text:
    BRASHEARS v. LAMAR COUNTY.
    No. 4245.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 14, 1932.
    Rehearing Denied Jan. 12, 1933.
    R. E. Eubank and H. B. Bfijmingham, of Paris, for appellant.
    Dohoney, Beauchamp & Lawrence, of Paris, for appellee.
   SELLERS, J.

The appellant brought this suit to recover certain fees which it is alleged were wrongfully paid over to the county by appellant as county tax collector under a mutual mistake of law and fact.

Appellant’s petition alleges that he was the duly elected and acting county; tax collector for Lamar county from December 1, 1916, to December 1, 1920. That he was under What was known as the Maximum Pee Bill which became effective in-1913 (Acts 1913, c. 121); that his salary under such fee bill was $2,750, plus one-fourth of the excess fees collected over and above his salary. It was further alleged that during the time he was. county tax collector he issued 29,530 poll' taxes and certificates of exemption for which! he was entitled under the law to a fee of 10 cents each from the county. Appellant also alleged that during the time he was county tax collector he collected the sum of $14,257.-16 delinquent taxes; that under the Acts of the Legislature passed in 1915 (chapter 147), he was entitled to a fee of 10 per cent, of the-delinquent taxes so collected; and that his total fee for such service was $1,425.71. It is further alleged that during the time he was tax collector he made and caused to be published under the terms and provisions of the law what is known as the delinquent tax record, and under the Acts of the Legislature of 1915 he was entitled to a fee of 5 cents per line from Lamar county fof-each line thereof, or a total of $1,205.60. It is alleged that such fees were not a part of the fees coming under the maximum salary, but were ex officio fees which were allowed him by law in addition to the sum allowed under the Maximum Pee Bill. Appellant’s petition contains the following allegations: “Plaintiff further alleges that the amounts stated herein as being due by the County of Lamar for the issuance of poll tax receipts and certificates of exemption and also the amounts due as fees for collecting delinquent taxes and as fees for the prep aration of the delinquent tax record were collected by him but that the same under an erroneous ruling of the Attorney General of the State of Texas were reported by him as excess fees of office and that the said amounts were returned to Lamar County and that such amounts were returned under a mutual misunderstanding both on the part of the plaintiff and the defendant as to the law and facts in the case. Both plaintiff and defendant believing under such erroneous ruling and such mutual misunderstanding of law and fact that said fees should be accounted for as fees of office.”

Appellee’s answer contained, among other matters, a plea in abatement and general demurrer, both of which were sustained by the court, and judgment was accordingly entered against appellant, from which he has duly prosecuted this appeal. Appellee’s plea in abatement is as follows:

“Now comes defendant in the above styled and numbered cause and says that plaintiff ought not to have and maintain this suit for the following reasons:

“As appears from plaintiffs petition this suit purports to have been brought under Act 41st Legislature, first called session. The right to recover said fees of office and commissions for collecting delinquent taxes, attempted to be conferred by said act, had not heretofore existed. It appearing from plaintiff’s first amended original petition that the monies claimed as commissions for collecting delinquent taxes, were paid to the County Treasurer under an erroneous conception as to the law, without any mistake as to the facts and circumstances under which said payments were made, 'defendant was under no legal or moral obligation to return the same to plaintiff. Said act of the Legislature having been repealed by act of the same legislature passed at the fourth called session, known as Chapter 3, page 3, General Acts of said Session, and there being in said repealing act no saving clause as to pending suits or claims, plaintiff’s statutory cause of action, if any he had, ceased to exist.
“Wherefore, defendant prays that this suit be abated and dismissed.”

Before taking up the plea in abatement and the general demurrer, it would be well to note that all fees sued for by appellant, except those for compiling the delinquent tax rolls and the fee of 10 per cent, of all delinquent taxes collected, were subject to appel-lee’s plea of limitation, and while the court did not pass on the limitation plea in its judgment, in view of further proceedings in the trial court in this case, we deem it worth while to make this observation.

This leaves appellant’s cause of action stripped of all fees except those alleged to be due appellant for compiling the delinquent tax record and the commission for collecting delinquent taxes. The suit with reference to these fees is maintainable under the Acts of Legislature of 1929, First Called Session, chapter 95 (see Vernon’s Ann. Civ. St. art. 7331a note), which provides as follows:

“Section 1. That any person in the State of Texas who formerly served as a duly elected and qualified Tax Collector of any county of this State while subject in that capacity to the terms and provisions of the law known as the Maximum Fee Bill, and who, during such time, collected and paid over to the Treasurer of such county the fees and commissions set out and provided for in Section 3 of Chapter 147, Acts of the Regular Session of the-34th Legislature, 1916, or any part of such fees and commissions, is hereby authorized to bring suit in any competent court of this State against such county so served by him to collect and recover all such fees and commissions so paid over by him, provided such suit shall be brought in the county where such fees and commissions were collected and erroneously or wrongfully paid over as here-inabove set out. * * *
“Sec. 5. The fact that the Supreme Court of Texas in the case of Bitter v. Bexar County, 11 S.W.(2d) 163, has held that Section 2, Chapter 64, of the Acts of the Second Called Session of the 36th Legislature, 1919, is unconstitutional, and the further fact that many Tax Collectors, acting under said Act, have erroneously paid money to some of the counties of this State,’create an emergency, and a public necessity that the Constitutional Rulé requiring bills to be read on three several days be suspended, and that this Bill be put on its third reading and final passage, and it is so enacted.”

This act was repealed in 1930 by chapter 3, General Laws, 41st Legislature, Fourth Called Session.

Appellee’s plea in abatement attacks the above act of 1929 as being retroactive and void. This identical contention was made in the case of Limestone County v. Robbins, 120 Tex. 341, 38 S.W.(2d) 580. The facts in the Robbins Case are in all material respects the same as those in this case, and it was there held by the Commission of Appeals that the 1929 act did not violate section 16 of article 1 of the Constitution, which prohibits the passage of any retroactive law. The only difference in the facts in this case and that of Limestone County v. Robbins is that the fees here sued for accumulated in the years 1916, 1917, 1918, and 1919, inclusive, whereas the fees sued for in the Robbins Case accumulated in the years 1923, 1924, 1925, and 1926, inclusive. As we construe the act of 1929, it was intended to apply to tax collectors coming under the general fee bill since the passage of the Acts of 1915, chapter 147, General Laws, 34th Legislature, and that the 1929 act did not limit a recovery to those tax collectors who had paid such fees to the county after passage of chapter 64 of Acts, Second Called Session of 36th Legislature, 1919, as the emergency clause of the 1929 act might indicate.

Appellant’s petition may be lacking in many respects, but we deem it sufficient to state a cause of action as against a general demurrer.

Believing that the trial court was in error in sustaining appellee’s plea in abatement and general demurrer, the judgment of the trial court will be reversed and the cause remanded.


source: Caselaw Access Project

author: MORROW, P. J.

license: Public Domain

text:
    BOMAR v. STATE.
    No. 15515.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    . B. R. Reeves, of Palestine, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

Jack Porter, the alleged purchaser, testified that he purchased whisky from the appellant at about 10 or 11 o’clock in the morning of December 15, 1931: Porter described himself as an “undercover man.” According to his testimony, the whisky was bought by him in order to entrap the appellant. In the course of his testimony the witness said that in the pursuit of his occupation he drank whisky as one of his professional duties. Several hours subsequent to the alleged purchase of the whisky by Porter, a search warrant was obtained by Lively, the sheriff, and the home of the appellant was searched and whisky found therein. Appellant advanced the theory that he was not at home at the time of the alleged purchase and by circumstances combatted the claim that he had sold the whisky. The defense of alibi was presented to the jury in the charge of the court.

Erom bill of exception No. 1, it appears that the appellant did not testify in his own behalf but supported his theory of alibi by the testimony of three witnesses.

In his argument to the jury, counsel for the state used the following language: “W. N. Lively testified when he searched the house of the defendant he found liquor and that the defendant then made the statement that he had to make his living selling liquor, which shows that the defendant was a bootlegger. If what Mr. Lively said, was not true, the defendant could have introduced evidence to disprove it; however, there was no one present to contradict Mr. Lively except the defendant and he does not have to testify.”

Appellant objected to the remarks italicized above and requested that they be withdrawn from the consideration of the jury. In failing to comply with this request, we are constrained to regard the action of the court as error-requiring a reversal of the judgment. The contention that the remarks of counsel offended .against the inhibition in article 710, C. C. P., against reference to or comment upon the failure of the accused to testify, apparently cannot be successfully controverted.' Citation of authorities is deemed unnecessary. Many of them will be found collated in Vernon’s Ann. Tex. C. O. P. 1925, vol. 2, p. 751, § 35. It is not to be implied that the withdrawal of the remarks would have cured the error.

The judgment is reversed, and the cause remanded.


author: OURETON, O. J.1

text:
    MANRY v. ROBISON et al.
    No. 5388.
    Supreme Court of Texas.
    Dec. 22, 1932.

      Ben H. Powell, of Austin, for relator.
    James Y. Allred, Atty. Gen., Geo. T. Wilson and R. W. Yarborough, Asst. Attys. Gen., and Andrews, Streetman, Logue & Mobley, Homer Mabry, Rex G. Baker, John Q. Weath-erly, and E. E. Townes, all of Houston, for respondents.
   OURETON, O. J.1

This action for original mandamus is by L. Y. Manry, relator, against the respondent Walker, Commissioner of the General Land Office, to require the issuance of a mineral permit to prospect for oil and gas, under the terms of designated statutes, upon 124.4 acres of land, embraced in an abandoned bed of the Brazos river, in Fort Bend county. The respondent Cooper seeks affirmative relief by way of mandamus to require the Commissioner to sell him the land under certain statutes and laws of the state. The respondents Sam Rosen, E. H. Hammond, Sugarland Industries, and Humble Oil & Refining Company oppose the issuance of both writs of mandamus, upon the ground that they severally own the land in controversy, and that the state has no power to either lease or sell the same. The respondent Walker contends that the land belongs to the state, but says that neither of the mandamuses prayed for should issue, for reasons which he sets forth in his pleadings.

The land involved is designated on the map attached as “L. V. Manry Sur. No. 1,” a portion of which is occupied by water, as shown. This land formed a part of the bed and channel of the Brazos river prior to the year 1914. During the spring of that year, by an avul-sive change, the river cut across the neck of the bend, straightened its course, abandoned the land shown as a bed, cut, and has since occupied, a new channel, indicated by the lines between which the words “Brazos River” appear.

The land involved is out of the Williams, Allcorn, Little, and Jones leagues, granted to Austin’s colonists by Mexico prior to the independence of Texas. All were riparian at the time, except the Allcorn league. During the course of a century, however, the river by erosion cut into that league, and at the time of the avulsion in 1914 the river was touching all four of the surveys. All of the grants were, the relator states, “made in accordance with the laws then prevailing in the Mexican Nation, and passed to the respective grantees such rights, if any, to the bed of the Brazos River as would accrue to grantees from the Mexican Government under the laws then in force in that country.” The Brazos river in the locality involved runs generally from the northwest to the southeast, and was in 1824, the date of the earliest grant, and at all times since has been, a navigable stream under the laws of Spain, Mexico, and Texas. The abandoned channel of the river, in the form of a “horse shoe bend,” shown on the map, according to the pleadings, “has become a fresh water lake in the sense that during periods of high water practically all of the area included in said abandoned river bed is covered with water, while a large part of said abandoned river bed has water in it all the time; that the balance of said abandoned river bed, being on higher ground, has no water in it or upon it.except during high floods.; ⅜ * |⅜ that none of the area involved, is within the tide water limits of the Gulf of Mexico?’ (Italics ours.)

Opinion.

The controlling question is whether or not •the ¡abandoned bed of the river-is the property of the state or the property of the present owners of' the Williams, Little, Jones, and Allcorn leagues. We have concluded that it is the property of the last-named parties, and that the writs of mandamus should be refused. Our reasons for these conclusions will now be stated.

The rule is an elementary one that, in determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. 9 Texas Jurisprudence, pp. 301, 302, 303, §§ 4, 5; p. 304, § 6; p. 315, § 16; Mitchell v. Bass, 33 Tex. 259, 260; Miller v. Letzerich (Tex. Sup.) 49 S.W.(2d) 404, 406, and authorities there cited; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202. 4 Ruling Case Law, p. 83, § 14; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; O’Fallon v. Daggett, 4 Mo. 343, 29 Am. Dec. 640. Under the laws of Mexico in effect at the time of these grants, the bed of the Brazos river then occupied by it was the property of the government, and upon the change of sovereignty became the property of the Republic of Texas. State of Texas v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202. Under the Mexican civil, law, that portion of the Allcorn league occupied by the river by erosion subsequent to the grant became the property of the sovereign. Las Siete Partidas, Part 3, Title 28, Law 31; Hall’s Mexican Law, § 1408. See, also, Mexican Code of 1871 in Hall’s Mexican Law, § 1698; authorities post. It is apparent, therefore, that according to the Mexican civil law all the property in controversy belonged to the state at the time of the avulsion in 1914.

When the river, however, abandoned its channel, the abandoned bed under the laws of Mexico became the property of the owners of the riparian or adjacent lands. Hall’s Mexican Law, §§ 1399, 1408. See, also, section 1698; Johnston’s Civil Law of Spain, p. 102; Schmidt’s Civil Law of Spain and Mexico, p. 50, art. 214; White’s New Recopilacion of the Laws of Spain, etc., vol. 1, p. 90; Las Siete Partidas, Part 3, Title 28, Law 31; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202; Farnham on Waters, vol. 1, § 49.

I-Iall’s Mexican Law, in part, declares:

“Sec. 1399. Beds of Streams. — The bed, mother, or ground where the running waters go must he divided between the riparian proprietors according to the frontage of their estates, in case of remaining dry through the effect of the weathef, by any event of vis major, act of God, or by the change of the course of the water?’
“Sec. 1408. Change of the Course of the River — Overflows—Increase of Land. — If a river changes its course for a new place, leaving the old one dry, this will be of the owners of the immediate estates, each one talcing so much thereof as may be equal to the frontage of his estate; and the owners of those where it newly runs lose the dominion of the neto bed, by its being made public as the river,. and as the bed wMch is abandoned was?’ (Italics ours.)

The other ¡Mexican and Spanish authorities cited, including. the Partidas, state the rule in the same manner as Hall.

Associate Justice Greenwood, in the Grubstake Investment Association Case, supra, quotes the rule from the Partidas, and analyzes and applies it in a manner which eon-.clusively shows that-a river bed, under the Mexican civil law, upon abandonment becomes the property of the adjacent landowners.

The Roman law, including the Institutes of Justinian, was the basis of the Partidas and the laws of Spain and Mexico. Under the Roman law, the ownership of river beds, while still occupied as such, seems to have been involved in some doubt. The American courts, however, have generally regarded it as placing the title to the soil beneath running water in the public. Farnham on Water Rights, vol. 1, § 49; State v. Grubstake Investment Association, supra; Buckland’s Roman Law, pp. 212, 213; Canal Appraisers of New York v. People, 17 Wend. (N. Y.) 571. But as to the ownership of the abandoned, beds of rivers, the Eoman law left no room for doubt. Under that system of laws the abandoned beds of rivers became the property of the riparians. Moyle’s Institutes of Justinian, p. 35; Scott’s Civil Law, vol. 9, pp. 156, 157, 167, 174 (Justinian’s Digest); Bowyer’s Modern Civil Law, p. 85; Dropsie’s MacKeldey’s Roman Law, § 271; Canal Appraisers of New York v. People, 17 Wend. (N. Y.) 571, 596; Dwinel v. Barnard, 28 Me. 554, 569, 48 Am. Dec. 507; Farnham on Waters, vol. 1, § 49.

That the land in controversy under the Mexican civil law became the property of adjacent landowners, upon its abandonment by the river, in view of the authorities, we believe, does not admit of any doubt. It is urged, however, that the adoption of the common law in 1840 made a different rule of decision applicable with respect to the rights here involved.

The act of 1840 adopted the common law as the rule of decision, and repealed- the laws of Mexico, “except such laws as relate exclusively to grants and the colonization of lands in the State of Coahuila and Texas,” etc. Gammel’s Laws, vol. 2, pp. 177, 178.

The insistence is made that under this act the Mexican civil law, which vested the title to abandoned river beds in the adjacent landowners, was repealed, and that since the river bed in the instant case was not abandoned until 1914, the rule of the common law should apply, and not that of the Mexican civil law. With this view we cannot agree.

The grants involved in suit are all colonization grants, being within and a part of Austin’s colony. Each grant recites that the grantee was put “in possession of said lands tmth all fheir uses, customs, privileges, and appurtenances, for him, his heirs and successors,” and as to all, except the Allcorn league, there was included in the above clause “entrances and -outlets.” These rights thus embraced within the grants were sedulously preserved to the grantees by the Constitution' and laws of the Eepublie of Texas. The laws under which the grants were made, including the Mexican civil law, weie continued in force by the Constitution adopted on March 16, 1836, and ratified by the people in September following. Schedule to the Constitution of 1836, § 1; 1 Gammel’s Laws, p. 1077; Motl v. Boyd, 116 Tex. 82, 104, 286 S. W. 458.

Sections 7 and 13 of the Declaration of Eights of the Constitution of 1836 prohibited the denial of any privilege or the taking of any property except by due process of law. 1 Gammel’s Laws, p. 1083. Can it be doubted that the lands granted to the remote grantors of the respondents Eosen et al., “with all their uses, customs, privileges and appurtenances,” are within these protective clauses of the Constitution, and that any act of the Congress of the Eepublie attempting to deprive the grantees of their lands, or any use, custom, privilege, etc., embraced within their grants, would have been void? We. think not. Nor did the Congress of the Eepublie attempt to do so by the adoption of the common law as the rule of decision. This act, as we have seen, although repealing the Mexican laws, specially excepted from the repealing provisions certain laws then in force, including the Mexican law relating exclusively to grants and the colonization of land. The exceptions were intended to embrace all rights comprehended by the Mexican colonial grants, including the rights of riparians. Motl v. Boyd, 116 Tex. 82, 102, 286 S. W. 458.

The Mexican colonization grants were confirmed from time to time by the Eepublie of Texas, and the Constitutions of 1845 and 1876 each provided ■ that rights of property acquired under the Constitution and laws of the Eepublie of Texas (which necessarily included the Mexican civil law down to 1840) should not be divested, but “the same shall remain precisely in the situation which they were before the adoption of this constitution.” Motl v. Boyd, 116 Tex. 82, 105, 286 S. W. 458; Const. 1845, art. 7, § 20; Const. 1876, art. 16, § 18.

The rights of the Mexican grantees as they existed on March 2, 1836, were likewise preserved to them by the treaty of Guadalupe Hidalgo. Thorpe’s American Charters, vol. 1. p. 389. Against the conclusion stated above, it is urged that the right of the ripari-ans to succeed to the title of a river bed upon its abandonment by the river, was not a property right, but a mere 'rule of law under which a property right would not vest until the river had actúally abandoned its bed; and therefore not within the exceptions to the repealing provisions of the act of 1840 (2 Gammel’s Laws p. 178), nor the protective clauses above cited from the Constitutions of the Eepublie *and state. With that insistence we cannot agree. It is true that the avulsive change by which the bed of the river was abandoned did not occur until 1914, but we think the right of the riparians to succeed the state in title to the river bed by reason of such occurrence was a vested one, ■part of the original grants when they were made by the government of Mexico, just as were the rights to alluvion hy accretion and adjacent soil uncovered by reliction.

The authorities all agree that under both the civil law (including the Mexican civil law) and the common law, when a river by erosion occupies land previously unoccupied by it, the owners lose title; that is, the boundary line between the coterminous estates follows the movement of the stream, with the result that one owner loses land by erosion, and the other acquires land not previously owned by him, by accretion or reliction. This has been the established law of civilized nations since the Institutes of Gaius were written, nearly 1,800 years ago. Denny v. Cotton, 3 Tex. Civ. App. 634, 22 S. W. 122 (writ refused); Rosetti v. Camille (Tex. Civ. App.) 199 S. W. 526 (writ refused); Arkansas v. Tennessee, 246 U. S. 158, 173, 38 S. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258; Thompson on Real Property, vol. 3, §§ 2440, 2441; 45 Corpus Juris, p. 524, § 192; Angell on Watercourses (6th Ed.) §§ 53 to 57; Gould on Waters (3d Ed.) §§ 155, 162; Farnham on Water Rights, vol. 1, §§ 69, 70; vol. 3, §§ 845, 846; 4 Ruling Case Law, p. 88, § 19; Kent’s Commentaries (13th Ed.) vol. 3, p. 597 (428); Cooley’s Blackstone (3d Ed.) vol. 1, pp. 479, 480 (261); Coulson & Forbes on Waters, pp. 36, 80, 93; Halsbury’s Laws of England, vol. 28, p. 362, §§ 658 to 661; Hall’s Mexican Law, §§ 1408, 1694; Siete Partidas, Part 3, Title 28, Law 26; Johnston’s Civil Law of Spain, pp. 101, 102; Schmidt’s Civil Law of Spain and Mexico, pp. 49, 50; Moyle’s Institutes of Justinian, Book 2, Title 1, § 20, p. 38; Scott’s Civil Law, vol. 9, pp. 156, 157 (Justinian’s Digest); vol. 1, p. 119 (Institutes of Gaius); Grotius’ Rights of War and Peace, ch. 3, §§ 7, 8.

These rules obviously affect property rights, and the courts, with practically unanimity, agree that the rights of alluvion by accretion and to soil uncovered by reliction are vested property rights, part of the original grant, of which the owner cannot be deprived by legislative enactrdent. Thompson on Real Property, vol. 3, §§ 2445, 2441; 45 Corpus Juris, pp. 525, 526, § 192; Farnham on Waters, vol. 1, §§ 63, 66, 69, 70, 70a, 71; vol. 2, §§ 845, 846; Gould on Waters (3d Ed.) §§ 148, 155, 156; 27 Ruling Case Law, p. 1071, §§ 11, 12, 13, 14; St. Clair County v. Lovingston, 23 Wall. (U. S.) 46, 23 L. Ed. 59; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dec. 624; Meyers v. Mathis, 42 La. Ann. 471, 7 So. 605, 21 Am. St. Rep. 385; Freeland v. Pa. R. Co., 197 Pa. 529, 47 A. 745, 58 L. R. A. 206, 80 Am. St. Rep. 850; Brundage v. Knox, 279 Ill. 450, 117 N. E. 123; Kennedy v. Municipality No. 2, 10 La. Ann. 54; Com. of Mass. v. New York, 271 U. S. 65, 46 S. Ct. 357, 70 L. Ed. 838; Stevens v. Arnold, 262 U. S. 266, 43 S. Ct. 560, 67 L. Ed. 974; McGill v. Thrasher, 221 Ky. 789, 299 S. W. 955; Hohl v. Iowa Cent. R. Co., 162 Iowa, 66, 143 N. W. 850; Hinckley v. Peay, 22 Utah, 21, 60 P. 1012; Barrett’s Syndic v. New Orleans, 13 La. Ann. 105; White v. Leovy, 49 La. Ann. 1660, 22 So. 931; Knudsen v. Omanson, 10 Utah, 124, 37 P. 250; Patterson v. Gelston, 23 Md. 432; Washougal & L. T. Co. v. D., P. & A. Nav. Co., 27 Wash. 490, 68 P. 74; Stern v. Fountain, 112 Iowa, 96, 83 N. W. 826; Baltimore & O. Ry. Co. v. Chase, 43 Md. 23; Hagan v. Campbell, 8 Porter (Ala.) 9, 33 Am. Dec. 267; Yates v. Milwaukee, 10 Wall. (U. S.) 497, 19 L. Ed. 984; Cooley’s Blackstone (3d Ed.) vol. 1, pp. 479, 480; Kent’s Commentaries (13th Ed.) vol. 3, p. 597.

The authorities cited to the contrary, Western Pacific Ry. Co. v. S. P. Co. (C. C. A.) 151 F. 376; Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L. R. A. 632, and Taylor v. Underhill, 40 Cal. 471, are of no value in this discussion. The first declined to follow the Supreme Court of the United States. The second is not only contrary to-the general rule, and in conflict with the Supreme Court, but is condemned, by a dissenting opinion of one of the judges of the court which rendered it, as standing alone in English jurisprudence with its conflicting doctrine. The third case is not in point.

We regard the question as settled that the rights of the riparian to alluvion by accretion and soil left bare by reliction are vested property rights.

“Cut-offs” and the. abandonment of their beds by rivers are as much the result of the natural processes of rivers as are erosion, accretion, and reliction. Cleland’s Geology, c. 4, pp. 119 to 122; Grabaw’s Geology, Part 1, pp. 416, 417; Tarr & Martin’s Physiography, c. 6, pp. 146 to 151; Salisbury’s Physiography, c. 4, pp. 87 to 89; Thomas & Watt on Improvement of Rivers, vol. 1, pp. 11 to 29. The former ought reasonably to be regarded in the same light as the latter; and the right to the soil left bare by abandonment, declared by the civil law to be in the riparians, should be held to be a property right, embraced in the original grant like the right to alluvion and the soil left bare by reliction. By the Mexican civil law and the Roman law it was so regarded. The Institutes and Digest of Justinian, the Partidas, and the Spanish and Mexican civil law all ■treat the right of the riparian to succeed to the title of abandoned river beds as a property right, in the same manner and to the same extent that they do the rights of al-luvion by accretion and to soil left bare by reliction. Each is referable to the right of property 6y accession, a principle of the law of property under the civil law, declared by Justinian 1,300 years ago, and by Gaius nearly eighteen centuries past. Scott’s Civil Law, vol. 9, pp. 156,. 157, 159 (Justinian’s Digest); Moyle’s Institutes of Justinian, pp. 35, 38, 39; Las Siete Partidas, Part 3, Title 28, Law 26; Hall’s Mexican Law, §§ 1399, 1408, 1670, 1702; Buckland’s Roman Law, pp. 210, 212; Morey’s Outlines of Roman Law, pp. 304, 305; MacKeldey’s Roman Law, §§ 166, 272, 274; Phillimore’s Roman Law, p. 142; Grotius’ Bights of War and Peace, c. 3, §§ 7, 8; Bowyer’s Civil Law, pp. 81, 82, 85; Johnston’s Civil Law of Spain, pp. 98, 101, 102; Schmidt’s Civil Raw of Spain and Mexico, arts. 205 to 216; White’s New Recopilación of the Laws of Spain, etc., vol. 1, pp. 83, 90.

The rule of title to property hy accession is as well established under the common law as under the civil law, and under the common as under the civil applies to alluvion by accretion, and to soil left bare by reliction. Texas Jurisprudence, vol. 1, p. 239; 1 Corpus Juris, p. 382; Isle Royale Min. Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 520; Lampton’s Ex’rs v. Preston’s Ex’rs, 1 J. J. Marsh. (Ky.) 454, 19 Am. Dec. 104; Pulcifer v. Page, 32 Me. 404, 54 Am. Dec. 582; Silsbury v. McCoon, 3 N. Y. 379, 53 Am. Dec. 307; Hale’s De Jure Maris in Moore’s History of the Foreshore (3d Ed.) p. 399; 2 Kent’s Commentaries, p. 361; Bacon’s Abridgment, vol. 8, p. 22. Corpus Juris states; “The doctrine of accession has been recognized from a very early date. It was recognized by the Civil Law, from which the rules and principles now recognized were principally derived, and was later introduced into the Common Law of England, and has since become a recognized part of the jurisprudence of the United States.”

Our common-law rules of alluvion and re-liction, and the law of waters generally, were in a large measure derived from the Roman law. Cooley’s Blackstone (3d Ed.) vol. 1, pp. 479, 480; Kent’s Commentaries (13th Ed.) vol. 3, pp. 591, 598; Farnham on Waters, vol. 1, § 36; Dwinel v. Barnard, 28 Me. 569, 48 Am. Dec. 507; Scott’s Civil Law, vol. 1, p. 119; note. See, also, pp. 36, 37, 38; Plucknett’s History of the Common Law, pp. 180 to 183, 210 to 215; Holdsworth’s History of English Law, vol. 2, pp. 266 to 286; Rex v. Yarbarough, 2 Bligh’s New Reports, 147; Foster v. Wright, 4 C. P. D., 447.

Since the common-law rights to alluvion by accretion and soil left bare by reliction were derived from the civil law, and are held to be vested rights under the rule of property by accession, it is obvious, we think, that the civil-law yule of title 6y accession, to abandoned river beds in favor of the riparians must likewise be regarded as a vested property right.

Not only are the several rights derivable from.the same natural law of river meandering, and subject to the same civil-law rule of title by accession, but the legal nature of the titles involved is similar under the common law.

In the event a river by erosion and accretion, or by the ordinary process of reliction, changes its bed, one adjacent owner loses title and the other gains, and the sovereign, as the proprietor of the changed river bed, obviously takes title to land previously granted by the state by right of reverter. The riparian who gains does so by the law of accession, and he who loses does so because the title originally held by him adjacent to the river and subject to its erosive effect was a base fee, determinable upon the occupancy of his soil by the river. Authorities cited below.

In the instant case, under the civil law, the state, as the successor in title to the Republic of Mexico to the land involved, so long as the Brazos river occupied it, held same under a title within the definition of a base or determinable fee; that is, its title, while an estate in fee, was in fact a base or qualified one, determinable in favor of the riparians upon the abandonment of the bed by the river. Kent’s Commentaries (13th Ed.) vol. 4, p. 8; Cooley’s Blackstone (3d Ed.) vol. 1, p. 385; Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 173, 254 S. W, 290, 29 A. L. R. 566.

We are therefore of the opinion that the right of the riparians to succeed to the title of the abandoned bed of the river here involved is, and was, a property right, within the exceptions to the repealing act of 1S40, and within' the protection of the due process clauses of our several Constitutions, and of the provisions of the treaty of Guadalupe Hidalgo.

Under the Mexican civil law, by which we believe we must be governed, the land in controversy does not belong to the state, but to the holders of title under the original Mexican grants. We are convinced, however, that the rule of the common law, which we adopted in so far as applicable to streams above tide water, was, and is, similar to the Mexican civil law; and, in so far as the rights of the parties here are concerned, the samé result is reached by its application.

Under the English common law the sovereign owned, only those portions of river beds which were within tidewater limits. River calls extended to the medial line of boundary streams above tidewater, whether navigable or not, and the beds were the property of the riparians. Hardin v. Jordan, 140 U. S. 371, 383, 388, 11 S. Ct. 808, 35 L. Ed. 428; Shively v. Bowlby, 152 U. S. 1, 11, 14 S. Ct. 548, 38 L. Ed. 331; 4 Ruling Case Law, p. 82, §§ 12, 13; p. 83, § 15; 9 Corpus Juris, p. 184, § 60, p. 185, § 61; Farnham on Water Rights, vol. 1, § 48, vol. 2, §§ 413, 415; Kinkead v. Turgeon, 74 Neb. 573, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. 740, 13 Ann. Cas. 43; 27 Ruling Case Law,’ p. 1358, §§ 268, 272; 9 Corpus Juris, p. 184, § 59; p. 185, §§ 61, 63; Packer v. Bird, 137 U. S. 661, 666, 11 S. Ct. 210, 34 L. Ed. 819; Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Kent's Commentaries (13th Ed.) vol. 3, pp. 592, 593; Coulson & Forbes’ Law of Waters (In England), pp. 91, 77; Halsbury’s Laws of England, vol. 28, §§ 744, 756, 757.

The beds of navigable streams above tidewater were parts of the coterminous estates, but so long as occupied by navigable waters tlie ownership and control by the owners was limited 'by the public right of navigation, predicated upon custom, dedication, or act of Parliament, but not upon original ownership and control by the sovereign, nor upon the common law. Halsbury’s Haws of England, vol. 28, p. 406, § 784; p. 398, §§ 760, 761, 762; p. 396, § 756; Ooulson & Forbes on Waters (4th Ed.) p. 450; Hale’s De Jure Maris as published in Moore’s History and Laws of the Foreshore, etc. (3d Ed.) p. 370 et seep; Farnham on Waters, vol. 1, § 48; Kinkead v. Turgeon, 74 Neb. 573, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. 740, 743, 13 Ann. Cas. 43.

In the tidewater sections' of navigable streams the king, it is said, owned the rivers, including the beds, but held them in trust for the public. Ooulson & Forbes on Waters {4th Ed.) pp. 77, 78, 449; Halsbury’s Laws of England, vol. 28, p. 392, § 744; p. 400, § 767 et seq.; Farnham on Waters, vol. 1, §§ 37 a, 38, 23f; Gould on Waters (3d Ed.) §§ 4, 17, 18, 19, 20. For the history of the long controversy over this subject, see Moore’s History of the Foreshore (3d Ed.) which reprints the Digges’ pamphlet and Hald’s De Jure Maris. This ownership, however, was based, not upon navigability alone, hut upon the sov-weign’s ownership of the sea. In so far as the tide ebbed and flowed, the rivers were regarded as arms of the sea, and since the king was lord of the sea, he was proprietor of the land beneath it. Authorities supra; Gould on Waters (3d Ed.) §§ 42, 43, 44; Hale’s De Jure Maris as reprinted in Moore’s Law of the Foreshore, above cited, pp. 248, 378 to 380; Bacon’s Abridgment, pp. 14, 18, 19, 22; The Case of the Royal Fishery of Banne, Davie’s Reports (1762) pp. 149, 152.

Such in brief were the English common-law rules as to the ownership of river beds when we adopted that system of laws as the rule of decision.

There can be no doubt but that the laws of England with reference to rivers were founded upon the Roman law. Authorities supra and post; Hardin v. Jordan, 140 U. S. 371, 390, 11 S. Ct. 808, 35 L. Ed. 428. The two systems of law were similar in many respects, but differed in some material particulars. Under the civil law, all perennial streams were public, while under the common law navigable streams within tidewater limits only, in the absence of prescription, dedication, or act of Parliament, were public. Authorities supra; Gould on Waters (3d Ed.) §§ 51, 52, 53; Coulson & Forbes on Waters (4th Ed.) pp. 77, 78, 449, 450; Halsbury’s Laws of England, vol. 25, p. 398, § 760; Hardin v. Jordan, 140 U. S. 371, 383, 11 S. Ct. 808, 35 L. Ed. 428.

There is a difference of opinion among writers on the Roman law as to whether of not the beds of public streams under that system of jurisprudence belonged to the sovereign or to the owners of adjacent lands.

England in adopting the Roman law as to its nonticlal streams adopted the construction insisted on by Selden, Vinnius, Mr. Farnham (vol. 1, § 49), and others, that the title of the riparians extended to the center of the streams, because that construction was suitable to her conditions; while France, Spain, and Mexico adopted that interpretation indicated by Gaius (Scott’s Civil Law, vol. 9, p. 107), and followed generally by the American courts (Farnham, vol. 1, § 49), that title to the beds of all navigable streams, so long as occupied, was in the public or the sovereign, because that construction was suitable to their conditions.

Each of the nations named in selecting its interpretation of the Roman law as to th'e ownership of stream beds, so long as occupied, chose that rule which was best suited to its conditions. The jurisprudence of all the nations mentioned, France, Spain, Mexico, Texas (down to 18⅛0), and England (as to nontidal streams), however, agree with the Roman law, that when a river abandons its hod and selects a new channel, the abandoned bed becomes the property of the adjacent land oxoners. Authorities supra; Farnham on Waters, vol. 1, § 49.

The status of the law in Texas when we adopted the common law as the rule of decision in 1840 was as follows: Texas owned the beds of all perennial streams, regardless of navigability, whether grants of land adjacent were made by Spain and Mex-ica prior to March 2, 1836, or by the Republic of Texas prior to the act of 1837, by virtue of the civil law of Mexico. Hall’s Mexican Laws, §§ 1390, 1406; Angelí on Watercourses (6th Ed.) § 550; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202, and authorities there cited. The Republic also owned the beds of.all streams touching grants made subsequent to that date and prior to the act of 1840, whether perennial or not, where the beds were as wide as 30 fee't, under the Mexican civil law as modified by the act of 1837. As to the beds of all these streams adjacent to grants by the sovereign-ties named, the state had a determinable fee, which, under the laws existing until the adoption of the common law, would pass upon abandonment to the riparian proprietors.

It is obvious, we think, from the foregoing, that there was no rule of the common law touching the subject before us when we adopted that system, which in all respects could be harmoniously incorporated into our system of jurisprudence. We are constrained to believe that the Congress of the Republic, in adopting the common law as a rule of decision, did not intend to adopt any rule of that system of jurisprudence applicable alone to the beds of streams within tidewater limits and apply it to thousands of miles of navigable and innavigable streams above tbe flow of tbe tide, in such manner as to enlarge tbe title of tbe state to the beds of streams from a base fee to an indeterminable fee-simple title, either as to lands previously or subsequently granted. Tbe common law was adopted only in so far as applicable to our Constitutions. Constitution of tbe Republic,, art. 4, § 13; 9 Texas Jurisprudence, pp. 306 to 312, §§ 8, 9, 10, 12. Tbe common-law rule, in so far as it conflicted with tbe determinable fee title held by tbe state in river beds, and in so far as it denied title by accession to the riparian owners, when rivers abandoned their beds, was clearly not applicable to grants made prior to its adoption in 1840, and no change in tbe right of accession to abandoned river beds was intended or wrought as to such prior grants by its adoption. As we have previously shown, the statute adopting tbe common law expressly exempted therefrom colonization grants by Mexico. Tbe act of 1837 was not specifically amended by the act of 1840, nor by any subsequent law, and, in tbe absence of some specific amendment we should give it tbe meaning which it bad at the time of its enactment. 25 Ruling Case Law, p. 959, § 214; United States v. Union Pac. R. Co., 91 U. S. 72, 23 L. Ed. 224; Schuyler County v. Thomas, 98 U. S. 169, 25 L. Ed. 88; Platt v. Union Pac. R. Co., 99 U. S. 48, 63, 25 L. Ed. 424.

Although we adopted tbe common law as a rule of decision in 1840, we have disregarded its provision that the public right of navigation above tidewater was dependent on grant or custom, and have applied tbe civil-law rule of navigability in fact. Welder v. State (Tex. Civ. App.). 196 S. W. 868; Orange Lumber Co. v. Thompson, 59 Tex. Civ. App. 502, 126 S. W. 604; Jones v. Johnson, 6 Tex. Civ. App. 262, 25 S. W. 650. In truth, the civil-law rule has, in effect,' become the common law throughout the United States. 45 Corpus Juris, p. 406, § 2, and cases cited in the notes; Havre de Grace v. Harlow, 129 Md. 265, 272, 98 A. 852 ; 27 R. C. L., p. 1302, § 213. Subsequent to the adoption of the common law, we have ignored its rule that grants on streams above tidewater carry title to the thread of the stream, and have continued to apply the civil-law rule, of which the act of 1837 is an adaptation, to the effect that the beds of streams there defined are the property of the state. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563; State v. Machen (Tex. Civ. App.) 162 S. W. 1160; Burr’s Perry, B. & C. Ry. Co. v. Allen (Tex. Civ. App.) 164 S. W. 878; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202. The obvious reason for these departures from the common law is that our conditions were such, and our established jurisprudence such, that the rules of the common law in the respects named were inapplicable. To illustrate: England is a pluvial country where irrigation and general access to running water are not matters of serious concern. Much of Texas, like Mexico and portions of Spain, is an arid or semiarid region, where irrigation is highly desirable, sometimes a necessity, and access to water for its vast herds of live stock a matter of great importance. The civil law, therefore, which retained title to the beds of all perennial streams in the state, so that the impounding and distribution of waters might be better effectuated,, was better suited to our conditions than the rule of the common law. Millions of acres of our lands had previously been granted under the Mexican law and the act of 1837. The continuance of the civil-law rule therefore avoided the conflict and discrimination which an application of the common law to grants made subsequent to 1840 only would have entailed.

These illustrations suffice to show that as to the law of streams we have only adopted such rules of the common law as are suitable to our conditions and as are in harmony with the basic principles of our jurisprudence with reference to the law of waters.

We will now examine the question as to whether or not we have adopted the claimed common-law rule that the beds of all navigable streams upon abandonment are the property of the state.

No such rule ever existed under the common law of England. There are respectable authorities for the statement that the beds of navigable streams tvithmi tid&imter limits upon abandonment remain the property of the Crown; but this is because the rivers and their beds where the tide ebbs and flows are arms of the sea, and not because of navigability alone. . Authorities supra; Bacon’s Abridgment, vol. 8, pp. 14, 19; Farnham on Waters, vol. 1, § 38; Hale’s De Jure Maris in Moore’s History of the Foreshore, etc. (3d Ed.) pp. 378 to 380; Mayor of Carlisle v. Graham, L. R. Ex., vol. 4, p. 360.

The rule of the common law as to rivers above tidewater, which are, as Bacon’s Abridgment says, “no original part or appendix of the sea,” was, and is, that the adjacent lands extend to the medial line, burdened with certain easements incident to navigation, if navjgable, and that upon abandonment the beds in full title pass to the riparian owners. Authorities supra; Bacon’s Abridgment, vol. 8, p. 14; Farnham on Waters, vol. 1,_§ 48; Hale’s De-Jure Maris in Moore’s History of the Foreshore, etc. (3d Ed.) pp. 370 to 373; Kinkead v. Turgeon, 74 Neb. 573, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. 740, 13 Ann. Cas. 43.

In our opinion, in adopting the common law, we adopted the last-named rule. since tlie rule to tlie extent that it assigned the beds of nontidal navigable streams upon abandonment to the riparians was consistent with our then established system of jurisprudence, and better suited to our conditions than the other rule of the common law stated above.

We know judicially that under the act of 1837, which modified both the common and civil-law rules, we have thousands of miles of river beds owned by the state, which the state would not have owned under either the common ór civil law but for the modification. These streams run for thousands of miles through alluvial plains, where “cut-offs” and abandonment of beds, some small and some large, are of common occurrence. We cannot conceive that it was ever the legislative purpose to adopt the common-law rule insisted on here, applicable in England only within tidewater limits, and assign abandoned river ■beds to the state, and thereby place title in the state to small tracts of land up and down our streamways, with the attendant injustice and inconvenience to riparian landowners and the persistent controversies which would necessarily arise. Speaking of the injustice of such a rule as that insisted on here, the Supreme Court of Nebraska, in the case of Kinkead v. Turgeon, 74 Neb. 573, 104 N. W. 1061, 109 N. W. 744, 747. 1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. pages 740, 749, 13 Ann. Cas. 43, in part said: “As was said long ago by Ulpian: ‘In like manner, if a river leaves its bed and begins to flow elsewhere, whatever is done in the old bed. is not subject to the interdict, because not done in a public river, as the bed belongs to the neighbors on each side, or else the bed belongs to the occupant if he has fields marked off thereon. Certainly the bed ceases to be public. Also the new channel which the river has made, althougli it was private, begins, nevertheless, to be public, because it is impossible that the channel of a public river should not be public.’ * * * Ware’s Roman Water Law, 34, § 22. To hold otherwise in case of a stream of the characteristics of the Missouri river might well lead, by way of repeated changes of the river’s channel, to additions to the public domain at the expense of adjoining proprietors. For example, if in this case we should hold that the bed of the abandoned stream belonged to the state of Nebraska, by the same reasoning the bed of the new channel belongs to the state, and if the river should again change its channel nearby, by another avulsion, thus leaving the new bed dry, the sfate then would be the owner of the land in two abandoned river beds and also of the bed of the new channel. The property in the second and third bed then would be wrested without compensation from the property of private individuals. A doctrine which might work such an injustice as this ought never to be adopted by a court if any other view is reasonable.” (Italics ours.)

We know from one of the most oppressive and tragic chapters in the history of English jurisprudence how the titles of landowners would be clouded and litigation fostered by the adoption of the rule that abandoned stream beds become the property of the state. We refer to the history of the origin, emergence, and development of the current English common-law doctrine that title to the foreshore of the sea and tidal navigable rivers, and of derelict lands arising therefrom, is prima facie in the Crown. See, generally, Moore’s History and Law of the Foreshore and Seashore (3d Ed.); Farnham on Water Rights, voi. 1, §§ 39 to 43.

In the United States there are authorities which- support the claim of the state to abandoned beds of navigable rivers. Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913; Northstine v. Feldmann, 298 Mo. 365, 250 S. W. 589; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Stockley v. Cissna, 119 Tenn. 135, 104 S. W. 792; State v. Muncie Pulp Co., 119 Tenn. 47, 104 S. W. 437. These authorities, however, apply the rule above tidewater, which was clearly not admissible under the English common law. They are not in point on the establishment of a common-law rule that abandoned beds of navigable streams above tidewater are the property of the state. They furnish an argument, of course, to the effect that, since the state owns, the occupied beds of rivers, the abandoned beds should belong to the sovereign. But, as we have seen, the policy of our state, at least down to 1840, was to the contrary, as were tlie Roman, French, Spanish, and Mexican laws.

What was said by the Court of Civil Appeals of Texas in the case of Siddall v. Hudson, 206 S. W. 381 (no writ of error applied for), tends to support the state’s claim. This case, however, is so obviously erroneous as not to be an authority for any purpose. The river bed in that case was abandoned while Texas was a part of Mexico ([Tex. Civ. App.] 201 S. W. 1029, 1031) and plainly became the property of the riparian owners under the Mexican law.

Angelí on Watercourses (6th Ed.) § 58, lays down the general rule with reference to the abandoned beds of navigable streams, which we think applicable in Texas. The writer states: “When we treat of such watercourses as are public highways, it will appear that a river of this description, by constituting to itself a new channel, may convert a private field into public property; that is, the new channel becomes public for use and accommodation, and cannot be impeded or obstructed. So on the other hand, a river, by changing its course, may cause the channel, which was before subject to the right of the public, to vest entirely and exclusively in the owners of the banks. The law of England, in relation to this subject, also appears to have been copied from the Roman law.”

See, also, Dwinel v. Barnard, 28 Me. 554, 48 Am. Dec. 507; Kinkead v. Turgeon, 74 Neb. 573, 104 N. W. 1061, 109 N. W. 744, 1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. 740, 742, 13 Ann. Cas. 43. This rule quoted from Angelí is the same as the Mexican civil law rule, and is the rule, we think, which we adopted by the act of 1840.

For all the reasons stated, we hold that the claimed rule of the common law, that the abandoned beds of tidal rivers become the property of the sovereign, was not adopted in this state as to our streams above the ebb and, flow of the tide; but that the other clear rule of the common law, that abandoned' river beds are the property of the riparian owners, regardless of navigability, should be applied to all our streams above tidewater, navigable,in fact or in law; a rule in entire harmony with the Mexican civil law. This makes all our grants, whether Mexican or subsequent, subject to the same rule, and prevents confusion, inconvenience, and discrimination between owners of grants made prior to the act of 1840 and those made since that date.

The fact that the Allcorn league was not originally riparian, but subsequently became so, does not prevent the application of either the Mexican or common-law rule named above. The Mexican civil law makes no exception in such a ease. So long as the river occupies his land, it is the property of the sovereign. Upon abandonment, title to the bed passes to the riparian. Authorities supra. The rule of the common law is that where the river changes its course, and touches land not originally adjacent to it, the newly washed lands thereby become riparian, and upon a rechange of the river, in the absence of a previous shift of boundary by accretion, the owner takes title to his original boundary line. Gould on Waters (3d Ed.) § 155, p. 308; Farnham on Waters, vol. 3, § 848; Minton v. Steele, 125 Mo. 181, 28 S. W. 746; Mayor of Carlisle v. Graham, L. R. Ex. vol. 4, pp. 360, 367, 370.

The insistence is made that the state owns the land beneath the waters of the oxbow lake or body of water shown on the map because of its occupancy by the lake waters. There is no merit in this contention. Lakes of this character are always formed, and for a time exist, in all abandoned river beds. They are universal characteristics of this natural phenomenon. Cleland’s Geology and other scientific authorities, supra.

The authors of the Partidas and the Mexican civil law, in the nature of things, were just as well acquainted with this feature of river change as we are today.1 The Mexican civil law and the Partidas make no exception as to lake beds of this character when a river abandons its channel, and therefore we can make none. The whole bed, when the river departed from it, became the property of the adjacent landowners, and the fact that a portion of it has since been occupied by still water as a lake cannot affect the title. Even under the common law, unless there existed a statute to the contrary when grants were made, titles of the ripa-rians extended to the land beneath lake waters. Halsbury’s Laws of England, vol. 25, p. 398, § 764; Coulson & Forbes on Waters (4th Ed.) p. 100; 4 Ruling Case Law, p. 94, § 26, and cases cited in note 2; 9 Corpus Juris, p. 183, §§ 56, 57. Whether or not the lake is riparian water, and subject to the laws relating to fresh water lakes, as to fishing, etc., are questions not before us. The title to the lake bed, like that of the remainder of the abandoned channel, is in the riparian claimants.

The effect of this opinion is to be confined to abandoned stream beds above the ebb and flow of the tide. What rule should be applied to relicted lands below tidewater is not before us, and no opinion is expressed thereon.

For all the reasons given in this opinion, we have concluded that the adjacent landowners, subsequent grantees of Williams, Little, Jones, and Alleorn, own the land in controversy, and the state has no title thereto.

This conclusion makes it unnecessary for us to discuss the other questions involved.

The writs of mandamus prayed for will be refused.


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

text:
    DAVIS v. STATE.
    No. 15368.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Rehearing Denied Jan. 25, 1933.

      Jones & Jones, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, transporting intoxicating liquor; the punishment, five years in the penitentiary.

Peace officers had stationed themselves at a filling station • near Alba. They saw an automobile approaching with the appellant driving it, and they tried to stop the car, but, instead of stopping, the appellant cut around the corner and started in the direction of Alba. The officers then got in another car and followed appellant, and, after they had started after the ear, they noticed the occupants of the car breaking fruit jars and throwing out the pieces and tops of said fruit jars, and saw them pouring whisky out, of the car. The ear the appellant was driving was one with two seats, and one Waiter-Mills was on the front seat with appellant, and Mrs. Mills and Mrs. Davis, appellant’s wife, were on the back seat. When the car finally stopped, the officers testified that it was soaked with whisky and -the occupants of the ear had whisky on their clothing. After they had stopped the car, the officers went back down the road and gathered up the fruit jars and a case that had been thrown out of the car. The fruit jar box the officers picked up was made to hold 12 half-gallon fruit jars. The officers also testified that they picked up 7 fruit jar tops, and where they picked up the fruit jar tops they saw whisky on the ground where it had been poured out of the jars.

■ The appellant testified in his own behalf that he had gone with Walter Mills to Mineó-la at the request of the said Mills. He further testified that Mills stated to him that he couldn’t drive a car, and that appellant, his wife, Walter. Mills, and Mrs. Mills left Alba after dinner, and he drove the car, and Walter Mills was sitting on the front seat with him, and his wife and Mills’ wife were on the back seat. When they got to Mineóla, he parked the car in front of Dr. No.ble’s office, and Mrs. Mills stated that she was going to Dr. Noble’s office; that they stayed in Mineóla about four hours, and, when he got ready to leave Mineóla, the car was still in front of Dr. Noble’s office; that he didn’t see any whisky in the car when they left Mineóla, and didn’t know there was any whisky in there; that, when they got to Pierce’s filling station, somebody ran out and began to wave their hands; that he didn’t recognize who it was; that it was a little before sundown; that later he heard somebody breaking something; that he didn’t have anything to do with the breaking, and didn’t know the whisky was in the car until Mills began to break it, and didn’t have any interest in the whisky, and would not have driven the car if he had known that the whisky was in the car.

It seems from the record that Mills had previously been tried upon this'case and had testified as a witness in that ease, and by agreement of the parties it was agreed that the testimony of Walter Mills given in the case of the State of Texas v. Walter Mills, tried in the district court of Wood county, might be read to the jury as part of this case. The effect of this testimony was that Mills invited Davis to go along with him to Alineóla that day, and, while they were in Mineóla, he purchased the whisky, which was a gallon in four quart jars, from a party whose name he could not give. It was a tall dark fellow; that the whisky was in a case in fruit jar bottles and was put in the car, and John Davis didn’t have any interest-in that whisky, and didn’t know it was put in there, and about 20 minutes after the whisky was put in the car they left Mineóla; that they saw Mr. Douglas, and somebody told them to stop, and he told appellant that it wasn’t any use stopping, to drive on down the road, and he broke the whisky and didn’t anybody break any of the whisky except him; that he bought the whisky for his wife, who had been in bad health, and he bought that much so that he wouldn’t have to make so many trips; that he didn’t have it for sale.

Bill of exception No. 2 complains of the action of the district attorney in asking the appellant, while a witness in his own behalf, the following question: “You were tried by-a jury of citizens in this county and they convicted you?” The bill shows that the district attorney on cross-examination of the appellant had asked him if he had not previously been convicted of the offense of possession of whisky for the purpose of sale, and said witness, without any objection thereto, had testified that he had been so convicted. The bill further shows that the question complained of was not answered, and upon the objection of the appellant the trial court sustained the objection to the question, and the jury were instructed by the court not to consider said question so asked the appellant. We do not consider that the bill as presented shows such error as would call for reversal.

Bill of exception No. 3 complains of paragraph 4 of the court’s charge because the same was a charge upon an abstract proposition of law, and did not apply the law to the facts of the case, and did not instruct the jury that defendant could not be guilty on the mere fact that he drove said car, unless he was also instrumental in placing said whisky in said car or knew that same had been placed in said car. The paragraph complained of is as follows: “If -you find from the evidence that the defendant, John Davis, on or about the time and at the place charged in the indictment, either alone or acting as a principal with another, under the law of principals hereinbefore given you in this charge, did unlawfully transport spirituous liquor capable of producing intoxication, then you will find him guilty as charged in the indictment and assess the proper punishment therefor; unless you so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

In the succeeding paragraph 5, the jury is told in substance that, if the appellant did get in the automobile on the occasion in question and ride with Walter Mills and other persons to where said automobile was stopped, but that they further find that the appellant was not connected with or interested in the transportation of said liquor contained in said car, and did not know of said liquor being there, and did not aid by acts the said Walter Mills in the transportation of said liquor, or if they had -a reasonable doubt thereof, they would find the appellant not guilty.

Bill of exception No. 5 complains that the court erred in the fifth paragraph of his charge to the jury because the same was confusing and contradictory and'did not clearly set out defendant’s defense and did not apply the law to the theory raised by defendant’s evidence. The qualification to said bill shows that the court, after said objection had been presented to him, interlined in the original charge certain words so as to meet said objection. There is no exception appearing in the record as to said paragraph 5 of the court’s charge after it had been interlined and amended to meet the objection of the appellant. If appellant was .still dissatisfied with the charge as corrected, it would be necessary for him to file exceptions to the amended charge in order to avail himself of such objections. Jackson v. State, 103 Tex. Cr. R. 252, 280 S. W. 808.

Bill of exception 10A complains that, while the district attorney was making his closing argument to the jury in this case, he stated to the jury that “this defendant is a rum hound,” to which remark appellant objected because improper and inflammatory. The qualification to the bill by the court shows that he gave to the jury a written charge instructing them not to consider said argument.

There is nothing in this bill which shows the connection in which this- statement was made or how or in what connection it was used. Under the bill as it appears, we cannot say that the matter complained of was of that character which was clearly calculated to prejudice the rights of the appellant or to prejudice him in the eyes of the jury. It seems from the qualification that the remarks were withdrawn from the jury and the jury instructed not to consider them. See Branch’s Ann. P. O. § 362; Barkman v. State, 41 Tex. Cr. R. 109, 52 S. W. 73; Maxwell v. State, 69 Tex. Cr. R. 248, 153 S. W. 324; Alexander v. State, 40 Tex. Cr. R. 404, 49 S. W. 229, 50 S. W. 716.

Several other bills of exception complain of the court’s charge as being upon, the weight of the testimony and an improper presentation of the law. Charges must be construed in their entirety to determine the correctness' of any particular part. See Hardin v. State, 104 Tex. Cr. R. 178, 283 S. W. 517; Lewellen v. State, 104 Tex. Cr. R. 550, 286 S. W. 224. Taking tlie charge as a whole, we are not led to believe that the inaccurate manner in which in some respects it was framed could, under the testimony, have affected appellant’s rights. Hence, under the provisions of article 666, Code of' Criminal Procedure, we would not he warranted in ordering a reversal.

We note that the verdict of the jury finding the appellant guilty assessed his punishment at five years in the penitentiary and the sentence fixed his punishment at confinement in the penitentiary for a straight term of five years. The sentence will therefore he reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than five years, and, as so reformed, no reversible error appearing, the judgment is affirmed.

Reformed and affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

Appellant became a witness in his ojvn behalf, and testified that he was unaware that there was whisky being transported in the car in which he was riding. On cross-examination he testified that he had been convicted two weeks before the present trial for violating the liquor law; that he was charged in two cases for selling liquor; that he had been indicted in “this court” for possessing liquor for the purpose 0⅞ sale.

The main charge consists of nine subdivisions, and ends on page 10 of the transcript. No reference is made therein to the previous offenses of which the appellant had been charged and convicted. On page 11, however, is a supplemental charge, of which the second subdivision reads as follows: “The Court has submitted for your consideration testimony showing that the defendant stands charged by indictment for other felony offenses. Also, that the defendant has been convicted for the sole and only purpose for your consideration in passing upon the credibility of the testimony of the defendant given upon the witness stand and you will not and must not consider it for any other purpose whatsoever. In no event can you convict the defendant for any other offense-than the one for which he is now standing trial.”

On page 13 are various exceptions to the court’s charge. Subdivision 6 is directed to the paragraph of the supplemental charge quoted above. Such subdivision is as follows: “Defendant excepts to said charge of the court as a whole, because the same now here instructs the jury the legal effect of the proof that this defendant has been charged and convicted of other offenses, but leaves the same open for the jury to consider for any purpose they see fit.”

On page 16 of the record is paragraph 8 of the appellant’s objections, which reads as follows: “Defendant excepts to paragraph 2 of the Court’s supplemental charge because same does not correctly instruct the jury upon the issue therein submitted, and because same is upon the weight of the evidence.”

Complaint of paragraph 2 is also embraced in bill of exception No. 9.

In his brief the appellant complains that paragraph 2 of the charge is violative of his rights, and cites Lozano v. State, 83 Tex. Cr. R. 174, 202 S. W. 510, 511, and Stull v. State, 47 Tex. Cr. R. 547, 84 S. W. 1059. In the Lozano Case, supra, the instruction given to the jury and the comment of the court upon it is as follows:'

“‘The state was also permitted by the court to elicit from the witness Andres Pena that he had been indicted, tried, and acquitted for the killing of Carlos Nacke. I charge you that same was admitted by the court for the sole purpose of affecting the credibility of the witness Andres Pena testifying in this case, and you shall consider it for no other purpose.’
“This character of evidence is admissible for impeaching purposes, but the jury should not be told that it does impeach. Such charge is upon the weight of the evidence. The charge should have been so given as to not suggest to the jury that it did affect his credibility. The jury should be left free to consider it for impeaching purposes, or as affecting his credibility. They might consider it for that purpose. The jury are the judges of the weight of the testimony and the credibility of the witnesses.”

The charge in the Stull Case, supra, like that in the Lozano Case, quoted above, was held bad for the reason that its effect was the sole purpose of affecting the credibility of the witnesses. It is unlike the charge in the present case in which it is said that the evidence was admitted “for the sole and only purpose for your consideration in passing upon the credibility of the testimony of the defendant given upon the witness stand.” The distinction seems evident. The vice in the charge in the cases mentioned is not found in that of which complaint is made upon the present appeal.

The motion for rehearing is overruled.


author: LATTIMORE, J.

text:
    LEE v. STATE.
    No. 15501.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    H. F. Lewis, of Lampasas, and G. A. Walters, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, fifteen months in the penitentiary.

This ease must- be reversed for a violation of the provisions of articles 671, 673, 676 and 677, C. C. P., all relating to communications made to a jury in the trial of a felony case. While deliberating on this case, the jury became disturbed about the charge, and requested the sheriff to procure the judge so they could submit the matter to him. Being unable to find the judge, the sheriff came into the jury room and so reported. He was informed that two of the jurors did not understand the charge, and that they held out that there had been no proof of any sale of whisky by appellant. The sheriff, according to juror Townsend, said: “Probably I can answer that question,” and further: “He said John Lee was not charged with selling intoxicating liquor; he was only charged with possession of intoxicating liquor for the purpose of sale.” In the language of juror Rosson: “Some of the hoys (referring to members of the jury) I reckon spoke to Mr. Harvey, and he came back and said he might help some on that charge we had there. He said the charge said he was charged with the possession, not for selling. I heard him say that.” As said by juror Fields: “He said he might help them a little, — that is if it referred to the charge. * * * He said he wasn’t indicted for selling it.” Again this juror said: “Mr. Harvey referred the jury to the charge in which the court had submitted the law of the case, and also stated what the indictment was charging the defendant with.” Juror Croft swore: “The information he gave us was that Mr. Lee was n!>t charged with selling whisky, but he was charged of having whisky in his possession.” Other jurors gave substantially the same testimony. This conduct ■ seems plainly violative of the articles of our statute above referred to. See, also, Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928. Any instruction to the jury regarding the law of the case must be given in open court and in writing. The sheriff has no right to verbally instruct the jury how to feconeile conflicting views among them or as to the law of the case.. We have not the slightest doubt of the perfect sincerity and honesty of purpose of the officer in this case in what he did and said, but the privacy of a jury room where a jury is deliberating upon a case involving liberty or life is sacred, as is also the requirement of the law that the jury can only -seek a way out of their differences as to the charge of the court by the path pointed out by statute; i. e. by a proper instruction from the judge in open court upon their request to him for further instruction.

For the error above mentioned, the judgment will be reversed and the cause remanded.


author: • LATTIMORE, J.

text:
    BACON v. STATE.
    No. 15535.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    A. L. McRae and Couch & Couch, all of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   • LATTIMORE, J.

Conviction for misdemeanor theft; punishment, a fine of $1 and one day in the county jail.

' It was charged in the information herein that appellant had possession of six hundred pounds of cotton by virtue of his rental contract for the year 1931 with his landlord M„ said cotton being rent cotton raised by appellant during that year, and that he fraudulently converted said cotton to his own use, etc. From the state’s testimony it appears that appellant raised five bales of cotton and a remnant of some eight hundred pounds in 1931, under an agreement by which he was to pay one-half of same as rent to M.; that he sold four bales and paid half their proceeds to said landlord; that when he sold the fifth bale he» did’ not account to M. for one-half the proceeds, but that M. got all of said remnant. Appellant and his witnesses testified to facts which, if true, showed that M. owed appellant $31 for work, pasturage, etc., at the time of his sale of said fifth bale of cotton. Appellant testified that M. agreed that the half of the proceeds of said fifth bale should go to pay what he owed appellant. These facts do not make out a ease of theft of the cotton. Northcutt v. State, 60 Tex. Cr. R. 259, 131 S. W. 1128, 31 L. R. A. (N. S.) 822; Alvarez v. State, 109 Tex. Cr. R. 66, 2 S.W.(2d) 849. Said cotton had never been in M.’s possession and could not have been acquired by appellant under any contract of hiring, borrowing, or other bailment. Appellant raised the cotton and had it in his possession by virtue of such fact.

The judgment is reversed, and the cause remanded.


text:
    LOUT v. STATE.
    No. 15507.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    Sanders & McLeroy, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

We see no need for a discussion of the facts, in view of our conclusion that this case must be reversed for misconduct of the jury. On hearing of the motion for new trial all twelve of the jurors testified. The matters relied on as misconduct wére discussions of appellant’s failure to testify, and the statement by a juror or jurors in the jury room, without any testimony to warrant same, that appellant had been tried and convicted for chicken stealing. Six jurors affirmed that these matters were discussed by various members of the jury before any vote was taken; one saying that all twelve of them discussed same. Two other jurors said that the matters were discussed, but they were not sure whether before or after a verdict of guilty was reached. Four affirmed that they did not hear such matters discussed before a vote was taken, but would not state that same might not have been so discussed by other members of the jury. We call attention of the trial courts to the growing number of cases presenting this kind of questions on appeal, in the hope that more particular attention of trial juries may be called in the charges of the courts to the fact that under no circumstances should the failure of the accused to testify be discussed or commented on in the jury room, or taken as a circumstance against him. Also that matters not in testimony should not be considered by the jury, and f urthei* that a violation of these particular instructions might be'taken as contempt of court, and the jurors so offending be punished therefor. Reversal of cases for such causes should not be so frequent; but we see no way of preventing same save by some rigorous action on the • part of the lower courts.

The judgment is reversed and the cause remanded.


text:
    WOOLDRIDGE v. STATE.
    No. 15552.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    McGaugh & Darroch and Early & Johnson, all of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

The indictment appears regular and regularly presented. The evidence which was heard in the trial court is not brought up for review. The absence of the facts precludes this court from appraising the action of the trial judge in refusing to give the special charges requested, likewise the exceptions to the court’s charge.

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


author: HAWKINS, J.

text:
    WASTER v. STATE.
    No. 15551.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Máx Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

It was charged against appellant that while intoxicated he drove an automobile on Twenty-Fifth street, a public street in the city of Lubbock. Upon conviction his punishment was assessed at ninety days in jail and a fine of $200.

A police officer testified that in the afternoon about 3 o’clock he saw appellant driving a car on Avenue H, in the city of Lubbock ; that he turned west on Twenty-Fifth street, and that witness arrested him near avenue I; that appellant was drunk when arrested. Appellant was taken to a doctor’s office for treatment of a wound inflicted upon his head by the arresting officer. The doctor also testified that appellant was drunk. The only defense witness was appellant himself. He denied that he was drunk when arrested, and asserted that he never at any time drove the car on Avenue H or Twenty-Fifth street.

In his motion for new trial appellant asserted that a prejudiced juror sat on the jury which convicted him, and also claimed that he was entitled to a new trial for newly discovered evidence.

Regarding a claimed prejudiced juror, the rule, supported by many authorities, is stated in Branch’s Ann. Tex. P. G. § 565, as follows: “If it is discovered for the first time after the verdict of guilty that a juror was prejudiced against defendant and the juror had qualified on his voir dire examination, a new trial will be granted if defendant and his counsel were not lacking in diligence and were deceived by the answers of the juror.”

It is averred in the motion that both the district attorney and the attorney for appellant asked questions of the juror, which, if answered truly, would have revealed his prejudice. The averments in the motion did not prove themselves. Although sworn to by appellant, the motion was only a pleading, upon which evidence might have been introduced. Johnson v. State, 111 Tex. Cr. R. 395, 13 S.W.(2d) 114; Rollins v. State (Tex. Cr. App.) 53 S.W.(2d) 786. The evidence heard upon the motion is brought forward in a statement of facts. We find in it nothing regarding the voir dire examination of the juror, or of the jury panel generally. So far as the evidence shows, the juror may have been selected without the ashing of a single question. Under these circumstances we must hold that there is no showing that appellant or his counsel were deeéived by £he answers of the juror; in other words, “lack of diligence” is not refuted. Adams v. State, 92 Tex. Cr. R. 264, 243 S. W. 474, 475.

The two alleged newly discovered witnesses were Alin Kinchion and D. V. Tatum. Kinchion was the party with appellant at the time he was arrested and who owned the car appellant was driving. We are at some loss to understand just how Kinchion’s testimony could be brought within the rule of newly discovered evidence. Any sort of diligence would have revealed what his version of the transaction would have been. In Tatum’s affidavit attached to the motion for new trial, he says that on the day of appellant’s arrest ho saw him on Thirteenth street, and saw a car driven by another negro stop, and that appellant got into this car and “drove on west.” 1-Ie does not profess to know where the car went after he saw appellant get into it, and, if he would give the testimony indicated, it would throw no light whatever upon the matter under investigation. It is further stated in the affidavit that when he saw appellant he “was walking and acting perfectly rational.” Witness does not say how near he got to appellant, but says he “hollered” at him about the time the car stopped. The trial judge was warranted in concluding that, if this alleged new witness were present and testified as claimed, it would not likely change the result of the trial.

Finding no error in the record justifying a reversal, the judgment is affirmed.


text:
    Ex parte NUNN.
    No. 15791.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Chas. Owen and W. Joe Bryan, both of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The appeal is from an order of the district court of El Paso county refusing the appellant’s application, by way of habeas corpus, for bail.

The appellant is under indictment for the murder of James Hoover. It is understood from the evidence that the appellant Nunn and James Hoover and several other persons were in a place where cotton was stored. Hoover was using a knife adapted to sampling cotton. While other witnesses were about their affairs, one of them heard a noise and observed Hoover lying on the ground and the appellant standing over or near him with an iron bar in his hand. Hoover was taken to town, ’ where he subsequently died. The wounds on Hoover were described by a doctor. There were four lacerated wounds on the scalp, and other lacerated wounds upon the other parts of the body. The opinion was expressed that the wounds produced the death of the deceased. An iron pipe was presented at the trial and examined by a physician. The pipe was shown to have had blood upon it. The iron pipe was not described either by its weight or dimensions. No witness observed the beginning of the difficulty. There is testimony of a difficulty some months previous between the parties. There was testimony that the blade of the knife used by Hoover was five inches long and was very sharp. The knife was picked up near the place where the iron pipe was found after the injury was inflicted. There was also a rock near the knife mentioned.

The appellant introduced evidence to the effect that he was a resident in the community and had a family of several children; that he was a farmer and lived on a mortgaged farm; that he had friends who would probably make bail in any reasonable sum. He bore the reputation of a peaceable, law-abiding citizen. He had never been in any previous trouble.

The state’s attorney before this court intimates in his brief that he does not regard the “proof evident” within the meaning of the Constitution such as would warrant the refusal of bail. See Ex parte Peddy, 118 Tex. Cr. R. 175, 42 S.W.(2d) 605; Ex parte Adams, 119 Tex. Cr. R. 135, 44 S.W.(2d) 713. It is thought that hail should be granted.

It is therefore ordered that the judgment denying bail be reversed and appellant released pending trial upon the execution of a good and sufficient bond, meeting the requirements of the law, in the sum of $7,500.


text:
    AINSWORTH v. STATE.
    No. 15656.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Thompson & Barber, of Colorado, Tex., for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus: tin, for the State.
   LATTIMORE, J.

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

As bearing on a complaint in bill of exception No. 2, it may be said that sufficient facts are certified as true in the various bills of exception, so that we are able to know that deceased had been picking cotton for appellant, and on the night of this homicide the two men went to town together and drank heavily; that they left to go to one Kelley’s place about midnight; that Kelley testified that they came to his house about 1 a. m., both drunk; while there deceased cursed and a'bused appellant and threatened to whip him; that appellant went out to their car; and that deceased then told Kelley he was going to whip hell out of appellant before he got home in the morning; also that appellant testified that about the time they started to Kelley’s deceased began to pick a row with him over some cotton picking, caught appellant in the collar, tried to choke him, and told him he was going to whip hell out of him; that he talked deceased out of fighting him; that after this both drank more liquor, and after they left Kelley’s appellant said he knew nothing of what occurred except he had a faint remembrance of waking up in a choking, strangling condition. He said he knew nothing more until he was arrested about noon the next day. He further testified that he did not know whether he killed deceased or not. The body of deceased was found on the ground beside appellant’s car about S:30 the next morning something like a mile from the homes of appellant and deceased. Two knife cuts were in the abdomen, and there was a small laceration on one hand of deceased. The seat in the car was upside down, and it was in testimony that appellant had wandered some miles around the’country before returning to the car; also that no one saw the killing or knew who did it. The case was submitted on the law of circumstantial evidence.

There is a bill of exception complaining of the rejection of testimony for the defense that a few days before the homicide a witness told deceased that appellant wanted his cotton pickers not to pick cotton until the dew had dried off same, and that, referring to appellant, deceased had said: “He does not-know who he is fooling with. I will kill that s-of a b-if he fools with me, and I will pick his cotton -any way I please.” In this connection we note that appellant excepted to the charge of the court for its failure to submit the law of self-defense. The above testimony indicates that deceased may have been the aggressor in the fatal difficulty. As shedding light on this proposition, we think the testimony of the threat admissible, and that the court should have given a charge on self-defense. The threat related itself to the picking of cotton, and appellant testified that deceased tried to pick a row with him the night of the homicide over the cotton picking. The state was compelled to look to circumstances to ascertain who did the killing and what caused or actuated the slayer in so doing. Under appropriate instructions, the state asked the jury to deduce from the circumstances the guilt of the accused. Had any defensive instruction been given, the jury may have come to a different conclusion, and especially if all the circumstances had been before them.

We are also of opinion that it was err.or to allow a son of deceased to testify that his mother was left with eight children ranging in ages from 18 to a 0 months old baby, and that they were in poverty and had to pick cotton for a living. Said testimony served no useful purpose, and was certainly calculated to injure the rights of the accused.

Several members of the venire panel, upon examination before the court when the case was called for trial, asked to be excused from service, and, after hearing said requests and the reasons therefor, nine members of the special venire of one hundred and eight men were excused. We do not discuss this matter, since the case will be reversed for the reasons above set forth; but we call attention of trial courts to the impropriety of excusing special veniremen over objection, unless the reason bo one of serious import. If the venire has been exhausted and men put bn the jury who were objectionable, it would likely cause a reversal.

For the errors above mentioned, the judgment will be reversed, and the cause remanded.


text:
    PATTERSON v. STATE.
    No. 15520.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    R. L. Graves, of Brownfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is theft, a misdemeanor; penalty assessed at a fine of $25 and confinement in the county jail for ten days.

The position taken by the appellant that chapter 157, Aets of the Fortieth Legislature, Reg. Sess. (Vernon’s Ann. P. C. art. 1422), deprived the county court of concurrent jurisdiction with the justice court over cases charging the theft of property of the value of $5 or less is not regarded as sound. It is thought that the concurrent jurisdiction of the county court, as stated in article 56, C. O. P., was not repealed by the legislative act mentioned.

The appellant’s position that the information charging him with the offense of theft is insufficient in failing to allege that the property was “fraudulently” taken is deemed correct. See article 1410, P. C. 1925, also Haney v. State, 117 Tex. Cr. R. 664, 37 S.W.(2d) 746, and cases cited. The same vice appearing in the complaint, it is the duty of this court to reverse the judgment of conviction and order a dismissal of the prosecution, which is accordingly done.


author: CHRISTIAN, J.

text:
    BRISCOE v. STATE.
    No. 15588.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.

      E. B. Coopwood, C. F. Richards, and Nye H. Clark, all of Lockhart, for appellant. . .
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed D. B. Kennard by cutting him with a knife.

Appellant, who ran a mercantile establishment, had been selling deceased merchandise. An account due appellant had been reduced by deceased to about six dollars. According to the state’s testimony, appellant went to the home of deceased some time prior to the homicide in an effort to collect the amount deceased still owed^him. On the day of the homicide, deceased, accompanied by his wife and small children, drove to the town of Luling. After reaching the business section, deceased’s wife left the car, taking her small son with her. Deceased remained in the car with the other two children, holding one of the children .in his lap. Deceased was seated under the steering wheel of the car when appellant approached. The testimony of state’s witnesses was to the effect that appellant tried to open the ear door; that deceased closed the door and endeavored to keep appellant from opening it; that appellant grabbed deceased by the leg and began stabbing him in the leg with a knife. All of the. wounds in deceased’s leg were below the knee. An artery was severed, and deceased died from the loss of blood. According to the state’s testimony,' after appellant had stabbed deceased he took from the car an automobile crank and walked away. The knife used by appellant had a blade about four inches long.

Appellant testified, in substance, as follows: He went to the car for the purpose of asking deceased to pay him what he owed him. He told deceased that he knew he had the money, as he had received information that he had been paid by the people employing him. Further, he stated to deceased that he intended to report him to his employer. When he made this statement deceased handed the baby he was holding in his lap to his little daughter, and struck him (appellant) two blows in the face with his fist. Deceased then reached down, picked up an automobile crank, and attempted to get out of the car by pushing against the door. He (appellant) grabbed hold of the door and tried to prevent deceased from getting out of the car. Deceased punched him with the automobile crank, and he grabbed the crank and he and deceased struggled over it, deceased finally taking the crank away from him. Deceased finally succeeded in getting the door open and was getting out of the car. Deceased first placed his foot on the running board. Not knowing what to do to prevent the attack deceased was making on him, he (appellant) opened his pocket knife and began cutting deceased on the leg. Immediately after deceased opened the car door he (appellant) took the crank away from him. At this juncture we quote from appellant’s testimony as follows: “I did not cut him or try to cut him at any time after I got the' crank away from him. I have no knowledge and I had none at that time about the blood vessels and circulation of blood in the human body as to where the big veins and arteries are. As to what this man did after he got out of the car, and I had this crank, well, the next thing I saw was that he looked like he was going to sit down on the running board of the car and I walked a little bit east, and then I turned south and then west around the next car and then on up the sidewalk. * * * I stated a while ago that as soon as I got this crank from Mr. Kennard I didn’t strike him or attempt to strike him. I didn’t do anything after that. * * * When I went to town to see Mr. Kennard and at the time I had this trouble with him, nor at any time, did I have any intention of killing Mr. Kennard. When I went up to see Mr. Kennard, I went to see him for the purpose of asking him for my money. I had no other purpose or intention.”

Witnesses for appellant gave testimony supporting appellant’s theory of self-defense.

We have not undertaken to set out the testimony in detail.

In submitting the offense of murder from the state’s standpoint, the court required the jury to find an intention on the part of appellant to kill deceased. Nowhere in-the charge were the jury advised affirmatively to acquit of murder in the event they had a reasonable doubt as to whether appellant intended to kill deceased. It is true that the court charged on aggravated assault, and, in submitting that offense from the standpoint of the state, instructed the jury, in substance, to convict appellant of aggravated assault if they believed beyond a reasonable doubt that he unlawfully and not in his own self-defense, and without any intent to kill, committed an assault upon D. B. Ken-nard by cutting him with a knife, etc., and thereby inflicted serious bodily injury upon him. As hereinbefore pointed out, appellant testified that he had no intention of killing deceased. The weapon used by appellant was a knife with a blade four inches long, which under decisions of this court was not per se a deadly weapon. Branch’s Annotated Penal Code, § 1587; Shannon v. State, 117 Tex. Cr. R. 429, 36 S.W.(2d) 521. The wounds inflicted were below the knee. According to appellant’s version, after he had taken the automobile crank away from deceased be made no further effort to strike deceased. Appellant timely and properly excepted to the charge of the court for its failure to affirmatively instruct the jury to acquit him of murder if they entertained a reasonable doubt as to whether he intended to kill deceased. Also he presented to the court a requested instruction covering the subject. Under the circumstances, the opinion is expressed that the learned trial judge fell into error in declining to respond to appellant’s exception. See Miller v. State, 112 Tex. Cr. R. 125, 13 S.W.(2d) 865; Stroud v. State, 113 Tex. Cr. R. 621, 24 S.W.(2d) 52; Shannon v. State, supra.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    CAMPBELL v. STATE.
    No. 15547.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Norton Eox and Eugene McNamara, both of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. '
   HAWKINS, J.

Conviction is for burglary; punishment being two years in the penitentiary.

No. statement of facts is brought forward. By motion in arrest of judgment, sworn to by appellant, and also by amended motion for new trial, also sworn to by appellant, an attempt is made to challenge the jury which tried the case as having been drawn under the “jury wheel” law of Mc-Lennan county, which was held unconstitutional in Smith v. State (Tex. Cr. App.) 49 S.W.(2d) 739, and Whatley v. State (Tex. Cr. App.) 51 S.W.(2d) 1116. Both motions raise an issue of fact, to establish which it became necessary for the court to hear evidence. Especially would this be true where, as in the present case, the averments in the motions were denied under oath by the state. If any testimony was heard, it is not brought before us either by bill of exception or statement of facts. In such case we must presume that the trial court was correct in overruling the motion. Furthermore, no question in limine was raised regarding the ju-try, and we see no reason why the general rule would not be applicable, which is that it is too late after verdict to complain for the first.time, of errors committed in impaneling or organizing the jury. Branch’s Ann. Tex. P. C. § 524, and cases cited thereunder, among them being Ellington v. State, 63 Tex. Cr. R. 427, 140 S. W. 1101; Texas Jurisprudence, vol. 4, .§ 34; Cardena v. State, 94 Tex. Cr. R. 436, 251 S. W. 225.

The judgment is affirmed.