author: NORVELL, Justice. GRIFFIN, Justice CALVERT, Chief Justice

text:
    Franklin SPEARS, Relator, v. Will D. DAVIS, Chairman of the State Democratic Executive Committee, Respondent. Galloway CALHOUN, Jr., Relator, v. Will D. DAVIS, Chairman of the State Democratic Executive Committee, Respondent.
    Nos. A-11215, A-11224.
    Supreme Court of Texas.
    Jan. 31, 1966.

      Cofer, Cofer & Hearne, Austin, William L. Garwood, Austin, for relator Spears.
    Dan Moody, Jr., John E. Clark, Austin, for relator Calhoun.
    Tom Sealy, Midland, Joe M. Kilgore, Austin, for respondent.
   NORVELL, Justice.

Relators, Franklin Spears and Galloway Calhoun, Jr., presently State Senators, have filed separate petitions for original writs of mandamus ordering Will D. Davis, Chairman of the State Democratic Executive Committee, to place their names upon the primary ballot as candidates for the Democratic nomination for the office of Attorney General of Texas. Article 1735a, Vernon’s Ann.Tex.Stats., Appellate Procedure in Texas, § 1.4[1]. While the causes were argued and submitted separately, they may be disposed of by one opinion. We will hereinafter note some factual distinctions relating to the positions of the two relators.

The Texas Election Code provides that:

“No person ineligible to hold office shall ever have his name placed upon the ballot at any general or special election, or at, any primary election where candidates are selected under the primary laws of this State; and no such ineligible candidate shall ever be voted upon, nor have votes counted for him at any such general, special, or primary election.” Article 1.05, Vernon’s Texas Election Code; Purcell v. Lindsey, 158 Tex. 541, 314 S.W.2d 283 (1958).

Upon the presentation of applications for a place upon the primary ballot, Article 13.12, Vernon’s Texas Election Code, it becomes the duty of the State Chairman of the party executive committee, regardless of the wishes of candidates or prospective candidates, to ascertain and make sure that those filing such applications are, if nominated, eligible to go on the general election ballot. A failure so to do could result in a party’s primary nominee being declared ineligible after the primary and before the general election; or, if the question were raised after the general election, a successful party nominee might be precluded from qualifying and assuming the duties of office because of such ineligibility. Article 1.06, Vernon’s Texas Election Code.

The eligibility of both Senator Spears and Senator Calhoun to hold the office of Attorney General for the two year term beginning January 1, 1967 having been questioned, the respondent Davis refused to accept their applications for a place upon the Democratic primary ballot for the election to be held on May 7, 1966. The filing of these actions followed. The causes being cast in an adversary mold, able counsel appeared for both sides and vigorous, well-prepared and helpful arguments were presented relating to the question of eligibility.

It is conceded that both relators are legally qualified to hold the office of Attorney General of Texas and have taken all required actions entitling them to a place upon the primary ballot unless they are rendered ineligible by Article 3, § 18 of the Texas Constitution, Vernon’s Ann.St., which provides that:

“No Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased during such term, * *

At the general election to be held on November 8, 1966, the qualified voters of Texas will choose an Attorney General for a term of office beginning on January 1, 1967. Article 4, §§ 2 and 22, Texas Constitution, Article 17, Vernon’s Ann.Tex. Stats. Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948). Kothmann v. Daniels, 397 S.W.2d 940 (Tex.Civ.App., Original Proceeding in Mandamus, 1965).

Relator Spears was elected Senator on November 6, 1962 and received a certificate of election on November 23, 1962. Relator Calhoun was .elected Senator on November 3, 1964 and received his certificate of election on November 20, 1964. Because of a reapportionment of the Legislature, an entirely new Senate will be chosen at the general election to be held on November 8, 1966. Both relators were members of the 59th Legislature which raised the salary of the Attorney General from $20,000 to $22,500 per annum, effective with the biennium beginning September 1, 1965.

It is contended that Senator Spears’ term of office commenced with the convening of the 58th Legislature on January 8, 1963 and hence the term of State Senator overlaps that of the Attorney General for a period of approximately eight days. A similar contention is made with reference to Senator Calhoun. In other words, it is respondent’s position that a State Senator’s term commences from the date of the convening of the first Regular Session of a Legislature following his election.

In respondent’s original brief, the controlling question with reference to Senator Spears is stated as follows:

“The question of whether his Senate term conflicts with the term of the Attorney General turns on whether the four-year Senate term commenced the previous November 23, when petitioner’s election was completed and certified, or on January 8, 1963, when the Senate convened and petitioner was sworn and assumed the office and its emoluments.”

However, by means of a post-submission brief, respondent asserts, in the alternative, that if the day the election process is completed, that is, the canvassing of the election returns, be taken as the beginning date of the term of office of a State Senator, both relators would be ineligible by reason of a 1965 amendment to the Election Code which provides that a canvass of the returns of an election for a member of the House of Representatives or State Senate would take place on the Monday before the second Tuesday in January following the election. Acts, 1965, 59th Leg., p. 199, ch. 83, Article 8.41, Vernon’s Election Code. It is also urged that an election is not complete until the returns thereof have been canvassed; Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948); Leslie v. Griffin, 25 S.W.2d 820 (Tex.Comm.App.1930); and that in Kirk v. Gordon, 376 S.W.2d 560 (Tex.Sup.1964), it was indicated that a term of office would begin after the canvass of returns had been completed.

We will first dispose of this alternative contention. A reading of the Kirk case discloses that the exact day upon which a term of office commenced was not in issue as the decision of the case did not turn on whether the commencement of the term of office involved was the day of election or the day upon which the election process was completed.

However that may be, we do not attribute to the Legislature an intention to lengthen the terms of either Senator Spears or Senator Calhoun some 45 to 60 days, or more, and thus create an overlap and render them ineligible for the office of Attorney General. The amendment to Article 8.41 of the Code was clearly intended to operate prospectively and any holding over by Senators Spears and Calhoun for a period of time in excess of the constitutional term of office would be by virtue of the provisions of Article 16, § 17 of the Texas Constitution and Article 17, Vernon’s Ann.Tex.Stats.

It is relators’ primary contention that the term of office of a State Senator begins on the day of the general election. In order to evaluate the contentions of the parties, it is necessary to examine in some detail the pertinent constitutional provisions relating to the terms of offiee of both Senators and members of the House. Sections 3 and 4 of Article 3 of the present Constitution (1876) read as follows:

“Sec. 3. The Senators shall be chosen by the qualified electors for the term of four years; but a new Senate shall be chosen after every apportionment, and the Senators elected after each apportionment shall be divided by lot into two classes. The seats of the Senators of the first class shall be vacated at the expiration of the first two years, and those of the second class at the expiration of four years, so that one-half of the Senators shall be chosen biennially thereafter.”
“Sec. 4. The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.”

Professor S. S. McKay’s Reports of the “Debates of the Constitutional Convention of 1875”, as well as a comparison of the wording of the various Texas Constitutions, discloses a substantial continuity of provisions which extends from the Constitution of the Republic through the 1845 Constitution (first state constitution), the Constitution of 1861 (Confederate), the Constitution of 1866 (Presidential Reconstruction), the Constitution of 1869 (Congressional Reconstruction), to the Constitution of 1876. It seems that the framers of the latter Constitution took the Constitution of 1845 (the first State Constitution) as their primary model and working basis.

The constitutional term of office for the members of the House of Representatives of the Texas Congress was stated as follows in the Constitution of the Republic:

“The members of the house of representatives shall be chosen annually, on the first Monday of September each year, until congress shall otherwise provide by law, and shall hold their offices one year from the date of their election.” Art. 1, § 3, Constitution of the Republic of Texas, 1 Gammel’s Laws of Texas, 1069.

The provision of the Republic Constitution relating to Senators provided that:

“The senators shall be chosen for the term of three years on the first Monday in September; * * * At the first session of congress after the adoption of this constitution, the senators shall be divided by lots into three classes, as nearly equal as practical; the seats of the senators of the first class shall be vacated at the end of the first year; of the second class, at the end of the second year; of the third class, at the end of the third year, in such a manner that one-third shall be chosen each year thereafter.” Art. 1, §§ 8 and 9, Constitution of the Republic of Texas, 1 Gam-mel’s Laws of Texas, 1070.

The Constitution of 1845 provided that:

“The members of the house of representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of the general election; * * * Art. 3, § 5, Constitution of 1845, 2 Gammel’s Laws of Texas, 1280.

As to Senators, the 1845 Constitution provided that:

“The senators shall be chosen by the qualified electors for the term of four years; and shall be divided by lot into two classes as nearly equal as can be. The seats of the senators of the first class shall be vacated at the expiration of the first two years, and of the second class at the expiration of four years; so that one-half thereof shall be chosen biennially thereafter.” Art. 3, § 8, Constitution of 1845, 2 Gammel’s Laws of Texas, 1280.

The provisions of the Constitutions of 1861, 1866 and 1869 were practically identical with the provisions of the Constitution of 1845, except that the Constitution of 1869 provided for senatorial terms of six years. Art. 3, §§ 5, and 8, Constitution of 1861, 5 Gammel’s Laws of Texas, 6; Art. 3, §§ 4 and 7, Constitution of 1866, 5 Gammel’s Laws of Texas, 860; Art. 3, §§ 4 and 8, Constitution of 1869, 7 Gammel’s Laws of Texas, 399.

In order to avoid confusion, a clear distinction must be made between the phrase, “term of office” and an individual’s tenure of office. The period of time designated as a term of office may not and often does not coincide with an individual’s tenure of office. As to members of the House of Representatives, the Constitution plainly says that “their term of office shall be two years from the day of their election”. This provision has the same meaning as the 1845 provision that “their term of office shall be two years from the day of the general election”. The first Tuesday after the first Monday in November of even numbered years is set as the day of the general election by Article 2.01, Vernon’s Texas Election Code.

The construction of the constitutional provision as to the term of office of the members of the House is important in this way. The relators contend that the general rule as to commencement of terms is that, “The term of office begins from the time, if any, fixed by law, or where no time is fixed, on the day of election or the date of appointment.” 67 C.J.S. Officers § 45, p. 199. While there is authority to the contrary, we are in agreement with this contention and if we were to consider the constitutional provision relating to Senators by itself, we would have no difficulty in saying that the usual senatorial term extended four years from the day of the general election. Further, this seems to be the construction inferentially accepted by the Supreme Court of the Republic in Bradley v. McCrabb, Dallam’s Decisions, p. 504 (1843).

Both the distinction between a “term of office” and an individual’s tenure in office and the beginning date of a term of office in case of constitutional and statutory silence were discussed in the well considered case of People ex rel. Holdom v. Sweitzer, 280 Ill. 436, 117 N.E. 625 (1917). The Supreme Court of Illinois said:

“[T]he exact question raised by the second contention is, when do the terms of office of circuit judges in the state begin and end? A definite time is not fixed by the Constitution of 1870 for the commencement of the terms of office of judges of the circuit court of Cook county or of those who are elected in other circuits of the state, as in the case of other state officers and county officers. The date of election of circuit judges is fixed by the Constitution, and by the laws enacted pursuant thereto, as the first Monday in June of certain years. The duration of the term is fixed by the Constitution as six years. The term of office as fixed by law is sometimes used interchangeably with the term or time of occupancy of the incumbent of such office, but it must be distinctly borne in mind that the term of office as fixed by law is entirely different from the period of time such office is held by the incumbent thereof, sometimes referred to as the term. The general rule seems to be that the term of office, when not fixed as to the date of its beginning and ending by a Constitution or statute, begins in the case of elective offices on the date of election. 28 Cyc. 1398; State [ex rel. Brown] v. Constable, 7 Ohio 7, pt. 1; Marshall v. Harwood, 5 Md. 423; Hughes v. Buckingham, 5 S[medes] & M. 632. * * *”

See also, State ex rel. Moran v. Washburn, 19 Conn.Sup. 316, 112 A.2d 897 (1955). Cf. Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41 (1928); State ex rel. Sanchez v. Dixon, 4 So.2d 591 (Louisiana App.1941); State ex rel. Ross v. Carroll, 133 Wash. 549, 234 P. 22 (1925).

However, the respondent urges that as the framers of the Constitution specifically provided that the terms of House members “shall be two years from the day of their election” and omitted any such provision relating to senatorial terms, they must have intended that the terms of Senators should begin at some time other than the day of election. Respondent likewise urges that there is a long standing Legislative usage or custom that a Senator’s term begins upon the first day of the first Regular Session of the Legislature which is convened after his election.

In reply, relators point out that the Constitution provides that, “The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The Legislature of the State of Texas’ ”, Article 3, § 1, Constitution of Texas, and that there is no provision, constitutional or otherwise, which recognizes the State Senate as a governmental unit in any other way than as an integral part of the Legislature of the State of Texas. The Senate may not by itself remain in session after the Legislature has adjourned, even to consider non-legislative duties imposed upon it by constitutional provision, such as confirming or rejecting gubernatorial appointments. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946). It is pointed out that Article 5423, Vernon’s Ann.Tex.Stats., provides that:

“Those persons receiving certificates of election to the Senate and House of Representatives of the Legislature, and those Senators whose terms of office shall not have terminated, and none others, shall be competent to organize the Senate and House of' Representatives.”

As relating to legislative construction or interpretation, it is urged that it is clearly implied in this Article that a Senator’s term of office begins before the Legislature convenes. It is said that by using the expression, “Senators whose terms of office shall not have terminated”, it must be inferred that all others, i. e. those whose terms have terminated, are not competent to organize the two branches of the Legislature.

It is further urged that a holding that the terms of Senators and House members did not begin upon the same date would be to countenance a somewhat absurd situation, particularly when applied to the disqualification provisions of Article 3, § 18 of the Constitution in that a member of the House could become a legal candidate for the office of Attorney General, while a Senator by reason of a few days’ overlap in terms could not.

We are constrained to agree with relators’ position. We have searched through such records of the various Texas Constitutional Conventions as are available to us and have been unable to find any reason that was advanced for the difference in the wording of the provision relating to senatorial terms and that- relating to terms of the members of the .House. From the Constitution of the Republic to that of 1876, the constitutional clause 'referring to senatorial terms provided fo'r staggered terms and it may be that tiie -phrase fixing a senatorial term at so many “years after day of election” was omitted in the interest of simpler sentence structure and with no intent to provide a different day for the commencement of a senatorial term from that provided for the commencement of a House term.

As heretofore pointed out, there is a clear distinction between a “term of office” and an individual’s incumbency in office. People ex rel. Holdom v. Sweitzer, 280 Ill. 436, 117 N.E. 625 (1917), supra. It further seems that the practice of Legislators taking the necessary qualifying oath at the time of the commencement of the Regular Session of the Legislature was followed by members of the House as well as members of the Senate until 1962 when the Legislative salary was first placed upon an annual rather than a per diem basis. At that time, the Attorney General ruled that members of the House elected at the general election held on November 6, 1962 were entitled to begin drawing their salaries as soon as the canvassing of the returns of the election had been completed and they had taken the oath of office prescribed by the Constitution. Prior to such time, it does not appear that the exact day of the commencement of either a Senator’s or House Member’s term of office was ever raised. It appears that no attempt has ever been made to convene a Special Session of the Legislature between the date of the general election and the date set for the commencement of a Regular Session of the Legislature. These circumstances deprive respondent’s “custom” argument of much force.

We hold that Senator Spears is entitled to the relief prayed for in his petition filed herein.

As to Senator Calhoun, it is suggested that even though Senator Spears is an eligible candidate for the office of Attorney General, it does not necessarily follow that Senator Calhoun is also eligible. It is pointed out that while Senator Spears was elected in November of 1962, Senator Calhoun was elected in November, 1964. A four year term of office would extend almost two years beyond January 1, 1967, the beginning date of the term of office of the Attorney General to be chosen at the 1966 general election.

As we construe Article 3, § 3 of the Texas Constitution, it does not provide that all Senators at all elections shall receive full four years terms. Four years is undoubtedly the usual term of office for a State Senator, but the provision relating to “the term of four years” must be construed in context with that part of Section 3 relating to apportionment. This section provides that, “The Senators shall be chosen by the qualified electors for the term of four years; but a new Senate shall be chosen after each apportionment; * * The provision for the election of a new Senate necessarily qualifies the provision relating to a four year term.

Normal rules of construction require that Article 3, § 3 be read as a whole. Its lan-gauge must be considered in full context and where possible the plain grammatical meaning given to its words. No word or group of words should be over emphasized to the point of disregarding other words or phrases in the section. The application of principles of grammatical construction requires that the word “but” as used in the section be considered as a qualification of something stated in the preceding phrase. The word is not used as a conjunction but refers to the term of a Senator and thus qualifies the usual four year term.

The term of office to which Senator Calhoun was elected in 1964, being subject to the constitutional provisions relating to apportionment, became actually one of two years because of the operation of the apportionment clause. He is a resident of Smith County which at the time of his election in 1964 was a part of the Seventh Senatorial District composed of the Counties of Camp, Henderson, Kaufman, Smith, Upshur, Van Zandt and Wood. Acts 1961, 57th Leg., p. 544, ch. 256. The 59th Legislature, however, adopted an Apportionment Act which placed Smith County in the Second Senatorial District along with the Counties of Gregg, Panola, Rusk, Shelby, Upshur and Van Zandt. Acts 1965, 59th Leg., p. 719, ch. 342, Article 193a, Vernon’s Ann.Tex.Stats.

As Senator Calhoun’s term was subject to apportionment and as the “new Senate” to be elected in accordance with the apportionment provisions of the Constitution on November 8, 1966 will effectively terminate the term of office for which Senator Calhoun was elected, we hold that he is an eligible candidate for Attorney General for the term beginning January 1, 1967.

We think our interpretation of the constitutional provisions is in accordance with and not contrary to the purpose sought to be served by Article 3, § 18 of the Texas Constitution. In Shields v. Toronto, 16 Utah 2d 61, 395 P.2d 829 (1964), the Supreme Court of Utah said:

“The obvious purpose of Section 7, Article (VI) [which is practically identical with Article 3, § 18 of the Texas Constitution] * * * was to guard against dishonesty or improper connivance by or with legislators and to prevent them from being influenced by ulterior schemes to enrich themselves at the expense of the public treasury by creating or increasing the pay of a public office and then taking advantage of it. This purpose is altogether salutary. Let it be said with the greatest of emphasis that the provision referred to should neither be ignored nor evaded, but whenever there is even a remote possibility that the evil it was designed to prevent might exist, it should be applied in such manner as to accomplish its objective. However, when adequate safeguards in that respect are observed, there appears to be no good reason to carry this provision beyond that purpose and make an unreasoning application of it where no such evil, nor any possibility of it exists. This would work injustice by depriving citizens of their basic rights and would also tend to disrupt the orderly processes of democratic government.”

It is in no way detrimental to the public interest .for a member of the Legislature to desire election to the office of Attorney General. In the past, many of the occupants of that office were persons of prior legislative service. Under the Constitution of the United States, the disqualification of members of Congress to hold federal offices was limited to those positions which were to be filled by executive appointment. The threat' of improper motives entering into the creation or improvement of a public office to be filled by election must have been considered remote. It would appear that the principal purpose of Article 3, § 18 of the Texas Constitution is to remove, if possible, any improper personal motive of gain that might influence a Legislator to create or increase the emoluments of a public office with the intention of resigning his legislative post in order to take the office which he, as a Legislator, had helped to create or make more attractive from a financial standpoint. The purpose sought to be served by the provisions of Article 3, § 18 of the Constitution will in no way be frustrated or defeated by holding the relators eligible to hold the office of Attorney General for the term beginning January 1, 1967.

Having considered the wording of said Article 3, § 18 and weighed the purpose of its adoption, we hold that both Senator Spears and Senator Calhoun are entitled to the relief prayed for by them in their respective petitions. Writs will not issue, however, as we anticipate that the respondent will comply with our holdings herein and accept the applications filed by rela-tors and place their names upon the Democratic primary ballot. Should respondent fail to so perform, peremptory writs of mandamus will issue upon application of relators as a matter of course. Because the expiration of the time prescribed for the filing of applications for a place upon the primary ballot under the provisions of Article 13.12, § 2 of Vernon’s Election Code is near at hand, no motion for rehearing will be entertained.

CALVERT, C. J., dissents in cause No. A-11224.

GRIFFIN, J., dissents in both causes Nos. A-11215 and A-11224.

GRIFFIN, Justice

(dissenting).

I regret that I am unable to agree with the majority opinion in either case.

The holding is contrary to all past constructions of the terms of Senators. When the people took out of the Constitution a specific time for the beginning of a Senator’s term and left in the beginning of the term of House members, this shows the people did not intend the members of the House and Senate to begin their terms on the same date.

Since originally deleting the beginning date for a Senator’s term, the people have three times refused to definitely state a beginning date for a Senator’s term. This further fortifies my position. Also, the majority opinion is contrary to all previous constructions of the Constitution by the Legislature, the Attorney General and the Comptroller in issuing pay for members of the Legislature; also those in charge of the determination of eligibility for retirement of Senators.

I would deny the application for mandamus by both relators.

CALVERT, Chief Justice

(dissenting).

I agree that a writ of mandamus should issue in Cause No. A-11215, but I cannot agree that a writ should issue in Cause No. A-11224.

The right of the relator in Cause No. A-11215 to a writ turns entirely on a proper interpretation of constitutional provisions establishing the beginning and ending dates of his four-year term of office as a Senator. I agree, for the reasons stated in the Court’s opinion, that his four-year term of office began on the day of the general election in November, 1962, and will end on the day of the general election to be held in November, 1966, and thus that he is not ineligible to hold the office of Attorney General for a term beginning January 1, 1967, if he should be elected thereto in the general election in November.

The facts in Cause No. A-11224 present an additional and entirely different constitutional problem. The relator in this cause was elected in the general election held in November, 1964; and if his election at that time was for a four-year term from the day of his election, he is rendered ineligible to hold the office of Attorney General for a term beginning January 1, 1967, by the provisions of Sec. 18, Art. III of the Constitution. Sec. 18 provides:

“No Senator or Representative shall, during the term for which he may he elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased during such term; * * * ”

But it is said that Sec. 18 does not render the relator ineligible because at the beginning of his four-year term the Legislature re-apportioned and cut down his term of office to two years. This requires an examination of the provisions of Sec. 3, Art. III. • It reads:

"The Senators shall he chosen by the qualified electors for the term of four years; but a new Senate shall be chosen after every apportionment, and the Senators elected after each apportionment shall be divided by lot into two classes. The seats of the Senators of the first class shall be vacated at the expiration of the first two years, and those of the second class at the expiration of four years, so that one half of the Senators shall be chosen biennially thereafter.”

It will be noted that the opening clause of the section explicitly and emphatically states that “The Senators shall be chosen * * * for the term of four years; * * * ” The authors of the Constitution could hardly have used plainer language. It is undoubtedly true that Sec. 3 provides two circumstances under which a four-year term to which a Senator was elected may effectively be ended before it has run its full course. The four-year term of a Senator who is in office when reapportionment is voted is cut to two years by the requirement for the election of a new Senate. The four-year term of one-half of all Senators elected after re-apportionment is cut to two years by the provision vacating their seats if they are unlucky in the division of the Senate into two classes by lot. In light of these provisions the Court interprets Sec. 18 as though it read: “No Senator or Representative shall, during the term for which he may be elected, be eligible” etc., “except that he shall be eligible if by some other provision in the Constitution the four-year term to which he is elected is reduced to a two-year term.”

As a matter of hindsight, perhaps the authors of the Constitution would now modify the language of Sec. 3 by adding the same exception which the Court has added. If I were entrusted with the power to rewrite or amend the Constitution, I would add the exception; but there is only one way to change the Constitution and that is by an amendment submitted by the Legislature and approved by the electorate. I cannot get my consent to usurp the power.

I would deny relief in Cause No. A-11224.

      . The Texas constitutional provision is similar to that contained in the Constitution of the United States which was no doubt consulted as a model by the framers of the Constitution of the Republic of Texas. Article 1, § 6, par. 2 of the Constitution of the United States relates only to appointments to civil offices and provides that:
      “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been en-creased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
      It appears that in one of the preliminary drafts of the Constitution of the United States, this provision was even more stringent and rendered members of each House “ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.” Report of the Committee on Detail of August 6, 1787. Van Doren, The Great Rehearsal, p. 278. The constitutional safeguard of Article 1, § 6 of the Constitution of the United States is discussed in Essay No. 56 of the Federalist.
      It also appears that a similar provision was contained in the 1827 Constitution of the Mexican state of Coahuila and Texas. It there provided in Article 45 of the First section that:
      “During the time of their service (members of Congress), reckoned for this object from the day of their election, they can obtain no office of provision of the executive, either for themselves, or request it for another, not even promotion, except by the scale in their respective career.” 1 Gammel’s Laws of Texas, 428.
      Article 1, § 23 of the Constitution of the Republic of Texas provided that:'
      “No person holding an offiee of profit under the government shall be eligible to a seat in either house of congress, nor shall any member of either house be eligible to any office which may (be) created or the profits of which shall be increased during his term of service.” 1 Gammel’s Laws of Texas, 1071.
      Article 3, § 24 of the Texas Constitution of 1845 provided that:
      “No Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased, during such term; * ⅜ ⅜.” 2 Gammel’s Laws of Texas, 1282.

      . Senator Calhoun presents an alternative contention that should Article 17, Vernon’s Ann.Tex.Stats. be held unconstitutional, then the term of office for Attorney General would he from date of election and under this construction, the terms of office of the Attorney General and a State Senator would not overlap.

      . The Constitution of 1869 was somewhat anomalous in that Article 3, § 4 refers to “the day of the general election”, while Article 3, § 6 provided for four day county seat voting. See, Ex Parte Rodriguez, 39 Tex. 706 (1873).

      . Respondent cites Alaska S.S. Co. v. Mullaney, 84 F.Supp. 561, 12 Alaska 433 (1949), affirmed on other grounds, 180 F.2d 805, 12 Alaska 594 (1950) and Farrelly v. Cole, 60 Kan. 356, 56 P. 492, 44 L.R.A. 464 (1899). For a collation of cases dealing with the problem, see Annotations, 80 A.L.R. 1290 and 135 A.L.R. 1173.

      . Respondent apparently construes “day of election” to be synonymous with date ⅜‡: certification.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Charlie James WILLIAMS, Ruby Faye Duson, and Lewis Draper, Appellants, v. The STATE of Texas, Appellee.
    No. 39190.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.

      Thomas W. Gamblin, Post, for appellants.
    George H. Hansard, Dist. Atty., Lamesa, Preston Poole, County Atty., Post, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The appellants, Charlie James Williams, Ruby Faye Duson, Lewis Draper, and a codefendant, Ada Mae Howard, were jointly charged by indictment, in separate counts, with the offenses of shoplifting and felony theft. The second count of the indictment charged the theft of two men’s suits of over the value of $50 from one Jim Hund-ley.

Upon a joint trial of all four defendants, the appellants were convicted of felony theft, as charged in the second count of the indictment, and each was assessed punishment of five years in the penitentiary.

At the trial, the appellants Williams and Draper entered pleas of not guilty to the indictment, and the appellant Ruby Faye Duson entered a plea of guilty.

It was shown by the state’s testimony that on the day in question the four defendants named in the indictment came into the Hundley’s Men’s Wear Store in the city of Post, between 3:30 and 4:00 o’clock, p. m. The two women, who were wearing full pleated skirts, went to the side of the store where the men’s suits were kept. One of the men, Lewis Draper, went to the other side of the store and looked at some Bermuda shorts, while the other man looked at some boots. While in the store the two women were seen “squatting” down on the floor in front of the rack of men’s suits. After some ten or fifteen minutes the four left without making any purchase. On the same afternoon the four defendants came into two other stores in the city of Post and appeared to be customers but did not purchase anything. While they were in Martin’s Department Store, the women were on the ladies’ side of the store and after they left, some women’s shoes were found to be missing. While in a Piggly Wiggly store all four of the defendants were at a drug counter, and the next day some deodorant and sanitary sprays were discovered missing.

It was further shown that on the same afternoon patrolman Gene Carpenter observed the four defendants consuming alcohol while seated in an automobile in “the Flats” in the city of Slaton. When he went to their automobile he observed some clothes lying loose on the back seat. The officer directed appellants to drive to the police station and followed in his patrol car. When they arrived at the police station some cosmetics were found in the defendants’ automobile which were identified as items missing from the Piggly Wiggly store in Post. The two women were taken into the judge’s office to be searched, and when they got up to go into the room a Hundley’s Men’s Wear label fell to the floor. Officer Carpenter picked up the label and laid it on the counter near where the two male defendants were standing. The label disappeared and was never seen again. It was shown that the two women were twice searched by the police matron and nothing was found on their persons. But between the time of the first and second search two pair of shoes which were missing from Martin’s Department Store in Post were found under two benches in the judge’s office in which the two women had been sitting. Two men’s suits were also found under the two benches, one of the suits bearing a Hundley’s Men’s Wear label similar to the label which had fallen to the floor and could not be found.

It was shown that the two suits were taken from the owner, Jim Hundley, without his permission and consent and that they had a market value in excess of $50. It was further shown that the two suits were not under the benches in the judge’s office before the two women were taken there to be searched.

The appellants Williams and Draper did not testify, but the appellant Ruby Faye Duson did take the witness stand and testify.

In her testimony, Ruby Faye admitted that she did take the two men’s suits from the Hundley’s men’s store but stated that the other defendants did not know that she took them. She denied that there was any conspiracy between her and her code-fendants to steal the merchandise and she also denied that they went into any other stores in Post on the afternoon in question.

In support of her application for a suspended sentence, the witness (Duson) swore that she had never been convicted of a felony.

The court in his charge instructed the jury to find the appellant Ruby Faye Duson guilty under her plea of guilty and submitted the issue of guilt of the two appellants Williams and Draper upon a charge on the law of principals and circumstantial evidence.

We first overrule the contention that the evidence is insufficient to support the judgment of conviction as against the appellants Williams and Draper.

Recently, in Converse v. State, Tex.Cr.App., 386 S.W.2d 283, similar evidence presented against an accused was held sufficient to sustain his conviction as a principal in the theft of certain property.

Nor did the court err in permitting the state to show that on the day in question the appellants went into other stores in Post and took property therefrom. An issue as to whether the parties were acting together as principals was raised by the evidence. The court admitted the evidence for the purpose of showing identity, system, and intent. In Converse v. State, supra, similar proof was held to be relevant and admissible even though it tended to prove the commission of other offenses.

Complaint is made by bill of exception #3 to certain jury argument of state’s counsel. The bill of exception was approved by the court, with certain qualifications. Appellants excepted to the court’s qualification of the bill but filed no bystander’s bill.

Under the record, nothing is presented for review. Wortham v. State, 169 Tex.Cr.R. 164, 333 S.W.2d 158; English v. State, 170 Tex.Cr.R. 56,338 S.W.2d 446.

The purported bill of exception, #4, to the court’s action in qualifying appellants’ bill of exception #3 presents nothing for review.

The judgments are affirmed.

Opinion approved by the Court.


text:
    William Kirvin BARLOW, Appellant, v. The STATE of Texas, Appellee.
    No. 38933.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied March 2, 1966.

      Paul W. Wisdom, Jr., Cervin & Stanford, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Zimmer-mann, Mike Everett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802b, Vernon’s Ann.P.C., for the subsequent offense of drunken driving; the punishment, eight months in jail.

It was shown by the testimony of the state’s witnesses that on the night in question the appellant, while driving his automobile in a westerly direction on Military Parkway in the city of Dallas, was involved in a collision with a Cadillac automobile that was stopped at a stop sign on Forney Road. In the collision, a trailer, carrying a boat behind appellant’s automobile, struck the Cadillac and appellant’s automobile came to a stop some sixty feet from the intersection.

Officers Short and Stark, who went to the scene and investigated the accident and had occasion to observe appellant, testified that he had the smell of alcohol on his breath, that his speech was slurred and his eyes were bloodshot, and that he staggered when he walked, and each officer expressed his opinion that appellant at such time was drunk. In their investigation the officers found on the front seat of appellant’s automobile a fifth of Canadian Club whisky that was about half full. Two-fifths of Canadian Club whisky which had not been opened and two cases of Busch Bavarian beer were found on the back seat.

Robert H. Stinson, an assistant district attorney, called as a witness by the state, testified that while in private practice on June 25, 1959, he represented the appellant in “Judge Gauldin’s County Criminal Court No. 2 in Cause No. 17882 B,” and that on such date appellant was convicted of the misdemeanor offense of driving while intoxicated. He further testified that such conviction became final prior to the date of the commission of the primary offense.

Testifying as a witness in his own behalf, appellant stated that he had only had two drinks of whisky prior to the time of the collision and swore that the Cadillac automobile was not parked at the intersection but was traveling on Military Parkway, and that the collision occurred when the boat on his trailer jackknifed. On cross-examination, appellant testified that he was the same “William Kirvin Barlow” who Attorney Stinson testified “was convicted in Judge Gauldin’s court back in 1959.”

We overrule appellant’s contention that the evidence is insufficient to support the conviction because the state failed to prove that he had been previously convicted of the misdemeanor offense of driving a motor vehicle upon a public street while intoxicated, as alleged in the indictment.

The testimony of Attorney Stinson and appellant’s own admission while testifying in his own behalf were sufficient to establish this allegation in the indictment.

We also overrule the contention that permitting the state to read the allegations of the second paragraph of the indictment, charging the prior misdemeanor conviction of driving while intoxicated before the jury had passed upon the issue of whether appellant committed the act charged in the first paragraph of the indictment, constituted a denial of due process guaranteed to appellant under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

By the provisions of Art. 802b, supra, under which the indictment was drawn, the prior misdemeanor conviction is an element of the subsequent felony offense of drunken driving. Skaggs v. State, 160 Tex.Cr.R. 20, 266 S.W.2d 871. To sustain a conviction for such felony offense, it was incumbent upon the state to plead and prove the prior misdemeanor conviction. Johnson v. State, 160 Tex.Cr.R. 290, 269 S.W.2d 393. To vest the district court with jurisdiction it was necessary for the indictment to allege the prior misdemeanor conviction. Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93.

We do not agree that Art. 802b, supra, is unconstitutional because it permits the state to plead and prove the prior misdemeanor conviction in making out its case before the jury of the subsequent felony offense of driving while intoxicated.

This court has not followed the holding in Lane v. Warden, 4th Cir., 320 F.2d 179, cited by appellant, but, on the contrary, has consistently rejected the claim that reading to the jury that portion of an indictment alleging a prior conviction for the purpose of enhancement of the penalty, before a determination of guilt of the primary offense, constitutes a denial of due process of law. Ex parte Gomez, Tex.Cr.App., 389 S.W.2d 308; Stoneham v. State, Tex.Cr.App., 389 S.W.2d 468. See, also, Breen v. Beto, 5th Cir., 341 F.2d 96.

•The informal bills of exception appearing in the record have been examined and do not present reversible error.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    James H. QUARLES, Appellant, v. The STATE of Texas, Appellee.
    No. 38867.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.

      J. Charles Whitfield, Jr., Houston, for appellant.
    Tom Kenyon, Dist. Atty., Angleton, Davis Grant, Gen. Counsel for State Bar, Austin, Ralph Gilbert, Member, Grievance Committee, A. R. Mason, Angleton, Past President, Brazoria County Bar Assn., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is barratry; the punishment, a fine of $350.00 and 45 days in jail.

The evidence adduced by the State reveals that on June 22, 1964, the appellant appeared uninvited at the home of the wife of Joe Bill Wells and represented himself to her as an investigator. The appellant stated to Mrs. Wells that he wished to investigate the circumstances surrounding her husband’s death which had been occasioned by the explosion of an oil well in Galveston County on June 14, 1964. The appellant also exhibited certain newspaper clippings depicting the recovery of large amounts of money as damages in similar cases and sought to have Mrs. Wells sign a paper authorizing him to investigate the case, to hire a lawyer of his own choosing to handle the case and to receive a fee of one-third of the damages recovered for the death of her husband. Mrs. Wells demurred and told appellant that she would have to talk with her father before she signed anything. Subsequently that day her father arrived at her home, and the three discussed the possibility of appellant’s investigating the case. According to the father of Mrs. Wells, the appellant said that he could recover between $200,000 and $400,000 for the death, asked them to contact him if they decided to use his services, left his business card and departed.

It was also shown by the testimony of Mrs. Snyder, a friend of Mrs. Wells, that the appellant had come to her house the day after the death of Mrs. Wells’ husband and had asked her to deliver his business card to Mrs. Wells because he did not want to speak to her prior to the funeral of her husband.

The evidence reflected that until he appeared at Mrs. Wells’ house on the day in question, neither she nor her father had ever seen the appellant before.

We find the evidence sufficient to support the jury finding that' appellant sought to obtain employment tó collect the claim of Mrs. Wells for the death of her husband by means of personal solicitation of such employment.

Appellant complains in oral argument of the trial court’s failure to grant his oral motion to quash by which he alleged that the complaint is vague and that the information was not sworn to by the proper official. We find no motion to quash the information in the transcript. Article 513, Vernon’s Ann.C.C.P. requires that all motions to set aside an indictment or information shall be in writing; therefore, such contention is not before us for review. Stecher v. State, Tex.Cr.App., 383 S.W.2d 594; Riley v. State, Tex.Cr.App., 379 S.W.2d 79; and Howard v. State, 157 Tex.Cr.R. 114, 247 S.W.2d 112.

Appellant contends that error was committed by the trial court’s exclusion of Mr. Davis Grant, General Counsel for the State Bar of Texas, from the rule requiring witnesses placed thereunder to be excluded from the courtroom during the examination of other witnesses. Appellant called Grant as a witness; the State did not, and we are at a loss to understand how appellant could be harmed by the failure of the trial court to exclude his own witness. Be that as it may, it has been the holding of this Court that the trial court may excuse attorneys from the application of the rule. Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677. We also note that the testimony adduced by Grant when he was called by the defense was unrelated to the facts divulged by the previous witnesses.

The appellant also attempts to rely on Article 39.14, V.A.C.C.P. (1965) to support his oral motion for discovery. The trial of this case took place in July of 1965, long before the effective date of the new Code of Criminal Procedure. We find no error in the court’s refusal to allow discovery of the documents in the file of the State’s attorney.

The final contention of appellant relates to the admission of evidence of a conviction for a prior act of barratry against the appellant in Nueces County where the modus operandi was similar to the instant case. The trial court allowed the admission of evidence for the sole purpose of proving system, and we are unable to agree that this action constituted reversible error. See Quarles v. State, Tex.Cr.App., 385 S.W.2d 395, cert. den. 82 S.Ct. 601, 368 U.S. 986, 7 L.Ed.2d 524.

We have examined appellant’s remaining contentions and find no reversible error reflected thereby.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Horace Lee GRIDER, Appellant, v. The STATE of Texas, Appellee.
    No. 39272.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.

      Minor Pounds, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is operating a motor vehicle upon a public highway while his operator’s license was suspended under the provisions of Art. 6701h Vernon’s Ann.Civ. St.; the punishment, a fine of $125.

The statement of facts found in the record cannot be considered, it not having been filed in the trial court as required by Sec. 4 of Art. 759a Vernon’s Ann.C.C.P. in effect at the time notice of appeal herein was given. Salyer v. State, 166 Tex.Cr.C. 532, 316 S.W.2d 420; Burrus v. State, Tex.Cr.App., 307 S.W.2d 91.

The complaint and information are sufficient under the holding of this Court in Adams v. State, 376 S.W.2d 832, to charge the offense defined in Section 5 of Art. 6701h V.A.C.S., the punishment for which is found in. Section 32(c) of said Article.

The trial court did not err in overruling the appellant’s motion to quash the information.

In the absence of a statement of •facts which we can consider, the question of whether there is a fatal variance between the allegations of' the indictment and the proof as to the ground upon which appellant’s operator’s license was suspended, and whether such suspension 'was under Art. 6687b V.A.C.S. rather than under. Art. 6701h V.A.C.S. is not before,us.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Librado A. GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39191.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.

      Sam J. Dwyer, Jr., El Paso, for appellant.
    Jack N. Fant, County Atty., Norman C. Peyton, Asst. County Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated; the punishment confinement in jail for three days and a fine of $50.00.

The evidence reflects that Richard Mc-Alpine, at about 8:30 p. m. on the evening of May 27, 1961, heard an unusual noise outside the house where he was visiting. He ran out to the street where he noticed that an automobile had been side-swiped, and he sav another vehicle driving slowly away. McAlpine then got into his car and followed the other automobile until it stopped. The driver of the other vehicle, which McAlpine identified as appellant, got out of his car and had a brief conversation with the witness, at which time Mc-Alpine informed him of the accident. McAlpine testified that appellant smelled of alcoholic beverage, that he was unsteady in his walk, and that “he was a little bit incoherent.” In the opinion of the witness, appellant was intoxicated.

The incident was investigated by Officer Bernard Deragowski of the El Paso Police Department, who testified that appellant smelled of alcohol, that he was staggering, and that “his manner of talk was smart,”1 and that, in the opinion of that officer, appellant was drunk.

Officer Alfredo Bonilla also assisted in the arrest of appellant, and testified as to appellant’s condition:

“He had a strong odor of alcohol on his breath and about his person and he staggered when he walked, as a matter of fact when he got to the car he was more or less having to lean on the vehicle to keep control of himself.”

Officer Bonilla expressed the opinion that appellant was intoxicated.

There was paint on the bumper of appellant’s automobile which matched the color of the automobile that had been sideswiped. Testimony reveals that the scene of this incident was a public road in the city of El Paso County, Texas.

Appellant testified in his own behalf and stated that he had drunk only two drinks of bourbon at a wedding celebration; that, as a result of a World War II injury, he always staggered when he walked; and that he was not intoxicated.

Appellant challenges the sufficiency of the evidence, contending that there is no proof that he was operating an automobile. We find abundant testimony in the statement of facts to the effect that appellant was the driver of the vehicle involved in the accident. The witness McAlpine testified;

“* * * and as j approached about the middle of the block here between Aurora and Lebanon, I saw him turned around, come back and stop. I proceeded on and stopped on the side — • the opposite of the street and informed him that he had hit a car and should go back to the scene of the accident.”
Q: “Now did you have an opportunity to see the driver of that car that made a U turn and came back and parked?”
A: “Yes, I did.”
“Is he present today? a
“Yes.” c
“Would you point him out?” a
“Sitting right over there.” (pointing to appellant)

And on cross-examination:

Q: “All right, so when you drove up., as you testified Mr. Gonzalez was still in sight and was coming south on Raynor, you were going North on Raynor, I believe, after turning left on Aurora Street and Raynor ?”
A: “Yes.”
Q: “All right, now, as you came up there did he have his lights, his head lights on?”
A: “Yes, sir, he did.”
Q: “You had your head lights on?”
'
A: “Yes, sir.”
Q: “All right, and you observed him driving?”
A: “That he was the only one in the car.”
Q: “Well, did you observe him driving, or do you just presume he was behind the wheel?”
A: “Well, I couldn’t actually see him behind the wheel, but he was the only one in the car.”

When appellant was testifying he stated:

“I got real close to another automobile about two blocks before I got home, I didn’t think I had hit anybody but I know that we got real close together.”
⅝ ⅜ ⅜ }}c ⅜ ⅜
Q: “Then you admit driving the car by there ?”
A: “I admit going home and I was driving the car when I was going home.”

We overrule appellant’s contention and find the evidence sufficient to support the verdict.

There are no formal bills of exception, and an examination of appellant’s informal bills reveals no error.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Dave A. DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38955.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Lola L. Bonner (On Appeal Only), Rock-port, for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $250.

Texas Highway Patrolman Brown testified that about 1:40 a. m., he overtook a pickup travelling upon a public highway, which was twice driven from the right extreme side of the highway gradually across the center line to the opposite side of the highway within a distance of one mile, and by the use of the red light and siren on the patrol car the appellant stopped the pickup; that the appellant was unsteady in his movements and staggered after he got out of the pickup; that he could smell the odor of alcohol on his breath; and expressed the opinion that the appellant was intoxicated.

Joe Dominguez testified for the state and his testimony is substantially the same as that of the witness Brown.

Testifying in his own behalf, the appellant admitted driving the pickup upon the public highway, and that he had had several drinks of whiskey before he was stopped but that he was not drunk; that because of a strenuous day’s work he was sleepy and that he was asleep rather than drunk at the time the patrolman stopped him.

The jury resolved the issue of intoxication against the appellant and the evidence is sufficient to support the conviction.

Appellant’s sole contention in his brief is that the trial court erred in allowing his case to proceed to trial without first appointing counsel to represent him.

The record reveals that the following proceedings in this cause occurred at the bench out of the hearing of the jhry:

“The Court: Are you represented by counsel, Mr. Davis? (appellant)
The Defendant: No, sir.
The Court: Is that a matter of choice, or a necessity?
The Defendant: I would say choice.
The Court: By choice. In other words, you are able to hire an attorney, but you choose and elect to be heard by the Court and the 7ury, yourself, without benefit of counsel?
The Defendant: That is correct.
The Court: You realize that that places some burden on the trial; the trial has to be governed by rules of law and evidence and that you, in serving as your own counsel, must be governed by the rules of court, and you are subject to all the rules of the court just as if you were an attorney?
The Defendant: Well, sir, that will be fine.
The Court: All right. You understand that you have right to have witnesses in your behalf and have process whereby you may subpoena them to be here. Do you have witnesses, or do you desire witnesses?
The Defendant: No, sir, I have none.
The Court: Now, when the Jury is selected, you will have the right to strike three names from that list without any cause whatsoever. (The court further advised the appellant upon jury selection procedure.)
The Court: The cause of the State of Texas versus Dave A. Davis is called, Number 1738.
Mr. Clark: The State is ready, Your Honor.
The Court: Is the Defendant ready?
The Defendant: Yes, sir, I am ready.”

From the record as shown, it is concluded that the appellant expressly waived his right to counsel upon the trial of this cause. Beardsley v. State, Tex.Cr.App., 394 S.W.2d 801; Brignon v. State, Tex.Cr.App., 399 S.W.2d 810, dated February 16, 1966; Adams v. United States, ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Juelich v. United States, 5 Cir., 342 F.2d 29.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Olen THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39239.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is possession of alcoholic beverage for the purpose of sale in a dry area; the punishment, a fine of $350.00.

The offense occurred within the city limits of Slaton, Lubbock County, Texas, which was stipulated by the parties to be a dry area.

The record reflects that Highway Patrolmen Kuykendall and Walters were on routine patrol on Highway 84 in Slaton, Texas, at about 7:30 p. m. on January 9, 1965, when they observed an automobile driven by appellant stop in the middle of the highway. The automobile soon resumed moving forward, but after going a short distance, once again stopped in the traffic lane, almost causing a collision with another automobile.

Officer Kuykendall testified that he pursued appellant’s automobile and turned on the red light of the patrol car, and appellant pulled over to the side of the road and stopped. Both officers got out of the patrol car and approached the other vehicle, with Officer Kuykendall going to the driver’s side and Officer Walters remaining at the rear. Officer Kuykendall asked appellant for his driver’s license, which was produced. The patrolman instructed appellant to accompany him to the patrol car, and noted the odor of alcoholic beverage on his breath. He also observed appellant run into the right door of the patrol car as he was getting into the front seat. The witness testified that he placed appellant under arrest at that time for parking on the roadway.

Patrolman Walters testified that from appellant’s demeanor while driving, he appeared to be drunk, and after his partner took appellant back to the patrol car and began writing out the custody arrest ticket, he approached the right side of appellant’s automobile for the purpose of searching for liquor, and as he shined his flashlight into the automobile, a lady in the right front seat was “pushing her coat down around her legs.” When asked what was under the coat, she said, “Nothing.” The officer then asked her permission to look, whereupon she raised the coat, exposing a sack containing 24 half-pints of whiskey. Walters seized the sack and its contents and placed it in the patrol car, at which time Patrolman Kuykendall made a more thorough search of appellant’s vehicle and found two opened half-pints of whiskey and four cans of beer under the driver’s seat.

The trunk of appellant’s vehicle was locked and appellant had no key, consequently the trunk was not searched until the automobile was driven into Lubbock, Texas. As Patrolman Kuykendall, with appellant in his custody, was driving into Lubbock, appellant told the officer that “maybe there’s one case of wine in the trunk.” Immediately upon arriving in Lubbock, the patrolman removed the back seat of appellant’s vehicle in order to gain access to the trunk, where he found four cases of wine and one case of beer.

Appellant did not take the stand or adduce evidence or testimony in his behalf, and the evidence is sufficient to support the conviction.

There are no formal bills of exception, but several informal bills complain of the admission into evidence of the alcoholic beverage which was seized as described above. Appellant contends that the search of his automobile at the scene of his arrest was unlawful because there was no warrant issued and no reasonable grounds to search without a warrant. While there is some evidence that Officer Walters had the permission of the lady in possession of the whiskey to initiate the search, we need not rule on this issue, because the search was made incident to the lawful arrest of appellant for violation of the traffic laws, and under circumstances which justified further investigation. Walker v. State, Tex.Cr.App., 397 S.W.2d 432, Opinion delivered January 5, 1966; Anderson v. State, Tex.Cr.App., 391 S.W.2d 54.

Appellant also objected to the admission of the arresting officer’s testimony concerning the statement made by appellant to the effect that more alcoholic beverage could be found in the trunk of his automobile, contending that this statement amounted to an oral confession elicited while appellant was under arrest. The oral statement led the officers to part of the evidence used to establish his guilt and was admissible tinder the provisions of Article 727, Vernon’s Ann.C.C.P., in effect at the time of appellant’s trial. Henderson v. State, 172 Tex.Cr.R. 75, 353 S.W.2d 226. The information gained by the officer from this conversation gave him probable cause to search the trunk of the automobile. Ponder v. State, 159 Tex.Cr.R. 585, 265 S.W.2d 836.

Appellant’s remaining exceptions do not present error, and the judgment is affirmed.


text:
    Johnny Leo HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 39268.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault; the punishment, 25 years.

Appellant entered his plea of guilty before the court without the intervention of a jury, and the court heard evidence in accordance with the provisions of Article 12, Vernon’s Ann.C.C.P.

Witness Chapman, President of the Ire-dell State Bank, testified that the appellant appeared at his bank on the morning of January 20, 1965, in the company of another man and that they robbed the bank at gunpoint of $16,350.00.

The State introduced the confession of appellant wherein he admitted committing the robbery and detailed the manner and means by which he and his companion had perpetrated the same.

The evidence is sufficient to support the court’s finding of appellant’s guilt.

In the transcript we find a “Motion and Plea of Former Jeopardy” alleging a former conviction in Federal Court. Nowhere in the statement of facts do we find any evidence that the allegation of the motion or plea was true; therefore, the question is not before this Court for consideration. Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516. If it were true, it would constitute no defense. Garrett v. State, Tex.Cr.App., 387 S.W.2d 53, and cases there cited. This being so, we are not called upon to pass upon the question of the propriety of a special plea where a plea of guilty is entered.

Finding no reversible error, the judgment is affirmed.


text:
    Loy Gene BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39264.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunk driving; the punishment, ten days in jail and a fine of $300.

The state’s evidence shows that on the date alleged the appellant was stopped and arrested by police officer L. C. Jones while driving his automobile upon a public street and highway in the city of Orange. Officer Jones testified that before stopping appellant he observed that the automobile he was driving was being operated at an excessive rate of speed and was weaving in its traffic lane on the highway. He further stated that after he stopped the appellant he observed that he staggered when he walked, his speech was slurred, and he had a strong odor of alcohol on his breath; and expressed his opinion that at such time appellant was intoxicated.

Officer Edgar F. Blood, who observed appellant at the scene following his arrest, also gave a similar description of his actions and appearance and expressed his opinion that appellant was under the influence of alcohol.

It was further shown that a j4 quart vodka bottle with one inch of liquid in it was found in appellant’s automobile and that at the time of his arrest appellant had on his person a Texas operator’s license, #1891538.

State’s exhibit #2, consisting of certified copies of a complaint, information, and judgment in Cause No. 3370-C, styled The State of Texas vs. Loy Gene Brown on the docket of the District Court of Johnson County, was introduced in evidence, which showed that on September 20, 1960, the defendant named therein was convicted of the misdemeanor offense of driving while intoxicated. Also included within the exhibit was a certified copy of a mandate issued by the clerk of this court, dated February 17, 1961, showing that in an appeal from the judgment of conviction the same was affirmed and had become final.

Records of the drivers license division of the Department of Public Safety were introduced in evidence, showing the issuance of a Texas operator’s license, #1891538, to Loy Gene Brown and containing a description of the said licensee.

The records introduced further showed that on September 20, 1960, Loy Gene Brown, the holder of such license, was convicted in the District Court of Johnson County, in Cause No. 3370-C, of the offense of driving while intoxicated.

Testifying as a witness m his own behalf, appellant admitted driving his motor vehicle on the day in question but denied that he was intoxicated. He stated that both his speech and walking were impaired by reason of a neurological condition and that he had twice during the day taken some nitroglycerin and a mixture of ammonia water and vodka for this condition and also heart trouble.

The jury by their verdict resolved the disputed issue of intoxication against the appellant, and we find the evidence sufficient to sustain the conviction.

There are no formal bills of exception or objections to the court’s charge.

The informal bills of exception appearing in the record in the statement of facts have been considered and no reversible error is presented.

The judgment is affirmed.

Opinion approved by the court.


author: PHILLIPS, Justice.

text:
    Chester R. MORRIS, Appellant, v. Pat BAILEY, Appellee.
    No. 11359.
    Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1966.
    Rehearing Denied Feb. 9, 1966.
    Chester R. Morris, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis, Pat Bailey, Asst. Attys. Gen., Austin, for appellee.
   PHILLIPS, Justice.

This is an appeal by appellant, Chester R. Morris, from a judgment of the District Court of Travis County, Texas, sustaining appellee, Pat Bailey’s Motion for Summary Judgment.

Appellant sought money damages from the appellee, an Assistant Attorney General of the State of Texas, for allegedly willfully and consistently trying to involve the appellant in indefinite litigation, for allegedly seeking delay in litigation and for allegedly causing the Attorney General of Texas to appear in many cases involving the appellant.

Appellee filed a Motion for Summary Judgment in addition to other pleadings and upon a hearing upon such Motion the trial court sustained same and entered judgment that appellant take nothing.

Appellant’s answer to appellee’s Motion for Summary Judgment in no way denied or disputed the material factual allegations set forth in appellee’s Motion for Summary Judgment. We hold that the trial court was correct in sustaining appellee’s Motion for Summary Judgment, for as stated in 7 Tex.Jur.2d, Attorneys at Law, § 136, p. 206:

“In general, an attorney deals at arm’s length with adverse parties, he owes them no duty, and is not liable to them for his actions as an attorney in behalf of his client. Attorneys are authorized to practice their profession, to advise their clients, and to interpose any defense or supposed defense, without making themselves liable for damages.” (Emphasis added.)

Also, in the case of Kruegel v. Murphy, Tex.Civ.App., 1910, error ref., 126 S.W. 343, the court had before it a case where a litigant in a prior case filed suit for damages against the judge, clerks and attorneys involved in the prior suit complaining of their actions in connection with the prior suit. The trial court denied the complaining party the relief he sought and the appellate court in affirming the action of the trial court stated that:

“The petition sets out the matters that were involved in the former actions and joins other parties therein. It contains wholesale charges of fraud, corruptions, conspiracy, and combination to defeat plaintiff’s rights, but there are no specific acts set forth showing plaintiff’s right to recover damages, or that the judges, attorneys, and clerks did not have the right to do the acts complained of. * * * The attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages. * * * ”

See also Traders & Gen. Ins. Co. v. Keith, Tex.Civ.App., 1937, 107 S.W.2d 710, error dismissed.

In the instant case it is undisputed that all of the activities of appellee in connection with appellant’s prior litigation was in the capacity of an attorney representing a party which appellant had sued. Such being the case, and in view of the foregoing authorities, it is clear that the appellee had the right to interpose any defense or supposed defense and make use of any right in behalf of such client or clients as appellee deemed proper and necessary, without making himself subject to liability in damages to the appellant. In this connection it should be noted that any other result would act as a severe and crippling deterrent to the ends of justice for the reason that a litigant might be denied a full development of his case if his attorney were subject to the threat of liability for defending his client’s position to the best and fullest extent allowed by law, and availing his client of all rights to which he is entitled.

The appellant appears to have essentially based his complaint against appellee upon the allegation that appellee had on occasion requested motions for continuance in behalf of the parties he represented. However, the appellant has completely failed, in the language of Kruegel v. Murphy, supra, to show that appellee “ * * * did not have the right to do the acts complained of * * * ” namely, to file motions for continuance in behalf of the party he represented. Conversely, pursuant to Rule 251 and Rule 252, Texas Rules of Civil Procedure, the appellee was expressly authorized to request a continuance on behalf of the party or parties he represented under certain conditions.

Appellee had the right, pursuant to the foregoing Rules of Civil Procedure, to file such motions for continuance, in behalf of the parties he represented, as he felt justified. The decision, however, of whether such continuances were granted rested with the trial court rather than with ap-pellee.

There existing no genuine issue of any material fact concerning that all of ap-pellee’s acts complained of by appellant were acts of an attorney representing his client, then under the decision of Kruegel v. Murphy, supra, the trial court was correct in sustaining appellee’s Motion for Summary Judgment.

Appellee has set forth in his Motion for Summary Judgment that in all instances complained of by appellant he was acting as an Assistant Attorney General in representing the State of Texas, its officers, agents and employees. The appellant in his answer to appellee’s Motion for Summary Judgment has wholly failed to dispute these material facts.

We affirm the judgment of the trial court.

Affirmed.


author: BARROW, Justice.

text:
    MILES-SIERRA COMPANY, Inc., et al., Appellants, v. David CASTILLO et al., Appellees.
    No. 14433.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 12, 1966.
    Motion for Rehearing Overruled Feb. 16, 1966.

      Grady Barrett, Matthews, Nowlin, Mac-farlane & Barrett, Roy Barrera, San Antonio, for appellants.
    Rudy Rice, M. C. Whitehead, San Antonio, for appellee.
   BARROW, Justice.

Miles-Sierra Company, Inc., and two of its former employees, Ora L. Seaton and Charles L. Seaton, appeal from a judgment based on a jury verdict whereby David Castillo recovered from appellants, jointly and severally, damages in the sum of $82,-825.73, for personal injuries sustained on August 21, 1961, when a dump truck operated by Castillo overturned. Texas Employers Insurance Association, workmen’s compensation carrier for Castillo’s employer, Crea Brothers, recovered judgment of $10,173.73 out of this sum for workmen’s compensation benefits it had paid Castillo.

Miles-Sierra Company, Inc., was the general contractor under the United States Corps of Engineers to excavate and remove dirt and other materials from the San Pedro Creek Channel in San Antonio. Crea Brothers,' as sub-contractor, furnished to Miles-Sierra a number of trucks with drivers, including Castillo, to remove the excavated material and haul it to a designated dumping ground. The Crea Brothers dump trucks were Ford single-axle trailers of 10-12 yard capacity, which were connected to the cab by means of a fifth wheel, and their loads were dumped by a hydraulic arm in the front center of the bed which lifted the front of the bed and caused material to slide out the rear. The trucks were loaded by a dragline operated by Ora L. Seaton, who was assisted by Charles L. Seaton as spotter. The loaded trucks would proceed to a dumping area consisting of several abandoned gravel pits a few miles from where the channel was being excavated. The usual procedure was to dump the dry material from the top of the gravel pit, while the mud or wet material was taken down to the floor of the pit and dumped. Miles-Sierra, through its employees, was in charge of both the loading and dumping operations.

About 2:00 a. m. on August' 21, 1961, Castillo’s trailer was loaded with mud or wet material and he proceeded to the dumping area. He testified that a spotter directed him to go down into the pit to dump. After another spotter signaled that he was in a proper position to dump, Castillo engaged the hydraulic arm by controls in the cab and commenced the dumping procedure. While the trailer was being elevated, the trailer and cab turned over on the right side and Castillo was injured.

The jury found that Ora L. Seaton negligently overloaded the trailer to the right front, and the spotter, Charles L. Seaton, failed to keep a proper lookout. The jury also found that an employee of Miles-Sierra was in the pit where Castillo dumped; that this employee negligently spotted Castillo’s trailer with the left wheel higher than the right, and that this spotter failed to keep a proper lookout. Each of these acts of primary negligence was found to be a proximate cause of the accident. The jury found that Castillo failed to keep a proper lookout, but this failure was not a proximate cause. All other defensive issues were answered favorably to Castillo.

The crucial issue in dispute in the trial court was whether or not Miles-Sierra had a spotter in the pit directing the dumping operations at the time of the accident. Under the undisputed evidence, the wheels of the trailer must be on level ground in order to safely dump the load. An expert witness testified that an eight-inch difference during the dumping procedures could cause the load to overturn. Castillo testified that the pit was dark and that he was directed to the dumping location by the flashlight signals of the spotter. Miles-Sierra introduced evidence that it had no spotter in the pit on the occasion in question and that the drivers were in complete charge of the dumping of their load. Castillo’s testimony that a spotter directed the dumping procedure was corroborated by other witnesses, including Crea Brothers’ foreman, and the jury resolved this conflict by finding that a spotter furnished by Miles-Sierra negligently spotted Castillo’s trailer on unlevel ground.

Appellants seek a reversal of the judgment, and rendition that Castillo take nothing under the “volenti non fit injuria” or “no duty” doctrine. Appellants concede that Castillo was an invitee on this occasion, but urge that the risk or danger was known and appreciated by him.

The Supreme Court has recently considered these doctrines and it is now settled law. that an invitee cannot recover if he knows of the condition, realizes and appreciates the danger, or .is charged as a matter of law with such knowledge, realization and appreciation. Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

Castillo admitted that he knew the trailer wheels must be on level ground when dumping. However, there is no evidence that Castillo knew his left wheel was higher than the right wheel, and he cannot be charged as a matter of law under this record with that knowledge. He testified that the pit was dark, and he denied seeing any mound of dirt prior to the accident. All drivers were instructed to remain in the cab during the loading and unloading procedures. An expert witness called by Castillo testified that by reason of the play in the fifth wheel, the left wheel of the trailer could be raised by as much as fourteen inches higher than the right wheel without being noticed in the cab. This testimony was corroborated by photographs. A bulldozer was furnished by Miles-Sierra to keep the dumped material level in the pit. Castillo denied that he could see under the wheels by means of the rear view mirror and the rear lights of the cab. There was positive testimony from Castillo and other drivers that a spotter was present who directed the driver in backing to the exact spot where the load was to be dumped. We cannot say that this evidence shows as a matter of law that Castillo knew his left wheels were on a mound at the time he commenced the dumping procedure.

Appellants also seek a rendition by urging that Castillo’s failure to keep a proper lookout was a proximate cause of the accident as a matter of law, and the trial court should have entered judgment for them non ' obstante-veredicto. It is fundamental that ordinarily' questions of .proximate cause are fact issues for the jury. 40 Tex.Jur.2d,. Negligence, § 165. We; cannot say from the record in this case that reasonable minds could not differ as to whether Castillo’s failure to keep a proper lookout was a proximate cause. He testified that he stopped his truck and commenced the dumping procedure pursuant to the directions of the spotter. There was expert testimony that when the center of gravity shifted to where the left wheel left the ground the driver was powerless to prevent his truck from overturning. The trial court properly submitted the issue of proximate cause to the jury and we are bound by their negative finding.

The appellants seek a remand of the case because of the erroneous admission of evidence, because of the trial court’s failure to submit certain requested issues, and because of the erroneous overruling of their objections to the court’s charge.

Appellants severally and Miles-Sierra separately complain of the admission, as original evidence against all three defendants, of written statements taken from defendants Ora L. and Charles L. Seaton nearly two years after the accident, by an attorney working for Castillo’s leading counsel. Ora L. and Charles L. Seaton were each called as an adverse witness by Castillo and after identifying the statement and his signature thereon, the statement was offered in evidence without any limitation. At the time Charles L.’s statement was offered, an objection was made on behalf of all defendants to the effect that the statement had been refuted when the deposition of Charles L. was taken, and was not admissible as original evidence. This objection was overruled, and after part of the statement had been read an additional objection was urged that it was hearsay as to Miles-Sierra. This obj ection was also overruled. Miles-Sierra’s counsel subsequently objected that the witness had no authority to make a statement about the scope of his employment, and asked that the court instruct the jury not to consider the statement insofar as Miles-Sierra was concerned. All of these objections were urged when the statement of Ora L. Seaton was first offered.

Both statements were identified as being signed by the party giving same. A dispute was raised under the evidence as to whether either statement fairly reflected the facts as known by the Seatons or whether they reflected the views of the attorney taking same. This dispute was for the jury. Since both Seatons were parties to the suit, the statement of each was admissible as original evidence against the party giving same, since they constituted admissions. Isaacs v. Plains Transport Co., 367 S.W.2d 152 (Tex.1963); Taylor v. Owen, Tex.Civ.App., 290 S.W.2d 771, wr. ref. n. r. e.; McCormick & Ray, Texas Law of Evidence, § 1164.

Both statements were hearsay insofar as Miles-Sierra is concerned. Neither Seaton was in the employ of Miles-Sierra at the time of giving the statement, and the statements were obviously not res gestae and not made within the scope of employment. Although we do not believe that Miles-Sierra sought to limit the use of Charles L.’s statement as specifically and clearly as it should have, the objection it made called the hearsay nature of the statement to the attention of the trial court and opposing counsel.

We cannot say, however, from an examination of the entire record, that the erroneous admission of these statements was reasonably calculated to and probably did cause the rendition of an improper judgment against Miles-Sierra. This error was therefore harmless. Rule 434, Texas Rules of Civil Procedure; Duncan v. Smith, 393 S.W.2d 798 (Tex.1965); Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (Tex.1958).

Neither Charles L. nor Ora L. Seaton was present at the pit where the accident occurred and neither statement purported to give any information relative to the dumping procedure. Charles L. admitted that his father had loaded Castillo’s truck prior to the accident and that it was overloaded when sent to the dumping area. He further admitted that the spotter was supposed to manually correct the load if it was overloaded. Ora L. said that the loads were not checked because they were behind on the job. He admitted that drivers were instructed not to leave the cab while loading and that full responsibility for correctly loading the trucks was upon the dragline operator and spotter.

It is seen that the statements relate only to improper loading of the truck and not to the dumping procedure. No information is given bearing upon the two findings of primary negligence proximately causing the accident which occurred at the pit. Neither Seaton purported to know anything on the crucial issue of whether Miles-Sierra furnished a spotter in the pit who directed Castillo. Both of the Seatons were present and represented by counsel at the trial. Both of their statements were, at least in part, refuted. The illogical nature of a party admitting fault in writing to the attorney for the adverse party was fully developed in argument by Seatons’ attorneys. It is therefore our opinion, from an examination of the record, that the erroneous admission of these hearsay statements as original evidence against Miles-Sierra was harmless error.

Appellants also complain of the trial court’s permitting, over their timely objection, Castillo’s attorney to cross-examine appellants’ medical witness, Dr. Do-nop, by reference to medical reports sent to Dr. Donop by Dr. Day, a specialist to whom Dr. Donop had referred Castillo. This evidence was cumulative and is harmless error in any event, in that no complaint is urged by appellants that the judgment is excessive.

Appellants urge that if the record does not show as a matter of law that Castillo had voluntarily assumed the risk incident to the dumping procedure, in any event, .disputed issues were raised under the evidence and the trial court erred in not submitting their requested issues to the jury. The issues requested by appellants do not raise this defense in substantially correct form and therefore no error is shown in refusing to submit them. Rule 279, T.R.C.P. These requested issues would not establish that Castillo knew, realized and appreciated that his trailer wheels were not on level ground when he started .the dumping procedure, or that the trailer was overloaded on the right front. The trial court did submit a question as to whether Castillo saw that his truck was on level ground before starting the dumping procedure and the jury answered that he did not see this condition. No issue was submitted or requested as to whether Castillo discovered the trailer was overloaded on the right front.

Complaint is also made of the trial court’s refusal to submit an issue on unavoidable accident although appellants affirmatively pleaded this defense and timely requested its submission. The applicable rule is that if the evidence does not raise the issue that something other than the negligence of one of the parties to the event caused the accident, then it does not raise the issue of unavoidable accident. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (Tex.1952); Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790 (1941); Continental Oil Co. v. Lindley, Tex.Civ.App., 382 S.W.2d 296, wr. ref. n. r. e.; Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, wr. ref. n. r. e.

Appellants assert that the issue is raised by the testimony of the witness Steele, who was the foreman fór Crea Brothers on this job. He was called as a rebuttal witness for Castillo. On cross-examination he admitted there were several causes of a trailer overturning while dumping. In addition to the danger of dumping on unlevel ground, he testified that a broken spring or a flat tire could cause such an accident. There was no evidence that this trailer had either condition. Steele denied that the procedure of “popping the tailgate” could do so. (This procedure involves violent movement of the trailer to loosen stuck mud.) He was also interrogated on cross-examination concerning the driver’s duty to watch the trailer bed go up by looking through the rear window of the cab. On re-direct examination, after asking Steele several questions concerning “popping the tailgate” and the spotter’s direction of the truck drivers, Castillo’s counsel asked: “Y ou also was asked about watching the bed of your truck go up. At night is it difficult to see well by looking out or looking in your mirrors in a darkened area and see the situation of your truck or not?” Steele answered: “It would be, but maybe you’ll raise your truck halfway up or two-thirds of the way up and maybe this side will all come out and then your truck flops because this side over here sticks and then this side just comes out. Just what kind of dirt they put in you.”

This answer was not pursued further by either counsel, but appellants urge that this testimony raises the issue of unavoidable accident. There was other testimony that the wet mud was sticky and that a machine was maintained at the pit to clean out the trailer beds when mud stuck in them. This bed was cleaned out after the accident although there is no evidence as to how much mud was in it or where it was located. There was no evidence that Castillo “popped the tailgate.”

It is our opinion that this testimony amounts to no more -than a scintilla that the accident was caused by something other than the negligence of a party to the event. No original evidence was offered which would support such a theory and the ambiguous and unresponsive answer of Steele was not clarified. The trial court did not err in refusing to submit the issue of unavoidable accident.

Error is not shown in the trial court’s refusal to submit requested issues inquiring as to whether Crea Brothers instructed Castillo not to dump when the truck was on unlevel ground and whether Castillo’s failure to heed same was a proximate cause. Castillo, although denying such an instruction, admitted that he knew it was dangerous to dump on unlevel ground. The crucial issue which was submitted to the jury was whether Castillo knew the trailer was on unlevel ground, and the jury resolved this dispute in his favor. Further, the jury found that Crea Brothers did not fail to adequately warn and instruct Castillo as to the safe operation and handling of the truck and trailer. The requested issues were merely shades of the submitted issues, and no error is seen in the trial court’s refusal to submit them.

The trial court did not err in refusing to give appellants’ requested definition of “overloaded the load to the right front” in connection with the issue of primary negligence. These are words of common usage and when considered with the evidence they properly submitted this act of negligence on the part of Ora L. Seaton. Further, there is evidence to support the jury’s finding that this negligent act was a proximate cause of the accident. There was evidence that a trailer which is overloaded on one side can turn over during the dumping procedure. In addition to the statement of Charles L. Sea-ton that the trailer was overloaded, two other witnesses testified that Castillo’s trailer was overloaded on the right front just prior to the accident. The trial court properly submitted these issues to the jury and there is evidence to support the finding that the truck was negligently overloaded on the right front by Ora L. Seaton and this negligence was a proximate cause of the accident.

We have considered all of appellants’ P°ints of error and find no reversible error ⅛ any of these assignments. The judgment of the trial court is therefore in all things affirmed.

      . “Question No. Do you find from a preponderance of the evidence that the Plaintiff, David Castillo, had full knowledge of the condition of the premises where his truck overturned?
      Answer ‘Yes’ or ‘No.’
      “If you have answered the foregoing question ‘Yes’ but only if you have so answered the same, then answer the following question:

        “Question No. S3. Do you find from a preponderance of the evidence that on the occasion in question David Castillo appreciated the extent of the danger, if any, in the trailer dumping procedure?
      Answer ‘Yes’ or ‘No.’
      “If you have answered the foregoing question ‘Yes,’ hut only if you have so answered the same, then answer the following question:

        “Question No. Si. Do you find from a preponderance of the evidence that David Castillo voluntarily exposed himself to such known and appreciated danger, if any you have found, as a result of an intelligent choice?
      Answer ‘Yes’ or ‘No.’ ”