answered by general demurrer and general denial; and, further, that she was not guilty of fraud in any form, either in law or in morals, and says that, at the time said suit was pending in Hardin county to recover this land from her, she had no knowledge nor any means of knowing that Davenport had a deed, if in fact he did, to any of the land in controversy, as the same was not of record, and that there was no evidence of its execution or validity, save the statement of the appellant, Davenport; that there was no intimation among the papers of her deceased husband that he had ever parted with or sold said land; that, at the time alleged in plaintiff’s petition, in which Davenport is alleged to have approached defendant, a boom was on at Sour Lake, and oil wells were being drilled near and in close proximity to the property in controversy, and in view of the fact that the property could then be leased to their mutual advantage, the defendant and plaintiff agreed to compromise and adjust their said difficulties, and entered into the deed set out in plaintiff’s petition, which plaintiff seeks to cancel in this suit; that the parties discussed at the time the probability of it taking a year or more to secure a final judgment in that cause, disposing of the issues between the parties, and both parties expressed the fear that by that time the land would have deteriorated materially in value; that the oil would all be drained off, and same could not be leased, appellee alleging that this was a part of the consideration of said compromise and adjustment, as well as the desire of the parties to avoid the vexations, troubles, and expense of a long-drawn-out lawsuit; that she had always acted in good faith and without any fraudulent intent whatever; that the appellant joined her in a lease of the premises to an oil company; that appellant was willing and active in making the trade and securing the agreement, whereby said lease was entered into; that she, in good faith, believed that her deceased husband had not parted with the title to said land during his lifetime, or executed any deed to appellant, and that she, in good faith, thought that said land was a part of the estate of her said deceased husband.

The trial court decided the case in favor of appellee, and filed the following findings of fact and conclusions of law, which we here adopt as the findings of this court on the facts and the law in the case, to wit:

“Findings of Fact.
“I find that the plaintiff, W. H. Davenport, and T. W. Shepherd were partners in the oil business prior to the death of the said T. W. Shepherd, and that on or about the 11th day of February, A. D. 1909, the said T. W. Shepherd conveyed by deed the land in controversy to W. H. Davenport, and that W. H. Davenport some time prior to the filing of a suit in the district court of Hardin county against Mrs. Eva Shepherd et al., No. 2576, lost the above-mentioned deed. I find that said suit was filed on or about the 29th day of December, A. D. 1914; I further find that the said T. W. Shepherd died some time prior to the filing of this suit and that he died intestate and that Mrs. Eva Shepherd, his widow, qualified as survivor in community of his estate prior to the filing of said suit, on the 5th day of February, A. D. 1913; I further find that, subsequent to the filing of said suit, the plaintiff, W. H. Davenport, approached Mrs. Shepherd or her representatives and made claim to the land in controversy, stating to them that he had lost the deed and requesting them to execute a substitute therefor. X further find that the record title to the property at this time was in the Shepherd estate, and that the Shepherds were in possession of no facts or fact indicating that the said T. W. Shepherd had conveyed or parted with the title to the land in controversy during his lifetime. I further find that M. S. Duffie, the notary public before whom the said deed was acknowledged, proved, and executed, had no records pertaining to the same, and no independent recollection of the execution of said instrument. I further find that, after the filing of the suit above described, plaintiffs and defendant acting in conjunction with their attorneys for the purpose of compromising and adjusting the lawsuit, above described and then pending, entered into a compromise and adjustment of their litigation as is evidenced by their deed dated the 21st day of February, A. D. 1914, by which said deed they conveyed one to another an undivided one-half interest in and to the property in controversy, this being the instrument which the plaintiff seeks to cancel in the present suit. I find that at about the time of the filing of the suit in Hardin county, as above described, there was considerable activity in oil lands lying adjacent and contiguous to the property in controversy, a boom being on in that district. X further find that this condition continued and existed up to, and after-, the execution of the instrument which plaintiff seeks to set aside. I further find that at the time this instrument was executed that Mrs. Eva Shepherd or her representatives did not know that W. H. Davenport had a deed to the property, that acting in good faith and innocent of any intent to defraud, they were claiming and thought they owned the land. I further find that the moving consideration for the execution of the compromise deed was the mutual desire of the parties to enter into an immediate lease of the properties so that they could begin to derive revenues therefrom, and that they were mutually afraid that if they waited the final disposition of the matter in the court, that wells which were being drilled near to, and in close proximity to, this land would drain off and exhaust whatever oil was there before the case was finally decided in the courts. I further find that the said T. W. Shepherd, during his lifetime, did execute and deliver a valid and binding deed to the property in controversy, conveying the same to the said W. H. Davenport; and I find that the said Davenport, a short time prior to the filing of the suit in Hardin county, had lost and misplaced his deed and could not find the same, and that, at the time the compromise deed as above described was entered into, the said W. H. Davenport had not found said deed, but since has found and placed the same on record. I further find that the parties to -this suit, immediately after the deed compromising their dispute was executed, entered into a joint lease of the property in controversy to the Parafine Oil Company, and that the parties hereto received the sum of three hundred ($300.00) dollars by virtue of said lease. I further find that a part of the consideration entering into the compromise in this case was the desire of, the parties to avoid the expense and delay of a lawsuit in another county.
“Conclusions of Haw.
“First. I conclude, based upon the findings of fact, that there was no fraud on the part of Mrs. Shepherd or her representatives at the time the deed which the plaintiff seeks to set aside was executed.
“Second. That the deed entered into by the parties settling and adjusting the differences, which the plaintiff seeks to set aside, was based upon a good, sufficient, and meritorious consideration, and is in all things binding.
“Third. That plaintiffs have not alleged or shown facts sufficient to entitle them to the relief prayed for.
“Fourth. That there was no such mutual mistake shown as would entitle plaintiff to have the deed in controversy canceled.
“Fifth. I conclude that said. deed is a valid, binding obligation on both parties, made, without fraud or mistake, and based upon sufficient consideration, and that said instrument places the title to an undivided one-half interest in and to the property in controversy in the defendant.”

Appellant’s first assignment of error complains of the action of the trial court in rendering judgment that the plaintiff take nothing by his suit, and that defendant, Eva Shepherd, individually, and as survivor in community of her deceased husband, recover; that the undisputed evidence in the case established the fact that the so-called compromise deed made between the plaintiff and the defendant was without consideration, good and valuable in law, and was void, in that the said deed was procured from the plaintiff by taking an unconscientious advantage of him, he being disqualified under the law to testify as to its execution, and that defendant took an unconscientious advantage of his helplessness, thereby practicing a legal fraud on plaintiff, it being shown that plaintiff subsequently found! the original lost deed, which he could not prove up by his evidence or any other evidence, prior to the execution of the compromise deed; that the evidence showed defendant had suffered no injury, but fraudulently obtained title to the undivided one-half interest in plaintiff’s land, and had obtained $150 in addition thereto, and that she had been put to no expense whatever; that the undisputed evidence showed that the defendant, Mrs. Shepherd, fraudulently concealed the facts within her knowledge chargeable against her as survivor in community, and willfully took advantage of the "helpless condition of plaintiff in forcing him to deed her one-half of his property involved in this suit, contrary to every principle of right and equity, to such an extent as to shock the conscience of every fair-thinking judge or person; and that she has taken advantage of the statute of Texas, as well as the common law sealing plaintiff’s mouth as a witness in his own behalf; that the evidence in this case shows that the defendant in this case is guilty of actual, as well as constructive, fraud, in law; and that she concealed the facts and used the disqualification of plaintiff to testify in his own behalf, causing him to lose one-half of his interest in the said land.

While this assignment of error presents two or more distinct questions of law, and is not in strict compliance with Rule 29 (142 S. W. xii) of this court, we have decided to consider the same.

With reference to the question of fraud, raised by this assignment, we are of opinion that the learned trial judge was eminently correct in holding that the evidence did not make out a case of fraud upon the part of appellee, nor did it make out a case of mutual mistake. The trial court found, and it is amply supported by the evidence, that the appellee was acting in good faith, and that she believed that the land in controversy had not been conveyed to appellant by her husband; that the record title showed that the land belonged to the estate of her deceased husband, of which she was community survivor, and she was further convinced by the fact that appellant claimed that the deed had been executed several years prior to the death of her said husband, and that the notary public, before whom he claimed the acknowledgment of her husband was taken, had no independent recollection of the transaction, and had no record in his office of any acknowledgment of her said husband to the deed claimed to have been executed by him. She, therefore, did not deceive, conceal, or misrepresent any fact that was within her knowledge to the appellant in an endeavor to make the deed which resulted in the dismissal of appellant’s former suit to establish his lost deed, because she knew no facts, but simply was of the opinion that the land in controversy belonged to her. Upon the other hand, appellant knew that said deed had been executed to him by her deceased husband, and was acquainted with all of the facts and circumstances of the same, and when he entered into an agreement which resulted in the settlement of his former suit, he was not mistaken as to any fact, but was fully cognizant of the true situation, and voluntarily entered into the agreement, which resulted in the settlement of said suit, and the conveyance of each to the other of a one-halfi undivided interest in the land in controversy. Had the suit proceeded to a finality at that time, appellant would have lost the entire tract of land, because there was no evidence upon which he could support his contention. Therefore, realizing that fact, he entered into an agreement, compromising the suit as aforesaid.

A mutual agreement for compromise is, in itself, a valuable consideration. The rule as to compromise agreements is tersely stated in the case of Camoron v. Thurmond, 56 Tex. 33-35, as follows:

“An agreement entered into upon a supposition of right or of a doubtful right, though it •often comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on one side or the other, and therefore the compromise of a doubtful right is a sufficient foundation for an agreement.
“It is clear that, when parties enter into a compromise or family arrangement in order to avoid litigation, the question as to whether one of the parties is entitled to certain property or not, such compromise will not be set aside, although it should eventually turn out that the party taking something under the compromise was, in reality, legally entitled to nothing. _
_ “A deliberate settlement of a controverted right will not be set aside, except for those cases which, like fraud, mistake, or undue influence, invalidate all contracts; and. it is not, therefore, sufficient ground for opening and rescinding such an agreement that it is harsh or unequal in its operation.
“But the parties in making such, agreement must act in perfect good faith, without concealment, misrepresentation of facts, or fraud.”

The law has always favored voluntary settlements of controverted issues in the courts, and where, in the absence of fraud, an agreement has been entered into for the purpose of avoiding litigation, and in order that the parties may begin to reap the revenues from the property in litigation, the courts will not disturb such agreement.

The trial court having found in favor of appellee, as above set forth, and such findings being amply supported by the evidence, we are not authorized to disturb the judgment, and the same is, therefore, in all things affirmed.
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