author: JACKSON, J.

text:
    ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. KERR.
    No. 3898.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.

      Dorenfield, Poster & Fullingiin, of Amarillo, for appellant.
    L. B. Godwin and Kimbrough & Boyce, all of Amarillo, for appellee.
   JACKSON, J.

The appellee instituted this suit in the district court of Potter county, Tex., to recover, of appellant compensation for injuries alleged to háve caused total and permanent loss of the use of his right hand while in the employment of Marsh Bros. & Gardiner, Inc., which carried indemnity insurance with appellant

The appellant pleaded general demurrer and general denial.

No question of jurisdiction or of sufficiency of the pleadings is presented.

Ini response to special issues submitted by the court, the jury found that the appellee sustained injuries while in the employment of Marsh Bros. & Gardiner, Inc., resulting in the total loss of the use of his right hand for a period of twenty-eight weeks, and that he suffered a partial permanent loss which impaired the use of his right hand 85 per cent.; that the average weekly Wage earned by ap-pellee at the time of his injury was $31.73.

In conformity to these findings, judgment was rendered for appellee against the ap-Iiellant, and the judgment is before us for review.

Appellant presents as error the action of the trial court in excluding, on the objection of appellee, that it would be an invasion of the province of the jury, the testimony of Drs. Howard Puckett, Don S. Marsalis, and W. R. Klingensmith, to the effect that in their opinion the appellee had lost but 25 per cent, of the use of his hand.

The testimony was conflicting as to whether the injury was total or partial, and, if partial, as to the percentage of the loss of the use of the hand. The record discloses that the arm was broken below the elbow; that the ulna bone had united at an angle of about fifteen degrees with an overlap of probably one-half an inch or an inch; that the wrist joint was out of line; that the ulna at the point of fracture had a callus; that there was a limitation of the motion of the fingers and the motion of the wrist joint and forearm; a difference in the temperature of the two hands; that the circulation of the blood in the right hand was abnormal, that the flection of the wrist was from 40 to 50 per cent, normal; and that appellee could not close his. right hand because of the involvement of the tendons of the wrist and hand, and there was some slight limitation in supernation and pro-nation of the arm. The testimony of the medical experts was sharply controverted as to whether the condition of the hand was improving.

It was admitted that Drs. Puckett, Mar-salis, and Klingensmith were practicing physicians and surgeons and duly qualified to testify. The record discloses that Dr. Puckett had treated appellee’s arm from the time of the original injury and until he was discharged from the hospital, which was a period of eight weeks; that thereafter Drs. Puckett, Marsalis, and Klingensmith had made a physical examination of the condition of the injured arm, had the same X-rayed, and made a fluoroscopic examination, all for the purpose of determining the extent of the injuries and their effect upon the use of his hand.

“The ■ opinions of physicians and surgeons may be admitted to show the physical condition of a person, the nature of a disease as temporary or permanent, or the effect of disease or of physical injuries upon the body or mind. * * * Such a witness, properly qualified, may testify as to the cause, symptoms, nature and peculiarities of a disease and whether it would be likely to cause death; regarding the probabilities of recovery from the effects of an injury or as to the probable future consequences of an injury, provided the consequences anticipated are such as in the ordinary course of events may reasonably be expected to happen and are not merely speculative or possible.” 3 Jones on Evidence (2d Ed.) 2457, § 1345.

“There are no subjects on which the opinions of experts are more commonly sought than those pertaining to health and disease, injury and death. The expert in such cases is a qualified physician and surgeon. Such a witness may not only give his diagnosis of the state of a person’s health, but he may likewise state his conclusion as to the cause of the injury or disease. Likewise when the effect of a wound, .bodily injury or disease is in question the expert may testify thereto. The witness may also make a prognosis of the physical condition, as well as a diagnosis, being permitted to state his opinion as to the probability of future aggravation or complication, and the likelihood of permanency.” 19 Tex. Jur. 56, § 37.

The opinions of medical experts, predicated on given reasons, are admissible to show the extent of a personal injury. G., C. & S. F. Ry. Co. v. Harriett, 80 Tex. 73, 15 S. W. 556; whether or not such injury is permanent or temporary, M., K. & T. Ry. Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511; C., R. I. & P. Ry. Co. v. Hiltibrand, 44 Tex. Civ. App. 614, 99 S. W. 707; King v. Insur-anee Association (Tex. Civ. App.) 8 S.W.(2d) 560; and whether or not the injuries incapacitate a party to wort. Texas Employers’ Ins. Association v. Shilling (Tex. Civ. App.) 259 S. W. 236; G., H. & H. R. Co. et al. v. Alberti, 47 Tex. Civ. App. 32, 103 S. W. 699. A rather extensive collection of authorities on the subject is found in note to Cross v. Syracuse, 21 Ann. Cas. 328.

“The proper test of the admissibility of the testimony of experts * * ⅜ is not whether- or not the opinion of the expert would prove the very fact to be found by the jury. The object of all testimony is to prove the very fact to be found by the jury, and it is not usurpation of the powers of a jury to prove that fact. * * * The rule as to expert testimony is that the subject of inquiry is one of science, skill, or trade, or questions of like kind, about which the expert, by his previous training, habits, or study, has more skill and knowledge than jurors of average intelligence may be presumed generally to possess.” International & Great Northern R. Co. v. Mills, 34 Tex. Civ. App. 127, 78 S. W. 11, 12, writ denied. See, also, Fidelity Union Casualty Co. v. Martin (Tex. Civ. App.) 45 S.W. (2d) 682; G., H. & S. A. Ry. Co. v. Stoy, 44 Tex. Civ. App. 448, 99 S. W. 135.

A physician whose qualification is admitted may express his opinion as to the ability of a lady suffering from a nervous condition to perform her household duties. Isaac Benesch & Sons, Inc. v. Ferkler, 153 Md. 680, 139 A. 557.

After a personal examination of the injury of a party’s leg and after studying the X-ray picture thereof, a physician may express his opinion that such injuries will impair the use of the leg to from' 20 per cent, to 30 per cent. Butler v. Armour Fertilizer Works, 195 N. C. 409, 142 S. E. 483.

“The testimony objected to was that of certain doctors, who were introduced as expert witnesses, and who were allowed to testify as to the percentage of plaintiff’s injury. One of the doctors, after testifying as to the nature of the injuries, stated that in his opinion plaintiff would have a total permanent disability of 50 per cent. A number of other physicians were introduced as expert witnesses as to the extent of the injuries. There was no reversible error in the admission of this evidence.” Standard Oil Co. of New Jersey v. Sewell (C. C. A.) 37 F.(2d) 230, and authorities cited."

It is apparently settled in Texas that an injured party, testifying in his own behalf, after describing his injuries, the nature, extent, and effect thereof upon his nervous and physical condition, may give his opinion as to the probable effect of such injuries upon his earning capacity. T. & P. Ry. Co. v. Rasmussen (Tex. Civ. App.) 181 S. W. 212 ; Weatherford, M. W. & N. W. Ry. Co. v. White, 55 Tex. Civ. App. 32, 118 S. W. 799; G., H. & S. A. Ry. Co. v. Holyfield (Tex. Civ. App.) 91 S. W. 353; Employers’ Liability Assurance Corp. v. Williams (Tex. Civ. App.) 293 S. W. 210. The reason for admitting this testimony is to assist the jury in reaching a correct conclusion as to the injuries and their effect.

It is conceded that the physicians whose testimony was excluded were qualified as experts and were in a position, from having treated appellee and having examined the condition of the broken member, to testify. The extent of the injury was sharply contested, and, the jury having found that the appellee had lost 85 per cent, of the use of his hand by reason of the injury sustained, in our opinion, this testimony was admissible, and the exclusion thereof constitutes reversible error.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    ALLRED et al. v. J. C. ENGELMAN, Inc.
    No. 8897.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 2, 1932.
    Rehearing Denied Nov. 30, 1932.
    James V. Allred, T. S. Christopher, and J. W. Wheeler, all of Austin, and Bryce Ferguson and D. C. Hogan, both of Edinburg, for appellants.
    Kennedy Smith, of Edinburg, for appellee.
   FLY, C. J.

This is a suit filed by appellee seeking to restrain appellants, James V. Allred, Attorney General of Texas, L. G. Phares, chief of the state highway patrol, and Bryce Ferguson, county attorney of Hidalgo county, from interfering with appellee in its use of its trucks on the public highways of the said county while engaged in hauling water to and distributing it upon a tract of land known as the Engelman Gardens; said land being the property of appellee and its vendees of portions of the land.

This is a second appeal of this case; the opinion on the first appeal being published in (Tex. Civ. App.) 40 S.W.(2d) 945. The appeal in that instance was prosecuted from an interlocutory order granting a temporary injunction, as prayed for.

The present appeal is from a judgment rendered by the court, upon an agreed statement of facts, in which the injunction was made permanent.

Appellee claims the right to use the highways in Hidalgo county without paying a license therefor, on the ground that it was authorized to do so by the provisions of article 6675a — 1 (q), Vernon’s Ann. Civ. St. The evidence showed that the corporation had owned a large tract of land. In article 6675a — 2, it is provided that every owner of a motor vehicle, trailer, or semitrailer, used or to be used upon the highways of the state, shall each year apply to the highway department, through the county tax collector of the county of his residence, for the registration of each such vehicle owned or controlled by him, or for a chauffeur’s license, but excepts from the provisions of the law owners of farm tractors, farm trailers, farm semitrailers, and implements of husbandry operated or moved temporarily upon the highway, provided that such vehicles are operated in conformity to all provisions of the law, except regulation as to registration and license, and it was also provided that the exemption shall not apply to farm trailers and semitrailers when used for hire.

No mention is made in the statute of the exception of farm trucks from the exemption from payment of license fee when used for hire. Trailers and semitrailers are fully defined, and are motorless vehicles that may be attached to a motorcar. They have no motor power, are not automotive. It is argued that this court should widen the provision of the statute so as to include the motive power of the trailers. This court, if it felt so disposed, has no authority to amend laws passed by the Legislature which may be deemed to be defective or ineffective. The law will be strictly confined to the use of trailers or semitrailers. The question of the trucks being used for hire is not raised by the evidence, and will not be deemed of importance. There were no trailers, and consequently the law did not have any reference to the case.

The law exempts from the payment of the license fees “farm tractors, farm trailers, farm semi-trailers and implements of husbandry operated or moved temporarily upon highways.” Farm implements are not tractors, trailers, or semitrailers, hut form a separate and distinct class that are regulated as to their movement on the highways. Those implements must necessarily he articles that can be moved, or can move themselves on the roads and highways. The implements referred to could be plows, hoes, spades, saws, axes, or other such implements, because we cannot imagine them running along the highways or for that matter being often hauled thereon. Implements of husbandry is a broad term, and must include every machine, tool, or -implement used to advance farming interests and prosperity. Those implements were intended by 'the Legislature to cover and include things not described as trailers, semitrailers, or tractors, and must necessarily be objects that could move along the highway. They would include wagons, trucks, and other automotive vehicles. If the vehicles mentioned were the only ones which a farmer could use on the roads, he would be precluded from the use of vehicles which would transport his cotton, his corn, his wood, his wheat, and his oats to market. We conclude that the exemptions in the law were enacted for the purpose of lifting the burdens of taxation from the farmers, who are usually home builders and taxpayers,' and of placing such burdens on those who pay little or no taxes and who use and wear out the roads and increase the taxation imposed on those who pay the taxes. The statute must be liberally construed to effectuate its purposes and designs. Without the right to use the highways in all ways necessary to the development of agriculture, the already handicapped, tax-burdened farmers would have heavier burdens. Implements and utensils of husbandry exempt to a farmer are not confined to the tools used by the farmer in any one branch of farming, but all his necessary tools used in diversified farming are exempt. In re Slade’s Estate, 122 Cal. 434, 55 P. 158. We think the rule enunciated by the California court is reasonable and correct.

The facts of this case indicate that water was absolutely essential for the preservation of the citrus trees planted on the land owned by appellee and its vendees, and, in the absence of reservoirs and pipes, or irrigating plants, the water could be placed on the trees only by hauling it to them in water tanks on trucks. We hold that the trucks in hauling the water to the citrus trees could well come within the meaning and intent of ‘‘implements of husbandry,” and consequently were not subject to the tax demanded. The exemption was intended for the protection of farms and farmers, and must not be so construed as to defeat and destroy the beneficent purposes for which it was created. The narrow construction sought to be placed upon the statute by appellants would rob it of all the aid and assistance intended to be extended to the farming community. It would hamper them in conveying their cotton to gins, and thence conveying the baled lint and seed to market, and in drouths would prevent the preservation of - trees and plants by hauling water to them. The farmer is extended no extra privilege by the exemption, but it is merely an extension to him of rights earned by his essential services to the state, and the payment of taxes to aid in constructing and maintaining the roads of the state. His use under the terms of the exemption would not be merely sporadic and uncertain, but would extend to and include all times necessary to protect and preserve the crops.

No valid reason has been advanced for a change of opinion from that given on the former appeal, and a second and full consideration of the statute confirms us in'the former decision. The law could have been rendered plainer, as could many of our laws, by the use of plain, simple language, instead of rather absurdly legislating about trailers, which cannot move themselves, rather than automobiles and trucks which furnish the motive power. The Legislature intended protection to the farmer, and we will construe the language to effect that purpose.

The judgment is affirmed.


author: MARTIN, J.

text:
    HUFSTEDLER v. HARRAL.
    No. 3900.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.

      Bledsoe, Crenshaw & Dupree, of Lubbock, for appellant.
    Bean & Klett, of Lubbock, for appellee.
   MARTIN, J.

On October 8, 1931, appellee Harral filed suit against one J. L. Hart, Jr., declaring upon a series of vendor’s lien notes and asking for a foreclosure of his lien upon certain land described in his petition. The appellant appears to have been the lessee of Hart under a contract providing for certain payments in cash each year for the use of the land. An application and affidavit for a writ of garnishment against appellant Hufstedler was filed by appellee and a writ of garnishment was issued and duly served. On November 3, 1931, a judgment by default was taken against Hart for the sum of $3,640, with a foreclosure of the lien- aforesaid. Thereafter said land was sold, the sheriff’s return reciting the sale of the land to appellee on his bid of $100. February 17, 1932, judgment by default was taken against appellant as garnishee for $1,000 and costs. On February 22, 1932, appellant filed his original motion to set aside the judgment and for new trial, and on March 31, 1932, he filed an amended motion for a new trial which, for the purposes of this opinion, will be regarded as having" stated a meritorious defense which, if true, would have defeated a judgment herein against him.

The motion was overruled, from which order this appeal was taken.

The particular objection urged below and brought forward on this appeal was that the district court was without jurisdiction to render a judgment by default against appellant because the writ of garnishment was issued on the 2d day of October, 1931, one day before the application for garnishment was filed and the bond approved by the clerk.

The writ of garnishment on its face bears the following attestation: “Given under my hand and seal of said Court at office in Lubbock, Texas, this the 26th day of September, 1931. Chas. B. Metcalfe, Clerk, 99th District Court, Lubbock County, Texas.” And is indorsed on the back: “Issued the 2nd day of October, 1931.”

The application for writ of garnishment appears to have been sworn to on the 2d day of October, 1931. The bond bears the same date and is marked: “Approved this 3rd day of October, 1931.”

Thus, it appears that if the dates appearing on the respective instruments are to be given conclusive effect, the writ of garnishment appears to have been issued before a bond was finally approved.

In explanation of these discrepancies, the attorney for appellee, on the hearing above mentioned, testified, over objection, that all papers were prepared in his office on the. 26th day of September and dated as of that date; that several days elapsed before same were signed up and taken to the clerk’s office; and that by inadvertence the clerk and himself failed to strike out the old date and that as a matter of fact all papers were filed in the garnishment proceedings on the 2d day of October, and that the writ of garnishment was not actually issued until after the application for same had been deposited in the clerk’s office and the bond actually approved and filed.

What we regard as the controlling question on this appeal is stated by appellant in his brief in the following language: “The statute specifically requiring that the writ of garnishment shall not issue until the application and bond are filed and that the writ of garnishment shall be dated and attested as other writs, it was error for the Court, in the absence of allegations of fraud, accident or mistake, to admit parol testimony to impeach and contradict the dates as shown upon said writ.”

Article 4078, R. S. 1925, provides, in substance and effect, that before a writ of garnishment can issue, plaintiff shall make application therefor, signed by him, stating the facts authorizing the issuance of the writ, etc.

Article 4082 provides that such writ shall be dated and attested as other writs and may be delivered to the sheriff or constable by the officer who issued it or he may deliver it to the plaintiff or his agent for that purpose.

The real question presented is whether or not parol testimony is admissible to show when a writ of garnishment was, in fact, issued, in contradiction of the date shown on the instrument as made by the clerk.

The solution of this question turns upon the legal meaning of the term “issued,” ⅛ our opinion. The word “issued” when used as a verb, as in this case, has a fixed judicial meaning. Application has been given of its meaning in many cases, some of which we quote:

“A writ of attachment is not ‘issued' until placed in the hands of the officer for execution.” McMaster v. Ruby, 80 Or. 476, 157 P. 782;
“The preparation by an attorney of a writ •of error in his office, including the date, does not constitute the ‘issuing’ of the writ; so that though the writ is dated prior to the date of verdict, it is not necessarily issued before the verdict.” State v. Brown, 103 N. J. Law, 519, 138 A. 370;
“A process is not ‘issued’ until it is sent forth from the clerk’s office under his sanction and authority and given to an officer, or to some one else to give to an officer, for the purpose of being served.” Ferguson v. Estes & Alexander (Tex. Civ. App.) 214 S. W. 465;
“The term ‘issue’ means more than the mere clerical preparation and attestation of. the writ, and requires that it should be delivered to an officer for enforcement.” Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 873, 875.

See, also, Stokes v. Paschall (Tex. Civ. App.) 243 S. W. 611, 614; Schneider v. Dorsey, 96 Tex. 544, 74 S. W. 526; 22 C. J. 1081, § 1408.

Under the well-settled meaning of that term, the writ of garnishment in this case was not “issued” until actually or constructively placed in the hands of an officer for execution. Such a fact necessarily rested in and was provable by parol testimony. There is no provision of the statute for the attestation of the date of delivery to an officer by the clerk. It will be presumed that the Legislature made use of the word “issuance” in article 4078 in the sense of its settled judicial interpretation. Upon this assumption the conclusion seems inescapable that parol testimony is admissible to show the true date of “issuance.” We are therefore of the opinion that whatever may be the rule in a collateral attack upon a judgment, in a direct one of the character above noted, the date on a writ of garnishment is not conclusively correct, though it may be presumptively so.

The judgment is affirmed.

On Motion for Rehearing.

It is earnestly insisted by appellant that since the writ of garnishment in this ease bore an incorrect date, it was equivalent to no date and would be ruled by the case of Security State Bank & Trust Co. v. Higginbotham Bros. & Co. (Tex. Civ. App.) 250 S. W. 790, and by the provision of article 4082, R. S., which. requires that such writ shall be dated.

A somewhat analogous question arose in the construction of the article of the statute requiring a ballot to 'be numbered. Judge Brown of the Supreme Court, in the case of Gray v. State, 92 Tex. 396, 49 S. W. 217, held, in effect, that a ballot was not rendered illegal by virtue alone of the fact that it was incorrectly numbered, where the means of identification of the voter was available. It is held otherwise where the ballot bears no number. Johnston v. Peters (Tex. Civ. App.) 260 S. W. 911; State v. Connor, 86 Tex. 133, 23 S. W. 1103.

Stated otherwise, the letter of the law is complied with when a number is placed on the ballot, though the same be an incorrect one. So here, the letter of the law has been complied with by giving the writ a date, and it will be noticed that the statute does not require the application and bond in garnishment to be made and filed prior to the “date” of a writ, but uses instead the word “issuance,” the meaning of which is discussed in the original opinion.

It is further suggested that a wrong date might mislead to his injury the adverse party. The law. would doubtless grant relief in such case upon an appropriate showing. That question is not before us in this case.

The motion for rehearing is overruled.


author: McClendon, c. j.

text:
    PATE v. SECURITY UNION INS. CO.
    No. 7813.
    Court of Civil Appeals of Texas. Austin.
    Nov. 9, 1932.

      Howth, Adams & Hart and Elton Cruse, all of Beaumont, for appellant.
    King, Wood & Morrow, of Houston, for ap-pellee.
   McClendon, c. j.

This appeal involves the sole question whether the unmatured installments of a judgment rendered against an insurance carrier in an appeal from an award of the Industrial Accident Board are provable claims against the estate of such insurance carrier sn administration under receivership.

The controlling facts, which are undisputed, follow:

Pate recovered judgment against the insurance carrier, upon a special issue verdict trial, for compensation for 189 weeks total disability at $13.85 per week. The total period was 208 weeks, but 19 installments had theretofore been paid, and of the remaining installments 119 had not then matured. The judgment contained this recital: “In connection with the above judgment for the said one hundred nineteen (119) weekly installments which have not as yet accrued, it is decreed that same are conditioned upon the continued total disability of said W. A. Pate, in that same shall only be payable so long as such disability shall exist; and in this connection the trial court will hold this case on its docket for the purpose of administering the same in accordance with the findings of the jury and in accordance with the Workmen’s Compensation Law, with authority to reopen this case upon the petition of the defendant upon a showing by the defendant that the disability of said W. A. Pate has diminished since the trial of this cause by said jury.”

Thereafter, at the instance of the state, the assets of the insurance carrier were placed in receivership; in which proceeding Pate filed claim for all of the 189 installments, 79 of which were still unmatured, The'-.trial couj't rendered judgment for(’$l,523.50, the’ amount of the matured installments, but denied recovery for those then unmatured, aggregating $1,094.15. Erom this judgment in so far as it denies recovery upon the unma-tured installments, Pate has appealed.

The action of the court complained of was “for the reason ⅜ * * that * * ⅜ on account of the provisions contained in the judgment ⅜ ⅜ ⅜ was so contingent, indefinite and uncertain as to the continuing liability (disability) of the claimant, W. A. Pate, that he was not entitled to be allowed anything for disability in the future.” The correctness of this holding is assailed by. appellant.

There is nothing in the Employers’ Liability Act (Rev. St. 1925, art. 8306 et seq., as amended) . which expressly authorizes the above recital in the judgment establishing the award; but in United States F. & G. Co. v. Davis (Tex. Giv. App.) 212 S. W. 239, the Fort Worth Court held that by analogy the court had the same power given the Industrial Accident Board in section 12d of the act (R. S. art. 8306, § 12d). This holding was followed by the Beaumont Court in United States F. & G. Co. v. Parker (Tex. Civ. App.) 217 S. W. 195; Western Indemnity Co. v. Corder (Tex. Civ. App.) 249 S. W. 316, and Texas Employers’ Ins. Ass’n v. Mullican (Tex. Civ. App.) 261 S. W. 215, in none of which was writ of error applied for; and by the Galveston Court in Petroleum Casualty Co. v. Seale (Tex. Civ. App.) 4 S.W.(2d) 90, which was reversed upon other grounds (Com. App.) 13 S. W.(2d) 364, the point here at issue not being alluded to in the opinion of the Commission of Appeals.

In Federal Surety Co. v. Cook, 119 Tex. 89, 24 S.W.(2d) 394, 396 (an adopted opinion by the Commission of Appeals), it was held that: “This statute [article 8306, § 12d] does not purport to deal with the subject of' revisory authority of the .court over the judgment entered in a suit brought to set aside a decision of the Industrial Accident Board. Nor do the provisions of section 5 of article 8307, which provide that such a suit shall be tried de novo, and that the rights and liability of the parties to the suit ‘shall be determined by the provisions of this law,’ purport to invest the court with the same authority ■ over the judgment in the suit that is conferred by the first-mentioned statute, on the Industrial Accident Board, in respect to decisions of the Board. We have no doubt that it was'intended that the power of the court over its judgments in such cases should be the same, and subject to the same limitations, as in other cases.”

The .judgment involved in that case contained this recital: “It is further ordered, adjudged and decreed by the court that the court will have continuing jurisdiction of this case, land .that upon the application of the defendant herein, showing a change of condition, mistake or fraud, the court at any time within the compensation period may review this judgment, ending, diminishing or. increasing compensation awarded herein, within the maximum and minimum provided by the Workmen’s Compensation Act of the State of Texas, or may change or revoke this order ■and judgment; it is further ordered, adjudged and decreed by this court that this judgment grants to both plaintiff and defendant the privileges and rights conferred by Article 8306, Section 12d, of Vernon’s Annotated Civil Statutes, 1925.”

Later the plaintiff sought to reopen the judgment on the ground of mistake and to recover additional compensation. The opinion of the Commission was in an original mandamus proceeding to compel the district judge to give to the judgment “the force and effect of a final judgment, and to proceed no further, in said cause so long as said judgment remains unreVersed.” The mandamus was awarded as prayed for, the court holding that “the trial court has lost all power to grant a new trial or to revise or modify such judgment,” and that it could only be set aside or modified by an original proceeding in equity “on grounds which are cognizable in a court of equity jurisdiction.”

Appellee contends that this decision is not controlling in the instant case, because the recital in the judgment at bar by express language makes the unmatured installments “conditioned upon the continued total disability of said W, A. Pate,” which distinguishes it from the judgment in the Cook Case. The' remaining portion of the above-quoted recital in the instant judgment clearly shows that the court intended to give to the judgment only the effect of the recital in the judgment in the Cook Case; in that it is expressly provided that modification of the judgment can only be had upon petition showing a subsequent change in Pate’s physical condition.

But aside from this it is the clear holding of the Cook Case that the trial court had no power to attach such a condition to the judgment. The quoted recital should therefore be disregarded as surplusage.

Appellee further questions the authority of the Cook Case because the Supreme Court refused a writ of error in a subsequent case in this court, Maryland Casualty Co. v. Haley, 29 S.W.(2d) 458, 461, in which.the earlier decisions of the courts of civil appeals above cited were followed. In the Haley Case we declined, at the instance of the insurance carrier, to modify the trial court’s judgment so as to incorporate therein the recital of the Cook Case judgment, upon the holding of the Seaie Case, above, that “the court would have such authority anyway.” That opinion was handed down only a short time after that of the Cook Case, to which our attention was not then directed. But the refusal of the writ in the Haley Case was proper under the Cook Case holding, since we had declined to modify the judgment in the respect contended for, and only expressed our view as to the effect of the judgment independent ■ of :the sought recital., The Cook Case holding was later followed in Union Indemnity Co. v. Drake (Tex. Civ. App.) 42 S.W.(2d) 839 (error refused).

As above noted, the opinion in the Cook Case was adopted by the Supreme Court and is therefore regarded by that court as authority — an effect it does not’- give to opinions of the' Commission where only the recommended judgment is adopted or the hold? ing approved.

Other than as to the earnings during the receivership (see Kampmann v. Sullivan, 26 Tex. Civ. App. 308, 63 S. W. 173, error re? fused, construing R. S. art. 2299), our statute^ contain no provisions regarding claims which are provable in receiverships; but they provide generally that the rules of equity shall govern such proceedings (article 2319), Iff a well-considered opinion by the Circuit Court of Appeals for the Second Circuit (Pennsylvania Steel Co. v. New York City Ry. Co., 198 P. 721, 739), the equity principles de=-terminative of the provability- of claim in.a receivership are clearly stated. It is there held that there is no distinction between matured and unmatured claims provided the latter are certain and their present worth may be determined by “recognized methods of com? putation.” It is only claims “which are so uncertain that their worth cannot be so ascertained” that are denied participation in the impounded funds.

Tested by these rules, the unmatured installments are clearly provable claims in the receivership, since their value at the time the receiver was appointed may be readily ascertained by recognized methods of computation. ■ . . :

The trial court’s judgment, in so far as-, appealed from, is reversed, and the cause in that regard is remanded to the trial court to ascertain the provable value of the unmatured installments (see Vernon’s Ann. Civ. St. art. 8306a) and to render judgment accordingly.

Reversed and remanded, with instructions.


author: BAUGH, J.

text:
    METROPOLITAN CASUALTY INS. CO. v. FIRST STATE BANK OF TEMPLE.
    No. 7787.
    Court of Civil Appeals of Texas. Austin.
    Nov. 2, 1932.
    Rehearing Denied Nov. 30, 1932.
    Collins & Houston, of Dallas, and Cox & Brown, of Temple, for appellant.
    Winbourn Pearce, Walker Saulsbury, and Sam D. Snodgrass, all of Temple, for appellee First State Bank.
    Maurice Cheek, Asst. Atty. Gen., and Walker Saulsbury, of Temple, for James Shaw, State Banking Commissioner.
   BAUGH, J.

Appellee bank was insured by appellant company during the year 1928 against loss through dishonesty on the part of any employee of the bank. The term “dishonesty” was defined in the policy to include “wrongful abstraction, misapplication or misappropriation, and/or any other dishonest, fraudulent or criminal act,” etc. The term “employee” embraced all officers and employees, except inactive vice presidents and directors other than officers. This suit was brought by the bank upon said policy, appellee alleging, in so far as this appeal is concerned, that on or 'about February 14, 1928, the president, vice president, and cashier, active officers of said bank, either conspiring among themselves, or in collusion with other members of the board! of directors, had purported to declare or had illegally declared a dividend of $30,000, 10 per cent, of which was passed to the surplus, and the other $27,000 used to pay their individual debts; that such transactions were illegal, impaired the capital stock of the bank, and constituted a misapplication, misappropriation, and wrongful abstraction of the bank’s funds within the terms of the policy. Judgment was recovered against appellant for $22,000; hence this appeal.

The case arose under substantially the following facts and circumstances:

The First State Bank of Temple, Tex., became insolvent and was liquidated by the state banking commissioner on December 17, 1927, and a 100 per cent, stock assessment levied against the stockholders. It was reorganized at that time under the name of First State Bank, appellee here, with a capital stock of $50,000, and to the new corporation was transferred all of the assets of the old bank, including the assessments against the stockholders of the old bank. In the newly organized bank, E. W. Moore and Wm. Maresh each owned $15,000 of the capital stock; A. J. Jar-rell and W. F. Blum, Jr., owned $5,000 each; and G. G. Garson, W. W. Jennings, H. F. Blum, and T. H. Heard, $2,500 each. All of the above named, except W. F. Blum, Jr., and Jennings, were stockholders in the old bank against whom assessments had been made, and all of them except W. F. Blum, Jr., were directors in the new bank. The trial court found in his judgment as follows: “At about the time plaintiff bank was organized, the said E. W. Moore, Wm. Maresh, G. O. Garson, A. J. Jarrell, T. H. Heard and H. F. Blum agreed among and between themselves that if they should be required to pay their respective stock assessments to plaintiff bank, they would, through the guise of a dividend, re-pay to themselves all they were required to so pay into plaintiff bank, in satisfaction of said stock assessment claim; that on, to-wit February 14th, 1928, said parties did pay to plaintiff bank the aggregate sum of $22,-000.00, in cash, in full satisfaction of its said claim against them as stockholders of the old bank, and that a short time thereafter, and on, to-wit February 21st, 1928, pursuant to the plan and scheme theretofore agreed to, said parties, through the guise of a dividend that they themselves, as plaintiff’s Board of Directors, pretended to declare and have spread upon the Minutes of plaintiff’s books, did take from the possession of plaintiff bank $22,000.00, in cash, of its funds, and did appropriate the same to their own use and benefit; and of said sum E. W. Moore received $9,800.00, Wm. Maresh received $6,700.00, A. J. Jarrell received $1,200.00, C. C. Carson received $1,700.00, T. H. Heard received $1,-600.00 and H. F. Blum received $1,000.00.”

The trial court! thereupon held that appellant insurance company was liable under its policy as a matter of law, and rendered judgment against it for the sum named with 6 per cent, interest thereon from February 21, 1928. Other facts and pleadings will be outlined in discussion of the issues raised.

The first contention made by appellant in its first two propositions is that under the undisputed evidence there was no wrongful abstraction, misappropriation, or misapplication, or any other dishonest, fraudulent, or criminal act done within the terms of said policy, for the reason that the officers and directors charged with the management of the bank had acted openly, without concealment, at a regular meeting of the board of directors, had spread upon the minutes a record of their acts and proceedings, that the bank had not been injured, and that the misappropriation, if it was such, was the act of the directors and therefore of the bank itself, and not of the employees covered by the policy.

The trial court obviously reached the conclusion that the action of the directors in declaring the alleged dividend was void, and that the payment of the funds involved to the stockholders and directors named was just as much a misappropriation of the hank’s funds by the three officers and employees who made such payments as if they had done so of their own accord and without any authority from the board of directors. With this we cannot agree. It may be admitted that the dividend was not authorized by law, and that it was agreed to in advance by the directors concerned as found by the court. The control of the bank was in the hands of the directors. They occupied positions of trust in that capacity, and were .personally accountable to creditors, to stockholders, and to the state banking commissioner for any mismanagement of the bank by them. But declaring dividends, passing upon loans, employing and directing the activities of their employees, are matters vested in them by law and the charter of the bank. In these respects the bank could act legally only through its board. Whatever may have been their previous agreement as to the unauthorized dividend, their reasons for it, and the purposes of it, whenever the corporation’s board of directors met in their official capacity as directors and among other things adopted a resolution declaring a dividend, which was spread upon the minutes, subsequently read at a regular meeting, approved and signed by the directors, and made a part of the official records of the corporation open to inspection, it became the official act of the corporation itself; and, even if admittedly illegal or unauthorized by-law, it thus became the illegal act of the corporation, of which it cannot complain. Of course, any creditor, the state banking commissioner, any interested stockholder, or any director who did not agree to it could have complained, or could have held the directors responsible for such mismanagement of the bank’s affairs; but none of these have done so.

The trial court found that Jennings was not present at the meetings of the directors when these matters transpired. Jennings so testified, but upon cross-examination stated that he did not remember to have been present. It was undisputed, however, that his name was signed in the midst of the directors’ signatures to the minutes. He did not deny such signature, and the secretary of the board identified the signature as that of Jennings himself. Regardless of that, however, as a director of the bank it was his duty to know how the bank was conducted, and he was charged with what the minutes of the corporation, open to his inspection, showed; i. e., that the dividend had been declared. Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592. At no time did he ever complain of such dividend nor make any protest in the matter. The result as to him was therefore the same as if he had been present and approved the action of the board in declaring the dividend.

However unauthorized, illegal, or ill-advised the matter of declaring such a large dividend so soon, after the bank was reorganized may have been, we think it was clearly a case of mismanagement of the bank, or a handling of the bank’s affairs in an illegal manner by its board of directors in their capacity as such, a matter not insured against by appellant’s policy, and not a defalcation, misappropriation, or misapplication of the bank’s funds by employees of the bank acting as such.

Appellee contends, however, that because the dividend was declared for, and applied to, the payment of the directors’ several individual debts to the bank, and that it was not distributed ratably to the stockholders in proportion to the amount of stock owned by each, it was for these reasons void in toto, and that, when the three officers and employees who initiated the matter paid out the funds involved it amounted to a clear misappropriation by. them of the funds of the bank. If the board of directors acting in their official capacity had undertaken, as the act of the bank, to distribute such dividend otherwise than in proportion to the stock owned by each, such áct would of course have been void. But the official act of the board in this instance as contained in the minutes of the board has no such import. It purports to be regular in that respect. If the dividend had been legal otherwise, and after it was declared and set apart as a dividend, its unequal distribution among tire stockholders by employees of the bank would not have been a misapplication of the bank’s funds, but of a trust fund'then belonging to the stockholders, of which they could hdVO complained and could have had recourse against the guilty parties. Even though the three employees of the bank, themselves stockholders and directors, may have been instrumental in inducing the board of directors to declare an unauthorized dividend, when the board, which included four other stockholders, passed the resolution sitting as a board, the act then became that of the board and not of the employees of the bank. And in paying out the illegal dividend, they only carried out as employees of the bank the of-icial, though illegal, action of the board. It was the board, therefore, we think, and not the employees who were guilty of the misappropriation of the funds in question. A case analogous in principle was presented in Citizens, etc., Bank v. National Surety Co. (Tex. Civ. App.) 242 S. W. 488, affirmed by Supreme Court in 258 S. W. 468.

Appellee further urges that, because the ihterests of the directors who .participated in the transaction were adverse to that of the bank, they were disqualified to act and that their acts were therefore void, citing numerous authorities holding that in any contract between a director and a corporation, or transaction with it in which his interest is adverse to' that of the corporation, he is disqualified. This is a general well-settled rule. Tenieon v. Patton, 95 Tex. 284, 67 S. W. 92; Seale v. Baker, supra; McLendon Hdw. Co. v. Black (Tex. Civ. App.) 264 S. W. 1011; 6 Tex. Jur. 190; 198; 14A C. J. 118.

But such rule does not apply to a declaration of a dividend. That is not a contract with the corporation. ’ If that were true, a board of directors could never declare a dividend because of necessity all are interested in and benefited by it. In the instant case, six of the seven directors who owed stock assessments borrowed the money elsewhere and paid it into appellee bank. When that was done their debt to that bank was discharged, regardless of their purposes and intentions with reference to recovering it back. Had the dividend complained of been set aside at the instance of other stockholders, a nonassenting director, a creditor, or the banking commissioner, their debt to the bank would have still been discharged, and they could not have recovered back the amounts paid in. Consequently no agreement between them could affect the validity of that payment, and the subsequent declaration of the dividend and its distribution among them must, so far as appellant is concerned, be treated as if their indebtedness to the bank had been in good faith fully discharged.

Under these- facts and circumstances, we think this case, conceding that the dividend was unauthorized and that it was subsequently improperly distributed, presents one of official acts of the board of directors, charged with the management of the bank’s affairs, in which the employees of the bank only carried out the action of the board, and were not themselves, as employees, guilty of misapplication of the bank’s funds. The policy sued upon did not indemnify the bank against the mismanagement of its board of directors, which was the condition disclosed, we think, by the record in this case. What influences or what individuals induced such improper action, is, we think, immaterial so far as appellant’s liability is concerned. The policy only purported to indemnify the bank against the dishonesty of its employees, acting in their capacity as employees, and not against acts on their part in carrying out the instructions of the board of directors arrived at in a regular meeting, however improvident or unauthorized that action of the board might be. When taken by the board in its official capacity as such, the action then becomes that of the bank, and without the terms of the policy.

For the reasons stated, the judgment of the trial court must be reversed, and judgment' here rendered for appellant.

Reversed and rendered.


author: LATTÍMORE, J.

text:
    SUMMERS v. STATE.
    No. 15196.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Ernest Becker, Z. E. Coombes, and Baskett & De Lee, all of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty.,1 of Austin, for the State.
   LATTÍMORE, J.

Conviction for theft by bailee; punishment, two years in the penitentiary.

Appellant took possession of a ear in January, 1931, under a contract with the owner that he would sell it, and have for his trouble all over $200 obtained by such sale. No bill of sale was ever made by the owner, who expected to make one if and when the car was sold. It is in testimony that the records in Dallas county showed that in February, 1931, appellant sold and transferred said car to one Davis, for what consideration does not appear, but the proof shows the car to be worth considerably more than $50. A brother of the owner conducted the negotiations with appellant, and often saw him between January, 1931, and June of said year, trying to find out what had been done by appellant with said car. On each such occasion appellant said he had not sold the car. When demand was made on him in June for the car, appellant said he had that day let a prospective purchaser have it to try it out, but could not locate such prospect when, upon demand' of the owner, search was made for him. This search and demand occurred on Saturday. On that day appellant let the owner have a car claimed by appellant as his own, to hold until he had accounted for the ear of said owner. On Monday the car which appellant had let the owner have was taken from said owner by an officer. On Tuesday the owner came to Dallas, examined the records, and discovered that his car had been sold. On Wednesday he demanded an explanation of appellant, who, according to this witness, hung his head and had little to say — said he would try to pay for the car. He admitted then he had disposed of the car. He never accounted for it or its value.

Appellant did not testify. The only witness introduced for the defense testified that in February, 1931, he loaned appellant $70 on a four door Whippet Sedan. No testimony identified this car with that alleged to be stolen.

The charge was theft by bailee. On the trial, the court told the jury that, if they found from the testimony beyond a reasonable doubt that appellant had in his possession said car under the bailment alleged, and that he fraudulently converted same to his own use, without the consent of the owner, and with intent to deprive said owner of the value of same, he should be found guilty. The court also told them that, even though they believed appellant had disposed of said car, they could not convict him, unless they believed from the evidence, beyond a reasonable doubt, that he disposed of same with the intention of depriving the owner of the value thereof, and of appropriating same to his own use and benefit. There were no exceptions to the court’s charge, and no complaint by any bill of exception of any procedure on the trial. The only question here is the sufficiency of the testimony to sustain the verdict. Appellant being the unquestioned bailee of said car, and there being ample evidence to support the proposition that he disposed of same soon after he acquired it, and that he told many falsehoods about having disposed of it, and the evidence seeming to overwhelmingly show that he had appropriated said car to his own use and benefit, there seems little question of the sufficiency of the testimony. Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313; Allen v. State, 94 Tex. Cr. R. 646, 252 S. W. 505.

The case of Moore v. State, 88 Tex. Cr. R. 154, 225 S. W. 261, is easily differentiated. There the charge was the conversion of certain moneys alleged to be the proceeds of a sale of goods intrusted to the accused. Judge Morrow says in the opinion that there was no satisfactory proof that appellant ever sold the goods or any part of them, or converted same into money, or any particular sum of money, and that, the indictment having charged the accused with having converted money — it was essential that this allegation be sustained by the proof — the absence of which made necessary the reversal of the case. The further observation in the opinion would be but dicta. Nor do we find anything in Cox v. State, 81 Tex. Cr. R. 115, 193 S. W. 1064, holding contrary to our conclusion that the testimony in this case justifies the jury’s verdict of guilty.

Finding no error in the record, the judgment will be affirmed.


author: HAWKINS, J.

text:
    MORTON v. STATE.
    No. 15380.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Fred Erisman, of Longview,, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment assessed at five years in the penitentiary.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: MORROW, P. J.

text:
    MORENO v. STATE.
    No. 15389.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    T. H. Miller, of George West, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

It was shown that Guadalupe Garza testified that she purchased from the appellant a bottle of whisky for which she paid him 50 cents, and that upon another occasion she purchased from him a bottle for. which she paid him 40 cents.

As shown by bill of exception No. 1, the reception of this evidence was opposed upon the assumption that the evidence mentioned showed a different offense from that with which the appellant was charged. It is quite true that the possession of intoxicating liquor is one offense and the sale- of it is another offense. However, in a prosecution for the possession 'of intoxicating liquor for the purpose of sale, evidence of the sale of such liquor is relevant. The contention of the appellant cannot be sustained. See Hood v. State, 111 Tex. Cr. R. 95, 10 S.W.(2d) 94; Overley v. State, 104 Tex. Cr. R. 386, 283 S. W. 796; May v. State, 97 Tex. Cr. R. 284, 260 S. W. 873; Sipanek v. State, 100 Tex. Cr. R. 489, 272 S. W. 141.

From bill of exception No. 2, as qualified by the judge presiding at the trial, it is understood that Marcos Moreno requested Maria Robles to see Guadalupe Garza and request her not to say that he had sold her liquor because he had not done so, and that Maria Robles, after talking to her, told the appellant that Guadalupe Garza said that she had already reported to the sheriff that the appellant had sold liquor to her, and that she was going to tell it. Apparently the message sent to Guadalupe Garza by Maria Robles and her report of the reply were transactions which the appellant instigated and which are not denied, and of which it is thought under the facts before this court that the appellant is not in a position to complain.

From bill of exception No. 3, it appears that Guadalupe Garza testified that she bought whisky from the appellant upon two occasions, at one time buying a bottle for which she paid him 50 cents and at another time buying one for which, she paid him 40 cents.

The law seems well settled to the effect that, in a prosecution for the possession of intoxicating. liquor for the purpose of sale, proof .of sales of whisky made by the accused not too remote from the time of the offense on trial, may be properly received as bearing upon the intent with which the liquor is possessed. On the subject, the authorities cited above are in point.

Perceiving no error in the record justifying a reversal, the judgment is affirmed.


author: CHRISTIAN, J. MORROAY, P. J.

text:
    Ex parte SPANN.
    No. 14974.
    Court of Criminal Appeals of Texas.
    June 22, 1932.
    Rehearing Denied Oct. 12, 1932.
    Second Rehearing Denied Dec. 7, 1932.
    Jno. T. Spann, of Crystal City, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant was convicted in the' justice court on a complaint charging him with having in his possession during the closed season one quail, which is described as a game bird. The punishment was assessed at a fine of $10, and, failing to pay the fine, appellant was placed in the custody of the sheriff. Thereafter he made application to the county judge for a writ of habeas corpus, alleging that there was no statute prohibiting the possession of game birds during the closed season. The writ was issued, and upon a hearing appellant was remanded to custody. Hence this appeal.

Article 923, Penal Code 1925, reads as follows: “No person shall kill or take any of the birds or fowls enumerated in Article 872 except during the open season as fixed for each kind of bird or fowl, and if any person shall kill, take or have in his possession, any of the birds or fowls enumerated in Article 872 at any time of the year except during the open season as provided for in this chapter, he shall be fined not less than ten nor more than one hundred dollars,”

Article 872 defines game birds; wild quail of all varieties being embraced in the definition.

Article 923, Penal Code, as it appears in the Revised Criminal Statutes of 1925, was section 9 of chapter 157 of the General Laws passed at the regular session of the Thirty-Sixth Legislature. By the provisions of chapter 172 of the General Laws passed at the regular session of the Thirty-Ninth Legislature, which convened January 13, 1925, and adjourned March 19, 1925, chapter 157, supra, was expressly repealed (section 47). During the same session of the Thirty-Ninth Legislature adoption was had of the Revised Criminal Statutes of 1925, in which is embraced article 923, under which appellant was convicted. It was provided in chapter 172, supra, as follows: “This bill shall be known as the ‘Boyd-Hubby Game Bill’ and shall take effect and be in force from and after September 1, 1925.” Section 50.

In adopting the Revised Criminal Statutes of 1925, it was provided: “This Act shall take effect and be in force from and after twelve o’clock, Meridian, of the First day of September, Anno Domini, One Thousand Nine Hundred and Twenty-five.” See Vernon’s Ann. P. O., vol. 3, p. 369.

Thus it appears that the Revised Criminal Statutes of 1925 and chapter 172 took effect at the same time.

We are unable to agree with appellant’s contention that article 923, under which he was convicted, was repealed by virtue of the fact that chapter 172, supra, expressly repealed chapter 157, from which article 923 was taken. Section 43 of article 3 of the Constitution of Texas reads as follows: “The first session of the legislature under this constitution shall provide for revising, digesting and publishing the laws, civil and criminal; and a like revision, digest and publication may be made every ten years thereafter; provided, that in the adoption of and giving effect to any such digest or revision, the legislature shall not be limited by sections 35 and 36 of this article.”

Section 36 provides that no law shall be revived or amended by reference to its title, but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length. Section 35 provides that no bill shall contain more than one subject, which shall be expressed in its title, and makes void so much of the act as is not expressed in the title. The Supreme Court of this state, in the ease of American Indemnity Company v. City of Austin, 112 Tex. 239, 246 S. W. 1019, 1023, in construing section 43 of article 3 of the Constitution, used language as follows: “Section 43 having given the Legislature authority to revise the laws, without, within itself or by any other section of the Constitution, having prescribed the method of revision, or without having limited the legislative power, except in so far as this power is limited in the enactment of any other law, the Legislature has plenary authority to revise, and may do so in its own way and to any extent, provided, always, the substance of the proposed revision is not otherwise prohibited by the Constitution. It may do so by omitting laws from the Code, which, when done, under the repealing clause, are repealed. It may do so by changing words or phrases' for the purpose of harmony or brevity, without in fact changing the meaning, or it may do so by the incorporation of new and material matter in the revision. The term ‘revise’ is broad enough to permit the amendment of existing laws or statutes in' these several ways. New Century Dictionary; Webster’s New International Dictionary; American Nat. Ins. Co. v. Collins (Tex. Civ. App.) 149 S. W. 554, 556; State v. Towery, 143 Ala. 48, 39 So. 309; Jeffries v. Board of Trustees, 135 Ky. 488, 122 S. W. 813, 816; Falconer v. Robinson, 46 Ala. 340, 348; Cortesy v. Territory, 7 N. M. 89, 32 P. 504, 505; Sutherland’s Statutory Construction (2d Ed.) § 269; Pratt Institute v. New York, 183 N. Y. 151, 75 N. E. 1110, 5 Ann. Cas. 198, 199.”

AYe quote from Sutherland’s Statutory Construction (2d Ed.) § 238, as follows: “Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time.”

The judgment remanding appellant is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROAY, P. J.

AYe have re-examined the record in the light of the appellant’s motion for rehearing, and entertain the opinion that the proper disposition of the appeal was made upon the original hearing.

The motion is overruled.

On Application to File Second Motion for Rehearing. •

It appears that we were in error in stating in the original opinion that chapter 172, General Laws, Regular Session of the 39th Legislature, and the Revised Criminal Statutes of 1925, took effect at the same time. It is observed that it was provided in chapter 172 that its provisions should become effective from and after September 1,1925, whereas, in adopting the Revised Criminal Statutes of 1925, the effective date was fixed as follows: “This Act shall take effect and be in force from and after twelve o'clock, Bleridian, of the First day of September, Anno Domini, One Thousand Nine Hundred and Twenty-five.” See Yemon’s Ann. P. O., vol. 3, p. 369. • It does not follow that appellant’s contention that chapter 172, supra, repealed article 923, P. O. 1925, under which the conviction was had, should be sustained. In enacting chapter 172, the Legislature did not undertake to expressly repeal article 923, supra. No section is found in chapter 172 denouncing as an offense the mere possession of game birds at any time of the year except during the open season. Section 9 of the act denounces possession for the purpose of sale at any time of the birds therein enumerated. Section 7, among other things, denounces the killing, taking, hunting, wou'nding, or shooting of any game bird or game animal at any other time of the year except during the open season, and provides a penalty of not less than ten nor more than two hundred dollars. Nothing in the section last mentioned relates to the mere possession of game birds during the closed season.. Article 923, supra, in so far as the mere possession of game birds during the closed season is denounced as an offense, does not appear to be in conflict with any of the provisions of chapter 172.

It is to be observed that in adopting the Criminal Statutes of 1925, the Legislature embraced therein chapter 172, supra. Article 922, P. O. 1925, recites that said chapter should be known as the “Boyd-Hubby Game Bill” and that its provisions should become effective from and after September 1, 1925. Immediately following the insertion of the provisions of chapter 172, supra, the codifiers wrote article 923, supra, into the Code; the provisions of the two acts appearing in the same chapter of the Penal Code (chapter 6, title 13, P. C. 1925). Thus it would appear that it was not the intention of the Legislature that chapter 172, supra, should comprehend the entire subject-matter relating to the protection of game birds. On the contrary, we are impressed with the view that the Legislature intended that article 923, supra, should be construed in connection with the provisions of chapter 172, supra, and given effect.

Repeals by implication are not favored. Berry v. State, 69 Tex. Cr. R. 602, 156 S. W. 626, 635; Jessee v. De Shomg (Tex. Civ. App.) 105 S. W. 1011. Further, a repeal by implication must be by necessary implication, lessee v. De Skong, supra. In Berry v. State, supra, this court quoted from 26 Amer. & Eng. Ency. of Law, p. 717 et seq., as follows: “A statute is repealed by implication whenever it becomes apparent from subsequent legislation that the Legislature does not intend the earlier act to remain in force, and the converse of this proposition is that no statute will operate as an implied repeal of an earlier statute, if it appears that the Legislature did not intend it so to operate. Though repeal by implication is not favored, it necesi-sarily results in any case of repugnancy or •inconsistency between two successive statutes, or in any case where the intention of the Legislature is manifest that a later statute should supersede an earlier one.”

The application is denied.


text:
    McNEELY v. STATE.
    No. 15422.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    L. G. Mathews, of Floydada, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Swindling is the offense; penalty assessed at a fine of $75 and confinement in the county jail for 30 days.

The complaint is apparently guided by subdivision 4 of article 1546, P. C., which denounces that phase of swindling which is committed by the passing of a check without sufficient funds with which to pay it, and without good reason to believe that the check will be paid. The information based upon the complaint embraces that phase of swindling which pertains to the fraudulent acquisition of property upon a false pretense as defined in article 1545, P. C. 1925. In a prosecution upon a complaint and information, it is essential to the validity of the conviction that the information follow the aver-ments of the complaint. The complaint is the affidavit of some individual setting up facts upon which the charge is based. The information is the official charge of crime issued upon the authority of the state. See article 414, O. O. P., also Vernon’s Ann. Tex. C. G. P. vol. 1, pp. 309, 310. The material allegations of the information must conform to those of the complaint upon which it is founded. The want of such conformity would vitiate the pleading. Such has been the announcement of this court in many cases. See Davis v. State, 2 Tex. App. 184, Hoerr v. State, 4 Tex. App. 75; and numerous other cases collated in Vernon’s Ann. Tex. O. G. P. 1925, vol. 1, p. 314, note 6.

The state’s attorney before this court concedes the fatal variance between the complaint and information, because of which the judgment is reversed and the cause remanded.


author: CALHOUN, J. HAWKINS, J.

text:
    BRADY v. STATE.
    No. 15571.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Dec. 7, 1932.
    John L. Poulter, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Robbery is the offense; the punishment, 35 years in the penitentiary.

There was no allegation of the use of a pistol or other deadly weapon. Hence a capital offense was not charged.

The party alleged to have been robbed, J. L. Harbison, testified that he was superintendent of the Helpy-Selfy Market, and held that position in December, 19311 that their office is located in the Arcadia building in Port Worth; that on the morning of December 15,1931, between 9 and 9:30 in the morning, he started to the office in his automobile, and, when he got out of the automobile in front of his office, he was confronted by a man with a pistol, who told him to get back in his car, and the man got in the car beside him with his gun still in his hand and they then drove to Boaz Park; that he (the witness) was doing the driving because the appellant ordered him to do so. When they got to the park, the appellant told him' to get out, and asked him how much money he had. The appellant then robbed him of about $700, and made the witness get back in the witness’ car, and appellant then walked off and got into a car and left, taking the money with him.

The injured party also positively identified the appellant as the man who held him up at the point of a pistol. Two other witnesses for' the state also identified the appellant as a man they had seen standing around the place where the witness Harbison’s office was about 9:30 a. m. on the morning of the robbery, but neither of these witnesses saw the robbery.

The appellant did not testify as a witness in his own behalf, but proved by the woman at whose house he roomed a complete and definite alibi to the effect that he (the appellant) was at home with her and her husband at the time and On the date fixed by the state’s witness that the offense was committed, and that it was 11 o’clock when appellant and hefi husband left to go down town. This issue was submitted to the jury by the court in his charge.

There are no exceptions and objections to the court’s charge, nor any bills of exception. The only matter presented by this record is to the action of the trial court in overruling appellant’s motion for new trial on account of newly discovered evidence.

The appellant in his sworn motion on the issue of newly discovered evidence set up the fact that he had been confined in jail from the time the indictment was returned against him until the trial of this cause and he was deprived of any opportunity for making any preparation for his defense in this case; that he was without funds to employ counsel to represent him in the trial of said case; that he was tried without the' assistance of counsel; that the only witness whose name and address was known to him before said trial, Mrs. Etta Master, appeared and testified in his defense; that since the trial of said cause he had discovered new testimony material to his defense, in that on March 29, 1932, two ladies visited the county jail of Tarrant county where he was then confined and informed him that they were the two ladies who visited in the home of Mrs. Etta Master on the morning of December 15, 1931, during the very time the offense was being committed; that each of said witnesses knew as a matter of fact that defendant was then at said place.

Attached to said motion for new trial is the affidavit of Mrs. Mahaffey and also the affidavit of Mrs. Eerrell, to the effect that between 9:30 and 11 o’clock on the morning of said date at said place they met and were introduced to a man by the name of Joe Brady at the house of Mrs. Etta Master, and they afterwards identified the appellant in jail as the man whom they had met at her house that morning; that they had never seen the said Joe Brady since December 15, 1931, until they saw him in the county jail on March 29, 1932, and they had had no communication with him.

We believe that there is a complete absence of diligence shown on the part of appellant to secure the attendance of these witnesses on the trial of the case. It is shown 'by the affidavit of both of said witnesses that they were introduced to the appellant on the day of the alleged robbery at the house of Mrs. Etta Master, who testified that the appellant was present at her house between 9 and 11 o’clock on the morning of the alleged robbery, and yet the appellant made no attempt to have said witnesses subpoenaed, and he must have necessarily known at the time he announced ready for trial that they would be material witnesses in his behalf. He did not ask for a postponement or continuance because of their absence. If, at the time he announced ready for trial, he did not know the names of said witnesses or who they were or where they resided, it was shown upon the trial of the case by the testimony of his witness, Mrs. Etta Master, that these two women were present at her home at the time she fixed for the alibi and she introduced them to appellant, and on cross-examination the record shows that she called the name of one of the witnesses. It is therefore clearly shown that on the trial of the case, before the evidence had been completed, the appellant knew facts which put him on notice of the very evidence, the existence of which he claimed to have only discovered after the trial. He exercised no diligence to secure the attendance of the witnesses.

We quote from Branch’s Ann. P. O. § 192: “Applications for new trial upon the ground that new testimony material to the defendant has been discovered since the trial will be scrutinized by the appellate court with much strictness. They are addressed much to the discretion of the trial court, and where the trial court has refused such an application the appellate court will not reverse unless it shall appear that the trial court has abused its discretion and that thereby injustice may have been done the defendant” — citing Bell v. State, 1 Tex. App. 598; Shultz v. State, 5 Tex. App. 390; Johnson v. State, 62 Tex. Cr. R. 284, 136 S. W. 1058; Gray v. State, 65 Tex. Cr. R. 204, 144 S. W. 283, 284; McGaughey v. State, 74 Tex. Cr. R. 529, 169 S. W. 287, 289.

The .judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, J.

It is insisted by appellant that under the facts of this case it should be regarded as presenting an exception to the general rule regarding newly discovered evidence because appellant was without an attorney to represent him at the time of the trial. He was not charged in the indictment with an offense which could be punished by the infliction of the death penalty, and. for that reason the court was not required by the law to appoint counsel for him. See article 494, O. O. P., and authorities noted thereunder in Vernon’s Ann. Tex. Or. St. O. O. P. vol. 1. Yet the offense charged was serious, and it would not have been inappropriate for the court to have offered to furnish appellant an attorney by appointment. The record is silent on the point. It does not show that appellant requested the court to furnish an attorney. Appellant may have preferred to act as his own counsel. The statement of facts shows that the state’s witnesses were cross-examined at length by appellant, and, so far as we can judge from the record, the cross-examination seems to have been conducted in an intelligent manner. It is apparent from the record that appellant was well aware of the importance of having Mrs. Masters present as a witness for him on his defense of alibi. Mr. Masters, it seems, was equally as important a witness as his wife on that issue, and was in a position to testify to the same facts. This was bound to have been known to appellant; yet he asked for no process for Mr. Masters. The slightest diligence would have revealed the names of the witnesses whose affidavits are attached to appellant’s amended motion for new trial; indeed, Mrs. Masters named one of them in giving her evidence on the trial. Under these circumstances, we feel that this court would be unauthorized to extend the rule regarding claimed newly discovered evidence. In exercising the power which is invoked of this court to annul a verdict upon the grounds of newly discovered evidence, the court must be controlled by the record before it. As was said in Goodwin v. State (Tex. Cr. App.) 38 S.W.(2d) 806, 810: “In the executive department of the state there has been vested the authority to relieve against injustice. The Governor and the Board of Pardon Advisors are not restricted, as this court is, by the facts in the record. It is within their province to act upon information, affidavits, or otherwise, and thus inform themselves as to the merits of the questions before them.”

The motion for rehearing is overruled.


author: CHRISTIAN, J.

text:
    DOUGLAS v. STATE.
    No. 15450.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    W. D. Justice, of Houston, and R. H. Sig-ler, of Athens, for appellant.
    Clay Cotten, Sp. Pros., of Palestine, Cleo G. Miller, Dist. Atty., of Corsicana, H. B. Green, Co. Atty., of Athens, Ben Greenwood, Dist. Atty., of Palestine, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for twenty-three years.

The trial was had in Navarro county on a change of venue from Henderson county.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Texana Hall by shooting her with a gun.

Some time prior to the homicide appellant had been shot by his son-in-law, Davis January. On the night of the homicide appellant’s son-in-law and his wife had driven to the home of the wife’s grandfather. Appellant lived about a mile away. In .coming from his field, appellant passed the house in which January was visiting. January came out of the house as appellant was passing, and appellant shot him. Appellant’s daughter ran to the place of the difficulty and found her father with a gun in his hand. Texana Hall, deceased, came to the scene with a lamp in her hand. Just before the final shot was fired she gave the lamp to another party. Appellant’s daughter testified, on direct examination for the state, that she did not see any gun and did not see appellant fire at the time Texana Hall was shot. Upon further examination she testified, in effect, that she saw her father fire the fatal shot, and that he was holding the gun in a shooting position at the time. Appellant testified that he did not intentionally shoot Texana Hall. He said: “I do not think I had gone very many steps when my gun went off. I was carrying the stock of my gun in my left hand and the barrel in jny right hand. I did not have the gun in a shooting position. I was going a little southeast when the gun went off. If the shot killed Texana Hall I do not know it.” Further, he testified that he had nothing against Texana Hall and had no intention of shooting her. There was testimony tending to show that appellant disliked deceased, Tex-ana Hall.

In his motion for new trial appellant alleged, as newly discovered evidence, that his daughter, Mrs. January, had retracted her testimony, given on the trial, and had admitted that she testified falsely when she said that she saw appellant with the gun in shooting position when Texana Hall was shot. The affidavit of the witness supported the aver-ments embraced in the motion. The court heard evidence, and on the question of retraction the witness .Mrs. January testified as follows: “I was a witness in this ease when it was last tried in February. I told you then I saw my father holding 'the gun and saw the fire from it as the second shot fired. I said he was holding the gun in his hands. I was telling a falsehood all the time I told you and the jury that. Right after the other trial in February was when I told I had been testifying falsely. * * * The reason I am changing my testimony is because I think I have done wrong. The reason I told you and the other men the things I did was because I was mad at my father.” Further, the witness testified: “At the time of the second shot I was holding my husband’s head in my lap. He already had been shot. I did not see my father at that time and I did not see him holding a gun. No, sir, I did not see a gun at all at that time. I do not know in what position it was being held at that time. . * ⅜ * The reason I testified that I saw my father out there with a gun was because I was mad at him. That was the only reason I had for it. I felt like my father was doing wrong. It is the truth that I did not see my father on the night of the killing holding a gun.”

No other witness testified to having seen appellant shoot deceased while holding his gun in a shooting position. It was in the testimony of appellant’s daughter alone that the jury had direct evidence combating appellant’s defense of an accidental killing. We are constrained to hold that the motion should have been granted. Branch’s Annotated Penal Code, § 205; Rhea v. State (Tex. Cr. App.) 255 6. W. 757; Wadkins v. State (Tex. Cr. App.) 277 S. W. 684; Weatherall v. State (Tex. Cr. App.) 271 S. W. 899; Green v. State (Tex. Cr. App.) 252 S. W. 499.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: CALHOUN, J.

text:
    BRADFORD v. STATE.
    No. 15393.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    P. Z. Sullivan, of Bellville, for appellant
    Fred L. Blundell, Dist. Atty., of Lockhart and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, death;

The killing is alleged to have taken place on or about the 20th day of June, 1931. The deceased was the appellant’s sister. She was aibout 56 years of age and for some time had been in very feeble health. A short time before the homicide, she had been in the hospital for some time. The state’s testimony showed that she was suffering from a disease which almost completely incapacitated her and required constant nursing and attendance. The deceased and her mother, who was also the mother of appellant, resided in the ¡house together and the mother was very old and was very hard of hearing. For a long period of years prior to the killing, appellant had not visited or seen his sister. He came to deceased’s house in the early part of the year 1931, and later on the wife of the appellant came also and they resided there in the house. It seems that the mother drew a pension and had saved up about $1,100, and about the time the deceased was to be removed from the sanitarium back home, the question arose as to the mother paying the hospital expenses thereof. It seems she consulted with appellant before it was done and he agreed to her paying $500 out of her money on the hospital expenses. The deceased was shot in the back of the head from the discharge of a shotgun, and her body was found lying by the side of the bed. There was also evidence to show that there had been a scuffle before the killing.

It was appellant’s defense that the-shooting was an accident, and the effect of his testimony was that the deceased had become angry at the appellant and his wife and claimed that they were using some of her quilts, and she remonstrated with them and told them not to use them any more. That appellant agreed that he would not use them any more. He further testified that deceased called the appellant to her-bed, and when he came there the deceased had a shotgun lying on the bed with her and told him that she was going to kill him, and he immediately grabbed the gun to take it away from her, and in the scuffle which resulted and in his endeavor to get hold of the gun and in dragging it out from the foot of the bed, it was accidentally discharged. That immediately afterwards he fled and his mind was in such a state or condition that he knew nothing about his acts or conduct thereafter.

Rebuttal testimony on the part of the state tended to show that deceased was so sick that that she was physically unable to handle a gun of that size.

By bill of exception complaint is made as to the receipt in evidence of the testimony of the witness DoraKaechele, who testified as to hearing the wife of the appellant over the telephone make the statement to the effect that the appellant had killed the deceased. The bill of exception presented by appellant’s counsel was refused and the court prepared his bill of exception.

Another bill of exception went to the receipt in evidence of testimony of the witness Hoffman Reese, who arrived, according to the state’s contention, soon after the killing and heard the appellant’s wife make some statement with reference to appellant’s connection therewith. This bill of exception on the part of appellant’s counsel was refused and the trial court filed his bill, which appears in the record as 'bill of exception No. 10A. By this bill of exception, we find that the trial court certified to the fact that the witness was permitted to testify to what the wife told him as part of the res geste. It appears from the facts set out in said bill of exception that a state’s witness, Ernest Blum, testified that he knew defendant’s wife and that the appellant’s wife did not come with the appellant at the time he came to his sister’s home but came some time later; that he had been to the home of deceased while she was in bed after she returned from the hospital and he saw the appellant’s wife waiting on the deceased; and that she was then present at court. He further testified that they went to the home of deceased immediately after the killing and the appellant’s wife was there. It is further shown by said bill of exception that the witness Dora Kaechele, a witness for the state, testified, before the question and answer complained of was asked and answered by the witness Reese, to the effect that she lived at Kinney and she lived there on June 20, 1931, and at that time was a telephone operator; that she knew the deceased during her lifetime and knew about where her place was; that she had a telephone in her house connected with) her exchange and she had talked to and heard the voice of appellant’s wife over the telephone before the killing of deceased; that at the time of the killing of the deceased, she received a telephone call from the home of the deceased; and that call was from Mrs. Bradford, the wife of the defendant, and at the time she received the telephone call from appellant’s wife she was very nervous and talked like she was crying and was excited. Appellant’s wife wanted an officer and a doctor and she called several times, one call right after the other; that she called three or four times within a period of 10 or 15 minutes, and each time she was asking for help and she wanted the sheriff and a doctor; that at each of the times she called she was in the same condition of excitement and nervousness and was crying. That she communicated with some one at Brenham and she wanted Mr. Hoffman Reese at Brenham, and a little bit later the witness had a call for an undertaker at Brenham; that it was about 15 minutes from the time appellant’s wife talked to Bren-ham until she received the call from the Dodd home for the undertaker.

The witness Dr. W. F. Hasskarl testified, before the question and answer complained of in the bill was put and answered by the witness Reese, to the effect- that he learned of the killing from Hoffman Reese, who informed him of the killing and asked him to go with him and he accompanied him to the home of the deceased at his request; that they traveled by automobile at the -rate of about 55 miles per hour, and it was about 10 miles from Brenham to the deceased’s house; that the deceased’s house was about 2 miles from the paved road and they started immediately after being notified; that it was perhaps 20 minutes from the time they learned of the killing until they arrived at the house where the body of the deceased was found. When they drove up, the wife of the appellant came out of the house and met them -between the house and gate, and she was very excited and was wringing her hands, and from his investigation of the body and conditions he saw there he would say that the body had been shot and killed about half an hour before they arrived. On cross-examination, he testified that he hardly thought that the deceased could have been dead an hour when they arrived and he based his opinion on the condition of the tissue and the blood.

The bill further shows that the sheriff, Hoffman Reese, testified before the question and answer complained was asked and answered by bim to tbe effect tbat at tbe time be learned of tbe death of Mrs. Dodd be was at bis office in Brenham and it was about 10 miles' from Brenham to Mrs. Dodd’s and she lived 2¼ miles off tbe pavement. It was a total distance of about 10 miles to ber bouse and there was a concrete highway within about 2¼ miles of ber place, and he received ⅛® information shortly after tbe shooting and was requested to bring a doctor with bim; that' after be received the message be phoned Dr. Hasskarl and picked him up on bis way out; that after picking tbe doctor up hei drove by his home and got bis rifle and went right on about as fast as tbe car would go. Only be and tbe doctor were in the car, and as be got to the house he saw Mrs. Bradford, appellant’s wife, and she met them at the gate. As to her condition, she seemed very excited and seemed very much aroused. She made some statement to them at the time and the appellant was not there when they arrived. After the foregoing testimony bad 'been given by tbe aforesaid witnesses, tbe bill shows that the following question was asked of tbe witness Reese; “What, if any, did she, Mrs. Bradford, say to you as you met ber there in that condition?” And tbe witness answered that the first thing she said was, “Reese has killed May,” and tbe appellant’s counsel objected to tbe testimony as an attempt upon tbe part of tbe state to offer tbe wife as a witness against ber husband and in derogation of tbe rights of tbe defendant under tbe Constitution and laws of this state and is calculated to prejudice and inflame tbe minds of tbe jurors against this defendant and is not admissible for any purpose, whereupon the district attorney stated that he offered it as part of the res gestee and as part of tbe transaction, and the court then stated tbat it was admitted as part of tbe res gestee, and tbe appellant’s attorney stated that there was no testimony that would justify its admission on tbe grounds of res gestas. The bill further shows tbat the witness then stated tbat appellant’s wife bad said “tbat she heard a noise and went to tbe door and saw him throw a glass at ber and then throw a bell at her and beat ber with a stick, choke ber, and bit ber with bis fist, and she'ran out in tbe yard to boiler for help and came back to tbe steps and beard a gun fired and saw Reese going out of tbe bouse with a gun in bis band.”

It is well established in this state tbat •the declarations or statements of the wife are properly admissible against ber husband when coming under the rule of res gestae. See Holman v. State, 92 Tex. Cr. R. 364, 243 S. W. 1093; Gilmore v. State, 91 Tex. Cr. R. 31, 241 S. W. 492, 493. We quote from tbe opinion of Judge Hawkins in Johnson v. State, 95 Tex. Cr. R. 269, 252 S. W. 554, 556: “While tbe wife may not be called by tbe state as a witness in the prosecution of ber husband for killing another, yet statements made by her become admissible when shown by other witnesses if res gestee. As said'by Judge Morrow in Bibb v. State, 83 Tex. Cr. R. 616, 205 S. W. 135: ‘It is not her testimony tbat is used, but her verbal act so connected with tbe transaction as to become a part of it, and provable by competent witnesses like any other part of tbe transaction. See Robbins v. State, 73 Tex. Cr. R. 367 (166 S. W. 528); Cook v. State, 22 Tex. App. 511 (3 S. W. 749); Wharton’s Crim. Ev., secs. 262, 263.’ * * * We quote from section 262, Wharton’s Grim. Evidence: ‘As long as tbe transaction continues, so long do acts and deeds emanating from it become part of it, so tbat in describing it in a court of justice they can be detailed. Tbe distinguishing question is, Is tbe evidence offered tbat of tbe event speaking through tbe participants? If so, what was thus said can be introduced without calling those who said it. Is the evidence offered tbat of observers speaking about tbe event? If so, such observers must be called to testify. Nor are there any limits of time within which tbe res gestee can be arbitrarily confined. They vary in fact with each particular case.’ ”

We further quote from said opinion;

“ ‘They need not be coincident as to time if they are joined by the existing feeling which exists without break or let-down, from tbe moment of tbe event they elicit. If tbe acts and declarations appear to spring out of tbe transaction, if they elucidate it, if they are voluntary and spontaneous, and if they are made at a time so near it as reasonably to preclude tbe idea of deliberate design, then they are to be regarded as contemporaneous, and are admissible.’’
“Tbe foregoing statement from Branches Ann. P. C. § 83, p. 53, epitomizes tbe rule, and is in consonance with Wharton, supra, and is supported by tbe many cases collated, notably McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175, 177; Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720; Craig v. State, 30 Tex. App. 621, 18 S. W. 297.”

It will be seen from tbe foregoing authorities that no inflexible rule as to tbe length of tbe interval between tbe act charged against tbe accused and the act of declaration can be formulated. In tbat matter tbe facts of each case stand alone and must speak for themselves. In each case, tbe particular facts and instances must be considered as an independent group and it must be determined whether they fall within or without tbe operation of tbe rule. As to the statement made by tbe appellant’s wife over tbe telephone to Mrs. Dora Kaeehele, which was objected to, to tbe effect that tbe appellant’s wife at tbe time she telephoned made tbe. statement tbat, “Reese has shot May,” even if erroneously admitted, could not have injuriously affected appellant under the facts shown by the record; he having himself testified that he accidentally shot the deceased.

But as to the detailed statement made by appellant’s wife to the officer and the doctor when they arrived at the house of the deceased a much more serious question is presented. The only fact that could be considered as establishing a predicate for the introduction of this testimony was that she seemed to be excited and was rubbing or wringing her hands. So far as the evidence is concerned no one knows the exact period of time that had elapsed between the shooting and the time the wife was heard to make the statement over the telephone, nor of the time definitely fixed as to the statements made to the officer and doctor when they arrived at the house; but it is shown that at least 30 minutes after the shooting had elapsed previous to the making of said statement. She had previously telephoned three or four times for an officer and a doctor. What had been her conduct from the time she had telephoned and the arrival of the officer and the doctor is not shown. While the time alone would not be sufficient to justify the exclusion of the statement claimed to be res gest®, the other facts and circumstances must be taken into consideration. It is shown by the record that the witness Ernest Blum had gone to the house where the killing took place immediately after the killing and the appellant’s wife was there. It is not shown that she made any statement whatever to said witness about how it 'occurred, but waited until the officer arrived before making said statement. There is no testimony showing that the statement made to the sheriff was of that spontaneous character which would lead to the belief that it was the event speaking through the wife and not the wife talking' about some past event. The declaration complained of was made after all action on the part of the appellant, actual or constructive, had ceased and after he had departed from the scene. To make ¿dmissible any statement or act occurring after the transaction has ended, it must be shown that the person speaking or acting was so affected •by the transaction as to render likely the spontaneity of the utterance or act offered and to exclude the idea that the same was a mere narration of past events. Holman v. State, 92 Tex. Cr. R. 364, 243 S. W. 1093.

If an act or statement was disconnected with the main transaction and was merely a narrative of what occurred, it is obviously inadmissible as part of the transaction, regardless of the time that intervened between the act or declaration and the principal fact. Wright v. State, 114 Tex. Cr. R. 597, 26 S.W. (2d) 236. As we view the record, the evidence was insufficient to establish a predicate for the admission of the statement by appellant’s wife to the sheriff as res gestae. That he shot the deceased was admitted by the appellant, but he contended that it was an accident. •That the statement of the wife to the officer admitted in evidence was hurtful to appellant is manifest. The extreme penalty was assessed by the jury. The statement of the wife to the officer was direct evidence as to what occurred between the appellant and deceased at the time of the killing, and in direct contradiction of appellant’s testimony.

Appellant also complains of the argument of the district attorney in his closing argument to the jury. As the case must be reversed for the error above pointed out, .we deem it unnecessary to discuss said bills in detail, as the matters therein complained of are not likely to occur on another trial of this case.

For the error in permitting the introduction of the statement of the wife of appellant to the sheriff, over the objection of appellant, the judgment is reversed, and the cause remanded.

PER OURIAM.

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