author: SHORT. Presiding Judge. CURETON, Chief Justice.

text:
    JAGOE CONST. CO. v. UNITED STATES FIDELITY & GUARANTY CO.
    No. 1402—6030.
    Commission of Appeals of Texas, Section B.
    March 22, 1933.
    Sullivan, Speer & Minor, of Denton, and Burgess, Burgess, Chrestman & Brundidge, of Dallas, for plaintiff in error.
    Seay, Seay, Malone & Lipscomb, of Dallas, and C. O. James, of Sulphur Springs, for defendant in error.
   SHORT. Presiding Judge.

This suit had for its basis in the pleadings an application for the issuance of a writ of temporary injunction, which was thereafter, upon a hearing, dissolved by the trial court, whose judgment was thereafter affirmed by the Court of Civil Appeals at Texarkana, 38 S.W.(2d) 824. The Supreme Court granted the application on the first assignment therein, which reads as follows:

“The liability of the principal to his surety arises solely by reason of the contract implied by law from the request made by the principal to his surety for his signature; and since the appellant never at any time requested the appellee to act as his surety and would not have done so, not desiring to appeal said cause, and preferring that- the judgment be discharged by the Southern Casualty Company, no obligation upon the part of the appellant ever arose to reimburse the appellee for any amount that it might pay on said judgment, and the appellee had no right of execution against the appellant thereon, and the trial court erred in dissolving the injunction.”

Since the re'cord is comprised chiefly of the pleadings of the parties, the facts tendered by the plaintiff in error, both in the form of an affidavit and an accepted statement by counsel as being true, and since the statement of the case in the application for the writ of error appears in harmony with-the record, we adopt it as correct. That statement is as follows:

“On June 6, 1927, Southern Casualty Company, a corporation, authorized to write casualty insurance in the state of Texas, but not surety business, issued to your petitioner, Ja-goe Construction Company, a policy of liability insurance, insuring it against liability for damages on account of personal injuries alleged to have been sustained by any person as a result of negligence on the part of your petitioner, said, policy having as its limits $10,000 for any one person on account of any one accident, the policy covering by its terms for a period of one year from June 6,1927.
“On or about the 12th day of February, 1928, and while the policy was in full force and effect, an accident occurred in which one Hersehel Harrison, a minor son of Lena Harrison, was injured. Your petitioner gave notice of the accident to the casualty company. When suit was brought by Lena Harrison, as next friend, against your petitioner, in cause No. 7704, in the district court of Hopkins county, Tex., it forwarded the petition to the casualty company. The casualty company upon receiving notice of the accident investigated the same; and when suit was filed it took charge of the litigation, and conducted the same at all times by its attorneys. On a trial being had, a judgment was rendered against your petitioner for $6,000, which was appealed by the casualty company to' the Court of Civil Appeals at Texarkana, which court reversed the judgment and remanded the ease for a new trial [17 S.W.(2d) 861].
“Upon a retrial of the case, judgment was again rendered against your petitioner for $5,000. The casualty company again filed a motion for new trial; and the same being overruled, it procured the United States Fidelity & Guaranty Company to execute for it a supersedeas bond, upon which it again appealed the case. Upon this appeal the judgment of the district court was affirmed by the Court of Civil Appeals at Texarkana [28 iS.W.(2d) 232], and a judgment was thereupon rendered against your petitioner and the guaranty company as surety on its supersedeas bond. Mandate having issued to the district court, an execution was obtained by the plaintiff, Harrison, and the guaranty company, as surety, paid the judgment. Southern Casualty Company having in the meantime become insolvent and gone into the hands of a receiver, the guaranty company applied to the district clerk for, and obtained, an execution against your petitioner, and placed the same in the hands of the sheriff of Tarrant county, Tex., for levy upon certain road machinery belonging to your petitioner and with which it was at that time fulfilling certain road contracts had by it with the county and state.
“Upon notice of intention to levy an execution by the sheriff of Tarrant county, your petitioner applied to the Honorable Hal S. Uattimore, judge of the Ninety-sixth judicial district court of Tarrant county, Tex., for a writ of injunction, on the ground that your petitioner had never requested the surety company to execute a supersedeas bond, that the bond was executed by the guaranty company at the request of the Southern Casualty Company and solely in reliance upon its financial responsibility, and its agreement to indemnify the surety company; and in pursuance to a treaty or standing agreement between it and the casualty company whereby it executed all bonds required by the casualty company in any litigation, wherein the casualty company was defendant, or wherein it was obligated for the judgment by reason of its contract with its assured; by reason of all of which your petitioner claimed that no obligation ever arose whereby it became Bound to reimburse the surety company for the amount paid by it in satisfaction of the judgment.
“Injunction was issued by the aforesaid judge of the Ninety-sixth judicial district court of Tarrant county, returnable to the dis trict court of Hopkins county, Tex. The surety company made a motion to dissolve the injunction, challenging the sufficiency of the allegations to authorize the relief granted, and, in part, denying the allegations. Upon a hearing on the motion to dissolve, your petitioner tendered, by way of proof, the special agent of the casualty company, as a witness, and, in the alternative, his affidavit in detail to all of the facts concerning the execution of the bond, which the trial court refused to hear, on the ground that on the pleadings it appeared that the surety company was entitled to have the injunction dissolved.
“It might be mentioned here, parenthetically, that the facts alleged and offered to be proven in connection with the execution of the bond established a custom on the part of the special agent of the casualty company, upon any judgment being rendered against the casualty company, or one of its assureds, to communicate with the home office of the casualty company at Alexandria, La., advising of the necessity of the bond, whereupon the home office of the casualty company would obtain said bond from the general agents of the surety company at Alexandria,- La., with directions from said general agents to a local executing agent of said company in Texas to execute the same on behalf of the general agents in Alexandria, La. The president and vice president, respectively, of Southern Casualty Company was one Alexander and one Bolton. These two gentlemen operated an insurance agency at Alexandria, La., styled Alexander & Bolton Insurance Agency. In this specific ease the special agent df the casualty company at Dallas sent a form of bond required to his home office who in turn requested its execution by Alexander & Bolton Insurance Agency, as general agents of the surety company, which agency thereupon wrote a letter to the Dallas agent of the surety company, asking that he execute this bond as local executing agent in Texas, or, that it be done by the. Sulphur Springs agent. At the same time, .the home office of the casualty company wrote its special agent that arrangements had been made for the bond, and that ■the letter from Alexander & Bolton Insurance Agency might be presented to the local agent in Texas and the bond executed. In the same letter, the special agent of the casualty company was advised that the principal’s, that is. your petitioner’s, name might be signed by its, the casualty company’s, attorneys.
“Upon receipt of these letters, they were both presented to local agent of the surety company who thereupon executed the super-sedeas bond. No inquiry was made of the ■financial responsibility of your petitioner, no indemnity agreement was required of petitioner, but was of the casualty company, and, so far as the special agent of the casualty company knew, the bond was executed solely by reason of the arrangement made between the home office of the casualty company and the general agents of the surety company at Alexandria, La.
“However, in transmitting the bond to its attorneys, the casualty company’s special «.gent directed the attorneys to secure the signature of Jagoe Construction Company to the bond. The contract between the casualty company and your petitioner provided that •the company had the right to settle any claim or suit; and that your petitioner should aid ■in securing information, attendance of witnesses, and prosecuting appeals, and, except in a pecuniary way, render all co-operation and assistance. The contract further provided that your petitioner should not assume any liability or interfere in any negotiations or legal proceedings conducted by the company on account of any claim. In pursuance to the contractual relationship and the duties thereunder your petitioner executed the bond, as principal, upon the request of the attorneys for the casualty company.
“The surety company knew all of the facts in connection with the transaction, knew that the Southern Casualty Company was bound ■on the judgment, knew that it desired to appeal, and that your petitioner had no voice or control as respects the litigation; and, knowing all such facts, accepted the indemnity from the casualty company and executed its bond solely in reliance upon the financial responsibility of the casualty company. All of the foregoing facts were alleged and proof thereof offered, and upon consideration of such allegations the injunction granted was ■dissolved.
“Your petitioner in due time presented its case for review and correction to the Court of Civil Appeals at Texarkana. Upon consideration of the matter the Court of Civil Appeals affirmed the judgment of the trial court, the opinion being, after statement of certain facts, in the following language:
“ ‘We do not think there is merit in the ■contention. If it should be conceded that the holding of the Supreme Court in American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633, warranted the conclusion that the casualty company, by taking charge of the defense of the Harrison suit, became a party thereto and as such a party incurred liability to appellant, it would not follow that appellant who, alone, executed the supersedeas bond as the principal therein, was not liable as such to the fidelity and guaranty company as the surety therein. Clearly on the face of the bond it was so liable, but if it was not we think it sufficiently appeared in the pleadings that it was estopped from asserting to the contrary.
“ ‘The fact, alleged, that the bond was executed by the fidelity and guaranty company at the request of the casualty company and not at appellant’s request, is of no importance, we think. Under the terms of the contract between the casualty company and appellant, the former was authorized to act for the latter in making such a request — or, if it was hot, certainly appellant when it executed the bond and by force of it obtained by appeal a review of the judgment against it, ratified the assumption of such authority by the casualty company and was estopped to deny it was the principal in the bond and liable as such, not only to the obligee in the bond, but to the fidelity and guaranty company as its surety, as well.’ [38 S.W.(2d) 824].”

The defendant in error has filed in the Supreme Court an additional argument and citation of authorities supplementing the brief which was filed on its behalf by the Court of Civil Appeals, in which it makes this statement: Your defendant in error respectfully suggests to this honorable court that, in the granting of this application for writ of error, an important and fundamental question, namely that of jurisdiction, has apparently been overlooked. That situation was probably brought about by reason of the fact that the opinion of the Honorable Court of Civil Appeals, which was under consideration, did not discuss the question, and, naturally, the application for the writ of error made no mention of it.

It is true the defendant in error did urge in the Court of Civil Appeals, as well as the trial court, that this proceeding was instituted in the wrong forum. That is, that it should have not been instituted, as it was, by the application for the issuance of the temporary writ of injunction and the granting thereof by the Honorable Hal. S. Lattimore, judge of the Ninety-sixth district court of Tarrant county, to enjoin the collection of a judgment rendered by the district court- of Hopkins county, when, according to the contention of the defendant in error, in the Court of Civil Appeals, as well as in the trial court, the Tar-rant county district judge was without jurisdiction to issue the writ. In the additional argument and citation of authorities filed in the Supreme Court, the contention is -made that neither one of these district courts, or in fact any district court, would have any jurisdiction to issue a writ of injunction under the facts shown by this record, for want of jurisdiction, in that the purpose of the writ, apparently, from the standpoint of the defendant in error, was to nullify a final judgment rendered by the Court of Civil Appeals, and contending that the issuance of such a writ under these circumstances was an attempt on the part of an inferior court to set aside the judgment of a superior court and interfere with its execution. In other words, the contention of the defendant in error is that no final judgment rendered by a court of competent jurisdiction can be nullified, set at naught, or canceled, save and except by the court which rendered the judgment, based upon proper allegations and proof after due notice, and that in this case the Court of Civil Appeals at Texarkana is the only court which could interfere in anywise with the due process issued to execute the judgment rendered in this cáse. It cites, in support of its contention, many authorities, among which are the following: Long v. Martin (Tex. Civ. App.) 260 S. W. 327, 328; Halbrook v. Quinn (Tex. Civ. App.) 286 S. W. 954, 955; First National Bank v. Little (Tex. Civ. App.) 6 S.W.(2d) 819; Cattlemen’s Trust Company of Fort Worth v. Willis (Tex. Civ. App.) 179 S. W. 1115. In the Halbrook Case, Justice Boyce quoted from the Supreme Court of Washington in the case of the State upon the relation of Wolferman v. Superior Court of Spokane County, 8 Wash. 591, 36 P. 443, 444, as follows: “We are of the opinion that the jurisdiction of the lower court is involved in a case like this, to the extent that we may look into the cause of action there set up when we are applied to for a writ of prohibition, and that we should do so, as it is necessary for the due protection and enforcement of the powers vested in this court by the constitution. * * * And, should it appear from such investigation that the suit or proceeding sought to be prohibited is in fact an unwarranted interference with a judgment rendered by this court, we may * ⅜ ⅜ grant the writ, and the proposition may still hold good, or at least be left an open question, that an action may be instituted in the lower court to vacate a judgment rendered in this court upon sufficient grounds.”

The defendant in error also raised the question in the trial court, and in the Court of Civil Appeals, that the judgment of the Court of Civil Appeals decreeing that plaintiff in error was principal, and the defendant in error was surety, on the supersedeas bond is res adjudicata of the question of capacity, in which the parties signed the bond, citing, among other authorities, Waggoner v. Knight (Tex. Com. App.) 231 S. W. 357, to the effect that since all parties were properly before the court on a motion to correct the judgment, all issues between the parties, which could have been raised, will be treated as disposed of, and the judgment will be held to be res adju-dicata of the question of fraud in the rendition of the original judgment, although it was not expressly passed upon. It also cites the case of White v. Burch (Tex. Civ. App.) 33 S.W.(2d) 512, 514, which, among other things, says: “It is also well recognized that not only is a former judgment decisive of all questions that were raised in the former suit, but of all questions that were involved in the former suit and could and should have been raised.”

The two questions presented by the defendant in error, as above stated, are kindred ones and both of them involve the jurisdiction of the district courts, both of Tarrant and of Hopkins counties, to pass upon the matters presented in this proceeding as they have, and we will discuss both of them together.

The main legal principles discussed in the various cases cited by the defendant in error are unquestionably correct ones, and if this proceeding had for its purpose and effect to impair in the least the judgment rendered by the Court of Civil Appeals in Cause No. 7704 on the docket of the district court of Hopkins county, wherein Lena Harrison, as the next friend of the minor, Herschel Harrison, recovered a judgment against the plaintiff in error for the sum of $5,000, from which judgment there was prosecuted an appeal to the said Court of Civil Apireáis, in which a super-sedeas bond was executed apparently at the instance and request of the plaintiff in error, by the defendant in error, as surety for the plaintiff in error, then the position taken by the defendant in error would be a correct one, and the authorities cited by it would be applicable. However, the statement which we have copied from the application for the writ of error conclusively shows that the purpose of this suit is not to impair the validity of the judgment of the Court of Civil Appeals, nor is its purpose in anywise to nullify that judgment. The suit brought by Lena Harrison- against the plaintiff in error was a suit at law based upon the negligence of the plaintiff in error, and recovery having been had the demands of Lena Harrison, as the next friend of Herschel Harrison, were finally satisfied, and she passed out of the picture by reason of the fact that she has no complaint to lodge against any one, growing out of that transaction. All of the authorities cited by the defendant in error, in support of its contention that this suit is an attempt to impair the validity of the judgment rendered by the Court of Civil Appeals, disclose the fact to be that the successful parties in the original suit still were claiming some interest in the result of the litigation at the time these several opinions were rendered, while, in the case at bar, the successful party is shown not to have had any interest in the result of this litigation. Moreover, this is merely a suit in equity based upon an alleged contract supposed to have been made by the Southern Casualty Company, who had assumed all obligations- incurred by the plaintiff in error on account of its negligence, resulting in the damage to the minor, Herschel Harrison, on the one part, and the defendant in error upon the other part, by the terms of which contract the latter became, for a consideration, a surety for the Southern Casualty Company, by the terms of which contract, the defendant in error agreed to execute a certain supersedeas bond in a certain law suit in' which the casualty company itself, for a consideration, obligated itself to become liable to the plaintiff in error in that law suit, should a recovery he had, and in which the casualty company had agreed to defend said law suit upon certain conditions, one of which was that the original defendant in that law suit (the plaintiff in error here), should permit the said Southern Casualty Company to exercise exclusive control in the management thereof. The petition of the plaintiff in error set forth these facts and upon a hearing of the facts admittedly supported all of the material allegations in its petition. We have concluded that the real parties to this law suit in equity (the Southern Casualty Company having become insolvent) are not the Jagoe Construction Company and Lena Harrison, as the next friend of Herschel Harrison, who were the real parties in the original case, hut are the defendant in error, occupying the relationship of a surety to the Southern Casualty Company upon the one part, and the Jagoe Construction Company upon the other, and that the real issues in this case are totally .foreign to and different from the real issues in the original case.

In the original case, the Court of Civil Appeals necessarily concluded that so far as the rights of Lena Harrison, as the next friend of Herschel Harrison, were concerned, the plaintiff in error was the principal obligor, and the defendant in error was the secondary obligor, to Lena Harrison, as next friend, against whom, as such, she had a right to demand certain sums of money. In other words, the Court of Civil Appeals had no such issues presented to it, as are involved in this case. It knew nothing of the facts alleged and proven upon the trial of this case. In truth, according to the record, the plaintiff in error was under obligation to the Southern Casualty Company to allow the latter to use the name of the former in litigating the law suit with Lena Harrison, but had no right to interfere with that company in the control of the case.

The Court of Civil Appeals was adjudicating the rights of Lena Harrison, as next friend, as against the plaintiff in error, and it did so. Those rights have been satisfied, and a different situation involving different issues, and different parties, has arisen, growing out of facts of which the Court of Civil Appeals was ignorant and with which the Court of Civil Appeals had no concern. In the case of American Indemnity Company v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 910, 37 A. L. R. 633, Chief Justice Cureton had under consideration a case very similar in its facts to the extent of the contents of the policy, which the Southern Casualty Company executed in favor of the plaintiff in error, and the question in that case was whether or not the insurance company could be compelled to discharge its obligation to successfully defend the insured against certain demands wherein the records show that it had failed to do so, and wherein the record showed that the insured had not satisfied the judgment which had been rendered against it. The Supreme Court held in that case that the American Indemnity Company, occupying substantially the same position as the Southern Casualty Company occupies in this case, could he compelled to pay off said judgment, and it was declared that the American Indemnity Company to all intents and purposes was a party to the original suit and was bound by its terms. It also was said in that case (referring to the American Indemnity Company): “It had a right to make the defense, control the proceedings, examine and cross-examine the witnesses, and though not technically a party, it was so connected with the litigation by its interest in the result and by its active participation that it is bound by the judgment.” In support of the text in the opinion, Chief Justice Cureton quotes from 15 K. C. L., par. 481, 483, the following:

“The courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as, for example, those who employ counsel in the case, assume the active management of the proceeding or defense, or who pay the costs and do such other things as are generally done by parties. In other words, by participating in the proceedings one is estopped by the judgment as to any questions actually litigated and decided, therein.”

He also cites 4 Joyce on Insurance (2d Ed.) par. 2800, pp. 4812 and 4813.

'Should we assume that the Southern Casualty Company was solvent, with the record otherwise as it is, except the fact that the Southern Casualty Company executed the su-persedeas bond as surety, being permitted to do so by its charter, and the latter had paid off the judgment rendered against the plaintiff in error and then had secured the issuance of an execution against the latter, and had threatened to seize some of the property belonging to it, whereupon the latter had instituted injunction proceedings against the Southern Casualty Company, which had then filed a motion to dissolve the injunction, we would 'have substantially the same situation as is presented against the defendant in error by this record. Under such a situation is it not reasonable to suppose that the courts, in •the language of the authorities above quoted, would “look beyond nominal parties and treat all those whose interests are involved in the litigation, and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as, for example, those who employ counsel in the case, assume the active management of the proceeding or defense, or who pay the costs or do such other things as are generally done by the parties.” The allegations in the petition supported by testimony, which the trial court held to be true, though immaterial, demonstrate the fact to be that the defendant in error was placed in the same relation to the plaintiff in error as was the Southern Casualty Company, in that it became surety in a transaction wherein the Southern Casualty Company was the real principal. The facts alleged and established in this case are very similar to.those in the case of Bell v. Greenwood, 220 App. Div. 550, 242 N. Y. S. 149, 153, wherein the court had under consideration the rights of the surety signing at the instance of the casualty company as against the assured in a liability policy, in which case, a contention was made that the casualty company was the agent of the assured, in which the court reached the same conclusion as we have reached in this case. In another case, City Trust, Safe Deposit & Surety Company v. Haaslocher, 101 App. Div. 415, 420, 91 N. Y. S. 1022, wherein the facts are similar to those in this case, the same conclusion was reached by the court that we have reached.

It is true that upon a trial of the case, upon the merits, this merely being an injunction proceeding, it may demonstrate the contention of the plaintiff in error is groundless, but for the purposes of this case we must assume the allegations in the petition for injunction to he true, in view of the fact that the trial court so declared.

The Court of Civil Appeals, in rendering a judgment against a party as surety on a supersedeas bond, does not adjudicate that such party, whose name appears on a supersedeas bond is in fact a surety or ever signed the bond. It merely declares the law applicable to a record, the truth of which is assumed, inasmuch as no such issue was, or could have been, presented in the trial, court. In truth a supersedeas bond is always executed after a trial upon the merits, and is merely a means of transferring the litigation from one court to another. The machinery of the Court of Civil Appeals is not adapted to the presentation of the testimony in support of any contention of the parties. A record is made and filed in the Court of Civil Appeals and with a few exceptions, not here involved, that record remains intact, until the Court of Civil Appeals has passed upon the law applicable to its contents. In general, wherever there is an issue of fact arising in a litigation between parties, it is the policy of the law of this state to have that issue tried by a jury, organized in a trial court, and the decisions of such a jury are usually final.

The judgment of the Court of Civil Appeals in the case of Harrison v. Jagoe Construction Company was not an adjudication of matters of fact which could not have been involved in that suit, and over which the Court of Civil Appeals could not have had jurisdiction. The matters of fact upon which truth or falsity' depends the rights of the plaintiff in error in this suit, have never been adjudicated in any tribunal having jurisdiction thereof. This is sufficient answer to the contention that this proceeding is an effort to nullify the judgment of the Court of Civil Appeals in the case of Harrison v. Jagoe Construction Company.

According to the record in this case these facts appear: Defendant in error knew that the Southern Casualty Company was defending the Jagoe Construction Company under a policy of liability insurance; it knew that judgment had gone against the construction company; and perforce of its knowledge of the law, it knew that the Southern Casualty Company was bound on said judgment to the construction company to then and there pay it. It knew that the casualty company, under the policy, had no authority to bind the construction company, and was obligated, if an appeal be taken, to prosecute that appeal at its own cost and expense. It knew, when the casualty company applied to it for a superse-deas bond to obtain delay in the payment of the judgment, the situation confronting the casualty company and of its obligation to either pay or supersede. It knew that the casualty company applied for the bond on its own account, and not as agent for the construction company, it having made the casualty company’s bonds under such circumstances over a period of years. It.had notice when it executed the bond in Dallas that it was contemplated that the casualty company’s attorneys would sign for the construction company, and that it was not considered of any consequence to the construction company, or any of the construction company’s business, whether an appeal was taken or not. But, in addition to proof of these facts, it appears that the surety company executed the bond at the specific request of the casualty company, on its financial responsibility, upon its express agreement of indemnity, and upon its express promise to pay the premiums. The construction company had nothing to do with the signing ; it was helpless and powerless in the matter.

That the relation of principal and surety is always a matter of agreement between the parties, and not by mere operation of law, is recognized as a correct principle of law by text writers and court opinions almost universally. 1 Brandt on Suretyship (3d Ed.) par. 1. This contract of suretyship is collateral to the main contract, and parol evidence is admissible to prove the same, or upon the other hand to disprove what appeared to be the facts as made by the record in the original proceeding. The rights of the defendant in error, as -surety in this case, depend upon whether the plaintiff in error made a contract with the defendant in error, by the terms of which the latter became a surety for the former in the Harrison Case. According to the allegations of the petition, and the testimony in support thereof, in this case no such contract, either express or implied, ever existed. Durham v. McDowell (Tex. Civ. App.) 265 S. W. 425; 50 C. J. 249, 255.

We therefore sustain the first assignment of error in this proceeding, and the record being in the condition in which it is, as above related, we are of the opinion that the judgment in the case of Lena Harrison, as next friend, v. Jagoe Construction Company is not res adjudicata of the matters in dispute between the parties in this case and the record shows that the district court erred in sustaining the motion of the defendant in error to dissolve the injunction, and that the Court of Civil Appeals erred in sustaining the action of the trial court in this respect.

We are further of the opinion that the district court of Hopkins county, having assumed jurisdiction of the subject-matter of this suit, it becomes unnecessary to decide whether the district court of Tarrant county had any jurisdiction to issue the writ of injunction. The fact that the district court of Hopkins county took cognizance of the case is tantamount to a declaration on the part of the district court of Hopkins county, that it would have issued the injunction which the judge of the district court of Tarrant county issued, had the matter been presented. Had the district court of Hopkins county refused to recognize the validity of the act of the judge of the district court of Tarrant county a different question might be presented.

We therefore recommend that the judgments of the Court of Civil Appeals and of the district court be reversed, and the cause remanded to the district court of Hopkins county for a trial of the case in due course, in harmony with the law as set forth in this opinion.

CURETON, Chief Justice.

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

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


source: Caselaw Access Project

author: ' CALHOUN, Judge.

license: Public Domain

text:
    HUGHITT v. STATE.
    No. 15610.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Early & Johnson, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' CALHOUN, Judge.

Theft of a turkey is the offense; punishment, a fine of $50.

It seems from the evidence that on or about October 20, 1931, the appellant sold some fourteen or fifteen turkeys to a produce house in the city of Fort Worth. It further appears from the testimony that the sheriff of Mills county had gone to Fort Worth and brought back one of the turkeys appellant sold to the produce house and returned the same to T. E. Brown, the prosecuting witness. Brown testified that the turkey appellant was charged with taking was marked on the end of the outside toe of the left foot. As to other identifying marks on his turkeys, he testified that the tails of his turkeys had been clipped off and red paint placed on the right wings, but at the time said turkey was returned to him the red paint was. worn off but could be seen up under the wing.

It appears from the testimony that the appellant lived about 2½ miles from the complaining- witness, and he and several other witnesses raised turkeys which were running on the range. Appellant testified that he was 86 years of age and that the turkey claimed by the prosecuting witness belonged to him (the appellant). He further testified that his turkeys had been originally marked in the same manner as those of the prosecuting witness, and although he had changed the mark on some of his turkeys upon the advice of one John Ivey, he had not been able to get all of his turkeys marked in the new mark. He admitted going to Fort Worth on the night in question and before he went he had requested Jess Harriss, his nephew, to catch some of his turkeys so that he could take them with him to Fort Worth, and the turkeys caught by his nephew were at his house and had. been roosting there all the time.

Appellant’s testimony as to changing his mark was corroborated by the witness John Ivey, and as to catching the turkeys at his place and that they had been roosting there at night for some time, he was corroborated by his nephew and his nephew’s wife, who were living with him and who went to Fort Worth with him to sell the turkeys.

It is shown by appellant’s bill of exception No. 1 that while the witness T. E. Brown, who claimed to have lost the turkey for which the appellant was indicted, was testifying as a witness in behalf of the state, the state, among other things, proved the following by him, to wit, that he had lost somewhere around twelve or thix-teen. turkeys and the same were taken from his possession without his consent. This testimony.was.objected to by the appellant at the time for the reason that the same was inflammatory and prejudicial to the defendant, he being only charged with the theft of one turkey and not twelve or thirteen, and for the further reasons that the testimony was not binding upon the appellant and could not solve any issue in the case, and the same was calculated to arouse the jury against defendant and might lead the jury to believe that defendant was guilty of stealing twelve or thirteen turkeys while only charged with the theft of one. The appellant, in addition to said objections, and after said testimony had been introduced, requested the court to instruct the jury not to consider the same and to withdraw the same from their consideration. The bill further shows that the court overruled the objections and refused to instruct the jury not to consider the same, to all of which the appellant excepted.

We think the testimony with reference to the complaining witness Brown having lost other turkeys was inadmissible under the record in this case because, first, there was no proof connecting the appellant with the theft of any other turkeys; and, second, because thei'e was no evidence in the record that any other turkeys save and except the turkey alleged as having been stolen by the' appellant was ever stolen. There was no evidence in the record that the appellant was ever found in possession of any other turkeys before or after the alleged offense belonging to the complaining witness’ Brown. In the case of McClain v. State, 89 Tex. Cr. R. 48, 229 S. W. 550, 552, Judge Lattimore lays down the rule applicable to such conditions, as follows: “While.under certain well-known rules contemporaneous thefts of other property may be proven, and the finding in the possession of the accused of other property taken at or about the time of that charged in the given case may also be shown, still where proof of the guilty connection of the accused with the taking rests almost, if not entirely, on the fact of possession by him of property recently stolen, we know of no authority in which it is held that proof may be made of the theft of other property not found in his possession, and of the taking of which by the accused there is no other evidence.”

Again in the case of Wells v. State, 118 Tex. Cr. R. 355, 42 S.W.(2d) 607, 608, Judge Hawkins, speaking for the court, stated the rule as follows: “It is well settled in this state that evidence of extraneous offenses should not be l’eceived, unless the accused is satisfactorily shown to be the party guilty of the commission of such offense, even though proof of the extraneous crimes comes within some of the exceptions. Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; Lankford v. State, 93 Tex. Cr. R. 442, 248 S. W. 389; Isham v. State (Tex. Cr. App.) 41 S. W. 622; Williams v. State, 38 Tex. Cr. R. 128, 41 S. W. 645; Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Hocks v. State, 97 Tex. Cr. R. 480, 261 S. W. 1053.”

The testimony, the admission of which is complained of, was of a nature calculated to injure the appellant and was calculated by inference to lead the jury to believe that the appellant was guilty of the theft of all the turkeys the complaining witness claimed to have lost, and, taking note of the evidence in the record, we are not prepared to say that the error was not harmful and affected the conclusions óf the jury .in finding appellant guilty.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

PER CURIAM.

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


author: CALHOUN, Judge.

text:
    TYLER v. STATE.
    No. 15623.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    John L. Dannelley, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Rape is the offense; punishment, seven years in the penitentiary.

The indictment charged statutory rape. The evidence showed that the prosecutrix, Opal Gibson, was over fourteen and under fifteen years of age at the time of the alleged offense. She fixecl the date definitely of the alleged assault as the night of January 31, 1931, because the next day after the occur.rence she marked it on the calendar. The prosecutrix’ testimony in brief was as follows: She had known the appellant for several months prior to the alleged occurrence and had gone with him several times.. On the night of January 31, 1931, she, the appellant, her sister, and another young man, a cousin of the appellant, had gone to a dance. They left the dance about 10:30 o’clock at night and drove back in the direction of Sea-graves. They stopped the car near a. railroad track and the appellant suggested that they get out of the car; that he wanted to tell her something. After they had walked a short distance from the car, the appellant grabbed her and tied her hands behind her back with a necktie. She was fighting all the time but she was not screaming. After he got her hands tied, he threw her down and then got on top of her. She further testified that she did not fight or kick the appellant but merely tried to make him behave and she never screamed. She testified that the appellant- actually penetrated her female or-: gans with his male organ; that this was the first act of intercourse she had ever engaged in and resulted in pain and some bloodshed to her. After the act of intercourse, the appellant untied her hands and they went back to the car and she did not tell any one about the occurrence until the week following'January 31, 1931, when she missed her monthly period and she then communicated the fact to her mother. ■ She did not khow whether her mother saw her clothes or not, but that she washed them after the occurrence. She further testified .that a short time thereafter she told the appellant about her pregnant condition and the appellant tried to get her to have an abortion, which she refused to do; that twice after said occurrence she and her sister had gone out riding with the appellant and another young man.

There was no testimony that any one ever saw any bloody clothing nor did.any one testify with reference to the condition of prose-cutrix’ privates. None of the occupants of the automobile testified that they had heard any scream or outcry on her part. She was entirely uncorroborated by any fact or circumstances showing that on this particular night she was raped and ravished by the appellant. ’

The mother of the prosecutrix testified that about a week after the occurrence her daughter told, her about some character of trouble she had had with the appellant. She further testified that she afterwards saw the appellant at her house but she never had any conversation with him about the matter.

The appellant denied that he had ever had any intercourse with the complaining witness. He testified that he was in the state of New Mexico on January 31, 1931, the time the prosecuting witness alleged that the offense was committed. In this he was corroborated by other witnesses, but he admitted that on February 7th he, the prosecutrix, her sister, and his cousin had gone to a dance together; that they stopped the car on the side of the road and he and the prosecutrix got out of the ear to walk around, but at no time were they more than fifty steps from the automobile and were never out of sight of the same. He denied emphatically ever having any intercourse with the prosecutrix.

There was testimony offered by the appellant to the effect that the prosecutrix had been going with a boy about nineteen years of age by the name of Orville Byron, and the witness Arthur Cunningham testified that about the middle or latter part of January, 1931, he rode home from church with Orville Byron and the prosecutrix and he saw the said Byron embrace and kiss the prosecutrix; that Byron said something about not bringing a blanket along and the prosecutrix replied that it wouldn’t have done him any good because she was sick. The witness further testified that he had seen the prosecutrix and the said Byron together a great deal about that time and that she had spent several nights at Byron’s home.

When the case was called for trial, appellant made an application for a postponement of said case for two days so as to enable him to get the testimony of one H. C. Usrey and also the testimony of one Maud Wright. The application showed that the appellant expected to prove by the said Usrey that he was well acquainted with Opal Gibson, the prose-cutrix, and had conversed with her concerning her pregnancy; that the said Opal Gibson told the said witness that she was pregnant and would become the mother of a. child; tha-t she had tried to knock it but had been unsuccessful; that she further told said witness that defendant was not responsible for her pregnancy but-that a married man was the cause of her being pregnant, but she could not afford to name ,said married man or charge him with her pregnancy because it would break up a home and he could not marry her. That the said Maud Wright would testify to the following facts: Some two weeks after the birth of said child to the prosecutrix, said witness had a conversation with the said Opal Gibson, in which conversation the said Opal Gibson told the witness that she did not know who was the father of her child, and that it lay between two boys but she didn’t know which one of the boys was responsible for said child. The trial court refused to postpone said case, to which action the appellant excepted.

In his motion for new trial, appellant complains of the action of the trial court in refusing to grant said postponement. Attached to said motion for new trial were the affidavits of the said Maud Wright and H. 0. Usrey, which affidavits showed that the said witnesses would have testified to the facts substantially as set out in appellant’s motion for postponement. The record shows that on the 23d day of May, 1932, appellant made application for subpoena for a number of witnesses, among them Maud Wright and H. O. Usrey. On the hearing of the motion for new trial, the sheriff of Gaines county testified that he had not received process for the witnesses named in the subpoena until Tuesday morning, the day before the appellant went to trial; that he went to the house where the said Maud Wright had been living and found that she was not there but had gone to the home of a man by the name of Perry some twenty miles west of Brownfield ; that he then telephoned to Brownfield and informed the sheriff of Brownfield to locate said witness and bring her down; that he also called the sheriff of Tom Green county with reference to the witness Usrey and told him he was located at Water Valley and informed him that he had a subpmna for him; that that subpoena had not been returned to him and he did not know whether it had ever been served; that the sheriff of Tom Green county told him he would go to Water Valley and look for the witness and a couple of hours later he called him up and told him he had been to Water Valley and said he had heard that the said Usrey had moved to Sterling City and had- telephoned the sheriff of Sterling City to look for him.

The motion for new .trial being supported by the affidavit of the absent witnesses deposing to the facts stated in the application for continuance, the court is not the judge of its probable truth. Section 336, Branch’s Ann. P. C.; Thomas v. State, 51 Tex. Cr. R. 330, 101 S. W. 797; Morgan v. State, 54 Tex. Cr. R. 549, 113 S. W. 934. We quote from section 319, Branch’s Ann. P. C.: “Though the continuance was properly denied for want of sufficient diligence, yet if the absent testimony, viewed in the light of the testimony adduced on the trial, be material and probably true, a new trial should be granted.” See Day v. State, 62 Tex. Cr. R. 448, 138 S. W. 130; Baxter v. State, 68 Tex. Cr. R. 136, 150 S. W. 912.

It is well established that the truth of an application for a continuance as well as the merits of the grounds set forth therein and its sufficiency is addressed to the sound discretion of the court to pass upon the same, and it is not granted as a matter of right, although it may meet all the requirements of the law. But it is provided that should an application be overruled and the defendant convicted, if it appears upon the trial that the evidence of the witnesses named in the application was of a material character and the facts set forth in said application are prob-ably true, a new trial should be granted. Article 543, O. C. P. After reading the record-m this case, we are of the opinion that there is a very serious question whether the evidence is sufficient to sustain the verdict, and the evidence of the witnesses named in said application for a postponement and whose affidavits are attached to appellant’s motion for a new trial are of a material character upon the'main issue in the case. We feel that the appellant should not be deprived of any legitimate testimony, however slight, • that may tend to contradict the prosecutrix as to whether or not the appellant had had carnal knowledge of her, that being the vital point in the case. See Eppison v. State, 82 Tex. Cr. R. 367, 198 S. W. 94S; see, also, Branch’s Ann, p. O. § 324, subds. 3 and 4, and cases cited.

Further errors have been assigned by appellant’s counsel, but they are of a nature that renders our determination of them unnecessary.

Having concluded, after a careful review of the record in this case, that the appellant’s application for a new trial should have been granted, the judgment of the trial court is reversed and remanded.

Reversed and remanded.

PER CURIAM.

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


text:
    HARRIS v. STATE.
    No. 15747.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Sid Crumpton, of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Conviction is for murder; punishment, fifty years in the penitentiary.

The state’s testimony showed that the appellant and deceased weiv seen to go in a café in Mt. Vernon, Tex., on the night of March 12, 1932. The testimony showed that the deceased was a man around 55 years of age, and about five feet, four inches, tall and weighed about 120 pounds, and the appellant was a much larger man and weighed about 190 pounds. The appellant and deceased ate supper together in said café, and the deceased paid for it. They were there about thirty minutes. The supper amounted to about 60 cents, and in payment therefor the deceased produced a $20 bill and was given the balance after deducting the amount of the meal check. At the time the deceased received the change for the $20 bill, the appellant remarked to the deceased that he had better get a basket to tote it in. They then drove off in a Ford coupé. The testimony further showed that the next morning one West Roach was walking along the public highway near Bassett, about fifty miles from Mt. Vernon, and saw where something had been dragged off from the north side of the highway. Upon investigation, he found the body of the deceased lying on his face about sixty-five or seventy feet from the highway. Where the body was found there was some timber and brush. The witness then notified a Mr. Faulkner, who went back with the witness to the place where the body was found. There they found a tire tool, a piece of steel about ten or twelve inches long, and they also found a jack handle on the edge of the asphalt which was about one inch wide and ten or twelve inches long. Upon an examination of the body of the deceased, it was found that he had two suits of clothes on. The pockets of all the clothing, with the exception of the pocket that was lying under the body of the deceased, were turned wrong side out. There were several wounds upon the head of the body of the deceased, and there were also found about three puddles of blood. Marks were also discovered where something had been dragged from the south side of the highway across the highway. _ Off the edge of the highway on the road there was some mud and water, and there were some marks through the mud and water. It' was about eight feet across the mud and water. There were signs showing where the body had been dragged through the mud and water. There Was a path leading from said "mud puddle right up to the -body of the deceased. Mud and water was also found on the deceased’s clothing. The pocket of deceased’s clothing lying under his body was found to contain $19.80. The testimony further showed that both of deceased’s shoes were pulled off, and his shoes were found three or four feet from deceased’s body. The evidence further showed that the skull of deceased was fractured in several places. There were wide gaping wounds which wefit to the brain. About a week after the body of the deceased was found, the appellant was apprehended in Jonesboro, in the state of Arkansas. After the appellant was arrested, he showed the officers where he had thrown the license plates he had taken off the car and the license plates corresponded with the plates that had been issued in California.

A written confession of the appellant was offered in evidence by the state, which was to the effect that the appellant had ridden with deceased in deceased’s car from California to Mt. Vernon. After they had left Mt. Vernon, the deceased was driving the ear and appeared to be sleepy, so they stopped the car by the side of the road and went to sleep; that he was awakened by the deceased trying to take his privates out of his pants, and he further stated: “When I woke up I found him with his head down between my legs, his body under the steering wheel and his feet on the'ground on the left side of the car, that is, his feet were either on the ground or on the left fender. Anyway the left door was open and part of his body was out of the car. He had my privates out and in his hand. I reached back on the shelf back of the seat and grabbed a jack with one hand and a tire pump with the other hand. I had the jack in my left hand and hit him in the back of the head with it. I also hit him over the head with the pump before I got out of the car. I then got out of the right hand side of the car and threw the pump away but kept the jack.”

Appellant further admitted that the deceased got out of the car and fled from him and he followed the deceased into a ditch filled with water and there stomped him and struck him over the head some more with the jack. He then grabbed deceased by the coat collar and dragged him through the mud and water until he got him on the ground, and he then decided that he had gone so far with him that he better finish him up, so he hit him several more times with the jack and then threw the jack down. He further stated in said confession that he then searched the deceased’s pockets for his (the appellant’s) purse which deceased had, but, before searching his pockets, he pulled his shoes off to see if his purse was in his shoes. He testified that he found his purse and also found deceased’s money, but did not take it. He then left the body of deceased lying there and got in the car and came to Texarkana and left the car there; that he took the license plates off of the rear of the car and threw them away; that the front license plate had been lost in Arizona. He then went to the yards of the Missouri Pacific Railroad and caught a freight train into Little Rock.

The appellant testified in his own behalf, and testified to the facts substantially as those contained in his confession, with the exception that in his testimony he stated that he acted in self-defense, in that at the time he struck the deceased he had reason to believe the deceased was going to maim him; that deceased had had a knife, and deceased would not let the appellant have the knife on the trip in order to patch a tire, and, when he struck the deceased, he was fighting for his life. 1-Ie further testified that he had been bothered ever since he was a boy with convulsions, and at the time he struck the deceased he was hysterically fighting for his life, and he did not know whether or not the deceased had his knife. He could not see the deceased’s knife, but he knew that the deceased had a knife which was large enough to kill.

The appellant challenged the array of the venire on two grounds: First, that Josey Eldridge, one of the jury commissioners, at the time he acted as jury commissioner, had a civil suit pending in the civil court; and, second, that said Eldridge was under indictment for a felony in the circuit court of Pulaski county, Ark., at the time he served as commissioner. Article 2104, Revised Statutes (as amended by Acts 1929, c. 37 [Vernon's Ann. Civ. St. art. 2104 note]), names five qualifications for jury commissioners; the fourth qualification is that he shall have no suit in said court which requires the intervention of a jury. P.y article 333, Code of Criminal Procedure, four qualifications are set forth for a jury commissioner, the fourth of which is identical with that contained in article 2104, Revised Statutes, as amended. In neither the civil statutes nor the Code of Criminal Procedure is there any provision of law which disqualifies a jury commissioner because he is under indictment for a felony at the time he served. Article 608, Code of Criminal Procedure, provides for the only ground for a challenge to the array in a capital case, that ground being that the officer who summoned the jury has willfully summoned jurors with a view to securing a conviction or acquittal, and by the last sentence of that article it is also provided that this article shall not apply, when the jurors summoned have been selected by jury commissioners. In the case of Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771, a motion was made to quash the array of jurors on the ground that one of the commissioners was a party to three civil suits pending in court at that time which suits required the intervention of a jury. The question was squarely presented before the jury was impaneled, and it was held in substance that a challenge to the array of jurors is not allowed, unless it has been shown that the jury commissioners acted corruptly in drawing the list of jurors for the purpose of securing the conviction of the defendant. The statute providing for qualifications of commissioners is held to be directory and not mandatory.

In the case of Walker v. State, 98 Tex. Cr. R. 663, 267 S. W. 988, a motion was made to quash the venire, which the court held was in reality a challenge to the array of jurors. The ground of the motion was that one of the jury commissioners had a suit pending in the district court which required the intervention of a jury. The Whittle Case, supra, and the case of Bryant v. State, 97 Tex. Cr. R. 11, 260 S. W. 598, were cited, and were held to be directly in point as authority against the contention that the venire should be set aside. And, in further discussion of the question, it was held that the statute (what is now article 608, C. C. P.) names the only ground for a challenge to the array, and that this statute explicitly denies the right to challenge the array when the jurors have been selected by jury commissioners. See, also, Dailey v. State (Tex. Cr. App.) 55 S. W. 821; Williams v. State, 45 Tex. Cr. R. 218, 75 S. W. 859, 861.

It will be observed that none of the statutory provisions relating to qualification of commissioners say anything about whether or not he is under indictment for a felony. There being a total absence of proof that the jurors were corruptly drawn for the purpose of obtaining a conviction of the defendant, and this cou'rt having held that the statute defining the qualification of a jury commissioner is directory and not mandatory, we feel constrained to hold that the decisions of this court settle the issue involved adversely to the contentions of the appellant, and that there was no error in the action of the district court in overruling the challenge to the array.

By bills of exception 2, 3, 4, and 5, appellant claims that the trial court committed error in permitting the testimony on the trial of the case of three doctors as to their examination of the defendant when he was in custody and as to their opinion as to whether the appellant was subject to any kind of convulsions or fits, and as to the eliciting from the appellant on cross-examination the following testimony: That he had been having these convulsions for a number of years and he • had had convulsions last year, and as to whether or not a fellow prisoner by the name of Deo Posey had not told the appellant that he could get out of the ease by throwing fits, and if the appellant did not immediately begin to throw fits and asked the said Posey how to do it, and other questions as to his conduct in regard to said fits while in jail. Defendant objected to all of said testimony because the appellant was in the custody of officers and no proper predicate had been laid for such information and it was inadmissible for any purpose and the questions asked in reference to his sanity or his physical condition and mental condition, not being an issue in the case, were highly prejudicial and injurious to the defendant.

All of said bills are qualified by the trial judge, without any exception thereto by the appellant, to the effect that said cross-examination and testimony was admissible because defendant had on direct examination been questioned by his attorney, and he had testified that he had been nervous and had had spells and convulsions when he was a boy, and he did not know what he was doing at the time he killed the deceased, and the testimony complained of as to the defendant’s testimony was on cross-examination of the defendant .upon this issue made by his testimony given on direct examination, and the court gave the defendant the benefit of this issue in his charge to the jury. The appellant having testified on his direct examination, as shown by the court’s qualifications to the bills, that he had been nervous and had had spells and convulsions to such an extent that at times he did not know what he was doing and he was in that condition at the time he killed the deceased, the question of whether the appellant was subject to spells and convulsions to such an extent that at times he did not know what he was doing and he was in that condition at the time he killed the deceased became a material issue in the case as to whether he was subject to said spells and convulsions. W'e quote from Branch’s Ann. P. C. § 97, p. 52, as follows: “Whatever material facts are introduced that tend to affect the issue, the other side has the right to deny, contradict or explain that testimony, showing its falsity, or breaking its force and effect in any legitimate way.” Johnson v. State, 74 Tex. Cr. R. 179, 167 S. W. 733; Swafford v. State, 75 Tex. Cr. R. 357, 171 S. W. 225. No reversible error is shown by these bills.

Appellant also contends that the court erred in his charge to the jury in merely charging the jury the abstract definition of exculpatory statements in confessions, and that the appellant was entitled to an affirmative charge on such statements, and the jury should have been required to return a verdict of not guilty if such exculpatory statement introduced by the state had not been disproved. The court in his charge to the jury used the following language: “In this case the State has introduced in evidence a confession of the defendant, and the State is bound by any and all statements therein made until and unless the State has proven the falsity of the same by other evidence beyond a reasonable doubt.” In addition to said charge, the court charged on self-defense as claimed by appellant both in his confession and in his testimony.

We quote from the opinion of Presiding Judge Morrow in McKinley v. State, 104 Tex. Cr. R. 65, 282 S. W. 600, 603, as follows: “Ordinarily, when the state introduces a confession of accused containing exculpatory statements, it is incumbent upon the court to instruct the jury that the exculpatory statements are regarded as true unless disproved. Maxey v. State, 58 Tex. Cr. R. 121, 124 S. W. 927; Winkler v. State, 58 Tex. Cr. R. 568, 126 S. W. 1134; Jackson v. State, 55 Tex. Cr. R. 86, 115 S. W. 262, 131 Am. St. Rep. 792; Gaines v. State, 58 Tex. Cr. R. 639, 127 S. W. 181; Banks v. State, 56 Tex. Cr. R. 265, 119 S. W. 847. This rule, however, has been relaxed in a case where the accused on trial testifies and his testimony before the jury is in accord with the exculpatory features of his confession, and his defensive theory arising from his testimony and coinciding with the exculpatory theory advanced in the confession is fairly submitted to the jury. ’ See Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534.”

There was nothing in the court’s charge that was calculated to lead the jury to understand that the exculpatory statements in said confession could not be considered for any purpose favorable to the appellant. The appellant’s defensive theory arising from his testimony and coinciding with the exculpatory theory advanced in the confession was by the court fairly submitted to the jury. No reversible error is.shown.

Three special charges appear in the record, two of which were refused. No exceptions seem to have been saved to this action of the court. It does not so appear from any notation on the special charges, over the court’s signature, but only a notation that it was refused. It has been repeatedly held that it must be made to appear affirmatively that exceptions were reserved to the refusal of special charges before they were properly before us for review. See 65 Tex. Juris, vol. 4; Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491; Craven v. State, 93 Tex. Cr. R. 329, 247 S. W. 515; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518.

Finding no error in the record which would authorize a reversal, the judgment is affirmed.

Affirmed.

PER CURIAM.

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


author: MORROW, Presiding Judge. HAWKINS, Judge.

text:
    Ex parte MADDOX.
    No. 15683.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    State’s Rehearing Denied March 22, 1933.

      Otis Rogers, Houtchens & Houtchens, and X Harold Graik, all of Fort Worth, for appellant.
    R. E. Rouer, Geo. O. Kemble, Slay & Simon, and Wm. H. Gilmartin, all of Fort Worth, amici curise.
    Jesse E. Martin, Dist. Atty., and Cecil C. Rotsch and Stanley Bransford, Asst. Crim. Dist. Attys., all of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

This is an appeal from an order of the criminal district court of Tarrant county refusing to discharge the relator upon a writ of habeas corpus.

The relator is confined by virtue of a prosecution and judgment based upon section 22 of an ordinance of the city of Fort Worth, which reads as follows:

“Section 22. Spite Fence Prohibited — Defined. It shall be unlawful for any person, firm or corporation to erect, build, keep or maintain any spite fence within the corporate limits of the City of Fort Worth, and the term ‘spite fence’ shall be understood to mean a fence intended to or which has the effect of excluding light or air from neighboring yards or houses.
“Section 22. Penalty — All violations of the terms of section 22 hereof shall be punished by a fine of not less than one dollar nor more than ten dollars. (Ord. No. 100, June 25, 1909; E. 401.)”

The order is based on section 23 of the charter of the city of Fort Worth, which reads thus: “Fences — -Height of- — Spite Fences. The said Board of Commissioners shall have the power to regulate the height and character of.fences on private property and the erection.and maintenance of same within said city and to prohibit the erection or maintenance of ‘spite fences’, which are intended to have the effect of excluding light or air from neighboring houses, and to provide appropriate penalties for the execution of this power.”

The validity of the ordinance is challenged upon the contention that it is not a subject within the scope of the police power of the city; also, upon the contention that the ordinance is not sufficiently definite in the description of the offense to support a criminal prosecution. That there are limitations in the authority of a city in the exercise of the police power restrictive of the usé of private property is fundamental. The extent or scope of the limitation is a subject of much conflict of opinion as it appears in the judicial reports and text-books. It is believed that all precedents agree that the following quotation from Ruling Case Law, vol. 4, p. 399, is a correct statement of the law: “The regulations adopted must, however, be of a reasonable character adapted to the accomplishment of the purposes on which the constitutional authority rests, and having a real, substantial relation to the public objects which the government can accomplish, such as the promotion of the public health, or the safety, comfort and convenience of the people and the benefit of property owners generally. While, in some instances, considerations of taste and beauty may enter into such legislation, they are merely incidental to the main object of the law, for the inhabitants of a city or town cannot, under the present state of the laws, be compelled to give up rights in property for purposes purely aesthetic in their nature." See Spann v. City of Dallas et al., 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387; also, Blackman Health Resort v. City of Atlanta, 151 Ga. 507, 107 S. E. 525, 17 A. L. R. 516, notes page 523.

We have been referred to no provisions of the Constitution or the. statutes, nor -have we discovered any, which would give authority or sanction to the exercise of the power embraced in the ordinance quoted. Neither have we perceived in the enumeration of powers available to cities under the Home Rule Amendment, which is set forth in article 1175, Rev. Civ. Stat. 1925, any provision which would warrant the enforcement of the ordinance mentioned. Touching the scope of the police power as embraced in the particular ordinance under consideration, the case of Klein v. Gehrung, 25 Tex. Supp. 232, 78 Am. Dec. 565, is of interest. Gehrung brought suit against Klein to compel him to remove a fence built on his land in the city of New Braunfels because it obstructed Geh-rung’s windows. The decision in the trial court was against Klein. The opinion of the Supreme Court of this state rejected the principle of law which in England had been held to -entitle one by long usage to acquire a -prescriptive right to the light in his structure and to forbid the adjoining owner in the use of his land to interfere with the lights in the building of his neighbor. On this subject, the court said:

“Nothing, as has been said, can be more certain, than that every one has a right to use his own as he pleases, provided he does not thereby injure others; and it is inconceivable that, upon any principle, one can acquire a right or interest in that which is another’s, merely by the manner in which he uses his own. If he could, it would result that one’s right to the use and enjoyment of his property would become lost to him by the acts of another which in no way affected him, and against which, consequently, he had no remedy, no means of redress, or prevention, unless, as has been said, by building a wall between himself and his neighbor. Such cannot be the doctrine of the common law. And we think it has been sufficiently shown, that we have both principle and authority for holding that the present action cannot be maintained. ' * * *
“The occupant of a log-house in a new town, which had been foun.ded but little more than ten years when the right was asserted, denies the right of the adjoining proprietor to put a fence around his lot, because it will occasion a partial obstruction of the light and air previously enjoyed by the occupants for that period. The windows, it seems, are so low, that a fence of ordinary height cannot be built without obstructing the light, and the witnesses think the house diminished in value $25; and the plaintiff thereupon claims the prescriptive right to have her windows protected as ‘ancient lights;’ and thereby, if need be, wholly to deprive the adjacent proprietor of the use of his lot, at least to deprive him of the right to build or improve upon it in such manner as his interest or fancy may dictate. * * *
“Every one who builds upon the margin of his lot, in a town or city, does so with a knowledge that the. adjoining proprietor has the same right; and if he would not be put to inconvenience in consequence of the exercise by his neighbor of his right, he must have respect to that right in the uses to which he appropriates his own; so that he may enjoy his own, and at the same time suffer his neighbor to enjoy that which is his.”

Practically without exception, the holdings of the courts of the United States are in accord with the anouncements made in the case of Klein v. Gehrung, supra, to which reference is made above. That is to say, that no legal action can be sustained forbidding the owner of land from fencing it or punishing him for doing so although it may obstruct the light and air from the land of his neighbor. 'See En ay. of Law & Proc. vol. 1, p. 788, subd. B. Even in those jurisdictions in which injunctions have been granted against the maintenance of a so-called “spite fence,” no remedy exists for their maintenance, although the motive which inspired them may be malevolent, unless it also appear that the fence id of no benefit to the owner who constructed it. See Ency. of Law & Proc., supra, p. 789; also, Wilkinson Live Stock Co. v. McIlquam, 14 Wyo. 209, 83 P. 364, 3 L. R. A. (N. S.) 733, see page 737. It may be added that in those jurisdictions last mentioned, namely, such as have sanctioned the abatement of a so-called “spite fence,” the remedy has been by injunction or other civil remedy, and so far as we have observed, in none of them has it been declared that for building a fence upon his own land the owner has been held to have committed a criminal offense. See Karasek v. Peier, 22 Wash. 419, 61 P. 33, 50 L. R. A. 345.

In consonance with the great weight of authority and in accord with the declaration of the Supreme Court of this state in the case of Klein v. Gehrung, supra, we are constrained to conclude that the relator should be discharged from custody, and it is so ordered.

On Motion for Rehearing.

HAWKINS, Judge.

In our original opinion we said; “We have been referred to no provisions of the Constitution or the statutes, nor have we discovered any, which would give authority or sanction to the exercise of the power embraced in the ordinance quoted.” In the state’s motion for rehearing our attention for the first time is directed to section 22, art. 16 of the Constitution, which reads as follows: “The legislature shall have the power to pass such fence laws, applicable to any subdivision of the state or counties, as may be needed to meet the wants of the people.” It is the state’s contention that the foregoing constitutional provision was authority for the Legislature (Special Laws, Reg. Sess., 31st Leg. [1909] oh. 31, p. 227) to incorporate in the special charter granted to the city of Port Worth in 1909 (and which has been retained under the “home rule” Amendment [Const, art. 11, § 5]) the “power to regulate the height and character of fences on private property, and the erection and maintenance of same within said city, and to prohibit the erection or maintenance of ‘spite fences,’ which are intended to have the effect of excluding light or air from neighboring homes, and to provide appropriate penalties for the execution of this power.” Chapter 9, § 25. We deem it unnecessary to decide whether the constitutional provision mentioned conferred the power exercised by the Legislature. It seems clear that the city in passing the ordinance upon which the prosecution rests exceeded the power attempted to be granted. In the motion for rehearing it is conceded that no conviction could be had unless “the fence was erected for spite, and was intended to and did exclude light or air,” and was not constructed to serve some beneficial purpose to the owner. The grant of power to the city, limited it to the prohibition of fences “which were intended to exclude light and air.” The ordinance passed by the city, however, defined a “spite fence” as one which was “intended to, or which has the effect of excluding light or air, etc.,” - regardless of the purpose of its erection or maintenance. Complaint against relator seems to have been drawn under the latter clause of the ordinance. It charged that she unlawfully maintained a spite fence which had “the effect of excluding light and air” from a neighboring yard, it being nowhere averred that such was the intention in either the erection or maintenance of the fence; Our former opinion made proper disposition of the case regardless of the state’s present contention, regarding which we express no opinion, as it is not necessary to the disposition of the case.

The state’s motion for rehearing is overruled.


text:
    STEWART v. STATE.
    No. 15618.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    R. H. Ratliff and L. W. Sandusky, both of Colorado, Texas, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, selling intoxicating liquor; the punishment, two years in the penitentiary.

The purchaser named in the indictment testified that he purchased intoxicating liquor from, the appellant for which he paid him $5. Appellant’s defense was that of an alibi.

By bill of exception No. 1, appellant complains of the refusal of the trial court to quash the indictment, and alleged in said motion that said indictment was void, not having been passed upon by a grand jury of twelve men duly qualified as required by the Constitution of Texas under article 6, § 2, as well as article 5, § 13, of said Constitution, in that the purported grand jury who deliberated upon and undertook to return the indictment in this case was constituted of only nine qualified men to sit and act and return the indictment, in that three of said grand jurors, including the foreman, were not qualified to act as jurors, in that they were subject to and failed to pay their poll tax prior to February 1, 1931; furthermore, that there were more than 500 men in said Mitchell county, Tex., who had paid their poll tax for the year 1931, and that this was his first opportunity to present this motion, as he was out of the county and had no knowledge or any reason to believe that ho would be indicted, and was not present when the grand jury was selected and sworn in as such. The motion was overruled.

It appears from the record in the case that no evidence was heard upon said motion, but the bill of exception shows that the district attorney admitted and agreed to the following agreement: “It is agreed by and between counsel for state and the defendant that three of the twelve jurors who returned this indictment against Raymond Stewart, No. 2628, in the District Court of Mitchell County, Texas, had not paid their poll taxes for the year 1931, such bill of indictment returned in the case at bar was not signed individually by 9 jurors of the grand jury, but only by the foreman who had not paid his poll tax, and for the year 1931 there were at least 500 men in Mitchell County, Texas, who had paid their poll taxes and qualified to act as grand jurors as having paid their poll taxes.’’

In support of appellant’s contention, we are referred to article 354, C. C. P., which provides: “In trying the qualifications of any person to serve as a grand juror, he shall he asked: 1. Are you a citizen of this State and county, and qualified to vote in this county, under the Constitution and laws of this State?” Appellant also refers us to article 339 of the Code of Criminal Procedure, which specifies the qualification of a grand juror as follows: “He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.”

There was no contention in appellant’s motion or otherwise in the record that any of the three members who had not paid -their poll taxes were otherwise disqualified to serve as gránd jurors. Section 2, art. 6, of the Texas Constitution, provides in substance that, in order for a person to be a qualified voter, every person subject to paying a poll tax under the laws of the state of Texas shall have paid said tax before offering to vote at any election in this state, but leaves it to the Legislature to decide who shall be subject to the payment of a poll tax. By article 2959, Revised Civil Statutes 1925, the Legislature provides who shall be liable to pay a poll tax. By article 2960, Revised Civil Statutes, 1925, it is provided that every person who is more than 60 years old or who is blind or deaf or dumb or is permanently disabled or has lost one hand or foot shall be entitled to vote without being required to pay a poll tax if he has obtained a certificate of exemption from the county tax collector when the same is required by the provisions of this title.

If a voter otherwise qualified is exempt under the law from paying a poll tax, and doés not live in a city of ten thousand inhabitants or more, he would not be required to obtain an exemption certificate under article 2955, Revised Civil Statutes 1925. See, also, Huff v. Duffield (Tex. Civ. App.) 251 S. W. 298. It will be seen, therefore, that a person might be a qualified voter though his name might not appear on the poll tax or exemption list.

There is an entire absence of any proof in the record that the three grand jurors who presented this indictment were subject ,to the payment of a poll tax. As we understand the contention of the appellant, it is to the effect that, when it was admitted by the state that the three grand jurors named had not obtained a poll tax, the burden of proof was on the state to show that they came under the exemptions of those who are not required to pay a poll .tax. Under well-established rules of law, this court must presume that an officer performed his statutory duties, unless the contrary.appears, and,, in the absence of any showing that the grand jurors, who appellant contends were not qualified to serve as grand jurors, were in fact not qualified voters, notwithstanding that they had not obtained their poll tax, we must presume that the jury commissioners who selected them found them to be qualified voters before they were drawn, and that the trial court found them to be such before he impaneled them as grand jurors. See Texas Juris, vol. 18, § 10; Faubion v. State, 104 Tex. Cr. R. 78, 282 S. W. 597; Barton v. State, 86 Tex. Cr. R. 198, 215 S. W. 968.

Several .bills of exception were reserved to the argument of the state’s attorney. The bills prepared are meager in presenting the connection in which said statements were made, and we aré not able to discern from them that error was committed. One of said bills shows that the court sustained the appellant’s objection to one of the statements complained of. It is not every improper argument that will require a reversal of the case for the failure of counsel to confine himself to the record. It must be made to appear from the record that it was of such character that injury would result to defendant by reason thereof. This the bills fail to show, and it does not appear that the remarks were of a material character and such as under the circumstances were calculated to injuriously affect the rights of the appellant. See Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52; Himmelfarb v. State, 76 Tex. Cr. R. 173, 174 S. W. 586; Pierson v. State, 18 Tex. App. 524.

The sentence adjudges the appellant to be confined in the penitentiary for two years. Giving application to the provisions of the Indeterminate Sentence Law (O. C. P. 1925, art. 775, as amended by Acts 42d Legislature 1931, c. 207, § 1; Vernon’s Ann,. C. O. P. art. 775), the sentence is reformed so that it may be shown that appellant is adjudged to be confined in tie penitentiary for an indeterminate period of not less than one year nor more than two years.

As reformed, no reversible error appearing, the judgment is affirmed.

PER CURIAM.

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


author: LATTIMORE, J.

text:
    GORDON v. STATE.
    No. 15144.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.

      Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for the theft of turkeys; punishment, six months in the penitentiary.

This is a companion case to Warrick v. State (No. 15143) 56 S.W.(2d) 1078, this day decided. Theft of two turkeys from Lightner near Coleman, Tex., on the night of February 23, 1931, was charged against appellant and three others. There being a severance, appellant alone was on trial. The facts show that two turkeys were stolen from Mr. Light-ner on the night of February 23d, which were found in possession of appellant and his companions in Abilene some sixty miles from Coleman at about 7 o’clock on the morning following. Appellant testified that he and his companions left Coleman about 6 o’clock on the morning of February 24th to go to Abilene, and about twenty miles out they met a Mexican, a stranger to them, from whom they bought nine grown turkeys and fourteen grown chickens for $8, and that when they got to Abilene they went to a poultry house to sell said turkeys and chickens. Edison, an employee at the poultry house, said they had the negroes who brought these turkeys, etc., to wait awhile; that the place did not, open for business until 8 o’cleck. ' While waiting, he testified, one of the negroes turned up the license plates on their car, and that two of the negroes ran out of the house; one of these, in the opinion of the witness, being this appellant. Appellant admitted while on the witness stand that during said day he left Abilene on foot to go back to Coleman, and was picked up by an officer some fifteen miles out from Abilene and brought on to Coleman.

Appellant asked a continuance. Diligence was not shown. The issuance of a subpoena in a companion case, returnable at a former term of said court, does not measure up to the requirements, when alone depended on. Bills of exception 2 and 3 call for no discussion. Bill No. 4 is not approved by the trial court. Bill No. 5 complains of testimony admitted to prove flight, the witness giving it as his opinion that appellant was one of two negroes who ran away from the poultry house. We think the testimony admissible.

The complaint appearing in bill of exception No. 6 was of the introduction of testimony which was a necessary part of the development of the case. It complained because the state was allowed to prove that one of the negroes turned up the number .plates of their car while waiting at the poultry house.

We see no objection to proof by the state that appellant came back to Coleman with the officer on the day of his arrest, this appearing in bill of exception No. 7.

Bill of exception No. 8 sets out as part of its preliminary statement, that this appellant and his codefendant were indicted not only for theft of two turkeys from Lightner —for which hé was on trial — but also in two other indictments for theft of turkeys from other parties which grew out of this same “transaction”; and that while a witness in his own behalf appellant was asked if he was not under indictment in, two other felony eases. The bill shows that appellant object-; ed on the ground that “all of these transae-, tions grew out of one and the same alleged offense and transaction,” which objection being overruled and the question repeated, it appears that appellant answered that he did not know, but later said: “I guess there is.” We do not regard this showing as meeting the burden imposed on the accused to make evident by the bill of exception that the other two indictments were for offenses growing out of the theft of the Lightner turkeys, or theft of other turkeys taken at the same time and place as the Lightner turkeys. Mr. Lightner’s testimony practically forecloses any such contention against appellant. Indictments for the taking of other turkeys from some other owners at other places than that of Mr. - Lightner, though on the same night and in the same community, would not support an objection, if made, that said indictments were for the same offense.

Bills of exception 9 to 15, inclusive, show no error, and seem not to call for discussion on our part.

The judgment of the trial court will be affirmed.


text:
    ALDRIDGE et al. v. STATE.
    No. 15433.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Haag & Stubbeman, of Midland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

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

It appears from the record that one Spot Aldridge, as principal, together with C. J. Dunn and Mrs. W. H. Thompson, as sureties, on the 25th day of January, 1930, made an appearance bond payable to the state of Texas in the penal sum of $1,000. On the 25th day of November, 1930, the case being called for trial and Aldridge failing to appear, his bond was forfeited and a proper judgment nisi was rendered against hipa and' said sureties. In said judgment, among other things, was the following recital: “It is ordered, adjudged, and decreed by the court that the State of Texas do have and recover of and from the said Spot Aldridge, as principal, in the sum of one thousand dollars; and in like manner that the State of Texas do have and recover of and from the said C. J. Dunn and Mrs. W. H. Thompson, as sureties, the sum of one thousand dollars each, and that this judgment shall be made final unless good cause be shown at the next term of this court why said defendant did not appeár.” The record further discloses that the answer of the surety, Mrs. W. H. Thompson, was filed January 30, 1931, which upon examination shows that she merely requests the court ■ hot to make his judgment final until she had opportunity to bring the defendant Spot Aldridge into court, which she'verily believed she could do during the February term, 1931, of said court. It is further shown by the record that on the 19th day of February, 1931, the court entered a final judgment in said cause, but that there was a failure to enter said judgment on the minutes of the district court of Midland county during the February term of said court. It is further shown by the record that upon application of the district attorney the judge entered a nunc pro tunc and final judgment in said cause as of date the 19th day of February, 1931. No notice of the application of the state to render the judgment nunc pro tunc was served upon the surety, Mrs. W. H. Thompson. By a proper writ of error and supersedeas bond, Mrs. W. H. Thompson brings this case to this court upon one proposition, and that is that the court erred in rendering the nunc pro tunc judgment of October 3, 1931, against her because no notice in a nunc pro tunc proceeding was ever given to her.

This exact question of law and substantially the same facts was before this court in Dunn et al. v. State, 53 S.W.(2d) 307, 310, and said contention here made was held adversely to the appellant. In the case before us we have a judgment which was for the first time entered on the minutes of the court on October 3, 1931; no complaint being even now made of its absolute correctness in form and substance. There is neither pretense nor assertion that the judgment then entered is in variant form, or in any way not the judgment actually rendered at a prior term on the 19th day of February, 1931. There is no suggestion in the record before us that had appellant been present she would have had any defense .or that she would or could have had a different judgment entered had she been fully apprized.

In the Dunn Case, supra, the authorities are so thoroughly discussed that we deem it unnecessary to enter into any discussion of appellant’s contention, except to quote from the closing paragraph of Judge Hawkins’ opinion on motion for rehearing: “ * * * Assuming that they in fact had no notice of the entry of the judgment on October 3d, we have the peculiar situation of parties defendant to a suit who had been duly and regularly cited, who have never denied liability, or filed any answer-which could be so construed, coming into a court of equity and asking that they be given relief against a judgment of the court having jurisdiction, without any averment that they had at the time the judgment was rendered or entered any defense, and in the face of a record showing that they had none. Equity will not move to an idle accomplishment, nor set aside a judgment just and right under the record, upon a showing such as is here revealed. Brown et al. v. Clippinger, 113 Tex. 364, 256 S. W. 254.”

Being unable to agree with, the contention made by the appellant, the judgment will be affirmed.

PEE 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.