author: WALTHALL, Justice.

text:
    GREAT AMERICAN INDEMNITY CO. v. McELYEA et al.
    No. 2780.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 9, 1933.
    Rehearing Granted March 2, 1933, on Appellees’ Motion.
    Rehearing Denied March 16, 1933, on Appellant’s Motion.
    Turner, Rodgers & Winn, of Dallas, for. appellant.
    P. P. Ballowe and Hughes & Monroe, all of Dallas, for appellees.
   WALTHALL, Justice.

On October IS, 1930, appellee MeElyea claims to have been injured by falling through the floor of an ice house located in the 2800 block on North Haskell street, in the city of Dallas, Tex., his claim being that, while he was removing ice, the top floor gave'away and he fell through. Appellant at the time was carrying the insurance for the City Ice Delivery Company, his employer.

In due time he filed his claim with the Industrial Accident Board for compensation setting out the nature of his injuries to be: “Rupture and Other Complications Which May Develop On Thorough Examination.”

Thereafter, MeElyea submitted himself to an operation for the hernia which he claims developed immediately after the injury. A hearing was had before the Industrial Accident Board and MeElyea was awarded compensation at the rate of $12.12 per week for 26 weeks. An award was also made in favor of the parties who furnished and provided the operation including hospitalization foi the reasonable value of such services.

Appellant gave due notice of appeal from the award and filed this suit.

Thereupon, McElyea'filed his answer and cross-action seeking a recovery for total and permanent disability, and later filed his amended answer and cross-action in which he again sought to recover for total and permanent disability and prayed for a lump sum settlement. Appellant, by supplemental petition, raised a question of the jurisdiction of the court to try and determine the claim set up in the cross-action, in that it presented matters which had not been presented to the Industrial Accident Board and that Mc-Elyea had not taken the necessary procedural steps necessary to perfect the appellate jurisdiction of the court. Appellant further demurred generally, and specially, to the cross-action, generally denied the allegations therein contained and specially denied that Mc-Elyea was the employee of the City Ice Delivery Company at the time of his injury, within the provisions of the Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended).

On February 15, 1932, appellant filed its motion for leave to take a nonsuit in the case and tendered to McElyea the full amount of the award made by the Industrial Accident Board.

The motion for leave to take nopsuit, as well as the plea to the jurisdiction of the court, were both overruled.

At the conclusion of the testimony appellant renewed its motion for leave to take a nonsuit and it was again overruled.

The cause was submitted to a jury on special issues and upon their findings the court rendered judgment in favor of McElyea for 54,932.30; for total and permanent disability and that it be paid in a lump sum; in favor of the medical firm of Shortal, Burton & Bumpas for $100 for performing the hernia operation; and $74 in favor of Baylor Hospital for hospitalization in connection with such operation.

This appeal has been perfected from that judgment.

Opinion.

Appellant first attacks the action of the court in overruling its plea to the jurisdiction of the court. Under this assignment the contention is made that the cause of action set up in the cross-action involved a cause of action different to the claim filed before the Industrial Accident Board, and, therefore, the court was without jurisdiction to entertain such cause of action.

McElyea’s claim before the board reads:

“This is to notify you, Great American Industry Company, that I elaim compensation from you under the Employer’s Diability Act for personal injury sustained while in the employ of the City Ice Company at Dallas, Texas. The time of my injury was 7:30 o’clock P. M. on the 15th day of October, 1930. The place of my injury was Ice House in 2800 Block on North Haskell st., Dallas, Texas. The cause of my injury was While Removing Ice, The Top Floor Gave Away And I Fell Thru. The Nature of my injury is as follows:

“Rupture and Other Complications Which May Develop On Thorough Examination.”

Prior to the award Dr. Shortal of the firm of Shortal, Burton & Bumpas, wrote the following letter which was filed with the board:

“This is to certify that G. C. McElyea was injured on October 15, 1930, by a falling block of ice (100 lbs) from about the height of his shoulders. While attempting to pull the block of ice his foot slipped twisting his body and straining him. He had pain in his left side at the time. He consulted another physician in about a week or ten days and was told that he had a Hernia. Nothing was done about this.

“During the latter part of December he came under our observation and on April 17th he was operated for repair of Inguinal Hernia. Remaining in hospital about two weeks. He apparently had satisfactory results.

“He also had some injury to hips and back the nature of which cannot be exactly stated without x-ray examination. This is to determine any body fracture or misplacement.

“Our bill will be approximately $100.00.”

From the above quoted application and letter it appears, we think, that McElyea’s claim was not limited to hernia, therefore, appellant’s position is untenable.

While it is true that the board only made an award for hernia, yet, in the hearing before it, both the board and the parties to that hearing were apprised of the fact that McElyea was claiming that he had suffered injuries other than hernia.

The proceedings before the board being more or less informal, claims before it need not be alleged-with the same particularity as they would be in a court.

The assignment of error questioning the court's action in overruling its plea to the jurisdiction is without merit.

Appellant also assigns error to the court’s refusal to permit it to take a nonsuit.

While it is probably the general rule that plaintiff may take a nonsuit, yet, where the effect of doing so would operate to destroy the trial court’s jurisdiction, the court was justified in refusing to entertain such a motion. Ocean Accident & Guarantee Corp. v. McCall (Tex. Civ. App.) 25 S.W.(2d) 653.

Another assignment attacks the judgment because no discount on the lump surd settlement is allowed therein.

In cases governed entirely by section 15, of article 8306, R. S., the rule appears to be well settled that the issue of discount to be applied is a question, of fact to be determined by the jury. Maryland Casualty Co. v. Ham (Tex. Civ. App.) 22 S.W.(2d) 142; Petroleum Casualty Co. v. Bristow (Tex. Civ. App.) 21 S.W.(2d) 9; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Id. (Tex. Civ. App.) 226 S. W. 154; Herzing v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 17 S.W.(2d) 1046; Maryland Casualty Co. v. Marshall (Tex. Civ. App.) 14 S.W.(2d) 337; Consolidated Underwriters v. Saxon (Tex. Com. App.) 265 S. W. 143; Id. (Tex. Civ. App.) 250 S. W. 447; Western Indemnity Co. v. Milam (Tex. Civ. App.) 230 S. W. 825.

. The statute under which these holdings were made was in force at the time the injury occurred in the ease at bar.

The Forty-Second Legislature (chapter 248) enacted article 8306a (Vernon’s Ann. Civ. St.), making the discount on lump sum awards 6 per cent., but this act did not become effective until August 23, 1931. At that time the award of the board had been made, the appeal perfected therefrom, and Me-Elyea’s cross-action filed.

It follows, therefore, that the rights of the parties depended upon the law as it existed before the enactment of 8306a, and that the rate of discount was a question of fact to be found from the evidence in the case.

There having been no issue on the rate of discount submitted to the jury; no allowance by the trial court of any discount and no evidence upon which we might find the present worth of the payments, the judgment must be reversed.

Appellant’s fourth and fifth assignments present questions as to the sufficiency of the evidence, which, in view of the above holding that the judgment must be reversed, will not be discussed.

■ Special issues Nos. 20, 21, and 22 were as to the necessity for* the operation performed on McElyea and as to what was a reasonable charge therefor and for hospital services.

• Appellant objected to the submission of these issues as follows: “Plaintiff excepts and objects to Special Issue No. 20 for the reason that the matters therein sought having never been submitted to the Industrial Accident Board of Texas, and if this court should render a judgment on the jury’s findings to said issue, plaintiff would not be relieved of liability to the physicians who are alleged to have performed the operation on the defendant and this court has no jurisdiction to determine any such amount or make any award therefor under the case of Lumbermen’s Reciprocal Ass’n v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972.”

The same objection was made to the submission of special issues Nos. 21 and 22.

These objections are made the basis for appellant’s assignments Nos. 7, 8, 9, 10, and 11, and, under its proposition thereunder, appellant asserts that the trial court had no jurisdiction to hear the claim for medical and hospital bills because they had not been included in McElyea’s claim before the board.

While it is true that McElyea made no specific claim for such expenses, yet the matter was presented to the board and its award included those items.

In the ease cited by appellant which appears at page 972 of 12 S.W.(2d), a physician was permitted to intervene in a suit where his claim had not been presented to the board. The court properly held that he could not do so. It will readily be seen that the holding there would have no application ta the facts here.

The judgment of the trial court will be reversed and the cause remanded.

On Motion of Appellee for Rehearing.

We reversed this case solely on the ground that no allowance was made by the trial court of any discount on the lump sum settlement, and that no evidence was offered upon which this court can find the present value of the payments.

In his motion appellee, to avoid a reversal of the case for reasons above stated, waives that part of the judgment awarding him a lump sum settlement.

We have concluded to accept such waiver, set aside our judgment reversing and remanding the case, and now and here enter judgment that McElyea recover of appellant the sum of $12.30 per week (said sum being 60 per cent, of the alleged weekly wages as found by the jury) for 401 week's, and that the judgment of the trial court in other respects in no wise be disturbed.

With the above change in our opinion the case is affirmed.


source: Caselaw Access Project

author: HARVEY, Presiding Judge. CURETON, Chief Justice.

license: Public Domain

text:
    RICH et ux. v. WALKER SMITH CO.
    No. 1653—6110.
    Commission of Appeals of Texas, Section A.
    March 22, 1933.
    Jesse G. Poster, of Raymondville, and Cal-laway & Callaway, of Brownwood, for plaintiffs in error.
    McGaugh & Darroch and E. M. Davis, all of Brownwood, for defendant in error.
   HARVEY, Presiding Judge.

This suit was brought by the defendant in error, Walker Smith Company, a corporation, against the plaintiffs in error, H. R. Rich and wife, to recover on five alleged vendor’s lien notes, and to foreclose the lien. The notes were alleged to have been executed by Rich, on May 20, 1925, for the purchase money of a certain lot in the town of Weinert in Haskell county. The plaintiffs in error set up homestead rights in the lot, as hereinafter explained. The case was tried to a jury. The trial court instructed a verdict for the company. Judgment was, rendered in favor of the company for the amount sued for, with foreclosure of the alleged vendor’s lien on the lot. That judgment has been affirmed by the Court of Civil Appeals, 42 S. W.(2d) 181.

The material facts, admitted in evidence, are substantially as follows:

On July 30, 1924, Rich, who was a retail merchant, was indebted to the Walker Smith Company, a wholesaler, in the sum of $9,000 for goods purchased by Rich in conducting his business as a merchant. On the date mentioned, Rich and wife executed to the company a warranty deed, purporting to convey to the company the lot in question, for the recited consideration of $5,000 cash. On May 20, 1925, -the company executed a deed purporting to reconvey the lot to Rich for $5,000, which sum is evidenced by the five notes herein sued on. The deed purported the retention of the vendor’s lien. In 1927, the notes remaining unpaid, the company brought suit against Rich .and wife to recover on the notes and for foreclosure of the vendor’s lien. Rich and wife answered in said suit, and set up substantially the following facts, in defense against foreclosure of the alleged lien, namely: (1) That said lot was their business homestead, and was such on and before and ever since July 30, 1924; (2) that the deed of July 30, 1924, and the deed of reconveyance of May 20, 1925, were pretended conveyances, and were executed by the respective parties in pursuance of a common design to charge the business homestead with a lien to secure $5,000 of the $9,000 indebtedness of Rich for merchandise. After said answer was filed, Rich and wife and the Walker Smith Company got together and made a compromise agreement with reference to the matters in controversy in said suit. The compromise agreement was in writing, and was duly signed and acknowledged by all parties. The terms of the agreement were, in substance, that all matters in dispute were thereby settled, and Rich and wife ratified and confirmed the deed of July 30, 1924, and the deed of reconveyance of May 20, 1925; that the Walker Smith Company was to dismiss the said suit, extend the time of payment of the notes in question, and make advancements of merchandise to Rich to the amount of $650 — all of which the company did.

In the present suit, Rich and wife pleaded that the lot in question is their business homestead, and set up the same defense, with respect to the validity of the lien asserted by the company, as they had set up in the previous suit. At the trial Rich and wife offered testimony to prove the facts alleged, but the trial court excluded such testimony on the ground that all questions going to the validity of the company’s lien were concluded by the compromise agreement stated above.

The action of the ferial court in the respect just mentioned was erroneous. The Constitution (article 16, § 50) provides that: “No mortgage, trust deed, or other lien on the homestead shall ever be valid * * ⅜ and all pretended sales of the homestead involving any condition of defeasance shall be void.”

The proffered testimony, if found true, would have established the invalidity of the lien claimed by the Walker Smith Company. The fact that the compromise agreement had occurred would make no difference. That which the Constitution declares void cannot be made valid by agreement of the parties. If, when the compromise was made, the facts really existed which rendered the lien void under the Constitution, the parties could not mate the lien valid by agreeing that such facts did not exist. The fact that, in the compromise, Rich and wife ratified the instruments in question would not operate to estop them from asserting their homestead rights in the present suit.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals be reversed and that the cause be remanded.

CURETON, Chief Justice.

Judgments of the Court of Civil Appeals and of the district court are reversed, and cause remanded to the district court.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: RYAN, Judge. CURETON, Chief Justice.

text:
    KANSAS CITY, M. & O. RY. CO. v. TORRES.
    No. 1364—5940.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    Terry, Cavin & Mills, of Galveston, and Collins, Jackson & Snodgrass, of San Angelo, for plaintiff in error.
    R. G. Hughes, J. W. Stovall,'and B. W. Smith, all of San Angelo, for defendant in error.
   RYAN, Judge.

Lorenzo M. Torres sued the Kansas City, Mexico & Orient Railway Company of Texas in damages for personal injuries alleged to have been sustained by him, as a result of being pushed off of .a moving freight train of the railway company, by a brakeman in its employ and acting for and in its behalf and in the course of his employment, and while transacting the business of said railway company, as a direct and proximate result of which he fell from said train onto the track, was run over by the cars in said train, and injured in his left foot and leg, in consequence of which it became necessary to amputate said leg just below the knee.

In the course of the trial, over defendant’s objection, the court permitted two witnesses, Thompson, a conductor, and Nesbitt, a brakeman, whose depositions had been taken, to testify with reference to the duties of brakemen and conductors in the removal of persons from trains, but after the plaintiff had rested, sustained a motion by defendant to exclude such testimony because it appears therefrom that said witnesses were referring to certain printed rules of the company, which rules are the best evidence and had not been introduced and no excuse shown for failure to produce the same — that such testimony so excluded, was hearsay, in the absence of such printed rules.

Thereupon, defendant railway company moved for an instructed verdict, which was given by the trial court, and judgment rendered accordingly.

The Court of Civil Appeals, on rehearing, reversed the judgment below and remanded the cause for a new trial. 35 S.W.(2d) 229.

The case turned on the question whether, ejection of plaintiff, a trespasser, by defendant railway’s brakeman, was within the brakeman’s course of employment.

As said in Texas & P. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 79, 80, no definite rule can ,be prescribed as to what will be sufficient authority of a brakeman in such a case and each case must depend upon its own facts, but in all cases the act must have been done in the prosecution of the master’s business. “In all cases,” said the court “the question as to whether the act was authorized is one for the jury, in view of all the circumstances, and unless there is an entire absence of authority, the master will be held chargeable. The question is whether there is any authority at all.” See, also, International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Texas & P. Ry. Co. v. Black, 23 Tex. Civ. App. 119, 57 S. W. 330.

Practically the same character of testimony as that excluded seems to have been adduced without objection — at least none appears in the record — from other witnesses. Caudle, the conductor of the train in question, testified that he had “lots of experience with trespassers trying to ride on trains, and put them off.”

Scott, a brakeman on said train, testified that he had seen “lots of trespassers riding on trains and I have ordered them to leave the train. Some of them do not get off but I generally see that they get off. I don’t force him off, I just see that he gets off.”

It was held in Houston & T. C. Ry. Co. v. Rutherford, 94 Tex. 518, 62 S. W. 1056, that a general allegation that a brakeman acted within the scope of his authority in expelling a trespasser is sufficient to admit evidence, of a custom of conductors, known to its general officers, to delegate such authority to brakemen, in spite of written instructions to the contrary, on which the company relied to disprove such authority; and in Texas & N. O. R. R. Co. v. Buch (Tex. Civ. App.) 102 S. W. 124; Id., 101 Tex. 200, 105 S. W. 987, that testimony is admissible to prove that it was the custom of brakemen to put off trespassers, "as a custom of the company’s employees, though the company had a rule prohibiting any employee except the conductor to eject trespassers.

The ease was tried on the theory that testimony of employees as to the practice and custom of brakemen in ejecting trespassers from trains was admissible to establish the allegation that the brakeman, in forcibly ejecting Torres, was acting in the course of his employment, irrespective of what the company’s rules prescribed, and raised an issue of fact to be passed on by the jury.

The only question presented by the application for writ of error is one of admissibility of evidence. We think there is no conflict between the holdings of other Courts of Civil Appeals on facts existing in those cases and ,the holding by the Court of Civil Appeals in this ease on the facts herein.

The writ of error was not granted on the ground of conflict, but on the question of admissibility of certain evidence, and therefore does not come within the rule announced in Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.(2d) 682, 79 A. L. R. 1488, and Moore v. Davis (Tex. Com. App.) 27 S.W.(2d) 153, that where the writ is granted on some ground of jurisdiction embraced within the first five paragraphs of article 1728, Rev. Stat. 1925, as amended by Acts 1927, e. 144, § 1 ("Vernon’s Ann. Civ. St. art. 1728), the court will pass on all questions in the case, including those of admissibility of evidence.

Since the evidence excluded by the trial court and held admissible by the Court of Civil Appeals does not necessarily control the case nor present a question of substantive law or any other question which the statute gives the Supreme Court the power to review, the writ of error must be dismissed. Merchants’ Cotton Oil Co. v. Acme Gin Co. (Tex. Sup.) 42 S.W.(2d) 777; Smith v. Butcher, 110 Tex. 617, 223 S. W. 166; Hartt v. Yturia Cattle Co. (Tex. Com. App.) 228 S. W. 551.

We recommend that the writ of error be dismissed.

CURETON, Chief Justice.

Writ of error dismissed as recommended by the Commission of Appeals.


text:
    GOOD v. CHILES.
    No. 1650—6097.
    Commission of Appeals of Texas, Section A.
    March 22, 1933.

      Wear & Wear, of Hillsboro, for plaintiff in error.
    Collins & Martin and R. W. Calvert, all of Hillsboro, for defendant in error.
   HARVEY, Presiding Judge.

■ This suit on a contract was brought by J. D. Good against H. E. Chiles to recover the sum of $1,200 for the purchase price of certain shares of stock in the Farmers Gin’ Company, a corporation. The plaintiff, Good, alleged in his petition, in substance and effect, that on July 27, 1927, he owned 12 shares of stock in the Gin Company of the par value of $100 per share; that, on the date mention-' ed, the plaintiff offered to sell said 12 shares of stock to the defendant, for $1,200, and the defendant accepted the offer; that thereafter the plaintiff delivered the stock to the defendant, but the latter refused to pay for same. The ease went to trial, before a jury, on the plaintiff’s petition, and the answer of the defendant setting up general denial. At the conclusion of the testimony, the trial court instructed the jury to return a verdict for the plaintiff, Good. The verdict was returned, and judgment was entered accordingly. The Court of Civil Appeals reversed that-judgment and remanded the cause. 41 S.W.(2d) 738.

The testimony shows, without dispute, that the material facts alleged in the plaintiff’s petition are true. The trial court’s action, therefore, in instructing a verdict for-Good was proper. The controlling question’ in the case relates to the exclusion of testimony offered by the defendant Chiles. At the trial the latter proposed to prove that the offer to sell the stock was made in jest, and wad accepted by the defendant in the same spirit; that both parties were joking. On the objection of Good, all this testimony was excluded ; from evidence. Chiles contends that this testimony was admissible under his plea of general denial. This contention is overruled.The settled rule in this state is to the effect that, under his plea of general denial, a defendant may introduce any testimony which goes to disprove the facts alleged and proved by the plaintiff, cannot avoid the legal consequences of such facts, unless he plead the matters in avoidance npon -which he relies. Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Smothers v. Field, 65 Tex. 435. In the present instance, the plaintiff alleged and proved the fact of an offer by him to sell to the defendant the shares of stock for $1,-200, and the fact of an acceptance of that offer by the defendant. The legal effect of these acts of offer and acceptance, unless avoided in some way, was to create a contract. The proposed testimony did not tend to 'show that the acts of offer and acceptance did not occur. It could have no bearing on the plaintiff’s ease, except to avoid the legal consequences of those acts. There was no basis in the pleadings for the introduction of this testimony.

We recommend that the judgment of the Court of Civil Appeals reversing the trial court’s judgment be reversed, and that the judgment of the trial court be affirmed.

CURETON, Chief Justice.

Judgment of the Court of Civil Appeals is reversed, and judgment of the district court is affirmed.


author: LATTIMORE, Judge.

text:
    IBECK v. STATE.
    No. 15659.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    A. L. Lewis, of Houston, for. appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The testimony for the state shows a large number of witnesses testifying to facts which clearly make out a case of burglary against this appellant. This testimony was -.opposed by .that of appellant himself and by the introduction of a number of pictures claimed by defense counsel to show the impossibility of the story told by the state witnesses of appellant’s flight from the burglarized building. We think the testimony amply sufficient to justify the finding of the jury. We do not find in the record any bills of exception. There was an exception taken to the charge of the court based upon the proposition that in defining a breaking the court made use of an illustration, which to appellant’s mind was a reference to the facts in this ease. We do not think so. The illustration was apt, and in its terms applicable to any case where the burglary was by the breaking down of a wall or the breaking of a hole in the wall. The attempted bill of exception to remarks of state’s counsel is not approved by the court, and in such condition cannot be considered.

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


author:
CHRISTIAN, Judge.
      PER CURIAM.

text:
    PRIVETT v. STATE.
    No. 15680.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    L: H. Flewellen, of Ranger, and Frank Sparks, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State, i
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for 50 years.

A former appeal is reported in 119 Tex. Cr. R. 455, 44 S.W.(2d) 694.

In his confession appellant stated that he and deceased, Melvin Dunson, had gone with the same girl, and that deceased had become somewhat angered because of his attentions to this girl; that on several occasions deceased had come to his (appellant’s) sister’s home and endeavored to get him to fight him; that deceased had been guilty of insulting conduct toward his sister and sister-in-law; that he decided to settle his differences with deceased, and, procuring a pistol, went to deceased’s home;- that he asked deceased'to leave the house and go with him to a railroad; that after he reached the railroad he told deceased what he had come up there for, and deceased said that it was all right. At this point we quote from the confession as follows: “We got to talking about it and I asked about kissing my sister-in-law, and he said he did and he then hit at me. He didn’t hit me and I dodged him. He did not have anything but his fist. I dodged and grabbed my gun and he turned and said, ‘Don’t shoot,’ and then I shot him. I shot- him twice as he fell. He was falling when I shot the second time — he said, ‘Oh,’ and just crumpled down and straightened out and only moved one hand. He fell nearly under the bridge of the railroad. I turned around and started off and looked back. I aimed at his heart, is where I shot at first and then when he started falling I just shot him and let him go. I went on down the rajlroad of Jake Hamon on home. I pitched the gun down and told my sister-in-law I didn’t guess we would have any more rackets with Melvin. * * * Ves, I shot him to kill him, and I thought I would just kill him and be done with it.”

Appellant’s sister and sister-in-law testified that deceased had endeavored on a number of occasions to prevail upon appellant to fight him. They said that two days prior to the homicide deceased had been guilty of insulting conduct toward one of them.

Many witnesses testified that appellant’s mentality was of low order. Some of the witnesses stated that appellant had the mind of a twelve year old child. Other witnesses testified that, in their opinion, appellant did not know the difference between right and wrong.

An issue as to the voluntary character of the confession was raised by appellant’s testimony. Appellant testified that the county attorney told him that he wanted him to make a statement. He said, further, that he was advised that if he made the statement it would ;help him. He denied', that the statement introduced in evidence by the state reflected the jtrue facts. ■

Appellant testified that deceased had frequently mistreated him, and endeavored to engage him in fights. He said that shortly prior to the homicide deceased had been guilty of insulting conduct toward his sister and sister-in-law. Touching the circumstances surrounding the homicide, appellant testified that he had no intention of killing deceased when he went with him to the railroad crossing ; that deceased told him while they were going down to the railroad that he was going to “jazz” his (appellant’s) sister and sister-in-law ; that he had wanted to kill appellant for a long time; that if he killed appellant he could have illicit relations with his female relatives without interference. Appellant said he told deceased he was tired of being cursed by him and asked him why he felt he should run over his sister and sister-in-law. He testified, further, that at this point deceased struck at him with his fist, and he pulled his gun; that he did not know whether deceased had anything in his hand or not; that he pulled his gun because he was afraid that deceased was going to kill him, and that he did not remember what happened after he shot deceased the first time; that he would not have killed deceased if he had not threatened to kill him and struck at him. Appellant said that deceased was close enough to strike him when he told him he was going to kill him and then violate the chastity of his sister and sister-in-law. He said further that when he shot deceased he thought his life was in danger.

The evidence raised the issue of murder without malice; Appellant excepted to the charge for its failure to apply the law to the facts as is required and provided in chapter 60, page 94, Acts of the 42d Legislature, 1931 (Vernon’s Ann. P. C. art. 1257c), which was effective at the time of this trial. The act mentioned requires all trial courts, in cases whose facts raise the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable' of cool reflection. In paragraph 4 of the court’s charge the abstract proposition of law contained in what we have just set forth, as the substance of the act, was given in practically the exact language of the statute. The remainder of said amended act reads as follows: “And in appropriate terms in the charge to apply the law to the facts as developed from the evidence.” After setting forth an abstract definition of murder without malice, the court instructed the jury, in substance, that if they believed that appellant with malice aforethought killed Melvin Dunson as charged in the indictment, they would find him guilty and assess his punishment at death or confinement in the penitentiary, etc. Thereafter, the court instructed the jury, in substance, that the punishment could not exceed five years in the event the jury had a reasonable doubt as to whether appellant acted upon malice aforethought when he killed deceased. This court has expressly held that the giving of the mere abstract statutory definition of murder without malice is not a sufficient compliance with the statute, and, further, that an instruction to the jury that the punishment could not exceed five years in the event the jury had a reasonable doubt as to whether the accused acted upon malice was not sufficient to meet the demand of the statute that the court, in appropriate terms, apply the law to the facts. Youngblood v. State (Tex. Cr. App.) 50 S.W.(2d) 315. In Butler v. State (Tex. Cr. App.) 51 S.W.(2d) 384, the court embraced in the charge an abstract definition of murder without malice as defined in chapter 60, supra. Predicating a reversal on the failure of the court to apply the law to the facts as required by the statute, Judge Lattimore, speaking for the court, used language as follows:

“Manifestly this means that, in a case where there is testimony raising the issue of murder without malice, the trial court must in appropriate terms instruct the jury, in substance, that, if they believe, or have a reasonable doubt thereof, from all the facts and circumstances in evidence, both those occurring at or about the time of the homicide, or prior thereto, that the mind of the accused was in such condition of sudden passion arising from an adequate cause as to render it incapable of cool reflection, and that such cause or causes, if any, was such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to Ténder the mind incapable of cool reflection, and that, while in such condition of mind, the accused committed the offense charged, then they could not assess a penalty of more than five years in the penitentiary. We are not trying to lay down a form, but to call attention to what appears to be a necessary interpretation of a recent statute which in words says it ‘Shall be the duty of the court * * * in appropriate terms in the charge to apply the law to the facts in evidence.’

“This is not to be taken as holding that trial judges must undertake to group or enumerate the various things claimed by the accused as having taken place and as having brought his mind into such condition as to render it incapable of cool réflection. This latter method of charging seems universally condemned.”

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:
    MARTIN v. STATE.
    No. 15676.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Thos. C. Perguson, of Burnet, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Burglary is the offense; penalty assessed at confinement in the penitentiary for two years.

Ployd Vaughn, his wife’and child resided at a place near Marble Palls. They lived in a tent with a top and four walls, with a door for the purpose of going in and out. The door was fastened with a nail on the inside and a big wire hook. On the night of April 27, 1932, after retiring, the witness heard the voices of persons around the tent and recognized those of Leslie Terry and Bill Martin. The Vaughn family left the tent, and upon their return the same night, found the tent torn down. The appellant was recognized as one of the offenders.

That a tent may be a house within the meaning of the law is not open to serious question. See Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, 1096, and authorities cited.

It was after dark when Vaughn and his family left their premises, and it was during the night that they returned thereto.

Appellant claims that the offense was not simply burglary, but burglary of a private residence at nighttime.

In Tex. Jur. vol. 7, p. 802, it is said:

“If the evidence shows an entry of a private residence during the nighttime, a conviction is not sustainable unless the indictment charges the offense of burglary of a private residence at night. The accused may not be convicted of ordinary burglary; nor, under an indictment charging ordinary burglary may he be convicted for the burglary of a private residence at night. Furthermore, a conviction for ordinary burglary may not be had under an indictment charging a nighttime burglary of a private residence.”

“ ‘The ordinary burgary indictment will not support a conviction for breaking a private residence, nor will an indictment for breaking a private residence sustain a conviction for any other burglary, either day or night.’ ”

In support of the appellant’s position, the case of Foster v. State, 110 Tex. Cr. R. 594, 9 S.W.(2d) 1037, is cited by him and is regarded as supporting his contention. Under the circumstances, the conviction for burglary in the ordinary form cannot be sustained.

The judgment is reversed, and the cause remanded.


author: CHRISTIAN, Judge. , HAWKINS, Judge.

text:
    WILCOXSON v. STATE.
    No. 15792.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.

      Sisco & McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge. ,

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.

On Motion for Rehearing.

HAWKINS, Judge.

The only thing found in the motion for rehearing which, if true, would be available to appellant, is a suggestion that the indictment charged no violation of the law. We perceive no vice in the indictment and appellant has pointed out none.

The motion for rehearing is overruled.


author: ALEXANDER, Justice.

text:
    POPE v. LITWIN.
    No. 1332.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 9, 1933.
    H. S. Bonham and H. A. Carr, both of Corpus Christi, for appellant.
    VandeiTIoven & Greathouse and H. M. Zuercher, all of San Antonio, for appellee.
   ALEXANDER, Justice.

This appeal involves the correctness of the ruling of the trial court in overruling a plea of privilege filed by the defendant W. E. Pope. The suit was filed in the district court on November 10, 1931, by Ben Litwin against Webster Witter and W. E. Pope to recover on two promissory notes signed by the defendant and payable to plaintiff at San Antonio, which is in Bexar county, Tex. Both defendants were duly served with citation. On December 7,1931, W. E. Pope duly filed his plea of privilege to be sued in Nueces county, the county of his residence. On December 9, 1931, an interlocutory judgment by default was entered against the defendant Webster Witter, and on the same day the plaintiff filed his controverting affidavit, as provided by law, to the plea of privilege filed by Pope, and had the trial judge indorse thereon his notation that the hearing on the plea of privilege was set for “Monday, December 28th at 10 o’clock A. M.” On February 22, 1932, the defendant Pope filed a general demurrer and certain special exceptions to the controverting affidavit filed by the plaintiff, * and further alleged, among other things, that he was surety on the note sued on, and that the plaintiff by failing to file suit on the notes at the first term oE court after they matured, had discharged said defendant as surety on said notes. On the same day, after a hearing on the facts, the defendant Pope’s plea of privilege was overruled, and he duly perfected an appeal.

The appellant Pope contends, under his first proposition, that, since the undisputed evidence shows that he was surety on the notes sued on, and that the suit was not filed at the first term of court after said notes matured, he was discharged from all liability thereon. This assignment is not well taken. A surety is not discharged of liability upon the mere failure of the holder of a note to ■ bring suit thereon at the first term of court after the note matures, unless he, in writing, requests such holder to so bring suit. Revised Statutes, art. 6245. While the burden is on a plaintiff to allege in his controverting affidavit and to prove upon the trial of the plea of privilege all of the essential elements of his cause of action, he is not required to anticipate defenses that may have arisen after his cause of action accrued. The statute requires an affirmative act on the part of the surety in order to defeat his liability, and it is not necessary for the plaintiff to either allege or prove the absence of such statutory request in order to fix liability in the first instance. If the surety desired to avail himself of such defense, the duty rested on him to both allege and prove that he made the statutory request and that it was not complied with. There was neither allegation nor proof that the statutory request was made. This assignment is overruled.

The appellant further contends that, since the order of the court, made on the controverting affidavit fixing the date on which the hearing was to be had on the plea of privilege, did not give the year in which such hearing was to be had, the court was without jurisdiction to enter an order overruling the plea of privilege. As before stated, the judge’s notation on the controverting affidavit fixed the date for the hearing thereon as “Monday December 2Sth at 10 o’clock A. M.” This order was entered December 9, 1931. Copy of the controverting affidavit with the above notation thereon was duly served on the defendant Pope. For some reason the case was not tried on December 28th, and thereafter, after some correspondence between the attorneys, counsel for appellant on January 27,1932, wrote appellee’s counsel stating that it was impossible for him to try the case on January 28, 1932, and agreed that the plea might be heard during the week beginning February 22, 1932. He requested that an order be entered continuing the hearing on the plea of privilege without prejudice to the defendant’s rights. On January 28, 1932, the court entered an order of continuance in which it was recited that the order was entered on the motion of the defendant Pope. Thereafter, on February 22,1932, the hearing was had on the plea of privilege, and the defendant Pope appealed in person and testified in the case, and sought to have the plea of privilege sustained. Even though the order of the court fixing the date for the hearing on the plea of privilege was defective, we think the defendant Pope waived any defect therein by having the case continued to the next term of court and agreeing that the hearing should be had on February 22, 1932, and by appearing and participating in the trial of the case. Duvall v. Boyer (Tex. Civ. App.) 35 S.W.(2d) 181, par. 4; Hewitt v. De Leon (Tex. Civ. App.) 293 S. W. 301, par. 3.

The appellant’s next contention is that the court was without authority to pass on the plea of privilege and to overrule same because a copy of plaintiff’s controverting affidavit with the judge’s notation thereon was not served on his codefendant Witter. Revised Statutes, article 2008, does provide that such hearing on the plea of privilege shall not be had until a copy of the controverting affidavit- with the judge’s notation thereon has been served on each defendant. Scruggs v. Gribble (Tex. Civ. App.) 41 S.W.(2d) 643. We are of the opinion, however, that such provision refers to the defendants only who have filed pleas of privilege, and that a defendant who has been duly served with such notice or who has entered his appearance for. a hearing on the plea of privilege cannot complain for the lack of such service on his co-defendant. We do not see how the appellant, Pope, has been injured by the failure to serve Witter with a copy of the controverting affidavit. Pope alone filed the plea of privilege. He entered his appearance for the purpose of a hearing, and had full knowledge that the plaintiff was controverting his plea of privilege. None of his rights has been cut off by the failure to notify Witter. It would not have aided his purpose in the least nor benefited him in any manner to have had Witter notified.

It would be more reasonable to assume that the defendant Witter has a right to complain of the lack of such service. However, he has not only failed to complain, but could not show injury should he choose to do so. He made default, and thereby signified his willingness to have the suit tried in Bexar County.

The judgment of the trial court is affirmed.


author: MARTIN, Justice.

text:
    KREIS et al. v. KREIS et al.
    No. 3967.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1933.
    Rehearing Denied March 15, 1933.

      E. E. Diggs, of Childress, for appellants.
    Williams & Bell, of Childress, for appel-lees.
   MARTIN, Justice.

The parties to this appeal will be designated as in the trial court.

Except as supplemented herein, the facts of this case are sufficiently stated on a former appeal, 36 ,S.W.(2d) 821. Many of the same questions disposed of on the former appeal are again presented. These will not be mentioned, as we deem it unnecessary to again discuss questions which we think have already been correctly decided. Other questions are mere corollaries of controlling questions, and still others are of a trivial nature whose importance does not justify discussion.

Two major legal issues appear here: (1) Whether the will of J. M. Kreis, ancestor of plaintiffs, disposed of his wife’s community interest in the property in question; and (2) whether the plaintiffs’ petition constitutes a collateral attack upon the probate proceedings of the Uvalde county court.

The first of these was, we think, correctly answered in the negative on the former appeal. This leaves an undivided one-half interest in a large amount of property still in controversy, the status of which depends primarily on the answer to the second question above mentioned. The chief controversy is between the heirs of Arthur B. Kreis, deceased, and those of D. E. Kreis, deceased. Arthur B. Kreis received under the will of J. M. Kreis an undivided interest in one-half the property involved in this suit. After his death, his brother, D. P. Kreis, was appointed administrator of his .estate by the county court of Uvalde county. A fourth amended original petition was filed after the former appeal by plaintiffs, the heirs of Arthur B. Kreis. Many fraudulent acts were charged against D. P. Kreis. Among these that D. P. Kreis procured his mother (also the mother of Arthur B. Kreis) to file a fictitious claim against the estate of said Arthur Kreis in the Uvalde county court, and’ fraudulently procured its allowance and an order of sale 'for the property of said estate to pay same. The petition alleges, in part:

“And it was thus by these acts of the said D. P. Kreis and his attorney and by their frauds as aforesaid, deceived and imposed upon and thus caused to mistakenly approve such bogus account and’to order the sale of said lands and to approve such pretended sale to defendant A. West. That ali of these things and other frauds were perpetrated by said D. P. Kreis for the continued purpose of divesting the title to said lands out of these plaintiffs and of vesting all of the title in himself; and he was the indirect purchaser of said lands at such administrator’s sale, through his brother-in-law A. West, who thereafter made the deed to same to said D. P. Kreis as aforesaid, and by reason of which said pretended sale to said A. West and the subsequent deed of same back to D. P. Kreis in person was all one fraudulent act to vest title in said D. P. Kreis in violation of the law prohibiting an administrator, to be the direct or indirect purchaser at his own sale. ⅞ * ⅜

“Plaintiffs further aver and charge, and as they believe, the claims against the estate of their father Arthur B. Kreis, which said D. P. Kreis reported as allowed and paid by him were fraudulent, fictitious and void and not properly charged against said estate, and never in fact paid by him. * * *

“Plaintiffs were ignorant of the matters and things, frauds, intrigues and maneuvers named and charged against said D. P. Kreis and A. West and either or both of them, until about the first day of October, A. D. 1928.”

Plaintiffs pray, in part, that title be divested out of defendants and vested in plaintiffs and for such general and special relief as they may be entitled, either in law or equity. Plaintiffs do not ask for a cancellation of any order of the probate court of Uvalde county. The trial court sustained many exceptions to this petition, the controlling one being in substance and effect that plaintiffs’ suit was a collateral attack upon the orders of the probate court of Uvalde county. Upon plaintiffs refusing to amend, judgment was rendered for defendants, from which this appeal was prosecuted.

We are of the opinion that plaintiffs’ petition, as a whole, and in its relation to that portion of their cause of action under discussion, though inartfully drawn, may properly be construed to be a proceeding to impress upon the property in controversy a constructive trust for the benefit of petitioners.

“It is unquestionably a common and familiar application of ‘their remedial justice’ for courts of equity to force upon the conscience of a party the duty of a trustee in regard to property which has been acquired by artifice or fraud.” Hendrix v. Nunn, 46 Tex. 147.

An administrator holds the title as trustee for those whom he represents. 24 C. J. 637, and authorities there collated; Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852, 854. The estate is trust property in his hands, which .he may not purchase either directly or indirectly. This has long been the rule, and such a purchase by an administrator is now expressly inhibited by statute. Article 3579, R. S. 1925; Nabours v. McCord, 97 Tex. 526, 80 S. W. 595, 598 and authorities cited, 24 C. J. pp. 633 and 634; 39 Cyc. pp. 554-555.

A purchase by the trustee may be set aside without regard to its fairness or the price paid, Nabonrs v. McCord, supra, because “it is poisonous in its consequences,” Crawford County Bank v. Bolton, 87 Ark. 142, 112 S. W. 398, 400. “The rule stands ‘upon one great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity.’ ” Id. See, also, Wipff v. Heder, 6 Tex. Civ. App. 685, 26 S. W. 118. A court of equity, when properly called upon, does not speculate or quibble when an administrator has acquired the title and possession of his trust estate or any part of it while acting in such capacity. It impresses it immediately with a constructive trust in favor of those beneficially entitled to it. A petition which plainly shows such a state of facts is sufficient, though it does not eo nomine call it a trust estate. It is not necessary to plead legal conclusions, nor state conclusions that are already made plain by the facts stated. The petition in the instant case meets this test. The fact that a fraudulent order was procured from a probate court as part of the scheme does not change the character of the action. We regard the allegations as to such order as only a part of the history of the fraud perpetrated. As we interpret this portion of the petition, its facts are sufficient to show that a trust estate was purchased by or for the trustee or administrator. The naked charge of such a purchase, coupled with appropriate allegations of ownership and a prayer for relief, would, it seems, have stated a cause of action upon this particular feature of the case. It is not necessary in such case to set aside the probate orders. They stand as made, but the character of the title which the holder has is stripped of its ostensible, and impressed with its real, character, viz., a trust estate. This has been pointedly held in eases whose facts closely parallel those of the instant case. From some of these we quote:

“The facts alleged in the petition and found to be true by the court below, are sufficient to .establish a fraudulent combination between the executor and his co-defendant to deprive the appellants of their interest in the estate of Mrs. Hill, such as, were the property still in their hands, to authorize a court of equity now to charge it with a trust in their hands and to constitute them trustees for those entitled to the estate. To do this, it is not ■necessary to set aside the deci'ees of the pro-hate court ordering and confirming the sale. [Italics ours.]

“If, for the preservation of the rights of those interested in the estate, it was necessary to set aside the decrees of the probate court through which the sales were made, that could not be done by an original proceeding in the district court, for under the present constitution the district courts have no original jurisdiction or control over the county courts. * * ⅜

“In Rutherford v. Stamper (60 Tex. 450), it was held that a district court in an action of trespass to try title brought in the common form, with no averments which could invoke the equity powers of the court, could not set aside a sale made by an administrator at which he was indirectly the purchaser.

“This would seem to be necessarily true; for, without the averment of such facts as will entitle a plaintiff to equitable relief, no such relief can be granted. It does not follow, however, from this, that upon proper averments a court of equity, while it leaves the legal title standing as directed to be made under the orders of the probate court, will not affect the fraudulent purchaser with a trust and compel him to hold the property as a trustee for those entitled to it. That a court of equity has this power there can be no question, and it matters not whether the fraud which calls it into operation occurred in procuring orders in probate through which sales were directed to be made and confirmed, or in the sales, or in the making of deeds in violation of the order of confirmation.” Fisher v. Wood, 65 Tex. 204, 205.

’ “Unexplained, these allegations would show fraud on the part of the administrator and Lane in the proceedings resulting in the sale of the certificate. In McCampbell v. Durst, 73 Tex. 420, 11 S. W. 380, it was held, in a similar case, that it was a direct proceeding to vacate the deeds, which included the deed of the administrator of Durst’s estate, and that it might be done, if the facts alleged were true, although the orders in probate stood. Without determining, however, whether the facts in this case would authorize the setting aside of the deed, we are clearly of the opinion that they are sufficient to charge the defendants as trustees of the legal title for the benefit of the plaintiff Martha Storer. Martin v. Robinson, 67 Tex. 369-381, 3 S. W. 550; Fisher v. Wood, 65 Tex. 204. As shown by the authorities cited, this does not violate'the principle that the proceedings of a court of competent jurisdiction may not be collaterally attacked; for the proceedings leading to the sale, and investing the purchaser of the land with the legal title, may stand, and yet the holder of the legal title may be constituted a trustee for the benefit of the equitable owner. . The facts alleged in the petition are sufficient to charge, the defendants as trustees of the legal title for the benefit of plaintiff Martha Storer, and the defendants’ demurrer should have been overruled unless it appears from the petition that the •demand is stale.” Storer v. Lane, 1 Tex. .Civ. App. 250, 20 S. W. 852, 854.

See, also, Miller v. Carlton, 2 Tex. Civ. App. 382, 21 S. W. 605, 606; Heidenheimer v. Loring, 6 Tex. Civ. App. 560, 26 S. W. 99, 102; Shirley v. Warfield, 12 Tex. Civ. App. 449, 34 S. W. 390, 393; McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315, 321; Johnston v. Stephens, 49 S.W.(2d) 431 (Supreme Court opinion by Judge Cureton).

This is not strictly a trespass to try title suit, though the first count of the petition is in this form. If it were, the issue tendered would be only a contest between titles with nothing to call the equity powers of the court into action. Obviously in such a case there could be no collateral attack upon the orders of a probate court. Nor could the suit here be sustained if West were an innocent purchaser for value and without notice of the alleged fraud. If, however, West was only the conduit through whom the title passed to the administrator in violation of the statute and contrary to the universally recognized rule prohibiting such transactions, equity sees the title still in fact in the estate, though it has been clothed by the orders of the probate court with the habiliments of the law.

Under our view plaintiffs pleaded a cause of action upon the theory discussed, to one-half the property.

A new feature was introduced into this case by allegations intended to state a cause of action for the recovery of the interest in this estate which the mother of plaintiffs inherited from a minor child who died a few days after the death of its father, Arthur Kreis. Mrs. Arthur Kreis thereafter married one M. M. McGee. Before her death she conveyed this interest to D. E. Kreis for $200. Plaintiffs do not allege that Mrs. McGee died intestate, or that there is no administration pending upon her estate, or its status with reference to debts, nor do they make M. M. McGee, who owns an interest in her separate estate, a party to this suit. Certain allegations of fraud are made, sufficient, we think, to take the case to the jury, if proven, but in our opinion the petition should contain sufficient allegations to show that an estate, and plaintiffs’ interest therein, would pass to plaintiffs if they prevail in their action for cancellation of the deed from Mrs. McGee to D. F. Kreis. The courts are not called upon to do a vain and useless thing, as would be the case if this property had either passed by a will or been absorbed by debts. Nor could the courts grant appropriate relief without the joinder of the parties who own an interest in this property.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Vigorous complaint is made of our failure to pass upon all of appellants’ assignments. Reasons for same appear in the original opinion. However, we have concluded that appellants are entitled to a fuller statement than appears on a former appeal with respect to two of their propositions.

Paragraph 19 of the opinion on the former appeal of this case disposes of the question raised as to the right of plaintiff Emeline Smith to recover by virtue of her acceptance and retention of compromise money given in settlement of a certain judgment therein fully described. Some of the language used by the writer of the opinion on the former appeal is perhaps not altogether accurate or full enough. We understand the rule in Texas to be that the husband is an indispensably necessary party, with certain exceptions, to suits for the recovery of the separate property of the wife. Article 1983, R. S. 1925. Nor is such necessity dispensed with by the broad language used in a subsequently enacted law embodied in article 4614. Barmore v. Darragh (Tex. Civ. App.) 227 S. W. 522.

Being a necessary party to the suit under- the facts of this record, it .logically follows, we think, that the husband’s consent to a settlement was indispensably necessary. 30 C. J. page 748, § 362, and authorities there collated. This feature of the case has apparently remained unnoticed and any future trial will be governed by the above announcement.

A lack of authority in the attorney who filed a suit for Mrs. Smith et al. against the present defendants, prior to the instant one, either to file or compromise same is fully alleged in plaintiffs’ petition, to which exceptions were sustained. Likewise a lack of knowledge, either of the. pendency of such suit or that any judgment therein had been rendered when $409 was paid and retained by Mrs. Smith, is fully set out. That an attorney has no authority to settle a suit merely by virtue of his employment is' well settled. 5 Tex. Jur. page 461, § 52. He must have special authority to do so. Id. An unauthorized compromise may be ratified, however, by a receipt and retention of the benefits of the transaction with knowledge of its character. 5 Tex. Jur. p. 465.

If, with her husband’s consent, and with knowledge of the previous transactions in Childress county to which it related, Mrs. Smith received and retained the $400 paid in settlement of her claim to the land in controversy, she will be held to have ratified the judgment rendered- against her and her husband. If she had no such knowledge, or if her husband failed or refused to consent thereto, any right she had to the lands in controversy remained unaffected thereby.

We will assume that pleadings and rulings thereon will be governed by the above without further elaboration on our part.

A discussion in the original opinion of the cause of action relating to the McGee deed applies also to the cause of action attempted to be alleged with reference to the deed from Mrs. Minerva Kreis to D. F. Kreis, particularly in respect to the lack of allegations that Mrs. Minerva Kreis died intestate.

We decline to be drawn into a lengthy discussion of what we regard as immaterial matters under our holdings herein.

The motion is overruled.


author: STANFORD, Justice.

text:
    FORREST v. BURNS.
    No. 1334.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 16, 1933.
    Rice P. Lynn and Marcus W. Davis, both of San Antonio, for appellant.
    Bliss & Daffan and John Wall, all of San Antonio, for appellee.
   STANFORD, Justice.

This suit was filed by appellee. The record shows that appellant was at the time, and had been for many years, in the business of making small loans to people in necessitous circumstances at a very high rate of interest ranging from 2½ per cent, to 10 per cent, per month. Appellee further alleged that at various times during 1924, and for several years thereafter, appellant made several small loans during said years, and all of said loans were made at an exorbitant rate of interest; that on June 10, 1925, appellee having obtained $600, she paid appellant the sum of $260 on June 13, 1925. Appellant insisted that the $60 over and above the face of the loan represented additional interest; that appellant continued to make loans on such unreasonable rate of interest. About 1926 appellant loaned appellee $250, payable to his order ninety days after date; that appellant required appellee to execute and deliver unto him a demand note for the principal sum of $320, claiming that said amount represented principal and interest due him until said date. However, he retained said note and all other notes which had been executed by appellee ■to appellant. Appellee further alleged that appellant presented appellee with a statement of her account setting forth that she was still indebted to him in the sum of $320, being the amount of the note that she had theretofore executed to him. Appellee further alleges that on the 12th day of December, 1927, a corporation organized under the laws of the republic of Mexico, called the “Cosmos Com-pañía Mexicana de Petróleo, S. A.”, accepted for payment- unto appellee for a valuable consideration a certain bill of exchange for the sum of $1,000 American gold, drawn by her upon said corporation, payable on September 20, 1927, at the Texas State Bank & Trust Company in the city of San Antonio, Tex.; that she, being badly in need of money to support herself and family, took said bill of exchange to appellant on September 30, 1927, and proposed to appellant that, if he would cash said bill of exchange, he might take out of the proceeds the sum of $250 in payment of what she owed him, and that appellant stated to appellee that he would have to have an investigation made as to the liability of said corporation to pay off same when due, and as to its standing generally, and desired appellee to leave said bill of exchange with him for the purpose of making an investigation; that appellee consented to leave said bill of exchange with appellant for said purpose, and that appellee was informed that appellant did cause an investigation to he made, and, instead of proceeding to cash said bill of exchange in accordance with appellee’s proposition, appellant proceeded to attempt to collect the amount of said bill of exchange, and has converted said bill of exchange to his own use and benefit, without the consent of appellee. She further alleged that the said bill of exchange at the time the same was converted by appellant to his own use and benefit was then and there worth the sum of $1,000. She further alleged that she had repeatedly demanded of appellant that he either return said bill of exchange or pay her therefor, but that appellant wholly failed and refused to do either, to the damage of appellee in the sum of $1,000. Thereupon appellee sued appellant and prayed for judgment against him in the sum of $1,000, with interest and damages, including the cancellation of said notes of appellee which appellant had retained.

In appellant’s answer, by way of affirmative relief, he admitted that the bill of exchange described by plaintiff had been left with him, but alleged further that on the 29th day of June, 1925, plaintiff was indebted to him for money loaned, of which said debt there was a balance still due, and other loans which appellee owed him amounting to a large sum. Appellant pleaded further that during the month of June appellee executed and delivered to him a power of attorney, appointing him as her attorney in fact, and therein empowered and authorized defendant to collect any income due plaintiff from any source whatsoever, and likewise by said power of attorney authorized any firm, corporation, or individual in the state of Texas or any other state, who might be indebted to plaintiff in any manner, to pay same to defendant, as her attorney in fact, any money that might be due plaintiff until her debt to defendant should be fully paid. Said power of attorney further provided that.same should be irrevocable until plaintiff’s debt to defendant was paid in full. Said power of attorney further provided that the power therein granted to defendant should extend to all those necessary powers to carry out its intent, including the power to sign plaintiff’s name to any check or instrument necessary to convert into money any sum or thing that may be, or become due plaintiff as income, fee, or commission. Defendant alleged further that plaintiff's debt to defendant is due and unpaid, and at the time the defendant took possession of said bill of exchange, and during all of the time that defendant had possession of said bill of exchange, said debt was due and unpaid. He further alleged that said power of attorney is now, and ever since the 29th day of June, 1925, has been, in full force and effect and irrevocable, and that in taking and retaining possession of said bill of exchange, did so with power and authority granted to him by said power of attorney, and for the purpose and with the intent of making an investigation of the ability of the drawers of said bill of exchange to pay same, if possible, and, out of the proceeds of same, pay and cancel plaintiff’s debt to defendant as alleged in plaintiff’s petition. To this pleading is attached a copy of the power of attorney above referred to, which purports to give appellant power to do anything and everything that he desired to do in order to collect and take into his possession any and all property of appel-lee wherever same might be located, and to retain and use same as long as he (the defendant) might think proper.

The pleading as above set out remained ■in the same condition as above stated for a period of about' one year, when appellant filed bis second amended original answer, in which his defense is that he took the draft in question under his power of attorney given him by appellee and sent it down to Tampico, Mexico, for collection. In this latter pleading appellant contended that he sent said power of attorney “with the consent and knowledge of appellee,” but claimed that appellee was still indebted to him, and that therefore he had the authority under said power of attorney to collect said draft and to apply its proceeds to the payment of his debt, whether she consented to this course or not. In the second amended original answer appellant did not claim that appellee owed him one cent, but that he had taken said draft and had sent it down to Tampico, Mexico, for collection under the express instructions of appellee.

The case was submitted to the jury on special issues; the first special issue being as follows: “Did the defendant Forrest covert the draft referred, to in the petition and introduced in evidence?” - To which the jury replied, “Tes.”

In connection with this special issue, the court instructed the jury as follows:

“In connection .with question 1, you are instructed that the conversion of personal property means either the appropriation of it for the use and benefit of the person appropriating it and without the consent of the owner, or else the unlawful detention of the property from the owner without his or her corn sent.”

Special Issue No. 2: “If you answer ‘Yes’ to question No. 1, but only if you so answer the same, then what was the fair market value of said draft at' the time of such conversion?” To which the jury answered: “$1,000.00.”

On the above answers, the court rendered judgment in favor of appellee for the sum of $1,257.50.

Opinion.

Appellant requested only one special issue, which was given by the trial court. This being true, and appellant having made no objection or exception to the court’s charge, all errors, if any, in said charge will be considered as waived. See article 2185, Revised Civil Statutes; Jones v. Wichita Valley R. Co. (Tex. Civ. App.) 195 S. W. 890; Heidenheimer, Strassburger & Co. v. H. & T. C. R. Co. (Tex. Civ. App.) 197 S. W. 886; Taylor v. Lafevers (Tex. Civ. App.) 198 S. W. 651; Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851; Queen v. Turman (Tex. Civ. App.) 241 S. W. 786.

Appellant’s brief recites the following:

“Statement of Propositions on Which Appeal is Predicated.

“1. The original cause of action was for the conversion by defendant of a certain draft or bill of exchange and was based wholly on said áraft or bill of exchange. The pleadings of plaintiff as set forth in her amended original petition contains matters introducing and seeking to set forth a new and independent cause of action or a misjoinder of causes of action, which cause or causes of action, if any she had, were barred by the two and four year statutes of limitation of the State of Texas, and in introducing or allowing the introduction of testimony by the plaintiff in person as a witness concerning loans, their repayment and/or overpayment as the same were not in issue, and such testimony and pleading was prejudicial to defendant’s defense or plaintiff’s cause of action for conversion; and which showed ratification by acquiescence with knowledge of the fraud, if any, alleged to have been practiced upon plaintiff.” (Assignments of error 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11.)

In briefing under our law, propositions, if any, are usually based upon assignments of error, and such assignments followed by propositions that point out distinctly the proposition intended to be discussed. In this case the supposed proposition raises in fact about five or six different and distinct propositions, and it is not permissible in making such brief for a number of propositions to be stated together. Such procedure is confusing and should not be, under our procedure, tolerated. To treat said propositions as assignments of error would not help the situation. Said proposition is followed by eleven assignments of error, but this, instead of aiding the propositions, only served to increase the confusion We do not think that appellant’s supposed propositions are.entitled to be considered. However, we will say that, if the above propositions should be considered, this ease should not be reversed. The rules of our procedure are very liberal, and, in ap-pellee’s original petition, same was based exclusively upon the draft as contended by appellant. The record shows that said original petition was duly amended by the filing of ap-pellee’s first amended original petition, and the cause of action therein stated included, not only an action for damages for conversion of the draft, but was for the cancellation of numerous notes which had been given to appellant by appellee, and many of them paid by appellee, but said notes still retained by appellant. The record shows further that all of these notes were put in evidence on the trial, and it developed that appellee was not indebted to appellant, but that appellant was indebted to appellee in a small amount. This amount being so small, appellee’s right to recover from appellant by reason of said notes was abandoned by appellee, and only the right of appellee to recover for conversion of said draft for $1,000 was presented to the jury. This being true, appellant could not have been injured by reason of the matters abandoned.

Appellant’s second purported proposition is as follows: “At the conclusion of the evidence for plaintiff, the defendant presented his motion that the court peremptorily instruct the jury to return a verdict finding generally for defendant, and after the close of all evidence the motion was again presented. Said motion was twice refused and an exception allowed.” (Assignment of error 12.)

This is neither an assignment of error nor a proposition, and is not entitled to consideration, but in deference to appellant’s insistence will say: Both appellant and appellee have filed supplemental briefs. Appellant’s principal contention is that the court erred in refusing to instruct a verdict for the appellant. The draft which appellant is alleged to have converted was dated September 2, 1927 and was due November 20, 1927. It was accepted by the drawee soon after it was drawn. After it had been accepted, appellee took the draft to appellant to get him to cash it. and pay her the money. He (appellant) suggested that she take the draft to Bradstreet for the purpose of having that company make an investigation. This she did, and Bradstreet gave her a receipt for the draft, and she left same with Bradstreet Company for said investigation. She did not give Bradstreet any authority to deliver said draft to Forrest or any one else. After waiting what she thought was a reasonable time, she went ■to Bradstreet to get said draft, and was informed that they had delivered said draft to Mr. Forrest. She then went to appellant, Forrest, to get the draft or the proceeds of same, but appellant would not let her have the draft, and stated that he had sent it to be collected through a bank, not stating what bank. Appellant having positively refused to consent for the draft to be returned to her, she then wired the drawee not to pay the money on the draft to appellant. The draft was then returned to Mr. Forrest. Appellee testified that she went to appellant, Forrest, after the draft had been returned to him, and he refused to give her. the draft. Bradstreet’s investigation of the responsibility of the drawee was completed October 7,1927. Appellee had a receipt given by Bradstreet to appellee for the return of the draft, not to Forrest, but to ap-pellee, so it is apparent by reason of the negligent or wrongful conduct of the Bradstreet Company and Forrest said draft came into the hands of appellant, Forrest. Appellee never delivered the draft to Forrest, and never at any time authorized Forrest to send it in for collection. The only thing Caldwell, of the Bradstreet Company, told her, was that Mr. Forrest had taken possession of the draft, and she (appellee) testified very positively that she never gave Forrest any authority to collect the draft or make any other disposition of it. Appellant, Forrest, does not claim that the draft was ever placed in his hands for collection, until a few days before it was due he claims that appellee came up and told him to send it in for collection. This claim on his part is completely refuted by the fact that, as soon as appellee learned that Bradstreet had delivered the draft to appellant, she went and demanded of appellant to return it to her, and later,, or at the satae time, when appellant told her he had sent the draft in for collection, she wired the drawee not to pay any money on the draft to appellant. We think the record shows very clearly that appellant came wrongfully into possession of the draft, and exercised wrongful dominion over it, thereby depriving appellee of her right to its possession, and that, by reason of the wrongful acts of appellant and the Bradstreet Company in wrongfully withholding from appellee the possession of said draft, appellant thereby converted same to his own use and benefit. Appellee was never able to get possession of said draft by reason of its conversion by appellant as above stated.

We think there is evidence in the record sufficient to show that appellant did convert said draft to his own use and benefit, and the court was correct in submitting such issue to the jury, and the jury was correct in finding on such issue for appellee. We think also that the court’s charge defining “conversion” and submitting said issue to the jury was correct, and said issue having been submitted without any objection or criticism on the part of appellant, all errors, if any, in said charge were thereby waived. Queen v. Turman (Tex. Civ. App.) 241 S. W. 786; Payne v. Harris (Tex. Com. App.) 241 S. W. 1008; Thomason v. Hawley (Tex. Civ. App.) 242 S. W. 521; Thomason v. Powers (Tex. Civ. App.) 242 S. W. 525; Lancaster v. Keller (Tex. Civ. App.) 244 S. W. 1094; Southern Casualty Co. v. Welch Motor Co. (Tex. Civ. App.) 291 S. W. 272; Heid Bros. v. Bray (Tex. Civ. App.) 7 S.W.(2d) 165; Port City Lumber Co. v. Markell (Tex. Civ. App.) 9 S.W.(2d) 449; Robertson v. Vernon (Tex. Com. App.) 12 S.W.(2d) 991.

Appellant also complains that there was no evidence offered to show the solvency of the drawee or acceptor of the draft, and without such evidence the verdict of the jury and the judgment of the lower court were without sufficient foundation, and that it was necessary for appellee to show solvency of the drawee. This contention is not tenable. Ramsey v. Hurley, 72 Tex. 194, 12 S. W. pages 56-59. Our Supreme Court in said case stated: “The ordinary measure of damages in such eases is the amount prima facie due on the face of the claim. If the claim for the conversion of which the suit is brought is really of less value than its face it devolves upon the defendant to prove that fact.”

See, also, Kirkpatrick v. San Angelo National Bank (Tex. Civ. App.) 148 S. W. 362; Morris v. Smith, 51 Tex. Civ. App. 357, 112 S. W. 130; France v. Gibson (Tex. Civ. App.) 101 S. W. 536; Knipper v. Blumenthal, 107 Mo. 665, 18 S. W. 23.

All of appellant’s contentions are overruled, and the judgment of the trial court is hereby affirmed.


author: LEDDY, Judge.

text:
    GULF PRODUCTION COMPANY, Appellant, v. Mose GRANGER et al., Appellees.
    Motion No. 10552; No. 1344—5890.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.
    For original opinion, see 55 S.(2d) 531.
   LEDDY, Judge.

It is strenuously insisted in appellant’s motion for rehearing that the Gulf Production Company and its lessor did not prevail against the Humble Company' and its lessor within the meaning of the contract, and that this court should so hold.

It is not within the province of this court to determine such question, as the same was not submitted for our consideration in the certificate presented by the honorable Court of Civil Appeals. The only question submitted to us in the certificate concerning the construction of the contract in question was whether the Kishi suit was settled or compromised so as to relieve appellant of liability under its contract. Whether appellant was in fact liable under another provision of the contract was not considered by us, and we expressed no opinion thereon.

We have carefully considered the argument presented in the motion, but have not been convinced that the questions submitted were incorrectly answered in our original opinion.

We recommend that appellant’s motion for rehearing be overruled.


author: CALHOUN, Judge.

text:
    William Beach BELL v. STATE.
    No. 15727.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    O. H. Atchley and O. B. Pirkey, both of New Boston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, murder; the punishment, eight years in the penitentiary.

An affidavit in due form has been filed in this court showing that the appellant, since perfecting his appeal, has died.

The appeal is abated.

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:
    T. J. BUCKLAN v. STATE.
    No. 15901.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Frank Morris and J. J. Newman, both of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of fifteen years. The appellant’s conviction is cumulative of the sentence under which he is already confined.

There is no statement of facts. No irregularity in the procedure has been perceived. There are some exceptions to the charge of the court, hut they cannot be appraised, in the absence of the facts that were before -the jury.

The judgment is affirmed.


author: LATTIMORE, Judge. HAWKINS, Judge.

text:
    Roy BURLESON v. STATE.
    No. 15838.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.
    M. L. Bennett, of Normangee, and J. T. Ryan, of Centerville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft of hogs; punishment, two years in the penitentiary.

The record contains neither statement of facts nor bills of exception. The indictment, the charge of the court, the judgment, and sentence appear regular.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

In his motion for rehearing, appellant insists that the evidence is insufficient to support the verdict. It seems strange that such matter should be urged in the face of the fact that no evidence presented in the trial of the case is before this court. In the absence of a statement of facts, we must presume that the verdict found support in the evidence.

The motion for rehearing is overruled.


author: HAWKINS, Judge.

text:
    C. HALL v. STATE.
    No. 15661.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    John J. Sargent, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Appellant and John Lee were jointly indicted for selling intoxicating liquor. Appellant was alone upon trial which resulted in conviction with the punishment assessed at one year in the penitentiary.

No bills of exception are brought forward. In an amended motion for new trial it is alleged that the jury in their retirement discussed the failure of appellant to testify. This motion was not verified. In the order overruling the motion, it is recited that evidence was heard. No testimony regarding the averment of the jury’s misconduct is brought forward. Presumptively the order of the court was correct. Nothing in the record indicates.to the contrary.

The alleged purchaser testified positively that he bought a pint of whisky from appellant and paid him for it. Appellant did not testify. The witnesses tendered by him gave evidence which, if believed, would have established an alibi. This issue was submitted, and on conflicting testimony was settled by the jury in favor of the state. No errors appear from the record.

The judgment is affirmed.


text:
    Claude JOHNSON v. STATE.
    No. 15847.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    W. B. Thomas, of Groveton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is forgery; penalty assessed at confinement in the penitentiary for a period of two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


author: LATTIMORE,- Judge.

text:
    George LEVITAN v. STATE.
    No. 15882.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    H. R. Bishop, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE,- Judge.

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

The'record is here without a statement of facts or bill of exception. The indictment, the charge of the court, the judgment, and sentence being regular, the judgment will be affirmed.


text:
    Eddie McGREW and Major Gibson v. STATE.
    No. 15888.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Dick Young, of Houston, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Robbery is the offense; penalty assessed at confinement in the penitentiary for a period of twenty years.

Upon the written request of the appellants, duly verified by their affidavits, the appeal is dismissed.


text:
    Tommy POOL v. STATE.
    No. 15637.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Chas. T. Rowland, of Fort Worth, for appellant.
    Cecil C. Rotsch and Stanley Bransford, Assts. Crim. Dist. Atty., both of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is aggravated assault; penalty assessed at a fine of $50.

The trial was had in the county court at law. Appellant contends that, under article '5,-f 16, of the Constitution, the district court had exclusive jurisdiction of the offense of aggravated assault. The exact question was before the court in the case of Allen v. State (Tex. •Ci’. App.) 54 S.W.(2d) 810. The point was decided adversely to the appellant. The same rule would prevail in the present appeal.

The judgment is affirmed.


text:
    Harry ROBERTS v. STATE.
    No. 15632.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, -for the State.
   MORROW, Presiding Judge.

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

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Paul SCHENK v. STATE.
    No. 15896.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Davenport & Crain, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The indictment is regular. The record is before us without statement of facts and bills of exception. No error has been perceived or pointed out.

There is nothing in the motion for new trial that can demand attention, in the absence of the statement of facts.

The judgment is affirmed.


text:
    C. THEUMAN v. STATE.
    No. 15725.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for forgery of a certificate of acknowledgment to an instrument affecting land. Upon a plea of guilty, punishment was assessed by the jury at ten years’ confinement in the penitentiary.

Appellant has filed his affidavit with this court advising that he wishes to proceed no further with the appeal, and, in compliance with said request, the appeal is dismissed.


text:
    George TROSPER v. STATE.
    No. 15890.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    R. T. Correll, of Perryton, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

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

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. 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.


text:
    Eli WEBB v. STATE.
    No. 15873.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    E. B. Lewis, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The record is here without a statement of facts or bill of exception. The indictment, the charge of the court, the judgment, and sentence being. regular, the judgment will be affirmed.


author: CHRISTIAN, Judge.

text:
    Shug WILLIAMS v. STATE.
    No. 15886.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    P. O. French, of Fairfield, and A. B. Gep-pert, of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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: WALKER, Chief Justice.

text:
    Ex parte Mary Anna ECKERT and Robert Louis Eckert, Minors.
    No. 2357.
    Court of Civil Appeals of Texas. Beaumont.
    March 2, 1933.
    C. L. Bell and Spencer, Rogers, Lewis & Slatton, all of San Antonio, for appellant.
    Whipple & Bedford, of San Antonio, for ap-pellee.
   WALKER, Chief Justice.

This case is before us without briefs by either party. It is therefore ordered that the appeal be, and the same is hereby, dismissed. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.(2d) 811; United States Fidelity & Guaranty Co. v. Hardy (Tex. Civ. App.) 24 S. W.(2d) 462.

Appeal dismissed.