author: L. F. COTTEY, Special Judge.

text:
    Margaret M. JENKS, (Plaintiff) Respondent, v. Morton JENKS, (Defendant) Appellant.
    No. 31704.
    St. Louis Court of Appeals. Missouri.
    Nov. 17, 1964.
    As Modified Dec. 22, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 22, 1964.
    Application to Transfer Denied Feb. 8, 1965.

      Bartlett, Muldoon, Stix & Bartlett, St. Louis, for appellant.
    Bryan, Cave, McPheeters •& McRoberts, St. Louis, for' respondent.
   L. F. COTTEY, Special Judge.

Margaret M. Jenks, respondent herein, obtained a divorce from Morton Jenks, appellant, in the Chancery Court of Pulaski County, Arkansas, in 1956. The decree awarded respondent the custody of the four children born of the marriage, the eldest of whom, Constance, was then ten .years of age. The court approved and incorporated in its decree a contract executed by the par-tics on the ‘eve of their divorce whereby they undertook, inter alia, to remove all foreseeable sources of future discord between them with regard to the education of their children. The precaution itself, however, has produced further dissension. In the litigation now before us theValidity of the provisions relating to the children’s education is challenged. Those provisions were contained in Paragraphs 8 and 9 of the contract, reading as follows:

“8. The parties shall consult with each other regarding the education of the children and when a child is ready to enter the eighth school grade the parties shall mutually agree in writing upon the school such child shall attend. It is contemplated that each of the children shall have an opportunity to attend an Eastern school, college or university. If the parties are unable to agree upon the school to be attended by any child, the matter will be submitted to arbitration, as. herein provided.
“9. If the parties are unable to agree upon the selection of summer camps as provided in Paragraph 5, or upon schools or colleges as provided in Paragraph 8, the matter shall be submitted for determination to three arbitrators, one selected by the husband, one by the wife, and one by the presiding judge having jurisdiction in domestic relations matters in the judicial district where the children reside. Determination of any two arbitrators shall be final and binding on the parties.”

The decree closed with this recitation: “The court retains jurisdiction for the purpose of enforcing this decree.”

Following the divorce both parties, with the children in the custody of their mother, removed to St. Louis County, Missouri, where they have since resided. In advance of Constance’s seventeenth birthday, and in anticipation of her eligibility at that time to apply for enrollment in an Eastern boarding school,, appellant invited respondent to discuss with him the selection of the school which the child should attend. Respondent declined, asserting that the provisions of the decree in that particular were unenforceable. Thereupon, as a first step in obtaining a judicial resolution of the dispute, appellant filed in the Circuit Court of St. Louis County a petition praying for the registration of the Arkansas decree under the provisions of our Uniform Enforcement of Foreign Judgments Law, Sec. 511.760, V.A.M.S. His petition was allowed, the decree was ordered registered, and the cause was assigned to the Domestic Relations Division of that court. On the same day, in that Division, appellant filed a motion denominated “Defendant’s Motion for Order to Enforce Decree of Divorce, or, in the Alternative, for Modification of Decree.” This motion (a) recited the entry of the Arkansas decree and its subsequent registration in Missouri, (b) directed the court’s attention to Paragraphs 8 and 9 of the contractual provisions incorporated in the decree, (c) averred the desirability of making a prompt selection of an Eastern boarding school to be attended by Constance, (d) complained of respondent’s refusal to discuss that question, (e) voluntarily conceded that the arbitration procedure set out in Paragraph 9 of the contract was “wholly unenforceable,” (f) declared that for that reason “defendant has no remedy to enforce said decree with respect to the education of Constance otherwise than by this motion,” and (g) concluded with a prayer that the court require the parties to meet and discuss “in good faith” the selection of an appropriate Eastern boarding school for the child to attend, and, in the event of their inability to agree, that “the Court make the decision as to school attendance, and, if appropriate, make such selection for the parties and direct the parties and each of them to sign an application for such admission and enrollment,” — and for -such other relief “as to the Court may seem best for the interests of said child.”

Respondent countered with a motion to vacate the order directing the registration of the Arkansas decree because it “is not entitled to be registered under the Uniform Enforcement of Foreign Judgments Law,” and to dismiss appellant’s motion for enforcement or modification of the decree for the reasons (a) that “the relief sought by said motion is beyond the jurisdiction of this court to grant,” and (b) that “said motion wholly fails to state any claim upon which relief can be granted.”

On the basis of the record made by those pleadings the trial court summarily sustained respondent’s motion and dismissed appellant’s. The grounds upon which that ruling was based were not specified. This appeal ensued.

To sustain that portion of the trial court’s ruling vacating the registration of the decree, respondent advances the proposition that the Arkansas court still retains jurisdiction of all aspects of the case involving the welfare of the children, expressly to enforce the decree on their behalf and inherently to modify it as their interests may from time to time require; hence, that to that extent the decree is not final and is therefore not entitled to full faith and credit, an essential prerequisite to its registration. From that premise, by a process of reasoning more distinguished by fervor than by clarity, respondent concludes (a) that registration of the decree in Missouri would have the effect of investing it with the quality of finality which it otherwise lacks, (b) thereby precluding a Missouri court from afterwards modifying it in any particular involving the welfare of the children, with the result (c) that any court authorizing the registration of the decree, or lending its countenance to that procedure, “would, in essence, abrogate its position and honored function of parens patriae of Constance Mathews Jenks.”

We do not share respondent’s apprehensions. Essential to the unhappy consequence she foresees is her assumption that ,.a divorce decree cannot be said to be final as to any aspect of the. adjudication over which the rendering court retains supervisory control. We think the assumption is not allowable. Every adjudication affecting the custody of the parties’ children in such cases is necessarily prospective in its operation and, by reason of that very quality of prospectiveness, is subject to future review and modification in the light of changed conditions. Indeed, a court has no jurisdiction to render an immutable decree settling for all time the custody and welfare of the parties’ children. In re Krauthoff, 191 Mo.App. 149, 177 S.W. 1112, 1119; 27B C.J.S. Divorce § 317(1) a, p. 521. But that circumstance, or that peculiar incident of divorce decrees, has never to our knowledge been held to destroy the final and conclusive character of the decree. On the contrary, the rule is that the decree is not deprived of “the usual attribute of conclusiveness” even though the award of custody (a) “is made subject to the further order of the court,” or (b) is by statute made subject to the court’s continuing control, or (c) is based upon an agreement between the parties. 27B C.J.S. Divorce § 316e (2), p. 509; 9 R.C.L., § 293, p. 477. Following that rule this court In re Leete, 205 Mo.App. 225, 223 S.W. 962, 966, held that under Section 1, Article 4, of the Constitution of the United States, a Massachusetts divorce decree was entitled to full faith and credit in Missouri, “ * * * not only as a decree of divorce dissolving the bonds of matrimony previously existing between petitioner and respondent, but as an adjudication concerning the custody of the children and the fitness of each parent thereof, in respect to all matters pertaining thereto up to the time of the rendition of said decree.” See, also, Wood v. Wood, 241 Mo.App. 367, 231 S.W.2d 882, syll. 2. And, for whatever collateral interest it may have,' it is an undeniable fact that a Kansas divorce decree providing for monthly payments by the husband to the wife for the support of a child whose custody was awarded to her has actually been “duly registered” in Missouri under the Act, notwithstanding ;such provision was obviously prospective in its operation and subject to future modification by the rendering court upon a showing of changed conditions. Mangold v. Mangold, Mo.App., 294 S.W.2d 368.

No authority cited by respondent, and none discovered by our own research, contains any principle suggestive of the rule for which she here contends, or any pronouncement in conflict with the views we have expressed. Our conclusion is that the Arkansas decree was final, in every proper sense of the word, and was entitled to full faith and credit in Missouri; that it was therefore properly registered under the Act and must henceforth be regarded as a final decree of the Circuit Court of St. Louis County, to the same extent and with the same effect as though originally rendered by that court. Mangold v. Mangold, supra, 1. c. 369. Accordingly that portion of the trial court’s order vacating the registration of the decree is reversed.

We have next to consider whether the decree should be enforced in respect of the provision relating- to Constance’s attendance at an Eastern boarding school, and, if so, upon what principles. And to the end that the question may receive the consideration to which the excellence of the briefs entitles it, we propose to develop the inquiry along parallel lines, on the one hand to decide whether appellant is entitled to enforcement as a matter of right, that is, on the basis of established principles of equity in the application of which the child’s welfare is not of primary concern, and on the other to determine whether, out of solicitude for the child’s welfare, we should give • effect to the provision in question even though some modification of the decree may be necessary to accomplish that result. Preliminarily, to dispose of three incidental questions raised by respondent, we will say:

(a) That we do not regard the issue in this case as moot simply because the term of school has expired at which appellant sought to compel Constance’s enrollment. There will be other terms that will serve as well. Moreover, the rights of the parties with respect to the education of their other children will necessarily be tested by our decision here. In all its material aspects, therefore, the controversy remains alive. Relief is not to be denied merely because the court’s determination of its propriety is unavoidably delayed; for justice, despite Lord Coke’s claim for the courts of the fairs of his day, cannot always be “done as speedily as dust can fall from the foot.” And if those reasons were to be deemed inadequate, then, having regard for the novelty of the question and the possible public interest in its solution, we would exercise our “right of unlimited discretion” to complete our deliberation of the case and enter a final judgment on its merits. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8, 10.

(b) That we do not regard the use of the word “contemplated” in Paragraph 8 of the contract, or any other word there employed, as having introduced into its language such a degree of ambiguity as to render it unenforceable on that account. Denker v. Twentieth Century-Fox Film Corp., 26 Misc.2d 1035, 210 N.Y.S. 241.

(c) That we do not regard the proposed modification of the decree in this case as working any change in the physical custody of the child, since it relates only to a detail of her education; hence it is unnecessary that appellant’s request for it be accompanied by proof of a change in conditions since the entry of the original decree. Mathews v. Mathews, Mo.App., 337 S.W.2d 529, 533. “In proceedings of this character, where the welfare of minor children is at stake, no technical rules of objection should be given serious consideration * * Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 460.

And before entering upon the main inquiry it may also be well to review some general principles which bear, with varying degrees of directness, upon the issue before us. For instance, it seems to be well settled that in a divorce case the court is permitted, at the invitation of the parties or with their consent, to adjust the property rights of the spouses and to prescribe for the welfare of the children to an extent and in a manner that would not otherwise be allowable. Crews v. Mooney, 74 Mo. 26; McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 739; Landau v. Landau, Mo.App., 71 S.W.2d 49, 50-51; Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513, 517. And when the court, in response to such an invitation, disposes of those collateral issues by incorporating in its decree the provisions of a contract which the parties have reached on the subj ect, the contract becomes merged in the decree and the decree is to ■ be regarded as a “judgment by consent.” Luedde v. Luedde, supra, 211 S.W.2d 1. c. 517. Thereafter the contractual provisions are to be enforced as an order of the court, and may be reformed or amended only by a modification of the decree. 27B C.J.S. Divorce § 301(2) a, p. 411 et seq. But all of this presupposes a contract sufficiently complete and definite in its terms to have been independently enforceable, for the doctrine of merger will not be carried any farther than the ends of justice require, 50 C.J.S. Judgments § 599, p. 22, “ * * * and the court has no power to add conditions or provisions on which the parties have not agreed,” 49 C.J.S. Judgments § 177, p. 314. Moreover, “Since a judgment by consent is regarded as a contract between the parties, it must be construed the same way as any other contract,” 49 C.J.S. Judgments § 178, p. 314, “-* * * and, when the essential rights of the parties are influenced by the original contract, the court will look behind the judgment for the purpose of ascertaining what the original contract was,” 50 C.J.S. Judgments § 599, p. 23; State ex rel. Pullum v. Consolidated School Dist. No. 5, Mo., 233 S.W.2d 702, 705; Ballard v. Standard Printing Co., 365 Mo. 552, 202 S.W.2d 780, 782. Finally, in a proceeding of this nature, possessing as it does, so many of the incidents of an equitable proceeding, we should, wherever appropriate, apply equitable rules. Link v. Link, Mo.App., 262 S.W.2d 318, 320; I. v. B., Mo.App., 305 S.W.2d 713, 722.

Turning, now, to the first phase of the inquiry, and confining it for the moment to the contract itself, it will be seen that Paragraph 8 divides easily into three parts: (a) an acknowledgment of the parties’ harmony of purpose in proposing that Constance be educated at an Eastern school; (b) a 'declaration of their intention to select the particular school by future 'agreement between themselves; and (c) the adoption of the arbitration procedure outlined in Paragraph 9 as the method by which such selection should be made in the event of their inability to • come to agreement on it. We are relieved of the necessity of discussing the arbitration procedure, however, by reason of' appellant’s formal admission that it is “wholly unenforceable,” a position he took in the trial court and has since maintained here. He predicated that concession on Sec. 435.-010, V.A.M.S.; but we will add that it has long been the law in Missouri that agreements to arbitrate will not be specifically enforced by courts of equity. King v. Howard, 27 Mo. 21, 25; Tureman v. Altman, 361 Mo. 1220, 239 S.W.2d 304, 309, 26 A.L.R.2d 729. The contract must therefore be construed as though Paragraph 9 (and all reference to it in Paragraph 8) was deleted from it. What remains, then, of Paragraph 8? Nothing, we think, that is identifiable as a contract; nothing that is susceptible of enforcement in any way by any court on any principle known to the law of contracts. What we have left is an indication that at the time the document was drafted the parties had in mind the possibility, or even the probability, that it would be to Constance’s advantage to attend an Eastern school when she arrived at the proper age; that was what was “contemplated.” But implicit in that notion, and inferentially confirmed by the other recitations, was the thought that until the child reached the age for enrollment and by her approach to maturity placed her parents in possession of more certain knowledge as to the nature of her talents and the direction of her inclination, and hence in a position to choose the particular school best suited to her aptitude, it would he improvident to specify a choice. It was the designation of the particular school, made in the light of that knowledge, that was the ultimate object of the contract, just as it is the ultimate object of appellant’s motion. But it was not secured by the contract. On the contrary, it was deliberately reserved for future negotiation and, failing that, for arbitration. We have nothing, therefore, except an agreement to agree in the future on the single material object the parties intended to accomplish. Such an agreement is a nullity. “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” Rosenfeld v. United States Trust Co., 290 Mass. 210, 195 N.E. 323, 122 A.L.R. 1210, 1216. “There can be no contract so long as the essential terms thereof are reserved for the future determination of both parties.” Brown v. Childers, Mo.App., 254 S.W.2d 275, 281. “Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect * * 17 C.J.S. Contracts § 49, p. 702; and again, at p. 704, “Where an essential element is left for future agreement, there is no contract * * *.” The most that could be said for the agreement in this case, if we were inclined to go that far, is that it imposed a moral obligation on respondent. But, “In a proceeding in equity, as this case at bar is, a court of equity cannot decree specific performance of a moral duty, cannot enforce a duty that is one of conscience.” Brewer v. Cary, 148 Mo.App. 193, 127 S.W. 685, 692.

We shall not concern ourselves with the provision requiring the parties to “consult with each other regarding the education of the children.” Consultation without eventual agreement would be fruitless; and since agreement cannot be compelled, equity will not indulge the futility of ordering the parties to “meet together” to discuss “in good faith” the very problem on which they have demonstrated their inability to agree. 81 C.J.S. Specific Performance § 14, p. 438 and § 16, p. 439 ; 30 C.J.S. Equity § 13, p. 333. Our conclusion is that the parties’ contract, in the particular under consideration, was wholly unenforceable.

The decree is in no better condition. It simply carries forward and incorporates the infirmities of the contract. It provides no method for the enforcement of that portion of it in which Paragraph 8 is merged, aside from the sterile arbitration procedure. There is no alchemy in the doctrine of merger by which a court can transmute into a valid and enforceable provision that which is otherwise invalid and unenforceable. We are not invited to resolve the issue by resort to the court’s inherent punitive powers, as, for instance, by citing respondent for contempt; and we would in any event refuse to do so. Such a procedure could result only in coercing respondent’s acquiescence in whatever decision appellant chose to insist upon, an event neither within the contemplation of the parties nor within the power of the court to compel in the proper exercise of its prerogatives. 17 C.J.S. Contempt § 32, p. 89. As the decree now stands, therefore, that portion of it in which Paragraph 8 of the contract is merged can only be carried into effect by the voluntary act of the parties. Appellant is not entitled to enforcement of the decree as a matter of right; in fact, absent a material modification it is not enforceable at all.

We address ourselves, then, to the second phase of the inquiry: Whether, out of solicitude for the child’s welfare, we ought to modify the decree so as to give effect to the intendment of Paragraph 8 by arbitrarily designating the school ourselves which Constance shall, attend. The rule with respect to the modification of decrees based upon contracts is that where the subject of the contract is one which the parties are authorized to dispose of finally by that method, as, for instance, by substituting- a voluntary undertaking for an award of alimony, the decree may not be modified in such a way as to change the contractual obligations of the parties. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 587, 109 A.L.R. 1061; Davis v. Davis, Mo.App., 196 S.W.2d 447, 452. A different rule prevails, however, where the object of the contract, and hence of the decree in which it is merged, is to provide for the welfare of a child of the divorced parties. On that subject it is well settled that no contract of the parties will be binding and no decree of the court immutable, but the one may be disregarded and the other modified from time to time as the welfare of the child may require. Green v. Green, Mo.App., 234 S.W.2d 350, 351; Messmer v. Messmer, Mo.App., 222 S.W.2d 521, 524; 27B C.J.S. Divorce § 311, p. 475, and § 317(1) a, p. 521 et seq. There is no magic in that phrase, “welfare of the child,” however. It is no open sesame to unbridled judicial discretion ; it is no talisman by which the court’s jurisdiction can be stretched beyond its limits. Perhaps this is as good a place as any to comment on the subject.

From the frequency with which “welfare of the child” has been stressed by the courts as the basis for all decisions affecting its custody, and from the insistence with which it is urged by the litigants upon any pretext, both at the time of the making of the award and on the occasion of every subsequent modification of it, the impression seems to have been conveyed that it is the only consideration to be reckoned with in reaching those decisions. The language of some of the cases, being either too loose or too cryptic, lends color to that view. But it is misleading. The protection of the child’s welfare has indeed been the object of the courts in custody cases from earliest times; but the attainment of that object requires the observance of principles considerably more practical and less nebulous than a mere declaration of beneficent purpose. Long experience with wardships has taught the courts that in this field (as in most others) a prudent regard for their own limitations is essential to the orderly discharge of their duties. Courts are not so constituted as to be able to regulate the details of a child’s upbringing. It exhausts the imagination to speculate on the difficulties to which they would subject themselves were they to enter the home or the school or the playground and undertake to exercise on all occasions the authority which one party or the other would be bound to ascribe to them. Considerations of the most practical kind, therefore, dictate that in these cases the duty of attending to the details of the child’s rearing be delegated to a custodian, and, as an indispensible concomitant of the appointment, that the custodian be vested not only with commensurate authority but with that degree of discretion upon which the expeditious exercise of authority invariably depends. It must be presumed in the absence of a contrary showing that the custodian, whether he be the child’s parent or a stranger, will discharge his duties with fidelity and good judgment. If he fails, the remedy is to remove him, not to retain him as a mere figurehead. Surveillance of his activities, however close, will never supply his lack of interest or his want of judgment. Accordingly, the court in its original decree ought not specify, nor afterwards by modification prescribe, the manner of the performance of his duties with such particularity as unnecessarily to abridge his discretion. In fact, once the responsibility has been delegated, no further decision should be required of the court save to prevent the abuse of the child or the neglect of his essential interests. Thus, while the court ought continually to supervise the decisions of the custodian, it ought only rarely to dictate them. Any other policy will surely oblige the court to assume every responsibility which it denies the custodian the discretion to discharge, and, in its farthest extension, substitute judicial paternalism for custodial responsibility.

In this case the education of Constance at an Eastern boarding school is urged upon us as a matter directly involving her welfare! Education is an important aspect of every child’s welfare, to be sure, and there is no doubt we have supervisory control over it. Equally important to the child’s welfare, or surely hardly less so, is her health and diet, her social and moral training, and so on, over which we also have supervisory control. But is it to he supposed that in the proper exercise of our authority we could, upon someone’s objection to her diet, prescribe oatmeal for her breakfast, or an apple a day? Or that, upon complaint being made to us, we could require that she be instructed in the niceties of etiquette, or denied access to the bulk of modern novels? Or that, upon the point being called to our attention, we should direct her custodian to have her vaccinated for smallpox, but only at a private hospital ? Upon what basis, then, can we justify our designation of the particular school she shall attend ? And if we were to find in that detail an expedient for the exercise of our authority, how should we then avoid being called upon to decide her course of study, or how evade our like responsibility for dictating the time to be spent in the preparation of each lesson?

We are dealing with a decree which awarded the custody of Constance to respondent with no (legally enforceable) restraint on her right to select whatever school she deemed best suited for the child’s education. It is stated in the briefs that Constance is attending Mary Institute in St. Louis. Whether that be true or not, it is fairly inferable that she is attending some school, and appellant makes no complaint as to the adequacy of the instruction she is receiving there. Judicial conscience is satisfied, and judicial interest exhausted, when it 'appears that the child is being afforded an education reasonably adapted to her capacity and aptitude, at an accredited institution of the general class to which other children of her background and means have access. If it should develop at any time that Constance is being denied an education substantially in conformity with those standards, it will be appellant’s privilege, indeed his duty, to approach us with the problem. But the record before us gives no cause to apprehend that respondent will be derelict in her duty to her daughter, and no excuse for engaging in what could otherwise amount to nothing more than an unwarranted interference with her discharge of that duty.

So much for the decree as written. As it is correlative to our inquiry and illustrative of our point of view, however, it may not be' inappropriate to say that in our opinion the decree would have been equally unenforceable even if the contract on which it was based had either (a) specified.the particular school which Constance should attend, or had (b) required respondent to make that selection at the appropriate time from a suggested list or from the general category known as “Eastern boarding schools:” (a) Upon the first hypothesis, because the making of such an agreement by the person afterwards to be entrusted with the child’s custody, and at a time when the immaturity of the child made the designation of a preparatory school for her patently imprudent, would amount to a bargaining away of the child’s best interests, and an advance abdication by the custodian of all responsibility in that particular — and this in favor of one who, having been denied the child’s custody, could thereafter have no authoritative voice in her upbringing, (b) Upon the second hypothesis, because the selection of an appropriate school for the child from any list would necessarily require respondent to exercise intelligent judgment and sound dis-. cretion — and while that may be expected of her as the child’s custodian, equity cannot compel it as a contractual obligation.

Appellant relies on Mathews v. Mathews, Mo.App., 337 S.W.2d 529, as opposing the views expressed in this opinion. In the Mathews case the decree awarded custody of the children to the wife and provided (evidently on the basis of a contract between the spouses) that the husband should pay the tuition for the attendance of each child at such school as the parties might select by future agreement between themselves, “and in case of inability to come to agreement they shall resort to the court for its decision.” Thereafter the wife proposed to send one of the children, Patricia, to Mary Institute, but the husband, although conceding that Mary Institute was in all respects an excellent school for the child to attend, refused to give his formal assent ttnless the wife would consent to a drastic modification of other provisions of the decree. This she declined to do. In the face of that impasse she enrolled the child in Mary Institute on her own responsibility, and then filed a motion in the original suit to compel the husband to pay the tuition which he was admittedly able to afford. We were at some pains to point out in our opinion in that case that the husband did not challenge the authority of the trial court to insert the provision in question in the original decree. Neither its propriety nor its enforceability was at issue. We simply held that, where an admittedly proper decision on the subject of the child’s schooling had been made by her custodian, the husband’s consent to the arrangement was not a prerequisite to the court’s approval of it; that the withholding of his consent could not excuse his refusal to pay the tuition. In so holding we conformed to the principles expounded in this opinion, although it is true we did not make specific reference to them. The issue in the Mathews case could have been decided with the same result by simply declaring the decretal provision in question to be void. And no doubt that would have been the decision had its validity been questioned. In any event, however, the opinion in that case is not to be construed as conflicting with the principles approved in this, but rather as being in harmony with them in all essential respects.

Respondent relies on Brewer v. Cary, 148 Mo.App. 193, 127 S.W. 685, as supporting the views expressed in this opinion. In that case we were required to pass upon the enforceability of an ante^ nuptial contract wherein die spouses had agreed that any children born of their marriage should be reared in the Catholic faith. Agreements of that type have almost uniformly been held to be unenforceable, 11 Ala. Law Review 354, and that was our holding. The case is not sufficiently in point to constitute a true precedent, but in the course of deciding it we made some observations that are pertinent here. For instance we said, 127 S.W. 1. c. 688, “ * * while the education of the ward will be directed by the court to be suitable to his prospects and condition in life, ‘the manner and course of the education and of its details are left to the judgment and discretion of the guardian’ * * Again, 1. c., 689, “ * * * the appointment of a guardian, or leaving the infant in the care of its parent, commits to the natural or appointed guardian the determination of matters of education, both secular and religious * * And again, 1. c., 689, we declared the rule to be “ * * * that he to whom is committed the custody of the infant is the one to direct its training and education, and that, if it is shown that he is not the proper party to be charged with this trust, he is to be removed from the trust.” And yet again, 1. c., 690, “In no case have any of our courts directed a guardian remaining in control and custody of the ward, whether that guardian is the father, mother, or one appointed by the court, as to what particular course of education or training, secular or religious, is to be pursued.” And finally, 1. c., 692, “ * * * the right of custody as guardian, whether natural or by appointment of law, carries with it, as one of the incidents involved, the right as well as the duty to direct its training, its education, religious and secular, its conduct — in fact, confers the right of a parent, with all its incidents— that these arc of the very essence of the appointment of guardians, and lie at the foundation of the right of custody itself; that no court will interfere directly in directing such matters, save when convinced that the welfare of the child demands it.”

We regard those comments from the Brewer case as being in accord with the views expressed in this case and with the rule appearing in 17A Am.Jur., Sec. 831, p. 23, where it is said: “The court will not compel the parent awarded and retaining the custody of a child to send it to a hoarding school, or even to a private day school. The custodian is the one to decide the extent of the education of a child beyond that provided by the state school system.”

Only two other cases of the many that have come under our scrutiny are sufficiently in point to merit notice here. One did not mention (and may therefore he regarded as having implicitly rejected) the principles we have reviewed; the other approved them. In Belknap v. Belknap, 265 Ky. 411, 96 S.W.2d 1012, the court granted a divorce to the husband on appeal, but awarded the wife the custody of the children during the school year, and then inserted in its decree without discussion this provision, 96 S.W.2d 1. c. 1013: “In case of disagreement of the parties as to where the children shall attend school, the matter will be submitted to and deter- 1 mined by the chancellor.” Our opinion of that provision has been made sufficiently clear. In Bennett v. Bennett, Fla., 73 So.2d 274, .the court had before it for review a decree of the trial court awarding custody of the children to their father, with a further provision requiring him to place them in a boarding school to be selected by agreement of the parties, and, in the event of their failure to agree, by the court. The appellate court said, 1. c. 279, “ * * * we can find no basis on which we can approve this provision in the instant decree. The husband has the right to send the children to either public schools or private schools and we are of the view that, in the absence of most unusual conditions, it is not within the power of the court to tell the parents what schools their children shall attend.” With that we agree.

It follows that the dismissal of appellant’s motion for enforcement or, alternatively, for modification of the Arkansas decree was proper, and that portion of the learned trial judge’s order is therefore affirmed. That portion of the order vacating the registration of the Arkansas decree is reversed.

RUDDY, P. J., and ANDERSON, J., concur.

WOLFE, J., not participating.


source: Caselaw Access Project

author: HAMILTON, Justice. GREENHILL, Justice

license: Public Domain

text:
    Hugh WEATHERFORD et al., Petitioners, v. AETNA INSURANCE COMPANY et al., Respondents.
    No. A-9798.
    Supreme Court of Texas.
    Oct. 28, 1964.
    Rehearing Denied Jan. 20, 1965.
    Green, Green & Wiley, Perry Rowan Smith, San Antonio, for petitioners.
    Clemens, Knight, Weiss & Spencer, San Antonio, for respondents.
   HAMILTON, Justice.

Petitioners here were injured in a collision between the car in which they were riding and a car driven by Leonard Smith. Petitioners filed suit against Leonard Smith alleging negligence and obtained a judgment for damages against him. Petitioners then sued Aetna Insurance Company and Bailey and Carpenter, Inc., alleging that Smith was an additional insured under a garage liability policy issued by Aetna to Bailey and Carpenter, Inc., and prayed for declaratory judgment and recovery of the amount of the unpaid judgment against Smith1. On the verdict of the jury the trial court declared Smith an additional insured under the policy and rendered judgment for petitioners. The Fourth Court of Civil Appeals at San Antonio reversed and rendered judgment in favor of respondents. 370 S.W.2d 100. From this judgment petitioners appeal.

All the material facts are either undisputed or have been determined by jury findings which have in no way been attacked by the petitioners. The jury found that Bailey and Carpenter, Inc., agreed to sell the automobile in question to Leonard Smith and Robert M. Duty or either of them and that they jointly or either of them individually agreed to buy the automobile, and that this agreement was conditioned upon the payment of Smith’s $50.00 check by the bank when presented for payment. The sale occurred on July 31. The next morning, August 1, Bailey and Carpenter, Inc., took the check to the hank and payment was refused because Smith had no account there. Immediately Bailey and Carpenter, Inc., called Smith by telephone, cancelled the sales contract, and demanded immediate return of the automobile. The automobile was not returned immediately and after several telephone calls and after Bailey and Carpenter, Inc., had sent someone to the house where Smith and Duty lived to pick up the car, without success, Smith, on the night of August 2, about 10 o’clock and while under the influence of intoxicating liquor, had a collision with petitioners. According to the jury finding the collision occurred while Smith was on his way to respondent’s place of business to return the automobile pursuant to the cancellation and demand to return.

The primary question presented is: Was Smith an additional insured under the policy at the time of the collision? The garage liability policy issued by respondent Aetna Insurance Company to Bailey and Carpenter, Inc., contains the following provisions pertinent to this appeal:

“III. Definition of Insured. With respect to the insurance under coverages A. B. and D., the unqualified word ‘insured’ includes the named insured and also includes * * * (2) any person while using an automobile covered by this policy, * * * provided the actual use of the automobile is by the named insured or with his permission.”

Petitioners Contend that the action of Bailey and-Carpenter, Inc., in calling Smith over the telephone, canceling the sales contract and • demanding immediate return of the automobile was tantamount to granting him permission- to drive the automobile, and that since Smith at the time of the collision was acting pursuant to the demand to return the automobile to Bailey and Carpenter, .Inc., he was an additional insured under the policy. Petitioners reason that because at the time the demand to return the automobile was made Bailey and Carpenter, Inc., had the title to the automobile and was entitled to possession and control of it that the demand for immediate return of the automobile was a grant to Smith of permission to drive it. In the light of the facts of this case such argument amounts simply to this: When a seller who has been induced by fraud to part with possession of his property, he, by demanding that the fraudulent .purchaser- return the property, gives the defrauding purchaser permission to use the property for that purpose. Petitioners cite no authority supporting this proposition and we have been unable to find any authority dealing with this problem.

We have concluded that the mere demand for the immediate return of property obtained under these circumstances is not the granting of permission by the insured under the terms of the insurance policy. Respondents cite in support of their position that Smith was not an additional insured the general rule that a conditional vendee does not use the insured automobile with the consent or permission of the conditional vendor and is not within the coverage of the omnibus or additional insured clause of an automobile liability insurance policy. 36 A.L.R.2d 675 ; 5A Am.Jur., Automobile Insurance, p. 94. The reason for this rule is that the automobile is no longer owned by the insured in such a sense as will, legally speaking, enable the insured to give or withhold his permission or consent to the use of the automobile by the conditional vendee, since the vendor, though retaining title to the car until fully paid for, does so for security reasons only and has no control over the car and no right to its use. Petitioners say that that rule does not apply in this case because in the cases supporting the cited rule the conditional vendor did not have the right to possession and control, whereas in the instant case the seller did have the right to possession and control of the car at the time demand was made for its return. They take the position that the mere right to possession and control puts the insured in position to give or withhold permission to drive the automobile. We do not think that this necessarily follows.

In the case of Farm Bureau Mutual Insurance Company of Indiana v. Emmons, 122 Ind.App. 440, 104 N.E.2d 413, the court was dealing with a conditional sales contract where the purchaser had defaulted in some of the installment payments. Under these circumstances the seller had the right to declare a forfeiture and retake possession of the automobile. This the seller did not do. Thereafter the purchaser of the automobile was involved in a collision. It was contended that the seller’s insurance policy covered the automobile under the omnibus clause because the seller had the right to retake possession and control of the automobile after demand. In holding contrary to this position the court had this to say:

“We conclude, therefore, that because of the default' in payment, Johnson’s right or power as to the automobile, was limited to the retaking of its possession and control after demand. In the absence .of such a retaking, the fact of Emmons’ default in payment was immaterial as affecting the rights of Emmons under the policy of insurance.”

Of course Smith and Duty, from the time they drove out of Bailey and Carpenter’s place , of business. were in illegal possession of the automobile, having obtained the possession by fraud. We are not willing to say that the mere 'demand on the part of Bailey and Carpenter for immediate return of the automobile upon learning of the fraud converted the illegal possession of the fraudulent purchaser into legal possession, which we' would be doing if we said that the mere demand for return was tantamount to'granting permission to drive the automobile. The right to possession is quite different from possession. One may have a right to possession, but without actual possession he may have no control. This is exemplified by the facts in this very case. Bailey and Carpenter, Inc., sent an agent' out to the house where Smith and Duty lived to retake possession of the automobile, but the agent was unsuccessful because the automobile was not there and could not be located. The right to retalie possession and control existed but not the power, without which the seller was in no position to give or withhold permission.

Smith had the legal and moral duty to return the possession of the automobile from the very time the car was driven out of Bailey and Carpenter’s place of business, and that duty continued until possession was surrendered. The relationship of the defrauded party and the fraudulent party as to the automobile did not change upon the mere demand that possession be surrendered.

The contention of petitioners that the demand by Bailey and Carpenter, Inc., of Smith to return the automobile immediately constituted a contract of bailment ber tween the parties is so obviously without merit it calls for no discussion.

In view of our holding herein, we do not reach the question of deviation as discussed by the Court of Civil Appeals.

The judgment of the Court of Civil Appeals is affirmed.

SMITH, WALKER and GREENHILL, JJ-, dissenting.

GREENHILL, Justice

(dissenting).

Third persons who have been absolved of fault were seriously injured in an automobile collision. The car, the driver of which was determined to be at fault, was being returned to the seller of the car by one who had purported to buy it. The route the buyer took is disputed, but the majority opinion assumes that he was returning the car. The only question then is whether the car was covered by the insurance purchased by the seller.

The sale was made on the condition that the buyer’s check was good. It was not; so title never passed and the car still belonged to the seller. Even if it be assumed that the title did pass, it reverted to the seller because the seller had rescinded the contract of sale. It was the seller’s car and unquestionably c'overed by the seller’s insurance if it was being driven by the seller or anyone having the seller’s permission or consent to drive it.

The buyer, Smith, had possession of the car. The seller then had to decide how to get the car back. He could have peaceably gotten or sent for it himself; he could have had it repossessed’ through legal processes; or he could have asked or instructed the buyer to bring (drive) it back. He chose this latter alternative.

When the seller instructed the buyer to bring the car back, certainly the buyer had the seller’s permission or consent to drive it back. The car was then being driven by someone with the consent of the owner. The car was therefore covered by the seller’s policy: it was being driven by the owner or by someone with the owner’s consent.

The only case cited by the majority, Farm Bureau Mutual Ins. Co. v. Emmons, 122 Ind.App. 440, 104 N.E.2d 413 (1952), is completely inapplicable. The seller there had not rescinded the contract of sale. He might never have done so but elected to affirm the contract. So of course the car was not covered by the seller’s insurance.

The Court does not reach what I regard as the main point in the case, i. e., the legal test to be applied to determine whether the consent to drive the car had been lost because of the uncertainty of the proof that the buyer had used a direct route in returning the car. He went by a night club to see a girl friend. The insurance company says this was a material deviation. The buyer, on the other hand, said he needed to have her drive him back from seller’s place of business upon his return of the car. Since the Court does not reach this question, it is unnecessary to take a position on whether the Court should adopt the “substantial deviation’’ theory, the “strict or conversion” theory, or the “hell and high water” theory. These theories are discussed in 7 Appleman, Insurance Law and Practice (1962) §§ 4366-4368, pp. 308-327, and in an annotation in 5 A.L.R.2d 600 at 622 et seq.

SMITH and WALKER, JJ., join in this dissent.


author: WOODLEY, Presiding Judge.

text:
    Ex parte B. H. PRUITT.
    No. 37317.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Rehearing Denied Jan. 13, 1965.

      B. H. Pruitt, in pro. per.
    Doug Crouch, Dist. Atty., Truman Powers and Jack W. Beach, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered after hearing in a habeas corpus proceeding remanding the appellant to custody.

Appellant was convicted in Cause No. 56807 in Criminal District Court No. 2 of Tarrant County for robbery and was sentenced to a term of 5 years. The conviction was affirmed and mandate issued on March 15, 1957.

Upon his pleas of guilty to the offense of robbery, in Causes Nos. 58167 and 58168, appellant was on March 20, 1957, sentenced in Criminal District Court of Tarrant County to terms of not less than 5 nor more than 10 years.

The sentence in Cause No. 58167 provides: “It is--further ordered-that the punishment under this sentence shall begin when the judgment and sentence in Cause No. 56807, in Criminal District Court No. 2, Tarrant County, Texas has ceased to operate.”

The sentence in Cause No. 58168 provides: “It is further ordered that the sentence in this cause shall run concurrently with the sentence in Cause No. 58167. It is further provided that the punishment under this sentence shall begin when the judgment and sentence in Cause No. 56807, in Criminal District Court No. 2, Tarrant County, Texas has ceased to operate.”

The cumulative provisions appear to be sufficient. Ex parte Bobbitt, 159 Tex.Cr.R. 213, 262 S.W.2d 416.

The three sentences authorize appellant’s confinement by the Texas Department of Corrections until he has credit for a total of 15 years from and after March 15, 1957.

There is no merit in appellant’s contention that the trial court was without authority to cumulate the sentences. Art. 774, Vernon’s Ann.C.C.P.; Ex parte Sanderson, 152 Tex.Cr.R. 180, 212 S.W.2d 639.

Appellant’s attack upon the convictions in Causes Nos. 58167 and 58168, on the ground that he was not taken before a magistrate or given an examining trial, cannot be sustained. It is shown that he did not request an examining trial prior to indictment. It is not shown that a confession was used at his trial upon his plea of guilty.

The judgment remanding appellant to custody is affirmed.


author: DICE, Commissioner.

text:
    James Walter CHERRY et al. v. The STATE of Texas, Appellee.
    No. 37541.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.

      Robert B: Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben F. Ellis and John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by the appellant L. C. Johnson, as surety upon an appearance bond from a judgment forfeiting the bond.

The transcript contains a certificate, filed by the clerk, which certifies that in lieu of a cost bond on appeal the appellant deposited with the clerk the sum of $100 in cash. It is shown by the certificate that the deposit was not made within thirty days after the rendition of judgment, as required by Rule 356, Vernon’s Texas Rules of Civil Procedure.

The failure to make the deposit of cash in lieu of the bond within the time required renders this court without jurisdiction to entertain the appeal. Turner v. Farmer, 309 S.W.2d 890, Civ.App.

The record further reflects that appellant’s brief was not filed in this court within thirty days after filing of the transcript, as required by Rule 414 of Vernon’s Texas Rules of Civil Procedure.

No request was made by appellant for an extension of time to file the brief and good cause has not been shown for failure to file the same within the time allowed by law. The failure to file the brief within the time provided authorizes a dismissal of the appeal for want of prosecution. Hebert v. State, Tex.Cr.App., 255 S.W.2d 201.

For the reasons stated, the appeal is dismissed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Bruce O. GASSOWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 37517.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.

      Wm. H. Hamblen, Edna, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from a conviction for drunken driving as defined by Art. 802, Vernon’s Ann.P.C.

The punishment was assessed at a fine of $500, whereas a jail term of not less than 3 days is mandatory under the statute. No imprisonment in jail was assessed.

The punishment assessed being less than the minimum provided by law, the judgment will be reversed on appeal. Malone v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 310; Henderson v. State, 167 Tex.Cr.R. 112, 318 S.W.2d 898.

The judgment is reversed and the cause remanded.


text:
    Jerry Nolan MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 37392.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Clyde, Hines & Craig, by A1 Clyde, Fort Worth, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Ross Teter and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $100.

The evidence shows that the appellant was stopped by police officers while driving an automobile on a Dallas street. The officer observed the cylinder from a revolver, a holster and a box of shells on the seat beside appellant. He searched the automobile and found a .22 caliber pistol under the driver’s seat with the cylinder removed.

The pistol, cylinder, shells and holster were introduced in evidence. The shells fit the pistol and the officer had no difficulty in replacing and removing the cylinder.

The jury rejected the appellant’s defense that he was taking the pistol to a gun shop to trade or sell it.

The holding of this Court in Crain v. State, 69 Tex.Cr.R. 55, 153 S.W. 155, requires that we hold the evidence sufficient to sustain the conviction. No other question is raised.

The judgment is affirmed.


author: McDonald! judge.

text:
    Benito Garcia SILVA, Appellant, v. The STATE of Texas, Appellee.
    No. 37471.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Jan. 27, 1965.
    Robert Fagan, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Clifford L. Zarsky and Douglas Tinker, Asst. Dist. Attys., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald! judge.

The offense is Driving While Intoxicated, second offense, a felony; the punishment, a fine of $100 and 30 days confinement in-the county jail'.

State’s witness, K. S. Miller, testified that he was a police officer with the Corpus-Christi Police Department. On the evening of January 22, 1964, he was driving out to-investigate an accident when he observed an automobile in front of him speed up and change directions several times. The witness related that this car was going about 50 miles an hour, which was above the speed limit, and would change lanes without regard to other vehicles. The officer finally overtook this vehicle, sounded his horn several times, turned on his red light and got no response. He turned on his siren and finally the car pulled over and stopped. This witness stated that he asked appellant, to get out of his car-; that when appellant, got out of the car he staggered, weaved back and forth when he was attempting to-get his driver’s license out of his wallet; spoke with a thick tongue; his eyes were glassy. The officer testified, based upon his experience with intoxicated people, that in his opinion appellant was intoxicated when he arrested him.

Deputy Sheriff William L. Burch testified that he was the Superintendent of the Identification Section of the Nueces County Sheriff’s Office. Mr. Burch testified that jail record sheets and pictures taken of appellant were those of the same individual. Thus, by referring to the first state’s exhibit showing the date of the first offense and the pertinent facts as to the conviction and considering them with the testimony of Mr. Burch we conclude that the state did ultimately establish the identity of the appellant and did establish the prior conviction.

Appellant adduced testimony from the wife of one of his friends. She testified that appellant was not intoxicated; that she and her husband had seen him at dinner and later they rode from the restaurant with him and were in the car with appellant at the time that he was arrested.

The jury resolved the facts against appellant’s version. We find no merit in appellant’s contention that the state failed to establish identity of appellant. We find the evidence sufficient to sustain the j'ury’s verdict.

Finding no reversible error, the j'udgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Leo Joseph MALEK, Appellant, v. The STATE of Texas, Appellee.
    No. 37494.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    C. Anthony Friloux, Jr., John E. Bobbitt, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and I. D. Mc-Master, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is negligent homicide in the second degree; the punishment, a fine of $500.

Appellant’s amended motion for new trial was overruled, and notice of appeal was given in open court, on April 17, 1964. The ninety days during which appellant was required to file the statement of facts, as required by Art. 759a, Sec. 4, Vernon’s Ann.C.C.P., expired on July 17, 1964. No statement of facts was filed by appellant by such date.

On August 28, 1964, after expiration of the 90 day period, a thirty-day extension to the already expired ninety days allowed by statute for filing of the statement of facts was ordered. Subsequently, an additional order was entered on September 4, 1964, extending the time for filing the statement of facts to September 11, 1964. The statement of facts was filed in the trial court on September 11, 1964, but the trial j'udge has never approved the statement of facts in this case. We held in Jackson v. State, Tex.Cr.App., 344 S.W.2d 876, that the statement of facts, not approved by the trial judge, cannot be considered because it was not filed within 90 days after notice of appeal.

The action of the trial judge in extending the time for filing was not a nunc pro tunc action, as the record shows exactly when the time was extended. Thus, in the absence of the trial judge’s signing of the statement of facts, there is no applicable presumption of proper extension of the time for filing. Art. 759a, Sec. 4, V.A.C.C.P., supra. See also Hoskins v. State, Tex.Cr.App., 373 S.W.2d 248 and cases there cited.

The statement of facts is not properly before this court, and the claims of error in refusal of requested charges and the overruling of objections to the charge given cannot be appraised in the absence of a statement of facts.

Nothing being presented for review, the judgment of the trial court is affirmed.


author: MORRISON, Judge.

text:
    Mrs. Truman W. PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 37509.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is passing as true a worthless check; the punishment, 90 days in jail and a fine of $500.00.

Since the bank records of appellant’s joint account with her husband showed that on the day before the $3.00 check in question was given there were ample funds on deposit to cover the check and since it further showed that a few days thereafter the funds on deposit were again ample to pay the same, the guilt of the appellant was supported solely by the presumption contained in Section 2 and 3 of Article 567b, Vernon’s Ann.P.C. which arises from the failure to pay the same after “giving of such notice that such check, draft or order has not been paid by the draweeIn the case at bar the “notice” was in the form of a letter which read

“Mi's. Truman W. Parker
Rt. 4, Box 182
Lubbock, Texas
Dear Madam:
Will you please pick-up your check for $3.00.
Thank you.
Sincerely,
Ray Johnson”

This was not sufficient to comply with the terms of the statute.

Upon further prosecution growing out of this transaction, the complaint and information should contain allegations that the words “Insufficient Funds” and “Account Closed” were added to the instrument, if they were, after it was passed to the injured party and proof should be adduced to support such allegations.

For the failure to give the requisite notice, the judgment is reversed and the cause remanded.


text:
    Robert ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37530.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.00. Trial was before the court without the intervention of a jury.

Officers Garrett and Lutrell of the Lubbock Police testified that while on patrol at 9:00 p. m. on the night in question they observed an automobile being driven across the double center stripe of a four lane street at approximately five miles an hour, that they brought it to a halt and observed the appellant who was the driver. They testified that he was very talkative, that his eyes were bloodshot, that he had “a hard time holding his head up”, that he staggered when he walked, that he had a strong odor of alcohol on his breath and expressed the opinion that he was intoxicated.

Appellant’s employer testified that he had been with appellant until 7:00 p. m. and that appellant had had nothing 'to drink. Appellant’s sister-in-law testified that she arrived upon the scene of the arrest and stated that appellant did not appear intoxicated to her and expressed the opinion that he was not drunk. Appellant, testifying in his own behalf, stated that he had drunk only one can of beer after he left his employer, that he was not intoxicated, and that he was preparing to turn left on the four lane street at the time he was apprehended.

The trial court resolved the conflict in the evidence against appellant and we find the evidence sufficient to sustain his judgment. We find several objections in the record to alleged hearsay testimony, but where the trial is before the Court, it is presumed that he considered only admissible evidence. Skelton v. State, 165 Tex.Cr.R. 247, 306 S.W.2d 127.

Finding no reversible error appearing, the judgment is affirmed.


text:
    Vernon COOKS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 37409, 37410.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Jan. 27, 1965.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Walton P. Bondies and C. M. Tur-lmgton, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The two cases were heard together and will be jointly considered on appeal. The conviction in each case is for burglary upon a plea of nolo contendere, and the punishment in each case was assessed at two years. No effort was made to cumulate the sentences.

By stipulatipn, by appellant’s written confession and by his testimony it is shown that on April 18, 1964, and again on April 23, 1964, appellant and three companions broke into railroad box cars from which certain items were stolen.

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


text:
    Herschell Alvin CROCKER, Appellant, v. The STATE of Texas, Appellee.
    No. 37388.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Rehearing Denied Jan. 27, 1965.

      Robert Lyle, Dallas, Phil Burleson, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Walt Bondies, John C. Vance, C. M. Turlington, Ross Teter and John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery with a prior conviction for robbery alleged for enhancement; the punishment, life.

Because of the nature of the question presented we adopt a portion of appellant’s brief as a statement of the case:

"The State’s evidence shows that Appellant was one of two men who participated in the robbery of a grocery store owned by E. R. Anderson; that certain money was taken from Anderson without his consent and after he was put in fear of his life; that as Appellant and his companion were leaving the store, Anderson got the license number of the vehicle they left in; that the vehicle was checked out and belonged to a relative of the companion; that Anderson identified Appellant in the line-up after he was arrested and that Appellant failed to appear at the time his case was set for trial in September of 1963 and that the bond was forfeited at that time.

"The State proved the prior conviction in 1955 by the introduction of records from the penitentiary together with the testimony of one of the officers involved in the prior case and the comparison of finger prints of the Appellant with the finger prints taken in connection with the prior offense.

“Appellant did not testify in his own behalf but called his wife as a witness and called the court reporter concerning the introduction of certain exhibits resulting' from the habeas corpus hearing.

“The jury found appellant guilty of the primary offense and further found that he was the same person who had been previously convicted of the prior offense and the Court assessed his punishment at life.

“Did the Court deny Appellant due proc-' ess of law by allowing the State to read the indictment alleging the prior offense to the jury and to establish by proof the prior conviction before the jury before a determination of guilt of Appellant on the primary offense?”

This question has been before this Court in the following cases: Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, cert. denied, 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Finley v. State, 161 Tex.Cr.R. 458, 278 S.W.2d 864; Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80; cert. denied, 361

U.S. 849, 80 S.Ct. 107, 4 L.Ed.2d 88; Welch v. State, 170 Tex.Cr.R. 425, 341 S.W.2d 909; Ex Parte Breen, 171 Tex.Cr.R. 669, 353 S.W.2d 233; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Mackie v. State, Tex.Cr.App., 367 S.W.2d 697; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Carso v. State, Tex.Cr.App., 375 S.W.2d 297; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189; Oler v. State, Tex.Cr.App., 378 S.W.2d 857; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253, and Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804.

Other questions are presented where the prior conviction is an element of the primary offense charged or a prosecution unT der Articles 61 or 64, Vernon’s Ann. P.C. Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393; Wright v. State, Tex.Cr.App., 364 S.W.2d 384.

Though the jury in this State assesses all punishment, except in those cases where the punishment is fixed by law, this Court has in the Ex parte Reyes, Pitcock and McDonald cases, supra, approved the practice of permitting the accused to stipulate as to the prior convictions and thereby relieve the State of the necessity of reading to the jury that portion of the indictment which charges them and adducing proof before the jury of- such prior convictions. 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 bis. 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.

We remain convinced that any further change in our procedure must come from the Legislature.

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


text:
    Hope Gonzales ACOSTA, Appellant, v. The STATE of Texas, Appellee.
    No. 37520.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal 'from a judgment of conviction in County Court at Law No. 2 of Lubbock County for the offense of unlawful sale of beer to Doyle J. Nelson and Rivie Garrett The judgment was rendered upon a plea of guilty before the court to the information in. Cause No. 36590 and a fine of $250 was assessed.

The complaint and information in said Cause No. 36590 in said court shown in the transcript allege the offense of possession of beer for the purpose of sale in Justice Precinct No. 1 of Lubbock County.

The variance between the judgment and the information is fatal. Wright v. State, 168 Tex.Cr.R. 578, 330 S.W.2d 618; Pond v. State, 116 Tex.Cr.R. 196, 32 S.W.2d 356.

The judgment is reversed and the cause is remanded.


text:
    James H. QUARLES, Appellant, v. The STATE of Texas, Appellee.
    No. 37285.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    Rehearing Denied Jan. 27, 1965.
    James H. Quarles, in pro. per.
    Franklin L. Smith, County Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is barratry; the punishment, 90 days in jail and a fine of $500.00.

In October 1963, an explosion occurred at a refinery in Corpus Christi. Several workers were killed and others were seriously injured. On that day appellant and his co-indictee, MacKenzie, left Houston, went to Corpus Christi, secured lodging's at a motel, a map of the city and a newspaper which' carried the names and addresses of those who had been killed and injured, located them on the map and the next morning visited a number of the victims’ wives.

' (As to what transpired during these visits, we need only quote from the testimony of two witnesses. Mr. Timón, who was at the home of his daughter whose husband was killed in the explosion at the time of appellant’s visit, testified that appellant and MacKenzie came inquiring for his daughter but that'he spoke to them and that appellant said, “wé are attdrneys” from Houston and that they' wanted to represent his daughter in her claim against Coastal States. Appellant further told him, “We do this all the time. I have won several of them. I can show you clippings.” Upon being told thUt Mr. Timón had counsel of his own choosing, the two left.

Mr. Schkade, who was at the home of his sister whose husband had been killed in the explosion, testified that appellant and Mac-Kenzie came there and appellant stated that he represented a law firm from Houston and would like to represent her. He testified that appellant further stated that he would handle his sister’s claim for 15 percent of all she might recover over and above her deceased husband’s Workman’s Compensation, but that Corpus Christi lawyers would probably charge her 33½ percent including the Workman’s Compensation claim. He stated that appellant asked his sister to sign a contract and exhibited newspaper clippings which he said contained accounts of awards that he had been able to recover in previous cases and told his sister that he might be able to get her an award of from $200,000 to $250,000, but 'that his sister refused to sign the contract.

Appellant did not testify in his own behalf, but called his co-indictee who testified that he was a private investigator in Houston and had accompanied appellant to Corpus Christi and on the visits to the various families of those who had been injured, but that appellant was unable to get anyone to sign a contingent fee contract with him. On cross examination he agreed that while appellant was talking to the parties, “a question was raised” in his mind, and he felt like he was “mixed up 'in something you (he) didn’t want any part of.”

Appellant also introduced into evidence the opinion of the Court of' Civil Appeals at Houston in Quarles v. State Bar of Texas, 316 S.W.2d 797.

Appellant represented himself in the trial court and this Court. There is no question of his indigency.

He raises several questions. He complained in the trial court and here that he was prosecuted for this misdemeanor under an indictment returned by the Grand Jury of Nueces County. ’ ‘

There can be no question' that a grand jury may return an indictment charging a misdemeanor. Article 419, Vernon’s Ann.C.C.P. Wé need not pass upon appellant’s contention that the State Bar Act (Article 320a-1, Vernon’s Ann.Rev.Civ.St.) is unconstitutional because Article 430, Vernon’s Ann.P.C. concludes with the following sentence: “The penalties herein prescribed shall apply not only to attorneys at law, but to any other person who may be guilty of any of the things set forth in this article.”

He complains that he does not have before this Court a copy of the argument of the prosecutor. The trial court granted him a 60 day extension of time to secure the same from the court reporter who took down the argument and this Court granted him an additional delay to- see if he could procure the same, but no.ne has been forthcoming. Again it should be noted that there is no question raised as to appellant being indigent. The court reporter was well within her rights in requiring payment of her fee as a condition precedent to the delivery of a transcript of the argument since no pauper s ■oath had been filed. Maxfield et al. v. Pure Oil Co. et al., Tex.Civ.App., 74 S.W.2d 145.

Clearly the trial court was correct in sustaining the State’s objections to questions which would have elicited information as to privileged communications between attorney and client or disclosed testimony which had been given in the secrecy of the Grand Jury.,

We overruled appellant’s contention that Article 430, V.A.P.C. which denounced the offense of Barratry is unconstitutional. Ex Parte McCloskey, 82 Tex.Cr.R. 531, 199 S.W. 1101; McCloskey v. Tobin, 252 U.S. 107, 40 S.Ct. 306, 64 L.Ed. 481.

The court did not err in permitting the State to prove that appellant solicited ' contingent fee contracts of employment from persons other than the Eva Nell Hentges named in the indictment. Lanier v. State, 172 Tex.Cr.R. 238, 356 S.W.2d 671. See also the annotation at 78 A.L.R.2d 1359.

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


author: BELCHER, Commissioner.

text:
    Bennie WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 37367.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Jan. 27, 1965.
    Marvin Foster, Jr., Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Kipling F. Layton and Douglas Tinker,' Asst. Dist< Attys., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, twenty-five years.

The testimony of Harry Martin and Luther Green reveals that the appellant, Martin, and Green, agreed on Sunday, November 10, to rob a bank; and that after talking about a gun, Green and appellant went to the latter’s home, where appellant got the gun and gave it to Green, who then returned to his home. Shortly after 10 A.M., Tuesday, November 12, the three met at Green’s house in Corpus Christi. They agreed to rob the Citizens State Bank in Corpus Christi, and then discussed plans to rob the bank. They agreed that Green, accompanied by Martin, would drive a car to the bank; that Green would wait outside in the car while Martin entered the bank with the gun; and that appellant would meet them at a designated place on a certain ■street in another car. This understanding -and plan was carried out

The teller of the Citizens State Bank testified that about 11:30 or 11:45 A.M., November 12, a negro man appeared at the teller’s window, holding a gun in his hand by his side, -and in the other hand he held a brown paper sack, level with the counter. He told the teller to put money in the sack, and being in fear of her life the teller put $8,225 in the sack, and the negro turned and walked out the front door. She further testified that appellant was not the negro to whom she gave the money at the bank window.

Wilber Johnson testified that while in the bank about 11:30 A.M. November 12, he was alerted by some unusual occurrences when a negro man approached a teller’s window; that he immediately went outside to his car, which had a two-way radio, and waited for the negro to come out of the bank. Immediately, Johnson saw him come out of the bank, carrying a gun and a paper sack, and get into an old black 1948 Chevrolet sedan, which was then driven away by another negro man. Johnson pursued the Chevrolet, and with the aid of his wife, who was with him, he radioed his position to the police as often as he could. After a short, winding chase, without Johnson losing sight of the Chevrolet, it stopped in the street and Johnson stopped about 100 feet behind it. Johnson saw two negro men get out of the Chevrolet, one of whom was-carrying a sack, and both entered a faded 1954 Buick which was driven by another negro man. The Buick was driven away at a rapid speed, with Johnson in pursuit, only momentarily losing sight of the Buick when it would turn a corner while traveling a circuitous route. During the chase Johnson was constantly communicating with the police dispatcher. Johnson pursued the Buick for “four to seven, or eight minutes” until it was stopped by the police. Johnson identified the Buick as the same car he pursued after the two negroes left the Chevrolet and entered the Buick, but he never saw the two men leave the Buick.

The officers identified the appellant as the-driver of the Buick which they had stopped immediately after getting into a certain area in response to a radio dispatch. The appellant was alone in the Buick at the time. Johnson arrived at the scene immediately after the officers had stopped the Buick; and, in the presence of the appellant, he re-' lated to Officer Lowrance what he had seen at the bank and also told him what occurred afterward, including the identification of the Buick at the scene when appellant was apprehended.

The officers, after receiving additional information, went to the home of Luther Green in Corpus Christi. They arrested both Green and Harry Martin at Green’s home. Martin was found under the house with $8,225 in money in a brown paper sack in his possession, and after coming from underneath the house he pointed out to the officers the location of the gun and thev took possession of it. Green was arrested inside the house.

Martin testified that he and Green went from Green’s house straight to the bank; that he entered the bank, exhibited the gun, and ordered the teller to put the money-in the paper bag, which she did; that he returned to the car, which Green drove to the predesignated place, and appellant “drove up behind us” in a car. Green and Martin, with Martin carrying both the gun and the money, got in appellant’s car. As appellant drove away Green saw someone following them and appellant then increased the speed, turned four or five corners, and, after travelling for a period of three or four minutes, appellant let Green and Martin out at Green’s house, into which they ran, with Martin still carrying the money and the gun. They counted the money, which totaled $8,225 and put it “back in the same paper bag.” They were going to divide the money three ways, but before they had an opportunity to do so, the officers came, but left because the door was locked. When the officers left, Martin, with the money and the gun, crawled underneath the house, where he was discovered by the officers on their return. At this time the officers arrested Green and Martin and took possession of the money and the gun.

The testimony of Green was substantially the same as that of Martin, except he testified to the following additional facts: After Martin left the bank it took the two about six minutes to drive to the previously designated place, where they met the appellant and transferred to the Buick he was driving. In a few minutes appellant let them out at Green’s house, and he drove on for the purpose of taking the car away from the house and leaving it at another place. At the time the officers came, Green and Martin knew that appellant had already been arrested because they had heard it on a radio news bulletin.

The appellant did not testify or offer any evidence in his behalf.

Appellant challenges the sufficiency of the evidence to corroborate the testimony of the accomplice witnesses, Martin and Green.

The trial court recognized Martin and Green as being accomplice witnesses.

The testimony reveals that during the execution of the plans, Johnson saw a negro man in the bank and also saw him leaving, carrying a gun and a paper sack, and enter a Chevrolet sedan, which was driven away by a negro man. He pursued the Chevrolet for about six minutes until it stopped in the street, at this time he saw the two men in the Chevrolet get out, with one still carrying the sack, and enter a faded 1954 Buick which another negro man rapidly drove away. In less than eight minutes after the two men entered the Buick, it was stopped by the police who had been alerted as a result of Johnson’s use of his radio, and the officers identified the appellant as the driver of the Buick. Johnson identified the Buick stopped by the police as the same Buick he had seen two negroes enter after leaving the Chevrolet. Shortly thereafter, the officers arrested Martin and Green in Green’s house, which was in the neighborhood of where they changed from the first to the second get-away car. A gun and a brown paper sack containing $8,225, the exact amount of money taken from the bank, was found at Green’s house.

The evidence sufficiently corroborates the testimony of the accomplice witnesses. Art. 718, Vernon’s Ann.C.C.P. It also warrants the jury in finding that appellant, Green and Martin agreed to fob a bank, that appellant .furnished a gun, and was present and knew when Green and Martin left going to the bank; that during the existence of and in furtherance of their common design to rob the bank the appellant waited for their return and was at the previously designated place when they arrived about six minutes after the robbery, and carried them away at a high rate of speed to secure their safety. The evidence is sufficient to support the conviction.

Appellant complains of the failure of the court to charge on circumstantial evidence.

Where there - is direct evidence against an accused, although it is that of an accomplice, a charge on circumstantial evi-deuce is not required. The testimony of the accomplice witnesses in this case makes a charge on circumstantial evidence unnecessary. Steen v. State, 131 Tex.Cr.R. 532, 100 S.W.2d 109.

It is contended that the trial court erred in failing to charge the jury that they must believe that the testimony of the accomplice witnesses was true beyond a reasonable doubt..

The failure to so charge in submitting the law of accomplice testimony would not be error, if elsewhere in the charge the law of reasonable doubt was properly submitted as to the whole case. Stovall v. State, 104 Tex.Cr.R. 210, 283 S.W. 850.

The charge in the instant case in concluding the- submission of the law of accomplice testimony instructed the jury as follows: “ * * * and from all the evidence you must believe beyond a reasonable dqubt.that the defendant is guilty of the offense, as charged against him in the indictr nj.ent.”'. . ....

In Stovall v. State, supra, the charge on the law of accomplice testimony was approved; ' It was in substance the same as given in this case. Therefore no error is presented.

It is insisted that the trial court erred in failing to charge the jury that if appellant was either an accomplice or an accessory as those offenses are defined, then they could not find him guilty as a principal, or if they had a reasonable doubt thereof to acquit him.

The indictment charged appellant, Martin and Green jointly with robbery, but the appellant was here alone on trial. In the charge, the court properly defined principals, and only authorized a conviction if the jury found beyond a reasonable doubt that the appellant was “acting either alone or jointly as a principal, as the term principal has -been defined to you;”' and, if they did not so believe to acquit him, or if they had a reasonable doubt as to his guilt to find him not guilty.

The requested charge also authorized his acquittal if they found him not guilty as a principal or, if they had a reasonable doubt thereof to acquit.

The charge as given adequately protected the rights of the appellant. The failure to charge the jury as appellant here contends was not error. Lopez v. State, 170 Tex.Cr.R. 208, 339 S.W.2d 906.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Harold P. WALKOUIAK, Appellant, v. The STATE of Texas, Appellee.
    No. 37337.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    Otis Scruggs, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Subsequent to the affirmance of the conviction for driving while intoxicated, with punishment assessed at 5 days in jail and a fine of $50, and while the appeal was pending on appellant’s motion for rehearing, the appellant filed his affidavit requesting1 the dismissal of the appeal.

The request is granted. The prior opinion is withdrawn; the affirmance is set aside, and the appeal is now dismissed.


text:
    Lyle C. BOUTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37513.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    No attorney of record on appeal for appellant.
    Jack N. Fant, County Atty., Jamie C. Boyd, Asst. County Atty., El Paso, and: Leon B. Douglas, State’s Atty., Austin, for the State. • ■
   DICE, Commissioner.

The conviction is for negligent hotriicide in the second degree; the puriishmeht, one year in iail- ■.

The proof was undisputed that on the date alleged, while driving his Nash automobile south on Chelsea Street in the city of El Paso, appellant was involved in a collision at the intersection of East Yandell Drive with a Chevrolet automobile in which the deceased was riding as a passenger. In the collision the deceased received certain injuries from which she died.

Traffic at the intersection was controlled by four traffic lights which had been installed pursuant to certain traffic-control ordinances passed by the city council of the City of El Paso. On the occasion in question, the traffic lights were in operation. By stipulation; it was shown that under the terms of the ordinances it was unlawful for a person driving a motor vehicle to enter the intersection when the traffic-control signal facing him was exhibiting a red light.

It was shown that the collision occurred near the center of the intersection as the Chevrolet automobile was turning left and proceeding west on East Yandell Drive into a green traffic light.

Numerous witnesses, including -eyewitnesses to the collision, were called by the state, whose testimony supported the state’s contention that appellant drove his automobile, into the intersection without stopping at a red light which controlled traffic approaching the intersection from the direction in which he was traveling.

Testifying in his own behalf, appellant stated that as he approached the intersection the traffic light was green and that he did not remember the accident.

We find the evidence sufficient to sustain the allegation in the information that appellant was engaged in the unlawful act of entering the intersection without stopping at the traffic-control light, which was red, and to support the jury’s verdict finding him guilty, as charged.

The record is before us upon seven formal bills of exception. No brief has been filed in behalf of appellant.

■ We have examined the bills and find no reversible error.

Three of the bills purport to present appellant’s objections and exceptions to the court’s charge. The bills are insufficient and may not be considered, because they do not show that the objections to the charge were presented in writing, as required by Art. 658, Vernon’s Ann.C.C.P. Wright v. State, 100 Tex.Cr.R. 291, 272 S.W. 787; Terrill v. State, 133 Tex.Cr.R. 584, 112 S.W.2d 734; and Newby v. State, Tex.Cr.App., 384 S.W.2d 133, decided October 28, 1964.

Three of -the bills complain of testimony admitted with reference to the speed with which appellant’s automobile was traveling on the occasion in question, and to evidence showing that he had been drinking, over his objection that neither speed nor his drinking, nor his physical condition were alleged in the information as a cause of the accident

This evidence was admissible as a part of the res gestae. Hence, no error is shown. Maxey v. State, 157 Tex.Cr.R. 405, 249 S.W.2d 66; Marx v. State, 161 Tex.Cr.R. 401, 277 S.W.2d 914.

The remaining bill compláins of certain testimony elicited from the witness Gordon Mehlman to the effect that after the collision, appellant, in conversation with the witness, asked about his car and how badly it was damaged but did not ask about the people in the other car.

The court sustained appellant’s objection to the testimony and instructed the jury not to consider the same.

We fail to perceive any reversible error in the court’s refusal to grant a mistrial.

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

Opinion approved by the court.