author: HAWKINS, Judge. DATTIMORE, Judge.

text:
    YURASH v. STATE.
    No. 16311.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 21, 1934.
    Horace Soule, of Houston, and W. E. Price, of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Ana-tin, for the State.
   HAWKINS, Judge.

Conviction is for murder; the punishment being ten years in the penitentiary.

Appellant was charged with having hilled Daniel Eko. He and appellant were both sailors on one of the Sinclair oil tankers. On the morning of January 22, 1933, the boat was just leaving its dock and, incident to-some work about the boat, an argument or disagreement arose between appellant and' deceased. No one seems to have attached much importance to the matter save appellant. He had been drinking, and probably due to that fact he exaggerated the incident until he seems to have regarded it as an insult offered him by deceased. About an hour later appellant killed deceased, shooting him with a pistol. The range of the bullet and other facts indicated that the shot was fired while deceased was stooped over a basin washing his clothes. Appellant testified that deceased struck him several times during the previous disagreement, and Chat at the time of the killing deceased made an attack from which appellant apprehended serious injury or death. The evidence from the state com-batted that bf appellant.

The motion for new trial was overruled' on the 24th day of April, 1933, at which time appellant gave notice of appeal. No time in addition to the thirty days allowed by statute (article 760, O. O. P.) was then granted for filing bills of exception. The thirty days expired oh May 24th. The trial term of court adjourned on April 29th. We find in the record no extension order. The five bills of exception found in the transcript were all filed on July 20th, which was fifty-seven days after the expiration of the thirty days allowed by law. Under such circumstances the bills m.ay not be considered. See article 760, O. O. P. (1925). Many cases construing the article in question in consonance with our announcement are collated under note 50 in Vernon’s Annotated Criminal 'Statutes of Texas, C. C. P., vol. 3, and in the Cumulative Annual Pocket Part tq said volume under the same note number. Among the many cases to the same effect are Mann v. State, 102 Tex. Cr. R. 210, 277 S. W. 1085; McCloudé v. State (Tex. Cr. App.) 10 S.W.(2d) 85.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, Judge.

Appellant again insists we should have considered his bills of exception. He attempts to support his contention by an affidavit. The affidavit made and appearing in the record has no reference whatever to bills of exception, but relates solely to a statement of facts. The statement of facts in this case is in the record, and was considered in connection with our original opinion.

Appellant further insists that his special charge No. 3, which was refused, was a correct presentation of the law, and that the refusal thereof was erroneous. Examining the main charge, we find substantially everything which appears in the special charge. Some superfluous words constitute the only difference. The special charge would have told the jury to consider all the facts and circumstances, “both those occurring at or about the time of the homicide or prior thereto,” in determining whether appellant acted on sudden passion. The main charge told the jury, in determining such issue and the condition of appellant’s mind, they should take into consideration all the facts and circumstances in evidence. We think there is no material or legal difference.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: CHRISTIAN, Judge. HAWKINS, Judge.

license: Public Domain

text:
    GLOVER v. STATE.
    No. 16444.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1934.
    State’s Rehearing Denied March 21, 1934.

      E. T. Simmang, Sr., and John S. Simmang, both of Giddings, for appellant.
    Uoyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Walter Luedecke by shooting him with a gun.

Appellant lived on the McWilliams place near the town of Elgin. Mrs. Janie West-brook had charge of the place, as executrix. Appellant rented from her and took care of the cattle belonging to the estate. Under his contract, he retained half of the crops he raised. He had posted the premises and would permit no hunting thereon.

On the afternoon of October 11, 1932, Bill McWilliams, who had an interest in the Mc-Williams estate, and Walter Luedecke were crossing a pasture near appellant’s home. They had with them a bird dog and some guns, their purpose being to do some hunting and train the dog. According to the testimony of McWilliams, Esteen Glover, a son of appellant, commanded them to leave the pasture, saying that no hunting was allowed. McWilliams called his attention to the fact that he was a.part owner of the premises and had some cattle in the pasture. This apparently satisfied Esteen as to the right of Mc-Williams to hunt, but he declared that deceased had no right on the premises. McWilliams stated to him that deceased had come with him and had a right to remain with him. Mc-Williams further testified that Esteen Glover then stated that appellant would make them leave. At this point appellant appeared on the scene, and, upon learning that the parties were hunting, ordered them to leave. Deceas*-ed then attempted to introduce himself ■ to ■appellant, and offered him his hand. Drawing his gun, appellant told deceased not to ■touch him. Deceased then backed away from appellant, and “squatted down on his heels.” An argument ensued between McWilliams and appellant with reference to McWilliams’ right to be on the premises. McWilliams advised appellant that he did not intend to leave. Appellant then ordered deceased to leave the premises, and pointed his gun at him. Deceased replied that he would not leave until McWilliams went with him. Appellant then shot deceased in the head. At the time the shot was fired deceased’s gun was twelve or fourteen feet from him, he being in no manner armed. After the shot was fired McWil-liams exclaimed; “My God, Mr. Glover, you have killed that boy.” Appellant replied: “G- d- him; that is what I intended to do.” The foregoing constitutes a brief statement of the occurrence as detailed by the state’s witness McWilliams.

Appellant did not testify as a witness in his own behalf. His son Esteen gave testimony raising the issue of self-defense. Several witnesses testified that in their opinion appellant had been insane for a number of years. Appellant introduced in evidence the judgment of the county court showing that in 1920 he had been convicted of insanity and placed in an insane asylum. The judgment was in full force and effect at the time of the homicide, and at the time of the present trial.

Witnesses for the state testified that in their opinion appellant was sane.

. On the issue of insanity the court instructed the jury as follows:

“In regard to the issue of insanity presented in this case, you are instructed that the law presumes every person to be sane until the contrary is established. The judgment of the County Court of Brazos County read and evidenced before you conclusively establishes that the defendant was of unsound mind on’ .the 31st day of August, A. D. 1920, and that it was at that time necessary that he should be placed under restraint, but it is not conclu•sive as to liis subsequent condition of mind. .‘The condition of the defendant’s mind at the time the hilling occurred, if you believe he ■killed the deceased, is the matter to be determined under the plea of insanity, and is to ibe determined from all of the evidence bearing upon the question. If you believe from the evidence that the defendant was not restored to reason and that subsequent to the date of said judgment and to his release and discharge from the asylum, the defendant was afflicted with a character of insanity habitual in nature, to that degree that he would not know what he was doing 'in the commission of the act charged, or if he did know what he was doing, then that he did not have sufficient reason to comprehend its character and consequences and to know that it was wrong to do the act, then it devolves upon the State to prove beyond a reasonable doubt that the killing of Walter Luedecke by the defendant, if you believe that he killed him, occurred at a time when defendant was in a condition of mind called a lucid interval, that is that afi the time the defendant killed the deceased his mind was in a condition that he knew what he was doing and that he knew the act was wrong and that he had sufficient will power -to control his action; and if the evidence satisfies you that the defendant has, since the date of said judgment, been afflicted with that character of habitual insanity mentioned above, to the degree above defined; and if the evidence does not satisfy .you' beyond a reasonable doubt that at the time of the killing of the defendant he was in a condition of mind to know what he was doing, and that the act was wrong and that he had sufficient will power to enable him to refrain from such act, you-will find him ‘Not Guilty.’
“If, however you do not believe from the evidence that defendant had been afflicted with that character and degree of insanity above defined and described, and if you should .believe from the evidence that the defendant :has, since the date of the judgment read before you, been afflicted with recurrent, — that is, that he was at times sane, and at other ■.times insane, — then i,t devolves upon defendant to prove by a preponderance of the evidence, to your satisfaction, that, at the time he killed the deceased (if he killed him) he was laboring under such defect of reason from disease of the mind that he did not know what he was doing, or, if he did know, that he did ¡not know the difference between right and -wrong- of the particular act, and that he did ¡not comprehend the character and quality of such act; and, if it has not been so proved, the defense of insanity cannot avail the defendant if you believe he is otherwise guilty as charged.’’

Appellant timely and properly excepted to the foregoing charge on the ground that it placed the burden of proving insanity upon him, and failed to place the burden upon the state to prove that he was sane when he fired the fatal shot. The principles controlling are set forth by Judge Lattimore in the opinion on motion for rehearing in Davidson v. State, 109 Tex. Cr. R. 251, 4 S.W(2d) 74, 77. We quote from the opinion as follows:

“It seems well established by the authorities of this state, las to not admit of controversy, that, when at some time prior to the commission of the offense the accused has been adjudged insane by a court of competent jurisdiction, which ’is not shown to have been set aside or legally vacated in any way, this shifts the burden of proof from the defendant to the state in regard to insanity. Under all the authorities when one charged with crime seeks to defend upon the ground of irresponsibility by reason of insanity, the final test is whether or not the accused was so mentally deranged at the time of the commission of the alleged offense as not to know the right from the wrong in the particular transaction, and that it is a thing he ought not to do. While this is true, it seems also universally recognized that, because of the presumption of sanity in ordinary cases, the burden of supporting a plea of insanity by one who interposes it, in such ordinary case, is put upon the accused, and he must show by a preponderance of evidence that he was insane at the time — but this burden shifts in case there has been an unvacated adjudication of insanity against him prior to the time of the alleged commission of such offense, and in such case the court should tell the jury that the state must prove beyond a reasonable doubt that, at the time of the commission of the offense, the accused was sane, etc. The shifting of this burden of proof may be a matter of value to the accused, and he is entitled to whatever benefit may arise by reason thereof.”

See, also, Young v. State, 120 Tex. Cr. R. 489, 46 S.W.(2d) 991; Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180.

We think appellant’s exception was ^vell taken. The burden of proof was improperly placed upon appellant in advising the jury that, if they did not believe appellant had been afflicted with insanity of a permanent nature, but did believe that at times he was sane, then it devolved upon him to prove by a preponderance of the evidence that at the time he hilled deceased he was laboring under suc-h defect of reason from disease of the mind that he'did not know what he was doing, etc. The instruction last mentioned contradicts the first part of the court’s charge in which the burden of proof w<as placed on the. state, and shifts such burden to the defendant under the conditions stated in the charge, notwithstanding the fact that the judgment of lunacy had in no wise been vacated or annulled and was in full force and effect at the time of the trial. Under the decisions, the judgment of lunacy being in effect, the burden rested upon the state to show beyond a reasonable doubt that appellant was sane at the time he committed the offense. It appears that the charge was taken from that set forth and approved in Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206. Most of the charge set forth in Hunt’s Case has been approved in the subsequent opinions of this court. However, it appears that part of the charge in question cannot be upheld. To this extent the opinions in Davidson v. State, supra, and Young v. State, supra, have modified the holding in Hunt’s Case.

Bill of exception No. 1 presents the following occurrence: Appellant introduced the judgment of lunacy obtained against him in the county court of Brazos county in 1920. This action was followed by introducing witnesses who testified that in their opinion appellant had been insane since 1920. Appellant’s wife testified that she had secured a furlough for appellant shortly after he was incarcerated in the insane asylum, and that the physician in charge had advised her to watch appellant closely, as he might become dangerous. She said that appellant had not been back for examination by the physicians at the asylum, and further, that he had at no time regained his sanity. After this testimony had been introduced by appellant, the state brought to the stand an employee of the asylum in which appellant had been restrained. He exhibited several pieces of loose paper he had found in an envelope among the records of the asylum. Some one had written on one of these sheets the statement that appellant had been “discharged as restored on August 24, 1921.” The witness did not know who had made the entry, as he was not employed at the hospital at the time it was made. We think appellant’s objection to this testimony should have been sustained. That it was prejudicial is obvious. It met the testimony of appellant’s witnesses to the effect that he had at no time been restored to sanity.. Such testimony was obviously hearsay.

Bills of exception 2 and 3 relate- tp appellant’s objection to the testimony of witnesses to the effect that Esteen Glover, in the absence of appellant, had talked to. them at the scene of the homicide some time after its occurrence and discussed the relative positions of the parties and described the transaction. It appears that Esteen, in his testimony-given on the trial, declared that deceased was walking toward appellant in a belligerent manner at the time appellant shot him. It. was upon his testimony that the court predicated the charge on self-defense. In the-statements attributed to Esteen by the state’s-witnesses, it was shown that deceased was sitting down at the time appellant shot him and did not have his gun in his possession. In other words, these statements contradicted the testimony of Esteen on the main trial andl disclosed that deceased was making no attack on appellant. The bills of exception recite that at no time during his examination-, was Esteen Glover asked by the state if he-made these conflicting statements to the parties. It clearly is shown in the bills that no predicate of any character was laid. The frills-present error. It is the rule that before » party is entitled to impeach a witness by proof of contradictory statements a predicate must be laid calling the attention of the witness to the time, place, and person to whom it is claimed the contradictory statements were made. Branch’s Annotated Penal Code, § 179 p Jordan v. State, 10 Tex. 479; Martinez v. State (Tex. Cr. App.) 53 S. W. 634.

Bill of exception No. 9’relates to>apj-pellant’s objection to the testimony of witnesses to the effect that some time prior, tmthe homicide appellant had cursed' and: abused them and ordered them off of his'place. The testimony of these witnesses related to a separate and distinct transaction-.. The proof on the part of the state was direct. A different conclusion might be reached if the case had-been one upon circumstantial evidence. W» are unable to perceive what light the testimony shed upon the issues involved, in the present trial. It is the general rule that it is error to prove that the accused has had a difficulty with a third party when such difficulty is a> separate and distinct matter not connected with the issue to be tried. Branch’s Annotated Penal Code, § 166; Haney v. State, 57 Tex. Cr. R. 153, 122 S. W. 34; Dimry v. State 41 Tex. Cr. R. 272, 53 S. W. 853.

The judgment is reversed and. the cause- remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

HAWKINS, Judge.

There can be no doubt that some language contained in the charge on insanity found set out in Hunt v. State, 33 Tex. Cr. R. 262, 26 S. W. 206, has resulted in some confusion. In the case of Morse v. State, 68 Tex. Cr. R. 351, 152 S. W. 927, 928, Judge Davidson very clearly sets out the three controlling rules and states pertinently the effect of a prior judgment of insanity. We quote from his opinion as follows:

■ “Another question is presented of serious import, to wit: The court (failed to charge on permanent or continuing insanity. In other words, the court charged the burden of proof was upon the defendant as if the question of insanity had not been shown by previous judgment of a court. There is objection to the charge and insistence that the courc should have charged the jury in accordance with the fact that, where insanity is shown to exist and is of a permanent nature, the court should charge that the burden of proof is on the state, and not on the defendant. Three rules seem to be fairly well stated in this connection: It is the presumption of law that, all men are sane, and the burden to prove insanity is upon the party alleging it. That is the first rule. The second is: Insanity admitted or once proved to exist is presumed to continue. Third. If a recovery or a lucid interval is alleged to have occurred, the burden to prove such allegation is on the party making it. The presumption arises in cases where the insanity is continuing and permanent in its nature, or where the cause of the disorder is continuing and permanent. It is unnecessary to. cite authorities to support these rules. In Texas the rale is that, where insanity has been once shown to exist as by judgment of the court, the presumption is that i/nsanity contvrmes, and the burden of proof is upon the state to show otherwise, and the jury must be so informed. Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206; Wooten v. State, 51 Tex. Cr. R. 428, 102 S. W. 416; Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926; Sims v. State, 50 Tex. Cr. R. 563, 99 S. W. 555; Elston v. Jasper, 45 Tex. 409.”

The italics are Ours. It will be observed that the Hunt Case, supra, is cited as supporting the principles announced in the Morse Case, the contradictory language in the former ease apparently not having been observed at the time. ,

We regard the foregoing quotation to be a correct statement of the law. The cases cited in our original opinion are in line therewith.

The motion for rehearing is overruled.


author: HAWKINS, Judge. LATTIMORE, Judge.

text:
    CAIN v. STATE.
    No. 16223.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1934.
    Rehearing Denied March 21, 1934.

      Ghent Sanderford, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for transporting intoxicating liquor; the punishment being two years in the penitentiary.

Pour officers, Starr, Curtsinger, Sheppard, and Holbrook, in a car, were following appellant’s car in which were appellant and Hawk. The officers stopped appellant, and Starr and Sheppard got out of their car. Starr told appellant they wanted to search his car, to which appellant replied “All right,” but just as Starr was in the act of opening the door appellant started his car suddenly, knocking Starr and Sheppard down. The other two officers followed appellant’s car and saw Hawk throw three pint bottles out. They could see that the bottles had some sort of liquid in them. The bottles broke on the pavement. The officers came back shortly and examined the broken bottles and found they bore the odor of whisky. After Hawk threw the bottles out, the officers continued the pursuit of appellant’s car, and, when it was finally overtaken again, the officers found in a sack a jar and a number of bottles, in all of which there was a very small quantity of whisky, a few drops, but enough to taste and tell what it was. Hawk was eighteen years old. His testimony, in substance, was that he got in the car with appellant, who drove to the negro part of town, got out of the car, and went into a house with something in a paper sack; that, while appellant was in the house, witness took a drink of whisky from a bottle which was on the car seat. Witness said he d'id not put it there and had no whisky with him when he got in' the car. He details as follows what happened after appellant drove away from the officers: “I threw three pint bottles out after we turned off onto that paved street. I don’t know if they had anything in them or not, I think they did. I tried to throw them against the pavement. Those bottles came out of the car and I think maybe he handed them to me. He had them on or about his person. He had them under his belt and handed them to me. I think hé handed me one of them and then maybe I got the other one. The reason I threw the bottles out I didn’t know what he was running for; he told me to throw them out.”

Appellant’s witnesses testified that, when Hawk got in the car, he had some bottles of whisky in his shirt, and that, while appellant was in the house in “negro town,” Hawk exhibited some whisky and offered to sell it. Appellant denied having any whisky in the car when Hawk entered it, and denied any knowledge that Hawk had any, if he did. He explained that he was selling a fly spray and that he had bought the bottles found in the car to put fly spray in.

Bills of exception 1, 2, 3, and 4 complain of the proof made by the officers that, when, they stopped appellant, telling him they wanted to search his car, he drove away, the objection being that they had no search warrant, and that the attempted search was illegal. All of the bills are qualified with the statement that Officer Starr testified -that he had information from a reliable source that appellant “then had whisky in his car,” giving the name of the party from whom he had received the information. The qualification shows that the officers were acting with probable cause in their effort to search the car. Landa v. Obert, 45 Tex. 539; McPherson v. State, 111 Tex. Cr. R. 558, 15 S.W.(2d) 633; Weaver v. State (Tex. Cr. App.) 59 S.W.(2d) 396, and authorities therein cited.

In view of the instructions given by the court, the complaint brought forward in bill of exception No. 5 to the refusal of a special charge presents no error.

By bill of exception No. 6, appellant complains «because the court did not instruct the jury on the law of circumstantial evidence. No such instruction was called for. Hawk’s testimony took the case out of the circumstantial evidence class.

Brom bill of exception No. 7 it appears that appellant sought to have the jury instructed that, if Hawk got in appellant’s car with whisky, and that appellant did not own or have any interest in it, he would not be guilty of transporting - liquor, although he drove Hawk over the streets of Denton. This is not the law, and the charge was properly refused. Dunlap v. State, 100 Tex. Cr. R. 649, 274 S. W. 564. The court properly and sufficiently told the jury in his main charge that appellant could not be convicted unless he knowingly transported intoxicating liquor, and that, if they found beyond a reasonable doubt there was intoxicating liquor in the car, still they could not convict, unless they also found beyond a reasonable doubt that appellant knew he was transporting it.

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

Op Motion for Rehearing.

LATTIMORE, Judge.

Appellant insists that the case is one of circumstantial evidence, and that the court erred in refusing to give his special charge. Witness Hawk .swore positively that he and appellant were driving in a car on a public highway. This was traveling. He swore that he found out presently, during the time they were so driving, appellant had at least three bottles of what the officers said was whisky upon his person in said car. This was transportation. Whisky is a'known intoxicant, of which fact we take judicial cognizance. This made by positive testimony a complete case of transportation of intoxicating liquor.

The motion for rehearing is overruled.


author: HAWKINS, Judge.

text:
    LOVE v. STATE.
    No. 16233.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 14, 1934.

      A. P. Oaywood and Joe P. Cox, both of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for transporting intoxicating liquor; punishment being two years in the penitentiary.

Acting under authority of a search warrant, officers were watching the house and premises of Eoscoe Poster where appellant had a room. The officers remained on watch from 11:30 at night until about 6 o’clock the next morning, at which time a car was driven up to the house. When first seen, the ear was coming towards the house, but was then being operated on the public streets of the city of Sherman. The officers ran to the car out of which appellant and Foster were getting.* Appellant was seen to have something under his coat. He ran from the officers and threw two one-half gallons of whisky over the fence. The sheriff recovered the whisky at the point where he saw appellant throw it. The foregoing facts were testified to by the officers. Appellant denied that they had any whisky in the car or that he threw any over the fence.

Bill of exception No. 1 presents the following: The second paragraph of appellant’s amended motion for new trial was predicated on the claim that he was deprived of counsel of his own choosing, and that he was not given an opportunity to confer with counsel appointed by the court to represent him. We learn from the evidence presented upon the hearing of the motion and from the qualification placed upon the bill by the learned, trial judge the following facts: Appellant and Eoscoe Foster were each indicted for transporting the liquor. They had retained as their attorney one Lapham, who agreed to represent both of them for a stipulated fee. Appellant had paid only a small amount on his part. The case was set for trial for May 8th. The sherifl! testified that appellant came into the sheriff's office several days before May 8th and that he told appellant his case was set for trial on that date. Appellant denied this. On the date mentioned, when appellant’s case was called for trial, he failed to appear. His attorney was present in court. He knew of the setting of the case, and advised the court that he had mad© an effort to find appellant and inform him when the case was set, but had been unable to locate him. Upon request, counsel was permitted to withdraw from the case. Appellant’s bond was forfeited. On May 9th Jhe came into the courthouse and was taken into custody. At his request the court passed his case until May 10th, at which time the court appointed an attorney to represent appellant. The attorney so appointed was a lawyer of experience who had for eight years been an assistant prosecuting attorney. He was given time to confer with appellant both before the beginning of the trial and during the trial. He made no request for a further delay, but announced ready.- Every witness requested by appellant was produced in court save one character witness. The court certifies that the attorney appointed ably defended appellant. We discover no merit whatever in the complaint presented in bill of exception No. 1.

Appellant based his motion for new trial in part on claimed newly discovered evidence. Bill of exception No. 2 brings forward for review the court’s action in overruling the motion. It was averred in the motion that appellant could show by Eoscoe Foster and his wife, Mrs. Cora Foster,' that appellant boarded and roomed at their house and had authority to use and occupy the premises. Appellant undertakes to support such claim by the affidavit of Eoscoe Foster and his wife. This was in no sense newly discovered evidence. Eoscoe Foster was under indictment for the same offense as was appellant, and the motion for new trial could not be supported by his ¿ffidavit. If appellant’s claim be true, he of course knew of the facts set up in his motion for new trial in the respect mentioned, and no effort was made to secure Mrs. Foster as a witness. Appellant’s claim that his failure to advise his attorney appointed by the court of the facts was because the attorney retained by him had withdrawn from the case, and that appellant Had not been allowed sufficient time to explain the facts of his case to the attorney so appointed is not borne out by the evidence. The learned trial judge qualifies the bill by stating that the claimed newly discovered evidence would have been no defense to the charge of transporting intoxicating liquor. Under the facts, the qualification states a correct proposition of law.

Bill of exception No. 3 sets but certain paragraphs of appellant’s motion for new trial complaining that certain testimony was admitted on. the trial. The bill then recites that the court overruled the motion for new trial, to which ruling appellant excepted. It does not appear from the bill that any objection was interposed at the time of the admission of the evidence complained of, and the learned trial judge qualifies the bill by stating that no such objection was made, and that no motion was made to exclude the testimony after it was admitted. The bill reflects an effort to have this court review the trial court’s action in overruling a motion for new trial predicated in part on the admission of' evidence not objected to at the time it was admitted, but complaint of which was for the first time urged in the motion for new trial.

Bills of exception 4 and 5 are in the same condition as bill No. 3. The situation presented is precisely like that found in Mier v. State, 120 Tex. Cr. R. 397, 49 S.W.(2d) 757, in which it was expressly held that such a bill brings nothing forward for review.

It is observed that in pronouncing sentence there was a failure to give application of the Indeterminate Sentence Law (article 775, C. C. P. as amended by Acts 1931, e. 207, § 1 [Vernon’s Ann. C. C. P. art. 775]). The sentence is reformed and appellant ordered to be confined in the penitentiary for not less than one nor more than two years.

As thus reformed, the judgment is affirmed.


author: CHRISTIAN, Judge. LATTIMORE, Judge.

text:
    STEEN v. STATE.
    No. 16231.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1934.
    State’s Rehearing Denied March 21, 1934.
    Lamar Bethea, of Bryan, for appellant.
    Oak McKenzie, Co. Atty., Henderson & Hoyle, Sp. Pros. Atty., and Barron & Ware, all of Bryan, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for three years.

This appeal and Jesse Steen v. State, 67 S.W.(2d) 874, this day delivered, are companion cases.

Appellant, who is a negro, had gone to his home in an automobile with his brother Jesse for the purpose ’of removing his personal effects. A quarrel ensued between appellant and his wife, which resulted in Horace Reed, the constable of the precinct, being called to the house. Stafford Reed, the injured party, accompanied his brother, the constable, to the scence of the difficulty. When they arrived Jesse Steen was sitting in an automobile near the porch and appellant was carrying his personal effects to the car. Stafford Reed, the injured party, entered the house ■while the constable remained in the yard. According to the testimony of the latter, he commanded appellant to quit quarreling with his wife and leave the place. At this juncture, we quote from the testimony of the witness as follows: “And then he (appellant) started to talking back to me and he went outside and one word brought on another. I asked him ‘Can’t you say yes sir to a white man’ and he said Something else. He had a crank in his hand and started to the front end of the car and said something else to me, and I says ‘What was it you said,’ and he turned around with the crank and said T said yeah’ and had the crank in his hand and drawn back and I hit him with my pistol and then he called for his brother. Then his brother (Jesse), got out k>f the car and I heard a lick — you see Sylvester (appellant) had done clinched me then and I had my back toward the car, and X heard a lick about) that time, and then when he called his brother I just wheeled Sylvester around and saw Stafford fall.”

The witness further testified that his pistol flew out of his hand as he hit appellant and dropped on the porch; that he finally disengaged himself from appellant and secured the pistol; that appellant grasped him around the waist from behind and called to Jesse to come to his aid; that responding, Jesse wrenched the gun from his hand; that placing the gun in his belt, Jesse walked away, accompanied by appellant; that he asked the parties to let him back his car out of the way before they left, which they did; that appellant and Jesse then drove away in the car with his pistol; that he pursued them, and, upon overtaking them, deliberately ran into their ear and wrecked it; that they got out of the car and ran away. The injured party testified that while in the house he heard some one call for help, and that he! stepped out on the porch to see what the trouble was. He said that he found appellant and the constable engaged in a scuffle, and that as he approached them Jesse Steeni struck him across the body with a Winchester, knocking him to the ground; and that as he tried to get up, Jesse struck him on the head with the gun, rendering him unconscious. The testimony on the part of the state was to the effect that tlie “outer table” of the skull was fractured, and that the wound resulted in the Confinement of the injured party in a hospital for several days. Moreover, there was testimony to the effect that the gun in the manner in which it was used was capable of producing death.

Testifying in his own behalf, appellant declared that the constable made an unprovoked attack upon him with his pistol, striking him on the head two or three times. He said that while he and the constable were fighting, Stafford Reed, the injured party, struck-him over the constable’s shoulder with some character of instrument, and that he struck the injured party with an automobile crank. He testified that after this occurrence he called to his brother Jesse, who was sitting in the automobile, to come to his aid, and that, in response to his call, Jesse helped him disarm the constable. He denied that Jesse struck the injured party with a Winchester and declared that he alone hit him with the automobile crank for the purpose of protecting himself and with no intention of killing him. His testimony was to the further effect that after he and his brother had disarmed the constable they left the scene of the difficulty and were pursued and run down by him in his automobile.

We think appellant’s contention that the evidence is not sufficient to support the conviction should be sustained. Appellant had ample opportunity to shoot the injured party and his brother after he had secured the pistol, but made no attempt to shoot either of them. The state’s testimony fails to show' that appellant was engaged in any character of difficulty with the injured party, and unmistakably demonstrates that Jesse Steen assaulted him upon an independent impulse. There was no proof that appellant, in any manner, encouraged Jesse Steen to assault the injured party, nor that the assault was made by Jesse Steen in pursuance of an agreement with appellant. Under the circumstances, if Jesse had the intent to kill the injured party, such intent was not imputable to appellant. Ordinarily the accused is to be judged by his own intent and not by the intent of another in a difficulty, unless he adopts and ratifies the intent of such other by aiding him by acts or encouraging him by words or gestures. Branch’s Annotated Penal Code, § 691; Bibby v. State (Tex. Cr. App.) 65 S. W. 193, 195.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

The state files an earnest motion for rehearing, in the light of which we have again reviewed the facts.

The case was reversed because we were unable to find testimony supporting the proposition that, if Jesse Steen acted with malice aforethought in making an assault upon Stafford Reed, there was any concert of action or agreement, or acting together in such assault, on the part of this appellant with his brother Jesse. It must not be lost sight of, in trying to understand the testimony, that this whole difficulty took place at night, and it not moonlit. The record discloses that there was an examining trial of this appellant, and that Horace Reed testified at same, and when the facts were fresh in his mind, that he hit appellant on the head with his pistol because appellant said “Yeah” to him, and turned with an automobile- crank in his hand. Horace said he had told appellant to go on away from his wife’s house, and appellant started toward the front of his car with said crank in his hand. We quote from the examining trial testimony: “I said something to him, and he said ‘yeah.’ He had the crank, an auto crank. It was in his hand. I asked him if he could say yes sir to a white man, and he mumbled something I could not understand. I asked him what he said and he said ‘yeah, that is what I said,’ and started turning. And then .started turning towards me. About four feet from me. The crank was still in his hand. Then I hit him with my gun, and tried to hit him on the head. I could not say if I hit him or not. I tried to hit as he was turning around towards me with that crank. My gun flew out of my hand, someway. I did not know how. He came right on into me and clinched.”

No witness for the state testified that after Horace hit appellant on the head with his pistol appellant did more than to clinch him with both hands and try to hold him. Horace was evidently trying to get his pistol which he said flew out of his hands and on- to the porch when he hit appellant with it. Relative to what appellant was trying to do at this juncture, Horace testified: “He was trying to keep me from getting loose from him. * * * He had both hands around me. * * * I got hold of the pistol first on the gallery and picked it up. * * * Jesse did not interfere with mine and Sylvester’s tussle until' Sylvester called him the second time,' and-that was after me and Sylvester had scuffled off the end of the gallery onto the ground. * * * When Sylvester called his brother, the second time he came over and helped him.. When Jesse came to help his brother, the two of them taken the pistol away from me. No, they did not strike me a blow. * * * They just went back to their car and left there.”

Evidently during this struggle between Horace and appellant in the darkness was when Jesse got out of the car, after being twice called to for help by appellant, and, as Stafford came toward the struggling pair, Jesse then, as the state claims, struck Stafford with the rifle. If appellant was then struggling to kqep Horace from getting the pistol, as the evidence cogently suggests, and Horace had gotten it, a necessary inference from the fact that the pistol had been thrown on the porch when Horace struck appellant on the head, and they had struggled off the porch, and Horace still had the pistol, it would appear perfectly reasonable' that appellant’s appeal to his brother for help would have for its purpose self-protection, and to take the pistol away from Horace, which in fact was done by the two of them. Jesse Steen struck Stafford with' the rifle and came on to help his brother, as appellant asked him to.

We have sifted the evidence trying to find something to furnish support to the theory that, in calling to his brother to come and help him, under the circumstances, appellant intended that his brother should strike Stafford Reed with the rifle, or intended thereby to make himself a principal in an attack ,whose necessity, if at all, arose immediately, !and was not the result of any prearrangement or understanding, or concerted action between appellant and his brother. We have been un[able to find such testimony.

We are constrained to overrule the state’s motion, and it is so ordered.


author: COMBS, Justice.

text:
    PARKER v. FERGUSON.
    No. 2521.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1934.
    Rehearing Denied March 21, 1934.
    Edgar H. Phelps, of Houston, for plaintiff in error.
    A. T. Carleton, of Houston, for defendant in error.
   COMBS, Justice.

This suit was brought by appellee, as plaintiff, against appellant and John McKnight, as defendants, on a stated account for $115.02 for meats and meat products sold and delivered to the Port City Market in Houston, Tex.; it being alleged that the defendants owned and operated said Port City Market as partners. Appellant filed a general demurrer, general denial, and a sworn plea denying that he was a partner in the Port City Market. A trial to the court resulted in a judgment in favor of appellee and against appellant and his codefendant, John McKnight, for the amount of the account sued on. McKnight has not appealed.

Appellant first complains that the trial court should have sustained his general demurrer because the account sued on was not sworn to. This contention is overruled. Ap-pellee did not predicate his suit upon an open account. The pleadings alleged a stated account for the merchandise furnished at agreed prices.

The defendant McKnight who was in charge of the market testified to making the purchases and admitted the correctness of the account. The trial court was correct in overruling the demurrer and in entering the judgment on the account. Peurifoy et al. v. Hood Rubber Products Co. (Tex. Civ. App.) 59 S.W.(2d) 428; Scofield v. Lilienthal (Tex. Civ. App.) 268 S. W. 1047.

Nor is there any merit in appellant’s contention that the evidence does not establish that he was a partner in the business. True, appellant testified that $1,000 advanced by him to McKnight for carrying on the business was a mere loan. But other evidence, including the testimony of McKnight, was ample to support the finding that appellant advanced the money to. McKnight against the latter’s time and labor in conducting the business under an agreement to share equally in the profits. The court did not err in entering judgment against appellant on the ground that he was a partner in the business.

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


author: PEDPHREY, Chief Justice.

text:
    SPEED et al. v. CHAS. LYON CO. et al.
    No. 2959.
    Court of Civil Appeals of Texas. El Paso.
    March 1, 1934.

      Whitaker & Peticolas, of El Paso, for appellants.
    McBroom & Clayton, of El Paso, for appel-lees.
   PEDPHREY, Chief Justice.

This suit was filed in the El Paso county court at law by appellee, a partnership, against J. M. Speed, R. E. Stockard, and Abe Ignater, seeking to recover the sum of $202.11, the alleged value of goods, wares, and merchandise sold to appellees. Speed and Stockard filed the following pleading:

“Now come J. M. Speed and R. E. Stoek-ard, Defendants in the above entitled and' numbered cause, having heretofore been served with citation to appear and file this, their plea of privilege, severally, showing to the Court as grounds therefor, the following:
“I. The defendants, J. M. Speed and R. F. Stockard, the parties claiming such privilege, were not at the time of the institution of this suit, nor at the time of service of process thereon, nor at the time of filing this plea, residents of El Paso County, Texas, the County in which this suit is instituted and is now .pending.
“II. The County of the residence of these Defendants at the time of the institution of this suit, at the time of the service of process thereon, at the time of these pleadings, as well as at the time of filing same, is Midland County, Texas.
“III. That no exception to the exclusive venue in the County of one’s residence, as provided by Articles 1995 or 2390, Revised Statutes of 1925, or any other law, exists in said cause.
“IV. Wherefore, premises considered, Defendants, J. M. Speed and R. E. Stockard, pray this Court to sustain their pleas of privilege, and transfer this cause to Midland County, Texas.
“J. M. Speed
“Roy Stockard.
“The State of Texas, County of Midland
“Before me, the undersigned authority, on this day personally appeared J. M. Speed and R. F. Stockard,. each of whom being by me first duly sworn, deposes and says: He is fully cognizant of the facts and statements heretofore set out, and every fact contained therein is true and correct. J. M. Caldwell, Notary Public, Midland Co., Tex.
“Sworn to and subscribed before me on this the 25th day of April, A. D. 1933. J. M. Caldwell, Notary Public, Midland County, Texas.”

The above pleading was filed on April 26, 1933, and on May 5, 1933, appellee filed its motion to strike same from the records on the ground that it was not verified, as required by law, and for a default judgment against the three defendants.

On May 6th the trial court sustained the motion to strike and rendered default judgment against Speed and Stockard, jointly and severally, for $202.11; appellees having theretofore dismissed as to Ignater.

Appellants filed, on May 18th, their motion to set aside the judgment striking their plea of privilege and the default judgment against them. This motion contained a prayer that they be permitted tp file an amended plea of privilege.

The trial court on June 7, 1933, set aside the judgment by default, but overruled the motion to set aside its judgment striking the plea of privilege.

To this action appellants excepted and have appealed therefrom.

Opinion.

Appellants’ two propositions are:

“Where the defendants signed the Plea of Privilege at the bottom thereof, the signatures being pre-fixed to the affidavit which is followed by the jurat of the officer certifying that it was subscribed and sworn to by them, the affidavit is in substantial compliance with the law.”
“Where the Defendants tendered an Amended Plea of Privilege duly sworn to, correcting the defect, if any, in the original Plea of Privilege, it was error for the court to refuse to consider it.”

It will be seen that the primary question to be decided is as to the sufficiency of the plea of privilege. Article 2019, Revised Statutes, provides that an answer setting up that a suit is not commenced in the proper county shall be verified by affidavit.

Article 2007, reads: “A plea of privilege to be sued in the county of one’s residence shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that ‘no exception to exclusive-venue in the county of one’s residence provided by law exists in said cause.’ * * *

Prom the above it will be seen that the plea here filed was not entitled to consideration as a plea of privilege unless the facts set forth therein were verified by affidavit.

To “verify” a pleading by affidavit means, as said in 49 O. J. § 824, p. 583: “A verification as here used is a statement under oath that the pleading is true. Ordinarily it forms no part of the pleading, but is a separate and distinct proceeding taken for the purpose of verifying the truth of the ’Statements made in the pleading.”

Judge Townes, in his work on Texas Pleading, said, at page 298: “To verify a pleading is to state, in writing, signed by the affiant and under the sanction of an oath taken before some competent officer, that the matters of fact in the pleadings are true. This statement is usually attached to the pleading and must, in all cases, clearly identify it or such portions of it as the affidavit applies to. The verification may extend to the consents of the whole instrument or only portions and, in each instance, it should clearly indicate what part of the pleading, whether all or less, is sworn to.”

Subdivision 18 of article 23, Revised Statutes, reads: “ ‘Affidavit’ means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office.”

The statute makes the signature of the af-fiant an essential part of affidavits. Anderson v. Cochran, 93 Tex. 583, 57 S. W. 29.

The Texas case nearest in point to the case at bar is that of Magee v. Palm (Tex. Civ. App.) 233 S. W. 321, in which Chief Justice Fly, speaking for the San Antonio Court, held that a pleading in which the signature of the party was prefixed to the affidavit, instead of following it, was a sufficient verification.

See, also, Chancey v. Allison, 48 Tex. Civ. App. 441, 107 S. W. 605; Smith v. Benton, 15 Mo. 372.

We think it clear that-the plea was signed by Speed and Stockard in connection with the verification thereof, and that their failure to sign following, the affidavit was inadvertent, and should not vitiate their plea. There was no purpose to be served in their signing the pleading except to swear to the facts therein contained. The jurat of the notary together with the certificate contained in the affidavit show that the parties subscribed and swore to the facts.

The right to be sued in the county of one’s residence is a valuable one and should not be taken away by virtue of technicalities.

We, therefore, have reached the conclusion that the trial court erred in striking out the plea of privilege, and that the judgment must be reversed and the cause remanded to be tried on the issues raised by the controvert-, ing affidavit.

Reversed and remanded.


author: ALEXANDER, Justice.

text:
    GRAND LODGE COLORED KNIGHTS OF PYTHIAS OF TEXAS v. GREEN.
    No. 1472.
    Court of Civil Appeals of Texas. Waco.
    Feb. 22, 1934.
    Rehearing Denied March 15, 1934.

      Allan McDonnell, • of Waco, for appellant.
    ' Henderson & Hoyle, of Bryan, for appellee.
   ALEXANDER, Justice.

This suit was brought by Ollie Green against Grand Lodge Colored Knights of Pythias of Texas, a fraternal benefit society, to recover on a life insurance' certificate in the sum of $500 issued by the defendant on the life of plaintiff’s husband, John Green, and payable to plaintiff as beneficiary. The defendant contended that the policy - had lapsed and had been forfeited for failure to pay quarterly dues or premiums. Plaintiff, by supplemental petition, alleged that the company had waived such forfeiture,- if any. The cause was tried before the court without a jury, and resulted in a judgment for the plaintiff. The defendant appealed.

The by-laws of the fraternity, which, by the terms of the policy, were made a part thereof, provided that the premiums or dues should become due and payable quarterly on the 1st day of January, April, July, and October of each year, and that, if a member failed to pay such premium on or before the 1st day of -February, May, August, and November of each year, he should ipso facto stand suspended, and that, if death occurred during such quarter while the insured was so suspended, the insurer would not be liable on said certificate of insurance. It' was further provided that any member who had permitted himself to become suspended might place himself in good standing and revive his certificate of insurance at any time between the first and last day of the first month in the next succeeding quarter, by paying all delinquent premiums, together with the current premiums for the ensuing quarter. It appears that the policy was issued1 in June, 1919, and that the insured paid all premiums up to and including that due October 1, '1931, but that he failed to pay the quarterly premium of $3.35 due January 1, 1932. In the early part of March, 1932, his wife undertook to pay said premiums, but was informed that the same could not be paid until the first month of the next succeeding quarter, which would have been April, 1932. In the meantime, the insured took sick and died on March 19, 1932. On April 14, 1932, Ollie Green, the beneficiary, employed counsel and had them prepare and file proof of death. Such proof, however, was not on forms provided by the fraternity. Upon the filing of such proofs, the grand keeper of records and seals wrote said attorneys as follows :

“I have your letter of April 15th in which you inclose a death certificate of John Green,, who was a member of Lodge No. 48 located at Bryan, Texas.
“I am not satisfied as to why a proof of this kind, should be made to this office when, the lodge at Bryan understands thoroughly how proof of death is to be made. The undertaker, Edd 'Scott, also has had a number of funerals handled through the lodge of Bryan, and they all understand that this office furnished blank proof of death on which such: proof should be made when they have a deceased member.
“If the lodge refused to make a proof of death for John Green, upon request, they should have done so anyway. I find that John Green at the time of his death was not financial with this Department and therefore his beneficiary would not be entitled to-any benefits by reason of his 'death. Possibly this is the reason the lodge made no-request for a death proof blank on which to report his death to this Department. However, they should not have refused to report, the death and I am therefore sending you1 herewith inclosed a blank proof of death, which when properly executed and filed with this office will have due consideration of the Endowment Board and their decision with, respect to the proof as filed.”

Upon receipt of such letter the beneficiary-prepared and filed with the fraternity new-proof of death on the forms furnished by the-lodge. Presumably the trial court concluded that the lodge, by demanding of and receiving, from the beneficiary new proof of death after full knowledge of the forfeiture of the policy,, thereby waived such forfeiture.

A forfeiture may be waived by an insurance company, and following the general rule that the law abhors a forfeiture, it is said that the courts will seize upon even slight circumstances indicative of an intention on the part of the company to effect such a waiver. Where an agent with authority to-bind the company, and with full knowledge of the facts, does some unequivocal act showing an intention to treat the policy a.s valid and binding after the date on which, under its terms, it would become forfeited, s'uch conduct will be treated as a waiver of the forfeiture provision. Equitable Life Assurance Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625; Dunken v. Ætna Life Ins. Co. (Tex. Civ. App.) 221 S. W. 691; Calhoun v. The Maccabees (Tex. Com. App.) 241 S. W. 101; Texas State Mutual Fire Ins. Co. v. Leverette (Tex. Civ. App.) 289 S. W. 1032; Stone v. Brady Mutual Bife Ins. Ass’n (Tex. Civ. App.) 2 S.W.(2d) 538.

In keeping.with the principle above announced, it has become a very well-established rule that, where the insurer, with full knowledge that the insured or his beneficiary has committed some act which under the terms of the policy would authorize the company to insist upon a forfeiture, requires the furnishing of proofs of death, and thus puts the beneficiary to the trouble and expense of preparing and filing same, it will be presumed, in the absence of circumstances to the contrary, that the insurer, intended to waive the forfeiture, and the company will be estopped to plead same. Vance on Insurance, p. 473; 5 Cooley’s Briefs on Insurance (2d Ed.) 4448; Couch on Insurance, vol. 7, p. 5595, 5597; 24 Tex: Tur. 883, 892, 1114; 37 C. J. 538; 26 C. J. 335; Georgia Home Ins. Co. v. Moriarty (Tex. Civ. App.) 37 S. W. 628 (writ refused); Southern Travelers’ Ass’n v; Masterson (Tex. Civ. App.) 48 S.W.(2d) 771, par. 8; German-American Ins. Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536; Travelers’ Protective Ass’n v. Roth (Tex. Civ. App.) 108 S. W. 1039, 1042; German Ins. Co. v. Gibson, 53 Ark. 494, 14 S. W. 672.

Such rule is based on the idea that- the insurer would not require the beneficiary to do a foolish and unnecessary thing, and. consequently would not require such beneficiary to go to the trouble and expense of preparing and filing.proofs of death if it then intended to insist upon a forfeiture and to reject the claim on account of a prior breach of which it then had full knowledge. The insurer’s conduct in requiring the filing of such proofs, in the absence of circumstances showing a contrary intention, may raise a presumption of an intention to waive the forfeiture. In the case at bar, the insurer’s managing officer, the grand keeper of the records and seals, with full knowledge of the fact that the policy had lapsed on account of the insured’s failure to pay thfe quarterly dues of $3.35, informed the beneficiary, through her attorneys, that proofs of death when made out on forms furnished by him and filed in his office would have the due consideration of the endowment board. This was a direct invitation to the beneficiary to prepare and file new proofs of death. Surely such agent would not have, invited the filing of such proofs if he then intended to reject the claim for reasons then fully known to him. ' It is true that the beneficiary was put to but little trouble and expense in filing such proofs, but it is also true that the insured had paid the premiums on his policy for more than twelve years and was in arrears in the sum-of only $3.35. A waiver' of such a slight breach was not inconsistent with human conduct. We are of the opinion that the evidence was sufficient to support the trial court’s implied finding that the insurer had waived the forfeiture.

The judgment of the trial court is affirmed.


author: HABL, Chief Justice.

text:
    FIRST NAT. BANK OF BROWNFIELD v. MASSACHUSETTS BONDING & INS. CO.
    No. 4168.
    Court of Civil Appeals of Texas. Amarillo.
    March 5, 1934.
    Rehearing Denied March 26, 1934.
    Warehousemen @=>18.
    Boekhart & Brown, of Bubbock, for appellant.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, and A, M. Scott, of Bubbock, for appellee.
   HABL, Chief Justice.

The appellant bank sued the appellee as surety on a statutory .bond of B. B. Halbert, a public warehouseman. Halbert operated a grain elevator at Edmonson, another at Fin-ney, and a third at Hale Center. After his bond had been approved by the county clerk of Hale county and a certificate issued to him authorizing him to conduct business as a public warehouseman, one E. D. Ballard deposited wheat owned by him in the Edmon-son elevator of the net value of $644.48, for which Halbert issued to him two negotiable warehouse receipts as prescribed by the statute. Ballard transferred the elevator receipts to the appellant bank for value. Thereafter Halbert became insolvent, and the bank instituted this suit against the bonding and insurance company to recover the value of the wheat.

The case was submitted to the trial court upon an agreed statement under R. S. art. 2177, resulting in a judgment by the court that plaintiff take nothing.

It is conceded that Halbert’s bond in the sum of $5,000 was, approved and filed in accordance with the provisions of article 5661.

The first seven paragraphs of plaintiff’s petition are, by the agreed case, made a part of the statement, and the facts therein alleged are admitted to be true. The agreed ease further states: “That I* J. Halbert is notoriously insolvent; that the defendant Massachusetts Bonding & Insurance Company has heretofore paid out on claims for which it was liable under the bond declared upon by plaintiff, the full sum of $5,000.00, the amounts paid being amounts adjudged by courts of competent jurisdiction to be the value of wheat covered by various warehouse receipts, exclusive of all costs adjudged against the Massachusetts Bonding & Insurance Company; that the last of said payments was made by interpleaders suit in cause No. 57 in equity in the United States District Court for the Northern District of Texas, Lubbock Division, in which plaintiff’s predecessor in title, E. D. Ballard, was made a party and duly served with citation but did not appear and answer nor was he present at the trial.”

It is further recited that Ballard was not the owner of the warehouse receipts when said suits were filed or tried and had no interest therein, but at all such times the bank was the owner of the receipts, was not a party to any of said suits, and had no knowledge of the filing of said suits or of the rendition of the judgments therein; that the defendant was without knowledge that the warehouse receipts had been transferred by Ballard to the plaintiff bank.

The appellant contends that its rights are governed by R. S. art. 5661, which is as follows: “Any person, firm, corporation, partnership, or association of persons, may become a public warehouseman under the provisions of this chapter by filing with the county clerk of the county in which he is located and proposes to do business, a good and sufficient bond in the sum of five thousand dollars conditioned that he will conduct his business in accordance with the provisions of this chapter. Upon the filing and approval of such bond with the county clerk, it shall be the duty of the county clerk to immediately certify such fact to the Commissioner of Markets and Warehouses. Any one injured by the violation of the terms of the bond, and the provisions of this chapter may recover damages to the extent of said bond. Should said bond become impaired by recovery, or otherwise, said Commissioner may require such public warehouseman to file an additional bond, but in no event shall such additional bond be for a greater-amount than five thousand dollars. The bond required hereunder shall be good for the term of one year from the date of filing and the right to continue as a public warehouseman shall be conditioned upon the renewal of said bond from year to year, according to the terms of this chapter. The form of the bond required hereunder shall be prescribed by said Commissioner, and the bond may be made by any surety company authorized to do business under the laws of this State; or by two solvent sureties to be approved by the county clerk of the county in which such public warehouseman may desire to do business”— and especially by that clause providing that “any one injured by the violation of the terms of the bond, and the provisions of this chapter may recover damages to the extent of said bond.”

We cannot assent to this contention. When the bonding company admitted its liability to the extent of the bond and paid out $5,000 to the -holders of elevator receipts under the orders of courts of competent jurisdiction, it had performed its obligation.

As held in Chesley v. Reinhardt et al. (Tex. Civ. App.) 300 S. W. 973: “In an action upon a penal bond no récovery can be had against principal or surety beyond the penalty named, since the purpose of stating the amount of the penalty is to limit and fix the liability of signers upon the bond.”

In Locke et al. v. Beal (Tex. Civ. App.) 257 S. W. 302, it is held that a judgment against sureties on a statutory bond for aa amount in excess of the penalty fixed thereby is error, citing Grand Lodge v. Cleghorn et al., 20 Tex. Civ. App. 134, 48 S. W. 750.

Under the facts stated in the agreed case, no other judgment could have been properly rendered, and it is affirmed.


author: MURRAY, Justice.

text:
    LOWE et al. v. COMMISSIONERS’ COURT OF VAL VERDE COUNTY et al.
    No. 9438.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1934.
    Rehearing Denied March 14, 1934.
    John L. Dodson and Robt. M. Lyles, both of Del Rio, for appellants.
    W. P. Wallace, Jr., of Del Rio, T. S. Chris•topher, James V. Allred, and J. A. Stanford, Jr., all of Austin, and Roger Thurmond, of Del Rio, for appellees.
   MURRAY, Justice.

H. J. Lowe and six other resident citizens of Val Verde county, who are the appellants herein, petitioned Hon. Brian Montague, judge of the Sixty-Third judicial district of Texas, which district includes Val Verde county, for a temporary injunction to restrain the commissioners’ court of Val Verde county from expending county funds in the purchase of certain lands to be used as a part of the right of way of state highway No. 3.

The right of the commissioners’ court to so expend funds of the county is found in the provisions of chapter 79, Acts of the 41st Legislature, Fifth Called Session, printed at page 243, also known as Senate Bill No. 82. Appellants contend that this act of the Legislature violates section 35, article 3, of the Constitution, in so far as the same purports to authorize counties to pay for right of ways out of the road and bridge fund, any special road fund, or any other available fund, for the reason that the caption of said act is insufficient to give notice of an intention to pass such legislation.

The trial judge, in his fiat, wherein he denied the relief sought, wrote a very full and learned discussion of the law governing this case, which reads as follows:

“The foregoing petition having been presented to me, upon consideration thereof, it is ascertained that there is involved the sufficiency of certain legislative enactments purporting to be those under which the threatened action or contemplated action of the Commissioners Court of Val Verde County is and will be based.
“As regards Chapter 186, of the Acts of the 39th Legislature, Regular Session, page 456, it is observed that the general purpose of the legislation was to make adequate provision ‘for the construction and maintenance of a State Highway system under the control of the State Highway Department.’
“The above and foregoing is deemed to be the essential and controlling subject of the Legislation contemplated.
“Enumerated in the caption as a part of the detailed provisions to accomplish this general object are found, among others, the following:
“(a) Authorizing the Commissioners Court of any county to grant aid for the improvement of the State Highway Department of any section br sections of said highway in said county.
“(b) Regulating the manner of paying such aid.
“(c) Authorizing the condemnation of materials to be used in the improvement of said highway system.
“Relative to the body of the enactment these provisions just quoted, as being in the caption, are elaborated upon with sufficient and minute detail.
“In Section 14 of said Chapter 186, the Acts of the 39th Legislature, is found an obviously erroneous reference to the Articles of the Revised Statutes applicable in condemnation proceedings which necessitated an amendment, and this was effected in Section 1 of Chapter 10, page 243 Acts of the 41st Legislature, Third Called Session.
“The caption of this last legislation, in addition to the stated purpose of correcting the erroneous reference to the applicable statutes, contains the following:
“(a) Conferring authority on Commissioners Courts to acquire new or wider right of way or land for material or borrow pits.
“(b) Prescribing regulations relative thereto.
“The body of the Act relevant to these provisions of the caption last quoted is in this language:
“ ‘Any commissioners court is hereby authorized to secure by purchase or condemnation on behalf of the State Highway Commission such -new or wider right-of-way or land or lands for material or borrow pits, and to pay for such lands out of the county road and bridge fund, or out of any special road funds as may be provided by law.
“ ‘The State Highway Commission shall be charged with the duty of furnishing to the County Commissioners Court the plat or field notes of- such right-of-way, or land, as may be required, after which the Commissioners Court may and is hereby authorized to purchase or condemn with title to the State Highway Department in accordance with, such field notes, and to pay for same as provided in this Act.’
“Obviously, the caption of this Act specially provides that the Commissioners Court, shall be expressly empowered to do the very things the complainants herein assert that they lack the power to do; and the body of' the Act, in addition to the provision carrying, out the expressed purpose of granting the Commissioners authority to acquire ‘new or wider right-of-way,’ likewise makes effective the second quoted purpose of the caption,, ‘prescribing regulations relative thereto,’ by empowering that court to acquire such new or wider right-of-way, etc. ‘by purchase or condemnation,’ and authorizing payment therefor, out of the road and bridge fund or any special road funds as may be provided by law.
“The foregoing enactment was again amended by Section 1, Chapter 79, page 243. Acts of the 41st Legislature, Fifth Called Session, the caption to which is:
“ ‘An Act to amend Section 1 of Chapter 16, the Acts of the Third Called Session of the 41st Legislature, and declaring an emergency.’
“In substance, the body of this Act is practically the same as that enacted by the Third Called Session of the same Legislature, except that the source from which the Commissioners Court was authorized to pay for the new or wider right-of-way etc. was enlarged, and in this Act of the Legislature such court was authorized to pay therefor.
“ ‘Out of the county road and bridge fund or out of any special road fund or any available county funds.’

“The law under which the Commissioners Court of Val Veyde County is presumed, to be acting, in the light of the allegations made in the bill of complaint, is the foregoing unless Chapter 207 of the Acts of the 43rd Legislature [Vernon’s Ann. Civ. St. art. 6674n] is applicable.

“In as much as in the caption of this last-mentioned Act, and twice in the body thereof, the purpose of that enactment is stated to be the acquisition of a right-of-way' for stream bed diversion, and the complaint before the Court is devoid of any allegation that there is any stream bed diversion in: volved in the proposed or threatened act of the Commissioners Court, it is not deemed that this last Act of the Legislature, just referred to, is in any sense relevant or applicable.'

“It seems too clear for argument that Chapter 186 of the Acts of the 39th Legislature, and Chapter 10 of the Acts of the 41st Legislature, Third Called Session, are both impervious to the attack herein made upon them by complainants. It is hardly conceivable how these acts could have more fully complied with the demands of section 35 of art 3 of the Constitution.

“As regards Chapter 79 of the Acts of the 41st Legislature, Fifth Called Session, a suffi•cient answer to the allegations made by the ■complainants is to he found in the opinion of (he Court of Civil Appeals in the case of Cernoch v. Colorado County, 48 S.W.(2d) 470, where it is said:

“ ‘It has many times been held by the Appellate Courts that a reference to an article in the Code such as the Revised Statutes, is sufficient in the title of a"n Act amendatory thereof, to allow any amendment germane to the subject treated in the articles referred to. * * * ’
“The caption of that Act reading: ‘An Act to amend Section 1 of Chapter 10 of the Acts ■of the Third Called Session of the 41st Legislature, and declaring an Emergency’ under the rules stated in the Cernoeh Case is assuredly sufficient to give vitality to this last mentioned Act of the Legislature.
“Appropriate to sustain the validity of 'Chapter 79, Acts of the Fifth Called Session of the 41st Legislature, is the language of Justice Collard in the case of Johnson v. Martin, 75 Tex. 40, 12 S. W. 321.
“ ‘Appellee, by cross assignment, insists that this section (Sec. 8 of the Acts approved April 19, 1879) is in violation of Art. 3, Sec. •35 of the Constitution, which provides. * * * The Ad; of 1879 is ‘An Act to amend an Act, etc., giving the title of the Act of 1875.’ * * * Mr. Dillon in discussing this provision of the Constitution says:
“ ‘This provision has been frequently construed to require only the general or ultimate object to be stated in the title,' and not the details by which the object is to be attained. Any provision calculated to carry the declared object into effect is unobjectionable although not especially indicated in the title. 1-Dillon Mun. Corp. 28. The foregoing has been practically adopted in this state. Ex parte Mabry, 5 Tex. App. 93, Cox v. State, 8 Tex. App. 254, 34 Am. Dec. 746. The provisions of the Act said not to be embraced in the title are necessary to the enforcement of the main object of the law.
“In Fry v. Johnson (Tex. Civ. App.) 264 S. W. 612, at page 618, it is said:
“ ‘That Sec. (35 of Art. 3) merely requires the subject of the proposed Act to be expressed in the title or caption; the details and machinery for effectually aiding the object of the bill need not be expressed.’
“These authorities are ample to hold that the caption of Chapter 79 of the Acts of tho Fifth Called Session of the 41st Legislature sufficiently meets the Constitutional require4 anents; and that Chapter 10 of the Acts of the Third Called Session of the 41st Legislature, which, it amends, as does the latter Chapter 186 of the Acts of the 39th Legisla4 ture, are therefore not subject to the attack made. The case of Davey v. Galveston County, 45 Tex. 291, is directly in point, and in that case Judge Moore says:
“ ‘The Act embraces, as we think, but one leading subject.’
“ ‘All its provisions are subsidiary to and legitimately connected with, and tend to effect and enforce, this main object, which is sufficiently, dearly and definitely expressed in the title. Here, although the subsidiary provision is not expressed, it is legitimately connected with the main subject and tends to effect and enforce the main object of the law.’
“This language was itself quoted with approval by Chief Justice Gaines in Snyder v. Compton, 87 Tex. 377, 28 S. W. 1061.
“It is deemed Chapter 186 of the Acts of the 39th Legislature has, in the language of Judge Moore, but one leading object, and that, all of its provisions are subsidiary thereto, legitimately connected therewith, and tend to effect and enforce this main object, and that this general subject, together with its subsidiary provision to make effective the main object is sufficiently carried forward in each of the succeeding legislative enactments amendatory thereof.
“The complainants not having shown themselves entitled to the equitable relief prayed for, the application for a temporary injunction is therefore in all things refused and denied.”

We agree with the above statement of the law in this case and conclude that the temporary injunction was properly refused.

The judgment is affirmed.


author: GALLAGHER, Chief Justice.

text:
    TEXAS & N. O. R. CO. v. WRENN et al.
    No. 1464.
    Court of Civil Appeals of Texas. Waco.
    Feb. 15, 1934.
    Rehearing Denied March 15, 1934.
    Tom B. Bartlett, of Marlin, and Sewell, Taylor, Morris & Garwood, of Houston, for appellant.
    C. R. Glass, of Marlin, and Robert Lee Guthrie, of'Dallas, for appellees.
   GALLAGHER, Chief Justice.

This suit was instituted by H. E. Wrenn arid Marlin Citizens’ National Bank, hereinafter called appellees, against Texas & New Orleans Railroad Company, hereinafter called appellant, to recover the sum of $2,208.40, the alleged value of sixty-seven bales of cotton. Said bank was joined as a party plaintiff because it had advanced money to said Wrenn on the bills of lading under which said cotton was transported to Marlin. So far as it participated in the transactions involved herein, it was represented by said Wrenn. Appellees alleged that said cotton was transported by appellant as a common carrier under a bill of lading held by them from Reagan to Marlin • and wás destroyed by fire while in its possession at the latter place. They sought recovery against appellant on its common-law liability as such carrier. Appellant denied that said cotton was in its possession when destroyed, and alleged affirmatively that prior to such destruction the same had been at appellee’s request delivered to the Exporters’ & Traders’ Warehouse & Compress Company; that said compress company was the agent of appellees, and received and accepted delivery of said cotton as such. Appellant further alleged in the alternative that, if it had not, prior to the destruction of such cotton, made a full and effective delivery thereof to appel-lees’ said agent, under the specific provision's of the bill of lading under which it transported said cotton to Marlin its liability as a common carrier had terminated; that, if liable at all, it was liable only as a warehouseman ; that the destruction of the cotton was not caused by any negligence on its part; and that therefore it was not liable in such capacity. Appellant sought by cross-action to recover the sum of $120.06 as compensation for transporting said cotton to Marlin.

The trial was begun before a jury, but at the conclusion of the testimony all the parties agreed that the issues of fact should be withdrawn from the jury and determined by the court. The court thereupon discharged the jury and rendered judgment in favor of appellees against appellant for said sum of $2,208.40, and in favor of appellant on its cross-action for $120.06, and ordered that such recovery operate as a credit on the recovery in favor of appellees.

Opinion.

Appellant’s first contention is that the testimony shows conclusively that, prior to the destruction of said'cotton by fire, the same had been completely delivered by it to said compress company as appellees’ agent, and &at its liability as a common carrier had therefore terminated. G. O. Kelly, on April 5, 1932, shipped said cotton from Reagan to Marlin, Tex., on a “shipper’s order-’ bill of lading, which he, for a valuable consideration, indorsed and delivered to appel-lee Wrenn, to whom, by the terms thereof, notice of the arrival of said cotton at Marlin was to be given. Appellant did not have a warehouse at Marlin for the handling of cotton, but used the warehouse of the compress company for such purpose. On this account it was appellant’s custom, and had been for several years preceding, at the beginning of each cotton season to obtain from the respective cotton dealers at that station instructions to deliver cotton consigned to them, respectively, to such compress company. Appellee Wrenn, at the instance of appellant and in accordance with such custom, signed and delivered to it a written request to so deliver all cotton consigned to him. Said cotton arrived in Marlin and was placed by appellant at the platform of the compress company some time between 9 and 10 o’clock in the morning on April 6, 1932. Appellant, in accordance with its custom in such cases, issued its manifest to the compress company authorizing it to unload said cotton. The compress company unloaded the same during the afternoon of April 6th, and placed it on its platform for the purpose of being conditioned and weighed. This work was begun on the morning of April 7th, and had not been completed at about 4:35 p. m. on April 8th, at which time the entire consignment was destroyed by fire. The invariable custom of the compress company was at that time, and had been for a period of some nine years prior thereto, to unload cotton delivered to it by the railroad company, condition and weigh it, and to thereafter issue warehouse tickets showing the weight and condition of the cotton in each bale. These tickets were always delivered to appellant. After such tickets were delivered to appellant, the consignee would go to appellant, present his bill of lading, pay the freight, and obtain the same. The compress company would not deliver cotton to any person notwithstanding he might have the bill of lading, unless he had also such warehouse tickets therefor, Appellee H. E. Wrenn, assignee of said bill of lading, demanded possession of said cotton of appellant about three and a half hours before the fire occurred which destroyed the same. Appellant declined to deliver the cotton to him because the compress company had not issued and delivered to it warehouse tickets therefor. Other incidents of this particular transaction not here recited are without effect to change the relation shown by the foregoing facts to have existed between appellant and the compress company in reference to such cotton. Such facts are ample to sustain an implied finding in support of the judgment that the compress company was the agent of appellant for the purpose of unloading said cotton and issuing and delivering warehouse tickets therefor, by. means of which appellant could make symbolic delivery of such cotton to appellees. Since the service to be so rendered by it had not been completed, and since appellant refused on that ground to provide for surrendering possession of such' cotton to appellees on proper demand, we do not think it can be reasonably said that there had been an effective delivery so as to terminate the liability of appellant as a common carrier. Houston & T. C. Ry. Co. v. J. W. Geer & Sons (Tex. Civ. App.) 236 S. W. 199, 201, par. 1; Wichita Valley Ry. Co. v. Golden (Tex. Civ. App.) 211 S. W. 465, 466, par. 1; Wichita Falls & N. W. Ry. Co. v. J. J. Brown Co., 76 Okl. 84, 183 P. 889 et seq.; Texas & N. O. R. Co. v. Newman (Tex. Civ. App.) 273 S. W. 335, 338, par. 4; Southern Grocery Co. v. Bush, 131 Ark. 153, 198 S. W. 136, 139, par 3.

Appellant contends that the testimony shows conclusively that, under and by virtue of a certain stipulation contained in the bill of lading, its liability for said cotton as a common carrier at the time the same was destroyed had terminated, and had been succeeded by the liability of a warehouseman. Appellees do not contend that the facts in this case charge appellant with liability as a warehouseman for the destruction of said cotton. The stipulation so relied upon is as follows: “The carrier’s liability shall be that •of a warehouseman only for loss, damage or delay caused by fire occurring after the expiration of the free time allowed by tariffs lawfully on file (such free time to be computed as therein provided) after notice of the arrival of the property at destination ⅞ ⅜ * has been duly sent or given, and after placement of the property for delivery at destination or tender of .delivery of the property to the party entitled to receive it has been made.”

Notice of the arrival of said cotton was given, and the cars on which it was loaded were placed for delivery during the morning of April 6th, and the work of unloading was completed during the afternoon. By the terms of said stipulation, these facts alone did not transmute appellant’s liability as therein specified, but the “free time” .allowed by its tariffs must also have expired to effect such change. Said stipulation expressly provides that such “free time” shall .be computed as provided in appellant’s tariffs. Appellant introduced in evidence an excerpt therefrom, which provided that “forty-eight hours (two days) free time will be allowed for loading or unloading all commodities.” A reference to another rule Included therein ■was appended to the above excerpt, but appellant did not offer the rule so referred to in evidence. Appellant’s local agent at Margin testified in this connection without objection and without contradiction that “free time” -on this particular shipment began to run at'7 o’clock on the morning of April 7th. So computed, such free time, the expiration of which was made a condition precedent to transmutation of appellant’s liability, had not expired at the time the cotton was destroyed by fire, and appellant’s contention under consideration is without merit.

The judgment of the trial court is affirmed.


author: HICKMAN, Chief Justice.

text:
    MARYLAND CASUALTY CO. v. McGILL.
    No. 1243.
    Court of Civil Appeals of Texas. Eastland.
    March 2, 1934.
    R. H. Mercer, of San Antonio, for appellant.
    David C. Brown and Elbert R. Spence, both of San Antonio-, for appellee.
   HICKMAN, Chief Justice.

Appellee brought this suit upon a special automobile accident policy alleged to have been issued by appellant to William B. Mc-Gill, her deceased husband. A copy of the policy was attached to her petition and made a part thereof by reference. She was named as beneficiary in the policy as to the indemnity payable thereunder for loss of life of the insured, but, by the express terms of the policy, all other indemnities were payable to the insured. The provision is expressed in this language: “Indemnity for loss of life of the insured is payable to the beneficiary if surviving the insured, and otherwise to the estate of the insured. All other indemnities of this -policy are payable to the insured.” •

No recovery was sought for the loss of life of the insured, but recovery was sought alone for indemnities under the following provisions :

“Section II. * * * (A) From the date of the accident wholly and continuously prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay a weekly indemnity of Twenty-Five Dollars for the period of such disability, but not exceeding twenty-six consecutive weeks.
“Section III. (A) If by reason of a bodily injury so sustained for which indemnity is payable under this policy, the insured shall be removed to a hospital, or if such injury necessitates the attendance of a graduate nurse, the company will pay an additional indemnity at the rate of Fifteen Dollars per week for the period of hospital confinement or nurse’s attendance, as the case may he, but not exceeding four consecutive weeks.”

By the allegations of her petition, all of these indemnities accrued during the lifetime of the insured. There is absent any allegation showing whether the insured died testate or intestate, whether or not he left any heirs other than appellee, or whether there was any administration pending upon his estate or any necessity therefor. In short, appellee declared upon a policy for indemnities which, by the terms thereof, were not payable to her. Appellant first filed a general demurrer and general denial. Later it filed its first amended original answer, consisting of a plea in abatement, general demurrer, special exceptions, general denial, and special pleas. The plea in abatement, general demurrer, and certain of the special exceptions were overruled, and the case tried on its merits. Upon the verdict of the jury returned in answer to special issues, judgment was entered for appellee for the amount claimed to be due under the policy, including interest, penalties, and attorney’s fees. Appellant’s brief contains fifty-four propositions, based, upon forty-seven assignments of error, but, under the views entertained by us on the question of pleadings, we shall find it unnecessary to discuss all these various propositions.

Appellee’s petition alleged no right whatever in her to recover for the indemnity payable by the terms of the policy to the insured. As the beneficiary of the indemnity for loss of life of the insured, she could have maintained an action therefor, but that question is not involved. By her suit she sought to recover only for indemnities which accrued to the insured during his lifetime. Recovery for these indemnities could be had only by the legal representatives of the estate of the insured, or, in ease there was no. administra-, tion, or necessity therefor, then by his legatees or heirs. The fact that appellee was the, beneficiary of the indemnity for loss of life, of the insured did not enable her to maintain a suit for the indemnities which were payable to him and which accrued during his lifetime. Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, 111 S. W. 396; Knights of Maccabees of the World v. Patton, 179 Ky. 410, 200 S. W. 614; Martin v. Travelers’ Ins. Co. (Mo. App.) 247 S. W. 1024.

Appellant sought to abate the suit on the ground, among others, that plaintiff was not entitled to bring the suit, if there' was a cause of action, and that the pleading, showed upon its face that appellee had no cause of action. This plea in abatement was' not filed in due order, but appeared for the first time in the amended answer. If the question, therefore, is one that could be raised only in abatement, then it has been waived. 1 Tex. Jur. p. 158, § 115. On the other hand, if it is a question which could be urged in bar of appellee’s right of recovery, the fact that the plea in abatement was filed would not preclude appellant from relying upon its demurrers and pleas in bar. The original answer contains a general demurrer, which was carried forward in due order of pleading in the amended answer, and the action of the trial court in overruling same is made the basis of an assignment of error. The question for our decision is whether the petition was subject to a general demurrer. We have concluded that it was. In the case of Peveler V. Peveler, 54 Tex. 53, the heirs of a decedent brought suit on a bond, .alleging that there was no pending administration on the estate. The evidence showed a pending administration, and it was held that the right of the plaintiff to recover was negatived by facts and that the defendants were not required to plead in abatement the nonjoinder of the administrator.

In the case of Hamilton v. James A. Cushman Mfg. Co., 15 Tex. Civ. App. 338, 39 S. W. 641, 642, the plaintiffs sued as partners on a contract alleged to have been made with them as partners, but, as a matter of fact, the contract was made with a corporation in which they were the stockholders. The cause of action, if any existed, was in the corporation, and not in the partnership. Justice Williams, writing for the court, delivered a very illuminating opinion on the real distinction between pleas in’ abatement and pleas in bat, concluding that the question of the right of the plaintiffs to recover could be raised by a plea in bar. The following language is taken from that opinion: “Upon a cause of action accruing to the corporation, those individuals, either soleiy or as partners, could not maintain an action at all, unless they had acquired the claim from the corporation, which is not pretended here. If A. sues B., alleging a contract between themselves for the sale and delivery of goods and its performance by A., and B. answers that the contract was not with A., but with C., who had performed it, and alone had right of action on it, can it be said that this would be a dilatory plea, setting up either a want of A.’s capacity to sue, or of his right to recover in the capacity in which he sued? We think not. The defense urged would be plainly a denial that A. has any cause of action at all.”

That reasoning applies in the instant case. Appellee’s petition failed wholly to allege any cause of action in her favor against appellant. A plea in abatement must give the plaintiff a better suit. It was appellant’s contention that appellee had no suit at all, and it could not therefore give her any better suit. Let us suppose, for instance, that the insured died testate, and this claim passed by his will to a third person; or let us suppose that he died intestate, but leaving debts, necessitating an administration. A judgment in favor of appellee would not be res adjudicata of the claim of such beneficiary or administrator, and a holding that the right of appel-lee to a judgment could be raised only by a plea in abatement would authorize a double recovery against appellant. The question presented is not unlike that considered by this court in Pinkerton v. Kempner, 8 S.W.(2d) 555. . In that case the plaintiff declared upon a promissory note payable to the order of a third person. Her petition was good, because she alleged ownership of the note in herself, but the proof failed to meet the allegation, and it was held that, in the absence of evidence to show ownership of the note by plaintiff, she was not entitled to recover thereon. If it is necessary to prove ownership of a claim declared upon, it is likewise necessary to allege it. The question is one of pleading a cause of action, rather than one of capacity to sue. It is our conclusion that the trial court erred in overruling the general demurrer to appellee’s petition.

The evidence likewise does not support appellee’s right of recovery, and we are called upon to render judgment in appellant’s favor. This we cannot do. Since we have held the pleading subject to a general demurrer, we are -not authorized to render judgment against appellee on the merits. Such judgment would not be supported by the pleadings. Bennett v. Gillett (Tex. Civ. App.) 57 S. W. 302; Western Union Telegraph Co. v. Owings (Tex. Civ. App.) 38 S.W(2d) S31.

Several errors are assigned in the brief, but most of them will probably not arise upon another trial. We think it not improper, however, to reannounce the rule that appellant was entitled to an affirmative submission of each group of facts pleaded and relied upon by it as a defense. Colorado & S. Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517. This right is not preserved to a defendant by submitting, the plaintiff’s issues, and giving a general charge directing the jury how to answer such issues in the event it entertains certain views regarding defendant’s defenses. It is not proper to give a general charge to a jury in a case submitted upon special issues. Standard et al. v. T. P. C. & O. Co. (Tex. Civ. App.) 47 S.W.(2d) 443; K. C., Mo. & O. Ry. Co. v. Moore (Tex. Civ. App.) 11 S.W.(2d) 335.

For the reasons above assigned, the judgment of the trial court is reversed, and the cause remanded.