author: HAWKINS, J. BROWN, C. J., and PHILLIPS, J.

text:
    GREEN et al. v. GRAND UNITED ORDER OF ODD FELLOWS et al.
    (Supreme Court of Texas.
    Feb. 11, 1914.)
    Insurance (§ 770) — Mutual Benefit Insurance — Right to Designate Beneficiary.
    Acts 26th Leg. e. 115, § 1, providing tbat payment of death benefits by fraternal beneficiary associations shall be to the families, heirs, blood relatives, affianced husband or wife, or to persons dependent on the member at the time of his death, and that, should there be no one of sucb classes capable of taking the benefit, it shall pass as provided by the laws and rules of the association, does not deny to the member the right to designate a beneficiary within the classes mentioned, especially in view of section 11, which provides that the benefits to be paid or provided shall not be liable for the debts of the beneficiary or holder of any certificate, and shall not be subject to garnishment or other process nor taken, seized, apjuro-priated, or applied by any legal or equitable process, or by operation of law, to thé debts of the certificate holder, or “any beneficiary named in such certificate,” or any person having any rights thereunder.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1933, 1937; Dec. Dig. § 770.]
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Bill of interpleader by the Grand United Order of Odd Fellows against Tom Green and others. From a judgment in favor of defendant Clara Green, defendants Tom Green and another appealed to the Court of Civil Appeals, Third District, which certified certain questions to tbis court.
    Questions answered.
    For opinion below, see 163 S. W. 1068.
    H. S. Morehead, of Franklin, for appellants. John T. Duncan, of La Grange, for appellees.

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

   HAWKINS, J.

The Court of Civil Appeals for the Third Supreme Judicial District has certified for our decision two questions •which, with its statement of the- case, are as follows:

• “An opinion has heretofore been rendered in this case by the Oourt of Civil Appeals for the Third Supreme Judicial District, as appears from a certified copy thereof hereto attached. Said cause is now pending in this court on a motion for rehearing, and appel-lees have filed a motion asking us to certify to your honorable court the questions herein-before stated, the answers to which will be decisive of this ease. This case being an appeal from a county court, by reason of which no writ of error will he, and the issue being of importance to all fraternal beneficial societies in this state, and to parties situated as are the parties herein and liable to arise at any time in the future, we have deemed it expedient to grant said motion and to certify said questions.

“The Grand United Order of Odd Fellows is a fraternal beneficiary society, as defined by section 1 of the Acts of 1899, p. 195 (title 49a, Sayles’ Supp. R. S. 1897-1904). Said order issued to Oscar Green a beneficiary certificate for $500, payable to his father and mother, Thomas and Amanda Green. Subsequently said Oscar Green married Clara Green, and died without having made any change in said certificate; the same being in good standing at the time of his death. The said Oscar Green left surviving him his said wife, Clara Green, and a child born to said marriage, and his father and mother, the said Thomas and Amanda Green. Thomas and Amanda Green claim said $500 by reason of being the beneficiaries named in said certificate; Clara Green claims the same by reason of the fact that she and her said child are the surviving family of said Oscar Green. The issue thus raised involves the proper construction of the act above referred to, and we certify the following questions:

“(1) Do the words in section 1 of said act, 'Payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member at the time of his death,’ limit the class from which the insured may select a Beneficiary, or do they constitute a statute of descent and distribution, requiring payment to be made to said parties in the order named, regardless of the designation made in the certificate by the insured?

“(2) Under the facts above stated, to which of said claimants should said order pay said sum?”

The foregoing certificate was filed prior to the taking effect of the statute of 1913 affecting the jurisdiction of this court The opinion attached to the certificate need not be here set out at length. Wé will treat said opinion as part'of the certificate;- but the better practice would be to set out all the material facts in the body of the certificate from the Court of Civil Appeals. From said opinion it appears that the benefit certificate in favor of the parents, proceeds of which are in controversy, was issued while our statute of 1899, relative to fraternal beneficiary associations, was in force (Acts 1899, p. 195), the' member, Oscar Green, Being then a single man; that after his 'death, in good standing, the benefit ceftificate in favor of his parents having never been changed, but being upon its face and the records of the association in full force and effect, the association, without knowledge or notice of the fact that the widow would claim the benefit fund for herself and child, paid to said parents $250, same being half of said fund; that subsequently, upon learning of said claim of the widow, the association filed in court its bill of interpleader against the parents and the widow, setting out the facts, and praying that they be required to interplead in said cause, and that it be permitted to deposit the remaining $250 of the fund in the registry of the court and retire from the cause, and did so deposit said balance; that, the parents and widow having answered, the trial court rendered judgment for the widow against the association, and also against the parents, for said deposit, and against the parents for the $250 which „they had previously so received. It seems that the child was not made a party, and was not mentioned in the said judgment. The parents appealed. The contest is therefore, in reality, between said parents, claiming as such designated beneficiaries, on the one hand, and, on the other hand, the widow, claiming that she and her child together constitute the “family” of the deceased member and are consequently entitled to the entire benefit fund of $500.

Certainly, under the terms of the contract for this death benefit, the beneficiaries therein named, Thomas and Amanda Green, parents of the member, Oscar Green, became entitled, upon their son’s death, to recover the entire amount of $500 named in the certificate, unless the designation of them as beneficiaries was in contravention of the statute, or the charter or constitution, or some bylaw, of the association. In all such matters a liberal rule should be observed to give effect to the humanitarian purposes of the association, which, unlike a trading corporation, is not operated for profit.

Among the authorities in support of that rule are the following: “In determining whether the beneficiary designated by the member in a given case is capable of taking the fund under the charter of the association, the courts will give as broad and comprehensive a meaning as possible to the terms of the charter in which the general object of the association and the class of persons to be benefited are set forth. Niblaek on Benefit Association, § 160. This principle was recognized by our Supremte Court in Maneely v. Knights of Birmingham, 115 Pa. 305 [9 Atl. 41].” Compton’s Estate, 25 Pa. Super. Ct. 34., decided April 18, 1904.

Walter v. Hensel, Adm’r, 42 Minn. 204, 44 N. W. 57, decided December 24, 1889, was a suit for proceeds of. a benefit certificate issued by tbe Odd Fellows Mutual Benefit Society, and turned upon tbe construction to be given to tbe articles of association and by-laws. In deciding -it tbe court said: “Where tbe language is ambiguous or inaccurate, and reasonably susceptible of two interpretations, it should be construed most favorably to tbe right of designation.”

In a Wisconsin case it was said: “In de termining who is entitled to receive tbe benefits of tbe provisions made by a society of this kind, it is tbe duty of tbe court to construe its rules and regulations liberally to effect tbe benevolent purposes of tbe order, and in no casé so to construe them as to defeat such purpose, unless tbe meaning of such rules and regulations is so clear and certain as to admit of no other reasonable construction.” Ballou v. Gile, 50 Wis. 614, 7 N. W. 561, decided December 17, 1880.

With regard to mutual benefit societies, it is generally held that if there be nothing in tbe charter or constitution or by-laws of tbe organization, nor in tbe statutes of the state, restricting tbe appointment, tbe member may designate whomsoever be pleases, and no one can question tbe right. Union Fraternal League v. Walton, 109 Ga. 1, 34 S. E. 317, 46 L. R. A. 427, 77 Am. St. Rep. 350; Knights of Honor v. Watson, 64 N. H. 517, 15 Atl. 125; 1 Bacon, Ben. Soc. § 246.

Prior to tbe adoption of our statutes of 1899, tbe decisions of various appellate courts of this state, in cases which were, not controlled by statute,, but which involved constructions of rules of fraternal orders, as reflected in their charters, constitutions, and by-laws, bad recognized and applied tbe rules announced above, a fact which will aid us in determining whether said statute was designated to change those rules in this state. Among such decisions were the following:

Splawn v. Chew, 60 Tex. 532, decided December 14, 1883, was a case in which the benefit certificate from the American Legion of Honor was issued in 1880, naming as beneficiaries the father and mother of the member, Chew, who afterward, by will, undertook to change the beneficiaries and to designate his two minor children instead of his parents; interest on the proceeds to go to the support of his wife during widowhood. The by-laws provided that the member might designate his beneficiaries, as he did originally, and that the member might surrender such certificate and obtain a new one carrying a different designation of beneficiaries, upon payment of a fee of 50 cents. Held: Said plan for'change of beneficiaries was not exclusive; the association having paid over the money to a stakeholder; and the suit for it not being between the claimants and the association, and the latter not having questioned the manner in which the change of beneficiaries was made, the parents were not entitled to recover the fund.

Hanna v. Hanna, 10 Tex. Civ. App. 97, 30 S. W. 821, decided March 21, 1895. In December 1889, the Locomotive Engineers’ Mutual Life and Accident Association issued to Silas Hanna three death benefit certificates, directing that payment thereon be made to his mother, and they were drawn payable to her or “his lawful heirs,” and delivered to her. She paid all the assessments thereon, and after his death collected from the order the full amounts called for by the three certificates, claiming same in her own right as the designated beneficiary. The by-laws of the order declared its object to be “to aid and benefit the families of deceased members of the brotherhood in a simple and substantial manner,” and provided that in reporting the death of a member the division secretary should “give the name and residence of thé widow or heirs of the deceased to whom, the insurance is payable.” The contest was between the widow, who sued for the benefit of herself and child, seeking.to recover against the mother as trustee of the fund. Held: The mother was ineligible, not being within either of the enumerated classes, and that the wife and child were entitled to the fund, with directions that the child be made a party, and their relative rights determined. The opinion, which was rendered by Associate Justice Garrett, recognizes the right of the member to designate as his beneficiary any one within either of the classes mentioned in the rules of the order.

West v. Grand Lodge A. O. U. W. of Texas, 14 Tex. Civ. App. 471, 37 S. W. 966, decided October 7, 1S96. This was a case in which the administrator of a deceased member, Cleg-horn, a white man, sued the association for an amount alleged to be due on a benefit certificate issued to him on May 7, 1883. The negro mistress of the deceased member intervened, claiming the fund under an attempted assignment thereof, which Cleghorn had undertaken to make to her in pursuance of privileges extended to him by the association’s by-laws, section 4 of which provided: “Each member shall designate to the person or persons to whom the -beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him.” Its date is not shown. It seems that, when the certificate issued, the by-laws required that it be payable to the member’s order ; but by the terms of Cleghorn’s application for membership he became bound by the by-laws, present and future. The by-laws also provided that, should there be no one living at the death of the member entitled to said benefit, it shall revert to the beneficiary fund of the supreme lodge. In' consideration of her personal services in taking care of him, and the fact that she became his mistress, Cleghorn executed a written order directing the association to pay her the full amount of the benefit under its certificate in his favor. Held: The benefit fund was no part of Cleghorn’s estate; hence the administrator could not recover, the woman not being within any of the classes specified in section 4 of the by-laws, and not being a “dependent,” because the contract between Cleg-horn and her was one of prostitution, and therefore void, could not recover, and the benefit fund reverted to the association. While the right of the member to designate his beneficiary in compliance with said bylaw was not made an issue in the case, the opinion, which is by Associate Justice Ely, assumes that the member had a valid right, under the by-law, to designate as his beneficiary any one within the classification therein made.

Grand Lodge Order of Sons of Herman v. Iselt, 37 S. W. 377, decided October 22, 1896. The opinion of the Court of Civil Appeals was delivered by Associate Justice Williams, afterward a member of this court. The charter stated the purpose of the order to be, among other things, “in ease of death to insure pecuniary relief to the widow, orphans, or legatees of the deceased members.” The charter further provided that, in case of death of a member, a certain sum should be paid to the person or persons designated as beneficiary in the application for membership. Held: That the charter must be construed as restricting the choice of a beneficiary to a person or persons of one of the classes named in the charter. The decision was distinctly based' upon the fact that the beneficiary named was a brother of the member and “did not belong to any class mentioned from which the beneficiaries were to be taken.” In said opinion we find the following: “In benevolent orders of this sort the benefits provided for are generally restricted to classes of persons designated in the constitution, charter, or by-laws, and such is the case here. The member may designate his beneficiary, but he must make his selection from among those whom the charter permits to receive the benefit. We are not unmindful of the general rule that unless it is forbidden by law, or by the charter or constitution of the association, the person insuring his own life may select and appoint any persons as beneficiary. But, in order that this may be so, the association, when incorporated, must have power conferred upon it by its charter to grant such benefits, and to devote its funds to their' discharge; and, when the classes of persons in whose behalf such obligations may be assumed are specified in the charter, the member is restricted in his choice to persons belonging to the named classes.”

An exception to the general rule above mentioned, which permits the member to designate his beneficiary when no inhibition is made by the order itself, or by the statute, is sometimes insisted upon, on the ground that the contract is against public policy, and therefore void, in cases where the designated beneficiary is thought not to liave an insurable interest in the life of the assured. But even that exception is, by many courts, considered inapplicable to death benefit certificates issued by mutual benefit associations. Masonic Ben. Ass’n v. Bunch, 109 Mo. 560, 19 S. W. 25. But no such question has been raised or inhered in this case; the designated beneficiaries being the parents of the member.

The questions submitted to us are therefore to be determined under said general rule; and inasmuch as the designation of beneficiaries is not shown to have been obnoxious to the charter, constitution, or bylaws of the association, and said opinion shows that all parties agreed in the trial court that the issues should be determined by the construction to be given to said statute of 1899, and the Gourt of Civil Appeals, as well as the trial court, acted upon that view of the matter, we assume that the contract which is before us was in harmony with said charter, constitution, and by-laws. Consequently the validity or invalidity of that contract must here be determined solely by a construction of said statute, which took effect in August, 1899. Its more material portions are as follows:

The caption of the' act defines its general purposes thus: “An act to define and regulate fraternal beneficiary societies, orders or associations; to prescribe the terms and conditions on which such societies organized under the laws of other state, or those doing business in other state, may be permitted to do business in Texas, and to define the duties of the Commissioner of insurance of this state in relation thereto; providing for the incorporation of such societies, and declaring an emergency.”

Section 1 defines a fraternal beneficial association, provides that each shall have a lodge system, etc., “and shall make provision for the payment of benefits in case of death,” and may make provision for payment of benefits in certain other specified classes of instances, and provides how the benefit fund and also how the general fund shall be raised, and then provides: “Payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member at the time of his death, and should there be no one of the classes herein mentioned capable of taking the benefit at the death of the member, then the same shall pass, as provided by the laws and rules of the association.”

Section 11 reads thus: “The money or other benefits, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under the provisions of this act, shall not be liable for the debts of the beneficiary or holder of any certificate, and shall not be subject to garnishment or other process at the suit of any creditor, nor shall it be taken, seized, appropriated or applied by any legal or equitable process or by operation of law to the debts of the certificate bolder or any beneficiary named in such certificate or any person who may have any rights thereunder.”

In juxtaposition we quote section 6 of our statute of 1909, which superseded said statute of 1S99 and acts amendatory thereof, and is now in force, and which counsel for appel-lees insist was intended by the Legislature, not only to change the enumeration of classes of beneficiaries under death benefit certificates, but also to expressly confer upon members of such orders a right of designation of beneficiary or beneficiaries neither conferred nor permitted by said statute of 1899: “Sec. 6. Benefits Confined to Whom. The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree ascending or descending, step-father, step-mother, step-children, children by legal adoption, or a person or persons dependent upon the member: Provided, that if after the issuance of the original certificate the member shall become dependent upon the charity of an individual or of an institution, he shall have the privilege, with the consent of the association, to make such individual or institution his beneficiary. Within the above restrictions, each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the association; and no beneficiary shall have or obtain .any vested interest in the said benefit until the same has become due and payable upon the death of the said member : Provided, that any association may, by its law, limit the scope of beneficiaries within the above classes.” R. S. 1911, art. 4832; Acts 1909, p. 358.

Said statute of 1899 appears to have been the first one enacted in this state defining and specifically regulating fraternal beneficiary associations, or restricting, in any way, the application of their death benefit funds. Certain portions of said statute of 1899 were amended by chapter 86 of the Laws of 1901, chapter 113 of the Laws of 1903, and chapter 106 of the Laws of 1905; but none of those changes in the statute of 1899 affected any of the above-quoted portions of it or any of the decisions herein mentioned.

In view of the general observance and sanction which had been given, in this state and elsewhere, prior to 1899, to the above-stated liberal and reasonable rule of construction, we are loath to depart from it in this case; the phraseology of our law not being so clear and rigorous as to exclude the idea that the Legislature intended it to bo construed in consonance with that rule. But we are unwilling to rest our decision in this case upon that ground alone. We are of the opinion that upon principle and authority our statute of 1899 should not be held to be a státute of descent and distribution, but that, in declaring that “payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or wife or persons dependent upon the member at the time of his death,” the sole purpose of the Legislature was to merely define the sphere of influence of all fraternal beneficiary associations, whether domestic or foreign, within this state, in so far as payment of death benefits is concerned, leaving every such association entirely free, within such circumscribed limits, to restrict or extend its operation under and in accord with its charter, constitution, and by-laws, and leaving every member of every such association absolutely free, within said limits, and subject to the terms and provisions of its charter, eonsti-* tution, and by-laws, to designate a beneficiary or beneficiaries to whom all benefits under his certificate should become payable after his death.

As we understand said statute, its only requirement in that respect is that any and every person who may be designated as beneficiary by any member shall belong to at least one of the five enumerated classes. We believe a careful analysis of the entire statute will confirm that conclusion. It will be observed that in said statutory enumeration the connective employed is the disjunctive conjunction “or,” and not the conjunctive “and.” The plain grammatical effect of the language employed is exactly the same as though the word “or” had been used between each two of the mentioned classes, and such must be its legal effect, in the absence of any and all other language indicating a different legislative intent. Direction that payment be made “to A. or B.” may be fully complied with by payment to B., or, as well, by payment to A.; and the illustration will hold good, though the series be extended through the entire alphabet, if the only connective employed throughout the series be the word “or.” The proposition is axiomatic.

Turning to section 11 of the act we find that the exemption .from liability for debts is distributive and threefold in its application, thus: (1) Debts “of the certificate holder,” meaning the member. (2) Debts of “any beneficiary named in such certificate,” meaning, permissibly, some one particular beneficiary who is not merely within some one or more of the five statutory classes, but whose own individual proper name is actually written in the benefit certificate, and that, too, upon designation by or request of the member, since no one else can have or exercise a legal or equitable right to determine to what particular person or persons such certificate shall be drawn payable. (3) Debts of “any person who may have any rights thereunder,” evidently meaning some person not included in (1) or (2), and referring to and including any and all persons whose rights in or to the death benefit fund are those hf remainderman or remaindermen, “as provided by the laws and rules of the association,” under section 1 of the act. When so construed, sections 1 and 11 fit like the hand and the glove; their full meaning is developed; and the statute is found, to be in harmony with the beneficent purposes of such fraternal orders, and general usage, and practically, if not quite, all the decisions of all the courts.

The history of restrictions upon the application by fraternal orders of their death benefit funds presents a distinct change from internal to statutory regulations, but none in the rules of construction of such regulatory provisions.

⅜ “By statute in many jurisdictions and by the charter or by-laws of most societies, the liberal rule allowing a member to designate who he pleases as beneficiary is abrogated, and in nominating a beneficiary the member is restricted to certain classes of persons, such as wife and children, relatives and dependents.” 29 Cyc. 107, 108.

“While the society may, through appropriate legislation, restrict the classes of persons to whom, by statute or charter, benefits may be paid, it cannot enlarge them.” 29 Oyc. 109 and eases cited in note 20.

Several such statutes, substantially like ours of 1899, so far as the questions before us are concerned, were enacted in other states prior to the adoption of our statute of 1889, and some of them had been construed by their courts prior to that date.

Menovsky v. Menovsky, 19 Pa. Super. Ct. 427, arose under section 1 of the Pennsylvania statute of April 6, 1893, relating to fraternal orders, and providing that “payment of death benefits shall be to families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent upon the member.” That statute makes no express provision concerning designation of beneficiaries. The by-laws of the association authorized each member to designate, by will, a beneficiary. The trial judge held: “It is obvious that the designation of a brother is not prohibited by this statute. * ⅜ * It is earnestly and • ably argued, however, by counsel for defendants that the constitution and by-laws of the society restricted such designation to a person or persons of the immediate family of the deceased, or to such as would be his ‘heirs’ as to personalty in case of intestacy. We are unable to accept that view. * * *■ The rule in Pennsylvania (as stated by Judge McMichael in Jacobs v. Most Excellent Assembly Artisans’ Order of Mutual Protection, 9 Pa. Dist R. 54), ‘seems to be that, unless the words of the charter are clearly prohibitive or restrictive, the contract must be carried out as it was made.’ ” In affirming the decision of the trial court, the superior court said: “Our conclusions are that the designation of a brother as a beneficiary is not prohibited by the act of 1893.” To the same effect is Donithen v. I. O. of F., 209 Pa. 170, 58 Atl. 142, by the Supreme Court of Pennsylvania, May 4, 1904. It will be observed that the enumeration of classes of beneficiaries in this Pennsylvania statute is identical with that of the Texas statute of 1899, except that the latter adds the words “at the time of his death.”

In Sheehan v. Butchers, etc., Association, 142 Cal. 490, 76 Pac. 238, decided March 14, 1904, the Supreme Court of California construed the order’s charter and constitution, in connection with the statute of 1874, which required payment “to the nominee of any member.” The constitution provided that the beneficiary should be “one or more members of his family, or some one related to him by blood, or who shall be dependent upon him.” Held: The mother whom the member had designated as his beneficiary was entitled, as against his widow, to the proceeds of the certificate.

Lloyd v. Modern Woodmen of America, 113 Mo. App. 19, 87 S. W. 530, was decided May 16, 1905, by the St. Louis Court of Appeals. Under the Illinois statute of 1883, fraternal beneficiary associations were authorized to issue death benefit certificates payable to legatees of its, members. Laws 1883, p. 104. In 1893 that law was amended, restricting death benefits to “families, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member,” and authorizing existing associations to accept the provisions of the statute as so amended. Laws 1893, p. 130. Appellee was incorporated under said statute of 1883, hut duly accepted that of 1893, and afterward issued to Lloyd a certificate in favor of his wife, upon his application for membership which had not been formally approved by the local lodge, as required by the by-laws of the order. Held: For want of compliance with the by-laws, the certificate never became a binding contract of the order. The court evidently assumed that the member had a legal right to designate his beneficiary, and upon that point no question seems to have been raised.

American Legion of Honor v. Perry, 140 Mass. 589, 5 N. E. 636, decided in January, 1886, construed the Massachusetts statute of 1887, which provided for the incorporation and regulation of co-operative insurance companies, and which restricted them in the payments of death benefits to “assisting widows, orphans or other dependents of deceased members.” St. 1877, e. 204. Under it appellant was incorporated. Perry became a member, and designated his wife as his beneficiary. Her death followed, after which he died, leaving a will by which he undertook to substitute as his beneficiary one who did not belong to any of the three classes mentioned in the statute. The court held that: “The corporation has no authority to create a fund for other persons than of the classes named. The corporation has power to raise a fund payable to one of the classes named in the statute, ⅜ * * selected and appointed by the member during his life, and, if no one is selected, it is still payable to one of the classes named.” The court further held that fund not at all subject to testamentary disposition by the member. The decree awarded the fund to the mother. Said decision was cited and followed in Britton v. Supreme Council of the Royal Arcanum, 46 N. J. Eq. 102, 18 Atl. 675, 19 Am. St. Rep. 377, decided in June, 1890. See, also, Ryan v. Association, 77 N. J. Law, 399, 72 Atl. 53.

Catholic Order of Foresters v. Callahan, 146 Mass. 391, 16 N. E. 14, was decided March 6, 1888, by the Supreme Judicial Court of Massachusetts, a court of last resort. The statute permitted payment of death benefits to none but “widows, orphans, or other'relatives of the deceased, or any person dependent on deceased members.” The court found that the association had not restricted the classes of beneficiaries allowed by law. Callahan, a member, designated his mother as his beneficiary. She was not then, nor afterward, dependent upon him for a support. The validity of her designation rested, therefore, solely upon the fact that' she was a relative of the member. He subsequently married, and his wife survived him. Held: The mother, and not the wife, was entitled to the benefit, fund. The court said: “The deceased member had a right to designate as the beneficiary of the fund any person coming within the statutory provisions which enumerate those who may be thus designated. The law which permitted a relation,' merely, not being necessarily a dependent, to be designated, was in force when he made his designation. The designation of his mother by the deceased was therefore one to which the association had a right to assent, as it did assent by accepting the order of the deceased. Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634; Elsey v. Association, 142 Mass. 226, 7 N. E. 844; Briggs v. Earl, 139 Mass. 473, 1 N. E. 847.”

By section 972, R. S. Mb. 1879, it was provided that fraternal associations may provide “for the relief and aid of the families, widows, orphans, or other dependents- of their deceased members, etc.” In a case under that statute (Keener v. Grand Lodge, A. O. U. W., 38 Mo. App. 543, decided January 6, 1890) the Kansas City Court of Appeals held: “The beneficiaries of a fund, coming from these benevolent associations, must be of the class named in the law which brings the association into being, and the appointee must be one of that class” — citing National M. A. A. v. Gomser, 43 Ohio St. 1, 1 N. E. 11; Presbyterian M. A. F. v. Allen, 106 Ind. 593, 7 N. E. 317, and other authorities.

Masonic Benevolent Association v. Bunch, 109 Mo. 560, 19 S. W. 25, decided March 28, 1892, was by the Supreme Court of Missouri, a case which arose under a statute'of that state, of 1874, authorizing incorporation of “associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof.” The constitution of the association declared, its object and intention to be “to give financial aid to the widows, orphans, heirs and dev-isees of deceased members, and for no other purpose whatever.” The charter required that each member be furnished with a certificate of membership, and the by-laws provided that such certificate should contain the agreement between the association and the member. A certificate was issued to Louis W. Bunch, payable to his “heirs at law or legal representative,” and delivered to his brother, David W. Bunch. Shortly afterward David'caused this certificate, which had been assigned- to him, to be returned to the association and a new one to be issued payable to “David W. Bunch, his brother, or legal representative of said David W. Bunch; on proof of interest.” -David-took possession of it, and paid or caused to be paid all assessments against said certificate, down to the time of his death. Subsequent to the death of said designated, beneficiary, the member became desirous. of changing the beneficiary and made ineffectual efforts to obtain possession of the certificate from-Rank Bunch, his nephew, a son of David Bunch, and thereafter made efforts to pay .all, and did pay many, of the assessments himself; the other assessments being paid by the nephew. After exhausting all methods of getting the certificate and so notifying the secretary of the association, Louis W. Bunch made his will, which was duly probated, in which he designated one Anderson, as beneficiary, in trust, to collect from the association the proceeds and benefits under said certificate, and to dispose of same as follows: First, to refund to the heirs of his brother, David Bunch, all assessments paid by David or said heirs, or any of them, on said certificate; second, to pay to Nancy D. Peyton, the member’s sister, her heirs and assigns, $2,500; third, to pay the balance, less costs and expenses of executing the trust, to the member’s sister, Amanda J. Peyton, her heirs or assigns. In a suit for proceeds of the certificate,- the trial court entered a decree in favor of Catherine Bunch, the widow, and the children, of the deceased member, for the fund, from--which.the executor appealed. In deciding the case -the court said: “The constitution of plaintiff does not in terms provide for the designation of a beneficiary at all. It simply provides for a certificate of membership. David was neither an heir nor a legal representative of Louis, nor widow, nor orphan, but, considering the whole statute together, it would have been within the purport and intention of the corporation, if Louis was a bona fide member of it, to have permitted him to designate David and Ms heirs as Ms devisees. The word “devisee” here evidently has the same signification as “legatee.”

By section 1408, R. S. 1899, of Missouri, limited payments of death benefits by fraternal associations to “families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent upon the member.” The same provisions were carried into the amended statute of Missouri of May 17, 1909 (Laws Mo. 1909, p. 372), and into the Texas statute of 1899; the words “at the time of his death” being added in the latter. Construing that language, the Kansas City Court of Civil Appeals, in Dennis v. Modern Brotherhood of America, decided July 2, 1906, held that persons not within some one of the statutory classes are barred, but treated the statute as permitting designation by the member within the enumerated classes, and cited, approvingly, the Keener Case, supra.

Sturges’ Adm’r v. Sturges et al., 126 Ky. 80, 102 S. W. 884, 12 L. R. A. (N. S.) 1014, decided June 7, 1907. In 1896 the Ohio Legislature enacted a law regulating fraternal beneficiary associations, the sixth section of which provided: “The payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.” 92 OMo Laws, p. 360. Thereafter E. T. Sturges became a member of an association operating under said statute. Held: “It was therefore competent for the association and the insured to have contracted that L. M. Sturges, the half-brother of the insured, should be the beneficiary of the policies, and, while the insured had the right to change the beneficiary, the one substituted must of necessity have belonged to the class permitted by the statute, else the attempted change would be void. It was not competent, then, for the insured to have designated his estate as the beneficiary of the policies. * * * The attempted change being void, the original designation, that of L. M. Stur-ges, the brother, remained unaffected by the void attempt.” The words of this Ohio statute were very similar to those in our statute of 1899.

In Kentucky Masonic Mutual Life Ins. Co. v. Miller, Adm’r, 13 Bush (Ky.) 489, decided December 12,1877, association was held bound by special charter provisions which declared that death benefit must go to the “widow and children” of the member; said provisions being unequivocal. But there the statute, unlike ours, connects the enumerated classes by the word “and,” clearly leaving no room for choice by the association or any member. Instead of being in conflict with our views, this decision tends to confirm them, as illustrating the difference in meaning which exists between “or” and “and.”

Prior to the adoption of our statute of 1899, several other states adopted similar statutes, which their courts construed to the same effect; but the foregoing will serve to illustrate the status when our statute was adopted. In reaching our conclusions we follow the established practice in this state, which has been to give to a statute, borrowed by our Legislature from a sister state, the settled construction which the courts of that state had placed upon it before its adoption here. In Munson v. Hallowell, 26 Tex. 481, 84 Am. Dec. 682, it was said: “It cannot be doubted that when a statute, which has been borrowed by us from England, or some of the older American states, has, previous to our enactment of it, received a settled and uniform construction by the courts of the country from which we have taken it, our courts will give to it a similar construction.” See, also, City of Tyler v. St. Louis S. W. Ry. Co., 99 Tex. 497, 91 S. W. 1, and cases cited. Moreover, in nearly every state where the question had arisen, it had been held that the beneficiary fund constituted no part of the member’s estate, and that he could not dispose of it by will unless the rules of the order expressly authorized him to do so, and that is yet the general rule of decision.

Under such circumstances, if our Legislature had intended to deny to future members of fraternal associations the right to designate beneficiaries, as formerly exercised, and to make tMs statute one of descent and distribution, that dual purpose would probably have been accomplished expressly and unequivocally, and that, too, in accord with our then existing general statute of descent and distribution. The construction which we place upon the statute in controversy is in line with decisions of various appellate courts of tMs and other states, rendered after said statute of 1899 took effect, in the light of wMch that statute was so amended, in 1909, as to expressly confer upon members the right of designation. Among such cases are these:

Coleman v. Anderson, 98 Tex. 670, 86 S. W. 730, decided April 17, 1905. In that case the member, P. B. Coleman, caused a death-benefit certificate to be issued by the Knights of Honor, payable to his son, W. H. Coleman, who afterward assigned his interest therein to another to secure advances with which to pay assessments made by the order against the member. The son used the advances for that purpose. The rights of the assignee passed by deed of trust to his creditors and their assignees, against whom the member and Ms son, the designated beneficiary, brought suit for possession of the certificate. Judgment in the trial court was in favor of plaintiffs, but the Court of Civil Appeals for the Fourth District reversed it, and rendered judgment upholding the validity of said assignment of the benefit fund to the extent of such advances made, and its judgment was affirmed by this court, in an opinion by Associate Justice Williams, to the effect that, although the laws and rules of the order forbade assignment or pledge of the benefit certificate as collateral left to the member, no interest in the contract of insurance, except the right to name or change the beneficiary within the limits of his family or dependents, and to the beneficiary no interest except the right of expectancy to the benefit fund in the event the member made no change in the beneficiary, such rights could be made the subject of contract by them with a third person; provisions of the' bylaws of the order being for its own benefit, and said assignment, made with consent of the member, though in contravention of the by-laws, being good as between the parties. We quote from said opinion as follows: “Treating the certificate as affected by the only rules of the order introduced in evidence, as plaintiffs claim it should be treated, it invested the member with no property interest in the benefit. His only right, with respect to the benefit, was to appoint a beneficiary to receive the money at his death, and the beneficiary named could only be one or more among those designated by the laws of the order, namely, ‘members of our families and dependents,’ and not creditors. The money to be paid could never go to him or to his estate, according to this rule; and, in this state of things, the authorities are ample to the effect that the only right of a member of such an order, with respect to the benefit, is that of appointment just stated.”

And, in referring to certain expressions in Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189, the opinion proceeds thus: “The decision does not conflict with the rule stated by us, that under the rules shown in this case the member, during life, has no property interest in the benefit, but only the power to appoint a beneficiary among the class designated by the laws of the order. That right P. B. Coleman still has, and there is nothing in this record to show that he is in any wise hindered or obstructed in its exercise by the defendant’s possession of the certificate.” The date of issuance of the certificate was not disclosed by the record, but, as this court said, was “left to conjecture” ; and the record was also silent as to whether the charter, constitution, or by-laws of the order did or did not expressly authorize its members to designate or to change their beneficiaries. Inasmuch as it was shown that the order was permitted by its charter to raise a fund “only for the protection of our families and dependents,” the class of dependents not being limited to those occupying that status at the death of the member, as was required by oúr statute of 1899, we presume that the certificate issued before that statute took effect The report of the case discloses no specific issue as to the right of the member to make such designation or change; but this court evidently assumed, and also expressly declared, that the member had both such rights. See Kelly v. Searcy, 100 Tex. 566, 102 S. W. 100.

Williams v. Fletcher, 26 Tex. Civ. App. 85, 62 S. W. 1082, decided April 27, 1901, arose under a benefit certificate issued, prior to the enactment of our statute of 1899, by the Fraternal Mystic Circle, which was incorporated under the laws of the state of Pennsylvania; but the rights of the parties were determined under the laws of this state, in which said certificate was issued, and in which said society was doing business, the rule in such eases being well settled that the laws of the latter state govern. Dennis v. Modern Brotherhood of America, 119 Mo. App. 210, 95 S. W. 968. The object of the society, as expressed in its charter, was, among other things, “the collection of dues and assessments from its members; to provide for the payment to its members, or their families, widows, heirs, blood relatives, or other dependents, benefits in case of sickness, disability, or death of its members, in compliance with its constitution, laws and regulations.” Its constitution provided for the payment of “such sums of money to the family or heirs, widows, orphans, and dependents of deceased beneficial members, and to those of its beneficial members who may become permanently disabled by disease, accident or age.” The by-laws provided that a candidate for beneficial membership shall embody in his petition the name or names and residences of the member or members of his family, or those dependent upon him, to whom he desires the benefit to be paid, subject to such further or other dispositions of his benefits as he may thereafter direct, in accordance with the laws of the order, and the same shall be embodied in his benefit certificate, provided the children or heirs of a member may be designated as such without naming them. The by-laws further provided for payment through an order upon the Supreme Treasurer in favor of the person or persons named in the benefit fund certificate, upon surrender thereof duly receipted, or upon proper vouchers in case of total disability. The society issued to George D. Fletcher, one of its members, a benefit certificate for a designated amount, payable to William A. Fletcher, his brother. George Fletcher subsequently indorsed and signed on said certificate a statement wherein he undertook to surrender and return it for cancellation, directing that a new certificate be issued to the minor, Frank Williams, who was not within any of the classes enumerated in said constitution, and presented said certificate, having said indorsement and request for such new certificate thereon, to the proper officer of the society, and, upon being informed that his beneficiary must be either a relative or a dependent, attempted in writing to assign his interest in said certificate to said minor, and to direct that his former beneficiary’s name, William A. Fletcher, be erased from said certificate, and that the full amount called for by the certificate be paid to said minor. Said attempted transfer or redesig-nation remained in possession of George Fletcher until his death, and was afterwards found among his papers. No consideration was paid by the minor for said assignment, and the member himself paid all his membership dues. In the suit which involved the disposition of the benefit fund in question, the trial court rendered judgment in favor of William Fletcher, in whose favor the certificate was originally issued, which judgment was affirmed by our Court of Civil Appeals for the Second Supreme Judicial District in an opinion by Associate Justice Hunter, which closes as follows: “The learned district judge in his conclusions of law held, in effect, that while the transfer of the certificate' made by George D. Fletcher was sufficient to pass the benefits of said certificate to Frank Rice Kyle Williams, if he had been a person who, by the charter, constitution, and laws of the association, could be a beneficiary in said certificate, yet, not being such, the transfer to him was void, and no right or interest in the fund passed thereby. Hence William A. Fletcher, being a brother and heir of the deceased, and being named in the certificate as beneficiary, is entitled to the fund. We think that his honor was correct in so holding, and his judgment is affirmed.” It will be observed that, while the decisions of both courts against said minor were based upon the fact that he was not within either of the classes of beneficiaries mentioned in the constitution, the judgment of each plainly recognized the •right of the member to designate his beneficiary, within the circumference of such classes, and denied to the member’s three brothers,-who were also parties to the suit. The member, George Fletcher, lived and died a bachelor, and his father and mother were both dead when said benefit certificate issued. Under this constitution the three brothers, whose right of recovery was denied, if not members of the “family” of the deceased member, were certainly among his “heirs,” and were consequently entitled to share in the proceeds of the benefit certificate unless the designation, by said member, George Fletcher, of his brother William Fletcher, as his beneficiary, was valid and binding.

Flowers v. Sovereign Camp, W. O. W., 40 Tex. Civ. App. 593, 90 S. W. 526, was decided November 18, 1905, by the Court of Civil Appeals for the Second Supreme Judicial District; the opinion being by Associate Justice. Speers. The benefit certificate was issued November 23, 1898, in favor of the member’s wife. He afterward' attempted to change the beneficiary but failed to fully comply with the by-law on- that subject, for which reason! the benefit fund' was awarded to the wife as the beneficiary originally designated by the member.'. The court did not discuss, but did assume,, the validity, of such original designation. The opinion does not disclose what classes of persons might be beneficiaries under the rules of the order, but it admitted liability and paid the money into court.

In Harris v. Harris, 44 Tex. Civ. App. 152, 97 S. W. 504, decided November 7, 1906, the benefit certificate, which was issued August 9, 1898, was in favor of the member’s wife, Mrs. Effie Harris. The constitution of the order declared its objects to be, among others, to create a fund from which there shall be paid a designated sum “to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers, sisters, or other blood relatives, or to persons dependent upon thé member,” following the statutes of Pennsylvania and several other states. It also provided that: “.The name or names of the beneficiary or beneficiaries shall be written in every beneficiary certificate issued.. In case such benefits are payable ,to one of the relations named herein, who shall at the time of the death of a member be also deceased, and no new designation has been made as hereinafter provided during life, the benefits shall be due and payable to the member’s next living relation in the order named in this section. If there be no such relatives surviving, then said benefits shall be forfeited to and remain in the beneficiary fund.” It also provided a plan whereby a member might change his beneficiary. The wife, died in 1899. The member made no other designation. The trial court rendered judgment in fa-vor of the children against the widow of the member for proceeds of the policy, which the Sovereign Camp of the order had paid into court. The Cburt of Civil Appeals for the Third Supreme Judicial District, in an opinion by Chief Justice Fisher, reversed that decision, saying: “Under facts as stated, judgment below is erroneous. It should have been in favor of appellant, Mrs. Effie Harris. The original beneficiary having died, and the assured failing to make a new designation, the status of •relationship existing at the time of the death of the latter would, under the provisions of the constitution of the order quoted, determine to whom the proceeds of the policy should- go. The rule of kinship there ascertained places the wife first in order. Mattison v. Sovereign Camp of Woodmen of the World, 25 Tex. Civ. App. 214, 60 S. W. 897. And, ’ upon the death of the husband, the assured, no other beneficiary being- selected by him, she stands first in order as the one selected as entitled to the proceeds.” It will- be observed that, while the right of the member to designate a beneficiary was not directly in issue, that right was clearly recr ognized by the court.

Stahl v. Grand Lodge A. O. U. W. 44 Tex. Civ. App. 203, 98 S. W. 643, decided January 23, 1907, was a suit .for..part, of.-, tbe.proceeds of a beneficiary certificate; the plaintiff being the widow of Louis Stahl, a member of defendant order, to whom it issued, in 1882, a certificate for §2,000, payable at his death to his sisters, Catherine Grieb and Rosina Braun, §700 each, and to his daughter, Catherine Stahl, who afterwards married Saures, §600. Rosina died before Louis Stahl died. The contest was over one-half of the amount directed in the certificate to be paid to Rosi-na and the entire amount so directed to be paid to said daughter of the deceased member ; the association having paid that amount to said daughter. The constitution of the order provided: “Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him. The judgment of the trial court was to the effect that the daughter, whether legitimate or not, was entitled to the money which had so been paid over to her, and that judgment was affirmed by our Court of Civil Appeals for the Fourth Supreme Judicial District, in an opinion by Associate Justice Fly, which declared said designation of the daughter valid, upon the double ground that she was related by blood to the member, Louis Stahl, and was also dependent upon him when designated as a beneficiary, and so belonged to two of the classes of beneficiaries enumerated in the constitution of the order. That opinion quoted approvingly from a case' to which the same fraternal order was a party (Supreme Lodge A. O. U. W. v. Hutchinson, 6 Ind. App. 399, 83 N. E. 816) as follows: “By the law of the order three classes of beneficiaries are established: Members of the family, relations by blood, and those dependent on the member. Within these classes there is no limitation upon the right of selection by the member. So long as he keeps within these classes there is nothing to indicate that the order has any concern or interest in or control over the selection of the beneficiary.”

Grand Lodge Colored Knights of Pythias v. Mackey, 104 S. W. 907, decided October, 16, 1907, arose under our statute of 1899, and a benefit certificate issued June 18, 1904, to Barrett, drawn payable to Lelia Curry, as his affianced wife. He afterward surrendered said certificate and obtained a new one in favor of Mackey, who was not within any of the classes enumerated in the statute. In a suit for the benefit fund, judgment in the trial court was in favor of Mackey against the woman and the order. Holding that surrender by Barrett of the certificate ended the woman’s- interest as the designated beneficiary, whether ⅞⅛ engagement between them had been broken- off or not, and that,. as Mackey was- not within any of the classes mentioned in the statute, he was not entitled to the fund, and thatr if said engagement had not been terminated prior to Barrett’s death, the woman, not as the beneficiary designated by Barrett, but as his affianced wife, was entitled under the statute to the fund, the Court of Civil Appeals for the Fourth Supreme Judicial District, in an opinion by Fly, J., after quoting from said statute of 1899 the paragraph which specified the five classes of persons to whom, such funds may be paid, and directs that, “Should there be no one of the classes herein mentioned capable of taking the benefit at the death of the member, then the same shall pass as provided by the laws and rules of the association,” said: “The rules of the association in this case provide that the benefits shall revert under such circumstances to the benefit fund of the endowment department.” It is clear that the classes named in the statutes, in the order named, are entitled to the benefits of the certificate of insurance in a fraternal beneficiary association when there is no designation of a beneficiary by the insured. He has the right to choose a member of either class named in the statute as the beneficiary; but, in case he fails to name one of them, the benefit must be paid to those entitled to it under the statute in the order of precedence named in the statute.” The expression to the effect that Barrett had “the right to choose a member of either class named in the statute as the beneficiary” appears to have been dictum; but it construed the statute as we do.

Grand Lodge A. O. U. W. of Texas v. Jones, 47 Tex. Civ. App. 533, 106 S. W. 184, decided November 20, 1907, grew out of a benefit certificate issued by a fraternal beneficiary association which had been incorporated on, January 2, 1900, under the laws of this state. The beneficiaries named in the certificate were two sons of the member, designated by him under the rules of the order which required that “each member shall designate the-person or persons to whom the beneficiary fund due at his death shall be paid,- who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him. * ⅜ ⅜ Provided, further, that the designation shall not be in violation of or in conflict with any law regulating and defining fraternal beneficiary societies or other laws of the state, territory, or province within- which the Grand Lodge so issuing such certificate is situated.” The rules of the order also stated how any member might change his beneficiaries. After various transactions involving an assignment of the certificate to secure advances, etc., and a subsequent change in the beneficiary, whereby Jones, as trustee, became beneficiary, an attempt was made by the member to again change the beneficiary, ■so as to make his two grandchildren beneffi eiaries. The suit was filed by Jones, as trustee, to prevent the order from issuing a new certificate designating .the grandchildren as such beneficiaries.. It seems that no specific issue was made as: to the validity of the member’s.- original; designation of beneficiaries, or as to his right, in the first instance, to change them, in manner and form as that was done; those rights apparently being assumed, by all of the parties and by the trial and appellate courts, as existing. The controlling question in the case was as to the right of the member and the order to make the proposed change in beneficiaries in. disregard of the rights of Jones, trustee, under an assignment to him of the certificate to secure certain advancements made for the purpose of paying assessments and to secure certain general creditors of the member. The trial court perpetually enjoined the order from making the proposed change in the certificate, but the Court of Civil Appeals reversed and rendered the ease, holding that the association should issue the certificate naming the grandchildren as beneficiaries.

The opinion of the Court of Civil Appeals, from which the questions now before us were certified, was delivered by Associate Justice Rice. From it we make these excerpts (see 47 Tex. Civ. App. 540, 106 S. W. 186): “It will be recalled that the laws of the order expressly grant the privilege to any member to change the beneficiary, only limiting the exercise of this privilege to the designation of some person or persons falling within the class named, to wit, some member or members of the assured’s family, or some one related to him by blood, or who shall be dependent upon him, and further provided that such designation should not be in violation of or in conflict with any law regulating and defining fraternal beneficiary societies, or other laws of the state.” Application for a writ of error was dismissed by this court for want of jurisdiction; the amount of the proposed new benefit certificate being less than ¡¡51,000. We refer to said decision because it shows, at least inferentially, what all the parties and the district court and the Court of Civil Appeals understood to be the meaning of our statute of 1899 with reference to the right of a member to designate a beneficiary. It should be remembered that the decision of the appellate court was rendered prior to the adoption of said statute of 1909.

Gray v. Sovereign Camp, Woodmen of the World, 47 Tex. Civ. App. 609, 106 S. W. 176, decided November 23, 1907, was a case in which the member, Gray, caused the order to issue in his favor, on October 11, 1901, and consequently under our statute of 1899, a death benefit certificate in favor of Rosie C. White, as his cousin. Gray subsequently died, and the woman claimed the fund. The representation by the member that she was his cousin was false and fraudulent; she was not related to him by blood or marriage. It was found that the constitution and by-laws of the order “designate, define and restrict the class of beneficiaries who may participate in the beneficiary fund to the wife, children, adopted children, parents, brothers, sisters, or other blood relations, or to persons dependent upon the member.” Held: Because of the fraudulent representations concerning the relation of the woman to the member, she could not recover. After stating the facts and the requirements of said constitution and by-laws, the Court of Civil Appeals for the Fifth Supreme Judicial District, through Associate Justice Talbot, said: “In addition to the provision of appellee’s constitution referred to, in which the classes of persons who could become beneficiaries in a certificate issued by it are designated, we have the statute passed by the Twenty-Sixth Legislature of this state in 1899 (Sess. Acts 1899, p. 195, c. 115), which was in force at'the time the policy sued on was issued, in which fraternal beneficiary societies, as created by the laws of this state or permitted to do business in this state, are defined, and the classes of persons who can receive benefits from them are designated. The classes in this statute are designated to be the families, heirs, blood relatives, affianced husband or affianced wife, or persons dependent upon the member at the time of his death. Thus, by the terms of this statute, as well as by the constitution of ap-pellee’s association, blood relatives could become lawful beneficiaries in certificates issued by appellee, and, at the time the contract sued on was executed, appellant, if she had in fact been the cousin of the deceased, Gray, could have enforced said contract.” Two cases are cited by that opinion: Koerts v. Lodge, 119 Wis. 520, 97 N. W. 163, and Supreme Council v. Green, 71 Md. 263, 17 Atl. 1048, 17 Am. St. Rep. 527. In the former case the Wisconsin court said, “It was falsely represented to respondent’s officers that the beneficiary was one of the class for whose benefit the mortuary fund was established;” but the court found that representation false, and held the claim based thereon invalid. In the latter case the Maryland court said, “A relationship was stated to exist, which on its face placed the beneficiary named within one of the classes provided by the corporation, and allowed by the statute;” and likewise found that such relationship did not exist, and that the beneficiary could assert no right under the certificate so fraudulently obtained The statute therein referred to was one which as amended in 1882, authorized the formation of association “for the purpose of assisting the widows, orphans, or other relatives of deceased members, or any persons dependent on deceased members.”

In. the light of the foregoing it seems clear that, when inserting in our statute of 1909 a provision expressly authorizing a member to designate a beneficiary selected at his will from any of the enumerated classes, our Legislature meant, not to confer a new right, or to establish a new rule of law, but merely to expressly declare the law upon that point as it existed aforetime. Not a single authority has been cited by the able and distinguished counsel for the widow in support of his contention. We presume he was unable to find any. In the opinion of the Court of Civil Appeals in this case, rendered by Associate Justice Jenkins, this statement appears: “If there is any decision of any court that treats language similar to that used in our statute as anything other than the designation of the classes from which the insured must select the beneficiary, appellee has not called the same to our attention, and our research has not enabled us to discover the same.” After diligent investigation we concur in that statement, as we do in the conclusion therein announced upon the question subsequently certified to us. The designation of the parents having been valid when and as made, neither the subsequent marriage of the member, nor the birth of his child, nor both, changed the beneficiary. Sheehan v. Butchers Pro. & Benev. Ass’n, 142 Cal. 487, 76 Pac. 240; Foresters v. Callahan, 146 Mass. 391, 16 N. E. 17. We accordingly answer the foregoing certified questions, in their order, thus:

First. The quoted words merely define and limit the classes from which a member may select a beneficiary or beneficiaries, under a death benefit certificate. Said words do not in any sense constitute a statute of descent and distribution, and do not require payment of death benefit to be made in the order of said enumeration of classes, in disregard of the designation made by the member and shown by such certificate.

Second. Under the facts stated it was the duty of the Grand United Order of Odd Fellows to pay over to Thomas and Amanda Green said entire benefit fund of $500. Having already received half of it, they are entitled to the other half from the registry of the trial court.

BROWN, C. J., and PHILLIPS, J.

(concurring). We prefer to confine this decision to what we regard as the sole question presented by the certificate; that is, whether the effect of the act of 1899 was to deny to a member of a fraternal beneficiary association the right to designate a beneficiary, within the classification of persons enumerated in section 1, for the payment of death benefits, without reference to other questions discussed in the opinion of Mr. Justice Hawkins.

We concur in' the view that it had no such effect, since the provision in section 11 that the benefits to be paid by such an association should not be subject to the debts of “any beneficiary named in such certificate” was a clear recognition of such right.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    CLAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    1. Criminal .Law (§ 922) — Presentation Below — Filing Instructions.
    Under Acts 83d Leg. c. 138, amending Bey. St. 1911, art. 743, providing that'judgment shall not be reversed, unless the record shows that accused has not had a fair trial, and all objections to the charge shall be made at the time of the trial, objections to a charge must be filed before verdict is rendered, and the charge cannot be objected to thereafter, unless drawn so as to prevent accused from having a fair trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2210-2218; Dec. Dig. § 922.]
    2. Intoxicating Liquors (§ 146) — Offenses.
    If accused sold whisky in violation of the prohibition law, and received money for it, he would be guilty irrespective of who owned the whisky.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163Dec. Dig. § 146.]
    3. Criminal Law (§ 1159) — Appeal—Findings— Conflicting Evidence.
    A verdict of conviction for selling in violation of the prohibition law will not be disturbed because of conflict in the evidence, where there was evidence of the purchase of the whisky from accused.
    [Ed. .Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    4. Criminal Law (§ 958) — New Trial — Newly Discovered Evidence.
    Alleged newly discovered evidence is not ground for a new trial, in a criminal case, where it is not supported by the affidavit of the witness, and no reason is given why his affidavit is not attached thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ -2396-2403; Dec. Dig. § 958.]
    Appeal from San Augustine County Court, -H. K. Polk, Judge.
    Rich Clay was convicted of selling intoxicants in violation of the prohibition law, and appeals.
    Affirmed.
    Wm. McDonald, of San Augustine, 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 of selling whisky in violation of the prohibition law, and his punishment assessed at a fine of 3100 and 20 days’ imprisonment in the county jail, from which judgment, he prosecutes this appeal.

This case was tried November IS, 1918, and, although he registered no exceptions to the charge as given at the time of the trial, yet, in his motion for a new trial, he seeks to complain of the charge of the court. Since the amendment of article 743 by the Thirty-Third Legislature, the exceptions and objections to a charge as given must be filed at the time of the trial, and before verdict rendered. It is too late to complain of the charge after verdict rendered, unless the charge is so drawn as to prevent appellant from having a fair and impartial trial. Article 743, Acts of 33d Legislature, p. 278.

While the evidence in this case is conflicting, yet Lige Johnson swears he purchased a quart of whisky from appellant, and paid him $1.50 for it, and Fairley Lee swears he saw Johnson get the whisky, but says appellant told him the whisky belonged to Neal Trotti. It would be immaterial to whom the whisky belonged if appellant sold the whisky to Johnson, and received the money for it. Under the evidence we will not disturb the verdict because of the conflict in the testimony.

The alleged newly discovered testimony is not- supported by the affidavit of the alleged newly discovered witness, nor is there any reason assigned why his affidavit is not attached. Under such circumstances this presents no ground for a new trial. Love v. State, 3 Tex. App. 501; Cotton v. State, 4 Tex. 260; Campbell v. State, 29 Tex. 490; Evans v. State, 6 Tex. App. 513.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    MURPHY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Indictment and Information (§ 161) — Validity— Complaint.
    Code Cr. Proc. 1911, art. 478, does not require the information to state that it is. founded upon a complaint in writing under oath, though article 479 forbids the county attorney to file an information until a complaint, under oath, has been made. An information based on a proper complaint duly filed recited that fact, but did not contain the name of the af-fiant. Held, that the insertion of the name of the affiant was not erroneous, though made without the consent of the court, and during trial.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 516-523; Dec. Dig.'§ 161.']
    Appeal from‘Gregg County Court; J. H. McHaney, Judge.
    Will Murphy was convicted of unlawfully selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

A complaint was made by J. R. Garner before the county attorney, duly signed ‘by Garner, and sworn to before said county attorney, charging appellant with unlawfully selling intoxicating liquors in prohibition territory. The complaint is in every way full, complete, and regular. It is not only signed by Gamer, and sworn to by him before the county attorney, but the body of the complaint shows, “before me, the undersigned authority, on this day personally appeared J. R. Garner, who,” etc. This was signed and sworn to on October 6, 1913. On the same date, and based exclusively on this affidavit, the county attorney filed an information which is in every way complete, perfect, and regular, except that it started out, after saying in the name, etc., of the state: “Now comes F. A. Taylor, county attorney of Gregg county, Texas (upon affidavit of J. B. Garner hereto attached and made a part hereof),” etc. This is as it appears in the record before us.

The appellant waived a jury, and- submitted his case to the court. The court found him guilty, and assessed his punishment at a fine of $25, and 60 days in jail. Appellant made a motion in arrest of judgment, claiming that the information was insufficient, in that the name of the complainant, J. R. Garner, was left blank in the information at the time it was filed, when both parties announced ready, and until most of the evidence was introduced; that thereupon the county attorney inserted the name J. R.' Garner in the first part of the information above quoted without leave of the court, or under its. direction or authority. No complaint of- this was made at the time’ it was done, nor until the motion in arrest of judgment was filed after the trial was concluded. The court heard evidence on the'matter, and, in his judgment overruling the motion to arrest, specifically finds that at the time the information was filed it did not contain or show in the body thereof the name of the said affiant upon whose complaint such information was based and presented, and the same was known to the defendant and his attorneys at the time of the announcement of ready for trial; that the said complaint was filed simultaneously with the information, and the information was based and presented thereon; that after the announcement of ready for trial by both parties, and after the state had introduced a portion of the testimony, the county attorney, without leave of the court, and without the knowledge or consent of the court, inserted in said information the said name “J. R. Garner,” the same being the name of the affiant who had attested and sworn to said complaint; that there was no motion made, or leave asked of the court, to permit the insertion of this name in the information. The court thereupon held- that the absence of said name in the information at the time of its presentment and announcement of ready did not and does not in any manner vitiate said information, the same being a matter of form only, and the subsequent insertion of affiant’s name in the information, without leave of the court, is held to be void and considered as surplusage, and not an amendment of said information, the absence of the affiant’s name in the body of the information being a matter of form only, and the defendant would be required to take advantage thereof by proper motion before or at the time of the announcement for trial, and that such objection could not be raised' for the first time after the trial and conviction by motion in arrest.

Our statute (C. C. P. 479) forbids the county attorney to file an information until the proper complaint has been made. In prescribing the requisites of an information, article 478, C. C. P., does not require such information to state upon whose affidavit it is based. “It is wholly unnecessary to state in the information that it is founded upon complaint in writing under oath, or to make any mention whatever of the oath. This is not one of the requisites of an information. [C. C. P. art. 478.] If the oath is filed with the information, it is all that the law requires in this respect. [C. C. P. art. 479.]” Johnson v. State, 17 Tex. App. 230. The court’s ruling was in every way correct and proper. Malz v. State, 36 Tex. Cr. R. 447, 34 S. W. 267, 37 S. W. 748; Edgarton v. State, 68 S. W. 678; Taul v. State, 61 S. W. 394; Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197 ; Hall v. State, 156 S. W. 644.

There is no statement of facts in the record, and no other question raised which can be considered. The judgment is affirmed.


text:
    TERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Criminal Law (§ 1090*) — Appeal—Record-Review.
    Matters stated in an affidavit attached to the motion for new trial, not being verified by bill of exceptions or statement of facts, cannot be considered on appeal.
    TEd. Note. — For other cases, see Criminal Law, Cent: Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec.Dig. § 1090.*.]

      Appeal from Gregg County Court; J. H. McHaney, Judge.
    Zeb Terry was convicted, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.
   HARPER, J.

Appellant was proseeutéd and convicted of unlawfully betting and wagering at a game of cards, and Ms punishment assessed at a fine of $10. The indictment charges an offense, and no statement of facts nor any bills of exceptions accompany the record. Attached to the motion for a new trial is the affidavit of J. M. Farr, who stated that he was one of the jurors in tMs case, as well as the ease against George Lamont, and that he thought, during the trial of this case, he was to pass on the guilt or innocence of both parties at the same time. The affidavit as made presents a queer situation; but it states matters not verified by the record. If, as a matter of fact, the case of George Lamont was called and proceeded to trial, and the trial then suspended, and appellant placed on trial, if the same jury was called and on examination stated they had formed an opirnon as to the guilt of this defendant, this fact should have been verified by bill of exception; if no objection was made to the juror after he had stated such facts, it would be too late to complain after verdict. The record discloses that George Lamont was not tried at the same time as appellant. If the matters were properly presented, they might be erroneous; but as here presented we cannot consider them in the absence of any bill of exception or statement of facts.

Affirmed.


author: DAVIDSON, J.

text:
    LAMONT v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    1. Criminal Law (§ 1090) - Appeal - Bill op Exceptions&emdash;Review.
    A matter simply alleged in the motion for new trial, but not verified by affidavit, bill of exceptions, or statement of facts, cannot be considered on appeal.
    [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789,2803-2822, 2825-2827, 2927, 2928,2948, 3204; Dec.Dig. % 1090.]
    2. Criminal Law (§ 1124)-Appeal-Rec-ord-Review.
    ' A ground of motion for new trial relating to the statement of facts cannot be considered on appeal in the absence of the evidence.
    [Ed. Note.-For other_jesses,_ see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    George Lamont was convicted, and appeals.
    Affirmed.
    C. É. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This case is before us without a statement of facts or bills of exception.

The first ground of the motion for new trial, had it occurred as alleged, and been properly verified, might have presented a serious question; but it is not verified in any way. It alleges as a ground of the motion : That, after the state and defendant had announced ready for trial, and the testimony, had all been introduced, opening argument Of. counsel was made by the state, and argument for defendant closed. The court suspended, the trial of said cause, over appellant’s objection, and went into the trial of a com-, panion case, Terry v. State, 164 S. W. 2; the evidence in both cases being identical.. The court forced the defendant in the Terry' Case to draw a jury from the same panel of jurors trying this case, and the same jury to a man was drawn to try the case, and the Terry Case proceeded to trial with identically the same jury. This put the burden upon the said jury to try two cases, and to have in mind at the same time all the facts connected with both cases, and in a manner that, in deliberating upon one of the cases, they could not exclude from their minds the evidence in the other. When they had finished the Terry Case, and rendered a verdict, they were called back into the jury box to proceed with the trial in this case. That some of the jurors, wMle rendering their verdict in the Terry Case, were of the opirnon that their verdict was to cover both the cases, and that they were trying both cases together, and thought they had disposed of this case until they were called back to proceed with it; That the jury were influenced in this case by the testimony in the Terry Case. In support of tMs ground of his motion, the defendant says he files herewith as a part hereof the affidavit of J. M. Farr; but the affidavit was not filed, nor any bill of exception reserved. By the simple allegation in the motion, with nothing to verify it either by affidavit or bill of exception, and without the statement of facts, we are unable to re- ■ vise this ground.

The remaining ground of the motion relates to the statement of facts which cannot be considered because the evidence is not before us. Had the first ground mentioned been properly verified and properly presented as alleged, it would have presented a very serious question, and a fatal error to the conviction.

As presented, however, the judgment is affirmed.


text:
    WALKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    1. Criminal Law (§ 939)-New Trial-Newly Discovereb Evidence.
    Where accused desired to take advantage of the suspended sentence law, a new trial cannot be granted for newly discovered evidence that he was a law-abiding citizen, where there was no attempt to secure the attendance of witnesses to those facts, and no affidavit that this was newly discovered evidence, or that similar evidence could not have been produced at the trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    2. Criminal Law (§ 796)—Teial—Instruc-tions.
    Unless there is evidence that accused is of good character, and has not been before convicted of a felony, a charge on the suspended sentence law is properly refused.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1928-1934; Dec. Dig. § 796.]
    3. Criminal Law (§ 1053)—Aureal —Questions Presented.
    A bill of exceptions to the overruling of a motion for new trial does ont present for review the errors urged as grounds, but those errors must be presented by bills duly reserved during trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2661, 2665; Dec. Dig. § 1053.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    John Walker was convicted of pursuing the business of selling intoxicants in local option territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for pursuing the business of selling whisky in local option territory; his punishment being assessed at four years in the penitentiary.

The evidence for the state is sufficiently strong to sustain the conviction. We deem it unnecessary to go into a statement of the evidence.

Appellant alleges he has newly discovered testimony to the effect that Bill Bailey, who resides in Lamar county, would testify that defendant had worked for him and he knows defendant to be a sober, peaceable, law-abiding citizen; that Floyd Green lives at Holland, Tex., and would testify he knows the defendant, who has worked for him, to be a peaceable, law-abiding citizen; he alleges that Green’s testimony would be material, in that the district attorney argued that it was material and that defendant should have introduced it; .that now the defendant asks that he be permitted to introduce said witness in his behalf; that affidavits of said witnesses cannot now be procured, owing to the distance they live, in the short time defendant has in which to file this motion for new trial. There was no attempt, either before or after the motion for new trial, to obtain these witnesses, so far as the record is concerned, and the defendant, and no one for him, swears that this was newly discovered evidence, nor does it show that he could not have had the testimony, or similar testimony, before the-jury; that is, that his reputation was that of a quiet, peaceable man, and law-abiding citizen. Usually this character of testimony would not be material; but, inasmuch as appellant filed a request to have the suspended sentence law given in charge to the jury, it would have become material had it been present, and may have been ground for a motion for new trial had he made proper showing to the court that the witness would have so testified, and that it was in fact newly discovered testimony. There was no evidence to support this phase of his request to have the court to submit the suspended sentence law to the jury. This is in no way verified, and therefore cannot be considered.

The second ground is that the court erred in not charging the suspended sentence law. A bill of exception is taken to this action of the court, or rather to the action of the court in overruling this ground of the motion. This would hardly be sufficient to verify it, but the court qualifies the bill by stating that there was no evidence introduced in support of this request, and, as we understand the evidence, his reputation as being a law-abiding citizen is not sustained by any evidence before the jury. In fact, as we understand the record, there was no evidence before the jury either as to his good character and reputation or the fact that he had never been previously convicted of a felony. As this matter is presented, we do not think there was any error.

The bills of exceptions found in the record were taken to the action of the court in overruling the three grounds of the motion for new trial; a separate bill being reserved to each one of the grounds specified. A bill of exceptions to the overruling of the motion does not present the question for revision. These exceptions should have been taken to the action of the court in regard to the matters as they occurred. Conceding that the bills were properly presented, yet, under the circumstances stated, there is no such error shown as requires a reversal.

The judgment is therefore ordered to be affirmed.


text:
    BUCKINGHAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Appeal and Error (§ 688*) —Appeal — Necessity op Bills op Exception.
    Where there was no bill of exceptions reserved to the misconduct of spectators during the trial, and nothing to verify the allegation thereof in the motion for new trial, which was not sworn to, the matter could not be reviewed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 289-4-2896; Dec. Dig. § 688.*]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    Eugene Buckingham was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is before us without a statement of facts or bill of exceptions.

The motion for new trial alleges that the court erred in overruling his motion to quash the information. The information seems to be in such form as has been approved by this court in previous cases.

The second ground is because of misconduct of spectators in the courtroom during the trial of the cause, in this, that, while counsel in the private prosecution was making his closing argument, some of said spectators made a great demonstration tending to show, in the presence of the jury, that public sentiment was highly in favor of conviction; that there was clapping of'hands and cheering in favor of the prosecution, done in a manner highly calculated to influence and prejudice the jury, against the defendant.

The third is that the verdict is contrary to the law and the evidence.

There was mo bill of exceptions reserved to the alleged misconduct of the spectators during the trial, and nothing to verify it in any way, except the simple allegation in the motion for new trial. This is not even sworn to. As this matter is presented, we > are unable to revise it.

The judgment is affirmed.


text:
    LEWIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. LARCENY (§ 60) — SUFFICIENCY OF EVIDENCE — Reasonable Dotjbt.
    In a prosecuton for theft of property, possession of which was alleged to be in one W., but shown to be in his renter, while the evidence of such possession in the renter did not amount to demonstration, it was clear to the exclusion of reasonable doubt so as to require reversal.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 156-158; Dec. Dig. § 60.]
    2. LaRceny (§ 32) — Indictment—Possession of Property.
    An indictment for the theft of property in possession of a renter should allege general possession in the owner’s agent and special ownership in the renter, or ownership in the agent, or in the renter.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32.]
    Appeal from Mitchell County Court; A. J. Coe, Judge.
    Mary Lewis was convicted of theft of property under the value of $50, and she appeals.
    Reversed and remanded.
    Shepherd & Sandusky, of Colorado, Tex., for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of theft of property under the value of $50.

The property in fact belonged to a man named Whiteraft. The evidence shows the stolen property was some widows and a door. One of the witnesses turned state’s evidence and testified against the defendant. He was an accomplice, and therefore it was .necessary to corroborate him. The testimony is weak on corroboration, even if it be sufficient. Womack testified he was the agent of Whiteraft and rented the property to Riley for' the year 1913, and this contract carried possession in Riley of the property from the 1st of January, 1913, to the 1st of January, 1914. The property, if taken by appellant, was taken on the night of January 3, 1913-. Riley being the -renter was legally, or supposed to be legally, in control of the property. The indictment alleged possession in Womack. The evidence, as we understand it, shows it to be in Riley. While this is not sufficiently clear to amount to a demonstration, yet it occurs to us it is so to the exclusion of the reasonable doubt, and as this record is presented to us we are unwilling to affirm the judgment in this condition. However we would suggest upon another trial the different counts be drawn so as to meet any contingency. Womack was not in actual control, but only in such control as the agency gave him; the property being ten or twelve miles distant in the country. The indictment should contain a count alleging the general possession in him and special ownership in Riley. Another count might be added charging ownership in Womack, and the third charging it in Riley. This would meet any’phase of it if the state sees proper to prosecute the case further.

As the matter is presented, the judgment is reversed, and cause remanded.


text:
    DAWSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    1. Intoxicating Liquors (§ 233*) — Offenses —Evidence.
    In a prosecution for unlawfully engaging in the business of selling intoxicants in prohibition territory, testimony by express agents of large shipments of intoxicants to accused is admissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.*]
    2. Intoxicating Liquors (§ 141*) — Offenses — Business of Selling Intoxicants on Prohibition Territory.
    To convict of unlawfully engaging in the business of selling intoxicants in prohibition territory, it must appear that accused was en-' gaged in the selling as a business proposition.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.*]
    3. Intoxicating Liquors (§ 236*) — Offenses —Evidence.
    In a prosecution for unlawfully engaging in the business of selling intoxicants in prohibition territory, evidence held to support the conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.*]

      Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    M. C. Dawson was convicted of unlawfully engaging in the business of selling intoxicants in prohibition territory, and he appeals.
    Affirmed.
    Elliott & Larsen, of Paris, Tex., for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully engaging in and pursuing the business of selling intoxicating liquors in prohibition territory, and his punishment fixed at SYz years’ confinement in the penitentiary.

The evidence in this case was amply sufficient to show this state of facts: That appellant ran a cold drink stand and sold some merchandize and perhaps ran a wood-yard in connection with his business, in Paris, Lamar county, where prohibition was in force. The indictment charges that appellant from January, 1913, down to the filing of the indictment and prior to the filing of the indictment, which was on October 15, 1913, unlawfully pursued the occupation and was engaged in the business of selling intoxicating liquors; and alleged a considerable number of specific sales to have been made on certain dates within that time. One of the agents of the Wells Fargo Express Company produced his records of the entry of intoxicating liquors received by it at Paris and delivered to appellant as follows: One cask (120 pints) of beer on June 7, 1913. Three casks (360 pints) on June 30th. The agent of another express company at Paris produced his record and showed 'the following deliveries of liquors by him from said express company to appellant: On May 5, 1913, one cask (120 pints) of beer; May 15th, the same quantity; May 21st, the same quantity; May 29th, the same quantity; June 2d, the same quantity; June 9th, four quarts of liquor; June 28th, one cask (120 pints) of beer; July 15th, 48 pints of beer; August 6th, one cask (120 pints); August 16th, 48 pints of beer; August 22d, 120 pints of beer; September 13th, one cask (120 pints) of beer; September 29th, 4 quarts of whisky and 48 pints of beer; October 11th, 120 pints of beer. W. H. Oarey, to whom several of the sales were alleged to have been made, testified that on June 28, 1913, he bought two bottles of beer from appellant, about July 1st another two bottles of beer, and at another time on the same day another bottle of beer from the woman who was in charge of appellant’s business at the time he was absent, and later that night on the same day he and Andy Watkins bought two bottles of beer from appellant, and, still later, hé and said Watkins each bought another bottle. Said Watkins testified that on the early part of the night of July 1, 1913, he bought two bottles of beer from appellant, and later the same night he went back and bought two other bottles of beer from him. John How-erton, the chief of police of the city of Paris, and W. A. Lain, the sheriff, both, in effect, testified that just after the latter purchases by said two witnesses they got out a search warrant and searched appellant’s place of business; that they found bottles of beer in the back part of his house and some in his ice cooler, and a wagon load or more of empty beer bottles in his back yard. There was other corroborating evidence of appellant’s sales and that he had and kept beer and some whisky at his said place.

Appellant claimed that he got all this liquor, either for his own personal use, or for various persons for whom he ordered it, and denied that he made any of the sales, or that he kept whisky or beer for sale, during said time.

Appellant objected to the testimony by the express agents of the deliveries of beer and whisky to appellant as shown by their testimony. All of this evidence was clearly admissible. It has been long so held by this court in a uniform holding. It is unnecessary to cite the cases.

Appellant objected to the charge of the court in telling the jury what constituted an engaging in the business. The court gave just such charge as has many times been held sufficient on this question. It is needless to cite the cases again. The court charged: “(4) You are further instructed that to follow the occupation or engage in the business of selling intoxicating liquors means the party must be engaged in that business either as his principal business or in some way as a business proposition.” Appellant’s only objection is to that part of this charge “because it does not sufficiently describe or explain what would constitute an engaging in the business.”

The court’s charge was full, fair, and complete in accordance with the law. The evidence was clearly sufficient to sustain the verdict.

There is no error in the case, and the judgment is affirmed.