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

text:
    GOODE v. STATE.
    No. 14658.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1932.
    Rehearing Granted March 29, 1933.
    Joe S. Gambill and Sullivan, Speer & Minor, all of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

A storage warehouse was burglarized on the night of August 26, 1929, and a new four-door, three-window Ford sedan car was taken therefrom. The house was entered by sawing the lock. The,next morning the sawed lock was found in the grass near the door. The car was taken on Monday night. It was found in Breckenridge, Tex., some two hundred miles west of Fort Worth, according to the state witnesses, on the Wednesday following. The state introduced one Serren who testified that he and appellant burglarized the house in question; that, after they went to the house, appellant went out and came back presently with a hack saw which was used by them in sawing off the lock. He detailed how they pushed the car out of the place, got in it, and went toward Fort Worth. He said he went to sleep in the car, woke up the next morning west of Fort Worth on the road to Breckenridge, got out of the car, and left it in charge of appellant, and came on back to Denton. The state introduced witnesses who saw appellant sitting in a car in Breeken-ridge, Tex., answering in every way the description of the alleged stolen car, and that this was a day or two before the sheriff from. Denton county came to Breckenridge. These witnesses said appellant’s brother-in-law was near by at the time they saw appellant in said car. Mr. Cultra, a car storage man doing business 'in Breckenridge, was introduced, and testified that appellant and another man came to his place in the alleged stolen car and stored it. He said the other man was driving the car. He delivered this car to the sheriff of Denton county who came out in a day or two and got it. The fenders of the car were described as being slightly bent and scarred. The car found by the sheriff in possession of Mr. Cultra was identified by the owner as the one taken from the.burglarized house. The evidence appears ample to support the conviction. Appellant’s counsel has filed an exhaustive brief presenting the various questions raised.

AVe find only one bill of exception in the record. Its complaint is that the court erred in the hearing of the motion for new trial, in that he permitted a juror to testify orally to certain facts which evidently appellant thought should be established otherwise. One of the allegations in the motion for new trial was that juror Kyle had made false statements in his examination upon his voir dire. It appears from the record that general questions were asked the jurors as to whether they were or had been peace officers or deputy.sheriffs, and that juror Kyle, in common with the others, answered said question in the negative. It was alleged in the motion for new trial that this statement was untrue and misleading. There were also allegations of misconduct on the part of the jury, and the court heard evidence in connection with the motion for new trial. Mr. Kyle was permitted to testify that he was not a deputy sheriff, and had never been a deputy sheriff, and had never been sworn in as deputy sheriff, and had never been elected to any office. We perceive no error in the action of the court in allowing the witness to answer these questions. In presenting this contention in his brief appellant cites Meador v. State, 94 Tex. Cr. R. 608, 253 S. W. 297; Bolt v. State, 112 Tex. Cr. R. 267, 16 S.W.(2d) 235, and authorities collated on pages 247 and 313 of 16 R. C. L. We are in harmony with the general principle that false material misstatements by a prospective juror made when questioned upon his voir dire might call for the granting of a new trial, but are of opinion that nothing appears in the instant case supporting the proposition that Mr. Kyle made any false statement. In addition to what appears to the bill of exception, we observe that the sheriff of the county testified on said hearing that Kyle had never been a deputy sheriff. He said that Kyle had accompanied him upon one liquor raid, but, as far as he knew, this was the only aid he had ever furnished to the sheriff’s office.

We have carefully examined the statement of facts heard by the court upon the hearing of the motion for new trial, in view of appellant’s complaint in said motion of a separation of the jury, and that members of the jury talked.with outside persons after their impanelment, but are not in accord with either contention. It was shown that two rooms in the courthouse at Denton were-equipped with locks, one on the second floor where the jury deliberated in the daytime, and one on the third floor where they slept when held overnight. It appears that the trial began one morning and was not concluded until the afternoon of the day following. That night one of the jurors complained of illness, and was taken from the second floor where the other eleven jurors were left to the third floor by an officer and there locked in the sleeping room usually occupied by the jurors. Something like an hour afterward the other jurors were conducted to the same sleeping room. They were not out of the building at any time. The record affirmatively shows that no one approached or conversed with the ill juror or the others during the interim. Similar facts in principle were held not to constitute a separation of the jury such as would call for reversal in Wood v. State, 84 Tex. Cr. R. 187, 206 S. W. 349. See, also, Jones v. State, 69 Tex. Cr. R. 447, 153 S. W. 897; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Chant v. State, 73 Tex. Cr. 345, 166 S. W. 513; Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484; Tucker v. State, 115 Tex. Cr. R. 41, 26 S.W.(2d) 638.

The record entirely fails to show any communication between the members of the jury and outside persons further than that a man came up to them on the street or in a restaurant and said, “Good morning,” and made some remark about the weather. When some one of the jurors said to him that they were a jury, he apologized and went away without further speech. We do not think this any violation of the law forbidding communications between the jury and persons not members thereof. Hamilton v. State, 83 Tex. Cr. R. 90, 201 S. W. 1009; Patterson v. State, 106 Tex. Cr. R. 553, 293 S. W. 570; Newton v. State, 114 Tex. Cr. R. 537, 26 S.W.(2d) 233.

Complaint is made, based on ail exception thereto, of paragraph 6 of the court’s charge, which is as follows: “You are instructed that the witness Raymond Serren is an accomplice. You cannot convict the defendant upon the testimony of the said witness Raymond Serren unless you believe that his testimony is true and that it shows that the defendant is guilty of the offense charged against him; nor unless you further believe that there is other evidence in the case, aside from, and independent of, the testimony of the said Raymond Serren, corroborative of his testimony, and tending to connect the defendant with the commission of the -offense charged.”

■We do not think this objectionable as conveying to the jury the court’s opinion that appellant participated in the crime, nor that it imposes a less burden upon the state in respect to the corroboration of the accomplice than the law contemplates, but, if any doubt could arise in this regard, it would be removed by the fact that two special charges asked were given, in one of which the jury were informed that it was not intended in paragraph 6 of the charge to convey the idea to the jury that, because Serren took part in an offense, defendant was also a party thereto. The other charge supplemented the main charge on the question of corroboration.

Appellant als.o urges that there is not sufficient evidence to corroborate Serren. We have carefully examined the statement of facts. Without attempting to set out in detail all the corroborating facts, it was in testimony that appellant, Serren, and another party were seen together in Denton on Monday night of the burglary; that the lock of the burglarized building was sawed; that some time that night between 8:30 and 10 o’clock appellant went to Mr. Stowe and borrowed from him a hack saw; that either the day following the burglary, or the next day, appellant was seen in Breckenridge sitting in a car which answered every description of the alleged stolen car, his brother-in-law being near; that on one of these days appellant and another party, not answering the description of appellant’s brother-in-law, took the alleged stolen car to Oultra’s storage house and left it there, the other man driving the car; that the'alleged stolen car was recovered by the sheriff of Denton county from the possession of Mr. Gultra Wednesday evening after the burglary on Monday night. Appellant did not testify ,nor introduce any evidence seriously questioning any of the above matters.

We think the evidence amply sufficient to corroborate the accomplice.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

In the ninth paragraph of appellant’s amended motion for new trial appellant avers that “T. E. Farmer and Geo. Harris were guilty of misconduct as jurors during the trial of said cause, in that after they were duly impanelled as jurors and before they rendered a verdict herein, on the' North side of the Court Square and at a time when the other ten jurors and the officer in whose custody they were, were not present nor within hearing of such conversation, talked to a person whose name to defendant is unknown and about which conversation defendant has not been apprised, nor is he in a position to ascertain the subject discussed between said parties.”

Upon the hearing of the motion in support of the foregoing averment appellant offered the testimony of E. Kyle, who was a member of the jury. His testimony is as follows: “While we were out in front of the café there he (referring to Fred Everett, another member of the jury) called my attention to someone talking to some of the jurors. He said, ‘Just look there, someone is talking to one of the jurors.’ He just called my attention to it, I do not know who he was, he was an old-like gentleman talking to Mr. Farmer. That was next to the restaurant there, and we were out in the street. He talked to Mr. Farmer and then went across on the other side and talked to' Mr. Harris. I could not hear what was said and would not have paid any attention to it unless Mr. Everett had called my attention to it * * * I said that over on the north side at the American Café there was someone speaking to one or two of the jurors, but I don’t know who it was ⅜ ⅜ ⅝ When the talk was had over there in front of the restaurant, whatever was said by whoever it was that said it, I did not understand what was said. I was out in the street at the time and that happened back on the sidewalk.”

The state introduced Mr. Farmer, who testified that he had not discussed the case with any person over about the American Café during the time the casé was on trial, but said that one morning after they had come down the stairway Judge Fulton came along and said, “Good morning,” and made some remark about the weather; that he, the juror, moved on and made no answer. Farmer said he did not think any of the jurors were out in thq street at the time; that he knew Mr. Kyle and Mr. Everett; but did not know where they were when this incident occurred. He said he thought Mr. Harris, another one of the jurors, was just behind him as they were coming down- the stairway. The juror further said that Mr. Fulton, to whom he referred, was an elderly man. The state also called Mr. Harris. He testified that in front of the American Café Mr. Fulton started to ask him a question while he was standing on the sidewalk, but that Mr. Smith stopped him. He further testified: “I do not know what he started to ask me. The reason I know that he started to ask me a question is because he walked up there and looked like he was going to. I do not remember whether he said ‘Good' morning,’ and asked me something about the weather or not. I don’t think Mr. Fulton spoke to Mr. Farmer * * * When Mr. Smith told him we were on the jury he begged our pardon and we started on to the court house.”

The Mr. Smith referred to in the testimony of the juror was the deputy sheriff in charge of the jury. If Mr. Ky-le was mistaken in swearing that the outsider talked to Mr. Harris, Mr. Smith could have been called by the state to support Mr. I-Iarris in his version of the matter. He was not called, and his absence> was in no way accounted for. It seems' to have been established that Mr. Fulton did have some communication with the juror Farmer.' Mr. Fulton'-was not called to' give his version of the matter, and no explanation is made by the state why this was not done. It does appear from the evidence heard upon the motion that an effort was made to get the juror Everett by calling him over the telephone, and that Everett had promised to come as soon as he could get there. 1-Ie seems not to have arrived in time to get his evidence in the record.

Article 671, O. C. P., reads as follows: “No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has- been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate. No person shall be permitted to converse with the juror about the ease on trial.”

Subdivision 7 of article 753, O. O. P., makes it a ground for new trial in a felony case “where a juror has conversed with any person in regard to the case.”

When it is shown that the mandates of the statutes have been violated by some outsider conversing with a member of the jury, especially, separate and apart from the other jurors, it has been held that the presumption of injury will arise, and that the burden is upon the state to show that no injury occurred. It has been further held that this burden cannot ordinarily be discharged by the testimony alone of the juror, conversed with, but that, if the outsider is available to the state, he should be called to aid in discharging the burden. See Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 873, 123 Am. St. Rep. 889; Newman v. State, 91 Tex. Cr. R. 559, 240 S. W. 312; Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514, 518. Many other cases will be found referred to and reviewed in the authorities cited.

We quote from Early’s Case as follows: “None of the parties conversed with by jurors were summoned or examined. Heretofore we have held with reference to the separation of jurors that these would be liable if tampered with to suppress the fact, and that therefore little reliance should be placed on their testimony, and the same rule would apply with reference to conversations. S'o that the necessity for the examination of others than the jurors with whom such conversations may have occurred seems to be necessary. This was not done. We accordingly hold that the burden thus shifted to the state was not discharged'by it.”

We quote from the opinion in the Tous-saint Case: “The persons with whom the various jurors talked over the telephone during their retirement have not been produced; nor their absence accounted for. The women with whom' the jurors talked in person were not used as witnesses to give their version of the conversation. One of these jurors was not called to show the nature of the conversation in which he took part. Nothing appears In the record to indicate that these women or this juror were not available, nor to indicate that the persons with whom the jurors claimed to have talked over the telephone could not be produced. It having been conclusively shown that the statutes were violated, the burden was upon the state to meet the presumption of injury by the introduction of such testimony as was available to it. In the absence of so doing, the rule illustrated by the unbroken line of precedents must operate against the verdict. Early v. State, 51 Tex. Cr. R. 391, 103 S. W. 868, 123 Am. St. Rep. 889, and other cases to which we have adverted above. The case of Latham v. State, 75 Tex. Cr. R. 575, 172 S. W. 797, 803, we do not construe as overturning this rule. To so construe it would bring it in conflict with the undoubted weight of authority.”

It is appellant’s contention that under the facts developed upon the hearing of the motion for new trial our holding in the original opinion in the present case is contrary to that in the Early, Newman, Toussaint, and other cases, supra, and does, in effect, overrule them, if the opinion is permitted to stand. It is further the contention that the three cases cited in the original opinion upon the point in question, when analyzed, are not out of harmony with the general rule heretofore announced by this court as controlling.

In Hamilton v. State, 83 Tex. Cr. R. 90, 201 S. W. 1009, 1010, it appeared that an outsider, an old gentleman, had inadvertently gotten among the jurors in the jury box, and had a whispered conversation, and, upon learning he was out of place, excused himself and left. It does not appear from the opinion in that case what evidence was heard by the court upon the point, but it is stated: “The conclusion of the trial judge on hearing the evidence that there was no injurious conversation by members of the jury with an outsider is sustained-by the evidence introduced thereon.”

It might be inferred from what was said in that case that the outsider went into the jury box wlfen all the jurors were present, and that it occurred in open court; or the outsider may have testified upon the hearing of the matter upon the motion for new trial as to what he had said.

In Patterson v. State, 106 Tex. Cr. R. 553, 293 S. W. 570, the point was that a juror had conversed with a party by the name of Gools-by. Upon the motion ior new trial Goolsby testified as to the subject of this conversation, and the burden of proof to show that there was no injury was thus discharged.

In Newton v. State, 114 Tex. Cr. R. 537, 26 S.W.(2d) 233, 235, it is clear that the facts presented an unusual situation, in which a waiter served the jury with sandwiches, and whatever occurred between the waiter and the jurors happened when they were all present. It was shown by the jurors that, when one of the jurors asked the waiter what the bill was, he presented it to the juror and the waiter said nothing. The Newton Case was regarded as presenting an exception to the general rule, in not relating to an alleged conversation between an outsider and some individual juror, separate and apart from the others. It is made clear that it was not the intention by the opinion in the Newton Case to depart from the holding announced in the Toussaint Case, supra. We quote from Newton’s Case as follows: "Any intention to depart from the holding of this court in Toussaint v. State, supra, and the authorities there collated, is disclaimed. The article of the statute referred to in those cases is mandatory, and, where the evidence shows a violation of its express command, the presumption of injury obtains. In such case, unless the presumption of injury is overcome by evidence, it is incumbent upon the trial court to grant a new trial. And, ordinarily, where a juror converses with an outsider, it is the rule that the person with whom he talked, must be presented to rebut the presumption of injury; the decisions being to the effect that the testimony of the juror alone is not sufficient. Toussaint v. State, supra.”

The incident referred to by the juror ICyle may have been as innocent as indicated by the testimony of the juror Farmer; if so, it is unfortunate that the state failed to call the officer who was in charge of the jury, and Mr. Fulton, to give their versions of the conversation. In failing to do so, however, or to account for their absence, the state failed to discharge the burden of proof cast upon it by the incident.

After a careful analysis of the testimony heard upon the motion for new trial, and a further review and analysis of the authorities. we conclude we were in error in our original opinion, as it relates to the subject discussed.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

MORROW, Presiding Judge

(concurring).

When jurors communicate with a third person without the consent of the court, the burden is upon the state to show that no injury occurred to the accused. See Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; Bryan v. State, 63 Tex. Cr. R. 200, 139 S. W. 981. In the interpretation of article 753, subd. 7, and article 671, C. C. P., the court, in the unanimous opinion written by Judge Henderson in the case of McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 496, announced the rule that, where there was a violation of the statutory command, the burden was upon the state to show an absence of injury. The rule was restated and emphasized in the case of Early v. State, 51 Tex. Cr. R. 382 (opinion on motion for rehearing, page 390), 103 S. W. 868, 873, 123 Am. St. Rep. 889. The rule has been sanctioned in many cases, among them McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Wood v. State, 84 Tex. Cr. R. 187, 206 S. W. 349; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405; Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514; Rushnefsky v. State, 92 Tex. Cr. R. 433, 244 S. W. 372; Newman v. State, 91 Tex. Cr. R. 559, 240 S. W. 312; Faulk v. State, 106 Tex. Cr. R. 505, 293 S. W. 1110. See, also, 22 A. L. R. 272, note.

In the present instance, it is made to appear from the evidence that Smith, the deputy sheriff, juror Everett, and Judge Fulton were cognizant of the facts hearing upon the issue involved, namely, the remarks in the presence of a member of the jury. The state failed to call either of these persons, but relied entirely upon the declaration of jurors Farmer and Harris to overcome the presumption of injury. The conclusion that the burden resting upon the state was thus discharged would, in the opinion of the writer, practically abrogate the rule heretofore regarded and often declared essential. In the decisions of this court to which reference has been made above, the statute in question (article 753, subd. 7, C. C. P.) has been interpreted, and, since its interpretation, has been re-enacted without change, thus giving to the interpretation the force of legislative adoption. See Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 2, § 399; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871.

The affirmance of this judgment upon the evidence before the court would, in the opinion of the writer, unsettle a principle of law not only of long standing but of undoubted soundness, that is, that, where unauthorized communications with jurors in a case are shown to have taken place, it is incumbent upon the state to make clear to the court that the communications were not of a harmful nature. The burden thus resting upon the state demands diligence which is not met when, as in the present case, the offending persons, that is, the persons communicating with the jurors, are not called to give testimony and no sufficient reason is given for the failure to call them. The maintenance of this principle, bottomed on the duty of the courts to be diligent in the maintenance of the purity of the verdict of the jury, far outweighs the inconvenience incident to a retrial of the appellant in this appeal. For these reasons, I concur in the opinion of Judge HAWKINS which is on file with the record.

LATTIMORE, Judge

(dissenting).

My associates are reversing this ease for alleged misconduct of the jury, that is, because it was claimed that the jurymen were conversing with, or being conversed with by, an outsider. I emphatically dissent, and assert: First, that all that was said by or to any juror was in testimony before the trial court when he passed on the motion for new trial; second, that the testimony heard entirely refuted and overcome any idea that the case wag referred to or discussed; third, that it showed but the innocent act of an old man coming down the street to where a group of other men were, to whom he spoke, saying “Good morning,” and making some remark about the weather; fourth, that not a single juror said a word to him; fifth, that, when told by the officer in charge that this was a jury, the old man apologized, and that this ended the episode; sixth, that in holding this not a sufficient showing to call for the granting of a new trial under subdivisions 7 and 8 of article 753, O. O. P., the trial court acted correctly, and within his discretion.

The record on the point involved is short and uiidisputed. Appellant introduced one juror Kyle on the hearing of the motion for new trial, who swore that, while the jury were in front of a café, juror Everett called his attention to an old like gentleman talking to Mr. Parmer (another juror). Kyle testified: “He talked to Mr. Parmer, and then went across on the other side and talked to Mr. Harris (another juror). I couldn’t hear what was said.” Cross-examined Kyle testified: “I said that over on the north side of the American Café there was some one speaking to one or two of the jurors, but I don’t know who the person was or anything he said.” This was all the testimony offered by appellant in support of his claimed conversation. I take it that the juror spoke the absolute truth in what he said in his cross-examination, and that his use of the word “talked” in his direct testimony was but a careless statement of what occurred.

In rebuttal the state called juror Parmer, who pointedly swore that he did not discuss this case with any person near the American Café while the case was on trial. Cross-examined by appellant, he testified that, when the jury came out of the café, Judge Pulton, an elderly man, came along and saluted, and said, “Good morning,” and made some remark about the weather; that witness was the closest juror to Pulton, but he made no reply or answer to Pulton, and passed on withoüt saying anything to him. Juror Harris was’ near witness Parmer, but Parmer did not know who Pulton was saluting, or whether he greeted Harris or not. The state introduced juror Harris, who testified that no one during said trial spoke of the case to him. Cross-examined, he testified that, after eating breakfast at the American Café, the deputy sheriff went to the door and stood until the jurors got out. Harris said when he walked out he stepped aside and was looking in a window, and Mr. Pulton came along and started to speak to him, and Deputy Sheriff Smith stopped him. When Mr. Smith told Mr. Pulton these men were the jury, Pulton apologized, and the jury went on to the courthouse.

Article 671, C. C. P., directs that no person shall be permitted to converse with a juror after he has been impaneled, except in certain instances, and that no person shall be permitted to converse witht a juror about the case on trial. This article was part of the old Code, as was a later article, 753, C. C. P., which deals directly and specifically with new trials, and starts out with this declaration: “New'trials, in cases of felony, shall be granted for the following causes, and for no other.” Subdivisions 7 and 8 of said article are as follows:

“7. Where the jury, after having retired to deliberate upon a case, have received other testimony; or where a juror has conversed with any person in regard to the case. * * *
“8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial. It shall be competent to prove such misconduct by the voluntary affidavit of a juror; and tbe verdict may, in like manner by sustained by such affidavit.”

The same authors having written article 671, supra, and article 753, supra, it must be at once apparent that they intended to bring forward into said subdivision 7 so much of article 671 as would and should be ground for new trial in a felony case, viz.: “Where a juror has conversed with any person in regard to the case,” and that in any given case the determination of an issue made as to whether any person talked to a juror, or was talked to by a juror — when relied on as ground for new trial — must be governed by the rules laid down in subdivision 8 of said article.

In said subdivision 8 the Legislature plainly say that misconduct by a jury may be proven by the voluntary affidavit of a juror, and that the verdict may be sustained in like manner. Evidently responding to this, appellant sought to prove misconduct by the testimony alone of juror Kyle. Having based his ease on the testimony of one juror alone, and said juror having testified that all he saw take place was that an old man spoke to jurors Parmer and Harris, it was not only competent but sufficient for the state to introduce those two gentlemen, who each testified that he said nothing, and that old Judge Fulton, not knowing that he was speaking to jurors, said, “Good morning,” and spoke of the weather, and that this was all that took place. It was not claimed or proven that any one conversed with the jurors about the case. Nor, in the opinion of the writer, was it shown that an outsider “conversed with any juror.” It was not even claimed that any juror conversed with an outsider. Nor do I find room for questioning the truthfulness of the statements of jurors Farmer and Harris. They were guilty of no misconduct. They neither spoke to Fulton, nor stood and listened to him, nor consented that he should say “Good morning” to the group.

To the writer it seems beyond comprehension that on any such facts as these a reversal of a felony cáse should he ordered because the state did not call Fulton or Deputy Sheriff Smith. Appellant .has the laboring oar to show misconduct of the jury. Absolutely the only testimony produced by him was that of a juror who went n'o further than to say that he saw some one speaking to one or two of the jurors. This he said was on' a public street, where the whole jury was, and in the presence and supposedly the hearing of an officer. I find it impossible to believe that men become unworthy of belief to whom is imputed no violation of any statute merely because they were on a jury. Their own district judge believed them, and I think him well within his discretion. These jurors were not attempting to explain any misconduct of theirs, but wholly denying misconduct and stating facts according exactly with the testimony of the juror offered by appellant as making out his case of misconduct.

If there be any decision in this state holding that under such facts this ease should be reversed, it should be promptly overruled, for there could be no more dangerous ruling made than the one here indicated. Probably not a jury walks down a city street to its meals that some one, ignorant of its character; does not speak to or greet some member. Many cases are found in our books, such as appears in Murphy v. State (Tex. Cr. App.) 40 S. W. 978, 979, where a stranger rode past a jury out for a walk and called out and said, “Boys, don’t give him more than ten years.” This was testified to without dispute, and it was held not reversible error. Certainly, if it be laid down that merely speaking to a juror on a street will be held reversible error, designing criminals and their friends can and will lay easy predicates for such reversals; and this would be made certain by laying down rules that, even though the juryman spoken to affirm under oath that he did not speak in reply, still this court should hold that, because the man who spoke was not produced, or the officer in charge of the jury was not brought, the case should be reversed.

We may have gotten far from the early holdings, but this seems to be beyond reason. The rule laid down in the early days was that, when the conversation was not shown to be about the case, it would have to be shown that probable injustice had been done. March v. State, 44 Tex. 64; Pickens v. State, 31 Tex. Cr. R. 554, 21 S. W. 362; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588, 589; Nance v. State, 21 Tex. App. 457, 1 S. W. 448; Kelly v. State, 28 Tex. App. 121, 12 S. W. 505; Testard v. State, 26 Tex. App. 273, 9 S. W. 888, 890; Bailey v. State, 26 Tex. App. 706, 9 S. W. 270. In the early case of Johnson v. State, 27 Tex. 758, there appears a case so like the one at bar that we quote: “Article 672, of the Code of Criminal Procedure, expressly forbids the granting of new trials in cases of felony, except for some one of the causes enumerated in said article. There are but two of these which could be tortured into the slightest application to the grounds relied upon to support this motion. 1st. Where a juror has conversed with any one during the progress of the case. In one of the affidavits before the court, it is stated that one of the jurors and the affiant spoke together of the case during the trial. The juror, however, swears that, when approached by the affiant, he informed him that he was upon the jury and could not talk to him. And the truth of this statement is subsequently admitted by the affeant. The juror, then, did not converse about the case, but, on the contrary, refused to do so.”

In Testard v. State, supra, Judge Willson said: “It is well settled that misconduct of a jury is not ground for new trial, unless it is shown to have been such as affected the fairness and impartiality of the trial. McDonald v. State, 15 Tex. App. 493; Allen v. State, 17 Tex. App. 637; Jack v. State, 20 Tex. App. 656. No such misconduct on the part of the jury in this case has been made to appear.”

In Shaw v. State, supra, Judge Davidson said: “Remarks to or conversations with jurors do not necessarily constitute ground for granting a new trial. In order to entitle a party to a new trial under such circumstances it must be made to appear that, by reason of such conversation, injustice was probably done him. It must be such as was calculated to produce a more unfavorable impression upon the mind of the juror than that made by the evidence adduced on the trial, or it must be of such a nature as was calculated to result in probable harm to the accused, in order to constitute ground for a new trial, or, in case of its refusal, to authorize a reversal on appeal. Nance v. State, 21 Tex. App. 457, 1 S. W. 448; Bailey v. State, 26 Tex. App. 706, 9 S. W. 270; March v. State, 44 Tex. 64.”

This case is referred to with approval in Douglas v. State, 58 Tex. Cr. R. 127, 124 S. W. 933, 137 Am. St. Rep. 930, opinion by Judge Ramsey, in which the only testimony produced was from jurors.

In Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889, cited in the majority opinion, a separation of the jury was clearly shown; as was also the fact that, while separated, the jurors talked to many persons, none of whom was brought to testify, nor were all the jurors produced. On the facts of that case this court held that whether the rule of presumptive injury be followed, or the milder one, that the burden was on the state to show what the conversations admittedly had were about, the result would be the same, and a reversal must be ordered. It was further held that it would be a bad precedent to hold that jurors, out of the presence of the court without court permission, might converse with other parties over the phone, and that certainly where such conduct occurs it should be held obligatory on the state to show beyond any question that the jurors were not tampered with. In Mauney v. State, 85 Tex. Cr. R. 192, 210 S. W. 959, the writer of this opinion held that in such case injury should be presumed until the contrary be made to appear to the satisfaction of the court; the tri¿1 court primarily, and ultimately this court, but it is further stated that any presumption can be overcome by proof, and that the extent of the burden upon the state in such case extends no further than to satisfy the court that no injury has resulted. This burden was fully met and discharged in the instant case. The assault upon the verdict was made by the testimony of only one juror, and the state brought forward two jurors, named by the juror who made the accusation that he saw an old man speaking to certain jurors, and they testified that they were the nearest jurors to said old man, but did not speak' to him, and all that he said was “Good morning,” and make some remark about the weather.

Every right of a man on trial ought to be accorded him, but to reverse a case and incur the delay and expense of another trial for no more substantial reason than here appears seems to the writer going entirely too far, and sets a premium on the failure of the appellant to sustain his point by punishing the state for not sustaining it for him.

Newman v. State, 91 Tex. Cr. R. 559, 240 S. W. 312, is cited with reliance in the majority opinion. In that case it was shown without dispute that the jury went to the post office and got from the mail packages and communications whose contents were not disclosed on the hearing of the motion for new trial. Judge Morrow held the presumption of injury not to have been rebutted. The logical reasoning in this regard is in line with our uniform holdings. His statement as to the content of subdivision 7 of article 753, supra, is not entirely in accord with what is in fact there said and made imperative by the commands of said article, which does command that a new trial be granted if a juror has conversed about the case.

The case of Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514, 518, is also cited with reliance in the majority opinion. From Judge Morrow’s enumeration in the opinion in that case of what was done by the jury, both with and without the consent of the officer in charge, it was beyond dispute that the_ presumption of injury was in ’nowise overcome. 1-Ie said: “The testimony upon hearing the motion for new trial reveals a series of acts upon the part of the jurors, some of them with the consent of the officer in charge, which were violative of the statutes enacted to preserve the purity of the jury. * * * It too often happens, as in this case, that after the trial it is made to appear that the members of the jury have disregarded the statutes and disobeyed the directions given by the court. When such things occur, and were not shown to have been harmless, the courts cannot sanction the verdict without themselves doing violence to the mandatory provisions of the law.” With what was said in that case, on the facts of that case, this writer was in hearty accord. However, how different the facts here! Note the statement in the quotation from the Toussaint Case, appearing in the majority opinion: “It having been conclusively shown that the statutes were violated,” etc. It not only was not shown conclusively in the instant case that the statutes were violated, but it was shown to the evident satisfaction of the trial judge, who knew the witnesses, that they had not violated any statute.

No case can be found in any book holding it a. violation of statutes forbidding conversations with a jury for one to walk by a group of men on an open street in the daytime and say, “Good morning — nice weather,” and, upon being informed by the officer in charge that these were a jury, apologize and pass on, and consequently reversible error. In the case before us no juror conversed with any person. No outsider conversed with any juror. A mere salutation is not such conversation as is contemplated by the statute.

Expressions used in cases where there have been admitted or proven violations of the ' statutes are rightly applicable only in cases on facts like those then under consideration, and should not be used to justify a holding here that the trial court exceeded his discretion in concluding that the testimony of Farmer and Harris showed that no prejudice could possibly have resulted, and that they had violated no statute. Certainly to so hold would wrongfully bring these men in the category of 'those who might be tempted to falsify in order to exonerate themselves when guilty of wrongdoing, and would reflect on their testimony, and upon the trial court who accepted it as true, when the only reason for such reflection would rest upon the fact that the nearest jurors to the old man who came by were the only ones called to testify. I think this fundamentally wrong, and that in eases on facts like these there should be no hesitation on our part to accept as correct the judgment of the trial court who knew the witnesses and was in position vastly better than ours to pass on their testimony.

The facts in Hamilton v. State, 83 Tex. Cr. R. 90, 201 S. W. 1009, discussed in the majority opinion, were very like those here, as appears from an inspection of the original record found in our flies. An elderly man intruded himself upon a group, not knowing them to he a jury, just as Fulton did here, made a few remarks of a wholly harmless nature, and, upon learning that he was talking to a jury, he excused himself and left, but came back and further apologized. He was used as a witness, hut, if there he anything in the principle of rejecting the testimony of those who have themselves done wrong in the matter under investigation, neither his testimony, nor that of Fulton in the instant case, should have been taken as a basis for the finding of the trial court. The facts in the Hamilton Case show much more transgression of the rules than appears in the instant case. The jury in that case were taken to a supper, and one of their number was shown to have talked to another party who was not used as a witness, but the juror testified that nothing was said about the case. A woman who waited on the table of the jurors testified that she talked with them, but not about the case, but the conclusion of the trial judge that no harm resulted was upheld by us.

In Patterson v. State, 106 Tex. Cr. R. 553, 293 S. W. 570, 571, cited in our original opinion, and discussed in the majority opinion, we have an exactly similar case on principle as the one here. In the Patterson Case a juror spoke to an outsider who made no reply. In the ease at bar an outsider spoke to a juror who made no reply. In the Patterson Case we accepted the statement of the outsider, who had been guilty of no wrong, and said in our opinion: “This is not ‘conversing with a juror,’ which is forbidden in article 671, Code Cr. Proc. 1925. Unless and until misconduct is shown by the testimony, no burden is imposed upon the state which it must rebut.” In the case at bar the trial court accepted the testimony of two good men who had done no wrong, who said that an innocent old man who did not know they were jurors spoke to them, but they made no reply, and he apologized, and that ended the episode. I wrote in the Patterson Case, and here take occasion to repeat what I there said as applicable: “This is not ‘conversing with a juror,’ which is forbidden in article 671, Code Cr. Proc. 1925,” and it certainly is no transgression of article 753 which authorizes a new trial on such ground only when the conversation is about the case. I see nothing in the discussion of the Newton Case, 114 Tex. Cr. R. 537, 26 S.W.(2d) 233, justifying its characterization as in any sense presenting an unusual situation, and therefore presumably justifying a stretch of the rules under discussion here. In that case an outsider brought refreshments to the jury room. The only conversation had was testified to by a juror and appeared to be wholly harmless. I think the correct legal and common-sense conclusion was reached in the Newton Case.

It might be interesting to note the growth and gradual departure from the original holding in regard to the necessity for introducing the testimony of outsiders in cases where jurors have been unquestionably guilty of a violation of the rules forbidding separation, receiving other testimony, discussing the failure of the accused to testify, conversing with outsiders, etc. I do not believe any case will be found in the books showing clearly that the jurors themselves were without guilt in the matter under investigation, which would lay down the rule that their testimony should not be accepted' as sufficient by the trial court, and that, whenever it is shown that some outsider spoke to the jury, none of whom replied, a reversal will be ordered because the-outsider was not produced.

Believing that a dangerous precedent is being established, with whose soundness I cannot agree, I respectfully record my dissent.


source: Caselaw Access Project

author: CALHOUN, Judge.

license: Public Domain

text:
    JOHNSON v. STATE.
    No. 15540.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Rehearing Denied April 19, 1933.

      Reynolds & Heare, of Shamrock, and Olaude Williams, of McLean, for appellant.
    Lloyd W. Davidson, State’s Atty-., of Aus--tin, for the State.
   CALHOUN, Judge.

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

The purchaser, Hulen Cooper, testified substantially to the following facts: On or about the 16th day of October, 1931, he and a man hy the name of Hubert Phillips went to the home of the appellant and asked him about buying some whisky. The appellant told him he did not know him, and the witness then told the appellant as to where he lived and that he knew one Eloyd Phillips, who ran the filling station about a quarter of a mile from appellant’s house.- The appellant then sent a boy, who was there, with the witness and Hubert Phillips in their car to see Eloyd Phillips at his filling station. The said Eloyd ' Phillips informed the boy that the witness was all right and they drove back to appellant’s house and he told the appellant he wanted to buy a gallon of whisky. The appellant agreed to take a cheek of the witness if Eloyd Phillips would indorse it. The witness, Hubert Phillips, and the boy then went to Eloyd Phillips’ filling station and got him to indorse the check. After the check had been indorsed and brought back to the appellant and they had been in the house for a few minutes, the appellant stated to the witness, “Your whisky is out in the car.” When they went out to the car, the whisky was sitting on the floor boards of the car and it was in two half gallon jars. After they left the house the witness and his companion drank some of the whisky and put the balance under a railway trestle and when they came back to it it was gone.

Substantially to the same effect was the testimony of the witness Hubert Phillips.

The appellant denied any sale of' whisky but stated that the check in question was put up as' a wager on the Amarillo-Pampa football game and one Lewis Pepper was the stakeholder.

There are no bills of exception appearing in the record. The appellant objected to the charge of the court for its failure to submit an instruction covering the law of circumstantial evidence. The proof of the state was direct that the agreement between the state’s witness, the purchaser, and the appellant was to the effect that the appellant was to sell said witness one gallon of whisky for the price of $5 and the appellant, after he had received the check, informed the state’s witness that the whisky was to be found in the witness’ car. The mere fact that the prosecuting witness did not. see who put the whis-ky in the car would not make a case depend entirely on circumstantial evidence and a charge on circumstantial evidence is not required where thif evidence is not wholly circumstantial. Branch’s Ann. P. C., § 1874; Lawler v. State, 110 Tex. Cr. R. 460, 9 S.W.(2d) 259. The main fact was not proven as a matter of inference from other facts in evidence. Hence, in a legal sense, the case did not rest wholly upon circumstantial evidence. Branch’s Ann. P. C., § 2367; Robertson v. State, 33 Tex. Cr. R. 366, 26 S. W. 508.

The authorities cited by appellant we do not consider in point under the facts of this case.

No reversible error appearing, the judgment is affirmed.

Affirmed.

PER OURIAM.

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

On Motion for Rehearing.

We have again reviewed the record and the facts in the light of appellant’s motion, but are constrained to adhere to the conclusion announced in our former opinion. The state's witness testified to a positive sale of a gallon of whisky by appellant in consideration of a check for $5, which was delivered to him. We do not think the fact that the whisky was placed in the car of the purchaser by some one other than appellant, following which appellant stated that the whisky was in their car, would make the case one of circumstantial evidence. This is the only contention made.

The motion for rehearing will be overruled.


author: SMITH, Justice.

text:
    HARRISON v. DAVIS.
    No. 9005.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Rehearing Denied April 12, 1933.
    Cunningham, Moursund, Johnson, Rogers & Slatton and C. S. Slatton, all of San Antonio, for appellant.
    R. R. Smith, Walter E. Jones, H. D. Barrow, and A. N. Steinle, all of Jourdanton, for appellee.
   SMITH, Justice.

The record presents a sorry. spectacle exemplified in the life of D. N. Hays, a miserly old bachelor whose advancing years brought him a considerable estate which he accumulated and'preserved while living in isolation, squalor, filth, loneliness, and suspicion. Shortly prior to his death at the age of 80 years, he conveyed all his estate to S. N. Harrison, for the alleged consideration of the latter’s agreement to take care of him during the remainder of his miserable life, which lasted only a few months longer. The record shows, however, and the jury found, that he made the conveyance in view of suddenly developed obligations to others, and with the intent to hinder, delay, and defraud his creditors. And so did the jury find that the unhappy creature did not at the time have sufficient mental capacity to execute the conveyance involved.

This action was brought against Harrison by collateral relations of Hays to set aside those conveyances and recover Hays’ estate for their own, as his heirs at law. Upon the jury findings the trial court ordered the cancellation of the conveyances and rendered judgment in favor of said heirs for said property. Harrison has appealed.

Appellant’s first proposition is directed at the admission of the testimony of a doctor-witness to the effect that in his opinion the decedent did not have the mental capacity to convey the property in controversy; or, in other words, that the grantor was not mentally capable of understanding the nature and effect of the conveyance.

It is now well settled in this state that “no witness, whether he be a subscribing witness, an expert, or a nonexpert, will be permitted, over proper objection, to state his opinion of the capacity of the testator, or the maker of any contract, to make such instrument, when such opinion assumes the shape and has the effect of being an opinion upon the legal capacity of the party in question.” Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 628, 36 L. R. A. 64; Jackson v. Watson (Tex. Com. App.) 10 S.W.(2d) 977; Pickering v. Harris (Tex. Com. App.) 23 S.W.(2d) 316; Brito v. Slack (Tex. Civ. App.) 25 S.W.(2d) 881; Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68, 74; Adams v. Adams (Tex. Civ. App.) 253 S. W. 605. It is therefore obvious that the testimony here complained of was inadmissible over timely and appropriately made objections. And as the testimony bore upon a material issue in the case, which was meagerly supported in the evidence, the error requires reversal, if appellant’s objections and exceptions were properly presented below and preserved on this appeal. In truth, appellees do not challenge appellant’s proposition on its merits, but they do vigorously protest against its consideration here. They contend that the testimony now complained of by appellant was not objected to by him until after its admission, and that he made no motion that it be stricken; and they contend that in his assignment of error complaining of this transaction he did -not distinctly specify the particular ruling complained of in his brief, as required in rules 24, 25, and 26 for Courts of Civil Appeals. In view of reversal upon other grounds it is not deemed necessary to decide these questions of practice.

The judgment must he reversed because of the two diverse findings: (1) That Hays was not mentally capable of making the conveyances sought to he set aside; and (2) that he made those conveyances with the intent to hinder, delay, and defraud his creditors. Under familiar elemental rules of law, the grantor, or his heirs or representatives, would be entitled to r set aside those conveyances in the first case; whereas, it is equally well settled that in the second case the conveyance would be valid against the vendor, his heirs and representatives, and the courts would decline to set aside those conveyances at the instance of the grantor or his heirs or representatives.

The record shows, perhaps conclusively, that Hays made the conveyances for the purpose of defrauding his creditors. It further shows that he went about his design with considerable shrewdness, and executed it with astounding success, at least so far as the creditors were concerned, for they seemed so complacent, or so thoroughly deceived, that they made no effort to circumvent the old man’s efforts, so far as the record shows, until now they appear to be cut off by the bar of limitation. Hays was quite active and alert in carrying out his purpose to put his estate beyond the reach of his creditors, for, as soon as his unexpected liabilities arose, he concealed himself in remote places, where threatening creditors and process servers could not find him, and contacted his vendee until the transactions were completed. Then he reappeared in his squalid haunts, went into his final decline, and died'a few months later!

All these circumstances would seem to refute the charge of mental incapacity, and the very fact that he so shrewdly and effectively circumvented his creditors, and, incidentally, cut off appellees, whom he seemed to suspect of designs upon his estate, renders the finding of mental incapacity dubious, if it does not actually nullify that finding.

But the point is that the two findings are in direct, as well as apparently irreconcilable, conflict. And assuredly they are material. Under the first finding, of mental incapacity, appellees were entitled to recover, and appellant was not entitled to recover; whereas, under the second finding, of fraud, appellees were not entitled to recover, while appellant was entitled to recover as against them. This constitutes a perfect irreconcilable conflict between findings, and a judgment based thereon cannot stand. Speer’s Special Issues, §§ 431, 434, and authorities there, cited. In this situation the trial court should have ordered a mistrial, or, failing in that and rendering judgment, should have set that judgment aside.

Other questions are raised in the appeal, hut they do not require discussion. We are inclined to the conclusion that the testimony objected to by appellant in his second proposition, or at least a part of it, should have been excluded, in the face of timely and appropriate- objections, under the holdings in Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185. The remaining questions relate to the sufficiency of the evidence, and need not be noticed.

Because of the conflicting findings of the jury upon material issues, the judgment must be reversed, and the cause remanded.


author: BOND, Justice.

text:
    MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. SALSMAN.
    No. 11135.
    Court of Civil Appeals of Texas. Dallas.
    March 4, 1933.
    Rehearing Denied April 1, 1933.

      C. O. Huff, of Dallas, and Head, Dillard, Maxey-Freeman & McReynolds, of Sherman, for appellant.
    Webb & Webb, of Sherman, for appellee.
   BOND, Justice.

J. C. Salsman, appellee, filed suit in a district court of Grayson county against the Missouri-Kansas-Texas Railroad Company of Texas, appellant, to recover damages for personal injuries alleged to have been sustained as the result of a wanton and malicious assault made on him by an agent and employee of appellant, and within the scope of such employment. Appellee alleged in his petition that on the occasion of the assault he was proceeding in a westwardly direction on a public highway in the city of Whitesboro, which highway runs parallel with and alongside of appellant’s right of way, when appellant’s agent jumped from a moving train, assaulted appellee, thereby inflicting upon him great and permanent injuries. Appellant interposed a general demurrer and general denial. The case was tried to a jury on special issues, and on answers thereto favorable) to appellee, judgment was rendered thereon. Appellant appeals.

Appellant contends, by a pertinent assignment of error, that its general demurrer to appellee’s petition should have been sustained. It is an elementary rule of law that, where a recovery is sought of the master for injuries inflicted by his servant, the plaintiff must plead and show that the servant did the wrong while acting within the scope of his employment. Galveston, H. & S. A. Ry. Co. v. Henefy (Tex. Civ. App.) 99 S. W. 884. On failure to allege in general terms that the'acts complained’of were within the scope of the agent’s employment, or facts from which it might be reasonably inferred that such acts were within such scope, the petition will not sustain a judgment. Plaintiff’s petition alleges substantially that the assaulting party was an agent and employee of appellant, having the duties of preserving appellant’s property and protecting it from trespassers on its right of way and trains. He further alleged:

“That as he was proceeding westwardly on said road a train on the main line of said Missouri-Kansas-Texas Railroad Company of Texas was moving slowly westward, when said Prank Spencer jumped from said train to a point on said right of way near the said public thoroughfare, and threw a gun down on plaintiff, and" ordered him to halt, and used violent and approbrious epithets toward plaintiff, and said that said plaintiff should not hop said train, and held plaintiff at the point of said gun until the train had completely passed, and thereupon he ordered plaintiff to come towards him on the right of way, and plaintiff proceeded onto said properties in fear of his life.
“That thereupon, defendant, its agent and employee, cursed plaintiff, and called him many vile names, and searched him, and violently knocked him down with his six-shooter, and assaulted him with deadly weapons, beat, kicked, abused, shot at, wounded and laid hands on the plaintiff, inflicting upon him great and permanent injuries.”

There is no causal connection alleged between the alleged duties of the agent in protecting appellant’s trains and right of way, and the alleged act and conduct of ap-pellee in walking down the public road. No trespass on appellant’s property is alleged, and no act alleged which would indicate that a trespass was in contemplation. The allegation is merely that he was going down a public highway as an innocent person could be doing and had the right to do.' It could not be reasonably contended that, because it was within the scope of such agent’s employment to protect his employer’s property from trespassers, he turned aside from his line of duty and made an unlawful assault upon an innocent wayfarer, his employer would be responsible for such unlawful and unauthorized act. Such alleged acts ‘are not within the scope of one’s employment whose duty it is to protect his employer’s property, when the assault was made, and without reference to his employer’s business. We conclude that appellee’s petition is insufficient, and that appellant’s general demurrer should have been sustained.

Appellant further contends that the evidence is insufficient to establish an agency, express or implied, of the assaulting party, or that the duties under such agency were those alleged in appellee’s petition. In view of the fact that this case must be reversed, we do not think a discussion of the evidence is here proper or necessary, and we preter-mit an extended recitation of the facts. The evidence follows substantially the allegations of the petition; the petition being insufficient, it necessarily follows that the evidence is likewise insufficient. The evidence discloses, however, that that which is lacking in proof as to the agency, the scope of employment, and the application of the doctrine of respondeat superior, might be available; thus we are inclined to hold that, by appropriate amended pleadings, prima facie proof of agency might be shown, that the acts complained of might be shown to be within the scope of the agent’s employment, and that appellant might be held responsible therefor. We cannot conclude that the evidence is so completely developed as to call for the case to be reversed and rendered.

Appellant also contends that the trial court erred in giving the jury the following charge:

“You are further instructed that where a party acts in behalf of another under the latter’s authority and for the latter’s benefit, he is, in law, an agent of the latter.
“The term ‘within the scope of his employment’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business. It does not follow that, because one who has been guilty of negligence was at the time acting under employment by another, that he was acting within the scope of such employment. It must appear - that the acts complained of were done by him while performing the duties pertaining to his employment; but the mere fact that the servant acting for the master deviates from his instructions does not take the act out of the scope of his authority or employment. The test is whether the act done was in the prosecution of the business in which the servant was employed to assist. He may be acting within the scope of his employment, although disobeying the express commands of his master at the time.”

The charge was excepted to because the court, having submitted the case on special issues; (1) It is not a correct explanation or definition of legal terms necessary to enable the jury to pass upon the issues of fact; (2) it is in the nature of a general charge; (3) is not applicable to the case made by the pleadings and evidence; and (4) is calculated to mislead and confuse the jury.

The charge quoted is an explanation and definition of agency, and the term “within the scope of his employment,” and is a correct enunciation of the law, and an exemplification of the court’s definition of those terms. Hill v. Staats (Tex. Civ. App.) 189 S. W. 85, 86. “Agency,” “extent of such agency,” and “acts done within the scope of the agent’s employment” on which his master might be liable, are terms to which definitions and explanations are necessary, and in many cases indispensable, to enlighten the jury, and enable it to correctly determine the issues involved. If the charge complained of is the law of the forum, and is such that is applicable to the pleadings and evidence, and does not tend to confuse or mislead the jury, or prejudice the rights of the litigants, it ought to be given to enable the jury to properly pass upon and render a verdict on submitted special issues. However, the latter part of the charge, dealing with and in explanation of the acts which come under the court’s definition of the term “within the scope of his employment,” is condemned as a general charge and in violation of article 2189, R. S. 1925, which provides that, when a case is submitted on special issues only, “such explanations and definitions of legal terms as shall be necessary to- enable the jury to properly pass upon and render a verdict on such issues.” Radford v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218, 219. On another trial, we suggest that the general charge be not given.

Error is also assigned in giving to the jury the following special issues:

“No. 2. At the time of the occurrence in question was Prank Spence acting within the scope of his employment in attempting to prevent the plaintiff from boarding the train in question, as that term has been defined to you?
“No. 3. Did Prank Spence use more force than was necessary to prevent the plaintiff from boarding the train in question?”

It is evident that the issues quoted assume that the appellee was attempting to board appellant’s train, and the alleged agent was attempting to prevent him from boarding the train. The questions are not applicable to the pleading and the evidence. Appel-lee’s petition does not allege that he was attempting to board the train, or that the alleged assault was committed by the agent on appellee while he was attempting to board the train, and no evidence in the record shows that the agent was doing or attempting to do that which the jury is called upon to determine by said special issues. It is error to submit an issue upon which there is no pleading and no evidence applicable thereto, and the assumption of a fact, which is within the province of a jury to determine. Gulf, C. & S. F. Railroad Company v. Vieno (Tex. Civ. App.) 26 S. W. 231.

Appellant further contends that error was committed in permitting witnesses, over its objection, to relate conversations had with the alleged agent, relative to the occurrence in which appellee was assaulted by said agent. We conclude that the declarations of the agent, which form no part of the res gesteo, are not admissible against appellant. The declarations of an alleged agent, detailed by others, are incompetent to establish either the fact of the agency or the scope of his employment. If agency is prima facie established, declarations of the agent within the scope of such agency may be shown as the acts and admissions of the principal. Tabet v. Powell (Tex. Civ. App.) 78 S. W. 997, 999. Under this rule of law, any statement or admission of the agent showing knowledge on his part of the acts of appellee in invading the premises of appellant or committing trespass thereon, or his knowledge of the intention, coupled with any overt act of appellee, to invade or trespass upon the premises, is admissible, bearing on the issue as to whether the assault was made in furtherance of and coming within the scope of the agent’s employment. The related statement of the agent to Dr. O. D. King, not a part of the res gestos, that “this man (Salsman) was going to hop the train,” was admissible; but related statements of the agent as to what he did in reference to the assault are not admissible against appellant.

We have carefully considered all propositions and assignments not otherwise herein discussed, and same are overruled, and from what we have said this case is reversed and remanded.

Reversed and remanded.


author: HICKMAN, Chief Justice.

text:
    BASS et al. v. McKINNEY.
    No. 1082.
    Court of Civil Appeals of Texas. Eastland.
    April 20, 1933.
    Rehearing Denied April 21, 1933.
    Wagstaff, Harwell, Wagstaff & Douthit, Qf Abilene, for appellants.
    Cox & Hayden, of Abilene, for appellee.
   HICKMAN, Chief Justice.

On the 24th day of March, 1926, R. B. Compton, as lessor, entered into a contract in writing with McLemore-Bass Drug Company, a partnership, as lessees, of which the following is a copy of all that is material-in this case:

“The party of the first part, in consideration of the covenants of the parties of the second part, hereinafter set forth, does by these presents lease to the parties of the second part the following described property, to-wit * * *
“To have and to hold the same to the parties of the second part from the 24 day of March, 1926, to the 31 day of January, 1931. And the parties of the second part, in consideration of the leasing and premises as above set forth, covenant and agree with the party of the first part to pay the party of the first part at Abilene, Texas, as rent for the same, the sum of Thirteen Thousand Eight Hundred Forty Six and 65/100 Dollars, payable as follows, to-wit:
“Two Hundred Forty Six and 65/100- Dollars on April first, 1926, and on the first day of each month thereafter the sum of Two Hundred Dollars during the life of this contract or until the full amount of the lease as stated above has been paid in full.”

Shortly thereafter the lessor sold and conveyed the leased premises to appellee, J. A. McKinney, and assigned to him all of his rights under the lease contract. The lessees made the payment of $246.65 on April 1, 1926, and a payment of $200 on the 1st day of each month thereafter up to and including January 1, 1931. On the 31st day of January, 1931, they voluntarily vacated the premises and made no further payments under the contract. The total amount paid by them was $11,646.65, exactly $2,200 less than the total amount of rental stated in the lease. Had they continued to pay $200 on the 1st of each month up to December 1, 1931, they would have paid the exact total amount stated in the lease contract. This suit was instituted by appellee for the recovery of this balance of $2,200, and resulted in a judgment in his favor as prayed for. The defendants below, being the members of the partnership of McLemore-Bass Drug Company, have appealed.

In his original petition upon which he went to trial, appellee declared upon the contract without alleging any ambiguity or mutual mistake in its preparation. He alleged that the lease commenced on the 24th day of March, 1926, and ended in 1931, and that the last installment of $200 was due on December 1, 1931. The suit was filed after this latter date, and- it was accordingly alleged that all payments provided in the contract were past due and that eleven of these payments aggregating $2,200 were unpaid.

The appellants in their answer alleged that nothing was due by them under the contract, that the lease expired on January 31, 1931, and that they executed same with the understanding and agreement that it expired on said date. They further alleged that it was not contemplated or agreed between the parties that the sum of $13,846.65 should be paid, but only the sum of the monthly payments up to and including January 1, 1931; the last payment being rent for the month of January, 1931, and that the total amount of $13,846.65 as stated in the lease was the result of a mistake in calculation.

Appellee filed a supplemental petition, in which he denied any mistake in calculation, but alleged that, if there is any mistake in the instrument, same was the mutual mistake of the parties in writing the words “January 31st, 1931,” as the expiration date of the lease instead of the words “December 31st, 1931.” He alleged that the correct expiration date was properly indorsed on the reverse side of the written lease, to wit, December 31, 1931, as shown by the instrument itself, and that said indorsement correctly expressed the agreement of the parties made at the time.

A jury was demanded and the case submitted upon one single issue, which will be hereinafter considered. The record does not disclose a request by either party for any issue other than appellants’ request for a peremptory instruction. Two controlling questions of law are presented, namely: (1) Did the court err in refusing appellants’ request for a peremptory instruction? and (2) Do the pleadings and the verdict support the judgment rendered? We shall consider these questions in their order.

Appellants present that there is an irreconcilable conflict between the provision that the lease terminated on January 31, 1931, and the provision that they were to pay $13,846.65 as rent; that the lease should be construed to mean that it terminated on the 31st day of January, 1931; that the total amount of lease money to be paid under the terms of the lease was the sum of the monthly payments to January, 1931; and that the total sum fixed in the lease is an obvious error in calculation. It is pointed out that the date of expiration was stated in the lease before the amount becoming due thereunder, and should therefore prevail over the figures later stated therein. The question is somewhat novel. Disregarding all oral testimony, and looking to the instrument alone, we think it should be construed as follows: The lease term began on March 24, 1926, and ended on January 31, 1931. The contract so provided, and, in the absence of a showing of mutual mistake or fraud, we would not be authorized to change this provision. The total amount of the rental was $13,846.65. The contract so provided, and, in the absence of a showing of mutual mistake or fraud, we would not be authorized to change this provision. There is no irreconcilable conflict between these two provisions. The rental was for the entire term. The amount of rental per month is not stated. Payments on the total rental were to be made at the rate of $200 per month. Admittedly it is unusual for payments on rent to continue beyond the life of the lease, but that consideration would not authorize us to hold that there was an obvious error as to the amount of the rental. Suppose the total amount of the rental had been stated at a .sum less than the sum of the total payments to January, 1931. Appellants would not have been liable to continue the payments each month after they had paid the total amount provided. The same reason applies in a ease like the instant one where the total amount to be paid exceeds the sum of the partial payments. Smith v. Blake, 88 Me. 241, 33 A. 992; Nindle v. State Bank, 13 Neb. 245, 13 N. W. 275. The trial court properly refused to give the peremptory instruction.

It is alternatively contended by appellants thalt, if they were not entitled to a peremptory instruction, and if, on the face of the contract, the total consideratibn is not an obvious error, then the contract is doubtful and ambiguous and it devolved upon the ap-pellee to allege and prove the amount due under, the lease and the expiration date thereof. It is claimed that the pleadings were insufficient as a declaration upon an ambiguous contract, and that the verdict will not support the judgment. As noted above, appellants pleaded that the agreement, between the parties was that the lease should expire on January 31, 1931, as stated therein, and that the total amount of rental to be paid, as stated in the lease, resulted from a mistake in calculation. Appellee in his supplemental petition pleaded that the correct expiration date was indorsed on the reverse side of the lease, that that date was December 31, 1931, and that said indorsement correctly expressed the agreement of the parties made at the time. The evidence was sharply conflicting. In this state of the pleadings and evidence the court submitted one issue to the jury, as follows: “Was it the intention of the parties to the contract in question that the expiration of the lease in question should be the 31st day of January, 1931?” To which the jury answered “No.”

Appellants timely excepted to this charge in the following language: “Defendants except to the charge of the court submitting Special Issue No. 1, for the reason that said issue submits to the jury a question of law and for the reason that the construction of the said lease contract is a matter to be determined by the court and the said issue is determinative of no issue tendered by the pleadings.”

According to appellants’ pleadings and evidence, the parties agreed that the lease should expire January 31, 1931, while, according to appellee’s pleadings and evidence, they agreed that it should expire on December 31, 1931. There was no suggestion, either in the pleadings or evidence, of any other expiration date. A determination by the jury that it was not the intention of the parties that the lease should expire on January 31, 1931, is, in effect, a determination that it was their intention that it should expire on December 31, 1931, and that no mistake was made in calculation. It is our view that the issue was authorized by both appellants’ and appellee’s pleadings. It follows that the judgment finds support in the verdict.

On a former day of this term we released an opinion ordering an affirmance of this case. In the light of appellants’ able motion for rehearing, we concluded that our position should be more definitely stated. Rather than write another opinion on rehearing, it was deemed advisable to withdraw the former opinion and substitute this opinion on rehearing therefor, which is accordingly done.

The motion for rehearing is overruled, and the judgment of the trial court, as heretofore ordered, is affirmed.


author: LATTIMORE, Justice.

text:
    INDEPENDENCE INDEMNITY CO. v. KELL et al.
    No. 12778.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1933.
    Rehearing Denied March 18, 1933.
    Weeks, Morrow & Francis, of Wichita Falls, for appellant.
    Bullington, Humphrey & King, of Wichita Falls, for appellees.
   LATTIMORE, Justice.

Appellant issued to appellee a policy of insurance against loss by burglary of the latter’s safe “when all doors of the safe and vault are duly closed and locked by all combinations thereon; provided that such entry shall be made by actual force and violence of which there shall be visible marks made by tools,” etc., “upon the exterior of all of said doors of such safe.”

Appellee’s safe was opened and $1,539 taken therefrom. On a jury trial verdict was for plaintiff, and from judgment thereon defendant appeals.

The only question raised is the sufficiency of the evidence. Appellees’ evidence was that the safe was closed about midnight, with the money inside, and locked by all combinations, two in number, one. on an outside door and one on an inside door; that the next morning the safe was discovered open with the combination knob of each door broken off and lying on the floor and marks upon each door and upon the top of the safe just above the knobs which are variously described as hammer marks and chisel marks. O. M. Goodwin, who says he closed the safe and locked it on the night of the burglary, testified by deposition. The defendant offered two expert safe men, the only experts who testified, who said that the combinations were set at “open” when they were examined after the burglary; that the knob connects by a long steel stem inclosed in a close-fitting iron container to the lock combination, and that it would be practically impossible to operate those combinations by the stem with the knobs knocked off; that the combination locks were not broken; and that the doors could not be opened without the combination being either broken off or set at “open” ; and that it was apparent that the. burglary was an “inside job,” i. e., some one knowing the combination had thereby opened the safe, taken the money, and then knocked the knobs off to disguise his modus operandi.

We have carefully read and re-read the entire statement of facts and the briefs. We believe the evidence sufficient to justify the jury verdict.

While it may be that the appellate court may judge the credibility of a witness testifying -by deposition as well as the jury, Thorn’s Heirs v. Frazer’s Heirs, 60 Tex. 259, the question of the proper inference to be drawn from circumstances which support more than one fact conclusion is for the jury alone, though the physical facts be agreed, Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963.

The judgment is affirmed.


author: LANE, Justice.

text:
    CLOUGH v. NEWS PUB. CO.
    No. 9853.
    Court of Civil Appeals of Texas. Galveston.
    March 16, 1933.
    Geo. G. Clough, of Houston, for appellant.
    Frank S. Anderson, of Galveston, for appel-lee.
   LANE, Justice.

G. Boy Clough brought this suit against the News Publishing Company, a corporation, to recover for libel.

Plaintiff alleged that defendant was, on the 29th day of July, 1930, the publisher of a newspaper known as the Galveston News, and that on said date it printed and published a false, defamatory, and malicious libel of and concerning plaintiff, in words as follows:

“EADIO STATION PUBLOINS COPT-BIGHTED ELECTION BETUBNS,
denounces -papebs fob tntee-FEBENOE.’
“Saturday night was a memorable occasion for station KFLX, owned and operated by George Boy Clough.
“The enterprising Mr. Clough decided it would be a fine thing to broadcast returns of the democratic primary election. There was only one serious hitch in the scheme. Mr. Clough had no election returns and no way of getting them except by methods frowned upon in the best radio circles. But that didn’t worry him long. He knew that The News, as usual, would project returns upon a screen opposite its building. What could be simpler than to copy these returns, telephone them to the station for broadcasting and make a trusting public believe that station KFLX was the mouthpiece of a vast organization covering the vote in Texas’ 253 counties?
“Not to be annoyed by such a trifling detail as asking The News’ permission, the management of KFLX arranged to proceed without permission. But here unexpected difficulties arose. Mr. Clough tried to arrange for an observation post and telephone station in Perusina’s café, adjoining The News, and was highly incensed when permission was refused. But station KFLX was not to be balked as easily as that. If several thousand Galvestonians gathered in Mechanic street for The News’ ‘Election party’ could view the election returns, what was to prevent station KFLX from purloining them and broadcasting them as the fruit of its own enterprise?
“Two men climbed to the top of a delivery truck, copied the returns as they were flashed on the screen and handed the slips to waiting runners who relayed them to the station— either directly or by telephone. Throughout this performance a policeman stood by the truck, though the reason for this precaution was not apparent, since no one tried to interfere.
“For some reason, possibly because he wasn’t particularly proud of his performance, Mr. Clough became tremendously aggrieved at The News and worked himself into a fine rage over the paper’s efforts to ‘interfere’ with the public service performed by station KFLX. In the intervals of broadcasting purloined election returns, the announcer directed a. torrent of abuse at The News, accusing it of employing underhanded methods to dei feat the broadcast, Station KFLX, the' announcer proclaimed, had gone to large expense to get those returns and proposed to broadcast them in spite of all The News could do.
“Possibly the employment of men to ‘lift’ and relay the returns was a large expense to the station. But in obtaining the returns honestly The News did incur a considerable expense, none of which was contributed by station KFLX. Keturns for the state were collected by the Texas election bureau, an organization maintained by Texas newspapers, and the only organization engaged in that work. It is financed solely by assessments against member newspapers, and consists of correspondents in every county, dozens of tabulators in the central office at Dallas, and a net work of leased telegraph wires serving the member papers. It cost the Texas election bureau approximately $20,000 to collect and tabulate the vote in Saturday’s election, and of this sum The Galveston News-Tribune paid about $1,000.
“MATTERS COPYRIGHTED.
“Returns furnished by the Texas election bureau are protected by copyright. In the contract between members, radio broadcasting is expressly forbidden. This is done in fairness to member papers which do not own radio stations and is respected by the eight reputable papers which operate their own radio stations. So, even if station KFLX had bothered to ask permission to broadcast Texas election bureau returns, The News would have been prevented by its contract from giving it however much the paper might have wished to accommodate the gracious Mr. Clough. Member papers are also obliged to prevent, if possible, the unauthorized broadcasting of returns. But Saturday night The News was too busy with the election to seek an injunction or invoke other legal means to circumvent the cheap piracy.
“What’s a little thing like a copyright to station KFLX, the voice of Raffles, broadcasting by sufferance of the federal radio commission with tiresome frequency over an elastic wave length?”

Plaintiff further alleged that the statement made in such publication that plaintiff “purloined” the returns described therein is false, and was known to be false at the time it was made; that it was made maliciously for the purpose of injuring plaintiff. He denied that the property which the defendant stated was exclusively that of the defendant was in fact such, in that defendant cannot have a property right in matters of public information; he alleged that such information was not copyright matters, as stated in the publication; that the charge that plaintiff “purloined” property of defendant was meant and understood by the readers of said article to mean that plaintiff was a thief, and was guilty of theft; that the Galveston News has a large circulation within and out of the state of Texas, and is circulated in practically every county in the state; “that the publication and circulation of said false, defamatory and malicious libel has caused the plaintiff great loss of peace of mind, shame and humiliation ; that he was raised in Galveston County where he has lived for more than 25 years; that said libel has injured him in his business as operating a Broadcasting Radio Station, and has caused many persons to refrain from employing his said station, to his corresponding loss and damage.”

He prays that upon final hearing he have judgment against defendant for $15,000 actual damages and for $10,000 exemplary damages.

Defendant answered by general demurrer and special exceptions. It admits the publication of the article set forth in the first paragraph of plaintiff’s 'petition, but denies each and every other allegation in the petition. It alleged that the matters and things contained in the publication are true.

The trial court sustained the general demurrer of the defendant and dismissed plaintiff’s suit. From the judgment of dismissal the plaintiff has appealed.

For reversal of the judgment, appellant contends that the court erred in holding that plaintiff’s petition failed to state a cause of action and upon such holding sustaining defendant’s general demurrer addressed thereto; in that, in the publication alleged as constituting libel charges, appellant is stated to have “purloined” copyright matter exclusively the property of the defendant, which is in effect a charge that appellant is a thief, and in that such publication subjects appellant to public hatred, contempt and ridicule, and financial injury, and impeaches his honesty, integrity, and reputation.

We sustain appellant’s contention. The heading of the publication, as shown in capital letters, is as follows: “RADIO STATION PURLOINS COPYRIGHTED ELECTION RETURNS, DENOUNCES PAPERS FOR ‘INTERFERENCE.’ ”

In such published article it is charged, in effect, that in the interval of broadcasting Mr. Clough “purloined” election returns. In another part of the article it is stated as follows:

“But Saturday night The News was too busy with the election to seek an injunction or invoke other legal means to circumvent the cheap piracy.
“What’s a little thing like a copyright to station KFLX (station owned by appellant), the voice of Raffles, broadcasting by sufferance of the federal radio commission with tiresome frequency over an elastic wavelength.”

Unquestionably the article charges that appellant “purloined” the election returns gathered for the News and other papers and publications, and that in doing such he was guilty of piracy, and in such article appellant is likened to Raffles, the noted character generally known as a polite thief.

Appellee contends that the word “purloin,” as used in the published article complained of, cannot be construed as meaning “stealing.” To such contention we cannot agree.

In Zell’s Encyclopedia the word “purloin” is defined: (1) To remove; (2) to remove for one’s self; (3) to steal; (4) to take by theft; (5) to take, by plagiarism; and (6) to steal from books or manuscripts.

In Standard Dictionary of English Language: (1) As the act of thieving; (2) stealing, same as larceny.

In Century Dictionary: To taire by theft.

In New Universities Dictionary: To steal.

So there can be no reasonable contention that to charge one with purloining the property of another is not a charge that such person stole such property and that he was guil-of theft. Not only does the article charge appellant with purloining (stealing), but it also charges him with piracy, and likens him to the thief, Raffles.

The charges made by the article, whether falsely or truthfully made, would no'doubt subject and expose appellant to contempt and ridicule and impeach his honesty, integrity, and reputation. If, however, the charges, upon another trial, are shown to be true, appellant cannot recover. Such issue, however, is for the determination of the court or jury upon the evidence which may be introduced upon another trial.

Having reached the conclusion that the court erred in sustaining the general demurrer and dismissing the suit, it becomes our duty to reverse the judgment and remand the cause, and it is accordingly so ordered.

Reversed and remanded.