author: RYAN, Judge. ' CUBETON, Chief Justice.

text:
    CITY OF EL PASO et al. v. JACKSON et al.
    No. 1433-6073.
    Commission of Appeals of Texas, Section R.
    May 3, 1933.
    J. H. MeBroom and J. W. Morrow, both of El Paso, for plaintiffs in error.
    Jones, Goldstein, I-Iardie & Grambling and Fryer & Cunningham, all of El Paso, for defendants in error.
   RYAN, Judge.

Defendants in error attack an ordinance of the city of El Paso which prohibits the sale within that city of ice manufactured outside the city unless it be made of distilled water, on the ground the ordinance is void because it discriminates against persons manufacturing ice outside the city as contrasted to persons manufacturing ice inside the city, and on the further ground that the ordinance prohibited the sale of a pure and wholesome commodity of commerce and was. a burden on interstate commerce.

The-trial court, being of the opinion that the ordinance is void, perpetually enjoined the city, its mayor, aldermen, chief of police, and judge-of the corporation court, from arresting and prosecuting defendants in error for any violation thereof and from enforcing or threatening to enforce said ordinance or any of its provisions.

The trial court’s action was based upon his conclusion that the ordinance is discriminatory and imposes a burden on interstate commerce.

With Mr. Justice .Higgins dissenting, a majority of the Court of Civil Appeals affirmed the judgment of the trial court. 40 S.W.(2d) 845.

The ordinance in question (omitting caption) reads as follows:

“Whereas the public health authorities of the City of El Paso are empowered within the City of El Paso to inspect the methods used in the manufacture and storage of ice, and to test the wells from which the water is obtained, and to. supervise the sanitary methods surrounding the manufacture and storage thereof. . ,
“And whereas it is impractical to inspect and test for purity, ice manufactured outside the City of El Paso.
“Now therefore, to guard the public health against typhoid fever and other diseases, the germs of which may be transmitted in ice, be it ordained by the City Council of the City of El Paso, Texas:
“Sec. 1: It shall be unlawful for any person, firm or corporation to sell or offer for sale, or distribute in the City of El Paso any ice manufactured outside the City of El Paso, except ice manufactured wholly with distilled water.
“Sec. 2: Any person violating the foregoing ordinance shall be deemed guilty of a misdemeanor, and shall be fined the sum of $10.00, and each sale, or offering for sale, shall constitute a separate offense.
“Sec. 3: There being no sufficient ordinance now forbidding or preventing the sale of impure ice within the City of El Paso, manufactured outside the City of El Paso, creates a case of great public emergency, necessitating the suspension of the rule requiring ordinances tó be read in open meeting of the City Council at two regular meetings as provided in Sec. 33 of the Charter of the City, and for that reason said rule is hereby suspended by unanimous vote of the Aldermen present and with the consent of the Mayor, and this ordinance is hereby passed and approved, and takes effect upon its passage, approval and publication.
“Passed and approved tbe 2nd day of April A. D. 1931.”

The defendants in error are engaged in the business of selling ice in the city of El Paso, such ice manufactured out of raw water, in the city of Juarez, Republic of Mexico, and brought by them from Mexico, in trucks and wagons.

One of them has invested in that business property valued at more than $500, and the others have invested in their business property valued at more than $500.

The record discloses that ice is a suitable agent to transmit the germs of typhoid fever and other diseases, that the freezing of water does not destroy bacteria or typhoid germs in water, and sand filtering does not destroy bacteria. It requires forty-eight hours to test ice for contamination. If icé is held for forty-eight hours to be tested, it will melt and be destroyed. It is therefore impossible to test for contamination any ice brought into the city from beyond its limits. Distillation of water eliminates all germs and gives the assurance that ice manufactured from distilled water is free from contamination by disease-carrying germs.

The city of El Paso has no way of enforcing periodic and proper inspection of the water sources in Juarez from which the ice is manufactured.

Within the city of El Paso, water from which ice is made is tested as to its purity by the city health department, and if colon bacteria be discovered, corrective steps are taken.

It was agreed between counsel for the parties that the city health officer of El Paso inspects the purity of the raw water used in that city every two weeks.

The city health officer testified that without weekly laboratory tests of city water it cannot be told whether any water is pure or not and that he takes periodical tests to keep it pure. ,

It appears that there are five ice manufacturing plants in El Paso, three being distilled water plants, one of which also manufactures a part of its product out of raw water.

There was a conflict in testimony as to the relative cost of manufacturing ice out of distilled or raw water, some of it to the effect that the former is the’ more expensive, and some to the effect that the cost of manufacturing distilled water ice, with a properly efficient plant, is less than the other.

Opinion.

Much has been written on the subjects of controversy herein, but we think they have been settled adversely to defendants in error by the Supreme Court of the United States in Adams v. City of Milwaukee, 228 U. S. 572, 33 S. Ct. 610, 57 L. Ed. 971, and the doctrine there announced, applicable to a city’s milk supply, is applicable here to the city’s ice supply.

That ease involved the validity of an ordinance of the city. of Milwaukee which prohibited bringing into the city, or selling or offering for sale therein, milk or cream drawn from cows outside of said city unless (among other requirements) the owner of such cows had filed in the office of the health commissioner a certificate from a duly licensed veterinary surgeon or other person given authority by the State Live Stock Sanitary Board to make tuberculin tests, that such cows had been tested with tuberculin and found free from tuberculosis or other contagious diseases.

Such a test is made by a hypodermic injection of a toxic product of the tubercule bacilli, which causes a described and recognized rise of temperature in the animal afflicted with tuberculosis, but has no effect, or a different effect, upon cattle not so afflicted. The tuberculin test, while not infallible, is the only reliable and useful means for testing cattle for tuberculosis.

It was contended that the ordinance is unconstitutional, in that it is partial and unequal in its operation as it applies to dealers in milk drawn from cows outside the city, while dealers in milk drawn from cows within the city are not included in its terms or subject to its requirements.

The Supreme Court of Wisconsin (Adams v. City of Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. [N. S.] 1066) held that when these two classes of milk dealers are considered from the viewpoint of facility for inspection and regulation, important differences are at once perceptible. The city officers intrusted with the preservation of the public health cannot visit or exercise authority on farms outside the city limits and in other counties. Cows within the city are under the authority of the commissioner 'of health and subject to strict inspection. Therefore, these differences in the situation of the milk producing animals and in the facilities for inspection and investigation are sufficient to authorize the common council to legislate with reference to milk shipped into the city and make police regulations applying to dealers in and shippers of such milk, separate from and different from the regulations applying to cows within the city.

The Supreme Court of the United States reviewed that case on writ of error to the Supreme Court of Wisconsin (228 U. S. 572, 33 S. Ct. 610, 57 L. Ed. 971), concurred in the findings of, and affirmed the judgment of, the state court.

We see no difference in principle between that ease and the one under consideration. In the one case foreign cows producing the milk must be injected with tuberculin; in the other, water out of which foreign ice is produced must be distilled.

In the Adams Case, he claimed the ordinance unreasonable and void because it prohibited commerce in pure-, wholesome milk from cows outside the city; here, the defendants in error claim the ordinance is unreasonable and void because it prohibits com-' merce in pure, wholesome ice made outside the city.

We are cited to State of Minnesota v. Barber, 136 U. S. 313, 10 S. Ct. 862, 867, 34 L. Ed. 455, as sustaining a contrary view; we are of the opinion that case is materially differentiated from this. There, the state of Minnesota had enacted a statute which prohibited the sale of meat in the state unless the animal had been inspected by a local officer within twenty-four hours before its slaughter. The effect of the statute was to require fresh meats of every kind, before their introduction into Minnesota, to be locally inspected there, on the hoof, within twenty-four hours before slaughter — an impossibility in case of residents of other states who were thus required to ship the live animal into Minnesota for inspection within twenty-four hours of slaughter- and shipped back for butchering. The court said:

“One other suggestion by the counsel for the state deserves to be examined. It is that, so far as this statute is concerned, the people of Minnesota can purchase in other states fresh beef, veal, mutton, lamb, and pork, and bring such meats into Minnesota for their own personal use. We do not perceive that this view strengthens the case of the state, for it ignores the right which the people of other states have in commerce between those states and the state of Minnesota, and if ignores the right of the people of Minnesota to bring into that state, for purposes of sale, sound and healthy meat, wherever such meat may have come into existence. But there is a consideration arising out of the suggestion just alluded to which militates somewhat against the theory that the statute in question is a legitimate exertion of the police powers of the state for the protection of the public heálth. If every hotel keeper, railroad, or mining corporation, or contractor in Minnesota furnishing subsistence to large numbers of persons, and every private family in that state that is so disposed, can, without violating the statute, bring into the state from other states, and use for their own purposes, fresh beef, veal, mutton, lamb, and pork taken from animals slaughtered outside of Minnesota which may not have been inspected at all, or not within 24 hours before being slaughtered, what becomes of the argument, pressed with so much earnestness, that the health of the people of that state requires that they be protected against the use of meats from animals not inspected in Minnesota within 24 hours before being slaughtered? If the statute, while permitting the sale of meats from animals slaughtered, inspected, and ‘certified’ in that state, had expressly forbidden the introduction from other states, and their sale in Minnesota, of all fresh meats, of every kind, without making any distinction between those that were from animals inspected on the hoof, and those that were not so inspected, its unconstitutionally could not have been doubted. And yet it is so framed that this precise result is attained as to all sales in Minnesota, for human food, of meats from animals slaughtered in other states.

“In the opinion of this court, the statute in question, so far as its provisions require, as a condition of sales in Minnesota, of fresh beef, veal, mutton, lamb, or pork, for human food, that the animals from which such meats are taken shall have been inspected in Minnesota before being slaughtered, is in violation of the constitution of the United States, and void.”

If the city of El Raso had passed an ordinance requiring the makers of ice to ship the water which they intended to use in the ice to El Paso for inspection and then take it back to their plant and make the ice, the situation might be parallel to that in the Barber Case. But nothing in the ordinance suggests the least comparison to the Minnesota statute.

On the other hand, in the Adams Case, Wisconsin law prohibited interstate as well as intrastate commerce, as does the El Paso ordinance.

There, as here, the petitioner claimed that the most the city could do was to require the milk to be pure and wholesome, but the Supreme Court said the city had the right to require an injection into those cows outside the city as a measure of assurance of its purity, just as here the city requires the injection of heat to the water to assure its purity.

There is nothing in the record to indicate that petitioners cannot buy all the distilled water ice they need to supply their demands or that they would have to pay more for it.

They simply demand that they be permitted to bring into the city of El Paso ice manufactured in Juárez, where no periodic inspection of the water supply is made, which the health officer indicates is necessary in saying that at times colon' bacteria shows up in the El Paso water supply and has to be treated. The fact that the water in one well in Juarez was pure when it was once tested does not give El Paso any satisfactory assurance that it will remain so or that other wells in Juarez or elsewhere are pure or will remain so. The city is entitled to have the assurance of its purity by the reasonable precaution of distillation. Mr. Justice Higgins correctly so beld in his. dissenting opinion.

We think the 'ordinance is valid, and recommend that the judgments of the trial court and Court of Civil Appeals be reversed and judgment be here rendered in favor of plaintiffs in error.

' CUBETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and judgment here rendered for the plaintiff in error.


source: Caselaw Access Project

author: CBITZ, Judge. CURETON, Chief Justice..

license: Public Domain

text:
    EUBANKS v. GALVESTON, H. &. S. A. RY. CO.
    No. 1661-6131.
    Commission of Appeals of Texas, Section A.
    May 3, 1933.
    Charles Murphy, of Houston, for plaintiff in error.
    Baker, Botts, Andrews '& Wharton anil Ar-terbury & Coolidge, all of Houston, for defendant in error.
   CBITZ, Judge.

The main facts of this case are set forth in the opinion of the Court of Civil Appeals, which is reported at 42 S.W.(2d) 475, and we refer to that opinion for a full and detailed statement of the case. In order, however, that this opinion may be complete within itself, we make the following abridged statement:

Statement.

This suit was originally filed in the district court of Harris county, Tex., by’T. S. Eubanks against Galveston, Harrisburg & San Antonio Bailway Company to recover damages, for the breach of a contract between the railway company and the organization of the railway company’s employees, of which he was a member. The case was tried in the district court with a jury, but at the close of the testimony the court ruled that no fact question was presented by the testimony, and therefore withdrew the case from the jury and rendered a judgment for Eu-banks against the railway company for damages for both an accrued and an anticipatory breach of such contract for the total sum of $41,481.20. On appeal by the railway company, this judgment was reversed and the cause remanded for a new trial. Eubanks brings error.' The notation made in granting the writ shows that-the writ was granted in order to decide the proper measure of damages.

It seems from the record before us that in 1913 the railway company entered into a contract with its employees, which contract covered Eubanks, and which contract provided, among other things, that employees included therein should not be disciplined or discharged without proper cause. The contract set up a method of procedure to be followed by employees in presenting their grievances, and provided the authority to whom such grievances should be presented. The contract provided further that, if it should be found by such authority that an employee of the railway company had been unjustly discharged, he should be reinstated and paid “for all time lost.” It is then shown that Eubanks was discharged by the railway company on October 25, 1924, and that he followed the procedure of the contract and presented the matter of his discharge to the authority designated in the contract. This authority decided against him.

It is then Shown that in 1922 the railway company and its employees, of which Eu-banks is one, entered into a further written contract. In this contract it was agreed that personal grievances of employees under certain circumstances should be submitted to a board known as “Train Service Board of Adjustment for the Western Region.” The 1922 agreement provided that the decision of this board should be final and binding on the parties.

It is then shown that in a proper manner Eubanks presented his grievance; that is the matter of his claimed unjust discharge to the board provided by the 1922 contract, and, after various proceedings, not necessary to detail here, the board, on February 18, 1927, finally adjudged that Eubanks had been wrongfully discharged. The railway company refused to abide the decision of the board by reinstating Eubanks as an employee, or by paying for the time lost. The suit followed.

The trial court concluded that the evidence showed, as a matter of law, that Eubanks would have made $144 per month from October 25, 1924, the date of his discharge, to June IS, 1930, the date of the judgment. Based on this conclusion, he rendered judgment for Eubanks for $144 per month from October 25, 1924, to June 18, 1930.

The trial court further rendered judgment for Eubanks against the railway company for an additional sum of $30,000. This part of the judgment was based on the theory that the railway company had been guilty of an anticipatory breach of the contract with Eu-banks for the balance of his natural life. The court found that Eubanks’ life expectancy was 29 years, and that he was entitled to pay for such time at $144 per month reduced to its present worth on the date of the judgment.

A calculation brings us to the conclusion that the total judgment rendered against the railway company amounted to $41,481.20.

At this point we pause to note the following additional facts disclosed by this record:

(a) It is shown that during the time between the date of his discharge by the railway company and the date of the judgment Eubanks’ personal earnings amounted to a considerable sum.

(b) The record before us clearly presents a question of fact as to what'Eubanks would have earned had he not been discharged as an employee of the railway company. In this connection there is evidence that Eubanks was an extra brakeman at the time of his discharge. He had no contract guaranteeing him that he would earn $144 per month or that he would have work all the time. In this connection, the record shows that during slack times the railway company had the right to reduce its train crews,’ and that men with less seniority would be the first to be laid off. We do not understand that Eubanks even contends that he had such seniority that he would not have been laid off at times.

(c) The contract between the railway company and its employees, on which this suit is based, contains the following express provision: “18. This agreement shall become effective upon its execution and shall remain in full force and effect for a period of one year from the date of organization of the Board and thereafter for successive periods of one year, provided that any party signatory hereto may withdraw at the end of any year upon serving written notice of its intentions to withdraw not less than ninety days prior to the expiration of such year, such notice to ■be given each of the parties signatory hereto; and provided further, that in the event that any party or parties signatory shall serve notice of intention to withdraw at the end of any year of the other parties hereto shall then have thirty (30) days during which it may serve notice of its intention also to withdraw.”

Under the above record, we think the Court of Civil Appeals was correct in reversing and remanding this ease for a new trial, both as to the accrued, and the anticipatory breach.

It is clear to us that even if we should concede, which we do not, that Eubanks rested under no obligation to lessen his damages by making a reasonable effort to secure other employment, and further even if we should concede, which we do not, that he should not be charged with money actually earned by him, still the facts in the record before us do not justify a holding that his accrued damages were liquidated or proven as a matter of law. This is evident because, as already shown, the facts do not show affirmatively, that is, in a sum certain, what his earnings would have been between October 24, 1925, and June 18, 1930.

The contract provides that, if the employee is unjustly discharged, he shall have pay “for all time lost.” The trial court seems to hold that this provision was intended to set aside the common-law rule as to the measure of damages for breach of this contract and substitute a different measure fixed by the contract itself. The trial court then, seems to hold that the measure fixed by the contract would not charge Eubanks with money actually earned during the time between his discharge and the judgment, and would not obligate him in any way to mitigate his damages by making a reasonable effort to secure other employment. The Court of Civil Appeals holds, in effect, that the provision in the contract requiring the railway company to pay him “for all time lost” means nothing more than to obligate the railway company to pay for the loss of earnings. In other words, we understand the opinion of the Court of Civil Appeals to hold that the common-law rule should be applied in measuring the damages. We approve this holding.

The trial court held, in effect, that Eu-banks had a contract with the railway company for employment for the balance of his natural life. Based on such holding, the trial court allowed Etabanks a recovery as for an anticipatory breach of such contract for a life expectancy of 29 years at $144 per month. This holding was utterly erroneous for the reason, among others, that the clause in the contract above quoted by us demonstrates that Eubanks did not have a contract of employment for the balance of his natural life. The clause quoted expressly provides that either party may withdraw from the contract at the end of any year upon serving written notice of its intentions so to do not less than ninety days prior to the expiration of such year. This clause in the contract precludes any recovery for anticipatory breach for the life expectancy of Eubanks. Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084; Pollack v. Pollack (Tex. Com. App.) 46 S.W.(2d) 292. If Eubanks had an unconditional contract of employment for his natural life, the time of his expected death could be legally ascertained by reference to mortality tables. Dunbar v. Dunbar, supra; Pollack v. Pollack, supra. However, in the case at bar, we have absolutely no way of knowing how long the contract made the basis of this suit will be kept in operation, except for the current year, and the year following, where the time for notice for withdrawal has expired.

We recommend that the judgment of the Court of Civil Appeals, which reverses the judgment of the district court and remands the cause for a new trial, be affirmed.

CURETON, Chief Justice..

The judgment of the Court of Civil Appeals reversing that of the district court is affirmed, as recommended by the Commission of Appeals.


author: LEDDY,. Judge. CURETON, Chief Justice.

text:
    FIRES v. KINNEY-SHOTTS INV. CO. et al.
    No. 1432-6071.
    Commission of Appeals of Texas, Section B.
    May 3, 1933.
    C. A. Wright, of Fort Worth, for plaintiff in error.
    Jesse Martin and Dawson H. Davis, both of Fort Worth, for defendants in error.
   LEDDY,. Judge.

Plaintiff in' error executed a promissory note, payable to Wes-Tex Auto Sales Company, Inc. There was nothing upon the face of the note indicating that it was tainted with usury. It provided merely for the payment of 8 per cent, interest from maturity.

For a valuable consideration defendant in error purchased said note before maturity, and the maker paid to it the amount of unpaid principal and interest. He then brought this suit against defendant in error to recover the statutory penalty of double the amount of interest so paid, on the ground that the exaction of such interest constituted usury. 1-Ie offered no evidence to show that the assignee against whom he sought to recover the statutory penalty had any knowledge or notice that the note was tainted with the vice of usury at the time it received payment of the interest thereon. He was denied a recovery by the trial court, and its judgment was affirmed by the Court of Civil Appeals [40 S. W.(2d) 911].

Plaintiff in error insists in this court that under the doctrine announced in Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031, he is entitled to recover the statutory penalty from defendant in error, even though it had no notice or knowledge at the time it collected the interest that there was any taint of usury in the note.

The provision of the statute which authorizes a recovery of double the amount of usurious interest against the person who receives or collects the same is a penalty. It is an exaction imposed by statute as a punishment for an unlawful act. One who seeks a recovery under this statute has the burden of proving the existence of facts entitling him to the penalty therein provided.

It was essential, in order for plaintiff in error to recover the statutory penalty for usury against the assignee of the note, that he allege and prove knowledge or notice upon its part that the interest received and collected was usurious. McDaniel et ux. v. Orr (Tex. Com. App.) 30 S.W.(2d) 489.

Plaintiff in error misconceives the holdings of the Supreme Court in Gilder v. Hearne, supra, and the line of decisions following said case. None of these cases were actions to recover the statutory penalty for the collection of usurious interest. They were suits either to cancel usurious interest or defenses made against the collection of such interest. When a person seeks to recover on a contract which is usurious, so far as the interest is concerned, he is seeking to enforce a contract which the Constitution declares to be utterly void. Under such circumstances, it is immaterial whether he is a bona Me holder in due course without notice of the fact that the note provides for usurious interest.

An action under the statute for the penalty provided rests upon an entirely different basis from one wherein a defense is urged against the enforcement of a usurious contract or wherein it is sought to cancel the interest imposed by such a contract. The former is an action under a statute (Rev. St. 1925, art. 5073) designed to inflict punishment upon one who has collected and received payment of usurious interest. The statute does not contemplate that a person should be punished for receiving usurious interest when he is innocent of any intent to do so.

Plaintiff in error vigorously insists that the burden of proof rested upon defendant in error to establish that it had no notice of the vice of usury in the note either at the time it purchased the same or when it received payment of the interest thereon.

In order to' recover the statutory penalty, it'devolved upon plaintiff in error to establish that defendant in error collected and received interest in excess of the amount authorized by law, and that in receiving and accepting said sum it intended to take and exact usurious interest. McDaniel v. Orr, supra.

Plaintiff in this ease did not sue to recover as for debt the usurious interest paid. His cause of action is simply one to recover the statutory penalty. The right sought to be enforced rests alone upon the statute. Since he wholly failed to establish thát defendant in error had any intent to receive or collect usurious interest, he was properly denied a recovery of the penalty provided by law.

We .recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, Chief Justice.

The judgments of the district court and the Court o'f Civil Appeals are both affirmed as recommended by thé Commission of Appeals.


author: MORROW, Presiding Judge. LATTIMORE, Judge.

text:
    Ex parte BLACK.
    No. 15728.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Rehearing Denied April 26, 1933.
    Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    Sam B. Spence, Dist. Atty., and Geo. W. Anderson, Asst. Dist. Atty., both of Wichita Falls, and Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The relator was convicted in the district court of Wichita county, in January, 1931, of a misdemeanor theft with a penalty of confinement in the county jail and a fine of $50.

There was an appeal which was concluded against the appellant on June 1, 1932 [(Tex. Cr. App.) 50 S.W.(2d) 299]. On that day the Governor of the state, upon certain declara-, tions involving the health of the relator which were recited in the preamble, issued the following proclamation:

'“Now, therefore, I, R. S. Sterling, Governor of the State of Texas, by virtue of the authority vested in me under the Constitution and laws of this State, for the reasons stated above and now on file in the office of the Secretary of State, do hereby grant unto the said Mrs. David Black a ninety day furlough (effective June 29, 1932) for the above mentioned reasons. It is provided that she shall maintain exemplary conduct.
“In testimony whereof, I have hereunto signed my name officially and caused the Seal of State to be impressed hereon at Austin, this the 29th day of June, A. D. 1932.
. “R. S. Sterling
“Governor of Texas.”

On the 27th day of September, 1932, a “furlough” in like terms as that above quoted was renewed and extended to the expiration date of October 29,1932. In each of the proclamations it is stated that the “furlough” was issued upon the recommendation of a physician, stating in substance, that confinement in prison might impair the health of the relator. At the expiration time set forth in the second furlough the relator was arrested and held in custody by the sheriff.

An application for a writ of habeas corpus was presented and denied and perfected to this court.

The relator contends that the proclamation of the Governor was in fact a “parole,” though described as a “furlough,” and that the effect of the proclamation was to terminate the right of the state to imprison the relator.

The sole power of- granting clemency is vested in the Governor of the state in article 4, § 11, of the Constitution, in the following language: “In all criminal cases, except treason and impeachment, he shall have power, after conviction, to grant reprievdfe, commutations of punishment, and pardons; and, under such rules as the legislature may prescribe, he shall have power to remit fines and forfeitures.”

The term “parole” in- our law, so far as it relates to convicts, is found in the Civil Statutes governing the penitentiary authorities, and under Acts 41st Leg., 1st Called Sess., c. 45, as amended (Vernon’s Ann. Civ. St art. 6203) is but a regulation of the Legislature permitting the prison authorities to reward convicts for obedience by extending to them unusual privileges. In its legal aspect, the parole law has no relation to the power conferred upon the Governor by the Constitution. The authority of the Governor rests in the declaration quoted above from article 4, § 11, Const, of Texas. See Ex parte Redwine, 91 Tex. Cr. R. 83, 236 S. W. 96.

We are in agreement with the relator to the effect that it is the substance of the proclamation of the Gqvernor and not the name by which it is designated that controls its effect. The elements of a statutory parole are obviously not embraced in nor a part of the proclamation, which applies to prisoners convicted of felonies, after they reach the penitentiary, and seems not applicable to misdemeanors.

In the present instance, the effect of the proclamation of the Governor was to postpone the date upon which the relator should begin her sentence. Manifestly, it was not intended to and did not have the effect of relieving her of the sentence, but simply to postpone its execution. During the time elapsing between the date of the executive proclamation and che date fixed for the beginning of the relator’s imprisonment, she was not restrained of her liberty and was not in custody, either actually or theoretically. She had not acquired any right to credit on her term of imprisonment. Considered in the light of the terms and disclosed purposes of the proclamation, it has the attributes of a reprieve which is one of the acts of clemency embraced in the Governor’s authority.

The term “reprieve” has been defined thus:

A reprieve “signifies the suspension, for a time, of the execution of a sentence which has been pronounced.. * * * A reprieve * * * is the withdrawing of a sentence for an interval of time.” Butler v. State, 97 Ind. 373, 374.

“The term ‘reprieve,’ * * * is merely the postponement of the sentence for a time. It does not and cannot defeat the ultimate execution of the judgment of the court; it merely delays it.” Clifford v. Heller, 63 N. J. Law, 105, 42 A. 155, 159, 57 L. R. A. 312.

See other citations of judicial decisions in 7 Words and Phrases, First Series, pages 6115, 6116; 6 Words and Phrases, Third Series, page 726; also Gore v. Humphries, 163 Ga. 106, 135 S. E. 481, 485; Ex parte Dormitzer, 119 Or. 336, 249 P. 639. See, also, Bouvier’s Law Dictionary, Baldwin’s Century Edition, p. 1055.

On the revealed facts, in the light of the legal principles as we understand them, the relator is not entitled to discharge.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Applicant moves' for rehearing. As supporting our conclusion that what was intended by the Governor of Texas in granting to applicant a “furlough” was not the same as in granting a parole, during the continuance of which latter she would have been serving time as a prisoner, we call attention to the language appearing in the proclamation of the Governor in each instance, as follows: “Dr. J. H. Fletcher writes that because of this woman’s nervousness, her insomnia, her oversize, and because of her mind being subnormal and because of the fact that she is suffering from a mild ease of kleptomania, he believes it would be to the best interest of the State to postpone her imprisonment until the weather gets cooler and when she is confined it is his recommendation that she be watched very closely to keep her from doing harm to herself.”

It is perfectly plain that it was the intention of the executive that applicant should serve out the prison term given her by the jury when “the weather gets- cooler,” and that, according to the doctor’s suggestion, having reference to some future occurrence, the Governor said, “When she is confined,” etc.

We are of opinion that, whatever may have been applicant’s understanding, it was not intended nor expressed in the document called a “furlough” that during the period of the continuance of same applicant’s time was to he counted upon her service of the prison term, or credit given her therefor.

There is some confusion in the record. The agreed statement of facts shows that applicant was given a term of four months’ imprisonment in the county jail for misdemeanor theft; the proclamation of the Governor recites that, she was given thirty days and a fine of $50. The original opinion of this court, based likely on what was said in the proclamation, stated that applicant was fined $50. Regardless, applicant’s motion for rehearing is overruled, and she is remanded to the custody of the sheriff to be kept by him in obedience to the original judgment of the district court of Wichita county.


author: CALHOUN, Judge. LATTIMORE, Judge.

text:
    MORTON et al. v. STATE.
    No. 15493.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    Rehearing Denied May 10, 1933.
    John D. Poulter, of Port Worth, for appellant.
    Dloyd W. Davidson,' State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

This is an appeal from a final judgment upon forfeiture of a bail bond.

The record fails to show that any briefs were filed by appellants in the trial court. We fail to find a waiver by the state of such filing. The motion is made by the state’s attorney before this court to dismiss the appeal because briefs in the case were not filed in the court below. It is the uniform holding of this court that in cases such as this briefs must be filed in the trial court and in this court in compliance with the law and rules governing civil eases, or a waiver of such filing must appear of record. Article 2283, Revised Civil Statutes 1925; article 866, C. C. P.; Lewis et al. v. State, 109 Tex. Cr. R. 661, 7 S.W.(2d) 74; Bratton et al. v. State, 109 Tex. Cr. R. 329, 4 S.W.(2d) 562; Rees et al. v. State (Tex. Cr. App.) 13 S.W.(2d) 856; Johns et al. v. State, 115 Tex. Cr. R. 335, 29 S.W.(2d) 757; Thodberg et al. v. State, 81 Tex. Cr. R. 225, 194 S. W. 1108.

The motion to dismiss is well taken. The appeal will be dismissed, and it is accordingly so ordered.

Dismissed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant Garlitz moves for rehearing on the ground that article 1848, Rev. Civ. Stats. 1925, as amended by chapter 64, Acts Regular Session, 42d Legislature, effective April 21, 1931 (Vernon’s Ann. Civ. St. art. 1848), in effect repeals article 2283, Rev. Civ. Stats., in so far as the latter made necessary the filing of briefs in trial courts, and the giving of notice of such filing not less than five days before the time of filing the transcript in the Court of Civil Appeals. Article 1848, supra, before said amendment, merely provided that causes on the trial dockets of the Courts of Civil Appeals should be submitted in the order of the date of filing except as otherwise provided, unless continued; also that the clerk of the court should notify parties or their attorneys of the dates set for hearing.

The caption of Senate Bill 60, which is chapter 64, Acts Regular Session, 42d Legislature, is as follows: “An Act to amend Articles 1847 and 1848, Chapter 3, Title 39, of the Revised Statutes, so as to provide for the filing of records in the Order received, for setting the eases for submission, and the notification of parties of the receipt and the date set for hearing; and declaring an emergency.”

Section 35, art. 3, Constitution of Texas, provides that no legislative bill shall contain more than one subject, which shall be expressed in its title; also, that if any subject be embraced in an act which is not expressed in the title, the act shall be void only as to so much thereof as shall not be so expressed.

Looking to the contents of amended article 1S48, supra, as same appears in said chapter 64, after providing in paragraph 1 for the setting of cases for submission eight weeks ahead of the date for such submission, and the notification of such setting to parties or their attorneys, said act proceeds in paragraph 2 as follows: “The appellant, or plaintiff in error, shall have thirty days from the date of such notice in which to file his brief in the Court of Civil Appeals and the appellee’s brief shall be so filed at least five days before the date set for submission. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for the filing of their respective briefs and may extend the time for the submission of the case.” (Vernon’s Ann. Civ. St. art. 1848.)

It is perfectly apparent that the subject-matter of these paragraphs last quoted is not germane to the purposes of either of old articles 1847 or 1848, nor is such subject-matter set forth in nor comprehended by the caption or title of said amendatory act. The subject-matter of the paragraphs refers to totally different matters from the setting or submission of cases, and refers to the filing of briefs — a subject dealt with in article 2283, Rev. Civ. Stats.

The attempted injection of said last-quoted paragraphs into the body of the law in this manner is in violation of the article of the Constitution referred to. Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794; Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656; Albrecht v. State, 8 Tex. App. 216. 34 Am. Rep. 737; Roddy v. State, 16 Tex. App. 502; Clark v. Finley, 93 Tex. 171, 54 S. W. 343; Ex parte Fagg, 38 Tex. Cr. R. 573, 44 S. W. 294, 40 L. R. A. 212; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736; McLaury v. Watelsky, 39 Tex. Civ. App. 394, 87 S. W. 1045. We are of opinion that the part of said amended article 1848, which appears in the last quotation above, is unconstitutional and void, and can afford appellant herein no basis for a claim for rehearing.

Our attention is called to the case of Johnson et al. v. Town of Refugio, 56 S.W.(2d) 674, wherein our Court of Civil Appeals at San Antonio seems to have held that article 2283, supra, has been superseded by the amendment of article 1848, supra. We regret that the attention of said court was apparently not called to the fact that the amendatory act appearing in chapter 64, supra, embraced in the latter part of the second paragraph tfiereof matters at variance from and not germane to those set out in the caption.

Believing the motion for rehearing not well taken, same will be overruled.


author: LATTIMORE, Judge.

text:
    NOGUEIRA v. STATE.
    No. 15867.
    Court of Criminal Appeals of Texas.
    April 19, 1933.

      Oren Parmeter, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for altering, mutilating, etc., a public record; punishment, two years in the penitentiary.

Article 1002, P. C., forbids that any person, without authority of law, shall willfully and maliciously “change, alter, mutilate, destroy, deface, or injure” any “bools, paper, record, or any other document, required or permitted by law to he kept by. any officer within this state: The indictment in this case charged that appellant, on the 2d day of January, 1930, “did then and there without authority of law wilfully and maliciously change, alter, mutilate, destroy, deface and injure a record, * * * which record was then and there required and permitted by law to be kept by J. B. Finks, District Clerk in and for Dallas County, Texas.” The indictment sets out with particularity the acts of appellant in so doing; that is, that on December 29, 1929, in Cashbook 18, at page 303 of said cashbook of the district clerk of Dallas county, the last entry in said book was 67 497 04 (meaning $67,497.04), and that on said January 2, 1930, this appellant entered on the first line of Cashbook 19, 1930, of the district clerk of Dallas county, the figures 66 497 04 (meaning $66,497.04). The learned trial judge told the jury, in substance, in his charge that if they found from the evidence beyond a reasonable doubt that appellant had done as above indicated, they should find him guilty.

Article 1123, P. C., penalizes him who with intent to defraud shall make or cause to he made any false entry in a book kept as a book of accounts; and article 358, P. C., penalizes any clerk of a court who knowingly makes any false entry upon the records of his court which may prejudice the rights of any other person. But the language of article 1002, supra, seems beyond question to require that he who violates said article must willfully and maliciously mutilate, destroy, etc., an existing book, paper, etc., then already in being and a public record. It is true that in a certain sense a man’s record may be the continuous aggregate of his deeds, and the records of a county or state may be taken to mean the continuous entries of various accounts from day to day or year to year; but in article 8 of our Penal Code we are told that in construing this Code, except when a word, term, or phrase is specially defined, all of same are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed. Viewing the context of article 1002, supra, we note that everything else named in said article, aside from the word “record,” is clearly some existing, tangible, material substance such as “books, papers, and any other documents permitted or required to he kept by officers”; also looking to the acts made penal in said article, we note as part of the context such acts to be “change, alter, mutilate, destroy, deface or injure.” To attempt to correctly apply to the intangible thing sometimes called a record, as against the tangible book in which records are kept, the terms of this statute would necessitate that in such case the thing this man was accused of doing might with propriety be said to be to mutilate, destroy, or deface the record — which leads to a seeming absurdity. In 34 Cyc., at page 585, we find the statement that the term “record” is ordinarily applied to public records only, in which sense a record is a written memorial made by a public officer authorized by law to perform that function and intended to serve as something written, said, or done. Many authorities are cited in the notes to said text, about the clearest being the definition found in Cyclopedic Law Dictionary as follows: “Record, in its broadest sense, is a memorandum public or private, of what has been done, ordinarily applied to public records only, in which sense it is a written memorial made by a public officer.” W e might add, as applicable to the instant case, that a book cannot be properly styled a public record till something has been recorded therein, and a book styled “Cashbook 19” could hardly be a public record which could be mutilated, destroyed, or defaced in the sense ’intended in article 1002, supra, until something had been written therein by some one authorized so to do. In addition to this, we refer to the well-known doctrine of ejusdem generis, application of which would seem to require that the word “record” be construed as meaning a physical thing then in existence and similar to books, papers, documents already written upon and thus made public records. See Spalding v. People, 172 Ill. 40, 49 N. E. 993; 19 Corpus Juris, p. 1255, where many authorities are collated; Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765.

The authorities oí Dallas county seem to have proceeded in this case on the hypothesis that a false entry in a new cashbook intended to be thereafter a part of the books of account of the county would be a mutilation, destruction, defacing, altering, etc., of a public repord required or permitted to be kept by public officers in this state so as to make punishable under article 1002, supra, him who did such act; but we do not so conclude.

It is not claimed that the accused in this case changed Cashbook 18, which was already in existence, or that he mutilated, destroyed, changed, or altered Cashbook 19 after the entry was made, or as to anything already written or entered therein. In our judgment the indictment in this case charged no offense. The facts fail to show any mutilation, destruction, defacing, alteration, etc., such as is forbidden by article 1002, supra.

The judgment will be reversed, and the prosecution ordered dismissed.


author: CHRISTIAN, Judge. CHRISTIAN, Judge. I-IAWKINS, Judge.

text:
    BOLTON v. STATE.
    No. 15893.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Appeal Reinstated March 22, 1933.
    Rehearing Denied May 3, 1933.
    Adams & McAlister, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for two years.

No sentence appears in the record. In the absence of a sentence this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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

On the Merits.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant waived a jury and submitted his case to the court upon a plea of guilty. Appellant contends that certain provisions of chapter 43, Acts of the 42d Legislature, Regular Session (Vernon’s Ann. C. C. P. arts. 10a, 11, 12, 658, 776a), are unconstitutional. We quote section 1 of the act (Vernon’s Ann. C. C. P. art. 10a), as follows:

“The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approval by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.
“Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.”

In Joe McMillan v. State, 57 S.W.(2d) 125, delivered February 8, 1933, this court reached the conclusion that it was within the power of the Legislature to permit one accused of a felony to waive a jury in certain cases, and have his case trigd before the court. We quote from the opinion as follows: “The denial of the right of the accused in a criminal case to waive a jury and submit his trial to the court resting upon a statutory declaration and not upon a provision of the Constitution, it is within the power of the Legislature to change or modify the procedure. That body having exerted its power by the enactment of the statute embraced in chapter 43, Acts of the 42d Legislature (1931), Regular Session, by the insertion of article 10a (Vernon’s Ann. C. C. P. art. 10a), and by amending articles 11 and 12, C. C. P. 1925 (Vernon’s Ann. C. C. P. arts. 11, 12), so as to modify the restriction upon the right of one accused of a felony to waive a jury in certain cases and have his case tried before the court, there exists no impediment or prohibition of the procedure followed in the present 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.

I-IAWKINS, Judge.

In his motion for rehearing appellant calls attention to the fact that in chapter 43, Acts of the 42d Legislature, adding article 10a and 776a to the Code of Criminal Procedure, and amending .articles 11, 12, and 658 thereof, Vernon’s Ann. C. C. P. arts. 10a, 11, 12, 658, 776a (the purpose being to permit an accused in cases less than capital to waive trial by jury), there is no direct authority given the trial judge to assess the punishment, and insisting that, if the amended act has such effect, it is in direct conflict with article 693, C. 6. P. We think the act of the 42d Legislature in question is not in conflict with article 693, O. C. P. It is found under a chapter, the title of which is “The verdict.” In article 686, of said chapter a verdict is defined as “a written declaration by a jury of their decision of the issues submitted to them in the ease.” The whole of article 693 reads: “The verdict in every criminal action must be general. Where there are special pleas upon which the jury are to find, they must say in their verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, they must find that the defendant is either ‘guilty’ or ‘not guilty,’ and they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” It is apparent that in a case submitted to a jury a verdict would be incomplete which did not assess the punishment, unless it was absolutely fixed by law. We are of opinion said article should be construed as stating generally the essentials of a verdict where a jury is employed. This construction necessarily follows in view of our holding in McMillan v. State, 57 S. W. (2d) 125, and in our original opinion in the present case.

Appellant takes the position that the act of the 42d Legislature in question may be sufficient to authorize the judge to accept a plea of guilty, but that it falls short of empowering him to assess a punishment. We regard such .position unsound. It is perfectly plain from the provisions of the act as well as from the emergency clause that the Legislature sought to provide a way in which an accused, under the formalities specified, could have a trial before the judge without a jury upon a plea of guilty. Article 12, C. C. P., as amended by section 3 (Vernon’s Ann. C. O. P. art. 12), reads in part: “It shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant, and said, evidence shall he accepted by the Court as the basis for its verdict [italics ours], and in no event shall a person charged be convicted upon his pica of guilty without sufficient evidence to support the same.” The use of the word “verdict” may be unusual as it applies to the conclusion of the court, but it conveys the idea of finality of a trial, which would be incomplete without the assessment of punishment, where the evidence authorizes it. If there was ever any doubt about the act of the 42d Legislature, chapter 43, authorizing the trial judge to assess the punishment in cases therein mentioned, the intention of the Legislature is again manifest in section 4, of said act, said section now being new article 776a, C. C. P. (Vernon’s Ann. C. C. P.). It provides that the court (judge) may suspend the sentence imposed when “the punishment assessed by the court shall not exceed five years.”

Appellant’s motion for rehearing is overruled.


author: CALHOUN, Judge.

text:
    BIRMINGHAM v. STATE.
    No. 15860.
    Court of Criminal Appeals of Texas.
    April 26, 1933.
    Carney & Carney, of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   CALHOUN, Judge.

The offense is burglary; the punishment, three years in the penitentiary.

The testimony showed that a smokehouse belonging to Elaseo Harper was entered and certain meat was taken therefrom. Some of this stolen meat was found in possession of the witness Gather and part of it was found under the floor of the house of the appellant. Gather, the accomplice, testified that he and the appellant and another committed the burglary. The appellant did not testify and made no affirmative defense.

This court’s attention is called to the fact of a variance between the allegations in the indictment as to the ownership of the burglarized house and the testimony offered in evidence as to the ownership of said house. The indictment charged that the burglarized premises belonged to A. Harper, while the testimony showed that the house alleged to have been burglarized belonged to Elaseo Harper. There is nothing in the record to show that Elaseo Harper was ever known as A. Harper or was ever called by that name. This may be a mistake in the record, but, however that may be, the indictment alleges that the burglarized house was the house of A. Harper. This is such a variance as requires a reversal of the judgment.

The general rule is that the ownership must be proved as alleged because it identifies the offense. 7 Tex. Juris. § 64; Schenk v. State, 76 Tex. Cr. R. 235, 174 S. W. 357. Branch’s Ann. P. C. § 2324, states that the rules as to alleging and proving ownership in cases of burglary are the same as in cases of theft, and cites Moore v. State, 59 Tex. Cr. R. 361, 128 S. W. 1115; Payne v. State, 67 Tex. Cr. R. 161, 148 S. W. 694; Whorton v. State, 68 Tex. Cr. R. 187, 151 S. W. 300; Powers v. State, 72 Tex. Cr. R. 290, 162 S. W. 832.

In the case of Willis v. State, 24 Tex. App. 487, 6 S. W. 200, 201, the conviction was for the theft of a horse alleged in the indictment to be the property of N. J. Smith. By bill of exception it was shown that on the trial of the cause the evidence as to the ownership of the horse was that it was the property of M. J. and not N- J- Smith. M. J. Smith testified that she was the owner of the horse and that her name was Martha Jane Smith and not N. J. Smith. In passing upon the case, Judge Willson used the following language: “The name of the owner of the property must be proved as alleged. The given name may be stated by its initials and the variance between the middle initial letter as alleged and as proved will be immaterial; but, if the variance be as to the first initial letter of the given name, it will be fatal, unless the proof shows that the owner was known as well by the name alleged as by the name proved.” See, also, Perry v. State, 4 Tex. App. 566; Jones v. State, 62 Tex. Cr. R. 637, 138 S. W. 703.

Because the evidence does not correspond with the allegations in the indictment with respect to the ownership of the house burglarized, the judgment is reversed and the cause remanded.

Reversed and remanded.

PER CURIAM.

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


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

text:
    HUNT v. STATE.
    No. 15280.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Rehearing Denied May 3, 1933.
    G. De Graffenried and Baskett & De Le<=, all of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, death.

In disposing of the major complaint made by appellant, viz., that the court below erred in refusing to submit to the jury his plea of former jeopardy, it may be admitted that prior to this conviction, and since the enactment qf our present murder statute, in the same trial court, and upon an indictment based on the same single act here involved and containing two counts, one charging murder upon malice aforethought, the other a voluntary killing without mention of malice, this appellant was found guilty of murder and his punishment fixed at death, from which judgment he appealed and the case was reversed by this court.

The enactment of our present murder statute was largely for the purpose of taking from murder the disturbing element of the degrees of the offense, and as now understood murder in this state is one offense and has no degrees. Herrera v. State, 117 Tex. Cr. R. 389, 36 S.W.(2d) 515. Certainly this court would not be justified in attempting to write an opinion whose effect would be to engraft upon the murder statute the fact of degrees in said offense. The insertion of two counts in an indictment for murder based on a single act of the accused — one count charging murder with malice aforethought by shooting with a pistol, and the other simply a voluntary killing by the use of such pistol at the same time and place — can in no sense be held the charging of two offenses, or of one offense in a different manner, method, or degree so as that a verdict of guilty under one of said counts, if followed by a new trial sought by and granted to the accused, could furnish legal basis for a plea of former jeopardy as against a subsequent trial on the other count. This appears almost self-evident. If not true, it would necessarily follow that, had the verdict on the former trial been based on the count charging malice, then, after new trial and upon retrial and a plea of jeopardy in proper form, it would have been the duty of the trial court to tell the jury, or submit to them, that the accused had been in jeopardy for the offense of murder without malice, i. e., a voluntary killing, and could not now be punished by the infliction of the penalty which might.have been given in such ease otherwise.

In Hirshfield v. State, 11 Tex. App. 207, Judge Hurt said that, in determining whether there be jeopardy in a given case, we must look to the acts and omission of the accused in solving the question of whether he had theretofore been tried for the “same offense” and not be controlled by the name given to such acts or omissions in the Code. Applying this, we note that the jury which tried appellant upon his first trial herein did not have submitted to them the offense of murder eo nomine as defined in the count alleging a killing with malice, but did have submitted to them the proposition that, if they found from all the facts and circumstances in evidence, beyond a reasonable doubt, that appellant with his malice aforethought shot and killed Cole with a pistol, they should find him guilty of murder and fix his punishment at death, or imprisonment for some period of years not less than two; and also that, if they did not find from the evidence that the killing was upon malice aforethought, or if they had a reasonable doubt of such fact, then they could not inflict a punishment of more than five years’ imprisonment in the penitentiary. Under these very explicit instructions the jury found appellant guilty of murder as charged in count No. 2, and fixed the penalty at death. Appellant appealed to this court, complaining that the verdict and judgment were erroneous because he had been found guilty under count No. 2, which omitted mention of malice, and that same could not, therefore, support the infliction of a penalty of more than five years fn the penitentiary. This court had no option but to uphold the complaint and reverse the judgment.

In Landers v. State, 114 Tex. Cr. R. 352, 25 S.W.(2d) 868, a jury gave the death penalty upon a finding of guilty of the count in the indictment which only charged a voluntary killing without any mention of malice. In reversing the case Judge Morrow said the verdict was contrary to the statute under which the accused was tried, and that, in receiving the verdict and entering the judgment condemning the accused to death, there was error- for which reversal should be ordered. It is more than doubtful if such verdict could be made the basis for a legal judgment, as was substantially held in Garza v. State, 39 Tex. Cr. R. 361, 46 S. W. 242, 73 Am. St. Rep. 927, where, under former murder statutes, a verdict simply finding the accused guilty of murder, without specifying any degree thereof, was set aside, and upon another trial was held not to afford basis for a plea of former jeopardy when tried for murder in the first degree. So also in Dubose v. State, 13 Tex. App. 425, on similar facts, the same conclusion was announced by Judge White, who said that the verdict of the jury was clearly insufficient and void, and it was the duty of the court to declare it a nullity, set it aside, arrest the judgment, and, upon a subsequent trial for murder of the first degree, to reject a plea of jeopardy based on such verdict. In Thomas v. State, 49 Tex. 36, the jury trying one for assault with a pistol returned a verdict of guilty for unlawfully carrying a pistol. This judgment was set aside, and, upon a subsequent trial, under the assault charge, a plea of jeopardy was presented, which was held by our Supreme Court of no avail. The correct principle is stated in Buster v. State, 42 Tex. 319, as follows: “It must clearly appear from the verdict not only that there is no conflict in the finding of the jury on the issue of the guilt.and the assessment of the penalty, but their determination in the one must be in harmony with, and supported by that in the other.”

In other words, while the purpose and intent of the jury first trying appellant for this offense to find him guilty of murder with malice was made manifest by the assessment of the death penalty after having been warned in the court’s charge expressly that they could not assess such penalty save in case they found beyond a reasonable doubt that he was actuated by malice, still the finding in the same verdict that he was guilty under a count which omitted the averment of malice was such an incongruity, so contradictory, so irreconcilable, as to make it in effect no verdict.

But appellant himself asked that the verdict and judgment be set aside and held for naught, and, if there could be question as to the illegality of such judgment, this action on appellant’s part would deprive him of his right to plead jeopardy. The subject has been often discussed. Ruling Case Law, § 152, vol. 8; People v. Ham Tong, 155 Cal. 579, 192 P. 263, 24 L. R. A. (N. S.) 481, 132 Am. St. Rep. 119, a case wherein the trial court gave to the jury a charge under which they convicted for robbery when the real accusation was grand larceny. The court held the verdict not a nullity, but that the accused having himself secured a reversal, his right to assert jeopardy was waived.

Appellant advances in his brief a number of propositions, each of which, as well as the authorities cited, has been examined and weighed. He cites a number of early cases as supporting the proposition that, where the indictment contains more than one count, and. but one is submitted to the jury, this amounts to a dismissal of the other. Weathersby v. State, 1 Tex. App. 643; Dalton v. State, 4 Tex. App. 333; Parks v. State, 29 Tex. App. 598, 16 S. W. 532; Stephens v. State, 36 Tex. Cr. R. 386, 37 S. W. 425, and others. Inasmuch as the indictment upon which the first trial herein was had was dismissed after the case was reversed, and the trial and conviction from which this appeal was had was upon a new indictment, these authorities, even if sound on their facts and in principle., which go no further than to hold that ai count not submitted was dismissed, would! hardly support appellant’s contention of jeopardy even if this were an ordinary case in its character. The dismissal was apparently with the consent of the accused. This court has always held that the dismissal of an indictment, or the discharge of a jury “with the consent of the defendant expressed or implied,” waives jeopardy. Parchman v. State, 2 Tex. App. 239, 28 Am. Rep. 435; Vestal v. State, 3 Tex. App. 653; Powell v. State, 17 Tex. App. 352. A count in an indictment has no more sanctity or weight than an indictment itself.

Appellant, however, goes further and cites authorities supporting the proposition that a conviction upon one of several counts charging the same offense is a bar to a subsequent indictment or prosecution for the offense set out in the counts not submitted, and that the state is concluded as to the counts not so submitted. He cites Johnson v. State, 97 Tex. Cr. R. 658, 263 S. W. 924; Hewitt v. State, 74 Tex. Cr. R. 46, 167 S. W. 49; Mizell v. State, 83 Tex. Cr. R. 305, 203 S. W. 49; also section. 421, vol. 1, Wharton’s Crim. Law (6th Ed.). What is said in Johnson’s Case, supra, and that of Hewitt v. State, supra, is entirely obiter dicta, and could have little application, if any, to a case such as we have here. In the Mizell Case, supra, there were two-counts in the indictment, one for rape and the-other for incest; both were submitted to the-jury in the charge. The jury found appellant guilty of rape, and, after reversal, the rape count being dismissed, he was tried and found guilty of incest upon the other count in the indictment. These facts clearly differentiate that case from the one before us. There are obiter dicta statements in the opinion not at all necessary to its decision, in line with what is said in the Johnson and Hewitt Cases, supra, with the soundness of which the writer is not at all satisfied, but contents-himself by saying that none of the cases cited as supporting such conclusions are upon, facts at all similar to those in the record before us. We also find in appellant’s brief citation of authorities supporting the proposition that a conviction for a lesser degree upon an indictment charging a higher is an acquittal of such higher degree. This but conforms to the command of our statute. See article 702, C. C. P.

Our statute, article 765, C. C. P., provides that, when a judgment is arrested (which must be at the instance of the accused), the effect is to place the accused in the same position he was before indictment or information was presented. See, also, article 759, C. C. P., which provides that the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. Article 852, C. C. P., says that upon reversal of a case by the Court of Criminal Appeals, the cause shall stand as it would in case a new trial had been granted by the court below.

Our conclusion in the case before us is that, the verdict being contrary to the statute, no legal judgment was or could have been entered thereon; also' that no division of the single offense of murder could be made effective by the insertion of an improper count in the indictment, and that upon grant of a new trial by reversal this case stood as it did before any trial was had, and that the trial court did not err in declining to submit to the jury appellant’s plea of former jeopardy.

Appellant objects to the sufficiency of the State’s predicate for the reproduction of the testimony of Hr. Powell who had testified at a previous trial of this case, and since, according to the state’s contention, had removed to the state of California. A witness swore that at the time of the former trial in 1928 Powell was stationed at Kelly Field in San Antonio, Tex., and that he left on November 1, 1928, and went to California, and at the time of this trial in 1931 said witness was stationed at Crissy Field, San Francisco, Cal.; that he was located at said aviation field. Witness said he knew Powell was in California because he had received numbers of radiograms from the officer at Crissy Field ad: vising that Powell was there, and had received one from Powell himself, and had a copy of one from Powell dated October 8, 1931. Witness further testified that he had the records of every soldier who had been on duty at Kelly Field, when he left, when he changed stations, and that he know Crissy Field was in the state of California, and that Powell was permanently stationed there. We think the predicate not insufficient. Parker v. State, 18 Tex. App. 72; Conner v. State, 23 Tex. App. 378, 5 S. W. 189; Jamail v. State, 99 Tex. Cr. R. 129, 268 S. W. 473. We do not think any of the other complaints made by appellant such as call for discussion.

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

MORROW, Presiding Judge

(concurring).

The writer is in agreement with the opinion written by Judge- LATTIMORE in regard to the disposition of the appeal, but is not in accord with all of the reasons advanced in the opinion leading to the result mentioned. The history of the case and the peculiarities which the record presents impel the writer to express his own views touching the proper treatment of the appeal. The matter has been before this court upon two previous occasions.

On the first trial, the appellant was convicted of murder and his pqnalty assessed at death. The judgment was reversed on appeal, as shown by the report of the case in 114 Tex. Cr. R. 256, 25 S.W.(2d) 1107, the opinion reading in part as follows: “The indictment herein contains four counts, counts 1 and 3 charging that the accused killed deceased with malice aforethought. Counts 2 and 4 charge that the accused killed deceased voluntarily ; there being therein no averment that the killing was upon malice aforethought. The verdict of the jury specifically finds appellant guilty under the second count in the indictment. Said count, having failed to charge that the murder was with malice aforethought, cannot be made the basis for a judgment of conviction carrying with it a penalty greater than five years’ imprisonment in the penitentiary.” Swilley v. State, 114 Tex. Cr. R. 228, 25 S.W.(2d) 1098.

In Ex parte Hunt, 118 Tex. Cr. R. 163, 40 S.W.(2d) 134, appears the opinion of this court in passing upon the appellant’s application for bail by way of habeas corpus. It was the appellant’s contention that the result of the former trial and appeal precluded the court from trying any offense growing out of the transaction in which the penalty of more than five years might be assessed. The judgment of the trial court denying the relief sought was affirmed on appeal, for the reason that the relief sought was not under the circumstances within the scope of a habeas corpus proceeding.

In the present appeal in which the appellant’s penalty was again assessed at death, he relies upon the result of the first trial and appeal, contending that his rights were transgressed in submitting to the jury on the present trial the issue of malice aforethought, and the action of the trial court in approving the verdict and entering the judgment assessing his penalty at death.

This conviction is the result of a trial upon the same indictment that was presented to the jury upon the first trial mentioned above. The indictment contained four nominal counts. One count appearing in the indictment charged that in committing the homicide the appellant “did voluntarily, with his malice aforethought, kill Samuel Cole by then and there shooting the said Samuel Cole with a pistol.” Following this subdivision of the indictment is the purported count charging that the appellant “did unlawfully and voluntarily hill Samuel Cole by then and there shooting-the said Samuel Cole with a pistol.” The nest subdivision of the indictment is like the first one quoted above, save that it charged that the homicide was committed with a rifle; and the last count in the indictment is like the second one discussed above, save that it charged that the killing took place with a rifle. As the indictment was written, the purported counts were not numbered, but the sequence was as above stated.

In the first trial the instruction given by the court was as follows: “You are, therefore, instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Dewey R. Hunt, in the County of Dallas, State of Texas, on or about the 3rd day of November, A. D., 192S, the time alleged in the indictment, with a pistol, the same being a deadly weapon, did with his malice aforethought, unlawfully and voluntarily shoot and thereby kill Samuel Cole as set forth in the second count of the indictment, then you will find the defendant guilty of murder as above stated, and fix his punishment at death, or by confinement in the State penitentiary for life, or for any term of years not less than two.”

In the same paragraph of the charge the jury was told that, unless from the evidence they believed, beyond a reasonable doubt, that the accused, in shooting the deceased (if he did so), was prompted and acted upon malice aforethought, as that term is defined, then they could not assess his punishment for a period longer than five years.

The verdict on the first trial was as follows:

“We, the jury, find the defendant guilty of murder as charged in the second count of the indictment, and assess his punishment at death.
• “[Signed] E. O. Raney, Foreman.”

Note is taken of the fact that on the first trial in the instruction to the jury quoted above, the court described the first subdivision of the indictment which contained the elements of the offense for which the appellant was subsequently put on trial; that is, he described the subdivision of the indictment charging that the appellant committed the homicide with malice aforethought, and that the penalty assessed might be death, life, or for any, term of years not less than two.

The Swilley Case, mentioned in the opinion disposing of the appellant’s first appeal, settled the difference of opinion among the members of this court relating to the form and substance of an indictment for murder. The conclusion there reached and stated was in substance that, in every indictment charging the offense of murder, it was essential that there be an averment to the effect that the accused acted upon his malice aforethought if the state expected to ask upon the trial for a verdict assessing the penalty at confinement in the penitentiary for more than five years. See Swilley v. State, 114 Tex. Cr. R. 228, 25 S.W.(2d) 1098. In the trial now under consideration, the indictment, as above stated, contained the necessary averment mentioned, but the appellant insists that the trial court and the jury, - in referring to the second count of the indictment, decided that the appellant was not guilty of murder with malice aforethought. This contention is urged in spite of the fact that it is manifest that in rendering the verdict the jury, in the light of the court’s charge, had in mind only the part of the indictment which contained the averment of malice aforethought and which authorized the penalty of death. It occurs to the writer that throughout the proceeding on the first trial of the appellant the subject of counts in the indictment was overstressed and to a degree misunderstood. In the Swilley Case, supra, and many others, it has been made clear (in fact the statute makes it so) that in charging the offense of murder it must be alleged that the killing was voluntary, and that the accused acted upon his malice aforethought. Upon the indictment so drawn, all phases of the offense of murder are cognizable. The necessity for a count charging that the offense was without malice does not exist; and, in the opinion of the writer, the propriety of such' a count is open to serious question. An indictment for murder with malice aforethought embraces all grades of the offense. It is not the office of counts to enumerate the different grades of an offense, but they serve the purpose of bringing before the court a variety of facts touching the nature of the of--fense and its grade. Of counts, it is said: “It is to vary what it meant to be one accusation, so, as, at the trial, to avoid an acquittal by reason of any unforeseen lack of harmony between allegation and proofs.”

See Bishop’s New Or. Proc. (2d Ed.) vol. 1, p. 846, § 422.

On the first trial of the appellant, the first paragraph of the indictment embraced all that was to be said upon the subject. It embraced everything that was said in the second paragraph, which paragraph was utterly useless.

' The office of counts is very definitely stated in Tex. Jur. vol. 23, p. 661, § 51, in the following language: “An indictment may charge in separate counts two or more distinct felonies of the same nature, differing only in degree, provided they relate to the same transaction. Subject to this qualification it is proper to join in different counts such felonies as rape and incest, attempt to rape and assault with Intent to rape, abduction and kidnapping, .■forgery and uttering a forged instrument, etc.”

When, in a single act, there may be committed one or two offenses, as, for example, ñncest and rape, and the pleader is in doubt ¡as to which the evidence will sustain, the ¡use of separate counts is illustrative. After ¡hearing the evidence, an election between the two counts may be made. It is upon such conditions that the principles of pleading in separate counts is sustained. In a case of homicide, the pleader, being in doubt as to the cause of death, may, by the use of separate counts charging different causes of death, make his choice by election after developing evidence.

On his first appeal, the appellant obtained from this court a judgment reversing and remanding his case. He then secured the full measure of his rights within the law. He filed in this court no motion for rehearing complaining of the judgment awarding him a new trial. Having reference to the language •of the court’s charge to the jury upon the ¡first trial, and considering same in connection with the verdict, the contention that in rendering the verdict the jury was guided by any other part of the indictment than that which charged that the offense was committed with malice aforethought and authorized the penalty of death is apparently untenable. In substance, the situation in which the appellant found himself upon his second trial 5s not regarded as materially different from that which confronted the accused in the Herrera Case, 117 Tex. Cr. R. 389, 36 S.W.2d) 515, 517. Herrera was charged with murder. The indictment contained no averment that he acted with malice aforethought. Upon his appeal the conviction was reversed. See Herrera v. State, 115 Tex. Cr. R. 526, 27 S.W.(2d) 211. On his subsequent trial, reported in Id., 117 Tex. Cr. R. 389, 36 S.W.(2d) 515, 517, he was again convicted and the death sentence assessed. On appeal, Herrera cited the case of Landers v. State, 114 Tex. Cr. R. 352, 25 S.W.(2d) 868. Discussing that phase of his contention, the following remarks are made:

“In the case of Landers v. State, 114 Tex. Cr. R. 352, 25 S.W.(2d) 868, 869, to which we have been referred, there was a verdict assessing the death penalty for murder upon an indictment omitting the averment of malice aforethought. In passing, it was stated that there was neither necessity nor propriety for charging separate counts as an indictment charging that the killing was upon malice aforethought was inclusive of all phases of the offense set forth in article 1257a, Vernon’s Ann. P. C. * * *
“‘.Nothing in the case mentioned holds or Implies that in the enactment of article 1257a, the Legislature created two offenses. But one offense was created, namely, that of murder.”

The enactment of the present statute was to repeal the law making murder'and manslaughter separate offenses.

Touching the Herrera Case, supra, the court used the following language: “In the present case, the indictment being irregular and the verdict having been set aside at the instance of the accused, cannot be regarded as a sound basis for the present claim of the appellant that by the verdict finding him guilty of murder and assessing the death penalty he was acquitted of the capital offense. Precedents illustrating the correctness of the conclusion stated are numerous.”

Many cases are cited in support of the proposition quoted from Sterling v. State, 25 Tex. App. 716, 9 S. W. 45, 46, 8 Am. St. Rep. 452, as follows: “If a defendant moves in arrest of judgment, or applies to a court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so may ordinarily be tried anew.”

For many reasons, each member of this court has given to the record serious thought and mature consideration, and all are in accord with the view that the proper application of the law of the state does not demand or authorize a reversal of the judgment. The writer therefore concurs in the affirmance of the judgment.

HAWKINS, Judge

(concurring).

The present conviction carries the death penalty as did the first, which was reversed on appeal [114 Tex. Cr. R. 256, 25 S.W.(2d) 1107], and for that reason the case has received the most careful consideration. The present writer is in accord with the general rule that, where an indictment contains more than one count, and a single count is selected, and there is submitted to the jury only the elements of the offense contained in that particular count, accused cannot be again put upon trial for offenses charged in an abandoned count. The opinion is entertained, however, that such rule-is not applicable and Cannot be here invoked. Upon the first trial the court required the jury to find present every element of a murder committed with malice aforethought, but erroneously directed if they so found to convict under a count which charged a “voluntary” killing only, at the same time authorizing a penalty which could not be assessed unless malice aforethought was present. The penalty -then assessed shows a finding of the jury that the killing was upon malice aforethought. To hold that under such circumstances appellant has been acquitted of a killing upon malice aforethought and could never again be put upon trial for that offense does not appear sound.

I therefore concur in the affirmance of the judgment.

On Motion for Rehearing.

HAWKINS, Judge.

Appellant has presented a strong motion for rehearing supplemented by oral argument presenting his views in a most persuasive manner. We feel that nothing can be said in addition to what is contained in the several opinions of the members of this court. The same conclusion was reached by all of us. There may be expressions in some of the opinions with which other members of the court are not in accord, but there is no difference among us as to the result announced being correct. On account of the novelty of the question arising under a new statute which has been the source of trouble in its interpretation to both trial and appellate judges, and because of the extreme penalty inflicted, we have given the matter our best individual and joint consideration. Nothing we might further say would accomplish more than a multiplication of useless words.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    Ex parte GOODE.
    No. 16021.
    Court of Criminal Appeals of Texas.
    April 26, 1933.
    Roy I. Biggs and Hill D. Hudson, both of Pecos, for appellant.
    Henry G. Russell, Richard B. Toll, Co. Atty., and William L. Kerr, Dist. Atty., all of Pecos, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Appellant is charged by complaint with the offense of murder. Through habeas corpus proceedings in the district court he sought bail. From an order of the court remanding him without bail this appeal is taken.

Upon the hearing two confessions were introduced in evidence, showing proper warning in compliance with article 727, CL C. P. In the first confession appellant stated that he shot deceased, Fane Downs, while-he (deceased) was putting some air into his-automobile tires. At this point we quote-from the confession: “As Bob Baker went into the garage to get me a crank I went with him and as Bob went back on into the garage to get another crank, I turned and pulled a pistol from my pocket and walked rap to about six feet from Fane Downs and then f shot Fane Downs under the right arm. Fane Downs’ right side was to me. He turned after I shot him and I shot two or three more shots until Downs fell and then I quit shooting.” In the second confession appellant stated that about three years prior to the homicide he had had some trouble with deceased over some water, and that deceased had attacked him with an axe handle. It was stated further in the confession that he told deceased at the) time that he had better-kill him or he would get him. Further, the confession states that appellant did not have-an opportunity to kill deceased until he) met him at the garage on the occasion of the homicide.

Corroborating the confession was the testimony of a state’s witness to the effect that he heard the shots at the garage and. saw-some bullets hitting in front of the car where-deceased was standing; that immediately-after the shots were fired he saw deceased run some distance and then fall; that he found that deceased had been shot; that appellant had been present immediately prior to the shooting, but he did not know where he was at the time the shots were fired. In further corroboration of the confession, it was agreed that deceased died from the effect of gunshot wounds.

, The foregoing comprises substantially all of the evidence heard upon the application.

We do not agree that appellant is held without bail upon his uncorroborated confession. While a confession should be corroborated, it is not required that the corroborating evidence be of such cogency as to establish the commission of the crime by the accused. The rule prevailing in this state is that, there being evidence of death by criminal agency, the confession of the accused is available to aid the proof of the corpus delicti, including the criminal agency of the accused. See Johnson v. State, 91 Tex. Cr. R. 184, 249 S. W. 1056. We deem the corroborating evidence sufficient.

Bail is a matter of right, except in capital cases where the proof is evident. “Proof is evident” if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered. See Ex parte Peddy, 118 Tex. Cr. R. 175, 42 S.W.(2d) 605, and authorities cited. Giving application to the rule, we are constrained to uphold the action denying bail.

The judgment is affirmed.

PER OURIAM.

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


text:
    MILLER v. STATE.
    No. 15715.
    Court of Criminal Appeals of Texas.
    April 26, 1933.
    Early & Johnson, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus-^ • tin, for the State.
   CALHOUN, Judge.

The offense, rape; the punishment, 7 years in the penitentiary.

The facts in brief are as follows: At the time the offense was alleged to have been committed, the prosecutrix was 16 years of age and the appellant was 17. It seems from the testimony of the prosecutrix that the appellant and the prosecutrix and others had attended a dance at the Howard Payne Academy, and, after leaving the dance, the appellant and the prosecutrix and another couple rode around for a while and drank some wine. Subsequently they took the other young lady home and the other boy, one Drake, then got out of the car. The appellant and the prosecutrix then drove around together, both of them driving the ear at different times. The prosecutrix ran into a post near a park while driving, and the appellant then drove the car into the park and got out to see what damage had been done to the car; the prosecutrix remaining in the car, according to her testimony. The prosecutrix 'then got out of the car and sat on the running board in order to let the appellant get some tools from under the seat, and then sat down on the ground when the appellant told her he would have to get some tools out of the tool box on the running board. After the appellant had examined the car, he suddenly jumped on the prosecu-trix and over her protests and against her struggles succeeded in having carnal intercourse with her.

It is made to appear by bill of exception No. 2 that, before announcing ready for trial, appellant filed a motion to the effect that he had not been served with a copy of the indictment, and requested that a copy of the indictment be furnished him as required by law, and that the cause be postponed for 2 days in order that he might have sufficient time to prepare for trial and that the court hear evidence on his motion. There is nothing in the bill of exception or the record to show that any contest of said motion was made. The motion alleged that the appellant was indicted in said cause on May 26, 1932, and at the time said indictment was returned into court he was incarcerated in the Brown county jail at Brownwood, Tex., where he had been confined for some 2 weeks on said charge; that, at the time the capias was issued and served on him, he was still confined in said jail, and at the time of so being served with the capias he was not served with a certified copy nor with a substantial copy of the indictment, and further showed that at no time theretofore or since had he waived the right to have said copy served on him. The bill further shows that the court required the clerk to furnish the appellant with a copy of the indictment pending against him, and that the same was furnished on said date; that the court refused to allow a postponement for 2 days in order that he might prepare for trial, and ordered the appellant to go to trial on said date, to which action of the court the appellant in open court excepted.

In addition to the facts above stated, it is shown that at the time • the request was made there had been no waiver on the part of the appellant to have a copy of said indictment served upon him, and the case was called for trial and tried at the same term of court the indictment was returned, and there had been no postponement of said case prior to the time it was tried.

It has often been held by this court that, by virtue of article 1, § 10, of the Constitution, one is entitled to a copy of the charge against him. The Legislature has enacted certain articles of the Code of Criminal Procedure which govern the proceedings of the trial of-criminal cases in this state. Those which control the procedure involved in the question now before this court are articles 487, 488, 514, and 515 of the C. C. P. Article 487 provides that in every case of a felony, when the accused is in custody, or as soon as he may be arrested, the clerk of the court where an indictment has been presented shall immediately make a certified copy of the same, and deliver said copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the accused. Article 488 provides that, upon receipt of such writ and copy, the sheriff shall immediately deliver such certified copy of the indictment to the accused and return the writ to the clerk issuing the same, with his return thereon, showing when and how the same was executed. Article 514 provides that in all cases the defendant shall be allowed 2 entire days, exclusive of all fractions of a day after his arrest and during the term of the court to file written pleadings. Article 515 provides that in cases where the defendant is entitled to be, served with a copy of the indictment, he shall be allowed the 2 days mentioned in the preceding article to file written pleadings after such service.

In the case of Holden v. State, 44 Tex, Cr. R. 382, 71 S.. W. 600, it was held that articles 487 and 488 of the C. C. P. were mandatory, and the said articles required the court in every case of felony, when the accused is in custody, etc., to have the clerk, when the indictment is presented, make out a certified copy of the same and deliver it to the sheriff, who was required to serve the same on the defendant, and that articles 514 and 515 of the C. C. P. indicated that the purpose of this service of the copy of the indictment was to allow 2 entire days after the ai'rest of the defendant and after service of a copy of the indictment in which to prepare and file written pleadings.

In the case of Brewin v. State, 48 Tex. Cr. R. 51, 85 S. W. 1140, it appears that, when that case was called for trial, the appellant asked for a postponement for 2 days because she had not been served with a copy of the indictment, which request for postponement was overruled. It further appears that, when the capias was served on the appellant the day following the indictment, she was in jail, but subsequently was released on recognizance. When appellant asked for the postponement of the trial on account of the failure to have a copy of the indictment served upon her and for 2 days in which to prepare for trial, the court ordered the clerk to furnish appellant with a copy of the indictment which was done, but the court refused to postpone the case for 2 days and forced the appellant to proceed with the trial. It was held by Judge Davidson in that case that under the showing made appellant was entitled to the postponement upon the grounds that this was a requirement of the statute and under the unbroken line of decisions construing the statutes, citing, among other cases, in support of said contention the case of Holden v. State, supra.

In the case of Herd v. State, 111 Tex. Cr. R. 402, 13 S.W.(2d) 110, it was held that the mere fact that the accused or his attorney could have demanded a copy of the indictment earlier or that he might have examined the original indictment does not constitute a waiver, citing in support of said holding Matheson v. State, 92 Tex. Cr. R. 208, 241 S. W. 1013; Gillispie v. State, 94 Tex. Cr. R. 241, 250 S. W. 681.

We find in the record no previous words or conduct on the part of the appellant sufficient to constitute a waiver of his right to demand a copy of the indictment and the right to a postponement of the case for 2 days after the service of a copy of said indictment. The holdings in the cases above cited have not been overruled in any cases we have been able to find or that our attention has been called to, and it will be seen that, under the construction placed upon said articles above quoted, certain rights are given to appellant, and the courts are not authorized to ignore said rights unless they have been waived or said provisions of said articles quoted have been substantially complied with.

Appellant also complains of the refusal of the trial court to quash the special venire summoned in this case and also in refusing to grant his first application for a continuance or to give him time to fully prepare said application. There are also several bills of exception complaining of the argument of the district attorney and also the refusal of the trial court to charge the jury to disregard the same. None of said questions are likely to occur on another trial of this case, and, as the case will have to be reversed upon another ground, we deem it unnecessary to discuss said complaints.

Because of the refusal of the trial court to allow the appellant 2 days’, time as required by law after the service of the copy of the indictment, the judgment is reversed, .and the cause remanded.

IPER 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.