author: LEDDY, J. CURETON, C. J.

text:
    MONKEY GRIP RUBBER CO. v. WALTON.
    No. 1354—5917.
    Commission of Appeals of Texas, Section B.
    Nov. 9, 1932.

      Paddock, Massingill, Belew & Todd and Homa Hill, all of Port Worth, for appellant.
    Willis M. McGregor, of Fort Worth, for appellee.
   LEDDY, J.

The Court of Civil Appeals for the Second Supreme Judicial District submits the following statement and question:

“The Monkey Grip Rubber Company has appealed from a judgment rendered against it in favor of O. R. Walton for the sum of $185.00 as damages to plaintiff’s automobile resulting from a collision with defendant’s truck at a crossing of two public streets in the City of Fort Worth ; the truck being driven by Joe Hugley, a negro employee of the defendant company, and plaintiff’s car being driven by himself.
“The judgment was based on findings of the jury that the collision was not an unavoidable accident but was proximately caused by the negligence of the driver of the truck in several particulars, including the failure to keep a proper lookout for other vehicles under like circumstances; failure to sound his horn; in operating the truck at a high rate of speed; failure to use ordinary care; changing the course of the truck without first seeing that he had sufficient space so to do without injury to the plaintiff’s car; operating the truck with defective brakes; failure to have the truck under control; and failure to use ordinary care to avoid collision after discovering the peril of plaintiff and his car. There were further findings by the jury exonerating the plaintiff of the charge of contributory negligence in several particulars. The evidence introduced on the trial, as shown in the statement of facts, was ample to support all the jury’s findings.
“We believe it clear that all assignments of error should be overruled except the one in which complaint is made of misconduct of the jury. To support the contention of misconduct, only one juror was offered as a witness upon the hearing of the motion for new trial, and the following is his entire testimony:
“ ‘My name is E. A. Turner. I am engaged in the printing business. I was one of the jurors elected in) case No. 28870, the style of the case, O. R. Walton vs. Monkey Grip Rubber Company, which was tried in this court about three weeks ago. When the jury retired to the jury room to consider their verdict I was elected foreman of the jury. The first thing that I did after I went into the jury room, I suggested that the jury elect some one else to be foreman. The first business that we disposed of was to elect a foreman. When I was elected foreman the thing I did next was to tell them to make a vote on who they favored. I asked them to indicate whether or not they favored the plaintiff or the defendant. TheJ- did indicate whom they favored. They just all agreed that it was the other party’s verdict and they didn’t say anything about the negro in there. They didn’t say anything about the negro in there; they just all agreed that it was all for the plaintiff, is all. . The plaintiff was the one the judgment was to be given to; all agreed that it was the negro’s fault. And they all agreed that they would give a judgment to Mr. Walton.
“ ‘It is very difficult for me to remember at this time what everybody said, but I will stretch my memory and do my best to tell the substance of what every juror said, give the substance as well as I can remember; we just decided on who we was going to be in favor of. I read the questions as least three times; read the questions out loud to the rest of them; I say now that we first decided who we would be in favor of, then I read the questions over to them and probably discussed the questions as w_e came to them. , When we would discuss one then we would go on to the next one and discuss that. I know that I read the questions at least three times. I don’t hardly get the questions you ask me of when we answered these questions for me to tell the Judge whether or not I considered what effect that answer would have on the case, that is, say whether or not we would give plaintiff judgment or the defendant judgment; in other words, when we came to this first question, was the collision an unavoidable accident, our answer was “no,” and whether or not when we put that answer- “no-,” down whether we considered ’whether that would effect the plaintiff’s rights; I don’t hardly get that. Yes, in putting down these answers we did take into consideration what effect that answer was going to have on the case. Now, if we had felt to answer that question “yes” would have meant that Mr. Walton could not have gotten anything I don’t think that would have had any effect on us putting down that question “no.” There was a little discussion in there about insurance — that was brought up something about insurance, but we tried to be fair.
“ ‘In answer to question number two, the question is as to whether or not that negro kept a proper lookout. Now wo answered that question “No”, that he didn’t keep the proper lookout. I remember when the discussion took place with reference to that. After we figured out some time late in the evening, he was in a hurry to get back; I think he quit at five o’clock and he had to sweep the place out and we took into consideration that he was in an awful hurry to get back; that kind of a discussion. I don’t think at that time we took into consideration the fact that if we had answered that question the other way that Mr. Walton would not get a judgment.’
“Cross-examination by Mr. McGregor:
“ ‘When we all went in there and I was chosen to act as foreman and that proposition was decided upon we all knew that the main issue for us to decide in the ease in a general way was whose fault caused the accident, Mr. Walton’s or the negro’s. I felt that that was the logical thing for them to decide first. Now we didn’t take a vote on the question of whether or not we would find -for the plaintiff or the defendant; we just decided in a general way there whose fault caused the accident, whether it was Mr. Walton’s or the negro’s, that is right. We did not take a vote on the question of whether we were going to return a verdict for the plaintiff or for the defendant; we discussed who we were really in favor of. And then after we had done that I read over these questions to the jurors three different times.
“ ‘You asked me if the jury didn’t take up each separately and answer each one separately, and that you understand my testimony to be that I didn’t pay any attention as to whether or not it would result in a judgment for Mr. Walton or the defendant the way we answered any question, well, I will say of course, it is like I said when we first went in there we just took a vote on it. I mean in asking each question for instance — the first question we came to — the first question we had to answer was, “Was the. collision in question an unavoidable accident as that term has been heretofore defined?” Now, in answering that question number one we didn’t say we wanted to find for Mr. Walton and' we didn’t fix our answer in such a way as would result in a verdict for Mr. Walton. On the contrary, in doing that, in answering that question, we just simply thought about what the evidence was in the case and decided what the proper answer in the case of what the evidence showed it. We did that all the way through the best we could. We went over each question separately and answered each question separately just as we thought the evidence showed the answer to be; but some of! the questions were hard to answer. That is true I did that all the way through.’
“Redirect examination by Mr. Crowley;
“ ‘The first vote we took was to decide who we were in favor of.’ ”
“In view of the contradictory statements of that juror; the opinions by the Commission of Appeals in such cases as St. Louis, B. & M. Ry. Co. v. Cole, 14 S.W.(2d) 1024; Bradshaw v. Abrams, 24 S.W.(2d) 372, to the effect that the presumed findings by the trial judge on conflicting testimony of the jurors that alleged misconduct of the jury did not occur is binding upon the appellate courts; and the decision of your Honorable Court in Casstevens v. T. & P. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89, opinion by Justice Greenwood, in substance, that if misconduct of the jury is disclosed, a reversal will follow unless the facts negative beyond a reasonable doubt that it influenced any juror in assenting to the verdict; and since it occurs to us that the test of such reasonable doubt, logically, should be applicable also upon the issue of whether or not misconduct occurred, if it appears from the testimony of some juror to misconduct that at all events he believed in its truth and acted upon that belief, and that the same probably influenced his verdict, even though his testimony and that of others to the same effect is rejected by the trial 'judge as false; and in view of the importance of the question, the like of which may arise in other cases, and the-growing frequency of assignments of error in the appellate courts based upon alleged misconduct of juries, we deem it advisable to certify for determination by your Honorable Court, whether or not the assignment of error in the case now before us, presenting the question of misconduct of the jury based on the testimony of the foreman, E. A. Turner, set out above, should be sustained or overruled.”

When a case is submitted on special issues, it is the duty of the jury to answer each special issue as the facts justify without regard to the effect of such finding upon the judgment to he thereafter rendered in the cause. Simmonds v. St. Louis, B. & M. Ry. Co. (Tex. Com. App.) 29 S.W.(2d) 989; G., C. & S. F. Ry. Co. v. Harvey (Tex. Com. App.) 276 S. W. 895; Coons v. Culp (Tex. Civ. App.) 278 S. W. 914.

It is such misconduct as will require a reversal if it be shown that a jury has agreed, in advance of answering the issues submitted, in whose favor the verdict should be, and thereafter attempts to answer the question submitted with a view of bringing about such result. Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372.

However, the mere agreement by members of a jury during their deliberation as to which party they think is entitled to a verdict is not alone sufficient to constitute reversible error. It must also be shown that the jury has deliberately attempted to make the same effective by framing the answers to the issues submitted in such a way as to accomplish the desired result.

Bearing in mind the rule as to misconduct of this nature, can we say that the trial court committed error in overruling appellant’s motion for a new trial on account of the alleged misconduct of the jury while deliberating upon its verdict? We think this question must be answered in the negative. The testimony of the foreman of the jury given upon direct examination, if standing alone, was such as to require the granting of the motion for new trial. He testified that the first thing the jury did after electing a fore-' man was to take a vote as to whether the members of the jury favored the plaintiff or the defendant, and that they agreed that it was the plaintiff’s verdict. He further stated on such examination that some of the material issues submitted for the jury’s consideration were answered with the view of giving the plaintiff a verdict. Upon this point he testified: “Yes, in putting down these answers we did take into consideration what effect that answer was going to have on the ease.” This statement was somewhat modified on further direct examination, in which he said: “Now, if we had felt to answer that question (unavoidable accident) ‘Yes’' would have meant that Mr. Walton could not have got anything, I don’t think that would have had any effect on us putting it down ‘No.’ ”

The testimony of this juror on cross-examination, however, is in direct conflict with hm testimony on direct examination on each of the material points upon which he was called to testify. With reference to the agreement of the jury as to who should recover he testified on cross-examination as follows: “Now, we did'not take a vote on the question of whether or not we would find for the plaintiff or the defendant; we just decided in a general way whose fault caused the accident, whether it was Mr. Walton’s or the negro’s, that is right. We did not take a vote on the question of whether we were going to return a verdict for the plaintiff or the defendant.”

Of course, there was nothing improper in the jurors’ discussing whose fault caused the accident, as this issue was specifically sub.mitted for their determination. The jury was required under the issues submitted to answer whether the collision of the automobiles was due to the negligence of the negro ' driving one car or the contributory negligence of the plaintiff in driving the other.

The juror’s testimony on cross-examination as to whether the jury attempted to answer the special issues submitted with a view of bringing about a verdict for the plaintiff is also directly at variance with his testimony on direct examination. Upon this point he testified: “Now, in answering that question No. 1 (unavoidable accident) we did not say we wanted to find for Mr. Walton, and we did not fix our answer in such a way as would result in a verdict for Mr. Walton. On the contrary, in doing that, in answering that question, we simply thought about what the evidence was in the case and decided what the proper answer in the case of what the evidence showed it. We did that all the way through the best we could. We went over each question separately and answered each question separately just as we thought the evidence showed the answer to be; but some of the questions were hard to answer. That is true, I did that all the way through.”

When a trial court hears the testimony of jurors on an issue of misconduct, alleged to have occurred during the jury’s deliberation upon its verdict, he is accorded the same latitude in passing upon the credibility of the witnesses and of the weight to be given to their testimony as the jury had upon the trial of the original cause. If there be any inconsistencies or contradictions in the testimony of a witness upon the hearing of a motion for new trial, it rests within the sound discretion of the trial court to harmonize and reconcile such conflicts so far as possible. A juror’s testimony upon such hearing may be so contradictory and inconsistent that the trial court in exercising its privilege to pass upon the credibility of the witness may be justified in disregarding his entire testimony. Carl Construction Co. v. Bain, 235 Ky. 833, 32 S.W.(2d) 414.

After hearing the testimony of the foreman of the jury as to what occurred during the jury’s deliberation, the trial court overruled appellant’s motion for a new trial. It is the duty of the Court of Civil Appeals to presume, in support of that ruling, that the trial court, in passing upon the foreman’s testimony, gave the same the most favorable construction of which it was susceptible, and that no such misconduct occurred.

The testimony of the foreman upon cross-examination showed clearly that the misconduct alleged did not in fact occur. The trial court was fully authorized, in the exercise of its privilege in weighing the testimony adduced before it on the hearing of a motion for a new trial, to accept the version given by the witness on cross-examination as to what occurred in the jury’s deliberation. Furthermore, the trial court was justified, if it saw fit to do so, in disregarding the testimony of the witness entirely because of the contradictory and inconsistent manner in which he testified concerning the issues before the court.

When the foreman of the jury, upon the hearing of the motion for new trial, so testified as to justify the trial court in disbelieving his entire testimony or to authorize it to find that his testimony did not show such misconduct as would require the granting of a new trial, appellant should have introduced other jurors and developed further testimony upon this issue. It did not, however, see fit to present any further tvitnesses upon the issue, but was content to rest a decision of the matter with the trial court, although it knew that the juror’s testimony was fairly susceptible of a construction that the misconduct relied on had not occurred. Appellant therefore is in no position to complain that the trial court, in the exercise of the discretion vested in it, declined to grant a new trial because of the misconduct of the jury during its deliberation.

We recommend that the question certified be answered that the trial court did not err in refusing to grant appellant’s motion for new trial because of the alleged misconduct of the jury.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.


source: Caselaw Access Project

author: TEDDY, J. CURETON, C. J.

license: Public Domain

text:
    SMITH et al. v. TEXAS CO.
    No. 1396—6015.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.

      F. L. Henderson and R.' Y. Armstrong, both of Bryan, and A. S. Rollins,' of Dallas, for plaintiffs in error.
    E. S. Morris, of San Antonio, and P. T. Baldwin, of Houston, for defendant in error.
   TEDDY, J.

9Jhe state of Texas, acting by and through its highway department, entered into a written contract with Allen Smith, by the terms of which the latter agreed to construct and improve, at his own cost and expense, certain portions of state highway No. 24 in Young county, Tex.

A portion of the work covered by this contract was'afterwards sublet by Smith to Paul Schriewer. The latter purchased from the defendant in error certain road materials necessary to carry out the aforesaid contract. This material was used in constructing the improvements for which the contractor was bound. Payment therefor was not made, and on August 1, 1929 before final settlement by the state with Allen Smith, in compliance with the provisions of Senate Bill 123, chapter 17, Acts 39th Legislature, articles 5472a and 5472b, Vernon’s Annotated Texas Civil Statutes, defendant in error filed with the state highway department written notice of its claim against said Paul Schriewer and Allen Smith in an effort to fix a lien on the money, due the contractor under said contract.

After the filing of this claim, the contractor, Allen Smith, in order to obtain payment from the state highway department of the balance due him under the terms of said contract, filed a bond executed by himself as principal, with the American Surety Company of New York as surety, in the sum of $46,849.16. This bond was executed for the benefit of the Texas Company and other claimants; its conditions being in conformity with the provisions of Senate Bill 153, chapter 78, 41st Legislature, Second Called Session (1929), which is now carried as article 5472b — 1, Vernon’s Annotated Texas Statutes. Upon the filing of this release bond, the state highway commission duly executed and delivered its voucher to Allen Smith, contractor, for $23,414.58, the amount remaining due and unpaid under said contract.

Defendant in error filed this suit against the original contractor, Allen Smith, the subcontractor, Paul Schriewer, and the American Surety Company, surety, in which it sought to recover against said parties for the amount due it for material furnished to the subcontractor, Paul Schriewer, together with reasonable attorney’s fees for the prosecution of the suit.

The case was tried before the court without the intervention of a jury. Judgment was rendered in favor of defendant in error, Texas Company, for the full amount of the claim against Paul Schriewer, the subcontractor, but it was denied a recovery against Allen Smith, principal, and the American Surety Company, surety, on the release bond.

Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the full amount claimed in favor of defendant in error against the principal and surety upon the bond aforesaid, and also awarded it the sum of $500 as reasonable attorney's fees.

Plaintiffs in error, Allen Smith and the American Surety Company challenge the correctness of the judgment of the Court of Civil Appeals awarding this recovery against them upon the-following grounds:

(1) That article 5472b, R. S. 1925, is in derogation of sovereignty and in effect a garnist ment statute and therefore should be strictly construed; that, when so construed, the lien therein provided does not inure to the benefit of one furnishing material to a subcontractor.

(2) That, even if said statute, properly construed, creates a lien in favor of one furnishing material to a subcontractor, the defendant-in error failed to establish such lien, because it did not file its claim before any payment had been made to the contractor; that no lien was fixed for the further reason that defendant in error failed to allege or prove, as required by the terms of said article, that its claim was filed with the official of the state whose duty it was to pay the amount due the contractor.

(3) That the Court of Civil Appeals was without authority to allow defendant in error $500 as attorney’s fees, because there was no evidence presented upon such issue in the trial court, nor was there any finding by such court as to what would constitute a reasonable attorney’s fee.

Plaintiffs in error’s contention that articles 5472a and 5472b should be strictly interpreted, because such legislation is, in effect, a garnishment statute and in derogation of sovereignty, is fully and completely answered by the provisions of article 10 of the Revised Statutes of 1925. This article prescribes the rule by which the courts of this state shall construe all of the revised statutes. It reads as follows: “The rule of the common law 'that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.”

This statute is plain and emphatic in its terms. Its meaning is too clear to admit of any question. It furnishes the rule and guide by which the courts of this state, in interpreting any of the revised statutes, must arrive at the meaning and intention of the Legislature. In establishing this rule, the lawmak- . ing body made no exception as to statutes in derogation of sovereignty or those which provide for summary remedies. The courts have no authority to ingraft any exceptions upon this statute, but must comply with its plain direction that all of the statutes composing the Code shall be given a liberal interpretation with a view to effect their objects and to promote justice.

Plaintiffs in error quote from a number of decisions of the Supreme Court in which expressions have been used to the effect that 'statutes providing summary remedies, such as attachments, garnishments, etc., should be strictly construed. An examination of the cases cited discloses that they do not decide that statutes of this nature should be strictly interpreted when the court is endeavoring to arrive at the legislative purpose and intent in their enactment. The real holding in all of these cases is that those desiring to avail themselves of the benefits of such statutes should be required to comply strictly with their provisions.

Í A review of the cases relied on will show that the character of compliance with stat- : utes of this nature, by those seeking benefits thereunder, was what the court had before it when stating that such statutes should be strictly construed. In Scurlock et al. v. Gulf, C. & S. E. Ry. Co., 77 Tex. 478, 14 S. W. 148, the language of the court that a statute pro- ¡ viding for garnishment should be strictly construed is coupled with the statement: “That a party attempting to avail himself of the remedy must strictly follow the law.”

' In Gause v. Cone, 73 Tex. 239, 11 S. W. 162, 163, the proposition announced by the court, that the law must be strictly construed, is likewise coupled with the decláration “that the extent of the garnishee’s liability is measured and limited by the express provisions of statutory law.”

In Buerger v. Wells, 110 Tex. 666, 222 S. W. 151, it is made plain by Chief Justice Phillips that garnishment statutes' should be strictly followed. He says: “Garnishment is but a species of attachment. It is a summary proceeding. The statutes governing it should be followed with strictness.”

In Willis v. Lyman, 22 Tex. 268, the court, after reciting the inconvenience and "hardships of a statute providing for a summary proceeding, said: “For these reasons, proceedings against garnishees ought not to be sustained, unless they are in strict conformity with the requirements of the law.”

It is thus seen that the records in the cases relied on by plaintiffs in error did not present a situation where the court was endeavoring. to ascertain the meaning and intent of a statute providing for a summary remedy. The real question involved was whether the party seeking 'the benefit of such remedy had strictly complied with the provisions of the law in regard thereto.

We think the true rule is that the courts of this state, when seeking to arrive, at the legislative intention, must interpret any statute liberally, with a view to effect the object and purpose of its enactment. This they are directed to do by the express command of the statute. When a statute providing for a summary remedy has been so interpreted and its meaning determined, then it is the duty of the court in applying- the statute to require those seeking to avail themselves of its benefits to comply strictly with its terms. There is a marked distinction between construing a statute strictly when endeavoring to ascertain its meaning and in requiring persons seeking to avail themselves of^its benefits to comply strictly with its provisions.

It is therefore out duty to give the statute here involved a liberal interpretation in order to effect the object and purpose of its enactment. When so interpreted, we think there is manifested a design upon the part of the Legislature to extend the benefit of the lien provided for to those furnishing material to subcontractors. This purpose is revealed in the caption of the act. It is sufficiently comprehensive to include subcontractors. It is recited that it is “An Act to create a lien in favor of any person, firm or corporation who may furnish any material * * * to contractors who contract for public improvements.”

It will be noted that the language of the act does not limit the lien to those furnishing material to contractors who contract with the state for public improvements. The provision is that the lien arises in favor of any person furnishing material to “any contractor for any public improvements.” The material furnished by defendant in error to Schriewer was furnished to a “contractor for a public improvement” and therefore clearly within the purview of the statute.

It is a familiar rule of statutory interpretation that, where a word used in a statute has been given a certain meaning by the courts, and the legislature subsequently uses the same word, without specially defining it, in an act relating to the same subject-matter, it will be presumed that it was deliberately used by the lawmaking body in the light of the judicial construction it has theretofore received. Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Scott v. State (Tex. Cr. App.) 110 S. W. 69; 36 Cyc. p. 1154.

Prior to the time the Legislature enacted the statute under consideration, our Supreme Court, in Bassett v. Mills, 89 Tex. 162, 34 S. W. 93, construed what is now article 5452, Revised Statutes, which gives a lien to those furnishing labor, and material to a contractor in the construction of any private improvement. It was there held that a lien arose in favor of one furnishing material to subcontractors, although only contractors were named therein. With this judicial definition of the term “contractors,” in a statute similar to the one under consideration, it must be presumed that, if the Legislature did not intend to grant a lien to those furnishing material to subcontractors to be used in a public improvement, it would not have used a term which had theretofore been construed by the courts to include them.

There are a number of decisions which hold that the word “contractor,” when used in statutes similar to the one under consideration, includes a subcontractor. Fennell v. Trinity Portland Cement Co. (Tex. Civ. App.) 209 S. W. 796 (writ refused); Huttig Sash & Door Co. v. Stitt (C. C. A.) 218 F. 1, 4; United States Fidelity & Guaranty Co. v. Henderson County (Tex. Civ. App.) 253 S. W. 835; Mankin v. U. S., 215 U. S. 533, 30 S. Ct. 174, 54 L. Ed. 315; Mundt v. Sheboygan, etc., R. Co., 81 Wis. 451; 13 C. J. 212.

Again, when we consider legislation covering the same subject-matter passed at the same session of the Legislature which enacted the statute under consideration, it becomes apparent that articles 5472a and 5472b were designed to secure payment to all persons furnishing labor, material, and equipment used in the construction of any public improvement. Senate Bill 74, Acts 39th Leg. (1925) c. 186, p. 456 (Vernon’s Ann. Civ. St. arts. 6674a-6674n), was enacted by the same Legislature which passed the act under consideration. It provides that the state shall retain 10 per cent, of the contract price for any such improvement until the entire work has been completed and accepted, and it expressly forbids final payment of the retained sum until it is shown that “all sums of money due for any labor, materials, or equipment furnished for the purpose of such improvements made under any such contract have been paid.” Section 13 of the act (Vernon’s Ann. Civ. St. art. 6674m). It is proper to construe this act as a part of the legislation providing for the lien in question, as it relates to the same subject-matter and was passed at the same session of the Legislature. Southern Pac. Co. v. Sorey, 104 Tex. 476, 140 S. W. 334; McGrady v. Terrell, 98 Tex. 427, 84 S. W. 641; Lovett v. Simmons (Tex. Com. App.) 29 S.W.(2d) 1021; 36 Cyc. p. 1147.

We think it fairly appears from a consideration of the general scheme of legislation upon this subject that it was the intention of the Legislature to enable those furnishing labor, material, and equipment to a subcontractor for any public improvement to receive payment therefor to the extent of any unpaid balance due said subcontractor at the time notice required by statute is given. Brooks Construction Co. v. First State, Bank of Marquez (Tex. Civ. App.) 39 S.W.(2d) 83; Allen Smith v. Jacksboro Stone Products Co. (Tex. Civ. App.) 41 S.W.(2d) 347; Pierce Petroleum Co. v. Smith et al. (Tex. Civ. App.) 42 S.W.(2d) 88.

This brings us to the question whether defendant in error sufficiently complied with the terms of the statute to establish a lien upon the funds due the contractor. Plaintiff in error asserts that there was a failure to do so in two respects: (a) Because said claim was not filed before any payment had been made to the contractor, Allen Smith, (b) Because it was not alleged or proven that such claim was filed with the official of the state whose duty it was to pay for work performed under said contract.

The statute provides that persons furnishing labor, material, or equipment to, any contractor for any public improvement shall have a lien on the money, bonds, or warrants due or to become due to such contractor, provided they shall, before any payment is made to the contractor, notify in writing the official of the state, county, town, or municipality, whose duty it is to pay such contractor for his claim. '•

It is undisputed that a.large portion of the amount due under the contract had been, paid to Allen Smith, the contractor, before-defendant in error filed notice of its claim with the state highway commission. If a proper construction of the statute is that a lien cannot be fixed by any one furnishing labor, material, or equipment for a public improvement, unless the notice is filed before any money has been paid to the contractor, then it follows that defendant in error’s notice was insufficient to fix a lien on the money then due the contractor.

To decide that a lien cannot be fixed upon the funds due the contractor unless notice is filed with the proper official before any money has been paid out under the contract would operate to defeat the primary object and purpose of the passage of this legislation. We have already determined that this statute-was enacted with the view of enabling those furnishing labor, material, and equipment for any public improvement to secure payment therefor. If we should adopt the construction of the statute contended for by plaintiffs-in error, it would place it within the power of the contractor, the person against whose funds the Legislature provided for fixing the lien, to defeat the establishing of such lien whenever he desired to do so. Any contractor who secured a contract for the construction of a public improvement involving a large sum could purchase an insignificant amount of material and receive payment for same before making any other contract for necessary labor, material, or equipment to complete the performance of his contract. I-Iis action in this respect would absolutely prevent the fixing of any lien upon any funds to become due him by any one subsequently furnishing material, labor, or equipment for the construction of the entire improvement. Under such circumstances it would be impossible for the required notice to be given. This statute should not be given such a construction as will render it impossible of performance, nor should it be so interpreted as to place it within the power of those against whom it is designed to operate to defeat its purpose, unless the language thereof does not admit of any other fair or reasonable interpretation. American Ind. Co. v. City of Austin, 112 Tex. 239, 246 S. W. 1019; Davis v. Estes (Tex. Com. App.) 44 S.W.(2d) 952, 953; Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322.

The provision of the statute requiring notice to be filed before “any payment” has been made to the contractor was evidently intended to mean that the notice must be given before any payment of the funds upon which the lien is sought to be impressed has been made to the contractor. In other words, it was for the purpose of making plain that the giving of the notice would not operate to create a lien upon any funds which had theretofore been paid to the contractor.

We also conclude that the filing of the notice with the state highway commission was a strict compliance with the provision of the act, which requires the same to be filed with the official, whose duty it is to pay the original contractor. Winder Bros. v. Sterling, 118 Tex. 268, 12 S.W.(2d) 127, 14 S.W.(2d) 802; Metropolitan Casualty Ins. Co. v. Cheaney et al. (Tex. Civ. App.) 32 S.W.(2d) 691; West Chicago Park Com’rs v. Western Granite Co., 200 Ill. 527, 66 N. E. 37; James P. Hall, Inc., v. Jersey City, 62 N. J. Eq. 489, 50 A. 603.

Funds contributed by the federal government are authorized to be expended by and under the supervision of the state -highway department. Article 6672.

Article 6674 provides that; “All money herein authorized to be appropriated for the operation of the Department and the purchase of equipment shall be paid from the State Highway Fund, and the remainder of said fund shall be expended by the Commission for the furtherance of public road construction and the establishment of a system of State highways as herein provided.”

All money deposited to the credit of the highway fund is by the terms of article 6674e made subject to appropriation for the specific purpose of said improvement of said system of state highways by the highway department.

It thus appears that the Legislature has established a department and clothed it with full and complete authority to make contracts for the improvement of state highways and created a special fund out of which the obligations made by such department shall be discharged. The highway commission is charged with the duty of paying these obligations from this special fund. When consideration is given to the statutes vesting control over designated state highways in the state highway commission, and authorizing such body to contract and expend funds set apart for that purpose, it becomes obvious that such department is the one whose duty it is to pay contractors for work performed upon state highways. It is true that the state treasurer actually pays out the money on deposit to the credit of the high-, way department, as is generally the case with all obligations made by a state department for and on behalf of the state. He does this, however, as a mere disbursing officer and on vouchers issued and approved by a majority of the highway commission. He has no discretion in paying claims of contractors when they are properly approved by the highway commission. Certainly such discretion was intended to be lodged with the official whose duty it is to pay off and discharge such obligations. The Legislature might have made provision for the special highway fund to be deposited in some private banking institution. If it had done so, such bank would actually pay the vouchers issued by the highway department, but under such circumstances it could in no proper sense be considered the official whose duty it was to pay contractors for services performed under their contracts.

Farther, we think it reasonable to assume that the Legislature contemplated that the required notice should be filed with the particular department whose records at all times disclosed the amount remaining unpaid to the contractor. This fact would not appear from the records of the state treasurer, as the contracts for such improvements are not required to be filed with that official, and he would have no means of ascertaining the amount remaining unpaid to a contractor except through an examination of the records of another department.

We sustain plaintiffs in error’s contention that the Court of Civil Appeals was without authority to fix and award defendant in error what it considered a reasonable attorney’s fee. When the recovery of such a fee is sought under a statute providing therefor, there is necessarily presented an issue of fact. Wichita Valley Ry. Co. v. Wood (Tex. Civ. App.) 284 S. W. 301; St. Louis Southwestern Railway Co. v. Claybon (Tex. Civ. App.) 199 S. W. 488; Quanah, A. & P. R. Co. v. Price (Tex. Civ. App.) 192 S. W. 805. The Court of Civil Appeals is without authority to determine a material issue of fact, and render judgment thereon when such issue has not been passed upon by the trial court. The appellate court is limited, in its review of a case on appeal, to a determination of questions affecting the correctness of the judgment rendered by the court below.

It is true it has been held that a trial judge may determine an issue of fact as to what constitutes a reasonable attorney fee for services rendered in a trial before him, from his own knowledge of the nature and value of the services for which compensation is claimed. Johnson v. Blanks, 68 Tex. 495, 4 S. W. 557. But it is not within the province of a Court of Civil Appeals to try a disputed issue of fact. It can only use its own knowledge as to what constitutes a reasonable attorney’s fee for services shown by the record before it for the purpose of reviewing the correct-, ness of the judgment of the trial court, the tribunal which is vested with the exclusive power of deciding such issue.

The case of Southland Life Insurance Co. v. Norton, 5 S.W.(2d) 767, decided by Section A of the Commission of Appeals, is not authority to support defendant in error’s contention that the Court of Civil Appeals is authorized to fix and award an attorney’s fee where the issue as to what would constitute a reasonable one under all the facts has not been adjudicated by the trial court. It was merely held in that case that the Court of Civil Appeals might use its own knowledge as to the reasonableness of an attorney’s fee, in connection with the facts proven upon the trial, in reaching a conclusion as to whether the fee awarded by the trial court was so excessive in amount as to require a remittitur to be entered. The holding did not go to the extent of authorizing the Court of Civil Appeals to usurp the functions of a trial court and award an attorney’s fee where no judgment therefor has been rendered by the latter court. The determination as to whether an attorney’s fee awarded by a trial court is excessive in amount is, of course, a proper exercise of the appellate jurisdiction of the Court of Civil Appeals. But the fixing by it of an attorney’s fee, when such issue has not been determined by the trial court, would constitute the exercise.of an original rather than an appellate jurisdiction.

We recommend that that portion of the Court of Civil Appeals’ judgment awarding defendant in error $500 attorney’s fees be reversed and remanded to the district court in order that a reasonable attorney’s fee may be fixed by that court. The remaining portion of the judgment of the Court of Civil Appeals should be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is in part affirmed and in part reversed, and 'cause remanded, as recommended by the Commission of Appeals.

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


text:
    Allen SMITH et al. v. G. B. JOHNSON HARDWARE COMPANY.
    No. 1409—6083.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    • F. L. Henderson and R. Y. Armstrong, both of Bryan, W. L. Scott, of Fort Worth, and A. S. Rollins, of Dallas, for plaintiffs in error.
    Marshall & King and Binkley & Binkley, all. of Graham, for defendant in error.
   LEDDY, J.

The assignments presented in the application for writ of error raise the same legal questions as have been this day decided by this Commission in. the case of Allen Smith et al. v. Texas Co., 53 S.W.(2d) 774, not yet reported [in State reports].

For the reasons assigned in our opinion in that case, we recommend an affirmance of the judgment of the Court of Civil Appeals.

CURETON, C. J.

The judgment of the Court of Civil Appeáls is affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J. CURETON, O. J.

text:
    Allen SMITH et al. v. JACKSBORO STONE PRODUCTS COMPANY.
    No. 1410—6084.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    ⅛. L. Henderson and R. V. Armstrong, both of Bryan, W. L. Scott, of Fort Worth, and A. S. Rollins, of Dallas, for plaintiffs in error.
    Marshall & King, of Graham, and Dick Dresser, of Seymour, for defendant in error.
   LEDDY, J.

The assignments presented in the application in this case raise the identical legal questions this day decided by us in the case of Allen Smith et al. v. Texas Co., 53 S.W.(2d) 774, not yet reported [in State reports].

The conclusions of law reached in that case require an .affirmance of the judgment of the Court of Civil Appeals in this case [41 S.W. (2d) 347], and we so recommend.

CURETON, O. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commis.sion of Appeals.


text:
    Allen SMITH et al. v. PIERCE PETROLEUM CORPORATION.
    No. 1412—6109.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    F. L. Henderson and R. V. Armstrong, of Bryan, and A. S. Rollins, of Dallas, for plaintiffs in error.
    Cantey, Hanger & McMahon, and F. T. Denny, all of Fort Worth, for defendant in error.
   LEDDY, J.

The agreed statement of facts upon which this case was tried raises the same legal questions decided by us in the case of Allen Smith et al. v. Texas Oo., this day decided, 53 S.W. (2d) 774, not yet reported [in State reports].

The conclusions announced in the above case sustain the judgment of the Court of • Civil Appeals [38 S.W.(2d) 141] in rendering judgment in favor of defendant in error for the full amount of its claim. That portion of the judgment of the Court of Civil Appeals, however, which awards defendant in error $250 as reasonable attorney’s fees is erroneous for the reasons fully set forth in the above case.

We therefore recommend that the judgment of the Court of Civil Appeals [42 S.W. (2d) 88] awarding defendant in error $250 attorney’s fees be reversed and remanded to the trial court, with instructions to award defendant in error what may be determined to be a reasonable attorney’s fee under the facts presented. In all other respects the judgment of the -Court of Civil Appeals should be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is in part affirmed and in part reversed, and cause remanded, as recommended by the Commission of Appeals.


author: MORROW, P. J.

text:
    HAWKINS v. STATE.
    No. 15308.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Seb F. Caldwell, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

At night, a glass in the front of the store of Mrs. Fuquay was broken and a dress and hat taken from the building through the hole made in the glass.

The testimony of Ard, the night watchman, was in substance as follows: About 3 o’clock in tbe morning, tbe witness was walking on tbe street and saw Hawkins, tbe appellant, also on tbe street. According to bis testimony, Ard was walking leisurely in a direction meeting Harris, and saw Harris walk up to Mrs. Fuquay’s door, throw a brickbat through tbe window, then step out and look both ways, and go back “out of my sight,” and after a few minutes be came out before Ard reached tbe place. From Ard’s testimony we quote: “It appeared that he had something in his clothes when he came out of there. * * * When he came out of there he had something in his bosom bulging out there. I was not close enough to tell what it was.” The witness hollered and tried to overtake the appellant. Some two or more hours later, Ard and the witness Smith (the .sheriff) went to the home of the appellant and arrested him, but found none of the stolen property.

The state’s witness (Sip) Harris gave testimony in substance as follows: At the date of the alleged offense, he was a night cook at Hodge’s Café. He saw the appellant, “it seems to me like it was after midnight.” On the night that the offense is charged to have taken place, the appellant was at the café and got a chili.. From the witness’ testimony we quote: “Yes, he paid for it. I don’t know what he paid for it. I think he got the chili for dish washing. It might have been a knob off a car that he traded for it, I don’t know. I may be mixed up in the time but one time he traded a knob off of a car. One time he traded a knob off a gear shift of a ear. He traded it for a chili. It was a kind of ivory knob. I am not certain that that was the same night (as the alleged offense.)”

Smith (the sheriff) got the knob from the witness (Sip) Harris the next morning after the burglary. The sheriff testified: “I returned the knob to Mr. DuBose because he identified it.”

The witness Mankin, a deputy constable, testified for the state, in substance, that on the night of the occurrence he saw a man, whom he could not identify, running on a street; that he pursued the man but could not catch him.

The witness Riddle testified on behalf of the appellant that the knob mentioned above had been in the appellant’s possession for a month or so, “or one just like it had.”

The appellant testified in his own behalf that he was at Hodge’s Café about 10 or 11 o’clock at night and got a chili; that he exchanged it for a lanol) which he had gotten off his own car; that he went home and retired; that while he was in bed the sheriff and his deputy came to the house and brought him back to town. On cross-examination he was interrogated about the Jcnod. He said it was his; that he had had it for a long time; that it did not belong to Mr. Du Bose; that he did not need it and brought it to town.

The witness Ard was recalled by the state and testified that he had examined the appellant’s car; that it had a black knob on the gear shift lever; that the knob gotten from the restaurant was a white knob.

The testimony about the knob was received over the objection of the appellant, as shown by two bills of exception. It seems that the knob was entirely disconnected from the offense for which the appellant was on trial, and the use made of the knob was to prove by circumstances and by hearsay testimony that appellant possessed and traded for some chili a knob which he had stolen from Du Bose. It had no legitimate bearing upon the case on trial. Its effect upon the jury was to show that the appellant had stolen the knob and was therefore a thief, and probably guilty of the offense with which he wás charged. The reception of the evidence' concerning the knob was obnoxious to the general rule forbidding the introduction of proof of extraneous crimes, and not within any of the exceptions which warrant the reception of such testimony.

Under no phase of the case is it conceived that the testimony that appellant had stolen the knob from Du Bose’s ear relevant upon any issue in the case. Its harmful effect is obvious; and because of its reception, the judgment is reversed, and the cause remanded.


author:
MORROW, P. 3.
     LATTIMORE, J.

text:
    Ex parte BUTCHER.
    No. 14963.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1932.
    Rehearing Granted Oct. 19, 1932.

      3. S. Bracewell, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. 3.

This is an application for a writ' of habeas corpus.

It is charged that E. D. Butcher employed Helen George, a female, to work in a laundry in the city of Houston for more than fifty-four hours during the calendar week.

The statute charged to have been transgressed is contained in chapter 56, Acts of 34th Leg., Reg. Session, page 105 (Gammel’s Laws, vol. 17, p. 105), embraced in articles 1569, 1570, and 1572, of the revision of the Penal Code 1925. The applicable parts of the statute are as follows:

“Art. 1569. — No female shall be employed:
“1. In any factory, mine, mill, workshop, mechanical or mercantile establishment, hotel, restaurant, rooming house, theater, moving picture show, barber shop, telegraph, telephone or other office, express or transportation company, or any State institution, or any other establishment, institution or enterprise where females are employed, for more than nine hours in any one calendar day nor more than fifty-four hours in any one calendar week.
“2. In any laundry for more than fifty-four hours in one calendar week; the hours of work to be so arranged as to permit the employment of such female at any time so that she shall not work more than a maximum of eleven hours during the twenty-four-hour period of one day.’
“3. In any factory engaged in the manu--facture of cotton, woolen or worsted goods or articles of merchandise manufactured out of cotton goods, for more than ten-hours in any one calendar day nor more than sixty hours in any oné calendar week.’’
“Art. 1572. — Any employer, overseer, superintendent, foreman or other agent of any such employer who shall permit any female to work in any place mentioned in the-first two articles of this chapter more than the number of hours provided for during any day of the twenty-four hours, or who shall fail or refuse to so arrange the work of spch employees in said place so that they shall not work more than the number of hours so provided for, or who shall fail or refuse to provide suitable seats as provided in the second preceding article, shall be fined not less than fifty, nor more than two hundred dollars. Each day of such violation and each such employee permitted to work more than the time so specified shall be a separate offense.”

It appears to be the contention of the relator that in the statute there is provided no penalty for the act of the appellant set forth in the complaint. That is to say, as understood, he contends that the penalty declared in article 1572, supra, has no application to that part of section la of the act reading as follows: “In any laundry for more than fifty-four hours in one calendar week.” If we comprehend the language of the statute, it does not admit of the interpretation for which the relator contends. Going to the caption of the act and eliminating the irrelevant parts, the following is found: “An Act limiting the hours of labor for females employed in any * * * laundry, * * * or in any other establishment, institution or enterprise or any state institution where females are employed, except as hereinafter provided; * * * providing a penalty for failure or refusal of such employer to comply with the provisions of this Act, or for permitting or suffering any superintendent, overseer, foreman or other agent of such employer, entrusted with authority, to violate any of the provisions of this Act; providing for extraordinary emergencies, and declaring an emergency.”

Article 1569, supra, is identical with sections la and lb, c. 56, Acts of the Legislature, above mentioned. Section 3 of the act contains the following: “Any employer, overseer, superintendent, foreman, or other agent of any such employer who shall permit any female to work in any of the places mentioned in Sections 1, la and lb more than the number of hours provided for in this 'Act during any day of the twenty-four hours, or who shall fail, neglect or refuse to so arrange the work of females employed in the said places mentioned in Sections 1, la and lb so that they shall not work more than the number of hours provided for in Sections 1, la and lb of this Act, during any day of twenty-four hours or the number of -hours prescribed by this Act in any one week, or who shall fail, neglect or refuse to provide suitable seats as provided in Section 2 of-this Act shall be deemed guilty of a misdemeanor, and upon conviction in any court of competent jurisdiction sliall be fined in any sum not less than fifty ($50.00) dollars nor more than two hundred ($200.00) dollars.”

It is the claim of the relator that it was not the intention of the Legislature to penalize the employer of females in a laundry. To permit one of them to work in excess of fifty-four hours per week, in the opinion of this court, does violence to the legislative intent reflected by the act of the Legislature mentioned above; namely,' chapter 56, Acts of 34th Legislature (1915). We think it cannot justly be assumed that in transposing some of the verbiage in the original act by the codifiers there was an intent to change or modify the meaning of the act of the Legislature. Taken in its entirety as it appears in the act of the Legislature, in the opinion of this court, nothing appears in the act (as cod'fied in the Penal Code of 1925) that the law does not penalize the conduct of the accused set forth in the complaint; namely, to permit his female employees in a laundry to work more than fifty-four hours in the calendar -week.

The bearing of the caption of an act of the Legislature in interpreting the legislative intent is recognized by courts and text-writers. See Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 2, p. 651, § 340. The same may be said with reference to the .original act of the Legislature in instances where, in the re-enactment in the codifying, there has been a rearrangement of the verbiage. See Lewis’ Sutherland Stat. Const., supra, p. 857, § 451. From section 456 of the text just mentioned the following quotation is taken; “Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of all legitimate aids to ascertain the true intention; and among them are some extraneous facts. The object sought to be accomplished exercises a potent influence in determining the meaning of not only the principal but also the minor provisions of a statute.”

Manifestly, the intent of the Legislature, apparent from both the original act and its reenactment in the Penal Code, is to protect female employees in certain occupations, including laundry, from working more than fifty-four hours a week and to penalize employers who violate the legislative mandate. A conclusion in accord with the relator’s contention would be directly opposed to the object sought to be accomplished by the Legislature. If possible, statutes are to be construed to carry out the obvious intention of the Legislature. See Lewis’ Sutherland, Statutory Construction, supra, § 526, also section 528. It is thought that the statute under consideration*is not ambiguous in the particular under investigation, especially when considered in the light of the precedents and principles to which reference has been made.

For the reasons stated, the application for writ of habeas corpus is denied, and the relator is remanded to the custody of the sheriff of Harris county, Tex.

On Motion for Rehearing.

LATTIMORE, J.

Relator renews complaint originally made questioning whether there is now on our statute books any penalty against him who operates a laundry and permits a female employee to work therein for more than fifty-four hours in one calendar week. Examining again article 1569, P. 0. 1925, we note that it has three subdivisions: The first forbidding that a female employee, engaged in the occupations named, be allowed to work more than nine hours in any one calendar day, or more than fifty-four hours in any one calendar week; the second forbidding that female employees in laundries be permitted to work more than fifty-four hours in one calendar week, and commanding that her hours of work be so arranged as not to permit her to work more than eleven hours in any one day; and, third, prohibiting that female employees, in the occupations named, be allowed to work more than ten hours per day, or more than sixty hours in any week. Article 1572, P. C., fixes the penalty for the wrongful act of an employer who violates the above prohibitions and commands, and states: “Any employer * * * who shall permit any female to work in any place mentioned * * more than the number of hours provided for during any day of the twenty-four hours, or who shall fail or refuse to so arrange the .work of such employees in said place so that they shall not work more than the number of hours so provided for.”

The matter under discussion seems one of first impression; we being unable to find where it has been before this court. There seem to be but two matters forbidden in article 1569, supra, which are made penal by the terms of article 1572, supra, viz. : First, permitting female employees to work more than the number of hours provided for in any one day; second, failing and refus-. ing to so arrange the work of such employees as that they shall not work more than the number of hours so provided for. Just what this' last expression “so provided for” means, we are not called on to say, inasmuch as this relator is not charged with “failing or refusing to so arrange the work” of his female employees so that they shall not, work either more than the hours per day or per week provided for. He is plainly charged. with permitting such employees to work more than fifty-four hours in a laundry in a calendar week — an offense for which no penalty is fixed by article 1572, supra. We see noway by which we can go beyond the language of article 1572, supra, as written and enacted in the revised Penal Code of 1925, and read into said article any penal clause which may have been put .therein by any former act of the Legislature in 1915. The matter before us is not merely one pertaining to procedure, concerning which slight differences between Civil and Penal Codes may be so interpreted by the courts as to uphold orderly procedure. The mandate of our statute is that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty affixed thereto by the written law of this state. ' Article 3, P. C. Nor can he be held to answer for such offense until there is filed a proper pleading by the state charging him with same “in plain and intelligible words,” wherein shall be set forth everything necessary to be proved against him, with that certainty which will not only apprise him of the offense charged, but also enable him to plead the judgment in bar of any subsequent prosecution for the same offense. Articles 396-398, O. C. P.

Can it be contended that ■ this relator —charged with permitting Helen George to work more than fifty-four hours in one calendar week in his laundry — would or could know that thereby he was charged with “failing and refusing to so arrange” the work of Helen George as that she should not work more than fifty-four hours per week? We do not think so. The only command of article 1569, P. C. 1925, supra, which in any way bids relator to “so arrange the work” of Helen George, states plainly that “the hours of. work to be so arranged as to permit the employment of such female at any time so that she shall not work more than a maxL mum of eleven hours during the twenty-four-hour period of one day.” In said article 1569 some latitude is given to the employer in arranging the hours of work per day of his female employees, that is, in the matter of lengthening or shortening such work day, but none is given him in extending or lengthening the hours of work per week. He may make six nine-hour work days, or in some cases so many eight-hour or ten-hour or even eleven-hour work days during the week if he chooses, and be within the term's of the statute, but he cannot arrange the work so that any employees named in subdivisions 1 and 2 of said article can work more than fifty-four hours in any week. There is no question about the week’s work hours. If such employer of female' labor lets his employees work more than fifty-four hours in a week, he violates the command of article 1569. No arrangement of work -hours could affect this fact. We are constrained to hold that article 1572, supra, fixes no penalty for the act of an employer of female labor in a laundry who permits his employees to work more than fifty-four hours per week, and, in obedience to the command of our statute, we must hold that the prosecution in this case, under the allegations of the complaint, must fall; no penalty being affixed by the written law of this state to the act charged.

The motion for rehearing is granted, the judgment remanding relator is set aside, and the relator is ordered discharged.

Presiding Judge MORROW adheres to his •views as originally written.


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

text:
    Ex parte E. D. BUTCHER.
    No. 14964.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1932.
    Rehearing Granted Oct. 19, 1932.
    J. S. Bracewell, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an application for a writ of habeas corpus.

Appellant was charged by complaint with permitting Freida George, a female, to work in a laundry in which she was employed by the appellant for more than fifty-four hours during the calendar week.

The application is based upon the insufficiency of article 1569, P. C. 1925, to denounce the act of the accused as an offense. The subject is discussed in the companion case of Ex parte Butcher, 53 S.W.(2d) 781, this day decided, and reference is thereto made.

The application for a writ of habeas corpus is denied, and the relator is remanded to the custody of the sheriff of Harris county.

On Motion for Rehearing.

LATTIMORE, J.

This is a companion case to Ex parte H. D. Butcher, 53 S.W.(2d) 781, opinion this day handed down. Relator herein was charged and convicted for the same offense. For the reasons stated in the opinion in said case, the judgment remanding relator is set aside, and the relator is ordered discharged.


text:
    CARAWAY v. STATE.
    No. 15594.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Dan Doherty, of San' Antonio, for appellant.
    Uoyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Robbery with firearms is the offense; penalty assessed at confinement in the penitentiary for five years.

It has been made known to this court by the affidavit of Sam Hart, sheriff of Gonzales county, that the appellant, pending his appeal, escaped from the jail of said county on the 1st day of October, 1932, and did not voluntarily return within ten days, but is still at large. By reason of such escape, this court is deprived of jurisdiction of the appeal. See article 824, C. C. P. 1925, and authorities cited in Vernon’s Ann. Tex. C. C. P., 1925, vol. 3, pp. 193, 194.

The appeal is dismissed.


author: CALHOUN, J. PER CURIAM.

text:
    HENDERSON v. STATE.
    No. 15302.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    A. G. Mueller and Bill Watkins, both of Llano, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted under article 1265, Penal Code, for seriously threatening the life of another; punishment assessed at a fine of $250.

There is no statement of facts and no bills of exceptions in this record. The appellant relies for reversal of this case upon alleged fundamental error, in that the information upon which this conviction is based does not charge the offense attempted to be defined by the state under the statute.

Article 1265, P. C., provides: “Whoever shall seriously threaten to take the life of any human being or to inflict upon any human being any serious bodily injury shall be fined not less than one hundred nor more than two thousand dollars, and in addition thereto may be imprisoned in jail not exceeding one year.”

Omitting the formal parts, the complaint and information in this case charged that W. S. Henderson “did then and there seriously threaten to take the life of Jinx Gage, Sr., and did then and there seriously threaten to take the life of Jim Gage, Sr., by obtaining a shot gun and searching for the said Jim Gage, Sr., and then and there expressing by words and acts a desire and intention to find the said Jim Gage, Sr., and to kill him with said shot gun.”

The appellant contends that the information is fatally defective in that it did not allege that Jim Gage, Sr., whose life it was alleged in the information that the appellant seriously threatened, was a human being; it being contended that, the statute having used the words “human being,” it became necessary to charge in the information that Jim Gage, Sr., was a human being.

We have not been cited to any cases that hold in effect that it is necessary that the indictment or information allege that the person threatened was a human being in charging the offense under said article 1265. We do not believe that the words “human being” omitted were essential to the certainty necessary in the description of the offense charged.

In the case of Bohannon v. State, 14 Tex. App. 271. 299, wherein an indictment for murder was attacked because it did not allege that the deceased was a reasonable creature or human being, the court there said: “It has never been held necessary that the indictment should allege that the deceased was a ‘human being,’ or a ‘reasonable creature,’ although in the definition of murder one or the other of these descriptions of the deceased are used. To -allege the name of the person killed, or that his name is unknown, is a sufficient allegation that the deceased was the subject of murder, as it will be presumed that the indictment is understood according to the import of the common language used therein.” See, also, Perryman v. State, 36 Tex. 321.

Although we believe the better practice would have been to allege that the person threatened was a human being, we see no reason why the rule announced in the cases cited in the case of murder should, not apply in charging an offense under article 1265, Penal .Code.

' The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, J.

text:
    ROLLINS v. STATE.
    No. 15567.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Moore & McConnell, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment having been assessed at death.

. Appellant was charged with having killed David R. Reed by shooting him with a gun. On the 19th day of October, 1931, deceased, his wife and daughter, had been picking cotton for a neighbor, Mr. Myatt, who lived about 2½ miles from deceased’s home. About sundown, when the Reeds were ready to return home, he could not get his car started, and Mr. Myatt took deceased and his family home in his (Myatt’s) ear. As he drove up to the residence of deceased, appellant was seen to be running away from the house, having a shotgun in his hands. Deceased jumped out of the car and ran after him. The wife and daughter of deceased followed him. As deceased approached a granary, he was shot by appellant, who was behind it. Deceased’s •daughter, ran to him, and appellant pointed the gun at her, whereupon she fell to the ground near her father’s head. Appellant went away, taking the gun with him. Deceased was in his shirt sleeves and unarmed at the time, and had nothing whatever in his hands. His wife says that just before appellant fired deceased threw up his hands. Appellant was apprehended the second day after the killing. Deceased died on the night of the day he was shot. Deceased had a twelve-gauge double-barrel shotgun and the shells for it in his house when he left to go pick cotton for Myatt. The shotgun and shells were discovered to- be gone when a search was made after the killing. The trousers which appellant was wearing when arrested were produced in court, and, as we understand it, were identified as having belonged to deceased. Two twelve-gauge shotgun shells were also found in appellant’s possession at the time of his arrest. A shotgun was produced at the trial which was identified as the gun belonging to deceased. It does not appear from the record where it was found. Appellant was identified positively by Myatt, Mrs. Reed, and her daughter as the negro who killed deceased. Berkley, who lived about a half a mile from Reed’s place testified that he heard the shot which killed Reed, and that about thirty minutes before that time he saw appellant going through a pasture directly towards Reed’s house.

The only defense interposed was the claim that appellant was insane. The issue on this point was closely drawn and vigorously combated by the staté. The issue was submitted to the -jury in a way which brought no objection from appellant’s counsel. The finding was adverse to appellant, and is cogently supported in the evidence.

No objection whatever was urged to the charge of the court. No bills of exception are found in the record complaining of any procedure during the trial. In quite a lengthy amended motion for new trial, sworn to only hy appellant, he attacks the fairness of one of the jurors; he also avers that additional evidence was received from another juror; also that the jury engaged in other misconduct. He also complains in the motion that some argument of the state’s attorney was improper, and of the admission of certain evidence. No bills of exception are brought forward presenting complaint of the argument, nor of the reception of any evidence. The truth of the happenings of such things must be authenticated by the trial judge in a proper bill. Neither are the other averments in the motion supported by proof of any character. The amendéd motion for new trial, although sworn to by appellant, does not establish the truth of the thing? therein averred. The motion is only a pleading, and has often been so held. Johnson v. State, 111 Tex. Gr. R. 395, 13 S.W.(2d) 114, and authorities therein collated.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    POTTER v. STATE.
    No. 15296.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Wm. E. Davenport, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of automobile; punishment, four years in the penitentiary.

Appellant rented an automobile at about 5 o’clock in the afternoon, signing an agreement that the use of the automobile was to be within the city limits of San Angelo. Appellant gave a name not his own, which he signed both to the rental contract and to a check then given. About 9 o’clock that night' officers of Big Spring, Tex., some ninety-five miles from San Angelo, were on the lookout for the car upon information from San Angelo. They saw appellant in the car about ten miles from Big Spring, and from there to Big Spring were chasing him and trying to get him to stop,- he going at a rate of speed variously estimated from forty-five to sixty-five miles an hour. In the city of Big Spring, appellant collided with two cars, ran through several red lights, and finally ran the car into a cement loading platform where it was completely wrecked. Appellant got out of the wreck, ran, and was found concealed under some steps.

Appellant took the witness stand, and testified that he rented the ear about 4:30 or 5 o’clock in the afternoon intending to go out and see a lady, but found out that she was not in town. He said he had business to attend to in Big Spring, so he concluded to go there, expecting to return that night. He had been released from the penitentiary of Texas three days before the day he rented this car. 1-Ie said he took the officers who chased him from Foresands ten miles to Big Spring to be hijackers; that he did not notice their uniform. At some prior time appellant said that he had been in a car wreck that injured his head and caused him to be unconscious for five hours, from the effect of which he had suffered very much since. Asked why he was hurrying through Big Spring so rapidly, if he was only going to see a party there, appellant said that he was in a daze, and could not tell much about it. He said he was going to Big Spring to see George Page. Mr. Page was a witness, and testified that he had never met appellant until the day before this trial; that appellant never came to his place in Big Spring that he knew of.

We find in the record three bills of exception. The first complains of the action of the trial court in sustaining the state’s objection to a question propounded to appellant while on the witness stand. After stating that he stopped at a filling station between Sterling City and Big Spring on the occasion of his trip mentioned, he was asked the question, “To whom did you talk there?” To this the state objected, and the objection was sustained. There is nothing in the bill of exception showing what the answer of the witness would have been, nor what he was expected to state. It is said in the bill that “said testimony is admissible for the purpose of proving the intention of the defendant to come back to San Angelo with the ear,” but in the absence of a statement in the bill of exception as to what answer would have been made it is impossible for us to appraise same or to arrive at the conclusion that the testimony would have been material.

The second bill of exception complains of the refusal of the court to permit a deputy sheriff to testify to a conversation had by him with a filling station man in Sterling county, in which conversation said filling station operator told the deputy sheriff what appellant had said to him when he passed through his filling station. It is clear-that this is hearsay testimony. The process of the court was available to appellant to procure any witnesses deemed necessary by him to present direct testimony upon any point deemed material for his defense. His failure to produce witnesses would not entitle him to put before the jury hearsay testimony as to what they said.

The third bill of exception complains of the refusal of the court to permit appellant to show that he had used diligence to obtain the testimony of Paul and Willard Robinson of Sterling county, Tex., by the introduction of a subpoena issued out of the clerk’s office of Tom Green county on .the 27th day of November, 1931, and returned on the 1st day of December, 1931, with the notation that Paul Robinson was not in Sterling county, and that Willard Robinson worked for a man named Cushing in Glasscock county. If appellant desired the presence of Paul and Willard Robinson, it was his duty to have procured timely service upon them of process, and, if they failed to appear, to make an application for a continuance until such time as the witnesses could have been obtained. We find no application for continuance in this record. The trial court properly sustained the objection to the introduction of a subpoena offered for the purpose stated in the bill of exception. Neither the trial court nor this court is allowed to set aside well-known and established rules of evidence and practice and overturn legal methods of procedure, however sympathetic either court may be with appellant’s efforts to procure and produce facts deemed by him to be material. There is no further complaint in the record. No exception was taken to the court’s charge, nor were any special charges asked.

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


text:
    POWERS v. STATE.
    No. 15295.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.

      R. C. Roland, of Ranger, and W. J. Arring-ton, of Breekenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor; punishment, two years in the penitentiary.

We think the state circumstantially, showed the guilt of the accused to an extent which justified the jury in finding him guilty of possessing a quantity of intoxicating liquor. One witness testified for the state that on the night before the occasion of a raid by officers he went to appellant’s premises, and was taken by appellant out to the point where the officers located a quantity of whisky on the day of their raid. This witness testified that he obtained from appellant some intoxicating liquor, and was told by appellant at the time that he had $2,000 in cold checks which had been given him for the sale of intoxicating liquor.

There are ten bills of exception in the record. Bill No. 1 is qualified by attaching thereto, in question and answer form, the actual testimony given by the witness, as certified by the court. The objectionable matter set out in the bill as prepared by appellant does not appear in the testimony of the witness as given in question and answer form. As qualified, the bill presents no error.

Bills of exception Nos. 2, 4, and 5 bear the notation of the trial court as follows: “No objection was made to this testimony, and no request made that the court should instruct the jury to disregard the same.” As qualified, said bills present no error. Appellant, having accepted the bills with the qualifications, is bound thereby.

Bill of exception No. 3 complains of the refusal of a special charge. The substance of said special charge appears to have been given in the main charge. No error is shown.

Bill of exception No. 6 presents objection to witness Thomason being allowed to testify as to his purpose in going to the home of appellant the night before the officers raided said place. The bill is'qualified by the trial court, who says that the witness was permitted to testify to his purpose in going to said place without objection.

The record shows that Thomason testified that he went to appellant’s place on the 'night in question for the purpose of procuring some mercury. Bill of exception No. 7 brings forward objection to a question asked by the prosecuting attorney of said witness as to what appellant said to him out at his place on the night in'question with reference to getting whisky. We fail to see any point to the objection made to this testimony. If appellant said anything to the witness about the matter inquired of, it would appear admissible. This bill is also qualified, and clearly presents no error.

The eighth bill of exception sets out that Thomason was permitted, over objection, to say that he told Mr. Bradford “the following day where he got his liquor.” The bill recites that “Defendant objected and was overruled by the court.” There is nothing in the bill to show that the witness said anything to Bradford reflecting upon appellant, or connecting in any way the statement made to Bradford with anything material to a decision of the case before us. The same observation holds good in regard to bill of exception No. 9, the averments in which are so meager as to make it impossible for us to tell what objection was being made, or how appellant could have been hurt.

The last hill of exception complains of the prosecuting attorney saying to the jury that it made no difference as far as the law was concerned, and no difference as far as the duty of the jury was concerned, this man has been knocking at the door of the penitentiary a long time. Appellant says this was prejudicial to his rights, and was calculated to inflame the minds of the jury, even though the court instructed the jury not to consider it. Nothing in the bill shows the connection in which the statements were made, nor that they were not pertinently supported by testimony, nor how they could be prejudicial to the accused. For aught the bill shows, the record might abound in facts justifying the argument.

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


author: CHRISTIAN, J.

text:
    MILLER v. STATE.
    No. 15035.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    See, also, 53 S.W.(2d) 792.
    Storey & Storey, of Vernon, A. B. Martin, of Plain view, Jesse Owens, of Vernon, and Vance Swaim, of Crowell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.'
   CHRISTIAN, J.

The offense ,is misapplication of public funds; the punishment,-confinement in the penitentiary for four years.

Appellant, who was tax collector of Foard 1 county, was indicted under article 95, P. C., in five counts. Two of the counts were submitted to the jury in the court’s charge, namely, a count charging misapplication of public funds, and another charging the secreting of public funds belonging to Foard county with intent to misapply such funds. The facts, so far as they illustrate the law 'points discussed, are, briefly, as follows: The state’s case in the main was made by an auditor, whose testimony was to the effect that there was a difference of approximately $16,000 (the amount charged in the indictment to have been misapplied), and the amount transmitted and paid over to Foard county, the alleged owner of the money. In other words, taking the total of tax receipts shown in appellant’s report to the county, of February 5, 1931, and subtracting therefrom the amount of his check to the county treasurer of Foard county, there existed a difference of approximately $16,000, which is the amount named in the indictment. Appellant’s testimony was to the effect that during the month of January, 1931, the county was in need of funds and requested him to make a report; that he wás very busy and hastily prepared his report; that the report upon which the state relied in the most part for a conviction included all checks given to him for taxes during the month of January, 1931, and part of December, 1930; ■ that about 95 per cent, of the taxes were paid by checks, and only about 5 per cent, in cash; . that the bank would take these checks only for collection, and would credit them to his account when the checks were collected; that many of these checks, perhaps more than $20,000, remained uncollected at the time the report of February 5th was made; 'that of this amount it was his opinion about $10,-000 subsequently turned out to be checks which he was unable to collect; that he believed that under the law he had several months to make a final accounting, as that had been the custom long followed by tax collectors; that he thought that at the time he made his final accounting the uncollected checks would be charged back and he would be credited with them on his final account; that at that time he intended to fully settle and pay any balance owed by him. The testimony on the part of the state showed' that a taxpayer named Wishon appeared and paid his taxes, partly with a check, and in part by canceling a note for $2,255 appellant owed him. This sum was never paid by Mr. Wishon, but appellant issued him a tax receipt showing his taxes to have been paid in full. This amount was included in the aggregate of the amount charged in the indictment to have been misapplied by appellant, and was brought forward in the report of the auditor. Appellant’s testimony was to the effect that he did not misapply any money, and that if he had been credited with the uncollected checks and other items to which he was entitled, the aggregate of such items would have amounted to more than the amount with which he was charged with misapplying. Appellant, in part, testified as follows: “If I were accorded those credits and debits, as I contend I am entitled to, it would make several thousand dollars difference in the balance. That difference, coupled with the amount of money that I have received, as I testified, on these late checks, would certainly amount to more than $16,421.24. If it should develop- that there was any difference there in favor of the county, will state that I did not, with a fraudulent intent, take, misappropriate or convert any of the funds belonging to Foard County.”

The indictment charged a misapplication of $16,461.34 in money which was alleged to be the property of Foard county. The testimony was to the effect that much of the amount going to make up the amount charged in the indictment was represented by checks, some of which were never collected. As shown, appellant’s testimony was to the effect that if he had collected these various cheeks he would have had enough money on hand to have taken care of the items included in the auditor’s report. Appellant said: “I had not actually received the money on those alleged checks at the time I made and filed this report on February -5th. That money had not come into my hands, at that time, as tax collector of Foard County.”

Appellant objected to the charge of the court for its failure to instruct the jury that checks were not included in the term “money,” and that he could not be convicted for the misapplication of anything but money. The court should have responded to the exception. An allegation of embezzlement or misapplication of money is not supported by proof of the embezzlement or misapplication of a check. Scisson v. State (Tex. Cr. App.) 51 S.W.(2d) 703.

As heretofore stated, it appears from the state’s testimony that the witness Wishon paid $2,255 of his taxes by the cancellation of a note appellant owed him. This testimony was introduced by the state to show a misapplication of the funds of Foard county, and was included in the total of- the amount charged to have been misapplied, and was included in the auditor’s report. Appellant objected to the charge of the court for its failure to instruct the jury affirmatively that no conviction could be had upon this transaction, since no money having been paid thereon, there could have been no misapplication. A requested charge on the subject was submitted to the court, and refused. The charge should have been given. A tax collector has no authority to receive anything but cash in payment of taxes. Scis-son v. State, supra, and authorities cited. The judicial precedents are to the effect that private arrangements for payment (differing from the statutory method) made between the collector and taxpayers, and the performance thereof, are at the risk of the parties thereto, and not of the state or county. Scisson v. State, supra.

There was testimony, of extraneous offenses, which the court in the charge authorized the jury to consider, if at all, for the purpose of showing intent. We quote one of these charges: “You are further charged in this connection that if there is any testimony before you in this case concerning the manner in which funds belonging to the State of Texas and to the school fund or to the .school districts of Foard County were handled by the defendant, or the funds of any other institution, except Foard County, Texas, or any shortage or failure to remit any such funds, said testimony may be considered by you only for the purpose of throwing light, if it does, on the intent of the defendant, if any, in misapplying or converting to his own use, if he did, or secreting money belonging to Foard County, if he did, as alleged in the indictment in this case, if he did so convert, misapply or secrete the sam.e, of which you are to be the sole judge.”

In an exception to the charge it was pointed out that the jury should be instructed that they could not consider the alleged extraneous offenses unless appellant’s guilt of such offenses was shown by legal evidence beyond a reasonable doubt. This exception was well taken. We quote the language of Judge Lattimore in Lankford v. State, 93 Tex. Cr. R. 442, 248 S. W. 389, as follows: “It is the settled law in this state that when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof. This has been held to be the correct doctrine as applicable to collateral forgeries, thefts, and other crimes, and we can see no sort of reason for attempting- to draw a distinction between the application of said rule in other felony cases and the one now under consideration. If it be true that the jury must be instructed as to a collateral theft or forgery or other collateral crime under our established decisions, that they must believe that guilt of the accused- in such collateral crime has been shown beyond a reasonable doubt before same ean.be considered against him in determining his guilt in the case on trial, then the same rule is applicable here, and the jury should have been told that they could not consider- as a guilty circumstance appellant’s selling intoxicating liquor in violation of law on the dates named, unless such guilt was shown by legal evidence beyond a reasonable doubt. For authorities supporting our position see Fry v. State, 78 Tex. Cr. R. 435, 182 S. W. 331; Fry v. State, 86 Tex. Cr. R. 73, 215 S. W. 560; Martin v. State, 36 Tex. Cr. R. 632, 36 S. W. 587, 38 S. W. 194; Ham v. State, 4 Tex. App. 645.”

Upon another trial appellant’s affirmative defense should be submitted „ to the jury. The fact that the affirmative defense was not adequately submitted was pointed out in exceptions to the court’s charge.

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.