author: CHRISTIAN, J. MOEEOW, P. J. EATTIMORE, J. HAWKINS, J.

text:
    RIPPY v. STATE.
    No. 14387.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Granted June 24, 1932.
    State’s Rehearing Denied Oct. 26, 1932.
    Robt. H. Hopkins, of Denton, Alvin M. Ows-ley, of Dallas, Owsley & Owsley, of Denton, and Dan Moody, of Austin, for appellant.
    Earl Street, Co. Atty., and B. T. Fitzhugh, Asst. Co. Atty., both of Denton, E. M. Over-shiner, Sp. Pros., of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense, is murder; the punishment, confinement in the penitentiary for 35 years. A former appeal ‘ is found reported in 113 Tex. Cr. R. 578, 24 S.W.(2d) at page 841.

Appellant had leased his filling station to deceased, John Hornsby. The lease was to expire August 1, 1928. The homicide occurred at the filling station on July 25, 1928. It. was- the theory of the state that appellant', killed deceased in order that he might get immediate possession of the filling station. In. support of this theory the state offered testi-monje to the effect that appellant stated to the county, attorney that he did -not like the way deceased carried on his business; that he was having some trouble with deceased; that the county attorney might have to prosecute him for something else besides running a slot machine. It appears that the county attorney had theretofore forced appellant to take a slot machine out of his place of business. On the question of appellant’s desire to obtain immediate possession of his filling station, witnesses for the state testified, in substance, that appellant had made arrangements shortly prior to the homicide to lease his filling station to another man, and that it was his desire to place said party in immediate possession. It was further in evidence, from state’s witnesses, that appellant had expressed disgust at the fact that deceased would not sell intoxicating liquor at the station.

Hornsby, with a shotgun wound in his body, was found dead at his filling station shortly after 6 p. m. His watch, which had been struck by some shot, had stopped at 6:09 p. m. Appellant was seen at the filling station carrying a 12-gauge single-barrel shotgun a short time before the body of deceased was found. Two boys were at the filling station when appellant approached. After buying some soda water, they left appellant and deceased at the filling station, and rode up the highway on their bicycles. At the time they left the station there was no one there except appellant and deceased. After traveling up the road some distance these boys heard two shots, which they testified sounded like the reports of a shotgun. Immediately after the second shot was fired one of the boys, according to his testimony, looked back toward the filling station and saw appellant standing near the station with a shotgun in his-hand. He could not see deceased. Tracks led from the filling station to appellant’s house, where he was arrested less than an hour after the killing. A shotgun shell which fitted appellant’s gun was found near the body of deceased. Witnesses testified that it was a Super-X shell. The plunger had marked the shell below the, cap. Witnesses testified that in their opinion the shell had been recently fired. When'appellant was arrested a single-barrel shotgun and several shells were found in his house; ánd a Super-X shell, which had been fired, was found just outside appellant’s door. The shell found outside the door showed that the plunger had mdde a mark below the cap. The shells found in the house were not Super-X shells. The arresting officer, Howerton, testified to having made an experiment with appellant’s gun for the purpose of determining where the plunger struck the shell. Removing the powder and shot from one of the shells found in the house of appellant, the officer placed it in'appellant’s gun and pulled the trigger. The plunger struck the shell below the cap, at approximately the same place, as found on the shell outside the door and the one picked up near the -body of deceased. Two state’s witnesses testified that they had borrowed appellant’s gun shortly before the homicide, and that, upon returning it, they had given appellant several Super-X shells. Officer Howerton testified that appellant’s shoes fitted the tracks leading from the filling station to appellant’s home. There was a cartridge in appellant’s gun at the time he was arrested. It had been snapped three times, according to the testimony of Hower-ton. It appeared that each time the cartridge had been snapped it had been turned around in the gun. Following the tracks from the filling station to the house, Arresting Officer Howerton came to appellant’s residence. Upon being called, appellant came to the door, and, according to the testimony of the officer, the -following conversation ensued: “I said ‘Mr. Rippy I was making an investigation and I thought may be you might be able to give me some information. Did you happen to hear any shots fired down near the underpass this afternoon?’ ” According to the version of the officer, appellant answered in the negative, and then hesitated for a moment and-said: “That old man was a good old man. I was down there at two o’clock and haven’t been back since.” The officer said that appellant made the statement before he had advised him (appellant) that deceased had been killed. Several witnesses for the state testified that they passed the filling station after' 6 p. m. but did not see deceased. When the body of deceased was searched, some checks and a sum of money amounting to approximately $22 were found. There was nothing to indicate that he had been robbed.

Testifying in his own behalf, appellant denied the killing. It was his theory that deceased was killed by hijackers. In support of this theory, he placed on the stand a witness who testified that he had seen some rough looking men in an automobile at the filling station shortly before the death of deceased. He said that these parties appeared to be drinking, and that they had a shotgun in their car. Appellant and several of his witnesses testified to friendly relations existing between appellánt and deceased. Appellant said that he left the filling station shortly after meeting some boys there on bicycles. On his way home, according to his version, he shot at a rabbit and snapped his gun in an effort to shoot a second time. He denied that he owned any Super-X shells and declared that the shell found -by deceased’s body had not been in his gun. Appellant testified that some time before the homicide-he -had shot at a rabbit in the yard. Appellant ■ admitted that the shells'-found in the house belonged to him. A witness for appellant testified that he had talked to appellant about leasing his filling station and appellant had stated that it was all Tight with him for deceased to keep the filling station until August 1st, the date his lease expired. Appellant offered two or three witnesses who testified that they passed the filling station shortly after 6 o’clock and saw deceased there alone, and that he was alive. Several witnesses testified that appellant’s general reputation for being peaceable and law-abiding was good.

The court gave a charge covering the law of circumstantial evidence. It seems to be' appellant’s position that the testimony of his witnesses to the effect that they saw deceased alive after 6 o’clock destroyed the state’s case. Attention is called to the fact that witnesses for the state testified that they passed the filling station shortly after 6 o’clock and did not see deceased. Moreover, at the time the shots were fired one of the state’s witnesses, according to his version, looked back towards the filling station and saw appellant, with a shotgun in his hand. He could not see deceased. Without again detailing the facts and circumstances in evidence, the opinion is expressed that the circumstances are sufficient to meet the measure of the law. We quote the rule as announced in Branch’s Annotated Texas Penal Code, § 1875, as follows: “In order to warrant a conviction on circumstantial evidence each fact necessary to establish defendant’s guilt must be proven by the evidence to the satisfaction of the jury beyond a, reasonable doubt; all such facts must be consistent with each other and with the defendant’s guilt, and all the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the defendant committed the offense charged, and must exclude every other reasonable hypothesis except that of defendant’s guilt.” In support of the text many authorities are cited, among them being Baldez v. State, 37 Tex. Cr. R. 413, 35 S. W. 664, and Blount v. State (Tex. Cr. App.) 64 S. W. 1050.

Bill of exception No. 1 is concerned with the refusal of the trial court to change the venue. It was averred in the application that there existed in Denton county so great a prejudice that appellant could not obtain a fair and impartial trial. Appellant offered three witnesses who testified, in substance, that in their opinion appellant could not obtain a fair and impartial trial. Six witnesses for the state entertained an opinion to the contrary, and testified that they were well acquainted in the county and had come in contact with the citizenship since the commission of the offense. They said that they had not heard the case generally discussed, and were of the opinion that there was no prejudice against appellant. The testimony pro and con presented conflicting theories. It is the rule that if conflicting testimony as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory; it being his duty to weigh the evidence. A judgment denying the application will not -be disturbed on appeal unless it be made to appear that the trial court abused its discretion. McNeely v. State, 104 Tex. Cr. R. 263, 283 S. W. 522; Shelburne v. State, 111 Tex. Cr. R. 182, 11 S.W.(2d) 519; Davis v. State (Tex. Cr. App.) 28 S.W.(2d) 794. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.

Bills of exception Nos. 4, 8, and 9 relate to appellant’s objections to testimony of Arresting Officer Howerton touching the result of his search of appellant’s residence and premises, and, further, to his testimony relative to certain experiments he made with appellant’s shotgun and the cartridges found in his house and on his porch. The specific objection to this testimony was that the arrest of appellant was illegal in that the officer had no warrant; that a contemporaneous search was not warranted in view of the fact that the arrest was illegal; and that the officer had no right to take appellant away from the premises and thereafter return and make a search of the house and premises without having secured a search warrant. We deem it proper to- quote the court’s qualification appended to the bills, as follows: “The defendant testified that the shotgun found in his house by witness How-erton and identified by Howerton on the trial was his shotgun and that it was the same shotgun that he carried with him to deceased’s filling station shortly before the deceased met- his death and that he took it back to his house and that it was in his house and in the same room where the- witness Hower-ton testified he saw it when he first went into the house with the defendant when defendant wanted to put on his shoes. The defendant further testified that he owned and had 7 or 8 shotgun shells in said room of his house at the time the witness Howerton was with him, and that they were .the same gauge and size shells as those identified by the witness Howerton as having been found by him in said room of the defendant’s house. The defendant further testified that his shells which were in the room at the time Hower-ton was there were red, as he remembered. He testified that his shells were size twelves.. The- defendant further testified that a shell was in his shotgun at the''time the witness Howerton was in the house .with the defendant, and that it had been snapped twice, but that he did not think he had snapped it three times. The witness Howerton testified that he was not positive whether he found the shell that was on the porch at the time he was there in the house with defendant or whether he found it when he went to the' house the second time, but that it seemed to him that he found it on the second-time he was at the house. The witness Gale, in answer to questions propounded by the defendant, testified that he had seen the defendant many times carrying his shotgun around about his premises, hunting rabbits; and that rabbits were plentiful that spring before the homicide, and that it was not uncommon to see the defendant and all the other people out there carrying shotguns. Defendant’s wife, in answer to questions propounded by defendant, testified that the defendant hilled a rabbit near ‘the mulberry tree’ dose to the house some! two months before the homicide, and the defendant testified that he was a rabbit hunter and usually carried about two shells with him when he hunted.”

The state introduced in evidence the Super-X shell found by the witness Howerton near the body of deceased. Also the state introduced in evidence appellant’s gun, the cartridges found in his house, the empty shell found on appellant’s porch, and the cartridge found in the gun at the time the officer took it.. Touching the shells which were later introduced in evidence, the witness Hooper testified, without objection, as follows: ‘‘The shell which you have handed me - is the one that was picked up in front of the filling station and -near the body of Hr. Hornsby. There was quite a number of shotgun shells in the box turned over to you. The box of shells which you have handed me appear to be the same shells which were turned over to you. None of these shells in the box had been fired; but there was an empty shell— I believe this is the shell here (indicating). Hr. Howerton turned those shells over to me and I turned all of those shells over to you when I ceased to be county attorney.”

We deem it unnecessary to determine whether the search of appellant’s residence and premises was illegal. The officer’s testimony touching the obtaining of appellant’s gun and the cartridges found in the house, if erroneously received, would not warrant a reversal for the reason that appellant, testifying in his own behalf, revealed to the jury the same facts as were disclosed by the testimony of the officer. Bonilla v. State, 108 Tex. Cr. R. 603, 2 S.W.(2d) 248; HcLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Kelsey v. State, 109 Tex. Cr. R. 275, 4 S.W. (2d) 548; Kitchens v. State, 111 Tex. Cr. R. 45,10 S.W.(2d) 999; Poteet v. State, 112 Tex. Cr. R. 466, 17 S.W. (2d) 46. Appellant identified the gun as being his property, and testified that he had some cartridges in the house which looked like the cartridges received in evidence.

As to the officer’s testimony touching the experiment, it is observed that it was in evidence without objection that the mark on the shell found near deceased’s body was below the cap, and that that made by the officer with appellant’s gun on one of the cartridges found in appellant’s residence was below the cap. This was the question for solution: Had the cartridge found near the body of deceased been fired by appellant’s gun? The mark found on the cartridge in the yard added nothing to the proof that the plunger of appellant’s gun struck a cartridge at a particular place. The jury had before them the cartridge upon which the experiment had been made, as well as the cartridge found by the body of deceased. They saw where the plun-. ger had struck the cartridges. Appellant’s wife testified that when appellant’s gun was returned to him by state’s witnesses they told appellant that they had a high-powered shell in it; that the morning after the gun had been returned appellant shot that same shell at a rabbit in their yard., A state’s witness had testified that the shell in the gun at the time he returned it was a Super-X. Appellant testified that he fired his shotgun at a rabbit on his way home from the filling station. He did not say what he did with the shell after he fired, the gun. In the light of all of the circumstances, if the shell found on appellant’s porch ought not to have been received in evidence, the opinion is expressed that the error is not reversible. Particularly is this true in view of the fact that it is fairly inferable from the record that state’s witness Hooper identified the same shell as having been received by him from Officer Howerton. His testimony relative to the matter was not objected to by appellant. We quote from Texas Jurisprudence, vol. 4, p. 587, as follows: “It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to, as where the accused voluntarily gave testimony substantially the same as that erroneously received over objection. For example, a judgment will not be reversed because of admission of testimony of officers respecting facts ascertained upon an illegal search where the same facts were testified to by other witnesses or by the appellant himself.” Hany cases are cited in support of the text, among them being Diaz v. State, 112 Tex. Cr. R. 284,16 S.W.(2d) 240, and Hudson v. State, 107 Tex. Cr. R. 330, 296 S. W. 573.

Bill of exception No. 7 shows, in substance, that the arresting officer, Howerton, in following- tracks from the filling station to appellant’s residence, called appellant to the door and told him that he was making a little investigatioh and wanted to see if he could give him some information; that he asked appellant if he heard any shots down near the filling station; that appellant answered in the negative; that before he told appellant he had found deceased’s body, appellant said that deceased was a good old man and that he had been down there about 2 o’clock and not after that. Appellant objected to the testimony of the officer on the ground that he was in custody of the officer and that the provisions of article 727, O. O. P., had not been complied with. Appellant testified that on the occasion in question he went with the officer from his home to the filling station, and that the officer did not have charge of him at the time, but that he just accompanied the officer to the station. The officer testified that he had no intention of arresting appellant when he came to the door and did not feel that the tracks alone were sufficient to justify him in making the arrest He said he did not decide to arrest appellant until appellant made the statement to him relative to deceased being a good old man. Moreover, he testified that he did not indicate to appellant in any way that it was his purpose to place him under arrest, as it was only his entire purpose to get information. Defendant’s own testimony negatives the idea that he believed himself to be under arrest at the time he made the statement in question to the officer. The officer’s testimony affirmatively shows that appellant was not under arrest. It is true that the fact that the officer had not taken appellant into custody prior to his conversation with him would not be controlling in determining whether the receipt of the statement was inhibited by the statute. The impression made upon the accused is to be taken into account. Light-foot v. State, 117 Tex. Cr. R. 515, 35 S.W.(2d) 163. In Burton v. State, 102 Tex. Cr. R. 110, 277 S. W. 390, Judge Hawkins, speaking for the court, used language as follows: “Whatever be the intention of the officer, if he had not arrested accused and accused was not apprised of his intention to arrest him at the time the statements are made, they are admissible, if accused did not reasonably believe himself to be under arrest. It is not altogether the intention of the officer that governs the matter.”

A careful examination of appellant’s contentions leads us to the conclusion that reversible error is not presented..

The judgment is affirmed.

PEE CUBIAM.

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

On Motion for Eehearing.

MOEEOW, P. J.

The facts are set. forth with'accuracy ajid discussed in detail in the original opinion. The disposition of the contention of the appellant that there was error in the reception of evidence to the effect that there was a shell from a shotgun found upon the porch of the appellant’s dwelling after his arrest and the use of the evidence pertaining to it upon the trial is vigorously attacked in the motion for rehearing. Our view of the subject, as reflected in the original opinion, was that although the shell which was found upon the appellant’s porch may have been improperly received in evidence, the error committed was harmless. In making that announcement we, for the moment, lost sight of the fact that the evidence of the appellant’s guilt was wholly circumstantial. Ee-viewing the subject, it may be stated that there appears in the record no legal basis for the search of the appellant’s dwelling without a search warrant. The arrest of the appellant was not justified by any of the provisions authorizing an arrest without a warrant, such as are set forth in title 5, C. O. P. 1925. The testimony of the officer who arrested the appellant revealing the conditions that came to. his knowledge while in the presence of the appellant and in his dwelling, though obtained by an unauthorized arrest, was not available to the accused as ground for a reversal of the judgment for the reason that the officer’s declaration touching the matters just mentioned was verified by -the testimony of the appellant while testifying in his own behalf. The appellant gave no testimony showing the presence of the shotgun shell which, according to the arresting officer, was picked up on the porch of the appellant’s dwelling. The officer disclaimed the acquisition of any knowledge of the presence of the shotgun shell mentioned at the time of the appellant’s arrest. Touching the presence of the shotgun shell mentioned upon the porch of the appellant’s dwelling, the officer’s knowledge, according to his testimony, was acquired after he had taken the appellant away from his dwelling and placed him in jail. After having arrested the appellant and departed from his dwelling, the legality of the officer’s action in returning to the dwelling and making the additional search which resulted in the finding of the shotgun shell is deemed to have been without support in the law. This is true, first, for the reason that, as above stated, the action of the arresting offiqer was illegal ; and, second, for the reason that having completed the search, the return of the officer and the re-entry of the dwelling were violative of the provisions of the Constitution and the statute against unreasonable searches and seizures. See Stokes v. State, 117 Tex. Cr. R. 307, 35 S.W.(2d) 727, and cases therein cited; also, Davis v. State, 113 Tex. Cr. R. 421, 21 S.W.(2d) 509.

■ The introduction in evidence,o,f the officer’s testimony showing, they result of, the subsequent search, namely, the finding of the cartridge upon the porch of the appellant’s dwelling, was opposed by article 727a, O. C. P. of this state. Upon this review, it becomes necessary, therefore, to deal with the appellant’s complaint of the reception of the evidence of the finding of the shell and the use made thereof upon the trial in the light of the fact that the evidence against the appellant was wholly circumstantial. The presence of the shell upon the appellant’s porch is vouched for by the testimony of no witness save Howerton, the officer who made the arrest. Excluding his testimony, there was before the jury no evidence of the presence of the shell. Based upon Howerton’s evidence, however, the shell was used as a basis for experiment and for opinion testimony against the appellant, as indicated in the original opinion.

In the motion for rehearing attention is drawn to the fact that at the filling station two shots were fired: One entering the body of the deceased, the other being embedded in the door of the filling station.

.Prom the appellant’s supplemental argument on motion for rehearing, the following quotation is taken: “An empty shotgun shell was found near the body of the deceased. Certain witnesses testified to having heard two shots fired. Other testimony showed, that a charge of shot went into the filling station conducted by the deceased, and that another .charge of shot from a shotgun went into the body of the deceased and resulted in his death. The State could account for one of the shotgun shells. That one was found near the body of the deceased. There was testimony to show that at about the time of the homicide certain persons were at the deceased’s filling station with an automobile, and that there was a double-barreled shotgun in this car. This circumstance was sufficient to lead some minds to believe that the deceased met his death at the hands of these parties and not the appellant. In the prosecution’s attempt to draw its chain of circumstances about the appellant and to exclude every reasonable hypothesis except his guilt, it became important to show what had become of the second shotgun .shell that had been fired. This circumstance in the chain of evidence was supplied by the finding of the empty shotgun shell on the north porch of the appellant’s home with a mark made on the cap by the plunger or firing pin corresponding to the mark made on the cap by the plunger or firing pin-of the gun that had been used to fire the shell found near the deceased’s body. Thus the prosecution was given a basis of fact upon which it could argue that the appellant fired the first shot at the deceased and missed, the charge of shot entering the filling station; that he fired the second shot into the body of the deceased, which resulted in his death, and that he'did'not reload his gun (it being a single-barrel shotgun) until he reached his home; that the reloading took place on the north porch of the appellant’s home, and that he left the shell which was fired in the second shot on the north porch of his home, where it was found by the witness Howerton. That the finding of this shell and the similarity of the marks on it to those found on the shell found near the body of the deceased was not damaging to the appellant, and that it did not form an important link in the prosecution’s chain of circumstances, will not be contended by any who are familiar with the trial of homicide cases before juries. The meaning and effect of the testimony regarding the finding of this shell on the porch of the appellant’s home, and the similarity of the marks on it with those on the shell found near the body of the deceased, upon the appellant’s case was evidently adverse to the appellant, and how great an influence it had upon the jury in arriving at its verdict is impossible of statement. It was a cogent, material, incriminating fact that helped produce in the minds of the jury a reasonable and moral certainty that the appellant, and no other person, committed the offense charged against him.”

Being convinced that in receiving the testimony touching the shell discussed hereinabove and the treatment thereof revealed by the record, as pointed out in this opinion, there was committed error prejudicial to the accused and calculated to impair his right to a fair and legal trial, the motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed' and the cause remanded.

EATTIMORE, J.

(dissenting).

I regret not to be in accord with my associates in every case. In this case an officer without warrant was seeking to ferret out and bring to justice the slayer of a man who had been killed at a filling station on a public highway in the late afternoon. The scene of the killing and the arrest of appellant for the murder were some seven miles from the county seat, and unquestionably many miles from any magistrate before whom complaint could be filed after investigation, and by whom a warrant of arrest could have been issued. The officer referred to went from the county seat at once upon information, to the scene. He viewed the dead body, observed the character of the wounds, saw a shotgun shell near by on the ground, saw a hole' in a door which had been made by the passage of a charge from a shotgun. Examining the ground he discovered the fresh tracks of a horse leading away. These he followed south some three hundred yards until he came to a gate leading west into appellant’s place. Here he observed the fresh tracks of a man, and gave his attention to these. .They led to appellant’s dwelling near by. Observing no one as he came to the house, the officer called. Appellant came to the door. The officer told him he was making an investigation and wondered if appellant could give him any information. Appellant said no, and the officer asked if he had heard any shots fired around the filling station. To this appellant answered no. The house was located some three hundred and fifty yards from the filling station. After making the last answer set out, and at a time when no one 'had said anything about deceased being killed, the officer testified that appellant hesitated for a moment and then said: “That old man was a good old man. I was down there at two o’clock, and haven’t been hack since.” When he made this statement the officer arrested him, went inside the house, and while appellant was changing his shoes and garments the officer observed the things, testimony regarding which is set out in bills of exception 4, 8 and 9, discussed in our original opinion herein in which the case was affirmed. Other information may have been possessed by the officer pointing to appellant as the slayer. No particular effort to bring such out appears.

In the opinion on rehearing reversing the case it is stated that there appears in the record no legal basis for the search of appellant’s dwelling without a search warrant, which statement is based on the further announcement that the arrest of appellant was not justified by any provisions of our law, there referred to. I cannot bring myself into agreement with such proposition, and believe same carried to its logical sequence will greatly handicap peace officers in doing their duty, and the administration of justice in the trial of criminal eases. Article 215, O. O. P., makes it the duty of every peace officer to arrest without warrant when it is shown by satisfactory proof, upon representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant. Every law must be given reasonable interpretation. If the officer in question, as a result of personal observation or ascertainment, acquires proof satisfactory that a felony has been committed, and that the offender is in his presence, it would appear to be his duty to arrest him. If confronted with choice whether he will either arrest and detain the offender without warrant, or leave him unarrested and not detained and go miles to where he can secure a warrant, such officer should have, and in the opinion of the writer has, the right' to arrest without warrant, under the command of the statute referred to.

It would be idle to say that because the offender be not in flight at the moment of proof to the satisfaction of the officer, the latter cannot say such offender is about to escape. Nor would assurance from such of-' fender by word or act, under such circumstances, that he would make no effort to escape, justify the officer in leaving him un-arrested while the officer travels to some distant magistrate or to the county seat for a warrant. To so lay down such rule would compel an officer, observant thereof, though satisfied from what he has seen and heard that one then in his presence has committed murder, robbery, or other felony, to forego the arrest and detention, because forsooth the offender be on his own premises, or assures the officer in some manner that he will not flee while a warrant is being procured. This is not the law, and in an age of increasing crime and ease of escape, it is hoped it will never become such by pronouncement of this court. The statute referred to, analyzed, clearly says that upon proof satisfactory to the peace officer of two things, viz., (1) that a felony has been committed, (2) that the 'offender is about- to escape so as that there is no time to procure a warrant, he must arrest without warrant. Article 37, 0. O. P. says: “He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before tie proper magistrate or court.” Peace officers are not lawyers or judges, but men charged with the conservation of the peace, and in most cases the protection of society, and the exercise of their discretion in matters such as are here set forth should not be overturned or revised except possibly in cases clearly evidencing some abuse, which latter is wholly absent in this case. The record shows that in this connection, and as a predicate to. the admission of this testimony, the jury were twice retired by the trial court while he heard evidence to enable him to determine whether the. officer’s testimony was admissible, and what he then heard is not here set out.

The officer knew that a felony had been committed, that is, a'man had been killed by a shot from a shotgun; that appellant was ■ the nearest dweller; that -fresh tracks led to appellant’s house; that the crime was committed late in the afternoon; that appellant said he had not been down to the scene since 2 o’clock, a statement which the officer may have known to be untrue; that he had heard no shots; that without information that a killing had taken place, appellant made statements clearly indicative of his knowledge that the old man who was a good old man, was no longer in the land of the living. What was the officer to do? Here was a -man of whose guilt the officer plainly believed himself to have satisfactory proof. If he had gone without arresting in such case and the accused •had gotten in a car and traversed the few ■miles over the highway to the border of our sister state of Oklahoma, the officer would likely have had serious difficulty in escaping just criticism, if not more serious consequences. 'Authorities are collated in the notes of Mr. Vernon’s Annotated O. O. P. under article 37 and article 215 thereof. In Rutherford v. State, 104 Tex. Cr. R. 127, 283 S. W. 512, 515, speaking through Judge Morrow, this court said: “It is true that the law does not demand ¡that the officer possess superhuman foresight, nor that he do more than what comports with reason, taking into account the emergency of the occasion.” The rule is then laid down that the demand of the law is that its restrictions be in good faith observed, and 'be not willfully ignored or captiously disregarded. In the well-considered case of Hepworth v. State, 111 Tex. Cr. R. 300, 307, 12 S.W.(2d) 1018, 1021, opinion by the same judge, and upon construction of a statute and a state of facts not so demanding as here, it is said: “The facts in evidence were apparently in possession of the officer at the time he made the arrest, and justified it under either article 215 or article 325, supra.” In said case the officer was only in possession of information that a theft had been committed, and had a description of the supposed thief, who was found on a public street of a city within whose limits a magistrate could have been reached in a few moments, but the officer’s arrest of the accused was held legal in such case. I again say that I cannot agree to the proposition that the accused was illegally arrested in this ease.

Nor can I assent to the engrafting on the law of this state by judicial construction further extensions of the doctrine of the rejection of evidence material to the ends of justice, which would be held admissible but for such extended construction of the so-called search and seizure law under which men who have committed burglaries and thefts and murders, and probably other offenses, have taken and will take 'shelter. I refer to the proposition that if the officer could give testimony legally as to what he saw and observed coincident with the arrest of appellant, that what he there saw and found a few moments later could not be legally received in evidence. As said by Judge Morrow in Stokes v. State, 117 Tex. Cr. R. 307, 35 S.W.(2d) 727: “No precedents have been discovered indicating that the right to search the premises in which the crime was committed would cease with the arrest. There are cases holding that after the arrest of one accused of crime and his incarceration, a search of the premises without warrant would be illegal. Touching the soundness of which holding we express no opinion.” I undertake to say that in no case which can be found has it ever been held that if the arrest be legal and the accompanying search be also legal, or there be an otherwise legal search of premises, ■ that a search of the same premises, by the same officers a few moments after accompanying the accused a distance of a few hundred yards, or to the nearest ' place of confinement and there turning him over to others, followed- by an immediate, return to the same premises and a further search thereof, would be illegal. The right ito search the place where the accused is legally arrested being conceded, the right to make thorough search would seem also necessarily admitted. What search could be made by an officer who has in his custody the accused? What sane or reasonable ground of objection could be interposed to the return of the officer after taking the accused out to the street, or a short distance away to some other officer or place of confinement, and then returning to the place originally searched, to complete such search? Such is not the doctrine of the Stokes Case, supra, nor the Davis Case, 113 Tex. Cr. R. 421, 21 S.W.(2d) 509, 511, nor any other case in our State, or elsewhere, as far as I know. To so hold would lead to the absurdity that though legally in, and legally entitled to search, if the officer step outside the door, his right has vanished, and when he returns he is a trespasser or violator of the law. The people of this state suffer from unpunished crime, some of which unfortunate state of affairs flows from necessary application of the statute rejecting evidence when he who is prepared to give same has wittingly or otherwise overstepped the supposed right of some criminal in his effort to ferret out crime or overtake the offender. In such case this court has no other course to follow except to give effect to the law as written in the statute books, but to agree to .the rule under discussion, now for the first time sought to be given application in this state, seems to the writer to be going too far. The officer in this case, after arresting appellant and observing what was in the room, while appellant put on his garments, accompanied appellant to the filling-station, turned him over to another officer, and returned to the house, as above stated, a distance of some ¡three hundred and fifty yards, at which time he then discovered on the .porch of the house another shotgun shell, which was offered in evidence and made the subject of comparison by experiments, and now, for the first time, held inadmissible in evidence. The officer was not clear as to whether he discovered this last shell upon the occasion of appellant’s arrest, or when he returned after taking appellant to the filling station; but I am taking the position that, it would make no difference at all in law as to the admissibility of the testimony, whether he found it at the time of and immediately coincident with the arrest of appellant, or whether he found it on the same premises a few moments later when he returned and com.pleted his search.

I am further of the opinion that the bills of exception presenting complaints- of these matters are in such condition as that if the rules applied in numerous cases be applied here, the complaints of the reception, of the evidence would be unavailing.- These bills of exception group things said 'by the witnesses, set out some times at great length, and many of which statements are admissible, and then present objections in solido to the whole of the bills. As against the availability of bills of exception in this form, I call attention to what we said in Rogers v. State, 102 Tex. Cr. R, 444, 278 S. W. 446; Hock v. State, 97 Tex. Cr. R. 354, 261 S. W. 572; Smith v. State, 92 Tex. Cr. R. 300, 244 S. W. 138; Spears .v. State, 91 Tex. Cr. R. 51, 237 S. W. 270; Gibson v. State, 88 Tex. Cr. R. 281, 225 S. W. 538; Surginer v. State, 86 Tex. Cr. R. 438, 217 S. W. 145; and numerous authorities which might he cited.

I recognize the futility of a dissenting opinion, but feel that I cannot, in justice to my own views in regard to the matters above discussed, hold otherwise; and I therefore respectfully dissent.

On State’s Motion for Rehearing.

HAWKINS, J.

In our opinion dated June 24, 1932, granting appellant’s motion for rehearing, we said the arresting officer had taken appellant away “from his dwelling and placed him in jail.” In the state’s motion for rehearing the inaccuracy of that statement was called to our attention. We should have said that appellant had been taken away “from his dwelling and plaeed in custody of another officer.” The original opinion has been corrected in- accordance with the facts.

In the state’s motion for rehearing it is strenuously urged that the arrest of appellant was legal. Article 215, O. G. P., provides “where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to esoape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.” It is not necessary to discuss whether circumstances discovered by a peace officer himself, and which lead him to believe that a party has committed a felony, may be substituted for the provisions of the statute which says that the information must reach the officer upon representations of a credible person. That part of the statute which says that “the offender is about to escape” is indispensable. That such condition did not exist in the present case seems to be without dispute in fact. At the time the officer went to appellant’s house, appellant was partially undressed and in bed. In Cortez v. State, 44 Tex. Cr. R. 169, 69 S. W. 536, 539, it was said that it was not shown that Cortez was about to escape, but: “ * * * On the contrary, the evidence is to the effect that he was at his home in the county, engaged in making a crop; and that, after the sheriff learned of his whereabouts on the morning, of the homicide, he was then within six miles of the justice of the peace, and could have obtained a warrant had he so desired.” We think nothing is to be gained by a further discussion of whether evidence of the empty shell being found on appellant’s porch was harmful. The matter was given careful consideration when appellant’s .motion for rehearing was before us. Our minds have not been changed in regard to the question.

The state’s motion for rehearing is overruled.

Judge LATTIMORE adheres to the views expressed in his dissenting opinion at the time appellant’s motion for rehearing was granted.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    STRAIN v. STATE.
    No. 15645.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    E. J. Conn, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,- for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: LATTIMORE, J.

text:
    WILLIAMS v. STATE.
    No. 15491.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Paul Petty, of Ballinger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

This appeal is taken from an order of the district court setting aside a prior order suspending sentence against this appellant and the entry of judgment final and sentencing of appellant to the penitentiary for a term of five years.

From bill of exception No. 1 we learn that appellant was tried in this case and given a five-year sentence, which, upon the recommendation of the jury, was suspended during the good behavior of appellant. Also that, after said sentence had been so suspended, but before the expiration of the term of appellant’s punishment fixed in said' case, this appellant was again convicted of burglary in February, 1932, and given a. two-year sentence by a jury in the last-mentioned case. From this judgment and sentencé appellant gave notice of appeal in due form, and brought the case upon appeal to this court. Thereafter, and during the month of May, 1932, and before the appeal from appellant’s conviction in February, 1932, had been passed upon or determined by the Court of Criminal Appeals, the trial court, upon due notice to appellant, revoked the suspension of the five-year suspended sentence above referred to, and, over the objection and exception of appellant, sentenced appellant to serve a term of five years in the penitentiary of Texas. Complaining that the judgment and sentence passed upon him in February, 1932, was not such final conviction as would authorize or warrant the trial court to revoke the prior suspension of the sentence in the case at bar, appellant has duly appealed, and now brings his case before us for review, and asks that the judgment revoking his prior sentence, which was. suspended, be set aside and the case reversed. The contention of appellant must be sustained. Calloway v. State, 91 Tex Cr. R. 502, 240 S. W. 553; Ex parte Lawson, 76 Tex. Cr. R. 419, 175 S. W. 698; article 779, C. C. P. 1925.

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


author: MORROW, P. J.

text:
    TOLSON v. STATE.
    No. 15644.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    B. L. Palmer, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the' penitentiary for a period of ninety-nine years.

There are no bills of exception bringing forward for review the rulings of the trial court.

A motion to quash the venire was made and overruled. From the averments, it appears that the facts were controverted, but the evidence heard upon the motion is not brought forward. The action of the court in overruling the motion, in the state of the record, is binding upon this court.

The sentence is regular in fixing the term of confinement in the penitentiary at not less than two, nor more than ninety-nine, years.

The motion for new trial presents, by averments, some questions of fact, but, in the absence of the facts, if any, given to the court in the hearing of the motion, the ruling of the trial court is conclusive.

The judgment is affirmed.


author: CALHOUN, J.

text:
    RICE v. STATE.
    No. 15219.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    - -Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, robbery; the punishment, seven years in the penitentiary.

This case grows out of the same transaction and practically the same facts as were developed in the case of Willie Rice v. State, 51 S.W.(2d) 364, recently decided by this court. In the Willie Rice Case the offense there charged was a conspiracy to commit the crime of robbery, while in this case the appellant was convicted as a principal to the robbery. Both matters grew out of the robbery of the Lohn State Bank on January 6, 1930. It was charged in the first count in the indictment in this case that the “appellant, Charlie Rice, Chick McKay, and Ollice Woods acting together did in and upon W. F. Roberts, Jr., make an assault by using and exhibiting firearms, and did thereby against the will of the said Roberts, Jr., take from the person and possession of the said Roberts certain money.” The second count in the indictment charged the same parties with unlawfully conspiring, combining, confederating, and entering into a positive agreement with each other to commit the offense of robbery.

Only the guilt or innocence of the appellant under the first count of the indictment was submitted to the jury.

The record further shows that the case has been dismissed as to each of the parties charged' in said indictment except the appellant, Charlie Rice. The evidence in this case comprises some 120 pages of typewritten testimony, which makes it impractical to set out the testimony except as to the most material facts.

At about 7:30 on the morning of January 6, 1930, Mr. Roberts, cashier of the Lohn State Bank, went to the bank preparatory to opening said- bank for the day. As he unlocked the front door and entered he was confronted by a man with a drawn .pistol, who required him to unlock the vault and deliver to. him. approximately $1,400 of the bank’s money. The money so taken consisted of bills of different denominations and silver in nickels, dimes, quarters, and half-dollars. Said Roberts testified that he. saw the form of another man come from the back on into the lobby of the bank, but that he did not see the other' man well enough to identify him. After the man had received the money, the witness testified that lie heard two or three men talking at the rear of the bank, but he could not say how many.

Another witness testified that -he lived about 50 yards west of the Lohn Bank, and about 8 o’clock on the morning of the alleged robbery he saw two men, one of whom was dressed in a gray overcoat and who was a pretty good .sized man, come out of the back door of the bank and get into a model A Ford roadster parked out there and leave immediately thereafter going in a northeastern direction.

Several witnesses testified for the state that they noticed a Ford roadster going up the Santa Anna road, which road led in the direction of what was known as the Jennings oil lease in Coleman county. All of said witnesses testified that the car was going at a rapid rate of speed and they could not recognize who was in the car or the number of persons in the car because the curtains of said car were up.

There was only one witness for the state who testified to his opinion as to who was in the car, and he testified that he saw a Ford roadster passing about 20 or 30 feet from him, but the curtains were up, the lights were burning, and it was going about 35 or 40 miles an hour; that he saw three people in the car, and he was pretty sure that one of them was Charlie Rice, the appellant, and he believed he was the man who was driving the car. He further testified that he could not swear positively that the appellant was one of the men in the car.

Another witness for the state testified that he was near Willie Rice’s residence two days before the date of the alleged robbery and he saw a car standing near Willie Rice’s residence and saw a couple of men changing the number plates, and he thought it was Joe Rice’s, the brother of appellant, car, which was a Ford roadster. He further testified that he did not know positively who the two men were who were changing the number plates because he was at a distance of about 75 yards from the car. He further testified, over the objection of appellant, that in his opinion the two men were Charlie Rice, the appellant, and his brother, Joe Rice.

It was also in evidence that on the morning of the alleged robbery a Ford roadster with the curtains up was seen coming towards the house of appellant’s brother, Willie Rice, but the witnesses testifying could not tell whether there was more than one man in the car. The car was going towards a vacant house about half a mile from the house of Willie Rice. The testimony was to the effect that the lights on said car were burning at the time, and there was further testimony to show on behalf of the state that a few minutes after the car passed the house of Willie Rice, the said Willie Rice and his brother, Joe Rice, with another man were seen to leave Willie Rice’s house and go towards the vacant house; but the evidence showed-that neither one of the three men was the appellant, Charlie Rice. It is also shown by. thé evidence that the Ford roadster testified about wa's later seen parked in the vicinity of the vacant house, and the lights were still burning. The vacant house had been formerly occupied by Joe Rice, appellant’s brother. Several hours after the robbery, officers went to said vacant house and upon approaching the house the officers saw five or six men fleeing from the .vicinity thereof. A gun battle ensued in which Ollice Woods was killed. His body was aft-erwards identified by the witness Roberts as the person who perpetrated- the, actual robbery. The officers found some currency in the vacant house, and this currency was identified by the witness Roberts by reason of some clips that had been placed on the currency by him. The money was not marked otherwise.

The only evidence offered by the state as to the appellant being one of the five or six men seen to run from the vicinity of the vacant house was the testimony of one Blanton, who was with P. L. Dyches, deputy sheriff, at the time of the shooting. Blanton testified that he knew Willie and Joe Rice.and also the appellant, Charlie ,Rice. He testified that when they got within one or two hundred yards of the vacant house that six men ran out of it and he and the deputy sheriff took after them; that the men were running through the woods, and while they were following them one of the parties' looked back and he believed to the best of his knowledge that it was Charlie Rice, the appellant.

Testifying in his own behalf, appellant denied any connection with the offense. The evidence showed that the Ford automobile found at the vacant house belonged to appellant’s brother, Joe Rice. Appellant had no interest in it. He testified that he left the home of his brother, Willie Rice, on the Sunday morning before the alleged robbery on Monday morning, and went from his brother’s house to Brownwood, Tex.,’ and on the morning of January 6,1930, he was in Brown-wood and not at Lohn. He denied that he was one of the persons who had changed any plates on his brother’s car. He testified that the last time he had seen Ollice Woods was on Sunday morning when he and the said Woods went to Brownwood in his brother’s automobile, and that the said Woods left him in Brownwood and drove his brother Joe Rice’s car, promising to take it home; that he had only known the said Woods a few months and didn’t know anything about him other than he had worked with him on a pipe line; that he stayed in Brownwood until Monday morning, when he started to California hitch-hiking; that he was going to California because his father and mother-had lived there for a long time and he had been preparing to go for some time; that while he was walking along the road he was given a ride by a woman; that she asked him to drive, and he was driving said ear when they got to Buse’s filling station; and that he bought the gas and rode with the lady to Abilene.

The appellant introduced several witnesses who testified that they saw a Ford roadster on the morning of the robbery about the time of morning and going in the same direction as that testified to by the state’s witnesses. They testified positively that they saw who was in the Ford roadster and appellant was not one of the three persons in said car.

The witness J. H. Buse testified that he lived six miles south of Bangs, Tex., in Brown county, Tex., and he saw the appellant on the morning of January 6, 1930, at his place of business about six miles south of Bangs; that at that time he was traveling in a big ear and he bought some gas from him; that it was early in the morning around sunup. There was a lady with appellant and there was no other man in the car, and the car had an Oklahoma license on it; that he knew it was on Monday, January 6, 1930, because it was on that day that he heard about the bank being robbed; that after he had put the gas in the car the appellant drove off with the lady, going north.

The evidence shows that the appellant was afterwards arrested in California and came back with the officers without any objection; that he did not resist extradition or demand any extradition papers at all; and that he signed a waiver.

Other than the facts stated and the further fact that the appellant was associated with his brothers and Woods prior to the robbery, we have nothing in the testimony tending to show that appellant was connected as a principal with the commission of the offense. The state in this case relied for conviction alone on circumstantial evidence, and the trial court so charged the jury. Appellant contends that the evidence was insufficient to support a conviction. A conviction on circumstantial evidence cannot be sustained unless the circumstances proven exclude every other reasonable hypothesis except that of the guilt of the accused.- Proof that only amounts to strong suspicion or mere probability is not sufficient to support a conviction. Branch’s Ann. P. C. § 1877; Hernandez v. State (Tex. Cr. App.) 72 S. W. 840. There must be evidence overcoming the presumption of innocence and excluding every other reasonable hypothesis except the guilt of defendant. Branch’s Ann. P. C. § 1877; Hernandez v. State, supra; Pogue v. State, 12 Tex. App. 283; Hogan v. State, 13 Tex. App. 319; Clifton v. State, 39 Tex. Cr. R. 619, 47 S. W. 642. This, we think, the evidence fails to do.

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: WALKER, C. J.

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. HARRIS.
    No. 2274.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 2, 1932.
    Rehearing Denied Nov. 2, 1932.

      Barnes & Barnes, of Beaumont, for appellant.
    F.- S. Jones and W. J. Brown, both of Beaumont, for appellee.
   WALKER, C. J.

This suit was filed by appellee, Johnnie Harris, against appellant, Indemnity Insurance Company of North America, in the district court of Jefferson county, Fifty-Eighth judicial district, as an appeal from an adverse award of the Industrial Accident Board. By the allegations of his petition appellee was the employee, the Gulf Refining Company the employer, and appellant the insurer ; on or about the 13th day of September, 1930, while in the course of his employment with Gulf Refining Company, he suffered serious accidental injuries resulting in his total permanent incapacity; the necessary facts to give jurisdiction to the Industrial Accident Board and to the district court were duly alleged. The prayer was for compensation at the rate of $15.45 per week for 401 weeks from the 14th day of September, 1930, with a lump-sum settlement, or such other relief both as to average weekly wage and duration of disability as might find reasonable support in the facts. The answer of appellant was by general and special demurrers, plea of not guilty, general denial, etc. The jury found that appellee, on September 13, 1930, while in the course of his employment with the Gulf Refining Company, suffered an accidental injury which resulted in his total incapacity for • the period of 285 weeks; that the injury thus received by him “was the producing cause” of his incapacity; and that defendant and Gulf Refining Company had actual notice of appellee’s injury “within thirty days after the happening thereof.” The jury also fixed appellee’s average weekly wage and found that he was entitled to -a lump-sum settlement. On the verdict of the jury judgment was entered in appellee’s favor for 285 weeks on the basis of an average weekly wage of $12.738.

Opinion.

There is no merit in the contention that appellee failed to raise the issue “that the work at which he was engaged at the time of the alleged injury constituted employment in the usual course of trade, business or occupation of his employer, the Gulf Refining Company.” The evidence showed that appellee had been employed by the Gulf Refining Company in its Port Arthur refining plant for about three years. From August 8, 1929, until August, 1930, he was employed as a common laborer “rolling a wheel barrow” carrying cement, gravel, and sand from place to place in the refinery. On August 30th he was transferred from that job to “coke rolling” at No. 17 Boiler House. Appellee ■described this work as follows:.

“Q. Describe to the jury what you mean by a coke roller; just tell the jury what you did with reference to rolling coke? A. It was an iron cart, iron buggy, with two wheels on it, and you had to fill it up with coke; you had to go out to the boxes and get it and then push it back to the boiler house and put it in the boiler with a scoop.
“Q. Firing a boiler with coke? A. Yes sir.
“Q. You say you had to go out to the boxes; what do you mean by boxes? A. It was just big loading boxes made and they run it in there and when it dried, that was where they keep it at. .
“Q. What did you do with reference to the boxes? A. When they put it in there, it come by pipe and it was nothing but oil, oil and coke, and they put it in them boxes and they would let the oil drain out, of course, and then you could load it in the buggy and carry it to the boiler.”

He continued on this job until the date of his injury on the 13th of September, 1930. His injuries were received in the following manner, as testified to by him:

“Q. Now, the day that you say you were pulling a coke buggy, I’ll ask you to state what happened to you; I’ll ask you to state were you doing this work — who were you doing it for? A. The Gulf Refining Co.
“Q. All right. Now, when you were doing this work for the Gulf Refining Co. did anything happen to you? A. I got injured.
“Q. You got injured? A. Yes sir.
“Q. All right; what were you doing when you got injured? A. I was rolling coke.
“Q. What were you doing with reference to this buggy? A. I was in the coke box, and I just got the buggy loaded with coke; and I got my buggy loaded and started out and the heel of my shoe, the wooden bottom of the shoe was worn slick, and when I got my buggy loaded, I put my left foot in front and my left foot slipped .out from under me.
“Q. Did you fall? A. Yes sir.
“Q. Where did you strike yourself? A. Right on this hip here (indicating).”

This statement shows that appellee, at the time he was injured, was not only engaged “in or about the furtherance of the employer’s affairs or business,” but that “his injury was of such kind and character as had to do with and originated in the employer’s work, trade, business, or profession” within the strict letter of the rule announced by the Commission of Appeals in Ætna Life Ins. Co. v. Burnett, 283 S. W. 783, 784. The employer was operating its boiler house at No. 17, and for more than a year appellee had been “rolling coke” to stoke these boilers. On these facts it cannot be questioned that he was engaged “in the usual course of his employer’s business” at the time of his injury, as that term was defined by the Commission of Appeals in Oilmen’s Reciprocal Ass’n v. Gilleland, 291 S. W. 197.

Before the Industrial Accident Board appellee based his claim on “an injury to my spine and leg injury.” By his petition herein, in addition to the injury claimed before the board, he also claimed “an injury to the sacroiliac joint” On the ground that the Industrial Accident Board was not called upon to adjudicate an injury to the “sacroiliac joint,” appellant insists that appellee was not entitled to plead nor offer evidence to the jury of this additional injury. This contention is overruled. Appellee’s injury belonged to that class of compensable injuries where the amount of compensation is based upon incapacity to work or labor resulting therefrom, and did not fall within the class of specific injuries where the amount of compensation is based upon the nature of the injury. For the class of injuries of the nature involved in this case a general description such as made by appellee in his claim before the Industrial Accident Board is sufficient, and upon appeal to the courts may be enlarged to include all injuries proximately resulting from the accident complained of. Texas Employers’ Ins. Co. v. Knouff (Tex. Civ. App.) 271 S. W. 633, and authorities therein cited; Texas Indemnity Ins. Co. v. Wilson (Tex. Civ. App.) 281 S. W. 289; Texas Employers’ Ins. Ass’n v. Perry (Tex. Civ. App.) 35 S.W.(2d) 1087. On authority of Oilmen’s Reciprocal Ass’n v. Gilleland, supra, and similar cases, we agree with appellant that the phrase “in the usual course of trade,” etc., as used by the court in its charge, has a technical meaning in our jurisprudence not' commonly understood by laymen. In the case cited the court spent much work in defining this phrase and many other authorities might be cited discussing its meaning. But in the case before us the court did not commit reversible error in refusing to submit a definition of this phrase as a part of the charge to the jury. This is so because, under all the evidence, without a scintilla of evidence to tlie contrary, it‘was shown that appellee was injured, if injured at all, in the usual course of his employer’s business.

We overrule the contention that the overwhelming preponderance of the evidence was contrary to the finding that appellee had suffered total incapacity for a period of 285 weeks. This issue was raised by appellee’s own testimony, by the testimony of Dr. Bailey, of appellee’s wife, and of one or more other witnesses who testified as to appellee’s physical condition before his injury, that it was good, and that since his injury he had not been able to work.

Appellant complains that the following issue was duplicitous : “Do you find that such injury, if any, of plaintiff was sustained in the course of his employment as an employee of the Gulf Refining Company?” This point we do not determine. Every element of this question appeared as a matter of law in favor of appellee and, therefore, appellant could not have been injured by its duplicity.

On cross-examination we think it was error for the court to exclude from the jury appellee’s evidence to the effect that in addition to his demand for compensation in this case, upon his claim of total permanent incapacity, he also held accident insurance policies for the amount of $100 per month, payable to him only upon the contention that he had suffered, and was able to support his contention of, total permanent incapacity as a proximate result of the injuries sued for herein. Whether or not appellee was suffering total incapacity, and the extent of his incapacity, and whether or not he had entirely recovered, were sharply contested issues. Appel-lee’s claim of total incapacity rested, to a great extent, upon subjective symptoms that had no support except in his own testimony. The fact that he had substantial claims against two accident insurance companies, resting upon his claim of total incapacity as asserted in this ease, went to his credibility as a witness and was a proper matter for consideration by the jury.

We think the following argument by counsel for appellee constitutes reversible error :

(a) “When I think of the conditions under which this Compensation Law was passed, and what it was passed to remedy, it is really amusing to watch one of these insurance lawyers and the artful and craftiness that they will resort to to try to hoodwink twelve honest men.”

(b) “What was the purpose of the law? To try to help compensate this man without bringing him here to the courthouse to fight for his rights, and make this foreign insurance company pay him what he justly deserves. And I hope some day I shall see the flag raised in Texas, by some attorney general that will say to these foreign insurance companies — when a man comes into this court and has to fight, as some have to fight for the things that we intended that he should not have to fight for, that you must do your business beyond the state line.”

(c) “Now you take the man that pays the bills; you take the contractor, for instance; he pays a premium for what? He pays a premium to protect him and to protect the man that is working in the sweat of his brow to earn his daily bread, for the insurance company to assume the responsibility, and then what do they do? Misfortune comes, a man is hurt. They go and hire them a high-powered lawyer like Mr. Barnes; and the first thing they do, they sent him up to the insurance company’s doctor.”

(d) “Gentlemen, who knows by whom that stool pigeon was sent and for what motive? It may be to seal Dr. Bailey’s lips in testifying for injured individuals.”

(e) “Did they ever bring a man in here with all their power, with all their resources, have they ever produced a man that lived within a block or seven blocks, or come in contact with Johnnie Harris in Port Arthur to say that Johnnie Harris isn’t injured and maimed, a man who associates with him every day? Not a word. They depend on their insurance company doctors, because they know they can’t get that proof.”

(a) The criticism of appellant’s lawyer, in the first part of this argument, was unwarranted and was without support in the record. There was nothing in the record to show that appellant’s lawyer had been'guilty of artful and crafty practice “and had tried to hoodwink twelve honest men.” (b) That appellant was a foreign insurance company had nothing to do with the merits of the case, and it' was improper argument to suggest to the jury that a day might come when the Attorney General would fight to exclude foreign insurance companies and to drive them beyond the state lin'es, merely because appellant was seeking to have its rights orderly adjudicated by the courts, (c) It was also improper argument to suggest that “the contractor.” pays the insurance premiums and, having given his business to an insurance company, that the insurance company did not have the right to employ a lawyer to represent it. (d) We find nothing in the record suggesting that any one had sent a stool pigeon to Dr. Bailey to seal his lips and to prevent him from testifying “for injured individuals.” (e) Argument under paragraph (2) was erroneous within many of our decisions. It was improper to call the jury’s attention to the fact that appellant “with all their resources” had not been able to produce a witness that lived within a block of appellee to say that he had not been injured. Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Texas & St. Louis R. Co. v. Jarrell, 60 Tex. 267; Western Ind. Co. v. MacKechnie (Tex. Civ. App.) 214 S. W. 456; Texas Ind. Ins. Co. v. Carson (Tex. Civ. App.) 21 S.W.(2d) 691; Vogt v. Guidry (Tex. Civ. App.) 229 S. W. 656; Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435; Home Life & Accident Co. v. Jordan (Tex. Civ. App.) 231 S. W. 802, Points 5 and 6; Nicholson v. Nicholson (Tex. Civ. App.) 22 S.W.(2d) 514, Points 5, 6 and 7; Commercial Standard Ins. Co. v. McGee (Tex. Civ. App.) 40 S.W.(2d) 1105, 1110, Point 11; Orchin v. Fort Worth Poultry & Egg Co. (Tex. Civ. App.) 43 S.W.(2d) 308, Points 8 and 9; Dallas Railway & Terminal Co. v. Smith (Tex. Civ. App.) 42 S.W.(2d) 794, Points 2 and 3; Robbins v. Wynne (Tex. Com. App.) 44 S. W.(2d) 946, Points 1 and 2: and Panhandle & S.F. Ry. Co. v. Sedberry (Tex. Civ. App.) 46 S. W.(2d) 719, Point 6.

For the reasons stated the judgment of the lower court is reversed, and the cause remanded for a new trial.


author: HALL, C. J.

text:
    JONES et ux. v. WOMACK-HENNING & ROLLINS, Inc.
    No. 3870.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    Rehearing Denied Nov. 2, 1932.
    O. D. Russell and Williams & Day, all of Plainview, for appellants.
    Pinkney Grissom and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   HALL, C. J.

The appellants Jones and wife filed this suit in the district court of Hale county against the appellee alleging that defendant is a corporation duly incorporated' under the laws of the state of Texas, with its principal office at Sherman, Tex., and with a local agent and representative residing in Hale county, to wit, Guy Rollins.

The substance of the cause of action, as stated, is that Womack-Henning & Rollins, Inc., was engaged in constructing a highway from Plainview west to the west line of Hale county; that T. B. Jeter, operating a sand or gravel truck for the defendant, while returning from the railroad station to the cement mixer with a load of gravel, in Hale county, negligently drove the truck which collided with the car in which plaintiff Mrs. Stella Jones was riding, seriously and permanently injuring her. The Travelers’ Indemnity Company, alleged to be a corporation, .was joined as defendant, and the prayer is for $40,000 damages.

The case was removed to the federal court, where plaintiffs dismissed their action against the Travelers’ Indemnity Company without prejudice; whereupon the case was remanded to the district court of Hale county.

On December 30, 1931, appellee filed its plea of privilege to be sued in Grayson county, Tex. Plaintiffs filed their controverting affidavit, and on the 10th day of February, 1932, the court heard the plea and controverting affidavit and the evidence in support thereof, and sustained the plea, entering an order removing the case to the district court of Grayson county.

Plaintiffs’ controverting affidavit contained their original petition. No demurrers or exceptions were urged to’the plea or to the affidavit thereto.

It may be admitted that both the plea of privilege and the affidavit appended thereto are defective and insufficient, and we strongly incline to the opinion that they are, but it is not necessary to discuss them.

. Having failed to demur to the pleading and affidavit or file any exception thereto, the de-fents, if any, have been waived.

A judgment which is wholly without pleadings to sustain it is fundamentally erroneous, and may be set aside by the appellate court and the cause remanded for another trial. Short v. Stephens (Tex. Civ. App.) 44 S.W.(2d) 466, 467; Browne Grain Co. v. F. & M. National Bank (Tex. Civ. App.) 173 S. W. 942; Sorenson v. City National Bank (Tex. Civ. App.) 273 S. W. 638.

But, where an effort has been made by the pleader to allege a cause of action or defense, and the pleading is defective, or would be held insufficient as against a general demurrer, and no such demurrer is urged, the defect is waived, and every presumption will be indulged in favor of its sufficiency when challenged in this court.

In Southern Casualty Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533, it is said: “General demurrer was pleaded, but it was not presented and given disposition. Hence, it was waived. Indiana & Ohio Live Stock Ins. Co. v. Smith (Tex. Civ. App.) 157 S. W. 755, and cases therein cited. The question (of insufficiency of the petition) is raised after verdict- and judgment, and, so, at a time when all that is possible must be presumed in aid of the pleading (see Schuster v. Frendenthal, 74 Tex. 53, 11 S. W. 1051) and at a time when the answer may help the petition (see Pope v. K. C., M. C. Ry. Co., 109 Tex. 311, 322, 207 S. W. 514).”

I.-G. N. Ry. Co. v. Purswell (Tex. Civ. App.) 16 S.W.(2d) 363; Southern Casualty Co. v. Flowers (Tex. Civ. App.) 23 S.W.(2d) 507; Humphreys Oil Co. v. Liles (Tex. Com. App.) 277 S. W. 100; Id. (Tex. Civ. App.) 262 S. W. 1058.

Plaintiff can no longer rely upon the allegations of the petition as prima facie proof of his right to maintain a suit where brought, but he must contest the plea under oath, alleging specific facts relied on to confer venue of the suit on the court where it is pending and has also the burden of proving the existence of such facts.

It is said in Vilbig Motor Freight Lines, Inc., v. Jenness (Tex. Civ. App.) 34 S.W.(2d) 684: “The rule that when a plea of privilege is filed which complies with requirements of art. 2007, R. S. 1925, the defendant is entitled to have the case transferred to the county of his residence, unless- the plaintiff both pleaded and proved facts essential to maintain venue in the county where the suit was filed, is now too well settled to require citation of authorities. Nor do the pleadings of the plaintiff nor his controverting affidavit taken alone constitute any proof of the facts therein alleged. Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899.” Thompson v. Duncan (Tex. Civ. App.) 44 S. W.(2d) 508.

In order to defeat the right of appel-lee to have the case transferred to Grayson county, it was necessary for the appellants to make out at least a prima facie case of injuries and sustain the other allegations entitling them to maintain the suit in Hale county. The testimony does not connect the appellee with the accident, and the appellants failed to show that the truck which is alleged to have injured Mrs. Jones was the property of the defendant or was being operated at the time of the accident by the defendant’s agent. It is not shown that there was a wreck or a collision upon the highway for which the defendant was responsible. It was shown by a witness who reached the scene of the accident some time thereafter that a truck similar to the one which had been used by the appellee in hauling sand and gravel was lying on or near the highway, overturned, and that near it was a car, also overturned, but there is no evidence whatever of negligence on the part of appellee, its agent, or any one else which brought about: this condition. They did not show that T. B. Jeter, who is alleged to have been the driver of the truck, was an employee of the appellee. No testimony was introduced to show that Mrs. Jones sustained any damages or that she was injured as a result of any one’s tortious or negligent act. As held in Standard Accident Insurance Company v. Pennsylvania Car Co. (Tex. Civ. App.) 15 S.W.(2d) 1081, the appellant, in order to maintain venue in the county where the suit was filed upon the ground alleged in its controverting affidavit, was required to show by evidence a prima facie trespass. This rule is well settled. Perry et al. v. Wood (Tex. Civ. App.) 25 S.W.(2d) 650; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W. (2d) 861; Eidermann v. Hansen (Tex. Civ. App.) 285 S. W. 847; Cannel Coal Co. v. Luna (Tex. Civ. App.) 144 S. W. 721.

It is said in the Eidermann Case, supra: “In the hearing of the plea of privilege, none of the facts relied upon by appellee to fix venue in Bexar county were proven by direct testimony. No witness who was present or saw the collision testified. * * * There was no evidence by which appellant’s ownership of either of the cars could even be inferred. * * * Even if it had been competently shown that she [appellant’s wife] was driving one of the cars, and that she was driving it in such manner as to constitute a trespass, yet,' so far as the record shows to the contrary, the car may have been the property of a stranger, and appellant’s wife may have been using it upon her individual and private errand, without the knowledge, consent, or acquiescence of her husband. * * * The mere pleading by controverting affidavit of the facts establishing such exception [to the plea of privilege] is not sufficient to hold a nonresident defendant against his plea. Such facts must not only be pleaded; they must be clearly and satisfactorily proven by competent evidence.”

The briefs of the parties present several new and interesting questions which it will be unnecessary for us to discuss. It may be admitted that the record is sufficient to disclose that appellee company is duly incorporated, and that it had an agent and representative in charge of its business in Hale county; but these facts only as against the plea are insufficient to deprive the appellee of its privilege to be sued in Grayson county.

For the reasons stated, the judgment of the court is affirmed.

MARTIN, J., not sitting..


author: JONES, C. J.

text:
    BISHOP’S PHARMACY, Inc., v. PECAN KRISP CO., Inc.
    No. 11338.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 8, 1932.
    Rehearing Denied Nov. 5, 1932.
    Hamilton & Hamilton and J. G. Turner, all of Dallas, for appellant.
    Allen & Allen and E. G. Moseley, all of Dallas, for appellee.
   JONES, C. J.

Appellee, the Pecan Krisp Comp'any, Incorporated, instituted this suit in a district court of Dallas county against appellant, Bishop’s Pharmacy, Incorporated, to restrain appellant from selling to the public an ice cream in substitution of Pecan Krisp ice cream. A temporary injunction was issued by the trial court, granting the temporary relief, and appellant has duly perfected its appeal from such interlocutory order. The facts are as follows:

Tom Anagnos is appellee's president and manager, and virtually its sole owner. Previous to organizing the corporation known as the Pecan Krisp Company, Inc., Anagnos perfected a syrup or ingredient for the making of ice cream, which was given the name of Pecan Krisp, pecan nuts being one of its ingredients, and the ice cream which uses such ingredient carries the name of Pecan Krisp ice cream. The business of manufacturing this syrup was transferred to the corporation. This syrup or flavoring is made from a secret formula. “Pecan Krisp,” as a trade-mark, was duly registered in the Patent Office at Washington, D. C., and also in the county clerk’s office of Dallas county. Appellee furnishes its ingredients only to the manufacturers of ice cream, and does not itself manufacture ice cream. Appellee largely advertised its product in newspapers, over the radio, and in motion picture shows of the city of Dallas, and the ice cream known as Pecan Krisp became and is a popular product. Any retail dealer could purchase such ice cream from the manufacturer. There are quite a number of other ice cream ingredients containing the name pecan, but each differs from the others in its flavor.

Appellant operates a drug store in the Oak Cliff section of the city of Dallas, and in connection therewith operates a soda fountain and confectionery. Various' kinds of ice cream áre sold by it to the retail trade of the city of Dallas, and adjacent territory. Prior to the controversy between the parties, appellant had sold Pecan Krisp ice cream, manufactured by a dealer authorized to use appellee’s flavoring compound. Some three or four months prior to the institution of this suit, appellant had ceased to purchase Pecan Krisp ice cream from such dealer, but manufactured its own ice cream, using a pecan syrup and giving it the name of Pecan ice cream, and serving it to the public.

Appellee, in its petition, alleges that appellant is guilty of unfair competition, in that it sells its Pecan ice cream to its customers as Pecan Krisp ice cream, and when a customer calls for Pecan Krisp ice cream, it substitutes its Pecan ice cream, without the knowledge of the customer that the substitution is being made. The allegations in the petition in this respect are full and complete, and state a cause of action for the equitable relief prayed for.

Appellant, in its answer, directs a great many special exceptions to appellee’s petition, which we do not find necessary, for a disposition of this case, to pass upon. This answer denies specifically all of the allegations tending to show it is guilty of unfair competition, specifically pleading that it never has at any time sold or authorized any of its employees to sell its product under the. representation that it is Pecan Krisp ice cream; that it has not substituted, nor authorized any of its employees to substitute, any character of ice cream for a customer who calls for Pecan Krisp ice cream. This answer is likewise full and complete in its defensive allegations. Both the pleading of appellee and appellant are properly verified.

The hearing for a temporary writ of injunction was had after due notice of same was served on appellant,' and appellant was present and offered evidence at such hearing. After the hearing, the court entered its order awarding appellee the temporary writ of injunction above described. Appel-lee attempted to sustain its allegations of unfair competition by evidence to the effect that after appellant had'ceased'its purchase of Pecan Krisp ice cream from the manufacturer of such product, there was made at appellee’s drug store, to two different customers, a sale of a dish of ice cream represented to each to be Pecan Krisp ice cream that was not such product, though each customer had called for Pecan Krisp ice cream. Each of these sales was made by an employee of appellant who was operating the soda fountain ih appellant’s drug store.

Appellant attempted to sustain its defense by evidence to the effect that, when it had ceased to handle Pecan Krisp ice cream, and placed on the market its own product of Pecan ice cream, E. D. Bishop, appellant’s secretary-treasurer and manager, directed each employee to inform any customer who called for Pecan Krisp ice cream that it did not handle such product; that again, after Anagnos had lodged a complaint with Mr. Bishop, he again gave similar instructions to all of his employees. Each employee, who sold ice cream during the period of time it is alleged by appellant’s witnesses that the two substitutions were made, denied having made any such substitution. Bishop also testified that the conduct of appellant in this respect, in the future, would be to prevent the making of any substitution on a call for Pecan Krisp ice cream by any customer.

The trial court having granted the temporary writ of injunction, it must be concluded that the court found as a fact that the two substitutions of appellant’s Pecan ice cream for Pecan Krisp ice cream had been made by appellant’s employees. The specific question then to be determined by this court is whether this fact is a sufficient basis for the legal conclusion that appellant is guilty of knowingly and willfully substituting its Pecan ice cream for Pecan Krisp ice cream. We recognize it as a sound legal proposition that “unfair competition may consist in the substitution by a dealer of his own or another’s goods in the place of those called for by the purchaser, where the substitution is made without the latter’s permission.” 26 R. C. L. § 68, p. 892.

It is contended by appellant that, as appellee only offers for sale its syrup to the manufacturer of ice cream, there can be no competition between such product and appellant’s Pecan ice cream. The one is sold to the manufacturer for flavoring the finished product; the other is sold to the customer for his consumption; that if the substitution of appellant’s Pecan ice cream for Pecan Krisp ice cream be unfair competition, then the manufacturer of Pecan Krisp ice cream is the one damaged thereby and should be the complaining party, and not the maker of the syrup that entered into it. This contention we cannot allow, for the reason that the distinguishing feature of the two ice creams is the flavoring substance, and ap-pellee has such an interest in the ice cream manufactured with his syrup as the flavoring substance, that he would suffer damages by reason of any unfair competition against the ice cream of which his syrup is the distinguishing feature.

We are of the opinion, however, that appellee’s evidence does not form a sufficient basis for the granting of a temporary writ of injunction. Before such writ can be granted against appellant, the evidence must show that it willfully and knowingly made substitutions of another kind of ice cream for Pecan Krisp ice cream. The proof offered falls short of this requirement, in that it fails completely to show that the two substitutions proven were made within the knowledge of any officer of appellant, or of any employee authorized to act for appellant, and the evidence affirmatively shows that such substitutions were made against the specific instructions of appellant’s manager. The two isolated substitutions are not sufficient to charge appellant with knowledge that its employees were making the alleged substitutions to customers. The evidence further affirmatively shows that appellant will, in the future, guard against the possibility of any such substitutions being made.

Then again, we are of the opinion that, before appellant can be found guilty of knowingly and willfully substituting to a customer its Pecan ice cream for Pecan Krisp ice cream desired by a customer, it must reasonably appear that the substitution was made under such a condition that would show the intention of appellant to adopt a course of dealing with its customers of substituting its Pecan ice cream for Pecan Krisp ice cream. To our minds, the proof offered fails to raise such an issue of fact. The question of unfair competition is fully discussed by this court in the case of Dixiepig Corp. v. Pig Stand Co., 31 S.W.(2d) 325, in a very elaborate opinion by Associate Justice Vaughan. The principles announced in that case, we cite as authority for the holding in this case.

It necessarily follows that, in the opinion of this court, the judgment of the lower court should be reversed, and the temporary writ of injunction dissolved; and it is so ordered.

Reversed, and injunction 'dissolved.