author: HUNTER, Judge.

text:
    Maria D. HALLOCK, Plaintiff-Appellant, v. TRANS WORLD AIRLINES, INCORPORATED, Defendant-Respondent.
    No. 23698.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    Rostov & Weintraub, Sniezek & Jones, Kansas City, Rose & Lappas, Atlanta, for appellant.
    Donald G. Stubbs, McKenzie, Williams,. Merrick, Beamer & Stubbs, Kansas City,, for respondent.
   HUNTER, Judge.

In this Workmen’s Compensation proceeding brought by Maria D. Hallock, appellant, the sole disputed question is who-was the employer of the deceased, Thomas P. Hallock, at the time of his death on July 15, 1960. Appellant claims he was an employee of respondent, Trans World Airlines (TWA). The respondent claims he-was always an employee of Ethiopian Air Lines (EAL) and had never been a TWA employee. The referee and the Industrial Commission ruled that he was not an employee of TWA and denied compensation. On appeal, the circuit court affirmed.

On the appeal to this court the only question presented is whether the circuit court erred in affirming the Industrial Commission’s final award denying compensation for the urged reason that the award is contrary to the overwhelming weight of evidence.

According .to the evidence, commencing on March 7, 19S6, there existed a contract between the Imperial Ethiopian Government and Trans World Airlines, Inc., the basic purpose of which was to obtain the aid of TWA in the operation and development of EAL until such time as EAL could be self-sufficient and be operated entirely by Ethiopian personnel. The contract provided that all members of the Board of Directors of EAL shall he appointed by His Imperial Majesty, and that this Board shall be the governing authority of EAL and establish its general policies. TWA was to obtain from its personnel and nominate, among others, a general manager, subject to the approval of the board. The general manager, under the direction of the board, was to be responsible for the management of the airline’s operation, including authority to employ personnel for the corporation. Article VI provided that “when requested by EAL, TWA shall act as agent of EAL and the Imperial Ethiopian Government in the employment of personnel and the purchase of equipment, supplies and services.” (Italics ours.) All expenses incurred by TWA were to be reimbursed to TWA with a 5% commission, and in addition TWA was to receive an annual fixed fee of $35,000. Payment to TWA was to include expenses incurred by TWA in returning to their place of original domicile persons who changed their domicile to accept employment by EAL pursuant to the agreement.

Pursuant to this contract TWA was requested to obtain for EAL a number of qualified pilots. TWA ran in various newspapers throughout the country an advertisement reading “Pilots — Overseas With Ethiopian Air Lines” with TWA’s address.

Early in 1956 Thomas P. Hallock was honorably discharged from the United States Coast Guard as an aviator with the rank of Commander, and he was seeking employment. He saw the mentioned advertisement and contacted the TWA personnel office where he was directed to Clyde E. McBride, Jr., TWA employment supervisor. A form was filled out titled: “Ethiopian Air Lines Applicant Check List — Position Applied For: EAL Co P.” Also filled out was a form headed “Trans World Airlines, Inc., Application for Employment, Position Co-Pilot Ethiopian Airlines, Inc.”

McBride testified that while in connection with the Ethiopian Air Lines’ contract some regular TWA employees were transferred on occasion by TWA to Ethiopian Air Lines, Hallock was hired directly for the Ethiopian Air Lines and from outside TWA. McBride explained in detail to Hallock that Hallock was working for Ethiopian Air Lines. He gave Hallock a copy of the written contract Hallock would be expected to sign on his arrival in Ethiopia and he had Hallock sign a letter of commitment that on arrival Hallock would sign such a contract. The letter read in part:

“Ethiopian Air Lines, Inc.
“POB 1755
“Addis Ababa, Ethiopia
“Dear Sirs:
“I have made application to TRANS WORLD AIRLINES (TWA) as your employment representatives in the United States for employment with Ethiopian Air Lines (EAL) “TWA has invited me to examine the Agreement of Employment which I will sign on my arrival in Addis Ababa.
* ⅜ *
“I understand and acknowledge that should I willfully terminate my <?tm-ployment with EAL prior to having completed 18 months of service, that the airlines (EAL) shall hold me obligated for all or a portion of my transportation from the United States to Ethiopia.” (Emphasis ours.)

Hallock then received a letter from P. Paul Day, Employment Manager, which read in part: “Dear Mr. Hallock: This letter will supplement the instructions already given you and will confirm our verbal understanding regarding your employment by the Ethiopian Air Lines at Addis Aba-ba, Ethiopia, to function as a Copilot. * * * EAL will pay you your regular salary . . . while traveling to Ethiopia.”

On his arrival in Ethiopia Hallock executed his written employment contract which reads: “Ethiopian Air Lines, Inc., Addis Ababa, Ethiopia, Agreement of Employment between Ethiopian Air Lines, Inc., hereinafter designated as EMPLOYER, and Thomas P. Hallock, hereinafter designated as EMPLOYEE.” Hallock executed this contract of employment with Ethiopian Air Lines, Inc., which established his rate of pay and his duties as “a captain, to perform duties in Ethiopia and other countries.” The signatory portion read:

“Ethiopian Air Lines, Inc., (Employer).
by: (Signed but not legible on exhibit
copy)
Thomas P. Hallock Employee”

Later, and on January 1, 1958, a supplementary “Agreement of Employment between Ethiopian Air Lines, Inc., hereinafter called the Employer and Thomas P. Hallock, hereinafter called the Employee” was executed by Hallock and by Ethiopian Air Lines, Inc. Four additional schedules, A, B, C and D were executed and added to the contract in each of which Ethiopian Air Lines, Inc., was named as employer and Hallock as its employee. Schedule D provided that EAL would provide Hallock with a life and accident policy in the sum of $10,000 in addition to paying his salary.

The evidence further discloses that in pursuance of the contract of employment between TWA and the Ethiopian government and to induce qualified persons in this country to accept the employment offered by EAL it was provided that up to 80% of the wages of persons hired for EAL would be disbursed by TWA check drawn on funds in this country, and deposited in the bank account designated by the employee, the remainder of the salary being payable in local currency in Ethiopia. All funds disbursed in this manner by TWA were to be billed monthly to EAL and TWA was to be reimbursed by EAL in full together with a 5% commission for this service.

TWA permitted pilots hired for EAL at their option to purchase shares in the TWA Credit Union and to provide for a payroll deduction for the purchase of U. S. Government Bonds. Hallock availed himself of both of these privileges. However, persons hired for EAL were not permitted to come under the TWA retirement program, nor did they acquire any seniority rights. TWA did deduct for social security on all persons for whom they processed payrolls, including Hallock.

On August 15, 1958, Hallock married appellant, a Greek National and hostess for EAL in Addis Ababa, Ethiopia and undertook to obtain United States citizenship for her. He applied for immediate citizenship under that portion of the Immigration and Naturalization Act, Section 319(b) permitting citizenship to any person whose spouse is a citizen of the United States in the employment of an American firm engaged in the development of foreign trade. He prepared a letter for TWA to type on its letterhead reading in part, “This is to certify that Mr. Thomas P. Hallock is a Trans World Airlines’ employee on assignment, under contract to Ethiopian Airlines' ..” and this letter was signed and sworn to by a regional director of Industrial Relations of TWA. Also, the Director of Personnel Administration at Hal-lock’s request wrote the U. S. Department of Justice, Immigration and Naturalization service, saying it was written “at the request of one of our employees, Captain Thomas P. Hallock” and stating Hallock was an employee of an American Company serving overseas, being “assigned to fly for Ethiopian Air Lines . . .Mrs. Hal-lock was granted United States citizenship.

On July 15, 1960, Hallock was killed while piloting an aircraft in Ethiopia. TWA, on August 5, 1960, pursuant to Section 287.240(6) RSMo 1959, V.A.M.S., provided notice of his death to the Workmen’s Compensation Commission which notice it later asked to be withdrawn. TWA arranged transportation of Ilallock’s body to the United States at its own expense. TWA passes were issued to Hallock’s widow for her to travel to and within this country.

Mrs. Hallock filed her Workmen’s Compensation claim June 6, 1961. She remarried on November 2, 1961. It has been stipulated that there is a period of 68 weeks in which she would be eligible for compensation, if she met the provisions of the compensation act in all other regards, and that she is entitled to $2,720 as full recovery, or to nothing. Since the amount in dispute is less than $15,000 this court has appellate jurisdiction.

On this appeal, appellant does not take the position that there is no substantial evidence to support the Industrial Commission’s award denying recovery. Rather, appellant contends the Industrial Commission’s decision is clearly contrary to the overwhelming weight of the evidence.

It is the rule that the reviewing court although not permitted to substitute its own judgment on the evidence for that of the commission may nevertheless decide whether the Industrial Commission could have reasonably made its findings and reached its results on a consideration of all the evidence before it, and can and should set aside a decision of the Industrial Commission if it is clearly contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Company, Mo.Sup., En Banc, 337 S.W.2d 252; Lawson v. Vendo Company, Mo.App., 353 S.W.2d 113.

While we have not set out all of the evidence pro and con on the employment question, we have set out the most important of it and in sufficient detail to demonstrate the validity of our conclusion drawn from the entire record that the decision of the Industrial Commission is not clearly contrary to the overwhelming weight of the evidence. Although there is some evidence which appears to support appellant’s contention that TWA was deceased’s employer rather than EAL, it is our view that the evidence, taken as a whole, fully supports the decision of the Industrial Commission.

It is amply clear that under the terms of TWA’s contract with the Empire of Ethiopia, TWA agreed to hire on behalf of EAL certain personnel including pilots. The contract specifically provided TWA would act as the agent for EAL in locating and hiring such persons. The contract between deceased and EAL and the surrounding transactions unmistakeably reveal that deceased was hired by Ethiopian Air Lines, Inc., through its fully disclosed agent, TWA. While perhaps some TWA personnel went too far in what they said and wrote in an effort to aid deceased obtain United States citizenship for his wife and were perhaps technically incorrect in withholding for social security from his salary, (all of which salary in final analysis was paid by Ethiopian Air Lines, Inc.) we believe that the decision of the Industrial Commission was not only not contrary to the overwhelming weight of the evidence but rather was in accord with it.

Appellant has cited De Lonjay v. Hartford Accident & Indemnity Company, 225 Mo.App. 35, 35 S.W.2d 911, and Section 287.040(4) suggesting there may have been a contractor-subcontractor relationship between TWA and EAL which would make the primary contractor liable to the employee for his injuries. We cannot find where any such contention was raised by appellant prior to this appeal. Nor under the facts presented is the contention applicable, for, among other reasons apparent upon examination of the statute, deceased was not an employee of a subcontractor of TWA.

Accordingly, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    J. K. SEEAR (U.S.A.) LTD., a corporation, Appellant, v. C. O. JONES & SON INSURANCE AGENCY, a corporation, et al., Respondents.
    No. 23488.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Elwyn L. Cady, Jr., Kansas City, for appellant.
    John C. Gage and William L. Turner, Gage, Hodges, Moore, Park & Kreamer, Kansas City, for respondents.
   SPERRY, Commissioner.

This suit was brought by plaintiff, an agent of Lloyd’s of London, to recover ½ of the commissions previously paid to defendant C. O. Jones, for insurance premiums produced on turkey insurance sold by defendant for Lloyd’s. The amount sought by plaintiff was the sum of $3887.39, representing 5%' of all premiums earned by Lloyd’s, and 1/3 of all premiums admittedly paid by plaintiff to defendant under the contract. (Originally, another defendant was involved but was dismissed). Trial was to the court and judgment was for defendant. Plaintiff appeals.

Plaintiff was the U. S. representative of Lloyd’s of London, which is engaged in the insurance business. Plaintiff contracted with defendant to pay it 15%’ of all premiums collected by Lloyd’s on such turkey insurance business as defendant might produce and service (supervise claims arising thereon) for Lloyd’s. This contract was oral but was, later, set forth in a letter written by plaintiff to defendant, as follows:

“4. Commissions. The commissions to your office on all turkey business will be 15% if you can satisfactorily handle claims supervision. ■ Should it be necessary to bring another office into the picture to handle claims supervision, your commission would necessarily go to 10%’.”

Plaintiff’s contention and theory is that it paid defendant the 15% agreed on but that defendant failed to properly supervise all claims' arising out of policies so issued; that plaintiff, therefore, had the right to a refund of of all monies paid to defendant. Plaintiff contends that this is a “contract of judgment”, that it has the unrestricted and absolute right to make its own determination as to whether the serv-. ices rendered were satisfactory, that it may exercise its own judgment as to that question and that such judgment is not subject to review or control by any court or jury. The law, under certain conditions, recognizes and will enforce such contracts. 17 C.J.S. Contracts, Satisfaction of Party, § 495, p. 1006. However, the court properly held this contract, as set forth, not to be of that character, and that it is ambiguous. Parol evidence was admitted to explain it, to ascertain the intention of the parties and the interpretation they placed on it at the time it was entered into.

There was testimony to the effect that between four hundred and five hundred claims arose from various policies; that defendant processed, (ascertained the facts surrounding the claims) all except two of these; that defendant had subcontracted some of this business to another agency and that such other agency collaborated with defendant as to some claims; that it eventually moved its offices to a building occupied by R. B. Jones & Sons, Inc., another insurance agency, and utilized some of that company’s facilities in handling this business but it did not transfer any business to it, or neglect and abandon it to defendant’s. responsibility, but continued to perform its obligations under the contract as to these claims.

As to two claims, above mentioned, the evidence is unclear as to their final disposition but there was sufficient evidence to justify the court in believing that said, claims were processed to the point where defendant had reasonably discharged its obligation under the contract. There was no substantial- evidence tending to prove that either defendant or plaintiff brought in any third office to supervise claims growing out of these turkey policies, a contingency provided for in the contract. There was substantial evidence tending to prove that plaintiff, after the claims had all been processed, expressed satisfaction, and that its manager stated that it claimed no money owing to it from defendant.

The contract must be read and considered as a whole. American Law Institute, Restatement of the Law of Contracts ; Sections 23S-236. There it is said:

“(c) A writing is interpreted as a ■ whole and all.writings forming a part of the same transaction are interpreted together.” § 235(c).
“(a) An interpretation which gives a reasonable, lawful and effective meaning to all manifestations of intention is preferred to an interpretation which leaves a part of such manifestations unreasonable, unlawful or of no effect.” § 236(a).
“(c) Where there is an inconsistency between general provisions and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions.” § 236(c).
“(d) Where' words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from whom they proceed, unless their use by him is prescribed by law.” § 236(d).

Considering the law, the evidence, and the record, as a whole, it cannot be said that the judgment is erroneous. It is for the right party and is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri at the relation of UNITED BONDING COMPANY OF INDIANAPOLIS, Indiana, By Alameda Bradshaw, Appellant, v. Michael J. KENNEDY, Magistrate, 4th District, Jackson County, Missouri, Respondent.
    No. 23717.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      J. K. Owens, Thomas J. Cox, Jr., Kansas City, for appellant.
    Robert L. Shirkey, Rogers, Feild & Gentry, Kansas City, for respondent.
   PER CURIAM.

This is a proceeding instituted by appellant in the Circuit Court of Jackson County for a writ of mandamus to compel respondent, Michael J. Kennedy, a Magistrate, to accept Relator as a bondsman. The Circuit Court denied the writ and Relator appealed.

We take judicial notice of the fact that Respondent no longer holds the office of Magistrate in Jackson County.

The general rule is that mandamus will not lie against an officer after the expiration of his term of office. 38 C.J. Mandamus, page 604, 55 C.J.S. Mandamus § 51 page 84. A writ directed to Respondent commanding him to accept Relator as a bondsman would be a useless thing.

Rélatomsáys that his case "involves a matter of public interest and for that reason should not be dismissed.' The petition discloses that Relator asserts only its private rights. The issue of public interest, if in the case at all, is so remote as to pror hibit application of the public- interest rule.

The question presented having become moot, the appeal is dismissed


text:
    Marion K. KLOTT, an infant, by Helen Powell, next friend, Respondent, v. Joe KLOTT, Appellant.
    No. 23705.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Edwards, Wright & Seigfreid, Jerome W. Seigfreid, Mexico, for appellant.
    Bear & Hines, David V. Bear, Columbia, for respondent.
   SPERRY, Commissioner.

This action was instituted by Marion K. Klott against Joe Klott, her divorced husband, seeking modification of the decree granting plaintiff and defendant, alternately for six months, custody of their son, Stephen, with the provision that whoever does not have the custody during any period shall have visitation privileges on the first and third week ends. Plaintiff seeks full time custody. Defendant filed a counter motion seeking full time custody. The court adjudged that custody should continue as originally ordered except that, during any period of time when plaintiff should be or reside outside of the state of Missouri, defendant should have custody of the child. Plaintiff appeals.

Plaintiff sued for and obtained a divorce from defendant in October, 1960. The court entered an order as above specified, touching custody of Stephen, who was then one and one-half years of age. In January 1961, plaintiff was married to a Mr. Dotson and, about April 5, 1961, she gave birth to a child. From the testimony and from inferences to be drawn therefrom plaintiff was pregnant at the time of her divorce, and Mr. Dotson, her present husband, is the father of that child.

At the time this trial was had, October, 1961, plaintiff and her husband were residents of St. Cloud, Minnesota, to which location she had taken Stephen without benefit of court order. However, she had returned the child to this jurisdiction prior to the hearing. ■

Plaintiff’s own testimony was all that she offered. It was to the effect that defendant, on one occasion, after the divorce, had been charged with and convicted of being intoxicated while operating á car. Defendant admitted the offense and stated that it occurred while attending a V.F.W. dance at Fulton. There was substantial evidence to the effect that defendant had been steadily employed for many years with a road building company; that he is a steady worker and, except for the one occasion mentioned, sober; that, since the divorce, he and Stephen live at the home of a married sister in St. Louis when Stephen is with him; that the home is adequate from every standpoint; that he attends church regularly with his son; that his sister maintains a fine, Christian home, in a modem six room house, with a large fenced in yard, which she occupies with her husband, and three daughters several years older than Stephen; that plaintiff spends his evenings at home playing with his son, seldom goes out, and does not drink, at least excessively; that sometimes he and his son spend week ends at his parents farm home, near Fulton, Missouri. From the record, we can see nothing to criticize regarding defendant’s qualifications as custodian of his child.

Plaintiff lives with her husband and baby at St. Cloud, Minnesota. Aside from the inferences concerning the birth and fatherhood of that child, there appears to be nothing that reflects on her as a mother.

However, Stephen is well cared for by his father, who has done nothing which should cause him to be denied the companionship of his son. Yet, if plaintiff is granted full time custodial rights, defendant, a working man with a modest income, will, in effect, he denied even the right to visit his son because he will be in Minnesota; and, if the previous order of divided custody should be continued, there would be alternating periods of six months when defendant would be unable to visit Stephen.

Of course, always, the courts should seek a solution in child custody cases which is for the best interests of the child. In doing so, many times, one or the other parent is hurt. But such a result is primarily due to the failure of the parties to the marriage, or of one of them, not to the courts.

In this case, the trial judge is familiar with all facets of this case. He heard and saw the parties and witnesses in both trials. We cannot find error in the judgment.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court All concur.


author: WADDILL, Commissioner.

text:
    Harold CLAYPOOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    Rehearing Denied March 1, 1963.
    D. Bernard Coughlin, Maysville, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst: Atty. Gen., Frankfort, Wood-son T. Wood, Commonwealth Atty., Mays-vill'e, for appellee.
   WADDILL, Commissioner.

We consider the grounds urged for a reversal of a judgment sentencing Harold Claypoole to prison for 8 years upon his conviction of maliciously shooting and wounding Leland Edgington with intent to kill. Two former convictions were reversed for procedural errors. Claypoole v. Commonwealth, Ky., 355 S.W.2d 652 (1962) and 337 S.W.2d 30 (1960).

Claypoole’s claim that the court erred in not granting him a change of venue will not be considered since he did nothing to obtain it in the circuit court.

The contention that the verdict is flagrantly against the evidence is apparently predicated upon the theory that evidence introduced in behalf of Claypoole rendered the Commonwealth’s proof so incredible that the court should set aside the verdict and order a new trial. We cannot accept this theory because the evidence introduced in support of Claypoole’s claim of self defense was not of such a character that it would entitle Claypoole to a directed verdict of acquittal. Hence, the verdict found in accordance with the Commonwealth’s evidence, which was sufficient to sustain the conviction, will not be disturbed. See Lefler v. Commonwealth, 216 Ky. 176, 287 S.W. 569; Deaton v. Commonwealth, 211 Ky. 651, 277 S.W. 1001.

Claypoole urges that misconduct of the Commonwealth’s Attorney prevented him from obtaining a fair trial and he makes numerous references to the record to support his contention. We have examined each of the alleged acts of misconduct and find no basis for the accusation.

In support of the motion for a new trial an affidavit was filed alleging' that one of the trial jurors had concealed on voir dire the fact that he had previously stated “a fellow that would do what Claypoole did should be sent to the penitentiary.” The juror filed a counter-affidavit in which he emphatically denied having made the statement. Upon the issue raised it cannot reasonably be said that the trial judge abused his discretion in overruling this motion. Combs v. Commonwealth, Ky., 356 S.W.2d 761; Colwell v. Commonwealth, Ky., 320 S.W.2d 116.

After a careful examination of the record we find no error.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Bert T. COMBS, Governor, Appellant, v. Robert F. MATTHEWS, Commissioner of Finance, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1963.
    Louis Cox, John Hopkins, Frankfort, for appellant.

      Hunter B. Whitesell, Dept, of Finance, John B. Browning, Asst. Atty. Gen., Robert T. Caldwell, Jr., Asst. Atty. Gen., Frankfort, Jack Q. Heath, Louisville, for appel-lees.
   MILLIKEN, Judge.

The General Assembly is meeting now in extraordinary session to consider reapportionment of legislative districts, a circumstance which came into existence after the trial court refused to declare the rights of the litigants, because it concluded that no justiciable controversy was presented by the pleadings which merely alleged that the Governor was “considering calling into extraordinary session the General Assembly * * * for the sole and express purpose of redistricting the said Commonwealth * * This Court is not authorized to give advisory opinions on hypothetical factual situations (Re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692, 103 A.L.R. 1085. See, also, 47 H.L.R. 1022-9.), but it may declare the rights of litigants in advance of action when it concludes that a justiciable controversy is presented, the advance determination of which would eliminate or minimize the risk of wrong action by any of the parties. KRS 418.040, 418.045. Justiciability turns on “evaluating both the appropriateness of the issues for decision * * * and the hardship of denying judicial relief.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. We believe the issues presented here should be resolved and that it will serve a useful public purpose to do so in advance of any legislative action of the General Assembly in the present special session. See Borchard, Declaratory Judgment, 2nd Ed., at pages 29 and 58.

The power of the Governor to call the General Assembly into session on extraordinary occasions for the sole purpose of considering stated subjects is conceded (Sec. 80, State Const.), but the Commissioner of Finance contends that the General Assembly may not consider legislative reapportionment or redistricting before 1964, claiming that Section 33 of the State Constitution requires such action at ten year intervals after 1894 when the first General Assembly met under the present Constitution. The Commissioner, consequently, pleads that he cannot legally approve the payroll and expenses of the members of the General Assembly for the present 1963 extraordinary session called, as it is, solely for the purpose of legislative redistricting.

The Governor asserts that “it is impossible to divide the Commonwealth into one hundred (100) representative districts of approximately equal population and at the same time to restrict each district to no more than two (2) counties,” but the Secretary of State contends that Section 33 of the Constitution limits a representative district to a maximum of two counties which would preclude him from accepting the notification and declaration of candidates for the office of representative from districts containing more than two (2) counties. Section 33 of the Constitution says:

“The first General Assembly, after the adoption of this Constitution shall divide the state into thirty-eight Senatorial Districts, and one hundred Representative Districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district, which district shall constitute the Senatorial and Representative Districts for ten years. Not more than two counties shall be joined together to form a Representative District: Provided, In doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the General Assembly shall then, and every ten years thereafter, redistrict the State according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of population should be unavoidable, any advantage resulting therefrom shall be given, to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous.”

The political difficulty of achieving legislative reapportionment at ten year intervals as Section 33 commands is evidenced by the reluctance of the legislators through the years to tackle the job. Not since 1942 has it been accomplished or attempted in Kentucky. With the industrial development of the State, movement of its population to urban and industrial centers was assured, and inequality of representation in the General Assembly was inevitable unless periodic reapportionment was accomplished as commanded. The failure of Tennessee to reapportion its legislature since 1901 caused the Supreme Court, on March 26, 1962, to deviate from its historic policy of refraining from deciding so-called political questions on the ground they were non-justiciable and, in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, that Court concluded that a disparate inequality of representation in a state legislature presented “a justiciable constitutional cause of action * * * within the reach of judicial protection under the Fourteenth Amendment.” (See The Non-Justiciable Controversy, 48 Va.L.R. 922 et seq., June, 1962.) As of November 1, 1962, the apportionment of at least thirty state legislatures has been challenged in State and/or Federal Courts. (Apportionment of State Legislatures, Advisory Commission on Intergovernmental Relations, Washington, D. C., December, 1962, at page A-21.)

In the light of this background it would be folly to construe Section 33 of our State Constitution in a manner that would' delay the General Assembly in any way in attempting to meet its constitutional obligation of redistricting the State. The section requires the redistricting to be done every ten years. When it has not been undertaken for over twenty years, the emphasis clearly is on promptness in correcting any accumulated inequalities, for pervading the whole section is the “principle requiring every district to be as nearly equal in population as may be * * *.”

Furthermore, we think this Court displayed rare foresight and sound judgment in 1906 when it said in Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865:

“ * * * we do not agree with ap-pellees that section 33 forbids more than two counties to be joined in one district. Without elaboration, we are of opinion that more than two counties may be joined in one district, provided it be necessary in order to effectuate that equality of representation which the spirit of the whole section so imperatively demands. It may not be inappropriate, however, to say that it is difficult at this time to see how this necessity can often arise. But it must be remembered that Constitutions are established for the exigencies of long periods of time, and it cannot now be told what the future may bring forth.”

Certainly, if the General Assembly enacts a redistricting plan which “effectuates that equality of representation” it will have done well a most difficult task and proved again that Kentuckians can govern themselves.

It is our conclusion that the General Assembly may enact a redistricting plan at its present session called for that specific purpose; that it may include more than two (2) counties in a representative district if it deems that it is necessary in order to effect a reasonable equality of representation among respective districts; and that it is entitled to compensation for its services and payment of its lawful expenses.

The judgment is reversed with directions to enter judgment in conformity herewith.

MONTGOMERY, J.. not sitting.


author: CLAY, Commissioner.

text:
    Jo M. FERGUSON (Formerly V. E. Barnes) Commissioner, Department of Economic Security, Commonwealth of Kentucky, Appellant, v. Evelyn NOE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 1, 1963.
    Paul E. Tierney, Forest Smith, Clarence E. Powell, Department of Economic Security, Frankfort, for appellant.
    James C. Brock, Harlan, for appellee..
   CLAY, Commissioner.

The Department of Economic Security appeals from a judgment awarding appel-lee $3400 (with interest at 6 percent from the date of the judgment) as a retroactive award of public assistance payments which should have been made to her as the parent of needy children.

For about 10 years prior to May 1958 appellee had been granted assistance to take care of her needy children because their father was incapacitated from work. Payments were then discontinued on the ground the father’s incapacity no longer existed, and after an appeal within the administrative machinery, this decision was upheld by the Appeal Board. Although KRS 205.230(3) permits an appeal to the circuit court from such a ruling within 20 days, no appeal was taken by appellee from this order.

On January 5, 1959 appellee reapplied for public assistance. After administrative review the application was denied on August 12, 1959. As authorized by KRS 205.230(3), a petition for review was filed in the Harlan Circuit Court.

On April 29, 1960 the circuit court reversed the Department’s ruling, and thereafter monthly payments to appellee were reinstated. By a supplemental order the court adjudged appellee entitled to retroactive payments of $148 per month from the date in May 1958 when they were discontinued until April 1960 when they were reinstated, and a judgment against the Department in the amount of $3404 (with interest) was entered. It is obvious this judgment (if any was authorized) improperly imposed on the Department liability for payments allegedly due between May 1958 when they were discontinued and January 5, 1959 when the new application was filed. Appellee failed to appeal from the Appeal Board order discontinuing payments as provided by KRS 205.230, and consequently both appellee and the circuit court were bound by that ruling.

It is the contention of the Department that it cannot be required to make any retroactive public assistance payments of this nature. First it is argued that public assistance is based on current needs for subsistence of a “needy child” and the computation of amounts payable is controlled by standards adopted by the Department for determining present and future requirements of the recipient. It is contended there is nothing in the public assistance law, regulations or policies which requires or authorizes subsidizing past economic difficulties. . In addition, the allowance of a , substantial lump sum payment such as this would automatically make the recipient of public assistance ineligible for further assistance.

It is further pointed out that there is no evidence in the record justifying the allowance of $148 per month over a prior fixed period of time. Amounts allowable are dependent upon existing and changing-future circumstances, not past conditions.

It is finally contended the circuit court is invading the field of administration vested in the Department under KRS 195.020 in allowing retroactive payments which are inconsistent with the policies and regulations of the Department.

We are confronted with imponderables in this case because the statutory scheme is not complete. Apparently a person is entitled to public assistance under Chapter 205 KRS upon an adequate show1 ing of (1) eligibility, and (2) need (assuming proper compliance with statutory provisions and the regulations of the Department). Certainly the applicant has no right to an allowance until the Department has determined the question of eligibility (which was done in this case by order of August 12, 1959). Under KRS 205.230(3) a dissatisfied applicant may secure judicial .review of an adverse decision.

The time lag between the decision of the Department and the circuit court decision on review creates the principal difficulty. The adjudication of the court must be based on conditions shown to exist as of the date of the administrative decision. By the time the judicial decision is made conditions may have changed and it is for that reason the Department contends the court cannot enter a judgment having a retroactive effect. We cannot accept this argument because it would make every judicial review moot.

There is no authority, however, for the circuit court to enter a judgment such as the one we have before us. Although the. Department does not contest the adjudication that its finding of eligibility was erroneous, upon such a determination* the judgment of the court is .restricted by the provisions of section (6) of KRS 205.230. This section provides:

“The court shall enter judgment affirming, modifying or setting aside the order, or decision, or in its discretion remanding the cause to the appeal board for further proceedings in conformity with the direction of the court.”

Under this section the court could properly set aside the Department’s order finding appellee ineligible for public assistance. The remaining question, which the Department must originally pass upon, is the one of need. This question was not presented for review, and even if it had been, the court was without authority to fix the amount of payments and could only remand the case to the Department for further proceedings. See Johns v. State Social Security Commission, 235 Mo.App. 150, 143 S.W.2d 161. The circuit court clearly is not authorized to award a money judgment against the Department.

We are not in a position on this record to direct specific action be taken by the Department upon remand of the case. However, in view of the uncontested adjudication by the circuit court that appellee had established her eligibility for public' assistance as of August 12, 1959, the Department must accept that finding and unless a material change of conditions is shown to have existed, it must recognize her eligibility as continuing from August 12, 1959 until the date in April 1960 when the Department reinstated payments to her. For this period the Department must determine appellant’s then existing needs (for her children) and must award her such an amount as would have been required and would have then been payable from funds available. To make up for any payments that should have been made and were not made, the Department may in its discretion either make-' a lump sum payment (with general directions for its expenditure) or liquidate whatever obligation is found to exist by supplementing the present and future payments made to appellant for the benefit of her needy children.

The judgment is affirmed to the extent it adjudged the eligibility of the applicant Evelyn Noe and set aside the August 12, 1959 order of the Department, and reversed to the extent it made any award to the applicant or adjudged her a recovery of money against the Department; and the circuit court is directed to remand the case to the Department of Economic-Security for further proceedings consistent with this opinion.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roger F. LANTER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 1, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Patrick J. Dixon, Dept, of Highways, Frankfort, for appellant.
    Ottis Lanter, Williamstown, for appel-lees.
   WADDILL, Commissioner.

The appeal is from a judgment obtained by appellees, the land owners, in this highway condemnation proceeding.

In behalf of the appellant, Commonwealth of Kentucky, it is contended that the trial court erred in rejecting the testimony of the county tax commissioner concerning the assessed valuation of the appellees’ property for 19S8. Apparently the trial court excluded this testimony because the valuation was determined by the tax commissioner on the basis of the reassessment made by the Commonwealth in 1954. Since it was shown that appellees had signed the 1958 — assessment list containing the valuation of their property, they will not be heard to say that they have not fixed its value themselves. Commonwealth v. Rankin, Ky., 346 S.W.2d 714. Evidence of the valuation placed on their property by the appellees for tax purposes was an important factor which the jury should have been permitted to consider in arriving at a proper verdict. Consequently the exclusion of it was prejudicial.

Since we are reversing the judgment and ordering a new trial, we do not believe it necessary to answer other contentions of appellant. Hence they are specifically reserved.

The judgment is reversed, with directions to grant appellant a new trial.


text:
    Jesse PENNINGTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 1, 1963.
    Lewis & Weaver, London, John M. Lyt-tle, Manchester, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Robert T. Caldwell, Jr., Asst. Atty. Gen., Frankfort, for appel-lee.
   WADDILL, Commissioner.

By verdict and judgment of the Jackson Circuit Court Jesse Pennington was convicted of the crime of murder aftd was sen-teñced to confinement in the penitentiary for life. KRS-435.010. He appeals.

The lifeless" body of Kenneth Gabbard was found in Leger Creek in Jackson County'during the morning of October 21, 1961. An examination of the body at that time disclosed that Gabbard had sustained bruises and superficial lacerations about the head, shoulders and hands. The following day an autopsy was performed and the pathologist found that the kidneys were torn apart, there was a severe hemorrhage in the neck and the hyoid bone was broken. The pathologist attributed the cause of death solely to the combination of the hemorrhage in the neck and the fracture of the hyoid bone which he believed to have been caused either by a blow to the area of the neck or by manual strangulation.

The officers who conducted an investigation testified that they went to the home of Odessa Cavins, located approximately a quarter of a mile from the place where the body was found, and discovered a trail of blood "drops leading from her home to a nearby barn and from there to a large pool of blood situated about Vio of a mile from where the body was located.

In addition to these facts the Commonwealth relies principally upon the testimony of Carson Shepard and his wife, Patsy, Odessa Cavins and her son, Larry, to sustain the conviction. The testimony of Carson and Patsy Shepard was substantially the same. Their testimony discloses that Gabbard, a neighbor and friend, was visiting them when Pennington came to their home during the early part of the evening of October 20, 1961. After they had a few drinks.of whiskey they all went to the home of Odessa Cavins where they consumed more whiskey. During the progress of this drinking party, Shepard, upon being informed by his wife that Gabbard had been “making passes” at her, told Pennington that there was going to be trouble. Shepard then accused Gabbard of improper conduct toward hjs wife. Gabbard denied the accusation, and thereupon Pennington held Gabbard by the throat for a few seconds and slapped him. Gabbard and Shepard renewed their argument which resulted in Shepard’s striking Gabbard with his fist. Gabbard continued to assert his innocence and when he called Patsy a liar she punched him on the nose, causing it to bleed. Odessa Cavins and her son, Larry, who were the only other witnesses the Commonwealth introduced to describe the events which took place at the Cavins home, testified that, during an argument between Patsy and Gab-bard, Patsy mashed ■ Gabbard’s nose and that they did not see anyone else strike him. The evidence further reveals that Gabbard left the Cavins home at approximately 10 :- 00 p. m. and that the last time he was seen that night he was walking alone in the direction of his home.

We are of the opinion that there is not sufficient evidence to sustain the verdict. The testimony of the Shepards merely shows that Pennington held Gabbard momentarily by the throat and slapped him. It was not established that Gabbard was seriously injured thereby or that such mistreatment could have resulted in his death. Moreover, it was shown that thereafter Gabbard became involved in an altercation with the Shepards and was subsequently seen walking alone in the direction of his home. When his body was found the next day about ¼ mile from the Cavins home, he had sustained serious bodily injuries which were not accounted for by the Commonwealth’s evidence. Since we have concluded that there was no evidence of probative value tending to show that an act of Pennington caused Gabbard’s death or that he aided or abetted in the commission of the homicide, the trial court erred in overruling the motion for a directed verdict of acquittal. See, Warnell v. Commonwealth, Ky., 246 S.W.2d 144; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981; Drake v. Commonwealth, 264 Ky. 261, 94 S.W.2d 684; Commonwealth v. Cozine, 9 S.W. 289, 10 Ky.Law Rep. 412.

In view of the reversal of the judgment, we will not discuss the other questions. raised herein. The evidence presented on a new trial may be different. However, all questions not decided are expressly reserved.

The judgment is reversed, with directions to grant appellant a new trial.


author: STEWART, Chief Justice.

text:
    John Raymond BAUER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 1, 1963.
    R. Davis McAfee, A. Walter Redmon, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, Laurence E. Higgins, Com.’s Atty., 30th Judicial District of Ky., Carl C. Ousley, Jr., Asst. Com.’s Atty., Louisville, for appellee.
   STEWART, Chief Justice.

Appellant, John Raymond Bauer, was convicted in the Jefferson Circuit Court of the wilful murder of Alfred Nachand, and also at the same time of the offense of armed robbery, and sentenced to life imprisonment in each case. These appeals have been consolidated and will be considered together. Appellant’s sole contention on the two appeals is that the trial court erred in admitting his alleged confession into evidence. It is claimed the Commonwealth’s attorney and certain police officers, acting under his direction in obtaining the confession, flagrantly violated the constitutional rights vouched unto him by the Fourteenth Amendment to the Constitution of the United States and, in addition, which contention we shall consider first, secured the incriminating statement by methods prohibited ,by the terms and conditions of KRS 422.110, the “Anti-sweating Act.” It reads:

“(1) No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection, with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of tiie accused permit any other person to do so.
“(2) A confession obtained by methods prohibited by subsection (1) is not ádrríissiblé ⅛ evidence of guilt in any court. The trial judge shall determine the competency and admissibility of any-alleged confession under the provisions of this section from evidence heard by him, independent of and without the hearing of the jury trying the case.”

Shortly after midnight on January .21, . 1961, three men, one armed with a pistol and another with a shotgun, forcibly entered the kitchen at the home of Alfred Nachand on Westport Road in Jefferson County. Seven persons had met at the Nachand residence tó'play poker and Nach- and, having taken leave from the game, was preparing coffee. While the robbers were , in the .act of .coming into the.room Nachand was almost instantly killed by a shot from the pistol. . The intruders then lined the others against the kitchen wá.11, robbed them and m,ade their getaway in an automobile.'

Within six days five persons, including -appellant, were either arrested or were being sought asprincipals ■ or-aiders of and ' abetters to the murder-robbery ri In ad’di- ' tion, 'two-'Others’ were arrested' on 'charges -'offgiving aid’arid comfort to ’one of the ■' accused'.persons. .’ ’ • > ■

When appellant, at the trial, .moved to suppress the introduction of the confessiqn ,,i-nto evidence, a hearing out of the presence . of. the. jury was. held.;on the motion in the r trial judgejSiChambers.- Here is a summary . pf, .the. evidence-■introduced relative to the events preceding the. .giving. of the confession.

’’Appellant's'téstimopy was &at, on advice of ííis' cqunsdl,' he!' reported, to the fcity of Louisville'.police headquarters'on January ¿7, 1961, after having learned that he was being'sought by the police. The crime under investigation had been committed in the county 'buj:, according to app.ellariR he was kept,at police headquarters and questioned constantly for twelve hours, by city policemen. His attorney was not allowed to see him, although this person tried ’ to do so from two in the afternoon until eleven at night. Appellant stated’he.was'sober when , he came to police headquarters, but that two policemen gave him several drinks of whiskey so that he became drunk and confused. He claims he was promised help if he would admit “everything.”

On cross-examination, appellant testified that Commonwealth’s Attorney, Laurence E. Higgins, who took the statement concerning his guilt, never promised him anything. He did not identify any of the policemen who he said questioned him for twelve hours. He admitted he was never threatened. He did not remember making a statement, reading it, having it read to him, or signing it, but did not deny the signatures of the three-page confession were his.

The' Commonwealth’s evidence was that appellant had never been promised anything; that his confession was voluntary; that he was given no whiskey and was •not drunk while'being questioned; ’that he watched television for at least an hour during the evening; and that he read the statement he,gave and it was read to him before he signed each of the pages.

Appellant was jailed at' about' two-twenty the riext morning and appeared before the trial court at about ten the next day. Appellant stated he could recall nothing that happened thereafter until he “woke up” in the psychiatric ward at the Louisville City Hospital some days later.

Discussing the conditions under which' a confession'is'admissible this Court said in Tarrence v. Commonwealth, Ky., 265 S.W.2d 52: “Whether a confession was voluntarily iriade and, therefore, ■ admissible in evidence, is primarily a question for the trial judge to decide, KRS 422.110, and where the decision rests on an issue of fact, 'it' will' 'not be disturbed uriless it satisfactorily appears that the evidence supporting'the decision wás' insufficient.” ■ In 2 Wharton, Criminal Evidence, section 354, the rule is thus stated: “If the trial judge finally determines the voluntary character of a confession, his finding upon conflicting evidence will .not be reversed.” See also Pearsall v. Commonwealth, 92 S.W. 589, 29 Ky.Law Rep. 222; Laughlin v. Commonwealth, 37 S.W. 590, 18 Ky.Law Rep. 640.

Assuming appellant’s testimony that he was questioned at length is true, although such testimony is wholly unsupported by any other witness, this fact, standing alone, would not invalidate his confession, because it would have to be established that the confession was secured by threats, coercion or other wrongful means. On this point, it was said in McClain v. Commonwealth, 284 Ky. 359, 144 S.W.2d 816:

“ * * * It is not the extent of the questioning of the defendant which is prohibited by the statute, but the manner in which it is conducted. A defendant in custody may freely and voluntarily answer many questions and in no manner be ‘sweated’. On the other hand, a single question accompanied by a threat may violate the statute. The ‘plying with questions’ * * * means ‘the persistent and repeated propounding of inquiries to elicit a desired answer, carried to such an extent that the prisoner feels required to answer as the questioner wishes in order to escape from the pressure.’ * * * ”

In view of the facts recited, and the principles of law applicable thereto, we conclude the ruling of the trial judge as to the admissibility of appellant’s confession must be sustained. As the testimony was conflicting, it cannot be said there was not satisfactory evidence upon which the ruling was based.

Appellant argues that the Commonwealth’s refusal to allow his counsel to be with him during the interrogation at police headquarters invalidates any statement he may have made. He asserts that the privilege of having his counsel present while he was being questioned is a right secured to him under the provisions of the Fourteenth Amendment to the Constitution of the United States. However, it appears to be the settled law, although Kentucky has never passed upon the point, that an accused has no constitutional right to counsel during the investigative, non-judicial stage of a case.

The case of Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, is factually similar to the case at bar. There Cicenia was charged with murder committed during a robbery, and his attorney, Mr. Palmieri, advised him to go to police headquarters and surrender. The opinion states that “at approximately 2 p. m. the same day petitioner’s father, brother and Mr. Palmieri, the lawyer, arrived at the Newark (police) station. Mr. Palmieri immediately asked to see petitioner, but his request was refused by police. He repeated this request at intervals throughout the afternoon and well into the evening, but without success. * * * ”

The Supreme Court of the United States held that no constitutional rights of Cicenia were contravened and that he had no right to consult counsel during the police station investigation and prior to his presentment before a magistrate. The Court held the confession admissible. See also Crooker v. California, 357 U.S. 433, 78 S.Ct. 1278, 2 L.Ed.2d 1448.

The Crooker and Cicenia cases, supra, were commented on in the booklet, “The Problem of Police Interrogation”, published by the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, published in 1961, and this language taken therefrom appears to be pertinent:

“The question whether the admission of a confession taken after an arrested person, not yet formally accused, had asked to see a lawyer violated due process was raised in Crooker v. California, 357 U.S. 433 [78 S.Ct. 1278, 2 L.Ed.2d 1488] (1958) and Cicenia v. La Gay, 357 U.S. 504 [78 S.Ct. 1297, 2 L.Ed.2d 1523] (1958). In Crooker the Supreme Court answered in the negative by a 5-4 vote. The majority said, that denial of the opportunity to consult counsel was indeed one factor in determining- whether a confession was coerced. To hold otherwise would effectively preclude police questioning —fair as well as unfair — until the accused was afforded opportunity to call his lawyer. Crooker and Cicenia make the point that severe restrictions on police questioning could stem from the right to the assistance of counsel at all stages of the proceedings rather than from rules respecting the ‘involuntary’ character of a confession.”

The rule that seems to be applicable to the situation here is also stated in 2 Wharton, Criminal Evidence, section 363:

“A confession is admissible although the defendant was not represented by counsel when he made the confession, he did not know that he was entitled to be represented by counsel, he was not advised that he had the right to be represented by counsel, or he was refused an opportunity to communicate with counsel.
“The absence of counsel, however, is a circumstance to be considered in determining whether the confession was in fact voluntary or involuntary.”

From the authorities shown and under the evidence presented, we are of the opinion there is no merit in appellant’s contention that the confession is invalid because his counsel was not permitted to be with him at police headquarters while he was being questioned.

Wherefore, the judgments are affirmed.


author: DICE, Commissioner.,.

text:
    Adan GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 35326.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    . No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.,.

This is an appeal from an order revoking probation in a forgery case.

On November 10, 1961, appellant entered a plea of guilty in the 112th Judicial District Court of Pecos County to an indictment for forgery and was sentenced to five years’confinement in the penitentiary.

, Execution of sentence was ordered suspended by the court and appellant was placed on probation upon certain terms and conditions, one being that he commit no offense against the -laws of this ■ state or any other state or the United States, and another condition being that he report to the county probation officer. in person or by letter, within five days after having been charged with a violation of any law, stating the offense charged and the court in which the charge was filed.

On .July 16, 1962, a motion was. filed by the state to revoke the probation on the ground that appellant' had violated' certain terms and conditions of the probation.

In the motion it was alleged, among other things, that on November 26, 1961, appellant was convicted in the corporation court of Fort Stockton, Texas, 'of the offense of drunkenness and assessed a fine of $25, and on February 3, 1962, was convicted in the same court for the offense of drunkenness and assessed a fine of $20. It was also alleged that on June 10,- 1962, appellant did pass a forged instrument in writing in the sum of $40, and that ‘on June 11, 1962, he attempted-to pass as, true, a forged instrument in writing to-wit: a check in the sum of $20 to “Dave’s Truck .stop” and to “Al’s Famous Restwarant” It was further alleged that appellant had failed to report to his probation officer as directed.

After notice and hearing, an order was entered by the court on July 20, 1962, revoking the probation.

At- the hearing, it was shown b'y the evidence that on the dates‘of November 26, 1961, and February 5, 1962, appellant was convicted in the Corporation Court of the City of Fort Stockton of the offenses of drunkenness in a ptfblic pláce and assessed fines of $20 and $25.'-

It was shown by the. testimony of witnesses called by the state .that on the night of June 10, 1962, the appellant did pass as ■ true a forged check in the sum of $40 to an employee of Blackls - Pharmacy in the City of Fort Stockton.

Proof was also made by the introduction in evidence of appellant’s: written confession and the testimony of witnesses that on the same date appellant did attempt to pass as true another forged check in the sum of $20 to certain parties at the places alleged in the state’s motion to revoke.

It was further shown by the testimony of state’s witness Eugene Upshaw, probation officer of Pecos County, that appellant had failed to report to him concerning his being in jail for drunkenness on February 5, 1962.

No brief has been filed on behalf of appellant.

The evidence adduced is sufficient to sustain the trial court’s findings that appellant during his probation had violated the terms of probation by committing offenses against the laws of this state and failing to report to the probation officer, as provided by said probation.

In revoking the probation, no abuse of discretion is shown.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Ex parte Bony Valdez HERNANDEZ.
    No. 35550.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Robert C. Benavides, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, an inmate of the penitentiary, seeks his release by writ of habeas corpus, alleging that he has served the sentences against him. From the record, we learn the following:

On February 1, 1957, relator was convicted in the Criminal District Court of Dallas County in Cause No. C-614-H for the felony offense of burglary of a private residence at night and was sentenced to five years; the execution of such sentence was suspended and relator was placed on probation. Subsequently, on February 15, 1960, relator was convicted in Cause No. C-8481-H, again in Criminal District Court of Dallas County, of murder without malice and sentenced to five years. On the same day, the trial court entered an order revoking probation in Cause No. C-614-H, and made the same cumulative of the sentence in Cause No. C-8481-H.

It is this order of cumulation which relator attacks and furnishes this Court with a certificate from the Department of Corrections stating that he now has credit for five years.

We are not dealing with a case in which the imposition of sentence was suspended, but here we have a case in which a man was sentenced on February 1, 1957, and then after revocation was re-sentenced on February 15, 1960, in the same case.

When the term of court adjourned at which the 1957 sentence was imposed, the trial court could not thereafter add further conditions to such sentence which were not and, under the facts, could not have been a part of such sentence at the time it was imposed. Ex parte Downey, Tex.Cr.App., 350 S.W.2d 20; Ex parte Rutherford, Tex.Cr.App., 350 S.W.2d 31; Ex parte Scott, 168 Tex.Cr.R. 353, 328 S.W.2d 190; and Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114.

The writ is granted, and relator is ordered discharged.


author: BELCHER, Commissioner.

text:
    David E. AUGHTS, Appellant, v. The STATE of Texas, Appellee.
    No. 35348.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Billy C. Powell, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally and Jimmy R. James, Asst.

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

The offense of assault to murder with malice was charged .in the indictment, but the jury found appellant guilty of assault to murder without malice and assessed his punishment at three years.

Smith Harris,.the injured party, parked his automobile in front of a cafe. His stepson, Andrew Johnson, who was with him, waited in the car while Harris was in the cafe. The appellant, who was alone, drove in .front of the cafe to park his car and it struck the one occupied by Johnson. The appellant got out and said to Johnson, “Get out of the car, nigger.” When Johnson stepped out the appellant pulled a pistol from under his shirt, kicked and shoved him, pointed the pistol in his face and pulled the trigger twice, causing it to “snap” but it did not fire. At this time Harris came from the cafe to his car and asked what was wrong. Then appellant asked Harris if he was the boy’s father. When Harris said he was, the appellant said, “I am going to kill you” and “Get back and get your hands up.” After Harris stepped back and while holding up his hands, the appellant shot him in the stomach with a .38 pistol.

Neither Johnson nor Harris had any kind of weapon or made any threatening gestures, and both testified that they had never before seen the appellant. The appellant immediately left the scene in his car; and after obtaining an attorney he surrenderee! to the police three days after the shooting.

Testifying in his own behalf, the appellant stated that when he drove in front of the cafe, Johnson was backing away and almost hit his car. They argued about the parking place. Appellant denied threatening him with a gun. Then Harris came out of the cafe cursing, appeared to be drinking, and told appellant that if Johnson wanted the parking'place he would get it. When the appellant told Harris he was not giving up his parking place, Harris shoved him back into his car which had the door open. Then Harris stepped back, ran his hand inside his shirt, and appellant grabbed his .38 pistol. from the seat of his car and shot him because he thought Harris was going to shoot him. The testimony of a defense witness substantially corroborated that of the appellant.

The court charged an assault to murder with and without malice, aggravated assault, and the , law of self defense against real and apparent danger. There were no objections to the charge.

It is insisted that the court erred’ in charging an incorrect penalty as applicable to assault to murder' with malice.

The indictment charged and the uncon-.tradicted evidence shows that, the difficulty occurred August 13, 1960. The trial was ■ had June 18, 1962. Art. 1160, P.C., Vernon’s Ann.P.C., art. 1160, which prescribes the penalty for assault with intent to murder with malice was amended in 1961. Before amendment the penalty applicable to this case was from two to fifteen years arid ’after amendment, from two to twenty-five years. ■

The original charge of the court authorized the punishment to be assessed according to the statute after amendment. Before the jury returned its verdict the court amended its charge to conform to Art. 1160, 'supra, before it was amended. The jury’s verdict specifically finds appellant guilty of assault with intent to murder without malice.

Art. 13, P.C., provides that an accused shall be tried under the law in 'forcé when the offense was committed unless the punishment is ameliorated. The amendment here increased the penalty.

The amendment of the charge of' the court as shown,' the finding that he: committed the offense'without malice, and in the absence of any showing that the :pen- ' alty provision in the original charge préju-diced his rights with the jury, no error is presented.

Appellant contends that the trial court erred in admitting in evidence a copy of the testimony of Andrew Johnson given on the examining trial over his objection that Johnson was present and able to testify about such facts.

The appellant cross-examined Johnson by reading from his testimony given at the examining trial. This authorized that portion of the statement offered by the state which was on the same subject. Art. 728, C.C.P. Further, an examination of Johnson’s testimony on the examining trial and the main trial shows no material differences. The contention presents no error.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge. McDONALD, Judge

text:
    Jesse CATCHING, Appellant, v. The STATE of Texas, Appellee.
    No. 34968.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1962.
    Rehearing Denied Feb. 27, 1963.

      Emmett F. Magee, Galveston, and Charles W. Gill, Houston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Galveston, Thomas L. Douvry, Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is abortion; the punishment, 3 years.

The indictment alleged that appellant and Thomas Albert Forehand, acting together, did unlawfully, wilfully and designedly, with her consent “thrust and force into the womb and private parts” of prosecutrix, a pregnant woman, “an instrument calculated to produce abortion, and did then and there destroy the: life of the fetus or -embryo in the womb of the said (prosecutrix).’’

Appellant’s grounds for reversal will be considered in the order in which they are presented in his brief.

He first complains of the overruling of his motion to quash the indictment based upon the omission of a description of the instrument alleged to have been “thrust and forced” into the womb of the prosecutrix.

Our attention is directed to the case of Mayberry v. State, 160 Tex.Cr.R. 432, 271 S.W.2d 635, wherein the same contention was raised and we said: “It would have been the better practice, here, for the state to describe the instrument used, if known, and if not known, to so allege.”

The indictment against Mayberry further alleged in the conjunctive that the abortion was performed by administering a drug and medicine. We followed the cases of Reum v. State, 49 Tex.Cr.R. 125, 90 S.W. 1109; Watson v. State, 9 Tex.App. 237; and Cave v. State, 33 Tex.Cr.R. 335, 26 S.W. 503, and held that a further description of the drugs or medicine was not necessary.

The indictment herein was drawn under that portion of the abortion statute (Art. 1191 P.C.) which provides that any person who knowingly shall use toward a pregnant woman “any violence or means whatever externally or internally applied, and thereby procure an abortion” shall be punished. The indictment herein is sufficient to charge such offense without further description of the instrument used.

Our conclusion is consistent with, if not required by, our holding that an indictment for procuring an abortion by administering any drug or medicine need not further describe such medicine or drug.

Our statement in Mayberry v. State, that it would be the better practice to describe the instrument used, would be equally applicable, we think, to the drug or medicine used. Mayberry v. State, supra, is not therefore authority for appellant’s position.

Rupe v. State, 41 Tex. 33, cited by appellant, was not an abortion case but a prosecution under what is now Art. 1195, P.C., for destroying the life of an unborn child which would otherwise have been born .alive. The indictment held insufficient merely alleged the words of that statute.

Appellant’s second claim of reversible error relates to the refusal of the trial court to allow the appellant to prove before the jury, or for his bill of exception, the name of the man with whom the prosecutrix had had sexual intercourse and the number of times. We see no error but commend the trial court in his ruling upon these irrelevant facts.

We see no error in the ruling of the court concerning the questions addressed to prosecutrix as to why she appeared as a witness in the case. There was no intimation that the witness had testified falsely or that she had any bias or prejudice against accused. In the absence of the jury in perfecting his bill, appellant was unable to establish that prosecutrix was testifying because of threats to prosecute her if she did not do so. Having failed to establish the truth of the assertions contained in such questions, the holding in Ogburn v. State, 101 Tex.Cr.R. 180, 274 S.W. 638, relied upon by appellant, can have no application here.

Appellant’s next complaint relates to the overruling of his motion to discharge the jury panel because of the court’s reference to “the other case against this man.”

Appellant relies upon his motion incorporated at the beginning of the Statement of Facts, with the trial court’s ruling and his exception thereto.

Assuming that the question is before us under the provisions of Art. 760e, Vernon’s Ann.C.C.P., and that no evidence was adduced in support of the motion to quash the jury panel, appellant is bound by the court’s statement in overruling the motion, that he • did not believe that any juror on the panel heard the remark, and felt certain that none of them would have known what was meant by the remark if they did hear it. No error in the overruling of appellant’s motion to quash the jury panel is shown.

Appellant’s remaining claim of error relates to the admission of certain evidence and requires a statement of the facts proved.

Prosecutrix, a thirty-year old widow and the mother of three children, testified that she became pregnant, and, after realizing her condition, spoke to one Thomas Forehand and accompanied him and a woman named Martin from La Marque to a place in Galveston. Forehand parked his automobile and, after receiving $50 from her, went upstairs; in a short while he returned and accompanied her to appellant’s apartment. Appellant took her into a room where he inserted a rubber tube into her vagina and told her to allow it to remain there for three days or until she had to go to a doctor. When she came back downstairs she rejoined Forehand and the Martin woman; that the latter left, was gore for a while and returned, after which they drove back to La Marque. The first effort to bring about an abortion was not successful, and she again went to Galveston with Forehand, where appellant re-inserted the rubber tube. Several days later, while staying at Forehand’s apartment, she expelled the fetus into the commode.

Appellant made a written statement which was offered in evidence as his voluntary confession. Over objection, the following portion of such statement or confession was admitted.

“Sometime during the end of January, 1961, Tom called me and said he wanted to talk to me. I told him to come and see me. Several days later he came into my store at 1327 Ave. B in Galveston, Texas. I was in the store along with the boy who works for me. Tommie told me he had a girl that had gotten pregnant and was not married. He wanted me to perform an abortion on her. He ask_ me how much I would charge and I told him $45.00. He then left. About a day later Tommie called me and told me the girl he had talked to me about had changed her mind, but he said he had another girl who he wanted me to perform an abortion on. I told him to bring the girl over to see me and we would talk it out together. About the first part of February, 1961, Tommie came to my house. It was at night. He came upstairs by himself. He told me he had both girls downstairs and he would give me $50.00 for the abortion on one, and the other girl would give me $50.00 for the abortion on her. We talked it over, and I agreed. He gave me $50. Tommie went downstairs, and then a tall, black-haired girl came up, and I took her into a bedroom, which is the first room to the right at the top of the stairs. I had her lay down in the bed and remove her panties. I then inserted a catheter into her womb. She got up, put on her panties and then left.

“ — Tommie came back upstairs with a little blonde woman. He gave me $50.00 and then left. I took this woman into the bedroom and she removed her panties. I then had her lay down in the bed, and I inserted a catheter into her womb. It took me about twenty minutes for me to insert it. She then left. About four days later the black-haired woman came back to see me. She was with Tommie. They told me that the woman had to remove the catheter and wanted me to put it back. I put the catheter back into her womb for her. She and Tommie then left. * * *

“On the night of February 10, 1961, Sheriff Kline and some officers from the La Marque Police came to my store. Kline told me they knew about the abortions and also had a search warrant for my home. Kline told me they were looking for narcotics and the instruments I used in the abortions. I gave them a tool box containing several catheters, a knitting needle and other items that I used in the performance of abortions. They were in a dresser drawer in the- bedroom I used in the abortions.”

Appellant’s complaint is that the confession included offenses other than that for which appellant was on trial, and that these matters should have been stricken,, if the confession was introduced. Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276, is cited and relied upon.

One of the exceptions to the rule that requires the exclusion of evidence showing, the commission of other crimes is when the evidence is admissible as res gestae. The-exception applies here. The circumstances and details of the arrangements made with appellant for the abortion showed that appellant agreed with Forehand to abort two girls who were taken to him by Forehand, the same day, Forehand paying appellant for his services.

The girl named in the indictment cannot be distinguished from the other girl aborted,, from a reading of the confession.

The evidence, including appellant’s confession to the abortion of the two girls, was-admissible under Housman v. State, 155 Tex.Cr.R. 49, 230 S.W.2d 541, wherein we said:

“The State was entitled to prove the circumstances and details of her contacts with appellant on the occasions of being at appellant’s home when the arrangements were made for the abortion, the visit when the act was performed for the purpose of aborting the witness, the money paid, and the-return in accordance with instructions-of appellant to confer regarding the-passing of the fetus.
“If such transactions disclosed, by inference or otherwise, that appellant was engaged in the commission of other acts or abortion, it was nevertheless admissible as a part of the res gestae.”
“If the State’s proof of the home of appellant and the furniture, instruments, and equipment therein and the facts showing the use of such home and.'contents on the witness for the purpose of aborting her for pay show that appellant was a professional abortionist or that her home contained a room equipped as an abortion operating room, such result does not change the rule as to the admissibility of such evidence as a part of the res gestae.
“Nor did the evidence become inadmissible because appellant did not testify or otherwise controvert the testimony as to her acts and intent.”

The confession was also admissible under Richardson v. State, 101 Tex.Cr.R. 467, 276 S.W. 270. In that case we said:

“The incriminating part of the confession introduced was to the effect that appellant wrote some checks and signed J. C. Jones’ name to them and carried them to the People’s Guaranty State Bank and got the money; that one of the checks was for $7 and another for $6. The appellant objected to the introduction of said confession upon the ground that the same contained evidence of other transactions and offenses having no connection with the offense upon which defendant was upon trial in this cause and the evidence of other transactions or other offenses was wholly immaterial and irrelevant and was prejudicial to the defendant in this cause. It will be observed that the statement above set' out is so worded that it would have been impracticable to have segregated the other offenses from the one for which the appellant was being tried. Under these conditions, we do not think the court erred in admitting the confession, although it carried with it suggestions of another offense. The mere fact that appellant used language in confessing to the crime for which he was on trial which would necessarily imply that he was guilty of another similar offense would not exclude the confession.”

The prosecutrix testified that .Forehand was present when she expelled the fetus in the commode, and that her doctor, Dr. John P. Reeves, came later.

Dr. Reeves testified that as he entered the house he saw a fetus of about four and a half months gestation floating in the commode, with part of the placenta and cord.

The prosecutrix testified that after Dr. Reeves left Forehand left and she did not see the fetus in the apartment thereafter. She also testified: “It was the understanding that he (Forehand) would take the fetus.”

Over appellant’s objection, the state was permitted to show that the following day the officers went to the garbage dump in Texas City, and through instructions given them by Forehand, found the fetus of a male child in a paper sack wrapped in some plastic amongst the garbage there at the dump.

It is appellant’s contention that the evidence complained of constituted acts or admissions done or made in his absence after the conspiracy, if any, had been terminated. 12 Tex.Jur.2d p. 332, Par. 9, is cited where the rule is stated.

The rule that renders inadmissible acts or admissions of a co-conspirator done or made in the absence of the defendant after the conspiracy has been terminated, by the commission of the crime, has no application where it can be shown that the co-conspirator was found in possession of the fruits of the crime or the weapon or instrument with which the crime was committed. Henderson v. State, 50 Tex.Cr.R. 266, 96 S.W. 37; Sims v. State, 95 Tex.Cr.R. 164, 253 S.W. 278.

The fact that Forehand assisted the officers in finding the fetus did not render evidence of such discovery inadmissible. The finding of the fetus did not tend to criminate the appellant, but tended strongly to show that the fetus, the life of which had been destroyed by appellant pursuant to his , agreement with Forehand and the prosecutrix, had been taken by Forehand from the commode in the apartment to the place where it was found. Batson v. State, 36 Tex.Cr.R. 606, 38 S.W. 48.

Other evidence which hears upon appellant’s guilt is the statement of appellant to the sheriff when his apartment was being searched: “That’s what you get for helping a friend. I didn’t do it for the money”, and the evidence that he produced a metal tool box in which there were three rubber catheters, two wrapped on one end with gauze, “a large thin metal rod with a ball on one end, a box of gauze, a pair of small round-nosed scissors, a bottle of vase-line, two or three wash clothes and several towels * * * ” and said “This is what you are looking for.”

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

McDONALD, Judge

(dissenting).

I dissent in this case because I think that the trial court erred in failing to sustain the appellant’s motion to quash the indictment. The indictment contained only one count, and the only attempt to allege the means used in the alleged offense was to recite "“an instrument calculated to produce abortion.” The evidence reflects that a rubber tube with a piece of gauze at the end was described and identified by the complaining witness as being used with other material. The state did not allege that the means used were unknown to the grand jury. It is stated in 1 Tex.Jur.2d 171, Sec. 15, that:

“ * * * where the abortion is charged to have been effected by the use of a certain instrument calculated to produce an abortion, it is the better practice for the state to describe the instrument, if known, and if not known, to so allege. In any event if the description of the instrument alleged to have been used is defective, the defect may be cured by an averment in a subsequent count that the name and character of the instrument is unknown to the grand jurors.”

In Mayberry v. State, 271 S.W.2d 635, this court held as follows:

“There is no question but that the accused is entitled to notice in the indictment of the accusation against him, in order that he may prepare his defense thereto. It would have been the better practice, here, for the state to describe the instrument used, if known, and if not known, to so allege.”

In Mayberry, a general verdict was returned and there was no showing that appellant’s guilt depended upon the allegation in the indictment that the abortion was caused by a “certain instrument,” as the case was also submitted to the jury on an allegation that the abortion was caused by the use of drugs. The evidence amply supported a finding that the abortion occurred as much by reason of the use of a drug and medicine as that it was caused by the use of the instrument, and the proof showed that the instrument was used to administer the drug.

The facts in the case at bar are not on a parallel with the facts in the Mayberry case. Here, it is conclusively shown that an abortion had been committed by the use of an instrument. No drugs were used nor involved. The rule, in my judgment, is different in this state in abortion cases involving the use of medicines and drugs than in those abortion cases involving the use of instruments.

The maj ority attempt to distinguish May-berry, supra, with the statement: “ * * * a further description of the drugs or medicine was not necessary.” This statement,, certainly, is not indicative, nor does it even imply, that a further description of the IÑSTRUMENT was not necessary.

I have carefully examined all the holdings of this court and I find that an indictment for abortion, or for an attempt to procure an abortion, need not give the name- of the drug or medicine used if it contains an allegation that such drug or medicine was calculated to procure an abortion. This statement is supported by the holdings in Hunter v. State, 81 Tex.Cr.R. 471, 196 S.W. 820, Cave v. State, 33 Tex.Cr.R. 335, 26 S.W. 503, Watson v. State, 9 Tex.App. 237, Reum v. State, 49 Tex.Cr.R. 125, 90 S.W. 1109, and Mayberry v. State, supra.

I also feel that the portions of appellant’s confession which refer to his performance of abortions and the bed he used in the abortions could be considered by the jury as admissions that he had been guilty of engaging in the business of producing abortions, and such statements were reasonably calculated to prejudice his rights with the jury. It is a general rule that the state may not introduce, in developing its case in chief, evidence which has no tendency to prove some material fact in connection with the offense charged but merely tends to show that the accused is a criminal, generally. Roark v. State, 101 Tex.Cr.R. 401, 276 S.W. 242; Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276; and Garcia v. State, 165 Tex.Cr.R. 134, 305 S.W.2d 605.

For the reasons stated, I dissent to the affirmance of this case.


author: DICE, Commissioner.

text:
    James Roy WINK, Appellant, v. The STATE of Texas, Appellee.
    No. 35243.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    Rehearing Denied Feb. 27, 1963.
    Reid & Reid by J. W. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is bigamy, as denounced by Art. 490a, Vernon's Ann.P.C., where the : bigamous marriage occurs without the state and the parties later cohabit within this state; the punishment, two years.

The sufficiency of the evidence to support the conviction is challenged.

The state offered proof that the appellant and Mary Ann Williams were duly and legally married on September 28, 1961, in Taylor County, Texas, and that they thereafter lived together as husband and wife for four or five months, after which they separated.

To establish the subsequent bigamous marriage, the state introduced in evidence appellant’s extrajudicial confession, dated June 26, 1962, in which he admitted his first marriage, to Mary Ann Williams, and stated that on June 16, 1962, he went to Via Acuña, Mexico, with Mary Ann Rodriquez, where they were married and then returned to Abilene, Texas, where they had been living with her parents, as man and wife.

The only evidence offered by the state, other than appellant’s extrajudicial confession and admissions, to establish his bigamous marriage in Mexico to Mary Ann Rodriquez and their later cohabiting in this state was testimony showing appellant’s presence at the Rodriquez home in Abilene on June 26, 1962, at which time Mary Ann Rodriquez exhibited to an officer a purported marriage license which she stated they “had obtained in Mexico.”

Such testimony clearly fails to show cohabitation of the parties in this state and is insufficient to corroborate appellant’s extrajudicial confession of their cohabitation.

In prosecutions for bigamy, it is the rule that a first marriage cannot be established by the sole confession or admissions of the defendant, but a confession together with evidence of cohabitation and other circumstances is sufficient to sustain a conviction. 8 Tex.Jur.2d 687, Sec. 5; Dumas v. State, 14 Tex.App. 464; Johnson v. State, 68 Tex.Cr.R. 104, 150 S.W. 936. Such rule would likewise be applicable to proof of the subsequent bigamous marriage.

The evidence being insufficient to support the conviction, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    Elbert CROWSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35331.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.

      Levey & Goldstein, Abe San Miguel, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $500.00.

We learn from the testimony of the State’s witnesses as well as that of appellant that he had drunk vodka and beer on the night in question, following which he ran into the rear end of Benito Montoya’s automobile containing his family. It was appellant’s version of the incident that he thought Montoya was one of the persons who had driven by him at too high a rate of speed and in a dangerous manner and that he “ran into the back of his car to try to stop him and pull him over,” and that after they came to a halt he realized his mistake and apologized.

The issue of appellant’s intoxication was controverted. He testified that he had drunk three ounces of vodka before dinner and two and a half bottles of beer shortly before the collision but that he was not intoxicated.

Highway Patrolman Lafitte and Sergeant Wallasch testified that at the scene appellant confessed to them that he had drunk a half pint of vodka and that in their opinion, based upon his - speech, his manner of walking and general demeanor, he was intoxicated.

The jury resolved the conflict in the evidence against appellant; we find it sufficient to support the conviction and shall discuss the contentions raised by brief and in argument.

Appellant first contends that the court refused to permit him to prove his reputation for sobriety. We must first determine if the question is properly before us. Appellant filed a bill of exception which recited that he offered the testimony of witnesses on the issue, that the State objected, and the court sustained such objection. The court refused to approve such bill and recited his reasons for failure to approve the same. Appellant refused to accept the court’s reasons and filed a bystanders’ bill. The bystanders’ bill, as filed, was supported by the affidavits of himself and his two attorneys, who were not disinterested parties so as to authorize our consideration of the bystanders’ bills. Avant v. State, 161 Tex.Cr.R. 577, 279 S.W.2d 863. The fact that the bill was attested, but not sworn to, by three other parties would not authorize its consideration. Ex parte Collins, Tex.Cr.App., 339 S.W.2d 67. In view of this state of the record, there is no bill of exception on the question which we may consider. Willis v. State, Tex.Cr.App., 336 S.W.2d 425.

Appellant next contends that the court erred in refusing to strike the testimony concerning the blood alcohol test. During appellant’s cross-examination of Sergeant Wallasch, he asked him “what was the conversation” had between the witness, appellant and patrolman Lafitte. After the witness had related a portion of the conversation, he was asked, “All right. Anything else?” and the witness stated that he (Lafitte) “asked him did he want to take a blood alcohol test and he refused.” No objection was made to the answer and no motion made at that time to withdraw the same from the jury’s consideration. - According to the court’s qualification of the bill, the motion to strike was not made until after both sides had rested. Such a motion came too late to preserve error. Renfro v. State, 156 Tex.Cr.R. 400, 242 S.W.2d 772, and cases there cited. The record being in this condition, the court did not err in overruling appellant’s objection to cross-examination of appellant concerning the same matter.

Appellant asserts, without citation of authority, that the court erred in refusing to permit him to question prospective jurors on voir dire whether they would give more weight to the testimony of police officers than to the testimony of laymen. In the absence of a showing of injury, no error is reflected by the ruling of the court. Livingston v. State, Tex.Cr.App., 214 S.W.2d 119, and Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

Appellant’s last contention relates to the refusal of the court, after both sides had rested, to permit him to call a doctor to testify. The bill does not recite, nor does the record reflect, that the witness-had been summoned or was in attendance at court. Walker v. State, 91 Tex.Cr.R. 507, 240 S.W. 538. By declining to produce the testimony of such witness at the hearing on his motion for new trial, appellant has failed to make a showing to the trial court and to this Court that he was deprived of evidence which would have been helpful to his defense. Heidingsfelder v. State, 128 Tex.Cr.R. 351, 81 S.W.2d 510, and cases there cited. Nowhere in the record do we find any statement of the witness himself as to what he would have testified to had he been present and. testified. Hawkins v. State, 102 Tex.Cr.R. 468, 277 S.W. 1067. From the record before us, we are unable to reach the conclusion that the trial court was in error in refusing to reopen the case.

Finding no reversible error, the judgment of the trial court is affirmed.


author: McDonald, judge.

text:
    Tommy SKINNER, Appellant, v. The STATE of Texas, Appellee.
    No. 35133.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 27, 1963.

      W. Scott Garrison, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape; the punishment, fifteen years in the penitentiary.

The appellant took the prosecutrix, a girl twelve years of age, out on several occasions to teach her to drive. She testified that on the third outing, on January 1, 1962, he took her near Lake Worth, stopped, produced a pistol, and forced her to go into a pasture, where he then had intercourse with her against her will. The girl testified to actual penetration, though neither the doctor who examined her nor her mother could positively verify this. The doctor did testify that the hymen was not intact but that this did not necessarily indicate penetration, though it was possible that she had had intercourse within two or three hours of the examination.

Examination by the director of the police department crime laboratory of the undergarments worn by the prosecutrix revealed the presence of deposits of human semen and blood.

The appellant took the stand and denied all of this, though he admitted relations with the girl’s mother (which she denied). He also acknowledged the fact that on several occasions he had given the prosecu-trix driving lessons. Much of the testimony is in conflict, but there is sufficient evidence to support the jury’s findings.

The transcript contains four formal bills of exception. The court refused to approve these bills of exception, and the clerk so notified counsel for the appellant. No further action was taken by the appellant’s counsel, and no bystanders’ bills appear in the record.

Under the .record, appellant’s bills of exception as filed and presented to the court cannot be considered. Art. 760d, Vernon’s Ann.C.C.P.; Wortham v. State, Tex.Civ.App., 333 S.W.2d 158; Lair v. State, Tex.Civ.App., 333 S.W.2d 389; Brown v. State, Tex.Civ.App., 353 S.W.2d 425; and Campos v. State, Tex.Civ.App., 356 S.W.2d 317.

The matters complained of in the last three bills are also raised by informal bills of exception. All relate to the trial court’s action in sustaining the state’s objection to questions propounded to the mother and the next-door neighbor of the pros-ecutrix. In none of the instances complained of did appellant show what the answers to the questions would have been. The bills are deficient and present nothing for review. Mays v. State, 165 Tex.Cr.App. 123, 304 S.W.2d 118; and Sullivan v. State, Tex.Civ.App., 354 S.W.2d 168.

The judgment is affirmed.