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er the death of Mrs. Cooper and the probate , second, for the benefit of the sisters of of her will, plaintiff sued out a writ of attach- the testatrix as to such part of said estate, ment and caused the same to be levied on if any, as shall remain undisposed of or said house and lot as the property of the unappropriated at the time of Mrs. Williams' defendants W. N. Williams and wife, M. (death. By the express terms of the will, E. Williams. The court, on the trial of the Mrs. Williams has no right, interest, nor case, refused to foreclose an attachment lien title to the property except the right to on said property.

receive, use, and enjoy such part of the same [9] The will vested the legal title to Mrs. as the trustee in the exercise of the disCooper's estate in W. N. Williams with power cretion vésted in him by the terms of said to sell and convey the same. The title so will shall deem proper and right to apply to vested in him was, however, in trust for her welfare and comfort and shall so aphis wife. The will required him to use the ply. The duties imposed upon the trustee whole property, or so much thereof as in by the terms of the will are very general. his judgment should be so used, for her He is granted express authority to sell, conwelfare and comfort. It expressly declared vey, collect, and hold the entire estate, and that he should have no power, authority, or implied power to reinvest the same, because interest in said estate except such rights and the testatrix expressly provides that all proppowers as were therein conferred. The only erty on hand at the death of Mrs. Williams intimation of a personal interest conferred bought with funds belonging to her estate upon him by the will is the request that shall be inherited equally by her surviving he and his wife occupy the house and lot sisters. Such, trust is not a mere passive aforesaid, as a home, until such time as in trust, but an active one, and requires the his judgment the interest and welfare of performance of duties and the exercise of the beneficiary would best be served by the personal discretion and judgment on the part sale thereof. It does not appear that they, of the trustee. Lanius v. Fletcher, 100 Tex. or either of them, ever saw fit to occupy 550, 555, 101 S. W. 1076. said property. Occupancy by the beneficiary Was the property subject to levy and sale as a home for herself and her husband was to satisfy plaintiff's judgment against Mrs. merely one of the ways in which the trustee Williams? Mrs. Cooper, as the owner of the in his discretion might apply the property property in controversy, had absolute right to her welfare and comfort. Until so oc- to dispose of it by her will as she saw fit cupied, it constituted a part of the trust and to put upon the title thereto and upon estate in which the trustee had no interest the right to use and appropriate the same except to discharge his duties under said such limitations as she deemed proper, protrust. The character of his holding was vided they were not in violation of law known to plaintiff. The proposition that or against public policy. She had a right property belonging to a trust estate in the to devote her own property to promote and hands of a trustee in which property such secure the welfare and comfort of her sister trustee has no personal interest is not sub- and to protect her against the vicissitudes ject to seizure and sale for his individual of fortune. Mrs. Williams gave nothing for debts is well established. 26 R. C. L. p. the benefits accruing to her under the will. 1261, $ 109.

Her ability to respond to the demands of [10] The right of a testator to give prop- her creditors was in no way lessened thereerty to one devisee with full power of use, by. It was a pure bounty conferred by her sale, and appropriation, and at the same sister, Mrs. Cooper, who had the right to time, by a devise over to another, vest in prescribe the terms upon which such bounty such other a good and valid title to so much should be enjoyed. Mrs. Cooper had the of said property as shall remain undisposed right to create a trust, to designate a trusof and unappropriated at the death of the tee, and to put the property in his han first taker, is expressly declared by our to be applied to the use, welfare, and comSupreme Court in McMurray v. Stanley, 69 fort of her said sister, free from the de Tex. 227, 234, 6 S. W. 412. The fact that mands of her said sister's creditors. Lanius Mrs. Cooper's will vested the legal title v. Fletcher, 100 Tex. 550, 555, 101 S. W. 1076; during the life of the first taker in a trustee Patten v. Herring, 9 Tex. Civ. App. 610, in no way affects the application of this 29 S. W. 388, and authorities there cited; rule. The devise over in this case of so Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 251, much of Mrs. Cooper's estate as shall be and authorities there cited; McClelland v. on hand at the death of Mrs. Williams, McClelland (Tex, Civ. App.) 37 S. W, 530, to her sisters, is a valid provision of said 358-359 (writ refused); Wood v. McClelland will. The trustee holds the property under (Tex. Civ. App.) 53 S. W. 381 (writ resusel). the terms of the will, first, for the use and [11] The right to incumber or alienate benefit of Mrs. Williams, to be applied in property is one of the usual incidents of his judginent and discretion as her interest, ownership. If the property in controversy welfare, and comfort may require, and in in this case is not subject to voluntary in

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( 248 S.W.) and not subject to seizure and sale in satis- | entire trust fund or property over to the faction of her debts it is because Mrs. Cooper , beneficiary absolutely at some fixed time has so limited the gift of the same. It was in the future. McClelland v. McClelland, sunot necessary that Mrs. Cooper's will, which pra; Wood v. McClelland, supra; Meek v. created the trust in this case, should so de- Briggs, 87 Iowa, 610, 54 N. W. 456. 43 Am. clare in express and unequivocal terms. It St. Rep. 410; Robertson v. Schard, 142 Iowa, is sufficient if it appears reasonably clear 500, 119 N. W. 529, 134 Am. St. Rep. 430, from the entire instrument construed in the 433; Barnes v. Dow, 59 Vt. 530, 10 Atl. 258, light of attending circumstances that such 201; 1 Perry on Trusts, $ 386a. was her intention, Nunn v. Titche-Goettinger [14] While trusts by the terms of which Co. (Tex. Com. App.) 245 S. W. 421, 422; the property belonging thereto is put beyond Patten v. Herring, supra.

the control of the beneficiary and exempted The will, by its terms, vests the legal title from seizure for his debts are commonly to the property in a trustee, and, while it called "spendthrift trusts,” it is not necesprovides that he shall hold it in trust for sary that the instrument creating the same Mrs. Williams, it further provides that all shall assign any reasons for such provithe same on hand at her death shall pass to sions, nor is it necessary that the beneficiary her surviving sisters. It further provides shall be in fact improvident, incapable, or that she shall have no right in the property a spendthrift. 25 R. C. L. p. 357, § 8. Such devised except for the purposes provided trusts are not sustained out of consideration therein. The purpose declared by its terms for the beneficiary. Their justification is is the application of said property to her found in the right of the testator to control welfare and comfort by the trustee, but his bounty and secure its application acsuch application is to be wholly within his cording to his pleasure. Lanius v. Fletcher, discretion and only as he, in his judgment, supra; Nichols v. Eaton, supra; In re Mordeems best for her. It does not direct the gan's Estate, 223 Pa. 228, 72 Atl. 498, 25 L. trustee to pay or deliver the property to R. A. (N. S.) 236, 237, 238, 132 Am. St. Rep. her as in his judgment her welfare or com- 732. fort may require, but to spend or pay the

We therefore answer the fourth question same himself to accomplish such purposes. as follows:

[12] Mrs. Williams, so far as the record 4. The will of Mrs. Sarah E. Cooper did shows, owned no separate property. She was not have the effect to vest title to the propindebted to the plaintiff in the amount of erty therein devised in such a manner as to the judgment sued on. The will was exe- render it, or any part of it, subject to execucuted during the pendency of the suit.

It tion for the payment of plaintiff's judgment was admitted that the value of the house against the defendants, W. N. Williams and and lot devised was small. If Mrs. Cooper's Mrs. M. E. Williams, nor either of them. whole estate were applied to the satisfaction

CURETON, C. J. The opinion of the Comof this judgment, little, if any, would re- mission of Appeals answering certified quesmain. In view of the fact that plaintiff tions adopted, and ordered certified to the was suing Mrs. Cooper at the time, charging Court of Civil Appeals. her with fraud in the acquisition of said notes and seeking to deprive her of the proceeds of same, we think it was reasonably clear that it was Mrs. Cooper's purpose to

RHODES V. STATE. (No. 7416.) provide for the application of her property to promote the welfare and comfort of her (Court of Criminal Appeals of Texas. Feb. 28, said sister and to deprive her of control over,

1923.) or right to dispose of the same, and at the | 1. Indictment and information w79–Misspellsame time to exempt said property from the ing word "year3" in referring to age of proseclaim of the plaintiff, or any other creditor. cutrix held not to vitiate indictment for sePatten v. Herring, 9 Tex. Civ. App. 610, 29

duction. S. W. 388, 391, 392.

An indictment for seduction was not insuffi[13] In the majority of cases involving cient, because in the allegation that prosecutrix such trust, the income only is directed to be

was an unmarried female “under the age of 25

misspelled applied to the support and comfort of the years,” the word "years"

"yeard." beneficiary; but such is not always the case, and the purpose of such a trust is not de 2. Criminal law Ca1122(1)-Exception to re

fusal of special charges must appear by notafeated by the fact that the trustee is au

tion or bill of exceptions. thorized in his diseretion to apply a part of the corpus of the fund to the use of the peals for review a refusal of special charges,

To bring before the Court of Criminal Apbeneficiary in accordance with the terms of the fact that refusal of such charges was then the trust. Neither is the purpose of such excepted to must appear, either on the charges trust defeated by the fact that the trustee by appropriate notation, or by separate bills of is authorized or even required to turn the exception.

was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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3. Criminal law mw 1092(13)-Exception not , 25 years” the pleader misspelled the word

approved will not be considered as having "years" and made the same appear "yeard." been presented before argument or reading Numerous authorities are cited under article of main charge.

476 of Vernon's Ann. Code of Criminal Where an exception to a charge is not ap- Procedure, in support of the proposition that proved by the trial court, it cannot be consid- bad spelling does not vitiate an indictment ered on appeal as having been presented before when the meaning is plain. the argument was begun or the main charge read to the jury.

[2] Appellant asked three special charges,

one of which was given. We cannot con4. Criminal law 1056(1)-Exception to

charge must show it was presented before sider the alleged error in the refusal of the main charge was read or argument begun.

other two charges because of the fact that Where an exception to a charge has no

neither upon them nor by separate bill of statement or notation of the fact that it was

exceptions is it made known to us that appresented to the trial court before the main pellant excepted to the refusal of such chargcharge was read or argument begun, it is in- es. It is necessary in order to bring before sufficient.

this court for review the refusal of special 5. Criminal law 603(2)—Application for charges, that either on the charges by ap

continuance for absence of witnesses in se propriate notation, or by separate bills of duction prosecution held insufficient.

exception is here presented the fact that In a prosecution for seduction, it was not such refusal was then excepted to. error to refuse a continuance, where the appli [3, 4] Appellant's exceptions to the court's cation stated that defendant relied upon his be charge appear in three separate documents lief that the prosecuting witness was not going marked A, B, and C. Exception A is not apto testify to any damaging facts against him, proved by the trial court and therefore canbased on a conversation he had with her, and not be considered by us as having been prethat therefore he had procured no process for any witnesses, the allegation being added that sented before the argument was begun or he had a witness, but without stating where he the main charge read to the jury. Kosarek lived nor why the case should be postponed to

v. State (Tex. Cr. App.) 235 S. W. 885. Exget him.

ception B has on it no statement or notation 6. Seduction w46–Corroboration of prosecu. of the fact that it was presented to the trial trix as to promise to marry held sufficient.

court before the main charge was read or In a prosecution for seduction on promise the argument begun. Neither exception A of marriage, evidence consisting of letters from nor B are presented here in separate bills. accused and of testimony by the mother of Edwards v. State (Tex. Cr. App.) 237 S. W. prosecuting witness that she had read a letter 933. which had been burned, in which he had dis

Exception presents four grounds, first, cussed his engagement with prosecuting wit- that the charge fails to instruct as to any ness, held sufficiently to corroborate prosecuting witness as to the promise to marry.

phase of accomplice testimony. Inspection

of the main charge demonstrates the incor7. Seduction an46–Prosecutrix held sufficient rectness of this exception, for the court did

ly corroborated as to carnal knowledge by tell the jury that the prosecutrix was an accused.

accomplice, etc. The second ground is 80 In a prosecution for seduction, evidence consisting of letters held sufficiently to corrobo- worded as to present nothing to us by which rate prosecutrix as to the fact of carnal knowl. we may ascertain what was intended. The edge by accused.

third and fourth grounds fail here, in view

of the fact that the special charge asked by Appeal from District Court, Polk County; appellant and given by the trial court inJ. L. Manry, Judge.

structs the jury that, if prosecutrix surJohnnie Rhodes was convicted of seduc

rendered herself to the embraces of appellant tion and he appeals. Affirmed.

on a conditional promise--that is, that if

she became pregnant he would marry berFox Campbell, of Livingston, and J. A. or unless they believed beyond a reasonable Mooney, of Woodville, for appellant.

doubt that she did not so surrender her perR. G. Storey, Asst. Atty. Gen., for the son to him upon such conditional promise, State.

the jury should acquit. This special charge

presented affirmatively the only defensive LATTIMORE, J. Appellant was convicted theory supported by testimony. There was in the district court of Polk county of seduc- no evidence offered in behalf of the appeltion, and his punishment fixed at confine lant at all. ment in the penitentiary for a period of [5] Appellant asked for a continuance, but three years.

an examination of his application shows it [1] Appellant questioned the sufficiency to be without merit. He states therein that of the indictment. Examining same, it ap- he relied upon his belief that the prosecutpears that in alleging that the prosecutrix ing witness was not going to testify to ang was an unmarried female "under the age of damaging facts against him, based on a con

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(248 S.W.) tersation that he had with her, and there Dear: I want to know what yoų are going fore he had procured no process for any to tell them when they find this out. Dear, for witnesses. He follows this by an allegation God sake, don't tell that it was me. Dear that, if he had a witness present by the please tell them that it was some one else.

Dear if this goes to court what are name of Munson, he could prove by Munson that he had carnal knowledge of prosecutrix you going to tell, are you going to talk against

me or not, Dear I hope you don't, and in first about the time of the commission of the of- place I hope you don't let it go to court. fense herein charged against appellant. It *, Your best loving friend, Johnnie is not stated where Munson lives, nor is any Rhodes.

Please tear this letter up." reason shown why the case should be postponed in order to get him. For aught that

Again in the letter written by him to prosappears in the application, Munson mightecutrix in November, after the birth of her be a resident of the town in which the trial child, we find the following: was being had, and his presence might have "I promised you that I would send you some been procured in 20 minutes.

money, but as it is I haven't got it all that I The sufficiency of the evidence is attacked. promised you, but don't you worry about that Prosecutrix testified fully to the promise of for I will try my best to get the rest of it in a marriage and also to repeated acts of carnal short time, if I can't get it all just right now I intercourse between herself and appellant, send the other as fast as I can get it. Mary I

will send you what I have on hand and I will granted on her part upon reliance upon his

am working every day and I will just send the said promise. Upon her cross-examination money to you, I guess it will be all right won't she averred that she yielded her person to it, dear. You write me and let me know if that appellant upon his promise to marry her in will be all right with you or not.” the event she became pregnant, but later she retracted said statement and undertook to

The fear and agitation of appellant that testify before the jury to the conversation this would be found out; his promise to send that was had between them at the time of her money; his intimate association with the first act. These matters of conflict were prosecutrix--are for the consideration of for the jury, and they have decided them the jury. against appellant. As above stated, this de

[7] In our opinion the testimony sufficientfensive issue was presented by a special ly corroborated the prosecutrix upon both charge in language selected by appellant's the elements required to be established in counsel.

seduction cases, to wit: The promise of mar[6] Upon the question of corroboration of riage and the fact of carnal knowledge. the promise of marriage and of the act of in this state that we do not deem it neces

These matters have been so often discussed carnal intercourse, the prosecutrix testified

sary to cite authorities. to having received three letters from appel

Finding no error in the record, the judglant, two of which were read in evidence inent will be affirmed. and the fact given in testimony that the third letter had been burned. In the burned letter she stated that appellant discussed his engagement with her. Her mother testified for the state, without objection, that ANDERSON V. STATE. (No. 7053.) she saw and read the letter from appellant in which he discussed with her daughter (Court of Criminal Appeals of Texas. Jan. 24, their engagement. This would seem to suf

1923. State's Rehearing Denied

March 14, 1923.) ficiently corroborate prosecutris upon the matter of promise to marry. On the ques On State's Motion for Rehearing. tion of carnal knowledge, it was beyond question that prosecutrix had been carnally 1. Criminal law em938(4)-Rule that undisknown by some man because she held in her

closed evidence of witness present at trial lap at the time of trial a baby born to her

will not be regarded as newly discovered

subject to exceptions. in the latter part of June, 1921, said by her

The rule that evidence undisclosed by a witto be the fruits of her connection with ap

ness present at the trial will not be regarded pellant in September preceding. In addi

as newly discovered within Code Cr. Proc. 1911, tion to the testimony of her intimate asso art. 837, subd. 6, is subject to exceptions. ciation with appellant during the fall of 1920, and of his engagement to her, the two 2. Criminal law e939(1)-Sufficient diligence letters of his introduced in evidence abound

shown to authorize new trial for newly dis

covered evidence. in expressions from which the conclusion of

Affidavits of counsel for one convicted of his carnal connection with her could easily assault with intent to murder that they conbe drawn. In March before her baby was versed with one summoned as a witness by born in June, and following a letter from the state but not called to the stand by it or her to him, he wrote her and among other defendant, that she persistently denied knowlthings we find in the letter the following: edge of any facts relative to the offense

ww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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charged, and that they first learned after the , favorable to the appellant; that efforts were trial from her employer that she claimed knowl- made to ascertain from her what she knew edge of an important fact affecting defendant's about the case, she being in attendance under claim of self-defense, showed sufficient diligence process issued on behalf of the state; that to authorize a new trial, under Code Cr. Proc. she stated in terms that she was in the house 1911, art. 837, subd. 6, on the ground of newly discovered evidence.

at the time of the fight and had no knowl

edge upon the subject. Because of these 3. Homicide w319-Newly discovered evi. statements, she was not used as a witness.

dence as to prosecuting witness possession After the trial, Sarah Daniels revealed to of pistol held sufficient to authorize new trial.

the man for whom she was working that Newly discovered evidence, after conviction she knew additional facts, but that she was of assault with intent to murder, that prose

afraid at the time of the trial to reveal them. cuting witness, who defendant claimed had This knowledge was imparted to appellant's presented a pistol at him, had taken a pistol counsel, and, acting upon it, he obtained from from the witness' possession only a few min-both Sarah Daniels and Katie Austin affiutes before the difficulty occurred, held sufficient davits which were before the court upon the to authorize a new trial under Code Cr. Proc. hearing of the motion for new trial. The 1911, art. 837, subd. 6, as against the objection affidavit of Sarah Daniels, in addition to that it was only cumulative, corroborative, and impeaching, and not likely to change the negativing any disclosure of her knowledge result.

prior to the conviction, stated that she had

gone to the dance in company with Tom Appeal from District Court, Rusk County; that Daniels' pistol was carried by Katie

Daniels, Raymond Salty, and Katie Austin; Chas. L. Brachfield, Judge.

Austin in her coat pocket; that after arrivJim Anderson was convicted of assault ing at the place where the dance took place, with intent to murder, and he appeals. Re- and after Daniels saw the appellant there, versed and remanded.

he said to Sarah Daniels that he wanted his Futch & Cooper, of Hende n, for appel- pistol; that she volunteered to go to Katie lant.

Austin and get the pistol; that she did so, R. G. Storey, Asst. Atty. Gen., for the intending to put it in the automobile; that State.

while she was in the act of doing so, Tom

Daniels caught her and took the pistol away MORROW, P. J. Conviction is for as

from her. He then went to the place where

he received the injury. sault with intent to murder; punishment

Katie Austin in her affidavit verified the fixed at confinement in the penitentiary for a period of five years.

truth of the statement made by Sarah DanAppellant struck Tom Daniels with an axe. iels to the effect that she had the pistol and This occurred at the home of Ora Neil. A that Sarah Daniels came for it, stating that dance was in progress. The parties, as well she intended to hide it. She described the as the witnesses, were negroes.

pistol and said that it belonged to Daniels, Tom Daniels testified that while he was and that it was the one he was using at the standing upon the gallery talking to Katie time the appellant struck him. Austin, the appellant, without provocation, The state filed a writing combating the struck him with an axe. Daniels said that legal sufficiency of the motion for new trial, he was unarmed, and made no threat or dem- but not denying that she would give the testionstration.

mony imputed to her in the motion for new Katie Austin, summoned by the state but trial. used by the appellant, testified that she saw The verdict of the jury finding the appelthe encounter; that Daniels pointed his pis- lant guilty and assessing the penalty of five tol at the appellant and told him not to move years, when the minimum allowed by law was or he would kill him; that appellant was two years, reflects the rejection by the jury standing against the wall and seized an axe of appellant's theory of self-defense. The verand struck Daniels with it. This was the ex-dict rests upon the testimony of the injured tent of her testimony.

party and another witness that Daniels was In the motion for new trial, it was shown not armed. Katie Austin testified that he by the affidavits of the appellant and his was armed, but the state witness Sarah Dan. counsel that they learned after the convic-iels resisted the efforts of the appellant's tion that Katie Austin knew additional facts counsel to learn the facts within her knowlfavorable to the appellant and that Sarah edge. In fact, she denied the knowledge of Daniels could also give material testimony any material facts. This is made evident by in his behalf. In these affidavits it was the uncontroverted affidavits of the appellant shown that Katie Austin at the trial dis- and his counsel appended to the motion for claimed knowing any facts save those to new trial, as well as by her affidavit. We which she gave testimony, and that Sarah understand that the state does not controvert Daniels disclaimed knowing any facts at all its truth, but insists that it would not bring

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