author: RYAN, Judge. CURETON, Chief Justice.

text:
    DIVERSIFIED FRUIT FARMS, Inc., v. JOHNSON.
    No. 1387—5990.
    Commission of Appeals of Texas, Section B.
    March 15, 1933.

      McDonald & Wayman and H. E. Kleineeke, Jr., all of Galveston, for plaintiff in error.
    C. M. Kay and B. C. Johnson, both of Houston, and Roy Johnson, of Galveston, for defendant in error.
   RYAN, Judge.

On July 31, 1928, the Diversified Fruit Farms, Incorporated, executed a series of six notes, each for $1,000, payable to the order of F. A. Johnson and M. S. Perez, with interest at 7 per cent, per annum, interest payable semiannually on December 31 and July 1, each year, from date until paid, together with an additional amount of 10 per cent, on principal and interest as an attorney’s fee if placed in the hands of an attorney for collection or if collected through bankruptcy or probate proceedings.

The first of said notes was payable on or before December 31, 1929, and the others in numerical order, on or before the 31st day of December thereafter until all are paid.

Each of said notes contains the following acceleration clause, viz.: “This note is one of a series of notes and it is understood and agreed that the failure to pay this note, either principal or interest, or any of said series of-notes, promptly when due, shall at the option of the holder, mature • the full amount hereof, or the entire series, as the case may be.”

The interest installments on said notes, due July 1, 1929, were not paid, and Johnson individually and in his own name filed this suit against the maker of the notes and against M. S. Perez, his copayee, for the recovery of principal, interest, and attorney’s fee, covering all said notes, with award to him of his portion thereof, or in the alternative for the amount of his interest in all said notes, principal, interest, and attorney’s fee, costs, and general relief.

It was alleged in his petition that on and prior to the date of said notes, he and Perez, copayee therein, were paYtners, and on said date said partnership sold certain partnership property to said Diversified Fruit Farms, Incorporated, and received said notes sued on in consideration therefor; that plaintiff and defendant iPerez have reached an agreement as to their partnership affairs whereby plaintiff owns a 60 per cent, interest in said notes, and Perez owns a 40 per cent, interest therein.

It was further alleged that, because of default in the payment of the interest installments due July 1, 1929, he (Johnson), exercising his option under said acceleration clause, had declared all said notes due and payable, but sajd Perez had failed and refused to join him in declaring all said indebtedness due and payable.

A copy of the agreement dissolving the partnership of Johnson and Perez, dated March 15, 1929, was attached to the petition by way of exhibit.

It appe'ars from said exhibit, as recited therein, that “the partnership heretofore existing between said parties Has been this day dissolved and the affairs of the firm wound up and settled” on the basis therein set forth. Certain specifically named assets .were awarded to Johnson and certain other specifically named assets were awarded to Perez. The sixth paragraph of said agreement of dissolution disposed of the promissory notes involved in this litigation, as follows: “The firm owns six promissory notes totalling $6,-000.00, now in the possession of Jas. W. Way-man, as trustee for the parties hereto, 60%, of which notes is owned by F. A. Johnson and 40% by M. S. Perez”; and the tenth paragraph thereof is as follows: “Each party agrees not to use the other’s name in any future business transactions without written consent, except for the purpose of collecting accounts or disposing of assets as per this agreement.”

Perez filed no answer, but the Diversified Fruit Farms pleaded to the jurisdiction of the court on the proposition that the only amount due is six months’ interest amounting to $210, cognizable exclusively before a county court, excepted generally to the petition, and specially thereto, in that “it appears from the face of the petition that the only amount that could be due on said notes is six months’ interest, which is below the jurisdiction of the court.” The answer then contains a general denial, and by way of cross-action alleged that, at the time this suit was filed, plaintiff, Johnson, caused a writ of garnishment to issue and be served upon Texas City Canneries, Inc., because of which an indebtedness of $4,058.24 due by said garnishee to said defendant could not be collected, to its damage in a sum equal to the interest on said fund from that date; also, at the time such writ of garnishment was so served, the defendant owned 35 shares, capital stock, of the garnishee, which defendant was prohibited from transferring and disposing of, to its damage in the sum of $500, wherefore judgment was accordingly prayed against plaintiff, Johnson, and the sureties on his bond in garnishment.

The general demurrer was sustained by the trial court, and, plaintiff having declined to amend, the petition was dismissed. On the cross-action, the trial court found the garnishee was indebted to the defendant when the writ of garnishment was served, in the sum of $4,058.24, 6 per cent, interest on which to date of judgment amounts to $154.04, and rendered judgment against the principal and sureties on the bond in garnishment for said sum of $154.04.

Appeal was had to the Court of Civil Appeals on three assignments of error, substantially:- (1) The trial court erred in sustaining the general demurrer, thereby holding that Johnson did not have the right to mature the notes in accordance with their terms and his contract with Perez; (2) the trial court erred in'sustaining the general demurrer, thereby holding that Johnson could not mature his interest in said notes because of the failure of Perez to join him in declaring them due; and (3) the trial court erred in holding that the only amount due upon said notes was the sum of $210, being six months’ interest — an amount not within its jurisdiction — and in dismissing the case for that reason.

The majority of the Court of Civil Appeals in reversing the judgment below and remanding the cause held in substance that Johnson, alone, as a member of the partnership, had the right to mature the entire series- on the ground that the notes were partnership assets at that time (although it- had been dissolved).

Associate Justice Graves of that court dissented, being of the opinion that the- notes in question had been disposed of in the dissolution agreement and were no longer.partnership assets, but belonged to both Johnson and Perez, in their individual capacities, each owning a certain specific, definite interest therein, and neither had the right of control over the interest of the other, under which circumstances it required the consent of both to effectuate the acceleration clause, and, as Perez had refused, Johnson alone was without the right to do so.

Opinion.

First. So far as the notes in question are concerned, they were specifically disposed of in the agreement dissolving the firm, and disposing of the firm’s assets; thereafter they were not partnership property, but belonged to Johnson individually in the proportion of 60 per cent, and to Perez individually in the proportion of 40 per cent., and were placed in the possession of Jas. W. Wayman, as trustee for said parties. After the dissolution, they owned the notes — each his respective interest therein — not as partners, but as tenants in common. Stair v. Richardson, 108 Ind. 429, 9 N. E. 300.

As said by the Supreme Court of Missouri, in Green v. Whaley, 271 Mo. 636, 197 S. W. 355, 360: “It is entirely within the power of partners to convert partnership property into separate property, either the individual or the joint property of the partners, and when they do so as between themselves it is not subject to any of the incidents of the partnership business. Grant v. Bannister, 160 Cal. 774, loc. cit. 781, 782, 118 P. 253; In re Swift (D. C.) 118 F. 348; Brown v. O’Brien, 4 Neb. 195; In re Shafer’s Appeal, 106 Pa. 49, loc. cit. 56; Thompson v. Bowman, 73 U. S. (6 Wall.) 316, 18 L. Ed. 736; Robinson Bank v. Miller, 153 Ill. 244, 38 N. E. 1078, 27 L. R. A. 449, 46 Am. St. Rep. 883; Jenkins v. Jenkins, 81 Ark. 68, 98 S. W. 685; Allen & Drinwater v. Thrall, 10 Vt. 234; Richards v. Manson et al., 101 Mass. 482, loc. cit. 485; Beckwith v. Manton, 12 R. I. 442; Lindsay v. Race, 103 Mich. loc. cit. 33, 34, 61 N. W. 271; Gilmore on Partnerships, 128, 129.”

When a partnership is dissolved, the general agency which grew out of it is terminated, and the powers implied from the relationship are also terminated, except those which are necessary to the winding up of the business; the former partners retaining only such powers to act for each other as all joint debtors or joint creditors possess and such power as has been expressly conferred. Where there is a formal agreement of dissolution, it measures the rights and obligations of the parties as between or among themselves. 47 C. J. 1124; 20 R. C. L. 968; 30 Cyc. 681.

Section X of the contract refers to accounts and not to the notes which were completely disposed of in section VI, whereby said notes were placed in the possession of Wayman as trustee for the parties, and the ownership of the notes divided in the proportion of 60 per cent, to Johnson and 40 peí-cent. to Perez, respectively. Section X gave each party the right to use thé other’s name in collecting the accounts mentioned in section II and specifically divided in sections III and IV. In other words, Perez had the right to use Johnson’s name in collecting the accounts specified in section III, and Johnson had the right to use Perez’ name in Collecting the remaining accounts specified in section II, and each had the right to use the other’s name in collecting accounts as divided in section VII and selling assets given to each by sections II, III, and IV.

Section X gave Johnson no right to sell, transfer, or indorse over the interest of Peréz in the notes, because they had already been disposed of in section VI; for the same reason, it cannot be contended that by section X’ Perez gave Johnson the right to mature the notes. The fact that Johnson had the right to use Perez’ name in collecting the accounts standing in the partnership name which were set over to him individually by the agreement had no reference to the notes divided between them by section VI and disposed of therein. The notes were placed in the hands of a trustee so that neither could have possession or control over them. So far as Ae notes were concerned, thfere was a complete “winding up,” when the parties effected a division and placed the notes in possession of a trustee; thereafter the parties owning the notes became tenants in common.

We have therefore reached the conclusion that Johnson had not the power to control the interest of Perez in the notes in question, and override the latter’s refusal to accelerate payments due the latter. Perez controlled his interest in the notes as his own property, freed from any control by Johnson as x-epresenting the dissolved firm; no claim by firm creditors appearing.

Second. This brings us to the question whether Johnson had the right to mature his interest in the notes; this, of course, depends upon the terms of the contract of acceleration embraced therein.

It is provided that only at the option of the “holder” (after delinquency in payment, either of principal or interest) may the full amount of any given note or the entire series, otherwise not due, be matured.

The term “holder” means the payee or in-dorsee of a bill or note, who is in possession of it. or the bearer thereof. Rev. St. 1925, art. 5948, § 191.

The singular and plural number each includes the other, unless otherwise expressly provided (Rev. St. 1925, art. 10, subd. 4), so Johnson and Perez, after dissolution of the partnership, became the individual “holders” of the note, and were both required to join in exercise of the option to declare all the notes due and matured. The contract of acceleration requires, in this character of case, exercise of the option by the “holders,” and is not enforceable by any one or more partial or fractional holders against the wish or desire of the other partial or fractional holders.

The only right to mature the entire series is by virtue of the acceleration clause in the notes, which must be construed as any other provision in a contract. Notes and other instruments sometimes provide for maturity of the whole indebtedness at the option of the holders, or either of them, upon default by the makei-, but we have found no case where the acceleration clause allowed one of two or more payees to mature the whole indebtedness against the refusal of, and contrary to the wishes of, the other payee or payees.

Chief Justice Gaines, in Bomar v. West, 87 Tex. 299, 28 S. W. 519, 520, construed an analogous clause contained in a deed of trust securing a series of several notes, and concluded that there is no such right in one of several payees of a note providing for acceleration at the option of the “holder.”

In Aat case, one Skinner made five promissory notes to one Bomar, payable one, two, three, four, and five years after date, re-speetively, to secure payment of which Skinner executed a deed of trust, which contained this clause: “In default of the payment of said notes, or of either of them, that a foreclosure of said trust deed should 'be had at the instance of said D. T. Bomar, or the legal 'holder of said notes.” The first of the notes to mature was transferred by Bomar to the West Publishing Company before maturity, and subsequently the others were transferred to one Callahan. Skinner having failed to pay at its maturity the note which was transferred to the West Publishing Company, the trustee, at the request of that company, advertised and sold the land at public outcry.

In holding the sale invalid the court said: “We are of opinion that the sale by the trustee did not pass title to the land. The limitation upon the power of the trustee to. sell upon default in the payment of either of the notes at maturity is that he shall act upon the request of ‘the holder of the notes.’ The literal meaning of this language is that any person who was the lawful holder of all the notes at the time default was made in the payment of either of them should have the right to demand of the trustee that he make the sale. It may be that it should Be construed to mean that the joint demand of all the holders of the notes would be sufficient to authorize the trustee to execute the trust upon default in the payment of either. But we are of opinion that it does not mean that, in case of a transfer of the several notes to different holders, any one of them has the right to demand a sale without the consent of the others. Such a construction is not beneficial either to the mortgagor or to the original holder of the notes.”

To the same effect is the holding in Austin v. Carter (Tex. Civ. App.) 296 S. W. 649.

So here only the “holders” of the note could declare the entire indebtedness matured; the very terms of the contract evidenced by the acceleration clause required a unanimous exercise of the option, and anything short of that was ineffective.

Third. No statement of facts appears in the record, and no assignment of error was directed by defendant in error to the judgment on plaintiff in error’s cross-action in the trial court, and we therefore must assume that the same was rendered on proper evidence.

We recommend that the judgment of the Court of Civil Appeals be reversed, and that of the district court be affirmed.

CURETON, Chief Justice.

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


source: Caselaw Access Project

author:
CRITZ, Judge.
      OURETON, Chief Justice.

license: Public Domain

text:
    JOHN E. QUARLES CO. v. LEE et al.
    No. 1640—6070.
    Commission of Appeals of Texas, Section A.
    March 15, 1933.
    Charles Kassel and Melvin F. Adler, both of Fort Worth, for plaintiff in error.
    W. J. Rutledge, Jr., of Dallas, for defendants in error.
   CRITZ, Judge.

The John E. Quarles Company filed this suit in the district court of Tarrant county, Tex., on May 16, 1922, against Bob and Hub Lee, who were alleged to reside in Dallas county, Tex., to recover $920.85, alleged to be due such company for certain building material furnished by it to Bob Lee, and alleged to have been used in the repair and improvement of a tract of 123 acres of land in Dallas county, owned by Hub Dee. It was alleged that there was an agreement between the two Lees under which Bob Lee should have an interest in the land, although the legal title to the land remained in Hub Lee, and that by reason of the matters set forth it had a materialman’s lien under the Constitution and statutes of this state. The Quarles Company then prayed for judgment for its debt and establishment and foreclosure of its alleged lien.

On August 7, 19-22, which was in due time, the two Lees filed their pleas of privilege in due and legal form claiming the right to be sued in Dallas county, Tex., the county of their residences, and the county where the land in controversy is located. So far as shown by the record, the Quarles Company never at any time filed any controverting affidavits to the above pleas of privilege, and no action was ever taken on such pleas; but on July 13,1925, the district court entered the following order of dismissal:

“The following styled and numbered cause having been heretofore peremptorily set by the Court, and having been regularly reached and called for trial, neither the respective plaintiffs or defendants appeared.
“It is therefore ordered, adjudged and decreed that same be and is hereby dismissed for want of prosecution at plaintiffs’ cost:
“No. 60272, Jno. E. Quarles Co. vs. Bob Lee, et al.”

On March 1, 1926, at a subsequent term of court, the Quarles Company, by its attorney of record, filed in the district court the following motion:

“Now comes plaintiff and moves the Court to -set' aside and hold for naught the order heretofore entered in this cause dismissing the same for want of prosecution, and as ground for such motion says; that the same was entered by the Court through clerical error, the entry having been intended that at the time said cause was dismissed its counsel called the attention of the Court to the fact that a plea of privilege was 'pending in said cause and furthermore, that effort at settlement was being made and would probably be consummated, and requested that the suit be not dismissed, which request the Court verbally granted, and that the entry of the order of the dismissal for want of prosecution was manifestly intended for some other case.
“Wherefore plaintiff prays that said cause be reinstated upon the docket of this court.”

On March 15, 1926, the trial court, in response to the above motion, entered the following order: “On this day came on to be heard the motion of the plaintiff to re-instate this cause, and it appealing that the dismissal herein entered for want of prosecution was entered through inadvertence and that said motion should be granted, it is accordingly ordered that this cause be, and the same is hereby reinstated upon the docket of this Court.”

So far as shown by the record, nothing further occurred in this case until June 12, 1929, when the following order was entered by the district court: “Now comes plaintiff, John E. Quarles Co., by its attorney, and the said Bob Lee and Hub Lee come not; and hereupon the said John E. Quarles Co. in open court suggests to the court and gives the court to understand and be informed that during pendency of this suit the said Bob Lee and Hub Lee have both died. It is therefore Ordered that writs of scire facias do issue to Louisa Lee, widow of Bob Lee; Bettie Lee, widow of Hub Lee; Emanual Blue, Viola Blue, Luella Henderson and her husband, Walter Henderson, who is herein joined pro forma — the said parties being the heirs of the' said Bob Lee and Hub Lee, requiring them to appear and defend the said suit.”

On June 12, 1929, the same day the above order was entered, writs of scire facias were duly issued on the above order, and these several writs were duly served on the persons named as heirs of Bob and Hub Lee in the above order. Service seems to -have been had on all such persons during the month of June. 1929. None of the persons served by such writs ever answered or appeared in any manner in the district court. On January 4, 1930, a judgment by default was rendered for the Quarles Company against the persons named in the above order of June 12, 1929, as heirs of Bob and Hub Dee, foreclosing a lien on the land described in the original petition of the Quarles Company, for $920.85, with 6 per cent, interest. No personal judgment was taken. The heirs named in the order of June 12, 1929, supra, and named in the final judgment, prosecuted a writ of error to the Court of Civil Appeals, which court reversed the judgment of the district court and' dismissed the case. 39 S.W.(2d) 947. The Quarles Company brings error.

The Court of Civil Appeals holds that the trial court committed error by entering the order of March 15, 1926, reinstating this cause on its docket, after it had entered the order of July 13, 1925, at a previous term finally dismissing the suit. In this connection the Court of Civil Appeals holds that the judgment of dismissal was a final judgment, and the court was without jurisdiction to set it aside and restore the case to its docket on a mere motion after the term of court at which it was entered had expired. We think the above ruling is error as applied to this case. It is true that a judgment of a trial court which finally and completely dismisses a.case is . a final judgment. Hermann Hospital Estate v. Nachant (Tex. Com. App.) 55 S.W.(2d) 505. It is also true that a trial court is without power to grant a new trial, as such, after the expiration of the term of court at which a final judgment has been entered. Humphrey v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963; Hermann Hospital Estate v. Nachant, supra.

Notwithstanding the above rules, we think it is the settled law of this state that a judgment of a court is what the court pronounces. The rendition of a judgment is a judicial act by which the court settles and declares upon the matter at issue. The entry of the judgment is the ministerial act by which an enduring evidence of the judicial act is afforded. A court has inherent judicial power to make its records speak the truth as to what the court has actually done. Under this rule the courts of this state have uniformly held that a court may correct a clerical error, but not a judicial error, after the term of court has expired. In support of the above rules we cite the following authorities: Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Arrington v. McDaniel, 119 Tex. 148, 25 S.W.(2d) 295; O’Neil v. Norton (Tex. Com. App.) 33 S.W.(2d) 733.

From the record before us it appears that the district court never rendered a judgment dismissing this cause, and never intended to do so. In fact, it had no jurisdiction to do so, as will later appear. It further appears that the entry of the purported judgment of dismissal was a mere clerical error. Such being the case, the court had power or jurisdiction, at a subsequent term of court, to make its records speak the truth. It follows that the district court committed no error in entering the order reinstating the cause. This last order merely made his records speak the truth. If the court had in fact rendered the judgment of dismissal at a time when he had the power to do so, and was attempting to correct a supposed judicial error in setting it aside, a different rule would apply. Hermann Hospital Estate v. Nachant, supra.

As we understand this record, Bob and Hub Lee, during their lifetime, and after they were served with citation in this cause, duly and seasonably filed their .pleas of privilege to be sued in a court of competent jurisdiction in Dallas county, Tex. The Quarles Company never filed any controverting affidavits to those pleas. Bob and Hub Lee never filed any other pleadings in the case, and never otherwise appeared, or waived their pleas of privilege. It is true they did not present their pleas of privilege to the trial court. It was not necessary for them to do so. Under siuch a record, the trial court had no jurisdiction to enter any final judgment or any judgment in this cause, except to transfer the case to Dallas county. Article 2007 and 2008, R. C. S. 1925; Broach & Son v. W. L. Ellis & Co. (Tex. Civ. App.) 278 S. W. 243; Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.(2d) 845; Brooks v. Wichita Mill & Elevator Co. (Tex. Civ. App.) 211 S. W. 288.

Our statute, article 2080, R. C. S. 1925, provides in effect that where the defendant shall die, upon the suggestion of such death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator, executor, or heix% requiring him to appear and defend the suit, and upon the return of such writ, the suit shall proceed against such administrator, executor, or heir.

At common law a scire facias is generally defined as a judicial writ, as distinguished from an original writ, founded on some matter of record. It is also the name used to designate both the writ and the whole proceeding, founded upon some public record. 56 C. J. 866, § 1. In some cases, however, a scire facias may be said to have many qualities of an original writ, and sometimes it partakes of the nature of a writ of summons. Such writs are divided into two general classes, (a) where it is a continuation of some prior proceeding; and, (b) where it is an original proceeding. When we come to examine the scire facias proceedings in this case in the light of article 2080, supra, we are convinced that they amount to nothing more than an attempt to continue a prior proceeding or suit by substituting, by mere court order and summons, the heirs of the deceased defendants as defendants, and this at a time when 'the court ordering such proceedings had no jurisdiction to do so, as will later appear.

It appears from the statements we have made that after Bob and Hub Lpe filed their pleas of privilege to be sued in Dallas county, Tex., and after the Quarles Company had failed to controvert such pleas, and while the district court had no jurisdiction in the case except to change the venue to Dallas county, Bob and Hub Lee died. Thereupon, without filing any additional pleadings, the Quarles Company appeared in open court, and, we presume orally, suggested the deaths of Bob and Hub Lee. The district court then ordered the judicial writs of scire facias to issue to the suggested heirs, and, after the service of such writs, and without any further pleadings by any of the parties, proceeded to enter a default judgment of. foreclosure against the heirs of Bob and Hub Lee. Under such a record the entire scire facias pi-oceeding was erroneous. This is evident because at the time it was begun the court only had jurisdiction to change the venue.

We recommend that the judgments of the Court of Civil Appeals and the district court be both set aside and reversed, and that judgment be hei-e entered reversing the judgment of both lower courts and remanding this cause to the district court for further proceedings in accordance with this opinion.

OURETON, Chief Justice.

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

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


author: MORROW, Presiding Judge.

text:
    WALKER v. STATE.
    No. 15898.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Fred Cary, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the .State.
   MORROW, Presiding Judge.

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

The indictment is regular and properly presented.

The evidence heard in the trial court is not brought up for review.

A motion was made to quash the indictment because it names the appellant as Berl Walker, whereas his name is Beryle E. Walker. What evidence’ if any, was heard on the motion is not disclosed. Apparently, on its face, there appears no merit in the motion.

In the absence of the statement ’of facts, the merit of the motion for a continuance cannot be ascertained. The same is true with reference to the complaint of the charge of the court and the exceptions thereto.

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


author: LATTIMORE, Judge.

text:
    Ex parte LANE.
    No. 15916.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Adams & McAlister, of Nacogdoches, for appellant.
    H. L. Edwards, Sp. Prosecutor, and T. O. Lacey, Co. Atty., both of Nacogdoches, and Lloyd W- Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

This is an appeal from an order fixing bail on a habeas corpus hearing.

The record in this case shows that it was heard in the lower court during vacation of said court, and an appeal taken from the order and judgment then entered. Article 857, C. C. P., requires in such case that the transcript be approved by the trial court, which was not done here. The state moves to dismiss this appeal. The motion must be sustained. Ex parte Turner, 107 Tex. Cr. R. 420, 296 S. W. 295; Ex parte Collins, 118 Tex. Cr. R. 146, 38 S.W.(2d) 789. We have no other option. The appeal is dismissed.


author: LATTIMORE, Judge. MORROW, Presiding Judge.

text:
    LIGHTFOOT v. STATE.
    No. 15275.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    Rehearing Denied March 15, 1933.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

This is the second appeal of this case. The former appeal will be found reported in 117 Tex. Cr. R. 515, 35 S.W.(2d) 163.

From the standpoint of the state the following were the facts: Mr. and Mrs. Green ran the Reed Filling Station in Glasscock county on August 23, 1929. About 4:30 a. m. they heard some one talking, and Mr. Green got up and went to wait on said parties. There were two men out there, one of whom was positively identified as this appellant. Mr. Green said that appellant walked up to him, stuck a six-shooter in his breast, and told him to “stick ’em up.” The other man took a flash-light from Mr. Green, walked into the house, and went into the cash register, getting therefrom something over $10. Appellant was holding the pistol on Mr. Green while his companion got the money. Green identified appellant both by his appearance and by his voice.

Appellant introduced several witnesses who testified that they were acquainted with his good reputation for truth and veracity, and also for being a peaceable, law-abiding citizen, and that same was good. Appellant took the stand and testified that he was not at the Reed Eilling Station on August 23d, and that he did not participate in the robbery of Mr. Green. He admitted that he had passed said filling station about a week before the robbery and one Oberlechner was with him.

We find in the transcript a number of bills of exception. In the first and second of said bills complaint is made of the fact that Mr. Green was permitted to testify that some little time after the robbery he saw a man in Sterling City whom he then identified by his appearance and voice as being the party who was with appellant on the occasion of the robbery, and’ that he then learned the name of said party was Oberlechner. We do not think the admission of this testimony any violation of the rule rejecting testimony of conversations and transactions between other parties out of the presence of the defendant, or subsequent to the occurrence. We have been unable to perceive any possible injury, or ground of complaint of this testimony. It was not offered against Ober-lechner, but upon the trial of this appellant. There was no question pertinent to the guilt of this appellant which could be strengthened or weakened by the admission of the testimony. We think the testimony admissible; but if there be any doubt thereof, it was of no possible harm.

Bill of exception No. 3 complains of the following occurrence: It sets out that while Mr. Green was testifying he was asked by defense counsel if Mr. Durham was district attorney at the time of prior trials of this appellant for this offense, and the witness answered that he was. He was then asked as follows: “He told you to tell the jury all that occurred there that night (referring to the night of the alleged robbery)?” It is then set out at great length that the witness did not upon the former trials identify Oberlech-ner as the man who was with appellant, and did not then claim he had afterward recognized or identified said Oberlechner. As far as we can understand this bill of exception, it seems to be appellant’s contention that the admission of said testimony would have a tendency to impeach Green. We fail to see that such facts set out would in any wise be an answer to the question propounded by appellant’s counsel. We are further of the opinion that such attempted impeachment, if any, would be upon an immaterial matter. See section 173, Branch’s Ann. P. O.

Appellant complains in two bills of exception that two of his witnesses were asked and compelled to answer, upon cross-examination, that they were upon appellant’s bond. The identical question was passed upon adversely to appellant in Mobley v. State, 89 Tex. Cr. R. 651, 232 S. W. 531, in which it was held that it was permissible to show bias of a witness by proof by him that he was on the bond of the accused.

Bill of exception No. 6 sets out that appellant asked his witness, who had testified to his reputation for truth and veracity, whether or not he considered the accused a man worthy of belief on oath. On cross-examination the state asked this witness if he would consider appellant worthy of belief in a case wherein he was charged with robbery. The bill shows that the witness did not give any answer to the question. We do not perceive anything, in the mere asking of the question, of such prejudicial character as to call for a reversal.

Another bill complains of the refusal of a special charge seeking to have the jury told that unless the witness Green was put in fear of death or serious bodily injury at the time of the alleged robbery, the jury should acquit. The indictment charged all of the elements of robbery, viz., by assault, by violence, and by putting in fear, etc. The special charge requested was manifestly improper, and its refusal not error.

There was no error in refusing a special charge seeking to have the jury told that they could not convict appellant if the money taken was taken from the possession of the wife of Mr. Green. Mr. and Mrs. Green were both present at the time, she being in the room where the money was taken while her husband was on the outside. Under these facts it was proper to allege the ownership and possession in him, and not necessary to prove the property was taken without the consent of Mrs. Green.

In his argument to the jury the state’s attorney said: “I say to you that the defendant did hold up that filling station.” The bill presenting the complaint is qualified by the statement that the state’s attorney further said: “Of course, Gentlemen, my argument is based wholly on the evidence in the case.” We find nothing in appellant’s exceptions to the court’s charge.

Believing the record to manifest the fact that appellant had a fair and impartial trial, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

S. L. Green operated the Reed Eilling Station. Very early in the morning a car came and Green heard two men talking. As he walked to the gas stand to unlock it, Bight-foot stuck a six-shooter in Green’s breast and told him to “stick ’em up.” Green obeyed the command, and at that moment noticed that there was another man standing behind the gas tank. The man took the flash-light from Green’s possession, entered the house, and got the money from the cash register. Green could not see the man who went in the house clearly enough to recognize him from his appearance. He did see Lightfoot and recognized him from his appearance as well as from his voice. After taking the money from the cash register, the man asked Green where the other money was to be found and was told that there was none. Lightfoot then got in the car, stuck his gun in the side of Green, and the two drove off together. Green said that he permitted the money to be taken because he was powerless; that a gun was pointed at him and his hands were up; that he was afraid that he would be shot. Lightfoot was not in the' shadow as the moon was shining brightly.

Bill No. 3, as prepared by appellant’s counsel, attempts to challenge the ruling of the court in its limitation of the cross-examination of the prosecuting witness Green; it being his contention, as set out in the bill, that he would have been able to show during the cross-examination that Green, in his testimony, made answers on the former trial which were conflicting with those upon the present trial touching the recognition of Joe Oberleehner. In qualifying the bill, the court states in effect that on the former trial the matter of the identity of Oberleehner was not made a subject of inquiry from the witness Green.

The contention brought forward in bills of exception Nos. 4 and 5 is that there was error in the reception of evidence that a, character witness introduced by the accused who gave testimony favorable to him might, on cross-examination, testify that he had signed the appearance bond for the accused. The same question has been before the court and decided adversely to the appellant’s contention in the case of Sims v. State (Tex. Cr. App.) 45 S. W. 705. See, also, Mobley v. State, 89 Tex. Cr. R. 647, 232 S. W. 531.

In bill No. 6 it appears that the character witness for the appellant testified that he had known the accused for many years; that his reputation was good; that he was a man worthy of belief upon oath. The district attorney propounded to the witness this question: “In a case where he is charged with robbery, would you say in a case like that he was a person worthy of belief?”

There was no answer made to the question. We think the bill fails to show any such misconduct of the district attorney as would warrant a reversal of the judgment. There was no request made by counsel to disregard the question.

The evidence seems conclusive that a robbery was committed. A pistol was exhibited in a threatening manner and Green said he was afraid that he would be killed. We perceive no error in refusing to instruct the jury that unless Green was put in fear of death or serious bodily injury, there should be an acquittal. This refers to bill of exception No. 7. -

It is not thought that the facts developed call for an instruction to the jury to acquit the appellant if the money was taken from the possession of Mrs. S. L. Green. Mrs. Green was the wife of S. L. Green. Both the husband and wife were present at the filling station at the time of the robbery. Mrs. Green testified that a man pointed a pistol at her, which caused her to become excited to some extent. She usually counted the money but did not know whether she had done so that day or not. The indictment charged that the robbery was of S. L. Green, and the evidence supports that averment. The fact that Mrs. Green had an interest in the money and was present at the time is not regarded as supporting the claim of the appellant that the instruction mentioned was demanded by the law. The opinion of this court in the case of Smith v. State, 53 Tex. Cr. R. 643, 111 S. W. 939, and those cited therein, are deemed in point in support of the action of the court in refusing to give the requested instruction mentioned. See Greenwood v. State, 84 Tex. Cr. R. 549, 208 S. W. 662; Manley v. State, 69 Tex. Cr. R. 169, see page 175, 153 S. W. 1138.

Bills of exception Nos. 1 and 2 relate to the same subjectmatter, namely, the testimony of the witness Green identifying the person who acted with the appellant in the commission of the robbery. The witness Green testified that some six or eight days prior to the night of the robbery the appellant and another man had stopped at the filling station operated by the witness and had gotten some gasoline. Green said that since that time he had seen the man who was with Lightfoot on the occasion mentioned. He was described by the witness, who státed that he heard the man talk and recognized his voice. The witness also testified that he subsequently learned that the name of the man was Oberleehner. Objection to the testimony of Green to the effect that he recognized the companion of the appellant on the occasion mentioned was opposed. The admissibility of that part of the testimony affirming- the recognition of a man by the voice is not deemed open to serious question.

The term “hearsay,” in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but rests.also in part on the veracity and competency of some other person. Hearsay evidence implies the possession of information rather than the possession of knowledge. Hearsay is synonymous with report. There are recognized exceptions to the rule excluding hearsay evidence. These are enumerated in Greenleaf on Evidence, and other writers on the subject. See 4 Words and Phrases, First Series, p. 3238; 3 Words and Phrases, Third Series, p. 1055; 18 Tex. Jur. p. 113, § 56. The principle stated was illustrated and applied by this court in the opinion of Presiding Judge Davidson in the case of Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1094. Many other cases might be cited.

The word “learned,” as used in the testimony, is synonymous with the word “informed”; that is, having received information. See 5 Words and Phrases, First Series, p. 4042 ; 25 Eney. of Law & Proc. p. 170, and cases cited in the notes; also, Webster’s New International Dictionary, p. 1228, and Wharton’s Or. Ev. (10th Ed.) vol. 1, p. 446, § 220. When not coming within some of the well-defined exceptions to the rule authorizing hearsay testimony, the decisions of this court condemning its use are numerous and definite.

From 18 Tex. Jur. p. 118, § 58, the following is taken: “While it is sometimes difficult to determine in the circumstances presented whether the offered evidence is or is not hearsay, if the witness states that he ‘.had heard’ or ‘learned’ or ‘was told’ ok ‘had been informed’ of a certain matter, the hearsay character of such testimony is apparent upon its face and ordinarily it will be held inadmissible.” Many cited precedents illustrate the soundness of the announcement.

From 16 Corpus Juris, p. 625, the following is quoted: “Evidence of the name by which a person or place is known is not within the rule excluding hearsay evidence; but neither the true nor an assumed name of a person, nor the fact that he has assumed a name, may be proved by the testimony of a witness as to what a third person has told him.”

To justify the reception of hearsay evidence, it is essential that it come within one of the exceptions permitting its use. These, as classified in Greenleaf’s work on Evidence, apparently are regarded by all writers on the subject as fixing a limitation upon the use of hearsay evidence. See Greenleaf on Evidence (13th Ed.) §§ 90 to 183, inclusive. See, also, 4 Words and Phrases, First Series, p. 3238; 3 Words and Phrases, Third Series, p. 1055. Diligent search of the writer has failed to discover any instance or principle which sanctions proof of the name of an individual by the mere statement of another that he has been told or informed that the name of the individual is so and so. The extent to which the books have gone is illustrated in the section of Corpus Juris quoted above.

The value to the state of the identification of the alleged companion of the appellant at the time of the robbery is obvious. Testifying in his own behalf, the appellant admitted that he had been in the community in company with another man, but denied that he had, at any time, been at the filling station of Green. He stated that he was not there at the time of the robbery; that he had not been there either previously or subsequently. On cross-examination of the appellant, the state adduced from him the statement that the name of the individual who was his companion at the time of his passage through the community was Oberleehner. The state then introduced the opinion of Green that he had subsequently seen the man who was in company with the appellant at the filling station of the witness a few days before the robbery. This opinion, as above stated, was admissible. It was supplemented, however, by proof, over the appellant’s objection, that the witness learned that the name of the man was Oherleehner. By this hearsay statement, Green supported his own opinion touching the identity of the man whom he saw at Sterling City subsequent to the robbery; but the additional statement that the man bore the same nams as that which the appellant admitted on cross-examination was his companion in traveling through the country greatly strengthened and corroborated the opinion of Green.

To the writer of this opinion, the reception in evidence of the declaration of Green that he learned that the name of the man was Oberleehner, under the circumstances detailed above, was error, and that the motion for rehearing should be granted. The majority of the members of the court, however, considering the entire record, are of the opinion that the evidence mentioned was not injurious to the appellant and that the motion for rehearing should be overruled, which is accordingly ordered.


author: CALHOUN, Judge.

text:
    TRISTAN v. STATE.
    No. 15660.
    Court of Criminal Appeals of Texas.
    March 8, 1933.

      Johnson & Peden, of -Houston, for appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, murder; the punishment, 10 years in the penitentiary.

Appellant-was found guilty of the unlawful killing of one Gussie Grace on Christmas night, 1031. The evidence showed that one Freddie Bradley, a brother of the deceased, Gussie Grace, was giving a dance at his house and a number of negroes were present. Clem Robinson, a witness for the state, testified substantially as follows: He went to said party about 8:30 o’clock, and the appellant and one Valentino Pigerino walked in behind him. He went into the living room, and told Bradley that there were two Mexicans standing in the hallway. Bradley went out, and asked them what they wanted, and neither of the Mexicans replied. Bradley then told them that they would have to go, since he was giving a Christmas party, and he did not want fellows like them around. The Mexican who was with appellant told Bradley that he wanted to hear another piece played on the Victrola before he left, and handed Bradley a quarter so that a nickle could be put in the victrola. When Bradley turned around to put a nickle in the Victrola, some one grabbed him, and Bradley turned around and struck the person who grabbed him. During the time Bradley and the other Mexican were talking, the appellant had an open knife in his hand. About this time, the deceased Gussie Grace came out of the living room, and as she ran by the appellant to get to her brother the appellant struck her in the right side with the knife. The deceased grabbed her side and opened the front door and went out of the house. The witness went out behind her and caught her in the middle of the street, carried her to the ■corner, and phoned for an ambulance.

A doctor testified that the deceased was admitted to the Jefferson Davis Hospital on December 25, 1931, and he attended her from January 2 to January 5, when she died. She died as the result of a stab wound about three inches long, which penetrated through the right abdomen, and was about two inches to the right of the midline. The doctor further testified that complications had set up in said wound and the deceased had peritonitis.

The Mexican with the appellant at the time of the difficulty testified for the appellant that they had gone to Bradley’s house about 3 o’clock in the evening, and the. witness Clem. Robinson sold them a pint of whisky. They went back out that night to buy some more liquor, and he stayed on the outside of the house the second time they went there. When the appellant did not come out after about twenty minutes, he went in the house, and some negroes were pursuing the appellant, kicking him and hitting him with their fists. They then chased him around. He further testified that he did not know whether appellant had a knife or not, and he never heard anything about a woman getting cut that night; that the appellant was cut on the jaw near the eye, and he did not know whether they cut him with a knife or not.

Lee Wilson, a witness for the appellant, testified that the brother of the deceased accidentally cut her. Appellant testified, and admitted opening his knife, but claimed that he was cut before he pulled his knife out, and that Clem Robinson took the knife away from him. He further testified that there were five or six persons, some of -them with knives in their hands, present at the time, and he could not tell who cut the woman.

The knife of the appellant was shown to have a sharp pointed blade about five inches long from where it joined the handle, and was known as a Texás Jack.

Freddy Bradley, brother of the deceased, testified positively that he did not cut his sister, the deceased, that night either accidentally or otherwise. He further testified that he did not have any knife, and that the appellant started the fight, and both the appellant and his companion jumped on him, and appellant’s companion hit him and the appellant grabbed a knife. He further testified that the witness Lee Wilson had- not been invited to his house, and was not there on the night in question.

Appellant’s motion for new trial was in part predicated upon newly discovered evidence, it being averred therein that one Christine Cooper would testify that she was present at the time the trouble arose which resulted in the death of the deceased and she saw Buster Bradley, brother of the deceased, strike her with a knife, and the appellant did not cut the deceased, but that she was cut accidentally by her brother, Buster Bradley ; that her testimony was not discovered until after the jury had returned a verdict in the case; that the appellant’s brother went to the house of a woman on the same day the verdict had been returned and was telling the owner of said house what happened in his brother’s case, and Christine Cooper, who was there at the time, stated that she knew about the trouble, and stated what she had seen, and said brother reported said information to appellant’s counsel. Attached to said motion for new trial was the affidavit of the said Christine Cooper.

Appellant’s motion for new trial was also based upon the newly discovered testimony of the witness Llewelyn Parker, who had testified in said case. Parker’s affidavit was to the effect that he saw the deceased, Gussie Grace, come out of the house running; that she ran out into the street, and his wife went to where the said Gussie Grace was, and in a minute or two his wife sent for him, and, when he got there, the deceased was leaning up against the wall of a café, and his wife was holding her, and he then heard the deceased say that Buster was fighting and stabbed her.

The state contested said motion for now trial, and the court heard evidence upon said motion and overruled same. On said hearing Christine Cooper testified substantially to what she saw as contained in her affidavit to said motion, and the witness Parker on said hearing testified to the same effect as shown in his affidavit attached to said motion. As to the statement made by the deceased testified to by the said Parker, a woman by the name of Marie Poster, who claimed to be the said Parker’s common-law wife, testified to the same statement, and further testified that she had been summoned as a witness in the case, but neither side had put her on the stand, and none of the lawyers talked to her at the time of the trial, but the appellant’s lawyer talked to her on the morning of the hearing. Appellant also testified on said hearing that he had never talked to the said Marie Poster or Llewelyn Parker, and he did not know what they would testify to until his lawyer told him on the day before the hearing. The state’s controverting evidence showed that the witness Parker had testified as a witness on the trial of the case for the state, and had been cross-examined by appellant’s counsel, and had previous to the trial made a statement in which he stated in effect that he saw the cutting and appellant cut the deceased. The state on said hearing showed by the witnesses Clem Robinson and Freddie Bradley that neither of them knew the said Christine Cooper, and both of them testified jwsitively that she was not present at the house of Freddie Bradley .at the time of the difficulty. The witness Clem Robinson also testified on said hearing that, after the deceased was cut, he, the witness, took her to the corner, and afterwards Llewelyn Parker and Marie Poster came to where they were; that he was close enough to her to put his hand on the deceased; that all the deceased was doing was holding her side and groaning, and she did not say anything and did not make any statement as to who stabbed her; that he was helping to hold her up.

Except as above stated, there was no evidence offered by appellant showing what diligence he had used to discover said evidence sooner.

In the light of all the testimony heard by the trial judge and the facts proven on the trial, we are not prepared to hold that the trial court did not correctly hold that proper diligence was not shown or that the trial court was not justified in concluding that the alleged newly discovered evidence was not probably true. In section 198, Branch’s Ann. P. C., it is stated: “In addition to setting forth the facts in which the newly discovered testimony consists, the defendant must satisfy the court that the new testimony has come to his knowledge since the trial, and that it was not owing to the want of due diligence that it was not discovered sooner.” See Milam v. State, 66 Tex. Cr. R. 249, 146 S. W. 185; Chappell v. State, 72 Tex. Cr. R. 192, 161 S. W. 964. We quote the rule from Branch’s Ann. P. C. § 209, as follows: “Where it clearly appears that the newly discovered testimony is not probably true, either by reason of the facts proven at the trial or by the controverting affidavits on the motion, or otherwise, a new trial sought on that ground is properly denied.” See Smith v. State, 73 Tex. Cr. R. 129, 145, 164 S. W. 825; Wilkerson v. State (Tex. Cr. App.) 57 S. W. 956.

Appellant insists that the evidence is insufficient to support the conviction. We are of the opinion that the testimony offered by the state, if believed, sustains the conviction.

No reversible error appearing in the fec-ord, the judgment is affirmed.

Affirmed.

PER OURIAM.

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


text:
    PEAKE v. STATE.
    No. 15902.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    V. L. Shurtleff, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The indictment is regular and regularly presented. The evidence heard on the trial is not brought up for review. The motion to postpone, the exceptions to the reception of evidence, and the complaints of the charge of the court cannot be reviewed in the absence of the statement of facts.

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


author: HAWKINS, Judge.

text:
    EDWARDS v. STATE.
    No. 15874.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Duke Taylor, of Center, for appellant.
    ' Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Appellant was convicted for manufacturing intoxicating liquor, punishment being assessed at two years in the penitentiary.

The record is before this court without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge. MORROW, Presiding Judge.

text:
    DAVIS v. STATE.
    No. 14440.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Granted March 8, 1933.
    C. C. McDonald, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.'
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

Operating under a search warrant, officers went to appellant’s residence and instituted a search for intoxicating liquor. Appellant and his wife were in the house when the search started. After learning that they had a search warrant, appellant said to the officers: “Go right ahead.” In the kitchen the officers found two empty pint bottles. One of these bottles had about a teaspoonful of whisky in it. In appellant’s barn, which was near his residence, the officers discovered a half gallon of whisky and several empty half-gallon jars, which the officers testified had contained whisky. They said they unscrewed the lids and detected the odor of whisky. The whisky in the barn was under some hay. Also, near the whisky, the officers found some corks. The officers testified tfiat they found seventeen pints of whis-ky in the weeds twenty steps south of appellant’s barn. Near appellant’s toilet they discovered two fifteen or sixteen gallon kegs, which had contained whisky. The officers testified that the seventeen pints of whisky were in appellant’s inclosure about twenty steps from his barn. At this point we quote the testimony of one of the officers as follows: “The bottles we found in the house and the seventeen pints were pint bottles. I tasted of the whisky that we found in the bottles. I couldn’t tell any difference in it from the whisky we found in the barn and I would say it was practically the same whisky. I didn’t taste of that in the house. I. looked at it and smelled of the bottle. It was the same color and' it smelled just like whisky. It smelled like the whisky we found in the barn and on the premises. It was colored like that we found in the barn and outside.”

Appellant testified, in substance, as follows: The whisky found by the officers in the barn did not belong to him and he did not know it was there. The seventeen pints of whisky were found in an alley just off: of his premises and he had nothing to do with them and did not know they were there. The only keg the officers found on his premises was in his barn. He had bought the place from one McDowell about five years ago. The keg and several jars found in the barn were in there ,when he bought the place from McDowell. He did not know anything about any empty pint flasks in the barn, and had never seen any corks there. He went in and out of the barn all the time, as he used the barn for a garage; but he had not seen any corks or pint flasks in the barn. There was a soda-pop bottle in the house, with a little whisky in it, which belonged to a truck driver. He had theretofore been indicted in another case for the offense of possessing intoxicating liquor for the purpose of sale, but had been acquitted.

Appellant’s witness Kennedy testified that shortly before the search of appellant’s home Olem Crim and Mr. Jackson had been on a trade for some land and were fixing up the contract; that the parties were at his house, which' was not far from appellant’s home; that they had some whisky there which they were all drinking, except Mr, Bryant, the attorney who was drawing up the papers; that the whisky belonged to those interested in the contract; that he was going to leave for Corpus Christi as soon as they got through with the contract and that his nephew Homer Hill was going to move into his house while he was gone; that after the parties finished the contract, they left the whisky in his kitchen; that he did not want to leave the whisky in his house, so he placed the half gallon of whisky in appellant’s barn; that he never did go back and remove the whisky before the search was made. Appellant’s witness Clem Crim testified that a few days before the search he saw two men in an automobile in Mr. Kennedy’s lot; that they had a bucket with them; that they went down the alley between Kennedy’s and appellant’s residences, below appellant’s toilet toward the railroad; that he did not know who “these mysterious fellows were”; that he did not know what was in the bucket:

It is insisted by appellant that the testimony of his witnesses to the effect that th’e whisky in the .barn did not belong to him, and his own testimony to the effect that none of the whisky found by the officers was his, met the presumption of a prima facie case, and entitled him to an acquittal. This contention cannot be sustained. The jury were warranted in rejecting appellant’s testimony and that of his witnesses. See Harris v. State, 101 Tex. Cr. R. 533, 276 S. W. 266. We think the facts in the case of Hildebrand v. State, 115 Tex. Cr. R. 245, 29 S.W.(2d) 774, 775, were no stronger than those reflected in the present record. In that case we upheld the judgment of conviction.

Bill of exception No. 1 presents the following occurrence: The county attorney announced, to the court that he was not ready for trial. Appellant’s counsel announced that he was ready. The court then asked the county attorney if his witnesses were present, and he stated that they were, but that he did not want to try the case at that term of court. The court and the county attorney then went into an anteroom where they discussed the question as to whether the case should proceed to trial. Finally, the court advised the county attorney, in effect, that he was unwilling to continue the case. The county attorney stated to the court that he would not proceed with the prosecution. The court then advised the county attorney that he would appoint some other attorney to prosecute the case. It appears from the bill of exception that the county attorney believed that the jury for that term of court would not convict appellant, and he desired for that reason to continue the case. The court appointed Hon-J. S. Jameson, a member of the local bar, to prosecute the case. While Hon. J. S. Jame-son was striking the jury list, the county attorney appeared and stated that he wanted to prosecute the case. The court advised the county attorney that he might go ahead in the prosecution with the attorney he had named. It appears that the county attorney was unable to agree with counsel as to selection of the jury, and the court then advised the county attorney that inasmuch as he had first refused to prosecute the ease and made it necessary for the court to appoint counsel, Hon. J. S. Jameson would conduct the trial. The county attorney then requested the court to permit the assistant county attorney to sit in the prosecution of the case. The court agreed to this, and the assistant county attorney appeared and sat with Hon. J. S. Jameson during the trial of the case, although he did not examine the witnesses or jpake an argument. We see no error in this matter. The assistant county attorney was present in the prosecution of the case. The fact that after appellant’s counsel learned that the county attorney would not be in the prosecution, he sought to continue the case, would not change the situation. The assistant county attorney was fully authorized under the law to prosecute the case. He was present at the request of the county attorney and sat through the . trial of the case.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, Presiding Judge.

If the testimony is understood, it is as follows: No whisky was found in the appellant’s dwelling. In his barn was found a half gallon of whisky. Knowledge of its presence there was denied by the appellant. Kennedy, a neighbor, testified that he had placed the whisky in the appellant’s barn, and that he had not given him notice of that fact. It seems from the record that a railroad track was near the home of the appellant; that near the railroad track was a branch or a ravine in which there had grown up weeds and Johnson grass. Among the weeds and Johnson grass there was found a bucket containing seventeen pints of whis-ky. It is not made clear by the record whether this whisky was found within the inelosure of the appellant or out of it. Apparently the whisky was hidden in the weeds. Somewhere in the same neighborhood there was 'found a keg which had at some time contained whisky. In the barn there were found a keg and some jars. Appellant accounted for the presence of the empty keg and jars in the barn with the statement that they were there when he bought the place some "five years before.' He denied knowledge of the seventeen pints of liquor or of the keg found in the same neighborhood. The appellant had been previously indicted in a liquor case but had been acquitted.

The evidence being wholly circumstantial, it is not regarded by the writer as sufficient to support the conviction. Apparently the most cogent fact against the appellant was the fact that a half gallon of whisky was found in his barn. This was accounted for. The evidence of an unimpeaehed and disinterested witness was such that, if true, the presence of the whisky in the barn was not imputable to the appellant. It was admitted by one of the officers, and is apparent from other testimony, that the locality of the bucket containing the whisky may not have been within the appellant’s enclosure. In any event, it was remote from his house and was hidden in the weeds. There is no evidence that the appellant knew it was there save the circumstance that it was found in that locality. Appellant denied knowledge of its presence there when testifying in his own behalf.

The analogy between the testimony relied upon in cases of circumstantial evidence is difficult to identify due to the fact that the circumstances in each case are different. In the cases of King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; Mathis v. State, 100 Tex. Cr. R. 509, 272 S. W. 204; Hester v. State, 97 Tex. Cr. R. 510, 262 S. W. 484; Bridwell v. State, 111 Tex. Cr. R. 546, 15 S.W.(2d) 12, and Heeter v. State, 103 Tex. Cr. R. 399, 281 S. W. 565, there are exhibited facts held to be insufficient when -tested by the law of circumstantial evidence to support the conviction. They are of sufficient similarity to the facts before the court, in the present appeal, to render them worthy of citation in support of the conclusion above stated, namely, that the evidence is not .regarded such as pointing to the appellant as having committed the offense with that degree of certainty which excludes every other hypothesis save that of his guilt.

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


text:
    KIMBALL v. STATE.
    No. 15878.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Otis Rogers,' of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction Is for passing a forged instrument ; punishment being assessed at two years’ confinement in the penitentiary.

The record is before this court without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    P. J. KIMBALL, alias R. E. Jackman, appellant, v. STATE of Texas, appellee.
    No. 15879.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Otis Rogers, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

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


text:
    P. J. KIMBALL, alias R. E. Jackman, appellant, v. STATE of Texas, appellee.
    No. 15880.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Otis Rogers, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

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


text:
    CLIFTON v. STATE.
    No. 15876.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Lloyd W. Davidson, State’s Atty., of Aus-* tin, for the State.
   HAWKINS, Judge.

Conviction is for theft of property over the value of $50, punishment being assessed at confinement in the penitentiary for ten years.

No statement of facts or bills of exception appear in the record. In such condition nothing is presented for review.

The judgment is "affirmed.


text:
    MALADIN v. STATE.
    No. 15555.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Willis, Studer & Studer, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Conviction is for the possession of intoxicating liquor for the purpose of sale; punishment, 3 years in the penitentiary.

Peace officers searched the residence of appellant .under a search warrant and a search of the residence proper failed to reveal any whisky, but a search of the basement or cellar of the house resulted in finding about 3½ gallons of whisky. The evidence showed that appellant had moved into the house some time in January preceding the time of the search on March 9th. The state also introduced evidence to show that "some people had been seen going to and from the residence carrying something in paper sacks away from said house,. This, however, was a contested issue, one of appellant’s closest neighbors denying these facts. At the time the house was searched by the officers, the evidence showed that a man by the name of Guy Teal and one R. W. McQuerry were in the house with the appellant. They were sitting in the front room of the house at the time the 'officers came in. It is also in evidence the liquor was found in the cellar in a hole in the ground and it was necessary to take up some bricks to get to it. It is also in evidence that Guy Teal, one of the men in the house with'the appellant at the time, had moved into said house á couple of days after the appellant did and had stayed in Borger part of the time and part of the time he stayed with the appellant.

Appellant testified in his own behalf and denied knowing anything about the intoxicating liquor being in the cellar of the house he occupied. He admitted, however, that he was in charge of and in possession of the house and the same was under his control and management.

By bill of exception No. 7, it is made to appear that while the witness McQuerry was testifying, that the appellant offered to prove by the said McQuerry as a witness that he was present at said premises just immediately before the officers arrived and inquired of appellant where he could get some whisky or whether he could get it from appellant, and the appellant told said witness that he did not have any whisky. The state objected to said testimony as being a self-serving declaration, which objection was sustained by the court and the witness was not permitted to testify. The bill further shows that had the witness been permitted to testify he would have testified substantially as stated in said bill.

Bill of exception No. 8 shows that after the occurrence set out in bill of exception No. 7 had taken place, that the state’s counsel took the witness for further examination on the part of the state and asked said witness why he was at defendant’s place or under what circumstances he was at said place on the occasion in question when the raid was made, and drew from said witness McQuerry that he went to said defendant’s place to get a drink of whisky, and thereupon appellant immediately reoffered, the testimony of the witness McQuerry and offered to prove by him that he had inquired for some whisky and had been unable to get it, appellant insisting that he did not have it. The court refused to permit the appellant to prove such fact by the said witness. Appellant insists that the effect of the refusal of the court to allow him to prove by the said witness that he could not obtain any whisky from the appellant was to make the state exclude appellant’s explanation through the witness and to leave the matter before the jury without any explanation that the witness McQuerry went there to get a drink of whisky; that if it was not permissible to prove by said witness said testimony originally, that it became admissible in evidence by reason of the state introducing a part of the transaction.

It seems too plain for argument that the accused ought to have been given the opportunity to have explained to the jury that an act shown to be criminal by the 'state was not in fact such. In the case of Williams v. State, 112 Tex. Cr. R. 482, 17 S.W.(2d) 1057, Judge Lattimore, speaking for this court, held that where the defendant was found at a still in a pasture with mash and water on his boots and washing his hands in a barrel, that he had the right to produce evidence to show that he was on his way to the home of one Ellen Lewi’s to work on her car and he did not start the still and had nothing to do with it, and the court erred in not permitting his father and brother to testify that he told them when he left on the morning in question that he was going to the home of Ellen Lewis to work on her car. Judge Lattimore points out in said opinion that the statements were not self-serving and they were part of the res gestae which should have been admitted in behalf of the appellant. As illustrative of the question, see Jackson v. State, 55 Tex. Cr. R. 79, 115 S. W. 262, 131 Am. St. Rep. 792; Field v. State, 108 Tex. Cr. R. 112, 299 S. W. 258; Haley v. State, 108 Tex. Cr. R. 611, 2 S.W.(2d) 259. We are of the opinion that under the authorities the exclusion of the evidence sought to be elicited from the witness constituted reversible error. The state having elicited from said witness the fact that he went to appellant’s place for the purpose of obtaining liquor from the appellant, it was clearly permissible for the appellant to show that he could not obtain said liquor and the 'statements of the appellant to the effect that he had no liquor for sale.

Bill of exception No. 10 shows that the state placed on the witness stand one M. M. Newman, who testified that he knew the general reputation of defendant in or near McLean as to whether he was a peaceful, law-abiding citizen or not, and in connection with his answer that he knew such reputation volunteered the remark that the defendant had the reputation of being a bootlegger, to which the appellant objected that it was not proper for the state to prove the reputation of the defendant for the very offense for which he was on trial and said remark was so prejudicial as to require him a new trial and asked the court to withdraw the jury and give him a new trial. The court sustained the objection and withdrew the remark from the jury, but the appellant nevertheless excepted to the ruling of the court because the remark was so prejudicial that the withdrawal of it would not cure the effect of such testimony being placed before the jury.

One of the very is'sues involved in the ease was whether the appellant possessed the liquor, if he did possess it, for the purpose of sale, and the testimony of the witness, although volunteered, was a direct statement to the jury that the appellant’s reputation was that of a bootlegger. We are in serious doubt as to whether or not the court under such circumstances was able to withdraw from the jury the damaging effect such testimony was likely to have had upon the jury. Appellant denied that he had any whisky at all or that he ever sold any whisky. There was no direct evidence, so far as the record discloses, that he had been known to sell liquor, and therefore we are unable to say that it was not harmful to the appellant. We disclaim any intention of holding that a situation of the character here presented should in every case work a reversal. However, in the present case, we are unable to say that the prejudicial statement of the witness was not appropriated by the jury in determining the issue of guilt and in assessing the penalty.

By bill of exception, appellant contends that the search of the premises was not made by virtue of a valid search warrant based upon a valid affidavit and for that reason the testimony of the officers as to what they found in the cellar of the house occupied by the appellant was inadmissible. This objection passes out of the case because the appellant admitted in his own evidence the finding of the liquor by the officers in the cellar of the house occupied by him. McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Sifuentes v. State, 109 Tex. Cr. R. 398, 5 S.W.(2d) 144; Hood v. State, 111 Tex. Cr. R. 95, 10 S.W.(2d) 94.

Appellant insists that the trial court erred in hot instructing the jury on the law of circumstantial evidence and an exception was reserved to the charge for failure, to so charge. Under the evidence, we do not think the issue of circumstantial evidence arose. The undisputed evidence in this case shows that 3⅛ gallons of whisky were found in the cellar of the house. The appellant himself testified that he had rented the house, paid the rent therefor, and it was under his sole control and management. As shown by the evidence, the cellar was directly under the house and was a part thereof. It is further shown by appellant’s own testimony that he had kept a police dog owned by him in said cellar and had gone down there to feed her a number of times. Under article 671, P. O., the possession of more than one quart of intoxicating liquor shall be prima facie evidence that it was possessed for the purpose of sale. The only issue under the facts in this case was whether or not the appellant knew of the existence of the whisky in the cellar of his house. The learned trial judge charged •the jury in effect that, “if appellant didn’t know of the presence in the cellar of the whis-ky which was found therein, or if the jury had a reasonable doubt as to whether he knew of its presence, he should be acquitted.” By virtue of said charge appellant was given the full benefit of his defensive theory in the charge above referred to. Under all the facts and circumstances in this case, we do not believe a charge on circumstantial evidence was required. See Davis v. State, 98 Tex. Cr. R, 643, 267 S. W. 513; Egbert v. State, 76 Tex. Cr. R. 663, 176 S. W. 560.

A motion for continuance was presented to the court and overruled. Appellant complains of this action of the trial court. Complaint is also made of the argument of the district attorney. As these matters are not likely to occur on another trial and the case must be . reversed on another issue, we pretermit a discussion of same.

For the errors pointed out, 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.


text:
    VAUGHN v. STATE.
    No. 15905.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Alex F. Cox, of Beeville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Aggravated assault is the offense; penalty assessed at a fine of $200 and confinement in the county jail for a period of thirty days.

The indictment is regular and regularly presented.

We find nothing in the record requiring discussion.

The complaint of the charge of the court and of the introduction of evidence cannot be reviewed, in the absence of the statement of facts.

The judgment is affirmed.


text:
    CHAMBERLAIN v. STATE.
    No. 15527.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.
    H. T. Miller, of Moody, and A. L. Curtis, of Belton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The only question raised is the sufficiency of the testimony. Without naming the witnesses or quoting their testimony, it is enough to say that about 4 o’clock p. m., in a vacant apartment of a house belonging to appellant, which was insured, a fire broke out and partially destroyed the house. The house was bought some seven years before for $2,625. At the time of the fire, it and its contents were insured for $4,500. No one testified to the value of the house or contents at the time of the fire, save appellant, who said he had fixed the house up and spent considerable money on it. There were two apartments in said house; one vacant, one occupied. The fire started in the vacant apartment, and, according to a number of witnesses, in the attic over a bathroom or pantry. A visitor at the house at the time swore that about thirty minutes before the fire broke out she saw appellant and one Burns leave said house in a green car. She saw the car parked first, then heard some one in the vacant apartment up over a room in the ceiling of which was a trap door opening into the attic. This witness said she heard this door slide to one side while the men were in there. She was at the time in the kitchen of the other apartment which was occupied by a family by the name of Wells. She said there was only a wall between her and the room where the men slid back the door over this hole in th.e ceiling. Mrs. Wells testified that she saw the car of appellant parked near the house, and heard men in the house right after the car drove up. She said there was an attic over the bathroom, and she heard the men up there. About ten or fifteen minutes after the men left she smelled something like tar burning, and presently discovered the house was on fire. She testified the fire originated over the bathroom up in the attic. Prior to the coming of the men, the front and back doors of the vacant apartment were unlocked. Mrs. Wells testified that after the men left she tried the back door of said apartment and it was locked. Her little daughter, eleven years old, testified she saw one of the men lock the front door of the apartment when they left. The chief of the fire department said they got a call to this fire about 4:10 p. m., and when they got there the whole roof was on fire. Looking at the attic over the bathroom and pantry, he said it looked like the fire started up there. He testified there were a lot of rags and junk in this attic, and he perceived the odor of oil and saw a lot of smoke. Some of the rags in the attic were burned and some not. He said the fire seemed to have started in a closet with a scuttle hole 'going into the attic. Another fireman corroborated the fact of the rear door of the vacant apartment being fastened; also as to the quantity of -burned rubbish in the attic. The little daughter of Mrs. Wells testified that she saw two men in a green car, like the one driven by appellant’s wife when she came to collect the rent, come to the house ,a little while before the fire. One of the men had a big tow sack which he carried in the house. When they left neither man had the sack. She said one of them locked the front door before they went away. She did not know the men, but said one of them had burnsides. A witness testified that the man with appellant at the house that afternoon was a Mr. Burns. Another witness testified that Burns at ,said time wore burnsides.

Appellant swore to an alibi, but admitted he was at said house about 1 o’clock p. m. He supported his alibi by a number of witnesses whose testimony we will not quote, since reconciliation of conflicts in testimony is for the jury, and they have expressed their judgment in this case. We would not be allowed to set aside the judgment unless same was without support in testimony, or else the testimony of guilt be so weak as to lead us to conclude the verdict the result of prejudice, or some supportable reason indicating that the accused had not been given a fair trial. There is not a bill of exception in this record, nor any complaint of the charge of the court. Appellant filed an application for a continuance because of the absence of his wife, but if same was ever presented to the court the record fails to disclose it. The affidavit of the wife was attached to the motion for new trial, and shows to be but cumulative of other alibi evidence, and, further, the order overruling said motion recites that the court heard evidence, and no evidence is preserved or brought forward either in a bill of exception or statement of facts as that heard upon the hearing of said motion. While the case was submitted to the jury under the law of circumstantial evidence, it was so submitted in a manner acceptable to appellant, and there seem to be enough facts to justify the jury’s conclusion of guilt.

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

On Motion for Rehearing.

MORROW, Presiding Judge.

A careful review of the evidence heard upon the trial has been made in the light of the appellant’s motibn for rehearing, and ■the conclusion has been reached that this court would not be authorized to overturn the verdict of the jury.

The motion for rehearing is overruled.