Woodmen of the World v. Dodd

■ LEVY, J.

(after stating tbe facts as above). Appellant for error contends that the court should have directed a verdict in its favor because the agreed facts show that the insured bad been convicted of a felony prior to bis death, and this conviction avoided the policy sued on. According to the terms of tbe policy, all rights and benefits thereunder ceased when tbe insured member “shall be convicted of a felony.” Clearly these words of tbe policy were used, we think, to denote the final result of tbe prosecution in a court. of competent jurisdiction. He must have been finally adjudged guilty. Tbe words import all that the statute of tbe state in which tbe trial is had requires before bolding tbe insured to tbe status of a convict. If the words were to be so construed as to signify merely tbe finding of the jury that tbe insured was guilty, then a forfeiture of tbe policy would be worked then and there on tbe verdict of tbe jury, although tbe trial court on motion for new trial or the appellate court on appeal should set aside the verdict on legal grounds. Tbe accomplishment of such a result to tbe rights of a member could not reasonably have been intended by a benevolent association. Evidently the purpose of inserting tbe condition in the policy was to protect tbe order against and withdraw benefits from any member who subsequently by bis violation of the felony laws was finally declared by due process of law a felon. So interpreting tbe meaning of tbe language of tbe policy, it could not be said, we think, that the insured at the time of bis death had under tbe laws of this state tbe legal status of a convict. Article 884, Code Cr. Proc. 1895, provides that tbe judgment of conviction is suspended, and does not become final while tbe appeal remains undetermined.’ Article 27, Pen. Code 1895, provides that an accused person is “a convict” only after final condemnation by tbe highest court of resort which by law has jurisdiction, and to which be may have thought proper to appeal. See Jones v. State, 32 Tex. Cr. R. 135 , 22 S.

W.

404 ; Brannan v. State, 44 Tex. Cr. R. 399 , 72 S.

W.

184 . The motion for rehearing pending in tbe Court of Criminal Appeals operated to suspend tbe judgment of conviction, and,* as long as it was pending and undisposed of, there was no final judgment of conviction against the accused. It was admitted that tbe insured died before tbe motion for rehearing was finally acted on, and therefore tbe policy was not avoided on tbe ground of a conviction of a felony, as contemplated by the policy, sued on.

Tbe appellant next for error contends that tbe evidence is insufficient to establish tbe fact that Proctor was insane at tbe time be resisted tbe officer and was killed. If Proctor were insane, then be was legally irresponsible for bis acts and conduct, and tbe policy would not be avoided. Tbe facts in evidence were amply sufficient, we think, to raise and to require tbe court to pass the issue to tbe jury, and their finding is warranted by the testimony. And we do not feel authorized to disturb the finding merely because there are contradictory facts.

*256 It would serve, no useful purpose to set out the facts.

The judgment was ordered affirmed.