author: MORROW, Presiding Judge. HAWKINS, Judge LATTIMORE, Judge

text:
    HUNT v. STATE.
    No. 15253.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Robertson & Friberg and J. Earl Kuntz, all of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

As the record is understood, the testimony showing the.guilt of the appellant is the following: About the 16th of January, 1931, the bank at Dundee, Tex., was burglarized. The burglary took place during the night. A safe weighing 2,000 pounds was carried away in a truck which was used by the principal offenders. A sum of money amounting to about §900 was taken from the bank. An official of the bank remembered the figures on the combination of the safe, which were 20 — 40—60—SO. However, he did not remember the number of turns necessary in opening the safe.

From the testimony of Hunter Russell, the following appears: The witness had lived at the home of Kelly Hunt for about three or four years and lived there in January, 1931. He had seen Erwin Spicer at the Hunt home during the month of January, 1931. Spicer lived at Abilene. 'According to the witness’ testimony, he, Spicer, Wethered, and Hunt committed the burglary. In mak•ing preparations for the burglary, Wethered, Spicer, and Russell used a truck which had been stolen by the latter in Wichita Falls, Tex. Arrangements were made at Hunt’s house, he participating therein. Russell, Spicer, and Wethered went to Hunt’s house in the truck. Hunt followed the truck in a Ford car. Upon reaching the town of Dundee, the combination of the vault in which the safe was inclosed was knocked off by Wethered and Russell. The truck was then driven to the sidewalk and the safe placed in it by the four men, Wethered, Russell, Spicer, and Hunt. Wethered and Russell returned in the truck while Hunt and Spicer rode in Hunt’s car. The safe was taken to Hunt’s pasture and deposited at a place about three-quarters of a mile from his home. The witness did not know the size of the pasture. They entered the pasture about daylight on a road which could be seen from Hunt’s house. They then drove around to a rock house about three-quarters of a mile from Hunt’s house. They unloaded the safe and tried to bury it. After unloading the safe the truck was taken over to Archer county by Hunt and Russell. In unloading the safe the combination .was knocked off. Being unable to open the safe, Hunt procured a man by the name of McClelland, who came out at night and burned an opening into the safe with a torch. He burned a six-inch hole across the top of the safe. By that means the parties got the money from the safe, which was divided between Hunt, Spicer, Wethered, and Russell. The parties later put the safe on a sled and carried it to the river, where they threw it in. The instruments used in burning the hole in the safe were thrown into the river at the same time that the safe was thrown therein. In October, 1931, Russell accompanied the officers to the locality where the safe was thrown into the river. They went in the river and recovered .the acetylene and oxygen tanks which were used in opening the safe.

The agreement to commit the burglary was made the day before it was committed. The plans were made at Hunt’s house and he was present at the time. Hunt and Russell were engaged in the bootlegging business. All of the above comes from the accomplice Russell.

Britton visited Hunt’s place in September, but the year is not stated. He was in company with Spicer. Britton was shown what was said to be Hunt’s home. He and Spicer went into the place through a pasture and then went to the river. They came to a rock house and made a search about a quarter of a mile from the rock house. He was shown by Spicer where they had put the safe and where it had been burned open. There had been a hole dug with some brush piled over it, and something which the witness called “stuff” found. It was turned over to Mr. Wylie. They also found a chisel. They found a nickel, a piece of iron or steel, and a piece to the combination of the safe. All of these were buried under the dirt and brush near the place where Spicer claimed that the safe had been burned open. Spicer showed the witness a place where he claimed the safe had been rolled into the river. This place was about half a mile from where he claims the safe was burned open. The witness noticed an attempt to dig a hole of considerable size near the place where it is claimed the safe was burned open and where the iron and “stuff” were found. There was brush sticking up in the river and indications that something had been dumped therein. Britton knew nothing as to whether the pieces found came from the bank safe except from Spicer’s statement. All he knew was what Spicer told him. A piece of the combination was found where Spicer claimed the safe had been burned open. All of the stuff that the witness testified to was there.

The state’s witness, McDaniel, testified that Hunter Russell had told him where the safe was, and accompanied him to the place where it had been dumped into the river. Russell pulled off his clothes and jumped into the river. When he came up, “he had one of these tanks.” The witness also went in the river, stumbled over something, and picked up another tank. They were acetylene and oxygen tanks. There was indication that something had been dumped into the river over the bank.

Shortly after the burglary the truck was found on the highway.

Pieces of iron or steel supposed to have been a part of the safe were exhibited to the jury.

Andrew Young testified that some time after the 29th of September, 1931, a piece of a combination of a safe was brought to him for examination by McDaniel, sheriff of Archer county. The witness said that the piece exhibited to him looked pretty much like the one that McDaniel had brought to him. It was brought in to see if the witness could remember the numbers that were on the safe at Dundee, as he had set the combination a year before the burglary took place. The numbers on the combination were 20 — 10—80. The witness identified pieces of the safe combination which were turned over to him by McDaniel. ■ There was no “60” on the combination which was examined by the witness. The combination looked like the same as that which was on the safe. The witness said he would not swear that the combination was from the Dundee bank safe.

There was testimony from the witness Young and other witnesses on the subject of the identity of the combination of the safe, but nothing more specific than that related above.

Holmes, the sheriff of Baylor county, testified that there were two ways of entering Hunt’s pasture from the Seymour road; also that he had been to the place where the safe was supposed to have been deposited in the river. While he made no examination, it was his opinion that Hunt’s pasture might not be seen from that locality.

It appears that Spicer was seen living on Hunt’s place after the latter had been arrested.

The witness McClelland was arrested but not indicted.

The direct testimony pointing to the guilt of the appellant comes from witnesses who were accomplices alone. The circumstances which are supported by other testimony than that of the accomplices are understood by the writer to be the following: Britton who visited Hunt’s place some months after the date of the alleged offense, verified the testimony of the accomplice Spicer to the effect that there had been a hole dug with some brush piled over it, in which there were found certain articles, namely, a chisel, piece of iron, a nickel, and a piece of the combination of the safe. All these were found about half a mile from the locality mentioned. McDaniel visited Hunt’s place in company with Hunter Russell. In wading the river, they found two tanks — one an acetylene and the other an oxygen tank. There was a place which indicated that something had been dumped into the river. There was a brush sticking up. Apparently something had slid off the bank. There was an unsuccessful effort to identify the piece of the safe by the numbers on the combination. In reaching the place where the articles were found in the river, persons traveling on the road in a vehicle would pass the home of Hunt. One of these routes would be near his door, while the other would be more distant. Russell claimed that they passed Hunt’s house about daylight. Hunt was engaged in bootlegging together with the witness Russell, who had at times resided at Hunt’s house.

To the mind of the writer, the above matters pointed out are not sufficient to meet the demand of the law requiring corroboration of the accomplice witnesses. The force of the testimony to which reference is made above is very much weakened and rendered less cogent as corroborative testimony by the fact that a safe weighing 2,000 pounds which the accomplices claimed was put in the river at or near the place where the tanks were found in the river, was never seen by any of the nonaccomplice witnesses, but their efforts to locate it in the river were unsuccessful.

The judgment should be reversed and the cause remanded.

LATTIMORE, J., dissents.

HAWKINS, Judge

(concurring).

I concur in the opinion reversing the judgment because of the insufficiency of the evidence corroborating the accomplice witnesses. It is the judgment of the writer that the evidence outside of that given by the accomplices established only that one of them worked for appellant and stayed at his house, and that the other had been seen at his house; that the remnants of the bank safe lock were found on appellant’s premises and acetylene drums were found in the river at a point where it touched appellant’s land, the location of the lock and drums having been pointed out by the accomplice witnesses, who also claimed the safe had been thrown in the river at the same place where the drums were found. Although the safe weighed 2,000 pounds it was never found, notwithstanding diligent search was made for it. This, at least, was a singular incident. In getting to the place where the accomplices say the safe was burned open it is likely a road was traveled which passed within fifty or one hundred yards of the house in which appellant lived. No evidence other than that of the accomplice witnesses attributed to appellant any knowledge that the safe, remnant of the lock, and drums were ever in his pasture. The circumstances testified to by nonaccomplice witnesses are not thought sufficient to charge him with such knowledge. The sheriff testified that he did not think appellant’s house could be 'seen from the point where the combination of the safe and other articles were found buried. If appellant was ignorant of the presence on his premises of the things mentioned, their presence would have no tendency to connect him with their acquisition. The evidence of the nonaccomplice witnesses, in the opinion of the writer, does not measure up to the requirements of article 718, O. C. P.

I respectfully, concur in the disposition of the case.

LATTIMORE, Judge

(dissenting).

My associates on the bench think this case should be reversed for lack of corroboration of the accomplice Russell. I am sorry not to be able to agree with them, but the only requirement of our law fixing the extent of the corroboration of an accomplice is, that such conviction should be upheld if there be testimony in the record other than that of the accomplice tending of itself to connect the accused with the commission of the crime. See article 718, O. O. P. In this case Russell, the accomplice, fully made out a ease against appellant as being one of four who burglarized a bank building at Dundee, stole the safe a'nd its contents, carried them in a truck to appellant’s ranch, where the safe was first buried in the ground near a rock house on said ranch, then dug up and a strip melted or cut across the door of the safe by the use of an acetylene torch, the contents removed and divided, and the safe and the oxygen and acetylene tanks thrown into a river which ran through appellant’s said ranch.

By others than the accomplice the burglary was proved, as was the fact-that in appellant’s pasture near said rock house, after the burglary, a large hole was found over which brush had been piled. Under the brush and dirt, at said hole were found pieces of steel, a chisel, a nickel, and a part of the combination of a safe having on it the same numbers as were on the combination of the safe taken. Elatt, cashier of said bank, testified that the figures on the combination of the stolen safe were 20 — 40—60—80, but that he did not remember the order in which they came. The melted and burned strip off the door of the safe found beneath the brush and dirt at the hole in appellant’s pasture was shown to Mr: Young, a 'safe expert, who testified that he had set the combination on the bank safe at Dundee before the burglary, and further that sheriff McDaniel turned over to him for examination and identification the melted and burned strip of the safe door, and that it bore the same numbers as did the Dundee bank safe. He testified:

“The numbers on this piece of combination that Mr. McDaniel turned over to me are the same as the numbers of the combination on the safe at Dundee, and these numbers work out 20 — 40—80.”

He further said that the Dundee bank safe was a Victor safe, having a screw door of the Yale type, and that the melted and burned steel strip containing the combination showed 'him, was from such a safe. Witnesses other than the accomplice also testified that they went down to a point on the' river in appellant’s pasture where they saw a plage where it looked as if a heavy object “had''been dumped over the bank,” and in the water at this place they found an oxygen tank and an acetylene tank.

That the finding of stolen property, or things used in connection with the disposition of. such property, in appellant’s pasture, over which there is no suggestion that other people had any control after the burglary, would' be held material and admissible against appellant on his trial for the burglary and theft, in any court. That they ..tend to..connect him, with the taking of the property thus found, seems so evident to my mind that I cannot rid myself of a belief that it sufficiently measures up fb the requirements of the law in regard to the corroboration of an accomplice. It is not required that the corroborative testimony be strong enough of itself to make out a case, but it is enough if it meet the statutory requirement and “tend to connect the accused with the offense.” If these things had been found in appellant’s personal possession,, such finding would have sufficed to make out a complete case of guilt against him without need for the testimony of the accomplice. Being found in his house, or on his premises, or in his pasture, would in any ease tend to show guilt on his part. Many a man has been convicted because of the finding of stolen cattle in his pasture. I am, therefore, compelled to record my dissent, which is respectfully done.


source: Caselaw Access Project

author: MORROW, Presiding Judge. HAWKINS, Judge.

license: Public Domain

text:
    ROSE v. STATE.
    No. 15533.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Rehearing Denied March 22, 1933.
    W. J. Durham, of Sherman, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for one year.

The state’s evidence may be summarized as follows: Andrew Lewis, the alleged injured party, testified that, without provocation, he was assaulted and wounded by the appellant. "The testimony of Lewis was fortified by evidence of the same nature. The knife used by the appellant was described as having a blade four or five inches long. A physician testified that Lewis arrived at the hospital suffering with shock from loss of blood from the wounds. There was an incision about four or five inches over the heart, extending into the lung, and the heart sack bulging into the wound. The heart sack was not entered. Lewis had another incision about the eighth or ninth rib going clear to the back, a very long one with the muscles pulled apart down to and into the lung cavity; another one just below or across the small of his back. The most serious wound was the one across his heart in front of his chest. That punctured his lung, and was a very -serious wound. The injuries were likely to cause death if not properly taken care of. The wounds were caused by some sharp instrument. Other medical testimony was in substance the same as that mentioned above.

The appellant testified that he went to the house in which the altercation took place; that he had never seen Lewis before. His testimony was to the effect that while at the house he was assaulted by Lewis without provocation; ^that Lewis hit him several blows which liurt him. At the time he was assaulted the appellant did not have his knife in his hand. He clinched with Lewis, and other persons came. He did not know how, but he got his knife and went to cutting without knowing who he was striking. Lewis had him down on his back and had a pistol, stating that he was going to blow the appellant’s brains out. After the difficulty the appellant escaped and ran away. He believed his life was in danger, and he struck the blows in order to protect his person. Appellant said he had no intention of killing any one.

A knife was exhibited to the jury, but the appellant disclaimed its ownership. Appellant introduced testimony to the effect that his reputation as a peaceable law-abiding citizen was good.

The house which was the scene of the incident was that of Hattie Butler. According to her testimony, when the appellant entered the house, Andrew Lewis and Robert Castle-berry were in conversation with a woman named Pearl Wilson, who was sitting on the bed in the front bedroom. • When the appellant came he likewise went into the bedroom where Pearl Wilson was, and took a seat. It seems that in the altercation Pearl Wilson was slightly wounded. The appellant had a knife in his hand, but the witness saw nothing in the hand of Lewis. She identified the knife on the trial. .However, as stated above, the appellant claimed that the knife was not the one he used.

Two bills of exception are found in the record. One of them reflects the refusal of the court to instruct a verdict of not guilty, for the reason that there was an absence of evidence showing that the wounds on the alleged injured party were inflicted by the appellant. There was no error in refusing to give the instruction.

In bill No. 2 it appears that while Dr. Holloway was on the stand, he was asked, on behalf of the defendant the following question: “Now, Doctor, from your examination of the wounds that you have found on the body of Andrew Lewis that night, do you think that they could have been made with a pocket knife, and such pocket knife not had any blood on it?”

Objections were urged, among others, that the evidence of the condition of the knife was not disclosed to the witness; it being admitted for the purpose of the objection, that the witness had never seen the knife. The bill was prepared by the court. In sustaining the objection to the question, we think no error was committed.

Appellant claims that the evidence is insufficient to support the verdict. The position taken by the appellant upon the subject is not deemed tenable. The state’s evidence, if believed, was quite sufficient to show that the appellant inflicted serious wounds upon the injured party with a knife which the jury might well have concluded was a deadly weapon. The wounds were serious and such that, in the absence of proper cáre, would have produced death.

The charge of the court adequately instructed the jury upon the issues involved. The substance of the special charge bearing upon the specific intent to kill was properly refused, as it was fully covered in the main charge, in which the jury was definitely instructed that, unless the appellant, in cutting Lewis, had the intent to kill him, there should be no conviction for assault with intent to murder. The court instructed the jury on the law of aggravated assault, and, so far as we are able to judge, gave a charge which was without fault so far as presenting to the jury the issues raised by the evidence, including self-defense and the law on the subject of a suspended sentence.

The conflicting evidence was settled by the verdict of the jury against the appellant. The state’s evidence, thus accepted by the jury, brings the case well within the principles often applied by this court in sustaining cases of assault with intent to murder. That is to say, if the assault is voluntary, committed with deliberate design, and with an instrument capable of producing death, ana there are no extenuating circumstances, it is an assault with intent to murder. Many illustrations of the application of these principles will be found in Branch’s Ann. Tex. P. C., p. 953, § 1659, among them, Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

It was appellant’s contention that the knife used by him in cutting Lewis was a much smaller knife than the one claimed by the state to have been used. Because of this conflict in the evidence, appellant says: (1) He should have had some kind of instruction based upon the use of the smaller knife; and (2) he seems to insist that in no event could he be guilty of assault with intent to murder unless the instrument used by him was a deadly weapon.

As to the first proposition, the evidence is undisputed that the wounds inflicted were serious in their nature, regardless of the particular knife used. The trial judge required the jury to find beyond a reasonable doubt that appellant had the specific intent to kill before he could be convicted of assault with intent to murder. No special charge was requested by appellant attempting to present his theory of the use of a smaller knife, but he contented himself with an exception to the instruction given on the ground that it failed to present his affirmative defense. The only affirmative defense we find was that of self-defense, which was properly submitted.

On the second proposition, appellant is mistaken as to the law. In the recent case of Basquez v. State, 114 Tex. Cr. R. 602, 26 S.W.(2d) 206, 207, the following language was quoted with approval from Franklin v. State, 87 Tex. Cr. R. 113, 38 S. W. 802, 1016: “In passing upon the intent of the party, the jury should look to the character of the weapon. If the weapon was a deadly weapon, and likely to produce great bodily harm, the jury may infer, from the use of such weapon, the intent to kill. If the weapon was not such a weapon, the jury may arrive at the intention of the party from the surrounding facts. If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder.”

In Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679, this court also said: “It would be a monstrous doctrine to hold that, because in fact the accused did not have the ability to kill, therefore he did not intend to kill.”

See, also, Jackson v. State, 48 Tex. Cr. R. 648, 90 S. W. 34, and Wallace Bailey v. State, 58 S.W.(2d) 834, this day decided.

The motion for rehearing is overruled.


author: MORROW, Presiding Judge.

text:
    GRIFFIN v. STATE.
    No. 15373.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Jas. T. Casey, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The filling station of the appellant was searched by four officers. They possessed a search warrant, and made the search on the faith of the warrant. However, it was lacking in the fundamental necessities of a document of that kind to a degree that both court and counsel declare in the record that the search warrant was utterly void, and specifically stated that it was not relied upon for any purpose.

After a two hours’ search without any result, the officers found what was described by Gonzaullas, as follows:

“I found a secret built-in trap in the wall, or in the wall structure, in the corner of a door. It was a 4x4 piece of lumber, running from the ceiling to the floor. I moved this. piece and behind t'hat was a pipe, which had a cap on it. * * * I guess about 1 ½ or 2 inches in diameter. It had a cap on it, and I unscrewed that cap and smelled the odor of whisky. This pipe was about three feet from the ground and run into the ground. * * *
“I turned to the defendant, Joe Griffin, and asked him what this was, and he did not have anything to say. I called the other officers in and told them, ‘It looks like I have found the crop,’ the term I used, meaning a trap, ‘but I don’t know how to get in to it.’ * * * So I took my coat off, and asked the defendant, Joe Griffin, how to get into it. I don’t believe he answered me at that time, and 1 said, T will have to dig it up I guess, or tear the building down to find out how to get into the outfit.’ 1-Ie said, ‘Never mind doing that. I will show you how it works. You will find it anyway.’ * * *
“He went over to the opposite side of the room, and another 4x4 was-there. There were several of them,- of course, but this other 4x4 was in a corner of a door also. He pulled this open, and in this place, there was another copper tubing run up, and he reached down and picked up a hose off of the floor, an air ho'se that you put air in tires with, and attached it to it, and forced the air into this pipe, which went into a tank, and got pressure up, and he went over then and got a bottle which was setting near, * * * and put it underneath this pipe and filled it up. I asked him how much there was in there, and he said, T think about 25 or 30 gallons.’ ”

The position taken by the appellant’s counsel is that the presence of the whisky was discovered through the search, which was made under a void search warrant, and that the evidence obtained by the search was not admissible against the appellant, but was received in opposition to the law as declared in article 727a, C. C. P., which reads as follows: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Vernon’s Ann. C. C. P. art. 727a.

The appellant did not testify, and introduced no testimony save that of his wife, to which reference will be made hereafter. On the trial, the facts were developed out of the hearing of the jury, and, with all of them before him, the court held the evidence sufficient to go to the jury, and in effect held that the testimony of the officers, as above stated, admissible in evidence. From the officers’ testimony, it is manifest that they found whis-ky from their own efforts; that, after finding the whisky, they practically coerced the appellant by threatening to tear down his house to show them how they could reach the whis-ky-

In the case of McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54, this court said: “Having taken the witness stand himself and admitted having in his house practically everything of a criminative character, the officers claimed to have found appellant is in no position to ask for a reversal of the judgment.”

In Frey’s Case, 109 Tex. Cr. R. 168, 3 S.W.(2d) 459, 460, it was said: “Having testified to the same facts as stated by the officers relative to the quantity of whisky he possessed, appellant cannot now claim to have been injured by the testimony of the officers, even if such testimony was improperly admitted.”

See, also, Bevers v. State, 110 Tex. Cr. R. 612, 9 S.W.(2d) 1040; Pence v. State, 110 Tex. Cr. R. 378, 9 S.W.(2d) 348; Sherow v. State, 110 Tex. Cr. R. 539, 9 S.W.(2d) 353, and others.

As stated,in each of the cases mentioned, the appellant having either taken the stand and given testimony himself or by putting others upon the stand and given testimony as to the result of the search substantially as that which was given by the officers, the right to a reversal because of the testimony which the officers obtained in an illegal search has been refused.

In the present instance, the appellant gave no testimony himself and did not take the stand. Apparently his case is upon the same principle as that applied in the ease of Haynes v. State, 110 Tex. Cr. R. 553, 9 S.W.(2d) 1043, in which the following is found:

“The officers had seen appellant take the carton from his ear and place it in the ice box, but did not know what was in the carton ; they later heard him tell ‘Boots’ he had bought five gallons of whisky and put it in the ice box. B.ut, as we understand the evidence, they had searched the ice box and discovered the whisky before hearing such admission from appellant. If this admission had been heard by the officers before they made the search, such admission in connection with what they had seen might have authorized an arrest and search under article 212, C. C. P. .* * *
“The admission from appellant came to the officers’ knowledge subsequent to a search of the ice box without a warrant authorizing it; such subsequent admission would in no sense legalize a search already illegally conducted, nor render admissible evidence obtained thereby.”

In the instant case, from the moment the officers arrived with a warrant to search the appellant’s place, he was under their dominion. Neither he nor the officers knew that the warrant was void, and the acts of each should be interpreted as though the warrant was valid: that is to' say, the warrant justified the effort of the officers to enforce it, and required acquiescence by the appellant. So interpreted, the conduct of the appellant cannot be regarded as a waiver of his rights but as obedience to the process of the courts which the officers were executing. No consent to an illegal search can be inferred from the conduct of the appellant. He was silent until the officers made the threat to destroy his property in order to get possession of the liquor which they had located. The threat amounted to coercion. Precedents are collated in Cornelius on Search & Seizure (2d Ed.) pp. 74, 76, notes, including Jordon v. Commonwealth, 199 Ky. 331, 250 S. W. 1004; Hays v. State, 38 Okl. 331, 261 P. 232. See, also, Smith v. State, 133 Miss. 730, 98 So. 844; Meno v. State, 197 Ind. 16, 164 N. E. 93; Banfill v. Byrd, 122 Miss. 288, 84 So. 227; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 E. Ed. 654; United States v. Slusser (D. C.) 270 F. 818; Salata v. United States (C. C. A.) 286 F. 125; State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284; Jackson v. State, 153 Tenn. 431, 284 S. W. 356; Matlock v. State, 155 Tenn. 624, 299 S. W. 796; Conner v. State, 201 Ind. 256, 167 N. E. 545.

The testimony of the appellant’s wife, in its entirety, is as follows: “I remember the occasion when the officers came out and searched.that place and found some liquor. We had moved back that day. We moved about noon. The raid was in the afternoon, sometime of the same day we moved back out there.”

The wife’s testimony particularizes no place of search. It is only inferentially that it applies to the transaction which is the basis of the prosecution of the accused, being only involved in the possession of intoxicating liquor for the purpose of sale. The quantity of intoxicating liquor becomes an element. It was so treated in the charge of the court. Excluding the officers’ testimony, we fail to perceive any evidence in the record showing that the appellant possessed more than one quart of intoxicating liquor or any other fact legitimately before the jury which would warrant either the charge given by the court on the effect of prima facie evidence 'as applied to more than one quart of intoxicating liquor.

Excluding the testimony of the officers, we fail to perceive any evidence in the record which warrants the conviction of the appellant. For that reason, the judgment is reversed, and the cause remanded.


author: LATTIMORE, Judge.

text:
    ADAMS v. STATE.
    No. 15495.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Rehearing Denied April 5, 1933.
    Lockhart & Brown and Tom Garrard, all of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

By direct testimony the state showed the sale of one-half gallon of whisky to the party named in the indictment as the purchaser. Appellant swore that he did not make such sale. On cross-examination he admitted that the alleged purchaser was a man of good reputation, but insisted that there was a mistaken identity. Appellant introduced witnesses who gave testimony to his good reputation in all regards.

We find three bills of exception. One complains of the action of the state in eliciting from appellant while on the witness stand, the fact that he was under indictment in another felony case. The objection to this was that it was incompetent for any purpose. The uniform holding of this court is that it is permissible to ask such question under such circumstances, its affirmative answer being admissible as affecting the credibility of the accused. The court expressly limited in his charge the jury’s consideration of said testimony to such purpose.

Another bill of exception complains of the fact that the indictment for the other felony referred to, should not be held provable because it was returned by the same grand jury which returned the instant indictment. We think there is nothing in the objection.

The remaining bill of exception complains of argument of the state’s attorney in closing the case. The bill is qualified by the court with the statement that the argument of the district attorney was in answer to the argument made by appellant’s attorney. This would prevent our holding the argument erroneous, even if same was in fact of such character, which might be seriously doubted.

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


author: CHRISTIAN, Judge. DATTIMORE, Judge.

text:
    WHITE v. STATE.
    No. 15537.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Rehearing Withdrawn March 22, 1933.

      C. Stanley Banks, W. B. Oarssow, Eorrest Campbell, and Douglas & Black, all of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft by false pretext; the punishment, confinement in the penitentiary for six years.

The conviction is under an ordinary indictment for theft, it being charged that appellant fraudulently took from the possession of Mrs. M. A. Biglay $500 in money.

The testimony of the state was, in substance, as follows: Appellant was engaged in the real estate business in San Antonio, having an office in the Gunter building. O. A. Simpson was employed in the Gunter building as elevator operator. His galary was $75 a month. Appellant approached Simpson and told him that he had a chance to buy some iots, 'but could not take title to the property because of a judgment pending against him. He asked Simpson if he would take title to the property, saying that it was good clear property, and that if the lots were sold Simpson would receive half of the proceeds of the sale. He stated to Simpson that the property would sell for $600 a lot. He said he was going to trade for the lots, putting in his automobile as part payment. Further he told Simpson that it would not obligate him in any way if he took title to the property. On June 25, 1929, appellant had Simpson to execute a note for $500 and a deed of trust on two lots to secure the payment of the note. The note was made payable to Mrs. M. A. Biglay, the injured party. Simpson testified that he did not know when he signed the note that he was promising to pay Mrs. Biglay $500, nor that he was executing a deed of trust to secure her in the payment of that amount. He said he signed the instruments, but appellant did not take his acknowledgment to the deed of trust. The deed of trust showed that Simpson acknowledged it before appellant as notary public. Simpson testified that he at no time received $500 for the execution of the note. Appellant secured from one Mills, who resided in Philadelphia, a quitclaim deed to the two lots described in the deed of trust, paying Mills therefor $25. Mills operated a syndicate engaged in buying up tax titles, and the two lots in question had been bought at tax sales. Simpson was named as grantee in the quitclaim deed. At the time appellant paid $25 for the quitclaim deed there were unpaid city taxes on the lots for a period of thirty years, aggregating approximately $100. The testimony of the state was to the effect that the lots were not reasonably worth over fifty or sixty dollars, and that they were practically without value when the unpaid taxes were considered. Prior to the time appellant secured the quitclaim deed in the name of Simpson, appellant went to Mrs. Biglay, a widow 70 years of age, and stated to her that he had a party who desired a loan on two vacant lots, worth $400 each. Mrs. Biglay stated to appellant that she did not like to loan money on vacant lots. Appellant stated that the party desiring the loan was a good man; that he had known him for a long time; that he had made several loans to him; that he had always been prompt in repaying the money. Hpon appellant’s representation that the loan would be paid in a year, and that he would secure a note and deed of trust on the Iots from the owner, Mrs. Biglay delivered to appellant her check for $500 payable to appellant. Appellant promised to have the note and deed of trust executed and delivered to Mrs. Biglay. Two or three days after delivering the check to appellant Mrs. Biglay went to Colorado and remained there until some time in October. During the time she was in Colorado she received no evidences of the debt. When she returned to San Antonio, she called on appellant. After some delay, appellant delivered to her a note in the sum of $500 and a deed of trust on the two lots, both instruments 'being signed by C. A. Simpson. Appellant had placed the check in the bank to his credit and used the proceeds. The state’s testimony was to the effect that Simpson did not have good title to the lots.

Appellant denied that he stated to Mrs. Big-lay that the loan was to 'be made to a. third party, stating that he said to Mrs. Biglay that the loan would be made on the Simpson lots. His testimony was to the effect that the transaction was bona fide. He said that he had frequently made loans for Mrs. Biglay. He declared that he had had the instruments executed at the time he received the $500 and had delivered them to Mrs. Biglay as soon as she returned from Colorado. He testified that the lots were worth the amount he had represented.

The state’s testimony was to the effect that Mrs. Biglay had been a widow for 40 years. She had, during the time of her widowhood, done various kinds of work, including housework in families, cooking, ironing, etc. She ¡had worked in hotels and cafés. She had saved the money appellant obtained from her. According to the state’s testimony, appellant did not repay the money.

Appellant contends that the offense of theft by false pretext is not supported by the testimony, his position apparently being that the offense, if any is shown, is swindling. We are unable to agree with this contention. In Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85, the proof showed that Sims owned two hogs. Anderson proposed to buy them. Sims consented to sell them at $7 a piece, and at that price an agreement was made with Sims to sell and Anderson to buy the hogs. Anderson offered to pay Sims if he would deliver the hogs to the home of Anderson. Sims declined, but referred him to Kellum, and, in consideration of $1 to be paid by Anderson, Kellum moved the hogs to Anderson’s home. Anderson represented at the time of the purchase that he had the money at his home. Sims demanded cash and said he needed the money to pay a note and would not sell on credit. When the hogs reached Anderson’s home, Sims demanded his money and Anderson refused to pay it. Upon these facts Anderson was held guilty of theft by false pretext. It is to be noted that' Sims parted with possession of his hogs with intent to vest in Anderson the title thereof. However, such intent was based on Anderson’s representation that he had the money at his home which would 'be delivered to Sims upon reaching Anderson’s home.

In the present case, Mrs. Biglay delivered the check for $500 to appellant upon the representation by appellant that he would make a loan of the money to a party owning two lots, and secure from said party a note for $500 and a deed of trust on the lots to secure the payment of the note. Appellant did not make the loan. On the contrary, he appropriated the money to his own use and 'benefit. After appropriating the money, he delivered Simpson’s note and deed of trust to Mrs. Big-lay.

In Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908, it is shown that the appellant represented that she had a secret connection with a certain oil driller from whom she would receive inside information about wells which were drilling, before they were completed, which information would enable her to double and treble the money turned over to her to be invested in such venture. Upon such representation, the appellant received from Dora Wilson a large sum of money. After the first transaction, the appellant represented to Miss Wilson that her investment had largely increased her funds, and upon such representation, acquired from Miss Wilson an additional sum of money, to be used with the other money above described, and, as an assurance to Miss Wilson against the loss of her money, the appellant executed a note in favor of Miss Wilson for the money received. The note was not paid and was never intended to be paid, .so the jury found. The appellant absconded without making restitution of any of the money. Under the foregoing facts this court sustained a conviction for theft by false pretext.

Article 1413, Penal Code, relating to theft, reads as follows: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and 'benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

Article 1549, Penal Code, reads as follows: “Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in such manner as to come within the meaning of theft or some other offense the rules herein prescribed with regard to swindling shall not be understood to take any such ease out of the operation of the law which defines any such other offense.”

We quote from DeBlanc v. State, 118 Tex. 628, 37 S.W.(2d) 1024, 1026, as follows: “The facts in the case of Anderson v. State, supra, as well as the reason of the court in affirming the judgment, are illustrative of the point, which seems to have been overlooked in some of the decisions of this court, that, where the facts are such as would warrant a prosecution upon either swindling or theft, the indictment should bo for theft. The prosecution should be for swindling only in cases in which the facts would not sustain a conviction for theft, or a conviction under some other provision of the Penal Code penalizing the fraudulent acquisition of property. In the case under discussion, the following remarks are made: ‘If, however, the facts in this case should be held to constitute swindling under article 1421, yet it cannot be gainsaid' that the facts would authorize a jury to find that the possession of the hogs was obtained by fraudulent pretext, with the intent to deprive the owner of their value, and with the intent to appropriate the property to his own use and benefit, and under such circumstances he would also be guilty of theft by fraudulent pretext.’ ”■

The indictment charged that appellant ^obtained from Mrs. Biglay $500 in money, while the evidence showed that he received from Mrs.'Biglay a cheek for the amount of $500, which he deposited in the bank to his own credit, and which was thereafter paid. Appellant contends that there was a fatal variance between the allegations of the indictment and the proof with respect to the property obtained 'by him from the injured party. In Wimer v. State (Tex. Cr. App.) 48 S.W.(2d) 296, the appellant was prosecuted for swindling. The proof showed that he received a check for $3,023.23 from the injured party, which he deposited in the Alamo National Bank to his credit, and which was thereafter paid 'by the City Central Bank & Trust Company. The indictment charged $3,-023.23 in money was received from the injured party by the appellant. The conclusion was reached by this court that there was no variance. It was said that it appeared that the check was simply used as an instrument through which the money was received. In Wimer’s Case we quoted at length from the case of State v. Detloff, 201 Iowa, 159, 205 N. W. 534. In Detloff’s Case, it was held that a situation such as is under consideration here presented no fatal variance. We are unable to reach the conclusion that a different rule should be applied to a case of theft by false pretext. In both swindling and theft by false pretext the property is obtained by virtue of a false pretext or representation. From what we have said, it follows that we are of the opinion that there is no fatal variance between the allegations of the indictment and the proof with respect to the property obtained by appellant from the injured party. We disclaim any intention of holding that the rule here announced is applicable to cases of ordinary theft.

Appellant contends that the court in its charge permitted a conviction on any kind of false pretext, and failed to restrict the consideration of the jury to specific false pretexts. There were no objections to the charge, and no special charge on the subject. .Article 658, C. O. P., provides that before the charge is read to the jury the defendant or his counsel shall have a reasonable time to examine same and that he shall present his objections thereto in waiting, distinctly specifying each ground of objection. Article 666, C. O. P., requires that all objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial. We are unable to reach the conclusion that the charge presents fundamental error.

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 Affidavit to Dismiss Motion for Rehearing.

DATTIMORE, Judge.

Appellant has filed an affidavit requesting us to dismiss his motion for rehearing. Responding to the request, the motion for rehearing is dismissed.


author: CHRISTIAN, Judge.

text:
    HYDE v. STATE.
    No. 15885.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    R. Dee Davis, of Orange, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for two years.

Notwithstanding the record is before us without a statement of facts or bills of exception, appellant insists that certain errors were committed by the trial court which should work a reversal of the judgment. It is urged that the motion for a new trial, which was controverted by the state, manifests an erroneous ruling by the trial judge in admitting testimony touching the result of a search for intoxicating liquor; and, further, that the record reveals that the indictment was returned upon illegal testimony.

We have no way of determining whether the search was illegal. Appellant’s motion for a new trial constitutes a mere pleading. In all eases, to invoke a review of the action of the trial court'upon the receipt or rejection of evidence, a bill of exception is imperative. This is statutory. Fisher v. State, 108 Tex. Cr. R. 332, 1 S.W.(2d) 301. The objection to the evidence may be waived, and is waived, unless proper objection is made or timely motion to exclude is presented, and proper bill of exception preserved exhibiting the ruling and the complaint thereof. Eisher v. State, supra.

Touching the attach on the indictment, we quote from Branch’s Annotated Penal Code, § 484, as follows: “The courts will not go behind the action of the grand jury to inquire as to what evidence they had or did not have before them when considering whether or not they would present an indictment.”

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.


author: MÍORROW, Presiding Judge.

text:
    BAKER v. STATE.
    No. 15799.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    R. E. Dickson, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MÍORROW, Presiding Judge.

Possessing a narcotic drug is the offense; penalty assessed at confinement in the penitentiary for a period of five years.

In the indictment it is charged that “in the county and state aforesaid, O. P. Baker did, then and there unlawfully possess a narcotic drug against the peace and dignity of the State.”

In chapter 3, beginning with article 720 and concluding with article 726, P. C. 1925, the traffic in certain narcotic and poisonous drugs is under certain circumstances prohibited. In chapter 97, Acts 42d Leg. (1931) Regular-Session, p. 154 (Vernon’s Ann. P. O. art. 725a, § 1 (a, b), there is another statute upon the subject, which reads in part as follows:

“Sec. 1. (a) ‘Narcotic drug,’ as used herein, shall mean and include opium, morphine, heroin, cocoa leaves, cocaine, marijuana, or any compound, manufacture, salt, derivative, or preparation thereof. ‘Drug’ when used herein shall mean narcotic drug.
“(b) It shall be unlawful for any person to possess, have under his control, or deal in, dispense, sell, deliver, transport, distribute, prescribe, traffic in, or give away any narcotic drug.”

In the same section the penalty is prescribed, which includes a fine and confinement in the penitentiary for more than five years. The subsequent sections of the bill name the exceptions to the inhibition contained in section 1, also enumerate other means of violation of the statute.

“Marihuana (marijuana),” pronounced “merry-huana,” and called “griefo” or “merry” by addicts that use it, is a product of Mexican hemp. It contains a volatile drug. It is most often taken in the form of a smoke, and sometimes mixed with tobacco. It produces a high exhilaration, and when taken in excess, it motivates brutal criminality.

We have no authentic information touching the drug last mentioned above. No reference to it either in the dictionary or the encyclopedia has been discovered. The foregoing is from a statement in a magazine and the accuracy of the statement is not vouched for by the members of the court.

“Opium” is the product of a species of the poppy plant which is grown in India, Turkey, Persia, and Egypt. 0?he juice or sap of the plant is taken before it is ripe and dried. Good opium is a hard, compact solid of reddish-brown color. The sale of opium is prohibited in many countries besides the United States. See New International Encyclopedia, vol. 17, p. 490.

“Morphine” is an alkaloid of opium. Opium contains at least 9 per cent, of morphine. Morphine is regarded as one of the most useful of all drugs for the reason that when applied hypodermically it is unequaled as a pain-relieving drug. Morphine is not soluble in water. See Encyclopedia Britannica (14th Edition) vol. 15, p. 820.

“Heroin” is a derivative of morphine and resembles that drug. It is supposed to have a special depressing effect upon the spinal cord. It is a white crystal, soluble in water. Heroin is used in cough remedies. See Ency. Britannica, vol. 11, p. 515.

“Cocoa” is a South American shrub. Its dry leaves are a powerful nerve stimulant.

“Cocaine” is a crystalline alkaloid obtained from cocoa leaves and is used as a local anaesthetic. In large doses cocaine produces intoxicating effects similar to those of the Indian hemp. See Webster's New International Dictionary, p. 426.

While each of these substances are classed as “narcotic drugs,” it is apparently manifest that an indictment in which the offense is described as unlawfully possessing a narcotic, in order to comply with the Constitution, should name the substance that is intended. In the absence of such an averment, one charged, as in the present case, with the possession of a “narcotic,” would be without information in the indictment relating to the evidence that the state intended to prove. Under such an indictment, he would be put on trial ignorant, so far as the information is contained in the indictment, of the act upon which his conviction was sought.

The classification of the articles mentioned in the statute now under consideration is an arbitrary one. The drugs are not all narcotics as is indicated by the description above stated. From Harris’ Constitution, p. 85, subd. 36, the following is taken: “The constitutional ‘right to demand the nature and cause of the accusation’ guarantees to the accused that the indictment or information shall state every fact and circumstance necessary to a certain, specific and complete description of the particular offense imputed to him.”

In order to comply with article 1, § 10, Constitution of Texas, the indictment must specify the facts which must be proved. See Hewitt v. State, 25 Tex. 722. Illustrations are numerous.

In testing the sufficiency of the indictment in the present case and in all cases, the command of the Constitution “that the accused shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof” controls the statutory law. This is illustrated in the opinion of Judge Hurt in the leading case, of Huntsman v. State, 12 Tex. App. 619, in which it is made clear that the requirement of the Constitution mentioned must prevail against the declaration of either the courts or the Eegislature. It is the intent of the Constitution that the accused in the particular case be given information upon which he may prepare his defense. This information must come from the face of the indictment. Looking elsewhere is not demanded by the law. See Huntsman v. State, supra, page 657 of 12 Tex. App.; also Kennedy v. State, 86 Tex. Cr. R. 450, 216 S. W. 1086; Clark v. State, 81 Tex. Cr. R. 157, 194 S. W. 157; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138. That the indictment in the present instance fails to comply with such demand seems plain.

The judgment should be reversed and the prosecution dismissed, and it is so ordered.


text:
    BAKER v. STATE.
    No. 15800.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    R. E. Dickson, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for selling a narcotic drug; punishment, five years in the penitentiary.

The Legislature, in defining the term “narcotic drug,” makes it include many drugs specifically named. In other words, by the very terms of the act, which is chapter 97, Acts Regular Session, 42d Leg. (Vernon’s Ann. P. C. art. 725a, § 1 et seq.), “narcotic drug” is made a generic term, in which case, under many authorities, it is not enough that one indicted for a violation' of the ¿provisions of said act be charged with possession, sale, etc., of narcotic drugs; but such indictment should go further and name the particular drug so possessed, or sold in the particular case. Brewer v. State, 5 Tex. App. 248; McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Dixon v. State, 21 Tex. App. 517, 1 S. W. 448; Kennedy v. State, 86 Tex. Cr. R. 450, 216 S. W. 1086; Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515; Stanford v. State, 99 Tex. Cr. R. 111, 268 S. W. 161. The indictment in the instant case should have added to the avetment that a narcotic drug was possessed, a further allegation such as, to wit, morphine — or whatever drug was involved.

The indictment being insufficient, the judgment is reversed and the cause dismissed.


author: WALKER, Chief Justice.

text:
    POWELL et ux. v. ROCKOW et al.
    No. 2359.
    Court of Civil Appeals of Texas. Beaumont.
    March 30, 1933.
    Rehearing Denied April 5, 1933.
    T. H. Ridgeway and E. B. Simmons, both of San Antonio, for plaintiffs in error.
    T. J. Newton and J. M. Woods, tooth of San Antonio, for defendants in error.
   WALKER, Chief Justice.

This appeal is by writ of error, but the parties will be referred to as appellants and ap-pellees.

On or about the 29th of January, 1930, appellants, Ida H. Powell and her husband, J. O. Powell, sold to appellees, Lillian Rockow and her husband, Paul Rockow, their lease on the Angelus Hotel in the city of San Antonio, and the furniture and fixtures in the hotel for $4,000; $1,500 in cash and the balance in a note, to be paid in monthly installments of not less than $50, with 8 per cent, interest and with maturity clause upon default in the monthly payments, secured by a ■chattel mortgage upon the property. Appel-lees paid the installments due on February 1, March 1, April 1, and May 1, and on or about the 10th day of May, 1931, brought this suit to rescind the sale and to recover back the .■cash consideration paid, and to cancel the unpaid note on allegations that the representations upon which they purchased the property were falsely and fraudulently made. Appellants answered only by general and special ■demurrers, general denial, and by cross-action against appellees, praying for judgment for the balance due on the note, with foreclosure of their chattel mortgage. The following issues were submitted to the jury, answered as indicated:

“Special Issue No. 1: Did the defendant Ida H. Powell or the defendant, J. O. Powell, or either of them, represent to the plaintiffs Mrs. Lillian Rockow or Paul Rockow that the Angelus hotel was a hotel of a good reputation, that it had a lucrative patronage and that its patrons were of good reputation and of the best people, and that if these plaintiffs did purchase the good name of said hotel together with’the lease, furniture and furnishings from the defendants and operate said hotel, that plaintiffs could thereby earn for themselves a comfortable liying and save enough in addition to said living to, in two years from the operation of said hotel, pay off the note of twenty five hundred dollars?” To which the jury answered: “Yes.”
“Special Issue No. 2: Were the plaintiffs induced by said representations to purchase said hotel and to pay therefor the sum of fifteen hundred dollars in cash and execute their note for the sum of twenty five hundred dollars?” To which the jury answered: “Yes.”
“Special Issue No. 3: Were the representations as set out in Special Issue No. 1 true?” To which the jury answered: “No.”

On the verdict, judgment was entered in favor of appellees against appellants for $1,700, with foreclosure of the equitable lien pleaded by appellees against the property to secure the payment of the $1700 and for cancellation of the unpaid note. The appeal was to the San Antonio Court of Civil Appeals, transferred to this court by order of the Supreme Court.

Under their evidence, appellees went to San Antonio in December, 1929, from Indiana, for the health of Mr. Rockow; they rented a room in the Angelus Hotel and in that way met appellant Mrs. Powell; Mr. Rockow was confined to his bed most of the time and his wife spent most of her time when in the hotel with him, and knew nothing about the business of the hotel or its general reputation or the class of its patronage; it was necessary for her to find work; Mrs. Powell was kind and sympathetic, visited them in their rooms, and when she learned they had $1,500 offered to sell them her furniture in the hotel and transfer to them the lease, and, in inducing them to make the trade, made the representations submitted to the jury by question No. 1; she represented further that the chief value of the property was the good will of the hotel, and that the furniture itself was worth only about $500; the price paid by appellees for the property was much more than it was worth. As to the representations made by Mrs. Powell, Mrs. Rockow testified:

“A. She said the place she had there she wanted to sell and wanted to get out of that business because she had 'been in it for so many years, and that it would be a nice little place for me to buy and I could look after Mr. Rockow and still have a suitable income and pay all of my expenses and have a good living.
“Q. What did she say to you with reference to the length of time the hotel had existed? A. Thirty some years.
“Q. What did she say with reference to the reputation. of the hotel? A. Wej.1, she told me that it was — -represented it to me as a good standing — of a long standing and good reputation, and lucrative patronage, and that its patrons were of good reputation, and that the people were of the best.
“Q. Well, what happened then with reference to the trade? A. Well, I put all trust and faith in her because I didn’t have any other friends,, didn’t know anybody here to go to, being a utter stranger in San Antonio, and I placed all confidence in her and thought she was trying to help me.
“ * * * Q. Did you rely tipon what she told you? A. Yes, every word.
“Q. Well, in accordance with those representations that you say she made to you, what happened? A. Well, I spoke to my husband about it and told him the way it had been represented that I thought if things were true, which was sure they were, because I didn’t feel like anybody should take advantage, tell me things that were, not true, — I said, ‘Well, it looks it’s about the best thing we could do if we take that and invest our money in there, and that if things were like they were represented to us,’ which I believed they were,— ‘that I could take care of him and make a living for both of us.’
“Q. Did you agree then to take the hotel? A. Yes, sir.
“Q. Prior to the transfer did you have any conversation with Mrs. Powell with reference to the possession of the hotel, seeing the landlord? A. Yes, we did, but she said that would not be necessary, that she would take care of all' that. She said if the landlord would see Mr. Rockow, see the condition that he was in and if he would take one look at me, she said we would be done for, because I was just about as inexperienced looking for anything like that, and his condition would make it all the worse.”

Appellant Mrs. Powell testified:

“Q. You didn’t represent to her that she could pay off that note by the operation of the hotel and earn herself a nice little living? A. Yes, sir, I told her that. I told her it would be a good home and business combined.
“Q. That it was a lucrative business and that she would be able to pay that note out from the rents — earnings from the hotel? A. Yes, sir.
“Q. And at the same time too you told her she could look after him and wait on him if he needed attention? A. That is what I have done.
“Q. Well, I say, you told her that, didn’t you? A. Yes, sir. I have no unkind feeling at all towards the Rockows.”

On the issue that the representations were false and fraudulently made, Mrs. Rockow testified:

“Q. What was the character of the patrons that came up there after you took charge of it, so far as you saw? A. Well, people came up to me and asked for things which we did not have.
“Q. What do you mean, what ‘things’ which you did not have? A. Well, the things that had been served there before.
“Q. Well, was it liquor or women? A. Liquor and women and all those things.
“Q. Would a man come up there and want you to procure a woman for him? A. Yes, sir.
“ * * * (j0 ahea¿¡ Mrs. Rockow. A. People came up and registered and I took them to the rooms and they asked me for women and I told them that we didn’t have any she they insisted upon me and I told them that I was not that kind of a woman.
“Q. Well, what statements did they make to you? A. Well, some of them would apologize; they said they used to be served any thing they asked for there and they said, ‘It seems it has changed hands’ and I said, ‘Yes, it has.’
“Q. Now, did that continue during the first few months that you were there? A. Yes, it did until they learned, some of them came back and learned it had changed hands.
“Q. Then did that patronage come any more? A. No.
“ * * * Q. Why could you not afford to hire help? A. The place didn’t do enough to pay the rent and to pay Mrs. Powell and besides live.”

Mr. F. C. Vogley, sergeant of detectives for the city of San Antonio, testified that he had-been connected with the police department of the city for about fifteen years ; that he knew the Angelus Hotel, knew its general reputation with the people of San Antonio; that the place had 'been raided several times and prostitutes taken out of it; that the reputation of the hotel was bad; that he had raided the hotel; that the officers were called there “on the average of two or three times a month; we found men and women there that were not married, violating Section 1 and Section 2, Laws of the City of San Antonio ; they were prostitutes”; found liquor there on one occasion. The effect of Mrs. Roekow’s testimony was that she turned away the class of patronage that appellant had been entertaining at the hotel and tried to build up a new class of patronage; that she and her husband were decent people and tried to run a decent hotel; that they lost money in trying to run the hotel, having to sell their automobile and use the husband’s insurance in order to meet living expenses. The evidence was further to the effect that they met the monthly rent payments as they matured, and the lease transferred to them by appellants had expired before this case was tried. The other evidence was also to the effect that appellees had had no experience whatever in operating hotels or boarding houses prior to this transaction with appellants.

It is but fair to appellants to say that their testimony refuted the contention of appellees in every respect, as to the general reputation of the hotel and the character of its patrons. But the issue was for the jury and, under the statement made, the verdict has full support. This conclusion overrules all propositions challenging the insufficiency of the evidence to support the verdict.

There is no merit in the contention that appellees had to show a “loss” before they could have rescission of the contract. They contracted for a decent hotel and, under their testimony, the Angelus Hotel was nothing more than a cheap bootlegging joint and assignation house. However, as said above, appellees raised the issue that they suffered a material financial loss by reason of the false representations. We overrule appellants’ contention that the representation as to the $2,500 that appellees could pay it off in two years “was a representation dependent upon future contingencies and could not form a basis of the rescission of the contract.” This point was not made in the exceptions to the charge, as submitted to the jury.

Appellants advance the following proposition: “It was error for the court to submit to the jury Special Issue No. 1, embracing more than one issue, one of which was unsupported 'by the evidence.” This proposition is advanced under the thirteenth assignment of error, being the exception reserved to the court’s charge, which reads as follows: “The court erred in submitting Special Issue No. 1 and Special Issue No. 3 tor the.reason that Special Issue No. 1 contained more than one issue of fact and Special Issue No. 3 was made dependent on Special Issue No. 1; said special issues, as submitted, were duplicitous, misleading and' were not in the form provided for by law.” It appears from the assignment that there is no basis for the proposition that one of the issues submitted by question No. 1 “was unsupported by the evidence.” Under Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920, the proposition is too general, as is also the assignment of error, to constitute error. Appellants should have directed the court’s attention particularly to the distinct issues submitted by question No. 1, which made it duplicitous. However, under the pleading of appellees, we do not think the form of the question constituted error. The different elements of question No. 1 .were pleaded by appellees conjunctively as constituting the fraud upon which they sought rescission. As pleaded by them, the fraud consisted of the making of all the representations ; that, conjunctively, the representations were false and, as pleaded, they were submitted to the jury. It thus appears that the several elements of this question were pleaded as constituting one issue and, therefore, it was not error to submit them con-junctively, as was done. Therefore, the form of the question was not reversible error. Ft. Worth & R. G. Railway Co. v. Keith (Tex. Com. App.) 208 S. W. 891.

There was no error in rendering the personal judgment against Mrs. Powell for the $1,700. Though a married woman, she did not plead coverture as a defense; besides, under the evidence, the Angelus Hotel was her separate property and the $1,700 was paid to her as her separate property; therefore, she was personally responsible for its repayment to appellees.

Appellants insist that they should have had an instructed verdict on the following grounds: (a) Appellees failed to offer evidence “that they had offered to restore” at least the furniture and fixtures to appellant; (b) having “retained and operated said hotel more than two months after discovering the alleged fraud,” appellees could not have rescission; (c) to have rescission, it was incumbent upon the defendants in error to show by the pleadings and evidence the condition said furniture and furnishings were in at the time same was tendered back to plaintiffs in error, in order to place the court in position to do equity between the parties; (d) in order to have rescission, it was necessary for appellees to show, by pleading and proof, that the furniture and furnishings were in the same condition when tendered back as when received by them from appellants ; (e) in order to have rescission it was necessary for appellees to tender to appellants “the reasonable value of the rents, revenues and use of said hotel, and said furniture and furnishings during the time they used the same,” which was not done; (f) “having retained all the revenues and benefits from the operation of said hotel,” appel-lees could not have rescission; (g) failure of appellees “to make tender of payment for the use of the hotel precluded them from rescinding the contract”; (h) there being no evidence as to the condition of the furniture and furnishings, the trial court had no power to render an equitable judgment upon the answers of the jury rescinding the contract; (i) appel-lees having “retained all the benefits from the operation of said hotel” could not have rescission. These contentions are all overruled. Appellees pleaded the contract, the inducements that led them to make the contract, and that these inducements were falsely and fraudulently made. Under their allegations, the contract was voidable because they never gave their assent to take over the hotel that was, in fact, delivered to them. In their petition they tendered the property back to appellants, subject to their equitable lien, to secure the repayment of the advance of the cash paid by them to appellants. This tender, and the prayer for rescission, were declined by appellants; and the contract pleaded by appellees was put in issue by appellánts’ general denial. They also reaffirmed the contract, as in fact made, and asked for affirmative relief thereon by their prayer for judgment for the 'balance due on the'note and for foreclosure of their mortgage lien. Under the allegations of appellees’ petition, they were entitled to rescission if the facts pleaded by them were found to be true, unless this relief was defeated by an affirmative defense on the part of appellants. They made no defense except that of general denial. All the contentions made by appellants for instructed verdict involved issues that should have been specially pleaded; that is to say, it was the duty of appellants to raise the issue by an affirmative plea that appellees had ratified the contract; that the furniture and furnishings had been abused by appellees; that it was tendered back in a worse condition than when received; that appellees had profited by their occupancy and operation of the hotel; that they had retained revenues and benefits that should be accounted for, etc. Black on Rescission and Cancellation, § 64, says: “The plea or answer in a suit for rescission * * * should cover all the equities of the case. * * * a plea or answer alleging af-firmance of the disputed contract by the plaintiff, or his ratification of it or acquiescence in it, or his laches in regard to disaf-firming it, must allege fully and specifically his discovery of the fraud, etc., or knowledge or notice of the facts, which alone would make a ratification acquiescence effective.” See, also, Wisdom v. Peek (Tex. Civ. App.) 220 S.W. 210. In Gray v. Allen (Tex. Civ. App.) 243 S. W. 684, it was held that matters of es-toppel and a claim for reimbursements should be pleaded by the defendant. In Patrick v. Roach, 21 Tex. 255, our Supreme Court said: “The general rule of practice in suits for rescission of sales for fraud * * * is for the parties to set up their respective equities for rents and profits, or for improvements and interest on the purchase money, etc. This is a rule of practice in equity, and has the most imperative force in our system of procedure.”

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: McCLENDON, Chief Justice.

text:
    COLEMAN GAS & OIL CO. v. SANTA ANNA GAS CO.

    No. 7851; and Motion No. 7477.
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1933.
    Rehearing Denied March 22, 1933.
    Critz & Woodward, of Coleman, for appellant.
    Woodruff & Holloway, of Brownwood, for appellee.

       Writ of error granted.

   McCLENDON, Chief Justice.

Appeal from a judgment in favor of Santa Anna Company, appellee, enjoining Coleman Company, appellant, from violating an ordinance of the Santa Anna city commission fixing specific rates for sale of natural gas to domestic' and commercial consumers.

The grounds for reversal urged by Coleman Company are:

1. That the city was a necessary party to a suit to enjoin violation of the ordinance.

2. That the ordinance violated the due process of law and obligations of contract provisions of the Federal and State Constitutions (Const. U. S. Amend. 14; and art. 1, § 10; Const. Tex. art. 1, §§ 16, 19), in that the Coleman Company was the owner of a franchise, granted by the city in 1912, which fixed the rates (lower than those in the ordinance) it was charging.

3. That it had the right to disregard the ordinance and to test its validity in this proceeding because it had no right of appeal from the ordinance.

4. That since the field was limited, and the patronage sufficient to support only one of the two competing utilities, it had the inalienable right to engage in “cut-throat competition,” and thereby to drive its competitor from the field.

We will refer to these grounds by number.

First Ground. Santa Anna Company as a competitor of Coleman Company had the legal right to enjoin disobedience of the rate ordinance. Tugwell v. Ferry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654; Lindsley v. Ry. Co. (Tex. Civ. App.) 200 S. W. 207; Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, 126 N. E. 739, 18 A. L. R. 929; McQuillan Mun. Corp. (2d Ed.) § 1915.

Since the suit did not bring in question the validity of the ordinance, but merely sought to enforce it as enacted, the city was not a necessary x>arty. The authorities cited by appellant (32 C. J. p. 299, § 480, note 55; 47 C. J. pp. 73, 81, notes 61, S3; In re Engelhard & Sons Co., 231 U. S. 646, 34 S. Ct. 258, 58 L. Ed. 416) do not sustain its contention. In tlie Engelhard Case it was held that the city was the representative of the public in an action against it by a utility to enjoin enforcement of municipally imposed rates, and that the trial court did not abuse its discretion in refusing permission of a consumer, as representing a class, to intervene upon the theory that the city might not diligently prosecute the suit. We can see no reason for making the city a party to a suit brought by an individual to enforce his rights under a city ordinance. In a direct attack upon the ordinance the city would be a necessary party. Engelhard Case, above. Unless absolutely void, the ordinance could not be attacked collaterally, as the Coleman Company is attempting to do in this case. It seems to us that the only theory upon which the city would be a necessary party would be that the defenses urged by the Coleman Company constituted a direct attack upon the ordinance, in which event it would be incumbent upon it to make the city a party. The city has the right to enforce the ordinance, in its capacity as representative of the public interest. But we cannot see that it was a necessary party to a suit by a competing utility to prevent infringement of its rights through disobedience of the ordinance. No authority to that effect has been cited. Necessary parties are those whose interest in the subject-matter is of such a nature that final decree cannot be entered without affecting their interests. Wilson v. Imp. Dist. (Tex. Civ. App.) 256 S. W. 346.

Second Ground. The making of rates to operate prospectively is a legislative function, Missouri-Kansas & T. R. Co. v. Railroad Comm. (Tex. Civ. App.) 3 S.W.(2d) 489; Producers’ Refining Co. v. Missouri, K. & T. R. Co. (Tex. Com. App.) 13 S.W.(2d) 679; and when delegated to a municipality cannot be bartered away, City of Uvalde v. Uvalde Electric & Ice Co. (Tex. Com. App.) 250 S. W. 140.

Appellant contends that the rates named in its franchise constituted a valid contract with the city because the latter did not have the rate making power at the time (1912) the franchise was granted. It cannot be questioned that the rate-making power inhered in the Legislature; and certainly it cannot successfully be maintained that the city could barter away a right which inhered .in the Legislature, when it could not have bartered away such right if it had then been delegated to it by the Legislature. The power of the Legislature was unimpaired by any action of the city, and when that power was later delegated to the city, it was in like manner unimpaired.

We have considered this subject upon the assumption that the franchise rate was an attempted contractual obligation. It is unnecessary to determine the correctness of this assumption.

Third Ground. The city passed the rate ordinance originally on August 6, 1931. The Coleman Company applied to the city on August 26, 1931, for permission to reduce its rates to those specified in its franchise. October 23, 1931, the city denied this application and re-enacted the August 6th rates. No appeal was taken from this action.

Appellant contends that R. S. art. 6058, gives the right of appeal to utilities only where the city “has ordered any existing rate reduced.” This contention is predicated upon the wording of the first sentence of the article. Further along the article provides: “Whenever any local distributing company or concern, whose rates have been fixed by any municipal government, desires a change of any of its rates, rentals or charges, it shall make its application to the municipal government where such utility is located and such municipal government shall determine said application within sixty days after presentation unless the determination thereof may be longer deferred by agreement. If the municipal government should reject such application, or fail or refuse to act on it within said sixty days, then the utility may appeal to the Commission as herein provided.” This language is too plain to call for construction.

The Coleman Company laid a predicate, under the express authority of this provision, to appeal from the city’s action. This, however, it did not do; but proceeded to disregard the ordinance,'and the Santa Anna Company sought relief by the instant proceeding.

Article 6059 gives the right of review of the commission’s orders by suit “in a court of competent jurisdiction in Travis County.”

In Community Natural Gas Co. v. Natural Gas & Fuel Co., 34 S.W.(2d) 900, we held in effect that this remedy was exclusive, and that the only power of the courts was to give temporary relief, pending resort to the prescribed procedure. No considerations have been advanced which, in our opinion, impair the soundness of that holding. The equity powers of the courts are not properly invoked so long as adequate statutory remedies have not been exhausted.

Fourth Ground. This ground is predicated upon the majority holding in Great Northern U. Co. v. Pub. Serv. Comm. (D. C.) 52 F.(2d) 802, 805, which is thus tersely stated in the majority opinion: “When the state launches two upon the sea' of competition, and the plank of patronage will support but one, it cannot in reason deny them the right of necessity to fight to a finish for financial life, even as may two castaways at sea battle to •the death for the spar which will support but one, without any wrong to the survivor attaching.” This holding was by a three-judge Federal District Court in Montana, sitting in an application for a temporary injunction restraining the Montana Public Service Commission from putting in effect a rate order. The majority opinion is concurred in by two District Judges. At the time it was handed down the Circuit Judge (the third judge sitting) “decided to dissent on the ground that I regarded the order as well as the statute valid.” He later concurred in the order, but upon an entirely different ground from that announced in the majority opinion, namely: •

“A public service commission has the power, under the Federal Constitution, to fix a precise rate that will mark both the maximum and the minimum range of a public utility’s rates. But, when a commission undertakes to do this, it must see to it that the rate thus fixed will give to the utility company ‘a fair return upon a fair value’ of the company’s property.
“Since the commission in the instant case avowedly did not do this, I concur in the decree granting an injunction to prevent the commission from putting the order complained of into effect.”

The principles applied in the concurring opinion are of unquestioned soundness; and it is interesting to note that the opinion makes no allusion whatever to the holding of the majority.

In a per curiam opinion the Supreme Court of the United States affirmed the order in the following language: “The order granting interlocutory injunction is affirmed, without prejudice to the consideration and determination at final hearing'of all questions of law and fact, including the question of the reasonableness, in the circumstances disclosed of the order which is the subject of the suit. Alabama v. United States, 279 U. S. 229, 230, 231, 73 L. Ed. 675-677, 49 S. Ct. 266.” Public Service Commission v. Great Northern Utilities Co., 285 U. S. 524, 52 S. Ct. 313, 76 L. Ed. page 921.

The holding in the cited case follows: “It is well established doctrine that an application for an interlocutory injunction is addressed to the sound discretion of the trial court; and that an order either granting or denying such an injunction will not be disturbed by an appellate court unless the discretion was improvidently exercised.” Alabama v. United States, 279 U. S. 229, 49 S. Ct. 266, 73 L. Ed. page 677.

The majority holding in the Montana case appears to be sui generis in the annals of American Jurisprudence. This the opinion thus concedes: “This ease is somewhat unique in that, believe it or not, plaintiff resists defendant’s order to raise its rates. But if madness seems, is method in it, the object, cut-throat competition to a finish anticipated of a rival so lost to ethics as to poach upon plaintiff’s preserves and underbid it, its attitude that, in a restricted field wherein both cannot survive, if it must perish, it will die fighting rather than by slow starvation; and that it has an inalienable right of self-preservation to lay on until the other first cries, ‘Hold, enough,’ and flees the field whether or not damned.”

The only citations to the Montana case which we have discovered are Texas Electric Service Co. v. City of Seymour (D. C.) 54 F.(2d) 97 (by the Federal District Judge, Northern District of Texas), and City of Farmersville v. Texas-Douisiana Power Co. (by the Dallas Court of Civil Appeals) 55 S.W.(2d) 195, 200. The Seymour Case cites the Montana case with apparent approval. However, the opinion appears to be rested upon the holding that the city commission was disqualified as a rate-making body, because one of the competing utilities was municipally owned. Whether the learned District Judge intended to concur in the majority holding in the Montana case is not clear;especially when considered in the light of his reference to the concurring opinion.

In a very able opinion by Judge Dooney in the Farmersville Case, he discusses the principles governing municipal rate making, and the conclusions he reaches are in accord with ours herein, 1-Ie cites with approval the above-quoted holding of the concurring Circuit Judge in the Montana case; and while he does not refer to the majority holding, his conclusions are in our opinion not in accord with it. Specifically, we think, is this true as regards the holding (sustained by the highest authority) that “the law guarantees equal opportunities for competition, but does not and cannot guarantee economic results.”

The right for which appellant contends is the right to monopoly. If it were conceded that this right existed by virtue of the particular local conditions (insufficient patronage to support two plants), then it would seem much more reasonable to protect the right by inhibiting invasion of the territory by a rival. Somewhat sketchily drawn, the picture which the record portrays is substantially as follows: Appellant'and its predecessors in title had held undisputed sway in the field from 1912 to 1925, at which latter time a great deal of dissatisfaction had arisen in the community (whether justly so is unimportant) over the service given by appellant; and responding to a popular demand the city granted a franchise to appellee.' Appellant concedes that the ordinance rates are not unreasonably high — that is, not “greater than the traffic will bear.” But it asserts that due to the stated local prejudice, it cannot compete with appellee under uniform rates, since thereunder appellee will get all or the bulk of the patronage, and thereby render appellant’s investment worthless. Under this situation appellant claims the right of self-preservation by means of “cut-throat competition.” Its survival, under such pro^ cedure, would manifestly depend upon its greater financial ability to “take punishment.” But what if the tables were turned and it were a comparatively weak local concern, and its newly arrived competitor were a powerful intercity concern?. Would the same right be accorded the latter to drive appellant from the field and thereby destroy its property, because there was not sufficient patronage to support both? We are dealing, of course, with public utilities, whose property is affected with a public interest, and not with a mere private business. But even as to private individuals the right to compete for the sole purpose of acquiring a monopoly through destruction of a rival is denounced both by statute and by oft-repeated judicial decision. The rule, as to public utilities, is that the governing body has the right to make uniform fixed rates applicable to all alike, not simply maximum rates. This necessarily denies the right of competition as regards rates; which is generally conceded to be advantageous to the public as a preventive of that destructive competition which produces monopoly, and confines competition to the realm of service. This principle is applied by the Interstate Commerce Commission, and railroad and public service commissions throughout the country. Its validity cannot now be brought in question.

But, contends appellant, this general right of the city to inhibit destructive competition must give way to the right of self-preservation where conditions are such that only one utility can survive. In other words, the situation presented is one of natural or essential monopoly with the consequently inherent right to protection therein. If it be conceded that this right to monopoly exists, then it would seem to follow that the protection afforded should be just and adequate, through limiting the field to a single utility. Otherwise the weaker would in the smaller communities become the easy prey of the stronger. If monopoly is essential in such cases, then it should tie one created and protected ■by constituted authority, and not by financial power through the process of ruthless, destructive competition.

As pointed out in the Montana case: “The remedy is in the state’s hands, by restricting, as many states do, the number of utilities to the need of the field. The United States thus regulates interstate carriers.”

Such power inheres in our Texas municipalities by virtue of the right to grant or refuse utility franchises. Whether this power is unlimited, or subject to review for unreasonable exercise, is not here involved. But it seems to us that it would be much more reasonable to hold that it is subject to limitation by the courts in those exceptional cases where necessary to protect property rights, than that the courts in such cases may nullify the power of the city to make reasonable fixed rates thereby to prevent the “cut-throat” competition for which appellant contends. Were the dilemma of striking down the one (rate making) or the other (franchise granting) power of the city presented, we would be constrained to adopt the latter as much more in'consonance with reason, justice, and the general good than the former. We view the doctrine urged as dangerous, as well as novel, and are loath to give it our sanction.

Moreover, the problems incident to public utility regulation are legislative, not judicial, and expedients devised by the Legislature with the objective of correcting and preventing abuses, and at the same time dealing justly with the utilities, are not subject to judicial scrutiny, except where there is a clear invasion of some constitutional or inalienable right. Even did we entertain grave doubt as to the wisdom or ultimate effectiveness of the legislative policy, “we should be faithless to our supreme obligation if we interpreted the great generalities of the Constitution * * * as crystallizing our own notions of policy, our personal" views of economics, and our theories of moral and social improvement.” Mr. Chief Justice Hughes, in addressing the National Conference of Senior Circuit Justices at Asheville, N. C.

Appellee has cross-assigned error upon the action of the trial court in allowing appellant to supersede the judgment. This cross-assignment is overruled uppn the authority of Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A. L. R. 1103.

The trial court’s judgment is affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

The motion asserts that we erred 'in upholding the constitutionality of that portion of chapter 226 (p. 380) 42d Leg. (Vernon’s Ann. Civ. St. art. 1119), which prescribes that rates shall not be fixed so as to allow in excess of 10 per cent, per annum yield on “actual costs of physical properties, equipment and betterments” ; and that such holding is in conflict with that in the Farmersville Case (Tex. Civ. App.) 55 S.W.(2d) 195. We did not so hold. That portion of the act, was not involved in this case. The remaining portions of the act were held valid in the Farmersville Case, with which we are in full accord.

By several assignments it is urged that we erred in holding that appellant’s remedy was by appeal to the Railroad Commission, because the commission’s authority is only to review unjust, unreasonable, and discriminatory rates; and the relief here sought was against any rates whatsoever. It is not necessary to decide here whether (granted the right of a utility under any circumstances to engage in cut-throat competition) it would be necessary, before resorting to the court, to assert such right through the prescribed channels of appeal. Our holding, which we endeavored to make clear in the opinion, is that no such right exists, regardless of the proper forum in which to seek its enforcement.

The decision in the Great Northern Utilities Case on final hearing on the merits ([D. C.] 1 F. Supp. 328) throws no further light on the subject. As stated in our original opinion, we are in accord with the holding of the circuit judge, but cannot concur in the holding of the two District Judges in that case. The decision, whatever its real basis may be, is not binding upon this jurisdiction.

The motion is overruled.

Overruled.