author: HARVEY, P. J. CURETON, C. J.

text:
    LIGON v. ALEXANDER FILM CO.
    No. 1593-5968.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    Alfred M. Scott, of Lubbock, for plaintiff in error.
    6. Y. Pardue, of Lubbock, for defendant in error.
   HARVEY, P. J.

The defendant in error, the Alexander Film Company, brought this suit in the county court of Lubbock county, against the plaintiff in error, H. L. Ligón, seeking to recover the sum of $455.40, due under a written contract made by and between the company and Ligón, on February 18, 1929. The film company is a Colorado corporation and has its offices in that state, and conducts a studio there for the manufacture of moving picture films containing advertising matter relating to the -business of its customers. The company has never filed in the office of the secretary of state of Texas, its articles of incorporation, or obtained a permit to transact business in Texas, as provided by article 1529 of our statutes (Rev. St.). Because of this noncomplianee with said statute, Ligón sought the abatement of the company’s suit, by virtue of the provisions of article 1536 of the statutes. The trial court sustained the plea in abatement and entered judgment dismissing the suit. The Court of Civil Appeals reversed that judgment, and remanded the cause for trial on the merits, 36 S.W.(2d) 313.

Ligón resides in the city of Lubbock, Tex., and is engaged there in the transfer and storage business. On February 18, 1929, the written contract sued on was signed in Lubbock by Ligón and the soliciting agent of the film company. The instrument provided, however, that same would not bind the company until same was forwarded to the offices of the company, in Colorado, and approved by the company. This was done, and the contract was signed by the company, in Colorado. It may be well to explain, at this point that the Palace Theater and the Lindsey Theater, mentioned in the contract sued on, are moving picture theaters located in Lubbock, and are owned and operated by a partnership, of which neither the film company nor Ligón is a constituent.

The material provisions of the contract sued on read as follows: “The undersigned advertiser (Ligón) subscribes for film advertising service and authorizes tlie Alexander Film Company, of Colorado Springs, Colorado, to display catalogue films for a period of 52 weeks,” in the Palace and Lindsey Theaters. “The Film Company will produce one N. C. full screen trailers (each ten words or less) with all of the necessary prints of same and ship same to the theaters in the following manner: Two shipments per month to the Palace Theater. Receipt of $36.00 is hereby acknowledged. The advertiser agrees to pay the balance in installments of $36.00 per month for eleven months. The first installment shall be due thirty days after the first shipment of service from the Film Company’s Studio. This amount includes theater screening charge. * ⅜ ⅜ Tlie Film Company reserves the right to display national or sectional service on the screen, which display shall not be construed as a violation of any exclusive rights the advertiser may have contracted for. * ⅜ ⅜ ”

On the back of the instrument is printed the following:

“To Subscribers. ,
“In order that full benefits may be received from this Movie Playlet rental service, subscribers are advised to watch carefully the screening of same and notify theater manager of any irregularity. Also see that all films are returned promptly, parcel post, by the theater, at the end of their rental periods. Otherwise, shipments cannot be made according to schedule. Movie playlets are syndicated films designed to advertise the business and service of our money customers. The wording or action cannot be changed from that shown in the catalogue. Trailer Copy cannot be altered, except by purchase of a new trailer. Individuality is brought out in the special trailer which follows the movie playlet. The same copy is used for trailers throughout the subscription unless additional trailers are ordered at regular rates. In case suitable copy is not furnished by advertiser at time of signing subscription, the Film Company may design same according to its best judgment. Trailers are not produced until payment is received. Extras: — Wordage beyond 10 words may be furnished at the rate of $1.00 pel foot (figure one word to foot). The above extras are for production and are to be paid at the time of signing subscription.”

Some time before the above contract was made, the owners of the Palace and Lindsey Theaters had contracted with the film company to exhibit, on the screens of said- theaters, during public performances conducted by the theaters, advertising films of the character of those contemplated by the film company — Ligón contract. Said contract between the film company an’d the theater owners subsisted until more than 52 weeks after the film company — Ligón contract was made, and the theater owners publicly exhibited on the screens of said theaters the advertising films called for by the last-mentioned contract, and for the period of time there specified. These exhibitions of said films were made by the theater owners in carrying out their obligations to the film company under their contract with the company. Ligón was not a party to that contract. He made no agreement with any one, except the film company, with reference to said films or their exhibition in said theaters.

The main question presented is whether the trial court erred in dismissing the film company’s suit, for the reasons stated. Before discussing that question, however, we may as well dispose of the contention of the film company, to the effect that the Supreme Court was without jurisdiction to grant the writ of error herein. Article 1728 of the statutes expressly provides that the Supreme Court has appellate jurisdiction of cases “involving the .construction or the validity of statutes necessary to a determination of the case.” Under that provision of the statute, the Supreme Court has jurisdiction to grant the writ of error for the purpose of determining the question as to the application of a statute to the facts of a particular case, where such determination by the Supreme Court will necessarily determine the disposition tó be made of the case by that court. The application of the provisions of articles 1529 and 1536 to the state of facts presented by this record is the very question to be determined in the present case. This, of course, involves the determination of the character of the transaction out of which the claim of the film company arose; but a determination of that matter is a necessary step in reaching a conclusion as to the applicability of said statutes. Brown v. Fore (Tex. Com. App.) 12 S.W. (2d) 114, 63 A. L. R. 435.

Reverting to the main question, the important consideration is whether the transaction, from which the claim sued on arose, comprehended nothing more than a trahsaetion in interstate commerce. If it did, then the provisions of article 1529 do not apply, and the provisions of article 1536 do not hinder a suit on the claim in the courts of this state. It may be granted without further ado, that had the transaction between the company and Ligón contemplated the doing of nothing by the company except to manufacture the films according to contract requirements and to ship them to the theaters at Lubbock, for the use and benefit of Ligón, the transaction would have been one of interstate commerce exclusively. It is perfectly plain, however, that the contract between the film company and Ligón contemplated, as the main object of the company’s entire undertaking, the public exhibition of the films in the theaters at Lubbock. The matter of publicly exhibiting the films was essentially intrastate business. Mutual Film Corporation v. Industrial Commission, 236 U. S. 230, 35 S. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296; Mutual Film Corporation v. Hodges, 236 U. S. 248, 35 S. Ct. 393, 59 L. Ed. 561. There was no inherent and intrinsic relation between the undertaking of the company to manufacture the films, 'and to ship them to Lubbock, and the company’s undertaking to publicly exhibit the films in the theaters at Lubbock. The matter of manufacturing and shipping the films was but incidental to the accomplishment of the essential purpose of the contract; namely, the advertising at Lubbock, the business of Ligón, by the use of the films. The circumstance that interstate commerce was involved in the manufacture and shipment of the films does not alter the intrastate character of the public exhibition of the advertising matter contained in the films. The situation is controlled by the same principle as were the cases of Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828; General Ry. Signal Co. v. Virginia, 246 U. S. 500, 38 S. Ct. 360, 62 L. Ed. 854. That principle is explained and distinguished in York Mfg. Co. v. Colley, 247 U. S. 21, 38 S. Ct. 430, 62 L. Ed. 963, 11 A. L. R. 611.

We recommend that the judgment of the • Court of Civil Appeals be reversed, and that the judgment of dismissal entered by the trial court be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and that of the county court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: RYAN, X GURETON, C. J.

license: Public Domain

text:
    WM. CAMERON & CO., Inc., et al. v. AMERICAN SURETY CO. OF NEW YORK.
    No. 1372-5959.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    Deroy A. Smith, Bryan, Stone, Wade & Ag-erton, B. G. Mansell, Billingsley & Billingsley, Charles Kassel, Slay & Simon, Polk, Sansom & Terrell, McDonald & Floyd, and Hampden Spiller, all of Fort Worth, for plaintiffs in error.
    Thompson & Barwise and Kelly Shannon, all of Fort Worth, for defendant in error.
   RYAN, X

This suit was brought by Wm. Cameron & Co., Inc., in the district court of Tarrant county (Acme Brick Company and others intervened, claiming the same relief, though in different amounts), to recover upon the surety bond given in connection with a contract between T. B. Ellison, owner, and Southwell & Abbott, contractors, for the construction of a warehouse in the city of Fort Worth; the American Surety Company was surety thereon for the contractors.

After the building was completed, the contract price was paid in full by the owner; the balance due thereon, when the building was completed and accepted, amounting to $6,717.-80, was paid to the contractors, who deposited the same in bank for application to claims of subcontractors, materialmen, and laborers, but the money was, without the contractors’ consent, appropriated to and used by the bank in payment of debts owing by the contractors to it.

The contractors, Southwell & Abbott, failed to pay Wm. Cameron & Co., Inc., $4,317.34, Miller Bros. $229.60, the Southern Ornamental Iron Works $455.54, the Acme Brick Company $2,180.32, the Builders’ Material Company $47.-81, B. S. Matson $606.60, Chas. T. Davis $111.84, the North Texas Iron & Steel Company $966.86, the Fort Worth Sand & Gravel Company $579.38, and the Collinsville Manufacturing Company $1,074.77, which they owed said parties for material or labor that was furnished in the construction of said building. None of said parties filed or fixed any lien. against the building in accordance with the law, nor did T. B. Ellison, the owner, have any notice within thirty days of the final payment to the contractors that said claims were not paid. .

Recovery was also sought against Ellison, the owner, for the amounts of said claims and to establish a lien against the property therefor.

Ellison answered, denying liability, and by way of cross-action he sought, as trustee for plaintiff and interveners, judgment against the contractors and the surety company for the respective amounts as claimed by the plaintiff and interveners, alleging that he had taken the indemnity bond for their use and benefit, and was entitled to recover the aggregate of said sums as trustee for said named parties. He further claimed an attorneys’ fee of $1,500 by reason of having been forced to employ attorneys to defend him against the suit as brought by said parties and in the 'prosecution of his claim as trustee against the surety company; its liability therefor being, by virtue of the provisions of the bond.

Southwell & Abbott, the contractors, alleged that they had been discharged in bankruptcy of all the claims in question here.

It was agreed on the trial that the various claims, for which recovery was sought, are correct as' to amounts due and unpaid; that such claimants (except T. B. Ellison) have been paid 10 per cent, thereof, through a committee appointed by the creditors of South-well & Abbott, in 1928; that the material or labor and material covered by said claims actually went into and became a part of the building, which is the subject-matter of this suit; that such labor and material was furnished directly to the contractors, and the dates of the furnishing thereof as stated in the several accounts are correct.

It was further agreed that Ellison completed the full payment of his contract with Southwell & Abbott, by check dated March 7, 1927, and from that date nothing further was due and owing by him to them; that he did not have notice, in accordance with law, of any of the claims now asserted, within thirty days of said final payment, but on March 10, 1927, he received a letter from the Acme Brick Company, as follows: “This is to advise you that there is .owing to us for brick furnished on your building $2,194.80, same being charged to Southwell & Abbott, contractors on this building. This money is due and we are proceeding to file against the building to protect our interest,” and on the same day said brick company wrote and sent to the American Surety Company its letter as follows: “This is to advise-you that South-well & Abbott owe this company $2,194.80 for brick furnished on the ■ T. B. Ellison warehouse, and that this amount is due and unpaid. We have this day advised Mr. T. B. Ellison of this, in writing.” In answer thereto, the Acme Brick Company, in due course of mail, received from the American Surety Company the following letter:

“March 17,1927.
“In Re: Bond 589137-B
“Southwell & Abbott to T. B. Ellison, dated 11/27/26.
“Acme Brick Company, Neil P. Anderson Building, Fort Worth, Texas. Attention: Mr. X E. Fender. We have your letter of the 10th inst. advising that Southwell & Abbott owe you $2,194.80 for brick furnished on the T. B. Ellison warehouse. This is to advise that it will be unnecessary for you to file ma-terialman’s lien against this job in order to preserve your rights under the bond of the American Surety Company covering contract of Southwell & Abbott and your account will be paid within a reasonable length of time the same as if you had filed your materialman’s lien against this property, but this letter does not admit any liability not set forth in the bond.
“Yours very truly,
“Earl L. Howell, Inspector American
Surety Company, of New York.”

It was further agreed that the American Surety Company is and was, when said bond was executed, a corporation surety for hire, organized, among other things, for the purpose of issuing such bond.

The trial court (a jury having been waived) rendered judgment against the American Surety Company in favor of plaintiff and in-terveners for the respective amounts claimed by them; no recovery was had against South-well & Abbott because of their discharge in bankruptcy; it was further adjudged that no recovery be had against Ellison, the owner, and his property was freed from any* liens filed upon the same by said parties; it was further adjudged that Ellison recover from the American Surety Company the sum of $750 as a reasonable attorneys’ fee for the defense of this suit against him by such subcontractors and materialmen and for the prosecution of his cross-action to clear title to his property from the cloud of the liens attempted to be filed by such subcontractors and ma-terialmen. The surety company was, upon satisfaction of said judgment severally rendered against it; subrogated to the rights of such subcontractors and materialmen upon the claims filed by them in the bankruptcy proceedings of Southwell & Abbott, and all dividends paid in such proceedings and received by them after December 1, 1929, shall be credited upon the judgment in their favor against the surety company.

On appeal, the honorable Court of Civil Appeals at Waco held that the judgment in favor of the laborers and materialmen is erroneous, because the bond was not payable to them and did not inure to their benefit, that Ellison was not entitled to recover any attorneys’ fees, reversed the same, and rendered judgment that said parties take nothing as against the surety company. 35 S.W.(2d) 217.

The contract and bond are on printed forms, and each bears the notation that it has received “the approval of the National Association of Builders’ Exchanges, the Associated General Contractors of America, the Joint Conference on Construction Contracts, the National Association of Master Plumbers, the National Association of Sheet Metal Contractors of the United States, the National Electrical Contractors’ Association of the United States, the National Association of Marble Dealers, the Building Gz-anite Quarries Association, and the Building Trades Employers’ Association of the City of New York.” The form of contract contains the printed statement: “Copyright 1915-1918-1925 by the American Institute of Architects,” and the bond contains the printed statement: “Copyright 1915-1925 by the American Institute of Architects,” and both are stated to be “standard” forms.

The bond is as follows:

“Know all men: That we Southwell & Abbott, a partnership composed of William H'. Southwell and John W. Abbott, a firm of General Contractors, of Fort Worth, Texas, hereinafter called the Principal, and American Surety Company of New York, hereinafter called the Surety or Sureties, are held and firmly bound unto T. B. Ellison, of Fort Worth, Texas, hereinafter called the Owner, in the sum of Fifteen Thousand and no/100 Dollars, ($15,000.00), for the payment whereof the Principal and the Surety or Sureties bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly, by these presents.
“Whereas, the Principal has, by means of a written Agreement, dated November 24th, 1926, entered into a contract with the Owner for construction of warehouse for Ellison Furniture & Carpet Co., Fort Worth, Texas, a copy of which Agreement is by reference made a part hereof;
“Now therefore, the Condition of this Obligation is such that if the Principal shall faithfully perform the Contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the Owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the Owner all outlay and expense which the Owner may incur in making good any such default, and shall pay all persons who have contracts directly with the Principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in 'full force and effect.
• “Provided, however, that no suit, action or proceeding by reason of any default whatever shall be brought on this Bond after - months from the day on which the final payment under the Contract falls due.
“And provided, that any alterations which may be made in the terms of the Contract, or in the work to be done under it, or the giving by the Owner of any extension of time for the performance of the Contract, or any other forbearance on the part of either the Owner or the Principal to the other shall not in any way release the Principal and the Surety or Sureties, or either or any of them, their heirs, executors, administrators, successors or assigns from their liability hereunder, notice to the Surety or Sureties of any such alteration, extension or forbearance being hereby waived.
“Signed and Sealed this twenty-seventh day of November, 1926.
“In Presence of:
“Southwell & Abbott [Seal]
“By Wm. H. Southwell.
“American Surety ■ Company of New York [Seal] '
“By C. H. Walton, Attorney in Fact. “Countersigned by W. E. Gooch.” '

The contract obligated the contractors to fiirnish and pay for all the material and perform all tlie work shown on tlie “drawings and specifications” prepared by certain named architects, within a certain named time, for the sum of $28,144. Under said contract the owner had the right to require the contractors to furnish bond covering the faithful performance of the contract and the payment of all obligations arising thereunder in such form as he may prescribe.

The surety in connection with its bond and contracts had the contractors execute to it a transfer, by way of indemnity, of “all right, title and interest of the indemnitpr in and to all the tools, plants, equipment and materials of every nature and description that the in-demnitor may have upon the work provided for in the contract covered by said surety, or in, on, or about the site thereof, including as well materials purchased for, or chargeable to subcontractors, which may be in process of construction, on storage elsewhere, or in transportation to said site; and the indemnitor further agrees-to assign and does hereby assign unto said surety all the former’s rights in and to, all subcontracts which may be entered into, and the material embraced therein, appertaining to said contract.”

Opinion.

First. The conditions of the bond, viz. “that if the principal shall faithfully perform the contract on his part and satisfy all claims and demands incurred for the same, and indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and reimburse and repay the owner all outlay and expense which, the owner may incur in making good such default,” are for the benefit of and amply sufficient to protect the owner against liens and every other character of loss and expense, and it was unnecessary for his protection to add t'he clause “shall pay all persons who have contracts directly with the principal for labor and materials.”

Unquestionably, it was intended by the inclusion of that clause to protect all such persons having contracts directly with the principal (contractor) for labor or materials; the contract exempted the owner from any contractual liability to them, and as to him the . clause is unnecessary; the clause in question undoubtedly means that they are to be protected as against the principal (contractor) and created an original obligation to pay them—to secure which, the bond is effective.

In other jurisdictions where identically the same form of bond was under consideration, it was held that furnishers of material to the contractor are entitled to recover thereon. Pittsburgh Plate Glass Co. v. Fidelity & Deposit Co., 193 N. C. 769, 138 S. E. 143; Mansfield Lumber Co. v. National Surety Co., 176 Ark. 1035, 5 S.W.(2d) 294; Hartford Accident Co. v. Knox Co., 150 Md. 40, 132 A. 261; Byram Lumber Co. v. Page, 109 Conn. 256, 146 A. 293; Fidelity & Deposit Co. v. Rainer, 220 Ala. 262, 125 So. 55, 57, 77 A. L. R. 13; Ætna Casualty Co. v. U. S. Gypsum Co., 239 Ky. 247, 39 S.W.(2d) 234; Ramsey & Gatlin Const. Co. v. Vincennes Bridge Go., 283 U. S. 796, 51 S. Ct. 484, 75 L. Ed. 1420; Ramsay, etc., v. Vincennes Bridge Co. (C. C. A.) 50 F.(2d) 600; Johnson Electric Co. v. Columbia C. Co., 101 Fla. 186, 133 So. 850, 77 A. L. R. 1.

The bond having been made for the benefit of subcontractors, workmen, laborers, mechanics, and materialmen, they may sue thereon in their own names. It is not necessary that they be named or even' known when the obligation is made. H. & S. Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621; McCown v. Schrimpf, 21 Tex. 27, 73 Am. Dec. 221; 10 Tex. Jur. p. 283.

Second. We shall now consider the right of the owner, Ellison, to recover from the surety the attorneys’ fee incurred by him in, and as the result of, this litigation.

It is settled law in this state that, unless provided for by statute or by contract between the parties, attorneys’ fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or a suit upon a contract. 13 Tex. Jur; p. 196 ; 11 Tex. Jur. p. 302. Counsel fees incurred in prosecuting a suit for or defending against a wrong are not ordinarily recoverable as actual damages. Closner v. Chapin (Tex. Civ. App.) 168 S. W. 370.

This is in harmony with the general rule in most of the states. 15 C. J. p. 114; Union Ind. Co. v. Vetter (C. C. A.) 40 F.(2d) 606. '

We have no statute in this state providing for the recovery of attorneys’ fees as damages in private contracts of this character, and must therefore find warrant, if any, for such recovery in the contract between the parties.

The conditions of the bond, as to the owner, are:

(a) That the contractor shall faithfully perform the contract on his pari and satisfy all claims and demands incurred for the same.

It cannot be contended that under this clause recovery may be' had for an attorneys’ fee against the principal or surety, in addition to claims and demands for labor and material incurred in performing the contract.

(b) That the contractor shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure to perform the contract, and satisfy all claims and demands for the same.

It is only under this clause of tlie bond that the owner may claim recovery for attorneys’ fees, and that involves construction of th'e words “cost and damage” as there used. Is an attorney’s fee a “cost, and damage,” or either, and therefore recoverable as such?

In Moore v. Moore (Tex. Civ. App.) 52 S. W. 565, 566, a ’bond conditioned to “well and sufficiently indemnify, save and keep harmless * * * from all costs, charges, damages, and suits that he may incur .or become liable to in consequence of the levy of said alias execution, and shall pay off and discharge all judgments, damages, and costs that may be rendered against the said *' * ⅜ constable, by reason of said levy,” was held not to bind sureties thereon to pay the constable’s attorneys’ fees for filing suit on the bond.

The same character of bond was involved in Martin-Brown Co. v. Auld (Tex. Civ. App.) 34 S. W. 1050, and Kemp Grocer Co. v. Auld (Tex. Civ. App.) 34 S. W. 1053; the court denied recovery of attorneys’ fees on the ground that the bonds did not so stipulate.

In certain classes of cases, attorneys’ fees ■are recoverable under such an indemnity clause, but this is by virtue of a statute so authorizing. For example, in forcible entry and detainer cases, the appeal bond conditioned on a prosecution of the appeal with effect and payment of all costs and damages (article 3988, Rev. Stat. 1925), an attorney's fee is recoverable but only by virtue of article 3990, Rev. Stat. 1925, as amended by Acts 1927, c. 51, § 1 (Vernon’s Ann. Civ. St. art. 3990), which classes the reasonable expenses of prosecuting or defending in the county court on appeal as part of the damages. McRae v. White (Tex. Civ. App.) 42 S. W. 793. In garnishment cases, the garnishee, if discharged upon his answer, may recover an attorney’s fee, by virtue of article 4100, Rev. Stat. 1925, allowing him a “reasonable compensation” in such a case, but the original defendant cannot recover an attorney’s fee as actual damages under a garnishment bond protective of “all damages and costs.” Heidemann v. Martinez (Tex. Civ. App.) 173 S. W. 1166; Heimsoth v. Le Seur (Tex. Civ. App.) 26 S. W. 522. And so, too, provision has been made for the recovery of attorneys’ fees in suits on insurance policies and for personal services, but this is by virtue of some statute on the subject. First Texas P. Ins. Co. v. Smallwood (Tex. Civ. App.) 242 S. W. 498.

Plaintiff in error cites us to Cameron v. Barcus, 31 Tex. Civ. App. 46, 71 S. W. 423, 424; Employers’ Indemnity Corporation v. Bank (Tex. Civ. App,) 299 S. W. 676, 677, Id. (Com. App.) 12 S.W.(2d) 189, and Eller v. Erwin (Tex. Civ. App.) 265 S. W. 595, as supporting his contention that attorneys’ fees are comprehended under the wording of the bond in question here.

In Cameron v. Barcus, the bond was conditioned to save harmless against any claims pnder a certain insurance policy “and any and all damages, costs, charges, or expenses, actions or suits, whether groundless or otherwise” — clearly different from and more comprehensive than the conditions of the •bond in question here.

In Employers’ Indemnity Corporation v. Bank, the bond was conditioned to save harmless “against all loss, damage, liability, expense, or costs, by reason or on account of” a certain suit then pending in a federal court. In that case the Western Casualty & Guaranty Company, as principal, and Western Indemnity Company of Dallas, as surety, made said bond to the Security National Bank of Dallas for the purpose of indemnifying the bank against any loss or damage by reason of said suit. The Western Indemnity Company (surety) disposed of its assets and liabilities to the Employers’ Indemnity Corporation, and ceased to do 'business.

After the termination of the litigation in the federal court, the Southwest National Bank (which had succeeded to all the rights of the Security National Bank, obligee in said bond) paid Messrs. Leake & Henry, its attorneys therein, the sum of $5,000 for their fee, ■and brought suit to' recover' same, together with $500 attorney’s fee paid to its attorney “in the present litigation.”

The Court of Civil Appeals held that the attorney’s fee to Leake & Henry was a “damage” and “expense” covered by the bond, and the expense for attorneys’ fees “incurred in the present suit resulted directly from the action in the federal court and is also recoverable under the bond.”

The Supi’eme Court granted writ of error, and, on reference to the Commission of Appeals, Judge Nickels held that the fee to Leake & Henry was incurred before the execution of the bond, was a liability of the Western Indemnity Company, anteriorly incurred, that it grew out of the litigation in the federal court, and was included in the assumption of all the liabilities of said company by the Employers’ Indemnity Corporation, expressly Undertaken, but the recovery of the $500 item was unwarranted, and the judgments of the district court and Court of Civil Appeals were reversed to that extent; in other words, the holding was that, while liability existed as to the fee of Leake & Henry by virtue of its payment having been assumed as one of the liabilities of the Western Indemnity Company, recovery could not be had, on the bond, for the attorneys’ fee of $500 incurred in a suit for the recovery of the Leake & Henry fee.

In Eller v. Erwin the facts were: Erwin indorsed the promissory note of Eller to C. C. Slaughter, in the sum of $500 (principal). To indemnify Erwin, Eller and his two brothers executed to Erwin two promissory notes, each for $2,500, with interest and the usual obligation for 10 per cent, attorney’s fee. Bach note contained the following clause: “But this will not become payable or negotiable, except for such amounts that J. C. Erwin may lose through Indorsement of R. 0. Eller note to 0. C. Slaughter.” When the note to Slaughter became due, Eller was unable to pay it, and the same parties, in renewal thereof, executed a new note in the sum of $5,676.-89 payable to Slaughter. This renewal note ■was not paid by Eller, at its maturity, and Slaughter brought suit thereon. Eller, the principal, was hopelessly insolvent, which fact was known to Erwin as well as his attorneys, and, acting on their advice, a compromise was secured by which Erwin, on payment of $647.90 to Slaughter, was released from further liability on said note. At the consummation of the compromise, Erwin paid ■all the costs and expenses chargeable to him, which expense, with an attorney’s fee amounting to $500 and the sum of $647.90 paid to Slaughter, aggregated $1,285, and then instituted suit to recover such amount, based upon the two indemnity promissory notes for $2,500 each, above described. The Court of Civil Appeals correctly held that the indemnity notes included such an amount in the aggregate as was necessary to have indemnified Erwin from loss. The indemnity notes fixed the same amount obligated thereby as the Slaughter note, and included the express agreement to pay attorneys’ fees, conditioned that the amount of indebtedness and attorneys’ fees be limited to the loss Erwin might sustain by reason of his indorsement of the note to Slaughter. Such loss, of course, means the amounts he would have to pay thereunder, including the attorneys’ fee.

Those cases, with their different facts, are not authority here, nor is South Knoxville Brick Co. v. Empire State Surety Co., 126 Tenn. 402, 150 S. W. 92, Ann. Cas. 1913E, 107, where claim for counsel fees was based upon an express provision of an indemnity policy to defend suits against the assured; the company refused to do so, and the assured successfully resisted the claim there in question, employing attorneys for that purpose. The court correctly held that under the indemnity contract he could recover.

We conclude that the trial court correctly denied any recovery against Southwell & Abbott, because of their discharge in bankruptcy, and correctly rendered judgment in favor of the plaintiff and interveners against the American Surety Company for the respective amounts claimed by them, and the Court of Appeals erred in reversing said judgment in that respect; we conclude further that the trial court erred in rendering judgment in favor of T. B. Ellison against the American Surety Company for the recovery of $750 attorney’s fee, and that the Court of Civil Appeals correctly reversed and rendered that portion of said judgment.

We therefore recommend that so much of the judgment of the Court of Civil Appeals as denies any said recovery for attorneys’ fees be affirmed, but, in all other respects, said judgment be reversed, and that of the district court be affirmed.

GURETON, C. J.

Judgment of the Court of Civil Appeals in part affirmed, and in part reversed, and that of the district court in part affirmed, as recommended by the Commission of Appeals.


author: CHRISTIAN, J. PER CURIAM. LATTIMORE, J.

text:
    BRYANT v. STATE.
    No. 15473.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, Tex., and John N. Cook, of Texar-kana, Ark., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for twenty-five years.

H. M. Brock, the injured party, was cashier of the Cotton Oil Company of Texarkana. About two years before the robbery appellant had had a transaction with Mr. Brock, in which he had bought some cotton-seed hulls. It appears that Mr. Brock had not seen appellant since tlie occasion last mentioned until the day of the robbery. Touching the circumstances surrounding the commission of the offense, Mr. Brock testified on direct examination, in substance, as follows: He was in his office at work when appellant entered the room, held a pistol on him and directed him to “stick ’em up.” Appellant was holding the pistol in his left hand and in his right hand he. had .a four or five pound paper bag. Complying .with appellant’s request, the witness put his hands up. Appellant handed him the paper bag, directing him to get the money out of the safe and put it in the bag. Complying with appellant’s request, he placed thirty or forty dollars In the bag, and handed it to appellant. At this point we quote the testimony of the witness as follows: “I had the sack in my left hand. At the timo I handed him the sack he was standing three or four feet, from the safe, — hardly that far. I was standing between him and the safe. He was hardly .that far, (indicating). I could reach him when I' turned. When I handed him the sack I handed it to him with my left hand. When I handed him the sack he reached out and took hold of it. He took the sack with his right hand. I said that he took the sack when I handed it to him. You ask me what I did with the sack. I turned to hand it to him. Yes,. I handed it to him. * He took hold of the sack, — we both had hold of the sack. * ⅝ I turned loose of the sack. I did" that, after he took hold of it. The pistol during that time was in his left hand pointing at me. During the time this was going on he was cursing me and telling me he was going to kill me and trying to intimidate me I would think. Yes, he was cursing me and telling me to hurry. * * * Well at the time I handed him the sack I grabbed the gun and struck him, with my left hand. I grabbed the gun with this hand (indicating) and turned the sack loose and hit him on the chin enough to start him backward and across the desk, the typewriter desk and flat top desk. I grabbed the gun with my right hand. When I grabbed the gun we went over the desk. I was right against him. We had the gun, he in his left hand and I with my right hand, which discharged and went through my index finger of my right hand. I got the gun away from him and hit him over the head with it. * * The sack with the money in it was lying there on the desk and went with us as we went over. After I got the gun out of his hand and hit him I told him I was going to kill him and he begged me not to, — I don’t know, — I hit him over the head again and Mr. Hunt walked in. ⅞ * * I the money that was in the sack and put it back in the safe. * * * You ask me why I got the money and gave it to him, — because he had a gun on me and told me to or he would kill me. I was in fear of my life or bodily injury or I would not have given him the money.”

On cross-examination the witness testified that when appellant entered the room and pointed the pistol at him he told appellant to come around in the office, having in mind at the time not to let appellant get the money, but to keep him from it; that lie did not determine to take hold of appellant in an effort to recover the money until he was handing appellant the sack. We quote from his testimony on cross-examination, in part, as follows: “As he reached and took hold of the sack we both had hold of the sack for a split second, naturally. When he got hold of the sack, at the same time I grabbed the gun. You ask me if it is not true that I did not turn loose of the sack until I grabbed the gun-. Well, this all happened within a split second, the whole movement. As far as I recollect now when he reached out for the sack I undertook to hand him the sack and in that very same act I grabbed for the gun. That was when I saw my opportunity. ⅜ * ⅞ When I handed him the sack and he took hold of it, naturally both of us had hold of it for a short time together. At that very same time, while we both had hold of the sack, that is when I grabbed the gun and turned loose, within the next split second, the sack and hit him with the hand that had the sack.”

On redirect examination the witness testified as follows: “He just reached over the back and got hold of the money like this, (indicating). At the same time I did like this (indicating) and we went over the desk. After I hit him with my left hand, he had hold of the money when I turned it loose. You ask me if I left it in his right hand. That is the hand he took hold of it with. When I hit him with my left hand I had then turned the money loose. At the time I hit him with my left hand he had hold of the money I presume. You ask me if I know where it was. I turned the money loose as he took hold of it. That was the last time I had my eyes on the money. The next time I saw it it was lying on this desk.”

Appellant insists that the evidence is insufficient to support a conviction for robbery, his position being that the proof fails -to show that the money was brought under his dominion and control. The court submitted a charge covering the law of assault with intent to rob. Pursuant to appellant’s request, the court instructed the jury as follows: “Now unless you believe from the evidence beyond a reasonable doubt that the defendant, Johnnie Bryant, actually secured the absolute dominion or the absolute control from H. AT.' Brock, of the sum of ($30.00) thirty dollars in money, or any sum of money on or about the 24th day of December, 1931, as alleged in the indictment, you will find the defendant not guilty of robbery and so say by your verdict.”

In his Annotated Penal Code, section 2427, Mr. Branch states the rules as follows: “To constitute a taking, the property must be brought under the dominion and control of the defendant with power to take it into his manual possession; if the property is attached to the owner or to something else the taking is not complete if the attempt to take it is interrupted before it is severed or detached.”

In support of the text the following authorities are cited: Rodriquez v. State (Tex. Cr. App.) 71 S. W. 596; Tarrango v. State, 44 Tex. Cr. R. 385, 71 S. W. 597; Herr v. State, 52 Tex. Cr. R. 53, 105 S. W. 190; Walters v. State, 56 Tex. Cr. R. 10, 118 S. W. 543; Clark v. State, 59 Tex. Cr. R. 246, 128 S. W. 131, 29 B. R. A. (N. S.) 323.

We deem the evidence sufficient to support the finding that appellant had brought the money under his dominion and control. The injured party testified, in effect, that he delivered the money to appellant because he was afraid he would shoot him. He testified, further, that he handed the money to appellant and turned loose of the sack at the time he grabbed the pistol in an effort to recover the property.

Appellant testified that he had been drinking whisky on the occasion of the robbery and that he lost consciousness. He said he had no recollection whatever of having committed the offense. Officers arresting appellant testified that they smelled no whisky on appellant’s breath. Witnesses for appellant said that they went to the jail immediately after appellant’s arrest and that he appeared to be drunk. They testified that they smelled whisky on his breath. - Members of appellant’s family testified to acts and conduct on his part since childhood evidencing a retarded mental development. They said that he had received a lick on the head when' he was a child. A physician who had examined appellant stated that appellant had probably been insane since childhood. He said that appellant’s mind was that of a twelve year old boy. .He was of the opinion that appellant did not know the difference between right and wrong at the time he committed the offense. He testified: “If he was insane on that particular day it is impossible to say when he became insane. At that time he still had his fundamental insanity. You ask me if at that time he was sane or insane. He has had his fundamental insanity for years.”

The evidence further raised the issue that appellant became temporarily insane when he used intoxicating liquor.

Appellant made no effort to have the issue of general insanity submitted to the jury. On the contrary, he desired that the court submit only the issue of temporary insanity. On the issue of temporary insanity, the court instructed the jury that “the defense of temporary insanity is established when it is shown by a preponderance of the evidence that at the time of committing the act the mental condition of the accused was such as to deprive him of a knowledge of the right and wrong of the act or acts of which he is charged with having committed.” Further, the court instructed the jury that neither intoxication nor temporary insanity produced by the voluntary recent use of ardent spirits constituted any excuse or defense to the commission of crime, but could only be considered by the jury in mitigation of the penalty. However, in the same connection the jury were charged as follows: “Yet if the accused is in any degree mentally impaired or infirm, and such impairment or infirm condition of his mind was stimulated or aggravated by the use of intoxicants to such an extent as to cause the accused to become temporarily insane, as that term has hereinbefore been defined to you, then such temporary insanity if found by the jury by a preponderance of evidence, to have existed at the time of the commission of the offense or offenses, will excuse or justify the act or acts alleged to have been committed by the accused. Now if you believe from a preponderance of evidence that the defendant, Johnnie Bryant, at the time of the alleged robbery, or at the time of the alleged assault with intent to rob, was temporarily insane, as the result of an impaired or infirm condition of mind, or as a result of a combination of an impaired or infirm condition of mind and intoxication, to the extent that he did not know right from wrong, or the nature and quality of his acts, then you will acquit the defendant and say by your verdict not guilty.”

Appellant sought to have the court instruct the.jury, in substance, that if temporary insánity is the result of the recent use of ardent spirits, which the accused on account of an “impairment or enfeeblement to that part of the mind known as the will power” was unable to resist or to know the effect of such intoxicating liquor, then that such temporary insanity would excuse and justify the acts constituting the offense, even though such temporary insanity was produced by the recent use of ardent spirits. We deem this charge to embody an incorrect proposition of law, and express the opinion that the court amply protected appellant’s rights in his charge on temporary insanity. Of course, if appellant had sought a charge on general insanity it would probably have been error to have refused it, but he did not want such an instruction, but desired only a charge on temporary insanity. The instruction on temporary insanity hereinbefore quoted was a substantial copy of one of appellant’s requested charges on the subject.

In his objection to the court’s charge appellant urged that the charge was insufficient, in that the jury were not instructed that temporary insanity might be produced by a weak and infirm condition of the mind independent of intoxication. It is observed that in the court’s charge the jury were instructed as follows: “Now if you believe from a preponderance of the evidence that the defendant Johnnie Bryant, at the time of the alleged robbery, or at the time of the alleged assault with the intent to rob, was temporarily insane, as a result of an impaired or infirm condition of mind, or as the result of a combination of an impaired or infirm condition of mind and intoxication, to the extent that he did not know right from wrong, or the nature and quality of his acts, then you will acquit the defendant and say by your verdict ‘not guilty.’

It is apparent from a reading of the foregoing charge that the jury were expressly advised to acquit appellant if they believed he was temporarily insane “as a result of an impaired or infirm condition of mind.’’

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.

HAWKINS, J., not sitting.

On Motion for Rehearing.

LATTIMORE, J.

Robbery and theft are of the same family ; violence, or the threat of same, in order to obtain property, being about the only difference. Reese v. State, 91 Tex. Cr. R. 457, 239 S. W. 619.

By article 1412, P. C., asportation of stolen property is made unnecessary, and it is said therein that if such property has been in the possession of the alleged thief but for a moment- — even though not moved from the presence of the owner — this is a taking, under our theft laws. Appellant insists that he at no time took the alleged stolen property into his possession. We think the record is against him on this point. Clearly the sack containing money of the owner passed completely into the possession of appellant, though this is not required under the authorities. The testimony quoted in ohr original opinion shows that after putting the money in said sack, in accordance with appellant’s demand, the owner handed it to appellant with his left hand. Appellant took hold of the sack which was then at once completely released to appellant by the owner, who testified that he grabbed for appellant’s gun with his right hand and struck appellant with his left hand. The owner testified: “I turned the money loose.”

We fail to see any benefit to appellant arising from the owner having his mind made up not to let appellant get away with the money if he could prevent it. The guilt of appellant is based on his own acts and his own frame of mind, not those of the owner. If appellant assaulted and, by said assault and violence, induced the owner to deliver to him for a moment the money of said owner, the case would be made out. See Harris v. State, 29 Tex. App. 101, 14 S. W. 390, 25 Am. St. Rep. 717, and cases therein cited. This case has been approved in numerous instances to be found in the citators. See, also, Jarrott v. State, 108 Tex. Cr. R. 427, 1 S.W.(2d) 619.

We have reviewed the charge of the court on temporary insanity and think it both fair and favorable to appellant.

The motion for rehearing will be overruled.


author: MOBBOW, P. J.

text:
    HOLLEY v. STATE.
    No. 15399.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Rehearing Denied Jan. 11, 1933.

      J. Webb Stollenwerck, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   MOBBOW, P. J.

Tbe conviction is under chapter 108, Acts of 41st Legislature (1929) Begular Session (Vernon’s Ann. P. C. art. 1442b) denouncing tbe offense of theft of domestic fowls and prescribing tbe penalty.

Appellant entered a plea of guilty, and tbe jury assessed against bim a penalty at confinement in tbe county jail for 100 days.

The appeal is based upon tbe contention that tbe evidence is insufficient to support tbe verdict. Tbe entry of a plea of guilty* concedes tbe guilt of tbe accused, and tbe purpose of the reception of evidence is to give tbe jury information upon which to measure tbe penalty within tbe terms of tbe law. See Bennett v. State, 98 Tex. Cr. R. 661, 267 S. W. 987; Anderson v. State, 118 Tex. Cr. R. 194, 42 S.W.(2d) 1012. The sufficiency of tbe evidence to show guilt becomes important only when tbe evidence shows tbe innocence of tbe accused. See Phillips v. State, 99 Tex. Cr. R. 189, 268 S. W. 735. Tbe penalty authorized by statute is confinement in the penitentiary for not more than two years, confinement in tbe county jail for not more than 100 days, a fine of not more than $200, or both such fine and imprisonment in jail.

Tbe evidence adduced upon tbe present trial is not regarded as demonstrating tbe innocence of the accused of tbe offense charged.

Tbe judgment is affirmed.


author: LATTIMOBE, J. MOBBOW, P. J.

text:
    HINDS v. STATE.
    No. 15396.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Rehearing Denied Jan. 11, 1933.
    Ben L. King, of Burnet, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMOBE, J.

Conviction for assault with intent to murder; punishment, two years in the penitentiary.

Tbe facts in this case are sufficient to justify tbe jury’s conclusion that appellant cut Marton Busk, inflicting a wound across bis stomach some eight inches in length, going through tbe walls of the stomach. There appears to have been no evidence introduced on behalf of appellant. The only bill of exception found in the record complains of the introduction of a knife before tbe jury. Tbe bill is qualified at length by tbe trial judge. Tbe facts in testimony, as well as those recited in the qualification of the court, make apparent tbe fact that no error was committed in tbe introduction of the knife in evidence. There are no exceptions to the charge of the court, and no other complaints of procedure.

Tbe judgment will be affirmed.

On Motion for Behearing.

MOBBOW, P. J.

-In bis motion for rehearing, appellant contends that the evidence does not support a greater offense than aggravated assault. The evidence is to the effect that Marton Busk, a youth nineteen years of age, was wounded by tbe appellant with a knife, the blade of which was about three inches long. According to tbe doctor, tbe wound was across tbe lower part of the abdomen. It was about eight inches in length and passed through into the hollow for a half or three-quarters of an inch. Tbe attending physician stated that in tbe absence of infection the wound was not one likely to produce death. The knife was estimated to be about four or four and a half inches long, including tbe blade. One witness gave testimony that tbe blade was about three- inches long. Tbe knife blade was sharp and pointed.

Tbe appellant did not testify, but his motive and intent were to be gathered by tbe jury from tbe evidence introduced before them.

The charge of the court is unexceptionable, giving to tbe accused the full benefit of the law applicable to the various grades of the offense. On the facts before us, this court ■would not be justified in bolding that the jury was not authorized to determine that the knife as used was a deadly weapon, and that it was used in a manner such as to justify the jury in concluding- that the intent was to kill.

The court having, in its charge, fairly and. fully presented to the jury for solution all questions of fact which were raised by the evidence, including the issue of aggravated assault, and the jury having found that the appellant was not actuated by malice but that he used a deadly weapon with intent to kill Marton Rusk, this court finds itself unable to conceive of any tangible legal basis upon which to hold that the' verdict rendered and approved by the trial judge was not authorized by the facts and the law. We have ■been referred to no precedents supporting the appellant’s theory and have perceived none. However, the number of cases upon the subject found in Vernon’s Ann. Tex. P. C. 1916, vol. 1, p. 596, precludes any discussion of them in detail.

Upon the record before us, we are constrained to overrule the motion for rehearing, and it is so ordered.


author: CALHOUN, J. LATTIMORE, J.

text:
    GARZA et al. v. STATE.
    No. 15410.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Rehearing Denied Jan. 11, 1933.

      E. T. Yates, of Brownsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, conspiracy to commit the crime of murder; appellants’ punishment fixbd at 10 years each in the penitentiary. Pen. Code 1925, § 1622 et seq.

The record is before us without a statement' of facts. Appellants filed a motion in arrest of judgment, and among the grounds set up in arrest of said judgment and by bill of exception No. 3 was that the indictment filed in this case and on which defendants were tried states no offense against the laws of this state. We perceive no merit in the' motion. The indictment charged, omitting the formal parts, that “Francisco Garza, Jesus Gomez, and Dolores Maroquin on or about the 17th day of December A. D. 1931, and anterior to the presentment of this indictment, in the County of Cameron, State of Texas, did then and there unlawfully conspire, combine, confederate and enter into a positive agreement with each other, voluntarily and with malice aforethought, to kill and murder Paula Cavazos Garza.” The allegations in the indictment are substantially in conformity with the statutes defining the offense of conspiracy to commit a felony. See Wilson’s Crim. Forms, § 703; also Branch’s Ann. P. C. §§ 2677 and 2678.

Appellants in their motion in arrest of judgment and by bills of exceptions Nos. 1 and 2 contend that article 1626 of the Penal Code is unconstitutional under sections 3 and 13, article 1, of the Constitution of this state. We have examined said motion and bills and find no merit in said contention.

Bill of exception No. 4 complains of the refusal of the trial court to instruct the jury to find the appellants not guilty because of the insufficiency of the evidence. We cannot pass upon the sufficiency of the evidence in the absence of a statement of facts.

Bills of exception Nos. 5, 6, 7, 8, and 9 complain of certain sections of the court’s charge to the jury. There were no specia.. instructions requested, and the objections to said charge now being urged by said bills were not raised at the time of the trial by written objection to the court’s charge, as required by article 658, C. C. P. 1925, hut were for the first time complained of on the motion for new trial. This was too late. See Lawson v. State, 114 Tex. Cr. R. 65, 24 S.W. (2d) 412; Marshburn v. State, 115 Tex. Cr. R. 523, 28 S.W.(2d) 135; Faulkner v. State, 104 Tex. Cr. R. 378, 283 S. W. 824; Redford v. State, 98 Tex. Cr. R. 42, 262 S. W. 766.

Bill of exception No. 10 complains of the state being allowed to ask the defendant Dolores Maroquin certain questions on her cross-examination after she had testified on direct examination in her own behalf. Bill of exception No. 11 complains of certain questions asked the defendant Jesus Gomez by the state after the defendant Jesus Gomez testified on direct examination in his own behalf. Bill of exception No. 12 complains of thq state being allowed to ask the witness Paula Garza certain questions on the grounds that said questions were leading.

All of the last three bills of exception are in question and answer form, and contain the remarks of the court and attorneys, and are not accompanied by certificates of the trial judge showing the necessity therefor in order to elucidate the facts or questions involved, and therefore cannot be considered. Salinas v. State, 113 Tex. Cr. R. 142, 18 S. W. (2d) 663; Kelly v. State, 112 Tex. Cr. R. 514, 17 S.W. (2d) 460; Bindley v. State, 112 Tex. Cr. R. 468, 17 S.W.(2d) 47.

Finding no reversible error in the record, 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.

LATTIMORE, J.

Since the original opinion herein was handed down, exceptions properly taken to the court’s charge, which were misplaced without apparent fault of the defense, have been discovered in the files of another ease in his office, by the clerk of the trial court, who certifies to such fact as well as that such' exceptions were duly_ taken and approved. These exceptions are now before us, and are considered along with other matters complained of in appellant’s motion for rehearing.

As we understand said exceptions, the first, second, and fifth complaint is that the court below failed to tell the jury in the charge that by the expression in the law of conspiracy, as follows, “Enter into an agreement,” and also that by the use of the same expression in the charge, was meant that the agreement must be between the defendants themselves. The language of article 1622, P. 0., defining the offense of conspiracy, merely says that a conspiracy is an agreement entered into between two or more persons to commit a felony. We think, in the absence of any statement of facts in this case showing the opposite, that to follow the language of the statute both in the indictment and the charge, in a case like this one, would be sufficient. Nothing in the record suggests that the conspiracy, if any, entered into between the parties accused was not between themselves, but was in fact between others. The use of the word “between” appears to sufficiently indicate that the conspiracy charged to have been entered into was between themselves.

We cannot appraise complaints of the charge for failure to tell the jury that the threats by parties could not make out this case. We would have to have before us a statement of the facts.

If facts brought up here showed only an agreement entered into between two of the defendants, to which the others were not privy or participants, and the trial court had charged as he did in this case, in which three people were on trial, that if the jury believed beyond a reasonable doubt that the defendants, or any two of them, entered into a positive agreement to kill G, the jury should find all the parties guilty, this court would reverse the case; but where no facts are before us to which we might look to see whether the agreement referred to by the court in the charge, and known to the jury from the testimony to have been entered into, was between all of the parties defendant, we must conclude that the rights of the appellant were not prejudiced by the charge given. There is no complaint either by exception to the charge, or objection to testimony, or in the motion for new trial, that as to any one .of the parties there was lack of proof of his participation in the agreement referred to. We are forbidden by statute (Code Or. Proc. 1925, art. 666) to reverse cases for errors in the charge unless there appear some possibility of injury.

The motion for rehearing will be overruled.


author: CALHOUN, J. PER CURIAM. MORROW, P. J.

text:
    MORELAND et al. v. STATE.
    No. 15374.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.
    Arthur Lee Moore and Tom McMurray, both of Fort Worth, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The appeal is from a final judgment upon forfeiture of a bail bond.

From the finding of the facts which were filed in response to an application of the appellants, it appears that the defendant was indicted under the name of T. R. Moreland. The offense was transporting liquor capable of producing intoxication. He was arrested and on the 9th day of May, 1931, entered into a bail bond, said bond being approved on May 11, 1931. T. A. Moreland and T. R. Moreland being one and the same person. It appears that the case was originally set for trial on June 11, 1931, and on said date the state announced ready for trial and defendant failed to appear in person or by attorney. The court ordered the clerk verbally to issue an alias capias for said defendant, which alias capias was issued on June 11th and placed in the hands of the sheriff of Johnson county. While said alias capias was actually issued, no actual forfeiture was taken on the bond at that time and no judgment nisi was taken or entered, but the case was postponed until June 24, 1931, at which time the case was again called for trial and the state announced ready for trial. The defendant was again not present either in person or by attorney and the court ordered the bond of the defendant forfeited and so noted said order on his trial docket and at the same time ordered an alias capias issued as provided by law. It appears from said finding that no judgment nisi was ever actually entered in the minutes of the court on this forfeiture and no alias capias was actually issued at this time for the reason that an alias capias had previously been issued on June 11, 1931, and had never been returned. It appears that on June 27, 1931, Arthur Lee Moore, one of the defendants in this case and the attorney for the remaining defendants, appeared in open court and presented a doctor’s certificate showing that the defendant had been injured and was sick and was physically unable to have been in attendance upon the court at the time of the forfeiture of the bond on June 24, 1931, and was still unable to be in court on June 27, 1931. The court agreed to set aside the forfeiture theretofore entered and entered the following order on his trial docket on June 27, 1931, “Forfeiture set aside. Defendant’s motion for continuance heard and granted.” It further appears from the finding that the sheriff of Johnson county went to Fort Worth, Tex., and found the defendant T. R. Moreland in a certain house in Fort Worth and carried him to the office of Arthur Lee Moore, an attorney in the city of Fort Worth and one of the defendants in this case, where a second bond was entered into by the said T. R. Moreland as principal, O. H. Simpson and L. H. Middleton as sureties. The said bond was entered into on June 27, 1931, and approved on the same day. The defendant Moreland was not brought to Johnson county, Tex., and it was not shown by the record that the taking of said second bond in Tarrant county, Tex., on the 27th day of June, 1931, occurred before or after the forfeiture on the first bond was set aside on the 27th day of June, 1931. The court finds that, after the forfeiture of the bond on June 24, 1931, he told said Moore to enter into a new bond, but further states in justice to himself that he has no recollection whatever of having made this statement, but makes this finding on the testimony of the said Moore; that at the time of the forfeiture of the first bond, dated May 9, 1931, on November 18, 1931, the court had no personal knowledge that a second bail bond had been filed in court.

On the 18th day of November, 1931, the defendant T. R. Moreland failing to appear either in person or by attorney, the original bond signed on May 9, 1931, was forfeited by the court and nisi judgment was regularly entered on the minutes of the court.

On March 18, 1932, final judgment was en-teréd against T. R. (T. A.) Moreland as principal in the sum of $1,000 and against his sureties, John F. Shaw, George O. Busey, and Arthur Lee Moore, in the sum of $1,000 jointly and severally.

The judgment is attacked on several grounds, among which is the following: “An entry on the court’s trial .docket forfeiting the bond in question having been entered, which order was subsequently set aside and the defendant ordered to enter into another bond, defendant having been arrested and having entered into another bond, which was taken and approved by the sheriff of Johnson county, the trial court erred in subsequently entering a judgment forfeiting the ■bond in question for the subsequent nonappearance of the principal, instead of entering a judgment forfeiting the second bond given.” The cases nearest in point in favor of the contention made by the appellants are Peacock v. State, 44 Tex. 11; Lindley v. State, 17 Tex. App. 120. The general proposition announced in those cases is in effect that the sureties on a bail bond are relieved from liability by a second arrest and bail of their principal on the same indictment and in each case the judgment nisi was set aside while the accused was in custody after default and rearrest and was subsequently released on a new bond with different sureties. The court held that the sureties on the first bond were not liable for the reason that they were released by the order of the court annulling the judgment nisi while the accused was in custody under his second arrest.

The soundness of the proposition advanced by the.appellant must be tested by the facts to which it is to be applied. The alias capias upon which the defendant was arrested when he gave the second bond was dated June 11, 1931, prior to entry of any nisi judgment herein. The record shows that at the time the alias capias was ordered issued no bond forfeiture had been attempted or ordered. The statute provides that a capias may issue in a felony ease, first, when the indictment is .presented, article 443, O. C. P.; second, when a bail bond is forfeited, article 445, O. O. P.; third, sureties may obtain a warrant for the surrender of the principal by making an affidavit, article 285, O. G. P. None of these circumstances existed when the alias capias was ordered issued on June 11th. Further, at the time of the arrest on this capias the first bond remained in force because of the fact that the forfeiture taken on June 24th was áet aside on account of the sickness of the principal in said bond. It is provided by article 445, O. C. P., that where a forfeiture is declared upon a recognizance or bail bond, a capias shall be immediately issued for the arrest of the defendant, and, when arrested, he shall be required to enter into a new recognizance or bail bond unless the forfeiture was set aside under subdivision 3 of article 436, in which case the defendant and his sureties shall remain bound under his present recognizance or bail bond. Subdivision 3 of article 436 provides that the sickness of the principal which prevented his appearance in court shall exonerate the defendant and his sureties from liability upon the forfeiture taken. If the bond was really forfeited as required by law on June 24th, there is no question that such forfeiture was set aside on account of the sickness of the defendant. The first bond would not be discharged under the plain provisions of article 445, O. C. P. Defendant was entitled to his release without the making of a new bond and therefore his making the second bond was not required or provided for by law, he not being held in custody or jail and not even carried back to the county in which the case was pending. The opinion is therefore expressed' that his making this second bond, when not required or provided for by law, could not add to or take from the liability of the sureties on the first bond.

Appellant also contends that there is a fatal variance between the bond and the judgment nisi and final judgment in that the bond of the parties bound them for $1,000 jointly and severally, whereas the judgment was rendered against the principal in the sum of $1,00.0 and by and against the sureties for $1,1)00 each. This same question was raised in the case of C. J. Dunn et al. v. State, 53 S.W.(2d) 307, appealed from Midland county, and was decided adversely to the contention of the appellants in an opinion delivered March 30, 1931, and a motion for rehearing has since been overruled by this court. Reference is made to the opinion in said case for the question herein involved.

The appellant further contends that'the proof introduced by the state in this case was insufficient upon which to predicate final judgment in that no indictment was introduced in evidence showing that T. R. (T. A.) Moreland was indicted for any offense. In the case of McWhorter et al. v. State, 14 Tex. App. 239, it is held: “A proceeding upon a forfeited bail bond is in effect a suit upon the bond, in which the scire facias serves the purpose of both a petition and a citation. Its foundation is the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. To entitle the State to a judgment final, it must prove the cause of action as in a civil suit. This proof is made by, first, the bond; second, the judgment nisi declaring its forfeiture.” This holding was approved in the case of Martin & Neill v. State, 16 Tex. App. 265, in which it is held: “It was not necessary for the State to read in evidence either the indictment or the judgment of conviction had under it. It was only necessary for the State to show the recognizance and the judgment nisi declaring the forfeiture of the same.” Citing McWhorter v. State, supra; Arrington v. State, 13 Tex. App. 554. See, also, Cooper et al. v. State, 91 Tex. Cr. R. 289, 238 S. W. 658, 20 A. L. R. 410.

Finding no reversible error in .the record, 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.

HAWKINS, J., not sitting.

On Motion for Rehearing.

MORROW, P. J.

The contention of the appellant touching the claim that the execution of a new bond under the circumstances detailed in the original opinion renders the forfeiture of the bond upon which the judgment is entered unauthorized has received full consideration upon the original hearing, and the conclusion there reached is deemed sound. A further discussion of the matter is pretermitted.

The motion is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    WINFREY v. STATE.
    No. 15359.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Rehearing Denied Jan. 11, 1933.

      R. E. Eubank, of Paris, and McKinney & Berry, of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

Appellant made an application for continuance after the case had been postponed upon his request. This made it a second application. Several of the essential requirements for a second application were omitted. We observe, however, that the only witness named in the application was one Richardson, and the record shows that the court heard testimony warranting the conclusion that Richardson.was a fugitive from justice.

We find eleven other bills of exception, each of which has been examined. The case was not one on circumstantial evidence, the state witness testifying positively that he bought the liquor from appellant. At appellant’s request the court gav.e a special charge that if the jury found from the evidence that appellant’s brother, John Winfrey, sold the liquor in question to the witness Bridges, appellant should be acquitted. This obviated the necessity of giving the special charge complained of in bill of exception No. 2. The court having instructed the jury on the defense of alibi, it was mot necessary to give the special charge complained of in bill of exception No. 4. As supporting the proposition of a sale of liquor to the alleged purchaser, it was competent to prove that various parties made up a purse and turned the money ' over to said purchaser. There was no testimony as to any conversation accompanying said act. It appearing that one of the defensive issues relied upon was that the alleged purchaser may' have bought the liquor in question from a brother of appellant, and might he mistaken in his identity of appellant as the seller, it was proper to allow the state to introduce witnesses to testify that appellant and his said brother did not resemble each other in height, size, appearance, etc.

Appellant while on the witness stand offered to testify that he made inquiry of certain witnesses as to who Loyd Bridges was, Bridges being the alleged purchaser. The purpose of the inquiry was to lay a predicate for the introduction of the other witnesses whose testimony would thus appear to corroborate appellant in a claim that he did not know Bridges. The testimony would be self-serving and incompetent for the purpose intended. Bills of exception 11 and 12 are in question and answer form and for that reason cannot be considered.

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

On Motion for Rehearing.'

HAWKINS, J.

Appellant calls attention to a statement in our original opinion to the effect that his second application for continuance names only the witness Richardson. The application is rather unusual in form. In the first paragraph Richardson only is named, but we find from the third paragraph that the application was also predicated on the absence of the witness Thompson, which we overlooked in disposing of the case originally. At a former day of the term the case had been postponed at appellant’s request. Therefore, the application we are dealing with was a second application. Tinker v. State, 99 Tex. Cr. R. 369, 269 S. W. 778; Brannan v. State, 108 Tex. Cr. R. 418, 1 S.W.(2d) 279. One requisite of such an application is an averment that the absent testimony “cannot be procured from any other source known to defendant.” Article 544, C. C. P. There is an entire absence of any such statement in the application before us. This is fatal. Tinker v. State, supra; Brannan v. State, supra ; Bascom v. State, 114 Tex. Cr. R. 32, 24 S.W.(2d) 437; Davis v. State, 110 Tex. Cr. R. 605, 10 S.W.(2d) 116. The application contained an averment that issuance of process for Richardson and Thompson had been. requested, but it failed to show that process was issued, or what became of it. This showing was necessary. Buie v. State, 1 Tex. App. 455 ; Branch’s Ann. Tex. P. C. § 315; Collins v. State, 114 Tex. Cr. R. 673, 26 S.W.(2d) 1074; Best v. State (Tex. Cr. App.) 28 S.W.(2d) 803;' Holder v. State, 116 Tex. Cr. R. 316, 31 S.W.(2d) 637. By reason of the defects in the application the court would have been warranted in denying the continuance upon the face of the application itself, for it really furnished no proper basis for the investigation which the court máde after the state filed a controversy. Prom the evidence heard and brought forward in the bill, we think the court would have been justified in reaching the conclusion that Richardson was a fugitive from justice and that Thompson resided in another state.

We have again examined the other questions adverted to in appellant’s motion. We think they were properly disposed of orig-nally.

The motion for rehearing is overruled.


author: LATTIMORE, J. MORROW, P. J.

text:
    HOWARD v. STATE.
    No. 15069.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Jan. 4, 1933.
    Upton & Upton, James Cornell, and R. G. Hughes, all of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary.

Prom this record we learn that deceased Burch herein shot and killed Jess Howard, father of appellant, about August 29, 1931, at San Angelo, Tex. Appellant was then in Arizona. He came at once home, and on September 10th following shot and killed Burch, who was sitting talking to Sharp. Appellant walked up, asked deceased if his name was-Burch, and, upon getting an affirmative answer, he fired. Deceased, who was unarmed, fled,.and appellant emptied his pistol at the-fleeing man, who was struck by several bullets. No defense was offered on the trial ex■cept that appellant was agitated by passion. He said he hardly knew what he was doing at the time.

But two bills of exception appear, neither ■of which presents error. The first set up ■complaint that appellant was not allowed to tell what a third party had told him regarding the wife and daughter of deceased, a matter wholly foreign to any issue in this 'case. The other complains of the court’s action in sustaining the state’s motion to strike from the record certain statements of the mother of appellant made by her on the hearing of the motion for new trial. We see nothing in the statements referred to which, if considered, could reflect on the fairness or impartiality of juror Jones, for which purpose alone same could have been admitted. There is nothing in this record supporting the proposition that juror Jones was unfair or prejudiced, or that he refused to answer any questions asked him on his voir dire, or that he then made false or misleading answers to any question asked. He stated that he knew appellant and his deceased father, but did not know deceased Burch. He was not asked if he knew the mother of appellant.

Appellant set up in his motion for new trial that there existed enmity and ill feeling against his mother on the part of juror Jones—but he nowhere avers that such feeling, if it existed, embraced himself, or that by reason thereof Jones was prejudiced against appellant, and we observe that the facts heard by the court when the motion for new trial was presented seem not to support either proposition. The only testimony offered by appellant even remotely suggesting any animosity or prejudice on the part of Jones toward appellant was that appellant’s mother had washed for Mrs. Jones some two years before this homicide, and that a misunderstanding then arose between the two women over some cheap article of clothing which was not returned with the laundry. Appellant had nothing to do with the matter, and knew nothing of it apparently. Touching the matter, Mr. Jones testified on the hearing of the motion for new trial that he never had any trouble with Mrs. Howard over the washing; that he knew his wife did have some trouble, but this was women’s matters which did not affect him. He further testified that he told his wife at the time it occurred that it was a closed incident and to have no words over it. We might observe, in line with our conclusion that the record fails to disclose that Jones was unfair, etc., that, when the jury retired, they unanimously voted that appellant was guilty, and on the first vote on penalty one man voted for twenty-five years, another for two years, while Jones and nine others voted for five years; this being the verdict of the jury. We find nothing showing that Jones exhibited malice, ill will, or prejudice against appellant while in the jury room. Nine jurors, including Jones, voted against suspending appellant’s sentence from the first. Two of the jurors who were for suspension of- sentence (Meers and Cox), were the only jurors offered on the hearing of the motion for new trial by appellant, and neither of them detailed any statement of Jones, or act of his, which showed animus on his part toward appellant. Jones and two other jurors were introduced by the state. All five of the jurors introduced upon the hearing of the motion for new trial voted at the beginning for a penalty of five years, and did not change.

Another ground for new trial advanced by appellant was that after retirement the jury received other testimony hurtful to him, but, as we read the statement of facts heard on the motion for new trial, same seems to consist of testimony that some one, not Jones, said in the jury room that Burch had sons, the size and ages of which were not mentioned, and further that Jones in the jury room said that at a time some two years before this killing Mrs. Howard, the mother of appellant, did the family washing for his (Jones’) family. Whether this was used or intended as of weight for or against appellant—or the connection'in which it was said— is not made to appear. Mr. Meers, witness for appellant, testified as follows: “The statements made by Mr. Jones that Mrs. Howard, the mother of the defendant, had washed for his wife was while the jury was deliberating on the whole case.”

Juror Cox merely said it was before the jury had arrived at a final verdict. Juror Rollins said he did not know what they were discussing when he heard Mr. Jones say that Mrs. Howard worked as hard as the rest of the family; that she took in washing, and had washed for his wife. Rollins further said that he did not hear Jones say anything derogatory of Mrs. Howard or the family. Juror Howell said he did not remember what was up for discussion when reference was made to the fact that appellant’s mother took in washing. He did not know until he got in the jury room that appellant’s mother bought groceries from Jones.and paid for same in washing.

Such matters, to call upon this court to reverse the judgment therefor, should he such as that reason and éommón sense can see that same were harmful to the accused, and we do not think the showing here sufficient.

We have here a ease in which nine men voted for a penalty of five years when the lowest punishment might have been two. The entire jury then came to the penalty voted for by the nine men. Also nine men then voted against suspending sentence. The entire jury came to an agreement on this view. Now, on the ground that in the jury room some one said that deceased had sons, and that one of the jurors who voted for five years and also voted against suspending the sentence at some time in the jury room said that the mother of the accused had washed for his family to pay a grocery bill, we are asked to hold these of probable or possible injury to the accused and to reverse the case. To the writer it occurs that knowledge of the poverty of the family, of the willingness of the mother thereof to do manual labor to help, would go far to induce grant of suspended sentence in order that the son, the accused in this ease, might render aid, if indeed such be in fact a consideration allowable under the supposed purpose and intent of the suspended sentence law. In other words, it appears to the writer that the statement made by Mr. Jones in the jury room would have more weight in favor of the accused than against him. That deceased had sons, their ages unknown, seems a matter of no moment. The general discussion had in the jury room, which was gone into extensively upon tire hearing of the motion for new trial, was apparently a matter of right for the indulgence of the jury and discloses no wrong.

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

On Motion for Rehearing.

MORROW, P. J.

In bill of exception No. 1 the following appears in substance: On cross-examination by state’s counsel, appellant said: “I heard that my father was talking.to Mr. Olendenen, and hadn’t seen him for a long time; that he went down to see Bill and sitting in a car and Mr. Burch said to him, ‘Jess Howard, you can’t talk like that in front of my women folks.’ ”

On redirect examination the appellant was asked by his counsel the following question:

“Please state what, if anything, Mr. John DeSpain, Special Investigator for the District Attorney’s Office, told you shortly prior to the homicide with which you stand charged, concerning, or with reference to the character and general reputation of Mrs. Burch and daughter, Katherine Burch ?”

Objection was urged by the state upon the ground that the testimony was not relevant, but was immaterial and related to a collateral matter. The court declined to hear testimony which, according to the bill, would have been as follows: “John DeSpain, Special Investigator for the District Attorney’s Office, told me a few days before I killed Mr. Burch that both Mrs. Burch, the wife of B. F. Burch, and Katherine Burch, the daughter of Mrs. Burch, were common prostitutes. He further told me that B. F. Burch solicited for both his wife and daughter and that he drummed up Negro and Mexican trade for each of them.”

We confess our inability to perceive the relevancy of the excluded testimony. Neither is the relevancy of the testimony shown by the bill to have been adduced by the state apparent. If the alleged conversation with De Spain was relevant to any issue in the case, the introduction of the subject by the state would have entitled -the appellant to introduce the remainder of the conversation upon the same subject. Such is the declaration of article 728, O. O. P. 1925.

In article 1257a, Vernon’s Ann. P. C., it is said: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship. existing between the accused and the deceased, together with all relevant facts and circumstances going to show the' condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”

The materiality of the purported declaration of Olendenen in the presence of the appellant, namely, “Jess Howard, you can’t, talk like that in front of my women, folks,” purported to have been uttered by Burch shortly before he killed the appellant’s father, is open to serious question. Manifestly, its relevancy does not appear from the bill of exception under discussion. The state having improperly introduced the testimony without any objection upon the part of the appellant, he would be in no position to complain that he was not permitted to make the improper, evidence a.predicate for introducing additional evidence of the same character.

In subdivision 9 of the syllabus in the case of Giebel v. State, 28 Tex. App. 151, 12 S. W. 591, it is said: “No rule of evidence will admit irrelevant, immaterial, and incompetent defensive testimony over the State’s objection, because without objection by the defense-the State was permitted to elicit irrelevant and immaterial testimony.”

The principle is also aifirmed in the ease of Scott v. State, 113 Tex. Cr. R. 265, 20 S. W.(2d) 426. See, also, Stone v. State, 91 Tex. Cr. R. 313, 239 S. W. 209; Burrier v. State, 112 Tex. Or. R. 137, 15 S.W.(2d) 642.’ A different rule would prevail if the improper testimony had come into the case against the-objection of the accused. See Branch’s Ann. Tex. P. O. p. 61.

The remarks hereinabove made are regarded as disposing of the legal questions raised in bill of exception No. 1. Booking to the statement- of facts, however, we are impressed with the view that no injury was done to the appellant by the ruling of the court of which complaint is made in the bill. It seems evident from the statement of facts that the appellant, learning that his father had been killed by Burch, formed the design to kill him. We learn from the appellant’s testimony that he was nineteen years of age; that, after an absence of two years, he came to his homo in response to a telegram that his father had been injured, and upon his arrival learned that Burch was the slayer of his father. Burch was in jail at the time, ^charged with the homicide. Appellant owned a pistol. Upon learning from his mother the details of the death of his father on Friday, he took his pistol from his suitcase and put it in the Drillers Club, which was owned by his father and another, where it remained until the following Thursday. Appellant, learning that Burch had been released from jail, went to the Drillers Club and got his pistol, and,, upon seeing Burch, fired the shots which killed him.

There is no suggestion in the record that the reputation of the family of the deceased for virtue and chastity was a matter of moment or that the appellant was actuated by any motive other than the fact that his father had been slain by Burch. It may be stated, however, that the view expressed by the appellant in his brief that, by virtue of the terms of article 1257a, Vernon’s Ann. P. 0., the testimony in regard to the appellant’s information relating to the reputation of the members of the deceased’s family for virtue and chastity is not regarded as sound. The article mentioned does not extend the rules of evidence touching the admissibility of facts bearing upon the state of mind of the accused in a case of homicide, but such testimony is governed by the rules of evidence in operation before the enactment of the provisions of the statute mentioned. This has been declared in several cases. See Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689; Russell v. State, 119 Tex. Cr. R. 469, 45 S.W.(2d) 622.

Bill of exception No. 2 reflects the complaint of the action of the trial judge in refusing to consider certain testimony which was offered by the appellant upon the hearing of the motion for new trial. The evidence in question was that of the mother of the appellant relating certain conversations and transactions which she had had with Jones and his wife. The proffered testimony was in substance that two years before the trial the wife of Jones accused the witness of failing to return an article which was among the clothing washed by the witness for Mrs. Jones, and that some hard feeling grew out ■of the controversy. The evidence of the witness was heard by the judge, and, when considered in the light of the other testimony given on the motion for new trial, the court’s conclusion that Jones was not a prejudicial juror is deemed correct.

The motion for new. trial embraces several matters, including the contention of the appellant that the testimony of certain jurors revealed misconduct of the jury demanding a new trial. Such alleged statements of juror Jones during the deliberation of the jury are relied upon. It appears from the record that the jurors, on their first ballot, were unanimous in their conclusion of the guilt of the appellant. Three members of the jury, however, favored a suspended sentence. The others, as understood, with one exception, perhaps, favored a penalty of confinement in the penitentiary for five years. The principal complaint relates to the alleged statements of juror Jones. His testimony, heard upon the hearing of the motion, was in substance as follows:

“I made the statement to the jury that I knew Mrs. Jess Howard and knew she was honest because she bought groceries from me and owed me a grocery bill and that she did our washing, to pay the bill and I knew that she was honest. I said that in the presence of the jury. * * *
“The occasion of my making that statement was that we were talking about the honesty of the boy and whether we thought it would be all right to give him a sentence and whether it would cause him to be harder when he came out than when he went in; they were discussing that. There was testimony that the boy sent his mother money, and I told the jury that she had bought groceries from me and washed to pay for the groceries. I told the jury that Mrs. Howard had washed for me after this testimony had been introduced that he had sent her money to support her.”

The whole contention, as understood, revolves around the alleged fact that juror Jones had disclosed in the jury room, during the deliberation of the jury, that at one time he had sold groceries to the Howard family and that Mrs. Howard had paid the bill by washing clothes for the wife of Jones. It is claimed that Jones had stated to the jury that there was ill feeling existing between Mrs. Howard and Mrs. Jones, wife of the juror. There was some discussion in the jury room as to whether the appellant had contributed to the support of his mother' and sister. Jones’ testimony was to the effect that there was no difference at any time between him and Mrs. Howard, and that he made no statement to the jury that there was any ill feeling between Mrs. Howard and Mrs. Jones. The other matter mentioned relates to the discussion by the jury as to whether the appellant contributed to the support of his mother. There was a slight conflict in the evidence given on the motion for new trial. That of Jones, if believed, exculpates him from any of the alleged misconduct. The appellant’s own testimony was to the effect that he had sent money to his mother during his absence, and this was not controverted, either in the jury room or on the trial, so far as we are able to ascertain. However, taking the testimony of the juror relied upon by the appellant and disregarding that relied upon by the state, it is thought that, in overruling the motion for new trial, the trial court was not in error. The matters relied upon as misconduct of the jury are not regarded as coming within the provisions of the law upon the subject which are set out in article 753, C. O. P. 1925. As stated above, the court was fully warranted in holding under the evidence that Jones was not prejudiced, and the discussion in the jury room is probably classified as being within the principle stated by this court in the case of Jack v. State, 20 Tex. App. 656, in which there is recognized as legitimate the practice of jurors debating upon matters properly bearing upon the trial and engaging in argument in their endeavor to solve any conflict of views that may be entertained by the individuals composing the jury. See Hallmark v. State, 89 Tex. Cr. R. 257, 230 S. W. 697; Todd v. State, 93 Tex. Cr. R. 553, see page 567, 248 S. W. 695; Vandorff v. State, 116 Tex. Cr. R. 448,-32 S.W.(2d) 468; Straley v. State, 106 Tex. Cr. R. 130, 290 S. W. 766. See, also, numerous cases cited in Shepard’s Tex. Citations, August, 1932, p. 70; also 20 A. L. R. page 1190, note.

The motion for rehearing is overruled.