text:
    ALLEN v. STATE.
    No. 15394.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.

      Williford & Williford, of Fairfield, and A. B. Geppert, of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted of assault, without malice, with intent to murder John Windsor; punishment being assessed at one year in the penitentiary. Article 1160, P. C., as amended by the Acts 42d Leg. (1931), p. 95, ch. 61 (Vernon’s Ann. P. C. art. 1160).

Appellant and Windsor were neighbors living on adjoining farms. Until the happening of the incident hereafter related, no animosity or ill feeling between them is shown to have existed. Some time before the assault, Windsor claimed to have discovered a “bee tree” and claimed that he placed a mark thereon designating it as his, or as having been found by him. On the day before the difficulty, he went to the tree and found the honey had been taken. Appellant’s two boys were nearby. The state’s contention was that Windsor said, “Some s-of a b-robbed my bee tree,” that one of appellant’s sons asked Windsor if he was calling him a “s-of a b-,” and that Windsor replied, “No, I did not call you a s of a b — i—.” In regard to that incident, one of appellant’s sons testified that he had found and marked the bee tree; that, when they met Windsor near the tree, he accused them of having robbed it, and called them the name mentioned. The next morning, while appellant was eating breakfast, one of the boys told him that Windsor had called them such vile name. Without finishing his breakfast, appellant immediately got up from the table, secured a single-barrel shotgun, and went to Windsor’s home, finding him in the lot. Windsor’s version of what happened is, in substance, that appellant came up to him and 'said, “John, you just called the wrong one a s-of a b — ■—,” to which Windsor replied that he was mistaken; thereupon appellant said, “I am going to kill you right here,” and raised the gun to a shooting position, at which time Windsor had an armful of wood; that he threw this in the direction of his stomach where the gun was pointed, and the shot fired by appellant struck the wood and tore away part of Windsor’s wrist. Testifying in his own behalf, appellant’s version of the matter was that, immediately after having been informed by his son of what Windsor had said the day before, appellant went to Windsor for the purpose of seeking an explanation and apology; he carried -his gun along to protect himself in the event it became necessary; that, when he accosted Windsor, appellant made known to him the fact that his boy had told him what Windsor had called him the day before and that he wanted Windsor to apologize for it; that immediately Windsor replied, “We will settle this now,” and at the same time made a demonstration with his right hand towards his hip; that he thought Windsor was going to get a pistol; and that he immediately fired in self-defense. He denied that he went to Windsor’s home with any intention of killing him.

Bills of exception 1 and 2 complain of the refusal of the court to amend his charge because the court had omitted to tell the jury that, if appellant had been informed that Windsor had cursed or abused his boys, appellant had a right to go to Windsor and demand an explanation of such conduct, and that, if appellant armed himself before going' to demand such explanation, his rights were in no manner abridged by such fact. The instructions of the court contained no charge upon provoking the difficulty nor any other instruction which in any way abridged appellant’s right of self-defense. It awarded him the full right of self-defense without any limitation whatever. Under such circumstances it has been consistently held such a charge as was ifidicated in appellant’s objection was not necessary, or at least that the omission of such instruction would not call for a reversal. Many cases are collated in Branches Ann. Tex. P. C. § 1950. Among the later cases upon the same subject are Briscoe v. State, 90 Tex. Cr. R. 650, 236 S. W. 991, in which many other cases are cited. See, also, Williams v. State, 117 Tex. Cr. R. 459, 34 S.W. (2d) 886. Appellant recognizes the general rule to he as herein stated, but seems to think the facts of the present case present an exception thereto. We are unable to distinguish this ease from many others in the regard mentioned.

Bills of exception 3, 4, and 5 are based on written objections to the court’s Instructions to the jury. One objection was directed to paragraph 16 of the charge as having limited appellant’s right to defend against an actual attack. We gather from bill of exception No. 3, which relates to this matter, that, if said paragraph as originally written was subject to such criticism, it was corrected, for, as found in the record, it authorized an acquittal if the jury believed that appellant committed the assault as a means of defense against an unlawful attack, real, apparent, or threatened, viewed from his standpoint. It is further urged that the court should have incorporated in paragraph 16 the question of reasonable doubt on the issue of self-defense. It is doubtful if the objection upon which appellant relies was explicit enough to direct the trial court’s attention to this point. The objection stressed the' point that said paragraph limited the defense to an actual attack. We observe that in paragraph 15 of the charge the court told the jury in general terms that one had a right of self-defense against any unlawful attack, though the attack did not amount to an effort to inflict death or serious bodily injury. Paragraph 16 seems to have been an application of this general statement of law. In paragraph 17, the court goes into a more detailed explanation of the law of self-defense, and in making, application thereof in paragraph is told the jury, if they believed Windsor “made, or was about to make” an attack or assault on appellant which from his standpoint caused appellant to have a reasonable apprehension of death or serious bodily injury, and he made the assault on Windsor under such circumstances, or if they had a reasonable doubt regarding such matter, they would find appellant not guilty. In paragraph 22 in connection with the instruction upon the presumption of innocence, the court again told the jury if they had a reasonable doubt as to appellant’s guilt they should acquit him. Regarding the charge in its entirety, we think the jury could not have been misled by the omission of that subject from paragraph 16.

As a part of paragraph 17 of the charge, the court told the jury “every person is permitted by law to defend against an unlawful attack, whether real or apparent, threatening injury to his person, and is justified in using all force necessary in defending himself, but no more force than is necessary, as viewed from his standpoint at the time he acts.” Appellant objected to that portion of paragraph 17 above quoted, urging that under the facts of the present case the court committed error in telling the jury that, in defending against an attack, or threatened attack, one could use no more force than was necessary. In making application of the law to the facts in paragraph 18, nothing was said about the use of excessive force, but the jury were pertinently told, if appellant believed that Windsor was making, or was about to make, an attack on appellant, which from his standpoint at the time caused him to have a reasonable apprehension or fear of bodily injury or death at the hands of Windsor, and that appellant shot Windsor under such circumstances, they should acquit him, or, if they had a reasonable doubt thereof, they should acquit him. In the succeeding paragraph, the jury was instructed that they should place themselves in appellant’s position and view the facts and circumstances and the acts and words of Windsor, if any, from appellant’s standpoint at the time he acted. While the court might with propriety have omitted from paragraph 17 the term, “but no more force than was necessary,” yet, considering the charge as a whole, we have been unable to reach the conclusion that the jury could have in.any way been misled or affected in the light of other portions of the instructions. Article 666, C. C. P., forbids a reversal of a judgment for an error in the charge unless it was calculated to injure the rights of defendant. Making application of said article in the present case, we think the matters urged by appellant as errors in the charge, if such, were not calculated to injure the rights of accused.

The judgment is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    CALDWELL v. STATE.
    No. 15218.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Granted Nov. 16, 1932.

      T. B. Ridgell, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, fifteen years in the penitentiary.

This is the second appeal. The opinion upon the former appeal will be found in 118 Tex. Cr. R. 401, 40 S.W.(2d) 131.

We see no good to come from an extended statement of the facts. It was admitted that appellant killed deceased by cutting her with a butcher knife. Self-defense was interposed, appellant claiming that deceased had threatened her, and that at the time of the homicide deceased had a piece of iron pipe. She testified:

“She drew back the pipe, and I clinched into her and we tussled, both down on the ground; I was spanking her with the side of the knife; she went to biting me on the leg. I got away from her and was putting my shoe on, •* * * and she hit me back of the head with this rock. * * * I caught her and just punched at her with the butcher knife. She was standing there trembling or wiggling, and she fell down.”

The state introduced all the parties who were eyewitnesses to the occurrence, save appellant herself, and these witnesses contradicted the testimony of appellant. It was shown that the two women met at the house of a man named Bailey, and that appellant asked deceased if she was carrying that piece of iron for her, and deceased asked appellant if she was carrying that butcher knife for her. Bailey said he told them both to go on away, that- he did not want any trouble there, and, in line with other state witnesses, testified that deceased started away toward her home, and that appellant followed her and threw two rocks at deceased. A witness who was present at the time appellant overtook deceased ‘;aid, when appellant advanced upon deceased, and used some language which witness did not understand, that deceased raised the piece of iron pipe, and appellant at once grabbed her and they fell to the ground. All these witnesses united in saying that deceased did nothing to appellant, threw no rocks at her, and made no motion to do anything with the small piece of iron ■pipe she had in her hand until appellant got up to deceased and advanced upon her with the butcher knife. It appears that deceased was afflicted with rheumatism, and one of appellant’s witnesses testified on cross-examination that deceased had been using (said piece of iron pipe as a walking stick. The butcher knife used by appellant had a long keen blade eight or nine inches long; deceased was cut in a number of places and stabbed through the heart.

Reviewing appellant’s complaints as they, appear in her brief, we cannot .say the court erred in rejecting testimony offered by the defense going to show that the pipe had by deceased was a deadly weapon, or such a one as could produce death or serious bodily injury, there being no bill of exception in the record complaining of the rejection of such testimony; nor is.there any bill of exception bringing forward complaint of the admission of any testimony from state witness Welch. Mr. Welch swore that he took a written statement from Millett, a defense witness, but the statement was not offered in evidence, nor was Mr. Welch asked to testify to any or all of the contents of such statement.

Appellant insists that his exception .No. 2 to the charge of the court points out reversible error. Such exception is rather lengthy and difficult to understand. It sets out in general terms that the charge limited the rights and defenses of the accused, and failed to submit the statute on presumption of guilt from the use of deadly weapon's. We find no testimony characterizing the piece of iron pipe had by deceased at the time of the homicide as a deadly weapon, but do find in the court’s charge where he specifically told the jury that, if deceased, was armed with an iron pipe which was calculated or likely to produce death or serious bodily injury, and was advancing or about to advance upon appellant with said pipe, then the law would presume that she intended to kill appellant or to inflict serious bodily injury upon her. Certainly a charge “limiting the rights and defenses of the accused” is not wrong, unless same be of such nature as to unduly limit same. The court charged on self-defense against real or apparent danger as same appeared from the standpoint of the accused, and also as justified by threats by the deceased when accompanied by a demonstration. We are unable to see wherein any right of the accused was unduly limited or abridged.

Appellant has an exception covering a page and a half of the transcript to the giving of a charge on provoking the difficulty. We have analyzed as carefully as we can said charge. In it the jury were told that, if they believed beyond a reasonable doubt that appellant, before the difficulty began, did some act, or used language, or both, with the purpose of producing the occasion to kill deceased by inducing deceased to make an attack upon her, and that the acts or language of appellant were reasonably calculated, under the circumstances at the time, to provoke a difficulty, and that such acts or language of appellant, if any, caused deceased to attack appellant, or make other hostile demonstrations toward her, following which appellant, in pursuance of her original unlawful intention, cut and killed deceased, a plea of self-defense would avail her nothing, but she would be guilty of such phase of murder as the facts might evidence. Appellant’s complaint seems not directed at the manner or form of this charge, but at the giving of same at all. This is true of the giving of the converse of the charge on provoking the difficulty, to which no exception was taken, but in her brief appellant insists that the facts did not call either for the giving of the charge on provoking the difficulty or the converse thereof. We are not in accord with this contention. Not only does the preponderance of the testimony show that appellant followed deceased, but also that she threw rocks at her, and, when she advanced upon deceased, she was saying things to her, following which deceased seems to have raised the piece of iron pipe. This demonstration furnished appellant the basis for her claim of self-defense. Unquestionably, if appellant by her acts and conduct intended to provoke deceased to make some demonstration which would furnish her a pretext for killing the latter, it would be the duty of the court to submit to the jury the law of provoking the difficulty. We have reviewed each of the other complaints made in appellant’s brief, and are constrained to believe none of them present reversible error.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Annie Caldwell came to the home of Bailey about noon. Bailey had not seen Theresa Johnson that day. Annie remained about two hours, and at that time Theresa passed. Bailey heard her speak, but did not see her. She went across the branch to the home of Mary Kelley. In about forty or fifty minutes Annie returned to Bailey’s house. She was alone. Theresa also arrived from a different direction from that in which Annie came. When Theresa arrived, Annie said: “Is you carrying that iron pipe for me?” Theresa replied: “Is you carrying that butcher knife for me?” Neither spoke another word. Annie went north and then turned and followed Theresa.

Walter Shelton was at the house of Bailey at the time to which the testimony of the latter refers. According to the testimony of Shelton, he stopped at Bailey’s house. Theresa was there. Annie arrived after Theresa came there. They left the place; Theresa going first and Annie following her. Annie threw a rock at Theresa, who stopped at the Methodist Church. When the rock was thrown at Theresa, Annie caught up with her. Theresa struck at Annie with an iron pipe, but the witness could not say whether.she hit her or not. They then started a tussle, going to the ground. When Theresa got up, Annie cut her with the knife. The witness did not see the knife, as he was some fifty or sixty feet distant from the women.

Catherine Shelton testified that she saw Theresa get a piece of iron from a trash pile. It was an iron rod. Theresa said that Annie had insulted her, and she got the iron pipe to go to see her. She said she was going back to the chief’s house. The iron was about one inch in diameter and about two feet long. The witness said that she saw Annie and Theresa after they left Bailey’s house. She saw Annie throw a rock or rocks at Theresa. Theresa had a rock, but the witness did not see her throw it. Just as Theresa picked up the rock, they went to fighting. The two women were walking along the road towards the witness. Annie was on one side and Theresa was on the other. Annie threw two rocks. The witness did not know what either said before the fight, but, upon looking back, she saw they were fighting. Annie had Theresa down beating her with a knife. Annie was spanking her with a knife. Annie slacked up, and was fixing her shoe. Theresa then raised up and had a brick in her hand with which she hit Annie on the hack of the head. Annie turned around and thrust the knife into Theresa, who then fell to the ground. At the time Annie was squatting down and tying her shoe, she was bending over. Theresa hit her with the rock. Annie then brought her hand around and stabbed Theresa with the knife.

According to the appellant’s testimony, while she was at Chief Bailey’s house in conversation with him, Theresa was seen coming. Annie stuck her head around and said: “She will get me today.” After a few mo ments Annie left. She ¡returned to Bailey’s house about the same time that Theresa reached there. Theresa drew back an iron pipe to hit Annie, who went into the 'house and got a butcher knife. Annie stayed in the house a short time and left, going towards her home, which was in the same direction in which Theresa was going. She could not see Theresa until the witness had reached the big road, where Theresa was standing. Theresa had told the witness to go with her to Catherine Shelton’s home so the Shelton woman could make proof as to Bailey having been at the home of Theresa. On the wayl there, each threw rocks at the other. Theresa did not give any time to malee proof by the Shelton woman, but immediately approached Annie in a threatening manner with the iron pipe drawn to strike her. They clinched, and Annie spanked Theresa with the knife. Theresa then bit Annie. Annie disengaged herself, and was putting on her shoe which had come off, when Theresa hit her on the head with a rock. They then went to tussling, and’ .Annie was spanking Theresa with the knife. Annie had her back towards Theresa when she was hit with the rock. After receiving the blow with the rock, Annie raised up, somewhat dazed, and thrust the blade of the butcher knife towards Theresa, who fell to the ground. ••

In'the charge oh threats, self-defense, and provoking the difficulty, the evidence to the effect that the deceased used a rock in the altercation is ignored. Reference is made in the charge to the use of the iron pipe by the deceased. The omission of the reference to the othen weapon which other evidence goes to show was used by' the de-eeased-was calculated to mislead the jury and leave them of the impression either that the court did not regard the evidence with reference to the rock as true or that he did not regard it as material. Complaint was made of this fault in the charge before it was read ,to the jury, as shown by several bills of exception and special charges which are found in the record. In response to the appellant’s criticism of the charge, the court should have so framed its instruction to the jury as to make them understand that the .appellant’s right of self-defense was not restricted to the iron bar, but extended to the other weapon used by the deceased. The precedents upon the subject are numerous.

From Branch’s Ann. Tex. P. C. p. 1086, § 1937, the following remarks and authorities are quoted: “If the charge of the court mentions the weapons used by deceased or by the alleged injured party it should mention all of them, and in such case the charge is erroneous if it fails to instruct the jury that defendant could defend against either of such weapons. Wilson v. State, 46 Tex. Cr. R. 527, [81 S. W. 34]; Hayman v. State, 47 Tex. Cr. R. 266, [83 S. W. 204]; Gafford v. State [Tex. Cr. App.] 99 S. W. 998.”

In the opinion on the former appeal, reported in 118 Tex. Cr. R. 401, 40 S.W.(2d) 131, holding the charge on provoking the difficulty insufficient, the court expressed some doubt as to the propriety of submitting that issue at all, stating: “It would seem from the evidence more of an issue as to who began the difficulty than as to the provoking of the difficulty.”

In the opinion of the writer, the evidence in the present appeal illustrates the soundness of the conclusion stated. The essential elements of provoking the difficulty are laid down in many of the reports. See Howle v. State, 119 Tex. Cr. R. 17, 43 S.W.(2d) 594; Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952; Cottom v. State, 91 Tex. Cr. R. 534, 240 S. W. 918; Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161, 164.

In Dugan’s Case, supra, it is said: “That character of charge is applicable in instances in which the first attack is made by the deceased, but is induced by words and conduct of the accused reasonably calculated and intended to provoke an attack which may be used by him as an occasion for doing harm to his adversary.”

From the evidence in the present instance, it is apparent that the appellant' and the deceased were enemies. They were rivals for the favors of Chief Bailey, and were jealous of each other. According to the state’s evidence, the deceased had armed herself with an iron bar, stating that the appellant'had insulted her and indicating an intention to resent the insult. From the state’s.'testimony, the fight began by the appellant throwing a rock at the deceased. There seems no basis for the contention that the rock was thrown to provoke the deceased .to' make the assault upon the appellant to the end that she might avenge herself, 'but, on .the contrary, was an assault upon, the: deceased, which was the beginning of the difficulty for which the deceased had prepared herself, and into which she entered possessed with weapons, some of which, at least, the jury might have well decided were deadly. If the writer comprehends the facts and the law relating to them, they form no basis for an instruction to the jury upon the subject of provoking the difficulty.

For the reasons stated, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded.


author: CALHOUN, J.

text:
    ARMSTRONG v. STATE.
    No. 15398.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    D. T. Moore, of Aquilla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Selling intoxicating liquor is the offense; the punishment, two years in the penitentiary.

The state’s testimony was to the effect that the appellant sold to one Earl Landrith, on or about the 1st day of October, 1931, a gallon of whisky for which he paid her $5.50, and the state’s evidence shows that this transaction took place at appellant's residence.

The appellant did not testify as a witness in her own behalf. Two children were introduced by appellant, the effect of whose testimony was that the purchaser either brought the whisky to the place himself or he knew of its presence near appellant’s house, and he went and got it, and the appellant had (nothing to do with the sale of said liquor.

There is only one bill of exception in the record. It appears from said bill that, upon cross-examination of the witnesses Weldon Armstrong and Melvin Lee Armstrong, they, were asked the question whether they were in school on the day the alleged sale of whisky was alleged to have been bought of their mother and if school was in session on that day, which testimony was objected to by the appellant on the grounds that said .matter was immaterial and prejudicial. The court overruled said objection, and appellant excepted.

This bill is insufficient of itself to manifest the supposed error. Not enough of the surrounding .facts and circumstances are stated to enable this court to determine the merits of the bill and the correctness of the ruling involved to show that the evidence was inadmissible and that the ruling was erroneous and hurtful to the eause of the appellant, which is necessary in order to determine its admissibility or effect. The bill as presented does not show reversible error. See Tex. Jurisprudence, vol. 4, §§ 216 and 217, and authorities there cited; Branch’s Ann. P. O. § 207; Thompson v. State, 29 Tex. App. 208, 15 S. W. 206; Baker v. State, 67 Tex. Cr. R. 476, 145 S. W. 607.

No reversible error appearing, the judgment is 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.


author: CHRISTIAN, J.

text:
    McCARTY v. STATE.
    No. 15675.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.

      Campbell & Murphy, of Livingston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant was fined $10 for taking fur-bearing animals in Polk county with traps; it being charged in the complaint and information that the offense was committed on the 10th of December, 1931.

Appellant admitted that he used steel traps to take a fox and a raccoon at the time charged, but contended that chapter 355, Acts of the 42d Legislature (1931), Regular Session (Vernon’s Ann. P. O. art. 923qa — 1 note), under which the information was presented, had been repealed by chapter 264, Acts, of the 42d Legislature (1931) Regular Session (section 1).

Chapter 355, which became effective May 21, 1931, amended section 2 of chapter 22, Acts of the Second Called Session of the 41st Legislature (1929), as amended by chapter 24, § 1, Acts of the Fifth Called Session of the 41st Legislature (1930). Chapter 24, Acts of the Fifth Called Session of the 41st Legislature (1930), amended in its entirety chapter 22, Acts of the Second Called Session of the 41st Legislature. Section 1 of chapter 22, as amended by chapter 24, § 1, provided:

“For the purposes of this Act the wild beaver, wild otter, wild mink, wild ringtail eat, wild badger, wild polecat or skunk, wild o’possum, wild raccoon, wild fox, and wild civet-cat, are hereby declared to be fur-bearing animals.”

We quote section 2 of chapter 22, as amended by the act last mentioned (section 1) as follows: “It shall be unlawful for any person at any time to take any of the fur-bearing animals of this State with a steel trap, snare, or deadfall or any other mechanical device other than a gun or pistol in any of the counties to which this Act applies.

“Provided, however, that this provision shall not apply to a trapper employed by the United States Government, the State of Texas, or by the Commissioners’ Court of any of the counties mentioned herein, and that this provision shall not apply to trapping within the bounds of State Game Preserves that may be located in any of the counties herein mentioned when doing so is under the direction of the Game, Fish and Oyster Commissioner.
“Provided, however, that this Act shall apply only to the Counties of Panola, Shelby, Nacogdoches, Rusk, Cherokee, Angelina, San Augustine, Hardin, Harris, Harrison, Polk, San Jacinto, Trinity, Tyler, Liberty, Anderson, Sabine, Brazos, Madison, Grimes, and Montgomery.”

Section 3 provided a penalty of not less than ten nor more than two hundred dollars.

It has already been observed that chapter 355, under which appellant was convicted, related solely to section 2, c. 22, Acts 41st Leg. (1929) 2d Called Sess., as amended by chapter 24, § 1; no effort being made to amend section 1 defining fur-bearing animals, or section 3, providing a penalty. Section 2 of chapter 22, as amended by chapter 24, § 1, as amended by chapter 355, reads as follows: “It shall be unlawful for any person at any time to take any fur-bearing animals of this State with a steel trap, snare, or dead-fall or any other mechanical device other than a gun or pistol in any of the counties to which this Act applies.

“Provided, however, that this provision shall not apply to a trapper employed by the United States Government, the State of Texas, or by the Commissioners’ Court of any of the counties mentioned herein, and that this provision shall not apply to trapping within the bounds of the State Game Preserves that may be located in any of the counties herein mentioned when doing so is under the direction of the Game, Fish and Oyster Commissioner.
“Provided, however, that this Act shall apply only to the Counties of Panola, Shelby, Nacogdoches, Rusk, Cherokee, Angelina, San Augustine, Hardin, Harris, Harrison, Polk, San Jacinto, Trinity, Liberty, Anderson, Sabine, Brazos, Burleson, Washington, Madison, Grimes and Montgomery.”

Bearing in mind that chapter 355, under which appellant was convicted, embraces no section affixing a penalty, but is dependent upon section 3, chapter 24, Acts of the Fifth Called Session of the 41st Legislature, which provides for a penalty of not less than ten nor more than two hundred dollars, we look to the provisions of chapter 264, Acts of 42d Legislature, Regular Session, to determine whether we ought to sustain appellant’s contention that chapter 355 has been repealed. It' has been observed that chapter 264 and chapter 355 were enacted at the same session of the Legislature, and that chapter 355 became effective May 21,1931. It is noted that chapter 264 became effective approximately three months after the effective date of chapter 355; that is, ninety days after adjournment, the Legislature adjourning May 23, 1931. Chapter 264 expressly repealed in its entirety chapter 24, Acts of the Fifth Called Session of the 41st Legislature, but made no mention of chapter 355, Acts of the 42d Legislature, Regular Session, under which appellant was convicted. The effect of the repeal of chapter 24, upon which chapter 355 was dependent for a penalty for a violation of its provisions, was to place chapter 355 in a condition in which an act was denounced as unlawful, but no penalty affixed. Unless the repealing act (chapter 264) provides a penalty for the act denounced in chapter 355, a reversal must be ordered. We quote article 3, Penal Code, as follows:

“In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written' law of this State.”

There is nothing in the repealing act (chapter 264 [Vernon’s Ann. P. C. art. 923qa — i]1) denouncing the act appellant is alleged to have committed. We quote section 2 of chapter 264 (Vernon’s Ann. P. O. art. 923.qa — 4, § 2), as follows:

“It shall be unlawful to take the pelts of any of the fur-bearing animals of this State at any time other than the open season provided therefor. The open season for taking the pelts of wild heaver, for that portion of the State of Texas lying west of the Pecos River, shall be during the month of January of each year. It shall be unlawful to take the pelts of wild heaver in any other portion of this State or to take the pelts of wild otter in any portion of this State within a period of ten (10) years following the passage of this Act. Provided-that it shall be unlawful to trap any fur-bearing animal in Angelina County during any month of the year, but it shall he lawful to sell the pelts and furs of fur-bearing animals in said county .during December- and January.”

Section 4 of chapter 264 (Vernon’s Ann. P. C. art. 923qa — 4, § 4), provides a penalty of not less than ten nor more than one hundred dollars for a violation of its provisions. Other sections except from the provisions of the act certain named counties; Polk county not being among the excepted counties.

As we have observed, appellant was charged with using a steel trap, in Polk county, in the month of December, 1931, to take a fox and a raccoon. Manifestly chapter 264 permits the taking of the pelts of fox and raccoon in Polk county during the open season. Nothing in said act denounces the use of traps during the open season. Under the provisions of chapter 45, § 1A, p. 185, Acts of the Fifth Called Session of the 41st Legislature (Vernon’s Ann. P. O. art. 923q, § 1A), the open season for taking fox and raccoon in Polk county is December and January of each year. Chapter 45 also provides (section 2 [see Vernon’s Ann. P. C. art. 923q; § 2]) that under certain conditions a trapper’s license is required. However, the provisions relating to a license are not pertinent; a violation thereof not being charged in the present case.

From what we have said, it follows that we must sustain appellant’s contention that chapter 355, Acts 42d Legislature, Regular Session, under which the conviction was had, was repealed by chapter 264, Acts 42d Legislature, Regular Session, which took effect prior to December, 1931, the month in which appellant took the fox and raccoon in Polk county with steel traps. It is observed, however, that chapter 7, § 2, Acts of the Third Called Session of the 42d Legislature, 1932 (Vernon’s Ann. P. C. art. 923qa — 6, § 2), provides that it shall be unlawful for “any person to kill, take, or have in his possession for barter or sale, after the passage of this Act, any wild beaver, wild otter, or wild fox, or the pelts thereof.” The act is made applicable to Polk and other named counties. A penalty for a violation of the provisions of the act is affixed. This act became effective September ■ 10, 1932, which was long after appellant’s conviction. Hence a discussion of its provisions would serve no good purpose.

The judgment is reversed, and the prosecution ordered dismissed.

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: HAWKINS, J.

text:
    BRADFORD v. STATE.
    No. 15377.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Brownlee & Brownlee, of Madisonville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

By complaint and information it was charged that appellant had transported intoxicating liquor in violation of the law (Pen. Code 1925, art. 666)'; it being further averred that he was under 17 years .of age. ' Upon trial before the court sitting for the trial of juveniles, appellant was found guilty of the offense charged against him, and the verdict directed that he be confined in the State Training' School for Juveniles for a period not to extend beyond his majority.

No written objections to the instructions to the jury were filed at the time of the trial, and apparently no exceptions were reserved to the introduction of any evidence. In an amended motion for new trial it is sought to urge many objections to the court’s instructions to the jury, and to raise many other questions, of procedure. The only bill of exception brought forward is a general bill predicated upon every ground set up in the amended motion for new trial. After all, it is only a bill reserved to the action of the court in overruling the motion. It has been held many times that accused cannot reserve for appeal complaints only set up in the motion for new trial. The matters of which he complains should be brought forward by bill of exception Showing that objections were urged at the time of the happening of the things complained of. Gann v. State, 109 Tex. Or. R. 640, 6 S.W.(2d) 751, in which many authorities are collated. See, also, Morgan v. State, 115 Tex. Or. R. 14, 27 S.W.(2d) 208. If in the motion for new trial there is pointed out for the first time some error of a fundamental nature, the trial court should take cognizance of it, and upon his failure to do so this court would review the question on appeal. We find nothing of the character mentioned in the present record.

The judgment is affirmed.


author: CHRISTIAN, J. .

text:
    BRUMBELOW v. STATE.
    No. 15387.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Levi Pressly and W. E. Myres, both of Fort Worth; for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J. .

The offense is robbery; the punishment, confinement in the penitentiary -for ten years.

Fred Eudy, who was an employee of the Coca Cola Bottling Company in the city of Fort Worth, was taking $1,058 in money and $484 in checks to the Fort Worth National Bank. He noticed a Buick car with two men in it following him. When he stopped on a light signal, W. H. Green got out of the Buick and got in his (Eudy’s) car. Holding his hand in his pocket, he ordered Eudy to drive to a certain street. Believing he was in danger, Eudy obeyed his command. The Buick car driven by the other man followed them. Green finally ordered Eudy out of the car, and he obeyed, leaving his money and checks in the car. The man in the Buick car was not immediately present when Eudy left his car. When he recovered his car, Eudy found that the money and checks had been taken by Green. On the trial Eudy was unable to identify appellant as the party who was with Green on the occasion in question.

Testifying for the state, Green admitted that he was the man who took the money and checks from the possession of Eudy and declared that he and appellant had previously entered into an agreement to rob Eudy. He said that appellant followed in the Buick automobile while he rode with Eudy to the place where he ordered Eudy to leave the car. He testified that he (Green) had his hand in his pocket at the time, but had no pistol. He testified, further, that after getting the money and checks he took them to his home, where he divided the money with appellant.

In view of the disposition we make of the ease, we deem it unnecessary to discuss the testimony offered by the state to corroborate the accomplice witness Green. Suffice it to say that one witness testified, in effect, that appellant told him that he and Green robbed Eudy. Another witness testified that shortly after the robbery appellant bought an automobile from him, paying him $200 in money, and that appellant later returned and asked him not to tell that he had paid him in money. Other statements made by appellant were introduced by the state as tending to corroborate the accomplice witness Green.

It was charged in the indictment that appellant took from the possession of Eudy $1,058 in money “and $484 in cheeks of, the value of $484.” Appellant made a motion to quash that part of the indictment charging the taking of the checks on the ground that the checks were not sufficiently described. We think the motion was well taken, and that the court should have treated the allegations as to the checks as surplusage. In Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561, in the opinion on motion for rehearing, this court held that an indictment charging that the appellant took one check of the value of $12.35 failed to sufficiently describe the check, and sustained Holland’s contention that the indictment should have been quashed. In the present case the court submitted to the jury, not only. the taking of the money described in the indictment, but also the cheeks. As the allegation regarding the checks does not sufficiently describe same to justify the submission to the jury of the guilt of appellant as dependent upon his taking such checks, if it be desired to seek the conviction of appellant for taking these checks, a new indictment should be returned setting out a more extended description than appears. Apparently the taking of the checks was part of the res gestae of the taking of the money alleged to have been taken, and, for this reason, evidence of the taking of said checks might be held admissible as part of the transaction; but, if the case is to be tried again on the indictment before us, the question of guilt of appellant, as dependent upon the taking of the checks, should not be submitted to the jury.

Without setting out appellant’s objections to the charge on principals, we express the opinion that on another trial the charge should be so drawn as to meet the exception's found in the present record.

As shown by bill of exception No. 2, the .state proved that shortly after the robbery appellant bought an automobile, for which he paid $200 in money. Appellant did not testify in his own behalf. The assistant district attorney, in his argument, after criticizing appellant for not producing witnesses to tell where he got the money with which he bought the automobile, used language as follows ; “I am not talking about defendant’s failure to take the witness stand and tell you where he got the money, but his failure to produce witnesses to tell you where he got it. The court tells you, you should not consider his failure to testify and we do not want you to.”

Appellant objected to the remarks above-quoted on the ground-that they constituted a direct allusion and comment on his failure to take the witness stand and testify in his own behalf. The objection was overruled. We think the bill of exception presents a violation of the mandatory provisions of article 710, O. G. P., which prohibits allusion to or comment on accused’s failure to testify. In Smith v. State, 106 Tex. Cr. R. 586, 294 S. W. 221, 222, the district attorney, in argument, said: “This defendant not testifying this defendant, I do not mean to refer to this defendant not testifying.” In concluding that the statement constituted a direct allusion to the failure of the appellant to testify, Judge Hawkins, speaking for the court, used language as follows: “It also shows that attorney for appellant immediately objected because the language was in violation of the statute and was a direct reference to the failure of appellant to testify, ‘he having elected to not testify in this cause.’ The bill, in our opinion, does not fail to show that appellant did not testify. The very language objected to makes it apparent, and the further statement in quotation removes any possible doubt It is unfortunate that the county attorney forgot himself. Realizing at once the mistake he had made he undertook to retrieve it, but if the means employed had been intentional the failure of accused to testify could have been no more forcefully called to the jury’s attention. As long as the statute remains as it is, this court must enforce it. We- find in the record an affidavit with reference to this matter, but in view of the court’s approval of the bill of exception, together with the fact that he instructed the jury not to consider the remark of counsel, we cannot consider the affidavit.”

In Wilcock v. State, 64 Tex. Cr. R. 1, 141 S. W. 88, one of the attorneys for .the state, in addressing the' jury, remarked: “The defendant’s defense in this case is — Although he has offered no testimony to that effect, I do not* mean to refer to his failure to testify.” When these remarks were made the appellant’s attorney objected on the ground that it was an allusion to the appellant’s failure to testify. The court instructed the attorney that he should not allude to the failure of the accused to testify. In reply, the attorney said: “I have not referred to defendant’s failure to testify. On the contrary, I stated to the jury that I did not so mean to refer to that fact.” In concluding that error was presented, this court,1 speaking through Presiding Judgé Davidson, used language as follows : “This is shown by the bill of exceptions. This was clearly an allusion to the fact that the defendant did not testify. The expression, T do not mean to refer to his {meaning defendant) failure to testify,’ clearly and unequivocally refers to the fact that defendant'did not testify.”

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: CALHOUN, J. MORROW, P. J.

text:
    McCOY v. STATE.
    No. 15082.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Withdrawn Dec. 7, 1932.
    Truett, Abernathy & Wolford, of McKinney, for appellant.
    W. C. Dowdy, Co. Atty., and Leon O. Moses, Asst. Co. Atty., both of McKinney, and Lloyd1 W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, assault with intent to murder; the punishment, two years in the penitentiary.

The evidence in brief offered by the state was to the following effect: The injured party, C. W. Roberts, was a regularly appointed and acting policeman of tlie city of McKinney, Tex., at the time he was shot by the appellant with a pistol. The said Roberts had been acting as a night watchman on the night he was shot. Just before the time he was to go off duty, he was informed by one Jack Davis that he had seen a couple of drunk fellows, one of whom was appellant, in a car and they were driving the car while drunk. That they had gone across the square by the courthouse, which is in the 'main business section of the city of McKinney; Roberts started to find the drunk men, and while he was crossing the square he met J. D. Harding, a newspaper boy, who told him that there were two drunk men at the Blue Bonnet Café and they were driving a car. On his way to the café, Roberts was met by one Obe McCol-lum, who stopped him and told him there were two drunk men at the Blue Bonnet Café. About this time Roberts saw the two drunk men going from the café to an automobile parked in the street near said café and the motor of said' car was running. The two men got in the car and started to drive away. One of the two men was the appellant, and Roberts went up to the ear and told them to halt. The appellant told his companion to pay no attention to Roberts but to go ahead, and he started the car and nearly ran over Roberts. They drove away zigzagging across the street as they left, and the said Roberts, together with one or two other persons, got in McCol-lum’s car and started in pursuit of appellant and his companion for the purpose of arresting them. They overtook the appellant and his companion at Tom Dane’s filling station just in the south edge of the city of McKinney. Roberts got out of the car and walked up to one Booker, who was the appellant’s companion, and told him to consider himself under arrest. He did not see the appellant at the time, but asked the operator of the filling station where the appellant was. He then skw the appellant standing a few feet inside the filling station. The officer started toward appellant, and when he was within six or seven feet of the appellant, the appellant shot him with a pistol. According to the testimony of the officer, he did not have his gun out at the time and had said nothing to the appellant. The bullet from appellant’s pistol struck the officer in the breast and passed through his body. After the shot, the officer pulled his pistol and shot at appellant six times but did not hit him. After the shooting, the appellant got in his car and tried to escape but was arrested by the other persons who were with the officer at the time.

When the charge of the court was submitted to the appellant, he excepted to the charge in submitting to the jury the issue as to assault to murder committed without malice, because neither the law nor the evidence warranted the submission of such issue. The indictment in this case charged that the appellant “did on or about the 15th day of March, 1931, and anterior to the presentment of this indictment, in the county of Collin, State of Texas, then and there unlawfully and voluntarily with malice aforethought make an assault in and upon C. W. Roberts with the intent then and there to murder the said C. W. Roberts.” The court charged the jury upon assault with malice aforethought and also assault with a deadly weapon without malice. The jury found the defendant guilty of assault with intent to murder without malice, and assessed his punishment at two years’ confinement in the penitentiary.

The error complained of in the charge as contended for by appellant was that the trial judge gave in his charge article 1160, P. C. 1925, as amended by the 42d Degislature, chap. 61, p. 95 (Vernon’s Ann. P. C. art. 1160), as the law covering assault with intent to murder, which act did not become effective until April 17, 1931, as amended, and was therefore not applicable to this case because the alleged assault for which appellant was on trial occurred on March 15, 1931. The act of the 42d Legislature amended article 1160, P. O. 1925, and changed said article to read as follows: “If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen years; provided that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in .the penitentiary,” et cetera, the only change in said article being “provided that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in the penitentiary.”

Section 4 of said bill reads as follows: “No offense committed prior to the taking effect of this Act of the Legislature shall be affected hereby, whether the indictment has been returned or not, but in every such case the offender may be proceeded against and punished under the law as it existed prior to the taking effect of this Act, the same as if this Act had not been pdssed.”

The indictment in this case was filed on May 1, 1931. The trial of said case commenced on October 10, 1931. The appellant cites in' support of his contention the eases of Hernandez v. State, 109 Tex. Cr. R. 603, 6 S.W.(2d) 748, and Collins v. State, 111 Tex. Cr. R. 308, 12 S.W.(2d) 801. Under the holding of this court in those cases, the trial court was in error in charging the jury under article 1160, as amended, because of the language of said bill, which provided that no prior offense should be affected by reason of said amendment.

The trial court in his charge to the jury gave to the appellant, as the court below evidently thought, the benefit of the new statute by the terms of which, if the assault was made without malice, the minimum penalty for the offense had been reduced from two to one year. Prior to the amendment in 1931, the lowest punishment that could be inflicted under a charge of assault with intent to murder was for a period of not less than two years. This was the punishment assessed by the jury in this case. The question arises as to whether'it was such error as would authorize a reversal of the case under article 666, 0. C. P., which provides that a case shall not be reversed even for an error in the charge unless such error be one calculated to injure the rights of the defendant. Conceding that the trial court, as contended by the appellant, should have charged under the old article 1160 and not as amended, the punishment fixed by the jury was within both the old and the new statutes. We do not believe that the erroneous charge complained of was so hurtful and prejudicial to appellant as to call for reversal upon this issue. See section 644, Branch’s Ann. P. C.; Thompson v. State, 91 Tex. Cr. R. 234, 237 S. W. 926; also Ramirez v. State, 43 Tex. Cr. R. 465, 66 S. W. 1101.

Appellant also excepted to the court’s charge because the court did not submit the law of aggravated assault. We think that under, the evidence the issue of aggravated assault was not raised. The weapon used by appellant was per se deadly. So far'as the evidence adduced shows, the appellant intentionally shot the officer in the breast with a pistol. There was no evidence that the appellant did not intend to kill the officer at •the time he shot him. The law presumes under such circumstances an intent to kill. Hadnot v. State, 110 Tex. Cr. R. 109, 7 S.W. (2d) 566; Collins v. State, 108 Tex. Cr. R. 72, 299 S. W. 403. Hence, the issue of aggravated assault' was not raised.

By bill of exception appellant complains of the action of the trial court in permitting the injured party to testify as to the extent of the injury inflicted upon him and as to the time of confinement in the hospital as a result of said injury. We do not believe that it was reversible error to permit the witness to testify as to the nature and character of the wounds inflicted upon him. See Daniels v. State, 112 Tex. Cr. R. 305, 16 S.W.(2d) 539; Duttrell v. State, 70 Tex. Cr. R. 183, 157 S. W. 157; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548.

Bill of exception No. 3 shows that the prosecuting witness, Roberts, testified as to certain statements made to him prior to the shooting by Jack Dowell, J. D. Harding, and Obe McCollum to the .effect that defendant and one Booker were cutting up at the Blue Bonnet Café’; that they were drunk and traveling in a car and were driving the car while drunk around on the public streets of the city of McKinney and they pretty nearly ran into a grocery store and a market. After the witness had so testified, he further testified that thereafter he saw defendant and Booker go from the café to a car and drive south on Kentucky street. The .testimony complained of, as shown by the bill, was not objected to when first offered, but the appellant afterwards moved the court to exclude the testimony as to what these parties told Roberts. The appellant explained that the testimony was not objected to when first offered for the reason that defendant’s counsei supposed that the state was undertaking to prove that the officer had been notified by said witnesses that a felony had been committed and the offenders were about to escape..

The evidence in the case shows that the witness Dowell told the officer, C. W. Roberts, that he had seen a couple of fellows, one of whom was the defendant, drunk and driving the car while drunk and a si to where they had gone. The evidence also showed that the witnesses Harding and McCollum informed the officer substantially to the same effect. The witness Roberts testified that one of the reasons why he went to the restaurant where appellant and his companions were was because he had been informed by the said witnesses .that the appellant and his companion were drunk and were driving an automobile while so drunk upon the public streets of the town of McKinney. For that reason the state was contending that under Article 215, C. O. P., which provides, “Where it is iffiown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused,” that the said Roberts had a right to arrest appellant without a waimant. The evidence complained of was admissible for the purpose of showing that before he attempted to arrest the appellant, representations by credible persons had been made to him that a felony was being committed by appollant.

The appellant also complains of the admission in evidence of the testimony of the witnesses Harding, Dowell, and McCollum, as to the conduct and action of defendant. Wq consider that all of said evidence was admissible to show, if it did Show, that appellant was drunk, and also to show that appellant and another were driving an automobile while intoxicated on the public streets of the city of McKinney, upon the issue as to whether or not the officer Roberts had the right to attempt to arrest the appellant and his companion without a warrant.

The appellant contends that the trial court committed reversible error in failing to instruct the jury that the attempted arrest of appellant wag illegal. It is conceded in appellant’s brief that the officer had the right to arrest appellant if it had been done in a legal manner, contending that the uncontra-dicted evidence showed that appellant did not know O. W. Roberts and did not know he was an officer, and because of the fact that the uncontradicted evidence further showed that on the occasion in question the said Roberts did not make known to appellant under what authority he (Roberts) was attempting such arrest.-

Under the evidence in this case, we do not believe that the trial court committed reversible error in failing to instruct the jury that the attempted arrest of appellant was illegal, but that he properly submitted the issue to the jury as to whether or not the appellant knew at the time he shot the witness Roberts that he was a peace officer.

No reversible error appearing in the record, 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.

MORROW, P. J.

Upon the written and verified request of the appellant that his motion for rehearing be withdrawn, the request is granted. Likewise his prayer that the mandate be issued at once.


author: MORROW, P. J.

text:
    WISDOM v. STATE.
    No. 15407.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Burris, Green & Benton, of Houston, and E. T. Yates, of Brownsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

The first count of the indictment charged the making by the appellant of a false instrument in writing, as follows;

«* * * Did then and there unlawfully and without lawful authority, and with intent to injure and defraud, make a false instrument in writing, which said false instrument in writing so made was then' and there substantially as follows, to-wit:
" ‘Southern Typewriter Co. No. 175
“ ‘Houston, Texas, August 25th, 1931
“ ‘Pay to the order of G. C. Wisdom $47.50 Forty Seven 50/100 dollars.
“ ‘Second National Bank, Houston, Texas.
“ ‘Southern Typewriter Co.
“ ‘By Chas. C. Finley,
Secretary Treasurer.
“ ‘By-, Manager’
and which said instrument in writing was endorsed on the back thereof as follows, to-wit:
“ ‘G. C. Wisdom “ ‘Gateway Hotel.’ ”

There are various criticisms of the indictment. It is apparent from the alleged forged instrument on its face that the maker thereof purports to be a different person from the payee. Under such circumstances, it is not necessary that the indictment aver that the forgery purports to be the act of another. See Tex. Jur. vol. 19, p. 846, § 31; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Branch’s Ann. Tex. P. C. § 1400. There was no necessity that there be an averment that Chas. C. Finley was the agent of the Southern Typewriter Company, with authority to execute the instrument.

There is an absence of an averment in the indictment explaining the words “Southern Typewriter Company”; that is, disclosing whether it is an individual, a partnership, a corporation, or an unincorporated organization. Speaking of the necessity for such an averment, Tex. Jur. vol. 19, p. 851, § 37, says: “Although the rule was formerly otherwise, it is now well settled that an indictment for forgery need not show whether the parties to the instrument are individuals, associations, partnerships, joint-stock companies or corporations.”

Numerous cases are cited in the notes. The first case dealing with the subject in this state appears to be Labbaite v. State, 6 Tex. App. 483. The necessity for such an averment was there affirmed, not so much on precedents, but upon analogy to the cases of larceny or theft. There is conceived to be a distinction. In theft, the status of the owner is essential as a basis for proof of want of consent to the taking of the property. At all events, as stated in the text aboye, the case of Labbaite v. State, supra, has never been followed, but the contrary view has prevailed in the more recent cases. An example is the case of Morville v. State, 63 Tex. Cr. R. 551, 141 S. W. 98. See, also, Brod v. State, 42 Tex. Cr. R. 71, 57 S. W. 671; Howard v. State, 37 Tex. Cr. R. 494, 36 S. W. 475, 66 Am. St. Rep. 812. It is not indicated in Willson’s Criminal Forms (page 215, form 410) that such an averment as that for which the appellant contends is necessary.

It is the practice that the pleader, if he possesses or has access to the instrument which it' is charged is forged, should set it out in hsec verba. If the instrument is not available, it will suffice to describe it in the indictment. See State v. Baggerly, 21 Tex. 757, 759; King v. State, 27 Tex. App. 567, 11. S. W. 525, 11 Am. St. Rep. 203; Baird v. State, 51 Tex. Cr. R. 322, 101 S. W. 991. See, also, Branch’s Ann. Tex. P. C. p. 850, § 1397; and other cases.

The term “substantially” used in the indictment implies that, the state is not bound, to prove the tenor of the instrument upon which the prosecution is founded. See Branch’s Ann. Tex. P. C. p. 851; also, Thomas v. State, 18 Tex. App. 221.

The exception to the indictment, which alone was before the court at the time he overruled the motion to quash, contained no averment to the effect that the state was in possession of the original instrument or otherwise indicating that conditions existing did not justify the pleader in describing the instrument by its substance. It may be added, however, that during the trial it became manifest that the writing was set out in the indictment in hsec verba. Moreover, when the instrument was offered in evidence, there appears to have been no objection to its reception.

The evidence relied upon by the state is, in substance, as follows: Appellant passed to Robert Runyon the cheek described above, and received in cash and merchandise the amount of the check. Appellant represented that he was a wealthy East Texas farmer and had come to the valley to live, and that he had bought property there. He had in his possession a letter purporting to come from Charles C. Finley, president of the Southern Typewriter Company, by which authority was given to G. C. Wisdom to issue cheeks against the account of the Southern Typewriter Company of Houston, Tex., signing the name of that company. At the time of passing the check, the appellant indorsed same.

A witness qualified as an expert in handwriting testified that the indorsement on the check was in the same handwriting as G. C. Wisdom, which was written on the face of the check as the payee, and that the name “Charles C. Finley,” attached to the letter, was in the same handwriting.

A letter purporting to authorize the appellant to draw checks against the account of the Southern Typewriter Company and to sign! them in the name of the company was introduced by the state. The paper mentioned was partly printed and partly typewritten, and the signature was in longhand. From it, it appeared that there were four or five individuals connected with the organization known as the Southern Typewriter Company. It was also shown that a young lady (Miss Webb) was authorized to draw cheeks in the ñamé of the Southern Typewriter Company upon the bank in which its account was kept and upon which the alleged forged cheek was drawn. To prove that the check was not signed by Charles C. Finley, the state introduced neither Finley nor any of the officers of the company named; nor did it introduce Miss Webb,- nor in any manner account for the absence of the introduction of testimony which apparently was available, and by which, if true, the state could have, shown that the check was unauthorized and the signature forged. Neither did the state introduce any of the officers or persons mentioned, or otherwise show, save in the manner of comparison of handwriting, that the written instrument authorizing the appellant to draw checks on the Southern Typewriter Company was spurious. In fact, to prove that the check was written by the appellant and to prove that he had no authority to write it, reliance by the state was had upon circumstances alone, mainly upon the ■circumstance of similarity of handwriting, upon which there is a conflict of opinion. It is to he noted that, in all particulars save the passage of the check and the indorsement thereon, the criminative evidence is circumstantial. The law does not look with favor upon the conviction of one upon circumstantial evidence when direct and positive evidence could be obtained by reasonable diligence. See Tex. Jur. vol. 18, p. 85, § 43; Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227; Clayton v. State, 15 Tex. App. 348; Williams v. State, 19 Tex. App. 276. In other words, the rule is that the best evidence available should be supplied. See Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926.

The cogency of the testimony, aside from the question of circumstantial evidence, is of questionable sufficiency to support the verdict.

The judgment is reversed, and the cause remanded.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    CUBIT v. STATE.
    No. 15287.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    Rehearing Denied Dec. 7, 1932.
    O. J1. Williamson, of Lockhart, and Henry Paulk, of Austin, for appellant.
    Fred L. Blundell, Dist. Atty., of Lockhart, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed 6. W. Mann by stabbing him with an ice pick.

Deceased ran a small store in a section of the town of Luling occupied by negroes. Witnesses for the state testified that between 12 and 1 o’clock on the night of May 13, 1931, they heard some one in the direction of deceased’s store cry out: “Oh! Oh! Help! Help!” That immediately after hearing these cries they heard a noise along the highway which sounded like feet striking on the gravel road; that they looked in the direction of the highway and saw a man coming through a fence. An investigation of deceased’s premises shortly after this noise was heard disclosed that the door of the store was open, and that deceased was lying on his face in a ditch in front of his store. Upon being turned over, deceased gasped twice, and died. There was an ice pick seven or eight inches long sticking “clear to the ¡handle” in the breast of deceased just over the heart. Willie Lee Woodson, a witness for the state, testified that on the night before deceased was killed he saw appellant, Willie Ray Autrey, and Louis Rogers in a café near deceased’s place of business; that appellant stated to him, in the presence of Autrey and Rogers, that they needed some money, and asked the witness if deceased had any money in his place of business, and, if so, where he kept it; that he stated to appellant that he did not know whether deceased had any money, and guessed if he did have any he kept it in his pocket; that the parties asked him to accompany them to deceased’s place of business, and he refused; that on the same occasion appellant asked one Dora Bell Chambers if he could borrow her pistol as he wanted to use it in robbing deceased. The witness testified, further, that on the night deceased was killed he was again at the café and saw appellant, Louis Rogers, and Willie Ray Autrey sitting together on a bench in front of the café. He said he could not understand what they said, but that they were talking to each other. Dora Bell Chambers testified that appellant tried' to borrow a pistol from, her. It ■appears from the testimony that deceased was killed between 12 and 1 o’clock. .State’s witness Gant, who was an employee of the highway department, testified that he passed deceased’s place of business in an automobile about 12 o’clock on the night of the homicide, and saw appellant and another negro standing in front of deceased’s store. It appears, further, from the testimony of state’s witnesses, that deceased, shortly before he was killed, had some money in a certain part of his store, and also in a purse which he carried in his pocket. After the homicide a search of the store and of the body of deceased failed to disclose any1 money. To this point the testimony we have detailed came from nonaecomplice witnesses.

Willie Ray Autrey, an accomplice witness, testified, in substance, as follows: On the night before the homicide he was with appellant and Louis Rogers in a café near the store of deceased. On this occasion he and Rogers talked about robbing deceased. On the following night they met at the café, and later, pursuant to an agreement, went to deceased’s store between 12 and 1 o’clock for the purpose of robbing him. He remained outside while appellant and Rogers entered the store. While he was watching, appellant and Rogers came out with deceased between them. Deceased was scuffiing and crying for help, and, becoming frightened, he (the witness) ran away from the store. As he ran he looked back and saw appellant and Rogers running across the highway in the direction of a nearby house. This witness gave substantially the same testimony as did the witness Willie Lee Woodson touching the conversation had with Woodson on the night preceding the homicide, in which appellant asked Woodson whether deceased had any money, and requested Woodson to aid them in robbing deceased.

Testifying in his own behalf, appellant denied that he had any connection with the robbery and murder of deceased. He declared that he was. at the home of a relative at the time the homicide was committed, where he remained until the next day, and knew nothing about the killing. Further, he denied that he had any conversation with the witness Woodson, in which he asked him if deceased had any money in his place of business. He said further that he had made no effort to borrow a pistol from Dora Bell Chambers.

Witnesses for the state testified, in rebuttal, that they saw appellant at the depot in Luling with Louis Rogers between 2 and 3 o’clock in the morning, which was approximately two hours after deceased was killed. This testimony was offered by the state for the purpose of meeting the testimony of appellant that he was at the home of a relative during the night the homicide occurred.

We are unable to reach the conclusion that the accomplice witness was not sufficiently corroborated. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be other evidence tending to connect the accused with the offense committed. Article 718, C. C. P.; Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422, 429. We quote from Minor v. State, supra, as follows: “'Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied.” Considering the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses, the opinion is expressed that there was before the jury proof confirming the testimony of the accomplice to material facts tending to connect appellant with the commission of the offense.

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.

LATTIMORE, J.

Appellant urges the insufficiency of the testimony to corroborate that of the accomplice’ Autrey. We have again reviewed carefully the testimony in view of the extreme penalty given appellant by the jury. The only test of corroboration, under our practice, is whether the facts and circumstances, independent of the testimony of the accomplice, tend to connect this particular accused with the commission of the crime charged. But one answer to this query seems possible under the testimony. A witness testified that on the night before the killing this appellant and two others wanted him (witness) to’go with them and rob deceased. The same witness further testified that on the night of the killing and near midnight he saw the same three parties who had been discussing the robbery of deceased, at the same colored restaurant where he had talked the matter over with them the night before; he having declined to take part in the robbery. Another witness testified that at about midnight he saw appellant with another standing immediately in front of the little store of deceased. The accomplice witness, who was keeping watch while the two others perpetrated the robbery, testified that after appellant went into the store of deceased he saw appellant and the other man struggling with deceased in front of the store and heard deceased call for help. A state witness who lived immediately across tlie street from said store testified tliat lie was aroused by bearing deceased call for help, and that he went over to the store and found deceased near by with an ice pick thrust through his heart. These are not all but merely some of the corroborative facts. There seems no doubt but that they tend to connect appellant with the crime charged. We find nothing in any other contention made in the motion, which would seem to call for discussion.

The motion for rehearing is overruled.


author: LAWHON, J.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. BAUGHMAN.
    No. 2282.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 6, 1932.
    Rehearing Denied Dec. 7, 1932.
    Sonfield & Sonfield, of Beauimont, for appellant.
    J. B. Morris and W. T. McNeill, both of Beaumont, for appellee.
   LAWHON, J.

Appellee brought suit in the county court oí Jefferson county at law against appellant, seeking to recover on an insurance policy issued by appellant on the life of Mrs. Evelyn lone Baughman, wife of appellant, and in which policy he was named as beneficiary. The appellant defended on the ground that at the time of the death of Mrs. Baughman the policy had lapsed by reason of failure to pay premiums as they became due. A trial was had before the court, and judgment was rendered in favor of the appellee for $450 the amount claimed on the policy, together with interest, a penalty of 12 per cent., and an attorney’s fee of $100.

The evidence disclosed that appellant issued two policies, one on the life of Mrs. Evelyn lone Baughman and one on the life of Joyce* M. Baughman, a small child of appel-lee and the said Mrs. Evelyn lone Baughman. Receipt books were issued originally on both policies. These receipt books showed the numbers of the policies, the due dates of the premiums, and the dates-when the premiums were paid, also the names or initials of the agents of appellant who collected the premiums, also other information required by appellant company. It is shown that the 'receipt book of the child was used up, and, as the agent did not have another blank book, he wrote the name of the child on the book of the mother, and thereafter used only one book for crediting premiums on both policies. The premiums were payable weekly. The receipt book was offered in evidence; and it showed that the name of the child had been marked out and the name of the mother remained. The payments, as shown by the receipt book, indicated that one policy had lapsed, but that the other, while one week in arrears, had not lapsed at the time of the death of Mrs. Baughman; the policies'providing that they should not lapse until after four weeks’ default in the payment of premiums.

It was the contention of appellee that, as the name of the child had been erased from the receipt book, it showed that this policy had terminated, and that the policy of the mother was in good standing. This receipt book, without explanation, would bear this construction. Appellant attempted to prove by two of its agents that the name of the child was erased by mistake, and that the name of the mother should have been removed. Certain records of appellant company were sought to be introduced for the purpose of showing that the mother’s policy had been forfeited. All ■ this evidence was excluded on the ground that the receipt book was the best evidence and that appellant could not contradict its recitations by extraneous testimony. This book was the only evidence introduced by appellee to show that the premiums had been paid. The receipt book was not different, in legal effect, from other receipts. It was not a contract, and could be explained, varied, or contradicted by parol testimony. 22 C. J. §§ 1520, 1521; Texas Mutual Life Ins. Co. v. Davidge, 51 Tex. 244; Gorman First Nat’l Bank v. Mangum (Tex. Civ. App.) 176 S. W. 1197; Kelsey v. Blackman (Tex. Civ. App.) 293 S. W. 199.

The appellee did not pay any of the premiums; all payments being made by the deceased wife. There was evidence in the record that the wife had expressed an intention of letting the policy lapse, and appel-lee, at the time of his wife’s death, thought it was not in force. Appellant sought to prove by one of its agents that he had a) conversation with Mrs. Baughman, and that she stated that her husband was out of work and they were not able to keep up two policies, and had decided to let her policy drop, but would keep the baby’s policy in force. This evidence was excluded. The theory upon which it was excluded is not shown in the bill of exceptions, but from the statement of facts it appears that it was not admitted because Mrs. Baughman could not contradict the witness and because the receipt book was the best evidence. The insurance policy was a contract between Mrs. Baughman and appellant, and her testimony was admissible on the issue as to whether premiums had been paid to keep it in force. Article 3716, R. S., has no application. This was not an action involving a deceased person’s estate, nor was it one by or against the heirs or legal representatives of the decedent. In our opinion, the court did not commit error in excluding the introduction of what was termed “lapse sheets.” This was a record, or memorandum,, made by the witness, an agent of appellant, showing when a policy had lapsed, and was kept for the purpose of showing the company the policies that were not in force. They were self-serving declarations and were not. admissible.

Appellee contends that appellant cannot urge that the evidence was admissible because his attorney stated during the trial that he was not attempting to show mistake with reference to the erasure of the child’s name from the receipt book instead of the mother’s, and therefore invited any error, if the court made any. Appellant’s attorney stated, with reference to the testimony of a witness, that he was not relying on a mistake with reference to this testimony. The bills of exceptions show that he was offering the testimony excluded for the-purpose of showing that the receipt book did not properly reflect the facts, and that premiums shown to have been paid by Mrs. Baugh-man, the deceased, were, in fact, paid for the child. We do not think the record shows that appellant invited the error in excluding this-testimony.

It is also contended by appellee that appellant cannot complain because he did not plead that there was any mistake in the receipt book. The suit was not upon the receipt book in question, but upon the insurance policy. In making the defense that the policy had lapsed by reason of nonpayment of dues, it was not necessary that appellant plead the evidence upon which it relied. It could show by any legal evidence that the premiums had not been paid. We therefore overrule this contention.

As we construe the record, the only evidence showing that the premiums were paid was the receipt book, and all the evidence attempting to explain or contradict the receipt book was excluded. It is therefore our opinion that the judgment of the trial court should be reversed and remanded for a new trial, and it is so ordered.


author: GALLAGHER, O. J.

text:
    FRENCH v. HUX et ux.
    No. 1280.
    Court of Civil Appeals of Texas. Waco.
    Oct. 27, 1932.
    Rehearing Denied Nov. 25, 1932.
    Richard & A. P. Mays, of Corsicana, for appellant.
    Lovett & Lovett, of Corsicana, for appel-lees.
   GALLAGHER, O. J.

This suit was instituted by appellant, J. I. French, in' the district court to recover from appellees, J. W. Hux and wife, control and custody of his infant daughter, Ruby Dorothy French. A trial before the court resulted in a judgment that the care, custody, and control of said infant child for the present, and until the further order, of the court, be awarded to appellees, J. W. Hux and wife, Lizzie Hux, to be reared, maintained; and educated by them. It was specially provided in said judgment that appellant should at all reasonable times have the right to see and be with said child.

The court subsequently filed findings of fact in support of said judgment. The substance of such findings is contained in the following abridgement: (1) Appellant is the father of Ruby Dorothy French, a girl three years old. Its mother died at its birth and it has resided with fits grandparents, appellees herein, all its life. (2) Said child at its birth was sickly and it was doubtful whether it would live. Such condition continued until it was about eighteen months of age, since which time it has had reasonably good health. Appellees have nourished, cared for, and supported it since its birth. (3) Appellees are greatly attached to the child and look upon it and feel toward it as they would their own. (4) Appellant has contributed approximately ⅞100 to the support of said child and the remaining expenses have been borne by appellees. (5) Appellant, after the death of his first wife, the mother of said child, gave and surrendered it to appellees and gave them its custody and possession, together with all his rights thereto, upon the condition and their promise that they would take said child and raise it as their own. Appellant promised in that connection that he would never take said child from appellee» and they accepted it on such condition have had its care and custody all its life. (6) Appellant is an oil well driller and his occupation carries him from one oil field to another as oil is developed, to secure employment. He does not own a. home, and since the birth of said child has lived in Wink, Rosebud, Van, Henderson, Kilgore, and Longview, Tex. (7) He is a man of good character and is a proper person to have the care and custody of his child and financially able to maintain the same. He has married again and is living with his wife. No children have been bom of such marriage. (8) Appellees are substantial tenant farmers and have resided in the Eureka community in Navarro county, Tex., -for about twenty-five years. They are of good moral character and financially able to support and maintain said child and are in all things proper persons to have its care and custody. (9) On account of the age and sex of said child, ap-pellees’ attachment to it, and their understanding of its condition by virtue of having had possession of it all its life, it is to its best interests tbat it remain with appellees; they being better fitted to care for it.

The court further, at the request of appellant, made additional findings, in substance, that said child has never been adopted by appellees and appellant has never released his rights to them in writing, and that his present wife is qualified to assist him in rearing and educating said child and is anxious to do so.

Opinion.

Appellant contends that the finding of the court that he at the birth of his said child surrendered it, with all his rights thereto, to appellees, and promised never to take it from them upon their agreement that they would take it and raise it, as their own, was immaterial and should not be considered in determining his right to recover the custody of said child, because the same was not in writing and duly acknowledged. The Supreme Court, in Legate v. Legate, 87 Tex. 248, 252, 28 S. W. 281, 282, held contrary to said contention.We quote therefrom as follows: “Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the ease at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations, which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the facts, it is of opinion that the best interest of the child would be promoted thereby. [Italics ours.] * * * The law does not prohibit such- a transfer, but on the contrary allows the child to reap the benefit thereof when it is to its interest so to do.” Said authority was cited and quoted by the Commission of Appeals in Davis v. Sears, 35 S.W.(2d) 99, 102, par. 6. See, also, Duckworth v. Thompson (Tex. Com. App.) 37 S.W.(2d) 731, 733, pars. 1 and 2; Id. (Tex. Civ. App.) 22 S. W.(2d) 528, 530, pars. 1 and 2.

Appellant contends that said finding of the court was immaterial and should not be considered in determining his right to recover the custody of said child, because ap-pellees have not formally adopted the same as théir heir in the manner prescribed by our Revised Statutes (articles 42 to 46, inclusive). Said child, being the only surviving issue of its mother, was by virtue of such fact an heir at law of appellees and a formal adoption would not have conferred any further or greater right of inheritance. .

Appellant assails the sufficiency of the evidence to sustain the finding of the court that the best interests of said child require that it remain for the present, and until otherwise ordered by the court, in the control and custody of appellees. The other findings of the court above recited are amply supported by evidence. The other facts in evidence not specifically embraced within such findings are in harmony therewith. Without reciting the testimony, we think the same as a whole sufficiently sustains the finding so .assailed. While there is a presumption that the best interests of the child will be subserved by awarding it to the natural parent, such presumption is rebuttable, and in cases such as this the issue must be determined from a consideration of the evidence as a whole. The question of whether the home of appellant or the home of appel-lees will best promote the interests of said child is one of fact. The authority and discretion to weigh the testimony and to determine this issue is vested in the trial court, and its Judgment will not be disturbed unless it is so contrary to the great preponderance of the testimony as to reveal an abuse of that discretion. Taylor v. Taylor (Tex. Civ. App.) 42 S.W.(2d) 455, 456, and authorities there cited; Davis v. Sears (Tex. Com. App.) supra, 35 S.W.(2d) page 103, pars. 11 and 12, and authorities there cited; Duckworth v. Thompson (Tex. Com. App.) supra, 37 S.W.(2d) page 735; Howard v. Sensat (Tex. Civ. App.) 45 S.W.(2d) 1023, par. 2; Schneider v. Schwabe (Tex. Civ. App.) 143 S. W. 265, 266, par. 2 (writ refused); Joseph v. Puryear (Tex. Civ. App.) 273 S. W. 974, 975, par. 1; Stout v. Myers (Tex. Civ. App.) 242 S. W. 1109, 1111, par. 5; Fasel v. Gunning (Tex. Civ. App.) 249 S. W. 875, 877, par. 4. We find no such abuse in this case. The judgment herein, out of consideration for the continued welfare of said child, may be modified or set aside in proper proceedings instituted for such purpose when it is affirmatively shown that conditions and circumstances existing at the time the same was rendered have materially changed, and that the welfare of the child will be conserved by changing the terms of such judgment or setting it aside entirely. Such revision is in effect provided for by the terms thereof. Hardy v. McCulloch (Tex. Civ. App.) 286 S. W. 629, 632, par. 6 (writ refused) and authorities there cited; Jones v. Warren (Tex. Civ. App.) 300 S. W. 146, 148, par. 2.

The judgment of the trial court is affirmed.


author: FLY, C. J.

text:
    McMAHAN et al. v. BRISCOE.
    No. 8915.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1932.
    Hubberd, Dyer & Weaver, of Corpus Christ!, for appellants.
    Conger & Conger, of San Antonio, and Sidney P. Chandler, of Corpus Christi, for ap-pellee.
   FLY, C. J.

This is a suit on a promissory note and for the foreclosure of a vendor’s lien on lots 19 to 23, inclusive, block 106, of the East Robstown addition, instituted by appellee against B. R. McMahan, Mrs. Lela O. McKinley, a feme sole, and Lela E. McKinley, a feme sole. No jury was demanded, and on the trial the court rendered a judgment by default for $2,182.62 against B. R. McMahan, and for $1,400 against Lela O. McKinley, being the amount of her indorsement upon the note,- and foreclosed the vendor’s lien as to all of the defendants. The McKinleys appealed.

The findings of fact are fully supported by the statement of facts, and are adopted as the conclusions of fact of this court:

“1. On the 16th day of April, 1930, B. R. McMahan executed to Leila E. McKinley and delivered to Leila O. McKinley a vendor’s lien note, being note number two, for the sum of Nineteen Hundred ($1,900.00) Dollars payable in installments of One Hundred ($100.00) Dollars each, beginning on June 1, 1930, until and including October 1st, 1930, and on November 1, 1930, -an installment of Three Hundred Fifty ($350.00) Dollars and on December 1st, until and including April 1st, 1931, installments of One Hundred ($100.00) Dollars each, and on May 1, 1931, an installment of Three Hundred Fifty ($350.00) Dollars with installments of One Hundred ($100.-00) Dollars each on June 1st and July 1st, 1931, this note was secured by a vendor’s lien on Lots Nineteen (19) to Twenty-Three (23), both inclusive, Block 106, East Robs-town Addition to the Town of Robstown, situated in Nueces County, Texas, and being the Brendel Hotel Property, together with the fixtures, accessories and appliances therein. The note number one was for the sum of Twenty Thousand One Hundred ($20,100.00) Dollars and was created on the same date as note number two, and secured accordingly.
“2. The vendor’s lien ,was retained in the deed of even date with the above described notes from Leila E. McKinley by Leila O. McKinley, as her attorney in fact, to B. R. McMahan.
“3. On the 17th day of April, 1930, Leila O. McKinley, acting for herself and as attorney in fact for Leila E. McKinley, transferred and delivered note number two, here-inbefore- described, to Ed Hughes. In the written transfer executed by Leila O. McKinley, Leila O. McKinley made the following guaranty:
“ T hereby personally guarantee the payment of above note except Five Hundred ($500.00) Dollars.’
“And endorsed on the note over the signature of Leila O. McKinley, she made the following guaranty:
“ T hereby guarantee personally the payment of the within note except Five Hundred Dollars ($500.00).’
“4. Leila O. McKinley negotiated all transactions pertaining to the sale of the Brendel Hotel Property and acted for herself and as attorney in fact for Leila E. McKinley in delivering the note for Nineteen Hundred ($1900.00) Dollars to Ed Hughes on April 17, 1930, which note was never in the possession of Leila E. McKinley, and was delivered to Ed Hughes in payment of a real estate brokerage fee due him for the sale of the hotel property to B. R. McMahan.
“5. On the 6th day of June, 1930, by a written instrument, Ed Hughes transferred and delivered the Nineteen Hundred ($1900.-00) Dollar note to Eugene Briscoe, Sr., plaintiff herein, excepting Four Hundred ($400.00) Dollars, of which amount One Hundred ($100.00) Dollars, had previously been paid and Three Hundred ($300.00) Dollars was retained by Ed Hughes. On the 14th day of July, 1930, by an instrument in writing, Ed Hughes transferred and delivered to Eugene Briscoe, Sr., the whole of said Nineteen Hundred ($1900.00) Dollar note less the One Hundred ($100.00) Dollars previously paid thereon, whereby, for a valuable consideration, Eugene Briscoe, Sr., became the owner and holder in due course of the note sued upon.
“6. On the 16th day of July, 1930, Mrs. Leila O. McKinley repurchased the above described property from B. R. McMahan, which property was conveyed to her by a warranty deed executed and delivered to her by B. R. McMahan and wife, in which conveyance Mrs. Leila O. McKinley had such land conveyed to her son, William Wallace McKinley, and therein she had incorporated the following provision as a part of the consideration for such conveyance:
“ ‘Subject to the following indebtedness: the sum of Seventeen Thousand Five Hundred ($17,500.00) Dollars, payable to the Herman Sons of Texas, and Twenty-Five Hundred ($2500.00) Dollars payable to W. M. Conger of San Antonio, Texas; Also one note in the sum of Twenty Thousand One Hundred ($20,100.00) Dollars and one vendor’s lien note in the sum of One Thousand Nine Hundred ($1,900.00) Dollars, both of said notes being payable by the grantee herein, the said B. R. McMahan to Lela B. McKinley or her assigns, all of. the said indebtedness hereinabove listed being the same as is listed in the deed from Lela E. McKinley to B. R. McMahan signed and delivered on the .16th day of April, A. D. 1930, for the purpose of further description of said indebtedness, reference to said deed being here made.’
“7. If Leila O. McKinley was not in fact the equitable owner of the Brendel Hotel Property and the notes executed by B. R. Mc-Mahan in payment thereof, she did have power and authority from Leila E. McKinley, to endorse and deliver the Nineteen Hundred ($1,900.00) Dollar note to Ed Hughes, as attorney in fact for Leila E. McKinley, and such note was actually delivered to Ed Hughes at the time of the transaction herein-before mentioned, though it was not endorsed by the use of the name of Leila E. McKinley at the time of such delivery.
“8. The note sued upon was declared due and payable upon non-payment of the installments as same accrued, and was placed in the hands of Conger & Conger, attorneys at law, for collection with an agreement to pay them the ten per cent provided therein as attorney’s fees for such collection, which is a reasonable fee.
“9. At the time of entering judgment in this cause, there was Two Thousand One Hundred Eighty-Two and 62/100 ($2,182.62) Dollars, principal, interest and attorney’s fees due and unpaid on said note, and the plaintiff was entitled to recover such amount against B. R. McMahan and Fourteen Hundred ($1,400.00) Dollars of such amount against Leila O. McKinley with a foreclosure of his lien upon the hereinbefore described .property.
“10. The sale of the above described property to B. R. McMahan was fully and finally consummated on the 16th day of April, .1930, in good faith, and the defendants have proved no defense to the plaintiff’s cause of action.”

The propositions of law are fully answered by the conclusions of fact, supported by the statement of facts, and are overruled. Lela E. McKinley, payee in the note transferred by Mrs. Lela O. McKinley, was the daughter of the latter, and appeared as a rather negative character throughout the negotiations and transfers. The mother, in her testimony, swore that she was authorized by a power of attorney to act for her daughter. She so acted, and Lela B. McKinley, the daughter, did not deny such agency, but failed to testify. The mother was the active agency through whom all the transactions were consummated.

The facts, as found by the trial judge, show the power and authority of Mrs. Lela O. McKinley to act for her inactive and acquiescent daughter. She swore: “My daughter is 27 years old and single. I acted under power of attorney in all the transactions for my daughter Lela E. McKinley. She was not present in any of the transactions. I did the trading on my own judgment; she had left it up to me — she was teaching in Laredo, and all deals were made without the presence of my daughter — I made them for her. * * *. I delivered the note to Mr. Hughes and personally guaranteed it myself. I did not deliver it to my daughter. In most of the transaction I was acting under power of attorney for my daughter.”

There is no error in the judgment, and it is affirmed.