text:
    WISCHKAEMPER et al. v. CLEMENT & WALKER.
    No. 3985.
    Court of Civil Appeals of Texas. Amarillo.
    March 15, 1933.
    R. H. Templeton, of Wellington, for appellants.
    J. B. Clark, of Shamrock, for appellee.
   MARTIN, Justice.

Appellees filed suit upon a promissory note. Appellants, on April 19, 1932, filed their original answer consisting of a general demurrer and denial. On April 28, 1932, they filed amended answers, consisting of a general demurrer, followed by a special answer setting up certain facts, the effect of which was to show plaintiffs’ suit had been prematurely brought. It is appellees’ contention that the latter was in effect a plea in abatement and not being filed in due order of pleading has been waived. Exception was sustained to same and judgment rendered for appellees. The action of the trial court in sustaining an exception to the plea mentioned is the sole lav? question presented by. this appeal.

A plea of this nature has been held to be a plea in abatement. 1 C. J. p. 108; 1 Tex. Jur. p. 131, § 95. Such dilatory pleas are waived by filing an answer to the merits ahead of them. 1 Tex. Jur. p. 166, §§ 121,122; Holt v. Farmer (Tex. Com. App.) 56 S.W.(2d) 633.

The- judgment is affirmed.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    DIVERSION LAKE CLUB v. HEATH et al.
    No. 7765.
    Court of Civil Appeals of Texas. Austin.
    March 8, 1933.
    Rehearing Denied March 29, 1933.

      See, also, 33 S.W.(2d) 479; 52 S.W.(2d) 380.
    Hertzberg & Kereheville and Templeton, Brooks, Napierj & Brown, all of San Antonio, for appellant.
    Ben H. Kelly, of San Antonio, and Ocie Speer, of Austin, for appellees Heath and Matthews.-
    Marcus W. Davis, of San Antonio, for ap-pellee Norman W. Self.
   BLAIR, Justice.

Appellant, Diversion Lake Club, instituted this proceeding to restrain appellees R. W. Heath, M. L. Matthews, and Norman Self from trespassing upon its lands riparian to Diversion Lake and Medina river, as a way to reach and fish in the waters of said lake and river; and also to restrain them from using boats and fishing in said waters. By cross-action appellees sought to perpetually restrain appellant from interfering with their right a£ citizens of this state to fish in or take fish from the waters in question, and to use the banks of the lake and river in the exercise of their right of fishery, alleging that such waters were navigable or public within the terms of article 5302, R. S. 1925, which reserved them, together with all the fish therein, to the state for the use and benefit of the public. The jury found on the sole issue submitted that the Medina river “retains an average width of thirty feet from’ its mouth up” to a point above the riparian lands and waters in controversy; and judgment was rendered perpetually restraining appellant from interfering with the right of appellees to enter upon the waters in controversy in boats and to fish in and take fish therefrom, the order requiring' ap-pellees to enter the waters of the lake and river by way of a public road and bridge across them. The judgment perpetually restrained appellees from interfering with appellant’s existing fences, from trespassing upon appellant’s abutting or riparian lands as a way of entering the waters, and from using the banks of said Diversion Lake and Medina river in the exercise of their right of fishery. Appellant has appealed from the order permitting appellees to fish in the waters; and appellees have cross-ássigned error with regard to the order restraining them. from using the banks of the lake and river in the exercise of their right of fishéry.

The evidence shows that two dams have been constructed under authority of the state across the Medina .river in Medina county, Tex. The first one constructed is known as the Medina dam and impounds the commingled waters of the Medina river and flood waters from water sheds above the dam,, and the large body of water thus formed is known as Medina Lake. The second dam is about four miles below the Medina dam, and is known as the Diversion dam, and impounds the commingled waters passing over or through the Medina dam, the waters of Medina river, and the flood waters from watersheds above the Diversion dam; and the body of water thus impounded is known as Diversion Lake. The Diversion dam was constructed under authority of the state statutes to impound, waters for an irrigation project or enterprise. Appellant’s lands are defined in the judgment “as two strips of land, each approximately 1500 feet in width and four miles in length, fronting on the shore line the entire distance on Diversion Lake on both sides and bounded by the main dam and the Diversion dam, except the public road which runs between the two dams crossing the Lake and River.” Appellant’s predecessors in title purchased the lands from the state, the grants calling for or extending only to the banks of the Medina river. Appellant, Diversion Lake Club, is comprised of about 25 members, and it has fenced the lands described and uses them as a recreation resort for its members exclusively. Deer, turkey, and quail are raised on the premises, and the club stocks the waters in question with fish; and the members of the club use the lake and river for hunting ducks, fishing, boating, and bathing. Appellant is not interested in the irrigation project; and the irrigation company has the right to use all the waters in Diversion Lake for irrigation purposes, if it desires, or should it become necessary to do so. Appel-lees’ sole interest is that of the public generally to boat and fish in the navigable or public waters of this state. The evidence fully sustains the jury’s finding that the Medina river retains an average width of thirty feet from its mouth up to the Medina or main dam, which, of course, includes the portion abutting on appellant’s lands. Appellees were shown to be citizens of this state and to have fished in the waters for a number of years, entering same by boat from the pub-lie road and bridge across the lake and river, until appellant stopped them by a temporary injunction issued herein, which was sustained on appeal to the Court of Civil Appeals at San Antonio (33 S.W.(2d) 479), because the question of whether the waters in question were navigable or public had not been determined by a trial, the court holding that the burden was upon appellees to prove such issue before they might exercise their right of fishery in said waters. On this trial on the merits, the temporary injunction was dissolved and the judgment or orders aforementioned entered.

The appellant presents two main propositions, which are in substance as follows:

1. That the court erred in permitting ap-pellees to enter upon and fish in the waters of Diversion Lake, because such waters are Within appellant’s inclosure and are situated wholly upon’lands belonging to appellant, and in which appellees have no right or interest, but are naked trespassers.

2. That the court erred in permitting ap-pellees to fish and use a boat in all of the waters of Diversion Lake, because all or a substantial portion of said waters are impounded upon lands belonging to appellant and lying beyond the banks which originally retained the normal flow of the Medina river before the construction of Diversion dam.

The specific contention of appellant under its first proposition is that under the common law of England, which was adopted in 1840 (Rev. St. 1925, art. 1), and which has since been the rule of decision in Texas, all grants by this state of lands lying on fresh water statutory navigable streams have carried with them, as a part of the title to the soil, full riparian rights; and that where, as in the instant case, the lands “on each side of the river or stream belong to the same person, he has the exclusive right of fishing so far as his lands extend along the same.” Kent’s Commentaries (12th Ed.) vol. 4, p. 412. And further, that except for the holding that irrigation is one of the riparian rights, the law of riparian rights in Texas is the same as the law of riparian rights at common law.

Whatever may have been the right of common, free, or several fishery in the navigable nontidal rivers or streams of England under the common law as it existed in 1840, and about which the authorities seem to be quite unsettled, is not material to a decision in this case, because the right of fishery in public or navigable waters in Texas must be determined not only in the light of the Mexican civil law and the common law, but also in the light of statutory enactments. Suffice it to say here, that the chief difficulties as to the common-law rule seem to have arisen with regard to determining the primary question of whether a particular stream or river should be classified as “navigable” or “non-navigable,” and according to the common-law rule the criterion of navigability was whether the tide ebbed and flowed in the stream. This test was found to be unsuitable for determining the mavigable character of the large rivers of America, and in most states the rule of “navigability in fact is navigability in law though the tide does not flow in the stream” was adopted. 11 R. O. L. 1029. Since 1837, the statutory test of navigability of a nontidal stream in Texas was and is now made to depend upon whether the stream retains an average width of 30 feet from its mouth up, without regard to navigability in fact. Acts 1837, p. 63, article 5302, R. S. 1925. It may also be observed that, while the right of public fishery in non-tidal navigable streams may have been quite unsettled in earlier days, the rule at common law seems to have become finally established at least by 1840, that when the navigability of a nontidal stream was established, the crown held the rights of fishery in such stream, as well as navigable rights, in trust for the use and benefit of the English people, without regard to the ownership of the soil beneath the stream; and, of course, there was always unanimity of decision that at common law, where the ownership of the land beneath the' tidal navigable streams remained in the crown, the public had a general right of fishery in such navigable streams or waters. 11 R. C. L. 1021-1029; 27 R. C. L. 1316; 26 C. J. 602; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305. And except as to statutory or different tests as to navigability and as to certain powers given the federal government by the United States Constitution,. the powers of Parliament, and the prerogatives of the King of England with regard' to the right of the public to fish in public waters and navigable streams, as exercised under the common law of England and the civil law, have been exercised by the several sovereign states of America. Texas has exercised similar powers and prerogatives since its earliest existence as a sovereignty; and, while Texas adopted the common-law rule of decision in 1840, it was with statutory and constitutional exceptions, and the law is well settled that as to ownership of the beds of statutory navigable streams, as well as the ownership or control of the waters in statutory navigable streams, and the rights of the general public therein, are determinable in the light of the civil and common law, as modified by the Acts of the Republic of Texas 1S37, p. 63, and in the light of the court decisions that with respect “to the law of streams, Texas has adopted only such common-law rules as are suitable to its conditions and jurisprudence” ; and that in adopting the common law of England in 1840, “Texas did not intend to adopt the common-law rule applicable solely to beds of tidal streams and apply it to navigable and un-jiavigable nontidal streams”; but that under Acts of 1837, which modified both the common and civil law, and which declared that all streams or water courses that retain an average width of thirty feet from mouth up shall be navigable streams, whether so in fact, the state of Texas became the owner and has since [article 5302, R. S. 1925] continued to be the owner of thousands of miles of such river beds [Manry v. Robison (Tex. Sup.) 56 S.W.(2d) 438]. We make these observations as to ownership of the beds of statutory navigable streams in view of the facts that the governing principle for the right of public fishery is deducible from the ownership or control by the state of Texas of the beds and waters of such statutory navigable streams.

With regard to the public policy of this state to reserve public water courses and unsold fresh water streams, etc., in itself, and as to the property right in all fish and aquatic animal life therein, the Legislature has created a game, fish, and oyster commission, with general regulatory powers over all such matters, and has enacted several statutes which specifically declare such public policy. Title 67, chapters 1, 2, and 3, R. S. 1925. One of these statutes is the Act of 1919 (article 4029, R. S. 1925), which reads as follows: “Such of the fresh water lakes, rivers, creeks and bayous within this State as may be embraced in any survey of private land shall not be sold, but shall remain open to the public. If the Commissioner stocks them with fish, he is authorized to pro'tect same for such time and under such rules as he may prescribe.”

Another act was passed in 1925 (article 4026), which reads as follows: “All fish and other aquatic animal life contained in the fresh water rivers, creeks and streams and in lakes or sloughs subject to overflow from rivers or other streams within the borders of this State are hereby declared to be the property of the people of this State.”

In the recent case of Manry v. Robison, supra, the Supreme Court made a careful and exhaustive review of the law with regard to the ownership by the state of the beds of navigable streams, and under what law the title was or is acquired. And from this decision and others applicable, it may be regarded as settled law that since the adoption of the common law in 1840, Texas courts have uniformly held that the title to all navigable- streams coming within the statutory definition (Acts 1837, p. 63, art. 5302, R. S. 1925) is reserved in the state; that the rights of owners of lands bordering on or riparian to such statutory navigable streams or waters must be determined iii the light of the civil and common law, as modified by statutory enactments and court decisions; and that the title to the waters in “a public navigable stream under the statute * * * is in the state in trust for the public.” Motl v. Boyd, 116 Tex. 82, 286 S. W. 458, 468; Landry v. Robison, 110 Tex. 295, 219 S. W. 819; City of Austin v. Hall, 93 Tex. 597, 57 S. W. 563; State v. Grubstake Invest. Ass’n, 117 Tex. 53, 297 S. W. 202; State v. Black Bros., 116 Tex. 615, 297 S. W. 213, 53 A. L. R. 1181; King v. Schaff (Tex. Civ. App.) 204 S. W. 1039; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 13 S. Ct. 110, 36 L. Ed. 1018; 19 Tex. Jur. 688, § 2. In accordance with these general principles of law and as being deducible therefrom, Texas courts have uniformly held that “there is a general right in the public to fish in public streams and waters, subject to regulations imposed by the state.” 19 Tex. Jur. 690, § 3; Heath v. Diversion Lake Club (Tex. Civ. App.) 33 S.W.(2d) 479; Dincans v. Keeran (Tex. Civ. App.) 192 S. W. 603. This right, however, does not authorize or permit the trespass upon abutting or riparian lands as a way to reach and fish in public waters or streams. Smith v. Godart (Tex. Civ. App.) 295 S. W. 211; Fischer v. Barber (Tex. Civ. App.) 21 S.W.(2d) 569; Dincans v. Keeran (Tex. Civ. App.) 192 S. W. 603; Gustafson v. State, 40 Tex. Cr. R. 67, 48 S. W. 518, 43 L. R. A. 615. But the owner of riparian lands may not enjoin others, from using the banks of a navigable stream in the exercise of their right of fishery, the only requirement being that they shall make a reasonable use of navigable streams and the banks thereof for fishing. DinGans v. Keeran, supra. And while a riparian owner has the right of fishery and to use the waters and banks of a riparian statutory navigable stream, such right is not necessarily the right of a riparian owner alone, but also exists as a deduction from the general rule at both the civil and common law, as modified by statute in Texas, to the effect that the public have a prima facie right of fishery in all statutory navigable streams, the same as they have in other public waters. Stephensen v. Wood, 119 Tex. 564, 34 S.W.(2d) 246; 11 R. C. L. 1029, § 16; 27 R. C. L. 1317; 26 C. J. 602.

The specific contention presented by the second proposition is that even though it should be held that appellees and members of the public generally are entitled to boat, fish, and hunt in the waters of the Medina river at the point in question, the order went too far in extending that right to all of the waters of Diversion Lake, because a substantial portion of these waters is impounded upon and over lands belonging to appellant, which lie beyond the banks of the Medina river, and which were conveyed to appellant and its predecessors in title by deeds from the state. This contention is not sustained.

Aside from the fact that appellant, upon whom the burden rested, failed to show the lines describing its own lands, which were submerged by the waters of the artificial Medina Diversion Lake, thereby rendering it legally impossible f’br the court to grant the relief it prayed for, the proposition does not state the legal principle governing the question presented; and we pass to a consideration of that principle.

The evidence is undisputed that appellant’s predecessors in title voluntarily built the dam across the navigable Medina river, which raised the waters of the navigable stream so as to flood and impound them above and over their own lands. Appellant is bound by these acts of its predecessors in title and the principle governing the question thus presented is well stated in 27 R. 0. L. 1205, as follows: “If a person artificially raises the level of a navigable lake so as to flood his own lands, the public rights in the lake will be correspondingly extended so long as such artificial condition exists; and if he maintains that condition for the prescriptive period during which the public use and enjoy-the lake in its new condition, the title to such lands, so far as necessary to maintain the artificial condition, will vest in the state of dedication.”

This text is sustained by the case of Village of Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. R. A. 836, 74 Am: St. Rep. 859, and authorities there cited. See, also, 50 L. R. A. 836-847, and cases there cited, many of which involve the question of whether the common right of fishery extended correspondingly to the artificially increased level of the lake or lakes involved. True these cases involved the artificial raising of the level of the waters of navigable lakes, while in the instant case the facts involve the artificial raising of the level of the waters of a navigable stream or river so as to flood or inundate appellant’s own lands. But it can easily be seen that our conclusion is but the logical result of the principle common to all, and is a proper deduction from the governing legal principle that, if a person voluntarily artificially raises the level of the waters of a navigable lake, river, or stream so as to flood his own lands, the public right of fishery in such waters will be correspondingly extended so long as such artificial condition exists.

We do not wish to be understood, however, as passing upon any question of prescriptive right, title, or easement that the state might acquire to the newly inundated lands, so far as necessary to maintain the artificial condition of Diversion Lake. That question is not involved. Nor is there any right in the public to have the artificial lake maintained, because the irrigation company has the first right under its grant from the state to use all the waters of the lake, in its irrigation project should it ever become necessary to do so. We simply hold that since appellant is bound by the acts of its predecessors in title in artificially raising the level of the waters of the navigable stream so as to flood or inundate the lands of the appellant, the public right of fishery is correspondingly extended to the entire waters of Diversion Lake, so long as such artificial condition exists.

Appellant cites as authority for its aforementioned second proposition the cases of State ex rel. v. West Tennessee Land Co., 127 Tenn. 575, 158 S. W. 746, 747, Ann. Cas. 1914B, 1045; Fisher v. Barber (Tex. Civ. App.) 21 S.W.(2d) 569; Fin & Feather Club v. Thomas (Tex. Civ. App.) 138 S. W. 150; and Smith v. Godart (Tex. Civ. App.) 295 S. W. 211. These cases are not in point. Neither of them involves the voluntary acts of the owner causing the overflow or inundation of his own lands previously granted in fee by the státe; but in each case the facts show that the overflow or inundation was the result of the construction of a dam or channel by others, which the owner in no manner authorized, caused to b'e done, or ratified. It is therefore manifest that no element of voluntary dedication, estoppel, easement, or user in common with the public of all the artificial waters was involved in the cases cited. The other cases cited involve exclusive rights of fishery in certain lands under specific grants from the state, and are therefore not in point. In the instant ease appellant voluntarily impounded and enlarged the existing waters in a navigable stream riparian to its lands so as to inundate them, thereby permitting the fish from the stream to enter the entire waters of the artificial lake, and we hold that the public right of fishery will be correspondingly extended so long as such artificial condition exists; and that this right is one arising from the voluntary conduct of appellant or its predecessors in title, and finds its basis in some sort of principle of dedication, es-toppel, easement, or user in common of the enlarged waters of the navigable stream.

We do not"'sustain appellant’s third proposition that the court erred in submitting the question of navigability of the entire river to the jury, because the undisputed evidence showed that it was not navigable at the point riparian to appellant’s lands. The jury found that the river “retains an average width of thirty feet from its mouth up” to a point above the lands and waters in question. The proof of navigability followed the rule or test announced in the cases of Motl v. Boyd, supra, and Oklahoma v. Texas, 260 U. S. 606, 43 S. Ct. 221, 67 L. Ed. 428; State v. Bradford (Tex. Civ. App.) 25 S.W.(2d) 706; King v. Sehaff (Tex. Civ. App.) 204 S. W. 1039, and sufficiently supports the jury’s finding.

Nor do we sustain appellant’s fourth proposition that the court erred in excluding from the evidence a deed from San Antonio Trust Company to Diversion Lake Club, purporting to convey the title to the middle of the stream and including the river bed at the point in question. The title to the bed of the stream was in the state and no effort was made to show that appellant’s grantor or grantors, or predecessors in title, ever obtained a grant extending to the middle of the stream from the state, and nothing short of a specific grant from the state under legislative authority would suffice to convey the state’s title to the bed of the stream in question. State v. Black Bros., supra.

Nor do we sustain the cross-assignment of appellees that the court erred in restraining them from using the banks of the lake and river in the exercise of their right of fishery in the waters of the lake. The court foun’d and appellees admit in their briefs that they have a reasonable way of entering the waters of. the lake by the public road and bridge; and there is no evidence showing that appellees could not fully'and reasonably exercise their right of fishery in this manner without going on the banks of the river. Appellees were not entitled to use the banks of the lake for fishing where the fast lands or banks were the private property of appellant; and they offered no evidence describing the proper banks of the river at points not covered by the lake waters ; and for that reason it was impossible for the court to grant the relief prayed for.

We affirm the judgment of the trial court.


author: MARTIN, Justice.

text:
    ROSSON v. GROOM MUT. HAIL ASS’N.
    No. 3957.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.

      Lackey & Lackey, of Stinnett, for appellant.
    Stone & Guleke, of Amarillo, for appellee.
   MARTIN, Justice.

Appellant became a member of the Groom Mutual Hail Association and took one of its policies on certain crops for the year 1928 in the sum of $9,950. He alleges a total loss of these crops by hail storm and that one-half of the amount of the policy has been paid and sued appellee herein for the remainder.

The answer of appellee was a general denial and further that appellee “is a mutual hail insurance association, incorporated under the Acts of 1913, Chapter 22, page 40.” It admitted the issuance of the policy and the loss as alleged, and pleaded specially that the policy was “subject to all the conditions and stipulations set forth in the Constitution and By-Laws of this Association,” and that one of these provisions, article 6, was as follows: “Should the damages sustained to the crops insured exceed the amount paid in premiums and the additional liability fixed by law, the parties damaged shall have their share only of the fund prorated according to his amount of premiums and additional liability fixed by law and the By-Laws of this Company.”

It further specially pleaded the terms of the statute hereafter referred to. It alleged in detail: The aggregate collections of premiums for the year 1928; the total amount of proven losses by hail for such year; the amount of expenses; and the payment to appellant of 65 per cent, of the face of his policy.

The evidence sustained the facts pleaded by appellee without contradiction.

The trial court gave a peremptory instruction for appellee.

The refusal of the trial court to permit appellant to file a trial amendment is made the subject of bill of exception No. 1.

Such a matter rests largely within the discretion of the trial judge, whose judgment thereon will not. be disturbed on appeal in the absence of a clear showing of abuse of this discretion. 3 Tex. Jur. § 759; Rivers v. Griffin (Tex. Civ. App.) 16 S.W.(2d) 874; White v. Bank, 27 Tex. Civ. App. 487, 65 S. W. 498. Otherwise expressed, a matter of this kind must be so presented as to affirmatively on its face show that an error resulting in injury to the complaining party has been committed. Appellant’s bill No. 1 consists only of a showing of the reguest to file a trial amendment and the court’s ruling thereon, to which is attached a copy of the proposed pleading. This pleading contains many assertions that certain facts claimed to create liability and hitherto unknown to appellant had been proven on the trial, and an issue creating additional liability was sought to bo made of these in the trial amendment. A categoric denial of the truth of these assertions is made by appellee. In order, therefore, for us to appraise the merits pf this bill we must make a toilsome journey through a maze of facts and near facts hidden away in most instances amidst objections, arguments, and bickering of counsel. Both appellant’s bill and his brief are bare of any showing which would support his theory that prejudicial error was committed and which would enable us to say whether the court abused his discretion. We are not able to say from an inspection of either appellant’s bill or his brief that a state of facts existed which would justify the filing of the trial amendment.

Judgments of trial courts are presumptively correct and the burden is on the appellant to affirmatively show prejudicial error. 3 Tex. Jur. § 302. An allegation of fact does not prove itself and its truth, when denied, must be made manifest in some way. Hart v. Wilson (Tex. Civ. App.) 53 S.W.(2d) 1029.

While we are unable to consider this assignment as presented, the real questions involved therein seem to bo included in the disposition of other propositions, which we now discuss.

From a total of $238,788.99 shown to have been collected in premiums for the year 1928, there was deducted for expenses the sum of $45,456.07. It is earnestly contended that the question of whether or not such an amount of expenses was reasonably necessary and proper in the conduct of the business of appellee was an issue which should have been submitted to the jury and that therefore the peremptory instruction was error. The total of the.expenses was pleaded by appellee and shown in minute detail in the evidence introduced by it. The appellee properly assumed the burden of pleading and proving such matters as reduced the total liability shown in the face of the policy which, of course, included all these expenses in the final balance. Fort Worth Mutual Benevolent Association v. Haney (Tex. Civ. App.) 17 S.W.(2d) 104. No issue was made in the evidence as might have been under the pleadings, as to the reasonableness of any of these items, unless it may be said that the aggregate amount of same was on'its face so grossly excessive as to raise such question. Article 4956, R. S., authorizes a charge by mutual hail insurance companies of 40 per cent, of the gross amount of premiums collected for any current year as expenses. The amount mentioned above was about 20 per cent, of the premium collections. Much of this expense went to solicitors who received 10 per cent, for their services in procuring business for the company. We believe the trial court correctly held that the mere amount of these expenses alone was insufficient to raise a jury question under the facts of this particular case.

Nor do we think an issue was made as to the right of appellant to participate in any reserve fund for any year or years during which appellant was not a member. Under the express terms of article 4955, R. S., as well as the policy, appellant’s recovery was limited to a pro rata share of the “sum realized from said premiums after deducting the expenses therefrom.”

It is finally insisted that according to the face of the policy appellant was entitled to 100 per cent, recovery. This is based upon the clause of the policy making the constitution and by-laws of the company a part of its contract of insurance and article 33 of such, which reads as follows: “In case of total destruction of the crop herein specified by hail, the amount insured per acre shall be paid by the Association, and in case of partial destruction the Association will pay the same percentage of the amount insured per acre as the grain destroyed bears to the crop, had no damage 'by hail occurred. Thus, if one-half of the crop insured is destroyed, the Association will pay one-half of the amount of insurance per acre, and to determine the percentage of damage no consideration will be made of the cost of cutting and threshing the portion not destroyed.”

Other clauses of the policy restricting the right of recovery to a less sum than the face have already been quoted. The terms of the statute also restricting recovery have been adverted to and must be read into this contract. Considering the policy as a whole, and article 33 above, in the light of the terms of said statute, we are of the opinion that the last quoted provision was intended to fix a method of computation of the loss and not as establishing liability for the entire amount of the policy, regardless of premiums collected and expenses incurred.

It is perhaps well to observe here that the appellant has been paid an amount in excess of that allowed him under the literal terms of the policy and statute, which apparently is more than sufficient to' cover his pro rata share of certain notes aggregating about $7,000 still held as assets for the benefit of 1928 policyholders and in which appellant claims a right of pro rata recovery herein. It is therefore unnecessary to lengthen this opinion by a discussion of this contention.

The judgment is affirmed.


author: MURRAY, Justice.

text:
    SCHOENFELD et al. v. DE PUY.
    No. 9016.
    Court of Civil Appeals of Texas. San Antonio.
    March 1, 1933.
    Rehearing Denied April 5, 1933.

      Birkhead, Beckman & Stanard, Ingrum & Smith, and Ben S. Morris, all of San Antonio, for appellants.
    Cunningham, Moursund, Johnson, Rogers & Slatton, of San Antonio, for appellee.
   MURRAY, Justice.

J. De Puy, appellee, instituted this suit in the Seventy-Third district court of Bexar county against Charles M. Sehoenfeld and Indemnity Insurance Company of North America, appellants herein.

De Puy had a contract with the United States government for the construction of a jetty at Sabine Pass. Sehoenfeld entered into a subcontract with De Puy to furnish 44,-000 tons of slope and cap stone, which should weigh not less than 6, nor more than 10, tons per piece. This stone was to be sound, compact, hard, durable stone, satisfactory to the army engineer. The decision of the army engineer as to the quality and quantity of this stone was to be final. The insurance company became surety for Sehoenfeld on his bond for faithful performance of his contract. Sehoenfeld did not comply with his contract, and De Puy. was given judgment in the sum. of $12,719.38 against Sehoenfeld and the insurance company as a result of such failure to fully comply with the terms of this subcontract.

The case was tried before a jury, to whom was propounded eleven special issues. All issues were answered' favorably to De Puy. Sehoenfeld and the insurance company have appealed.

Appellants base their appeal upon misconduct of the jury. They placed two witnesses on the stand to establish this misconduct, Emmett Jones, Jr., and E. P. Lange, both of whom were on the jury that tried the case. The two witnesses do not agree as to just when the alleged misconduct occurred with reference to the answering of the respective questions, but it is reasonably deductible from all the evidence that all special issues except No. 7 had been answered by the jury before the alleged misconduct occurred. Question No. 7 reads as follows: “Do you find from a preponderance of the evidence that any of the stone that was rejected by the Government inspector was hard, sound, compact, durable stone, that would not break or crumble in handling, nor disintegrate in sea water, with the least dimension of each not less than one-third the greatest, weighing not less than six nor more than about ten tons, and angular in shape?”

The jury answered this question “No.”

We are of the opinion that the answer to this question was immaterial, unless the jury had found that the engineer had acted arbitrarily, capriciously, or unreasonably in rejecting this stone. Brin v. McGregor (Tex. Civ. App.) 45 S. W. 923; Ball-Garden Co. v. Ridgell (Tex. Civ. App.) 171 S. W. 509, 511; Harrell v. City of Lufkin (Tex. Com. App.) 280 S. W. 174; Deal v. Craven (Tex. Com. App.) 277 S. W. 1046; Pettit-Galloway Co. v. Womack, 167 Ark. 356, 268 S. W. 353; Atlas Torpedo Co. v. U. S. Torpedo Co. (Tex. Civ. App.) 15 S.W.(2d) 150; Fullington v. Ozark Poultry Supply Co., 327 Mo. 1167, 39 S.W.(2d) 780; Gulf, C. & S. F. Ry. Co. v. Ricker (Tex. Sup.) 17 S. W. 382; Galveston, H. & S. A. R. Co. v. Henry, 65 Tex. 686; Galveston, H. & S. A. Ry. Co. v. Johnson, 74 Tex. 256, 11 S. W. 1113; Kettler Brass Mfg. Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900; Wright v. Meyer (Tex. Civ. App.) 25 S. W. 1122; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255; 9 C. J. p. 903, § 250.

There is evidence in the record which would justify the conclusion that the jury had already answered “No” to questions Nos. 8 and 9 before the alleged misconduct occurred. Answering “No” to questions 8 and 9 amounted to a finding that the engineer did not act arbitrarily, capriciously, nor unreasonably.

Where parties enter into a contract by the terms of which they agree that a third person shall pass upon the quality of material to be used, and that the decision of such third person shall be final, they are bound by the decision of such third person, unless such person acts arbitrarily, capriciously, or unreasonably. It is not sufficient that the inspector has made a mistake or poorly exercised his discretion, but it must be shown that such inspector has been guilty of bad faith in the exercise of his discretion and duties, otherwise his decisions are binding on all parties and are final and conclusive.

Appellee contends that, as the inspectors were government engineers, he would not be affected, even if they should have acted fraudulently in the rejecting of cap and slope stone. We do not agree with this contention, and only agree with appellee to the extent that his rights could not be affected if the engineers acted in good faith, regardless of how imperfect their judgment and decisions may have been.

Appellee relies on the case of Ball-Carden Co. v. Ridgell, supra, to support his contention that his right to recover against Schoen-feld for his failure to deliver material could not be affected by the arbitrary, capricious, or unreasonable conduct of the government engineer. We find the following language in that decision: “By the terms of appellants’ contract with appellee the question of whether or not the gravel purchased complied with the specifications of appellants’ contract with the United States for the construction of the locks and dams was left to the judgment of the government’s engineer, and the determination of A. E. Waldron that it did not is conclusive of the matter, regardless of any view other witnesses may have expressed in relation thereto, and settles the issue in favor of appellants.”

We do not disagree with this statement of the law. In that case the subcontractor had sued the contractor for failure to accept material which had been rejected by the government engineer. As far as the contractor was concerned, the material was unusable. It made no difference, to the contractor whether it had been rejected in good faith or bad faith, he could not use it in the carrying out of his contract with the government. As long as the contractor did not act in collusion with the government engineer, he could not be made to accept and pay for material which had been rejected by the engineer, even though the engineer had acted in bad faith in doing so.

In the present case the contractor has sued the subcontractor for failure to furnish material. The subcontractor has answered by stating that he was prevented from furnishing the material he had contracted to furnish by the government engineer rejecting his material, arbitrarily, capriciously, and unreasonably. We feel that this defense should be available to him. Not simply that the engineer had used bad judgment, had made mistakes, but that the engineer had not honestly exercised his judgment, but had been guilty of bad faith. Any other rule would require a subcontractor to carry out his contract or answer in damages for his failure to do so, even though he was prevented from delivering such material by the arbitrary, capricious, and unreasonable conduct of the government engineer.

It is true that, before Schoenfeld could recover against De Puy, he would have to establish the fact that De Puy had acted in collusion with the engineer. But such collusion would not be necessary to justify Schoenfeld in refusing to proceed with his subcontract, if its performance had been rendered impossible by the fraudulent, acts of the government engineer.

The trial court’s action in overruling appellant’s motion for a new trial resolved all fact issues .against appellants where there was a conflict of evidence, and, as the evidence was conflicting as to when the alleged misconduct occurred, we are justified in concluding that the jury had found that the government engineer did not act arbitrarily, capriciously, or unreasonably before the alleged misconduct occurred, which of course rendered the answer to question No. 7 immaterial.

Regardless of when the alleged misconduct may have occurred, it is very doubtful if the same was of such a nature as to require a reversal of this case. The alleged misconduct consisted of a statement by the jury that the case would be appealed, anyhow, and that Schoenfeld would not have to pay the judgment if he lost, but that the insurance company would have it to pay, and that the insurance company would have no recourse against Schoenfeld.

There is no evidence that these statements affected the jury or caused them to find differently than they would have found if the remarks had not been made, and the remarks are not of such a nature that an injury to appellants will be presumed. Hansen v. Ponder (Tex. Civ. App.) 23 S.W.(2d) 737; Maloney v. G. A. Stowers Furniture Co. (Tex. Civ. App.) 28 S.W.(2d) 306; Ward v. Jones (Tex. Civ. App.) 293 S. W. 604; Commercial Standard Insurance Co. v. Miller (Tex. Com. App.) 48 S.W.(2d) 618.

It is shown that the remarks as to who would have to pay the judgment was invited by argument of counsel for appellants. The fact that the jury took issue with the argument or did not properly construe the bond cannot impeach or set aside their verdict. Kuntz v. Spence (Tex. Civ. App.) 48 S.W.(2d) 413; Ward v. Jones (Tex. Civ. App.) 293 S. W. 604.

The fact that one juror agreed to the verdict because he had been sick, because he did not want to be confined with one of the other jurors who had become sick, and because he wanted to get out and go home to his sick wife, can be of no effect. A juror will not be permitted to impeach his verdict, solemnly rendered in open court, by his own statement made on a motion for new trial, that he had in his mind certain improper considerations which prompted him to agree with his other eleven brother jurors. Especially is this true where these matters were not referred to by him during the deliberations or at the time the verdict was rendered in open court. The trial court properly excluded all testimony of this nature. Bradley v. R. Co. (Tex. Com. App.) 1 S.W.(2d) 861.

In this case we have a statement of facts consisting of more than 600 pages of testimony, together with many exhibits. Appellants do not complain in their briefs of any error that occurred during the trial 'of this lengthy case, but seek a reversal of this judgment on the sole ground of misconduct of jury. We are of the opinion that the misconduct complained of is insufficient to require the setting aside of the judgment in this case.

The judgment of the trial court is affirmed.


author: ■ PIERSON, Justice.

text:
    REASONOVER v. REASONOVER
    No. 5898.
    Supreme Court of Texas.
    March 22, 1933.
    Crane & Hartwell and R. F. Robinson, all of Raymondville, for appellant. ..
    Jesse 6. Foster, of Raymondville, and W. H. Crowell, of Shelbyville, Tenn., for áppelíée.
   ■ PIERSON, Justice.

Certified question from the Honorable Court of Civil Appeals for '' the Fourth Supreme Judicial District. The statement and question are as follows: ¡ '

“This suit for divorce and settlement of the property rights of .the parties w¿s instituted and -tried in the One Hundred and Third District Court of Willacy County. From a judgment granting a divofce in favor, of Edna Reasonover against her husband, B. L. Rea-sonover, and adjusting their property rights, the latter has appealed. We are confronted at the outset with an attack upon the jurisdiction of the court which- tried the cause.
“By an Act approved August 17, 1921, the Thirty-seventh Legislature created a Criminal District Court for the counties of Nueces, Kleberg, Kenedy, Willacy, and Cameron, then' -comprising the? Twenty-eighth Judicial District. Chapter 8, 1st Called Sess., p-. 12. By ■the terms of the Act it was' provided that •the newly created Criminal District Court ‘shall have and exercise ■ all of the criminal jurisdiction now vested in and exercised by the.-District Court of the Twenty-eighth Judicial District of Texas, and said Criminal District . Court shall try and determine all •causes for divorce between husband and wife and ,adjudicate property rights in- connection ■therewith-in said counties.’ * * * It was ■further provided by the Act that from and .after the taking of effect thereof the District ¡Court of said 28th District ‘shall eease to have and exercise any criminal- jurisdiction in either of said counties: and shall .cease to have and exercise any jurisdiction-of divorce-cases in either of said counties.’
“The' Thirty-ninth Legislature' reorganized the 28th Judicial District [Vernon’s Ann. Civ. St. art. 199, subds. 28, 108; Acts 1925, c. 79] so as to exclude therefrom the counties of Willacy and Cameron, and created the 103d Judicial District, to be composed of those two counties thus excluded from the 28th District. By the terms of the same Act it was provided that ‘There is hereby continued as established for the counties of Nueces, Kleberg, Kenedy, Willacy and Cameron a criminal district court, which shall have and exercise all of the criminal jurisdiction now vested in and exercised by the district court of the Twenty-eighth Judicial District of Texas, and said Criminal District Court shall try and determine all causes for divorce between husband and wife and .adjudicate property rights in connection therewith in said counties,’ ⅜ * * and that ‘From and after the time when this Act shall take effect, the District Court of' the Twenty-eighth Judicial District; composed of the counties of Nueces, Kleberg and Kenedy, and the District Court of the One Hundred and Third Judicial District Court, composed of the counties of Willacy and Cameron, shall cease to have and exercise any criminal jurisdiction in either of said counties, and shall cease to have and exercise any jurisdiction of divorce cases in either of said counties.’ * * * This Act is still in effect.
“It will be seen, therefore, that by express statutory enactment jurisdiction over actions for divorce and the settlement of property rights growing out of divorce cases was taken from the District Courts of the 2Sth and 103d districts and placed exclusively in the Criminal District Court embracing the counties composing those districts, including Wil-lacy County. Applying the terms of the Act to this case jurisdiction thereover rests exclusively in the Criminal District Court of Willacy County, and the suit was not properly maintainable in the 103d District Court, in which it was brought and tried.
“It is contended by appellee that the provision in the Act in question which seeks to deprive the District Court of the One Hundred and Third Judicial District of Willacy County of jurisdiction in divorce cases and the settlement of property rights in connection therewith, and to confer exclusive jurisdiction in such causes upon the Criminal District Court of said county, is prohibited by the Constitution, and is therefore ineffectual. Although the Act as it relates to the District Court of the Twenty-eighth Judicial District was passed ten years ago, and as it affects the District Court of the One Hundred and Third District, eight years ago, its validity does not appear to have ever been questioned until it was raised in this appeal. Upon original submission this Court held, in accordance with the attached opinion, that the Act was a valid exercise of the powers conferred upon the Legislature in Section 1, art. 5, of the Constitution, as amended by vote of the people of the State in 1891. The appeal is still pending in this Court upon ap-pellee’s motion for rehearing.”
“Because of the importance of the question, and because of the conflicting dicta, and lack of authoritative decision of the Supreme Court upon the subject, the Court of Civil Appeals in and for the Fourth Supreme Judicial District of Texas deem it advisable to certify for your decision the following question arising from the case stated:
“Question: Did the Legislature have the power, in the Act establishing the Criminal District Court of Willacy County and the District Court of the One Hundred and Third Judicial District in said County, to withhold from the latter court jurisdiction of ‘all causes for divorce between husband and .wife and adjudicate property rights in connection therewith in said counties,’ and to confer exclusive jurisdiction of said causes upon the Criminal District Court of said County?
“In connection with the question we respectfully refer Your Honors to the cases of Lytle v. Halff, 75 Tex. 128, 12 S. W. 610; St. Louis S. W. Ry. Co. v. Hall, 98 Tex. 480, 85 S. W. 786; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; Cockrell v. State, 85 Tex. Cr. R. 326, 211 S. W. 939; Jones v. Soch (Tex. Civ. App.) 277 S. W. 171.”

We answer the question in the negative.

Section 1, article 5, of the Constitution of Texas, reads as follows:

“Section 1. The judicial power of this state shall be vested in one supreme court, in courts of civil appeals, in a court of criminal appeals, in district courts, in county courts, in commissioners’ courts, in courts of justices of the peace, and in such other courts as may be provided by law.
“The criminal district court of Galveston and Harris counties shall continue with the district, jurisdiction and organization now existing by law until otherwise provided by law.
“The legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” (Section 1, art. 5, adopted election August 11, 1891; proclamation September 22, 1891.)

Section 8 of article 5 expressly ■ sets out and makes provision for original jurisdiction of the district court, and, among other provisions, provides that said court Shall have original jurisdiction “of all eases of divorce.” This section of article 5 of the Constitution of 1876 has not been amended or modified in any way.

It is the opinion of this court that in adopting the amendment to the Constitution in 1891, authorizing the Legislature to create other courts, and providing that it “may conform the jurisdiction of the district and other inferior courts thereto,” it was not intended to take away from and deprive the regular district courts of the jurisdiction specifically given them by the Constitution. No provision of the .Constitution anywhere intimates such a withdrawal or negation of jurisdiction. The simple-fact that the people amended the Constitution so as to authorize the Legislature to create other -courts than those theretofore provided by the Constitution, and to confprm the jurisdiction of the district courts to them when created, does not authorize the Legislature to deprive district courts of that jurisdiction expressly given them by the Constitution.

This question was directly before this court in the case of Jones et al. v. Soch et al., on application for writ of error to the .Court of Civil Appeals for the Fourth supreme judicial district at San Antonio, in 1925. (Tex. Civ. App.) 277 S. W. 171, 172.

The act of the Thirty-Eighth Legislature creating the Ninety-Fourth district court (Acts 1923, c. 53 [Vernon’s Ann. Civ. St. art. 199, subd. 37]) provided that that court should “give preference to the trial of erimi-ual cases and * * * next to the trial and determination of criminal causes, try and determine causes for divorce between husband and wife, the custody of children, and the adjudication of property rights in connection therewith, have power to issue writs of ha-beas corpus, mandamus, injunctions and cer-tiorari and all writs necessary to enforce its jurisdiction, and may appoint receivers under the conditions and as provided by Article 2128, Revised Civil Statutes of the State of Texas, and shall try and determine no other causes.”

The Ninety-Eourth district court, presided over by Judge W. W. McCrory, tried a case in the nature of trespass to try title and to cancel a deed. The only issue on appeal was whether the Legislature could deprive the district court of its jurisdiction to try the case. In his opinion, Chief Justice Ply says: “Under the law of its creation, we feel satisfied that the district court had jurisdiction of the case before us. The law did not deprive the court of its constitutional jurisdiction as a district court. That jurisdiction is fixed by the Constitution, and a Legislature could not destroy it. * * * The attack on the jurisdiction is without.merit.”

The writ of error was refused by this court.

The conviction presses itself upon us that the provision of section 1, article 5, authorizing the Legislature to “establish such other courts,” etc., was not intended to authorize the Legislature to deprive the regular district courts of any of the jurisdiction expressly conferred on them by the Constitution; nor that the jurisdiction of the district courts should be conformed to that of the statutory courts by destroying the constitutional jurisdiction of the district courts, or by transferring a part or all of it exclusively to a statutory court, but rather that such jurisdiction as fixed in the Constitution may be made concurrent with such other courts created by statute.

Corpus Juris thus defines the word “conform”: “To make of the same form or character ; make like; adjust”; and the word “conformity” as meaning “agreement, congruity with something else.”

If “conform” means “to deprive,” the Legislature is empowered to take away from the regular district court all the jurisdiction given it by the Constitution, and confer it upon the statutory courts. This would not be “conforming,” but “destroying,” the jurisdiction of the district court, to the extent the Legislature might elect. It is difficult to believe the people so intended, or that they intended to give to the word “conform” a'meaning other than its ordinary meaning.

The amendment to section 1, article 5, adopted in 1891, does not purport to take away from the district court, or to authorize the Legislature to take away from it, its constitutional jurisdiction. It does authorize the Legislature to take from it the exclusive nature of its jurisdiction over the subjects mentioned in section 8, article 5, and permits the Legislature to give jurisdiction over them also to other courts. The Legislature cannot take away from a district court jurisdiction given it by the Constitution. Jones et al. v. Soch et al. (Tex. Civ. App.) 277 S. W. 171 (writ refused); St. Louis S. W. Ry. Co. v. Hall, 98 Tex. 480, 85 S. W. 786, 788; 11 Texas Jurisprudence, § 5, pp. 706, 707, 708.

Li St. Louis S. W. Ry. v. Hall, which arose in 1905, it was said: “It was also strongly intimated in that case [Lytle v. Halff, 75 Tex. 128, 12 S. W. 610] that a provision prohibiting a district court from impaneling grand juries was unconstitutional, as denying to that court a portion of the jurisdiction given to it by the Constitution over criminal causes, inasmuch as such jurisdiction over felonies could not be constitutionally exercised without the aid of grand juries. To this proposition we fully assent. It was, however, further held in the case cited that this feature of the statute there in question -did not affect the legality of the court established, but that, if it were in conflict with the Constitution, it would have to give way, and leave the court in the full possession of its constitutional functions. The same reasoning disposes of most of the provisions of this statute which are attacked as unconstitutional. If the Leg-' islature did enough to bring into active existence a district court, it was at once .clothed with the powers conferred by the Constitution upon such courts, and any attempts in the act to unduly limit those powers must be. treated as futile. From this it follows that the provisions forbidding the court from taking cognizance of criminal matters and from impaneling juries in Delta county are as ineffectual to diminish the jurisdiction of this court, if it came into existence, as is the provision concerning grand juries.”

The cases we have found which contain dicta expressing a view contrary to what we are holding herein are all cases involving the constitutionality of Acts of the Legislature creating other courts, and in each instance the jurisdiction of such other courts has been upheld. Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; Cockrell v. State, 85 Tex. Cr. R. 326, 211 S. W. 939. In no instance has any court struck down the jurisdiction of a regular district court because some other court was given some of the jurisdiction which pertained to the regular constitutional district court. Certainly the One Hundred and Third district court- has the jurisdiction, and power to exercise same, given it by th'e Constitution. Therefore we have answered the question in the negative.


author: PER CURIAM.

text:
    F. H. PIERSON et al. v. Hon. Royall R. WATKINS et al.
    Motion No. 10689.
    Supreme Court of Texas.
    April 1, 1933.
    James V. Allred, Atty. Gen., and Maurice Cheek, Willis E. Gresham, and A. R. Stout, Asst. Attys. Gen., for relators.
   PER CURIAM.

The motion for leave to file the petition for writ of mandamus and prohibition is overruled, without prejudice to the rights of relators to again present the subject-matter of the application . to this court, should it be subsequently shown that the available remedies in the district court and Court of Civil Appeals are inadequate to protect the rights of the re-lators.


author: , SHARP, Judge.

text:
    TEXAS INTERURBAN RY. CO. v. HUGHES et al.
    Motion No. 10633; No. 1582—5947.
    Commission of Appeals of Texas, Section A.
    April 5, 1933.
    For original opinion, see 53 S.W.(2d) 448.
    Allen Charlton and Worsham, Rollins, Bur-ford, Ryburn & Ilineks, all of Dallas, for plaintiff in error.
    Carden, Starling, Carden & Hemphill, O. C. Huff, and J. M. Chambers, all of Dallas, for defendants in error.
   , SHARP, Judge.

In the judgment entered herein, the costs of the appeal are taxed against D. B. Hughes, defendant in error. Hughes files a motion to .retax the costs, and contends that the costs should be taxed equally between him and the Missouri-Kansas-Texas Railroad Company of Texas, for the following reasons:

(1) Because judgment was rendered in the district court in his favor against both defendants, Texas Interurban Railway Company and the Missouri-Kansas-Texas Railroad Company of Texas, and that the Missouri-Kansas-Texas Railroad Company recovered judgment over and against the Texas Interurban Railway Company, and judgment was denied the Interurban Railway Company on its cross-action against the railroad company.

(2) That both the Texas Interurban Railway Company and the Missouri-Kansas-Texas Railroad Company of Texas appealed from the judgment of the trial court to the Court of Civil Appeals, and that court reversed the judgment of the trial court and remanded the cause for another trial, but sustained the holding of the trial! court that the Texas Interurban Railway Company was not'entitled to recover anything by reason of its cross-action against the Missouri-Kansas-Texas Railroad Company of Texas. 34 S.W.(2d) 1103.

(3) Because both the Texas Interurban Railway Company and Hughes applied for writs of error, and the Supreme Court granted a writ of error upon the application of the Texas Interurban Railway Company and for that reason granted the writ of error upon the application of Hughes.

(4) Because the Supreme Court affirmed the judgment of the Court of "Civil Appeals reversing and remanding the cause, but overruled the conclusions of the Court Of Civil Appeals sustaining the action of the trial court in holding that as a matter of law the Texas Interurban Railway Company was not entitled to a judgment against the Missouri-Kansas-Texas Railroad Company on its cross-action. 53 S.W.(2d) 448.

It appears that both the Texas Intqrurban Railway Cbmpany and the Missouri-Kansas-Texas Railroad Company of Texas obtained in the Court of Civil Appeals a reversal of the judgment of the trial court in favor of Hughes. The court also held that the trial court was correct in holding that the Texas Interurban Railway Company was not entitled to recover anything against the Missouri-Kansas-Texas Railroad .Company by reason of its cross-action. From this judgment both the Texas Interurban Railway Company and Hughes made applications for writs of error to the Supreme Court, which were granted. In the Supreme Court the judgment of" the Court of Civil Appeals rei-versing and remanding the cause was affirmed and in addition thereto the Texas Interurban Railway Company obtained a- favorable ruling that it was error for the trial court and Court of Civil Appeals to hold as a matter of law that the Interurban was not entitled to 'recover anything by reason of its cross-action against the Missouri-Kansas-Texas Railroad Company.

We recommend that the costs of appeal incurred in the Court of Civil Appeals he taxed against Hughes, and that the costs of appeal incurred in the Supreme Court be taxed equally-against Hughes and the Missouri-Kansas-Texas Railroad Company of Texas; that the judgment otherwise remain as heretofore rendered.


author: ' LATTIMORE, Judge.

text:
    CALLOWAY v. STATE.
    No. 15917.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Martin & Shipman, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' LATTIMORE, Judge.

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

Eor two reasons we are compelled to hold the indictment in this case had. Same contains no averment of the fact that appellant attempted to enter the store with the fraudulent intent to take therefrom, etc. That an indictment charging the offense herein involved must contain the allegation of such fraudulent intent is affirmed in Newman v. State, 113 Tex. Cr. R. 517, 23 S.W.(2d) 367.

We further note that said indictment does not allege that appellant attempted to break and enter the house with the intent to fraudulently take therefrom corporeal personal property therein being and belonging to J. T. Leeson from the possession of said Leeson, etc. There should be an allegation in the indictment that the property was then in the possession of Leeson, and that appellant intended to take it from such possession.

Eor the defects mentioned, the judgment must be reversed, and the prosecution ordered dismissed.


author: LATTIMORE, Judge.

text:
    MAYO v. STATE.
    No. 15738.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    W. T. Brothers, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for practicing dentistry without a license; punishment, a fine of $5.

The state introduced a witness who said she went to the Mayo Dental Clinic with her sister-in-law who had had teeth extracted and was suffering from the after effects. Appellant was there and gave the woman a mouth wash and swabbed out the bleeding cavities from which the teeth had been extracted. The' state also introduced a deputy county clerk who testified that he had charge of the records of dental licenses filed in the office of the county clerk of Potter county, and that same failed to show that appellant had filed a license to practice dentistry in said county. The case must be reversed for failure of the state to prove that appellant had no dental license. Nothing in the statute makes proof of no recorded license in the county sufficient proof of no license. The state offered no other testimony on this material issue in the case. It is necessary to sustain a conviction that the proof show that the accused had no license to practice dentistry.

Eor the. error mentioned, the judgment will be- reversed, and the cause' remanded.


author: CALHOUN, Judge. MORROW, Presiding Judge.

text:
    MAXWELL v. STATE.
    No. 15448.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Rehearing Denied April 12, 1933.
    Robert H. Hopkins, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Conviction is for transporting intoxicating liquor; punishment, one year in the.'penitentiary.

Appellant challenges the sufficiency of the evidence. This is the only question presented. The state relied for conviction on circumstantial evidence.

The offense is claimed to have occurred, on the night of the 14th of September, 1931. Two officers of the city of Denton testified for the state. R. L. McGalliard, one of said officers, testified substantially to the following facts; That he had known the appellant for five or six years. He saw the appellant on the 14th day of September, 1931, at night after 12 o’clock. That the appellant was at the northwest corner of the aviation field when he first saw him. That Clint Starr and Tom Price were with the witness at the time. They were traveling in the city’s Ford. That Clint Starr and he were riding on the front seat and he, the witness, was driving, and Price was on the back seat. When he first saw the appellant, he was on a lane that leads along the aviation field. That the appellant was in a single seated Buick coupé and it was standing still when he first saw him and was headed south. That appellant began to travel at the time they met him and he hollered for him to stop. The back part of appellant’s car was down at the time. That the appellant did not stop but speeded up and he then turned around and followed him. That the appellant turned west and was about five or six hundred yards ahead of the officers when they turned around. .That the appellant continued to go down the road something like half a mile and he then turned to the left and they followed him. That the appellant was • driving about fifty or sixty miles an hour’and they probably were not traveling that fast. When the appellant turned, he was going south and he then turned west and traveled something over half a mile and then -turned southeast. That the road that turned south makes an angle and turns back southeast. That he did not keep in sight of appellant all the time but lost sight of him just a fraction of a minute when he turned. The witness then turned the car he was driving and saw the appellant stop about fifty or sixty yards from the corner. That the appellant’s car was sitting in the ditch on the east side of the road. That the appellant was up on the bank of the ditch. That at the first glance appellant was stooping over near the fence and he saw the appellant run back immediately and get in his car. That he then drove his car over to where appellant was and asked him to get out of the car. Appellant backed out of the ditch ten or fifteen feet. That when they asked him to stop he stopped his car. At the time the turtle back of appellant’s car was up and he, the witness, looked in the back end of appellant’s car and saw about six dozen bottles in there in cartons. They were similar to beer bottles and were empty. That the appellant then drove his car out into the road, probably fifty yards and then let down the cover. That there was no one with the appellant at the time and no one was with the appellant any time during the time he had testified about. When the appellant left, they found twelve half gallon, fruit jars full of whisky just about where appellant had stooped over "near the fence. They found this whisky probably twelve feet from the point where he first saw the appellant’s car stop. That they found the whisky almost at the same place where he saw him stoop over. That the half gallon jars were in the original cartons and they were all new jars. Some of the jars had spilt out- on the ground and he picked up some of those jars and they were all warm. 1-Ie testified further that at the time they first saw the appellant in his ear the cover to the back was down.

The witness Clint Starr testified substantially to the same facts.

The appellant testified that he had -gone to Port Worth on September 14th and taken a man and his wife who were looking for a job. While he was in Port Worth, he purchased four cases of bottles, two eases of beer bottles and two cases of pint bottles; that his purpose in getting the bottles was that he was selling them in connection with a domino hall and sandwich stand he ran. He further testified that a woman had asked him to take her home and she had just gotten out of the car a short time before the officers testified that they met him; that he was going home at the time they met him and he did not hear them call upon him to stop. When he got to the turn in the road, he saw that he was not going to make the turn fast and he slowed down to twenty or twenty-five miles an hour and he was never driving very fast. When he went to turn the corner, he hit the light connection with his elbow and turned the lights out and his car went into the ditch on the side of the road and ran up against the bank and stopped; that he never did get out of the car, and the turtle back on his car was down at the time and would not stay up .on its own accord, and when his car stopped he merely started his engine and backed out of the ditch. He denied that he put a case of whisky out in the weeds or that he knew anything about a case of whisky being out in the weeds; that it was not his whisky that they found; that he did not haul the whisky they found or any other whisky. As to the purchase of the beer and whisky bottles in Fort Worth, he was corroborated by the parties who were with him in Port Worth on that day; also as to the fact that the turtle back of his car would not stay up.

The appellant has cited a number of cases in support of his contention that the evidence is insufficient to support a conviction. All of said cases cited deal with a different state of facts than is presented in this ease. So far as determining the sufficiency of the evidence to support a conviction in a case depending solely upon circumstantial evidence, each case is a rule unto itself and is to be determined upon its peculiar circumstances. All of the facts and circumstances are to be taken together as proved. The trial court in his charge to the jury gave a full and complete charge as to-what was meant by circumstantial evidence and what was necessary to be proven in order to sustain a conviction where the state relied upon circumstantial evidence alone. . Considering all the facts and circumstances in evidence, we have concluded upon a careful analysis of the facts that they were sufficient to support the verdict.

The judgment of the trial court will therefore be 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, Presiding Judge.

The circumstances justify the conclusion that the appellant was in possession of about a dozen half gallon jars, each full of whisky. Likewise, the evidence is sufficient to justify the conclusion that the whisky was brought, that is, transported, by the appellant to the place where it was found.

The position taken by the appellant in the motion for rehearing is that it cannot be told from the evidence whether the appellant transported the whisky or whether he merely possessed it. We entertain the opinion, however, that the evidence is sufficient to support the conviction for the transportation of intoxicating liquor.

The motion for rehearing is overruled.


author: CALHOUN, Judge.

text:
    TEMPLIN v. STATE.
    No. 15653.
    Court of Criminal Appeals of Texas.
    March 29, 1933.

      McGaugh & Darroch, of Brownwood, for appellant.
    Lloyd W. Davidson,, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Possession of intoxicating liquor for the purpose of sale is the offense; punishment, 18 months in the penitentiary. "

A deputy sheriff by the name of Leonard' McKenzie testified that on May 28, 1932, he was out near where appellant lived und he and others found a half gallon of whisky ón a vacant lot about 60 or 70 steps south of where appellant lived. The liquor was in some weeds, and there was a cow staked out in the neighborhood of where the liquor was found. The appellant lived in a sparsely settled neighborhood, and there were vacant lots on both sides of the house where appellant lived. The witness further testified that some three weeks prior to the 28th day of May he found three half gallons and three pints of whisky, part of which was found south of where the appellant lived, and part of which was found east of the appellant’s house. None of said liquor was found on the lot occupied by appellant’s residence. The testimony shows that part of the liquor found south of the house was closer to -another house than it was to that of the appellant, and the liquor found on May 28th was found on a vacánt lot which had a lot intervening between it and the appellant’s, house and also. crossed an alley. The witness also testified that on no occasion when they found the liquor on the vacant lot was the appellant seen out there or around the liquor exercising any possession over it pr haying, anything to do with it at all. He also testified that the placp .where they found the Rquoij was a place where the general public had access to and was not fenced up, and the timber on it was not so thick as to keep cars from driving through' there. He ' further testified that, wtóíé he noticed, on the 28th day, of May'that the weeds' had been mashed down near'the liquor, he did not claim that there was any beaten trail to the whisky. It is also'in‘evidence that-several-other persons in the neighborhood used the lot where the liquor was found for staking their cows there.

A witness by the name of Clarence Rogers testified .that he lived across the street and one-half-block, north from where the appellant lived, a distance of about 75 or 100 steps, and at different times he had seen another man and his wife at the house where appellant stayed, but he did -not know whether they stayed there 'all the time or not. He testified that-he had seen several ears drive up to appellant’s house and stop, and he had seen som^.mantorne from the house where appellant lived arid then go back to the house, and he'had seen him reappear, and had seen some packages delivered to the cars. The packages would be wrapped in paper. He could not tell who the man was.

The witness by the name of W. E. Horner testified that he had seen several cars drive up near the appellant’s house. They would drive up and wait a few minutes and then they would leave; he did not know their business or whether they were visitors. Sometimes he had seen a man leave the defendant’s house and go in a southeastern direction, but he could not tell where he had gone; that the man would return after he had been gone a good while. Sometimes it would look like there was something under the man’s coat and- sometimes the parties who drove up would go in the house and sometimes they would not.

The appellant did not testify nor offer any evidence. The appellant strenuously insists that the evidence is not sufficient to support a conviction. The conviction rests upon circumstantial evidence. It is the state’s burden to prove that appellant owned the liquor found on the' vacant premises and also that he possessed if for salel’ There is no evidence in the record that he owned or controlled the place where the liquor was found or that he had at any time asserted any ownership of said liquor, nor is there any evidence in the record that in any way individualizes the possession of the whisky found on the vacant lots. The state, in an effort to show that the appellant had control of the lots on which the liquor was found, introduced evidence to the effect that the appellant had staked and pastured'his cow on the vacant property, but the state’s witnesses testified that other cows of other parties were also staked in' and around these premises. There may be suspicious circumstances in the record, but we do not feel that we can be expected to' substitute' suppositions for evidence. We cannot declaré that that which in reality amounts only to suspicion is in truth sufficient evidence of. guilt, for it is one of the independent elements of .circumstantial evidence that it must do more than coincide with, account for, and render probable the guilt of the defendant.- It must éxelude every other reasonable hypothesis except the defendant’s guilt. That the evidence in this case does not exclude every other reasonable hypothesis except the defendant’s guilt of the particular offense charged is, we think, made plain by. an examination of this record. Branch’s Ann. P. C. § 1877; Blackstock v. State, 115 Tex. Cr. R. 284, 29 S.W.(2d) 365; Owens v. State, 112 Tex. Cr. R. 270, 16 S.W.(2d) 239; Smith v. State, 117 Tex. Cr. R. 303, 36 S.W.(2d) 532.

Because we believe the evidence is insufficient to support a conviction, the judgment of the trial court is reversed, and the cause remanded.

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: HAWKINS, Judge.

text:
    ORTEGA v. STATE.
    No. 15729.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    W-. Van Sickle, of Alpine, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for theft of cattle; punishment being two years in the penitentiary.

The indictment alleged ownership in Aaron Green. The title to the animal was in William Green, father of the alleged owner; but the latter was shown to have had actual control, care, and management of the cattle belonging, to his father. The alleged stolen animal was one of a bunch which ranged near the residence of Ray Ogle, who missed the particular animal a few days before appellant’s arrest. She had never- been seen since that time. Tracks of a cow which appeared to have been driven by three men on horses, were followed from a point in the accustomed range of the Green cattle to the Rio Grande river, and for some distance on the other side. The tracks of the horses and cow indicated that she had been “cut out” of a bunch of cattle at the time she was taken. After the matters related were discovered appellant was arrested by Slack, a Texas ranger, who took appellant into Mexico and he there pointed out a place where he claimed he and other parties killed the animal. The things discovered at this point throw little, if any, light on the issues involved. Dater appellant was brought back into Texas and made a written confession..which on its face appears to have been made in compliance with all the formalities required by article 727, C. C. P., regarding confessions. The instrument consisted of two sheets of paper on both of which appeared what purported to.be the signature of appellant made by his mark and witnessed by A. L. Hannold, R. A. Ogle, and B. H. Hobbs. The confession states in substance that appellant, his father and brother, took the animal in question, without the consent of any one; that his father helped drive the animal to and across the river and then returned home, and that appellant and his brother drove it from the river to a point near Aguilar’s place where it was butchered; that part of the meat was left with Aguilar and the remainder brought back to the home of appellant’s father on this side of the river.

The confession was written in English. Appellant objected to its .introduction in evidence On the ground that he could not read or write the English language, could not -'understand the meaning of the writing, except as translated to him: that it was 'made in Spanish to Tom Miller, who was a private citizen, in the presence of the owner of the stolen animal, and in the presence of the ranger who had appellant under arrest; that the confession was translated into English by the ranger who was not present in court though under process; and because 'the witnesses to' appellant’s “mark” could not translaté pai't df the confession- into Spanish. There 'was ri'd evidence which suggested that any threat or coercive measures of any kind were used to induce appellant to make the confession. It-appears that appellant did not speak or understand English. Upon the points urged in appellant’s objections Mr. Green testified that the statements made by appellant were in Spanish and were translated into English; that after the confession had been written it was translated into Spanish so appellant could understand it; that it was carefully inquired into and gone over in every way. At the time the confession was signed and witnessed the ranger who had done the translating was not in the room. Mr. Ogle, who was present when the confession was made,' testified that appellant’s statement was translated by Ranger Slack; that witness understood Spanish sufficiently to know what •was being said there; and that the facts set out in the statement were the same facts as told by appellant. The witness said while he could not translate Spanish into English, he could understand Spanish, could talk to Mexicans, and understand what they were telling him. Mr. I-Iannold testified that he was present and heard appellant make the statement in Spanish and understood what he said, and that the statement was correctly set out in the confession.

Appellant denied in toto making the confession or signing .same with his mark. 1-Ie said the only thing he told them at the time was that he knew nothing about the cow, or who took her. He said no one made him sign anything or compelled him to make'any statement. Mr. Priest, the district attorney, seems to have been at Mr. Miller’s house by accident when the confession was taken; he was a candidate and on an electioneering-trip. He testified that he wrote down the confession of appellant in English as it was translated to him, principally by Mr. Slack, and saw appellant sign with his mark both sheets of'paper containing the confession; that the parties signing as witnesses were also present at the time.

Why Mr. Slack was absent from the trial does not appear from the record. Notwithstanding his absence, and the fact that he did the principal part of the translating when the confession was being taken, we are of opinion the evidence shows beyond question that the translating was correctly done, and that the written document admitted in evidence correctly reflected the confession of appellant. The translation is usually verified by the party doing it. Rueda v. State, 101 Tex. Cr. R. 651, 277 S. W. 116; Rios v. State, 110 Tex. Cr. R. 68, 7 S.W.(2d) 535. But we see no reason why it cannot be shown to be correct by other witnesses who were present at the time and who are familiar with the language used by accused.

Another bill complains that appellant was curtailed in his cross-examination of state’s witness Ogle regarding his ability to translate certain portions of the confession into Spanish. The court qualifies the bill as follows: “The witness was not wholly unable to translate the parts of the confession submitted for his translation, but was unable to translate it literally and gave only the substance thereof, which I understand from experience to be the only way such a translation can be had. The Spanish form of expression is entirely different from the English. The objection sustained was to a prolonged effort at the translation of parts of the confession.” When the bill is considered in connection with the qualification, no error appears in the action of the court.

Where, other than by the confession, a crime is shown to have been committed by some one, the confession of the accused may be used to connect him with the crime, or the confession may be used to aid the proof of the corpus delicti. Branch’s Ann. Tex. P. C. § 1890; Brice v. State, 78 Tex. Cr. R. 42, 179 S. W. 1178; Kugadt v. State, 38 Tex. Cr. R. 694, 44 S. W. 989; Hill v. State, 11 Tex. App. 132; Harris v. State, 64 Tex. Cr. R. 594, 144 S. W. 232; Aven v. State, 95 Tex. Cr. R. 155, 253 S. W. 521; Hernandez v. State, 110 Tex. Cr. R. 159, 8 S.W.(2d) 947. We are inclined to the opinion that the evidence in the present case, independent of the confession, was sufficient to show that some one had stolen the cow in question, in which event the confession was sufficient to connect appellant with the theft; certainly when the confession is considered in connection with the other facts in evidence appellant’s guilt appears to have been legally established.

Rinding no error in the record, the judgment is affirmed.


text:
    WILSON v. STATE.
    No. 15739.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, ’State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for the sale of intoxicating liquor, punishment being one year in the penitentiary.

It is alleged in the indictment that Less Broadway was the purchaser of the liquor. He testified that he bought from appellant two pints of whisky for which he paid onel dollar and a half by a check payable to “cash,” which check was returned to the maker and the amount charged against his account at the bank. A witness by the name of Johnson testified that he was manufacturing whisky for appellant and thát he was present when appellant made the sale of the whisky to Broadway.

Appellant did not testify, but through other witnesses raised the defensive issue that the check in question was not given for whisky, but that it was given for the purpose of having appellant take it to the store and purchase groceries with it. In his motion for new trial appellant set up newly discovered evidence upon the point last mentioned, and attached to the'motion the affidavit of the claimed newly discovered witness, one Sam Bróoks. The court has incorporated in the record his reasons for overruling the motion, which are substantially as follows: When the case was called for trial, appellant orally asked a continuance because of the absence of Brooks for whom appellant claimed to have had process issued; this was found to be untrue. Appellant stated to the trial court what he expected to.prove by the witness, which was the same as set out in the motion for new trial, and contained in the affidavit of the witness, attached thereto. Under the circumstances the evidence of the witness could not be newly discovered. It is shown to have been known to appellant before the trial. Many authorities are found collated under section 192, Branch’s Ann. Tex. P. C., and in note 25 under subdivision 6, art. 753, Vernon’s Ann. Tex. C. C. P., vol. 3.

No other questions are brought forward for review.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    LEWIS v. STATE.
    No. 15744.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Johns, McCampbell & Snyder, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The trial was had in Willacy county on a change of venue from Nueces county.

It was charged in the indictment, in sub- • stance, that appellant, with malice aforethought, killed Paul Setliff by shooting him with a gun.

The proof showed that appellant shot and killed deceased. Earl Lewis, son of appellant, and a participant in the difficulty resulting in the death of deceased, himself received fatal gunshot wounds; the evidence being in conflict as to who shot him. Appellant’s theory was that he acted in defense of himself and son when he shot deceased. This theory was given support in the evidence, and was submitted in the charge of the court.

The judgment must be reversed because of misconduct of the jury. From the testimony heard on the motion for a new trial, the following, in substance, is shown: After the impanelment of the jury, and before the rendition of a verdict, the jury was taken to a barber shop by two officers of the court. While there many of the jurors engaged in conversations with the barbers shaving them. The nature of the various conversations was not disclosed, except that it wa^ shown by certain jurors that some of the barbers talked about a ball game. The jurors not engaging in conversation with the barbers were unable to understand all that was said. The attending officers did not understand all of the conversations that were carried on between the jurors and the barbers. Eleven jurors testified. One juror was not available as a witness. Neither the jurors nor the officers heard any reference to the case. The barbers were not called as witnesses, only the jurors and attending officers being heard on the question of misconduct. Some members of the jury talked with their wives over the telephone at various times. The nature of their conversations was not disclosed. Their wives were not called as witnesses on the hearing of the motion for a new trial.

It is declared in article 671, C. C. P., that no person shall be permitted to be with the jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of a misdemeanor, where the jury have been permitted by the court to separate. Further, it is provided that no person shall be permitted to converse with a juror about the case on trial. Provision is made in article 672, C. C. P., for punishment by contempt of court of those violating üjie provisions of article 671, supra. Under the terms of article 673, C. C. P., it is made the duty of the officer in charge of the jury to keep them together and prevent intercourse with any other person. That there was a violation of these statutory provisions is obvious. Under the circumstances, the presumption of injury obtained. Chappell v. State (Tex. Cr. App.) 50 S.W.(2d) 327, 320. The burden of overcoming the presumption of injury was on the state. We quote the language of Judge Lattimore in the case of Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959, 962, as follows: “Not only should the appearance of evil bo avoided by strict observance of this statutory rule forbidding communications w,ith the jury when the court is not present, but the further fact is true that human nature is frail and prone to excuse itself ; and it is easily possible to conceive a case where the party conversing with a juror, as well as the juror himself, fearful of punishment for contempt, might not remember all that passed at such conversations, and might deny mention of the ease between them by virtue of a convenient memory. We think the rule in cases of a violation of the provisions of article 748 ought to be that injury in such ease is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court. Any presumption can be overcome by evidence, and in such case of presumptive injury the burden ought to be on the state to satisfy the court that no injury has resulted from such violation of the statute.”

In Chappell v. State, supra, a situation similar to that under consideration worked . a reversal of the judgment. In that case it was shown that the jurors were taken to a barber shop and conversed with the barbers shaving them. The attending officer could not hear all that was said. The barbers were not called as witnesses. In the course of the opinion in Chappell’s Case, Presiding Judge' Morrow used language as follows: “It is thought that the verdict in the present instance cannot be sustained without overthrowing the safeguards recognized as essen-. tial to give assurance that the verdict of the jury reflects the judgment of the jurors unaffected by influences of an improper character.” Further, the opinion reads: “In instances like the present, where jurors are put in a position that they must mingle with the public, it is difficult to overcome the presumption of injury, but, when raised on motion for new trial, there should be no failure to use available testimony to negative injury.” See Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514.

Under the circumstances, the failure of the state to call the persons with whom the jurors had conversed leaves the record in. such condition that we are unable to reach the conclusion that the presumption of injury was overcome.

After the difficulty in which deceased lost his life and appellant’s son was shot, appellant carried his son to a hospital. After reaching the hospital, appellant asked one of the attending nurses to call the sheriff. His request was complied with. Prior to the arrival of the sheriff, and under circumstances showing the statement not to have been res gestae, appellant stated, in answer to a question, that he thought he had shot his son. It appearsl to have been appellant’s position that he was under arrest because of the fact that he had had the sheriff called for the purpose of surrendering. We deem appellant’s position untenable.

Appellant followed his son into the operating room. In the presence of one of the nurses, he asked his son not to feel “hard toward him for shooting him,” saying that he did not intend to shoot him. When this statement was offered, appellant requested the court to permit him to introduce proof in the absence of the jury that he was under arrest at the time he made the statement. The trial judge retired the jury and permitted appellant to interrogate the nurse testifying to the statement. However, he would not permit appellant to call other witnesses in an effort to show that the sheriff had arrived and that he was actually under arrest at the time the statement was made. The recitals in the bill of exception indicate that the sheriff had arrived and arrested appellant prior to the time the statement was made in the operating room. On the motion for new trial, the court heard testimony which indicated that the statement was made prior to the arrival of the sheriff. This testimony was used by the court to qualify appellant’s bill of exception. We do not understand this to have been the proper practice. Appellant’s request should have been complied with at the time the matter arose during the trial. The court should have retired the jury and heard the testimony pro and con upon the issue as to whether appellant was under arrest, and determined whether the proffered evidence was admissible. Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747. Certainly, if appellant was under arrest, the statement was inadmissible. In the condition in which we find the record, we are unable to properly determine whether the trial judge was warranted in concluding that appellant was not under arrest.

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: DATTIMORE, Judge.

text:
    STEVENS v. STATE. Appellee.
    No. 15950.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Frank E. Smith, of Abilfene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, Judge.

Conviction for violating the labor law; punishment, a fine of $50.

In Ex parte Butcher, 53 S.W.(2d) 781, 783, we said that but two matters forbidden in article 1569, P. C. 1925, are made penal by the terms of article 1572, Id., viz.: (1) Permitting female employees to work more than the number of hours provided for in one day; (2) failing and refusing to so arrange the work of such employees. Attention is called to this holding in view of the complaint made here that there is no averment, in the complaint and information in this case that Ethel Dee, who was permitted to work in a restaurant more than nine hours in a calendar day, was an employee in said restaurant; nor that She was employed by appellant, or worked for her, or under her direction ol control. The allegation in the complaint is that “Mrs. P. G. Stevens was then and there the employer in a restaurant in Taylor county, and as such did then and there permit Ethel Lee, a female, to work in said place more than nine hours in one calendar day, and did then and there fail and refuse to so arrange the work of the said Ethel Lee as that she should not work more than nine hours in said calendar day.” We do not believe it the purpose of any article of chapter 3, title 18, 1925, P. C., to punish any employer, overseer, superintendent, etc., for doing or failing to do any of the matters therein penalized, except in so far as same relate to persons employed by or while employed, controlled, or directed by such named parties, and it seems clear that the information in this case should have alleged that Ethel Lee was an employee in said restaurant employed by or under the direction and control of appellant. Failing to contain such allegation, we think the information, and complaint fatally defective.

The judgment Will be reversed and the prosecution ordered dismissed.