author: ■ RYAN, J. CURETON, O. X

text:
    ALLEN v. CITY OF NAVASOTA.
    No. 1366 — 5944.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    T. P. Buffington, of Navasota, for plaintiff in error.
    J. B. Leigh, of Navasota, for defendant in error.
   ■ RYAN, J.

This suit was filed by M. B. Allen against the city of Navasota for damages to his property, situated within and without the city-limits, alleged to have been caused by the-construction by the city, for drainage purposes, of a ditch through plaintiff’s land which; diverted the flood waters from their natural; channel and permitted the ditch to become obstructed so thát the diverted flood waters overflowed plaintiff’s land and injured and destroyed a crop of cotton thereon, then ready for gathering, of the reasonable market value of $1,000, for which judgment was prayed.

Plaintiff’s petition did not allege that notice was given to the city authorities within ninety days after the alleged injury or damages occurred, as prescribed by the city charter, and for that reason the trial court sustained the city’s general demurrer and dismissed the suit; plaintiff having declined to amend. This judgment was affirmed by the Court'of Civil Appeals. 35 S. W. (2d) 486.

Section 7 of article 11 of the charter of the city of Navasota provides: “Before the City shall be liable for damages for injury to one’s person or property, the person injured or damaged or some one in his behalf shall give the Mayor or City Manager notice in writing within ninety days after occurring, of the alleged injury or damages, stating, specifically in such notice when, where, and: how the injury or damage occurred, and the-nature of the same as nearly as practicable.”

It is contended by plaintiff in error that the quoted provision of the charter is contrary to article 1, § 17 of the Constitution, and therefore null and void in so far as damage to property is concerned, as contra-distinguished from damages because of personal injuries.

As the Court of Civil Appeals correctly states, plaintiff’s whole case rests on the plea that the city had no right, as a condition, precedent to liability on its part, to-require him, within ninety days after the occurrence-of such a damage to property, to give it written notice thereof.

We are not concerned with notice to the city (actual or constructive) of defective conditions resulting in damage,. before the damage occurs. . •

In City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693, a personal injury case cited by plaintiff in error, the question was whether the city had -notice prior to the time of the injury. Judge Gaines held tha.t where the city itself by its own procurement made the-street unsafe, and knowingly left it in that condition, no proof of a written anterior notice of the street’s defective condition was necessary.

In City of Houston v. Kleinecke (Tex. Civ. App.) 26 S. W. 250, cited by plaintiff in .error, recovery was sought from the city because of damage to adjacent property result-lug from the city, for drainage purposes, having caused a ditch or canal to be dug in a certain street. Judge Williams held that a charter provision providing nonliability, unless the cause of damage had been made known to the mayor or street commissioner by special notice in writing ten days before the injury occurred, was not applicable.

City of Dallas v. Cooper (Tex. Civ. App.) 34 S. W. 321, cited by plaintiff in error, involved damages to property alleged to have resulted from negligent and unskillful grading and paving of streets and construction of sewers, whereby natural drains were filled up, and the overflow turned upon plaintiff’s property. The city contended that it should have been shown to have had notice of the defective conditions for a sufflcient length of time before the injury occurred to have remedied the same, but the court held that the defective conditions were caused by the city’s servants themselves, and therefore the city was in no condition to invoke the right of prior notice of such conditions.

It was alleged by plaintiff below that the city itself dug the canal and did the work which caused overflows and damages, and therefore anterior notice to the city of defective conditions before the alleged injury to property occurred is not in the case on the present appeal in the present state of the record before us. Willis v. City of San Antonio (Tex. Com. App.) 280 S. W. 569. That was a suit for personal injuries resulting from defective street work performed by the city itself, and the question at issue was whether actual notice of the defect (as required by the charter) had to be brought home to some one having superintendence of work on the streets a sufficient length, of time before the injury was received, to have remedied the defect before the injury occurred. Presiding Judge Harvey, of the Commission of Appeals, held that if the dangerous condition of the street was caused by the act of the city itself, the city will be held to have notice of such condition.

The question involved in those cases was notice of the defect, not of an injury the result of such defect. That line of cases therefore is not applicable here where the question ■is whether notice of damages to property must be- shown, after the damages have occurred, as a condition precedent to a recovery.

In City of San Antonio v. Pfeiffer (Tex. Civ. App.) 216 S. W. 207, 208, it was contended by the city that a charter provision as follows, “Before the city of San Antonio shall be liable for damages of any kind, the person injured, or some one in behalf of such person, shall give the mayor notice in writing of such injury within twenty days after the same has been received, stating in such notice, when, where and how the injury occurred and the extent thereof,” was all-inclusive, and must be construed to mean damages, whether arising from breach of contract or tort of any kind, and.persons who have suffered such damages must give such notice as a condition precedent to a recovery. It was contended by the appellee that the charter provision relates only to damages caused by injuries to the person and not to damages to property, and, as that was a suit for damages to property, such notice after injury was not required to be given. The Court of Civil Appeals sustained appellee, and denied the city’s contention. And in City of San Antonio v. Newnam (Tex. Civ. App.) 201 S. W. 191, which was a suit for the recovery of salary by an alleged illegally discharged officer, it was held that said charter provision did not apply as against the city’s contention that notice was not given as a condition precedent to the maintenance of the suit.

In City of Texarkana v. Roberts (Tex. Civ. App.) 27 S.W.(2d) 551, which was a suit for the recovery of damages to property, the charter being similar to that of San Antonio, it was-held that the terms “injuries,’’ of which notice must be given, ordinarily means injuries to the person, and does not include damage to property.

The charter of the' city of Houston is more comprehensive on the subject. It provides that before the city shall be liable for damages of any kind, or for injuries to or destruction of property of any kind, notice shall be given certain city authorities within ninety days after the same have been sustained. J. H. Cawthorn, an employee of the city, brought suit against it for the recovery of damages, the result of alleged personal injuries sustained by him through the city’s negligence. Judge Powell of this Section of the Commission of Appeals in an exhaustive opinion upheld the validity of the charter, but in that case the charter provision as to notice in the case of personal injuries only Was' involved. It was not a suit involving damages to property, and ⅛ therefore not authoritative here. Cawthorn v. City of Houston (Tex. Com. App.) 231 S. W. 701.

In some jurisdictions* similar provisions requiring notice after injury as a condition to the maintenance of suit for damages to property have been upheld, but in this state the authorities hold that a recovery for the taking or damaging of property is because of the constitutional right to so recover, regardless of the-question of notice.

City of Waco v. Roberts (Tex. Sup.) 48 S.W. (2d) 577, 578, opinion by Chief Justice Cure-ton, seems to us conclusive of the question involved here.

There, Roberts and others, owners of certain improved property approximately two blocks from Waco creek in the city of Waco, filed suit for damages against the city, and alleged that the city changed the channel of said creek by cutting a deep ditch and building a deep embankment in such a way that water was impounded and caused to stand on their land, without' providing proper drainage therefor, thus causing the property to be ■ overflowed and greatly damaged.

Trial was by a jury, which found against the city on all issues. It will be noted that the Waco charter provision on the subject of notice after injury is almost identical with that under consideration here.

Chief Justice Cureton said:

“Counsel for the city of Waco contend that a general demurrer to the plaintiffs petition should have been sustained, because the petition failed to allege that the claim made the basis of the suit was presented to the city council, as required by the city charter. The notice provision of the charter of the city of Waco reads as follows: ‘The City of Waco shall not be held responsible on account of any claim for damage to any person or property unless the person making such complaint or claiming such damáge shall within thirty days after the time at which it is claimed such' damages were inflicted upon such person or property file with the City Secretary a true statement under oath as to the nature and character of such damages or injuries, the extent of the same, and the place where same happened, and the circumstances under which happened, the condition causing same, with a detailed statement of each item of damages and the amount thereof.’
“The Court of Civil Appeals overruled the contention of the city, and with that ruling we are in accord. That court quite correctly said that provisions of this character have been upheld in cases to which they are applicable, but they have no application to cases of the character before us.
“Under the allegations of the petition and the findings of the jury, what the city has done amounts to a taking of the property of the defendants in error without compliance with the mandatory provisions of section 17 of article 1 of the Constitution, which provides that: ‘No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money.’
“ * * * Since the injury done the defendants in error arose out of a taking of their property by the city, in violation of the Constitution, it is obvious that the charter provision as to notice has no application.”

The right to recover damages to property is secured by the Constitution and cannot be taken away by the Legislature. City of Waco v. Roberts, supra.

The Constitution not only prevents the taking of property for public purposes in the physical sense, until paid for, but comprehends such damages as may be peculiar to, or suffered by, the property involved. Hanks v. City of Port Arthur (Tex. Sup.) 48 S.W.(2d) 944.

The judgments of the trial court and of the Court of Civil Appeals sustaining the city’s general demurrer are in conflict with the above authorities, and we therefore recommend that said judgments be reversed, and the cause remanded to the trial court. ■'

CURETON, O. X

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

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


source: Caselaw Access Project

author: CRITZ, J. CUBETON, C. J.

license: Public Domain

text:
    DOMINGUEZ v. GARCIA.
    No. 1583—5949.
    Commission of Appeals of Texas, Section A.
    Oct. 26, 1932.

      J. A. Thomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for plaintiff in error.
    R. G. Hughes, of San Angelo, for defendant in error.
   CRITZ, J.

This suit was filed in the district court of Tom Green county, Tex. Originally several parties were concerned, but this appeal only involves Reyes Dominguez, plaintiff in error, and Carlos Garcia, defendant in error. The property involved is lots 3 and 4, in block 21, Miles addition to the city of San Angelo, Tom Green county, Tex.

We shall hereafter refer to Dominguez as plaintiff, and to Garcia as defendant.

The suit was' instituted by plaintiff, and was tried in the district court on plaintiff’s amended petition and defendant’s amended answer. Plaintiff’s petition is ordinary form of trespass to try title, and in addition thereto he pleads title under the ten-year statute of limitation. Defendant’s ‘ answer contains a general denial and plea of not guilty, and in addition thereto contains a cross-action in form of trespass to try title. The answer nowhere pleads any title in defendant by limitation.

As shown by the opinion of the Court of Civil Appeals, plaintiff proved the legal title to the property in him. This certainly entitles him to recover, unless defendant can prevail under some statute of limitation. In this state of the record, and notwithstanding the fact that the defendant had not pleaded a limitation title, "the trial court submitted issues to the jury involving title by limitation in defendant under both the five and .ten-year statutes of limitation, and these is,-sues were answered in favor of the defend-.•ani. Based on such answers, the district . court entered judgment for the defendant. .-On appeal by the plaintiff to the Court of • Civil Appeals at Austin, Tex., this judgment ■.was reversed, and the cause remanded to the district court for a new trial. 36 S.W.(2d) 299. Plaintiff brings error.

By proper assignment of error, plaintiff contends that the Court of Civil Appeals erred in not rendering judgment in his favor after it had reversed the judgment of the district court, in place of remanding the cause as it did. This contention is based on the fact that the defendant did not plead a title by limitation. It was undoubtedly fundamental error for the trial court to submit issues of a limitation title in favor of defendant when he had pleaded no such title. Of course, if it was error to submit limitation issues under such circumstances, it was also error to render judgment in defendant’s favor on the jury’s findings to such issues. Article 7373, R. C. S. 1925. This statute expressly provides that,- in a trespass to try title action, “the defendant may give in evidence any lawful defense to the action except the defense of limitation, which shall be specially pleaded.”

In spite of the above rule, we do not think the .Court of Civil Appeals erred in refusing to render judgment in fayor of the plaintiff under the facts of this record. It is true that appellate courts will npt reverse judgments in order to allow parties to amend their pleadings to conform to the evidence; but no such question is presented here. The Court of Civil Appeals reversed this case in favor of the plaintiff on errors not involved in the question under discussion. Then, for the first time in his motion for rehearing in the Court of Civil Appeals, the plaintiff contended that judgment should be rendered for him because of the absence of any .pleadings by the defendant asserting a title by limitation. An examination of the record discloses that plaintiff did not object to the submission of the limitation issues on the ground- that there were no pleadings to support. them. Under such a record, the Court of Civil Appeals did not err in refusing to .render judgment for the plaintiff after it had reversed the judgment in his favor on his appeal. Manifestly, such a procedure might result in a miscarriage of justice, and when the ends of justice are best subserved by remanding the cause,, rather than rendering it, appellate courts should follow the former procedure. Waldo v. Galveston, H. & S. A. Ry. Co., 50 S.W.(2d) 274 (Com. App. opinion approved).

Plaintiff earnestly insists that judgment should have been rendered in his favor by the Court of Civil Appeals because he proved the legal title to the land in him, and because the evidence offered in the trial court is not legally sufficient to justify a fact finding in defendant’s favor of title in him by either the five or ten-year statutes of limitation., We have carefully read the statement of facts, and while we are inclined to agree with plaintiff’s contention to the effect that the evidence shown by the record is not legally sufficient to sustain a fact finding in defendant’s favor on .the issues of limitation, still we do not think the case should be here rendered, for the reason that we agree with the holding of the Court of Civil Appeals to the effect that we are not able to say as a matter of law that the facts have been fully developed. .We will not comment further on the evidence, as it may not be the same on another trial.

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

CUBETON, C. J.

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


author: RYAN, J. CURETON, C. J.

text:
    TSESMELIS v. SINTON STATE BANK et al.
    No. 1369—5953.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.

      W. B. Moss, -of Sinton, and Lloyd & Lloyd, of Alice, for plaintiff in error.
    Jas. G. Cook, of Sinton, for defendants in error.
   RYAN, J.

Tbis suit was filed on January 7, 1930, by tbe Sinton State Bank against Gust Tsesmelis to recover upon a promissory note for $725 with 10 per cent, interest from its date and tbe usual 10 per cent, attorney’s fees.

Simultaneously with the filing of tbe suit, a writ of attachment, predicated upon affidavit and bond therefor, was issued and levied upon a lot in Sinton, Tex., and a farm near Sinton, belonging to Tsesmelis.

Tbe affidavit for attachment was made by J. P. Odem, as agent for tbe bank,'and tbe bond was signed, “Sinton State Bank of Sin-ton, Texas, Principal, by J. E. Odem, V. P. & Agt.,” and “J. P. Odem, Pred Johnson, Sureties.”

Tbe defense was that tbe obligation bad been extended and was not then due — that the suit was prematurely brought.

Quashal of the attachment proceedings was prayed on tbe ground that because of such extension there was nothing then due and therefore the affidavit was false and no ground for the attachment existed.

Defendant below also by cross-action claimed $12,500 actual damages and $5,000 exemplary damages based upon the alleged wrongful issuance and levy of the attachment and for the wrongful publication and circulation of the affidavit therefor, the contents of which were alleged to be libelous.

The cross-action asserted against the bank and Odem and Johnson (sureties on the attachment bond) was based upon their several and individual acts in connection with the institution of the suit, the procuring of the writ of attachment and publication of the. alleged libelous affidavit, as well as their liability by reason of their having signed the attachment bond.

The trial court sustained exceptions to and dismissed the cross-action upon the defendant’s refusal to amend. A jury chosen to hear the evidence submitted on the plea in abatement — that the suit was prematurely brought -7-was peremptorily instructed to return a verdict against defendant thereon.

The motion to quash the attachment proceedings was overruled, and final judgment was rendered on March 28, 1930, in favor of the bank for the sum of $748.32 principal and interest due on the note in controversy, and the further sum of $74.83 attorney’s fees, aggregating the sum of $823.15, with interest from date of judgment at the rate of 10 per cent, per annum and costs of suit, and foreclosure of the attachment lien.

Said judgment was affirmed by the Court of Civil Appeals. 35 S.W.(2d) 451.

Opinion.

First. To support a contention that the payment of a negotiable instrument has been extended, there must exist all the elements essential to the execution of a contract (6 Tex. Jur. p. 826), and the agreement for the extension must be for a definite time and mutually bind the parties, payor and payee, the one to forbear suit during the time of extension, and the other his right to pay the debt before the end of that time. Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128; Guerguin v. Boone, 33 Tex. Civ. App. 622, 77 S. W. 630.

In Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, it was said; “Here the creditor agrees to extend for one week, and the debtor agrees to pay within the week. He does not agree that he will not pay until the .end of the week, or that in case he does pay he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor. * * * It was the right of the company to pay at any time,, notwithstanding Pain’s promise, and hence there was no consideration to support that promise.”

The basis of the claim for the alleged extension is a conversation with Odem, vice president of the bank, and a letter from him to plaintiff in error; a portion of the latter’s testimony is as follows:

“That is the note I executed. It shows to-have been made on August 15, 1929, and matured ninety days after date — on November 15,1929. I had a conversation with Mr. Odem about this note after it matured. On the second day of December, 1929, I came to Sinton to pay the rent on a building I had rented-from Mr. Odem and I gave him a check for $75.00 that paid the December rent, and he-took the check and I said, ‘I’ve got a note here-that is due and I want to pay the interest and extend it a little while,’ and he went and got the note and said, ‘Well, we are not going to-extend this note any longer because you are-doing business with another bank here in-town.’ I told him Í couldn’t pay him right then because Mr. Sparks (President of the bank I am doing business with) was gone-right then, and I would have to wait until he-came back, that he wouldn’t be back before, the tenth, and when he came back I would' see him and make arrangements and get the money and pay off the note, and he said, ‘All right, you can pay the interest on this note and I will give you ten or fifteen days to get the money.’ So I didn’t come back any more and on the 13th or 14th of December I got a letter from Mr. Odem. * * * 1 tore this letter up.' A day or two later I wrote them a letter and told them I couldn’t get the money, that I would come to Sinton and see Mr. Sparks, and told him that I would pay him $100.00 in thirty days, $100.00 in sixty days, and $100.00 in ninety days. I got a letter from Mr. Odem about the 18th or 20th of the month.”

Said letter, dated December 18, 1929, is as follows:

“With reference to your note of $725.00, since you state that you are unable to obtain credit we will expect a payment'of $100-00 at once and a similar amount thirty and sixty and ninety days. We do not care to extend the old note, but will hold the time of payment in abeyance as above stated.
“Yours very truly,
“J. E. Odem, Vicé-President.”
“A day or two after I got this letter I wrote the bank and told them I would pay the first $100.00 on January 1, 1930.”

Several days later a check for $100 on the Commercial State Bank of Sinton, signed by Oust Tsesmelis and Jack Lymbery, was mailed to Mr. Odem. The check bore date January 6, 1930, and the postal mark on the envelope is stamped 6 p. m., January 7th. This check was received in the morning mail on January 8th and immediately returned to Tsesmelis in the following communication:

“We are in receipt today your check on the Commercial State Bank of Sinton, dated January 6, 1930, and payable to the order of J. E. Odem for $100.00, with the following notation on the check: ‘For first note.’ We are returning herewith your check for the reason that your note has been placed in the hands of our attorney for collection on which attorney’s fees have accrued. You will therefore communicate with Mr. Jas. G. Cook, who is attending to the collection of your note for ,us.
“Yours very truly,
“J. F. Odem, Vice-President.”

The above testimony shows a mere forbearance or indulgence on the creditor’s part; the negotiations eventuated in no agreement of grace for any definite period of time, and therefore no valid contract of extension resulted. Kirby v. Am. State Bank (Tex. Com. App.) 18 S.W.(2d) 599, 63 A. L. R. 1528; International Shoe Co. v. Kaufman (Tex. Civ. App.) 270 S. W. 1109.

Tsesmelis testified also that he would have the right to pay the debt at any time; this of itself is fatal to the claim of extension. Dickson v. Kilgore State Bank (Tex. Com. App.) 257 S. W. 867; Ellerd v. Ferguson (Tex. Civ. App.) 218 S. W. 605; Neyland v. Lanier (Tex. Civ. App.) 273 S. W. 1022.

No valid extension of the note having been had, it was past due when the suit was filed. The note provided for payment of an additional 10 per cent, thereon, if placed in the hands of an attorney for collection, to be paid by the maker. No issue was made of its reasonableness and judgment was properly rendered for such attorney's fee. First Nat’l Bank of Eagle Lake v. Robinson, 104 Tex. 166, 135 S. W. 372; Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; Brannin v. Richardson, 108 Tex. 112, 185 S. W. 562.

Second. Whether the matters stated in the affidavit for attachment be true, or not (they complying with the statutory requirements), can be reached only by plea and not by motion to quash.

If a valid extension of the note had been shown and therefore the suit had been prematurely brought, the attachment proceedings would of course fall, but as said in Dwyer v. Testard, 65 Tex. 432, “the validity of the writ [of attachment] depends, not upon the truth of the facts stated in the affidavit, but upon .the fact that they, are so stated.” To the same effect is the lidding in Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470, 472, where it was said: “When the affidavit made by the plaintiff for attachment complies with the statute, and the writ is issued and levied, the lien of the attachment attaches to the property, and the court must foreclose it, although the allegations of the affidavit may not be true in fact.”

The lien was properly foreclosed.

The defendant’s answer alleged: (a) A general denial and specially that the suit was prematurely brought because of a claimed extension in time of payment, which contention has been disposed of adversely to him, as above stated; (b) by way of cross-action, that the affidavit for attachment is false and “not being content with filing such affidavit plaintiff and the sureties on his bond told other and divers persons of its contents and that they had sued defendant and attached his property” which constituted a libel “done in furtherance of the design and conspiracy to injure, libel and harass the defendant and to destroy and ruin his credit and business standing”; (c) that after the writ of attachment was levied, certain other parties offered to trade such property for other property belonging to them, which would have profited defendant in the sum of $2,500, but upon learning of the levy, refused to consummate the trade.

The mere levy of a writ of attachment upon real estate, not being attended with any disturbance of the possession, use, or enjoyment by the owner, will not authorize a recovery of actual or exemplary damages. Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564; Drew v. Ellis, 6 Tex. Civ. App. 507, 26 S. W. 95; Spillman v. Weston (Tex. Civ. App.) 200 S. W. 557; Osear v. Sackville (Tex. Civ. App.) 270 S. W. 897; Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S. W. 916.

However, recovery may be bad for such a levy, if wrongful, on a showing that it was the proximate cause of defeating an advantageous sale or trade of the property and the land subsequently depreciated in value, and that the deal was pending when the attachment was levied, or that the plaintiff in attachment had knowledge that a trade was about to be made, and that it was, after the levy, consummated without knowledge of the levy having been made. Where no contention is made that property depreciated in value subsequent to a levy thereon, no recovery may be had upon allegations that the attachment prevented a sale of the land and the application of the proceeds to the payment of the owner’s debts or that the negotiation of a loan was prevented thereby. 5 Tex. Jur. p. 269. ’ . ■

Here, the allegation is that it was after levy of the writ that the defendant was approached by a third party to trade for other property. He made, no allegation to the effect that any trade was pending at the time of the levy and that the bank had any knowledge thereof, nor that the property depreciated in value, nor that he had been disturbed in his possession.

We agree with the Court of Civil Appeals in their holding that the facts stated do not show a right to recover as for libel. The allegation was that the affidavit for attachment, wherein it is stated that defendant is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors, is false and untrue and its contents constitute libel, that said statement is derogatory of this defendant and wrongfully accuses him of things that are untrue, that plaintiff and cross-defendants have told other and divers.persons of its contents, and that they had sued defendant and attached his property and have thereby published and made such libel known to divers persons—all done in furtherance of the design and conspiracy of plaintiff and cross-defendants to injure, libel, and harass the defendant and to destroy and ruin his credit and business standing.

The trial court correctly sustained exceptions thereto, and on declination to amend said cross-action, it was properly dismissed. Vacicek v. Trojack (Tex. Civ. App.) 226 S. W. 505; Linney v. Matón, 13 Tex. 449.

We are of opinion that the averments in the affidavit for attachment were privileged and cannot be made the basis of a suit for libel. As said in Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 724, 3 L. R. A. 417, 13 Am. St. Rep. 833, “where property is attacked upon false charges, * * * the law affords ample remedies * * * but not by a suit for libel.”

Motions and'affidavits filed in a Civil case before a court having jurisdiction are absolutely privileged, provided the matter contained therein is either relevant or pertinent to the issue. 25 Cyc. 378.

Here, the bank complied with the statute, had the statutory affidavit made, and gave the statutory bond. We fail to see anything wrong in so doing.

But it is contended that the libel consisted, not in the making of the affidavit or in the proceedings themselves, but in the publication and dissemination thereof, and Baten v. Houston Oil Company (Tex. Civ. App.) 217 S. W. 394, is cited in support of such contention. It was there held: (1) That words spoken, written, or printed in the course of a judicial proceeding are privileged, when material, relevant and pertinent to the issues involved in the case; (2) the method of publication or circulation of a document otherwise privileged may deprive such document of its privileged character and transform it into a libel. But this must be properly alleged, which as we have seen above was not done. Runge v. Franklin, supra.

Third. Plaintiff in error contends that it was error for the trial court to award a greater rate of interest than 6 per cent, on the amount recovered as attorney’s fees, and that such portion of the judgment should bear interest at the legal rate, only.

Article 5672, Rev. Stat. 1925, reads 'as follows: “All judgments of the courts of this State shall bear interest at the rate of six per cent per annum from and after the date of the’ judgment, except where the contract upon which the judgment is founded hears a specified interest greater than six per cent per an-num and not exceeding ten per cent per an-num, in ivhich case the judgment shall hear the same rate of interest specified in such contract and after the date of such judgment.”

The defendant in error bank contends that the provision regarding attorney’s fees is for a stated, liquidated sum of 10 per cent, and is incident to the main debt and so connected with it as to make it a part of the contract, and therefore the statutory provision that the judgment shall bear the same rate of interest specified in the contract should apply.

The obligation of the note is to pay the principal “with interest at ten per cent per annum from date until paid and ten per cent additional on amount of principal and interest unpaid, as attorney’s fees, if placed in the hands of an attorney for collection.”

It is clear that no separate, special agreement to pay interest on the. attorney’s fee as a separate item is contained in the note; such agreement to pay interest at 10 per cent, per annum is referable only to the principal, eo nomine, and the contention of plaintiff in error must be sustained, unless the stipulation for an attorney’s fee, when earned, is incident to the debt and so connected with it as to make it a part of the contract to pay ¡ten per cent, interest.

In Washington v. First National Bank of ■ Denton, 64 Tex. 4, it was held that attorney’s fees provided for in the note sued on were incident to the main debt, resembling the interest agreed upon in the note. The court said: “As it is now the settled law of this state that the interest incorporated into a judgment, if above eight per cent [the legal rate when said case was decided], bears interest thereafter, and at the conventional rate, there can be no reason why the percentage allowed for attorneys’ fees should not bear interest at the same rate. The right to recover interest upon interest after judgment at a conventional rate does not rest upon the ground that * * * interest shall be computed in this way. Hence the fact that there is no agreement that the attorneys’ fees shall bear interest at a greater rate than eight per cent, cannot affect the question. * * * ' We think the court below properly allowed the whole judgment rendered to bear interest at twelve per cent, [conventional rate].”

In Krause v. Pope, 78 Tex. 478, 14 S. W. 616, judgment was rendered by the Supreme Court for the aggregate of principal, interest, and attorney’s fees, and 10 per cent, per annum interest on such gross amount.

In Sanders v. 'City National Bank (Tex.) 12 *S. W. 110, the judgment included principal, interest, attorney’s fees as by the note provided, and protest fees, and was made to bear the same interest rate contracted for in the note. The Supreme Court, through Chief Justice Stayton, said there was no error in this.

In accord with the above holding is the Austin Court of Civil Appeals in Lyons v. Iron City Bank, 24 S. W. 304; the San Antonio Court of Civil Appeals in Carver v. J. S. Mayfield Lumber Co., 29 Tex. Civ. App. 434, 68 S. W. 711 (writ of error denied); the Eastland Court of Civil Appeals in Manes v. J. I. Case Threshing Machine Co., 295 S. W. 281, 283, and the Amarillo Court of Civil Appeals in Chenault v. Honaker, 261 S. W. 825.

In Stanton v. Security Bank & Trust Co. (Tex. Com. App.) 244 S. W. 593, relied on by plaintiff in error in support of his position, the Commission of. Appeals found the cause of action as pleaded was twofold. Recovery was sought upon the note proper for a liquidated amount. On the other hand, recovery was also sought for an unliquidated amount based upon a pledge of collateral, containing a provision for liability for all protests, damages, costs, and interests and charges due ■upon the note there in controversy or in other liabilities, or in the execution of the power to pell the collateral, together with costs of collection including attorney’s fees.

That ease is clearly distinguishable from the present one. As said in Manes v. J. I. Case Threshing Machine Co., supra: “The opinion distinguishes that case from the ordinary note by stating that the attorneys’ fees were not incident to the main debt or so connected with the principal of the note that an agreement to make the fee a part of the principal to draw like interest with it can be implied. In this ease the provision regarding attorneys’ fees is for a liquidated amount of ten per cent., and is clearly incident to the main debt, and so connected with it as to make it a part of the contract, and we can see no reason why the statutory provision that the judgment shall bear the same rate of interest specified in the contract should not apply.”

Green v. Noah (Tex. Civ. App.) 24 S.W.(2d) 1113, is also relied on by plaintiff in error. This case cites Stanton v. Security Bank & Trust Co., supra, as authority for the proposition that only 6 per cent, interest may be allowed on that part of the judgment evidencing the attorney’s fees. This, as we have shown above, is a misconception of the holding in the Stanton Case.

Where attorney’s fees are included in a judgment, they bear interest at the same rate as the principal sum, is the conclusion arrived at by the editor of Encyclopedia of Law and Procedure, citing our Texas cases. 22 Cyc. 1521, 1568.

We are of the opinion that the judgments of the district court and Court of Civil Appeals are correct, and therefore recommend that they be affirmed.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


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

text:
    TRUJILLO v. PIAROTE et al.
    No. 1368 — 5951.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.
    Harrison, Scott & Rasberry, of El Paso, for appellant.
    R. A. D. Morton, Dave Mulcahy, and Fryer & Cunningham, all of El Paso, for appellees.
   LEDDY, J.

The honorable Court of Civil Appeals for the Eighth Supreme Judicial District presents for the determination of the Supreme Court the following statement and question:

“On June 23rd, 1925, the Commissioners’ Court of El Paso County entered an order approving the report of a Jury of View theretofore appointed to lay out a public road. The order awarded damages in the sum of $700.00 to Porfiria Trujillo ‘or her heirs.’ On January 30th, 1928, the appellee, Mrs. Andrea Tapia Piarote, individually, and as independent executrix of the estate of George Piarote, deceased, filed a suit in the County Court at Law of El Paso County against Mrs. Gregoria Piarote Colmenero, the County of El Paso ‘and the unknown heirs of Porfiria Trujillo, deceased.’
“In this petition the award of $700.00 damages to Porfiria Trujillo, or her heirs, was alleged, and that Porfiria Trujillo was dead; that during her lifetime she married Mel-quíades Trujillo, who died prior to her death; that of the union three children were -born, to-wit: Angelíta, Meliton and Santos; that neither of said children were ever married and had died without issue; that George Piarote was a brother of Porfiria Trujillo and the defendant Gregoria Piarote Colmenero is .a sister of Porfiria Trujillo, and that Porfiria Trujillo left no other heirs; that plaintiff and the defendant Colmenero were entitled to said sum of $700.00.
“The. plaintiff prayed judgment for said sum, or so much thereof as she might be entitled to.
“The unknown heirs of Porfiria Trujillo were cited by publication and an attorney appointed to represent them in the action. The attorney answered 'by general demurrer and general denial.
. “On June 4, 1928, judgment was rendered in said suit against El Paso County in favor of the said plaintiff for $350.00, and against the County in favor of Gregoria Piarote Col-menero for $350.00, and further provided ‘that the Treasurer of said County of El Paso, Texas, be and is hereby authorized and ordered to pay said sums of money to said parties upon each of them giving ¡bond with two good and sufficient sureties payable to said Treasurer, in the sum of. Three Hundred and Fifty ($350.00) Dollars each, conditioned upon the return of said money to said Treasurer, in the event that the unknown heirs of said Porfiria Trujillo show themselves entitled to the same.’
“The record before us does not disclose the pleadings filed in said suit toy El Paso County and Mrs. Colmenero, tout the judgment recites that the County appeared toy- its County Attorney and Mrs. Colmenero appeared in person.
“The judgment recites that after hearing the pleadings and the evidence the court was of the opinion that the plaintiff was entitled to $350.00 and Mrs. Colmenero entitled to a like sum. Bonds, with A. Apodaca and Frank Candelaria as sureties, were executed by the ■plaintiff and Mrs. Colmenero and the money paid by the County as the judgment directed, said -bonds containing the following condition:
“ ‘Now if said County of El Paso is not forced to pay said sum to said unknown heirs then this obligation to be void.’
“On August 19, 1929, the appellant, Santos Trujillo filed a motion in said suit which he designates as a motion for a new trial and petition for review, in which he sets up the following facts:' The award of $700.00, as aforesaid, to the heirs of Porfiria Trujillo; the marriage of Porfiria Trujillo, -the death of her husband and her death, and that he, Santos Trujillo, is the only surviving child and heir at law of the said Porfiria Trujillo; the motion also alleged the filing of the aforesaid suit by Andrea Tapia Piarote, the rendition of the judgment of June 4, 1928, the execution of the bonds aforesaid and the payment of said judgment by El Paso County. He further set up that he was not represented by counsel of his own choosing in that case, and knew nothing about any of the proceedings above mentioned and that under the provisions of Section 1, Art. 2236, R. S. he is entitled to a new trial and, as the only living child of Porfiria Trujillo, is entitled to the fund. He prayed for process against the said Candelaria ahd Apodaca, and the-other parties to the judgment of June 4, 1928; that said judgment toe set aside, and a new trial granted, and upon final hearing that he have judgment for the sum of $700.00 against the plaintiff and the defendants in said suit and against the said Apodaca and Candelaria.
“The motion was verified and in due form, and showed that plaintiff was the only heir at law of Porfiria Trujillo and entitled to the fund.
“El Paso County answered the motion toy general demurrer, general denial and special answer setting up the suit toy Mrs. Piarote and judgment of June 4, 1928, and payment as ordered by said judgment. It also asked for judgment over against Mrs. Piarote and Mrs. Colmenero and the sureties Candelaria and Apodaca in the event of a recovery against it toy Santos Trujillo. By agreement of parties action on the motion was continued from time to time without prejudice to their rights.
“On December 16, 1930, the Motion of Santos Trujillo came on to be considered and was heard toy the court without a jury and judgment rendered setting aside and holding for naught the judgment of June 4th, 1928, and that Santos Trujillo recover of Andrea Tapia Piarote, individually, and as independent executrix of the estate of George Piarote, deceased, the sum of $350.00, with interest, and in favor of Santos Trujillo for a like sum against Gregoria Piarote Colmenero, with interest, and denied any recovery against El Paso County, Apodaca and Candelaria.
“The Court’s findings show that Santos Trujillo was the only surviving child and heir at law of Porfiria Trujillo, deceased, and as such was the one lawfully entitled to the said sum of'$700,00 damages awarded in the condemnation proceedings, as aforesaid:
“From the aforesaid judgment of December 16, 1930, Santos Trujillo prosecutes this appeal, complaining only of that portion of the judgment denying him recovery against El Paso County for said sum of $700.00.
“This Court deems it advisable to submit to the Supreme Court for adjudication, under Article 1851, Revised Statutes, and it does hereby respectfully so present to such Court this question: Upon the facts stated, is the said Santos Trujillo entitled to judgment against El Paso County for said sum of $700.-00?”

A proceeding to set aside a judgment rendered under service of process by publication is not a bill of review, tout a motion for new trial in the case in which such judgment has been rendered. Article 2236, R. S. 1925, merely operates to extend the time in which a motion for new trial may toe filed in cases where the judgment is rendered upon constructive, rather than actual, service of process. Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662; Wiseman v. Cottingha-m, 107 Tex. 68, 174 S. W. 281; Rabinowitz v. Darnall (Tex. Com. App.) 13 S.W.(2d) 73; Texas Co. v. Dunlap (Tex. Civ. App.) 21 S; W.(2d) 707.

A judgment rendered upon constructive service does not become final until two years have elapsed from tlie date of its rendition. Rabinowitz v. Darnall, supra. When a motion for new trial,.filed within the .time provided by article 2236, has been granted in a case of this hind, the case stands upon the docket, as between the parties, in the same condition as if the judgment had never been rendered. All burdens placed upon the person against whom the judgment has 'been rendered are effectually removed when the motion for a new trial has been granted; just as in any other case where a judgment has been set aside upon a defendant’s motion for a new trial. Glaze v. Johnson, above cited.

But it is contended that under subdivision 3 of article 2236 appellant’s only remedy was against the persons to whom the county had paid the sums .awarded under the original judgment. The provision of the statute relied upon reads as follows: “If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.”

By its very terms this statute only applies in a case where property has been sold under execution. This is not that sort of a case. By no process of construction can the statute be extended so as to apply to the facts of this case. It is not contended that any property was sold under execution. In fact, the statute expressly prohibits the • issuance of an execution against a county. Article 1575, R. S. 1925. Even in cases where property has been sold under execution, the statute has been construed to protect only strangers to the suit who may have purchased at the execution sale. A party to the suit who becomes a purchaser at such sale is not protected in his title to the property so acquired if a motion for new trial is subsequently granted. This Commission, in Texas Co. v. Dunlap, 41 S.W. (2d) 42, 43, in approving the holding to this effect by the Court of Civil Appeals in Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662, said: “Article 2236, R. S. 1925, was there construed as having no application where the plaintiff in judgment is the purchaser at- his own execution sale. It was determined that, where the plaintiff in judgment purchases at the execution sale and subsequently conveys the property to others for value, the granting of a motion for a new trial and setting aside the judgment puts an end to the title so acquired, and this regardless of whether the persons claiming title under the execution sale were made parties to the -proceedings for a new trial in the original cause. The rule is otherwise, where a third party purchases at the execution sale. The title thus acquired is not affected by the subsequent granting of a motion for new trial.”

The county could have released itself from liability in this case by paying into the registry of the court the amount admittedly owed for the land it had condemned, with a request that the court determine to whom the funds lawfully belonged. 18 C. J. p. 778; Roberts v. Bludworth (Tex. Civ. App.) 295 S. W. 210.

It is urged that the county should be freed from liability to appellant because it paid the amount of the judgment under specific direction of the court. The court did not unconditionally order the county to pay the judgment awarded against it. The order for payment by the county was expressly conditioned that it pay the amount awarded to the two defendants “upon each of them giving bond with two good and sufficient sureties, payable to said treasurer in the sum of $350 each, conditioned upon the return of said money to said treasurer in the event that the unknown heirs of said Porfiria Trujillo showed themselves entitled to the same.” It thus appears that under this direction the county was ordered to pay the judgment only when it had indemnified itself against a repayment by demanding the delivery of the bond provided for therein.

If the county is not fully protected against a repayment of the original judgment, it is because of its own lack of diligence in failing to demand the delivery of a bond with solvent sureties. Since this is true, it is in no position to insist that it should not pay appellant the amount shown to be justly due him.

We recommend that the question certified be answered in the affirmative.

CURETON, C. J.

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


author: HAWKINS, J.

text:
    JANUARY v. STATE.
    No. 15560.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Earl M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor; punishment being one year in the penitentiary.

No statement of facts or bills of exception are found in the record. The indictment appears regular on its face. In such condition nothing is presented for review.

The judgment is affirmed;


author: MORROW, P. j.

text:
    J. P. JANUARY v. STATE.
    No. 15557.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Earl M. Greer, of Wills Point, for appellant.
    ■Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. j.

The unlawful possession of a still for the manufacture of intoxicating liquor is the offense ; penalty assessed at confinement in the penitentiary for one year.

The record is before this court without statement of facts and bills of exception. The proceedings.appear regular.

The judgment is- affirmed.


author: CHRISTIAN, J.

text:
    BOWLING v. STATE.
    No. 15291.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    C. E. Sentell, of Snyder, for appellant.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Under an indictment charging him with making an aggravated assault upon T. C. Glenn, appellant was convicted of simple assault, and his punishment assessed at a fine of $25.

T. O. Glenn had had some trouble with some Mexican boys about á donkey belonging to his boy. According .to the testimony of appellant’s witnesses at the time of this trouble Air. Glenn had threatened to kill the father of the' Mexican boys as well as appellant. Appellant testified' that this threat was communicated to him. “ On the day of the difficulty between appellant and Mr. Glenn, according to the "version of the state, appellant’s boys were down the road near appellant’s place of business riding a- donkey. The injured party went in their direction and was attacked by appellant with a brick and a piece of iron bar. At the time of this attack, the injured party, according to his own' testimony, had a knife in his hand. He said he did not know whether it was open or - not. The injured party was severely bruised as a result of the blows with the iron bar. According to his testimony, he was 76 years old and weighed 140 pounds, while appellant .was about 55 years old and weighed 170 pounds.

Appellant testified that Mr. Glenn, the injured party, was going in the direction of his boys, with an open knife in his hand and a dirk in his belt; that, as he approached, the injured party reached for the dirk- and started toward him, mumbling; that he threw a brick at the injured party and struck him with the iron bar for the purpose of preventing the-attack-upon him, and, further, in an endeavor to protect his- children. Mr. Glenn denied that he had made any attack upon appellant. He declared that he thought the boys were riding his son’s-donkey and had gone down there to investigate; that, discovering that he was mistaken he had started back home when he was attacked by appellant. He denied that he had ever made any threats to kill appellant or to do him bodily injury.

A bill of exception prepared by the court presents the following occurrence: Upon cross-exámination by appellant’s counsel, the injured party was asked a question as follows: “Isn’t it a fact that a few months before this trouble that you had some trouble with Mr. Bowling (appellant) at his filling station?” The witness answered: “I didn’t go down there because he had been having a lot of trouble with other people and everybody told me he was always having trouble and beating people up and I knew he was that kind of a man, and I didn’t go there.” Appellant objected to the-answer on the ground that it was not responsive to the question, was prejudicial and hearsay, and asked the court to require the witness to confine his testimony to the questions asked, and, further, to instruct the jury not to'consider the statement about appellant’s trouble with other people. The court overruled the objection and stated that thq witness had answered the question, and advised the counsel to proceed with the examination. Appellant had not placed in issue his - general reputation for being peaceable and law-abiding. The answer of the witness was not responsive to the question. It conveyed to the jury the information that other people had said that appellant was having a lot of trouble and committing assaults on people generally. The statement was hearsay and inadmissible, and should, upon appellant’s motion, have been withdrawn from the jury.

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:
    SWOR v. STATE.
    NO. 15584.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    E. S. Jones, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for aggravated assault; punishment being a fine of $25.

No statement of facts or bills of exception are found in the record. .The indictment appears regular on its face. "In this condition of the record nothing is presented for review.

The judgment is affirmed.


author: CALHOUN, J.

text:
    BARNES v. STATE.
    No. 15582.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, burglary; the punishment, 12 years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    ATOR v. STATE.
    No. 15544.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    J. T. Ranspot, of Mineral Wells, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

We find no statement of facts or hills of exception in the record. The indictment appears regular on its face. Nothing is presented for review.

The judgment is .affirmed.


text:
    VINES v. STATE.
    No. 15642.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    '" Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary. The indictment is regular on its face. No statement of facts or bills of exception appear in the record. Nothing is presented for review.

The judgment is affirmed.


text:
    BARBEE v. STATE.
    No. 15502.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    B. E. Reynolds and Jeff A. Eowler, both of Throekmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for twenty years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    ACHTERBERG v. STATE.
    No. 15607.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    I. J. Burns, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary. Punishment, two years in the penitentiary.

The indictment is regular on its face. No statement of facts or bills of exception are found in the record. In this condition nothing is presented for review.

The judgment is affirmed.


text:
    KING v. STATE.
    No. 15625.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Harold H. Young; of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol, punishment being a fine of $100.

The indictment is regular. ■ .No statement of facts or bills of exception are found in the record. In that condition nothing is preesnt-ed for review.

The judgment is affirmed.


text:
    WILKERSON v. STATE.
    No. 15470.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Joe Ellington, of Center, 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. The record contains neither statement of facts nor bills of exception. The indictment appeárs regular on its face.

Under these circumstances, nothing is presented for review, and the judgment will be affirmed.


text:
    ALLEN v. STATE.
    No. 15511.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    McKinney, Henson & Thomason, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   HAWKINS, J.

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

The record is before us without statement of facts or bills of exception. The indictment appears regular on its face. In such condition nothing is presented for review.

The judgment is affirmed.


author: HAWKINS, J..

text:
    CRAWFORD v. STATE.
    No. 15530.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.

      Denman & Fowler, of Nacogdoches, for appellant;
    Lloyd W. Davidson, State’s Átty., of Austin, for the State.
   HAWKINS, J..

Conviction- is for aggravated assault, punishment being a fine of $150i

No statement of facts is found'in the record, and no bills of exception are brought forward complaining of any procedure during the -trial. The indictment charges the offense of which appellant was convicted. Under the circumstances,- nothing is presented for review.

■ The judgment is affirmed.


text:
    PARKER v. STATE.
    No. 15259.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellant.
    Lloyd W. Davidson,. State’s Atty., of Austin, for the State. .
   CHRISTIAN, J.

The offense is bigamy; the punishment; confinement in the penitentiary • for- three years. --- ■

Omitting the .formal parts, the fifth count -of the indictment, under which appellant was convicted,"reads'as follows: “Dawson P. Parker, on orabout the 10th day of January, A. D. 1931, and anterior to the presentment of this indictment, in the county of Gray and state of Texas, did -then and there unlawfully marry Evelyn Zimmerman, he, the .said Dawson-P. Parker, then and there having a former-wife, ■ to-wit, Mildred Parker (nee Chism) then' living, and . he, the said Dawson P. Parker, h'a'd theretofore, to-wit on or about the~7th day of September, A. D. 1928, lawfully married hér, the'sáid Mildred Parker (nee Chism).”

.Our disposition of the. case makes it unnecessary -to discuss the first, second, and third counts -of the indictment. The fourth count avers that the name of- the former wife was Frances Parker (nSe Vallier), whom appellant .had married- on or about July 4, 1927, and who was living at the time appellant married Evelyn Zimmerman. The state introduced in evidence a certified copy of a marriage license issued to Dawson P. Parker and Miss Elsie Bland by the county clerk of Grayson county on the 13th day of May, 1926. The return on this instrument shows the parties named in the license were united in marriage on the 17th day of May; 1926. No effort was made to identify appellant as the party named in this license. - Also the state introduced in evidence a marriage license issued to Dawson P. Parker .and Miss Frances Val-lier by the county clerk of Wichita county, Tex., on July 1, 1927. The return on this instrument shows that the parties named in •the. license were united in marriage July 4, 1927. Mrs.. Shelton, a witness for the state, testified that -she-. witnessed the... marriage ceremony between . appellant and Miss Frances Vallier in Wichita Falls -on July 4, 1927. She said that-the ceremony was performed by a Presbyterian minister. Further, she testified that she had known appellant and Miss Vallier- .about a year before they married. Again; she testified that the parties had not at any time been divorced from each other, in support of the fifth count of the indictment, under which appellant was convicted, the state introduced in evidence a marriage license issued to Dawson P. Parker and Miss-Mildred Chism by the‘county clerk of Lubbock county' on the 20th day of September, 1928. The return'on this license shows ihat the parties named therein were married on the date the- license waá issued. Further, the state introduced the witness Owens, who testified that he went with appellant to the clerk’s office at the time he secured the license authorizing his marriage to Mildred Chism, and that from there he went to the office of the justice of the peace with the parties where they were united in marriage. He testified, further, that after the ceremony the parties lived in Clayton, Tex., where they held themselves out as man and wife. Miss Chism was called to the door by the district attorney and identified as the party named in the marriage license. The state then showed that appellant married Evelyn Zimmerman. Circumstantially the state showed that Frances Vallier was still living. After_ making all of the aforesaid proof, the state introduced in evidence a judgment of the district court of Dallas county granting Elsie Parker (née Bland) a divorce from D. P. Parker, the date of the entry of the decree being December 12, 1927. It appears that this decree was entered approximately four months after appellant married Miss Frances Vallier. There is no proof in the record idem tifying appellant as the party referred to in the decree of divorce.

It was evidently the theory of the state that appellant had married Elsie Bland, from whom he was divorced on December 12, 1927, as shown by a divorce decree entered in the district court of Dallas county, Tex.; that prior to being divorced from Elsie Bland and while she was his lawful wife, appellant, on the 4th day of July, 1927, married Miss Frances Vallier; that the marriage to Miss Vallier was bigamous, inasmuch as Elsie Bland was, at the time of such marriage, appellant’s lawful wife; that on the 7th day of September, 1928, appellant married Mildred Chism, who was his lawful wife at the time of his marriage to Evelyn Zimmerman, as alleged in the fifth count of the indictment, under which appellant was convicted. In order to sustain the state’s theory, it .was-necessary to prove beyond a reasonable doubt that at the time appellant married Evelyn Zimmerman he had been previously legally married to Mildred Chism, and that she was living at the time of his marriage to Miss Zimmerman. Article 490, P. C.; Rogers v. State, 83 Tex. Cr. R. 526, 204 S. W. 222; Goad v. State, 51 Tex. Cr. R. 393, 102 S. W. 121.

If at the time appellant married Miss Zimmerman he had been previously legally married to Frances .Vallier, and she was alive and his legal wife at the time of his marriage to Miss Zimmerman, appellant was not guilty under the fifth count of the indictment, by reason of the fact that the marriage to Mildred Chism would have been bigamous. We quote from Texas Jurisprudence, vol. 6, page 546, as follows: “A prosecution for unlawful marriage can be sustained only by allegation and proof of a prior,, valid marriage for upon this depends the-criminality of the second or bigamous marriage. If the defendant was legally married to another person at the time he contracted the alleged prior marriage, this renders such alleged marriage invalid, and, therefore, not a sufficient marriage upon which to predicate a prosecution for bigamy. It is essential in this crime that the first marriage be-legal and the second illegal.”

See Oxford v. State, 107 Tex. Cr. R. 231,. 296 S. W. 535, and McCombs v. State, 50 Tex. Cr. R. 490, 99 S. W. 1017, 9 L. R. A. (N. S.) 1036, 123 Am. St. Rep. 855, 14 Ann. Cas. 72.

In view of the fact that it was shown that appellant had married Miss Frances Val-lier, and that she was still living and undi-vorced from appellant at the time of his marriage to Miss Evelyn Zimmerman, the-state undertook to show that appellant’s marriage to Miss Vallier was illegal. In support of the theory that such marriage was illegal, the state introduced in evidence a marriage license issued-to Dawson P. Parker and Elsie Bland on the 13th of May, 1926, with the return thereon showing that the parties named in the license had been married on the 17th of May, 1926. Further, the state introduced a certified copy of a divorce decree entered by the district court of Dallas county on December 12, 1927, showing that the marriage relation between Elsie Parker and D. P. Parker had been dissolved, and that the maiden name of the plaintiff, Elsie Bland, had been restored. In the same connection the state introduced proof to the effect that prior to the entry of the divorce decree last mentioned appellant had married Miss Frances Vallier. As heretofore stated, the state offered no testimony that appellant was the person who was mentioned in the marriage license issued to Dawson P. Parker and Elsie Bland, and that he was the person from whom Elsie Bland secured a divorce in December, 1927. In order to establish the fact that appellant’s marriage to Frances Vallier was bigamous, and therefore illegal, it was incumbent upon the state to show that appellant was the person who married Elsie Bland, and that it was from appellant Elsie Bland secured a divorce in 1927, after his marriage to Frances Vallier. The question is: Did the state discharge the burden of establishing the identity of appellant in relation to these matters by merely introducing a marriage license issued to Dawson P. Parker and Elsie Blaud and a divorce decree dissolving the marriage relation between D. P. Parker and Elsie Bland? From Texas Jurisprudence, vol. 6, page 568, the following is taken: “in order to sustain a conviction, the state must prove the two marriages alleged in the indictment, and show that the defendant was the same person who entered into both of the alleged marriages. In other words, the state must establish the identity of the accused. If proof of the first alleged marriage is made by the introduction of the marriage license, the .state must establish that the defendant is the person who is mentioned in the license. The identification may be established by the testimony of witnesses, by other direct proof, or by circumstances from which the jury may draw the inference of identity.”

In the case’ of Goad v. State, 51 Tex. Cr. R. 393, 102 S. W. 121, the state introduced a •certified copy of a marriage license issued to G. M. Goad and M. I*. Mashburn. The indictment charged that the former wife was M. L. Mashburn before she married the appellant, who was named in the indictment as G. M. Goad. The state made no effort to identify the appellant, either by direct proof or by circumstances, as being the G. M. Goad .mentioned in the marriage license. In reversing the judgment, this court held that without identification of the appellant by other proof, either by direct or circumstantial evidence, as one of the parties referred to in the marriage license, the evidence was insufficient. This holding was followed in Rogers v. State, 83 Tex. Cr. R. 526, 204 S. W. 222. In Jones v. State, 112 Tex. Cr. R. 470, 17 S.W.(2d) 1053, 1054, the appellant was convicted of bigamy. In the original opinion, ■Judge Lattimore, speaking for the court, used language as follows: “We have held that without identification of the accused by other testimony, as one of the parties referred to in the marriage license, such license or certified copy thereof would be insufficient to show him to have been theretofore married.”

It is true that in Jones’ Case the court was concerned with the question as to whether the -appellant should have been permitted to introduce in evidence a certified copy of a marriage license, and that the conclusion was finally reached by the court, in disposing of the motion for rehearing, that a certificate of marriage duly registered and filed among the papers, and notice given as required by the statute, was not to be held inadmissible, in the absence of proof by way of predicate of the identity of the parties. The court said in Jones’ Case that the sufficiency of the evi-•denee was not the legal question involved in the appeal, and referred to the fact that it had been held by this court that the registration of a marriage certificate in another state was not sufficient proof of the marriage, in .the absence of proof of the identity of the parties, citing Goad v. State, supra, and Rogers v. State, supra. The holding in the cases last mentioned has not been overruled or modified.

Giving application to the holding to which reference has been made, it is obvious that the proof in the present record is insufficient to show that appellant was the person named in the marriage license issued to Dawson P. Parker and Elsie Bland, and was the person from whom Elsie Parker secured a divorce in 1927. The proof as to this matter being insufficient, it follows that the evidence fails to show that appellant’s marriage to Frances Vallier was bigamous. In the absence of proof sufficient to establish the fact that appellant’s marriage to Frances Vallier was bigamous, the evidence is insufficient to show that appellant’s marriage to Mildred Chism, as alleged in the fifth count of the indictment, under which appellant was convicted, was legal. See McCombs 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:
    JARVIS v. STATE.
    No. 15171.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Wayne Somerville, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for swindling by giving a check for the sum of $13.15; punishment assessed being a fine of $25 and one day in the county jail.

The complaint and information in this case charged the appellant with “devising .and intending to unlawfully acquire one automobile of the value of $13.15 by the use of false and deceitful pretenses and devices and fraudulent representations and, with intent to defraud, acquire one automobile from J. L. Hatcher and B. J. West with the further intent to deprive the owners thereof and to appropriate same so. acquired to the use and benefit of him, the said James D. Jarvis, and that the same was so obtained from said owners by the said James D. Jarvis by means of giving and drawing a certain check drawn on the Eirst National Bank of Wichita Palls, Texas, for said sum of $13.15.”

The undisputed evidence shows that the appellant had his car repaired by the said Hatcher and West, and the said check was given in payment for the value of labor done and parts furnished by the injured parties in repairing the automobile. The evidence further showed that, at the time the check was signed and delivered by appellant, he did not have any money in the First National Bank; that at various times prior to that time the appellant had had an account in said bank ranging from $100 to $500; the check given by appellant was presented to the bank on April 2 and was not paid because of lack of funds; on April 8, appellant had on deposit the sum of $35 to his credit.

B. J. West, a witness for the state, testified, in substance: He and a Mr. Hatcher ran the Wichita Auto Top & Painting Company, and on April 1, appellant gave them the check in question in payment for repairs and parts put upon his automobile. When the bank refused to pay the check, they went out to see the Appellant, who was not at home, but they told Mrs. Jarvis to tell the appellant to come down and take up the check, but he failed to do so. About April 8th or lQtli Mrs. Jarvis came to their place of business and.wanted, to give them another check in place of appellant’s check, but that the county attorney advised them not to take it. Mrs. Jarvis then suggested that they go to the bank with her and get the cash, but because of the county attorney’s advice they did not go. The witness also testified that, he took the check to the bank on the 8th of April and his money was not there.

J. Li. Hatcher testified. to practically the same effect as the witness West. He further testified that he went out to see the appellant three times, and appellant kept.promising to put the money in the' bank,' but he never did do so; that he filed the first complaint against the appellant on April 8, 1931, which complaint was for the same check the appellant was being tried for under the second coin-plaint.

H. L. McGregor testified as follows: He, as trustee in bankruptcy, was being assisted by appellant in making an audit of the books of a bankrupt firm. When appellant finished his part, he told him that he was going tó East Texas and for McGregor to deposit the money due him, fifty or sixty dollars, in the First National Bank. The witness further testified that the referee would not let him pay for the audit until all the work was finished so that one bill could be made out, and as a result the money was not secured until about thirty days afterwards, and it was his understanding that the court sent the check for appellant’s money to his wife, and that he (the witness) never did get the check at all and therefore did not have an opportunity to put it in the bank.

• E. Y. Abernathy, county attorney in Wichita county, testified as follows: Mrs. Jarvis came to his office after her son was arrested and offered-to pay the check, and he refused, but stated that, if appellant would pay the check, he would recommend the minimum fine. When Hatcher and West called him about taking the money, he advised them not to do so. When the case was called for hearing on the first complaint, appellant’s attorney told him about his side of the case, and the witness told him he would dismiss the case, that it was his understanding that the check would be paid, and, when he learned that the check had not been paid, he filed a second complaint.

Mrs. S. G. Jarvis, mother of appellant, testified as follows: Either Mr. Wise or Mr. Hatcher came to her house on April 8, and her son was sick in bed. When she found out the check had not been paid, she went to them immediately and offered to pay the cheek, but they refused because the county attorney advised them to do so. She then went to the county attorney and offered to pay it, and she believed he said he would recommend a minimum fine for the' swindling if she would pay the check. She had the money in the bank, and, when she found out from the bank that McGregor had not' deposited the money to her son’s account, she offered to pay it from her own money, but they would not let her pay it'; that all this occurred on April 8,1931.- •

The appellant testified as follows: When he finished his work on the audit about the middle of March, McGregor .promised to deposit the money for him as soon as he got it, and it had " been his .understanding that he would get his money as soon as he finished his work. When West came ⅛ his house on April 2, he told him he was going to see McGregor about getting his money, and he called Mc-Gregor, who said the work was almost finished and the money would be deposited. He. (the appellant) then became ill and was unable to do anything more about it, but on April 8, he deposited thirty or thirty-five dollars in the bank. He further testified that he was willing to pay the check, and did not feel that he was guilty of issuing the check fraudulently; he sent his lawyer to see them, and his lawyer told him they would not take the money for the cheek and dismiss the case, and-he then employed' his lawyer to represent him ; that he had some money in the bank -on April 20, hut his attorney’s fee tools the 'biggest part of this money.

Appellant’s attorney, Wayne Somerville, testified as follows: He was employed in April by appellant, but before his employment he asked the county attorney to accept payment of the check and dismiss the complaint, but county attorney told him if the check was paid he would recommend the minimum fine in county court. He further testified that it was his understanding on the trial for the first complaint that the case was being dismissed because the complaint was defective in that it alleged an acquired valuable right, to wit, possession of an automobile, and he did not understand that it was being dismissed with the understanding that the appellant was to pay the check.

The real issue in the case was whether, at the time appellant gave the check in question, he did so with intent to defraud. That he had such intent is not satisfactorily shown by the evidence. We are not prepared to say, under the evidence, that at the time the appellant gave the check he did not have good reason to believe that the money coming to him from the witness McGregor had been deposited to his credit in the bank. The evidence further shows that, when he ascertained the money had not been deposited to his credit by McGregor, he made a deposit of $35 in the bank to cover said check. Considering the entire record, we- do not believe the evidence with sufficient cogency supports the charge that appellant intended to defraud West and Hatcher at the time the check was given.

The judgment is reversed and remanded.

PER CURIAM.

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


author: MORROW, P. J.

text:
    COULTER v. STATE.
    No. 15132.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    Mathis & Mathis and Berry & Berry, all of Houston, and Thompson & Barwise, of Fort Worth, for appellant. •
    Jesse E. Martin, Crim. Dist. Atty., Cecil Rotseh and Stanley Bransford, Asst. Crim. Dist. Atty., all of Port Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Betting on a horse race is the offense.; penalty assessed at a fine of $25.

A summary of the state’s testimony is as follows: At Arlington Downs, on the 10th day of September, 1931, there were conducted seven horse races. One of these races was known as the “Futurity Race.” In it eight horses .were entered, two of which were later withdrawn. The race was run with six horses- and won by Lady Germaine, owned by J. W. ’ Crutchfield. The appellant Coulter purchased from O. O. Franklin an option on a horse named Penrod Connell, for which option Coulter paid Franklin the stun of $5. Franklin was the agent of the Texas Jockey Club. The races were conducted under the auspices of that corporation and also • another corporation known as the Texas Thoroughbred Horsemen’s Association. From the gate receipts and other sources of revenue, there became-available for the purpose of paying the expenses of the corporation conducting the races and providing a purse for the winner in each race, the total sum of between $4,500 and $5,-000, from which there was apportioned as a premium for the winner of the “futurity race” mentioned the sum of $1,925. It appears that there were sold fifty-five options of $5 each upon the horse known as Lady Germaine, and that Crutchfield (the owner of the horse) authorized the Thoroughbred Horsemen’s Association to redeem the fifty-five options which had been issued on Lady Germaine at the price of $30 for each option. Each holder of the options mentioned on Lady Germaine was paid $30 tor the surrender of his option.

The Texas Jockey Club, a private corporation, with a capital stock of $10,000, was formed, as stated in the charter, for the following purpose: “The encouragement of agriculture and horticulture by associations for the maintenance of public affairs, and exhibitions of stock and farm products.”

The Texas Thoroughbred Horsemen’s Association, a private corporation with a capital stock of $200, was organized for the purpose of “acquiring, raising, breeding, fattening or marketing live stock.”

Rules were promulgated by the Texas Thoroughbred Horsemen’s Association, Incorporated. • The options were printed as follows :

“Texas Jockey Club. Arlington Downs. $5.00 Five Dollars. Above sum received under conditions printed on reverse side hereof. 205. (Number corresponds with number of entry on printed program.)
“9 — 19—31. 6.”

On the reverse side of said' exhibit appears the following:

“This receipt entitles the bearer to the option to claim the horse whose number appears upon the reverse side hereof, at the price set forth upon the official program as the entered price of the horse whose number appears upon the reverse side hereof, under and pursuant to the rules of this association, a copy of which rules is posted for public inspection in the office of the Racing Secretary and made a part hereof.
“To exercise this option the claim must be In writing and filed with the Racing Secretary or Clerk of the Course, accompanied by the amount of the claim in cash, or check guaranteed by the Association, and this receipt, and deposited in a locked box provided for that purpose in the office of the Racing Secretary within thirty minutes after official result of the race has been announced.
“Claiming blanks and envelopes may be obtained from the custodian of the claiming box.”

The rules of the Texas Jockey Club governing claiming races contain, in substance, the following: The owner of the horse entered vested the title of the animal in the association until released. If the horse was claimed at the entered price by any one holding an option to claim the animal, the title was transferred by the association to the claimant. The claim, however, was controlled by rule 175, reading as follows: “Every claim must .be in writing and filed with the Secretary or Clerk of the Course, accompanied by the amount of the claim in cash, or check guaranteed by the Association, and the option receipt issued by the Association entitling said claimant to claim the particular horse, within fifteen minutes after the termination of the race, and shall be deposited in a locked box provided for that purpose. If more than one person shall enter a claim for the same horse the right to so purchase shall be determined by priority or precedence in numbers respectively. For instance, Number One the prior right, Number Two next, if the holder of Number One should not make a claim and so on throughout the series of numbers, and the person to whom said horse shall be awarded shall become the owner of the horse, whether it be alive or dead, sound or unsound.”

Rule 176 is as follows: “The Secretary shall not open the claiming box nor inform the owner that a claim has been made until thirty minutes after the race is run.”

Rule 179 reads as follows: “In the case of a dead heat, ho claim shall be opened until the race has been finally decided, either by a runoff or a division. In ease of a division each of the divided horses is the winner for the purpose of these rules.”

The oral testimony of O. O. Franklin is in substance as follows: He lived at Vernon, Tex., and was an employee of the Waggoner estate. He was present at Arlington Downs at the time the race in question took place and was agent of the Texas Jockey Club in the matter of the sale of options. These were offered for sale at $5 each. One option was sold by the witness to P. L. Coulter for the sum of $5.

The appellant, Coulter, gave testimony as follows: He was present at Arlington Downs at the time the race in question was run and also before it began. He looked over the horses and picked out what he thought to be the best horse and bought from the Texas Jockey Club an option to buy the horse if he wanted to do so, at the claim price, which was $300. After the race the witness did not buy the horse, although he was able to do so. The question of his buying the horse depended upon whether in the racé the animal showed extra value. The horse did not win but lost the race. The witness did not think he was engaged in a gambling transaction.

Joseph Murphy, for the defendant, gave testimony in substance as follows: He,was present at the race and came there at the invitation of Mr. Waggoner. The race was known as the “Futurity Race,” by which was meant that when a mare was foaled, an agreement was made to race the colt of said mare when it became two years old. The witness had charge of the details of the business conducted that day for the Texas Jockey Club, outside of the matter of selling options, which was under the supervision of another individ-aal. The budget was made by the witness. Eight horses were entered, but only six of them ran. Crutchfield’s horse (Lady Ger-maine) ran first in the race. The purse money consisted of all the receipts of the association, gate receipts, programs, the concessions, and the sale of options, all of which went into one budget, which was the fund that accrued in the hands of the Texas Jockey Club. The receipts on the day of the races amounted to something less than $5,000. The options were sold by the Texas Jockey Club to increase the revenue to be used in paying the expenses and disbursements incident to the races. For all options sold the sum of $5 each was received. The sole object of the Texas Jockey Club was to entertain the public. No money was made or intended to be made by the club. The purchaser of an option on a horse that was raced had fifteen minutes after the race within which to exercise his right to buy the horse. There were fifty-five options sold on Lady Germaine. Mr. Crutchfield redeemed them at $30 each. The purse accorded Mr. Crutchfield, the owner of the winning horse, was $1,925. From the testimony of the witness (Murphy), the following is quoted:

Each option bears a number. Those options are numbered in the order in which they are sold. In other words, if you are the first man that buys a ticket on Lady Germaine, your ticket, just for illustrative purposes, would be Ticket No. 1, and if Judge Barwise was behind you and came along, his ticket would be No. 2, and so on. There would be a priority of rights by virtue of the ticket number which you hold as against the other ticket for the purchase of the horse.
“If you came up to the window at the same time that Ticket No. 2 came up, and both of you desired the delivery of the horse at the claim price published on the program, the one with the prior ticket would get the horse. I mean Ticket No. 1 would get the horse before No. 2, and so on.
“You asked me what would have been the situation or result, if, under Crutchfield’s authority, the Horsemen’s Association had purchased 54 of the outstanding 55 options on his horse, and the remaining option had not been purchased, and the holder of the unpurchased one option had, within the fifteen minutes, gone to the Texas Jockey Club, and said, T want that horse.’ My answer is that even though the 54 options had been purchased, the holder of the outstanding unpurchased one option would have had the right, by complying with the rules, to have become the purchaser of the horse at the price of $300.00.
“In that situation it would have been true that Crutchfield would have paid out $30.00 each for the 54 options, and would have been required to sell and deliver the horse for the $300.00, and it is true that, in that situation, he would have been out the money thus paid out for the 54 options, and would have lost his horse, and would have received only the $300.-00, the claiming or purchase price of the horse.
“I state, in connection with this, that the plan effective and controlling in the holding of this race was that one who wished to avail of the option to purchase a horse was required, within fifteen minutes from the finishing of the race, to deposit the purchase price for the horse he desired to claim, together with the option under which he was making the purchase, in a locked box provided by the Texas Jockey Club for the depositing of the purchase price of horses entered in the claiming race, This locked box was kept locked and closed without knowledge on the part of anybody as to the contents thereof until the expiration of the fifteen minutes from the finish of the race, at which time it was opened by the Texas Jockey Club to ascertain whether any claims had been made for the purchase of any horse in accordance with the agreed plan.
“It is true that the money paid out for the purchase of outstanding options where any owner or owners of horses authorized the purchase of such outstanding options is paid, should be paid out, and, so far as I know, is paid out within the fifteen-minute period after the finishing of the race.
“The fifteen-minute period referred to is computed from the time what is called the “red board” goes up. The “red board”, or which is the same thing, the “official board”, goes up as soon as the riders of the horses are weighed in after the race to verify the weight. The “red board” is the official indication of the finish of the race, and, from the time it goes up, the fifteen-minute period starts.”

From the complaint in the present case the following is quoted: “ * * * P. L. Coulter * * * in the County of Tarrant and State aforesaid, did then and there unlawfully buy a pool and did then and there bet and wager five dollars in money on a horse race to be run then and there in said County and State and on what is commonly known as the Arlington Downs Race Track.”

Article 648, P. C. 1925, reads as follows: “No person or any agent of any association of persons or corporation, at any place in this State, by -pool selling or bookmaking or by means of telegraph, telephone or otherwise, shall aid or assist any other person in wagering, betting or placing a bet or in offering, to wager, bet or place a bet of anything of value on any horse race to be run, trotted, or paced at any place in this State or elsewhere.”

Article 645 of the Penal Code reads thus: “The bet or wager may be of money, or of any article of value, and any device in the form of purchase or sale or in any other form made for the purpose of concealing the true intention of the parties is equally within the meaning of a bet or wager.”

' Article 651, P. 0. 1925, reads as follows: ‘‘Whoever shall buy pools or otherwise wager anything of value on any horse race to be run, trotted or paced, at any place in this State or .elsewhere, or offers to wager, or of-, fers to place any money or other thing of value with any other person to be transmitted to' any other place to be wagered on any such horse race, shall be fined not less than twenty-five nor more than one hundred dollars.”

Article 652, P. C., reads thus: “A conviction for the violation of any provision of the five preceding articles may be had upon the unsupported evidence of an accomplice or participant. Such accomplice or participant shall be exempt from prosecution for any offense under this law about which he may be required to testify.”

In the case of Irwin v. Williar, 110 U. S. 499, 4 S. Ct. 160, 28 E. Ed. 225, cited by the appellant, particularly in the annotations. of the case in Rose’s Notes on U. S. Reports, vol. 12, p. 389, it is said: “If, under guise of contract of sale, for future delivery, real intent be merely to speculate in fluctuation of prices, and delivery of goods is not intended, but one party is to pay to other difference between contract and market prices at date fixed for executing contract, transaction is a wager, and void.”

From the case of Rich v. State, 38 Tex. Cr. R. 199, 42 S. W. 291, 292, 38 A. L. R. 719, cited by the appellant, the following is taken: “A bet or wager is ordinarily an agreement between two or more that a sum of money, or some valuable thing, in contributing which all agree to take part, shall become the property of one or more of them on the happening in the future of an event at the present uncertain, or upon the ascertainment of a fact in dispute. * * * ‘The usual signification of “to bet” is to put to hazard a sum ascertained upon a future happening of some event then uncertain.’ * * * ‘A bet is a wager, and the betting is complete when the offer to bet is accepted.’ ”

In the case of Seay & Company v. Moore (Tex. Com. App.) 261 S. W. 1013, 1014, also cited by the appellant, it was said: “A wager is a contract by which two or more parties agree that a certain sum of money or other thing of value shall be paid or delivered to one of them upon the happening of an uncertain event; it implies that each of the parties shall jeopardize something and have a chance to gain something or to recover the stakes or thing bet or wagered upon the determining of the contingent or uncertain event in his favor, and hence is a form of gambling.”

To determine whether there was evidence to sustain the conviction of the appellant Coulter, it was competent for the trial •court, in the absence of a jury, to ascertain the mutual intent with which the parties to the transaction acted. In the character of case under consideration, the mutual dealings of the parties, as shown by the evidence, are available to determine the nature of the contract. . Such is the rule announced in the Penal Code, art. 645, quoted above.

While the procedure outlined and followed is to a degree novel, there has come to our attention some precedents indicative of the judicial view of similar transactions. Among them is the case of State of Ohio v. Palls Cities Amusement Co., 124 Ohio St. 518, 179 N. E. 405, 408, 79 A. L. R. 568, sustaining the exclusion from the state of Ohio of a corporation known as the “Three A. System, Adams Animal Auction for Horses or Dogs.” The scheme is set out in full in the opinion. Quotation of it in full is impracticable. The contract, however, is embraced in the following language, as well as the comment of the court in sustaining the ouster:

“For the sum indicated on the face hereof, the undersigned hereby sells and transfers to the holder hereof a like interest in the dog whose name appears on the program issued by the undersigned, (of even date) opposite a number corresponding to the number hereon. * * * The interest herein sold to be held subject to a first and second mortgage duly recorded. This contract is made and the holder of this bill of sale accepts the same subject to the following condition: such holder within four hours from the acceptance of this contract shall either purchase the entire interest in said dog or surrender this bill of sale at the appraised value thereof as disclosed by an appraisal made by three competent appraisers.”
“Manifestly the scheme was devised and the pamphlet printed for the self-serving purpose of affording its author or operator a defense in a court of justice where the legality of the operation of the scheme is being questioned. It not only falls short of accomplishing such purpose in this cause, but, like the monster of Frankenstein’s creation, it affords the very evidence which requires a judgment of ouster.”

While not upon identical facts, the principles controlling the decision in the case of Pompano Horse Club et al. v. State of Florida, 93 Fla. 415, 111 So. 801, 812, 52 A. L. R. 51, are deemed analogous to those pertinent in the present appeal. From the opinion we quote as follows: “The question before us is whether or not the buying, selling, and redeeming of certificates, in the manner and for the purpose stated, constitutes gambling, or a game of chance. Regardless of whether horse racing, within itself, is a ‘game’ or a ‘sport,’ or, if a game, whether it be one of ‘skill’ or of ‘chance’ — when a group of persons, each of whom has contributed money to a common fund and received a ticket or certificate representing such contribution, adopt a horse race, the result of which is uncertain, as a means of determining, by chance, which members of the group have won and which have lost upon a redivision of that fund, each contributor having selected a stated horse to win such race, the redeemable value of the certificates so obtained and held by the contributors to such fund being varied or affected by the result of such race, so that the value of some is enhanced, while that; of others is reduced or destroyed, the original purchase price of all having been the same, those who chose the winning horses being paid from the fund so accumulated more than they contributed thereto, by dividing amongst them the money contributed by those who chose losing horses and who therefore receive nothing, that process becomes a ‘game of chance.’ ”

The conclusion of guilt found by the trial judge implies that the evidence was regarded by him as showing that the mutual understanding of the parties to the transaction was that, dependent upon the result of the horse race, the money invested in the options would be lost or increased. The procedure outlined in the making of the contract and pursued throughout the transaction is not without strength in supporting the finding of fact by the trial judge. .

The judgment is affirmed.