author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. Lloyd Leo ANDERSON, Appellant.
    No. 49339.
    Supreme Court of Missouri, En Banc.
    Dec. 9, 1963.
    Rehearing Denied Jan. 13, 1965.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
    James J. Rankin, St. Louis, for appellant.
   DALTON, Judge.

Defendant was charged and convicted of murder in the first degree of one Thomas Grupe in the City of St. Louis and the jury assessed his punishment at death. Sections 559.010 and 559.030 RSMo 1959, V.A.M.S.

On May 18, 1961, one Paul Speckart owned and operated the Speckart Rexall Drug Company located at 4100 West Natural Bridge in the City of St. Louis, Missouri. About 9 p.m. on the date mentioned, he was alone in the store and was standing behind the prescription counter and to the left of the cash register. His mother and the delivery boy, Thomas Grupe, were out of the store making prescription deliveries. At that time a Negro man entered the store and asked for sulphathiazole. While Speck-art was explaining to him the necessity of a physician’s prescription two Negro men about 18 to 19 years of age entered the store. The taller of these two men was later identified as Clewiston Jones, and the shorter one was the defendant, Lloyd Leo Anderson. Jones and Anderson started around the counter toward Speckart and Speckart observed that they had sawed-off shotguns in their hands and were pointing these shotguns at him. Jones struck Speck-art with the butt end of his shotgun and knocked Speckart to the floor. While on the floor, he was struck several times about his head and shoulders and then told to get up and open the cash register. Speckart opened the cash register and was then ordered to get back down on the floor, which he did. While on the floor, he observed that someone was taking the money out of the cash register, which register contained approximately $525. Some of this money belonged to Speckart and the balance to a money order company, but all was under his care, custody and control. The man then struck Speckart several more times and told him to get up. When he got up, he noticed that Thomas Grupe had returned from making his prescription deliveries and was being forced into the prescription room by defendant.

Later, Speckart and Thomas Grupe were taken to the basement of the store and made to lie on the floor, where Speckart and Grupe were both beaten with what seemed to be the stocks of the shotguns. Immediately thereafter, two shots rang out within fifteen seconds of each other. The first killed Thomas Grupe and the second shot went through Speckart’s shoulder. The men then left and Speckart observed that Thomas Grupe was lying motionless on the floor and appeared to be dead.

Subsequently, Speckart was taken to De-Paul Hospital where he was treated for a laceration of his chin, a gunshot wound of his left shoulder, a laceration of his left wrist and a deep laceration on the back of his head.

When Mrs. Speckart and Thomas Grupe had returned from making the mentioned deliveries, Mrs. Speckart had remained briefly in her automobile when Thomas Grupe entered the store. While waiting, Mrs. Speckart saw three shabbily-dressed Negro men leave the store by the front door and run south, on the west side of the street. Mrs. Speckart then entered the store and learned what had happened.

The body of Thomas Grupe was removed from the basement of Speckart’s Drug Store the same evening and taken to City Hospital No. 2, where Dr. Wesley Ball pronounced him dead from an apparent missile wound. The body was then taken to the city morgue, where Dr. Martin Glaser performed an autopsy on May 19, 1961, and observed a bullet wound of the chest which had resulted in a severe hemorrhage into the chest cavities causing death. Dr. Glaser also removed a bullet from just under the skin on the left side, the fifth intercostal space, a .32 caliber bullet, which was turned over to Donald Brocksmith, a St. Louis Police Officer, assigned to the police laboratory.

After the robbery and homicide, certain St. Louis police officers went to Speckart’s Drug Store and recovered a .25 caliber cartridge casing from the floor in the center aisle of the basement and a spent pellet.

About 10:30 p.m. on May 29, 1961 two St. Louis Police Officers, Henry Lachenicht and Raymond Lauer, went to 1914 North Grand Avenue in the City of St. Louis. Lachenicht carried a twelve-guage shotgun and Lauer carried his service pistol. Both officers entered the premises and there found the defendant and Clewiston Jones. Lachenicht ordered them to “throw out your guns and come out, we’re police officers.” Thereupon, Jones pointed a pistol at Lachenicht and fired approximately three shots at the officers. Lachenicht then shot and killed Jones. Defendant, however, dropped his revolver to the floor, threw up his hands and stated: “Don’t shoot, I’m coming out, we’re the men you’re looking for. I killed the Grupe boy”, and he surrendered to the officers. There was further evidence that, as Officer Lachenicht entered the premises through the front door, he saw defendant “running to the back of the building.” When the officer exchanged shots with Jones, Jones was only fifteen feet away and Jones fell backward behind a “cooler.” The officer then ordered defendant to come out and put his hands up in front of the “cooler,” and defendant complied with the order.

The body of Clewiston Jones was immediately taken to City Hospital No. 2 and then to the city morgue, where it was viewed by Speckart. On the same evening Speckart also saw defendant at the police station and at the trial he identified Jones and defendant as two of the men who committed the robbery, and he also identified two sawed-off (double-barrel) shotguns and a pistol as resembling the weapons used in the holdup of Speckart’s store by Clewiston Jones and the defendant.

After defendant’s arrest on May 29, 1961, Daniel Reardon, Jr., Circuit Attorney for the City of St. Louis, questioned the defendant with reference to the Speckart Drug Store robbery and the killing of Thomas Grupe. In Reardon’s presence, the defendant gave a statement which was reduced to writing, read and signed by defendant. In this statement the defendant stated in essence that about two weeks prior thereto he, Clewiston Jones and a third man robbed the Speckart Drug Store; that Clewiston Jones had a loaded .25 caliber automatic and a sawed-off shotgun and the defendant had a loaded .32 caliber revolver and a loaded sawed-off shotgun; that they obtained about three hundred dollars from the robbery; and that, while in the basement of the store, defendant fired one shot from his .32 caliber revolver at Thomas Grupe. Clewiston Jones fired one shot from a .25 caliber Colt semi-automatic pistol.

Defendant also stated that the .32 caliber Harrington and Richardson revolver he had used to shoot Thomas Grupe was then at Clewiston Jones’ house at 6048 Maple in the City of St. Louis and so were the two sawed-off shotguns they had with them at the time. Defendant also stated that Jones had used a .25 caliber automatic pistol in the Speckart store robbery. Defendant in his statement, after the police had obtained possession of these weapons, identified the .32 Harrington and Richardson revolver as the revolver which was in his possession and which he fired at Thomas Grupe in the basement of Speckart’s Drug Store. He also identified as his own one of the shotguns which he had with him at that time, because, as defendant stated, “it’s busted on the handle.”

The State’s evidence further tended to show that about 1 a.m. on May 30, 1961, after defendant’s confession and statement as to the then location of the g^ins used in the Speckart robbery, a St. Louis Police Officer, Elmer Kuhlman, had gone to 6048 Maple Avenue, the residence of Clewiston Jones, and had removed from the premises a Harrington and Richardson .32 caliber revolver, two “Belgin Russell Arms Company make double-barrel sawed-off shotguns,” and a .25 Colt semi-automatic pistol. In addition, he found ammunition to fit all of these weapons.

Lieutenant Frank Ruff of the St. Louis Police Laboratory performed firearms identification tests on the various State’s exhibits. The results of his tests showed that the bullet removed from the body of Thomas Grupe by Dr. Glaser was fired from the .32 Harrington and Richardson revolver; and that the spent pellet found on the basement floor of Speckart’s Drug Store was fired from the .25 caliber semi-automatic pistol in question.

When Lieutenant Ruff first attempted to fire the .32 caliber Harrington and Richardson revolver he was unable to do so because of its faulty mechanism. However, he talked to the defendant who advised him that, although he knew the revolver was in a broken condition, it could be fired in its then condition. Ruff handed the weapon to the defendant who demonstrated to Ruff how to fire the revolver. Ruff then returned to the laboratory and, by using the manner described by defendant, he was able to test shoot the revolver with the result as above stated.

No evidence was offered on behalf of defendant.

Defendant, represented by counsel at the trial and on this appeal, does not challenge the sufficiency of the evidence to support the verdict; however, we find it entirely sufficient to make out a submissible case of murder in the first degree as charged.

The first assignment in appellant’s brief is that, “The trial Court erred in failing to declare a mistrial at the request of appellant in that testimony of various prosecution witnesses, over the objection of appellant, was introduced and admitted into evidence which proved the commission of a separate and distinct crime from that with which appellant was charged, thus allowing in highly prejudicial evidence and depriving appellant of a fair trial and violates appellant’s right to be tried for the offense for which he was indicted.” (Italics ours.)

Appellant’s theory is that the trial court committed reversible error in refusing to declare a mistrial on the ground that testimony was admitted over objection tending to show that on May 29, 1961 appellant was arrested in the course of a robbery of the 905 Liquor Store located at 1914 Grand Avenue. Appellant in support of this assignment of error cites State v. Reese, 364 Mo. 1221, 274 S.W.2d 304; State v. Lyle, 125 S.C. 406, 118 S.E. 803; State v. Mosier, Mo.Sup., 102 S.W.2d 620; State v. Buxton, 324 Mo. 78, 22 S.W.2d 635. These cases support the rule relied upon by appellant, but the facts shown by the record do not call for the application of the rule, because there was no testimony admitted in evidence or shown by the record from which the jury could find the commission of any other separate and distinct crime from that charged against the defendant by the indictment (nor were the particulars with reference to any such other crime shown) except that of robbery in the first degree with a dangerous and deadly weapon and of resisting arrest, proof of which crimes appellant does not make complaint. The evidence as to robbery in the first degree of Paul Speckart was admissible (1) because Section 559.010 RSMo 1959, V.A.M.S. provides that: “every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree”; and (2) because evidence that a person accused of an offense resisted arrest is generally relevant, even though such evidence discloses that the separate crime of resisting arrest has been committed. Such evidence was properly admitted in this case. State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 609 [7]; State v. Ball, Mo.Sup., 339 S.W.2d 783, 784 [2]; State v. Wilkins, Mo.Sup., 100 S.W.2d 889, 895; 22A C.J.S. Criminal Law § 628, pp. 474 — 477. Further, the charge of murder was submitted to the jury under both parts of Section 559.010, that is, “as a wilful, deliberate and premeditated killing” and also as a “killing committed in the perpetration of a robbery”, and we have seen that much of the testimony in the record is devoted to proof of robbery in the first degree.

It will not be necessary to review the rule relied upon by appellant with reference to the exclusion of evidence of separate and distinct crimes, or the exceptions to the rule, because no testimony was offered or received in evidence tending to show that appellant was arrested May 29, 1961, “in the course of a robbery”, or that 1914 North Grand Avenue was a business place, or that a robbery was in progress there, or that a liquor store was there located, or that it was the “905 Liquor Store”, or that any store was located at 1914 North Grand Avenue. The record relied upon by appellant is wholly insufficient to support the conclusions sought to be drawn therefrom. We do not find a single statement in the testimony tending to show what action, if any, the appellant and Clewiston Jones were engaged in at 1914 North Grand Avenue or how or why they happened to be there or how the officers may have known they were there, if they did, immediately prior to the appearance of the officers who sought to arrest defendant and Jones.

In support of this assignment of error appellant has referred to numerous pages of the transcript of the record. A review of these page references shows that most of the pages referred to contain extended statements, objections and conclusions by appellant’s counsel, but no testimony subject to the objections made.

A careful check of the testimony admitted and shown on the pages of the transcript referred to in appellant’s brief in support of his first assignment of error discloses that the most that could be inferred from the way the officers carried their firearms when they entered the premises at 1914 North Grand Avenue was that they were expecting trouble from someone and were prepared for it.

As stated, much of the evidence before the jury was directed to proof of the facts connected with the robbery of Paul Speck-art, owner of the Speckart Drug Store. The witness frequently referred to the occurrence as a “robbery” or “holdup” and not as a homicide or murder, although the evidence, as stated, showed a homicide in the perpetration of a robbery and the indictment charged murder in the first degree.

For example, Mr. Paul Speckart testified that subsequent to the robbery he first saw the taller of the two young men at the morgue about two weeks “after the holdup.” He also testified that after the men had left the store he pressed the buzzer for his father, who came to the head of the stairs above the store, and witness told him “we had been held up.” When asked about one of the State’s exhibits and asked whether or not he had seen the particular object or one similar to it, he answered “Yes, I saw it at the holdup in the hands of one of the holdup men.” Still later in his testimony, when he was asked where he first saw the defendant after the occurrence and after he (Speckart) was out of the hospital, he said, “I saw him at police headquarters, I’m not sure of the exact date, but he was there, after he was brought in on a holdup charge.” (Italics ours.) This answer is the particular statement that appellant relies upon to show proof of another separate and distinct crime other than the one for which the defendant was being tried. In counsel’s objections to this testimony he insisted that the reference was to “another holdup” and not connected with the offense for which defendant was on trial. The only relief asked was for the court to declare a mistrial, which was denied by the court.

The next statement of counsel after the above answer was given was, “Now, don’t tell us anything about — ”, whereupon defendant’s counsel stated: “I have no-choice but to ask for a mistrial in view of tnat response, too it was not responsive to the question Mr. Fredericks asked * * After further objection and discussion out of the hearing of the jury the court said: “Well, I don’t think it’s sufficiently prejudicial for a mistrial. Motion for a mistrial is denied.” Appellant says that this ruling indicated that the court thought the reference was to “another holdup.” But, if the court ruled correctly, as we think it did, it is immaterial that the court may have assigned an erroneous reason for its action. Missouri Electric Power Co. v. City of Mountain Grove, 352 Mo. 262, 176 S.W.2d 612, 616 [10], No request was made to strike the voluntary statement, which was not called for by the question, nor was the court asked to direct the jury to disregard that part of the answer.

Thereafter, the examination of the witness was continued, as follows:

“Q How much money was taken during the course of this robbery on the 18th of May, 1961 ?
“A Approximately $525.00.” (Italics ours.)

Thereafter, another witness testified that State’s Exhibit 1 showed “the scene surrounding the area of the holdup at Fair and Natural Bridge” on May 18, 1961. (Italics ours.) Other witnesses also referred to the occurrence at the Speckart Drug Store on May 18, 1961, as a “shooting’’ or as a “holdup.” For instance, Corporal Edward Unnerstall, a police officer, testified that on or about May 29, 1961, he had an occasion to see the defendant at “1900 North Grand” and that he took the defendant to City Hospital No. 2 (Homer G. Phillips Hospital), since defendant was claiming to be sick. As to what happened after he left the hospital with defendant, he testified, as follows :

“Q After you left the hospital, did you have any discussions with this Defendant?
“A Yes, sir.
“Q Will you tell us what you discussed, if anything, with this Defendant pertaining to the Speckart Drug Store holdup and the killing of Thomas Grupe ?
“A We asked him if he had anything to do with the shooting over at the Speckart Drug Store and he said ‘yes.’
“Q What other conversation pertaining to that went on between you and the Defendant Anderson at that time?
“A Well, he told us that he was implicated in that holdup over there and that he did some of the shooting over there. We asked him where the car was and he told us where the car was parked.” (Italics ours.)

At this time defendant’s counsel made the following statement, apparently in the presence of the jury, since the record does not show it was out of the presence of the jury, although the record subsequently shows that the trial was resumed before the jury.

“MR. RANKIN: I’d like to ask that a mistrial be declared at this time, Your Honor, because this officer is now referring to a holdup at the 905 Liquor Store on North Grand and I think the jury can certainly understand what he is talking about.
“THE COURT: I don’t so interpret that.”

The examination of the witness then continued, as follows:

“Q Now, I believe you have testified there was some conversation between yourself and the Defendant Anderson with' reference to the shooting at the Speckart Drug Store on May 18, 1961 ?
“A Yes, sir.
“Q Then you said something about an automobile, now what did the Defendant say about an automobile at that time ?
“A We asked him where he parked the automobile and he said he parked it on Spring Avenue near North Market.
“Q With reference to that car, to that automobile, did he say anything about that automobile being used in the holdup and killing of the Grupe boy ?
“A He said it was the same car.
“Q Did he then give you directions to get to the car to where it was parked at that time?
“A Yes, sir.
"Q What did you do at that time ?
“A We went over to the car and there was a lady sitting in it.
“Q What kind of a car was that ?
“A A ’54 or ’55 black Ford.
“Q With reference to the young lady sitting in the car, did you apprehend her?
“A Yes, sir.
*****
“Q Officer, what was the name of the woman sitting in the car?
“A Doris Jones.
“Q Is she the wife of Clewiston Jones?
“A She stated that she was.” (Italics ours.)

Appellant also contends this and other evidence in the record, erroneously admitted over objection, proved the commission of a separate and distinct crime, to wit, robbery of the 905 Liquor Store on North Grand Avenue. We think the evidence insufficient for that purpose and so hold.

As has been stated, we find no testimony in the record from which a jury could have found that defendant was arrested “in the course of a robbery of the 905 Liquor Store located at 1914 Grand Avenue”, as claimed by appellant. Further, the fact that defendant directed the officer to the location of the automobile used by defendant and Clewiston Jones in the robbery of Paul Speckart at the drug store, and the finding of Clewiston Jones’ wife seated therein, did not prove the commission of a separate or distinct crime by defendant on May 29, 1961, nor did the evidence, with reference to the gun battle between Clewiston Jones, defendant and the police officers, erroneously show the commission of, or the particulars with reference to, any separate and distinct crime other than that charged against defendant, except the offense of resisting arrest and robbery of May 18 of which appellant does not and may not complain. We must and do further hold that the testimony of Paul Speckart that he saw defendant at police headquarters some two weeks after the robbery, when defendant “was brought in on a holdup charge” did not constitute “proof of another holdup” nor prove the commission of a separate and distinct crime, so as to constitute error.

Further, the declaring of a mistrial for conduct of a witness or spectator in the course of a trial lies largely within the discretion of the trial judge and this is particularly true where a voluntary statement is made by a witness. State v. Statler, Mo.Sup., 331 S.W.2d 526, 531; State v. Baker, Mo.Sup., 293 S.W.2d 900, 902 [1]; State v. Egan, Mo.App., 272 S.W.2d 719, 727 [18-20]; State v. James, Mo.Sup., 347 S.W.2d 211, 214 [7-10]. The court did not err in refusing to declare a mistrial.

Appellant’s final assignment under points and authorities is that, “the trial court erred in failing to discharge jurors Gruber and Hogue and substituting the alternate juror, and, after refusing to substitute or discharge, in failing to declare a mistrial, thereby depriving the appellant of his right to peremptory challenges and depriving the appellant of a fair trial.” Appellant reviews the facts upon which this assignment of error is based substantially as follows: “At one point in the trial, one of the jurors, Gruber, who subsequently became foreman of the jury informed the Court that he knew the witness, officer Lachenicht, who had just been called. * * * The Court informed counsel of this matter and appellant’s counsel moved for a mistrial, and objected that this deprived defendant of exercising his peremptory challenge and the right to interrogate the juror [as to what influence the witness might have over the jurors]. Thereafter, Juror Gruber was examined in chambers. Appellant’s counsel then asked that the juror be excused and that the alternate juror be substituted.” All requests were denied by the Court.

“Thereafter, the court informed counsel that juror Hogue had told the bailiff he knew one of the police officers who had been in the courtroom. The officer’s name was determined to be Robert Hawkins, who later testified for the State. Thereafter, an examination of juror Hogue was conducted. After the examination the defendant again moved for a mistrial, for the substitution of the alternate juror, and that the Court excuse juror Hogue. These motions * * * were overruled by the Court and the trial progressed with jurors Gruber and Hogue continuing to sit as jurors.”

In addition to the facts stated by appellant, the record shows that Juror Gruber, when examined out of the presence of the jury, said: “I know this officer [Henry Lachenicht] very slightly, I have seen him bowling and I didn’t recognize his name * * * I thought it was Habenicht * * * or something like that. * * * I bowled with him one year, but he wasn’t a personal friend. * * * He was on a different team in the same league, * * * and was * * * maybe twenty times that year in the same building [as the juror].” The juror stated that because of his acquaintance with the man he would not give the officer’s testimony any more weight than any other witness in the case; and that his acquaintance with the witness didn’t matter to him in the slightest.

Appellant’s counsel again asked a mistrial on the ground that he was deprived of making a peremptory challenge; however, the further voir dire examination of Juror Gruber developed no disqualification on the part of the juror.

When the further voir dire examination of Juror Hogue was conducted outside of the hearing of the other jurors, it developed that Officer Hawkins, who had been called as a State’s witness, was in the same National Guard organization with the juror, and the organization met once a week. The juror testified: “I didn’t know his name, I'd just seen him down there and I didn’t even know he was a police officer * * * I just know him by seeing him and that’s all.” The officer was in a different unit, since the juror was “in transportation” and the mentioned officer was “in construction or headquarters.” The juror had no dealings with him at all. He had had no conversations with the officer. “It was over a year since I saw the man, I didn’t even know his name, or his occupation, or anything.” Defendant’s counsel again asked a mistrial since he would be denied his peremptory challenges. Counsel also asked that Juror Hogue be excused and the alternate, Juror Babinsky, be substituted in his place. The requests were denied.

The transcript on file fails to show that either of these jurors had been asked on the original voir dire examination concerning their knowledge of or acquaintance with any of the State’s witnesses. The record upon which this cause was submitted does not show any part of the original voir dire examination of these jurors. The argument in appellant’s brief with reference to this assignment is to the effect that the appellant was entitled to the peremptory challenges allowed by statute. Section 546.-180 RSMo 1959, V.A.M.S. These challenges were no doubt made. Appellant further argues that a juror who knows one of the principal witnesses and gives complete credence to the testimony of the witness is highly prejudicial to the defendant; that this type of witness would be stricken from the panel by a defendant, if given the opportunity; and that when a defendant has been denied this opportunity, he has been deprived of his statutory right, and he has been deprived of a trial by a fair and impartial jury. Appellant merely assumes, without proof, that the jurors, because of such casual acquaintance, will give full and complete credence to the testimony of the mentioned witnesses. Appellant concedes that “the problem arose through no ones fault”, but that “through the course of events in the trial of this cause the appellant was deprived of his statutory right”

To properly support this assignment, the record should affirmatively show that these jurors were specifically questioned on voir dire examination with reference to their knowledge or acquaintance with these witnesses. The record merely shows that the voir dire examination of the jury was started at 11:15 a.m. on September 25, 1961, and was concluded at 6 p.m. What examination of the jurors was made by defendant’s counsel does not appear.

Appellant, in effect, concedes that there was no intentional concealment by the jurors of any fact affecting- their qualifications as jurors and the good faith of the jurors is not questioned. As stated, no facts tending to disqualify either juror were developed on the subsequent voir dire examination of the two jurors by the court or by counsel for defendant when conducted in the Judge’s chambers after the question arose. The action taken by the trial court in denying the various requests was not error, since the matter was within the sound discretion of the trial court and no abuse of that discretion appears from the record. State v. Harris, Mo.Sup., 356 S.W. 2d 889, 890[2]; Zein v. Pickel Stone Co., Mo.App., 273 S.W. 165, 168 [9]; Vojta v. Pelikan, 15 Mo.App., 471, 478; Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 351 [3, 4]; Hampy v. Midwest Hanger Co., Mo.App., 355 S.W.2d 415, 421 [7], The casual acquaintance of these jurors with the mentioned witnesses and the fact that they identified them on sight, but were not sufficiently acquainted to even know their true names, fails to show that defendant was prejudiced in any manner. Further, in some sections of the state it would not be unusual for every member of the jury panel to be acquainted with every person appearing as a witness. Such casual acquaintance is not in and of itself a disqualification of a juror.

Appellant’s insistence that the facts in question have deprived him of a fair and impartial trial are not sustained by the record. The statements and complaints do not prove themselves and they cannot be considered unless substantiated by the record. State v. Childers, Mo.Sup., 313 S.W.2d 728, 731 [3, 4], The record presented does not sustain the allegation of error and it is overruled.

No assignments of error have been directed to those matters required to be reviewed under Supreme Court Rule 28.02, V.A.M.R., and not required to be preserved in a motion for a new trial; however, we have examined the record as to these matters and no reversible error appears.

The judgment is affirmed

All concur.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Doke PATRICK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 16, 1964.
    Rehearing Denied Feb. 19, 1965.
    W. A. Johnson, Paintsville, for appellant.
    G. C. Perry, III, W. B. Hazelrigg, Paints-ville, for appellee.
   MONTGOMERY, Judge.

Travelers Indemnity Company appeals from a judgment in the sum of $5,000 in favor of Doke Patrick. In an earlier action appellee had recovered judgments of $5,000 each against Roy Daniel, Tom Roy Daniel, and Dean Preston. The judgment was reversed as to Roy Daniel, appellant’s insured. Daniel v. Patrick, Ky., 333 S.W. 2d 504.

According to the facts stated therein, ap-pellee was injured by being run over by Tom Roy Daniel, who was on a motorcycle, and by Dean Preston, who was driving Roy Daniel’s car. The judgment was reversed as to Roy Daniel because there was no liability shown under the family purpose doctrine. Subsequently, appellee sued appellant on the theory that Roy Daniel’s car was being operated with his permission. Liability was alleged under a provision of the insurance policy as follows:

“III. Definition of Insured.

“(a) With respect to the insurance for bodily injury liability * * * the unqualified word ‘insured’ includes * * * any person while using the automobile * * * provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *»

The case is here on a partial record. CR 75.01. Appellant’s statement of points under CR 75.04 is as follows:

■“1. The insured, Roy Daniel, of Travelers Indemnity Company, having been exonerated from all negligence and liability for the injuries caused to plaintiff, Doke Patrick, there is no legal liability on the part of Travelers Indemnity Company to Doke Patrick under the omnibus clause of the insurance policy issued on insured’s vehicle.
“2. The claim sued on is res adjudi-cata.”

The pertinent portions of the record designated by appellant were complaint, answer, insurance policy exhibit, opinion in Daniel v. Patrick, findings and conclusions of trial judge, and judgment. No counter-designation was made. The record in Daniel v. Patrick apparently was never made a part of the trial record in this action.

The findings of fact and conclusions of law contain a recitation of facts other than those admitted or contained in the opinion in Daniel v. Patrick. On this appeal appellant argues that the use of evidence on the former trial was unwarranted and that the evidence used is insufficient to support a finding of permissive use of the car.

Appellee argues that: (1) Arguments made in brief and not included in statement of points pursuant to CR 75.04 should not be considered; (2) arguments included in statement of points but not argued in appellant’s brief should not be considered; and (3) the judgment is presumed to be supported by the evidence when the evidence is not made a part of the record on appeal. Appellee moved to dismiss the appeal.

The procedure allowing an appeal on a partial record is authorized by CR 75. It is beneficial to litigants, counsel, and court. It is designed to present the points on which appellant relies for reversal. Only such matters as are essential to the questions presented by the appeal should be in-eluded in the record. CR 75.05; Clay, CR 75.01, Comment 3.

In the consideration of a case appealed on a partial record, no point will be considered that was not included in the statement of points “on which he (appellant) intends to rely on the appeal.” CR 75.04; Dunson v. Swiggum, Ky., 280 S.W. 2d 510; Ritchie v. Drier, 83 U.S.App. D.C. 16, 165 F.2d 238. See also RCA 1.210(a) (2). Here, appellant’s brief is devoted to argument concerning the evidence, which contentions are not included in the statement of points. No argument is made on appeal concerning the two points set out in the statement. Failure to argue such points on appeal is considered a waiver and they will not be considered. Craft v. Hall, Ky., 275 S.W.2d 410; Herrick v. Wills, Ky., 333 S.W.2d 275.

The two points argued concerning the use of evidence from the former trial and its sufficiency cannot be considered since they were not designated in the statement of points. In the absence of the evidence in the record, it is presumed that the judgment was supported by the evidence. Marcum v. Brock, Ky., 257 S.W.2d 55; Willis v. Davis, Ky., 323 S.W.2d 847; Crowe v. Taulbee, Ky., 350 S.W.2d 620.

Since neither of the points urged in appellant’s brief was included in its statement of points, and since both points made in brief turn on the evidence which was omitted from the record on appeal, no issues are presented by this appeal and it should be dismissed. City of Jackson v. Jackson Waterworks, 297 Ky. 616, 180 S.W.2d 555; Klocke v. Vaughn, Ky., 291 S.W.2d 22. Failure to comply with CR 75 is a proper basis for dismissal of the appeal. Clay, CR 75.04, Comment 3. The motion to dismiss the appeal is sustained.

Appeal dismissed.


author: R. C. TARTAR, Special Commissioner.

text:
    Sylvan HALL and Margaret Hall, Appellants, v. ELK HORN COAL CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.

      C. W. Napier, Jr., Hazard, for appellants.
    J. W. Howard, Howard, Francis & Howard, Prestonsburg, for appellee.
   R. C. TARTAR, Special Commissioner.

The appellants, Sylvan Hall and Margaret Hall, have appealed from a judgment which enjoined them from using certain premises owned by them in the mining town of Jackhom for any mercantile or other business purposes, and confining their use to residential purposes. The action to obtain such relief was brought by the ap-pellee Elk Horn Coal Corporation.

Its standing to maintain the action, the deeds under which appellants claim title to their property and the restrictions contained in their deeds, originated as follows:

In 1946 Elk Horn Coal Corporation as the owner of extensive mining properties in Letcher and Floyd counties and of the mining towns therein embarked upon a program for the sale of lots and houses in the towns to its employees for residential purposes. The towns were Jackhorn and Fleming in Letcher County and Garrett and Wayland in Floyd County, and additions thereto. The towns and additions were separately subdivided and mapped. As noted we are concerned here with premises sold as a part of the Jackhorn subdivision.

Elk Horn Coal Corporation was then in receivership proceedings in the Letcher Circuit Court. The entire subdivision and sales program was undertaken under the auspices- and with the approval of the court. Among many other deeds, all identical except as to the property conveyed, price and plan for payment, the deed made by and on behalf of Elk Horn Coal Corporation to the appellants’ predecessors in title was approved by the court.

Elk Horn Coal Corporation excepted and reserved all coal and other minerals beneath the surface of the lots conveyed. And each of the deeds contained the following provision:

“A. For a period of twenty-five (25) years from the date of this deed, the property hereby conveyed shall be used for residential purposes only, and no part thereof, nor any building thereon, nor part thereof, shall be used for mercantile, manufacturing or other business purposes.”

House and lot 805-806 in Jackhorn were conveyed by the Elk Horn Coal Corporation to Frank Potter in 1947. The deed contained the provision quoted. The Potters conveyed the same property to the appellants, Sylvan Hall and Margaret Hall in March 1948. The deed was made and accepted subject to the same provision.

All this is conceded. And the appellants admit that they have used their property for mercantile purposes (principally it appears for the sale of groceries) and that they intend to continue to do so unless restrained by the court. They contend that there has been such a change in conditions in the town of Jackhorn that the restriction is no longer enforceable; that the Elk Horn Coal Corporation no longer conducts a mining business, or operates its commissary there; that other residents holding title under like deeds have used their properties for mercantile purposes without interference; and that the Elk Horn Coal Corporation has in effect waived and abandoned its rights to enforce the restriction.

The evidence shows beyond question that in 1946 and for some years thereafter the Elk Horn- Coal- Corporation mined -its properties in the Jackhorn area (some 6,000 acres in all) and operated a commissary in the town. In recent years and at the present time, practically all of their properties have been and are leased by Elk Horn Coal Corporation to Greer Ellison Coal Company. Greer Ellison Coal Company is mining three seams of coal on the properties and stripping and auguring in all three seams, and deep mining in two of them. It is also using the tipple near the commissary.

The commissary was closed in June 1957. At all times since then the building just across the road, owned and formerly operated by Elk Horn Coal Corporation as a soda fountain, has been leased by Elk Horn Coal Corporation for use not only as a soda fountain but also for the sale of a general line of groceries. Elk Horn Coal Corporation receives 10% of the gross sales made within the building. This arrangement produced income to the Elk Horn Coal Corporation averaging more than $1600 a year from 1959 to the time of the hearing in early 1963.

There is some other rather meager evidence that at the time of the hearing four stores were being operated in Jackhorn. Aside from the business conducted by the appellant and the lessee of the soda fountain these operations are not identified. It is shown, however, that in June 1961 Elk Horn Coal Corporation obtained three judgments against Jackhorn residents enjoining them from the use of the properties for business purposes. There is also some testimony for the appellants that their store is needed in Jackhorn, that otherwise patrons would have to go to Neon, about two miles away, to trade. As noted, however, a store is being operated by Elk Horn Corporation's lessee; this store is only a half a mile from appellant’s property.

Finally there is some testimony concerning the operation of stores in other towns, in Fleming and to some extent in Haymond. These are different subdivisions and communities ; they are some distance apart, and some distance from Jackhorn, separated by mountain ridges. This testimony is of ai very sketchy sort. Its relevance to the Jackhorn community is- not apparent. In any event it has no significant bearing on the issues here.

In our view the findings of fact made by the trial court are fully supported. The continued and continuing interest of the Elk Horn Coal Corporation in the mining and mercantile operations in Jack-horn and the Jackhorn area is amply shown. It is the owner of these properties; that Elk Horn Coal Corporation now operates-them as lessor is not a change of sufficient substance to affect its right to enforce the restrictions in appellant’s deed. The evidence is far from showing an abandonment or waiver of its rights.

While perhaps to some extent the restriction was designed to preserve the residential character of a part of the town of Jackhorn and was thus beneficial to’ other property owners similarly situated, we have little doubt that its primary purpose was to protect the interests of Elk Horn Coal Corporation. So considered the restriction must on this record be held still to be valid, reasonable in its objective, and reasonably limited as to territory and duration. Nor does the evidence show a sufficient change of conditions in Jackhorn as clearly to neutralize the benefits of the restriction and defeat its purposes and thus render its enforcement inequitable. The authorities cited below fully sustain this conclusion. Anness v. Freeman, Ky., 294 S.W.2d 77; Franklin v. Moats, Ky., 273 S.W.2d 812; Restatement of the Law of Property, quoted in Cochran v. Long, Ky., 294 S.W.2d 503, 505.

The decisions relied upon by appellants deal with factual situations radically different from the situation here and are clearly distinguishable.

The appellants also claim that they were entitled to a jury trial, and that its denial constituted reversible error. That their answer and counterclaim raised issues of fact is not determinative. The question is whether the issues were historically and traditionally equitable or legal in nature. Johnson v. Holbrook, Ky., 302 S.W.2d 608. The issues involved herein and the contentions made by appellants are addressed to equity. 26 C.J.S. Deeds § 171a, page 1172 et seq., and § 171c, page 1177 et seq.; 43 C.J.S. Injunctions § 79, page 547 et seq. The trial court committed no error in denying a jury trial.

We recommend that the judgment appealed from be affirmed.

The opinion is approved and the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Maude PRUITT, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, James H. Lucas, Bowling Green, for appellant.
    Aaron F. Overfelt, Bowling Green, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment in a condemnation suit awarding members of the Pruitt family $7,000 damages arising out of the taking of a small portion of two adjoining tracts of land for highway purposes. The case was tried before the decision in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, so the verdict made separate awards for taking damages and for resulting damages. The appellant maintains that the separate awards, and the total, are in excess of the top limits of the valuation testimony. We agree.

On one of the two tracts there is a dwelling, and on the other a grocery store. As to the dwelling tract the jury awarded $500 for land taken and $2000 for resulting damages. As to the store tract the awards were $250 for land taken and $4,250 for resulting damages.

There was one valuation witness for the Commonwealth. As to the dwelling tract he estimated $268 taking damage and $775 resulting damage. As to the store tract he estimated $220 taking damage and no resulting damage.

Two valuation witnesses testified for the landowners. Neither one would undertake to separate taking damages from resulting damages; they restricted their estimates to gross before and after values. One said that the difference in value on the dwelling tract was $4,600, and on the store tract $2,000. The other said the difference on the dwelling tract was $3,000, and on the store tract it was $1,000 per parking space for whatever number of parking spaces would be eliminated by reason of changes in the entranceways to the store parking area necessitated by the new form of the highway.

Because a new trial will be governed by the Sherrod rule (abolishing the separation of taking and resulting damages) we pass over the point that the testimony of the landowners’ witnesses, giving only before and after values, could not authorize the jury to make its own guess as to how much of the difference in value should be apportioned to taking damage and how much to resulting damage. Cf. Pierson v. Commonwealth, Department of Highways, Ky., 350 S.W.2d 487. Even if the jury validly could make such an apportionment the award for the store tract is excessive.

One of the landowner’s witnesses (Miller) estimated the total damage on the store property to be $2,000. He based that on $1,000 each for two lost parking spaces. The other witness (DeVasier) said that the damage would be $1,000 for each lost parking space but he did not know how many spaces would be lost. The appellees claim that the testimony of one of the landowners (who did not give any valuation estimates) shows that as many as eight parking spaces might be lost. We have read his testimony and it does not have sufficient probative force to warrant a finding that more than two spaces would be lost. The detailed maps and drawings in the record show at the most a loss of two spaces. So an estimate of $2,000 damage to the store tract is the most that even a liberal view could accredit to the witness DeVasier.

The jury’s award of $4,250 resulting damage and $250 taking damage to the store tract exceeds by $2,500 the highest estimate of damage. The total award of $7,000 for both tracts also exceeds the highest estimate, $6,600, of total damage. The judgment therefore must be reversed on the ground that it is not supported by the evidence. See Pierson v. Commonwealth, Department of Highways, Ky., 350 S.W.2d 487.

The judgment is reversed with directions for a new trial.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Emma HATCHER, Appellee.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    W. W. Burchett, Prestonsburg, for ap-pellee.
   MONTGOMERY, Judge.

By order of September 20, 1960, entered without notice by the court during term time, the condemnation action of the Commonwealth of Kentucky, Department of Highways, against Emma Hatcher was dismissed. The condemnor appeals from an order of the court overruling its motion under CR 60.02, seeking to set aside the order of dismissal.

On April 16, 1959, an order continuing the case generally was entered. No other step appears to have been taken until the order of dismissal. Appellant claims that no notice of the entry of the dismissal order was received as provided by CR 77.04. It contends that the court abused its discretion in overruling the motion made under CR 60.02 on November 28, 1962, and overruled December 13, 1962.

CR 77.04 originally provided in part as follows:

“Failure of the court to require service of notice of entry of any order or judgment under this rule, or the failure of the clerk to serve such notice, shall not affect the validity of the order or judgment, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73.02.”

The substance of the above rule is now embodied in CR 77.04(4) after amendment effective April 1, 1963.

The effect of this rule is discussed at length in Comment 4, Clay, CR 77.04, pages 404 and 405. In substance, the validity of the judgment or order and the running of the appeal time are not affected by the failure of the party adversely affected to receive notice of entry of the judgment or order. It is the responsibility of an interested party to keep a check on the progress of his case. The desirability of finality in judgments demands it. Brown v. Harris, Ky., 321 S.W.2d 781.

As Blackstone has written, “Hoc quidem perquam durum est, sed ita lex scripta est. 3 Blackstone, Commentaries 430. The translation for the benefit of us who are not Latin scholars is: “This indeed is very hard, but such is the written law.”

Judgment affirmed.

HILL, J., not sitting.


text:
    James F. FLETCHER, Appellant, v. INDIANAPOLIS AND SOUTHEASTERN TRAILWAYS, INC., and James Harvey Brewer, Appellees.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    Allen & Clontz, Mt. Vernon, Smith, Reed, Yessin & Davis, Frankfort, for appellant.
    Joseph J. Leary, Thomas F. Marshall, Frankfort, for appellees.
   GEORGE O. BERTRAM, Special Commissioner.

Appellant was plaintiff in the lower court and appellees defendants. They will be referred to as they appeared in the trial court. In his complaint plaintiff, a passenger on a motor bus operated by defendants, as owner and driver respectively, seeks damages for injuries allegedly sustained from an accident involving the bus and a station wagon. The accident occurred January 21, 1962. The complaint was filed August 11, 1962, and counsel for the bus company took plaintiff’s discovery deposition September 26, 1962.

The bus company’s counsel contends that plaintiff by his testimony on discovery absolved defendant bus company and its driver, defendant James Harvey Brewer, of any negligence; and that having repudiated his cause of action, the trial court was correct in sustaining defendant bus company’s motion for summary judgment. Therefore, this appeal is prosecuted by plaintiff seeking reversal of the summary judgment dismissing the complaint as to defendant bus company.

The bus company counsel relies on the answers to the questions given by plaintiff on his discovery deposition, which are as follows:

“Q. 22. It was a station wagon ? All right.
“A. And if I ain’t mistaken it was a two-tone outfit We was following it and it was wet and must have made a lot of racket and he had slowed down some. All at once this station wagon turned left and he honked his horn. I was looking right down the highway but I didn’t see no signal — could have been one down on the car because it had done turned, see. It turned off and he didn’t have time to stop and he had to leave the road. When he left the road, why, it throwed people everywhere and I went on the arm of the seat of the bus and he cut this post off and swung back and he went a right smart little piece before he got back up on the road and stopped. I couldn't say— I told the gentleman sitting in front of me, I said, ‘That hurt my back’ but I didn’t think it would amount to anything. It got to hurting worse all the time and he got out and went back and talked to this man and took our names and addresses and then he got in and pulled out.
“Q. 23. How far had the bus followed the station wagon in your judgment, either in distance or in time?
“A. Well, I wouldn’t just say how far but it was a right smart little piece. But we was tolerable close to it.
“Q. 24. Four or 5 minutes?
“A. Yes, I’d think so, right smart little piece.
“Q. 25. Was the road reasonably straight ?
“A. Yes, sir.
“Q. 26. Did all this occur in your view? You were looking out the windshield, weren’t you?
“A. Yes, sir. I was watching right down there because it was wet and I was just looking, watching the road'.
* * * * * *
“Q. 84. Do you recall, Mr. Fletcher,> making this statement to an investigator of this case? This question and this answer: The question was, ‘And did you see the car stop at any time prior to the time when the bus driver had to cut around him?’ That was the question and the answer was: ‘Well, he was so close to him he had done horned — you know — and he expected him to go on and he just stopped dead. Well, naturally the bus driver throwed us plumb up there to keep from hitting him. It wasn’t the bus driver’s fault at all.’ Do you remember that?
“A. I didn’t tell him that. He changed it some.
“Q. 85. How has he changed it ?
“A. I said as he honked his horn, he honked his horn and turned left. That’s what I told him. I didn’t tell him anything else. But I say he had to leave the road to keep from running over him. That’s what is on the recording.
* * * * * *
“Q. 92. Do you remember this question and this answer ? Question: ‘Do you feel this was the bus driver’s fault?’ Answer: ‘No-, sir, it ain’t the bus driver’s fault, no, sir.’
“A. That’s right. Yes, sir, I said that. I said, T ain’t no lawyer but that’s my judgment.’
“Q. 93. You saw no fault in the bus driver?
“A. No. That’s what I told him but I did not tell him he was stopped dead still, now.
******
“Q. 101. Your answer that it wasn’t the bus driver’s fault at all is in your opinion still true as you have testified here?
"A. Yes, but I’ll tell you, I had been having from the 21st of January until up in March or the last of February I had been having from two to four pains a day. If I told him anything wrong I didn’t mean to because I wanted to be honest about it.
“Q. 102. Well, you say now.
“A. I was trying to be honest about it.”
We quote the following questions and answers from the discovery deposition given by plaintiff that we think important:
“Q. 35. How far was the bus from the station wagon when it stopped ?
“A. It was right on it. That’s how come him to leave the road. He would have run over him.
******
“Q. 46. But you believe that the bus was on its right of the center line and pretty nearly directly behind the station wagon or do you believe that the bus had pulled out to the left to pass him ?
“A. Well, I wouldn’t say about that. I couldn’t be honest about it.- It was awful foggy and raining and all. It could have been that it was over in the middle of the road — I wouldn’t say. The station wagon, he turned and the bus driver honked his horn. He had to leave the road to keep from going over him.
******
“Q. 49. Can you think of anything the bus driver could have done that he didn’t do to avoid an accident?
“A. Well, the only thing, he was just driving too close. He didn’t have no time to stop. ■
“Q. 50. Well, if he was trying to
' pass, of course, he had to pull out to pass as he approached it. Don’t you agree to that?
“A. Well, I don’t know that he made any effort to pass. I couldn’t say • that.
"Q. 51. You don’t know if he was passing or not?
“A. No.
“Q. 52. You don’t know if he sounded the horn to pass?
“A. He didn’t sound the horn until this man turned to go out. No, sir.
****.**
“Q. 97. Did the station wagon slow down? Did it reduce its speed?
“A. Yes, sir.
“Q. 98. That you observed ?
“A. Yes, sir.”

The lower court in its summary judgment stated:

“The admissions made by the plaintiff in his pretrial deposition of September 26, 1962, to the effect that the operation of the bus of the defendant, Indianapolis & Southeastern Trailways, Inc., was not at fault in the suit, after having first testified that he was in a position to observe, and did observe how the accident happened, constitutes a judicial admission upon the part of the plaintiff * *

The bus company counsel also contends that this Court in Bell v. Harmon, Ky., 284 S.W.2d 812, held statements under oath in a pretrial deposition constitute judicial admissions justifying the granting of a summary judgment. We are still of this opinion. However, it is our opinion that in this type of case negligence is based upon facts given by a party showing fault on the part of a driver and not upon his judgment as to whom he thinks may or may not be at fault. The statements in the pretrial deposition of plaintiff should be considered together and when so done we do not think in this case they constitute a judicial admission absolving defendants of all negligence. We think the answers to questions 35, 46 and 49 create sufficient doubt whereby it would be impossible for it to be said that the Court could be fully satisfied that there is an absence of genuine and material factual issues when all doubts are resolved in favor of the party opposing the motion, as stated in Bell v. Harmon, supra.

For the reasons given the trial court, we feel, was in error in sustaining the motion for summary judgment. See Elpers v. Kimbel, Ky., 366 S.W.2d 157; Halbert v. Lange, 313 Ky. 648, 233 S.W.2d 278, and the citations therein.

We recommend that the judgment be reversed.

The opinion is approved by the Court and the judgment is reversed.


text:
    Robert ELPERS, Appellant, v. Catherine M. JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    J. Walter Clements, Louisville, for appellant.
    C. M. Leibson, Louisville, for appellees.
   GEORGE O. BERTRAM, Special Commissioner,

Appellant was defendant in the lower court and appellees plaintiffs. The lower court on March 22, 1960, entered judgment in favor of plaintiffs, after separate verdicts rendered by a jury on March 5, 1960, each for the sum of $2,700.00. Apparently on the same date the lower court entered judgment n. o. v. in favor of defendant. Plaintiffs appealed to the Court of Appeals, as reported in Elpers, et al. v. Kimbel, et al., Ky., 366 S.W.2d 157, which was the first -appeal in this case. On the first appeal this Court said:

“We are of opinion that the judgment n. o. v. in favor of the defendant was error. The judgment is accordingly reversed with directions to enter another according to the verdicts.”

The lower court, in conformity with the opinion and mandate, entered judgment May 22, 1963, in favor of plaintiffs for $2,700.00 each, allowing each plaintiff to recover interest at 6% per annum from March 22, 1960, the apparent date of the original judgment.

This is the second appeal in this case whereby defendant as appellant seeks reversal of the lower court judgment allowing interest on the verdicts of $2,700.00 from March 22, 1960. The only question on this second appeal is whether the judgment should bear interest from the date of the first entry, March 22, 1960, or the last entry, May 22, 1963, which presents a novel question.

It is uncontradicted that the lower court directed a jury to render separate verdicts for plaintiffs, - and judgment was thereafter entered accordingly. This judgment was set aside and a judgment n. o. v. in favor of defendant was entered. Counsel for defendant contends that the original judgment in favor of plaintiffs was not entered until March 30, 1960, and that the n. o. v. judgment was entered on March 22. 1960, eight days prior to the original judgment for plaintiffs. Should this be true, we are of the opinion that plaintiffs were entitled to interest from the date the judgment should have been entered. See Noel’s Adm’x v. Black’s Adm’r, 244 Ky. 655, 51 S.W.2d 955, which would be March 22, I960, the uncontradicted date of the judgment n. o, v.

Counsel for defendant also relies heavily on KRS 360.040, which states, in part, “A judgment shall bear interest from its date.” However, counsel for plaintiffs contends that when this Court held on the first appeal that the lower court was in error in granting judgment n. o. v. in favor of defendant on March 22, 1960, the effect was to hold that the original judgment in favor of plaintiffs was in fact never effectively lost but always in fact existed. We agree with this contention and the Missouri case cited. Reimers v. Frank B. Connet Lumber Co. (1954), Mo., 273 S.W. 2d 348.

We think the issue herein is a novel question in Kentucky worthy of consideration, and that it was proper to sustain the motion for an appeal. However, for the reasons given we think the lower court properly allowed interest from March 22, 1960.

We recommend that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: PALMORE, Judge.

text:
    Avery GANONG, Appellant, v. Roy BERRY et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.

      Andrew J. Palmer, Paducah, for appellant
    Harry Roberts, Jr., Clinton, James Warren, Fulton, for appellees.
   PALMORE, Judge.

This is a boundary dispute in which the ■only question raised on appeal is whether the evidence supports the judgment. We think it does.

The land in question lies just east of Obion Creek in Hickman County. Berry’s 130 acres are part of a 1200-acre patent issued to John Allison in 1825. Ganong’s 21 acres are part of a 2,000-acre patent issued to Henry Vowles in the same year. Both patents followed military surveys made in 1821. The two surveys had a common boundary running N 72 W. All the original landmarks are down and gone, the meanders of the creek have changed, and the magnetic pole has shifted. Of necessity, therefore, each of the surveyors who testified in the case relied to a large extent on recognized corners, old fence lines, and the like.

Berry’s land is a rectangular tract run-ning east and west along the south side >of the old military line. Ganong’s tract lies ■on the north side of the line and, roughly ■speaking, forms the north boundary of the westerly one-third of Berry’s property, in the area of the creek. The disputed territory is unimproved and unenclosed. At the other end of Berry’s north line, however, at his northeast corner, there is a county road and a country church. No one disputes that the corner across from the church is recognized as being on the military line. Berry’s neighbor to the north at this point and for some distance westward is a man named Woody Smith. There is, or was, an old line fence running approximately along this boundary for part of the way. Farther to the west, on Ganong, is an old field, the south extremity of which is in line with a projection of the fence. Old residents of the community testified that the south end of this field was always considered to be the boundary line. Using the best evidence he was able to find, and estimating the magnetic variance, an experienced surveyor, Allie Hall, concluded that the correct boundary now runs N 75-08 W from the church corner to the creek, substantially coinciding with the remains of the fence line and the south border of the old field. The judgment accepts his survey.

Based to a large extent on landmarks and descriptions from neighboring lands to Berry’s south and west, Ganong contends that Berry’s northwest corner should be established at twin oak trees near the east bank of Obion Creek but some 19 poles (313.5 feet) south of the line as surveyed by Hall. His brief concludes with a request that we direct a judgment establishing the line “as beginning at the twin oaks near the creek and thence running south 76i/¿ degrees east.” But his own surveyor (who determined the correct bearing to be S 76-15 E) admitted on cross-examination that so far as he knew the twin oaks had nothing to do with the boundary in question and that a line drawn S 76-15 E from that point would pass 313.5 feet south of the church corner.

It may be that the survey found to be correct in this case will not jibe with the descriptions of other neighboring lands. However, the neighbors are neither involved in this suit nor bound by its result. As to the line between Ganong and Berry the evidence supports the judgment.

The judgment is affirmed.


author: PER CURIAM.

text:
    William L. AUSTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    Rehearing Denied March 19, 1965.
    Charles A. Williams, Paducah, for appellant.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Albert Jones, Commonwealth Atty., Paducah, for appellee.
   PER CURIAM.

Motion for an appeal from a judgment of conviction of offering obscene literature for sale contrary to KRS 436.100 and imposing a fine of $250.00 and costs.

We find no error in the trial, and the motion for an appeal is overruled.

MOREMEN, C. J., dissenting.


author: DAVIS, Commissioner.

text:
    Willard Earl COLLIER, Petitioner, v. Hollie CONLEY, Judge, Floyd Circuit Court, Prestonsburg, Ky., Respondent.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.

      Willard Earl Collier, pro se.
   DAVIS, Commissioner.

In this original proceeding invoking KRS 21.050, pursuant to Ky.Constitution § 110, Willard Earl Collier asserts that he is presently confined as a prisoner in the Kentucky State Reformatory, LaGrange. Petitioner avers that he filed in the Floyd Circuit Court a motion to vacate judgment, pursuant to RCr 11.42, and that the motion was received by the clerk of that court on October 21, 1964. Petitioner alleges that he has not been served with any response to the motion, nor has any information been received by him whether any action has ever been taken upon it.

We observe that petitioner, acting pro se and in forma pauperis, has failed to specifically state that the judgment which he seeks to vacate is the one under which he is presently confined; in view of the fact that he is presently without counsel, we will indulge the presumption that such is the situation.

Respondent has not made any answer to the present petition. Under the. authority of Benson v. Iler, Ky., 371 S.W.2d 15, and Benson v. Iler, Ky., 371 S.W.2d 16, we have, no choice except to .treat as confessed the petitioner’s allegations and grant the requested relief.

As noted in Wahl v. Simpson, Judge, Ky., 385 S.W.2d 171, (decided December 18, 1964) it is imperative that the circuit courts take prompt action and notify the movants of the action taken upon RCr 11.42 motions.

The petition for mandamus is sustained and respondent is directed to dispose of the RCr 11.42 motion by appropriate order.


text:
    Christine GRAHAM et al., Appellants, v. William O. JONES et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.

      Allen & Clontz, Mt. Vernon, Hamm, Taylor & Milby-, London, for appellants.
    Sutton & Martin, Corbin, for appellees.
   DAVIS, Commissioner.

This appeal presents a question of construction of the will of John J. Jones, who died in 1941. The pertinent provisions of his will before us recite: -

“Item II. I give, bequeath and devise to my wife, Vola Jones, for her natural life the lot [which is then described] * * *
“Item III. After the death of my said wife the property above described will descend to my nearest blood relatives under the laws of the State of Kentucky unless I shall hereafter make a different devise.”

When the testator died he was survived by his widow, Vola Jones, the life tenant mentioned in Item II of his will, and by three brothers, two sisters and the children of two deceased sisters. The testator left no surviving issue or surviving parent.

James and Robert Jones (two of testator’s brothers) and Ida Wood Miracle (testator’s sister), who were living when the testator died, had died when Vola Jones,, the life tenant, died in 1962. Thus, when the life tenant died, William Jones and Zelma Monhollen, appellees, were the only surviving brother and sister of testator.

William Jones and Zelma Monhollen (appellees), as the surviving brother and sister of testator, instituted this action against the children of the testator’s brothers (James and Robert Jones) and testator’s, sister (Ida Wood Miracle) in which they asserted that they, as the sole surviving-brother and sister of the testator, became the joint owners of the entire property, to the exclusion of the testator’s nieces (appellants) .

The trial court was of the opinion that the surviving brother and sister, appellees, take the entire estate to the exclusion of children of the testator’s brothers and sisters who had predeceased the life tenant,. Vola Jones. He predicated this decision-upon his conclusion that “nearest blood relatives” indicates an intention to have the-property pass to persons most directly proximate in degree of relationship. The trial court relied on White v. White, Ky.,. 365 S.W.2d 732, as the basis for his judgment.

• We think the White case, just cited, is. clearly, distinguishable from the one now-being considered. It is true that in the-White case we said that “immediate White-heirs that are living” entitled the surviving brothers of the testatrix to take to the exclusion of nieces and nephews who were the children of other brothers of testatrix. The White will would have been comparable to the will in the present case if it had included the modifying words “under the laws of the State of Kentucky”—and if it had not contained the expression “that are living.” But had the will in the White case contained such language, the result would have been different.

There are certain fundamental precepts which bear upon the construction of wills. The litigants recognize these, but insist that different results flow from their application.

It is apodictic that the intention of the testator as gathered from the four corners of the instrument must prevail unless it is contrary to some positive provision of law or public policy. See 19 Ky.Dig. 1, Wills,

It is well settled that the law favors that construction which results in the early vesting of remainder interests. However, the rule favoring the early vesting will not be used to override the obvious intention of the testator. French v. Peirce, 306 Ky. 450, 208 S.W.2d 327; Boggs v. Baxter, Ky., 261 S.W.2d 684.

The trial coürt concluded that the words “after the death of my said wife the property will descend * * * ” evince the testator’s intention to postpone the vesting of the remainder until the time of death of the life tenant. We believe this is an erroneous construction. In 5 Page on Wills, 3d Ed., § 43.5, pp. 349-350, it is said:

“Equitable estates, in which only the enjoyment thereof is postponed until the determination of the life estate, vest upon testator’s death in the same manner as legal estates. If the gift over,, whether qf legal or equitable nature, is ‘after,’ ‘at,’ ‘upon,’ or ‘from
and after,’ the death of the life tenant, it is held that the gift over vests at the death of testator, as the word ‘after’ refers to possession and not to vesting.”

See also American Law of Property, Vol. V, § 21.9, p. 141, in which the import of such language is evaluated:

“In this situation the words ‘on the death’ or ‘at the death’ or ‘after the death’ of the life tenant merely refer to the termination of the preceding interest in a normal manner, and do not indicate that the remainderman is required to survive the life tenant, or that the remainderman is required to wait until the life tenant in fact dies if the life estate ends before his death, in order to be entitled to possession of the property. It is characteristic of remainders that they wait for the termination of the preceding estate, and consequently, the fact that such characteristic is stated in language which describes the normal ending of the prior estate is no basis for regarding the remainder as being subject to a condition.”

The appellees rely upon American Christian Mission Society v. Tate, 198 Ky. 621, 250 S.W. 483; Beam v. Shirley, 301 Ky. 326, 191 S.W.2d 248; Fischer v. Porter, 263 Ky. 372, 92 S.W.2d 368; Ford v. Jones, 223 Ky. 327, 3 S.W.2d 781; French v. Peirce, 306 Ky. 450, 208 S.W.2d 327; Goodpaster v. Catlett, 260 Ky. 826, 86 S.W.2d 1028; Maingault’s Adm’r v. Carrithers, 295 Ky. 654, 175 S.W.2d 129, and Skiles v. Bowling Green Trust Co., 294 Ky. 211, 171 S.W.2d 235. It would extend this opinion beyond tolerable limits to undertake a detailed analysis of each of the cited cases. However, a careful examination of them reflects that in each there appears a substantial basis for holding that the intention of the testator was so expressed as to indicate that the time of the vesting of the remainder was fixed as of the date of death of the life tenant rather than as of the death of the testator. For example, in Ford v. Jones, 223 Ky. 327, 3 S.W.2d 781, the will expressly provided for ultimate distribution among “all my surviving children, if any, or their natural heirs.” Whereas, in Maingault’s Adm’r v. Carrithers, 295 Ky. 654, 175 S.W.2d 129, the expression “if living” was used as a predicate to the right of remaindermen to take at the conclusion of the life estate. Some such distinction is observable in each of the cases above cited. . Each of them recognizes the general rule to be that the time of vesting is normally as of the date of the testator’s death unless the intention of the testator to the contrary is clearly expressed. In the present case we are unable to discern any such clearly expressed intention of the testator as to take the case out of the generally accepted principle that the time of vesting of remainder interests is at the date of the testator’s death. See Gatewood v. Pickett, 314 Ky. 125, 234 S.W. 2d 489; Montgomery’s Ex’r v. Northcutt, 292 Ky. 622, 167 S.W.2d 317; Fugazzi v. Fugazzi’s Com, 275 Ky. 62, 120 S.W.2d 779; Stallard v. Lambert, 236 Ky. 651, 33 S.W.2d 682; Sherley v. Sherley, 192 Ky. 122, 232 S.W. 53 and cases therein cited and discussed as to the prevailing general rule that the date of the testator’s death is generally held to be the date of vesting of a remainder interest.

We think the testator’s use of the words “descend to my nearest -blood relatives under the laws of the State of Kentucky” clearly evinces his intention to adopt the Kentucky law of descent and distribution (KRS 391.010) as the basis for distribution of the remainder interest. KRS 391.010(3) provides for intestate succession to brothers and sisters and their descendants (absent surviving issue and parents). This long established statutory provision provides a per stirpes rather than per capita distribution. Thus, the expression “nearest blood relatives” when measured by the modifying phrase “under the laws of the State of Kentucky” must be held to relate to proportionate shares (i. e. per stirpes, not per capita) rather than “immediate” or “mediate” relatives as considered in White v. White, Ky, 365 S.W.2d 732.

Accordingly, it is our conclusion that the heirs at law of John J. Jones who survived him took a vested remainder in his estate on a per stirpes basis, and that such interest vested as of the date of the death of John J. Jones.

It is appropriate to observe that by amended complaint it was asserted that Robert Oldham, Catherine Oldham, Syn-thia Langford and her husband, Steve Langford, and Gertrude Mulry “are relatives of John J. Jones, deceased.” The nature of their relationship is not explained, although we assume they comprise all or part of the children of the testator’s two sisters who had predeceased the testator. These persons were proceeded against by warning order. None of them appeared in the circuit court, nor are they parties to this appeal. However, if the above named persons are indeed heirs at law of John J. Jones, the result of this opinion shall inure to their benefit as their interests may appear, and the judgment of the lower court shall so provide. We think it may not be doubted that all of the heirs at law of John J. Jones derive their rights under his will as a matter of privity, and that their respective rights stand or fall on the same basis. Thus, whether we regard these nonresidents (if heirs of John J. Jones) as indispensable parties to this appeal, and here by virtual representation, or we consider their rights as so interwoven and dependent as to be inseparable from the other parties to this appeal, the result is the same. Cf. 5B C.J.S. Appeal and Error § 1952; 78 A. L.R. 938, et seq.; Hamner v. Boreing, 191 Ky. 833, 231 S.W. 497; Tackett v. Green, 187 Ky. 49, 218 S.W. 468.

The judgment is reversed for entry of judgment consistent with this opinion,


author: WOODLEY, Presiding Judge. McDONALD, Judge MORRISON, Judge WOODLEY, Judge.

text:
    Ex parte Richard SAWYER.
    No. 37675.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Feb. 3, 1965.
    Hal J. Putman, Rivera & Ritter, by Raul Rivera, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

By habeas corpus proceeding brought under the provisions of Art. 119, Vernon’s Ann.C.C.P., petitioner attacks the sentences under which he is confined in the Texas Department of Corrections, namely:

Sentence in Cause No. S-61553 in the 175th District Court of Bexar County upon an indictment for murder of Marjory Jo Sawyer, and
Sentence in Cause No. S-61554 in the same court upon an indictment for the murder of William C. Sawyer.

These sentences were pronounced on February 7, 1963, and are concurrent sentences for a term of not less than 2 nor more than 10 years from and after November 30, 1960.

The convictions were upon pleas of guilty before the court without a jury. Petitioner was under 17 at the time of the offenses but over 16 at the time the indictments were returned, hence the cases were not capital cases. See Art. 31, Vernon’s Ann.P.C.; Ex parte Adams, Tex.Cr.App., 383 S.W.2d 596; Ex parte Walker, 28 Tex.App. 246, 13 S.W. 861; Ex parte Enderli, 110 Tex.Cr.R. 629, 10 S.W.2d 543.

The two convictions are attacked as void and petitioner’s confinement under such ten year sentences .is claimed to be unlawful by reason of the proceedings of the Juvenile Court and petitioner’s commitment and restraint in the Gatesville State School for Boys.

The Hon. John F. Onion, Jr., after hearing, granted the writ and made it returnable before this Court as authorized by Art 119 C.C.P.

The record of the hearing before Judge Onion reveals the following.

On the night of April 2, 1960, petitioner, then 15 years of age, shot and killed his parents.

On April 4, 1960, petitioner, who had been referred to the Bexar County Juvenile Office following the shooting, was committed to the Bexar County School for Boys. The next day a petition was filed by the then Criminal District Attorney in Juvenile Court representing that petitioner was over 10 and under 17 years of age and appeared to be a delinquent child and alleging: “the following facts, which he says constitutes the said Richard Sawyer a delinquent child, to wit: Said child has violated the Penal Code of the State of Texas of the grade of felony

On May 5, 1960, judgment was rendered in Juvenile Court declaring petitioner to be a delinquent child and committing him to the care, custody and control of The Texas Youth Council, and ordering that he be conveyed to the Gatesville State School for Boys.

He remained in said school until he was returned to Bexar County to answer the indictments for murder.

The record, including the testimony of the Honorable Joe Frazier Brown, who presided and entered the order declaring the petitioner herein a delinquent child, shows that evidence was introduced as to both murders and the Juvenile Court acted upon srtch evidence, though there was no allegation and no finding that petitioner committed either.

Petitioner relies upon and seeks to bring himself under the majority holding of this Court in Garza v. State, 369 S.W.2d 36.

While Garza v. State, supra, was not decided upon the theory of former conviction, it is significant that except for the fact that Juvenile Proceedings are civil in nature and' need not rest upon an indictment, all of the essential elements for a plea of former conviction or double jeopardy were present in Garza’s case, but are lacking in the case before us.

In Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983, it was held that acts not set forth in the pleadings in a juvenile case cannot be relied upon to establish delinquency. See also Ballard v. State, Tex.Civ.App., 192 S.W.2d 329; Osborne v. State, Tex.Civ.App., 343 S.W.2d 467.

Petitions such as filed against petitioner in Juvenile Court have been held to be fatally defective. Carter v. State, Tex. Civ.App., 342 S.W.2d 593.

In Garza v. State, supra, only one offense was shown to have been committed and it was alleged both in the juvenile proceedings and in the indictment.

In Martinez v. State, 171 Tex.Cr.App. 443, 350 S.W.2d 929, the offense alleged in Juvenile Court was assault to rob, whereas the conviction under the indictment was for murder.

In Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21, carrying a pistol was the ground alleged in Juvenile Court, and the conviction was for murder.

In Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106, commitment as a juvenile, after the killing, was on allegation that Lopez was incorrigible and habitually ran away from home. Conviction was under indictment for murder.

Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, appears to be a case more nearly in point under the facts before us than Garza v. State, supra. The petition filed by the district attorney in Juvenile Court alleged that Hultin committed an assault upon one Lethcoe. Hultin’s counsel filed a supplemental petition alleging that he voluntarily and with malice aforethought killed Linda Faye Ruble by stabbing her with a knife.

The Juvenile Court heard evidence as to both the assault upon the boy Lethcoe and the murder of the girl, Linda Faye Ruble, including Hultin’s confession and plea of guilty, and Hultin was found to be a delinquent child on account of the commission •of both the assault and the murder.

In none of the cases just cited has -this Court considered as controlling the fact that the Juvenile Court, in declaring the defendant a delinquent child, heard evidence or considered the fact that the defend.ant committed the offense for which he was subsequently indicted and convicted in addition to the offense pleaded in the Juvenile Court.

As has been pointed out, neither of the -murders by petitioner was alleged in the petition in Juvenile Court. Had the district attorney’s petition alleged that petitioner murdered one of his parents, none of the prior decisions of this Court would support .an attack upon his conviction for the separate offense of murder of his other par- ■ ent.

It is the view of the writer that the holding in Garza v. State must be confined to the facts of that case and that it does not •support petitioner’s attack upon the two •sentences for murder under which petitioner is confined.

The relief prayed for is denied and the petitioner is remanded to custody of the 'Texas Department of Corrections.

McDONALD, Judge

(concurring).

I only concur with Presiding Judge WOODLEY in the disposition of this case. I do not agree with him at all for the reasons that he states in his opinion. I can make no distinction whatsoever in this case and that of Garza v. State, 369 S.W.2d 36. I vigorously dissented in Garza’s case both on original submission and on rehearing. I thought that Garza’s case was wrong, and I still think that it is wrong. I think that Garza should be overruled. Garza was not convicted of murder in the Juvenile Court either. He was adjudged to be a delinquent child because he had committed the felony offense of murder, just as this boy was adjudged a delinquent child because he had murdered both his parents.

I have long taken the position that the Juvenile Act is entirely civil in nature, not criminal. This position was clearly stated by the writer in the opinion that he wrote in Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248. Being civil in nature, jeopardy cannot and does not attach.

If Garza was not decided upon the theory of former jeopardy, then the opinion by the majority on the State’s Motion for Rehearing in Garza does not mean what I read it to mean. Let’s take a look, it says:

“In the present case it is undisputed that the appellant’s conviction for murder is for the same act and offense for which he was, upon petition of the district attorney, adjudged a delinquent child and confined in the state school for boys. Under such facts, the conviction does violate the principles of fundamental fairness and constitutes a deprivation of due process and equal protection of the law.”

I personally think this means double jeopardy. If it doesn’t, then how did Garza’s conviction violate the principles of fundamental fairness and constitute a deprivation of due process under the 14th Amendment?

Judge Woodley says in his opinion that this boy, Sawyer, was declared a delinquent child because he has violated the Penal Code of the State of Texas of the grade of felony. I ask, what felony? It must have been the two murders, those of his parents. None other were shown to have been committed. Judge Woodley further states in his opinion that “[t]he record, including the testimony of the Honorable Joe Frazier Brown, who presided and entered the order declaring the petitioner herein a delinquent child, shows that evidence was introduced as to both murders and the Juvenile Court acted upon such evidence, though there was no allegation and no finding that petitioner committed either.” There could not have been under the laws of the State of Texas. The Juvenile Court has no jurisdiction to try-murder cases. All that any juvenile may be tried upon in the Juvenile Court is a petition to determine whether or not he shall be adjudged and declared to be a delinquent child. • The commission of a felony may be alleged as grounds for declaring the child delinquent. The hearing or trial in the Juvenile Court is to determine one thing and one thing only; that is, the status of the juvenile, not a determination of guilt or innocence of any crime, whether it be a felony or a misdemeanor.

I do not think that jeopardy attached in the Juvenile Court, as this court had no jurisdiction except in civil matters. If Garza, supra, was not decided upon jeopardy, the fact remains that there can be no deprivation of due process or violation of fundamental fairness under the 14th Amendment except in a criminal court.

I think that the opinion by Presiding Judge Woodley is another “legal fiction”. My views have been heretofore fully expressed in my two dissenting opinions in Garza, supra, and my views in Hultin, supra.

I agree only with the last paragraph of his opinion in which he denies the relief prayed for and remands petitioner to the custody of the Texas Departments of Corrections.

MORRISON, Judge

(dissenting).

When this case was originally submitted, Judge Dice prepared the following opinion which I approved:

“This is an application for writ of habeas corpus, presented to the Honorable John F. Onion, Jr., Judge of the 175th Judicial District Court of Bexar County, in which relator alleges that he is being .illegally restrained of his liberty by the director of the Texas Department of Corrections, by virtue of two judgments of conviction rendered against him on February 7, 1963, in said 175th Judicial District Court.

“After presentation of the application, Judge Onion conducted a hearing thereon, under the provisions of Art. 119, V.A.C.C. P., and developed the facts which have been certified to this court, together with the return of the writ, for our final determination.

“The facts, as certified, reflect that on April 2, 1960, the relator killed his parents, William C. Sawyer and Marjory Sawyer, by shooting them with a gun. On such date, relator was fifteen years of age, having been born on the 17th day of August, 1944.

“On April 5, 1960, a petition was presented to the Honorable Joe Frazier Brown, Judge of the 150th District Court of Bexar County, by the criminal district attorney, in cause #12927, alleging that relator was a delinquent child and praying that he be so adjudged. In the petition it was alleged that the facts which constituted the relator a delinquent child were:

“ ‘Said child has violated the penal code of the State of Texas of the grade of felony.’

“On May 5, 1960, after notice and hearing, an order was entered in the cause by Judge Brown, sitting as a juvenile court, declaring the relator a delinquent child and committing him to the care, custody, and control of the Texas Youth Council ‘for an indeterminate period of time not to exceed the time he shall have become twenty-one years of age.’

“After the entry of such order, relator was confined in the State School for Boys, at Gatesville until November 30, 1962, when he was arrested and taken into custody by the sheriff of Bexar County under a bench warrant issued by the judge of the 175th Judicial District Court of Bexar County, in cause #S-61553 on the docket of said court, styled The State of Texas v. Richard Sawyer, wherein the said defendant stood charged by indictment with the offense of murder with malice.

“On February 7, 1963, the relator, being at such time over seventeen years of age, entered his pleas of guilty to the indictments returned into the 175th Judicial District Court on November 28, 1962, in causes #S-61553 and S-61554, styled the State of Texas v. Richard Sawyer, charging him with the murder of his parents, and was assessed punishment in each case at confinement in the penitentiary for ten years. The sentence pronounced in each case provided :

“ ‘Said sentence to begin and operate from and after the 30th day of November, 1960, the date of defendant’s incarceration.’

“It is shown that it is under these two judgments of conviction that relator is now confined in the Texas Department of Corrections.

“From the record it affirmatively appears that relator’s convictions after attaining the age of seventeen years, in causes #S-61553 and S-61554, for the murder of his parents were for the same acts and offenses for which he had been previously adjudged a delinquent child and confined in the Gatesville State School for Boys. We need not discuss the question raised by the state with reference to the sufficiency of the petition filed by the district attorney to declare the relator a delinquent child, in view of the court’s action thereon declaring him a delinquent child and his subsequent confinement in the Gatesville State School for Boys under such order.

“In Garza v. State, 369 S.W.2d 36, in an appeal from Bexar County, we held that the conviction of a defendant for murder violated principles of fundamental fairness and a deprivation of due process where prior to the conviction, which occurred after the defendant reached the age of seventeen ' years, upon petition of the district attorney the defendant had been adjudged a delinquent child on the basis of the same act of murder and had been held in custody as a delinquent child.

“The principles announced in the Garza case are here applicable and require that relator be ordered discharged from confinement under the judgments rendered against him on February 7, 1963, in the 175th Judicial District Court of Bexar County, in cause #S-61553 and S-61554, styled the State of Texas v. Richard Sawyer on the docket of said court.

“It is so ordered.”

I cannot bring myself to agree that there is a valid substantial distinction between this case and Maximino Garza’s case. In both cases the youths were confined in the State School for Boys for the offense for which they were later tried. If it violated fundamental fairness and constituted a deprivation of due process to indict, try and convict Garza for the identical offense for which he had been committed as a juvenile, then it surely violated fundamental fairness and constitutes a deprivation of due process to deny relief to this relator, who like Garza had committed no other offense against the law.

I vigorously dissent to the order denying relief herein just as I dissented to the affirmance of Mike Martinez’s conviction in 1961 (Martinez v. State, 171 Tex.Cr.App. 443, 350 S.W.2d 929) and Ex parte Martinez, Tex.Cr.App., 386 S.W.2d 280.

ON PETITIONER’S MOTION FOR REHEARING

WOODLEY, Judge.

The writer failed to point out a distin-guishment between this case and Garza v. State, Tex.Cr.App., 369 S.W.2d 36, which should foreclose any question but that petitioner is not entitled to relief on the ground of former jeopardy.

Garza pleaded former jeopardy in his trial for murder and the question was before this Court on his appeal.

Petitioner attacks two murder convictions on liis plea of guilty by habeas corpus, though no plea of former jeopardy was filed, no appeal was taken and the judgments of conviction are final.

This Court has held that a plea of former jeopardy may be waived by failure to plead it and that Art. 508, C.C.P., relating to such plea, is constitutional. Hamilton v. State, 115 Tex.Cr.R. 243, 29 S.W. 2d 393; Ex parte Hunt, 118 Tex.Cr.R. 163, 40 S.W.2d 134. We said in Ex parte Beggs, 170 Tex.Cr.R. 162, 339 S.W.2d 527, that the claim of former conviction cannot be raised on habeas corpus. See also Ex parte Spanell, 85 Tex.Cr.R. 304, 212 S.W. 172; and Pitner v. State, 44 Tex. 578.

The cases cited are alone authority for denying relief to petitioner on the ground of former conviction.

The same is true as to Ex parte Martinez, Tex.Cr.App., 386 S.W.2d 280.

What has been said is not to be construed as suggesting that petitioner relies upon former jeopardy or that relief was granted Garza on that theory.

Garza’s plea of former jeopardy on his trial for murder was on the ground that he was indicted for the identical crime for which he had been adjudged and committed as a juvenile delinquent. Only the question of the Juvenile Court proceeding being civil in nature, and the jurisdiction of the Juvenile Court to enter a judgment which would prevent prosecution under an indictment precluded Garza from successfully pleading former jeopardy.

While the distinguishment may be discreet, the writer concluded and remains convinced that because Garza had been committed and confined under a judgment of the Juvenile Court upon , a petition alleging the identical and only offense he had committed, whereas an adult could have been at liberty under bond, Garza was denied due process and was entitled to relief on appeal.

On the other hand, in the cases of Martinez v. State, 171 TexCr.R. 443, 350 S.W.2d 929; Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21; Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106; Huitin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, and other cases cited therein, the crime charged in the indictment was not that alleged in the petition upon which the defendant had been adjudged and committed as a juvenile delinquent. Unless these cases are wrong, petitioner is not entitled to discharge.

Petitioner’s motion for rehearing is overruled.


author: McDonald, judge. MORRISON, Judge

text:
    Ex parte Mike MARTINEZ.
    No. 37611.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.

      Mike Martinez, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Petitioner, an inmate of the state penitentiary, brings this application for writ ■of habeas corpus in his own handwriting. When petitioner’s conviction reached this Court on appeal, the writer shared the view •of the majority and affirmed the case, from which position he has not departed. It is my view that the Juvenile Act and all hearings thereunder are civil and not criminal in nature. It necessarily follows that I do not believe that jeopardy attaches in juvenile courts as they are without jurisdiction of felony offenses.

My views are fully set forth in the •opinion written by me in Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, and in my dissenting opinions upon original submission and on rehearing in Garza v. State, Tex.Cr.App., 369 S.W.2d 36. The writer’s views are further stated in his concurring •opinion in Ex parte Sawyer, Tex.Cr.App., 386 S.W.2d 275.

Presiding Judge Woodley concurs in the disposition of this cause, his position and reasons being stated in his original opinion upon the appeal of this case, Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929.

Relief prayed for is denied.

MORRISON, Judge

(dissenting).

When petitioner’s conviction reached this Court on appeal, the writer dissented to the affirmance on the grounds that petitioner had once been in jeopardy and therefore could not, as I saw it, be constitutionally tried again for the same offense. I relied upon the holding in Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, which I still feel is controlling. However, since the rendition of the opinion in petitioner’s case, this Court has had a comparable situation before us in Garza v. State, 369 S.W.2d 36. Therein we said:

“To affirm this conviction in the light of the record would be to hold that, for an offense committed before he reached the age of 17 years, the offender who has committed no other offense against the law may, upon petition of the district attorney, be adjudged a delinquent child and held in custody as such, and without regard to how he may respond to the guidance and control afforded him under the Juvenile Act, be indicted, tried and convicted for the identical offense after he reaches the age of 17.
“We sustain appellant’s contention that such a conviction violates the principles of fundamental fairness and constitutes a deprivation of due process under the 14th Amendment.”

If Doggett v. State, supra, does not control, then surely what we said in Garza v. State, supra, should.

However, my brethren do not agree and this petitioner, who served his term in the State School for Boys for an offense committed when he was 13 years old, who was released and two years later was indicted for an offense growing out of the same transaction, now must continue to be confined under his life term conviction. I have stated my position fully in my dissent in Ex parte Sawyer, Tex.Cr.App., 386 S. W.2d 275.

Petitioner is before this Court without a lawyer and only the writer to speak for him, and I respectfully dissent from the order of this Court denying the relief prayed for.


author: BELCHER, Commissioner.

text:
    Robert Lee JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37607.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., Dallas, Kenneth E. Blassingame, Richard M. Berry and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, one year in jail and a fine of $500.

The testimony of the state reveals that the appellant upon going to the home of the injured party, Tressie Jackson, told her that he did not like the way “Robert Jr. treats Bob”, and she replied: “Tell Robert Jr. about it.” At this time and from a distance of four or five feet, the appellant shot the injured party in the leg above the knee with a pistol, and a “slug” was removed from her leg at a hospital. The following morning, the appellant told an officer he had been involved in a shooting the night before.

The appellant did not testify or offer any evidence.

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

Opinion approved by the Court.