It seems from appellees' argument on their motion for rehearing that the decision is not clearly understood. Its basis is this: The charges, correctly interpreted, and as understood and acted upon by the appellant, constitute an accusation of rape; but appellant was not tried or expelled for rape, but for other misconduct connected with an alleged rape. If this is true, it is apparent that appellant was expelled from the lodge without due process of law. That he was tried and expelled for causes other than rape is appellee's own proposition. They cannot complain because we adopt it. They can only complain of the interpretation we put upon the charges. The trial judge said that this was the determinative question, and we found it so.
Counsel vigorously contend that appellant was not charged with the commission of the crime. They urge that he was charged simply with "violation of obligation," and with "misconduct unbecoming as a member and citizen." They say that the language, "on account of being accused of charge of rape," is no part of the charge, but is merely a clause of explanation, and that the language, "is now being tried before the court." shows positively that it was not intended to charge a crime, but "was the intention of the lodge to let the *Page 123 criminal courts handle the matter of the crime, if any, committed by Clevenger, and confined their charges to the conduct and acts of Clevenger in connection with the commission of the crime." While this may be plausible explanation, we cannot accept it as logical interpretation. In our view, the phrases just quoted must be deemed an attempt to specify the particular "misconduct" and "violation" intended to be relied upon. Certainly it is not "misconduct" or violation of obligation" to be "accused" or to be "tried before the court." No one could have thought so. Rape, however, is such "misconduct" and "violation of obligation" and is the only matter mentioned in the document which could be the basis of charges warranting investigation, trial and expulsion. The specification points to a particular act of rape. There might, indeed, be matters "in connection with" an alleged rape which would be cognizable by the lodge as offenses, but no such matters are specified or indicated. Defective as the charges are, they do point to a particular rape. If appellant had been, for that reason, tried and expelled, we are not prepared to say that the charges would have been considered insufficient. We can see no justification, however, for rejecting as a specification the only act mentioned, and reading into the charges matters not even hinted at.
It is true that the theory on which we have disposed of the case is not exactly the theory on which appellant himself has urged. It was his theory that he was expelled either because the lodge believed him guilty of rape, or because a jury had convicted him of that offense. He took the position that the charges were not sufficient to support an expulsion even on those grounds. Appellees, however, by their answer, proofs and contentions, brought into the case the very material fact that appellant was not tried or expelled for those reasons. So doing, they eliminated the only theory on which the charges could be held sufficient.
Interpreting the charges as they did, appellees, in the effort to sustain them, undertook the burden of *Page 124 showing from attendant circumstances, known to appellant, both that the lodge intended the charges, and that appellant understood them, as counsel now construe them. If it were admitted that the lodge actually so intended them, it would not satisfy the burden which appellees thus assumed, because, as stated in the original opinion, appellees, by their own showing, have convinced us that appellant did not so understand them. They now urge that appellant did not testify that he understood that he was being put to trial for rape. This fact is accounted for, we think, by the peculiar condition of the pleadings and course of the proceedings, upon which we deem it unnecessary here to elaborate. They also urge that the trial court found to the contrary upon substantial evidence. We do not so understand. The trial court made no finding as to appellant's understanding of the charges, but based his decision squarely upon his interpretation of them.
Holding these views, we must overrule the motion for rehearing; and it is so ordered.
PARKER, C.J. and BICKLEY, J., concur.