author: DAVIS, Commissioner.

text:
    James Roy LUCAS and H. & H. Transport Company, Appellants, v. Virginia DAVIS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.

      A. J. Deindoerfer, James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, Pat Rankin, Stanford, for appellants.
    James F. Clay, Danville, for appellee.
   DAVIS, Commissioner.

The appellee obtained judgment against the appellants in the sum of $30,851.10 based upon personal injuries she received in an automobile-truck accident on February 10, 1963. There have been two jury trials of the action; at the first one the trial judge directed a verdict in favor of appellee, and submitted the issue of damages to the jury. The first jury rendered its verdict for ap-pellee for $30,787.50, but the trial judge set that verdict aside as excessive. It was at the second trial, wherein only the issue of damages was submitted to the jury, that the verdict and judgment on appeal resulted. The appellants assert three assignments of error: (1) The court erred in directing a verdict against appellants; (2) the damages awarded were excessive, and (3) prejudicial error was committed in refusing certain evidence proffered by appellants.

Mrs. Davis, the appellee, was in the back seat of a passenger car being driven by her son when the accident occurred. The tractor-trailer unit of H. & H. Transport Company, operated by its employee Lucas, collided with the rear of the Davis car. It appears that several vehicles were travel-ling in procession along Highway 150 between Stanford and Crab Orchard about 4:30-5:00 P.M. on the rainy, foggy afternoon in February when the accident occurred. There were two lumber trucks at the “head” of the procession; then followed two passenger cars, the first a Ford and the second a Corvair (we accept these designations for the purposes of the opinion). The Davis car was next in line behind the Corvair.

The Ford turned to its right suddenly. The driver of the Davis car testified that he did not observe any turning signal from the driver of the Ford; that the driver of the Corvair (a Plymouth, it was believed by the Davis driver) slowed suddenly to avoid striking the Ford. The Corvair pulled into the passing lane to miss the Ford as the Davis car was being slowed. Before the Davis car had come to a complete stop the tractor-trailer unit struck the Davis car.

The appellant truck-driver testified that he applied his brakes as soon as he was aware of the emergency stopping situation ahead, but that he was unable to bring his truck to a stop before it collided with the Davis car. The witnesses estimated that the cars had been travelling at 40—45 mph just before the accident, and that they had been spaced about 100-150 feet apart, although the appellant truck-driver saw that the leading cars had “bunched” somewhat just before the accident.

The road was wet and the trailer of the truck was empty. These conditions, it was explained, made it impossible to apply the brakes on the tractor-trailer continuously. The appellant Lucas said that there was a probability that his unit would have “jackknifed” had he applied the brakes at their maximum braking power continuously.

Although the driver of the Ford stopped and talked to some of the occupants of the Davis car, his identity was not learned; he did not testify, and was not a party to the lawsuit. It is the theory of the appellants that the negligence of the driver of the Ford was the sole cause of the accident, hence no verdict should have been directed for the appellee, but rather that a verdict should have been directed for the appellants.

The appellee contends that there is no jury issue because the negligence of appellant Lucas was shown conclusively to be a concurring cause of the accident even if the negligence of the Ford’s driver be conceded. We agree that appellee was not required to prove that the negligence of appellant Lucas was the sole cause of the accident. However, we have difficulty in saying as a matter of law that the appellant Lucas was guilty of negligence, concurring or otherwise.

It is conceded that the driver of the Davis car gave no hand signal of his sudden slowing of his car—and for the reason that he did not have time to give such a signal. It is true that the Davis driver did not strike any vehicle in front of him, but it is to be recalled that the Corvair pulled to the left of the road, thus giving the Davis driver some more space in which to slow down. So far as can be learned from the rather scant evidence, it appears that the Ford had cleared the highway anyway, so it did not continue to present to the Davis driver a traffic obstacle.

Although experience confirms the suggestion that the lay public entertains the notion that the law is automatically against the driver of a vehicle which strikes another from the rear, the simple truth is that the law is not so. Counsel for these litigants recognize this, of course. However, ap-pellee points to four duties violated by appellant Lucas, and insists that these violations convict Lucas of actionable negligence, thus justifying the directed verdict. The four alleged violations are listed by appellee as follows:

(1) Violation of KRS 189.340(6) (a), which directs that the operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent having regard for traffic and road conditions ;
(2) violation of KRS 189.390(1), which directs that the operator of a motor vehicle shall not operate the vehicle at a greater speed than is reasonable and prudent in light of traffic and road conditions;
(3) violation of KRS 189.290(1), which directs all motorists to drive in a careful manner with regard for the safety and convenience of pedestrians and other vehicles on the highway;
(4) violation of KRS 189.080(1), which requires the sounding of a horn or other sound device to warn of the approach of a motor vehicle.

It is clear, we think, that each of the cited statutes substantially codifies ordinary care in the circumstances at hand. A “hindsight” application of these statutory duties does not require the construction of them urged by appellee. The substance of ap-pellee’s position seems to be that since there was an accident it is apparent that: (1) Lucas was following too closely, (2) and was going too fast, (3) and was not careful and prudent, and (4) he didn’t blow his horn at all, so he was negligent. Maybe he was, but we do not find as a matter of law that he was.

It is recalled that the Davis driver found himself suddenly confronted with an emergency; he did all that he could, and by reason of the Corvair’s getting out of his way and the Ford’s turning off the road, he was able to avoid colliding with them. But he had a slightly earlier opportunity to get in "prevent defense” than did Lucas. In normal conditions — as opposed to the emergency situation here — the Davis driver should have given Lucas a signal as required by KRS 189.380(3). Lucas’ emergency conduct, precipitated by the original sudden stopping and turning of the Ford, augmented by Davis’ lack of opportunity to give Lucas a signal of his intention to suddenly slow his car, cannot as a matter of law be characterized as negligence.

The failure to blow the horn is suggested as negligence of Lucas because if Lucas had blown his horn maybe the Davis driver could and would have pulled off of the road onto the shoulder. We consider that position ingenious but not persuasive in the circumstances at bar.

Appellee cites no decision supporting her theory. There are precedents supporting the proposition that in an emergency, acts which might violate normal duties are not always negligent acts. See Phipps v. Bisceglia, Ky., 383 S.W.2d 367; Stanley’s Instructions to Juries, Section 139a. In the factual situation at bar we are of the view that the appellants were entitled to have submitted to the jury whether there was causative negligence on the part of Lucas which caused or concurred with other negligence to cause the accident and consequent injuries.

Appellants complain that the verdict was excessive, but since we are reversing for a new trial we do not reach that question; it is reserved.

Appellants offered proof that the doctor who treated appellee suffered the suspension of his license to dispense narcotics because of the doctor’s admission to being addicted to narcotics. There was no attempt to show that the doctor’s medical treatment or evaluation of appellee’s condition was colored by any incompetence of the doctor while under the influence of narcotics. In such state of case the trial court correctly refused to admit the evidence since it had no relevance.

The judgment is reversed for proceedings consistent with this opinion.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    DAHLEM CONSTRUCTION COMPANY etc., Appellants, v. MID-CITY DEVELOPMENT ASSOCIATES etc., Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.

      James W. Hendricks, Marshall, Cochran, Heyburn & Wells, Louisville, for appellants.
    Wilbur Fields, Louisville, for appellees Mid-City Development Associates and Elinore Sedley.
   HILL, Judge.

This is an appeal from a judgment denying recovery to appellants in their suit for compensation for services rendered to ap-pellees in connection with the development of a shopping center on Baxter Avenue in Louisville, Kentucky.

In March 1960, Dick Clark, a licensed real estate broker, contacted Joseph Dahlem, president of Dahlem Construction Company, and enlisted the efforts of Dahlem and his company to plan and develop a shopping center. Over a period of months, Dahlem consulted with Clark concerning details of construction plans and cost items and did considerable work in locating and contracting with tenants for the shopping center. (Our reference to Dahlem herein may relate either to Joseph Dahlem or Dahlem Construction Company or to both.)

Early in the plans for the shopping center, Mid-City Development Associates was incorporated to take title to the real estate on which the shopping center was to be constructed. (We refer to this company herein as Mid-City Associates.)

In the fall of 1961, for some reason, probably financial, the Mid-City Shopping Center, Incorporated, came into the picture. (We refer to this second corporation as Mid-City Center.)

Mid-City Center needed detailed plans and specifications in order to borrow money; so, Dahlem was requested to supply those plans and specifications. Dahlem estimated the cost of such plans from $25,000 to $30,000 and requested Mid-City Center to put up the latter amount. Mid-City Center refused and secured the plans elsewhere. Dahlem, failing to get the contract to construct the shopping center, filed this suit to recover for services rendered.

The original complaint was filed on behalf of Dahlem Construction Company, an incorporated construction company. After defendants pleaded the services claimed to have been rendered by plaintiff involved services of a realtor, architect and engineer and that no such services could be lawfully performed without licenses issued by the Commonwealth and that Dahlem did not have such licenses, Joseph Dahlem, individually, filed an amended complaint seeking to be made a party plaintiff. He alleged he was a licensed engineer and entitled to recover individually for the services rendered. Joined as defendants were Mid-City Associates, Mid-City Center, and Elinore Sedley, surety on an indemnity agreement in connection with the transfer of the shopping center property from Mid-City Associates to Mid-City Center.

The circuit court dismissed the complaint as to Mid-City Center on the theory the allegations did not justify a recovery against it for failure to allege fraud in the transfer of the property from Mid-City Associates to Mid-City Center.

The best we can determine from appellants’ brief (since most of it is devoted to anticipation of the defense) is that appellants contend they are entitled to recover under the legal theory of implied contract or on the basis of quantum meruit.

First, we examine the facts and circumstances with the hope of determining whether there was an implied contract to pay for services rendered or whether the services were performed under circumstances resulting in such benefits to defendants as would imply an obligation to pay therefor.

There was no written or oral agreement between Dahlem and defendants, although Dahlem testified on discovery that he had an oral agreement with “Tyrus Davis, who was President, President of Bankers Bond, representing Mrs. Sedley.” Further along in his testimony Dahlem was asked and replied as follows:

“Q. Now, how were you to be compensated for the work that you thereafter did?
“A. We were to be given the contract for the construction on the entire project.
“Q. To whom was that contract awarded ?
“A. The owner sold the project to McGaughey (organizer of Mid-City Center), who changed the name of the corporation.
“Q. Yes.
“A. And then Whittenberg was the contractor for the project for McGaughey.”
******
“Q. You did this, however, with expectation of being awarded the contract ?
“A. Yes.”
⅜ * * ⅜ ⅜ *
“Q. * * * and I believe it is fair to state that you did the services in contemplation of getting the contract for the construction. Is that fair to say that?
“A. Correct.
“Q. Now why didn’t you get it?
“A. They brought McGaughey, Mc-Gaughey, Jr., from Mt. Carmel, Illinois into the picture as prospective buyer and Mr. Clark called me and we met with Mr. McGaughey at our office at midnight and carried on till 6:00 o’clock the following morning.”
⅝ ⅝ ⅝ ⅝ ‡ #
“Q. Now to get back, why you failed with these dates in mind.
“A. On August 18th we gave Mr. Mc-Gaughey a proposal to build this center and one of the stipulations was this, they had to file a complete set of, they had to file plans with the Republic Insurance Company of Texas, who were going to lend two and half, three million dollars, on the deal. * * * So I talked to Bailey Ryan about how much he would charge to make up the drawings. * * * How much would he charge me as a contractor to get up these drawings to be submitted to the Republic Insurance Company of Texas so that they would have these drawings to submit to their Board so that they could ratify this loan, and then he gave me a price of $25,000. I in turn told McGaughey we agreed to have — here (referring to records) — we’ll prepare the architectural plans and engineering drawings showing each of the stores in this Mall as well as the basement, complete with cross sections, elevations and to such an extent that the insurance company making the permanent loan will be able to evaluate the construction and know what they are getting. We agreed to have these in the hands of the insurance company within four weeks from the date of contract. On this score we asked the owners to lodge the sum of $30,000 to be held in escrow at the Citizens Fidelity Bank and Trust Company and to deliver to us this sum when we deliver these plans. * * * McGaughey said no, I won’t put up a damn cent. So I said well, we can’t, we have got too much invested in this thing and I said not only that, but I don’t know you, I don’t know your intentions, whether they are honorable.” (Emphasis ours.)
******
“Q. But you turned it down because you weren’t going to put up this money in order to get the contract?
“A. That’s right.”
******
“Q. But he was holding out to you that if you did do that that you could have the contract and not Whitten-berg?
“A. Yes.
“Q. On the same terms that Whitten-berg Construction Company did ?
“A. Yes.”

Later, in open court, Mr. Dahlem stated: “There was no oral contract, just the fact that they engaged our services and Mr. Clark met with us from time to time * * *

There is no difficulty, therefore, in concluding there was no contract, either oral or written. But was there an implied contract or were beneficial services rendered defendants under conditions implying an obligation to pay?

The judgment appealed from found as a matter of fact (in approving and adopting the commissioner’s report) that: “* * * it is felt that there can be only one conclusion, and that is that the plaintiff, Dahlem Construction Company, furnished all of the services mentioned, expended all the money for travel, entertainment, and other items mentioned throughout the depositions for one self-serving purpose, and that purpose was to get for himself the construction job of building the Mid-City Shopping Center, Incorporated, and obtaining for himself the fee of $180,000 * * * that the plaintiff had no expectation of making any charges for the same; that his one and only self-serving thought was the $180,000 fee; that he gambled, and for the first time in his long business experience, he lost.”

We find no indication in the record that construction contracts on large projects, such as this shopping center, are let under competitive bidding. Perhaps due to the magnitude of such projects plans are subject to many changes; therefore, a contract based upon a percentage of cost is more advantageous to all concerned. Apparently, such contracts are let to whomever ’ the builder selects; and in the present situation, disagreement over the cost of the architect’s plans resulted in appellants’ failure to get the contract.

The finding of fact referred to above contains the answer to our question. It is concluded there was no implied contract; that appellant is not entitled to recover on the basis of quantum meruit. The findings were not clearly erroneous. CR 52.01. We have not reached this conclusion without genuine sympathy for appellant, as he devoted a great deal of time and some money to planning and promoting the project. Being the founder of the appellant company, he is a man of great experience in developments of the classification involved here. But had he desired assurance of compensation in the event he was not successful in obtaining the contract, he should have had an agreement in black and white so providing.

The commissioner’s report, approved by the judgment, also concluded that a recovery could not be had in the present case by reason of the fact that all the services were authorized by licenses (realtor, architect, and engineer) issued by the state; and inasmuch as Dahlem had no such licenses, any contract with reference thereto was void. It is unnecessary for this court to uphold or repudiate this conclusion of law by the trial court in view of our disposition of the questions of fact hereinabove discussed. It should be said, however, that it is doubtful that the facts of this case bring the services rendered within the scope of the licensing statutes.

The judgment is affirmed.


author: DAVIS, Commissioner. STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ada CARDWELL, Appellee. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Frances GREER, Appellee. (Consolidated Cases)
    Court of Appeals of Kentucky.
    Nov. 11, 1966.

      Robert Matthews, Atty. Gen., Frankfort, William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, John J. Blackburn, Department of Highways, Covington, C. Dant Kearns, Department of Highways, Louisville, Raleigh O. Jones, Glenn McDonald, Department of Highways, Louisville, for appellant.
    S.Lloyd Cardwell, Robert G. Breetz, Stites, Peabody & Helm, Louisville, for ap-pellees.
   DAVIS, Commissioner.

Appellees, Frances Greer and Ada Cardwell, were awarded damages against appellee, Department of Highways, in their claims filed in the Board of Claims. The Department appealed to the circuit court, and for purposes of this opinion, we will regard the awards as affirmed by the circuit court. (Certain modifications in the amounts of the awards were made in circuit court, but the modifications are not involved here.)

The appellees were injured when a car in which they were passengers collided with a truck owned by J. R. White Contracting Company, driven by James Smith; the accident occurred September 28, 1955. The J. R. White Company was insured by Aetna Casualty and Surety Company. The insurance company settled the claims of ap-pellees Cardwell and Greer against the White Company. Incident to these settlements the respective appellees, on September 20, 1956, executed written releases denominated as “release in full,” and reciting, in part :

“ * * * and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said J. R. White Contracting Co. and James Smith and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident to myself which occurred on or about the 28th day of September, 1955 *

The instant claims in the Board of Claims were filed September 25, 1956, asserting that the Department’s employees failed to furnish adequate notice of repair work being performed on the highway at the site of the accident.

The Board of Claims found as fact that the appellees did not intend to release the Department of Highways when they executed releases to the insurance company. This finding is supported by ample evidence. The stubborn question is whether the plenary releases served to release the Department of Highways despite the contrary intention of the parties to the release.

The question was laid to rest in Kingins v. Hurt, Ky., 344 S.W.2d 811, decided March 24, 1961. The principle enunciated in Kingins was followed in Gibson v. Dupin, Ky., 377 S.W.2d 585. The clear teaching of those decisions is that the release of one joint or concurring tort-feasor serves to release them all, and the instrument of release should be construed to mean what it says, and “ * * * unless on its face it can fairly be interpreted as reserving the claimant’s rights against other tortfeasors it will be treated as an unconditional release.” Kingins v. Hurt, Ky., 344 S.W.2d at 812. The court is not inclined to reconsider the ruling in Kingins and Gibson.

Neither may we accept the contention of appellees that the rule enunciated in King-ins should be given prospective force only. It is true that some opinions of this court have permitted absolute releases to be contradicted, and permitted consequent recovery against one tortfeasor even after the claimant had executed a full release to another tortfeasor. For example, see Deatley v. Phillips, 311 Ky. 698, 225 S.W.2d 296; Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179; Louisville & Evansville Mail Co. v. Barnes’ Adm’r, 117 Ky. 860, 79 S.W. 261, 25 Ky.Law Rep. 2036, 64 L.R.A. 574, 111 Am.St.Rep. 273, and cases discussed in them. However, we are committed to the rule that the release should preserve the right to pursue any part of a claim against another tortfeasor and failing to do so, the plain language of the release must control. The release in the Kingins case was executed in 1958, some three years before the ultimate decision of that case in this court, but its principle was made applicable to the litigants who had executed a release in 1958 — or retrospectively. We are not persuaded that claimants have been lulled into execution of full releases by virtue of reliance upon decisions of this court that the releases really did not mean what they said. On the contrary, it seems plain that no person cognizant of the law would deliberately execute a full release with a view to later asserting that the release did not mean what it said. In some instances, as noted, this court has afforded relief to persons who had inadvertently given full releases when they intended to give partial ones, but that policy is deemed inconsistent with orderly procedure. Surely it does not ask too much of draftsmen and others dealing in such instruments to take the time and trouble to have them say what is meant.

It is true that the Board of Claims made a factual finding that appellees did not intend to execute a full release, but this is not a situation which brings into play the usual rule that the factual finding of an administrative body is to be sustained if supported by substantial evidence. Rather, this is a situation in which the Board has misapplied the legal effect of the facts. In such cases the courts are not bound to accept the legal conclusions of the administrative body. 2 Am.Jur.2d, Administrative Law, Section 676.

The judgment is reversed in each appeal, with directions to enter new judgments setting aside the awards and remanding the cases to the Board of Claims for dismissal of the claim in each case.

DISSENTING OPINION

STEWART, Judge.

I am unable to agree with the holding in the majority opinion.

The primary issue raised is whether the release executed by each appellee is a defense available to appellant as a joint tortfeasor where it is shown by extraneous evidence, as was done in this case, that such was not the intention of the parties to the release.

Until recently the Court of Appeals has followed the so-called “modern view” in answering this question, as distinguished from the “common law view.” Necessarily the decisions regarding the subject have reflected different factual situations. Nevertheless, until 1961 this court consistently held that the intention of the parties to the release must be considered in determining whether or not the release of one joint tortfeasor releases the others, and that this intention could be shown by evidence extraneous to the release.

In 1904 the issue was squarely presented in the case of Louisville & Evansville Mail Co. v. Barnes’ Adm’r, 117 Ky. 860, 79 S.W. 261, 64 L.R.A. 574. There two companies were sued for jointly causing the death of plaintiff’s intestate. Shortly before trial the plaintiff accepted $1000 from one of the companies and dismissed his action against it. The trial against the other company resulted in a jury award of $2000. On appeal appellant contended that the settlement with the first company should be a defense available to it as a joint tort-feasor.

Although the opinion makes no mention of a written release, this court reviewed all the evidence surrounding the settlement and found there was an “understanding” between the parties that the settlement only applied to them and not to joint tortfeasors. It stated that, even though it was unable to find where this precise question had been considered or passed upon before in Kentucky, it concluded the great weight of authority supported the rule that the release of one joint tortfeasor is not automatically a release of all. Id., 79 S.W. page 263. As justification for adopting the rule, it relied heavily on the fact that there had only been a partial satisfaction of the plaintiff’s cause of action. This court said:

“ * * * The law ought not to be that a release of one tort feasor, by his making a partial satisfaction for the wrong done, should operate as a release of the other wrongdoers. The law looks with favor upon compromises and settlements. It is not the intention of the law to force people into litigation and prevent settlements out of court. To uphold the rule contended for by appellant, such a result would follow.”

The high lights of the Barnes case were: (1) The establishment of the rule that the release of one joint tortfeasor is not automatically the release of all; and (2) the admissibility of parole evidence to show (a) the intention of the parties and (b) the amount of satisfaction of the claim.

The importance of the “intentions” of the parties was more clearly emphasized years later in Lawrence v. Board of Councilmen of City of Frankfort, 162 Ky. 528, 172 S.W. 953. In that case the plaintiff brought suit against the board of councilmen of the City of Frankfort and Henry Ringold for injuries sustained because of their failure to keep the sidewalk in front of Ringold’s store in a reasonably safe condition. Before the trial plaintiff accepted $25 paid to him by Ringold “in full for all damages received by me and upon which suit has been brought because of the fall on the sidewalk in front of said Ringold’s store on St. Clair Street.” The city pleaded in bar to the action the execution of this release. The trial court instructed the jury that:

“They should ‘find for the defendant (city) unless they believed from the evidence that the receipt and release for $25 given to Ringold was only intended by plaintiff and Ringold as a partial settlement of plaintiff’s claim for damages, and was not intended for a full settlement of his entire claim for damages.’ ” Id., 172 S.W. 954.

On appeal this court held the trial court’s instruction correctly presented the issue to the jury. Since the release showed on its face that the plaintiff received the $25 in full settlement of his claim for damages, he had the burden of proof to overcome its result. Parole evidence of the parties and a witness to the release to the effect that it was not their intention to release the city was ruled admissible. Upon the basis of such evidence the jury had found the release was avoided as to the city.

According to an annotation to 73 A.L.R. 403, the modern “intention” rule was established in Kentucky by the case of Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179. There the plaintiff was severely injured while working for the Home Telephone Company when he came into contract with an electric wire belonging to the defendant electric company. In satisfaction of his claim against the Home Telephone Company the plaintiff accepted $750 and executed a writing which released the company from further liability. Although the release is not quoted in the opinion, it expressly reserved the plaintiff’s right to prosecute an action against the defendant electric company. It was held that this reservation was valid since the plaintiff had received only a partial satisfaction for his injury. The court also held that the defendant electric company was entitled to a pro tanto credit for the amount received from the other tortfeasor.

Although the editors of ALR cite the Beaucond case as the foundation of the “intention” rule in Kentucky, it was not as necessary for the court to go as far there as it had already done in the previous Barnes and Lawrence decisions. For in the Beaucond case it merely carried out the intentions of the parties as expressed in the release. In the former cases this court had held that the actual intentions of the parties should be carried out even though the language in the release expressed a contrary intention.

This issue was not again presented to the court until 1945, in the case of Miller’s Adm’x v. Picard, 301 Ky. 157, 191 S.W.2d 202. There Mary Jane Miller employed Joe Sprinkles, the owner and operator of a taxicab in Knox County, to transport her from Barbourville to Fount. On the return trip the sheriff of Knox County, who held a warrant for the arrest of Sprinkles, undertook to stop the taxicab for the purpose of arrest. Instead of stopping, Sprinkles attempted to run over the sheriff, which caused the sheriff to shoot at and into the cab, killing the passenger Miller.

The administratrix brought an action against Sprinkles, but while the suit was pending the parties settled for the sum of $350, upon the payment of which she executed a full and complete release. Thereafter an action was instituted against the sheriff. In his answer he pleaded the settlement of the previous action as a complete defense to the suit against him. When the administratrix declined to plead further, the trial court sustained a motion to dismiss in favor of the defendant sheriff. On appeal this court held that the question for determination was whether or not the taxicab driver and the sheriff were joint tortfeasors, for if they were the settlement with and a full release of one of them barred any action against the other. It found that a joint tortfeasor relationship existed and affirmed the lower court.

At first glance the Picard case seems to change the rule in Kentucky concerning the effect of a release of one joint tort-feasor. Actually that case is consistent with previous decisions and is not in conflict with the “modern” rule; for in the Picard case there were neither pleadings nor proof that the actual intention of the parties was anything other than that expressed in the release. The “modern” rule followed by previous Kentucky decisions was that a release of one joint tortfeasor is not automatically a release of all, i. e., if it can be shown by extraneous (parole) evidence that the parties did not have the intention to release all, and that such intention should be given effect. This court a few years later clarified any uncertainty caused by its decision in the Picard case. See Deatley v. Phillips, 311 Ky. 698, 225 S.W.2d 296.

In the Deatley case the plaintiff brought an action against the Phillips Taxicab Company for negligently operating its cab so as to cause it to collide with a C. & O. Railroad train at an intersection in Mays-ville. As a defense the cab company alleged that the plaintiff had given the C. & O. Railroad the following release:

“For this amount ($1300) agreed upon and accepted without any other consideration, promise or agreement, in full satisfaction, release and discharge of any and all claims or causes of action whatever, arising from or growing out of or in any way connected with the fatal injury to the said Leroy Deatley * * * »

In its reply the plaintiff alleged that “ * * * it is true that he entered into a certain writing, but that said writing does not contain the whole agreement made by the parties, * * * that the covenant applied to the railway company only, plaintiff to retain its cause against the taxicab company.” A demurrer to this reply was sustained; the petition was dismissed when the plaintiff failed to plead further.

On appeal, this court held the reply was not vulnerable to demurrer but raised a question of fact as to whether the release was intended to be limited to the appellant’s claim against the C. & O. Railroad and was not meant to include the taxicab owner. It also ruled parole evidence was admissible to show that the release was intended to be a settlement of the appellant’s claim only against the C. & O. Railroad, citing the Barnes, Beaucond and Lawrence cases.

All of these cases were reaffirmed in Daniel v. Turner, Ky., 320 S.W.2d 135, where this court stated that “ * * * a release of one joint tort-feasor necessarily works a discharge of all others who may be liable for the same injury unless it appears that the releasor’s claim for damages was thereby only partially satisfied and there was no intention to release other claimed wrongdoers from liability.” Since there was neither pleading nor proof which controverted the intention as expressed in the general release, the court, as in the Picard case, held that summary judgment should be sustained in favor of the defendant.

Thus, the law in Kentucky, until Kingins v. Hurt, Ky., 344 S.W.2d 811, decided in 1961, was that the release of one joint tortfeasor does nqt automatically release the others, and that evidence extraneous to the release is admissible to show a contrary intention in avoidance of the release. In so holding this court had abandoned the common law view so frequently criticized, and had gone farther than most jurisdictions in carrying out the intention of the parties. This court in the Kingins case, however, took the position that “the written instrument should be construed to mean what it says, and unless on its face it can fairly be interpreted as reserving the claimant’s rights against other tortfeasors it will be treated as an unconditional release.”

The rule which prevailed in Kentucky prior to the Kingins case, that the intention of the parties was the controlling factor and such a fact could be established by parole, has been approved by some of the leading authorities on torts and contracts, William L. Prosser in his “Law of Torts,” 3rd Ed., in § 46, on page 272, makes these statements:

“The only desirable rule would seem to be that a plaintiff should never be compelled to surrender his cause of action against any wrongdoer unless he has intentionally done so, or unless he has received such full compensation that he is no longer entitled to maintain it. If the statutes are taken into account, this is now the rule actually applied in some two-thirds of the American jurisdictions. Where there has been such full satisfaction, or where it is agreed that the amount paid under the release is so received, no claim should remain as to any other tortfeasor; but these are questions of fact, and normally to be determined by the jury, where the amount of the claim is unliquidated. The release, however, may very well be taken as a prima facie acknowledgment of satisfaction, and the burden placed upon the plaintiff to prove that it is not. The requirement that an express reservation of rights against other tortfeasors be inserted in the release itself seems unfortunate, when releases frequently are signed by plaintiffs ignorant of the law and without legal advice. If it is clear that the satisfaction received was understood to be only partial, it should not discharge the claim against the second tortfeasor. * * * f>

See also Harper and James, The Law or Torts, Vol. 1, § 10.1, p. 712.

Corbin on Contracts, 1960 Edition, § 596, page 572, lays down this principle concerning the parole evidence rule as it applies to a release of one joint tortfeasor:

“ * * * there is a definite tendency to relax the operation of the ‘parol evidence rule’ when a stranger to the writing is involved. This tendency is to be thoroughly approved when it prevents a writing from being held to be a substituted integration and discharge when the contracting parties have not so agreed. It is to be thoroughly disapproved if it it is used to establish the validity of some oral agreement (or a written one) that has been effectively discharged by a subsequent fully integrated writing (or by a subsequent oral contract). It is to be thoroughly approved in those cases where it is used to prevent what appears on the face of an instrument to be a ‘release’ of one joint obligor or joint tort feasor from operating as a discharge of another such obligor or tort feasor. In such a case, the offered testimony shows that the claimant did not intend the document to be a discharge of all of his claims or to indicate that he had accepted anything in satisfaction of all of them. For that purpose it should be admissible in any suit against anybody.” (Emphasis added.)

The Kingins case, in holding that a claimant’s rights against another tort-feasor, unless reserved, would be treated as an unconditional release, relied solely upon the Restatement of the Law of Torts, § 885(1). Prosser, as noted in the Kingins opinion, criticizes the Restatement’s view on this point.

I believe the Kingins case should be overruled insofar as it is in conflict with the principles of law affecting releases set forth in the cases decided in Kentucky prior to it and discussed in this opinion.

I would affirm the judgment.


author: GRIFFIN, Justice.

text:
    Victor HERRERA and wife, Margarita Herrera, Petitioners, v. Anita B. HERRERA, Respondent.
    No. A-11502.
    Supreme Court of Texas.
    Dec. 7, 1966.
    Stovall & Stovall, Plainview, for petitioners.

      John J. Herrera, Houston, John B. Sta-pleton, Floydada, Philip M. Shafer, Houston, for respondent.
   GRIFFIN, Justice.

This is a child custody suit in the District Court of Floyd County, Texas. Relator, Anita B. Herrera, the mother of Johnny Herrera, filed a habeas corpus proceeding alleging that Respondents Victor Herrera and wife, Margarita Herrera, the paternal grandparents, were illegally confining and restraining Johnny Herrera of his liberty. Anita further alleged that no court order had ever been entered depriving her of custody of her child and that she had not voluntarily surrendered the care or .custody of the child to anyone. A hearing was had before the court without a jury, and after such hearing the trial court found that Anita Herrera and Victor Herrera and his wife, Margarita, were each a fit and proper person to be awarded the custody of Johnny. The court further found “ * * * based upon the evidence produced in this cause, and the circumstances of this particular case, it is for the best interest and welfare of the minor, Johnny Herrera, that his custody be placed with the respondents, Victor and Margarita Herrera,” subject to the right of reasonable visitation in Anita.

Anita appealed to the Court of Civil Appeals, and that court reversed the trial court’s judgment and awarded custody of Johnny to his mother, Anita. 402 S.W.2d 782. The Court of Civil Appeals said that as a matter of law Anita was entitled to the custody of Johnny because she was his natural mother, and the trial court found that she was a fit and proper person to have custody of him and found nothing disqualifying her. The grandparents are the petitioners for writ of error in this Court.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

When Anita filed her application for writ of habeas corpus and had the child, Johnny, brought before the court on the writ, the court took jurisdiction of the person of the minor to adjudicate his custody. Mumma v. Aguirre, Tex.Sup., 364 S.W.2d 220, 221 (1963); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, 81-82 (1953); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Davis v. Sears (Comm’n App., 1931), 35 S.W.2d 99; Hendricks v. Curry, Tex.Sup., 401 S.W.2d 796, 802 (1966).

The legal custody of a minor is in the parents or the surviving parent, unless there has been a court adjudication awarding the legal custody to a third party. Of course, a court, under certain circumstances such as the voluntary surrender of possession of the child to another coupled with continuance of such possession for a substantial period of time, may terminate the custody rights of the parent when it is in the best interest of the child to do so. Knollhoff v. Norris, supra; Legate v. Legate, supra; Hendricks v. Curry, supra; Duckworth v. Thompson (Comm’n App.), 37 S.W.2d 731 (1931), for an excellent discussion of this problem.

There is a presumption that the interests of a minor are best served by award of its custody to its natural parents. The burden of proof upon the issue of the best interest of the child is upon the one seeking to deprive the natural parents of custody. Gunn v. Cavanaugh, Tex.Sup., 391 S.W.2d 723, 726 (1965); Mumma v. Aguirre, supra; Taylor v. Meek, 154 Tex. 305, 306, 276 S.W.2d 787, 789 (1955).

The trial court’s judgment in determining the best interests of the child and in awarding its custody in accordance with this determination “should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.” Mumma v. Aguirre, supra; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694-695 (1944); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 791 (1955).

Petitioners Margarita and Victor Herrera assign error to the holding of the Court of Civil Appeals that as a matter of law the mother, Anita Herrera, is entitled to the custody of her child, Johnny, because the trial court affirmatively found Anita to be a fit and proper person to have custody of Johnn}!-. They also assert that the trial court did not abuse its discretion in awarding custody of Johnny to Margarita and Victor. Anita, as respondent, asserts by counter-point of error that there is no evidence to support the trial court’s judgment, and that the trial court abused its discretion by the judgment entered.

Margarita Herrera, the grandmother, testified through an interpreter, to the following events surrounding her physical possession of Johnny. The natural parents, Jesse and Anita, told Margarita before the baby was born that she could have it. When the baby, Johnny, was two months old she took him into her home, near Plain-view, at the request of the parents and he has lived there at all times since. The parents also stayed in the home a month, but Jesse was then sent to the penitentiary. Anita, with her daughter, went to Wharton to live with Anita’s parents. Jesse was in and out of the penitentiary until two or three months prior to an industrial accident near Alpine, Texas, on February 22, 1965, in which he was injured and from which he died on February 24, 1965. This was almost eight years after he and Anita left the child with Margarita. During this time Anita neither visited nor wrote to Johnny or his grandparents.

Margarita testified further that about three years prior to Jesse’s death Anita filed suit for divorce and custody of the children. At this time Jesse was in the penitentiary, and Anita was still living with her parents in Wharton. Anita telephoned Margarita and asked for the return of Johnny. This prompted Margarita to go to Wharton to get Anita to give written consent for Johnny’s adoption. Anita’s father, in the presence of Anita, said it wasn’t necessary to sign any papers, and she signed none. During the period of events described above neither of the natural parents contributed to the support of Johnny.

Anita Herrera, also testifying through an interpreter, gave her version of the events as follows. She did not give the baby to his grandparents, rather she and Jesse agreed that the grandparents should keep the child while Jesse was in the penitentiary. The purpose of the agreement was to ease the support problem of Anita and her children. In the event of Jesse’s death she was to take the child from the grandparents (she did not testify that the grandparents were parties to the agreement or knew of its existence). Anita said that she had received an award from the Industrial Accident Board as a result of Jesse’s death and she is now able to support and educate Johnny. She also said she did not visit Johnny until May 1965, because prior thereto she did not have the money to make the trip. In May 1965, she, along with an attorney and witness at the trial, Guadalupe Torres, went from Houston, her present home, to Johnny’s school in Floydada and talked with Johnny. Johnny did not know her and said that his grandparents told him his mother and father were dead. She asked Johnny to come live with her and his two sisters, but he would not agree to this.

A consideration of the two environments involved is now in order. Guadalupe Torres testified to the type of home offered by Anita. Guadalupe lives with Anita and her two daughters in Houston. Guadalupe’s grandmother also lives with them and takes care of the children while Guadalupe and Anita are at work. Guadalupe and Anita have jobs in a Houston factory at a wage of $1.25 per hour. The children are well dressed, well cared for, and are enrolled in a school in Houston in which they attend English-speaking classes.

The environment offered by the grandparents was testified to by Margarita and several school officials from the school which Johnny attends. Margarita said that she, her husband, and Johnny live in a three-room house on a farm in Floyd County. Next door to them lives Margarita’s married son and his family. The married son has three young children to whom Johnny has become very attached and who provide companionship for Johnny. Mr. Herrera works as a farm hand when work is available and he also gets a government pension. Mr. Herrera is sixty-seven years of age and Mrs. Herrera is sixty. None of the Herrera children completed their secondary education, but Johnny is now enrolled in school and enjoys his school work. The Herreras plan to send him at least through high school.

The room mother for Johnny’s home room, Mrs. Battey, testified that as a result of her work with the school children she had become well acquainted with Johnny. She said that he is a well behaved young boy who is socially well-adjusted. His disposition reflects good rearing, parental care, and family love. The only time she has seen Johnny act belligerent or ill-adjusted was after his mother had visited Johnny at school in May, 1965. Prior to that visit Johnny had been very affectionate, but since his mother’s visit Johnny has been withdrawn.

The assistant superintendent of the school, Mr. Copeland, testified that he has never had any problems with Johnny. Johnny is in a class of Spanish-speaking students because of his inability to readily read, write, or speak English, but he is a well-adjusted boy, a leader of his class and an outstanding student with a good scholastic record. Mr. Copeland further testified that the day the mother came to school to see Johnny she did not know him and asked that he be pointed out to -her. When she told Johnny that she was his mother he said, “This is not my mother. I do not want to go with her. She threw me down.”

The principal of the school, Mr. Nicholson, testified similarly concerning Johnny’s character and quality of work. In addition he said Johnny had been very upset and was crying after his mother’s visit. The mother said she would be back when school was out that day to take Johnny to his grandmother, but Johnny did not want to go with his mother and was creating such a disturbance that his grandmother had to be called.

In the early case of Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), this Court in deciding a child custody case, said:

“ * * * The one most vitally interested, however, in its custody, during the formative period of its character, is the one whose present and future happiness and tendencies towards good or evil will be most affected by its early environments, and its physical, mental, and moral training, — the child itself. The right of the parent or the state to surround the child with proper influences is of a governmental nature, while the right of the child to be surrounded by such influences as will best promote its physical, mental, and moral development is an inherent right, of which, when once acquired, it cannot be lawfully deprived. Ordinarily, the law presumes that the best interest of the child will be sub-served by allowing it to remain in the custody of the parents, no matter how poor and humble they may be, though wealth and wordly advancement may be offered in the home of another. Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the facts, it is of the opinion that the best interest of the child would be promoted thereby.”
* * *
“ * * * We hold, as a matter of law, that it [the child] is entitled to the benefit of that home and environments which will probably best promote the interest of the infant. The question as to whose custody will be most beneficial to the infant is one of fact, of which this court has no jurisdiction, but which is to be determined in the first instance by the district court, upon hearing all the evidence tending to shed any light upon these two homes * * * in order that the court may be enabled to determine, upon the whole case, the difficult question of the fact above stated.”

This rule of law in child custody cases is of long standing. Ope of the latest expressions of this rule is found in Mumma v. Aguirre, Tex.Sup., 364 S.W.2d 220, 222 (1963), where we said:

“It is in situations with such conflicting considerations that the trial judge must be accorded the right to exercise a large measure of discretion in denying a change of custody of a child. He has an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child. His judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.”

See also Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694-5 (1944).

This Court in the recent case of Hendricks v. Curry, Tex.Sup., 401 S.W.2d 796 (1966), again recognized the right of the trial court to determine custody as between the natural mother and third parties. In that case the mother had given written consent for adoption of the child by the Currys. This consent was given at the birth of the child but was not final until the expiration of six months. Prior to the end of the six-months period the mother withdrew her consent and demanded her child. The Currys had the child adjudged dependent and neglected and with this judgment, procured a district court judgment of adoption. No notice of the dependent and neglect proceeding was given the mother. On the mother’s appeal in a habeas corpus proceeding, and also a proceeding to set aside the judgment of dependency and neglect and the adoption decree, this Court held both proceedings void as far as the mother’s rights were concerned, but severed these matters from the custody hearing and remanded the custody hearing to the district court to determine the best interests of the child.

In the present case Anita has permitted Johnny to remain in the family of Margarita and Victor since he was two or three months old. She has permitted Johnny to form family relationships and ties with his paternal grandparents. She has permitted him to grow up without contact with his two sisters while at the same time establishing family ties with his three cousins who live next door to him. During this entire period Anita has neither contributed to his support nor visited him.

In determining the question of whether the trial court abused its discretion in awarding custody to the grandparents we have considered the whole record. We hold that in awarding the custody of Johnny to Margarita and Victor Herrera, the trial judge did not abuse his discretion.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court awarding custody of Johnny Herrera to Victor and Margarita Herrera is affirmed.


author: McDonald, judge.

text:
    James TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 39502.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is burglary with intent to commit theft with two prior convictions of felonies less than capital alleged for enhancement purposes; the punishment, life imprisonment in the Texas Department of Corrections.

This is a companion case to Columbus v. State, Tex.Cr.App., 409 S.W.2d 400.

The state’s testimony reflects that the McKissack Auto Supply Company building owned by Max Rampy was entered through the roof and ceiling without consent; that a burglar alarm sounded and Lubbock police officers surrounded the building and saw the appellant run to the front door and run back; that after the officers entered the building with a K-9 dog they found appellant and Columbus behind some barrels. Appellant ran.

The prior convictions were stipulated prior to the trial and were also admitted by the appellant during cross-examination.

Appellant offered alibi testimony which the jury rejected.

We find the evidence sufficient to sustain the jury’s verdict. There are no objections nor exceptions to the court’s charge. The record contains neither formal nor informal bills of exception.

No brief has been filed by appellant.

We find no reversible errors. The judgment is affirmed.


author: MORRISON, Presiding Judge.

text:
    James Arthur COLUMBUS, Appellant, v. The STATE of Texas, Appellee.
    No. 39779.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    Rehearing Denied Dec. 31, 1966.

      William J. Gillespie (On Appeal Only), Jack McClendon (On Appeal Only), Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., J. Blair Cherry, Jr., Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is burglary with two prior non-capital convictions alleged for enhancement; the punishment, life.

Notice of appeal was given on March 10, 1966.

The record was not prepared in compliance with Article 40.09, V.A.C.C.P., but we will consider as unassigned error the questions raised by counsel on appeal in argument and by brief. Ross v. State, Tex.Cr.App., 406 S.W.2d 464.

He first contends that the court erred in permitting the prosecutor to cross examine appellant concerning prior felony and misdemeanor theft convictions. The trial court had granted appellant’s motion in limine instructing the prosecutor to refrain from asking any witnesses about prior felony convictions upon the offer of appellant to stipulate that he was the same person who had been convicted in the prior convictions alleged for enhancement.

This question was decided adversely to appellant by this Court in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, wherein we said:

“This rule, of course, does not prevent the State from questioning the accused about such prior convictions in the event he elects to testify in his own behalf, but in such event, proof of such prior convictions would be admissible only as they might tend to affect his credibility as a witness.”

The fact that the trial court may have granted appellant’s motion in limine in which it was alleged that the prior convictions were too remote would not affect the ruling of this Court in passing upon the correctness of his ruling under Crocker, supra. Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; 5 Tex.Jur.2d; p. 606, sec. 402.

The fact that appellant answered in the negative the question, “As a matter of fact you’re a pretty upstanding citizen, are you not?” would not alter the rule expressed above.

Appellant next complains that the court erred in admitting socks in evidence, because the proper chain of custody had not been shown. The socks were, according to the officers, on appellant’s hands at the time he was apprehended in the burglarized premises. The officer who recovered the socks positively identified them as the ones offered in evidence. The incriminating fact was that appellant was detected with socks on his hands inside a building which had been burglarized. The identity of the socks themselves wan immaterial.

We find no evidence to support appellant’s claim that his court appointed trial counsel was incompetent. A careful review of this record indicates that he conducted appellant’s defense with vigor and ability.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Raymond GUILLORY, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 39897.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

Appellant was convicted of murder with malice and assessed a punishment of 15 years.

Trial and notice of appeal were prior to January 1, 1966.

The statement of facts reflects the following :

On January 10, 1964, appellant entered Guillory’s Cafe in Beaumont at approximately 11:15 A.M., and proceeded to the rear of the dining area of the cafe to a booth where his wife, Eva Guillory, the deceased, was sitting. He told her that he wanted to talk to her. The evidence is conflicting as to any further conversation, but moments later appellant slapped his wife in the face. His wife then stood up and walked toward the back door of the cafe, but was stopped by appellant, and the two argued in the kitchen, which adjoined the rear entrance. According to witnesses (there were no eye witnesses to the shooting besides appellant), within minutes there was a shot, then a scream by Eva Guillory, and then another shot. Appellant then awaited the arrival of the police, peacefully surrendering himself and his gun to them when they arrived.

The police found the deceased on the floor of the cafe with gunshot wounds in her left shoulder and stomach. She died that same day from internal bleeding caused by these wounds.

There was testimony to the effect that appellant and his wife were estranged, and that his wife had filed for divorce against him; that appellant had threatened his wife at previous times because she had been dating other men; and that there had been many previous arguments between the two.

Appellant, testifying in his own behalf, stated that his wife had called him the morning of the shooting, wanting to talk with him with regard to their pending divorce action. He testified that he always carried a pistol because there had been several robberies at his place of business, and because he frequently carried large sums of money. He stated that he walked up to her while she was sitting in the booth and told her he wanted to talk with her; that she cursed him so he slapped her. He said he wanted to talk with her in the kitchen so they would be in private, but that when they reached the kitchen, he discovered that she had picked, up a butcher knife which had been on the counter. He testified that he was scared of her because he had a broken leg and she had previously attempted to kill him. He stated that while he was in this frightened state he shot her, but that he had never intended to kill her.

The evidence is sufficient to support the conviction.

No formal bills were filed by appellant, and no brief has been filed.

We have examined the informal bills contained in the record and and find no reversible error.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex parte Joseph Felice BURGE.
    Nos. 39903-39905.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.

      No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

These appeals are from the orders of the judge of a district court of Dallas County, refusing to discharge the appellant after a hearing upon the writs of habeas corpus. ■

The appellant contends that he should be released from custody on the ground that he was illegally taken into custody in the state of Oklahoma and unlawfully brought to Dallas, Texas.

A person accused of a crime committed in Texas may be tried in its courts for such crime, although he was kidnapped in another state and brought from there to this state against his will and without lawful authority. The illegal removal, as the appellant contends, does not afford him immunity from prosecution. 1 Branch (2) 304, Sec. 268; Ex parte Ponzi, 106 Tex.Cr.R. 58, 290 S.W. 170; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.

Upon the hearing of the writs, the evidence revealed that three indictments were pending against the appellant in Dallas County.

From the record, it now appears that the appellant has been tried on said three indictments and his punishment was assessed at ninety-nine years in each case.

The trial judge did not abuse his discretion in remanding the appellant to the custody of the Sheriff of Dallas County.

The judgments are affirmed.

Opinion approved by the Court.


text:
    Alberta O’BRIEN, Appellant, v. The STATE of Texas, Appellee.
    No. 39949.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.

      Waldman & Smallwood, by Charles B. Smallwood, William D. Beggs, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Thomas L. Hanna, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for murder; the punishment, ten years.

The trial was had after January 1, 1966, and notice of appeal was given on March 14, 1966.

The appellant was convicted for killing her husband by shooting him with a pistol on September 20, 1965.

The appellant assigns as error the refusal of the trial court to allow her to examine a transcript of her testimony before the grand jury.

The appellant requested and voluntarily appeared before the grand jury and testified pertaining to the charge against her in this case. A transcript was made of her testimony.

The appellant also testified in her own behalf on the trial on the merits. On cross-examination she was interrogated regarding her testimony before the grand jury.

In rebuttal the state called Wendell Rad-ford, assistant district attorney, who was assisting the grand jury at the time the appellant voluntarily appeared and testified before the grand jury. He testified in part as follows:

“Q Were you the attorney that was present and asking her these questions ?
“A I believe I asked her some and members of the Grand Jury asked her some questions.
“Q Now, I will ask you—
“A Members of the Grand Jury asked her some of the questions.
“Q Now, I will ask you whether or not these questions (apparently referring to the transcript of appellant’s testimony) were asked Alberta O’Brien (appellant) and she testified—
“Appellant’s Attorney: If it please the Court, we have not had any chance to see this or examine this. This has been in their closed files all this time. We would like to have an opportunity to examine what they are going to put in evidence here at this time.
“The Court: Not at this time.
“Appellant’s Attorney: Note our exception.”

No further request was made during the trial to see or to examine the transcript of appellant’s testimony before the grand jury. No request was made during the trial to have the transcript included in the record and it does not appear therein. The assignment presents no error.

Error is assigned in the admission of the testimony of the state’s attorney, Radford, of statements made by the appellant before the grand jury about an incident which the appellant had with the deceased prior to the date of the shooting on the ground it was hearsay.

In rebuttal the state sought to discredit appellant’s testimony given before the trial jury by showing that she had made inconsistent and contradictory statements before the grand jury.

Radford, as assistant district attorney, was present during the time the appellant appeared before the grand jury. Radford testified that he asked most of the questions directed to the appellant, that members of the grand jury asked some of them, and that he heard the testimony given by the appellant before the grand jury. The statements which Radford heard the appellant make while testifying before the grand jury were not hearsay.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Secundino Rodriguez ROSENBAUM, Appellant, v. The STATE of Texas, Appellee.
    No. 39958.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is forgery; the punishment, enhanced by two prior convictions for felonies less than capital, life.

Trial was before the court on a plea of . guilty.

Sentence was pronounced on July 20, 1966.

The only notice of appeal found in the record is by a written instrument sworn to by appellant on September 27, 1966, and filed in the trial court on October 3, 1966.

Art. 44.08(c) Vernon’s Ann.C.C.P. provides that in cases such as this notice of appeal shall be given or filed within 10 days after sentence is pronounced. Section (e) of said statute provides: “For good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such 10 days.”

Notice of appeal was not given within the time prescribed by Art. 44.08(c) C.C.P. and there is nothing in the record to show that the trial court, for good cause shown, permitted the giving of such notice after the 10 days allowed had expired.

Because of the punishment we have reviewed the proceedings and find them regular and find no merit in the claims of error.

The appeal is dismissed.


text:
    James C. WHITTINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39674.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    Rehearing Denied Oct. 12, 1966.
    No attorney of record on appeal.
    Dee D. Miller, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

This is a conviction for robbery, with the punishment assessed at seven years.

On a former day of the term, in our Cause No. 39,429, 400 S.W.2d 336, the appeal from such conviction was dismissed for want of a notice of appeal.

Notice of appeal was entered showing that it was given on June 29, 1965, and the transcript showing such notice of appeal was filed in this Court as our Cause No. 39,674.

Donald Franklin Bramblet testified that he was the manager of a liquor store and had the possession of it and the merchandise and money therein on January 23, 1965. While testifying, Bramblet identified the appellant as the person who entered the store about 7:45 p.m., January 23, 1965, went to the cash register where the employees Bowling and Moore were standing, and ordered Bowling to put the money in a sack and that no one would get hurt. When Bowling did not immediately respond, the appellant pointed a .45 caliber automatic toward him and again ordered him to put the money in the sack, which he did. At this time the appellant, looking toward Bramblet and employee Kovalt said to Bramblet, “This goes for you, too.” Bramblet took the money from the register and put it in a sack. Next, the appellant ordered them to take the money from their wallets and place it on the counter which they did. Then the appellant took the money from the counter and placed the pistol in his belt, took a bottle of cognac from the shelf, and when at the front door, told them to go to the rear room, not to look back and no one would get hurt and he left the store. In a brief time the officers were notified. Bramb-let testified that the appellant took, without his consent, more than five hundred dollars from the cash registers and forty-one dollars of his personal money, and that at such time the appellant placed him in fear of his life and bodily injury.

While testifying, - the three employees and a customer identified the appellant as the person who entered the store about 7:45 p.m., January 23, 1965, and after exhibiting a .45 caliber automatic took the money from the cash registers and the wallets of the manager and the employees. Their testimony is substantially the same as that of the manager Bramblet. The wife of the store’s customer, who was sitting in an automobile in front of the store, identified the appellant as the man who entered and left the store while her husband was in the store; and that the appellant appeared startled when he saw her in the car as he was leaving the store.

While testifying in his own behalf the appellant denied committing the robbery alleged. He testified that he left Amarillo about January 19, that he was in Mississippi on January 23, on his way to Flori■da, where he stayed until January 27, when he went to California and was arrested there on February 18. The appellant called several witnesses whose testimony corroborated that given by him. He also introduced several credit card receipts showing the purchase of gasoline by him in Mississippi and Florida on January 23 and 24, 1965. On cross-examination, the appellant admitted having a .45 caliber automatic in his possession when he was arrested in California.

The court charged on appellant’s alibi as raised by the testimony in submitting the case to the jury.

The statement of facts is in narrative form.

There are no formal bills of exceptions. No objections were made to the court’s charge and no requested charges were presented.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James W. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38998.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1966.
    Rehearing Denied Dec. 14, 1966.

      Frank Y. Hill, Jr., San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is indecent exposure to a person under the age of 16 years; the punishment, two years in jail.

Two junior high school girls, aged 13 and 14 years on the day charged in the indictment, testified that as they were walking home from school appellant brought his white Chevrolet Impala to a halt near the curb where they were walking, and, after asking them for directions, offered them each two dollars to watch him masturbate. At this time appellant had his pants open, his privates exposed and had his hand on his sexual organ moving it up and down as he spoke to them. The girls fled the scene, reported the matter to their parents and later identified appellant’s picture from a group of pictures exhibited to them by police officers.

Appellant did not testify or offer any evidence in his own behalf.

The first question which merits discussion is appellant’s motion to produce for pre-trial inspection any document in the possession of the District Attorney or the Police Chief which might be relevant on the issue of guilt or innocence or punishment. This case was tried before the effective date of Article 39.14, Vernon’s Ann.C.C.P., but even had it been tried since the Act has been in effect, such a request would have been far too broad, because the article by its terms excepts written statements of witnesses, the work product of counsel and their investigators and their notes or reports.

We further find no merit in appellant’s claim that his case should have been continued until he could secure appellate review of a civil mandamus judgment decided adversely to him, by which he sought to secure the documents in the hands of the above named officials by authority of a city ordinance which made public records available to all.

We find no error in the argument, as the same was clearly a plea for law enforcement. Henderson v. State, 163 Tex.Cr.R. 573, 295 S.W.2d 215.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


text:
    James W. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38934.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1966.
    Rehearing Denied Dec. 14, 1966.

      Frank Y. Hill, Jr., San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is indecent exposure to a person under 16 years of age; the punishment, IS years in the penitentiary.

Trial was had and notice of appeal was given prior to January 1, 1966.

Witnesses for the State, children whose ages were between eight and fourteen years at the time of the offense, testified that they were playing near a glass-walled telephone booth located near their homes. Several of the witnesses testified that the appellant was in the booth with his pants unzipped and was holding his privates in one hand while holding the telephone receiver with his other hand. They testified that appellant grinned and winked at them from within the telephone booth, then stepped outside and stated, “I will give you a dollar if you will go in the car and take a ride with me.” Several of the children then began to run from the appellant, and he got in his car and drove away. As appellant was driving away, one of the children, a 14 year old boy, wrote his' auto license number on the sidewalk, and after conferring with his father, called the police and gave information which led to appellant’s arrest.

In Cause No. 38,998, Tex.Cr.App., 409 S.W.2d 408, October 12, 1966, we affirmed the conviction of this same appellant for a similar offense that occurred only one day subsequent to the offense charged in the case at bar. During this trial evidence was admitted, over appellant’s objection, of the offense involved in No. 38,998. Cause No. 38,998 involved indecent exposure by the appellant to two junior high school girls, aged 13 to 14 years, as they were walking home from school. Appellant contends that evidence of the extraneous offense should not be admitted.

The general rule is that the accused can be convicted only by evidence showing that he is guilty of the offense charged. See 23 Tex.Jur.2d 294. However, exceptions and variations to this rule allow evidence of extraneous offenses. In the case at bar appellant testified that he might have been in the telephone booth on the alleged date, but denied that he had exhibited his privates to the children. In Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, this Court stated that proof of prior and subsequent acts are admissible if they explain and lend credence to the testimony concerning the conduct of the parties on the occasion charged in the indictment, which would not otherwise appear plausible where there was a denial of the act through testimony offered by appellant as to an alibi. In Calanchi v. State, 169 Tex.Cr.R. 97, 332 S.W.2d 722, a case involving prosecution of a father for rape of his 13 year old daughter, we stated that “The acts of intercourse which appellant had with the sister were had in prosecu-trix’ presence and were explanatory of his entire conduct toward her and were admissible for the same reason his prior acts of intercourse with the prosecutrix were admissible.” Under these authorities no error is reflected by the admission of the extraneous offense.

Appellant further contends that reversible error is reflected by the prosecutor’s asking of a question of appellant as to whether or not he had been convicted of assault with intent to commit robbery. Immediately after the question was asked, the jury was retired, and it was developed that appellant had in fact been so convicted, but that he had received a suspended sentence, which sentence had been later set aside. The careful trial judge both orally and in his charge instructed the jury not to consider the question propounded. We conclude that no reversible error was reflected by the asking of the question.

The record reflects that the assistant district attorney was aware of the fact that the prior conviction had resulted in a five year suspended sentence, but had no knowledge and had made no inquiry as to whether the judgment had been set aside and the case dismissed.

To render inadmissible the State’s inquiry of a defendant as to a prior conviction which resulted in a suspended sentence, the defendant must affirmatively prove that he made application to have the judgment set aside and the case dismissed and that such motion was granted. Herrin v. State, 97 Tex.Cr.R. 494, 262 S.W. 486.

In Maddox v. State, Tex.Cr.App., 115 S.W.2d 644, the fact of the dismissal had been made known to the court before the defendant was required to testify to the fact of his former conviction.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


text:
    Theodore Gerald MELICK, Appellant, v. The STATE of Texas, Appellee (2 cases).
    Nos. 39969, 39970.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    No attorney on appeal for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is kidnapping (Art. 1177 Vernon’s Ann.P.C.); the punishment, a fine of $1000.00.

Trial was before the court on a plea of guilty.

Notice of appeal was given after January 1, 1966.

No error was assigned by brief filed in the trial court and nothing is presented for review.

The judgment is affirmed.


author: DICE, Commisioner.

text:
    Thurman Fred SLOAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39819.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Rehearing Denied Dec. 31, 1966.

      Pat McDowell, of Maloney, Milner & McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Vance, Mike Everett and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commisioner.

Murder is the offense; the punishment, thirty-three years.

Trial was had and notice of appeal given prior to January 1, 1966.

The state’s testimony shows that on the night in question appellant and the deceased first met at a drive-in in the city of Dallas. While at the drive-in they had a conversation about a girl, Linda Minyard, who was employed at the place. At about 12:15 a. m., the deceased left with Linda and another girl to go to a house where a party was in progress. As they were leaving, appellant told Linda not to go, and while enroute to the party the deceased said appellant had stated to him “that if he picked Linda up he was going to come up there and start some trouble.” The deceased and the two girls arrived at the house at about 12:30 a. m. Some fifteen minutes later, appellant came to the house with two male companions. At such time, appellant was armed with a pistol and he proceeded to go in the house, leaving his two companions in the car. As he passed through the living room, where the deceased and Elaine Hicks were seated, appellant was heard to say that “he was going * * * to make that house into a church.” In about five minutes, appellant went onto the porch, where, in a conversation with the witness Terry Sloan, he stated he was going to whip the deceased because he had told him “not to pick Linda up.” About this time, the deceased came outside and went to the opposite end of the porch from where appellant was standing. In a short time appellant went to the deceased and the two squatted down and began talking. In two or three minutes a fight started between them, and appellant, with a gun in his hand, swung at the deceased three or four times. During the encounter the gun fired and the deceased fell to the ground, fatally wounded, with a bullet wound in the chest.

After the shot was fired, one James Cook went to the turtle of his car parked nearby and appellant told him to “stay out of it or he would shoot him.” Appellant then turned around, said he was going back into the house to whip Linda before he left, and told Terry Sloan to get out of his way or he would kill him, too. Appellant then left the premises, where deceased was lying on the ground, mortally wounded.

Testifying as a witness in his own behalf, appellant stated that the fight between him and the deceased started after he asked the deceased why he came to the drive-in and got Linda; that he first hit the deceased with his fists and when he (appellant) staggered backward the gun slipped out of his pocket and he proceeded to grab the gun and swing at the deceased with it, twice. Appellant swore that he never did hit the deceased with the gun and that he was not pointing it at him when it “went off accidentally.” He also swore that he did not intend to shoot or kill the deceased and denied that after the shooting he cursed or pointed the gun at anyone. Appellant further stated that the reason he went to the house where the killing occurred was to talk to Linda and that one of his companions suggested that “we” take the gun because they all carried guns “out there.”

The court in his charge submitted to the jury the issue of appellant’s guilt of both murder with and without malice and also submitted appellant’s defense of accident.

We first overrule appellant’s contention that the evidence is insufficient to support a conviction for murder with malice. It was within the province of the jury to reject appellant’s testimony that he did not intend to kill the deceased and that the killing was accidental. Under the decisions of this court, proof of the intentional shooting of one with a gun is sufficient to authorize a jury to find that the shooting was actuated by malice. Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123; Bell v. State, Tex.Cr.App., 398 S.W.2d 133. Malice does not require any specific length of time for its germination or growth but may be formed immediately before the act is committed and can arise instantly. Johnson v. State, Tex.Cr.App., 401 S.W.2d 837.

The facts and circumstances proven were sufficient to support the jury’s finding that the shooting was intentional and with malice.

We do not agree that because the state’s witness Terry Sloan testified, on direct examination, that “The gun went off,” the evidence showed an accidental killing. The witness did not testify that the shooting was accidental, which, among other reasons, distinguishes the case from Mancil v. State, Tex.Cr.App., 391 S.W.2d 731, cited by appellant. The mere statement of the witness that “The gun went off” does not, under all the facts and circumstances, show an accidental killing.

We find no error in the court’s charge on accident. The court fully instructed the jury on the law of accident and unintentional killing. In connection with such instruction, the court, although not required, charged the jury that the fact that appellant was armed would not deprive him of the defense of accident. We do not agree that the latter instruction in any way restricted the rights of appellant under his defense of accident. To the contrary, the instruction was favorable to him. The court’s instruction presented appellant’s defense in an affirmative manner, untrammeled and without complication with any other issue in the case.

West v. State, 154 Tex.Cr.R. 502, 229 S.W.2d 623, cited by appellant, is not here controlling, because in that case the court’s instruction on accident was encumbered with certain phases of the law of self-defense and did restrict the right of the accused under his defense of accident.

Nor do we perceive error in the court’s refusal to give appellant’s requested instruction on the right to arm himself and seek out the deceased for the purpose of asking an explanation as to the reason he had taken Linda Fay Minyard to the place where the killing occurred.

There was no issue of self-defense in the case and an instruction on the right to arm and seek out the deceased for an explanation was not called for. Sanders v. State, Tex.Cr.App., 83 S.W. 712. In Porter v. State, Tex.Cr.App., 215 S.W.2d 889, cited by appellant, there was an issue of self-defense and for that reason the case is not controlling.

Appellant complains that the court erred in permitting the state to improperly impeach two of its own witnesses: Terry Van Sloan and Linda Fay Minyard.

It is first insisted that the state was permitted to improperly impeach the witness Sloan by referring to an affidavit he had given to the police in which he stated that, after the shooting, appellant cursed and threatened to kill James Cook as the boy was going to the turtle of his car.

The record reflects that the court first sustained appellant’s objection to the inquiry on the ground that a proper predicate had not been laid and that later in the witness’s testimony he was again asked about the affidavit and testified, without objection, to certain statements therein. The affidavit was never offered in evidence. No error is presented.

Later in the witness’s testimony on redirect examination, after he had testified that appellant swung at the deceased about four times, over appellant’s objection of improper impeachment he was permitted to testify that in his affidavit made after the shooting he stated that appellant hit the deceased about four times and then shot him.

While the impeachment was not authorized under Art. 732, Vernon’s Ann. C.C.P., in effect at the time of trial, because the witness had not testified to facts injurious to the state’s case we perceive no error. Whether appellant swung at the deceased four times or hit him four times before shooting him was not decisive of any ultimate issue in the case.

Appellant’s claim that the state was permitted to improperly impeach the witness Linda Fay Minyard is not supported by the record. While the witness testified in answer to questioning by state’s counsel that she had made a certain affidavit after the shooting, neither the affidavit nor its contents were introduced in evidence so as to contradict her testimony. Under such record, there was no impeachment. Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106.

We have examined appellant’s informal bills of exception to the jury argument of state’s counsel and find no reversible error. The assertion by state’s counsel, in his argument, that “an affidavit is under oath” was a reasonable deduction from the evidence. An affidavit was referred to in the testimony. We are aware of no affidavit that is not under oath. While such argument was proper, the careful trial judge instructed the jury to disregard counsel’s reference to an oath.

The reference by state’s counsel to certain people sitting in the courtroom behind appellant as being members of his family does not present reversible error, especially in view of the court’s instruction to the jury to disregard such reference.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James A. HUGHES, Appellant, v. The STATE of Texas, Appellee.
    No. 39826.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John C. Vance, Ross Teeter, W. John Allison, Jr., and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is burglary; the punishment, enhanced by a prior conviction under Art. 62, Vernon’s Ann.P.C., confinement in the Texas Department of Corrections for 12 years.

Notice of appeal was given prior to January 1, 1966.

The record reveals that on May 13, 1965, Mrs. J. R. Johnson had driven back to her home after picking up her child from school. She could not get into her driveway because a truck was parked in it. She waited momentarily until the truck backed out of the way. Mrs. Johnson testified that there were two colored men in the truck and that the driver of the truck asked her where a particular residence was. She did not get a look at the man’s face who accompanied the driver. An inspection of the house revealed that it had been broken into and that some money and a rifle were missing. A short while afterward, when the police were at the Johnson home, the driver of the truck returned and gave back the rifle. The police took this man, Bobby Jo Tarrant, to jail. At approximately 10:30 the next morning Tarrant told the police that the appellant, James Hughes, was the man who had been with him at the Johnson home. At this time he also told the officers that his wife, who had just left the jail, had said that appellant was at the Tarrant home. The officers immediately went to the Tar-rant home to find Hughes. They did not find him there but did receive information as to his whereabouts. On this same day at approximately 11:30 a.m., the officers arrested Hughes. At 3:00 p.m. appellant gave a statement confessing his participation in the offense.

We find the evidence sufficient to sustain the verdict.

Appellant contends that his arrest without a warrant was illegal and that he was not taken before a magistrate in accordance with Article 217, Vernon’s Ann.C.C.P.

We shall pretermit a discussion of the question of the legality of the arrest since this court has held in cases such as this, where the admissibility of confessions is in question, that it is the illegal detention and not an illegal arrest which vitiates a confession. Dugger v. State, Tex.Cr.App., 402 S.W.2d 178. An examination of the evidence above recited reflects that there was ample reason to detain appellant and his detention did not vitiate the confession. Further, the failure to take appellant before a magistrate between the time of arrest, 11:30 a.m., and the time of the confession, 3:00 p.m., was not an unreasonable delay. Creswell v. State, Tex.Cr.App., 387 S.W.2d 887. This court has also held that failure to take an accused before a magistrate vitiates a confession only when there is some causal connection between such failure and the making of a confession. Grissam v. State, Tex.Cr.App., 403 S.W.2d 414, Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86. No such causal connection is here shown.

Appellant next contends that his confession was not voluntary; that it was the result of coercion, fear, duress, and threats. He also contends that he was denied due process of law because he was not informed of his right to counsel, was denied counsel, and was refused permission to make a telephone call. In a hearing outside the presence of the jury, the careful and very able trial judge heard the testimony concerning the voluntariness of the confession. He then made findings of fact, holding as a matter of law and of fact, that the confession was voluntarily made and that appellant was given the required warnings prior to the confession and signing thereof. This contention has no merit.

Appellant objected to the reading by the state of the indictment and proof of a prior conviction before the jury. This court has consistently approved this practice for the purpose of enhancement under the applicable enhancement statutes, Articles 61-63, Vernon’s Ann.P.C.; Sims v. State, Tex.Cr.App., 388 S.W.2d 714; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189.

Lastly, appellant urges two separate contentions that the prosecution committed reversible error in his jury argument. The first portion of the argument, it is contended, injected public opinion into the trial. The words which were objected to are: “Why don’t they do something about it?” and “They are talking about you.” The trial court sustained appellant’s objection to this statement. No request was made of the trial court to instruct the jury to disregard this argument, nor was a motion for mistrial made by appellant’s counsel. Apparently appellant was satisfied with the court’s ruling because he asked for no further relief. Appellant is in no position to complain of said statement. Van Skike v. State, Tex.Cr.App., 388 S.W.2d 716; Matlock v. State, Tex.Cr.App., 373 S.W.2d 237; Baker v. State, Tex.Cr.App., 368 S.W.2d 627, and Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447. We think the action of the trial court in overruling appellant’s final objection to the prosecution’s jury argument is devoid of error as we agree that the complained of argument was based upon the evidence adduced at the trial of this cause.

Finding no reversible error, the judgment is affirmed.