author: HAWKINS, Judge.

text:
    LANGFORD v. STATE.
    No. 15548.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    McGaugh & Darroeh, of Brownwood, Homer C. DeWolfe, of Austin, and G. A. Walters, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for murder, punishment assessed being ninety-nine years in the penitentiary.

Appellant was indicted for killing his father, Rufe Langford. It was charged in counts one and three tha-t the killing was accomplished by striking deceased with some instrument or weapon to the grand jurors unknown; and in the second count it was charged that the killing was done by some means and manner to the grand jury unknown.

The prosecution introduced in evidence the statement made by appellant on the night of the fatal injury as to how deceased met his death. This statement was made at the scene of the injuries, and was in substance that appellant had stopped his car to fix a puncture in the left rear casing, and his father, who was with him in the automobile, got out, walked a few steps down the road and laid down in front of the car; that appellant jacked up the rear axle, fixed the puncture, and called to his father that he was ready to go, and pushed the car off the jack; that the car went into gear, started firing, ran down the hill, and over and upon his father, who became fastened thereunder; that appellant was unable to extricate his father from beneath the car; that he got in the car and drove it off of his father; that appellant was unable to put his father in the car on account of his size and weight; that the fatal injuries to deceased were caused by the car when same accidentally ran over and upon him; that appellant went to town, obtained assistance, and had the officers and doctors notified. Appellant went back to the place of the injury where said statement was made to a number of witnesses who testified on the trial. It was the uncontradicted evidence that deceased was suffering from some physical ailment which caused him to lie down or recline to secure more comfort. From the statement of appellant in connection with points indicated by him to witnesses at the scene of the accident it appeared that deceased must have been dragged several feet under the car. Having introduced the aforesaid exculpatory statements, the state realized that it was bound thereby unless it could prove their falsity. As tending to do this the state proved by a physician that in his opinion the wqunds found on the head of deceased were not such as could have been sustained by being dragged under an automobile; also that deceased was a large man, ten, or twelve inches through the chest, and therefore it was improbable that he. could have been run over by a car such as the one used by appellant; also that at the place where the injuries were sustained the condition of the road was such that it would have shown signs of anything being dragged and that no such indications were discovered, and rhat there was no dirt, gravel, or grit in the wounds on the head of deceased; also that witnesses examined the rear casings of appellant’s car and found that the right rear casing showed to have been recently removed, whereas the left casing showed to the contrary. The tube being stuck to the casing and the casing rusted to the rini, it having been explained by appellant that it was the left rear casing which was changed by him immediately before the car ran over deceased.

Bill of exception No. 2 brings forward complaint to the refusal of the court to permit appellant to introduce before the jury the clothing, especially the coat and trousers worn by deceased at the time he sustained the injuries which resulted in his death. The bill is rather lengthy. Appended thereto is a long qualification of the trial judge. It is destroyed by a certificate over the judge’s signature that the qualification was excepted to. Under such circumstances the bill must be considered independently. Dailey v. State, 106 Tex. Cr. R. 99, 291 S. W. 242; Dowd v. State, 104 Tex. Cr. R. 480, 284. S. W. 592; Stapleton v. State, 107 Tex. Cr. R. 596, 298 S. W. 578. The bill sets out the statement made by appellant at tiie scene of the homicide substantially recited in this opinion; it then recites that various witnesses (naming them) had described certain torn places in the coat and trousers of deceased, and gavel testimony as to the amount of blood and dirt on them; it is then certified that there was a “discrepancy in the testimony of said witnesses.” Appellant offered the clothing of deceased in evidence upon “the ground that there was a dispute in the evidence as to the dirt and blood on said clothing, and a dispute as to the manner in which deceased met his death, and because of the fact that the tears and the blood and dirt on said coat and said trousers tended to illustrate the manner in which the injuries were inflicted upon the deceased, and were the best evidence of their condition as to the extent of the blood and' dirt thereon, and the nature and extent and probable cause of the torn places and of the manner in which same became torn and became bloody and dirty, and were corroborative of the defendant’s "statement and substantiated his statement made to the officers the night of the injury, that the same occurred when the car ran over and upon his father, and in getting the same off of his father; the defendant’s statement being to the effect that the deceased met his death accidentally, and the State’s theory being that the deceased was beaten to death by the defendant with some blunt instrument.”

The state urged as objections to receiving the clothes in evidence that they tended to solve no issue in the case, and that there was no controversy as to the manner' in which the injuries were inflicted. The statement of the case heretofore made, we think, shows that there was a controversy as to the manner in which the injuries were received. The whole effort of the state was to combat the truth of the explanation made by appellant at the scene of the homicide. The clothing of deceased had been cut from his body at the undertaking parlor, but otherwise were shown to have been in the same condition as when the body was taken in charge by the officers at the scene of the killing. It has always been held permissible to introduce clothing worn by deceased, when they serve to solve some question and throw light upon a matter connected with the proper solution of the ease and aid the jury in arriving at the very truth of the controversy. See Branch’s Ann. Tex. P. G., § 1855, under which many cases are collated. See, also, Reagan v. State, 70 Tex. Cr. R. 498, 157 S. W. 483; Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782; Haynie v. State, 113 Tex. Cr. R. 650, 21 S.W.(2d) 724. Usually the question is raised by objection of the accused when the clothing of deceased are offered in evidence by the state. In Sherwood v. State, 111 Tex. Cr. R. 453, 14 S.W.(2d) 1029, the clothing of accused tendered by him were held admissible as throwing light on the transaction out .of which the prosecution grew. An examination of the statement of facts in the present record shows that the condition of the clothing as to dirt on them, and tom places, was a matter of inquiry from many witnesses. Apparently it was regarded as important. The witnesses were not altogether in accord as to the quantity of dirt on the clothing, nor the location or extent of the torn places in the garments. Certainly the clothing of deceased would have shed light on some of the issues the jury were called upon to determine, the most important of which was how the tears and dirt came to be present. We cannot escape the conclusion that the learned trial judge fell into error in excluding the clothing from the jury.

An effort on the part of the state to show motive for appellant to kill his father brought about the complaint found in bill of exception No. 7. The justice of the peace was asked if he knew the state of feeling between appellant and deceased prior to and at the time of deceased’s death. Objection was interposed on the ground that the question was too indefinite and did not apprise appellant whether the incident proposed to be proved was too remote. The jury was retired and in its absence it was developed from the witness that more than seven years previously appellant had put deceased under a peace bond. It was upon this incident the witness predicated his opinion that the feeling between appellant and deceased was unfriendly. The witness further said that at the time deceased was put under the peace bond he had threatened appellant’s life, and was hunting him with a Winchester rifle. Appellant renewed his objection to the witness giving such testimony before the jury because the circumstances were such as showed a lawful right on the part of appellant to put deceased under the peace bond, and were not sufficient to show ill feeling on appellant’s part, and were too remote in point of time. It axopears from the statement of facts-that when the witness was testifying before the jury regarding this same incident he said that when the matter of putting deceased under a peace bond occurred “he (referring to deceased) was generally considered at that time to be a little off his mind.” The bill further shows that at the time the fatal injuries were received appellant was living with deceased and was taking him back and forth from home to town for medical treatment. The prosecuting attorney announced to the court that the state would connect said remote transaction by showing that the state of ill feeling existed between appellant and deceased as late as December next be fore the homicide, which occurred in February. The purported ill feeling in December was predicated on the testimony of a brother of deceased, and was to the effect that appellant and his father were “fussing” because deceased permitted a nephew to take and use an automobile which belonged to deceased, and that in the course of the conversation appellant told his father he could not have his way all the time. The court overruled appellant’s objections and permitted the witness' to give before the jury the testimony heretofore indicated' regarding the peace bond, and therefrom, to give his conclusion that ill feeling on appellant’s part toward his father existed. In our opinion this testimony should have been excluded. It was not only remote, but the act of appellant in placing his father under a peace bond seems to have been justified under the circumstances then existing. There was no contention that his conduct was spiteful or done without cause. The conduct of deceased which brought about the peace bond might show bad feeling' on his part toward appellant, but , the latter's act was a resort to legal means instead of violence, and, to our minds, evinces no malice toward his father. Davis v. State, 65 Tex. Cr. R. 271, 143 S. W. 1161; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135.

Bill of exception No. 13 complains of language used by counsel for the state in argument. The trial court thought it improper, and directed the jury not to consider it. Notwithstanding this instruction, appellant brings forward complaint on the ground that the argument was so obviously harmful the court could not remedy the situation by an attempted withdrawal. The bill presents a serious question. Surely the argument will not be repeated if another trial is had, and, in view of a reversal on other grounds, we do not further discuss the point.

Other bills of exception appearing in the record are not thought to present error.

For the reasons heretofore given, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    HARDIN v. STATE.
    NO. 15717.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    R. B. Cross, of Gatesville, for appellant.
    Tom L. Robinson, Dist. Atty., of Gatesville, and Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is embezzlement; the punishment, confinement in the penitentiary for three years.

Appellant was secretary of the American Mutual Life Association of Gatesville, which was incorporated under the laws of Texas as a local mutual aid organization. The association issued beneficial certificates, which, upon proof of death of the holder, entitled the beneficiary to a specified sum of money. The sources of revenue were membership fees, periodical dues and assessments to pay beneficiaries. The collections from assessments went into the mortuary fund, which was used solely for the purpose of paying beneficiaries. Out of the assessments 10 cents was retained by appellant. The mortuary fund could not be intermingled with any other fund. The general fund was used by the secretary for the purpose of paying expenses. The association was authorized to anticipate the payment of two or more beneficiaries by keeping in the mortuary fund a sum of money sufficient for that purpose.

During the month of September, 1930, appellant entered into a contract whereby he bought the Central Texas Insurance Company of Mexia, which was a corporation similar to that operated by appellant in Gates-ville. Prior to May 15, 1931, appellant was advised by the officials of the insurance department that he- could not merge the Gates-ville and Mexia associations. Upon receiving this advice, he returned the records of the Central Texas Life Insurance Company to Mexia and sent to one of the officers of the Mexia company a check on the mortuary fund of the Gatesville association for $900 to pay certain claims. With this check appellant inclosed unsigned checks executed in favor of certain named parties, who were beneficiaries under policies in the Mexia association. These checks aggregated $900. One of the checks was executed in the sum of $338 in favor of Mary Emma Hunter, wife of John S. Hunter, deceased, in full settlement of policy No. 176, Class B, with the Central Texas Life Insurance Company of Mexia. The date of this check was May 15, 1931. Upon receiving the check, Mr. Sweatt, treasurer of the Central Texas Life Insurance Company, signed it. Apparently it was delivered to the payee, Mrs. Mary Emma Hunter, as it was paid by the bank after being indorsed “Mary Emma Hunter.” Also the affidavit of Mary Emma Hunter showed that upon the death of her husband, John S. Hunter, she received $338 in full settlement of her claim under her husband’s policy in the Central Texas Life Insurance Company of Mexia. On the 8th day of January, 1931, appellant had issued a check on the Central Texas Life Insurance Company for $342, payable to Mrs. Mary Hunter, in settlement of her claim under the policy of her husband, John S. Hunter, in the Mexia company. This check related to the same policy as did the check for $338, issued to Mrs. Hunter on May 15, 1931. On account of an insufficient indorsement the check for $342 was not paid. On November 19, 1931, which was several months after the settlement with Mrs. Hunter, appellant sent out cards assessing members of the American Mutual Life Association of Gatesville for the alleged purpose of paying the beneficiary of John Hunter, deceased. It was stated in the cards that deceased lived near Waco at the time of his death.

In the month of January, 1932, an auditor of the state insurance department made an examination of the records and files of the American Mutual Life Association of Gates-ville relative to the assessment made to pay the beneficiary of John Hunter. This examiner testified, in substance, as follows: The members’ cards indicated that appellant had collected $439 on the Hunter assessment. However, the records failed to show that this amount had been paid out. The witness had two conversations with appellant about the matter. In the first conversation he asked appellant to show him that the claim on the death of John Hunter had been paid. Appellant replied tliat he would produce the proof. Some time later appellant showed him a check on a Lampasas hank dated June 2, 1930, indicating that Mrs. Salley Hunter had been paid $1,500. The witness got in touch with the bank at Lampasas. Later he determined that the check had been altered, it being shown that it had been originally issued to Mrs. Mary Weschke. When advised that this check had been altered, appellant fainted. On one occasion appellant stated to the witness that he had collected $561 on the John Hunter claim. The witness testified that during the year 1931 the total collections aggregated $33,272.60. He was not permitted to testify in response .to appellant’s question as to the amount the association disbursed.

Appellant’s secretary testified that the money collected through the Gatesville office was deposited in the First National Bank of Gatesville. She said $1 was deposited in the mortuary fund and 10 cents in a separate fund for paying operating expenses of the association. She declared that all sums that came in on the Hunter assessment were placed in the First National Bank of Gates-ville. She said that a number of insufficient checks were received, and that a proper audit of the affairs of the company could not be made without taking into consideration the worthless checks. Again, she testified that she believed she had issued a policy to John Hunter in the American Mutual Life Association of Gatesville. The records of the Gates-ville association did not show that a policy had been issued to John Hunter.

The bank account of the American Life Insurance Association of Gatesville showed that on May 15, 1931. there was a charge of $900 to cover a check for $900 mailed out of Mexia. The employee of the bank handling the account testified that she had never seen anything that indicated that appellant had used the association’s money. When unpaid checks were returned, the bank would charge the entire cheek against the mortuary fund. In other words, an unpaid check for $1.10 would be charged to the mortuary fund, notwithstanding the fact that 10 cents of such check belonged to a different fund.

In the month of September, 1931, a suit was brought against appellant by the Mexia association, and a writ of garnishment issued against the mortuary fund of the Gates-ville association in the First National Bank of Gatesville. At the time the writ was issued there was $147.12 in the mortuary account.

A witness for appellant, who had been an auditor in the insurance department at Austin, testified that he audited the books and records of the Gatesville association, and found that the total amount collected during 1931 was $33,151, and that the total claims paid amounted to $33,068. He said the mortuary account was short about $19. He declared that there were unpaid assessment checks in appellant’s files amounting to more than $300.

Appellant did not testify.

The fact that the state relied entirely upon circumstantial evidence was recognized in the charge of the court. The opinion is expressed that the evidence fails to establish that appellant appropriated any of the funds of the association. Aside from the statement made by appellant to the effect that he had collected $561 on the John Hunter claim, the state relied upon the entries on the cards and books kept by appellant and his secretary to show that $439 was received on the assessment made on John Hunter’s death. It was uncontroverted that there were in the files worthless cheeks aggregating $300. It was uncontroverted that $900 was drawn out of the mortuary fund to pay certain claims, among them being a claim for $338 by Mary Emma Hunter, widow of John Hunter. That this claim was settled was not disputed. That the total. of collections and disbursements for the year 1931 were approximately the same was uncontroverted. There was in the mortuary fund when appellant was sued by the Mexia association $147.12, which was more than enough to take care of the $101 difference between the .assessment on the John Hunter claim and the amount paid Mrs. Mary Hunter. Appellant’s action in presenting an altered check when called upon to show that he had paid the John Hunter claim might raise a suspicion that there was some dishonesty in the transaction. Again, the altered check showing that Salley Hunter and not Mary Hunter had been paid on the John Hunter assessment might raise ,a suspicion that the assessment was run on a fictitious claim. Be that as it may, .there is nothing to show that the money collected was appropriated by appellant. The circumstances must exclude every reasonable hypothesis except that of appellant’s guilt. To support a conviction on circumstantial evidence, there must 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 the offense, or “was a participant in its commission.” Branch’s Annotated Penal Code, § 1877; Graves v. State, 119 Tex. Cr. R. 68, 43 S.W.(2d) 953, and authorities cited.

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.


text:
    POOL v. STATE.
    No. 15534.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is receiving a deposit of money in an insolvent bank; the punishment, confinement in the penitentiary for six years.

The insolvency of the bank at the time the deposit was received was not alleged affirmatively in the indictment. In Fleming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598, 604, it was held that there should be an affirmative allegation that the bank was insolvent. In that case, as in this, the bank was incorporated under the laws of the state of Texas.

The opinion is expressed that the state failed to discharge the burden of proving that the bank was insolvent, that is, that it did not have sufficient assets to - discharge its debts. The state relied upon the fact that the bank closed and was taken in charge by the banking commissioner. Appellant’s proof was uncontroverted to the effect that the reason the bank closed was because of silent withdrawals by certain depositors, which had lowered the cash reserve. Further, the uncontroverted proof on the part of appellant was to the effect that the live assets of the bank exceeded all liabilities in value by $153,000. No witness testified to facts showing the insolvency of the bank. There was no evidence adduced on the part of the state that the notes or bills receivable were not signed by solvent persons. In short, as far as the state’s proof was concerned, all of the notes owned by the bank had been executed by solvent persons, and were worth their face value. See Riddle v. State, 106 Tex. Cr. R. 269, 291 S. W. 910.

In defining “insolvency,” the court instructed the jury that such term meant that a bank or banking institution is deemed to be insolvent or in failing circumstances whenever such institution, from any cause, is unable to pay its debts in the ordinary or usual course of its business. Appellant timely and properly excepted to this charge. The court should have responded to appellant’s exception and amended the charge. The definition given by the court is substantially the same as that condemned in Fleming v. State, supra. The jury might have construed the charge to mean that the bare fact that the bank was unable to meet all checks and demands made upon it at once characterized it as insolvent. We quote from Fleming v. State, supra, as follows: “Again, the rule that the bank must be able to meet all checks and demands made upon it at once would be more than harsh for it would place banks at the mercy of any combination formed against it, and place it at the mercy of those holding checks and drafts against it, if they should see proper to make a run upon it when it was not prepared upon the moment to collect in its cash or loaned money. At the time this bank closed, it was not only shown in the record, but is a matter of current history, that our country was in a financial panic, and it was impossible for the banks to meet their liabilities from one end of the country to the other. Under the rule or criterion set forth- in the charge of the court, doubtless under then existing circumstances any bank, and perhaps every bank in the country, could have been held to be insolvent, and'its officers made felons.”

See, also, Riddle v. State, supra.

We think the court’s charge on prima facie evidence was misleading, in that the jury might have reached the conclusion therefrom that they were warranted in convicting appellant because of the fact that the bank closed. The prima facie evidence part of article 557, P. C., under which appellant was convicted, relates to one fact, that is, the knowledge that the' bank was insolvent. We quote from the article as follows: “The failure of any. such bank or banking institution, or trust company or institution, shall bo prima facie evidence of knowledge on the part of any-such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit.”

As heretofore pointed out, it was incumbent upon the state to prove beyond a reasonable doubt that the bank was insolvent at the time it received the deposit. There is nothing in article 557, supra,' which warrants the construction that proof that a bank closes because it is unable to pay its depositors on demand is prima facie evidence of its insolvency. In the charge the court stated generally that prima facie evidence is merely proof of the case upon which the jury may find a verdict, unless rebutted by other evidence. This was calculated to lead the jury to the conclusion that they might predicate a verdict of guilty upon the sole fact that the bank had closed by virtue of its inability to pay its depositors at the time their money was demanded. In other words, the “prima facie evidence” charge was so framed as to cover the wholg. case.

We think appellant’s exception to the charge for-its failure to embrace an instruction on the law of circumstantial evidence was well taken. Also, upon another trial, the court should fully charge appellant’s affirmative defense.

We are unable to perceive the relevancy of the testimony brought forward in bill of exception No. 27. It did not prove or tend to prove any issue, and was not in rebuttal of any testimony offered by appellant. The fact that appellant might have stated to a customer other than Allen, the depositor named-in the indictment, that his deposit was perfectly safe would seem to shed no light on any issue in the case. Proof that this depositor had gone to the bank for the purpose of withdrawing his money, but was persuaded by appellant that his deposit was safe, would appear to be prejudicial.

In rebuttal, the state showed, over appellant’s proper objection, that 130 named depositors entered the bank on August 28, 1931, and deposited various amounts of money. None of these depositors was named in the indictment. Under the facts reflected by the record, we fail to see upon what issue this testimony was relevant. There appears to have been no controversy as to the fact that appellant assented to the reception of the deposit alleged in the indictment.

Several bills of exception relate to the fact that 'certain employees of the bank withdrew money from their accounts prior to the day the hank closed, and the further fact that they did not place in the bank money received from sources other than their salaries. Most of these bills show that several of the bank employees did not deposit their last salary checks in the bank. There was nothing to show that appellant knew anything about any of these matters. The jury likely took this action on the part of the employees to mean that such employees believed that the bank was insolvent. We are unable to reach the conclusion that such testimony was admissible.

The judgment is reversed, and the prosecution ordered dismissed.

PER OURIAM.

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


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

text:
    GRAVES v. STATE.
    No. 15465.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Rehearing Denied March 22, 1933.
    B. P. Maddox, of Tahoka, Lockhart, Gar-rard & Brown, of Lubbock, for appellant.
    T. L. Price, Dist. Atty., of Post, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for being an accomplice to the crime of burglary; punishment, two years in the penitentiary.

Appellant was found In possession of property recently theretofore stolen from the house which was burglarized. He made no explanation of his possession when first questioned, and did not testify on the trial. Two hoys — sixteen and nineteen years of age— testified in detail that appellant suggested to them the burglary of said house, the door to enter, the use of a piece of iron which he had placed near said door to effect entry, the kind of property they would find inside, and that appellant agreed to buy from them such property when stolen and delivered to him. They testified that following said burglary they delivered said property to appellant, and that he paid them in part and promised to pay them the balance. Appellant’s business was that of a junk dealer. The owner of the house testified to its burglary, the entry at said door, the loss of the property described by the boys, and its subsequent recovery, part of it being found in possession of appellant and part being brought from a neighboring town, with no explanation of how it got there, except from one of said boys that appellant took said property to said town and there sold it. The sheriff of the county testified that he found a piece of iron that had been used to prize open the door of the burglarized building, and that he saw tracks leading from said house, etc.

We are confronted with the question as to the sufficiency of the corroboration of the accomplice witnesses. Appellant was indicted as an accomplice, that is, it was charged in the indictment that the house in question was burglarized by said boys, but that prior thereto appellant advised, commanded, and encouraged them to commit said offense; ha not being personally present when same was committed. Just what should be held corroboration sufficient in such ease is not easy to say. The two boys who testified for the state were accomplice witnesses. The rule is laid down by statute, article 718, G. O. P., that there must be in the case “other evidence tending to connect the defendant with the offense committed.” What do we mean by “the offense committed?”

Appellant seems to contend that by this term is meant only the agreement to commit; the urging, or advising, or encouraging to commit, the alleged burglary. This can not be sound. In Cooper v. State, 69 Tex. Cr. R. 405, 154 S. W. 989, Judge Davidson lucidly and correctly calls attention to and draws the distinction between the offense of conspiracy and that of being an accomplice to a given crime, bringing out strongly the point that it takes more — both in averment and proof— to constitute the latter offense than the other. The offense of conspiracy is complete when the parties thereto have agreed to commit a felony. Not so in this case. There must be here averment and proof that a burglary was committed, and that prior thereto the appellant advised or encouraged those so doing to commit said offense.

It is said in many cases that to be sufficient the corroborative evidence need not be by itself sufficient to convict, nor need it corroborate the testimony of the accomplices in detail. Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046; Thomas v. State, 89 Tex. Cr. R. 129, 230 S. W. 159. Circumstances may furnish corroboration sufficient. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580. We know of no authority holding it necessary that the evidence relied on as corroborative must extend to every part in or element of “the offense committed.” The authorities hold to the contrary. Without going into details further, we have in this ease testimony deemed sufficient in many cases which might be cited to show the absolute guilty connection of appellant with that material part of the offense here charged or committed, to wit, the burglary of the house, so as that upon same he might be convicted of said offense of burglary. That is to say, we have here uncontradicted proof from witnesses other than the accomplices of appellant’s possession recently after same was taken from said house, of the property of said owner, without any suggestion of explanation on appellant’s part of how he came by such property. Such testimony is, in our opinion, sufficient to corroborate that of the accomplices, and tends to connect appellant with “the offense committed,” to wit, being an accomplice to the crime of burglary.

Appellant’s next contention, based also on an exception to the charge, is that the court below should have applied the doctrine of reasonable doubt in paragraph 8 of the charge wherein the court told the jury 'that they could not convict unless they believed there was other testimony in the case tending to connect appellant with the offense, if any, committed. The reasonable doubt was plainly presented in paragraph 7 of the charge, wherein the law was applied to the facts of the case, and again in paragraph 19 of the charge, where said doctrine was applied to the whole case. We think this sufficient.

Appellant next urges that the charge was erroneous in not telling the jury that the corroboration, to be sufficient, must have been as to material matters. The charge followed the form approved in cases too numerous to mention, and told the jury they could not convict on the testimony of the accomplices, unless the jury believed said testimony to be true, and that same showed the guilt of appellant, and further told them that they could not then convict unless they further believed that' there was other testimony in ‘the case corroborative of that of the accomplices and tending to connect appellant with the offense, if any, committed; and that the corroboration was not sufficient if it merely showed the commission of the offense. Standfield v. State, 84 Tex. Cr. R. 437, 208 S. W. 532, and Goodwin v. State (Tex. Cr. App.) 38 S.W.(2d) 806, are cited. It was not intended in the Standfield Case to change the rple applicable to charges on accomplice testimony laid down in Oates v. State, 48 Tex. Cr. R. 131, 86 S. W. 769, and approved and followed in many subsequent cases collated in Goodwin’s Case, supra, in which a charge omitting the word “material” was approved, Appellant cites Denson v. State, 47 Tex. Cr. R. 439, 83 S. W. 820. We fail to see the application. No witness in that case testified to finding in the possession of the accused the property, the fruits of the burglary, recently taken from the burglarized house. The state in that ease relied on proof of certain statements of the accused as corroboration, which this court deemed in no way corroborative. Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471, is also cited. We have examined this case, and find nothing in same opposing the conclusion we have announced above.

Whetstone, v. State, 79 Tex. Cr. R. 104, 182 S. W. 1117, opinion by Judge Davidson, is in principle much like the one before us. Judge Morrow in Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227, 230, says: “The question here is not one of the sufficiency of the circumstances to show guilt, but their cogency tending to corroborate the accomplice testimony.” In Fitzgerald v. State, 87 Tex. Cr. R. 34, 219 S. W. 199, we said that the sufficiency of the testimony to corroborate that of the accomplice, being primarily for the jury, would not be disturbed by this court under the facts. See, also, Hunt v. State, 89 Tex. Cr. R. 211, 230 S. W. 406; Lopez v. State, 92 Tex. Cr. R. 97, 242 S. W. 212; Mehlman v. State, 92 Tex. Cr. R. 557, 244 S. W. 602.

There is another rule well settled, which has often been.given application, same being a rule of exclusion under which the testimony of the accomplice is laid aside and the other testimony examined to soe if there be left facts or circumstances tending to connect the accused with the crime charged. We are of opinion that, if we left out the testimony of the accomplices in this case, there still remains the ’fact that appellant was found in possession of the recently stolen property, of which possession he made no explanation, and that this, added to the proof showing that there was in fact a burglary, is sufficient to tend to connect appellant with the crime charged. On any fair theory we believe that there is in this case testimony tending to connect appellant with the commission of “the offense committed,” to wit, being an accomplice to the crime of burglary.

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

HAWKINS, Judge.

I agree to the disposition of the case. The opinion of affirmance may be subject to the construction that, if the principals in the burglary who testified as accomplice witnesses against accused were corroborated in their testimony as to the commission of the burglary, it would be sufficient, in the absence of corroboration upon their claim, that appellant advised them to commit the burglary. The law is not so understood by the present writer. In a charge like the present, accomplice witnesses must be corroborated upon the point which would render the accused an accomplice to the ultimate offense committed. Langford v. State (Tex. Cr. App.) 50 S.W.(2d) 808; Lamb v. State, 101 Tex. Cr. R. 557, 275 S. W. 1038; Hall v. State, 52 Tex. Cr. R. 250, 106 S. W. 379; Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471; Jordan v. State (Tex. Cr. App.) 57 S.W.(2d) 127, opinion of date February 15, 1933.

MORROW, Presiding Judge, and HAWKINS, Judge

(concurring).

It is conceived that a conviction can be sustained alone upon the existence of facts in evidence which meet the measure of the law defining accomplice testimony in exhibiting evidence which tends to corroborate the statement of the principal offenders that they were advised by the appellant to commit the burglary. The offense of which the appellant is charged—that of an accomplice—is unlike that of a conspiracy. The nature of a conspiracy is such that the offense is committed by the agreement. One, therefore, who is charged with a conspiracy, can be convicted upon proof sufficient to corroborate the testimony of an accomplice going to show that the conspiracy was made and that the accused was a party thereto. The conspiracy is the offense, not the consummation of the subject 'of the conspiracy. One charged as an accomplice, however, by advising the commission of a subsequent offense in advance of its commission, does not become an accomplice until the substantive offense is committed; that is to say, if in the present case the appellant advised the burglary he would not be guilty as an accomplice unless the burglary was committed. It therefore follows that the law demands that there be evidence sufficient to corroborate the statements of the accomplices that the appellant was their adviser.

It was shown by the testimony of the perpetrators of the burglary that they committed the offense. That a burglary was committed was also shown by' other testimony. Corroboration of the testimony of Frazier and Dyer that they committed the burglary is made by the witnesses Connolly and Parker, and its sufficiency is not open to question. The accomplices claimed that soon after the burglary they delivered the fruits of the crime to the appellant. The evidence shows that the fruits of the crime were found in the possession of the appellant soon after the offense of burglary bad been committed. Upon tbe finding of tbe stolen property in tbe possession of tbe appellant, be made no explanation of bis possession of it. If be bad been charged with tbe burglary, his unexplained possession of tbe recently stolen property would have been sufficient to convict him of tbe burglary. According to the accomplices, the appellant advised in advance of the commission of tbe burglary that be would buy tbe fruits thereof. Part of tbe stolen property was found in the appellant’s possession at bis bouse, where, according to the accomplices, it was placed at night upon tbe direction of tbe appellant and with his assistance. Other than that made by tbe accomplice witnesses, there is no explanation of tbe presence of tbe stolen property in tbe possession of tbe appellant. Tbe silence of one upon tbe discovery of property recently stolen, in bis possession and under bis exclusive control, has been held in many cases to justify tbe presumption that tbe stolen property came unlawfully into the bands of tbe accused. See Branch’s Ann. Tex. P. O. p. 1332.

With tbe foregoing remarks, we concur in tbe affirmance of tbe judgment.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant urges that tbe trial court was in error in' declining to instruct the jury that the testimony of G. B. Frazier and Eby Dyer relative to breaking and entering the burglarized building could not be used for tbe purpose of determining appellant’s guilt as an accomplice, but could only be considered by tbe jury on the question as to whether Dyer and Frazier were guilty of tbe offense of burglary. It was pointed out in tbe original opinion that Dyer and Frazier testified in detail that appellant suggested to them the burglary of tbe house, the manner in which tbe ' entry should be effected, and tbe disposition to be made of the property taken from said bouse. Further, it was pointed out that these witnesses testified that they burglarized the bouse in tbe manner suggested by appellant and delivered to him the property taken therefrom. Part of the property taken from tbe burglarized house was found in appellant’s possession. He made no explanation of bis possession when first questioned, and did not testify on tbe trial. The witnesses Dyer and Frazier testified in person. Their version of the transaction did not come from confessions made by them, ■but from their lips as witnesses as they confronted appellant in the trial of his case. No declarations or admissions made out of court by said witnesses were introduced in evidence. Under tbe circumstances, the opinion is expressed that the exception to the charge was not well taken. In his brief appellant cites many cases supporting the proposition that the confession of the principal is admissible on the trial of the accomplice only to prove the principal’s guilt, and must be limited in the charge of the court to the purpose for which it was introduced. See Branch’s Annotated Penal Code, § 71; Aven v. State, 77 Tex. Cr. R. 37, 177 S. W. 82. Manifestly, the cases relied upon by appellant are not applicable to the present situation.

The motion for rehearing is overruled.

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.


text:
    WILLIAMS v. STATE.
    No. 15771.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Quinton Wright, of Houston, for-appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, death.

H. L. Bennett, deceased, lived in a small house about seven miles from Houston. On the night of November 16,1931, while deceased was alone in his house engaged in - writing a letter, some one killed him by firing a load of buckshot into his back. An examination of the premises disclosed that deceased’s empty pocketbook was on the floor near him. Prior to the time deeeásed was killed, officers had arrested appellant (a negro) at his home about a mile and a half from deceased’s home. In some manner appellant escaped from the custody of the officers. In two written statements appellant declared that, after he escaped from the custody of the officers, he went back to his house and got a single barrel twelve-gauge shotgun which was loaded with buckshot; that he went to deceased’s house, and, looking through the window, saw deceased sitting at a table writing a letter; that he placed his shotgun within 18 inches of the window and fired one time into deceased’s back; that, after deceased had fallen to the floor, he went into the house and looked into his pocketbook, but found no money; that, throwing the pocketbook down, he left the house, carrying his shotgun with him; that he went to the bayou and threw his shotgun in; that the bayou was dry at the time. A negro woman with whom appellant was keeping company testified that appellant stated to her that he killed deceased. Although officers went to the place appellant indicated, they were unable to find a gun. The officers testified that there was. water in the bayou.

Testifying in his own behalf, appellant denied that he killed deceased, and stated that he was at another place during the night deceased was killed. He declared that his statement in his confession to the effect that he killed deceased was untrue, saying that he made it because he was afraid the officers taking the confession would injure or kill him. He denied that he stated to the negro woman in question that he killed deceased.

Touching the action of the officers in obtaining the confessions from him, appellant testified, in substance, as follows: After being placed in a-cell, he was visited by three named officers on several occasions, but he did not tell them that he wanted to make a statement. After being in jail several days, these three officers took him out of his cell and carried him to the place where his wife was working. Taking his wife and sister in-. to the car, the officers drove to the West ESud police station. There they took his wife, sister, and himself out of the ear and placed them in a room together, leaving them there twenty-five or thirty minutes. Finally, the officers took him from the police station, and, leaving his wife and sister, drove to Rosslyn Heights, where deceased had lived. On the way to Rosslyn Heights one of the officers said: “We are going to take you out there and you are going to tell us the truth about this thing.” He replied to the officers that he did not know anything about it. One of the officers then said to him: “You are either going to tell us something out here or we are going to leave you out here.” He understood that the officers meant that they would kill him if he did not say he killed deceased. Carrying- him to his home, the officers remained there about fifteen minutes. One of the officers said: “Now are you ready to tell us the truth about this thing?” Appellant replied that he did not know anything about it. The officer then struck him on the head with his fist and knocked him on the bumper of the ear. All of the parties then got in the car, and the officers drove down to the edge of the bayou. There they remained with appellant for 35 or 40 minutes. They did not tell him he did not have to make a statement. One of the officers started to writing-before he asked appellant any questions. He believed the officers were going to kill him if he did not make the statement. When the officers asked him if he did not go to his house and get a shotgun on the night of the homicide, he answered in the negative. The officer replied, “Yes, you did.” One of the officers acted like he was going to get his gun. Being afraid the officer would kill him, he made the statement. We quote from 'appellant’s testimony, as follows: “The statement in the penciled statement about my going to Mr. Bennett’s house that night is not true. The reason I made that statement was because they wanted me to tell them and after I didn’t tell them they made threats to me and I went on and told them I did every time they would ask me and make that threat of getting the gun I would tell them ‘yes’ but voluntarily telling them anything, I didn’t tell them nothing.”

Appellant testified that, after making the statement down on the bayou, the officers carried him to the sheriff’s office in the county jail and that there the statement he had made and signed on the bayou was typewritten. He said he signed the second statement because he believed that, if he did not, the officers would take him hack to the woods and do him the same way or worse than they had when he signed the first statement. 1-Ie said, further, that he signed it because he was afraid not to sign it.

The officers admitted in their testimony that they took appellant out of jail and carried him to the place where his wife worked, saying that appellant wanted to see his wife before he made a statement. Further, they testified that they carried appellant and his wife and sister to the West End police station, where they remained for about 20 min utes. They admitted that they left the wife and sister títere at the police station and carried appellant in an automobile to bis own house down on the bayou. They said they stayed there a few minutes, all of them getting out of the car. They testified that they then drove to the bayou, turning off through the woods. They said that, after reaching the edge of the woods, they took appellant’s statement after due and proper warning. They declared that they did not tell appellant that he had to make a statement. They denied that they told appellant that they were going to leave him out there if he did not make a statement. Further, the officers denied that any of them hit appellant. They testified that, after they took the statement, appellant signed it. They testified, further, that, after taking the statement on the bayou, they carried appellant back to the sheriff’s office. They said that while there appellant told them they could write the statement on the typewriter just as he had made it in the woods. They admitted that the officers who were present on the bayou were in the sheriff’s office when appellant signed the typewritten statement.

The two statements were introduced in evidence. In his charge the court recognized that there was an issue as to the voluntary character of such statements. In submitting the issue, the court instructed the jury as follows:

“Now in this case if you believe from the evidence beyond a reasonable doubt that the defendant made the written statements.introduced in evidence by the State and that he signed the same and that he had been warned as set out in said statements that he did not have to make any statement at all and that any statement made by him could be used as evidence against him on the trial of the case concerning which said statement was made, and that the statement was voluntarily made and without compulsion, violence, threats, or persuasion, or through fear of being injured or killed, then you may consider the statements so made in connection with all the other testimony in the case in determining your verdict in this ease.
“Otherwise you will not consider such written statements for any purpose whatsoever.”

Appellant objected to the charge of the court on the ground that it did not sufficiently present the issue as to whether the second statement vyas voluntary, and presented a requested instruction sufficient, in our opinion, to have called the court’s attention to the necessity of instructing the jury, in substance, that, if they believed that at the time appellant made the statement on the bayou he had been threatened by the officers and put in fear of his life, or if the conduct of the officers in the absence of an open threat put appellant in fear of his life, and this was still operating on his mind at the time he signed the confession in the sheriff’s office, such statement could not be considered. The opinion is expressed that the matter presents reversible error. When the second statement was made, the same officers were present who had carried appellant to the bayou and taken his "first statement. Appellant testified, in effect, that he made the first statement because he was afraid the officers would kill him. He declared that at the time he signed the second statement he was still laboring under the influences which coerced him into his admission of guilt in the first place. In Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177, it appeared that, after making a statement that came about from coercion on the part of the officers, the accused shortly thereafter made a subsequent written statement in the presence of the same officers. Under the circumstances, this court held that the presumption should obtain, in the absence of evidence rebutting it, that the same influences which coerced the accused into the admission of guilt in the first place impelled his subsequent reaffirmance of guilt, or guilty knowledge. In Johnson v. State, 48 Tex. Cr. R. 423, 88 S. W. 223, 224, a similar situation was presented. In concluding that the charge of the court touching the voluntary character of the confession was inadequate, this court, speaking through Presiding Judge Davidson, used language as follows: “Appellant further requested the court, in regard to the confessions made to the district attorney, that if he was still laboring under the influence of the threats, promises, duress, and force made by any or all of the officers, or any other person in whose custody he may have been since his arrest, and there had not been a cessation of such influence at the time he made such confession, then such confession could not be regarded.”

In Hernandez v. State, 110 Tex. Cr. R. 159, 8 S.W.(2d) 947, 952, this court, speaking through Judge Hawkins, used language as follows: “If appellant had been threatened by the officers and put in fear of his life, or if the conduct of the officers in the absence of an open threat had been such as to put appellant in fear of his life, and this was still operating upon his mind at the time he made the written confession, the same would not be admissible. This question was not submitted to the jury, but doubtless would have been if the court’s attention had been directed to the omission. We mention it in order that it may not be overlooked in the event .of another trial.”

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: MORROW, Presiding Judge.

text:
    MOORE v. STATE.
    No. 15579.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Rehearing Denied March 29, 1933.
    H. B. Birmingham and R. E. Eubank, both of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

- Before the court, in the absence of the jury, an officer testified that he had long known the appellant, Bill Moore; that, prior to making a search of the appellant’s car and arresting him, the officer had received information that the appellant had gone to Oklahoma after a load of whisky; that Moore -was coming in on the north highway, and might be intercepted there; that the witness and another officer went to the north highway, but failed to see the appellant and returned to the city; that soon after their return the appellant was observed in his automobile on a street. Upon overtaking him on the street, they searched his car and found in it a quantity of whisky. The officer testified that he knew that the appellant bore the reputation of being a person engaged in the illegal traffic in intoxicating liquor. The testimony of the other officer who acted in making the arrest and search of the appellant’s car was in substance the same as that above.

After hearing the testimony of the officers as to the information on which they acted in making the search, the court permitted them to testify in the presence of the jury that they had found intoxicating liquor in the appellant’s car upon a search of it.

In ten bills of exception, the various rulings of the court were opposed and various questions of law preserved for review. Without stating the bills in detail, the following remarks reflect our conclusions touching the merits of the questions raised:

The legality of the court’s action in retiring the jury and ascertaining the matter of probable cause was within the law.

The reputation of the appellant as a violator of the law against the liquor traffic was a proper element of probable cause when known to the searching officers, and its introduction before the court in the absence of the jury was not error.

The facts showing probable cause upon which the officers acted were uncontroverted, and in refusing to submit to the jury the question of probable cause no error was committed.

The search being upon probable cause, as that term is defined in the law (Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790), it was not necessary that the officers see the whisky in the car before the search. The evidence that the officers had what they thought was reliable information that the appellant was bringing a load of whisky from Oklahoma, that he had it in his automobile, and that he .bore the reputation of a man engaged in the business of dealing in intoxicating liquors, was sufficient proof of probable cause to warrant the search of his automobile. See cases cited above; also Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 9 S.W.(2d) 358; Gunter v. State, 109 Tex. Cr. R. 408, 4 S.W.(2d) 978. The evidence going to show probable cause being undisputed, the subject became a question of law, and the refusal of the court to submit to the jury the question as to whether there was probable cause was not error. See McPherson v. State, 108 Tex. Cr. R. 265, 300 S. W. 936; Borders v. State, 115 Tex. Cr. R. 35, 27 S.W.(2d) 173; Filpot v. State, 114 Tex. Cr. R. 278, 26 S.W.(2d) 202; Brasselton v. State, 112 Tex. Cr. 615, 18 S.W.(2d) 168; Luttrell v. State, 116 Tex. Cr. R. 277, 31 S.W.(2d) 818; Jenkins v. State, 116 Tex. Cr. R. 374, 32 S.W.(2d) 848; Plant et al. v. State, 106 Tex. Cr. R. 330, 292 S. W. 550.

The judgment, is affirmed.


text:
    HANCOCK v. STATE.
    No. 15332.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    •Critz & Woodward, of Coleman, for appellant.
    Lloyd W. Davidson, .State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense ' is forgery; the punishment, confinement in the penitentiary for two years.

The state relied upon circumstantial evidence. Appellant did not testify in his own behalf and introduced no witnesses.

The forged instrument upon which the indictment was predicated was a check drawn on the Central National Bank of San Angelo, dated January 24, 1931, payable to cash or bearer in the sum of $4, and signed “John Lurter.” Appellant presented this check to E. B. Bridges, proprietor of the I-Ielpy-Selfy store in San Angelo. Mr. Bridges delivered to appellant 30 cents worth of meat and gave him change in the sum of $3.70. At the time of the delivery of the check, appellant indorsed his correct name and address on the back thereof. The check was deposited in the bank and returned with an indorsement thereon showing that John Lurter had no account. No person saw appellant write the check. However, he indorsed his own name thereon in the presence of Mr. Bridges. Witnesses testified that they made a search for John Lurter and found no such person. Officers of the bank testified that no person by the name of John Lurter had ever had an account in the bank. Appellant’s wife paid the check.

An officer took some specimens of appellant’s handwriting. These specimens were introduced in evidence as a standard of comparison. Using the specimens, the officer and other persons testified that in their opinion the cheek signed “John Lurter” was in the same handwriting as the specimens.

John W. Barnett testified, in substance, as followsr On January 24, 1931 (the date the check signed “John Lurter” bore), appellant came to his place of business and presented a check payable to “cash or bearer” in the sum of $5, drawn on the Central National Bank of Saii Angelo on January 24, 1931, signed “J." W. Shelton.” Appellant stated at the time that it was his personal check. Mr. Barnett placed it in the cash drawer and it was later sent to the bank for deposit. Mr. Barnett did not collect the money on the check. He did not know whether the house collected the money. 'He said: “Mr. North-cutt is the manager over there and in my opinion that is Mr. Northcutt’s signature to that check and shows he got the money on it February 5, 1931.”

The state’s testimony was to the effect that J. W. Shelton had no account in the Central National Bank. The officer of the bank testified that he did not know any person by the name of J. W. Shelton. A deputy sheriff testified that he made a search for J. W. Shelton through the merchants’ board of trade and police department, and had been unable to locate him; that he asked different people if they knew a man by that name. This officer testified that he filed a complaint against appellant on a check signed “J. W. Shelton” on February 4, 1031, and that on February 7, 1031, he filed a complaint on the checfe signed “John Lurter.” Furthei-, he testified that comparing the Lurter check with the J. W. Shelton check, which was introduced in evidence as a standard of comparison, he was of the opinion that the handwriting on the two checks in question was the same.

Appellant objected to the check signed “J. W. Shelton” being introduced in evidence and used as a standard of comparison. The objection should have been sustained. A sufficient predicate had not been laid for using the check as a standard of comparison. We quote from Branch’s Annotated Penal Code, § 1411, as follows: “When it is sought to establish the genuineness or falsity of a writing or signature by comparison of hand-writings, there must be a standard of comparison established, either by the production of a writing or signature admitted to be genuine or by establishing by clear and indisputable testimony such a standard of comparison. Phillips v. State, 6 Tex. App. 364; Hatch v. State, 6 Tex. App. 384. * * * ”

Under the circumstances reflected by the record, the opinion is expressed that none of the testimony concerning the Shelton check should have been received in evidence. Appellant offered no testimony. The evidence was direct that appellant presented and indorsed the check on which the indictment was predicated. It was circumstantially shown that the check was a forgery, it being clear that the theory of the state was that appellant forged such cheek. Hence, if it was established that appellant committed the forgery, it necessarily followed that appellant had knowledge that the check, was forged when he passed it. This being true, we are unable to perceive how an effort to show circumstantially that the separate and distinct transaction involved in. the passing of the Shelton check could have shed any light on the issues to be solved by the jury. This was the question: Did appellant forge the Lurter check? The separate and distinct transaction in question could not properly he considered in answering the question. In Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471, 472, this court, speaking through Judge Lattimore, used language as follows: “No principle is better understood than that proof of the connection of A. with a given crime cannot be made by proof of the fact that at a prior date he did a similar thing. Such testimony has no corroborative force.”

Not’ being admissible under any of the exceptions to the general rule .inhibiting proof of extraneous crimes, the objection to exclude and' motion thereafter’ made to withdraw such testimony should have been sustained. “Proof of another independent crime is not admissible by sheer force of the fact that it was committed on the same day or the same night.” Branch’s Annotated Penal Code, § 166. The testimony could have had no other effect than to show that appellant was a criminal generally. See Enix v. State, 108 Tex. Cr. R. 106, 299 S. W. 430.

The court undertook to limit the testimony touching the extraneous offense to the question of identity and ’ knowledge. We think the charge accentuated the error committed in receiving the testimony. Again, if the testimony. had been properly admitted, the charge was deficient in not instructing the jury that they could not consider the alleged extraneous offense unless appellant’s guilt of such offense was s’hown by legal evidence beyond a reasonable doubt. Miller v. State (Tex. Cr. App.) 53 S.W.2d) 790.

In his argument the district attorney further accentuated the error by stating to the jury: “We have proved two forgeries, we have shown a system of forgeries.”

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: LATTIMORE, Judge. HAWKINS, Judge.

text:
    Ex parte SANDERS.
    No. 14536.
    Court of Criminal Appeals of Texas.
    Feb. 15. 1933.
    State’s Rehearing Denied March 22, 1933.
    John SlcGlasson, of Waco, for appellant.
    B. P. Matocha, City Atty., of Cameron, and IJoyd W. Davidson, State’s Atty., of Austin, for the State.
    Terrell, Davis, Hall & Clemens, of San Antonio, amicus curise.
   LATTIMORE, Judge.

From an order of the county court of Milam county upon a habeas corpus hearing remanding relator to the custody of the city marshal of the city of Cameron, an appeal was taken to this court. An opinion was handed down at a former time, but upon consideration same is withdrawn, and the following substituted.

The city authorities of said city enacted an ordinance having two sections, the first of which makes it unlawful for any person, etc., to peddle, solicit, take orders for, etc., within such corporate limits, any merchandise for the purpose of making delivery from any vehicle while same is'standing on any street, alley, etc., within the corporate limits of the city of Cameron. Relator asserts that tho applicable parts of this ordinance are unreasonable, and that same is not one within the power of the city authorities to enact.

We do not concern ourselves with any part of said ordinance not involved in the complaint lodged against relator. He is not charged with peddling, which offense is well defined, Ex parte Hogg, 70 Tex. Cr. R. 161, 156 S. W. 931; . hence we do not cqnsider whether said ordinance is valid in so far as its inhibition against peddling is concerned. Nor is relator charged with a violation of the second section of said ordinance, which forbids peddling, soliciting, taking orders, etc., on any street, etc., of said city; heneo we do not feel called on to pass on the validity of said second section of said ordinance. It seems to be well settled that when an ordinance or law is severable, that is valid in some -part and invalid in another, but the in•valid part can be stricken out and still leave a sufficient law, it is the duty of the court to hold invalid, only that part which is bad. Texas Jur. vol. 9, § 55. So here, if the complaint against this relator is grounded on some invalid part of the ordinance in question, if such there be, and there be other parts not so invalid, it would be our duty to order the release of the relator upon the ground of the invalidity of that part of the ordinance under which he is held.

We confine our analysis and discussion to that part of section 1 of said ordinance which makes it unlawful for any person, etc., to take orders, solicit, etc., any merchandise for the purpose of making delivery from any conveyance while same is standing on any street of said city. Conceding all legal contentions made to the effect that the city authorities have and had full power to pass reasonable ordinances to prevent the use of the city streets, alleys, etc., as places for the transaction of private business; and that perhaps said authorities might make laws forbidding the parking on such streets of vehicles loaded with merchandise, in such manner and for such length of time as to interfere with the free use of such streets, etc., for purposes of traffic, still in this case we are not dealing with any such ordinance; nor is there here effort to penalize him who handled or parked or' occupied the vehicle from which purposed deliveries would be made; but this ordinance does undertake to penalize him whose only affirmative act in the matter was that somewhere in said city, in storehouse or residence, he took orders or solicited the sale of merchandise, a thing which in and of itself could hardly be deemed any sort of interference with traffic or the free use of the streets. No imputed illegality could arise from the character of the goods so solicited or sold on orders; there being nothing in the ordinance supporting such possible imputation. Nor does there appear in the ordinance aught affected by the time, place, or manner of such solicitation. The grocer, butcher, or merchant of any kind who cared to call over the phone, or sent a personal solicitor to obtain orders for goods, would clearly be penalized under the terms of the ordinance if at the time of such solicitation it be purposed that presently a delivery would be made from a vehicle while standing on a street in said city. Since pneumatic tubes and airplane deliveries are out of the question in our Texas cities, it would seem difficult to escape the consequences at once apparent to him who took such orders.

Nor does the ordinance make the punishment of the solicitor at all or in any way dependent upon his making delivery -from some vehicle, or even returning the order in person or by mail or phone, to some other person who might make delivery by medns of such vehicle. When an order has been taken,- or solicited, the act being finished — completed — the criminality under the ordinance of the person so doing has attached. Such an ordinance would seem clearly violative of the provisions of our Constitution (article 1, § 19) guaranteeing to every citizen equal rights in regard to his life, liberty, and property, and the right to make and execute contracts. Wichita Electric Co. v. Hinckley (Tex. Civ. App.) 131 S. W. 1192; Wylie v. Hays, 114 Tex. 46, 263 S. W. 563, 569.

An ordinance forbidding generally any citizen from .taking orders for goods would be unreasonable, and the situation w'ould not be helped by such effort as here appears, to link up the act of the solicitor with some other person who, somewhere on a street, might intend to make delivery from a vehicle necessarily standing on such street. In our opinion that part of section one of the ordinance relating to soliciting, taking orders, etc., is at once unreasonable, and cannot be upheld on any proposition that it is a lawful exercise of the right of control over the streets of the city of Cameron by its duly constituted authorities.

The judgment of the trial court will be reversed, and the relator will be ordered discharged.

On Motion for Rehearing.

HAWKINS, Judge.

Section 1 of the ordinance in question, eliminating the parts not here necessary, makes it unlawful for “any person * * * to take orders * * * to sell within the corporate limits of the City of Cameron any merchandise for the purpose of making delivery * * * from any conveyance * * * while same is standing on any street, alley, or public place within the corporate limits of the City of Cameron.” Section 2 of said ordinance is identical with that above quoted, save that it prohibits like acts on any street within the fire limits of said city.

Tn the motion for rehearing, it is insisted that the purpose of the ordinance was to prohibit trucks loaded with merchandise from standing on the streets while the said merchandise was being sold or orders taken for its sale, thereby interfering with the usual traffic on, and use of, the streets, and urges that the ordinance should b.e so construed. A further consideration of the ordinance confirms us in the view that, whatever may have been intended by it, the language in which the ordinance is couched is such that no construction other than as given it in our original opinion would be justified.

The motion for rehearing is overruled.


author: BATTIMORE, Judge.

text:
    FREE v. STATE.
    No. 15678.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Barron & Ware, of Bryan, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   BATTIMORE, Judge.

Conviction for seduction; punishment, 5 years in the penitentiary.

We are confronted at the threshold of this case with the question of a record in such shape as that we cannot consider the statement of facts or bills of exception. The motion for new trial was overruled June 6,1932, and the court then by order granted appellant 90 days in which to file bills of exception and statement of facts. This time expired September 4th. On August 30th the trial court entered another order extending the time for such filing 30 days. The statement of facts and bills of exception were filed on September 23d, nearly 20 days after the expiration of the 90-day period allowed by statute.

The trial court had no power or authority to extend such time beyond that fixed by article 760, subd. 5, C. C. P., which is 90 days from the giving of notice of appeal. Said statute contains the following language: “The same shall not be so extended as to delay the filing thereof within ninety days from the date the notice of appeal is given.” Authorities upholding this statute are too numerous to cite, but many of them will be found under subdivisions 44, 45 of the notes to article 760, Vernon’s Ann. C. C. P.

The indictment, the charge of the court, the judgment and sentence are regular, and, being without power to consider either the statement of facts or bills of exception, the judgment will be affirmed.


author: WALKER, Chief Justice.

text:
    RIVERS v. FEAZELL.
    No. 2369.
    Court of Civil Appeals of Texas. Beaumont.
    March 2, 1933.
    Adams & McAlister, of Nacogdoches, for appellant.
    R. W. Fairchild and J. J. Collins, both of Lufkin, for appellee.
   WALKER, Chief Justice.

This is a suit for slander, filed in the district court of Nacogdoches county by appellant, Mrs. Effie Rivers, against appellee, J. Fred F’eazell, who on September 19, 1931, was operating a café in the city of Nacog-doches, Nacogdoches county, Tex., and for whom appellant was working as cashier on the date mentioned. On the morning of that day, appellant’s son, Keith Rivers, ate his breakfast at appellant’s café and went by. his mother’s desk to pay for his breakfast. Ap-pellee, being suspicious of appellant, secretly watched the transaction, and, after Keith Rivers left his mother’s desk, appellee took charge of the desk and the cash register which she was operating. After ringing up a few orders, he took the record, of the m'orn-ing’s work out of the machine, with some of the tickets, and went back to his office. In a short while he called appellant to his office, which was in the balcony just -above the dining room of the café. When she entered his office, she found appellee and with him his son-in-law, Clifton Tannery, who was the general manager of the café and the bakery which appellee operated in connection with his café. This suit rests upon what occurred between appellant and appellee at that time; the facts being pleaded by appellant as follows:

“That on the 19th of September, 1931, the plaintiff, while in the discharge of her duties in defendant’s place of business, which was then and there being patronized by various and sundry customers and citizens, who were then in said place of business for the purpose of being served with goods, wares .and merchandise as sold by the defendant, the defendant without any reason, cause or provocation, called to the plaintiff from the veranda where defendant was standing, which is located in defendant’s place of business over and above the cashier’s stand where the plaintiff was working, to come up where he, the defendant, was with Clifton Tannery and in the presence and hearing of others who were in the store and those who could hear .and understand what was being said by the defendant to plaintiff, and that after the plaintiff reached the veranda where the defendant was, as aforesaid, the defendant in an angry, irritable and agitated mood, said to plaintiff: ‘Mrs. Rivers, I have the dead wood on you, you can just get your hat and things and go home and I will mail your check to you.’ And at this instance plaintiff replied: ‘Mr. Ered, what do you mean?’ And the defendant, in a sullen, morose and sulky manner, replied: ‘A while ago when Keith (meaning plaintiff’s son) went to pay his bill, you did not take any money.’ And at this instance the plaintiff replied: ‘Why, Mr. Fred, I certainly did. lie laid a quarter down on the counter and I picked up a nickel that was already laying there and gave it to him and took the quarter.’ And at this the defendant, with vehemence, emphasis, fervency and intensity and in a cold-blooded manner, with malicious expression on his face, said: ‘No, you did not. There was no money passed at all; you might have registered the nickel laying on the counter, but you never registered the money you got from your son.’

The other allegations of the petition were sufficient to state a cause of action for slander. The judgment was entered upon a verdict instructed in favor of appellee, from which appellant has duly prosecuted her appeal to this court.

For the purposes of this' appeal, we concede that appellant offered proof that appel-lee uttered the defamatory words at the time and place and under the circumstances charged in the petition, though he seriously insists by a counter proposition that a fatal variance exists between the proof and the allegations of the petition. On this concession the two points in the case are “publication” and “privilege.”

It is said by 36 C. J. 1227, that, “in order to constitute a publication it is necessary that some third person understood the defamatory matter as relating to plaintiff.” Defamatory words uttered only to the person concerning whom they are spoken, no one else being present or within hearing distance, or no one being present who is not protected by “privilege,” are not actionable. Upon this proposition it was said, in Lemaster v. Ellis, 173 Mo. App. 332, 158 S. W. 904, 909: “There is a school of philosophy teaching that sound does not exist except in the ear of the hearer, and that Niagara rolls on in silence unless some ear is there to hear. While this may not be correct in the realm) of acoustics, it is correct in the law of slander, with the further fact that no one hears who does not understand.” See, also, 17 R. C. L. 315, 316; Cash Drugstore v. Cannon (Tex. Civ. App.) 47 S.W.(2d) 861. Appellant does not controvert these propositions, but insists that she raised an issue of fact within these propositions sufficient to send her case to the jury. This contention was properly denied by the trial court. The evidence is conclusive that no one except appellant, appellee’s son-in-law, and the sheriff of Nacogdoches county heard appellee utter the defamatory words. The patrons of the café who were present during the controversy were called as witnesses and denied that they hoard anything that was said. One of them testified he heard a remark by appellant, but was not asked what it was.

Appellant' insists that she raised an issue that some one may have been present who was not called as a witness. We have examined carefully every word of the testimony and must deny this contention. As we construe the evidence, every person in the café within hearing distance of appellee’s office was offered by him as a witness and testified affirmatively that they heard nothing that was said.

Appellee’s cook, Theo Daniels, was present waiting upon the patrons who testified as witnesses. The proposition is made that the “publication” in his presence was actionable. It is not necessary to determine that point, that is, whether appellee was entitled to claim the defense of privilege as to Theo Daniels, because the language testified to by him was not the language pleaded by appellant. His testimony was as follows: “Gentlemen, I was at work behind the counter, probably ten or twelve feet from Mrs. Rivers, Mr. Feazell and Clifton Tannery, and I heard Blr. Feazell say something about Mrs. Rivers — about why she didn’t take the twenty cents from her boy for breakfast.”

We are giving appellant the full benefit of this testimony, though on cross-examination this witness testified that he heard nothing appellee said. While it is not necessary to prove the very words charged in the petition, yet the words must be substantially the same. The substance of the charge in this case was that appellant had refused to take money from her son, while the testimony of this witness was merely an inquiry as to why she did not take the 20 cents from her boy. This difference constituted a fatal variance. On -the proposition of variance, the testimony of this witness was insufficient to raise an issue of publication in favor of appellant. 17 R. C. L. 421; 37 C. J. 65; Note 2 A. L. R. 370; Conlee v. State, 14 Tex. App. 222; Berry v. State, 27 Tex. App. 483, 11 S. W. 521; King v. Sassaman (Tex. Civ. App.) 54 S. W. 304.

Appellant makes the further contention that a negro dishwasher named Sherman Wade was in position to hear the defamatory words. This contention is denied. Sherman Wade was in the kitchen at the time, so far away that he could not have heard what was said. '

After appellee had made the. charge against appellant, she phoned the sheriff, and he came to appellee’s office in answer to her message. While there the whole situation was explained to him. In this eonnection appellee insists tliat the sheriff, did not hear appellee utter the defamatory words charged in the petition, but, for the purposes of this discussion, we concede that the issue was raised against appellee’s contention. The utterance of the slanderous words in his presence and to him was not actionable, because he was there at the request of appellant. He heard it because appellant was willing for him to hear it. Laughlin v. Schnitzer (Tex. Civ. App.) 106 S. W. 908; Rosenbaum v. Roche, 46 Tex. Civ. App. 237, 101 S. W. 1164. Sustaining this conclusion, it is said by R. C. L. 320: “The maxim volenti non fit injuria has also been applied to alleged slanderous statements made in the presence of an officer, where the subject of the statements solicited them and sent for the officer for the express purpose of having the statements repeated in his presence.”

The utterance of the defamatory words in the presence of the son-in-law, Clifton Tannery, was qualifiedly privileged and was not actionable except upon proof of malice. There is not a scintilla of evidence in the record raising the issue of malice. Appellant had been in appellee’s employment for five or six years. He had at all-times been courteous towards her, had paid her wages regularly, and had never abused her in any way. This occasion was the first controversy between them. There is nothing in the record to impugn his good faith in making the accusation against appellant. Her proposition of malice rests on these grounds: (a) At her request and at the suggestion of the sheriff appellee refused to count the money in the cash register. He told both of them that they could go through the cash register if they wánted to, but it would not help them any. It appeared that appellee had the record from the machine of all items rung up by ax>pellant and the tickets representing these items. There was no entry by the machine covering the breakfast ticket for appellant’s son. Money was put in from time to time in the machine for which no ticket was made. However, appellant concedes this issue in the following language: “The record is full that the cash register could not have been checked, as there was no system of keeping the tickets and the money.” (b) Appellee made the charge in a loud, angry voice. This contention is affirmatively denied by the Commission of Appeals in Simmons v. Dickson, 110 Tex. 230, 213 S. W. 612, 218 S. W. 365: “It is conceded that the publication was conditionally privileged, and that, to be actionable, it must have been published with actual or express malice; the burden of proof being east upon the plaintiff to establish actual malice. Plaintiff contends, however, and the Court of Civil Appeals [170 S. W. 834] held that the jury might infer such malice from the vehemence of the language used and the disproportion between the epithets applied to the plaintiff and the charges made against him. We are unable to concur in this conclusion. It is but the assertion in different language of the proposition that malice can be inferred or presumed from the fact of pubr lication. When a publication is conditionally privileged, the law raises the presumption of good faith and want of malice; and to hold, in such a case, that malice can be inferred from the character of the language used alone would, in our opinion, destroy the force of the privilege.” (c) Appellee discharged appellant in order that he might give her place to another woman. There is no evidence in the record raising this issue.

For the reasons stated, the judgment of the lower court is in all things affirmed.


author: FLY, Chief Justice.

text:
    MARYLAND CASUALTY CO. v. FRIZZELL et al.
    No. 9006.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Rehearing Denied March 22, 1933.

      R. H. Mercer, of San Antonio, R. L. Daniel, of Victoria, and R. L. House, of San Antonio, for appellant.
    Gordon O. MeGehee and H. J. Nichols, both of Houston, and Carey Legett, of Port Lavaca, for appellees.
   FLY, Chief Justice.

Appellant instituted this action to set aside an award by the Industrial Accident Board to Mrs. Ivera Frizzell, Vera Zelmo Frizzell, a minor, and their attorney, Gordon 0. Me-Gehee, on account of the death of Elmo H. Frizzell, the father of the minor and husband of Mrs. Frizzell. The answer of appeilees set up the facts of the policy of insurance issued by appellant, the employment of the deceased by a subscriber under the Compensation Act, and the award of the board when deceased lost his life while prosecuting his labors while in the employment of the subscriber, J. Dupuy. The cause was tried by a jury, and judgment was rendered in responses to special issues that appellees recover a weekly Slim Of $989 for 360 weeks.from the date of the injury which caused the death of Elmo H. Frizzell.

The first and second propositions are without merit and are overruled. Appellant did not deny the issuance of a policy to J. Dupuy to give indemnity for the injury or death of its employees. No such issue was raised in the case, but, if it had been raised, the evidence was ample to show that the policy had been issued by appellant to J. Dupuy, that deceased was in his employ when injured and laboring in due course of his employment. It is in effect admitted that testimony was admitted showing the existence of the policy at the time of the injury and death, but that it was presented only to show jurisdiction. The evidence was before the court for all legitimate purposes, and the whole trial proceeded on the theory of the existence of a policy. Appellant will not be permitted to escape a liability assumed by it for pay on any such fanciful and hairsplitting technicality. It has never denied execution of the policy.

The third proposition complains of the submission of three issues in one. It was not seriously questioned that deceased was injured while in the employment of J. Dupuy and that he died from such injury which was received where alleged, and no • possible injury could have resulted from submitting all three matters in one question. This court will not consider an allegation of error from which no injury did or could result — a bare technicality about things concerning which there was no dispute. All the testimony showed that the husband and father was injured unto death, while working in due course of his employment and at the place named. This ruling involves a ruling on the fourth and fifth propositions. They are without merit.

The sixth, seventh, and eighth propositions are overruled. The agreement made at a former term of court as to certain facts in regard to the daily and weekly wage of deceased was admissible in evidence. It was not limited as to the time it should be effective, and, if true and admissible at one term of court, it was true and admissible at another. The admissions in the brief of appellant, in discussing the propositions show the propositions are totally unfounded.

The allegations as to the injuries received by deceased were sufficient, for all practical purposes, and the objections contained in the ninth proposition are overruled. The recovery sought was not for an injury inflicted on deceased, but for his death. He received the injuries, and he died therefrom.

The tenth to fourteenth propositions complain of certain arguments presented by appellant’s attorney to the jury. The argument does not appear to be reprehensible, and, in order to reverse a judgment on such unfounded objections, would almost amount to a prohibition of argument by appellants to a jury. The propositions are overruled. The argument may have been prejudicial to appellant, as all pertinent argument on the facts is prejudicial to the party against whom the argument is directed. The marshaling of legitimate evidence is ordinarily prejudicial to the opposing party.

That part of the cross-action pleadings assailed in the fifteenth proposition is complicated and not to be commended as a model, and still we fail to see how it could have misled appellant or inflicted any injury on it. The proposition is overruled. The suit was for damages resulting from the death of Elmo H. Frizzell, and, if the notice given to appellant was within thirty days from the date of death, the statutory requirement as to notice was fully complied with. Article 8307, § 4a. The quotation from the statute by appellant is not a fair quotation of the statute, and is misleading and inaccurate. The sixteenth proposition is overruled.

The court permitted proof of the qualifications of a physician as to being an expert along the lines of the testimony sought to be obtained from him. It was not necessary to prove his membership in certain medical societies in order to increase his importance before the jury. His qualifications as an expert had not been questioned or assailed. The seventeenth proposition is' overruled.

Tlie evidence received from- one J. J. Boyd as to declarations made to him by Dr. Grace, a witness for appellant, who bad denied making tbe declaration, was admissible as tending to impeach tbe witness for appellant. The eighteenth proposition is overruled.

Upon tbe objection of appellant to a question to and answer by witness Jennings as to a conversation with Dr. Grace, the question was withdrawn, and tbe jury instructed by tbe court not to consider tbe testimony. The answer was practically tbe same as that given by the witness Boyd, tbe gist of which was admitted by Dr. Grace to be true. The eighteenth proposition is overruled.

There is nothing material nor of strength sufficient to justify the reversal of a judgment founded on facts and justice to the wife and child of a husband and father insured by appellant. The insurance should be paid.

The judgment is affirmed.


author: HIGGINS, Justice.

text:
    RABENOWITZ v. JEFFERIES et al.
    No. 2800.
    Court of Civil Appeals of Texas. El Paso.
    March 9, 1933.
    Rehearing Denied March 30, 1933.
    A. T. Folsom, of Wink, and Potash & Cameron and Leon Kotosky, all of El Paso, for appellant.
    J. E. Starley, of Pecos, for appellees.
   HIGGINS, Justice.

This is an action for an injunction and damages brought by T. J. Jefferies, Tom Eron, and Acme Salvage Company against Saul Rabenowitz and J. L. Rush.

Judgment was rendered in favor of Jef-fex-ies against Rabenowitz enjoining the latter from moving any of the storage tanks described in the petition from the possession of Jefferies or in any manner interfering with his possession and use thereof. As to this feature of the judgment no point is presented by the appeal.

Judgment was also rendered that the plaintiffs other than Jefferies take nothing, and that Jefferies recover of Rabenowitz and Rush the sum of $435, with interest, as damages for the conversion of a 509-barrel storage tank and 65 barrels of oil. Rabenowitz appeals.

Briefly stated the jury’s findings are: (1) The 500-barrel tank on September 1, 1930, was of the value of $400. (2) The damage sustained by plaintiff by the removal of the 250-barrel tank was $25. (3) The cash market value of the 65 barrels of oil involved in the suit was $35.

It is evident that, in rendering judgment, the court ignored the second finding for the judgment for damages was in the sum of $435, which is the aggregate amount of the damages fixed by the first and third findings.

It was alleged the defendants converted the 500-barrel tank and oil referred to in the first and thii’d findings. The testimony of the plaintiff Jefferies shows the BOO-barrel tank had a market value at the time and place of its alleged conversion, but there is no testimony of what such market value was. Jefferies was the only witness upon that phase of the case, and his .testimony shows it had a market value at said time and place, but he did not know such value. It is true he testified it was worth $500, but that was necessarily what he considered its actual value to be because he admitted he did not know itó market value.

In an action for damages for conversion of property, its market value is controlling, and evidence of its actual value is inadmissible in the absence of a showing that it has no market value. 17 Tex. Jur. pp. 436, 437.

This point was reserved by defendants, both by objection to the testimony of Jeffei-ies as to valúe of the 500-barrel tank, as well as by objections urged against the first issue submitted. The propositions relating to this phase of the case are sustained.

The point is also made that the evidence is insufficient to warrant the submission of the second issue because there is no evidence Rabenowitz had anything to do with the removal of the 250-barrel tank. This contention need not be considered, fox, as stated above, the court in rendering judgment evidently ignored the second finding.

The same point is made as respects the oil referred to in the third issue, and this is well taken. The evidence is insufficient to connect Rabenowitz with the waste of the 65 barrels of oil referred to in such issue.

There is another error, apparent upon, the face of the record, fundamental in its nature. It is alleged in the plaintiff’s petition that the property alleged to have been converted was at the time of the conversion owned by the plaintiffs Eron and Acme Salvage Company and in the possession and use of Jefferies by virtue of an agreement between Eron and Jefferies.

In an action for damages based upon conversion, the possession of plaintiff at the time of the conversion is sufficient evidence of title to support an action for the value of the property against a trespasser or wrongdoer. First Nat. Bank v. Brown, 85 Tex. 80, 23 S. W. 862; Robertson v. Gourley, 84 Tex. 375, 19 S. W. 1006. But this rule has no application where the allegations of the petition show the plaintiff was not the owner of the property and that some one else owned the same. The petition upon its face shows that Eron and Acme Salvage Company were the owners of the 500-barrel tank at the time of its conversion, and the right to recover the value thereof accrued to them. Jefferies was entitled to recover only the damage accruing by reason of the invasion of his possessory right.

The judgment recites the court found from the evidence that Eron and Acme Salvage Company had conveyed the property described in the petition and all rights therein to Jefferies. There is an allegation in the petition that on November 18, 1931, the parts of the property then on the lease were conveyed by Acme Salvage Company to Jefferies, but this has no application to the tank removed from the lease and converted by defendants on September 1, 1930.

There is no allegation that Eron and the Acme Salvage Company had assigned to Jefferies their cause of action for the recovery of the value of the 500-barrel tank alleged to have boon converted. The petition negatives any right in Jefferies to recover such value. It shows a right in Jefferies to recover the damage to his possessory right and no more. In the state of the pleadings, if was fundamentally erroneous to render judgment in favor of Jefferies for the value of the tank alleged to have been converted .by defendants.

" For the errors pointed out, the judgment against Rabenowitz is reversed, and the cause remanded. The judgment against Rush, who did not appeal, is not disturbed.