*1 therefore, request law, such having petitioner.” were Re- failed to vested spondent complete ground constituting upon finding, issues makes 'no attack Under and in recovery, ground Ap- waived. its brief Court of Civil Procedure, peals 272, point Rule Civil made no Texas Rules of effort to out wherein only required part submit evidence the trial court limitation on finding plaintiff-petitioner jury issues. No conclusive. controverted was not See necessary undisputed facts. establish The judgment Ap- of the Court of Civil Amarillo, Kirby American Bank of v. peals is reversed and court trial 205; Id., Tex.Civ.App., 4 Tex.Com. S.W.2d is affirmed. 1528; App., 599, Foster 18 S.W.2d 63 A.L.R. Woodward, Tex.Civ.App., v. 134 S.W.2d
417, ref.; Senter, Tex. er. v. Greenwood Powell, 812; Wiley
Com.App., v. 61 S.W.2d 242, Tex.Civ.App., 164 on S.W.2d reversed 74, S.W.2d ground another in 141 Tex. carefully 470. examined the We have petitioner’s plea by title ad- supporting possession evi- and conclude that the verse Roy FLOYD, Appellant, petitioner and dence is uncontroverted that open predecessors and visible in title right acts his claim of established Texas, Appellee. The STATE of title land shows involved. evidence No. 28388. peti- of law. limitation as a matter by showing that Appeals tioner established such title Court Criminal of Texas. 21, petitioner purchased August on 1953 the 31, Oct. heirs Warranty Deed from the General simple title of Y. W. Thomason the fee
all the involved in this suit. land September evidence further shows that 22, 1905, conveyed to Y. B.W. Townsend by special warranty
W. Thomason deed land; Y. Thomason same W. tracts of September 22, 1905, filed the deed for record possession took resided on said land aas home and remained pos- in exclusive session until his death in 1918. After his
death, possession his widow continued in person byor tenants until the house burned
in 1931. The was rendered for paid by taxes were and taxes Mr. Thomason years inclusive, for the years Mrs. Thomason 1919 to inclusive; years that for the 1919 tó inclusive, paid by the taxes were both Mrs. every year each and Thomason before de- linquency. court
The trial its found that facts, title and “Under of said premises question, land a matter *3 Little, Keilin, Baytown,
C. D. Chas. A. Houston, appellant. for Walton, Atty., Brady Eugene Dan Dist. White, Attys., and Thomas D. Asst. Dist'. Houston, Douglas, Leon B. State’s Austin, Atty., the State. for Presiding Judge. MORRISON, offense a violation of Article Ann.P.C., denounces, Vernon’s misapplication among things, other officer, person employed city officer, city property which has come into - possession by of his virtue officeor em ployment; punishment, years. complexity Because of the unusual proof (the statement State’s con- pages) and in the interest of sists brevity, have concluded that the we issues presented for our determination be by outlining the made clear evidence intro- appellant and the duced the State with- every identifying in case the source of out the evidence. prosecu-
During the time involved in this city acquiring by tion the condemnation city right limits way within the highway. a new state appellant was director of the Treas- and, of Houston ury of the his role 30, 1954, such, requested on November city authority from the council to sell at public buildings all located auction on the evidently du- ton Chronicle discovered the way and to demolish those right proposed plex question properly up set estab- cement sold. not be could appellant’s city in on the policy of the blocks and leveled lot. it was lished were to structures where frame cases situation, Upon being informed done should be work that this demolished mayor appellant’s terminated the serv- lumber so labor and that prison farm city. ices with the at a central ware- stored salvaged should be questioned city attorney’s office and city department in for issuance made a statement which denied that he *4 author- December On need thereof. had Fortenberry authorized Mr. to move city by the appellant the ity granted was any question. house from the in land report to council, directed to he was and disposition was made According appellant’s testimony, what them approached buildings Fortenberry Mr. involved. him on Feb- ruary duplex buying about the located at November, ap- of the month During the Nance, as well as some other 2601-2601½ name a purchased in own pellant had buildings, appellant and the told him that and, Houston of ac- lot in the vacant permit time not would him to advertise the testimony, had rented the cording to competitive same for bidding but he- Fortenberry, a house Mr. mover. same to a might have the salvage same for the if he city acquired by February On would demolish and get right it off the duplex which a six-room condemnation way. Appellant stated that he returned to- Nance address bore 2601-2601½ the area about February 20 and found the later, appel- weeks two Some Street. duplex gone. capacity, addressed a lant, in his official produced appellant The written evi- May Concern” author- Whom It letter “To his claim he had supporting dence rent- improve- Forténberry move the to izing Mr. Fortenberry, property to and ed the Forten- of- number different ad- at a located ments berry not called was witness. dresses, being among them 2601-2601½ highway right Street, out of Nance appellant’s defense was that The as the copy awith carbon confronted way. When city grew short which the time had to appellant letter, stated that he this way he right clear went to the mayor the same but did dictated not have might reported the dilemma he mailing it. signing or remember give himself and was instructed to found away, those burn or bulldoze houses which this, reported appellant Following way. right of remained on the previous council, pursuant their or- sell, among unable to der, had been that he then-mayor was called rebuttal dwelling others, located three-room at having so appel- denied instructed the that the stated same Nance Street He testified further he lant. had public by the demolished works was to be appellant any given specific never in- prison farm department with labor. It as to what land to structions clear first but report noted that this was in should get him to that information from told a Mr.. property inaccurate because the measure Highway Department Nagle and actually duplex a six-room and bore the was city depending was since the on the State Nance numbers street Street. 2601-2601½ maps Highway give them the order of approved by report city This priority. March, ap- and March 18 council Fire LaBoue was called in Chief rebuttal- he pellant reported that had demolished the appellant, by the testified that he had report. buildings mentioned his earlier a conversation which overheard the may- smoothly Everything progressed appellant right told the that a certain reporter appellant way until a from the be cleared Hous- had to at cost and au- improve- was reversed If appellant give and the cause remanded. thorized the anyone who Court had salvage to decided that the indictment away ments fatally defective, would then the move them. would have been reversed and the prosecu- in- evidence that would State offered tion ordered dismissed. property
dicate at 2601-2601½ path located in the Nance Street was not the house was raised moment hurriedly right way that was foundations, from its severed it became cleared. arjd from realty assumed the character personal thereby property and became that, pursuant testified subject Article theft. Under mayor’s instructions, he given had V.A.P.C., immaterial, the value thereof is authority Fortenberry to demolish the and we have concluded that the indictment in question that he had known is not to this first attack. The evi that it until the was on his news- dence here shows that the house was moved paper reporter questioned him about the *5 city’s intact from the property to that of the same. appellant, presents entirely which an dif rebutted with evidence that the ferent state of from those before duplex repaired had after it been had come this in Court the case. Walles appellant’s property. to rest on the disposition of this first attack Our We fully shall state the facts more in our necessity obviates the upon indictment the exception discussion of the bills of which jury upon because the second passing the were ably so in brief argu- advanced and verdict and all of the general returned a ment. the count under was admissible evidence the outset with motion met at a We are misapplication of a charging the house. quash indictment. to 819; Tex.Cr.App., 55 State, S.W. Vincent v. counts, Digest, and Indictment Informa Texas In indictment 21a alternate misapplication, tion,. taking, charged and “house” and “lumber.” conversion of for the motion ground alleged to Another “house” that a cannot Appellant contends of the allegations indict- quash that the allega- and that subject of theft be the charged duplicitous that it ment were insufficient that there is is tion “lumber” “take, fraudulently accused did that quantity. sup- its designation as to In Reliance is and misapply convert!’ had contention, reliance is port of his first had State, 383, Tex.Cr.R. Ferguson 80 upon v. State, 509, 136 upon Walles v. 271, which held that words 273 189 S.W. blush, first 990. At it 126 S.W.2d “abstract”, “embezzlement”, “misapply”, and supports case appear the Walles that would count of the indict- used same when appellant. Court reversed This more distinct charge two or offenses ment case the Walles because the conviction duplicitous. rendered the same While and jury instruct the in his trial court failed Ferguson might case of the the soundness appellant believed good if charge “that authority only questioned, be it belonged Leroy faith that such terms proposition that “the ‘embezzlement’ paid him he time McCall at the $12.50 ‘misapplication’used with reference and sale, and at received the bill the time and are not funds a bank convertible down, acquit then to tore the house application has no Such rule terms.” here. authority for appellant.” ques- It is State, no more. While v. 140Tex.Cr.R. of law and it is true In Beard 143
tion
opinion
967, 968,
prosecution
which
the dictum of
states fur-
S.W.2d
proper
bar,
as the
is not a
same statute
case at
subject
a “house”
under the
ther that
theft,
charged
noted
that Beard
be
the indictment
it must
did
“
other,
con-
be no
take, misapply
there will
‘fraudulently
duplicity,
need be
indictment
but a verdict
”,
this Court held
vert’
guilty;
pleader
or the
set out
of cases.
citing number
sufficient,
separate counts each one of the various
4th, 5th
is true that
While
ways in which it is claimed the offense
Criminal
of Willson’s
and 6th Editions
might
committed,
have been
in which
“misapply” in the
word
omit the
Forms
event also
need
there
but a verdict
offense,
have con
we
drawn for
forms
guilty.”
term does
inclusion of such
that the
cluded
In the light
qualification
of the court’s
duplicitous.
indictment
not render the
exception,
the formal
bills
no error is
thereby.
reflected
contends that
next
require
failing
erred
the trial court
bills,
None of the first six informal
which count
under
the State
elect
present
questions
the same
as the for
proceed. The motion to
indictment it would
bills,
mal
witness,
permit
shows what the
if
charged,
were
alleged
two felonies
elect
ted,
testified,
would have
and therefore
subject
being a “house” and the
of one
nothing
presented
for review. Peterson
We
“lumber”.
subject
the other
State,
v.
157 Tex.Cr.R.
247 S.W.2d
abundantly
have
record
concluded
110; Singleton
State,
v.
150 Tex.Cr.R.
only
misap
one theft
demonstrates that
1015;
State,
S.W.2d
King
Tex.
n vyas
involved,
plication
and the
Cr.R., 410,
376;
208 S.W.2d
Bell v.
*6
at
“house”
2601—
thereof was the
situated
Tex.Cr.App.,
529 and, such, came to instruct Houston request was made swered. No into answer, prac- houses situated on of certain jury disregard the to right way cleared. It asked to be question was then which was tically the same duty city became his council’s objection. secure the and answered without authority dispose such houses. complains exception No. Bill of council sell such appellant to authorized the exam limited his was buildings with he could and demolish court Holmes. ination of the witness prison use of could not be labor those objections first two sustained the State’s reported ques- sold. He house that the stated, he “If testimony to the and then permis- tion could not asked be sold and question,” and knows he answer the can sion to This city demolish forces. using No error answers. gave witness permission reported later granted. He reflected the bill. whereas, demolished, it had been Fortenberry fact, truth and in given he had through exception Bills Nos. intact, authority to and it move the plat or complain of a of the introduction appellant’s was later found on the De- map Highway prepared the State process renovated. partment transmittal which a letter of appellant’s contention that tended to refute Appellant possession of came into first clearing the about urgency there an employment. this house of his virtue Nance property located at did not rightful This was and it possession, 2601-2601½ Street. claim wrongful become until he asserted hostile that of city. that, though
Appellant’s complaint is even copy appellant had a it was shown that Surely, his claim became hostile office, map there was reported when he city council that he brought ever been showing it had when, fact, had demolished the house his attention. given Fortenberry authority had Mr. *7 away move it re intact and it had been have been some While there placed upon appellant’s moved and lot. admissibility maps question of the the as to by These established direct evi were offered, they we have con at the time were dence, proof charge and because of this testimony cluded which followed the required. evidence was circumstantial admissible. the same rendered introduced, Finding the evidence sufficient State maps were the After the support the conviction and no reversible mayor, the defense called called and the appearing, error the of the LaBoue, as hereinbefore trial Chief who testified court is purpose, affirmed. the set for no other forth. If maps support became admissible to the tes-
timony mayor and refute of of the DAVIDSON, Judge (dissenting). fire chief on issue of whether or not by Art. P.C., The offense denounced appellant given was some extraordi- and nary in the nature of theft embezzle- authority is one because of an emergency to in that it makes unlawful the dispose contrary fraudu- property of ment this to normal property of of taking another. procedure. lent indictment in this case Appellant objected contained charge court’s multiple charging counts fraudulent tak- because of its failure to define circumstan- house, and appellant of a by lumber ing ques- tial evidence. This is the most serious constructed, which it was be- in of which tion the case. shall We summarize the City Houston and to the of longed appellant State’s case. Treasurer (cid:127) apparent, therefore, by appellant virtue of his It is custody into had come of an officer stands being employee here convicted of the fraudulent an officer or of of taking city. the house of which and lumber said. constructed, it was house for if he stole counts, court sub- From trial those he stole the lumber of which house was following instruc- jury, to the mitted constructed, and, conversely, if stole the tion, one offense as one transaction: lumber of which house was constructed he stole the "Now, house. from the evi- you if believe doubt, dence, beyond a reasonable By indictment, motion quash and defendant, Roy Floyd, on or about other means, insisted day February, A. D. the 14th of trial that a house is not the of theft County State and Harris or acquisition, fraudulent it is because not employed officer, Texas was an or was corporeal and cannot personal property Houston, officer, City an and incapable therefore fraudu- to-wit, Texas, municipal corporation, lently converted, taken such, and City, Treasury said Director of the use benefit and of another. into and and that there had come my mind, To a house cannot be the sub custody in defendant’s then and there ject of theft Speaking this through state. or his office or virtue of Judge Graves the case of Walles v. employment 2601- at a house located 989, 990, 126 S.W.2d 2601 Nance Street ½ this court definitely decided, clearly so Houston, which said and the lumber of when it said: constructed, said house was personal house lumber was “We also find ourselves at a loss to city, and the belonging value to such any understand person how can be Roy Floyd and there said did then guilty of the theft of a ‘house’ as is ' take, fraudulently misapply or convert charged Theft indictment. use, will find you same to his own taking corporeal the fraudulent pun- guilty the defendant and assess personal property. part A is a at confinement ishment realty personal proper- than not less penitentiary term ty.” years, as years nor more than ten two Notwithstanding positive direct say by your you shall determine language also legal the correct conclu- verdict." *8 thereby, sion my announced brethren re- they jury, that instruction to the Under fuse to follow holding accept that or such appel- general finding a verdict returned proposition as why a correct of law. Just guilty, charged. as lant majority the of the court refuse to follow pronouncement that I am unable ascer- Judgment was entered accordance with opinion. only tain from their conclu- duly and sentence thereon was that verdict appears to they reject sion be it as be- finding appellant guilty of passed fraudu- incorrect, ing they if for any entertained personal prop- taking converting and lently they view other could not have affirmed the erty belonging to the of Houston. under conviction this record. apparent such it is light of In the The correctness of holding in the taking alleged is, fraudulent —that cannot, my opinion, Walles case be doubt- lumber of which it theft —of supports following ed. inme such was indivisible trans- constructed one opinion: action, construed trial court so 1889, charge jury it in his so legislature passed In so treated what be- by their verdict. Art. 791 of the 1895, found came Penal of Code any per- or unlawful for remove belonging it was a house to another which made mischievously injure without wilfully owner, son to or consent of the where property any personal the value of destroy or the house so or de- or real removed stroyed $50, as that of manner over the value of another punishment any of the injury within fixed was greater not come than that did Penal affixed to specified by felony offenses of theft. otherwise crime Code. Other penal statutes of our demon- code for tear- statute, conviction Under that a strate the holding correctness of the from the removing a house ing down and case, supra, Walles a house be cannot by the property sustained of another was subject of theft. Supreme when that this state Court of timber-cutting I call attention of crim- appellate jurisdiction court had statute, 1379, P.C., Art. where is made State, cases, inal 33 Tex. Ritter v. destroy for unlawful one to cut down or 791, of P.C. provisions said Art. of merchantable timber land of an- from the and are 1895, forward brought have been So, statutes, 1383, other. Arts. 1384and 1350, Art. (1) of incorporated now Sec. P.C., or make cut it unlawful to down it is made Code, by which Vernon’s Penal destroy pecan any otherwise walnut or injure or de- wilfully unlawful for one to tree on the land of another—all of which another, belonging to stroy property any property demonstrates that attached to the whatsoever, con- any without kind soil cannot be to theft. owner. sent 1395, house, P.C., A defined Art. destroyed property injured or Where follows: punishment there- in value the exceeds $50 meaning “A ‘house’ within the nor more at less than two is fixed chapter, any building or struc- this pun- twenty years, being heavier this a than use, private public ture erected for or per- fixed for theft ishment than that the United whether the the value of property over $50. sonal States, public State, any or this or 1350, association, history corporation of Art. Ver- legislative private or or legislature P.C., individual, when the shows that and whatever non’s or 1895, provision 791, Art. P.C. of be constructed.” amended material it injury expressly include was made statute, court con- has Under pro- property. That of real destruction such, house, be must sistently held that appeared Art. P.C. vision has held It been the soil. attached present by the amended statute was following not constitute do P.C. Vernon’s Art. car (Summers a railroad house: 310), P.C., showcase 90, 90 S.W. Vernon’s By (2) of Art. Sec. *9 State, (Clark v. except of a store very to in the vestibule careful legislature was portable 892), a 494, injury 120 S.W. wilful or de- 56 Tex.Cr.R. provisions its from realty doghouse not to rig attached oil as arson— certain means—such by struction place place, from to Loftis v. movable grow- as but types property certain —such 569, 411, 251 State, 157 Tex.Cr.R. S.W.2d by special and fences—covered ing timber storing dyna- for portable box used a statutes. 55, mite. Stoddard history, as legislative well as From this 281. 47 S.W.2d 1350, of Art. language Vernon’s from mentioned, holding above my In view legis- mind clear that the P.C., it is to P.C., by 1404, 1403and legislature, Arts. did only intended to but make not lature burglarize a to railroad it unlawful wilfully tear made for one down to unlawful it by car. legislature, So also did the Art. cannot legislature be and the has in- not 1404b, 2, P.C., Vernon’s make un- Sec. it tended it be the of theft or vehicle, burglarize lawful to a which is de- fraudulent taking. in, upon fined to be “a device or which I am appellant’s convinced that the mo-
any person pro- may or is or be quash indictment, tion to tire well as as pelled, upon highway, moved drawn a or his verdict, motion for an instructed should except power a device human or moved have been sustained. exclusively upon stationary used rails or tracks.” In express my addition foregoing, to the I serious doubt as to whether real be- estate automobiles, Such definition includes longing come Houston can carriers, motor trailers whatsoever into custody or of an officer kind or character. employee or be city an officer 1404b, V.A.P.C., draft of Art. employee converted or to officer 447, Chap. 273, p. use, Legislature, own Acts 52nd as is necessary vio- to constitute a made it unlawful for one to break and lation of Art. P.C. enter a vehicle with intent commit When one converts to his own use the felony emergency or a misdemeanor. The property of another deprived he has clause the act sets out the reason owner thereof property. of that passage legis- emergency of the act as existing lation as law then that the Unless that conversion can be accom- against adequately protect
(cid:127)did “not vehicles plished, offense, there can be especially breaking entering”. Section under the embezzlement statute or Art. 95, P.C., where conversion necessary Such constitutes a direct finding be shown in order to constitute such of- legislature that a motor vehicle or trailer fense —all of demonstrates, which my was not house, and could not be a for if opinion, the wisdom of the legislature in a house burglary were statute would punishing one for the wilful destruction of amply protect against thereof; burglary or injury to the real estate of another. finding also it constitutes a that a house Art. V.A.P.C. exists, such, only when attached to the realty. I agree do not this conviction that, ground sustained on the after the In legislature, by Chap. 71, p. house had been soil, severed from ap- Regular Acts Session of the Leg- 54th pellant converted use the own lumber islature, 1404b, V.A.P.C., reenacted Art. of which the house was constructed. change with one therein —which was a change purpose and intent with which instance, In the first the trial court did breaking was done —to read “with not submit jury upon the case to the felony committing intent of or the crime theory, jury’s and therefore the verdict can- purpose of theft” rather than “for the not be finding appellant construed-as guilty committing felony misdemeanor”, of an offense not submitted to them. Sec- in the 1951 act. ondly, the indictment did not warrant submission of upon case theory. clause, emergency In its the 1955 act re- Thirdly this, mind, my is the most —and iterated the fact that the existing laws did conclusive —the house or lumber of adequately protect against breaking *10 it was constructed did appel- not come into entering a vehicle. possession, lant’s after had sep- been soil, firmly The statutes arated establish, discussed from the reason of my opinion, the correctness employee of the hold- an officer or of an officer of the case, ing supra, in the Walles possession that a of Houston. His thereof Houston, Douglas, Atty., Leon him of Art. State’s of a violation result (cid:127)was the Austin, for the State. lumber of The 1350, V.A.P.C. never was therefore constructed house was officer possession, as an
lawfully PER CURIAM. city. of that officer employee anof offense unlawful affirmance respectfully I dissent marihuana; punishment, years this case. penitentiary. appeal record on contains no state- ' n exception.
ment of or bills All appear proceedings regular and noth- presented ing review. is affirmed. WALKER, Appellant,
Jimmy
v. Appellee. Texas, STATE 28666. No. Appeals of Texas. of Criminal Court Dec. 1956.
CARO, Appellant,
Enix H. Texas, Appellee.
The STATE of No. 28667. Appeals Criminal of Texas.
Court of Dec. attorney for of record
No appeal. Walton, Atty., Brady Eug.ene
Dan Dist. White, Attys., D. Dist. and Thomas Asst.