text:
    JORDAN v. STATE.
    No. 15500.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Alee Johnson, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Receiving and concealing stolen property is the offense; penalty assessed at a fine of $150, and confinement in the county jail for a period of 100 days.

The indictment appears regular and regularly presented. There is no statement of facts before this court; nor are there bills of exception complaining of the rulings of the trial court.

The motion for new trial is unverified, and attempts to set up misconduct of the jury and other matters of fact. None of them are reviewable, in the absence of a statement of facts or bills of exception duly verified.

The judgment is affirmed.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    ALLEN v. STATE.
    No. 15319.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Max Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for maintaining and operating a pool hall; punishment, a fine of $40.

This case is here without an approved statement of facts in the record. The trial was had in the court below on January 6, 1932, and notice of appeal was then given. Affidavits are before us from appellant’s attorney, also the county judge and the county attorney who tried the case, bearing on the question as to whether appellant has been de: prived of a statement of facts, and suggesting that a statement of facts signed and sworn to as correct by appellant’s attorney, and filed by him with the county clerk within ninety days after notice of appeal, should be by us considered herein.

Without going into the matter set out in the affidavits, which would needlessly extend this opinion, we call attention to the fact that, while subdivision 1 of article 2240, Rev. Oiv. St. 1925, applicable at least in misdemeanor cases, indicates what should be the course of a trial judge when attorneys for the several parties do not agree as to a statement of facts, and separate statements of facts are presented to him signed by opposing counsel, still, inasmuch as it would be intolerable that the party appealing could be compelled to take his case up without a statement of facts because forsooth' the trial judge had refused to prepare one for no other reason than that the attorney for the other side had' refused to agree to or to sign and file with the trial court his statement of facts, in order to take care of such situation our lawmakers wrote in subdivision 2 of said article 2240, in substance, that the trial judge in a case where there was no stenographer must himself prepare and file a statement of facts when the party appealing has, within the time allowed for same to be filed and within fifteen days after adjournment of court, presented to such judge a statement of facts wherein he certifies over his signature that to the best of his knowledge and belief same is a full and fair statement of the facts proved on the trial, and that the state’s attorney refuses to agree to such statement of facts.

A statement of facts signed by appellant’s attorney and sworn to by him before the clerk of the trial court was filed in the court below on April 2, 1932. The date of the jurat to this, statement of facts is February 19, 1932, and same certifies over the signature- of appellant’s attorney that it is a full and fair statement of all the facts- proved on the trial to the best of his knowledge and belief, and that the state’s attorney declined to agree to same. Of this statement of facts', on April 2d, appellant’s said attorney made and filed an affidavit, the last paragraph of which is as follows: “And affiant certifies that the statement of facts submitted to the couny atttor-ney and the county judge in this cause, and now- on file in said cause, signed by him, is, to the best' of his knowledge and belief, a full and fair statement of all the facts proved on the trial of said cause, and said statement of facts was so certified to by defendant’s attorney when submitted to the court for approv-. al, correction or refusal.”

We find in the record that on March 4,1932, the trial court made an extension order which was carried into the minutes of his court, in which he certified that appellant’s attorney had submitted to both the county judge and the county attorney for approval or correction a statement of facts in the above case, and, “It being no fault of the defendant or defendant’s attorney,” the extension was granted. Tt is true that in what is called a “supplemental transcript” appears the affidavit of the county judge certifying that appellant’s attorney did, within the time for filing, present to him a statement of facts, a copy of which is attached to the affidavit. The learned trial judge, from the statement in his affidavit, seems of opinion that he had a right to refuse to prepare and file a statement of facts herein unless both appellant’s attorney and the state’s attorney had brought to him their separate statement of facts signed by them respectively. We think this not in accordance with the provisions of subdivision 2 of article 2240, supra.

In any event as we view the statement of facts signed and sworn to by appellant’s attorney and that which the trial judge certifies was presented to him by appellant’s attorney, their material facts are in substance the same, and our conclusion is that appellant appears to have made sufficient effort to have same approved and filed, and we have concluded that under the facts here same should be considered. We might under other facts reverse because the accused had been deprived of a statement of facts.

From said statement of facts it appears that appellant had a two-story house, in the lower part of which he ran a restaurant, the upper part being one large room which contained a pool table and other tables for playing games. Of this place appellant said he organized the “Working Man’s Recreation Club of Slaton,” and let them use this upstairs room. He said he had articles and by-laws drawn up, and was asked to “Have it put in my name, be the manager and run the thing.” Testifying he said: “I will read my by-laws to you.” Looking to said by-laws as they appear in the statement of facts we note that same state: “Know all men by these presents that I, John Allen * * * do hereby form a club * * * for the purpose of providing * * * a place where they can congregate,” etc. The place of business of the club, “On the property owned or controlled by John Allen.” The life of the club, “One yea.r, and may be discontinued or renewed ‘At the option of John Allen.’ ” Membership of the club, any one who had paid membership and held a card “Issued by John Allen.” The business of the club to be “Directed by John Allen, sole owner.” These articles were sworn to by John Allen alone. Without levity it might be remarked that, while appellant’s local sobriquet is shown by the record to be “Iron Jaw,” it might appropriately be “King-fish.” Appellant further swore that “We turn what money we have collected back to the club” (John Allen).

Under these facts the court charged the jury the exact statutory definition of a pool hall which is found in article 4668, Rev. Oiv. St. 1025, and told them that, if they believed beyond a reasonable doubt that appellant operated such pool hall, to find him guilty, otherwise to acquit him, and specifically told them that it would not be a violation of law for one to own or possess a pool table, unless the jury found beyond a reasonable doubt that same was used for hire, revenue, fees, or gain, or for advertising purposes. Under this charge and these facts the jury found appellant guilty, and we deem same to justify the verdict. Countee v. State (Tex. Cr. App.) 44 S.W.(2d) 994. We do not think appellant could justify his failure to prepare and bring forward bills of exception upon the ground that his statement of facts was not approved by the trial court. Most of the exceptions noted in his affidavit certainly would need no bills of exception to make them available if presented.

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


author: CHRISTIAN, J. LATTIMORE, J.

text:
    WEAVER v. STATE.
    No. 15249.
    Court of Criminal Appeals of Texas.
    June 15, 1932.
    Appeal Reinstated Oct. 12, 1932.
    G. C. Lowe, of Woodville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

The transcript filed in this court on February 27, 1932, shows that the motion for new trial was overruled November 5, 1931, and appellant sentenced on the same date. In this transcript is an amended-motion for new trial which appears to have been filed on December 5, 1931. The recognizance found in the transcript has no date, and there is nothing in the record by which we may ascertain when same was entered into. On May 4, 1932, a supplemental transcript was filed in this court. In this transcript it appears that the motion for new trial was overruled December 5, 1931, and notice of appeal given on the same date. The sentence shown in said supplemental transcript bears date December 5, 1931. The entries made on the court’s trial docket are brought forward in the supplemental transcript. These entries fail to show the date of the recognizance. As far as the record reflects the matter, the recognizance might have been entered into before notice of appeal was given. In the state of the record we are unable to determine whether the recognizance was entered into at the proper time. Hence it becomes our duty to dismiss the appeál. Gerlaeh v. State, 115 Tex. Cr. R. 132, 29 S.W.(2d) 349; Roth v. State, 115 Tex. Cr. R. 500, 27 S.W. (2d) 183.

Appellant is granted fifteen days from this ■date in which to perfect his appeal.

The appeal is dismissed.

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 to Reinstate Appeal.

LATTIMORE, J.

In a second supplemental transcript it is made .to appear that in the. recognizance entered into by appellant and his sureties, the date of the recognizance is set forth. The appeal will be reinstated, and the case considered upon its merits.

The evidence is in much conflict and presents a somewhat unusual case. Appellant and the prosecuting witness Ogden each had a number of hogs running on apparently the same general range. Ogden testified that one of his sows, which was unmarked, was missed by him in the summer of 1929, and that in December following she returned to his place, and when she came back she bore appellant’s mark. He also testified that not long afterward he met appellant in the woods and had a conversation with him regarding the sow in question. He said he told appellant that the sow was his and that she had been gone, and that when she came back she bore appellant’s mark. He further testified that when he made this statement appellant studied a little bit and said: “Tes, I marked a sow ; she came up to my place a time or two, and she was unmarked and I didn’t know whose she was, and I let her in the patch.” Witness said he asked appellant what he marked her for, and appellant said she needed marking, and he did not know that she was not his hog. He testified further that appellant said he did not know for sure whose hog it was, and that if witness claimed her he could have her back. The hog continued to run on the range, and it is shown by testimony that when appellant moved from that locality he gave a bill of sale to a man named Warren, selling him all hogs in his (appellant’s) mark, but especially excepting from the sale the sow in question.

Appellant introduced a number of witnesses who testified substantially that they were acquainted with appellant’s hogs, and had seen the sow in question, and that in flesh marks and color she corresponded with appellant’s hogs, and that they saw her with a bunch of appellant’s unmarked hogs during the fall of 1929, and that at that time she was running around in the neighborhood of appellant’s home with appellant’s hogs. One of these witnesses testified that he asked appellant why he had not marked this particular sow, to which appellant replied that he was waiting because he wanted to be sure that no one else claimed her. This witness said he told appellant that the hog in question fit in flesh marks with the others of appellant’s hogs; that witness thought she was appellant’s hog. Appellant’s father testified that he lived near appellant from some time early in 1929 until about September, and that the hog in question was running with appellant’s hogs all the time. Appellant’s wife testified that some time about the first of June the sow in question came to their place, and that she was about the right size to belong to a bunch of shoats of theirs which had gone away unmarked, and that they believed her to be theirs; that she was around their place regularly during 1929 running with a bunch of their hogs. Defense witness Hicks testified that he saw the hog in question running with a bunch of unmarked shoats and asked appellant why he had not marked her, and that appellant told him he was waiting; that he wanted to be sure. Witness told appellant that from the flesh marks that might be appellant’s hog. Appellant replied that he wanted to be sure; that he did not want to mark anybody else’s hog. Witness knew that appellant had a number of hogs that had gone away about a year or year and a half before, and that the sow in question could have .been a pig of one of those that left; that it fit with the flesh marks; and that witness thought it was Weaver’s hog. The defense introduced the county judge, who testified that along in the fall of 1929 appellant came to see him and told him that a bunch of his hogs had strayed away some time before, and that there was an unmarked sow out around his place that had flesh marks like his hogs, and that he was sure that it was one of his hogs, and wanted to know if it would be all right for him to mark her. Witness said that he advised appellant that if he was sure it was his hog it would be all right for him to go ahead and mark it. Appellant testified that he believed the hog was his, and that after observing it running with his hogs for a good while and after talking to the county judge about 'it, he marked it.

By three bills of exception appellant complains of the fact that the state was allowed to prove, over objection, that other parties, who had hogs on the same general range as that of appellant and prosecuting witness, had their unmarked hogs marked in appellant’s mark, but none of them undertook to say that they had ever seen appellant mark them, or that appellant had ever made any claim to any of their hogs, or that appellant had taken any of their hogs from their possession. We think the testimony was inadmissible, and that the admission of same must have brought about appellant’s conviction. It is extremely doubtful under the testimony in this case whether in any event a conviction should be upheld. Appellant and his wife both testified they were claiming the hog in question and believed it to be theirs. Prosecuting. witness and another claimed the hog to belong to Mr. Ogden. Questions of property rights and ownership of animals ought to be settled in civil proceedings and not in criminal courts.

For the -admission of the testimony above referred to, the judgment will be reversed and the cause remanded.


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

text:
    CALDARERA et al. v. STATE.
    No. 14702.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1931.
    Rehearing Denied in the Case of Sam Murphy Oct. 19, 1932.
    E. A. Bérry and C. E. Smith, both of Houston, for appellants.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellants were convicted of a conspiracy to manufacture intoxicating liquor and given four years each in the penitentiary.

Officers executed a search warrant on a house at 906 Tulane street in the city of Houston, and at that place they found a still with 20 or 30 gallons of whisky; also two 50-gallon fermenters, 800 gallons of whisky mash, four 5-gallon glass jugs of whisky. They also found a 100-gallon copper still in operation and a 100-gallon cooling tank; also coils .and condensers and other things used in the manufacture of said liquor. The still was found in operation in a garage forty or fifty feet back of a residence. They also testified that they saw one Joe Massala at'said place, but ■did not see his wife.

Mrs. Joe Massala testified that her husband, Joe Massala, manufactured liquor at 2309 Ovid street and at other places in the city of Houston and that the defendants came there to visit her husband; that they visited there several times a week and that the whisky made by her husband was taken off, sometimes by a negro and sometimes by the defendants, and carried away in their automobiles. They would take it away at nighttime. She also testified that the two defendants had both brought stuff to their house at night, and. the appellant Sam Murphy had brought sugar and yeast. She testified that she could not understand the conversation carried on between her husband and the defendants because they talked in Italian and she was not Italian and could not understand the language.

Neither of the appellants testified or offered any evidence.

By bill of exception No. 1, it is shown that the appellant Caldarera excepted to that part of the testimony of Mrs. Joe Massala on her direct examination that Joe Massala, her husband, left the house with some whisky at different times and told her, as he was leaving, that he was taking it to Tony Caldarera’s house, Caldarera being not present at the time. The bill is qualified to show that no objection was made to the testimony until after it was given, and that the defendant Caldarera then objected to it on the ground that it was hearsay, and asked the court to strike it out, which the court refused to do.

The first count in the indictment, and the only count which was submitted to the jury, charged that the defendants, Caldarera and Murphy, did then and there conspire, •combine, and confederate and entered into a positive agreement together and between themselves, together with one Joe Massala, to unlawfully manufacture intoxicating liquor in said county and state. Under the authorities, it seems that, when the question at issue is a joint acting together of two or more persons in the commission of an offense, proof of the acts and declarations of either, if part of the res gestse or made pending a conspiracy, though made by one in the absence of the other, if in pursuance of the common design, is admissible. Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991; Smith v. State, 48 Tex. Cr. R. 233, 89 S. W. 817; Dunn v. State, 111 Tex. Cr. R. 464, 14 S.W.(2d) 283; Bannister v. State, 112 Tex. Cr. R. 158, 15 S.W.(2d) 629.

The presumption of law is that the court having admitted the testimony over the objection of the appellant,, his ruling was correct, The bill does not set out a sufficient amount of the surrounding facts and circumstances as to enable this court to determine the merits of the bill and the correctness of the ruling involved. A hill which merely states the ground of objection interposed or which merely sets out the question, answer, and objection without showing its connection to the other testimony is too incomplete to be considered. 4 Tex. Jurisprudence, § 216; Green v. State, 66 Tex. Cr. R. 446, 147 S. W. 593.

Bill of exception No. 2 shows that the state put Joe Massala on the stand as their witness, and he, upon direct examination, denied that he had ever manufactured whisky and had not manufactured whisky at 2309 Ovid street. Complaint is made of the state being permitted to impeach said witness by a written statement made to one R. R. Myers to the effect that he was running a still at 2309 Ovid street for the appellants, Tony Caldarera and Sain Murphy. The court qualified the bill, without exception, to the effect that, during the argument to the jury, the attorney for the defendant stated to the jury that there must have been an agreement or promise of immunity to Joe Massala or else his wife would not have testified for the state, and that the district attorney’s office must have made such agreement or promise, and demanded to know why Joe Massala was not used as a witness. Whereupon, the assistant district attorney asked the court to suspend argument and permit Joe Massala to be called as a witness. The court granted this request, no objection being made, and said Massala was brought into court, and, without being talked to, he was placed on the stand; that he denied manufacturing any liquor at all; and that the state laid a proper predicate for his impeachment and impeached him in the language of the predicate. The state claimed surprise and injury, and that the state had a right to believe that he would testify the same as he had stated in his former statement to R. R. Myers, and that the district attorney stated in the hearing of the jury, without any objection, that the purpose of attempting to impeach Massala was not to be used as evidence against the defendants on trial but simply to explain why the state had put him on the stand. The qualification further showed that there was injury to the state in his denial because the affirmative evidence of what he denied was already in evidence, and it was not merely a failure to make proof as the state had not offered him as a witness during the trial, and that the witness had given testimony directly injurious to the state’s case and helpful to the defendants.

In the light of the bill as qualified and the facts as we learned them from the record, we believe that in the ruling of the court there was no departure from authorized procedure. Article 732, Code of Criminal Procedure. As stated by ⅞⅛ Branch: “The State may impeach her own witness by proof of contra-dietary statements where he testifies to either affirmative or negative facts injurious to the state’s case.” Branch’s Penal Code, § 164.

Somerville v. State, 6 Tex. App. 433; Tyler v. State, 13 Tex. App. 208; Layton v. State, 61 Tex. Cr. R. 507,135 S. W. 557; Alexander v. State, 68 Tex. Cr. R. 573, 151 S. W. 807; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 263; Thompson v. State, 77 Tex. Cr. R. 140, 177 S. W. 503; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271; Jackson v. State, 115 Tex. Cr. R. 395, 27 S.W.(2d) 1102.

Bill of exception No. 3 complains of the refusal of the trial court to give the jury defendants’ special instruction charging the jury that Mrs. Joe Massala was in law an accomplice. Said bill sets out in-full the entire direct testimony of the said Mrs. Joe Massala. The bill and the charge of the court both show that the court charged the jury on what an accomplice was and instructed them that it was for them to find as a matter of fact whether or not Mrs. Joe Massala was An accomplice. No exceptions were taken to this charge and no complaint is made thereof except that the court should have instructed the jury that she was an accomplice as a matter of law.

In the testimony of Mrs. Joe Massala, she denied emphatically that she had any part in the illegal enterprise going on in the premises occupied by her and her husband or that she in any wise aided or assisted in the manufacture of said liquor or encouraged her husband in doing so. We find no-direct evidence in the record of her being connected with the manufacture of said liquor. The mere concealment of the fact that her husband was manufacturing liquor or her mere concealment of the knowledge thereof did not make her an accomplice as a matter of law. Noftsinger v. State, 7 Tex. App. 301; Smith v. State, 23 Tex. App. 357, 5 S. W. 219, 59 Am. Rep. 773; Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Jones v. State, 74 Tex. Cr. R. 350, 163 S. W. 75; Blalock v. State, 76 Tex. Cr. R. 609, 176 S. W. 725.

We do not think the court erred in failing to charge the jury that the said Mrs. Joe Massala was an accomplice as a matter of law and properly left it to the jury, under instructions defining the term “accomplice” and applying the law to the facts, as to whether she was an accomplice or not.

We note that the verdict of the jury finding the appellants guilty assessed their punishment each at four years in the penitentiary. The sentence appearing in the record fixed their punishment at confinement in the penitentiary for a straight term of four years. The sentence will therefore be reformed as to each of the appellants so as to assess their punishment at confinement in the penitentiary for an indeterriiinate period of not less than two nor more than four years.

Appellant Tony Caldarera has filed in this cause an application in writing, signed by the appellant, properly acknowledged before proper officer, requesting a dismissal of this case. Said motion is granted and the appeal is dismissed as to the said appellant Tony Calda-rera.

Finding no reversible error in the record, the judgment of the lower court as to the appellant Sam Murphy, as reformed, is affirmed.

PER CÜRIAM.

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.

MORROW, P. J.

In the motion for rehearing, counsel for the appellant, Sam Murphy, earnestly contends that the evidence before the jury reflected by the record is not sufficient to meet the measure required by. law to establish the offense of conspiracy. The statutes applicable are articles 1623, and 1624, P. C. 1925, which read as follows:

“The offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so, unlawfully combined.”
“Before a conviction can be had for the-offense of conspiracy, it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties, charged.”

Judicial interpretation of the statutes wilt be found in King v. State, 86 Tex. Cr. R. 407, 216 S. W. 1091; Whitford v. State, 24 Tex. App. 489, 6 S. W. 537, 5 Am. St. Rep. 896; Johnson v. State, 3 Tex. App. 590; Od-neal v. State, 117 Tex. Cr. R. 97, 34 S.W.(2d), 595.

In the light of the motion, the evidence has been carefully reviewed. The alleged parties to the conspiracy were Tony Caldarera, Joe Massala, and the appellant, Sam Murphy, all of whom resided in the city of- Houston, Tex. Caldarera lived at 96 McGowan avenue, in a large apartment house with a store under it operated by him.

From the testimony of the witness Sanborn, it appears that on the 28th of September, 1930, officers, possessed of a search warrant, searched the house situated at 906 Tulane street, in which they found a large §till in operation, a number of gallons of whisky, and about 800 gallons of whisky mash. The still was situated in a garage a few feet from the dwelling h'ouse of Masalla. The house was a cottage of five or six rooms. At the time of the raid the house was the dwelling of Joe Masalla, who was present at the time the search was made.

Mrs. Masalla testified in behalf of the state. In her téstímony it appears that at the time of the search she was sojourning at a place on Stanley street in Houston; that there had been a temporary separation between her and her husband. At the time of the search, however, Masalla lived at the place searched, namely, 906 Tulane street. During the time covered by the investigation, she and her husband lived at 2309 Ovid street, 201 Palmer street and 732 Alston street. During the week the witness stayed with her husband at 906 Tulane street, Sam Murphy came there twice or three times. He brought with him some sacks, the contents of which the witness did not know. They were taken by Murphy up over the garage where the still was situated. Murphy also took stuff away from the still. It was in jugs. According to the witness, one of the sacks brought by Murphy contained sugar. She said that her husband told her that he was making whisky; that Sain Murphy and Tony Caldarera were paying him $40 a week and were paying all the bills on the house. Masalla was to run the still for Cal-darera and Sam Murphy for $40 a week. The sacks of sugar which the witness saw brought to the house were 100-pound sacks. There were other sacks containing rye and yeast, which looked like the same size as the sugar sacks. At the visits of Caldarera and Murphy, there were conversations between them in the Italian language which the witness could not understand and she could not state what was said. At each of the places named, except that at which the witness (Mrs. Masalla) was visiting her mother on East 21st street, the still was operated and whisky made by Masalla. Both Murphy and Caldarera were frequenters of the places. The 'manufactured whisky was sometimes taken away by a negro, sometimes by Calda-rera, and sometimes by Murphy. They would take five or six bottles or jugs at a time. After Masalla was arrested, the witness heard a conversation between him and Sam Murphy in which Masalla insisted that, during his incarceration Murphy should supply Mrs. Masalla with money. Murphy expressed the belief that Masalla would be acquitted, and, demurred at agreeing to support Masalla’s wife. He did, however, according to her testimony, promise to give her a small amount of money from time to time, and did at one time give her a dollar.

Johnnie McArdle testified that he saw yeast and whisky at Masalla’s house at 732 Alston street; that Masalla carried whisky from the building; that the witness helped him as did also Caldarera; that the witness also saw Murphy at Masalla’s house.

Mrs. Gilbert testified that she knew Joe Masalla and his wife when they lived at 732 Alston street; that she had seen the still in operation at Masalla’s house and had also seen Sam Murphy there.

The witness, Dorothy Yaggi, testified that she had seen Sam Murphy at the house of Masalla when he lived on Ovid street; that Murphy came there often, sometimes every night; that when he left, he would take away jugs in a sack, put them in his car, and drive away. She also saw the still in operation in the building and heard the two men talking in Italian, but she could not understand what they said. She said that Masalla would fill up the jugs with whisky and Murphy would carry them to the ear.

Mrs. E. Yaggi (the mother of the appellant), testified that she visited the home of Masalla on Ovid street; that she saw there a still in operation, also jugs, barrels, and whisky. She saw Murphy come from there a few times. He came there to see Joe Masalla and talked to him; that they talked Italian which the witness did not understand. She saw Murphy at one time going into the room where the jugs of whisky and still were situated.

To prove a conspiracy, circumstantial evidence is available, and, generally speaking, reliance thereon is essential. See Wharton’s Cr. Ev. (10th Ed.) vol. 2, p. 1671, § 888; Tex. Jur., vol. 9, p. 400, § 21; Bailey v. State, 42 Tex. Cr. R. 289, 59 S. W. 900.

Having the principles stated in mind, we have no difficulty in concluding that the evidence before'the jury was such as to warrant their finding that the appellant was guilty of the offense charged; that is to say, that the circumstances introduced in evidence go to show that the appellant was a party to a positive agreement to commit the felony charged in the indictment.

Eor the reasons stated, we are constrained to overrule the motion for rehearing.


author: HIGGINS, J.

text:
    WILLARD v. GEARY.
    No. 2719.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    Rehearing Denied Oct. 20, 1932.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellant.
    N. R. Morgan, of Lamesa, for appellee.
   HIGGINS, J.

On August 13, 1924, appellant, Willard, and L. D. Smith entered into a contract whereby the former agreed to sell to Smith a tract of land. Smith paid $1,000 and agreed to pay an additional $2,710 in eleven annual deferred payments. Smith also agreed to permanently establish his home upon the land and himself or by tenant to improve, cultivate, and occupy the land and continue so to do until the land was paid for and conveyed to him. Upon payment being made of the deferred payments and compliance by Smith with his other agreements, Willard was to convey the land by general warranty deed.

On December 16, 1930, Willard recovered judgment for the land against Smith, W. B. Jamison, and others not necessary to mention. On the same date Willard filed this suit against the appellee, Geary, to enjoin him from removing certain improvements on the land. Geary was temporarily enjoined from so doing.

Geary answered to the effect that he had rented the land for the years 1929 and 1930 from W. B. Jamison, and, under his contract with Jamison, he had tlie right to remove the improvements in question. He asked for judgment over against appellant for the value of the improvements which he had been prevented from removing by the injunction.

Upon special issue findings judgment was rendered denying appellant any relief and in favor of Geary upon his ci'oss-action for $131.75. The findings need not be stated further than to say they establish Geary’s right to remove the improvements under his contract with Jamison.

The numerous questions presented' in appellant’s brief need not be considered for, under the undisputed facts, the judgment should be reversed and rendered in favor of appellant. We will consider only that phase of the case which calls for that disposition of the appeal.

The contract between Willard and Smith provided that, upon the failure of. Smith to comply with the stipulations thereof, Willard should have the right to enter upon the land and take immediate possession thereof together with the improvements thereon. The improvements in question were permanent .in their nature and of the kind contemplated by the covenant of Smith to improve the land. Jamison was a remote assignee of Smith’s rights under the contract.

It is plain that, if the improvements had been made by Smith, he would have had no right to remove the same. The rulq.is thus stated in 11 R. O. L., title Fixtures, §§ 12 and 27, as follows:

“As between a vendor and vendee under an executory contract of sale of land, the fixtures attached by the vendee in possession become part of the realty, and where through his failure to perform his part of the contract he fails to acquire title they cannot be removed by him. * * * ”
“A vendee in possession of land under an executory contract of purchase has no right to erect a building on the premises as property separate and distinct from the freehold, and an intention to do so, no matter how clearly manifested, is of no avail, without an agreement, express or implied, with the landowner that it shall not become part'of. the realty. This must be so where the vendee fails to fulfill the contract and acquire title.”

See, also, Glenn v. Shamburger (Tex. Civ. App.) 240 S. W. 701; Bateman v. Brown (Tex. Civ. App.) 297 S. W. 773; Sheer v. Cummings, 80 Tex. 294,16 S. W. 37.

Jamison had no higher right than Smith. Nor could Geary, the tenant of Jamison, have any higher right. It is not claimed Willard •assented to the contract by which Geary was to be permitted to remove the improvements.

It follows the judgment is erroneous and •it will be reversed and here rendered granting appellant the relief sought and denying 'Geary any relief upon his cross-action.

Reversed and rendered.


author: HICKMAN, C. J.

text:
    SANGER OIL & REFINING CO. v. CRISMAN.
    No. 1147.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 7, 1932.
    Davidson, Doss & McMahon, of Abilene, for appellant.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellee.
   HICKMAN, C. J.

This is an appeal from an interlocutory •order of the judge of the ?ourt below’appointing a receiver on an ex parte hearing without- notice to appellant. By the order of appointment, the receiver was authorized to .enter upon and take possession of appellant’s property. There are two reasons apparent on the face of the transcript why the receiver should not have been appointed: First, the petition alleged that, prior to the institution 'of the suit, appellant had made a bill of sale to all of its property to one A. N. Toncray, •which bill of sale was of record in Taylor county. There were allegations that this sale was fraudulently made, but the question of whether or not same was subject to be set aside on account of fraud could be determined only in a proceeding in which Toncray was a party. The trial court could' not properly appoint a receiver to take possession of, and assume control over, property of one not a party to the proceeding.

The second reason why the appointment should not have been made without notice to appellants is because appellee’s petition failed to allege facts showing that there was such pressing necessity for haste that he would likely suffer irreparable loss if the appointment was delayed until notice was given the •defendant and a hearing had. Such allegations are essential to authorize the appointment of a receiver without notice. Security Land Co. v. South Texas Development Co. (Tex. Civ. App.) 142 S. W. 1191; Simpson v. Alexander (Tex. Civ. App.) 188 S. W. 285; Arnold v. Meyer (Tex. Civ. App.) 198 S. W. 602; Hodges Drilling Co. v. Tyler (Tex. Civ. App.) 233 S. W. 548; White Star, Inc., v. English (Tex. Civ. App.) 286 S. W. 255; Delcambre v. Murphy (Tex. Civ. App.) 5 S.W.(2d) 789; Zanes v. Lyons (Tex. Civ. App.) 36 S.W.(2d) 544; Myerscough v. Garrett (Tex. Civ. App.) 45 S.W.(2d) 1003; Pray-Chamberlain Producers v. Barnhill (Tex. Civ. App.) 46 S.W.(2d) 462.

The receivership is dissolved without prejudice to appellee’s right to again seek the same decree upon amended pleadings.

Reversed, and receivership dissolved.


author: LESLIE, J.

text:
    GEORGE v. REYNOLDS.
    No. 980.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1932.
    Rehearing Denied October 14, 1932.

      Scarborough, Ely & King, of Abilene, for appellant.
    Allen D. Dabney, of Eastland, and Blanton, Blanton & Blanton, of Abilene, for appellee.
   LESLIE, J.

J. B. George died in Shackelford county, Tex., January 17, 1931, leaving an estate in personal property valued at $7,500. He willed the property to two orphan homes and appointed A. W. Reynolds independent executor of his estate. The executor probated the will. Mrs. Helen George, the surviving wife of the deceased, filed an application in the probate court asking a widow’s allowance in lieu of homestead, etc. Such an allowance was made by that court, and the executor appealed to the district court. In the district court Mrs. George filed an independent suit against the executor, asking that that court fix the allowances granted the widow by law in lieu of a homestead. In said suit she also made claim to one-half of the estate as community property of herself and deceased husband. The two suits were consolidated in the district court and a trial was had which terminated in an instructed verdict against the plaintiff, Mrs. George, and she prosecutes this appeal. The parties will be referred to as in the trial court.

The disposition of this appeal rests upon a decision by this court of two questions: (1> Was the plaintiff, Helen George, entitled to the widow’s allowance? (2) Did she have a one-half interest in the property as community?

In substance, the facts are that ’J. B. George and Helen George were married October, 1894, lived together until July, 1899, at which time they entered into a separation agreement to the tenor following:

“The State of Texas, County of Shackelford.
“This agreement, made and entered into this the 5th day of July, A. D., 1899, by and between J. B. George, party of the first part, and Nellie E. George, party of the second part, witnesseth, that whereas said parties, being husband and wife, and finding it impossible to continue further to live together in harmony and unity as such, have mutually agreed to immediately separate • and ever afterwards live apart from each other, and have to all intents and purposes actually separated and desire to make said separation permanent, now therefore, in consideration of the premises and'for the purpose of settling our property rights for all time to coiné, do enter into the following agreement, to-wit:
“1. The party of the first part has this day and does by these presents pay unto the party of the second part Bight Hundred ($800.00) Dollars in cash, the receipt of which is hereby acknowledged by the party of the second part, and the party of the first part further agrefes and binds himself that whenever he shall sell all or any portion of j;he lands which he npw owns and' which he derives as an heir at law of his mother, now. deceased, or through the wiil of his said mother, he will immediately upon consummation of such sale pay to the party of the second part one-half of whatever amount of money he may obtain upon such sale of said land or any part thereof.
“2. In consideration of the foregoing covenants on the part of the party of the first part the party of the second part hereby releases the party of the first part from all claims, duties and liabilities both in law and equity for her maintenance and support, and she further agrees and binds herself forever not to in any manner whatsoever interfere with said party of the first part in his business or social affairs, and that she will never in any way call upon him for any contribution of his means or time for her assistance, maintenance or support, nor shall the party of the first part ever be liable for any debts contracted or to be contracted by the party of the second part, even though they be for necessaries for the support of herself and children, and she releases hereby all interest whatever that she may have in and to any real estate or personal property which may be now in the possession of the party of the first part or which he may ever become possessed of ■ except as hereinbefore specified, — that she is entitled to one-half of the money which may at any time be realized from the sale of the lands above mentioned.
“Witness our hands this the 5th day of July, A. D., 1899.
“J. B. George
“Mrs. Nellie E. George.”

At the date of the marriage, Mrs. George, a widow, had two children by a former marriage, and thereafter a child, Sarah, by this martiage. Immediately upon the execution of the above instrument, Mrs. George returned to her former home in Detroit, Mich., and she and her husband never lived together again as husband and wife. Neither of them procured a divorce. Some thirty-one years after the date of the separation Mr. George died, and she returned to Texas to claim the above specified rights.

The terms of the separation agreement were strictly complied with by Mr. George, and the fairness of the division of the property then on hand is not questioned.

The defendant, or the executor of the estate, resists the claim of Mrs. George on the ground that she, without cause, voluntarily abandoned her husband at the time of the agreement, thereby forfeiting her rights to said allowances, and that by the execution of the contract above set out she ceased to have any interest whatever in the property allotted to said .George, or such as he thereafter acquired, the contention being that property thereafter - acquired by said George was by said agreement converted into his separate property.

The plaintiff, Mrs. George, also contends that the separation from her husband was originally brought about by cruelty upon his part, rendering their further living together insupportable. In substance the cruelty is alleged to consist in his penurious, disagreeable disposition, and the insistence on his part that she give up her first two children and place them in an orphans’ home. That under the influence of such treatment she was coerced into signing said agreement against her will, and that it became necessary for her to separate herself and children from his home, and as a result thereof she was compelled to return to her old home in Detroit, where her mother resided.

As stated, the court instructed a verdict in favor of the defendant. It therefore becomes necessary for this court to examine the testimony to ascertain if the trial court erred in this respect. It also becomes our duty to view the testimony from the standpoint of the plaintiff and to take as true the testimony tendered by her in determining whether or not the court erred in failing to pass to the jury any material issue of fact raised by the pleadings and the testimony.

As noted, it is the contention of the executor, or defendant, that the plaintiff, without cause, abandoned her husband, the deceased, for a series of years (thirty-one), and thereby forfeited her right to the widow’s year’s allowance and the allowance in lieu of a homestead. This contention presents a correct proposition of law and should be sustained when borne out by the facts. Our Supreme Court has many times so held. Linares v. De Linares, 93 Tex. 84, 53 S. W. 579; Cock-rell v. Curtis, 83 Tex. 105, 18 S. W. 436; Good v. Good (Tex. Civ. App.) 293 S. W. 621; Mark-ley v. Barlow (Tex. Civ. App.) 204 S. W. 1013; Hollie v. Taylor (Tex. Civ. App.) 189 S. W. 1091; Dugat v. Means (Tex. Civ. App.) 91 S. W. 363.

It is equally as well settled that the wife’s separation from the husband, brought about by his. cruel and unjustifiable treatment, does not defeat or forfeit her right to an allowance in lieu of a homestead. Linares v. De Linares, supra.

With these principles in mind we have carefully reviewed the testimony in this case and reach the conclusion that there was presented, both by the pleadings and the. testimony, an issue of fact on the trial of this case as to whether or not Mrs. George, without just cause or excuse, abandoned her husband-and returned to her former residence in the state of Michigan. Whether she did so with or without good cause is, in the state of this testimony, a question of fact for the jury. Sears v. Sears, 45 Tex. 557; Newland v. Holland, 45 Tex. 588.

We do not set out the testimony as it would unduly lengthen the opinion. In the main it is to be found in the testimony of Mrs. Smyington, as well as that of the plaintiff. The testimony is not in all respects satisfactory, but it did call for the submission of the issue to the jury. Certainly the testimony on this phase of the case is not conclusive in favor of the defendant, which would be necessary in order to authorize an instructed verdict for the defendant. Neither is the testimony of such a nature, when viewed from the standpoint of the plaintiff, as to justify an instructed verdict in her favor, as contended in her brief.

The assignments challenging the correctness of the court’s order in directing an instructed verdict on the above issue are sustained.

We pass to the plaintiff’s further contention that the property left by the deceased is the community property of herself and husband, and that she is now entitled to her one-half interest therein under the facts and regardless of the terms of the agreement hereinbe-fore set out.

In dealing with this question, it is recognized that a postnuptial contract between the husband and the wife who have already separated, or have determined upon a separation and are in the act of executing it, will be upheld when fair and equitable. Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Cox v. Mailander (Tex. Civ. App.) 178 S. W. 1012; Kuehn v. Kuehn (Tex. Civ. App.) 232 S. W. 918; Skeen v. Skeen (Tex. Civ. App.) 190 S. W. 1118; Caffey’s Ex’rs v. Caffey, 12 Tex. Civ. App. 616, 35 S. W. 738; Versyp v. Versyp (Tex. Civ. App.) 159 S. W. 165.

But the recognition of this rule does not imply that by such contract the husband and the wife have the power to change, by a mere agreement made in advance, the status of community property thereafter to be acquired and to come into existence and make the same the separate property of either the husband or the wife. Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090, 1091; Proetzel v. Schroeder, 83 Tex. 684, 19 S. W. 292, 294; Const, art. 16, § 15; articles 4610, 4613, 4615, 4619, R. S. 1925.

In the authority first cited it is said: “A husband and wife do not have the power to .change, by mere agreement, made in advance, the status of community property yet to be acquired, and- yet to come into existence, to that of the wife’s separate property.”

Numerous authorities are there cited in support of the proposition, and the additional statement is made that: “It does not lie in the power of the husband and wife by contract between themselves, made in advance, to set aside the Constitution of this state, as applied to the wife’s separate property rights.”

The opinion in Proetzel v. Schroeder dealt with a postnuptial contract and discussed the public policy involved in the enactment by the Legislature of article 4610, dealing strictly with antenuptial contracts. It was there observed: “The statute does not in express terms include nuptial contracts. But there is better and stronger reason why the same principle which would prevent those entering into marital relations from making a contract or agreement that would have the effect the law seeks to guard against should render invalid a contract made after such relations were contracted by the parties. In contemplation of law the wife is then under the dominion and control of her husband. This instrument, in so far as.it sought to deprive Mrs. Schroeder of her community property * * * is absolutely void.”

In the instant ease the parties, by the separation agreement, divided their property then on hand and adjusted their rights in the same, and, in substance, went further in the contract and undertook to provide that all property acquired after the separation by either spouse should be the separate property of the spouses respectively. But in that respect the contract is believed to be void and unenforceable. If it was not so, the parties could, by. contract, change the status or nature of property acquired after marriage and do so in the face of the statutes and the Constitution fixing- the property rights between husband and wife and defining what is separate and what is community property. Such an arrangement would, in effect, and indirectly at least, permit them to alter the orders of , descent with respect to persons and property.

In Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, our Supreme Court held that, since the Constitution, art. 16, § 15, provided that property acquired by the wife during cover-ture by gift, devise, or descent becomes her separate property, the Legislature is there; fore prohibited from saying that property acquired after, marriage in some other mode may also become-the wife’s separate property. If the Legislature cannot change the status or .nature of property acquired during the marital relation,' evidently- the parties, themselves are.without power to do so by contract. If it be held that they have such power, then their act in doing so would be in the face of the statutory and-constitutional definitions of separate and community property.

In discussing the opinion of our Supreme Court in the casé of Routh v. Routh, 57 Tex. 589, the court in the ease of Kearse v. Kearse (Tex. Civ. App.) 262 S. W. 561, 564, sa,id-: “The court held in that case that the marital relation, when once formed, continues until terminated by death or judicial decree; -that this relation secures to- the wife a community interest in all the property ihat may be thereafter acquired by either of the parties, except such as may be obtained by gift, devise, or descent; that the rights of the parties resulting from the marriage relation are -fixed by statute, and that the separation of the see-ond wife-from her husband did'not under the circumstances work a forfeiture of her subsequently acquired community rights to land purchased and owned by him in Texas.”

We do not believe the statutory and constitutional classifications of property rights as between husband and wife can be altered by postnuptial contract, as attempted in this ease, and if, under the facts, there is to be found in the hands of the deceased, George, at the date of his death, community property of himself and surviving wife, there is presented by this record no obstacle to her claiming her just proportion thereof. Routh v. Routh, 57 Tex. 589; Hall v. Hall (Tex. Civ. App.) 241 S. W. 624; McCelvey v. Cryer (Tex. Civ. App.) 37 S..W. 175.

We are aware of the fact that what is above said and held is apparently in conflict with certain declarations in the opinion in Corrigan v. Goss (Tex. Civ. App.) 160 S. W. 652, 655. That case dealt with a separation agreement between husband and wife, and, on rehearing and in the last paragraph thereof, it-is said: “Hence it follows that property acquired by either spouse after separation, brought about by such an agreement, becomes the separate property of the one who acquired it, free from the claims of the other, because they are no longer, in law, acting together in their legal capacity of husband and wife. And this partition deed béing valid and binding, it settled all property rights between the parties, including the homestead rights of appellant.”

The agreement there involved an “equitable division of property” in view of final separation. There were only “two pieces of real estate” involved in that litigation, and they were “paid for in part with the money which had been allotted to the deceased in said partition,” as stated in the findings. The wife claimed: (1) The widow’s year’s allowance; (2) the allowance in lieu of a homestead; and (3) one-half of the property as community. She was found to have “ample property for her homestead and that no such condition of affairs existed as would justify setting apart to her a homestead.” Under these circumstances she was denied recovery. ■ The separation agreement was found fair, and the charge of coercion and undue influence advanced by the wife against .the- husband, by which she undertook -to account for the separation, was resolved against her.

■ Her . claim for .the year’s allowance was defeated by the fact that she had property adequate for her maintenance. Article 3478, R. S. 1925. There being no homestead or family relation, as in the ease of Linares v. De Diñares, supra, and no- coercion or undue influence, necessarily the court ruled against plaintiff’s claim: for an allowance in lieu of a homestead. A reasonable interpretation of the opinion and the- record in the case- would warrant the conclusion that the court, rendering that opinion, found that the lots were paid for with the deceased’s separate funds or property. If these observations are correct, all the issues before the court were disposed of and the judgment would be correct, separate, and apart from the conclusion or observation embodied in the above excerpt from that opinion.

And it would seem that there was no property involved in that lawsuit acquired after the separation agreement, and ordinarily falling in the classification of community property for the separation agreement to operate on, or calling for a holding on that basis.

So long as the parties are husband and wife, property acquired by either during marriage, except that which is the separate property of either, is deemed the common property of the husband and wife. Article 4619, R. S. 1925; Kearse v. Kearse (Tex. Civ. App.) 262 S. W. 561; Id. (Tex. Com. App.) 276 S. W. 690; Merrell v. Moore, 47 Tex. Civ. App. 200, 104 S. W. 514; Keys v. Tarrant County Building & Loan Ass’n (Tex. Civ. App.) 286 S. W. 593.

Neither the deceased, George,- nor his wife saw fit during his lifetime to dissolve the marriage relation by divorce. That relation was terminated by his death. Had either of them elected to do so, doubtless the relation could have been dissolved, at least under the statute which, under certain circumstances, permits a decree of divorce on the ground that the husband and wife have lived apart as long as ten years, subdivision 4, art. 4629, R. S. 1925; Schulz v. L. E. Whitham & Co., 119 Tex. 211, 27 S.W.(2d) 1093, and thus have avoided the complications arising out of the alleged property rights asserted by this litigation. Having thus left the marriage relation undisturbed, the deceased, George, was charged with the knowledge of the legal consequences of perpetuating the legal and technical marital -relations.

Article 4619, R. S. 1925, defining community property, among other things prescribes “all the effects which the husband and wife possess at the time the marriage may be dissolved shall -be regarded as common effects or gains, unless the contrary be satisfactorily proved.” The presumption which obtains that, when the marriage is dissolved, the property found in the possession of either spouse belongs to the community, is not limited to a dissolution of the marriage by death, but applies equally to its dissolution by divorce. Moor v. Moor, 24 Tex. Civ. App. 150, 255, S. W. 231.

In the record before us the plaintiff proved the marriage of herself and husband, his subsequent death, the possession by him at -that time of the property involved in this lawsuit, and the fact that there had never been any dissolution of the marriage relation by divorce. This made a prima facie ease in her favor on her claim for community property, if we are correct in holding that the separation agreement did not operate upon or in any manner change the nature of property acquired by the deceased after the separation and make the same his separate property. It does not follow, however, that we should here render a judgment in favor of the plaintiff for one-half of such property, since a careful consideration of the testimony as a whole convinces us that it is not conclusive that the property possessed by George at his death is entirely community property of himself and surviving wife, nor does it conclusively appear as to what part thereof is community property, if any. We are dealing with an important issue of fact which should have 'been submitted to the jury and upon another trial doubtless will be. At any rate the instructed verdict against the plaintiff was not authorized on this phase of the ease.

For the reasons assigned, the judgment of the trial court is reversed and the cause remanded.


author: VAUGHAN, J.

text:
    PEARSON et al. v. FELPS et al.
    No. 11257.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 10, 1932.
    Rehearing Denied Oct. 15, 1932.
    Frank R. Graves, of Fort Worth, for appellants.
    Cal Estill, of F.ort Worth, for appellees.
   VAUGHAN, J.

On January 2, 1932, E. D. Pearson, a non compos mentis, acting by and through his guardian and wife, Bessie Pearson, and Bessie Pearson individually, appellants, presented to Hon. Claude M. McCallum, judge of the 101st district court, their petition against ap-pellees, A. W. Felps and Tom McMurray, for and obtained a temporary injunction restraining appellees from selling, or offering to sell, a certain 50-acre tract of land located in Dallas county, under a deed of trust executed thereon by one Cordie Pearson, as guardian of the estate of said E. D. Pearson, to secure the payment of a promissory note in the sum of $900 executed by the said Cordie Pearson as guardian aforesaid, on May 25, 1928, payable to appellee Felps. As grounds for the equitable relief sought, appellants, in part, alleged: “That the plaintiff, E. D. Pearson is non compos mentis and his estate is being administered in the probate court of Tarrant County ; that the plaintiff, Bessie Pearson, is the wife of E. D. Pearson, and is the duly appointed, qualified and acting guardian of the person and estate of E. D. Pearson, non compos men-tis ; that at all times mentioned in this petition the land in question was owned by these plaintiffs in fee simple, and was exempt by the Constitution of the State of Texas from forced sale under and by virtue of the provisions of Article 16 section 50, for the reason that the plaintiffs, E. D. Pearson and Bessie Pearson, are husband and wife and constitute, a family, and that the land described in the said deed of trust and notice of sale was then and is now the homestead of these plaintiffs, and was used, occupied and enjoyed by these plaintiffs as their homestead under the terms of the Constitution and the statutes of the State of Texas; that the defendants have issued notice and have posted notice and advertised said land for sale on the first Tuesday in January 1932, and unless restrained the defendants will carry out their declared intention and offer the said land for sale under the authority of the aforesaid deed óf trusf, and will execute a deed and place the same of record and further cloud the title of said land.”

On January 9, 1932, appellees filed their motion to dissolve the temporary writ of injunction granted to appellants, the grounds of said motion, in part, being: That appellee Felps, on or about the 25th day of May, A. D. 1928, at the instance and request of Cordie Pearson, guardian of the estate of E. D. Pearson, non compos mentis, made a loan of $900 to the said Cordie Pearson as such guardian, alleging a full and complete compliance with the law having to do with and directing the proceedings to be had by a guardian in order to negotiate for and close a contract for a loan of money. That said sum of $900 was actually paid to. said guardian and was, by said guardian, paid out for tlie use and benefit of the said E. E. Pearson, and that he received the full benefit of said loan and that his estate was actually benefited thereby. That appellants had never resided on the 50-acre tract of land involved in this suit on which appellee Eelps sought to foreclose deed of trust lien to secure the payment of said $900 note, and had never occupied said tract of land as their homestead at any time, but, to the contrary, had always lived and resided in Tarrant county, Tex., on another and different tract of land belonging to the said E. D. Pearson, on which appellants resided at the time of the institution of this suit, and alleged that said 50-acre tract of land was, in every respect, subject to said deed of trust, same having -created a valid and subsisting lien thereon to secure the payment of said note. The court sustained said motion, and from the order dissolving the temporary writ of injunction this appeal was duly prosecuted. By the undisputed evidence introduced upon the hearing of said motion, the following facts were established:

That appellants owned at the time the involved deed of trust was executed, and now own, a house and lot in the town of Grapevine, Tex. That when appellants were able to find tenants for same it was rented for $6 per month; that appellants now occupy, and lived on prior to May 25,1928, a 40-acre tract of land (to which neither of the appellants have record, title, but is owned by the estate of the deceased father of said E. D. Pearson) located about three miles west of the 50-acre tract in question; that appellants, about 12 years' ago, built a house on said 40-acre tract and made, other permanent and valuable improvements thereon, and were living on the same at the time the involved deed of trust was executed and delivered to appellee Eelps; that appellants received and enjoyed the use and benefit of all crops raised on said 40 acres; that the main source of income of appellants always had been, and is now, derived from Gordie Pearson, who was the guardian of E. D. Pearson, when the involved deed of trust was executed. That appellants never at any time lived on the 50-acre tract in question, but during the 13 years of their married life have only, at various times, expressed an intention to move on and use said land as their homestead; that there never had been, nor is there now, any actual user of the 50-acre tract by appellants other than the use of the rents and revenues from said land; that at all times said 50 acres was rented, the revenues therefrom were used solely for the purpose of buying groceries and for the support and maintenance of appellants, and were not used for any other purpose, and they did not have sufficient income to support themselves exclusive of the rents from said 50-acre tract; that long prior to May 25, 1928, appellants constituted a family and were, and are, farmers and therefore entitled to a rural homestead; that the improvements on the said 50 acres of land were not constructed by the appellants but by Miss Gordie Pearson, who was, at said time, the guardian of E. D. Pearson. The record of this appeal presents but one question for our determination, namely: Whether or not the 50-acre tract in question was the homestead of appellants on May 25, 1928, when Gordie Pearson, who was at that time the guardian of the appellant E. D. Pearson, and was on that date acting in the capacity as such guardian, borrowed $900 from the appellee Eelps to secure the payment of which Gordie Pearson made, executed, and delivered to said Eelps a deed of trust on the 50-acre tract in question.

Appellants, to establish the homestead exemption asserted by them, relied entirely on what they claim to be their good-faith declarations, to at some time in the future move on and occupy the 50-acre tract in question, to use and enjoy the same as their homestead; the testimony adduced in this respect by appellants, we have determined to be insufficient to impress said land with homestead character, this, because the great weight of the authorities is to the effect that for such declarations of intention to have the necessary probative effect, same must be coupled with'visible preparatory-acts that reasonably substantiate the good faith of the declarations so made. In this case the'record discloses that appellants could have, at many different intervals of time during the past 13 years, the period of their married life, moved on the involved 50 acres of land and dedicated it as their homestead, by actual appropriation of same for homestead purposes, namely, actual use, occupancy, and enjoyment of the premised. The course of appellants dealing with said tract of land, we think, is almost conclusive evidence that they never entertained in good faith any serious intention to occupy said land as their homestead, but, to the contrary, that they intended the 40-acre tract upon which they resided during all of their married life to be their permanent home. In the ease of Connelly v. Johnson (Tex. Civ. App.) 259 S. W. 634, 635, the rule is announced that the question of homestead or not is to be determined by the obvious acts and uses of the property and not alone by the intentions of the claimants. In the case of Cocke v. Conquest, 35 S.W.(2d) 673, 678, our Supreme Court used the following language which, we think, should rule the instant case, viz.: “The framers of our organic law had no thought of exempting 200 acres of land in the country as a home for each family, upon which its members might reside, when they thought proper, but this exemption is only in the event such lands are used for the purpose of a home,” and further held, “where segregated tracts of land are claimed as rural homestead, only those tracts used for homestead purposes are exempt (Const, art. 16, § 51).” In line with the above are the following eases: Dinwiddie v. Tims, 52 Tex. Civ. App. 72, 114 S. W. 400; Blum v. Rogers, 78 Tex. 530, 15 S. W. 115, 116; Parker v. Cook, 57 Tex. Civ. App. 234, 122 S. W. 419; Garcia v. Uveda (Tex. Civ. App.) 198 S. W. 167; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; Reed et ux. v. Crump (Tex. Civ. App.) 277 S. W. 737.

We are of the opinion, and therefore hold, that the trial court did not err in entering the order appealed from, and same is affirmed.

Affirmed.