author: BROADDUS, Special Commissioner.

text:
    Frank Joseph HUGELMAN, III, Respondent, v. BELTONE KANSAS CITY HEARING SERVICE COMPANY, Inc., and Globe Indemnity Company, Appellants.
    No. 24092.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.
    Motion for Rehearing or Transfer to Supreme Court Denied April 5, 1965.
    Application to Transfer Denied May 10, 1965.

      Harold J. Maddox, Alder & Morrison, Kansas City, for appellants.
    James S. Formby, William G. Flora, Kansas City, for respondent.
   BROADDUS, Special Commissioner.

This is an appeal from the judgment of the circuit court affirming an award of the Industrial Commission in the amount of $12,000 in a proceeding under the Workmen’s Compensation Law. Claimant-respondent is Frank Joseph Hugelman, III.

It was admitted that appellant Kansas City Hearing Service, Inc., d/b/a Beltone Hearing Service was operating under and subject to the provisions of the Workmen’s Compensation Law and that its liability under said law was fully insured by Globe Indemnity Company, and that Frank Joseph Hugelman was involved in an automobile accident on October 30, 1957, at about 10:30 p. m. near Warrensburg, Missouri, and that he was killed instantly.

Leonard G. Gidley was the President-Chairman of the Board of Directors and Manager of the Kansas City Hearing Service, Inc., d/b/a Beltone Kansas City Hearing Service. This was a closely held Missouri corporation and for all practical purposes was owned and managed by Gid-ley, the principal stockholder.

In July, 1957, Hugelman answered an advertisement placed in The Sedalia Democrat by the employer. This led to a meeting between Gidley and Hugelman and an agreement was entered into by them, wherein Gidley was acting on behalf of the employer. The agreement was oral and by its terms Hugelman was to sell and service Beltone Hearing aid devices in what Gidley and the employer called their Sedal-ia territory. This was a carefully defined territory consisting of several counties in Missouri in which the City of Sedalia was centrally located.

Hugelman worked out of his home in Sedalia. The employer furnished Hugel-man with a sample case containing one each of the then current models of hearing aids and an audiometer. Hugelman was required to sign a form agreeing upon demand to return the aforesaid items to Bel-tone or in lieu thereof, their value in money. The primary purpose of the hearing aid devices furnished the employee was for demonstration purposes in selling hearing aids. The audiometer was not a Beltone product and was to be used by the employee in testing the degree and kind of hearing aid of potential purchasers of Beltone hearing aid services in the territory assigned to him. The employer also furnished the employee with materials for making ear impressions for purchasers, so that ear models, used in the hearing aid devices could be custom made to fit the individual physical characteristics of the purchaser. The employee was not required to sign for or pay for the ear impression materials. They would be used up in selling hearing aids and would be replaced as needed by the employer, without charge. Ear impression materials are necessary in the proper fitting of the ear moulds. The sale and fitting of Beltone hearing aids required careful and skilled measurements of hearing deficiencies and careful measurements of the physical characteristics of the customer. The employer also furnished the employee with purchase agreement forms.

Mr. Hugelman had not had any prior experience in the sale and fitting of hearing aid devices. He received this training through the employer’s sales manager, Mr. Harry Brenner.

The employer and its sales manager planned and advertised a hearing aid clinic to he held in Sedalia on November 1st and 2nd, 1957. In the advertisement reference was made to Beltone of Sedalia, by the employer. Mr. Hugelman’s picture was published along with that of Mr. Brenner, who was advertised to the public as a “Beltone factory trained hearing aid specialist” and Mr. Hugelman was advertised to the public to he “Beltone representative, located in Sedalia, to provide the best in hearing help and service to the many Bel-tone customers.”

Under the terms of employment Hugel-man was paid a straight commission on his sales and was given a drawing account against commissions in the amount of $150 on the 15th day of each month and $150 on the 30th daj' of each month. The employer admitted that the working arrangement between the employer and employee could be terminated by either party at any time, with or without cause. The employer also admitted that it could refuse to accept orders written by Hugelman and could demand the return of his sample case and the hearing aid devices and materials furnished him for demonstration purposes.

In the great majority of the sales made by Mr. Hugelman measurements as to hearing deficiency and physical characteristics were made and the ear impressions were either brought or mailed to Kansas City and the order filled from the Kansas City office and mailed to Hugelman for delivery. Hugelman was requested by the employer to do minor service on hearing aids within his territory whether he had sold the hearing aid or not.

On October 30, 1957, Mr. Hugelman left his home in Sedalia about 8:00 a. m. He took with him his sample case, demonstration samples of Beltone hearing aids and equipment. He had previously talked with a Mr. Akins, a garage owner, in Kansas City, about purchasing an automobile for him. When Hugelman left his home he told his wife he intended to go to Orrick, Missouri, to make an ear impression and then go to the Kansas City office and leave the ear impression; that while he was in Kansas City he would purchase an automobile, and that he would be late in returning to their home in Sedalia that evening. Hugelman made a sale that morning in Orrick to a Mrs. Bessie Wilson. He arrived at Mr. Akins’ place of business at about 1:00 or 1:30 p. m. Mr. Akins told him that he could not find a used car that he would recommend and advised him to buy a new car. They called the Rudy Fick Ford Company, and ordered a new Ford; asked that it be serviced and they would pick it up later. Hugelman asked Akins if he would take him to the office of the Kansas City Hearing Service, as he had to go there. Akins observed him take some materials from his old car. Akins drove him to the office of the Kansas City Hearing Service. When Hugelman went into the office he was carrying a small box. When he came out of the office he did not have the box. This was a small box, similar to what the evidence showed the hearing aid impressions for the making of ear moulds were carried in. While in the office Hugelman had a discussion with a Miss Noland, who was an office employee of the Kansas City Hearing Service. She testified that she had to write something of a business nature up for him while he was in the office, but she did not recall the exact nature of the work she was doing for him.

After Hugelman had completed his business at the office of the Kansas City Hearing Service he went to the Rudy Fick Agency and got the new automobile. Akins and Hugelman then went to the Cross Roads Restaurant at the corner of Swope Parkway and U. S. Highway No. 50, where they ate their dinner. They left the Cross Roads at about 9:00 p. m. and Akins last saw Hugelman driving eastwardly on Highway No. 50 toward Sedalia in his new automobile. Hugelman was involved in an automobile collision on Highway 50 a short distance east of Warrensburg at 10:20 or 10:30 p. m.

Mr. Hugelman married Dorothy Anson, now Mrs. Dorothy Daugherty, on June 27, 1953. They lived together continuously from that date, as husband and wife, until Hugelman’s death on October 30, 1957. On December 22, 1953, the claimant-respondent, Frank Joseph Hugelman, III, was born of that marriage. Claimant lived with his father and mother at their home continuously from the time of his birth until the date of his father’s death. Claimant is still living with his mother.

Appellants first contend that the Commission did not have jurisdiction because Mrs. Daugherty, widow of the deceased, filed a claim for compensation and then wrote a letter advising the Commission that she did not wish to file a claim for compensation against Beltone. Appellants argue that because of these acts Mrs. Hugelman appropriated the entire cause of action for death benefits under the Workmen’s Compensation Law to the exclusion of the claimant herein.

No guardian had ever been appointed for the minor claimant herein prior to the hearing on this claim and he was a total dependent of the deceased under the law. V.A.M.S.1959, Sec. 287.240(4) (6). Under the authority of Sec. 287.430 V.A. M.S. and the case law of Missouri the Statute of Limitations was tolled as to claimant. Allen v. St. Louis & S. F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1050. There was no appropriation of the claim and subsequent voluntary dismissal without more does in no sense constitute an appropriation under either the general law or under the Workmen’s Compensation Law. The dismissal was without prejudice, and there was no determination of any rights or issues.

Appellants next contend that the Commission’s award was erroneous because the deceased was an independent contractor and not an employee of Beltone.

The law is well settled that our review of decisions made by the Industrial Commission on questions of fact is limited to a determination of whether its findings are supported by “ ‘competent and substantial evidence upon the whole record.’ ” We have no authority to set aside its decisions unless they are “clearly contrary to the overwhelming weight of the evidence.” Pratt v. Reed & Brown Hauling Co., 361 S.W.2d 57, Mo.App.

In arriving at its holding that deceased was an employee and not an independent contractor the Commission specifically found that there was no contract for the performance of a particular specific job in a definite time; that Hugelman did receive a monthly advance or drawing account from Beltone; that forms were supplied by the Company for Hugelman to fill out and that he did fill them out and send them back to the Company; that Hugelman was provided order blanks, sample machinery and other equipment without which his sales functions could not be performed; that the equipment was not purchased by the salesman; that the Company-controlled the prices at which his sales were made; that the Company could refuse to accept his orders or contracts of sale; that the Company restricted Hugel-man to a certain sales territory; that it advertised Hugelman as a representative of Beltone; that the Company required him to sign an agreement, creating responsibility for the equipment and to hold money received by him in trust for Beltone; that the Company required certain measurements to be taken in fitting hearing aids; that Hugelman was not allowed to open an office under his own name to sell Bel-tone products; that it was the policy of the Company to request salesmen to make service calls without compensation from Beltone; that the salesman was acting on behalf of Beltone as part of its regular business operations; that the nature of the work required the personal attention and skill of the salesman and no assistants were hired; that Hugelman was not employed for a specific period and he could be separated from Kansas City Beltone operations at any time by that Company.

Under the findings above set forth by the Commission there was little more that the employer could have done in controlling the details of the work. In determining whether a person rendering a service for another is an employee or an independent contractor, the ultimate and decisive test is the right of control. Pratt v. Reed & Brown Hauling Co., supra; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909.

We agree with the view taken by the Circuit Court after reviewing this transcript that: “Throughout the entire sales transaction from the beginning to the end there was this thread of control running from Beltone to Mr. Hugelman. To be realistic, Mr. Hugelman was nothing more than an ordinary salesman of a particular product of a particular company.”

The case which, on its facts, is very similar to the instant case is that of Maltz v. Jackoway-Katz Cap Co., supra. Following the Supreme Court’s holding in that ease compels us to rule the contention against appellants. The case of Hackler v. Swisher Mower & Machine Co., 284 S.W.2d 55, Mo.App., relied upon by appellants, is clearly distinguishable from the instant case on its facts.

As to appellants’ third point that the Respondent failed to prove that the deceased was injured in an automobile accident and that said injuries caused his death, the Commission found that Mr. Hugelman was so injured and died as a result thereof. The findings are supported by substantial evidence and the point is without merit.

Appellants next contend that the death did not arise out of and in the course of the employment. The evidence shows that Mr. Hugelman left home on October 30, 1957, with his equipment to make an ear impression of a prospective customer who lived at Orrick. He went from there to Kansas City to see about purchasing a new or used car and stopped at the Beltone office and left a little box which it can reasonably be assumed contained the ear impression of the Orrick customer. He did purchase a new car while in Kansas City and he and the car salesman stopped at the Cross Roads Restaurant and ate. Subsequently he left the restaurant driving eastwardly on U. S. Highway 50 towards Sedaba, the home he had left on the morning of the same day. En route at a point on U. S. Highway 50, just east of Warrens-burg, he met his death in an automobile accident.

It was necessary for Mr. Hugelman to travel in an automobile to properly discharge his duties as a hearing aid salesman. A good serviceable automobile was essential by reason of the very nature of the business and was for the mutual benefit of Beltone and the deceased. The evidence shows that he was in need of another car. He was returning home by an established route. This was true from either having contacted the customer, or from having contacted the office of his employer, or both. The accident, with the resulting injuries and death, occurred within the period of his employment and was at a place he could have reasonably been expected to be while fulfilling the duties of his employment. In our opinion, the Commission’s finding is fully supported by the evidence, and is in accord with the rulings by our Supreme Court in the cases of Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 94 A.L.R. 751, and Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880.

Appellants final contention is that the dependent failed to prove and establish the amount of death benefits to which he claims he is entitled. The Commission found the claimant to be a minor, totally dependent upon the deceased. This finding is dearly supported by the evidence. It made a separate finding entitling the claimant to compensation for 320 weeks at the rate of $37.50 per week, or a total of $12,= 000. It is clear that these findings relative to the amount of the award are supported by sufficient competent evidence and that the Commission used the correct legal £or= mula in its computation. See Sec. 287.240 (2) and (4) and Sec. 287.250(4) V.A.M.S.

The judgment should be affirmed. The Special Commissioner so recommends.

The foregoing opinion of BROADDUS, Special Commissioner, is adopted as the opinion of the Court and the judgment is hereby affirmed.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    William LEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Rehearing Denied May 7, 1965.
    Val A. House, Jr., Scottsville, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyon, Asst. Atty. Gen., Frankfort, David Martin, Commonwealth’s Atty., Franklin, for appellee.
   DAVIS, Commissioner.

The appellant, William Lee, was convicted on a count of dwelling house breaking (KRS 433.180) and two counts of storehouse breaking (KRS 433.190) pursuant to a jury trial at which all three counts were tried. The indictment had charged Lee (along with Howard Davis) of all three of the counts. An effort to appeal from the judgment of conviction was made, but in the brief for appellant that effort is specifically abandoned. It appears that the appeal was not timely, and that may well be the reason for its being abandoned, although we are not so informed by appellant. The present appeal is from an order of the convicting court overruling appellant’s motion to vacate the judgment pursuant to RCr 11.42. Appellant was afforded a hearing on his 11.42 motion, at which he was represented by his present counsel, appointed by the court, and not the same counsel he had at the trial.

The appellant presents assignments of error which he has catalogued in five headings, although some of them embrace more than one claimed error: (1) Lee was represented by counsel hostile to him, and it was error for the Commonwealth’s Attorney to converse with the jury; (2) the evidence did not support the conviction, and it was error not to call as the first witness the officer who obtained the warrant of arrest; (3) Lee was denied a fair trial because he was tried jointly with Davis, and by not having other counsel than that appointed for Davis; (4) Lee had no counsel prior to arraignment; (S) evidence was admitted which was obtained by illegal search.

Each of the errors upon which the appellant relies is an alleged trial error susceptible to appellate review. None of them rises to the dignity which could characterize it as a denial of due process. Under those circumstances the matters presented are not appropriate bases for relief under RCr 11.42. Warner v. Commonwealth, Ky., 385 S.W.2d 62. It is observed that the trial court found, on ample evidence, that there was no validity to appellant’s claim that his court-appointed counsel exhibited hostility toward him; neither was there even a scintilla of evidence reflecting that the Commonwealth’s Attorney had talked with any member of the trial jury in an improper manner. Our decision in King v. Commonwealth, Ky., 387 S.W.2d 582 (decided February 26, 1965) is completely dispositive of the present case. See also Collier v. Com., Ky., 387 S.W.2d 858, decided March 5, 1965.

The judgment is affirmed.


author: MILLIKENj Chief Justice.

text:
    UNITED PACIFIC INSURANCE COMPANY, Appellant, v. Audry COLLINS and Mabel Collins, Appellees.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.
    As Modified April 30, 1965.
    J. K. Wells, Paintsville, for appellant.
    Cordell Martin, Hindman, Rudy Yessin, Smith, Reed, Yessin & Davis, Joseph J. Leary, Frankfort, for appellees.
   MILLIKENj Chief Justice.

This appeal is from a judgment awarding appellees, Audry and Mabel Collins, $14,301. The facts show that the appellant, United Pacific Insurance Company, was surety on the performance bond of the original contractor who undertook to construct two school buildings in Knott County. Upon default of this contractor, the appellant Company entered into a contract dated August 15, 1959, with appellees for the completion of the buildings.

The contract between the Company and the appellees provided that the appellees should receive reimbursement for gross construction cost not to exceed $61,964.91 (including a service fee of $4,500), plus varying amounts for correcting certain defective work of the previous contractor and additional amounts for excavation and filling. In June, 1960, the work not having been completed, appellees were placed in default and a third party contractor selected by the appellant to complete the work.

Appellees brought this action to recover money allegedly owed them for labor and materials. By counterclaim the appellant asserted that it had paid to appellees and the third party contractor “gross costs” far in excess of the maximum amount agreed upon, and asked that whatever it might properly owe appellees under their complaint be offset by this excess and that a judgment in its favor for the difference be entered.

The claims of both parties were submitted to a jury which returned a verdict for appellees in the full amount of their itemized expenses. As ground for reversal, the Company insists that the trial court erred in not granting it a peremptory instruction, for there was no issue of fact to be determined by a jury but. merely an accounting to be made under the written contract. Ap-pellees contend that it was for the jury to determine if the parties were operating under an oral agreement made after the termination of the written contract, when the claimed, expenses were incurred. The key question presented is whether the written contract was terminated.

For appellees to recover in this action, the written contract with its limit on reimbursement for construction must necessarily be deemed terminated or at least modified as to this limit. The instruction under which the appellees recovered assumed that the written contract had terminated six months after the date of its signing or execution.

However, the appellees’ complaint sets out the fact that these parties “continued to work under the terms and the provisions of the aforesaid contracts referred to in Exhibits A and B, until 17th day of June, 1960.” The recovery was sought on the basis of the terms of the written contract. An allegation that this contract was terminated and that recovery was sought under a subsequent oral agreement appears nowhere in the pleadings. (The fact that the allegation of an oral agreement was a surprise to the appellant was brought to the court’s attention by motion to exclude reference to it prior to submission of the case to the jury.)

Appellees should not be allowed to recover under a theory directly opposed to the one upon which they based their complaint. When a shift in theory or legal premise is objected to by the opposing party and it appears “that admission of such evidence (supporting an oral contract, in this case) would prejudice him in maintaining his * * * defense upon the merits,” either a continuance should be granted to enable the opposing party to prepare Ms defense or evidence in support of the new theory denied admission. CR 15.02.

Furthermore, on this appeal the appellees maintain that the written contract had ended by its terms on February 15, 1960, six months after the date of its signing. The pertinent section of the contract reads as follows:

“The Contractor covenants to complete all work called for by this contract within six (6) months of the date hereof and to indemnify, and save harmless the Surety from any and all loss, liability, claims and damage resulting from any delay in completion of said work beyond said completion date.”

This clause does not provide for an automatic termination. As stated in 13 Am. Jur., 2d, Building and Construction Contracts, Sec. 47% “A mere failure to complete the work within the specified time does not ipso facto terminate the contract, but only subjects to (sic) contractor to damages for the delay.” This statement is applicable to the section of the contract quoted above. The fact that appellant permitted the appellees to try for four more months to finish the school — until mid-June, 1960 — after the February, 1960, intended completion date, certainly did not change the terms of the written contract; it merely waived the time for completion provision for four months.

In support of the judgment in their favor, appellees rely on Green River Steel Corporation v. Globe Erection Company, Ky., 294 S.W.2d 507, wherein we held that by their actions the parties to a contract may waive a provision as to who should decide what is extra work. The only evidence of modification cited by appellees in the instant case refers to the necessity of the architect’s approval of estimates before payment for corrective work subsequent to February 15, 1960. This evidence does not affect the maximum amounts of compensation agreed upon in the written contract for the basic construction. See 3A, Corbin on Contracts, Sec. 720.

Since there was no evidence of an oral modification of the relevant terms of the written contract and the contract did not terminate automatically in February, 1960, the trial court erred in overruling appellant’s motion for a peremptory instruction based on the written contract and for judgment notwithstanding the verdict.

The judgment is reversed with directions to the trial court to determine, directly or with the aid of a commissioner, the net amount, if any, due to the appellant on its counterclaim, to make all appropriate findings of fact and to enter a new judgment based thereon.


author: WALKER, Justice.

text:
      Jimmy SHELTON, Petitioner, v. STANDARD INSURANCE COMPANY, Respondent.
    No. A-10370.
    Supreme Court of Texas.
    March 31, 1965.
    Rehearing Denied May 5, 1965.

      Schulz & Hanna, Yates & Yates, Abilene, for petitioner.
    Burford, Ryburn & Ford, Spencer C. Relyea, III, Dallas, for respondent.
   WALKER, Justice.

This is a workmen’s compensation case. Jimmy Shelton, petitioner, was struck by an automobile while crossing the street from the motel where he was staying in Dallas to a cafe for the purpose of obtaining something to eat. The principal question to be decided is whether he was injured in the course of his employment within the meaning of our statute. Standard Insurance Company, respondent, moved for summary judgment in the trial court on two independent grounds, asserting that the uncontro-verted facts establish as a matter of law: (1) that petitioner was an independent contractor rather than an employee at the time he was injured; and (2) that he was not injured in the course of his employment. The trial court granted this motion without specifying the basis of its action, and the Court of Civil Appeals affirmed. 381 S.W.2d 356.

Petitioner is met at the outset by respondent’s contention that the judgment of the trial court must be affirmed because it rests upon an independent ground which cannot now be questioned. Each of the two grounds urged in support of the motion for summary judgment was properly attacked by petitioner’s brief in the Court of Civil Appeals. The intermediate court first discussed and overruled the points of error dealing with the course of employment problem. It then disposed of petitioner’s remaining point as follows:

“Appellant’s third point alleges that a fact question exists as to whether appellant was an employee or an independent contractor. We agree with appellant. However, since we have held that appellant was not within the course of his employment when he was injured, the third point becomes immaterial even if it were established that appellant was an employee. Therefore the third point will be overruled.” (Emphasis supplied)

Since petitioner did not contend in his motion for rehearing in the Court of Civil Appeals and does not say here that the intermediate court erred in overruling his third point of error, respondent insists that the case is governed by City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77. We do not agree. When the Court of Civil Appeals stated that the third point was being overruled, it obviously meant only that the point afforded no basis for reversing the judgment of the trial court which was supported by another ground already determined to be sound. The court clearly held, with petitioner that there is a fact question as to whether he was an employee or an independent contractor, and petitioner was not required to assign error to the “overruling” of his third point. We agree with the Court of Civil Appeals that the record does not establish as a matter of law that petitioner was an independent contractor rather than an employee, and this brings us to the course of employment question.

There is no dispute as to the material facts. Master Corporation of Texas was moving its business from Wichita, Kansas, to Abilene, Texas. The company transported its equipment in trucks leased from Ryder Truck Rentals of Dallas, and arranged for petitioner to drive a truck from Abilene to Wichita and return. He was paid $40.00 per trip plus expenses, and had made the round trip three time before he was injured. The total time required for each trip was about 33 hours, and it was necessary for petitioner to sleep and eat en route. Petitioner left Abilene on the fourth trip driving an International truck with flatbed trailer, which he was instructed to exchange in Dallas for a van-type truck before proceeding to Wichita. The truck developed battery trouble shortly after leaving Abilene, and petitioner finally reached Dallas about 8:30 o’clock at night. He turned the truck in at the Ryder Truck Rentals, and was informed that the truck he was to drive to Wichita would not be available until the following morning. The son of Ryder’s manager showed him where to pick up the second truck and then drove him to a motel. Petitioner checked in at the motel, took a shower, changed his clothes, and started across the street to a cafe to get something to eat. While crossing the street he was struck by an automobile and received the injuries which are the basis of his compensation claim.

Section 1 of Article 8309, Vernon’s Ann.Tex.Civ.Stafc, provides that the term “injury sustained in the course of employment” shall include, subject to certain exceptions not material here, all “injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” It is well settled that the requirements of this statute are not satisfied by proof that injury occurred while the workman was engaged in or about the furtherance of his employer’s affairs or business. The claimant must also establish that the injury was of a kind and character that had to do with and originated in the employer’s work, business, trade or profession. See Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, and authorities there cited.

The statute has been considered in a number of cases involving injuries received while the claimant was going to or returning from his place of employment, and its application in that situation is reasonably well charted by the decisions. As a general rule an injury incurred in the use of public streets and highways for that purpose is not compensable, but there are several well-recognized exceptions to the general rule. See Jecker v. Western Alliance Insurance Co., Tex.Sup., 369 S.W.2d 776; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192. When an ordinary workman who lives at home and works at a fixed location is injured while going to or returning from work, his presence at the place of injury is causally related to the employment. The services for which he is employed cannot be performed unless he goes regularly to the place where the work is to be done, and in that sense he furthers the affairs or business of his employer by making the journey. The problem in each case is to determine whether the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.

While this is not a “going to or returning from” case, the problem here is essentially the same. Petitioner was furthering the affairs of his employer by going to Dallas and also by spending the night and eating there so as to be ready to continue his trip the following day. The question to be decided then is whether crossing the street to obtain food was so related to the work he was employed to do that it might properly be concluded that his injuries had to do with and originated in the employer’s business. The reasoning of the courts in the two Texas cases cited by the parties as determinative of this question is not entirely consistent.

Respondent relies on Wynn v. Southern Surety Co., Tex.Civ.App., 26 S,W.2d 691 (wr. ref.), where the traveling representative of a San Antonio creamery checked into a hotel in Waco on Saturday after working his territory in the area surrounding the city. His company had two customers in Waco, and under the terms of his employment he was expected to work on Sunday. Saturday afternoon he telephoned one of these customers to ascertain whether it would be open Sunday, and was told that it would be. There was no evidence that he called upon either customer, and nothing further was known about his whereabouts until Sunday afternoon when he went to a restaurant for his evening meal. He left the restaurant and was going toward his hotel when he was struck by an automobile and killed. In upholding an instructed verdict for the employer’s compensation insurance carrier, the court expressed the opinion that an injury sustained by a traveling salesman while sleeping in hotels or eating meals is not received in the course of his employment within the purview of the Workmen’s Compensation Act.

Petitioner cites Texas Employers Ins. Ass’n v. Cobb, Tex.Civ.App., 118 S.W.2d 375 (wr. ref.), which arose out of the death of a collection employee with headquarters in Fort Worth who was required by his employer to work both in arid outside of that city. He was furnished an automobile and was reimbursed for his board and lodging expenses while away from home. After proceeding to El Paso at the employer’s direction and arriving there on Sunday night, he engaged a room at a tourist court. Two days later he was found in bed where he had died of carbon monoxide poisoning. The evidence indicated that he had done some work in the room before retiring, but showed rather clearly that he was not working at or immediately prior to the time of his asphyxiation. Although the employer had no connection with the tourist court and had not told him to stay there, it was held that the trial court was justified in concluding that the employee lost his life in the course of his employment. See also Texas Employers’ Ins. Ass’n. v. Harbuck, Tex.Civ.App., 73 S.W.2d 113 (wr. dis.).

Most courts which have considered the question regard an employee whose work entails travel away from the employer’s premises as being in the course of his employment when the injury has its origin in a risk created by the necessity of sleeping or eating away from home, except when a distinct departure on a personal errand is shown. See Larson, Workmen’s Compensation § 25.00 et seq. There are a number of decisions holding that injuries received under circumstances similar to those disclosed by the present record are compensable. Walker v. Speeder Machinery Corporation, 213 Iowa 1134, 240 N.W. 725; Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074; Schreiber v. Revlon Products Corporation, 5 A.D.2d 207, 171 N.Y.S.2d 122. While the courts of other jurisdictions may not approach course of employment questions as we do, it is our opinion that the majority rule as applied to the facts now before us is essentially sound.

We are not concerned here with an employee whose travel is so localized that, as a practical matter, he is not required to eat or sleep away from home even though he may elect to do so. The facts of this case are also different from those considered in Rodriquez v. Great American Indemnity Co., 5th Cir., 244 F.2d 484, where the deceased lived in San Antonio but was working on a job in Del Rio. While the distance between the two cities made it impractical for him to go home every evening and his employment contemplated that he would remain in Del Rio four and one-half days a week, the evidence showed that he had fixed hours, a fixed place of work, and was paid by the hour for the time he worked there. The finding of the trial court that he was not in the course of his employment at the time of his death, which resulted from a fire in the hotel where he stayed in Del Rio, was upheld on appeal. Cases presenting these varying fact situations will be decided when they arise.

It could not be seriously contended that petitioner, while crossing the street, was in the scope of his employment for establishing liability under the doctrine of re-spondeat superior, but our Workmen’s Compensation Act must be given a liberal construction to carry out its evident purpose. “An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business.” Lumberman’s Reciprocal Ass’n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402. Petitioner was on a trip of several days duration for his employer. Food and sleep were necessary if he was to perform the work for which he was hired, and under the terms of his employment contract he was permitted to stop and satisfy these physical needs and was paid the expenses incident thereto. He was not in Dallas by his own choice but was required to be there to do his job. By the very nature of the employment, moreover, the place and circumstances of his eating and sleeping were dictated to a large degree by contingencies inherent in the work. Petitioner’s situation was somewhat analogous, therefore, to that of an employee who is injured while off duty as the result of a risk arising from his occupancy of quarters furnished by the employer and where he is required to live under the terms of his contract. See Texas Employers’ Ins. Ass’n. v. Lawrence, Tex.Civ.App., 14 S.W.2d 949 (wr. ref.). Although a number of eating establishments were available to petitioner, he chose a cafe only a short distance from his motel. Neither personal pleasure nor recreation played any part in the choice. In these circumstances we are unable to say as a matter of law that his crossing the street to obtain food was not an incident of the employment, or that the injuries he received did not have to do with and originate in the employer’s business. To the extent that the Wynn case is inconsistent with this conclusion, the decision is unsound and will not be followed.

Under the provisions of Section lb of Article 8309, Vernon’s Ann.Tex.Civ.Stat, travel in furtherance of both the business affairs of the employer and the personal affairs of the employee may not be the basis of a claim for compensation unless the trip to the place of injury: (1) would have been made even had there been no personal or private affairs of the employee to be furthered thereby; and (2) would not have been made had there been no affairs or business of the employer to be furthered by such trip. Petitioner’s trip to Dallas clearly was not made in furtherance of any of his personal or private affairs, and his only purpose in crossing the street was to obtain food. Once it is determined that the accomplishment of this purpose was one of the incidents of his employment, we think it necessarily follows that the trip across the street was also made to further the business of the employer rather than petitioner’s personal or private affairs.

In our opinion the trial court erred in sustaining respondent’s motion for summary judgment. The judgments of the courts below are accordingly reversed and the cause is remanded to the district court.


author: BELCHER, Commissioner.

text:
    Robert Charles JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 38160.
    Court of Criminal Appeals of Texas.
    April 21, 1965.

      Donald W. Cantwell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harryette Ber-cu, Howard Weinberger and W. John Allison, Jr., Asst Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery by assault; the punishment, five years.

The prosecutrix testified that while walking, alone, to her brother’s home about 3 A.M., she saw two men standing in front of a tavern. She identified the appellant as one of the two men who at that time approached her. When she screamed, the appellant grabbed her arm and neck and began choking her and telling her to stop screaming. Appellant’s companion demanded that the prosecutrix give him her billfold and when she told him she had no money, the appellant choked her while his companion took the billfold and appellant’s companion held her as the appellant looked for her necklace. After her refusal to walk into an alley, both men dragged her there. At this time, a woman at a nearby house called to the men, one of whom replied “Shut up.” Appellant then told the prosecutrix to walk down the street, but instead, she ran to the woman’s house and the police were notified.

After the officers arrived, they located and arrested the appellant and his companion in a telephone booth, and also found a billfold on the floor in the booth. The prosecutrix identified the billfold as the one the appellant and his companion took from her and testified that at such time she was “scared,” and that they took the billfold against her will and without her consent.

Testifying in his own behalf, the appellant stated that he and his companion met the prosecutrix in a coffee shop about 3 A.M.; that when she asked them to walk home with her his companion said to her “You come and go with me,” and the two of them left. They were arguing when they returned about ten minutes later. Appellant further testified as follows: “He said he had fifteen dollars. Anyway he came over to me and said, ‘I think she done slipped it to me’. He told me to ‘Come on with’ me, I am going to get it back’. And we got down to San Jacinto Street and this large lady, I think it was her sitting on her porch and he said give me my money, and she said, ‘Leave my purse alone.’ That lady yelled at us to stop and I said to him, I said, you better stop, the police will come by and arrest all of us, and he said, ‘No, she has got my money and I want to see that purse’, and she had a little red billfold and another purse and I wanted him to stop, but he wouldn’t stop and I said, give her her purse back and he said, ‘No, she had my money’ and I said, let’s just go on and forget it, and we walked down the street. Then the police come and put the handcuffs on us and took us down town.”

In his brief, appellant contends that he was incompetently represented in the trial court by the attorney appointed by the court.

The record contains no order appointing counsel for the trial on the merits. The judgment recites that appellant “appeared in person, his counsel also being present, and both parties announced ready for trial.” It appears that one attorney appeared at the trial, while another has filed the brief on appeal. No order appears in the record appointing an attorney on appeal.

The contention that appellant was denied the effective aid of counsel is not sustained by the record.

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

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Jesse CAPUCHINO, alias Jessie Capachino, Appellant, v. The STATE of Texas, Appellee.
    No. 38011.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Rehearing Denied May 5, 1965.

      Clyde W. Woody, Marian S. Rosen, Houston, for appellant.
    Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of narcotic paraphernalia with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Austin Police Officers Gann and Conner testified that in response to a call from the owner of a certain motel informing them that appellant, whom they knew, had rented a cabin, they went to the motel in the city, where, with the permission of the owner, they set up a surveillance on cabin number one. They were using cabin number two for such purpose. From cabin two Gann walked along a graveled walkway to a spot near the window of cabin one where he was able to see through the window, as the Venetian blinds were not closed and were in a poor state of repair, into cabin one where he observed appellant and his companion, Rudy Gil, both take showers and then leave. The surveillance continued, and appellant and Gil returned to the cabin later that night. The officers continued their vigil at the window, saw appellant walk away from the cabin and then return bringing with him a package and when he opened it in the cabin they saw that it contained a hypodermic needle, an eyedropper and a bottle cap. Appellant reached up to a board across the closet door frame and then removed his shirt and took the needle and eyedropper as a unit into the bathroom. Shortly thereafter he came out of the bathroom and placed the unit on the dresser where Gil picked it up and he in turn entered the bathroom. At this juncture the officers went to the door preparing to open the screen and in doing so made a slight noise, whereupon appellant partially opened the door. Officer Gann announced their identity, forced his way by appellant and pulled Gil out of the bathroom. Conner restrained appellant, who was attempting to crawl away, and attempted to place him in a chair, but appellant broke loose from him, reached the commode and flushed it. After the pair were handcuffed, the needle was recovered from the toilet bowl and the bottle cap from the dresser. The eyedropper was not found. The chemist who tested the two articles found no Heroin in the needle, but did find approximately one-fifth of an average capsule of Heroin in the bottle cap. From the board above the door frame the officers recovered a box of gelatine capsules and a white powder which was later identified to be powdered sugar. Gann, an officer with many years of experience with narcotic drug violators, described the items as those normally used for self-injection by addicts. It was shown that powdered sugar is often used to dilute pure Heroin. After arresting the pair, the officers observed fresh needle marks on their arms and expressed opinions based upon their appearance and demeanor that they were under the influence of narcotics.

The prior convictions were established in the manner approved by this Court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143, and cases there cited.

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

We shall discuss the contentions advanced by brief and in argument. Appellant moved to quash the indictment on the grounds that Section 2(c) of Article 725b Vernon’s Ann.P.C. is unconstitutional as an unreasonable exercise of police power. Reliance is had upon the opinion on rehearing by the Supreme Court of Louisiana in State v. Birdsell, 235 La. 396, 104 So.2d 148. He overlooks the fact that this Court in Manson v. State, 166 Tex.Cr.R. 514, 316 S.W.2d 414, upheld the constitutionality of such section.

Appellant’s second contention is that the Court overruled his Motion in Limine by which he sought to impanel a jury, prior to trial, to hear evidence and make specific findings under proper and adequate instructions from the court as to the controverted issue of facts as to the legality of the acquisition of evidence by the State and to impanel a separate jury to hear evidence as to the prior convictions alleged for enhancement. This we construe to be another attack on the constitutionality of Article 63, V.A.P.C., which was decided adversely to him in the recent case of Ex parte Reyes, Tex.Cr.App., 383 S.W.2d 804, and the opinion of the Fifth Circuit Court of Appeals in Breen v. Beto, 341 F.2d 96, (January 28, 1965). We overrule his contention that the officers’ observations of appellant’s appearance and demeanor are tantamount to a confession so as to bring this case within the rule announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

His next contention is that the arrest and search were illegal. He contends that not only the evidence which was directly obtained as the result of the search was inadmissible, but also the testimony of the officers as to the needle marks and their observations of the appearance and demeanor of both appellant and Gil. Such physical evidence and the testimony depend upon the legality of the arrest and search, and appellant and this writer are confronted with the relatively recent case decided by the majority of this Court in Giacona v. State, Tex.Cr.App., 372 S.W.2d 328, the cases there cited, and the subsequent opinion of the Supreme Court of the United States in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, which further explained the holding of that Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, upon which the writer relied in his dissent in Giacona, supra.

The writer is, however, able to distinguish this case from his dissent in Giacona, supra, especially since Ker v. State of California, supra. Here Lt. Gann was shown to have served on the Austin Police Force since 1946. Appellant was convicted in the District Court of Travis County in 1953 and in 1958 and was also convicted in the Federal District Court for the Western District of Texas for a narcotic violation. Gann testified in the absence of the jury that he was familiar with appellant’s reputation and had checked his record at the police department. When Gann received information from the owner of the motel that appellant had secured a cabin there, he obtained her permission to use an adjoining cabin. This necessarily carried with it permission to use all the public areas of the motel such as the graveled walkway where he stood while observing these two men inside a cabin. The pictures in evidence clearly show that the walkway was a part of the grounds of the motel and not a part of the cabin. The officers were at the motel for one and only one purpose and that was to see if appellant was again violating the law. They were in possession of no evidence which would have authorized them to secure a warrant of arrest or a search warrant prior to the moment they saw appellant unwrap the package and had they waited until Gil administered to himself a shot, they might have lost their opportunity of capturing the contraband. This fact created the emergency which justified their prompt action.

Appellant contends that the court erred in not making available to him for cross examination purposes the offense reports from which the officers had refreshed their memories prior to testifying. Such reports were forwarded with the record by the trial judge and have been examined by this Court. This procedure complies with the rule set forth in our opinion on rehearing in Sewell v. State, Tex.Cr.App., 367 S.W.2d 349, relating to documents used to refresh the witness’ memory before he takes the stand. We find nothing therein which would have been beneficial to counsel as the same comport in every respect with the officers’ testimony. We fail to see the materiality of the identification of the officer who took the pictures at the scene shortly after the commission of the offense. They were not admitted in evidence, but other pictures taken later were fully identified and appear in the record. Officer Conner testified that the police photo laboratory reported to him that the original pictures did not “come out” and therefore he did not see them. The officers testified fully as to what changes had been made in the blinds and drapes after the offense and prior to taking the pictures which were admitted.

There is no merit in appellant’s contention that the paragraph in the indictment charging the first prior conviction is at variance with the proof. The indictment alleges that appellant was convicted on April 17, 1953. In making proof thereof, it was shown that appellant plead guilty to the charge contained in the indictment on September 19, 1952, and he was placed on probation. On April 17, 1953, after a hearing the judge of the same court found that appellant had violated his parole and that the imposition of the sentence should not be further delayed and thereupon sentenced him. This was the proper date to allege.

We find no merit in his contention that the court was powerless to reduce the punishment at the time of the entry of the order of revocation. Beshear v. State, 169 Tex.Cr.R. 131, 332 S.W.2d 724.

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


author: McDONALD, Presiding Judge.

text:
    Walter BEASLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37732.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied April 7, 1965.
    Second Motion for Rehearing Denied May 5, 1965.
    Jack Bodiford, Will Gray, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and W. Louis White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary with two prior felonies alleged for enhancement; the punishment, confinement in the state penitentiary for life.

State’s witness, John M. Jordon, testified that he was a parts man employed at Bill’s Auto Parts, 4901 Harrisburg Blvd., in Houston, Harris County, Texas, on November 23, 1963. Mr. Jordon related that the parts store had been broken into twice, shortly before this date. The witness further stated that the two men who owned the business and Jordon, who was their employee, were taking turns staying at the place of business overnight to try to catch burglars. At 3:30 a. m., November 23rd, Jordon testified that he was sleeping on a mattress on the floor upstairs in this place of business, when he awakened and lighted a cigarette. If a noise had awakened him, he did not realize it. But shortly after he awakened, as he lighted the cigarette, he saw appellant and another man coming into the building. The pair came in the front door of the building and then split up. Jordon said that he waited until they got together again, and then “ * * * stuck the gun in their face”. He held them at gunpoint, required them to lie down, and called police. Appellant then told him there was another man outside, and Jordon went outside with appellant. They found no one. As they came back in, appellant attacked Jordon and tried to take his gun away from him. During this struggle, the gun went off, hitting five cans of paint. Appellant became frightened apparently and ran out the door and down a street. Police arrived and took the other man into custody. They found the hasp had been pried off the front door of the store to gain entrance. Jordon further testified that he had the care, custody and control of the store at the time of the burglary, that all doors and windows were locked the evening before, and that he had not given appellant nor any other person permission to break into the building. The evidence reflects that appellant and his co-principal had taken merchandise from the shelves of the store before they were surprised by Jordon. Appellant was arrested at the house of a girlfriend at 8410J4 Lockwood Drive, in Harris County, Texas, sometime before noon of the same day. The state adduced testimony reflecting that Detective T. J. Smith, of the Houston Police Department, Burglary and Theft Division, made the arrest. Appellant spent the night in jail. The next morning Detective Smith came back on duty at 8:00 a. m. He then took care of various duties, including duties other than talking to appellant, and then brought the appellant down to his office from the jail. At this time he invited appellant to make a statement if he wanted to, whereupon, after being properly warned, appellant made a written statement at 9:45 a. m., November 24, 1964. The pertinent part of this statement was introduced into evidence. In this statement, appellant told of going to Bill’s Auto Store on the early morning in question, and told how his co-principal, Johnny Ray Hicks, pried the lock off the door with a tire tool. They went inside and appellant looked for a fuel pump but could not find it. His accomplice got a transmission box and a shift box, which he had put down to open the back door when “the man came with the gun”. Appellant also related in his statement how he later pushed the man (Jordon) and broke and ran, got away and was later arrested at his girlfriend’s house at 84101/4 Lockwood.

The state established proof of the prior offenses with prison records and comparisons of appellant’s fingerprints by a fingerprint expert to identify him, and by the testimony of Houston Police Officer Ed Holli-day, who testified that he investigated the offense resulting in appellant’s conviction in Cause No. 80,053, the second prior conviction alleged and proved, and that it occurred in February of 1957. In addition, the original judgments in both prior convictions were introduced into evidence, being authenticated by the clerk of the court, and the indictments on the prior offenses were also introduced into evidence, one being an original indictment, and the other being a certified copy of the original indictment.

We find the evidence sufficient to sustain the jury’s verdict both as to the primary offense and as to the prior convictions for enhancement. Nearly all of appellant’s complaints constitute an attack upon the enhancement counts. First, he attacks the indictment by a motion to quash them. Then, by a motion in limine, by an objection in open court to the reading of the indictment while the same contained the enhancement counts, and by an objection to the introduction of evidence showing appellant’s guilt of the enhancement counts to support the state’s allegations of prior convictions under Art. 63, Vernon’s Ann.P.C. Appellant also objected to the Court’s charge relating to the prior felony convictions. It is his position that the action of the trial court in ruling adversely to his foregoing motions, objections and exceptions violates the fifth, sixth and fourteenth amendments to the Constitution of the United States. Appellant earnestly insists that our Texas procedure in these enhancement cases is “a symbol of the dark ages”. He tells us in his brief of the procedural action taken by some of our sister states and England. We commend him for his diligence. We are, however, constrained to adhere to our previous holdings enunciated by this court many times in the cases of Wigginton v. State, 1965, Tex.Civ.App., 386 S.W.2d 532; Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, cert. denied, 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Carso v. State, Tex.Cr.App., 375 S.W.2d 297; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189, and Oler v. State, Tex.Cr.App., 378 S.W.2d 857. These contentions are without merit and are overruled.

Appellant urges as error the action of the trial court in overruling his objection to the admission of his confession. He contends that the trial court’s action violates Art. 727a, Vernon’s Ann.C.C.P. and that the failure of the trial judge to make an independent finding of voluntariness as to the confession, brings his case under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345 and Harris v. State, Tex.Cr.App., 384 S.W.2d 349. The record reflects that there was an extended hearing with the jury excluded from the courtroom, relating to the admissibility of appellant’s confession into evidence. The issue of voluntariness of the confession was not raised during this hearing or at any other time during the trial. We find no evidence, despite appellant’s efforts to bring out such on cross-examination of state’s witnesses, to show that there was any involuntary act by appellant in making the confession. The rule of Lopez v. State, supra, and Harris v. State, supra, does not apply. We overrule appellant’s contention.

We perceive of no error requiring a reversal. The judgment is affirmed.


text:
    Charles David GREGORY, Appellant, v. The STATE of Texas, Appellee.
    No. 38161.
    Court of Criminal Appeals of Texas.
    April 21, 1965.

      James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., William F. Alexander, Robert Stinson, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by firearms; the punishment, 50 years.

Store Manager Orsak testified that on January 11, at 10:45 a. m. a very tall man came into his store and engaged him in conversation concerning a check, that at about 12:05 p. m. on the same day he observed appellant standing near his office and some five minutes later the tall man returned and by means of exhibiting a pistol took $8,655.00 from him and left the store. He testified that he followed the tall man to the front door, saw him enter an Oldsmobile driven by appellant and hurriedly flee the scene. He testified that on the following day he identified appellant at a police line up in Oklahoma City.

Mrs. Henderson, a customer at Mr. Orsak’s store, observed Orsak come running out of the front door of his store and make a motion toward the Oldsmobile which she and her husband followed until they secured the license number which she gave to a police officer.

Lt. Schmidt of the Oklahoma City Police testified that on January 12, after having been in communication with the Dallas Police, he observed an Oldsmobile bearing Texas license plates parked in front of Cabin 501 at the Holiday Inn Motel in Oklahoma City and that he and his fellow officers then surrounded the motel. One of his subordinates, Officer Meade, testified that at 1:00 a. m. on January 13, an automobile let out some passengers at Cabin 501 and that he pursued it as it left, finally brought it to a halt and arrested appellant and the two other occupants. A pistol was found under the seat.

Detective Potts of the Dallas Police testified that he went to Oklahoma City on January 14, and there talked to appellant, who was in custody, and after having been duly warned, the appellant executed a written statement.

Prior to the admission of the evidence concerning the confession the jury was retired, and Detective Potts was questioned by appellant’s counsel as to whether or not he had told appellant that if he would sign the statement, his mother, who was in jail in Oklahoma City, would be released, and that if he refused, she would be kept in jail. Detective Potts denied that he made such an offer. Appellant testified in the absence of the jury and stated that he signed the confession because Potts promised to turn his mother loose if he would do so. He further stated that Potts wrote out his statement and then brought it back to him in typewritten form, that he read the same and then signed it. The confession recites that appellant participated in the robbery in that he drove the get away car, that he received $1,000.00 for his part, and that the officers recovered the $1,000.00 from him when he was arrested. He admitted a prior ten year conviction for armed robbery. At the conclusion of the hearing in the absence of the jury, the court made a definitive finding that appellant had been properly warned and that the confession had been voluntarily made and was legally admissible as a statement.

In the presence of the jury the confession was offered in evidence by the State, and no objection was interposed by appellant. Appellant did not testify or offer any evidence in his behalf in the presence of the jury.

Miss Beggs, an Adult Probation Department employee whose office was in the Courthouse, testified without objection that on March 6th following the robbery in question, the appellant, while participating in a jail break, held her hostage in a vacant courtroom for a time and that when Mrs. Thornton, another courthouse employee, responded to her cries for assistance, he released her, grabbed Mrs. Thornton and forced her with what appeared to be a pistol to accompany him down the hallway. Mrs. Thornton testified that appellant exhibited what appeared to her to be a gun and forced her to accompany him down the stairs and across the street where he was captured by Deputy Sheriff Player.

There are no formal bills of exception in the record. By brief appellant contends that the court erred in passing on the voluntary nature of his confession and not submitting such question to the jury. As will be seen from the above, the court cautiously followed the procedures recommended in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and since no evidence which would raise an issue of involuntariness was presented before the jury, and because the confession was placed into evidence before the jury without objection, the court properly refrained from submitting an issue as to its voluntariness to them in his charge.

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


text:
    Joseph Earl WHITE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38086.
    Court of Criminal Appeals of Texas.
    April 21, 1965.
    Flowers & McManus, by Thomas D. McManus, Channelview, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley E. Woodard, Jr., and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated the punishment, three days and a fine of $50.00.

Highway Patrolman Wilson testified that while parked on the shoulder of a Harris County highway at 7:50 p. m. on the night in question an automobile drove off the main traveled portion of the roadway onto the shoulder and passed within two feet of his patrol car, that he gave chase and observed such automobile “weaving very badly” from one lane to the other and off on the shoulder of the road. When he brought the automobile to a halt he observed the appellant, the only occupant, who “staggered quite badly” and smelled of an alcoholic beverage and expressed the opinion that he was intoxicated. He took a specimen of appellant’s urine, re-sealed the container, placed his initials thereon and placed it in the chemist’s locked box at his headquarters.

Chemist Brabham testified that he ran a test on such specimen and found it to contain .27 per cent alcohol, which was definitely indicative of intoxication.

Appellant called the witness Rogers who testified that he had spent approximately an hour with appellant at a drive-in in Beaumont, during which time appellant drank only one beer and stated that when appellant left him at approximately 4:30 p. m. appellant was not intoxicated.

Appellant’s witness Adams testified that he visited with appellant at a cafe in Liberty between the hours of five and six p. m. on the day in question and stated that in his opinion appellant was not intoxicated.

Appellant, testifying in his own behalf, admitted drinking one beer at Beaumont and purchasing another at a barbeque stand which he had not completed drinking at the time of his arrest. He denied that he was intoxicated or that he had driven off the shoulder of the highway.

The jury resolved this conflict in the evidence against appellant, and we find the evidence sufficient to support the conviction.

The sole question presented for review is the contention that the State did not properly establish the chain of custody as to the urine specimen. As is shown above, Patrolman Wilson testified that he placed the specimen in the chemist’s locked box at headquarters from which Chemist Brabham took the specimen and then made his test. We need not detail the evidence further adduced, because when Brabham testified as to the results of the test°no objection was made to such testimony. In Bratton v. State, 171 Tex.Cr.R. 515, 352 S.W.2d 121, we held that failure to object to the results of an intoximeter test waived any error as to the manner of proof. See also Schultz v. State, Tex.Cr.App., 367 S.W.2d 688.

Finding no reversible error appearing, the judgment is affirmed.


text:
    Leon SPENCER, Appellant, v. The STATE of Texas, Appellee.
    No. 37921.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied May 5, 1965.

      Bill Waltrip, Michael D. Matheny, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder; the punishment, enhanced under Art. 64, Vernon’s Ann.P.C., death.

Art. 64, V.A.P.C. provides that a person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.

The testimony reflects that appellant and deceased had lived together for about four or five years and had separated in October or November, 1963. On January 7, 1964, around 7:30 P.M., deceased was at her home in the City of Beaumont with her two sons, aged fourteen and eight, and her daughter, about eighteen years of age, and her daughter’s twenty month old baby. As deceased was lying on the bed playing with the baby the appellant walked into the house, entered the room where deceased was and almost immediately fired one shot with a pistol. The shot hit deceased in the face, and she fell off the bed. Deceased’s daughter, who was in the room at the time this occurred, jumped over the bed and lay down on top of deceased to protect her. At that time appellant walked around the bed, pulled deceased’s daughter up and fired four more shots into deceased’s face and head. Appellant was attacked at that time bjr deceased’s fourteen year old son who had seen part of this occurrence. Appellant knocked the knife out of the son’s hand and walked out of the front door of the house where he stopped and appeared to be either loading or unloading the pistol. The deceased’s daughter ran out of the house after him and when she fell down, appellant looked back at her and told her her mother was no good and then he grinned.

After leaving the house where the shooting occurred, appellant walked into the Sheriff’s Office at approximately 8:15 P.M. and had in his possession a .22 caliber pistol containing three live shells and three spent cartridge cases. This pistol was proved to have been purchased by the appellant from Phillips Pawn Shop in the City of Beaumont between 4:00 P.M. and 5:30 P.M. on January 7, 1964.

The cause of the deceased’s death was established by medical testimony showing that she had died as a result of gunshot wounds to the brain.

The State proved that the defendant had been previously convicted of the offense of murder with malice as alleged in the indictment.

We find the evidence sufficient to sustain the verdict.

Appellant offered to stipulate, prior to the trial, that he had been previously convicted of murder as alleged in the second count of the indictment. Upon making this offer appellant moved the trial court to instruct the state not to read the portion of the indictment which referred to the prior conviction and not to offer any proof of said prior conviction, which motion was denied.

Appellant also objected to the reading of the indictment, and after the reading of the indictment alleging the prior conviction, he moved for a mistrial and also objected to any and all testimony in regard to the first conviction.

Appellant bottoms the foregoing contentions upon the theory that the trial court denied him due process of law by sanctioning this procedure on the part of the state before the determination of his guilt on the primary offense. He contends that there was no fact issue for the determination of the jury as to his identity or the validity of the prior conviction.

Appellant also contends that Art. 64, V.A.P.C. is unconstitutional for the reason that it places the accused in double jeopardy in that this statutory provision uses the fact of the preceding offense to establish an element of the primary offense.

We shall dispose of these three related contentions together, as the parties have done in their briefs. We have consistently held that the procedure of reading an indictment to a jury showing that the person on trial has been previously convicted is not a violation of due process of law. We held in Wright v. State, Tex.Cr.App., 364 S.W.2d 384, a case in which the appellant there offered to judicially confess and stipulate as to his former conviction instead of the state offering proof of the prior conviction, that the state could not be prevented from making proof of the prior alleged conviction. Wright’s conviction was under Art. 64, V.A.P.C.

In Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864, this Court, speaking through this scrivener, did announce a new rule in those cases where “[t]he jury has no choice in imposing punishment if it finds the appellant guilty and that he has been previously convicted.” We said: “Thus, if accused stipulates the prior conviction, that issue is resolved and the question of guilt is all that remains.” We are convinced of the soundness of this rule, but it is not applicable to cases coming under Art. 64, supra. The jury does have a choice in imposing punishment under Art. 64, as may be seen from the foregoing terms of this article.

Since appellant’s contentions have been before this Court numerous times, we shall not enter into a detailed discussion. His contentions have been adversely decided by this Court in the rather recent case of Crocker v. State, 385 S.W.2d 392, and the very recent case of Wigginton v. State, Tex.Cr.App., 386 S.W.2d 532, and cases there cited.

We adhere to these prior holdings and overrule appellant’s contentions.

We have examined with great care appellant’s remaining contentions, but we find no error reflected by them. It would contribute nothing to the jurisprudence of this state by discussing them here.

Finding no reversible error, the judgment is affirmed.


text:
    Salvador GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 37885.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Rehearing Denied May 5, 1965.

      Philip Juarez, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of heroin; the punishment, 14 years.

Police officers of the City of Austin accompanied by a Liquor Control Agent searched a home in the city and apprehended appellant and others and a quantity of heroin. Appellant did not testify in his own behalf.

The sole question presented for review is the legality of such search. Appellant is in no position to complain thereof, because he called Liquor Control Agent Burns, who had not been called by the State, and elicited from him details concerning the search. The principle is stated in 5 Tex.Juris.2d, Section 446, page 704, as follows:

“ * * * the admission of improper evidence will not constitute reversible error, if the same facts were proved by other and proper testimony. * * *"

See also Flores v. State, 167 Tex.Cr.R. 99, 318 S.W.2d 663, and Strom v. State, Tex.Cr.App., 377 S.W.2d 649.

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


author: WOODLEY, Judge.

text:
    Emmett ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 38177.
    Court of Criminal Appeals of Texas.
    April 21, 1965.
    Charles E. Coleman, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery; the punishment, 5 years.

The state’s evidence, including the testimony of Frankie Moss, the injured party, and the confession of the appellant, shows that appellant got in a car with the injured party and drove to a place near some oil tanks where he and Lonnie Charles Johnson assaulted her, took her wrist watch, her spare tire and her billfold containing about $5 in money and her license to drive a motor vehicle.

Reversal is sought upon the ground that it was reversible error for the court to deny appellant’s motion to quash the indictment because there was only one transaction and one set of facts involved out of which the state could carve only one offense, and the undisputed evidence shows that appellant was convicted and assessed a fine of $25 upon a complaint in Justice Court charging him with an assault upon Frankie Moss and that he satisfied said judgment of conviction by serving time in jail.

Appellant cites and relies upon Day v. State, 105 Tex.Cr.R. 117, 286 S.W. 1107, and Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457, in both of which cases prosecution was upon an information.

Art. 536 C.C.P. provides:

“A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense.”

Under the terms of said statute, the former conviction in justice court on complaint alone did not bar prosecution upon indictment for robbery by assault, though the assault was the same. Ex parte Hernandez, 126 Tex.Cr.R. 303, 71 S.W.2d 289; 1 Branch’s Ann.P.C.2d 618, Sec. 651; 16 Tex.Jur.2d 284, Sec. 137, and cases cited under Note 19.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Arturo GOMEZ.
    No. 37930.
    Court of Criminal Appeals of Texas.
    March 31, 1965.

      Maury Maverick, Jr., San Antonio, court appointed counsel, for petitioner.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an original application for writ of habeas corpus presented to the Honorable John F. Onion, Jr., Judge of the 175th Judicial District Court of Bexar County, in which petitioner alleges that he is being illegally confined and restrained of his liberty in the Texas Department of Corrections under a void judgment of conviction rendered against him in said court.

Acting under Art. 119, Vernon’s Ann.C. C.P., Judge Onion proceeded to hear the petition and, at the conclusion of the hearing, granted the writ and made the same returnable to this court, together with th<e facts, for final determination.

The record reflects that petitioner was convicted on May 23, 1962, in the 175th Judicial District Court of Bexar County, of the offense of unlawful possession of narcotic paraphernalia (second offense) and his punishment was assessed at confinement in the penitentiary for thirty years. At the trial, petitioner was represented by court-appointed counsel and on appeal, in which the judgment was affirmed by this court, he was represented by counsel of his own selection. Gomez v. State, Tex.Cr.App., 365 S.W.2d 165.

In his original and supplemental petitions for writ of habeas corpus, petitioner alleged that he was denied a fair trial and due process of law under the Sixth and Fourteenth Amendments to the Constitution of the United States in the following particulars:

1. That he was represented by incompetent counsel.

2. The portion of the indictment alleging the prior conviction was read to the jury before the question of his guilt or innocence was determined.

3. The conviction was upon evidence obtained under an invalid search warrant.

4. A defect in the court’s charge.

5. His confession was admitted into evidence without an order by the trial judge declaring it to have been voluntarily made.

We have carefully reviewed the petitions in the light of the facts ascertained at the hearing and conclude that petitioner is not entitled to discharge.

The record reflects that petitioner was represented at the trial by counsel who was a duly licensed attorney with several years’ experience in the general practice of criminal law. While testimony was offered that counsel had the reputation of being incompetent and also the user of barbiturates, there is no proof that on the occasion of his representation of petitioner he was incompetent.

The contention that reading to the jury the portion of the indictment alleging the prior conviction, before a determination of guilt of the primary offense, constitutes a denial of due process has been rejected by this court. See: Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also, Breen v. Beto, January 28, 1965, Fifth Circuit Court of Appeals, 341 F.2d 96.

The writ of habeas corpus cannot be utilized, after conviction, to point out alleged errors in a court’s charge, as these are matters which should be urged on appeal after timely objection made in the trial court.

While we are aware of no authority which authorizes an attack upon a search warrant by writ of habeas corpus after conviction, we have examined the search warrant in question in view of petitioner’s claim that it is invalid under the decision of the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The search warrant issued by the justice of the peace upon the affidavit of Officer Pat Dotson, omitting the formal parts, reads:

“Whereas, a complaint on oath and in writing, in accordance with law, has this day been made before me alleging that the premises described as a two story frame house painted white located at 1720 Buena Vista, the apartment to be searched being the upstairs apartment on the west side of the house, and known as 1720 Buena Vista, and any and all outhouses, garages, edifices, structures, openings and enclosures, and any and all automobiles or trucks found parked afor in front of 1720 Buena Vista, in the City of San Antonio, Bexar County, Texas, and being the premises under the control of a_ unknown Latin American Male whose name, age, and description are unknown— is a place where Narcotic Drugs and Narcotic Paraphernalia are unlawfully possessed in violation of The Uniform Narcotic Drug act, being Article 725b of Vernon’s Annotated Penal Code, of the State of Texas.
“You are therefore hereby commanded to enter immediately and search the above described premises for such Narcotic Drugs and Narcotic Paraphernalia unlawfully possessed in violation of the uniform Narcotic Drug act, being Article 725b of Vernon’s Annotated Penal Code, State of Texas, and to take possession of same, and you are further commanded to arrest the said Unknown Latin American Male whose name, ag, and description are unknown who are alleged to be the person or persons in charge of said premises, and to arrest all other parties found in said premises or making their escape therefrom, and immediately take the persons arrested before the nearest magistrate and lodge the proper complaint against each person so arrested.”

The affidavit of the officer, among other things recited:

“That on September 21, 1961, the Affiant received information from a credible and reliable person whose identity cannot be revealed for security reasons, that he, the said credible and reliable person, did see narcotic drugs and narcotic paraphernalia unlawfully possessed at 1720 Buena Vista on September 21, 1961, by the unknown J^atin American Male whose name, age, and description are unknown. The affiant has good reason to believe and does believe that narcotic drugs and narcotic paraphernalia are unlawfully possessed at 1720 Buena Vista at this time.”

The affidavit not only states that the affiant had received information from a credible person that narcotic drugs and paraphernalia were unlawfully possessed on the premises but that the said credible and reliable person did see the narcotic drugs and paraphernalia “possessed” on the premises. By making the positive assertion that the informer had seen the narcotics and paraphernalia on the premises, the affidavit states more than mere conclusions as was done in Aguilar v. Texas, supra. The facts stated were sufficient to constitute probable cause for issuance of the warrant.

We do not agree with petitioner that the allegations in the search warrant that “Narcotic .Drugs and Narcotic Paraphernalia” were unlawfully possessed in “violation of The Uniform Narcotic Drug act, being Article 725b of Vernon’s Annotated Penal Code, of the State of Texas,” in the absence of a more particular description of the contraband and offense charged, rendered the warrant invalid for indefiniteness. Nor do we agree that the description of the accused as an “Unknown Latin American Male” rendered the document void as one of racial discrimination in violation of the Equal Protection laws of the Constitution and statutes of the United States.

In view of the contention urged by petitioner that the confession was admitted into evidence without a prior and independent finding by the court that it was voluntarily made, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the trial judge was directed to certify to this court whether or not at the time of petitioner’s trial he found petitioner’s confession to have been voluntarily made.

In reply to such order, the trial judge certified that he did so find in a separate hearing out of the presence of the jury.

Petitioner excepts to the certification and points out the statement in the letter of transmittal wherein Judge Onion states:

“I did not make a separate fact finding as now recommended in Lopez v. State [Tex.Cr.App., 384 S.W.2d 345] or Jackson v. Denno.”

We do not agree with petitioner that, because of such statement in the letter of transmittal, the certification by Judge Onion does not meet the test in Jackson v. Denno, supra, and Lopez v. State, supra.

We construe the letter as merely stating that the judge did not reduce to writing and file among the papers in the case his finding as to the voluntary nature of the confession, as suggested in this court’s opinion in Lopez v. State, supra. However, the certificate, itself, certifies that before admitting the confession in evidence the judge did find in a separate hearing outside the presence of the jury that it was voluntarily made. Nor do we agree that the procedure which Judge Onion has certified he followed in the case is that which the Supreme Court has sought to correct.

Unlike the New York rule condemned in Jackson v. Denno, the Texas trial judge has never been held to be without authority to resolve conflicting evidence hearing on the voluntariness of a confession before admitting it in evidence to the jury. When he has done so, the test in Jackson v. Denno has been met. Under Texas law prior to Jackson v. Denno, the trial judge was not bound to resolve conflicting evidence and pass upon the voluntariness of a confession, but could admit the confession to the jury and leave it to them to determine the issue of voluntariness. It was this procedure that failed to meet the test laid down in Jackson v. Denno.

The petition for writ of habeas corpus and discharge is denied.

Opinion approved by the court.


author: PER CURIAM. DICE, Commissioner.

text:
    Henry BANKER, Appellant, v. The STATE of Texas, Appellee.
    No. 37604.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    On Motion to Reinstate Appeal March 31, 1965.
    Rehearing Denied May 5, 1965.
    Ted Musick, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is simple assault; the punishment, a fine of $5.

The record does not reflect that a notice of appeal was given and entered of record as required by Art. 827 Vernon’s Ann.C.C.P.

In the absence thereof, this Court has no jurisdiction to entertain the appeal. The appeal is dismissed.

ON MOTION TO REINSTATE APPEAL

DICE, Commissioner.

Appellant moves to reinstate the appeal and alleges in his motion that he did give notice of appeal.

Certain affidavits are presented by appellant, in which the affiants state that they were in the courtroom when the jury’s verdict was received in the case and that, at such time, appellant’s counsel stated to the court: “To which you have our notice of appeal to the Court of Criminal Appeals.”

A certificate of the county judge who presided over appellant’s trial has also been presented and filed in the cause, in which he certifies “that at no time after verdict nor at any time thereafter did the appellant, Henry Banker, either in person, or by and through his attorney of record, appeal in open court, and give notice of appeal of said Cause No. 7876, to the Court of Criminal Appeals of Texas * * *."

The affidavits and the court’s certificate have been considered in passing upon the question of our jurisdiction of the appeal.

Under the record, we remain convinced that this court is without jurisdiction of the appeal.

The motion to reinstate the appeal is overruled.

Opinion approved by the court.


author: MASSEY, Chief Justice.

text:
    WICHITA COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3, Appellant, v. J. D. PADGETT et al., Appellees.
    No. 16614.
    Court of Civil Appeals of Texas. Fort Worth.
    March 26, 1965.
    Rehearing Denied April 23, 1965.
    T. B. Coffield, Bowie, for appellant.
    Short & Smith, and Donald E. Short, Wichita Falls, for appellees.
   MASSEY, Chief Justice.

This is an appeal by the condemnor because the amount found by the jury to constitute the value of the realty taken, and of the judgment rendered thereon, was greater than the condemnor considered proper.

Among other points of error on the con-demnor’s appeal were those common to such cases: that certain adverse testimony offered by or in behalf of the condemnees, and admitted over objection, was inadmissible and so prejudicial that reversal was required; — that there was undue restriction placed upon the argument to the jury made by the attorney for the condemnor, in that he was denied the right to argue upon matter the judge erroneously excluded;-— and that the value of the condemned property, as found by the jury, was excessive under the state of the record, i. e., either not supported by evidence having probative force and effect, or against the great weight and preponderance of the whole of the evidence.

We have considered the statement of facts and also the bills of exception under which condemnor has advanced such contentions and have concluded that the points of error should be overruled. We have tested the matters in view of the nature of condemnor’s complaint, with an assumption that error was present (but without deciding that error in fact existed) with our objective the determination of whether such required reversal. Our conclusion in each instance has been that the error was harmless, and, in view of the provisions of Texas Rules of Civil Procedure, rule 434, that no reversal should be effected because thereof.

One point of error, having an element of novelty, advances the contention that in view of circumstances attendant upon the trial below the court erred in granting to the condemnees the right to open and close, just as if theirs had been the position of plaintiff in every respect. Con-demnor distinguishes circumstances of the instant case from those under consideration in Wagoner v. City of Arlington, Tex.Civ.App., 345 S.W.2d 759 (Fort Worth, 1961, writ ref., n. r. e.) since two of the condem-nees were First-Wichita National Bank of Wichita Falls, Texas and Equitable Life Assurance Society of the United States, neither of which had filed any admission of the condemnor’s right to condemn the land, but had entered an appearance only.

It is true that neither of said parties filed such an admission. It is further to be observed that in the instruments they did file, each denominated “Waiver of Citation”, they stated under oath that each was “a lienholder” as to some or all of the land sought to be condemned, and, among other things, consented that “hearing in said suit may commence without further notice to this Defendant.” The trial was conducted in accordance therewith. Neither of said parties was present nor participated. The single special issue submitted to the jury was one in answer to which the jury was required to find the value of the property condemned.

Our holding is that these two condemnees, the aforesaid lienholders, were properly treated by the trial court as though they had in fact filed admissions of the condemnor’s right to condemn. In any event the con-demnor is not entitled to claim that it was prejudiced in connection with the trial court’s election to so treat matters. There was a single issue submitted to the jury, and such issue was one as to which the burden was cast upon the condemnees. There was no issue submitted as to which the burden was cast on the condemnor, and none requested by anyone. The trial was so conducted that the burden of proof on the whole case was that of the condemnees present and participating, and there was no issue made upon which the condemnor carried the burden.

Upon the matter of the right to open and conclude the argument in such a circumstance, it has been held that the condemnee(s) have the right. City of Teague v. Stiles, Tex.Civ.App., 263 S.W.2d 623, 629 (Waco, 1953, writ ref., n. r. e.). The case, and its rationale, was considered in Rayburn, Texas Law of Condemnation, p. 312, § 85(1), “—Burden Is On Condemnee To Proceed On Evidence, And With Trial Where There Is A Stipulation Executed.” We believe the holding of the case was correct. Its holding related to argument. We believe it would necessarily follow and be correct to hold that the same thing is true in the present instance relative to the burden of proof and correlative rights as applied to the whole case.

In this we appear to be in conflict with, the decision in Lower Colorado River Authority v. Burton, Tex.Civ.App., 170 S.W.2d 783 (Amarillo, 1943, no writ hist.). The condemnor has cited the following in support of its position: Cockrell v. Ellison, 137 S.W. 150 (Court of Appeals of Texas, 1911, no writ hist.); Hittson v. State Nat. Bank, 14 S.W. 780 (Tex., 1890); Rector v. Evans, 6 S.W.2d 105 (Tex.Com.App., 1928). None of these cases cited by condemnor were condemnation cases.

By another point of error the condemnor complains because the trial court granted interest upon the amount of “damage” awarded, dating from the time judgment was rendered.

It appears that after the judgment was rendered in the trial court (on June 2, 1964), the condemnor deposited with the Clerk of the County Court of Wichita County the amount of the Commissioner’s Award ($42,000.00). The deposit was made July 29, 1964. The judgment, based on the jury’s verdict, was for $63,000.00. Condemnor’s Motion for New Trial was overruled by the trial court on July 24, 1964. Condemnor contends that it did not “take possession” of the land until about two months after the judgment was rendered, and therefore it would be improper to charge it with any interest antecedent to such date. A “receipt” of the Clerk shows the date condemnor made the “deposit”. Furthermore, says condemnor, con-demnees had the use of the land until the date it “took possession”, hence to allow them interest would he to allow a double recovery.

We overrule the point. Condemnor was not prejudiced and for that reason may not he sustained in its complaint. There have been a variety of holdings as to the date when condemned property should be treated as having been “taken” for purposes of determining title and other matters, including interest. In no instance has any court ever held that condemned property should be treated as having been “taken” at a time later than the date judgment was rendered.

The very nature of judgments, as well as stability of procedure in condemnation cases, would forbid the holding condemnor believes proper. Under Texas practice a judgment is rendered by the trial court. A party aggrieved thereby is afforded the right of appeal, and of necessity is afforded time within which to- act in connection therewith. On appeal, of course, the test is whether the judgment was proper. Finality of the judgment is not the subject matter of test in the normal appeal, and is not on the instant appeal. Unless we reverse it the efficacy thereof continues to date from its entry.

The judgment is “final”, subject only to the appellate court’s right to decree otherwise. In most instances rights thereunder may be “suspended pending disposition of the appeal” by a supersedeas bond. Judgments in condemnation cases adjudicate title to property. Such judgments operate to vest title in the condemnors. Correc-tively, judgments in personam are rendered in favor of the condemnees and against the condemnors. It is the method by which condemnees are compensated. Rights of both parties stem from the date of entry of judgments. As applied to condemnees the time of accrual of their rights to “damages”, plus interest thereon, differs in no particular from that appertaining to judgments in suits for damages stemming from torts. As applied to condemnors, under authority of and dating from entry of judgments, they hold title to realty just as does a prevailing party (against his adversary) under a judgment in a Trespass to Try Title case.

In this instance it is not necessary to determine whether there would be any impropriety in a judgment allowing interest beginning at a date even earlier than that on which judgment was rendered.

Judgment is affirmed.