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

text:
    MONTALVO v. STATE.
    No. 14498.
    Court of Criminal Appeals of Texas.
    Dec. 23, 1931.
    Appeal Reinstated Feb. 17, 1932.
    State’s Rehearing Granted Oct. 5, 1932.
    Appellant’s Rehearing Denied Jan. 25, 1933.

      Bismark Pope and Philip A. Kazen, both of Laredo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of cattle; the punishment, confinement in the penitentiary for three years.

We find in the record a purported judgment which begins by setting out the verdict of the jury as follows: “We the jury in the above styled and numbered cause find the defendant, Federico Montalvo, guilty as charged in the indictment and assess his penalty at three years confinement in the state penitentiary. Don H. Marsh, Foreman.”

Following the verdict is the order of the court adjudging appellant to be guilty of theft of cattle as found by the jury. It is not shown that appellant entered any plea. It is not shown that a jury was impaneled. Whether evidence was submitted is not disclosed. If the court charged the jury, or received the verdict, the judgment fails to show it. There was an utter failure to comply with article 766, C. C. P., relating to the requisites of a judgment. Hellman v. State, 87 Tex. Cr. R. 460, 222 S. W. 980.

No sentence appears in the record. A sentence is necessary to confer jurisdiction on the Court of Criminal Appeals. Butler v. State (Tex. Cr. App.) 8 S.W.(2d) 183; Doyle v. State, 104 Tex. Cr. R. 582, 286 S. W. 214.

The appeal is dismissed. Appellant is granted fifteen days from this date in which to perfect the record.

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 the Merits on Reinstatement of Appeal.

CHRISTIAN, J.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant lived with his father, Eustacio Montalvo, on a ranch, which adjoined a ranch belonging to Mr. Jones. The fences between the two ranches were in bad condition and Mr. Jones’ cattle ranged in the pastures belonging to appellant’s father. The Jones’ cattle were in tlie custody, management, and control of one Walter E. Long, who had permission to enter the pastures of appellant’s father at any time for the purpose of looking, for his stock. In riding through the Montal-vo pastures, Mr. Long had seen some calves tied to trees. Believing that these calves belonged to Mr. Jones, he turned a cow into the pasture for the purpose of finding out whether one of the calves belonged to her. He later made a further search of the pasture. He found the body of the cow in a thicket, it appearing that she had been recently killed. Near the place where the cow had been killed he found a calf tied to a tree. Officers having been notified went to the place where the cow was found and waited with Mr. Long for the purpose of detecting- the offender. After remaining at the place for more than twenty-four hours, they saw appellant and another boy approaching in a wagon. Appellant and his companion drove to a point near the officers and loaded the calf in the wagon. Upon the officers making their presence known, appellant said to them: “You are just in time, we are gathering our cattle, we are marking and branding our cattle.” One of the officers replied: “Yes, looks like you are handling somebody else’s cattle — Mr. Jones’ cattle.” Upon being questioned by the officers, appellant stated that his companion had roped the cow and that he had knocked her in the head with a hatchet. He said: “When we were dragging these calves she was bawling too loud — making too much noise.” One of the officers then said to appellant: “I guess you thought somebody might hear you from the road.” To this appellant replied: “That is the reason I killed her, to get her out of the way.” Going to the home of appellant’s father, the officers found four or five calves in the lot. These calves were turned into Mr. Jones’ pasture. The calf which appellant and his companion had loaded into the wagon belonged to the dead cow. The foregoing facts were elicited from state’s witnesses by the district attorney. Appellant offered no testimony.

The indictment charged appellant with theft of one head of cattle belonging to Mr. Jones. The state’s attorney before this court concedes that the evidence is insufficient to show that appellant stole the cattle found in the lot at the home of his father. The only testimony touching the identification of the animals last mentioned was that they were taken from the lot and placed in Mr. Jones’ pasture. No witness testified that they belonged to Mr. Jones. Appellant objected to the charge of the court for its failure to embrace an instruction to the effect that before he could be convicted the jury must believe beyond a reasonable doubt that he fraudulently took either the cow which was found dead, or the calf that appellant and his companion loaded into the wagon. This charge should have been given. Under the facts disclosed by the record the jury might have concluded that while appellant’s explanation as to his connection with the cow and calf found in the pasture was true and showed that he was not guilty of the theft of said animals, yet nevertheless he was guilty of theft of the animals found in his father’s lot.

Appellant’s statement concerning the dead cow tended to show that he did not steal said animal. He said he killed her for the purpose of keeping her from interfering with him when he was rounding up the calves. As to the calf found in the vicinity of the cow, appellant stated to the officers when they made their presence known that he was rounding up his cattle. Hence it is seen that as to both animals appellant made an explanation as to his possession which tended to exculpate him. The charge of the court did no more than to define theft and advise the jury to convict appellant if they believed beyond a reasonable doubt that he stole one head of cattle, as charged in the indictment. No affirmative defenses were covered in the charge. The defensive issues raised by appellant’s explanation should h'ave been affirmatively submitted in the charge. See Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. Appellant objected to the charge for the failure to submit such issues.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

LATTIMORE, J.

Both appellant and the state have filed motions for rehearing, and the case has been considered again as carefully as we are able, and we will restate the facts and the various propositions advanced.

The pasture of appellant’s father and that of Jones joined, and cattle seem to have gotten from one.t.o the other. Mr. Long had charge of the Jones cattle and pasture, and was the alleged owner of the cattle charged to have been stolen. On July 30, 1930, Long was in Montalvo’s pasture and found three calves tied to a tree, which he recognized as belonging to. Jones. Hearing a cow bawling along the Jones fence, he turned her into Montalvo’s pasture and she went straight to the calves, and when he presently left, one of the tied calves, a brindled bull calf, was sucking this cow which belonged to Jones and bore his brand. Mr. Long went to town, got two officers, and the party returned about an hour later to where the cow and calves were left, but found that during this time the calves had-been moved and the cow killed. Her body was still warm. Her calf was tied in a. thicket not far from the cow’s body. The party remained near the place until about noon of the next day, when a wagon appeared in which were appellant and Juan Garza. When appellant and Garza got near where the calf was tied and could see it was still there, they went to the body of the cow. One of them said, “Yes, there she is,” and they then circled back .to where the calf was tied, and, without setting out details, acting together they both got the calf into the wagon and tied it down. While so engaged the officers and Long walked up to a few feet of said parties. Appellant saw them, stood up, took a deep breath, and said in Spanish to Garza, “They have caught us.” Garza asked who, and appellant replied, “The officers.” The sheriff said to appellant, “Federico, I am surprised.” Appellant said: “You are just in time, we are gathering our cattle, we are marking and branding our cattle.” The sheriff said: “Yes, looks like you are handling somebody else’s cattle—Mr. Jones’ cattle.” The sheriff then walked with appellant over to the body of the dead cow and asked appellant who killed her. Appellant at first said that Garza did, but changed his statement and said: “I will tell you the truth, I killed her and Juan roped her and put her in this thicket for me.” The sheriff asked him if he knew whose cow she was, and appellant said: “Yes, she belonged to Mr. Jones.” The sheriff asked what her brand was and appellant stooped and wrote on the ground, “VI,” which was Mr. Jones’ brand. The sheriff testified that appellant first said he shot the cow, but when asked what with, he then said he knocked her in the head with a hatchet. He was then asked why he killed the cow and stated that when they were dragging the calves she was bawling too loud, making too much noise, and he killed her to get her out of the way. The officers took appellant and Garza to the Montalvo ranch house, where they found five head of calves in a pen, two of the calves being those which Long had seen tied with the brindled bull calf at the place where the cow was killed and to which appellant and Garza came at. the time of their arrest. These calves were turned into Jones’ pasture, and some of them were later seen in said pasture sucking their mothers, which were Jones’ cows. Mr. Taylor, the sheriff, and his deputy, Mr. Barfield, and Mr. Long all testified and were the only witnesses before the jury. Appellant introduced no testimony.

There are six bills of exception. The 'first complains of the refusal to Change the venue. Nine state witnesses swore that a fair trial could be had by appellant in the county of the prosecution. Appellant’s father and another were the only defense witnesses heard on this question. Appellant’s, father said he doubted if a fair trial could be had. The other witness thought it could. The bill shows no .error.

Refusal to continue the ease was made the subject of another bill of exception, but the record shows that on hearing of the motion for new trial the state introduced testimony to the effect that the only witness named in the application for continuance had appeared before the grand jury which investigated this case and testified directly contrary to the averments in the application. This bill shows no error.

Bill of exception No. 3 complains of the reception of testimony of what was said by appellant to the sheriff when found in possession of one of the stolen animals and near the body of the cow that was killed. Clearly this was res gestse of the offense and admissible.

The next complaint sets out a half page of the testimony of the sheriff, in substance, that when they got to Montalvo’s ranch house they found some calves in a pen which they took and turned into Mr. Jones’ pasture, and that witness subsequently saw one of these calves sucking a cow belonging to Jones. The objection to said testimony was as follows: “To all of which testimony appellant objected because the stealing of said cattle, if stolen, was a separate transaction with which defendant’s connection was not shown, and this was prejudicial to appellant.” It is impossible to read this record and not be convinced that appellant and Garza participated in the simultaneous taking of three head of cattle belonging to Jones, two of which were among those found by the officers at the ranch house after appellant’s arrest; also, that on the day following the taking of these three head appellant and Garza took and killed another head of cattle belonging to Jones. The objection in the bill was to the testimony as a whole. The testimony relating to the two calves other than the brindled bull calf, and the finding of same in the pen at the Montal-vo ranch house, as well as the testimony relating to the killing of the cow, was a necessary part of the development of the state’s case, regardless of which one of the animals might have been deemed the one head referred to in the indictment. No error appears in this bill. The same is true of the complaint in bills of exception Nos. 5 and 6 presenting objections to the testimony of Mr. Barfield and Mr. Long upon the same points.

Appellant presented a number of special charges, only one of which we deem necessary to discuss at all. Appellant’s special charge No. 4 is as follows: “Gentlemen of the Jury: If you believe from the evidence that an explanation made by the defendant as to his possession of one head of cattle alleged to have been stolen was consistent with his innocence and that such explanation was reasonable and probably true and accounted for his possession in a manner consistent with his innocence, such explanation should be considered as true, or if you have a reasonable doubt as to such matters such explanation should be considered as true and you must acquit the defendant, unless the State, by competent evidence, has proven the falsity of such explanation, and unless you believe that the State has, by competent evidence, proven the falsity of such explanation, or if you have a reasonable doubt as to whether or not the State has proven the falsity of such explanation, you must consider such explanation as true and acquit the defendant.” Manifestly such charge was inapplicable to the facts, was confusing, and an incorrect statement of the law. It is impossible to tell to what statement of appellant reference is had in the charge referred to. His first statement when he saw the officers, which was heard and testified to by them, was: “The officers have caught, us.” It is also true that two of the stolen calves had been moved from where they were tied, evidently by appellant and Garza, not more than an hour before the officers and Long came back to where the dead body of the cow was lying. It is also true that near the body of this cow was her calf. Was appellant talking about the calf in the wagon or its dead mother near by, or the two calves already taken by him and Garza to their pen, or the other three calves of Jones which were already in the pen? He made no application of his statement, nor do we see how the jury would be authorized to do so. No one asked him to explain about the dead cow, or the calf in the wagon, or the other five calves in the pen. The sheriff merely said, “I am surprised.” Appellant admitted in the same statement then made that he killed the Jones cow to keep her from interfering while they removed her calf. He made no claim to the calf in the wagon either then or at any other time, nor to any of the other animals referred to. The case was not one on circumstantial evidence in which the state was relying only on the circumstance of possession of recently stolen property. In fact, Mr. Long, the alleged owner of the stolen animals, saw appellant engaged in the appropriation of the calf that was in the wagon. It might also be said that in no case should a jury be told, as appears in the special charge referred to, that if “they have a reasonable doubt whether or not the State has proven the falsity of such explanation,” they must acquit. Of neceessity the jury would have a reasonable doubt as to whether the state had or had not, but the accused cannot in any case claim the advantage resulting from such doubt, no matter which way the doubt lies.

The state’s motion for rehearing is granted, the judgment of reversal is set aside, and’ .the judgment of the trial court is affirmed.

On Appellant’s Motion for Rehearing.

MORROW, P. J.

In the original opinion, the declarations of the appellant at the time of his discovery, namely: “You are just in time, we are gathering our cattle; we are marking and branding our cattle. * * * When, we were dragging these calves she was bawling too loud- — -making too much noise. * * That is the reason I killed her, to get her out of the way,” were made at the time the appellant appeared at the place where the officers previously found the cow that had been-killed and the calves that were tied to a tree. In the original opinion, the remarks of the appellant were treated as somewhat exculpatory and it was upon that assumption that the reversal took place. Taken as a whole, the remarks are not deemed exculpatory but amount to nothing less than an admission of the theft of the cow. In Hall’s Case, 41 Tex. 287, it was said: “We think that, under our statute, where the circumstances show the intent to steal, the offense of theft may be complete with the killing. * * * The hogs were killed in the woods, out of the immediate custody of the owner. By the act of killing, under such circumstances, the defendant may fairly be held to have had the hogs under his control and in his possession.”

In Gold’s Case, 81 Tex. Cr. R. 611, 197 S. W. 1110, the facts are in substance as follows: John Roberts missed his milk cow. A few days later the carcass of the cow was found in a pasture under the control of the appellant’s father. The cow had been shot. Appellant said to a witness that the cow belonged to him, that she was going to die, and that he killed her. The carcass was found in the brush. Appellant admitted that he had skinned the animal and sold the hide, but denied the killing. In passing upon the ease this court held that the facts were such as justified the appellant’s conviction for the theft of the animal. See Coombes v. State, 17 Tex. App. 258; Stegall v. State, 32 Tex. Cr. R. 100, 22 S. W. 146, 40 Am. St. Rep. 761.

Under the facts in the present case, we think the additional instructions to the jury were not required.

The application for a change of venue and the evidence thereunder have been re-examined. We entertain the opinion that the evidence heard is not such as would justify this court in holding that in refusing to change the venue the trial judge abused his discretion. The case of McNeely v. State, 104 Tex. Cr. R. 263, 283 S. W. 522, and many others, we think support the view mentioned.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    GUNN et al. v. STATE.
    No. 15472.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    J. B. Dibrell, Jr., of Coleman, for appellants.
    Lloyd W. Davidson, State’s Atfy., of Austin, for the State.
   CHRISTIAN, J.

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

Armed with a search warrant, officers went to the appellants’ residence for the purpose of making a search for intoxicating liquor. One of the officers entered the kitchen through a back door, while the other officers entered the house from the front. In the kitchen they discovered two half-gallon jars in the sink. The officer entering from the rear of the house testified as follows: “Each of these jars was bottom side upwards. As to what was running from them: Well, the odor was the odor of whisky. I have seen whisky and smelled it and this smelled like whisky. I think that each of these jars was a half-gallon size. When I got to the sink there, that whisky was practically all run out. But it was still in the act of running. * * * If there had been anything in them it had all run out. The whisky had all run out and the jar was upside down when I got in there. I could not tell if there had been a spoonful or a half-gallon in these jars; that is right, I could not say. The only thing that made me think it was whisky was because it smelled like whis-ky ; it had that odor. Whatever whisky had-been in these jars had already run down into, the sink.”

Touching the finding of the jars in the sink, the other officer gave substantially the same-testimony. He said he did not taste the liq-' uid, but knew it was whisky because of its odor. He said, further, that he wbs unable to tell how much whisky there had been in the' jars. He testified that the appellants and several other people were in the front room when he entered the house. The testimony was to the effect that two of the parties were intoxicated. According to their testimony, the officers had frequently been in the vicinity of the house prior to the search, and had seen people, who appeared to be intoxicated, driving away from the house. Also they had seen cars parked at the place on numerous occasions., One of the officers said: “While they have been living where they are now I have seen cars stopped there, going to town and backwards and forwards, and I would later see boys come away from there drunk and would find them in town drunk. That would occur both in the daytime and in the nighttime. I have seen more than one car there at a time. I have seen as many as three or four cars there at the time.”

The officers further testified that about six months prior to the raid, while appellants were living in another house, they had seen cars at their place. One of the officers said that on the occasion last mentioned he followed a man from the appellants’ residence, and that this man was drunk and had two bottles of beer in his possession. A witness for the state who was present at the time the officers made the raid declared that two of the parties in the house were drunk. She stated, however, that she had not seen them drink, and that she saw no whisky or beer in the house at any time while she was there.

Appellants did not testify, and introduced no witnesses.

A charge covering the law of circumstantial evidence was submitted. The court did not charge on the presumption arising from the possession of more than a quart of intoxicating liquor; there being no evidence authorizing the submission of such matter. Appellants contend that the evidence is insufficient. We feel constrained to sustain their contention. From Branch’s Annotated Penal Code, § 1877, we take the following: “To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with-the transaction constituting the offense charged against him.”

It was incumbent upon the state to introduce proof “to a degree of certainty greater than a mere probability or strong suspicion” tending to establish that the appellants possessed intoxicating liquor for the purpose of sale. See Rhodes v. State, 115 Tex. Cr. R. 348, 28 S.W.(2d) 548.

Believing the evidence insufficient, the Judgment is reversed and the cause remanded.

PER CURIAM.

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


author: CALHOUN, J.

text:
    Ex parte VASQUEZ.
    No. 15434.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    . T. 0.' Johnson, Jr., of San Marcos, for appellant,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

This is an original habeas corpus by which relator seeks release from confinement by virtue of a capias pro fine issued from the county court of Hays county. The record discloses that relator was convicted in the corporation court of the city of San Marcos on a complaint charging him with the offense of peddling on the streets of said city, and on appeal to the county court he-was again convicted and his punishment assessed at a fine of $10 and costs; capias pro fine issuing as a result.

Among the grounds of his application is that the complaint upon' which the prosecution is based is void in that the allegations thereof are too vague, uncertain, and indefinite to charge any offense; ■ -and, second, because said complaint charges no offense denounced either by the state statute or by the ordinance of the city of San Marcos, and consequently all proceedings herein' are void. There being no appeal further than the county court of Hays county, we have issued this writ.

The charging part of said complaint is as follows: “Encarnación Vasquez did then and there unlawfully peddle upon' the public streets of San Marcos, Texas, same being a violation of the city ordinance of the city of San Marcos; Texas; als,o operating a truck for wages contrary to the ordinance of said city of San Marcos, Texas, and against, the peace and dignity of this State.”

Under the agreed statement filed herein, it is agreed that the conviction in both courts was under and by virtue of the alleged violation of article 71 of the Revised Criminal Ordinances of the city of San Marcos, which said article in part provides as follows:

“Art. 71. It shall be unlawful for any person or persons to sell or offer to sell from any wagon, hack, cart, pushcart or vehicle of any kind or from any table, bench, box, counter or receptacle of any kind whatever, standing or being in or upon the public square, the public streets, alleys, or sid.ewalks of the City of San Marcos, or any article of merchandise of any kind whatsoever, or for any per'son or persons to pursue or offer to pursue the business of a seller, vendor or merchant of merchandise of any kind whatsoever on the public square, streets, alleys, or sidewalks of the City of San Marcos.
“Any person or persons violating any of the provisions of this article shall, upon conviction, be fined in any sum not less than ten and not more than one hundred dollars; provided, it shall not be unlawful for any person or persons to sell or offer to sell upon the public square, streets, alleys, or sidewalks-of the city, country produce or products of the dairy, which said country produce and products of the dairy are produced by his own care, labor, attention or supervision; -nor shall this article apply to any article which is made or manufactured by the seller thereof in person.”

It will be noted that nowhere in said ordinance is it made an offense to operate a truck for wages, and therefore it becomes unnecessary to consider the sufficiency of the complaint in regard thereto.

We do not construe said article 71, the criminal ordinance of the city of San Marcos under which appellant was tried, as absolutely prohibiting peddling upon the public streets of said city, because it especially provides that it shall not be unlawful for any person or persons to sell or offer to sell upon the public square, streets, etc., of said city, country produce or products of the dairy, which' said country produce and products of the dairy are produced by the seller’s skill, labor, attention, or supervision, nor any article which is made or manufactured by the seller thereof in person. This article considered in its most favorable light makes it unlawful for (1) any person or persons to sell or offer to sell from any wagon, hack, cart, pushcart, or vehicle of any kind or form, any table, bench, box, counter, or receptacle of any kind whatever, standing or being in or upon the public square, public streets, alleys, or sidewalks of the city of San Marcos, or any article of merchandise of any kind whatever; (2) it makes it unlawful for any person or persons to pursue or offer to pursue the business of a seller, vendor, or merchant of merchandise of any kind whatever on the public square, streets, alleys, or sidewalks of the city of San Marcos, except those articles exempted under said ordinance.

The only attempt to charge an offense under said article is that relator did unlawfully peddle upon the stj-eets of San Marcos. There are no allegations in the complaint either that relator.' sold merchandise from a vehicle, etc., standing or being in the streets, or that he pursued the business of vendor of merchandise on the streets. The said complaint sets out merely a conclusion of law that the relator peddled upon the streets, when it should have alleged in plain and intelligible words the particular act or thing done which warranted the conclusion.

As stated by this court in the recent ease of Jones v. State, 118 Tex. Cr. R. 106, 38 S.W.(2d) 587, 588: “Under our statute all that is essential to constitute the offense must be sufficiently charged and cannot be- aided by in-tendment. The facts constituting the offense must be set forth so that the conclusions of law may be arrived at from the facts so stated. Articles 396 and 397, C. C. P.; Ford v. State, 108 Tex. Cr. R. 626, 2 S.W.(2d) 265. While the law does not require minuteness of detail, it demands that the particular offense be set out with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Ford v. State, supra; Harden v. State, 85 Tex. Cr. R. 220, 211 S. W. 233, 4 A. L. R. 1308; Middleton v. State, 114 Tex. Cr. R. 263, 25 S.W.(2d) 614.”

In Ex parte Jonischkies, 88 Tex. Cr. R. 574, 227 S. W. 952, Judge Lattimore states therein that it is fundamental that the complaint must state facts which, if true, amount to a violation of law. In Walton v. State, 12 Tex. App. 117, it was held that an information for vagrancy charging defendant with being a vagrant within the meaning of the law was insufficient, and that the facts must be more specifically set forth.

From the above authorities, it is fundamental that the complaint must state facts which, if true, amount to a violation of the law. For the reason that the complaint in the instant case does not measure up to this fundamental requirement, it is void.

The release prayed for is granted, and the sheriff of Hays county is directed to release relator from the restraint of said capias pro fine.

PEE CUEIAM. .

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: . LATTIMORE, J. HAWKINS, J.

text:
    LANEY v. STATE.
    No. 14550.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 18, 1933.

      Birkhead, Beckmann & Stanard and Linden & Linden, all of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . LATTIMORE, J.

Conviction for violating the hunting law; punishment, a fine of $50;

It is charged in the information in this case that appellant, in the county of Bexar, unlawfully hunted deer by the aid of an artificial light between the hours of sunset and one half hour before sunrise in a community where deer were known to range. The case was affirmed at a time when there was no statement of facts on file, and later that opinion was ordered withdrawn, and the clerk of the trial court was directed to send up to the clerk of this court the statement of facts which had been timely approved and filed with the clerk of the trial court. The statement of facts is now before us.

If the testimony of the witnesses for the state be taken as true, there would seem practically no question of the fact that appellant and two companions at about midnight were hunting along a road in a car with a spot light which was flashed into the pastures bordering the road as the car in which said parties were, was slowly propelled up the road in what according to the testimony was regarded as one of the best deer ranges in Texas. According to said state witnesses, the parties while so engaged fired several shots from rifles into the pastures where the spot light was projected, and on one occasion two of them, after such shots, were observed to leave the ear and go into the pastures and with a flash-light make searches.

The testimony of the- witnesses for the defense is to deny the facts testified to by the state witnesses, and to affirm that appellant and his companions only hunted in the daytime, and on land belonging to one of appellant’s companions. The reconciliation of opposing statements of fact, under our practice, is for the jury, and our statute (Code Cr. Proc. 1925, art. 706) makes them the exclusive judges of the credibility of the witnesses and the weight of their testimony. We uniformly decline to interfere where there is testimony which, if believed, would support the jury’s conclusion. We believe such to be the case here. The only bill of exception was filed too late.

The judgment will be affirmed.

HAWKINS, J., not sitting.

On Motion for Rehearing.

HAWKINS, J.

Only one bill of exception appears In the record. Upon original submission it was not considered because of a supposed delay in the filing. It is made to appear that it was in fact filed in time. It is shown by said bill that while giving evidence in his own behalf appellant proposed to testify that he was a contributor to a fund to be used for the enforcement of the game laws. The evidence was rejected on objection by the state. It is insisted by appellant that because the state’s case depended on circumstantial evidence the rejected evidence was admissible under the general rule that under such circumstances whatever relevant evidence tends to throw any light upon the matter under investigation is admissible. Appellant did testify to the effect that he had never been charged with a violation of the game law before; that he had hunted deer for seventeen years, and was in favor of the game law and all its provisions. It was not a case where appellant admitted doing the acts relied on by the state, but undertook then to explain them in a way consistent with his innocence. He denied doing them at all. His position is that he should have been permitted to introduce the rejected evidence to bolster the denial. We are not inclined to this view. To support its case certainly the state could not have been permitted to show that appellant was known to be a violator of the game law, or a contributor to a fund to fight its enforcement. While not directly in point, yet the following cases are thought to support the conclusion announced: Howard v. State, 37 Tex. Cr. R. 494, 36 S. W. 475, 66 Am. St. Rep. 812; Weatherspoon v. State, 111 Tex. Cr. R. 473, 14 S.W.(2d) 1038; Vance v. State, 45 Tex. Cr. R. 434, 77 S. W. 813.

The motion for rehearing is overruled.


author: LEVY, J.

text:
    SIMMONS v. SIKES, Sheriff, et al.
    No. 4268.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1932.
    Rehearing Denied Jan. 12, 1933.

      Warren & Warren, of Tyler, ^and Lyle Saxon, R. G. Storey, and Goggans & Ritchie, all of Dallas, for appellant.
    Butler, Price & Maynor and Marsh & Mc-Ilwaine, all of Tyler, for appellees.
   LEVY, J.

(after stating the case as above).

The points in controversy and on appeal and as grounds for injunctive relief sufficiently appear in the court’s conclusions of law, which are here set forth in full:

“1. The abstract of the judgment having been properly made out and certified by the Clerk of the District Court of Harris County, and having been properly filed, recorded and indexed by the Clerk of the County Court of Smith County, Texas, on the ‘Judgment Record and Index Record’ the plaintiff, in the •judgment Carter Stewart, and his assignee, W. L. Shirey, acquired a judgment lien on all the property owned by Byrne at the time the judgment was abstracted; and all the property that should be acquired by him thereafter, not exempted from forced sale by the constitution and laws of this state, until the judgment was satisfied.
“2. The copyrights being property subject to the payment of the debts of H. E. Byrne his gift of the copyright to his wife is void as to his creditors, one of which was the debt then due and owing by him to Public National Bank, there being no evidence that at the time he made this gift he was possessed with property in this State subject to execution sufficient to pay his debts.
“3. (a) Had the gift of Byrne to his wife of the copyrights been valid; and the-copyrights, had by the assignment, become the separate property of Mrs. Byrne, the rents and revenues paid to her by the Tyler Commercial College, for use of the copyrights, was community property; and there being no evidence that Byrne gave the money to his wife after it was paid by the Tyler Commercial College; and it appearing from the evidence that the shares of stock were reacquired from the Bank by the payment of this community money to the bank, in satisfaction of Byrne’s indebtedness to it, the shares of stock became, too, community property and the shares of stock having been given in exchange for the lot conveyed to Byrne by Tyler Commercial College and its trustees the lot became and was the community property of Byrne and his wife; and immediately on the transfer became subject to the judgment lien for the payment of the judgment; and therefore subject to sale under execution for the satisfaction of the judgment.
“(b) Furthermore had Byrne attempted to give the money to his wife after it was paid by the Tyler Commercial College for the use of the copyrights, the gift would have been void as to the Public National Bank a then creditor of Byrne or the then legal holder and owner of such indebtedness.
“4. The transfer of the judgment by Carter Stewart to W. L. Shirey did not work a satisfaction of the judgment for the reason that Shirey was not a party to the judgment and therefore was not bound for its payment, either directly or indirectly, because it appears from the evidence that at the time the debt upon which the judgment was recovered accrued he was not a holder of shares in either Houston Finance Corporation or the Tyler Commercial College; and his subsequent acquisition of shares in the Tyler Commercial College did not render him liable for the debts then owing by that association or partnership there being no evidence showing that he contracted or agreed to pay such debts.
“5. The release by Shirey to W. C. Wiley and W. E. Weatherford, two of the judgment debtors, from any liability thereon, for the valuable consideration paid them respectively to him, did not release Byrne from his liability on the judgment because it appears from the releases that Shirey did not intend to release the other judgment debtors;, and he expressly reserved the right to proceed against the other judgment defendants by lawful methods to collect the judgment.
“6. The discharge of Byrne as a bankrupt did not avoid, kill or destroy his indebtedness to the Public National Bank, and the judgment having been rendered against him subsequent to his discharge is not null and void and cannot be attacked collaterally as attempted by the plaintiff in this cause; and therefore the execution issued on the judgment is valid and the levy by the sheriff of the execution on the lot in satisfaction of the judgment is and was a legal levy; and the property being subject to the payment of the debt the injunction prayed for by plaintiff to restrain the sale of the property should not have been granted.”

It is believed the above conclusions of law are correct, and may not be more plainly stated, and they are therefore here adopted by this court. It is sufficient to merely make a brief reference to the points urged on appeal.

The assignments of errors 8 to 11, inclusive, predicate error in several particulars upon the conclusion of the court “as a matter of law” that the abstract of the judgment rendered in the district court of Harris county “created a lien upon the property herein involved.” As reflected by the record, objections in the trial were made upon the several named grounds to the introduction in evidence of the abstract of judgment, and the objections were overruled by the court. The assignments of errors mentioned are not predicated upon the action of the court in overrul-tag the objections made to the admissibility to evidence of the abstract of the judgment. According to the court’s findings of facts in this record, which are not challenged, the abstract of the judgment mentioned as delivered to the plaintiff was made “as provided in Article 5447 Revised Statutes of the State,” meaning that in point of fact the abstract contained the requisites of the article mentioned. Also as found by the trial court as a fact, the abstract of judgment was recorded by the county clerk of Smith county “as provided in article 5448, Texas Revised Statutes,” meaning that in point of fact the requisite steps of the article mentioned were followed by the clerk. As a fact, as found by the court, execution on the judgment was issued and the sheriff made return on the execution July 19, 1928, after the rendition of the judgment on July 21, 1927. The court attached the legal effect of the facts so found as creating “a judgment lien on all the property owned by Byrne.” The statute so provides, and the ruling was correct. Article 5449. Even though the objections presented to the abstract as urged in the brief be considered independently of 'the trial court’s conclusion, it is thought there was no error in the court’s ruling.

Although not corporeal, but existing in contemplation of law, a copyright is enjoyable as a .legal estate, as other movable property. In this case there was not an assignment of the copyright itself, but only the hiring of the right of use as a means and object of profit bearing annually for five years. Assuming that there was a valid gift of the copyright to the wife, and the same thereby became her separate property, yet the money paid to her annually by the Tyler Commercial College “for the use of the copyrights” was, in the circumstances found by'the court, community property. Letting the property or right for hire is as interest on the funds of separate property would be. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Frame v. Frame, 36 S.W.(2d) 152, 73 A. L. R. 1512; Speer on Law of Married Women (3d Ed.) § 368.

The court’s conclusions of law, 4 and 5, were in keeping with facts found in sections 6 and 7. According to finding No. 6, Mr. Shirey was not a party to the judgment; at the time of the transfer to him of the judgment he had no interest in the Tyler Commercial College; he did not agree to assume .any of the debts of the college when he acquired an interest therein; in purchasing the judgment he used his own money and acted exclusively for himself. Therefore, his subsequent acquisition of shares in the college did not, as the court concluded as matter of law in section 4, render him liable for the debts then ■ owing by that association or partnership, he not having agreed or contracted to pay such debts. Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S. W. 122, Ann. Cas. 1916E, 446; 20 R. C. L., § 219, p. 985. The point urged is exceptionally well presented in appellant’s brief and must be denied only because of the special facts of the present case. The finding of fact No. 7 is based on the written releases which state, namely: “It is however expressly agreed and understood by me (Shirey) and said Wiley and said Weatherford that the release of him as one of the defendants in said judgment shall not have the effect to release the other defendants, and that I expressly reserve to myself all rights as the legal holder and owner of said judgment against (here naming each defendant) to take out execution and levy the same upon all the estate and property of (here naming the defendants) or either of them,” etc. The conclusion of law No. 5 has support in the ruling in Pennington v. Bevertag (Tex. Com. App.) 17 S.W.(2d) 772.

In connection with finding of fact No. 8, upon which conclusion of law No. 6 was based, it appears that Mr. Byrne brought a proceeding to set aside the judgment rendered in the district court of Harris county. The grounds of the proceeding were that Mr. Byrne had no notice of the setting of the case for trial, and that he had a meritorious defense which he had pleaded in an amended answer of discharge in bankruptcy of the plaintiff’s claim against him. In that proceeding Mr. Shirey was made a party upon the ground that the judgment had been assigned to him. Mr. Byrne was denied a reopening of the Harris county judgment, both in the district court and on appeal in writ of error to the Supreme Court. Stewart v. Byrne (Tex. Com. App.) 42 S.W.(2d) 234. The judgment rendered in that case is res adjudi-eata,,and cannot be attacked collaterally in this present case. In view of these special circumstances it may not be held that the court’s conclusion of law No. 6 was error.

The judgment is affirmed.

On Motion for Rehearing. ‘

The appellant cites the recent opinion in case of Hawkins v. Britton State Bank (Tex. Com. App.) 52 S.W.(2d) 243, as ruling the contention that the rents and revenues of the wife’s separate property were not subject to the payment of community debts contracted by the husband. The facts of the two cases are different and there is no conflict in the two opinions.

In the present case the husband was owing an indebtedness to the State Bank & Trust Company and pledged as collateral security for the debt certificate No. 1 for 95.125 shares of stock of the Byrne-Roberts Loan Company. The shares of stock were community property and the certificate was in the name of the husband, and the debt; owing the bank was a community debt contracted by tbe husband. The husband paid off the debt owing to the bank and thereupon the bank surrendered the certificate of shares of stock to the husband. The money paid to the bank in satisfaction of the indebtedness was the money paid by the Tyler Commercial College for the use of the two copyrights of the writings entitled respectively, “Byrne’s Practical Bookkeeping and Business Training” and “Byrne’s Simplified Shorthand.” The husband had previously given the copyrights to his wife, and such copyrights were her separate property by the gift to her. The Tyler Commercial College had agreed to pay Mrs. Byrne for the use of the two copyrights the sum of $7,000 a year for a period of five years. At a time after the payment of the bank debt and the surrender by the bank of the certificate of shares of stock pledged as security, the husband, H. E. Byrne, purchased from the Tyler Commercial College through its trustees the land in suit, and the deed therefor was made in his name, paying as the entire consideration therefor the said certificate of shares of stock, duly assigned by him. The theory of the appellant appears to be that although the certificate of stock may have been used as the consideration for the land, yet the separate funds of the wife were used to acquire back such stock from the bank, and the husband was therefore holding the title to the land as trustee for her as beneficiary.

In the case of Hawkins v. Bank, supra, the husband as payment of the indebtedness contracted by him conveyed the immature hay growing on the wife’s separate real estate, and certain implements which had been bought with the rents and revenues derived from the wife’s separate real estate.

There was only involved in the Hawkins Case, as readily seen, the simple question of whether or not the rents from Mrs. Hawkins’ separate land could be made subject to the debts contracted by the husband. The court held, and very correctly so, that the rents of the wife’s separate real estate was expressly exempted under terms of article 4616, R. S., from payment of community debts contracted by the husband. That article, though, does not by its terms exempt from payment of community debts of the husband the revenue arising from use or hire of separate property in the nature of copyrights. Copyrights as concluded in our original opinion, are “enjoyable as a legal estate, as other moveable property.” It is not questioned that the revenue arising from its use or hire is community property. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, and other cases, including Hawkins v. Bank. No character of community property is exempted under article 4616 except that specifically named in the article. Such of the community property as’ is not expressly protected by the article mentioned may be and is subject to the payment of the community debts contracted by the husband. Speer on Marital Rights (3d Ed.) § 383. Unless the revenue from the use or hire of the copyrights was exempted by article 4616, the theory of the appellant may not legally be predicated upon the facts of the case.

The motion for rehearing is overruled.


author: ALEXANDER, J.

text:
    WALD TRANSFER & STORAGE CO. et al. v. RANDOLPH.
    No. 1287.
    Court of Civil Appeals of Texas. Waco.
    Dec. 8, 1932.
    Rehearing Denied Jan. 19, 1933.
    C. J. Andrews, of San Antonio, and Rogers & Rogers, of Marlin, for appellants.
    Joseph W. Hale, George Clark, and E. B. Burleson, all of Waco, for appellee.
   ALEXANDER, J.

W. A. Randolph brought this suit against the Wald Transfer & Storage Company and the Lloyds Casualty Company to recover damages for personal injuries sustained by plaintiff’s wife in a collision between the car in which plaintiff’s wife was riding and one of the trucks belonging to the Wald Transfer & Storage Company. The jury, in answer to certain special issues, found for plaintiff and fixed his damages at $12,500, and judgment was entered accordingly. The defendants appealed.

The appellants contend that the court erred in failing to grant a new trial on account of tíie misconduct of the jury. There was evidence in the case tending to show that Mrs. Randolph, as a result of the collision, received a severe injury to her back and as a result thereof, continuously since such accident, has been compelled to wear a cast around her body -for the purpose of bracing-her back. Some of the physicians as experts testified that she would never recover and that it would be necessary for her to continue to wear the brace. Others testified that she would recover within a few months and would be able to discard the brace. The plaintiff was suing for permanent injuries to his wife and for her permanent incapacity to labor and earn a living. After the jury retired to consider its verdict, one of the jurors stated in the presence of four other jurors that he had a sister who was injured in her back in a fall which occurred some ten years previously, and that she was required to wear a brace and was still an invalid and a cripple and had to walk- -on crutches. The statement was made by the juror at a time when the jury was discussing the question as to whether Mrs. Randolph’s injuries were permanent and before the jury had determined the amount of their verdict. Several other jurors testified that they heard the juror make the statement above referred to at the time the jury was discussing the question of whether Mrs. Randolph’s injuries were permanent and the amount of the verdict to be awarded. One of the jurors testified that they first decided that Mrs. Randolph would recover within six months and later they changed their answer to twelve months.

It was, of course, improper for the juror to state in the presence of the other jurors while the case was under consideration that he knew of another case similar to the one under consideration in which .the injured party. had not recovered. This was in effect introducing new evidence before the jury. The appellants had no opportunity to cross-examine the juror nor to introduce evidence to disprove his statement or to explain the dissimilarity of the cases. Gulf, C. & S. F. R. Co. v. Young (Tex. Civ. App.) 284 S. W. 664, par. 18; Galveston, H. & S. A. R. Co. v. Brassell (Tex. Civ. App.) 173 S. W. 522, par. 5; El Paso Electric Co. v. Gambrell (Tex. Civ. App.) 292 S. W. 577, par. 2; Williams v. Penick-Hughes Co. (Tex. Civ. App.) 36 S.W.(2d) 1060, par. 7; Bell v. Oliphant (Tex. Civ. App.) 45 S.W.(2d) 334.

The general rule is that where improper evidence has been received by the jury after their retirement and it is reasonably doubtful whether or not such improper conduct affected the amount of the verdict or the decision of any other material issue, the verdict should be set aside. Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104; Payne v. Harris (Tex. Com. App.) 241 S. W. 1008, par. 9; Casstevens v. Texas & Pacific R. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89; Twichell v. Klinke (Tex. Civ. App.) 272 S. W. 283; Sims v. Sims (Tex. Civ. App.) 296 S. W. 612; Morgan v. Maunders (Tex. Civ. App.) 37 S.W.(2d) 791.

We cannot say that the evidence heard on motion for new trial leaves it free from doubt that the verdict of the jury was not affected by the misconduct herein referred to. It is true that most of the jurors, if not all of them, testified that the statements made by the juror with reference to the condition of his sister did not affect their verdict and that they were fair jurors and decided the case on the evidence introduced on the trial. But as is generally known, testimony of jurors minimizing the effect of their misconduct is given very little weight in determining whether their verdict was affected thereby. City of Waco v. Rast (Tex. Civ. App.) 2 S.W.(2d) 563. The natural inclination is for the jurors to defend their verdict. The statement of the juror was made at the psychological moment when the jury had under consideration the question of whether or not Mrs. Randolph’s injuries were permanent. It had the effect to prove or demonstrate to the jury that a person injured as Mrs. Randolph was, and requiring the treatment which had been prescribed for her, would not recover and that the experts who had testified to the contrary were mistaken.

We realize that it is very difficult to try a case without the consideration or discussion of some improper matters by the jury, and we are always loath to reverse a case for such misconduct; but if the jury trial is to be preserved and the jury is to serve its place in our judicial system, the jury must be kept within the bounds allotted to it. We believe that the misconduct of the jury herein set out requires a reversal of this case.

Numerous other errors are assigned, but as none, of them will likely arise in the same manner upon another trial, we do not deem it necessary to discuss such assignments.

The judgment of the trial court is reversed, and the cause remanded for a new trial.


author: SELLERS, J.

text:
    GULF, C. & S. F. RY. CO. v. BLACKMON.
    No. 4208.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 8, 1932.
    Rehearing Denied Oct. 27, 1932.
    Woolworth & Baker, of Carthage, Young, Stinchcomb & Kenley, of Longview, and Terry, Cavin & Mills, of Galveston, for appellant.
    S. P. Jones, Franklin Jones, and Percy Woodard, all of Marshall, and Long & Strong, of Carthage, for appellee.
   SELLERS, J.

Oscar Blackmon brought this suit in the district court of Panola county against the Gulf, Colorado & Santa Fé Railway Company to recover damages for personal injuries received while a passenger on one of the company’s passenger trains. Negligence is predicated upon the acts of the railway company’s employees in placing and permitting an obstruction to be in the aisle of the coach occupied by Blackmon as a passenger, and also in failing to discharge their duty by discovering and removing the obstruction before the injury to Blackmon. The case was submitted to a jury on special issues, and the jury found the employees of the railway company guilty of negligence in permitting the aisle of the coach on which Blackmon was a passenger to become obstructed, which obstruction was the proximate cause of Blackmon’s injury; and also convicted the employees of the railway company of negligence, in that the obstruction had been in the aisle long enough for the railway company, through its employees in the exercise of a high degree of care, to have discovered and removed the obstruction before the accident and injury to Blackmon, and that such negligence was the proximate cause of the injury to Blackmon. Other issues were submitted to the jury not necessary here to be noticed. The damages assessed were $7,000, and judgment for Blackmon accordingly entered, from which judgment the railway company has duly prosecuted this appeal.

The facts necessary to the disposition to be made of this case may be briefly stated: Oscar Blackmon, the appellee, got on appellant’s train at Carthage, Tex., to go to Beck-ville, Tex., a distance of about ten miles. As the appellee, with other passengers, was proceeding to leave the train at Beckville, he stumbled and fell over a suitcase which was extending out into the aisle of the coach in which he was riding, and he was thereby seriously injured. Blackmon testified he knew another passenger who got on the train at Carthage by name of Dick Brassier, that the suitcase over which he fell was sticking out from behind the seat in which Dick Brassier was riding, and that after he fell Dick Brassier picked up the suitcase and straightened it out, and that he saw him do it. Blackmon further testified’ that he never did see the suitcase until after he fell over it. The only other witness who testified to seeing the suitcase in the aisle was Ras Jones, who also got on the train at Carthage and got off at Beckville. He testified with reference to the grip as follows: “When I got off the coach, while walking down the aisle, I saw a suitcase there in the aisle. It was near the front of the car, and was sticking out, I judge, about half. I had not seen it before I started to get off the car. * ' * * I first saw the grip extending into the aisle when I got up. I never saw it before that. The train was stopped.”

Dick Brassier, the one whom appellee claimed' picked up the suitcase after appellee fell, testified as follows: “No part of the suitcase was protruding into the aisle. The part of the coach I was occupying that night was three or four seats from the front on the left hand side. I was on the left' side, facing north. I did not notice Mr. Black-mon when he got off the train that night. I do not think anyone stumbled over any suitcase while getting off the train there that night at Beckville. They could not stumble over it — it was between the seats. I do not think anyone fell leaving the ear, immediately at my right — if they did, I would have seen it." After the passengers disembarked at Beckville, and before they all left the car, I did not pick up the suitcase and close it and put it back where it was. I did not touch the suitcase there at Beckville while the passengers were leaving. The next' time I saw my suitcase, or had hold of it after I put it there, was at Longview, when I got off the train. With reference to where I placed it, it was right there, I did not touch my suitcase between Carthage and Long-view.”

The conductor, porter, and news agent on the train all testified that immediately before the train stopped for passengers to alight at Beckville they were through the coach on'which the appellee was riding between Carthage and Beckville, and that they noticed for obstructions in the aisle, and that there were none in the aisle. Several passengers, some of whom got off the train at Beckville, testified that they did not see any obstruction or suitcase in the aisle of this coach before or at the time they were alighting from the train. The evidence shows that some five or six passengers in that coach got off the train at Beckville.

The appellant assigns as error the failure of the trial court to instruct the jury to return a verdict in its favor, for reason that ap-pellee had failed to offer evidence to establish any actionable negligence proximately causing the injury to appellee predicated upon either of the acts charged. We are unable to escape the conclusion that this assignment must be sustained.

The rule seems well established in Texas that negligence in this character of cases is established by evidence of one or two things, either that an employee of the company placed the suitcase in the aisle, or that the suitcase had been in the aisle long enough to justify the inference that a failure to discover and remove the same was due to a want of proper care. Wichita Valley Ry. Co. v. Helms (Tex. Civ. App.) 261 S. W. 225, 227, and cases cited.

There is no contention in this case that an employee of appellant placed the suitcase in the aisle. The appellee’s case, then, must depend upon the evidence being sufficient to show that the suitcase had been in the aisle long enough to enable.the train employees to see or know it and to charge the employees of appellant with negligence in failing to remove the same before the time of the injury of the appellant at Beckville. All the evidence with reference to the suitcase’s ever being in the aisle, as before stated, is that of appellant and the witness Ras Jones, both of whom testified they never saw the suitcase until the train stopped at Beckville for the passengers to alight and until they got up to get off the train. Surely, then, it should not be held that the employees of appellant were negligent in not discovering the suitcase in the aisle between the time it was first seen by the witness Jones and the injury to appel-lee, which could not possibly, under the evidence, have been longer than a minute, or two, at the outside. The remaining question, then, is: Was the evidence sufficient, from which the jury was authorized to find as a fact, that the suitcase had been in the aisle before the injury to the appellee a sufficient length of time £o charge the employees of appellant with notice of its being in the aisle, and, as a consequence, with negRgence in not removing it? We think not. The only possible way for the jury to arrive at such fact was by a presumption based solely on the fact that the suitcase was placed in the aisle at Beckville when the train stopped, and this in the face of the undisputed evidence of the conductor, porter, and news agent that they were through the car after the train left Carthage and by the time it reached Beck-ville, noticing for obstructions in the aisle, and that the suitcase was not in the aisle; and the evidence of Brassier that he placed the suitcase behind his seat odt of the aisle when he got on the train at Carthage. We do not believe that there is any actionable negligence established by the evidence to support appellee’s recovery in this case. Livingston v. Atlantic Coast Line Ry. (C. C. A.) 28 F.(2d) 563.

The judgment is reversed and here rendered for appellant.


author: LESLIE, J.

text:
    GREAT AMERICAN INDEMNITY CO. v. STULTZ.
    No. 1021.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 18, 1932.
    Rehearing Denied Jan. 6, 1933.

      Turner, Rodgers & Winn, of Dallas, for appellant.
    Clyde E. Thomas, of Big Spring, for appel-lee.
   LESLIE, J.

This is a compensation suit, and the appeal Is from a judgment of the district court awarding appellee Stultz (plaintiff below) á recovery based on 4 weeks’ total loss of the vision in one eye, and 96 weeks’ permanent, partial loss of vision therein, growing out of an injury to the right eye, sustained in the course of his employment by the Southern Ice & Utilities Company, which carried insurance with the Great American Indemnity Company, defendant below, and appellant here.

The correctness of the trial court’s ruling in maintaining jurisdiction in the case is attacked by the appellant’s first proposition to the effect that, under the Compensation Law, the claimant should have been confined in his pleading on the trial in the district court to the identical claim filed before the Industrial Accident Board. As an abstract proposition of law, this is correct. Texas Employers’ Insurance Ass’n v. Newton (Tex. Com. App.) 25 S.W.(2d) 608, 609; Texas Employers’ Insurance Ass’n v. Jimenez (Tex. Civ. App.) 267 S. W. 752.

The facts of this case do not call for an application of the rule. The claim before the board was based upon notice of a specifically described injury resulting in permanent loss of the “entire sight of right eye.” The claimant on appeal filed his original ■ petition in the district court, .alleging that, by reason of the said injury, he. had lost 60 per cent, of the vision or sight from .the eye. The claim before the board and the cause of action presented in the district court in common related to the same party, the identical injury, and the same employer. The fact that the original petition in the district court and the following amendments in lieu thereof set out more in detail and with greater accuracy the true results of the injury would not condemn the suit in the district court as based - upon an injury other than that presented in the claim to the board. This is true, although the petition in the district court may disclose that the results flowing from the injury are less serious and comprehensive than appear from the original notice to the board.

If an employee in the district court is not limited to the statement of' the nature of his injury as presented to the board, but may enlarge thereon by alleging more specifically the effects produced by the injury, as has been held [Texas Employers’ Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363-370; Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 633; Texas Indemnity Ins. Co. v. White (Tex. Civ. App.) 37 S.W.(2d) 277], there appears to be no good reason why a claimant, in the light of subsequent developments, should not be allowed to base his claim for compensation on results less extensive than those believed by him to exist when the claim was filed' with the board, or notice thereof given. The notice gave information of a compensable injury. That conferred jurisdiction on the board. The petition in the district court presented the identical injury. Nothing more was required. Texas Indemnity Ins. Co. v. White (Tex. Civ. App.) 37 S.W.(2d) 277; Texas Employers’ Ins. Ass’n v. Moore (Tex. Civ. App.) 46 S.W.(2d) 404; Texas Employers’ Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363, 364; Texas Indemnity Ins. Co. v. Bridges (Tex. Civ. App.) 52 S.W.(2d) 1075; Choate v. Hartford Accident & Indemnity Co., 54 S.W.(2d) 901, by this court.

The first proposition is overruled.

Under other assignments, the appellant presents two propositions. The first is: “Claimant’s petition alleging partial loss of vision to the eye, and not alleging incapacity to work resulting therefrom, is subject to general demurrer.”

And the second: “An injury resulting in partial loss of vision from the eye is not com-pensable under the compensation laws of Texas unless the claimant is incapacitated to labor as a result thereof.”

It is the appellee’s theory that ho is entitled to recover for a permanent, partial loss of the sight to his eye, even though he had no further injuries, no loss of time from la-' bor, and suffered no diminished earning ■ capacity. He makes no showing, by pleading or proof, of incapacity to labor as a result of the 60 per cent, impaired sight of the right eye, and claims compensation under the specific injury statute. Article 8306, R. S. 1925, § 12.

That statute reads:

“For the total and permanent loss of the sight of one eye, sixty per cent, of the average weekly wages during one hundred weeks.
“In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.”

No case precisely like the instant one is to be found in the reports, but in principle, we think, it is ruled by the opinion in Fidelity Union Casualty Company v. Munday, 44 S.W.(2d) 926, 928, by the Commission of Appeals. There compensation for temporary, total loss of the use of a hand, plus compensation for permanent, partial loss of the use of a hand, was permitted under provisions of section 12, art. 8306. In that case there was no averment of incapacity for work of any degree or duration as a result of the injuries to the hand, which were the only injuries alleged. In. that ease the contention was made, in effect, “that nowhere in the Workmen’s Compensation Law is a temporary total loss of . the use of a hand, or a permanent partial loss of the use of that member, made compensa-ble, in the absence of an affirmative showing of the fact that incapacity for work, of some degree or duration, resulted therefrom.” This contention was held to be “ill-founded” under the above statute. Referring to that statute, it is said in the opinion: “If the quoted • provisions of the statute were not intended to apply to cases which involve a temporary, total loss of the use of a hand, and which involve no other injuries than to the hand, then it would necessarily follow that compensation for such a loss was intended to be governed by other provisions which occur elsewhere in the Compensation Law, and under which a greater compensation would be available, if the loss endured for more than 150 weeks, than would be available if the hand were severed.”

' Evidently the provisions of the Compensation Law referred to and “which occur elsewhere” are those provisions which would permit compensation at the rate of 60 per cent, of the average weekly wages for 300 weeks. Hence the deduction is there made that it was never contemplated that one employee who has sustained the total loss of the use of a hand for a longer period of time than 150 weeks, the loss not being permanent, should receive more compensation than another employee who permanently and totally loses the use of a hand.

By the same process of reasoning in the instant case, if appellee or claimant herein be denied a recovery under the above-quoted statute for the temporary, total loss of the sight of his eye, and the permanent, partial loss of the sight of the same, and' is required to resort to the provisions of the statute “which occur elsewhere” for compensation for his injuries, then we shall have a situation in which one suffering these injuries will be permitted to derive greater compensation for merely impaired sight, or a temporary, total loss thereof, than he would obtain for the total, permanent loss of the sight, accompanied by the actual loss of the eye itself. It would: be as unreasonable to hold that the Legislature intended such a result in a case where the eye or sight is involved as in the case of the hand, or any other member.

There is no express statutory authority .leading to such a conclusion or result except that, by the course of reasoning employed in the Munday Case, a construction is given to the statute which leads to the conclusions herein, and which are believed to effect a desirable result.

In regard to said statute as relating to the loss of sight, it will be observed that one of the enumerated cases of “permanent, partial incapacity” to labor is “the total and permanent loss of the sight of one eye,” which in turn means ‘ (for the practical purposes of sight) the loss of the function of the eye as an organ of sight, or simply the loss of the eye, a member of the body. The one is the equivalent of the other. The use of the word “member” carries no special significance designed to exclude “the permanent, total loss of the sight of one eye” from the operation of the statute pertaining to specific injuries which carry compensation per se. The statute embraces “temporary, total loss of the sight of an eye,” and “permanent, partial loss of the sight of the eye,” the same as “temporary, total loss of the use of the hand,” or “permanent, partial loss of the use of the hand,” or other such member. The reason for these conclusions are stated above and drawn from the opinion in the Munday Case and authorities therein.

If there is anything to the contrary in the case of Travelers’ Ins. Co. v. Richmond (Tex. Com. App.) 291 S. W. 1085, we are of the opinion it has been overruled by the Munday Case, which expressly states that the commission, in conference with the Supreme Court, had been “authorized to declare all holdings to the contrary, in other cases, overruled." The controlling proposition under consideration here was undoubtedly in the mind of the court in making the above statement.

However, it was necessary that the judgment in the Richmond Case be reversed, simply because the judgment found no support in the testimony. In the trial court and in the Court of Civil Appeals (284 S. W. 698) it had been disposed of on the theory that it was a case of “total and permanent loss of the sight of an eye,” whereas the commission regarded it as “one of a different character,” and returned it for the ascertainment of “existence vel non of partial incapacity,” etc. If the opinion means no more than here stated, it would probably not be out of line with the Munday Case.

The second and third propositions are overruled, and the reasons for so doing are material and support the overruling of the first proposition discussed.

Other assignments and propositions presented by the appellant become immaterial, but there are cross-assignments by the appel-lee, seeking a reformation of the judgment, and they will now be considered.

It. appears that the trial court, in granting the plaintiff a judgment, proceeded upon the theory that the average weekly wage of the employee was $23.08 and allowed 60 per cent, thereof, or $13.85 for each of the first four weeks after the injury, the same being for temporary total loss of the sight of the eye, .tnd for the remainder of the 100 weeks, to wit, 96 weeks, the court awarded compensation upon the basis of permanent partial loss of the sight of the eye to the extent of 25 per cent, (percentage of impairment) thereof, or the sum of ¡(3.46 for each of said remaining weeks. Evidently the court arrived at this last sum by taking 25 per cent, of the $13.85 as above indicated.

It is the appellee’s contention in his cross-assignment that the undisputed evidence required the court to enter a judgment in his favor for 60 per cent, of the $13.85 per week; that is, $8.31 per week, or judgment upon the basis of 60 per cent, loss of sight.

We have carefully examined the testimony in this respect, and it is clear to this court that the appellee’s contention that the evidence conclusively shows him to be entitled to compensation on the basis of-60 per cent, loss of sight is not warranted, and the judgment cannot be reformed and the larger sum awarded.

The appellant raises no question as to the sufficiency of the testimony to support the judgment in any respect, and the court is not ■called upon to consider that question.

Appellee’s cross-assignments are overruled, and, for the reasons assigned, the judgment of th.e trial court is affirmed.


author: WALTHALL, J.

text:
    FIRST TEXAS PRUDENTIAL INS. CO. v. PIPES.
    No. 2743.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Jan. 5, 1933.
    Turney, Burges, Culwell & Pollard and J. F. Hulse, all- of El Paso, for appellant.
    Sydney Smith and John Penn, both of El Paso, for appellee. . ••
   WALTHALL, J.

Appellee brought this suit in the justice of the peace court against appellant to recover on a life insurance policy issued by appellant to Ludie L. Pipes, in the sum of $132, in which policy appellee, husband of the insured, was named beneficiary. The insured died after the policy was issued and before the filing of the suit. On the trial in the justice of the peace court appellee recovered judgment for the face value of the policy, penalties, interest, attorney’s fees; the total recovery being the sum of $173.50. From that judgment appellant duly prosecuted an appeal to the El Paso county court at law, where a trial de novo was had without a jury, resulting in a judgment for appellee, and from which judgment appellant prosecutes an appeal to this court.

Opinion.

The application for the insurance policy contained the question: “Has life proposed ever suffered from consumption?” The question was answered: “No.” Appellant submits that said answer was false; that the application was signed by appellee and without the knowledge of the insured; that the uncontroverted evidence shows that if the application for the policy had reflected that the assured had had incipient tuberculosis, though arrested, said application would have been rejected, and that under the evidence the court should have found that said representation was material to the risk as well as false, and, so finding, rendered judgment for appellant.

The policy in question shows that it was a policy issued upon what is known as an industrial application, certain questions asked the applicant, and - no physical examination made.

Dr. T. O. Diddell testified: Knew Mrs. Dudie L. Pipes in her lifetime; attended her in a professional capacity. In 1929 she had a very mild type of tuberculosis. It can be completely arrested, apparently cured; it is spoken of as an arrested condition. Mrs. Pipes, Mr. and Mrs. Hailey came to witness’ office at the time witness examined Mrs. Pipes. Witness was at Mrs. Pipes’ home when she died. The cause of her death was coronary thrombosis. “That is not a condition, either caused or aggravated by tuberculosis; it is a clogging, stopping up of one of the blood. vessels, usually the left, that supplies the heart with blood, the upper part of the heart, the coronary.” That is a disease from which some people die instantly and others may be several hours. Mrs. Pipes died within a few hours.

Without quoting the evidence, it is to the effect that Mrs. Pipes had had her tonsils removed prior to 1928, and in 1929 was physically in a run-down condition and at the instance of Mr. and Mrs. Hailey was examined by Dr. Diddell, who took X-ray pictures, and gave her a tonic. Dr. Diddell said that at that time he discovered Mrs. Pipes had a very mild type of arrested tuberculosis; that it would be a comparatively remote possibility of it becoming active again;

Witness Ilafley, a brother of Mrs. Pipes, and her husband, John Stone Pipes, testified in substance that they had never known' of Mrs. Pipes having tuberculosis.

The evidence is sufficient to sustain the court’s findings that the disease of which Mrs. Pipes died was in no manner connected with tuberculosis, or resulted from or grew out of it, and that Mrs. Pipes nor her husband, John Stone Pipes, knew that Mrs. Pipes had, or ever had had, any symptom of tuberculosis. The evidence shows affirmatively that Pipes did not know it. The court found, and we think upon sufficient evidence, that Dr. Diddell' did not inform either Mr. or Mrs. Pipes that Mrs. Pipes had an arrested case of tuberculosis.

We cannot conceive how Pipes could conceal or withhold information as■to• Mrs. Pipes’ health he did not have, or that his answer, no, to the question, “has Mrs. Pipes ever suffered from consumption?” be a misrepresentation or false or fraudulent statement of a fact if he did not know otherwise and had no reason to believe otherwise. To be a defense to the suit it must be made to appear that the matter or thing involved in, the question was misrepresented and that such misrepresentation was material to the risk or actually contributed to the contingency or event on which the policy became due and payable, and that whether it was material and so contributed was a question of fact to be determined by the court trying the case. If, as the undisputed evidence shows, Mrs. Pipes’ death was in no manner caused or aggravated by tuberculosis, the representation made by Pipes that Mrs. Pipes had not suffered with consumption would seem to be a representation of an immaterial fact and which did not affect the risks assumed.

The application for the policy was not signed by Mrs. Pipes, but was signed by Pipes, the beneficiary, who answered the questions on the application blanks.

The policy provides that the policy is void and of no effect in the event the application for the insurance was not signed by the insured.

Defendant insurance company submits that the insured not having signed the application for the policy and not having answered the questions in the application for insurance, judgment should have been for defendant.

The evidence shows and the court found that G. R. Terrell was defendant’s local soliciting agent in El Paso; that said agent solicited said insurance of Pipes at Pipes’ place of business, and that Pipes, at the insistence of the agent, signed said application as filled out by the agent; that Pipes signed his wife’s name to the application in the presence of said agent who witnessed his signature.

Article 5056 of tlie Revised Civil Statutes of this state, under the facts stated, makes said agent the agent of the defendant company for which the act is done or the risk is taken, as far as relates to all the liabilities, duties, requirements, and penalties set forth in that chapter on general provisions under the title insurance. Article 5063 provides that such agent shall not have the power to waive, change, or alter any of the terms or conditions of the application or policy.

Appellant sought to avoid liability on the policy, under article 5044, R. O. S., by reason of the above-alleged misrepresentations, and gave notice to appellee of its refusal to be bound by said policy for the reason that said application for the policy contains said misrepresentations which appellant asserts in said notice to be material to the risk. By express provision of said article of the statute, such defense is available in the event only that such misrepresentation is material to the risk. The representation made by Pipes as above not being as to a matter material to the risk, the court was not in error in not entering judgment for appellant on the ground stated.

In the county court, as in the justice court, appellee sued to recover a reasonable attorney fee. In the justice court appellee recovered judgment for the amount of $132, the face of the policy, 66 cents accrued interest, $15.84 penalties, and sued for $50 and recovered $25 attorney’s fee, making the aggregate amount of the recovery $173.50, from which judgment an appeal was prosecuted to the county court at law.

In the county court at law appellee sued for the $132, the face of the policy, $15.84 penalties, legal interest on above two items, and $100 as a reasonable attorney fee, and on the attorney fee item recovered the sum of $60, making the aggregate amount of recovery sought in the county court at law the sum of $247.84.

Appellant submits that appellee’s cause of action in the justice of the peace court, for which he asked judgment being for $197.84, together with interest, and judgment having been rendered for $173.50, on said items, from which an appeal was prosecuted to the county court at law, appellee’s cause of action pleaded in the county court at law on appeal for $132, the face of the policy, $15.84 penalties, $100 attorney fee, and interest, took said cause of action as pleaded by appellee out of the jurisdiction of the county court at law on appeal.

If the county court at law had no jurisdiction, it was by reason of the amount of the attorney’s fees. Chapter 91 of the Acts of the Forty-Second Legislature, Regular Session (Vernon’s Ann. Civ. St. art. 4736), provides that in all eases where a loss occurs and a life insurance company shall fail to pay the same within the time stated, after demand, such company shall be liable tor the amount of the loss, penalties, “together with reasonable attorney fees, for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case.” The judgment provided that the ap-pellee recover the sum of $60, as attorney’s fees, and that same be taxed as costs and the costs be charged against the appellant. We think that in a suit on a life insurance policy where a loss occurs, a sum sued for as reasonable attorney’s fees, being taxed as a part of the costs in the case, would not have the effect to increase the amount of the cause of action and thus deprive the county court at law of jurisdiction. This holding is limited to cases arising under the above act. The eases referred to by appellant in its brief on this point arose prior to the act above referred to and we think are not in point.

Finding no reversible error, the ease is affirmed.


author: JACKSON, J.

text:
    DALTON v. ALLEN et al.
    No. 3926.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 11, 1933.

      Coombes & Andrews, of Stamford, for appellant.
    Smith & Smith, of Anson, for appellees.
   JACKSON, J.

L. B. Allen, plaintiff, instituted this suit in the district court of Jones county against Claude H. Allen and against Lela B. Dalton individually and as administratrix of the estate of Annie L. Allen, deceased.

The plaintiff alleged that on May 24, 1921, Claude Hr Allen executed and delivered to J. L. Neville a series of notes secured by a vendor’s lien on 3½ acres of land sufficiently described in the petition. That all of said series of notes had been paid except note 'No. 3» which was for the sum of $400 and due three-years after its date and provided for interest at the rate of 8 per cent, per annum, payable annually, and for 10 per cent, attorney’s fees. That on November 29, 1924, J. L. Neville, for a valuable consideration, by an instrument in writing, sold and transferred said note to plaintiff, who is the legal owner and holder thereof. That on April 4, 1928, Claude II. Allen and his wife, Annie L. Allen, by written agreement, extended the due date of said note to April 4, 1930. That default had been made and the note declared due, with interest and attorney’s fees, and plaintiff was entitled to a foreclosure of his lien on said land.

That he furnished Claude H. Allen, at the time the property was purchased, $750 to be used, and which was used, as a cash payment on the purchase price of said land. That as evidence thereof Claude H. Allen executed and delivered to plaintiff a promissory note dated May 24, 1921, due and payable May 24, 1927, in the sum of $750, with interest at the rate of 8 per cent, per annum, payable annually, and plaintiff thereby acquired a lien on said land to secure the payment of said note. That on May 24, 1927, Claude H. Allen executed and delivered to plaintiff a renewal note in the sum of $1,190.15, due May 24, 1932, providing for interest at the rate of 8 per cent, per annum, payable annually, and an attorney’s fee of 10 per cent. That default has been made in the payment of the interest on said renewal note and plaintiff had declared the note and attorney’s fees due and was entitled to a foreclosure of said lien on the land.

That Annie L. Allen, the deceased wife of Claude H. Allen, died intestate and left surviving her Lela B. Dalton, her daughter, who is of age, and her only heir. That said Lela B. Dalton is asserting some interest in said land but that such claim is inferior to plaintiff’s lien and casts a cloud upon his title.

He prays for judgment against the defendants for his debt, for foreclosure of his liens, that the cloud be removed from his title, and for general and equitable relief.

Lela B. Dalton, individually and as admin-istratrix of the estate of Apnie L. Allen, deceased, filed a- plea in abatement in which she states that she is the daughter of Annie L. Allen, deceased; that the land in controversy was the community property of her deceased mother and her stepfather, Claude H. Allen. That she was duly appointed administratrix of the estate of her deceased mother by the probate court of Jones county, the administration is still pending, and she is now acting as such administratrix. That plaintiff has never presented to the administratrix for approval or rejection the claims on which his suit is founded, for which reason said suit should in all things be abated.

Without waiving her plea in abatement, but subject thereto, Lela B. Dalton individually and as administratrix of the estate of Annie L. Allen, deceased, answered by demurrers, general denial, and pleaded the four-year statute of'limitation against the claims asserted by the plaintiff.

Claude H. Allen filed no answer.

The plea in abatement was overruled, a jury waived, and all matters submitted to the court and judgment entered against Claude H. Allen for the sum of $2,065 with interest and against Claude H. Allen and Lela B. Dalton individually and as administratrix of the estate of Annie L. Allen, deceased, foreclosing plaintiff’s liens upon the land. The decree ordered the sale of the land as under execution and directed the officer to convey the same to the purchaser and from the proceeds to satisfy plaintiff’s judgment and pay the remainder, if any, to the defendants as their interest- might appear, but if the proceeds were insufficient to satisfy the judgment, the officer was directed to make the balance out of the property of Claude H. Allen.

Prom this judgment Lela B. Dalton, as ad-ministratrix, prosecutes this appeal.

The record discloses that Annie L. Allen died on June 10, 1930; that on December 6, 1930, judgment was entered appointing Lela B. Dalton administratrix of the estate of Annie L. Allen, deceased, which judgment recites that the deceased was seized and possessed of real and personal property; that there is an indebtedness against said estate and a necessity for an administration thereon and that Lela B. Dalton is entitled to letters of administration; that on December 8, 1930, Lela B. Dalton qualified as administratrix 'by filing bond, which was approved, and taking the oath required by law.

The. appellee failed to allege or prove that the claims upon which he bases his suit in the district court had ever been presented to the administratrix for rejection or approval.

Article 3530, R. C. S., provides; “No judgment shall be rendered in favor of a claimant upon any claim for money which has not been legally presented to the executor or administrator, and rejected by him, either in whole or in part.”

“It is a general rule that the statute Which requires the presentation of ‘claims for money’ includes within its requirements the presentation of all such claims whether secured or unsecured. Secured claims which must be presented include those in which the security consists of a mortgage, deed of trust in the nature of a mortgage—even though it contains a power of sale—or other lien. Such secured claims cannot be enforced except in the mode prescribed by the probate statutes.” 14 Tex. Jur. 42, § 296.

“The rule which declares that persons having claims for money against decedents whose estates are being administered must assert them by presentation and further proceedings in the probate court, whether they be secured or unsecured, applies even where a lien is held for the purpose of securing the payment of purchase money, and where the holder of such vendor’s lien also has the superior title to the property in question. For, although property encumbered with a purchase-money mortgage is not subject to the payment of other debts of the estate until after the payment of the purchase money, still there is the same necessity for presentation for allowance and approval, duly authenticated, as in the case of other mortgages.” Id. 43, § 297.

The general rule is that the probate court, while an administration on an estate is pending, has exclusive original jurisdiction over secured claims, and in order to invoke the original jurisdiction of the district court during the pendency thereof, some question must be presented to the district court over which the power of the probate court is inadequate to grant the relief sought. 13 Tex. Jur. 608, § 25; Lauraine v. Ashe et al., 109 Tex. 69, 191 S. W. 563, 196 S. W. 501; Gregory et al. v. Ward, 118 Tex. 526, 18 S.W.(2d) 1049.

The record in this ease presents no question that the probate court was without power to determine.

In the absence of any pleading asserting that the property involved constituted the homestead of Olaude H. Allen and his deceased wife and that it was still used and 'occupied by him as such, the property was subject to administration by the probate court as part of the assets of the estate. Equitable Building & Loan Association v. Jones (Tex. Civ. App.) 36 S.W.(2d) 252; Hoefling et al. v. Hoefling et al., 106 Tex. 350, 167 S. W. 210, 211.

The property involved was the community property of Claude H. Allen and his deceased wife, Annie L. Allen, and under the law of descent and distribution one-half thereof, subject to the payment of valid indebtedness, descended to Lela B. Dalton and her rights therein did not constitute a cloud upon appellee’s title because, to constitute a cloud upon the title, there must be a claim apparently valid but which is actually invalid. Appellee did not seek to rescind the sale and recover the land, but affirmed the sale and sought a foreclosure of his alleged liens.

The court should have sustained t)he plea in abatement.

The judgment is reversed, and the cause remanded.