author: PALMORE, Judge.

text:
    Clinton Ledford STEPHENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Rehearing Denied May 18, 1962.
    Joe S. Feather, Williamsburg, James A. Inman, Whitley City, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Stephens, appeals from a judgment entered on a verdict finding him guilty of voluntary manslaughter and fixing his punishment at 2 years in prison.

An automobile driven by Stephens had a head-on collision on a 2-lane paved road in McCreary County with a car driven by Arlis Anderson. The road was dry, and the accident happened in the daytime. Anderson was killed instantly. There was a conflict in the evidence as to the respective directions in which the two vehicles were being driven. It is very clear, however, from the tire marks at the scene that the one moving southward, as it emerged from a curve to its right, swung leftward into the northbound traffic lane and was wholly on the wrong side of the road at the moment of impact. Stephens and his witnesses say Anderson was the one coming south and they were northbound, but from the physical facts and certain admissions made by Stephens shortly afterward the jury had sufficient basis to believe beyond a reasonable doubt that it was the Stephens car that was going south and caused the accident by leaving its proper lane.

Stephens and one of his passengers were the only eyewitnesses who testified, and since they both denied that his was the southbound car there was no evidence to explain or mitigate the circumstance that he swerved to the wrong side of the road. Stephens admitted to a state trooper later on that he “had drunk a can of beer or two,” and that was the only evidence as to drinking or intoxication. His other admissions furnished no further enlightenment except as to his direction of travel at the time of the collision. The length of the skidmarks, 53 yards, would not of itself indicate the rate of speed or prove a violation of the statutory speed limit. We do not know how sharp the curve was or to what speed the Stephens car had slowed at the end of the 53-yard braking distance. However, it is reasonable to infer from the physical evidence that as Stephens drove through the curve he was going too fast to keep his car in its proper traffic lane. It seems fairly certain from the testimony that he knew the road, but there was no evidence as to how heavily traveled it was.

There are three degrees of unintentional homicide by negligent operation of a motor vehicle in this state. If death results from reckless or wanton conduct, but without malice (express or implied), it is voluntary manslaughter; if it results from a lesser degree of negligence that is nevertheless “gross,” it is involuntary manslaughter. Cf. Marye v. Com., Ky.1951, 240 S.W.2d 852. These two are, of course, common law offenses. The third degree is the statutory crime of negligent homicide, KRS 435.025, based on ordinary negligence. Casey v. Com., Ky.1958, 313 S.W.2d 276, 278.

The most that can be said to have been proved in this case is that Stephens caused the accident by driving to the wrong side as he rounded a curve too fast on a road with which he was familiar. Under the “reasonable doubt” standard of criminal law, does this evidence support a finding of reckless and wanton conduct? A majority of the court thinks it does not.

It is rather harsh to make any unintentional offense a felony. The basic justification for classifying a homicide through negligent conduct as “voluntary” manslaughter (an obvious contradiction in terms) is that under certain circumstances a man’s actions may be so heedless of the natural and probable consequences to others that he ought not be heard to say that although he intended the heedless conduct itself he did not intend its consequences. Here we may assume from the evidence that the appellant intentionally drove his automobile at a speed that was excessive in view of the topography of the highway. In so doing he committed a misdemeanor in failing to operate his vehicle in a careful manner (KRS 189.290, 189.990) and perhaps violated KRS 189.300 by failing to keep to the right. Thus he was negligent per se, but felonious recklessness, it seems to us, requires a positive likelihood, a probability, of accident and injury. Under any reasonable standard of justice, “reckless and wanton” conduct must be defined with a view toward the severity of punishment it may entail. After all, voluntary manslaughter is just a shade less than murder, the fine line of distinction having been illustrated by Holmes as follows:

“To explode a barrel of gunpowder in a crowded street, and kill people, is murder, although the actor hopes that no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter. Perhaps, however, a case could be put where the riding was so manifestly dangerous that it would be murder.” Holmes, The Common Law, p. 60.

Though we do not accept appellant’s proposition that a case of voluntary manslaughter by automobile cannot be established solely by the physical facts and circumstances (to the contrary, see Casey v. Com., Ky.1958, 313 S.W.2d 276), it is our conclusion that excessive speed on the open highway, without any evidence of how excessive it was or what other conditions attended or led up to it, does not necessarily forecast a sufficient likelihood or probability of accident and injury to support a verdict of voluntary manslaughter.

This view of the case obviates the consideration of other points raised by the appellant. Should the evidence be the same on another trial the highest degree of homicide on which the court may instruct is involuntary manslaughter by gross negligence.

Judgment reversed with directions to grant a new trial.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Grover G. SALES, Executor of the Estate of Alfred M. Sales, deceased, Appellant, v. John R. BRADLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    Rehearing Denied May 18, 1962.
    Morris & Garlove, Charles W. Morris, Irwin G. Waterman, Louisville, for appellant.
    R. C. Hobson, John P. Sandidge, Kent McElwain, Louisville, for appellees.
   CLAY, Commissioner.

Alfred Sales, an elderly gentleman, was injured when he fell at the bottom of a flight of stairs in a building owned by two of the defendants and leased for business purposes by the other. In this suit for damages the trial court directed a verdict for the owners and a jury returned a verdict for the lessee.

The stairway consisted of 12 wooden steps. The risers on the first 11 steps from the top are eight inches in height, the last, or bottom one, being four inches. It is difficult to determine from Mr. Sales’ testimony what caused his fall but the claim seems to be that the difference in the height of the last step somehow threw him off balance. The condition was open, obvious and adequately lighted. We may assume Mr. Sales was an invitee.

The jury was instructed it was the duty of defendant Bradley to exercise ordinary care to keep and maintain the stairway in a reasonably safe condition, and it was the duty of Sales to use ordinary care for his own safety. Appellant’s principal contention is that the instructions concerning the defendant’s duties should have included a duty to warn Mr. Sales of the dangerous condition of the steps.

It is extremely doubtful appellant proved such a dangerous condition as would create liability for negligence. See Terry v. Timberlake, Ky., 348 S.W.2d 919. However, assuming it was proper to submit this case to the jury, the instructions properly imposed upon defendant the duty of maintaining the stairway in a reasonably safe condition. This is the basic duty to an invitee, and if it was breached, defendant was liable (assuming Mr. Sales was not contributorily negligent). If it was not breached, there was nothing to warn about.

The duty to warn normally arises when the owner of land is not required to keep his premises reasonably safe. These respective duties are alternate, not concurrent. See Restatement, Torts (Negligence), Section 343 (page 939). (Which of the two may be invoked apparently depends upon whether the injured person is an invitee or a licensee.) In any event there is no duty to warn unless the condition constitutes a hidden danger, trap, or pitfall which the owner has reason to believe will cause injury unless a warning is given. 38 Am.Jur., Negligence, Section 106 (page 769). We have no such condition here.

Even if we assumed this stairway constituted a hazard, it is universally recognized that there is no duty to warn when the defect or danger is obvious or should be observed by the injured person in the exercise of ordinary care. 65 C.J.S. Negligence § 50, page 541; Leslie Four Coal Company v. Simpson, Ky., 333 S.W.2d 498. For the several reasons given above, we can find no basis for including in the instructions a duty to warn about the obvious condition of the stairway.

It' is unnecessary to consider the possible liability of the owners of the building. The claim against them was based on the same issue of negligence and since the jury found against appellant on his claim against the defendant lessee, it could not have found liability on the part of the owners under the particular facts of this case.

Appellant further contends the court erred in denying him the right to prove the defendant owners of the building carried liability insurance. It is argued this evidence constituted proof the owners exercised control over the part of the premises where the accident happened. While it is true that evidence of this nature may be admissible to prove ownership of property (Gayheart v. Smith, 240 Ky. 596, 42 S.W. 2d 877), it is clearly not relevant on the issue here involved. Since the insurance covered the entire building and was a contract of indemnity, its existence had no tendency to prove the owners exercised dominion over any particular part of the premises. This evidence was properly excluded.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    RILEY CONSTRUCTION COMPANY, Inc., Appellant, v. Arvin E. CATES et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Rehearing Denied May 18, 1962.

      Ben B. Hardy, Hardy & Hardy, Louisville, for appellant.
    George B. Ryan, Clyde L. Breland, Jr., Stanley Badesch, Smith & Smith, Lee Curd Miller, Joe A. Wallace, Garner M. Petrie, Richard C. Oldham, Louisville, for appel-lees.
   CULLEN, Commissioner.

Appellant Riley Construction Company, Inc. (hereinafter called “Riley”) presented various claims in consolidated actions growing out of the collapse of a real estate subdivision development project. The judgment denied in substantial part the relief sought by Riley; hence this appeal.

Riley’s claims originate from a contract made with one Moss, original promoter of the subdivision, under which Riley was to grade and pave streets in the subdivision. The only provision of the contract with regard to payment for the work was:

“In consideration of the foregoing, first parties agree to pay the sum total of the contract price as follows: Second party, contractor, is to receive all of the net proceeds derived from the sale of all the lots as each lot is sold until the contractor is paid in full. It is understood and agreed, however, that there are two outstanding mortgages against the property, one in favor of H. C. and Alma B. Mann, and the other in favor of Lucien L. and Amanda Porter, which constitute prior liens on said property and which shall be satisfied and paid in full out of the first lots sold.”

Riley had no equipment and therefore subcontracted the work to two other companies. Only a relatively small portion of the street work ever was done.

Because of lack of adequate financing, the subdivision project never got off the ground. Some of the streets were laid out ■and a portion of the grading and paving was done, but no lots were sold. Creditors’ claims piled up, and eventually the land was sold at judicial sale. It brought no more than enough to pay off the two mortgages referred to in Riley’s contract, and the costs ■of the proceedings.

One of Riley’s claims (disallowed by the ■circuit court) was for a substantial amount •of damages for breach of contract, against Vista Hills, Inc. and Lucien L. Porter. The Vista Hills corporation took over the subdivision, and assumed the contract with Riley, after Moss had become entangled in hopeless financial difficulties. Porter was an officer and director (and perhaps the only one) of the corporation. Riley maintains that the corporation never complied with the statutory conditions precedent to doing business, and therefore, under KRS 271.095, Porter was individually liable for fhe debts and liabilities of the corporation.

Riley’s claim of breach of contract is ■somewhat nebulous. As far as the contractual provisions for payment are concerned there was no breach, because the contract provided only for payment from the sale of lots and no lots were sold. Perhaps there was an implied obligation on the part of Moss to have the streets laid out by engineers so that the street grading and paving work could be done, and otherwise so to manage the subdivision project as to enable lots to be sold, but for reasons hereinafter stated there is no basis for imposing such obligations on the corporation.

The corporation was organized to take over the subdivision after Moss had stranded it on the financial reefs. (At that time no work had been done under the Riley contract.) The evidence supports the conclusion of the trial court that Riley was an active participant in the plan to set up the corporation, and that everyone, including Riley, knew and understood that the corporation was merely a vehicle through which it was hoped that the subdivision project could be salvaged. Riley knew that the corporation had no money and that no one intended to put any money into it. It was clearly understood that no one would get paid except from the sale of the lots, and that the corporation was obligated only to try to work out some way to enable lots to be sold without any further capital’s being obtained.

Under these circumstances there is no ground upon which it could be said that the corporation breached any implied obligation of the contract with Riley. Since the corporation incurred no such liability, there was no liability which would attach to Porter as an officer.

Riley’s second claim is that because of false and fraudulent representations made by Porter, and the concealment of a “side contract” between Porter and Moss, as a result of which Riley was induced to cause his subcontractors to commence some of the grading and paving work, Porter should have been deprived of the lien of his mortgage (which would result in some of the proceeds of the judicial sale of the subdivision being available to pay such of Riley’s claims as were allowed). It is sufficient to say that the evidence sustains the finding of the trial court that there was no fraudulent misrepresentation or concealment.

Riley also contends that Porter did not prove the amount of his mortgage lien. In our opinion there was adequate proof of the original principal amount of the mortgage. Moss, the mortgagor, defaulted in the action and no claim was made on his behalf that the full original principal was not due. Riley did not prove that any payments had been made to reduce the principal, and we think the burden was on him to do so.

A further contention of Riley is that the court erred in determining that the land was indivisible for purpose of the judicial sale. A trial commissioner who heard the proof reported that the land was indivisible and after a hearing the court so found. In our opinion the court had adequate basis for the finding.

Riley makes several other contentions which are purely academic, because even if the contentions were upheld Riley would not benefit in the way of any practical relief on his various claims.

The judgment is affirmed.


author: HAMILTON, Justice. SMITH, Justice

text:
    INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. C. R. McGEE, Respondent.
    No. A-8747.
    Supreme Court of Texas.
    April 4, 1962.
    Rehearing Denied May 16, 1962.
    Barnes & Barnes, Beaumont, for petitioner.
    Stephenson, Stephenson & Thompson,. Orange, for respondent.
   HAMILTON, Justice.

This is a suit brought by plaintiff (respondent here) under the Texas Workmen’s Compensation Act to set aside an award of the Industrial Accident Board. The trial court set aside the award and entered judg1 ment for the plaintiff finding him totally and permanently disabled and awarding" compensation of $13,651.55. The insurance carrier appealed to the Tenth Court of Civil Appeals, and the judgment of the trial court was affirmed. 351 S.W.2d 359.

The plaintiff’s injury resulted from his slipping or jumping off a crane while he was working on a construction job. The evidence is disputed as to whether this slip or fall caused only a hernia or a combination hernia and back injury. These facts, however, are immaterial, as this opinion turns on defendant’s (petitioner’s) first point of error, which is:

“The Court of Civil Appeals erred in affirming the Trial Court’s action in ruling that the Judge was not disqualified to preside over the trial of this case, wherein the trial judge was required to fix the attorney’s fees, and he was a first cousin of Respondent’s counsel.”

The facts pertinent to this point of error were brought out in a hearing on motion for new trial. The record shows that the plaintiff hired Woodson E. Dryden to represent him in this case. Mr. Dryden appeared in behalf of the plaintiff before the Industrial Accident Board and he also filed plaintiff’s original petition in the 128th Judicial District Court, Orange County, Texas. At this point in the proceedings Mr. Dryden employed Mr. Ward Stephenson to Randle the case.

It is an undisputed fact that Ward Stephenson and the trial judge are related within the third degree of consanguinity, as they are first cousins.

Mr. Stephenson filed the first, second and third amended original petitions for the plaintiff. Mr. Stephenson and his law partner, Mr. Marlin Thompson, conducted the plaintiff’s case before the trial judge. However, the final judgment awarded one-fourth of plaintiff’s recovery.to Mr. Woodson Dryden only.

In the hearing on motion for new trial, Mr. Stephenson testified that there was no specific agreement between Mr. Dryden and himself as to fees. However, he indicated he would submit a statement of his fee to Mr. Dryden when the case was completed. He stated, “ * * * [Wjhatever charges I made is the way we customarily do, to take into consideration the success, likewise, of the litigation and if we are successful in any case, we feel that we would be in a position to take that into consideration in assessing our charges.”

The issue to' be decided in this case is whether plaintiff’s attorney, Ward Stephenson, is a “party” to this suit within the meaning of Article V, Sec. 11, Constitution of Texas, Vernon’s Ann.St., and Article 15, Vernon’s Texas Civil Statutes. Article 15 states:

“No judge or justice of the peace shall sit in any case wherein he may be interested or where cither of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case. Const. Art. S, Sec. 11.”

This Court held in the case of Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, that the plaintiff’s attorney in a workmen’s compensation case is a party, to the suit. This decision was reached primarily because of the provision in Article 8306, § 7d, Vernon’s Texas Civil Statutes, which requires the judge to award the attorney’s fees out of the plaintiff’s recovery. That opinion said:

“ * * * The record discloses that the plaintiff and his attorney by their pleadings invoked the jurisdiction of the court for the decision of that issue [attorney’s fees]. The attorney was directly interested in the decision of the question. He was one of the contending parties as against the employee as to the value of the services rendered by him and the amount of the fee to be allowed therefor, and it was within the power of the judge to favor him in the decision of that question. It can hardly be said that he was not a party, to and directly interested in the controversial issues thus presented. * * * ”

See also Texas Employers’ Insurance Ass’n v. Scroggins, Tex.Civ.App., 326 S.W.2d 606 (no writ hist.).

The Court of Civil Appeals does not quarrel with this reasoning, but in essence holds that Ward Stephenson was not a party to this suit because he was not the plaintiff’s attorney. Rather, the Court of Civil Appeals looked upon Mr. Stephenson as an employee of Mr. Woodson E. Dryden, plaintiff’s original attorney. It overruled the point of error now before us because it felt the evidence in the record reflected that Dryden employed Stephenson for a fee based on work performed, and that the final judgment awarded one-fourth of the recovery to Dryden and not Stephenson. Thus, the court reasoned that Stephenson was not a party to the suit.

Paragraph 9 of Plaintiff’s Third Amended Original Petition on which this suit was tried states:

“The plaintiff says that he has employed the attorneys whose names are signed to this petition to represent him in this behalf and has contracted to pay said attorneys such fee as the court may allow, not to exceed one-third of the recovery herein.
******
“STEPHENSON AND STEPHENSON
“WOODSON E. DRYDEN
“By /S/ Ward Stephenson
“Attorneys for Plaintiff
“Stephenson Building
“Orange, Texas”

These pleadings and the actual trying of the lawsuit by Ward Stephenson made it conclusive that he was the attorney for the plaintiff, and a party to the suit. It is not material that the trial court’s judgment did not award attorney’s fees to Ward Stephenson. What is material is that under the pleadings it was within the power of the trial judge, but for his disqualification, to have entered judgment awarding attorney’s fees to Ward Stephenson.

By this holding we do not intend to cast a shadow upon the trial judge. We have no doubt that the trial judge’s integrity is of the highest. However, as Chief Justice Willie stated in the case of Hodde v. Susan, 58 Tex. 389, 394, “It was the object of the Constitution to place judicial officers beyond the temptation which such circumstances would throw in their way.”

The judiciary must not only attempt to give all parties a fair trial, but it must also try to maintain the trust and confidence of the public at a high level. Article 15 is one aid in accomplishing these aims. This is aptly expressed in the case of Newcome v. Light, 58 Tex. 141, 145, where this court quotes from the New York Court of Appeals case of Oakley v. Aspinwall, 3 Comst. 547, which says:

* * * the first idea in the administration of justice is, that a judge must necessarily be free from all bias and partiality. * * * Mankind are so agreed in this principle, that any departure from it shocks their common* sense and sentiment of justice. * * * Partiality and bias are presumed from» the relationship or consanguinity of a* judge to the party. This presumption is conclusive and disqualifies the judge. * * * Where no jurisdiction exists-by law it cannot be conferred by consent, especially against the prohibitions-of a law which was not designed merely for the protection of the party to a¡. suit, but for the general interest of justice. It is the design of the law to* maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community. Their judgments become precedents which control the determination of subsequent cases; and it is-important in that respect that their decisions should be free from all bias.. After securing wisdom and impartiality-in their judgments, it is of great importance that the court should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community, is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind.’ ”

It is our opinion that Ward Stephenson is plaintiff’s attorney in this workmen’s compensation case and is a party to this suit as contemplated in Article 15, Vernon’s Texas Civil Statutes. Therefore, the judge of the trial court was disqualified to hear this cause.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded for new trial.

SMITH, Justice

(concurring).

The trial judge was disqualified. The judgment he entered in this case was void. Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482. This being true, all proceedings were a nullity. Any judgment rendered, regardless of whether for the plaintiff or defendant, should have been set aside and held for naught. The judgment cannot be void as to one party and only voidable as to the other.


author: BELCHER, Commissioner.

text:
    Troy Eugene HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 34414.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    See also 356 S.W.2d 670.
    Appellant represented himself.
    Henry Wade, Criminal Dist. Atty., Frank Watts, William F. Tucker, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery with firearms; the punishment, 35 years.

Stanley Foster, the operator of a service station, while testifying identified the appellant as one of two men who entered the service station about 11:30 P.M., June 17, 1961. The appellant asked about the restroom, then appellant’s companion, Menden-hall, exhibiting a gun as he entered, told Foster to “Freeze-”. While appellant was holding his gun against Foster’s body, Mendenhall asked where the money was and Foster pointed to the cash box, and told him that other money was in the desk. When Foster reached toward the desk, the appellant grabbed his arm and said “Get your —■ — hands out of the drawer.” * * * “If you don’t believe I will shoot you, put something on your head and I’ll blow it off, and then I’ll blow your — head off.” Mendenhall took the money from the cash box and the desk while appellant held his gun on Foster. The appellant also exhibited a knife and told Foster he would cut his throat and for him to take a good look at his face, because the cops were already after him, and to tell them that you saw me. He ordered Foster into the storage room and told him that if he stuck his head out of the door he would kill him, closed the storage room door, and cut the telephone line. After a brief time, Foster left the storage room and notified the officers.

Foster further testified that he had the care, control and management of the station, that the appellant and Mendenhall, without his consent, took more than $200 from the cash box and the desk, and that they placed him in fear of his life and serious bodily injury.

The appellant and Mendenhall, who had a gun in his belt at the time, were apprehended on June 19. Another gun and a stocking full of silver coins were found in the apartment where they were apprehended. Shortly thereafter, they were identified in a police line-up by Foster as the two men that robbed him at the service station on June 17. Foster testified that the two guns were similar to those used at the time of the robbery.

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

Appellant complains of the search of the apartment on the ground that the officers had no search warrant for the apartment or warrant for his arrest.

This contention does not show error because there is no evidence that the appellant owned, occupied, or controlled the building. Such a showing is necessary before the appellant is authorized to object to the testimony of the search or the results thereof on the grounds that the search was illegal. Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242.

No formal bills of exception appear in the record. There are no objections to the court’s charge or any specially requested charges.

The evidence is sufficient to support the conviction and on error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    Troy Eugene HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 34415.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    Appellant represented himself.
    Henry Wade, Criminal Dist. Atty., Frank Watts, William F. Tucker, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery with firearms; the punishment, 50 years.

Ruben Reeves testified that on the evening of June 16, 1961, he was in charge of operating a drive-in grocery in the City of Dallas. He was in the meat market and his assistant, the food checker, was by the cash register. About 9:40 P.M., two men entered the store and one of them, whom Reeves identified as the appellant, came to the meat counter, pointed a “six-shooter” at his chest, and told him that this “was a stick-up”. The appellant then told Reeves to put his hands on top of the counter and that if he didn’t the appellant would shoot him. Reeves testified that he did this and also later handed appellant his billfold because he was in fear of being shot. During this time, the other armed man was taking $525 from the cash registers and the assistant’s billfold. The telephone wires were then cut, and Reeves was told to stay where he was while the appellant and Mendenhall fled.

Reeves further testified that he had the care, custody and control of the $525 they took from the cash registers, and that the actions of the appellant put him in fear of his life or serious bodily injury.

Anne Allen testified that she had driven to the drive-in grocery for some soft drinks, and that while getting them someone stuck a gun in her back. When she turned around, this man, whom she identified as Mendenhall, slapped the pop bottle from her hand and asked for her car keys, which she hold him were in the car. Mendenhall got the keys, and when she kept staring at him after he came back in the store, he “clicked the gun”, and told her that “this is a gun” and to quit staring at him.

On June 19, Dallas Police Officers arrested the appellant, who was found hiding in a clothes closet, Mendenhall, who had a loaded revolver in his belt, and two companions in an apartment house. A loaded .32 revolver was found which the Officers and Reeves identified as appellant’s. Shortly thereafter, the appellant and Mendenhall were identified in a police line-up by Reeves and Allen.

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

There are no formal bills of exception, and the court’s charge to the jury has not been attacked in any manner.

Appellant complains of the search of the apartment on the ground that the officers had no search warrant for the apartment or warrant for his arrest.

In another case against the appellant, Holcomb v. State, Tex.Cr.App., 356 S.W.2d 669, the same contention was raised concerning the same search. For the reasons given in that case, the contention is also here overruled. See Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242.

The contentions raised by the appellant’s brief have been carefully considered but as they are not supported by the record, no error is shown.

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:
    Floyd LANIER, Appellant, v. The STATE of Texas, Appellee.
    No. 34447.
    Court of Criminal Appeals of Texas.
    April 18, 1962.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is receiving and concealing stolen property, to-wit, 5 rolls of hardware cloth valued at more than fifty dollars; the punishment, six years.

Bob Ritchie, a service man for Southwestern Electric Power Company, testified that he was in charge of a company substation where hardware cloth was stored, that five rolls of hardware cloth were taken on the date in question without his permission, that one roll of the hardware cloth cost the company $33.40, and, further, that he later identified the hardware cloth in the jail yard.

Willtrout, who was named in the indictment as the person from whom appellant received the stolen property, testified that he had known appellant some four years, that he and Hays stole the hardware cloth and took it to appellant’s farm and threw it over a fence, and that appellant paid him $20.00 for it the following night. Will-trout further testified that on a prior occasion appellant had pointed out two aluminum gates and stated he needed them, that he stole the gates and delivered them to appellant for $20.00, and that appellant had once helped him dispose of some wire that he had stolen from a lumber company. He testified that he had been convicted for the theft of the five rolls of hardware cloth.

One Hays also testified that he participated in the theft of the property in question.

John Webb testified that he and Will-trout stole and delivered some aluminum gates to appellant at his farm, that appellant asked if they had any trouble getting the gates and asked Willtrout to help him carry the gates into the barn.

Officers from the sheriff’s departments of Morris and Cass Counties testified that they went to appellant’s farm with a search warrant and a warrant for appellant’s arrest, that they found the hardware cloth in appellant’s barn, along with numerous other items of stolen property, and that they rented a two and a half ton truck to take the property to the jail.

Several witnesses testified that they identified items of property at the jail that had been stolen from them.

Appellant did not testify or offer any evidence in his behalf, and we find the evidence sufficient to support the conviction.

No formal bills of exception appear in the recoi'd, and no brief has been filed in appellant’s behalf.

By informal bill of exception, appellant complains that the trial court erred in permitting the State to prove by Will-trout and other witnesses that items of stolen property other than the hardware cloth had been delivered to appellant.

The trial court properly limited the consideration of this evidence in his chai-ge to the jury, and we find the testimony admissible to show appellant’s guilty knowledge, as well as motive, system and intent in receiving the property. Lytton v. State, 131 Tex.Cr.R. 654, 101 S.W.2d 564; Kaufman v. State, 70 Tex.Cr.R. 438, 159 S.W. 58; and Henderson v. State, 76 Tex.Cr.R. 66, 172 S.W. 793.

Appellant also complains by informal bill of exception that the trial court erred in admitting into evidence the confession, indictment, verdict, judgment and sentence in the case against Willtrout for theft. This evidence was properly limited by the trial court and was admissible to show that the property was in fact stolen by the thief named in the indictment. Pollan v. State, 157 Tex.Cr.R. 178, 247 S.W.2d 889.

No reversible error appearing, the judgment is affirmed.


text:
    J. L. LANDRUM, Appellant, v. The STATE of Texas, Appellee.
    No. 34379.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    Ray Stevens, Houston, for appellant.
    Wallace Barber, Dist. Atty., San Marcos, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, enhanced under Article 63, Vernon’s Ann.P.C., life.

The indictment alleged the theft of one hundred cedar posts of the value of over $50.00 and, for enhancement of punishment, alleged two prior convictions for burglary.

The prior convictions alleged were proved and admitted.

Hill Hutson, who lived about 100 yards from a cedar post yard in Comal County, owned by Lem Calhoun and operated by Harden Wallace, saw two pickup trucks in the cedar yard about midnight. After ¿he trucks were driven away, headed toward New Braunfels, he went to a neighbor’s home and reported to the sheriff’s office what he had seen.

Deputy Roman Knuepper, in response to the call, went immediately to a road intersection and, together with other officers, stopped two pickup trucks loaded with cedar posts. He testified that appellant was driving one of the pickups, a black GMC truck, and George Anthony Angold was driving the other, a red Ford pickup; that he asked Angold in appellant’s presence where he got the cedar posts, and “he said he just cut those cedar posts up near Boerne.”

Harden Wallace identified the cedar posts loaded on the pickup trucks as those missirs from the cedar yard. He testified that he counted the posts on the pickup, and there was no difference in the number and size or the marks between them and the missing posts.

Appellant testified that he cut the cedar posts found on the pickup truck he was driving and was taking them to his mother in Austin. It is apparent that the jury did not accept his testimony as true.

Appellant questions the sufficiency of the evidence to sustain the jury’s finding that the posts were of the value of over $50.00.

Harden Wallace testified, without objection, that the 101 posts, which he described by size and gave the reasonable market value of each such size, had a reasonable market value of $64.19 at the time and place they were removed from the cedar yard, that being the price at which such posts were sold at the yard.

Lem Calhoun testified that he owned three cedar yards, that the prices stated by Harden Wallace in his testimony were the selling prices for such posts in the three yards, and he considered such prices to be the reasonable market value on the day in question.

By cross-examination and by the testimony of a defense witness, it was shown that the price which was paid by the operators of cedar yards to the cutters for such posts was less than $50.00, and Lem Calhoun testified that in determining his price he took into consideration what he had to pay for the posts, plus overhead expenses, salaries, rent and insurance, and that he was selling posts in his various yards at the prices shown by the testimony of Harden Wallace.

The jury resolved the issues of fact, and we find the evidence sufficient to sustain the jury’s finding.

It is contended that the court erred in refusing to declare a mistrial after he had stated to the jury that they must observe the court’s admonitions “as the higher court will reverse on the slightest infraction of the rules.”

The question is not before this Court for review.

The court reporter’s certification that the statement complained of is not reported verbatim and was “among other things’1 stated by the court and the counsel’s objection that the court’s comments were “to the effect that the higher court will reverse on the slightest infraction” do not constitute a showing of the court’s actual instruction.

The court’s complete and exact instruction is of prime importance in a case of this nature, and there is no way of ascertaining what it was from the record before us.

The judgment is affirmed.


text:
    Frances Ramon LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34326.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    Rehearing Denied May 16, 1962.

      William C. McDonald, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder without malice; the punishment, two years.

No bills of exception appear in the record. There are no objections to the court’s charge or any specially requested charges.

Appellant strenuously challenges the sufficiency of the evidence to support the conviction.

Officer Wagner testified that when he arrived at the home of the appellant she was in the kitchen and the body of the deceased was on the kitchen floor. After he found a small hole in the left side of the chest of the deceased, the appellant told Officer Wagner that she had shot him, and gave the Officer a gun which had been recently fired containing one empty cartridge. He further testified that appellant told him that when she returned from taking the children to school her 16 year old, afflicted daughter told her that deceased had gotten in bed with her and had taken her panties off. She telephoned the deceased at his place of employment and, when he came home, they got in an argument and she shot him as he tried to take the gun away from her. When asked if she told him that the pistol went off accidentally, the officer replied: “No, sir; she said she shot him on purpose and intended to kill him”.

The appellant testified that she had seven children, five born of a former marriage and two since her marriage six years before to the deceased. On the morning in question, after returning from taking the children to school, her 16 year old, afflicted daughter told her about the deceased coming to her bed and taking her panties off. She telephoned the deceased and he returned home immediately. She testified that she asked him about these actions and when he continued to deny any misconduct with her daughter, she used the pistol to scare him and get him to tell the truth. When the girl related her experience in his presence, he then admitted his guilt, but became angry and threatened them. In the scuffle that followed, the gun went off accidentally and shot him in the chest. She further testified that she did not intend to kill him.

She called several witnesses who testified that her general reputation for truth and veracity and as being a peaceable and law abiding citizen was good.

At the close of the evidence, the plea of guilty which had been entered by the appellant in the beginning of the trial was withdrawn by the court and a plea of not guilty was entered for her.

The disposition of this case on appeal is made solely on the basis of a plea of not guilty.

Appellant first contends that the trial court erred in refusing her motion for an instructed verdict of not guilty when the state rested its case at the close of Officer Wagner’s testimony because of the insufficiency of the evidence.

After the refusal of her motion for an instructed verdict, the appellant, while testifying in her own behalf, gave her version of the killing.

The court or jury trying the case is not confined to the testimony of the state in determining the sufficiency of the evidence to support a conviction. They may look to all the evidence in the case, that offered by the appellant as well as that offered by the state, in determining whether the accused is guilty of the offense charged. The application of this rule to the facts in this case shows no error. 16 Tex.Jur.2d 394, Sec. 725; Cross v. State, 100 Tex.Cr.R. 88, 271 S.W. 621; Spears v. State, 103 Tex.Cr.R. 474, 281 S.W. 555.

It is contended that the court erred in overruling appellant’s motion for a new trial on the ground that the evidence is wholly insufficient to support the conviction.

According to the testimony of Officer Wagner, when the appellant gave him the gun at the scene shortly after the killing, she told him that she shot the deceased “on purpose and intended to kill him”. Testifying as a witness in her own behalf, she admitted that she was mad at the deceased and was holding the gun on the deceased at the time he was shot in the chest, but that she did not intend to kill him. The court charged the jury on the law applicable to murder without malice, aggravated assault, and the suspension of sentence.

The jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. They were authorized to accept or reject any or all of the testimony of the appellant. 24 Tex.Jur.2d 367, Sec. 710; Carpenter v. State, 104 Tex.Cr.R. 608, 268 S.W. 228; Robinson v. State, 119 Tex.Cr.R. 465, 42 S.W.2d 783.

The facts and circumstances are sufficient to warrant the finding of the jury that the appellant shot the deceased with a gun, causing his death, and support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    James H. RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34316.
    Court of Criminal Appeals of Texas.
    March 21, 1962.

      Mac L. Bennett, Jr., Normangee, John Lawrence, III, Bryan, for appellant.
    Gus L. Lanier, Dist. Atty., Centerville, D. Brooks Cofer, Jr., County Atty., Bryan, Bryan F. Russ, Hearne, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted in the District Court of Brazos County, after a change of venue from Leon County, for the offense of murder and his punishment assessed at confinement in the penitentiary for forty years.

The State’s evidence shows that the deceased lived and worked on the farm of Elbert F. Kitchen located approximately a mile and a half east of Flynn in Leon County. On Sunday night October 23, 1960, appellant came to Kitchen’s home on the farm around 9:30 o’clock on foot and after entering said to Kitchen “Your boy’s crazy”, referring to the deceased. Upon inquiry by Kitchen as to what he meant, appellant replied “Well, he’s shooting at me”. Appellant then told Kitchen that he had been to the deceased’s house, that they had an argument about a pickup and that he would have to get a Mr. Ben Lee to go to the deceased’s house and get his pickup. Kitchen told appellant that he would take him to his home and that he would go after appellant’s pickup. Thereupon, Kitchen took appellant to his home in Flynn and the next morning, October 24, Kitchen returned to Flynn and took appellant to his work. Kitchen returned to the farm and then went to the deceased’s house around 7:30 A.M. Upon entering the house he found the dead body of the deceased lying on the bed. A pool of blood was in the yard and there was a trail of blood inside the house leading from the door to the bed. An old shot gun containing a cartridge which had been snapped was standing against a tree in the yard and inside the house was a 22 rifle by the door. Neither of the weapons appeared to have been recently fired. An autopsy performed upon the deceased revealed one bullet wound, the bullet having entered the chest, lacerated the heart and lodged in the body. Dr. Jesse Boyd Heath, the physician who performed the autopsy, testified that the cause of death of the deceased was hemorrhage from the bullet wound. In the autopsy a 22 calibre bullet was removed from the deceased’s body.

On October 24, appellant was taken to Waco around noon by Deputy Sheriff Ivan Bell and Gus Lanier, then County Attorney of Leon County, where he was questioned by Thad Johnson, interrogator for the Department of Public Safety. In the interrogation appellant told Johnson that he had shot the deceased with a 22 rifle after an argument. Appellant stated to Johnson that he shot the deceased as he was standing in front of his house and after firing the shot he threw the rifle in a stock tank nearby. It was brought out on cross-examination that appellant told Johnson in the conversation that before he' shot the deceased, the deceased had fired two shots at appellant with a gun. In the conversation appellant drew a diagram on a piece of paper showing the location of the tank and where the gun would be found. County Attorney Lanier then advised Highway Patrolman Hindman by telephone of such information. Officer Hindman proceeded to the stock tank on the afternoon of October 24 where a search was made for the rifle but it was not found. The following morning, October 25, after appellant had accompanied the officers to the location of the tank, the search was continued. At such time the 22 rifle containing one fired cartridge was recovered from the tank.

Appellant did not testify but called a man and his wife who lived near the deceased who testified that on the night of the shooting they heard two gun shots which appeared to come from the direction of the deceased’s home. A witness was also called who testified that on the morning after the shooting he found two empty 22 rifle cartridges in the yard at the deceased’s home.

In submitting the issue of appellant’s guilt to the jury, the court charged the jury on the appellant’s right of self defense against real or apparent danger of death or serious bodily injury from an unlawful attack by the deceased.

By their verdict, the jury resolved the defensive issue against appellant and we find the evidence sufficient to sustain the judgment of conviction.

By bill of exception No. 1 appellant complains of the court’s refusal to give his requested special charge No. 1 which would have instructed the jury as follows:

“GENTLEMENT OF THE JURY:
“You are further instructed that if the deceased, Clyde Watson, immediately before the homicide, shot at the defendant, James H. Richardson, with a gun, then the law presumes the deceased, Clyde Watson designed to inflict an injury upon the defendant, James H. Richardson, causing death or serious bodily injury to the said James H. Richardson.”

The court, in charging the jury on appellant’s right of self defense, instructed in paragraph 10 of the charge as follows:

“You are further instructed that if you believe, or have a reasonable doubt, that such deceased Clyde Watson was on the occasion in question armed with a gun, and was attempting to murder or inflict serious bodily injury upon the defendant, it will be presumed that the deceased designed to inflict such injury upon the defendant.”

While neither the requested charge or the charge given by the court were complete and entirely proper charges under Art. 1223, Vernon’s Ann.P.C., the refusal of appellant’s requested charge does not present reversible error. Whitsel v. State, 165 Tex. Cr.R. 451, 308 S.W.2d 499. Appellant made no objection to the instruction given by the court. Appellant’s requested instruction was insufficient to point out any error therein. We find no error in the instruction given by the court that would warrant a reversal under the provisions of Art. 666, Vernon’s Ann.C.C.P.

Appellant complains of the court’s action in permitting the Witness Thad Johnson to testify as to appellant’s statements to him relative to the location of the rifle with which he shot the deceased over the objection that he was under arrest and the statement was not reduced to writing after he had been duly warned. Appellant’s statement to the witness after his arrest which led to the finding of the murder weapon was admissible as an oral confession under the exception contained in Art. 727, V.A. C.C.P. Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915, and Edmond v. State, Tex.Cr.App., 336 S.W.2d 946. We are unable to agree that because the rifle was not found until the day following appellant’s statement to the witness as to where it was located and after appellant had accompanied the officers to the scene that it was not shown to have been found as the result of such oral statement.

Appellant’s remaining contention presented by bills of exception No. 2 and 3 is that counsel for the State committed reversible error in his opening argument to the jury when he stated:

“Why is it that a man claiming self defense would throw his gun in the tank. The only weapon, apparently, that he had ?”

Appellant objected to such statement on the ground that it was a direct reference to his failure to testify, which objection was by the court overruled. Thereupon, appellant moved for a mistrial which was by the court denied.

In Hart v. State, 163 Tex.Cr.R. 472, 293 S.W.2d 659, we said “For the argument to offend against the statute, Art. 710, V.A. C.C.P., prohibiting allusion to or comment upon the failure of a defendant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant’s failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion thereto.”

We are unable to agree that the language used by the prosecutor was a reference to appellant’s failure to testify. The statement was a reasonable comment on the evidence and does not present error. Elliff v. State, 148 Tex.Cr.R. 29, 184 S.W.2d 622.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner. MORRISON, Judge.

text:
    Herbert (Cat) BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 33879.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Rehearing Denied Feb. 7, 1962.
    Charles S. McMillian and J. L. Smith (appeal only), San Augustine, for appellant.
    William E. Carroll, Dist. Atty., Jasper, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for assault with intent to murder; the punishment, 10 years confinement in the penitentiary.

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

The evidence, viewed in its most favorable light to the State, reflects that on the night in question the injured party, Manse Mitchell, who was a night watchman for the City of San Augustine, went to a place in the City around 1 A.M., known as “Lillie Bee’s”, to check on a disturbance. After he had gone inside and started to his automobile to leave, three “boys” were standing outside of the place talking. One remarked, “Wonder who in the hell he is looking for”; another said, “I don’t give a damn who he is looking for,” to which another replied, “You better hush or he will hear you.” Thereupon the injured party walked to where the three were standing and said, “Who is that doing that smart popping off here?” and appellant said, “Ain’t nobody doing no .popping off.” The injured party then stated, “Yes, somebody is trying to get smart sounds like to me * * * what is your name?” Appellant replied, “I don’t have to tell you my name,” to which the injured party responded, “No, you don’t have to, but I’m asking you what is your name.” Appellant replied, “By God I told you I don’t have to tell you my name.” Thereupon the injured party hit appellant with a blackjack and a scuffle ensued between them. In the scuffle appellant cut the injured party with a knife and during the encounter said, “Do you want me to kill you?”, to which the injured party replied, “No, I don’t want you to kill me * * * I am not ready to die,” to which appellant replied, “Well, I’m a goddamn good notion to kill you.” The injured party reached for his gun, removed it from the holster and as he was getting in a position to shoot, someone hit his elbow and it dropped to the ground. Appellant put his foot on the gun and said, “No you won’t get that”; then picked up the gun and said, “Do you want this?”, to which the injured party replied, “Yes, I want it.” Appellant said, “You can’t get it, but you can get every goddamn one of them that’s in it. * * * You see that car, get in it or I’ll put everyone of them in you.” Thereupon the injured party got in his car and as he drove away heard some shots, none of which hit him or the car.

From the scene the injured party drove to a hospital where he received first aid treatment by a nurse for the wounds which he received in the scuffle, but no doctor was called. The wounds consisted of several cuts on his body which he described as a cut in the eyebrow, the end of a finger cut off and two cut places in his back. The nurse who rendered first aid described the wounds on the injured party as two cuts in the back around the shoulders, two and three inches long, but not deep enough to require sutures and half of the fingernail and tip of the right forefinger cut off.

The injured party after leaving the hospital drove around the rest of the night looking for appellant. His gun was recovered later in the night at appellant’s home. Appellant was arrested by the injured party the following morning and a pocket knife was taken from him which was introduced in evidence by the State.

Appellant, as a witness in his own behalf, testified that before the difficulty he had his knife in his hand trimming a match ; that when the injured party struck him, he grabbed the injured party and put his arms around him, but did not try to cut him. Appellant admitted that when the injured party left the scene he picked up the gun and fired it four times in the air, but stated that he did not intend to kill him.

Appellant insists that the evidence is insufficient to support the conviction because the proof does not show that he had the specific intent to kill the injured party.

In Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744, 745, this Court in stating the rule controlling the sufficiency of the evidence to show an intent to kill said:

"The specific intent to kill is an essential element of the offense of assault with intent to murder. Art. 1160, P.C., Vernon’s Ann.P.C. art. 1160. Such intent may be inferred when the instrument used in committing the assault is a deadly weapon. If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and circumstances. If it is possible that death might have been inflicted by the weapon used, and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. Branch’s P.C. sec. 1636; Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 802, 1016; Basquez v. State, 114 Tex.Cr.R. 602, 26 S.W.2d 206; Rose v. State, 123 Tex.Cr.R. 261, 58 S.W.2d 526.”

An ordinary pocket knife is not per se a “deadly weapon” and its character as such rests upon the size and shape of the blade and the mode and manner of its use. Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517.

The wounds inflicted on the injured party may be looked to in determining whether or not the knife used was a deadly weapon. 4 Branch’s Ann.P.C. 2nd ed., sec. 1815, p. 175; Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890.

We find the evidence, under the rules stated, insufficient to show that appellant assaulted the injured party with the intent to kill.

The pocket knife used by appellant was not shown to be a deadly weapon per se. Not being a deadly weapon per se, the intent to kill may not be inferred from its use.

The injuries sustained by the injured party were not of a serious nature.

At no time during the difficulty did appellant stab the injured party, but as testified to by the injured party appellant was “drag-cutting” him. The manner in which appellant used the knife does not warrant the conclusion that it was a deadly weapon.

While the evidence shows that appellant fired the gun, as the injured party left the scene, it is undisputed that he did not shoot the gun in his direction.

The surrounding facts and circumstances are insufficient to show that appellant had the intent to kill.

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

Opinion approved by the Court.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

In addition to what we said in our original opinion, we call attention to the failure of the court to respond to appellant’s request for an instruction as to appellant’s right to exercise reasonable force in extricating himself from an illegal arrest. The facts clearly called for such a charge. Mitchell v. State, 135 Tex.Cr.R. 176, 117 S.W.2d 443, and Grafft v. State, 134 Tex.Cr.R. 30, 113 S.W.2d 546.

The State’s motion for rehearing is overruled.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Wayne SEAY, Appellant, v. STATE of Texas, Appellee.
    No. 33237.
    Court of Criminal Appeals of Texas.
    April 5, 1961.
    Rehearing Denied Jan. 17, 1962.

      O’Brien Stevens, Houston, Pat Beadle, Clarksville, A. R. Schwartz (on appeal only), Galveston, Cofer & Cofer (on appeal only), Austin, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is embezzlement; the punishment, 2 years.

The witness Kainer testified that he entered into a stock subscription agreement with the Southern Enterprise Corporation through negotiations with appellant, its president, and that some time later he sent his check payable to the corporation in the sum of $4,950 to the home office in satisfaction of such agreement, and the stock was issued to him. The check was endorsed by a stamp showing the corporation’s name and by the signature of appellant; the proceeds were deposited to appellant’s personal account, and the corporation received none of the same.

The above facts seem to be undisputed. It was appellant’s defense that his trade with Kainer was a personal one and not as a representative of the corporation, that he instructed the officers and employees of the coi'poration to debit his stock account and transfer a portion of his personal stock to Kainer but that they evidently failed to do as directed. A former officer of the corporation and a former employee corroborated his testimony in this regard. His claim was that when he deposited Kainer’s check to his personal account he was not guilty of embezzling funds belonging to the corporation, as alleged in the indictment, but was merely consummating a private transaction.

The records of the corporation, which were at the time of the trial in custody of the Federal court in a bankruptcy proceedings, indicated that no transfer of personal stock from appellant to Kainer had been made, and the jury were authorized in rejecting appellant’s defense. We find the evidence sufficient to support the conviction and shall discuss the many questions raised by brief and in argument.

We overrule appellant’s contention that his act of appropriation is the subject of civil litigation but not punishable as a crime, as well as his contention that there was a variance between the indictment and the proof. The indictment charged him with embezzling $4,950 in money. The proof showed that he deposited the check to his personal account and thereafter withdrew a substantial portion of such sum. Reliance is had upon Moore v. State, 88 Tex.Cr.R. 624, 225 S.W. 261, wherein this Court held that embezzlement had not been shown because the proof failed to show that the accused sold any of the goods entrusted to him. Appellant in the case at bar admitted that he deposited the check which was payable to the corporation to his own personal account, which is sufficient, and Moore is not here controlling.

Appellant next contends that the indictment is defective because it fails to allege the value of the $4,950 and fails to allege that the “in money” was money of the United States of America. The rule announced by the Court of Appeals in Reside v. State, 10 Tex.App. 675, relied upon by appellant, has long since been discarded by this Court, as will be seen by an examination of the holdings of this Court in Dowdy v. State, Tex.Cr.App., 64 S.W. 253; Hamer v. State, 60 Tex.Cr.R. 341, 131 S.W. 813; Wray v. State, 89 Tex.Cr.R. 632, 232 S.W. 808; Collins v. State, 92 Tex.Cr.R. 388, 244 S.W. 153; Hunter v. State, 19 Tex.Cr.R. 558, 45 S.W.2d 969; Patrick v. State, 164 Tex.Cr.R. 427, 299 S.W.2d 302; and 5 Branch’s Ann.P.C., 2nd Ed., Sec. 2823, p. 332.

Appellant objected to the charge as given and made several requested charges relating to appellant’s defense that he had the right to appropriate the proceeds' of the check to his own use. We have examined the charge carefully and have concluded that it fully submits his defensive theory when it instructed the jury to acquit if they found that appellant acted under a claim of right and in good faith and believed that the money belonged to him. We have been cited ño authority, and know of none, which holds that the giving of the converse of the above charge constitutes error.

Objection was made to the introduction of the stock subscription agreement and the stock certificate because there was no proof that the corporation had been granted permission to issue such stock. A very similar contention was before this Court in McCue v. State, 124 Tex.Cr.R. 624, 65 S.W.2d 314, 315, where a bond salesman was charged with embezzling the fruits of his sales and the court refused to permit the accused to prove that his company had no authority to sell bonds in Texas. Judge Christian, in speaking for the Court, said:

“ * * * the fact that the owner of the money or property embezzled obtained it illegally does not constitute a defense to an indictment against one who embezzles it from such owner. * * * »

Appellant objected to the introduction of the check on the grounds that it bore the notation, “Int. $450.00,” while the check set forth in the indictment did not contain such notation. We deem it sufficient to observe that Kainer testified that after his check cleared the bank he placed such notation thereon as income tax information, and to call attention to the holding of this Court in Brown v. State, Tex. Cr.App., 324 S.W.2d 15, and the cases there cited.

Appellant’s last complaint relates to the testimony of two certified public accountants wherein they stated that they had examined the books and records of the corporation and were unable to find any evidence that the corporation had received the $4,950 in question or had received any consideration for the issuance of the stock to Kainer. The grounds of the objection were that the books were not properly identified as the records of the corporation. The witness Lawther testified that he was employed by the corporation to make an audit of their books before the return of this indictment and that shortly prior to the trial he had again examined the records which were then in the possession of the witness Green. Green testified that the books came into his possession by virtue of an order of the Federal District Court, and such order is a part of this record. We have concluded that this constitutes ample proof of the authenticity of the records. In addition, appellant questioned his witnesses- concerning entries found therein and thus admitted their authenticity.

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

WOODLEY, P. J., absent.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

In his motion for rehearing, appellant strenuously insists that the court’s charge was erroneous because it did not instruct the jury, as requested by appellant, that the gist of the offense of embezzlement is the fraudulent intent and that before they could convict appellant they must find that the embezzlement, misapplication or conversion of the money, if any, by appellant was done with such an intent.

The court defined the offense of embezzlement in the terms of Art. 1534, Vernon’s Ann.P.C. and further instructed the jury that to constitute the offense of embezzlement it is necessary that there be the following:

“(1) the defendant’s agency whereby he was charged with the duty of receiving the property.
“(2) the receipt of the property by the defendant.
“(3) that the defendant received the property by virtue of his agency.
“(4) the fraudulent conversion or misapplication of the property by the. defendant.”

Such four enumerated requirements are, the essential elements of the offense of embezzlement. 21 Tex.Jur.2d, par. 25, p. 613-614; Fellers v. State, 138 Tex.Cr.R. 307, 136 S.W.2d 217.

In applying the law to the facts, the court required the jury to find among other things, before convicting appellant, that appellant did fraudulently embezzle, misapply and convert to his own use the money belonging to the Southern Enterprise Corporation.

It is held that it is not necessary for the court to explain to the jury thq meaning of the terms “embezzlement” and “fraudulent misapplication” as their meanings are well understood. 22 Tex.Jur.2d, par. 138, p. 30; Jackson v. State, 44 Tex. Cr.R. 259, 70 S.W. 760,

Under the court’s charge the jury was required to find, before convicting appellant, the four essential elements of the offense of embezzlement and to specifically find that he did fraudulently embezzle, misapply and convert to his own use, the money belonging to the Southern Enterprise Corporation.

While, in order to constitute the offense of embezzlement, the appropriation or conversion must be perpetrated with a fraudulent intent the court’s failure to give appellant’s requested instruction, relative to said intent, does not present reversible error.

Appellant further insists that the court’s charge was erroneous because it did not affirmatively submit to the jury as requested by him, his defensive theory that he was selling his own stock.

Three requested charges were presented by appellant to the court and were refused,, ■which would have instructed the jury in substance to acquit appellant if they believed or had a reasonable doubt thereof that at the time appellant received and deposited the check from Kainer, he intended to sell and transfer his stock in the corporation to Kainer.

In submitting appellant’s defense to the jury the court instructed the jury as follows :

“You are further instructed as a part of law of this case that if you believe, or have a reasonable doubt thereof that the defendant, WAYNE SEAY, acted under a claim of right and in good faith and believed that the money alleged in the indictment to have been embezzled, misapplied and converted, if it was embezzled, misapplied and converted belonged to him the said WAYNE SEAY, then you shall acquit him and say by your verdict ‘not guilty’.
“However, if you believe from the evidence beyond a reasonable doubt that the defendant, WAYNE SEAY, did not act under a claim of right and did not act in good faith and did not believe that the money alleged in the indictment to have been embezzled, misapplied and converted, if it was embezzled, misapplied and converted, belonged to him the said WAYNE SEAY, then you will find against the defendant on this issue.”

We remain convinced that the charge as given by the court, was sufficient to submit appellant’s defensive theory to the jury that he was selling his own stock in the corporation.

Nor do we agree that the court’s action in giving the converse of the defensive charge constituted a comment upon the weight of the evidence and was error. Walker v. State, 52 Tex.Cr.R. 293, 106 S.W. 376.

Remaining convinced that the case was properly disposed of in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


author: PER CURIAM. BELCHER, Commissioner.

text:
    Frank Rhea FOLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34433.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    On Rehearing April 25, 1962.
    T. M. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   PER CURIAM.

The offense is driving while intoxicated^ the punishment, 3 days in jail and a fine of' $50.00.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing; is presented for review.

The judgment is affirmed.

ON APPELLANTS MOTION FOR REHEARING

BELCHER, Commissioner.

The record as perfected shows that the-statement of facts and formal bills of exception were timely filed in the trial court-, and are now properly before this Court.

The testimony of the state sufficiently shows that the appellant was guilty as-charged. Testifying in his own behalf, the appellant denied that he was intoxicated and' stated that his physical appearance was due-to his diabetic condition.

Bill of Exception No. 1 shows that Witness Young was called by the appellant-on the issue of his reputation for sobriety-The bill recites that if he had been per--mitted to do so, Witness Young would have testified that he was acquainted with the appellant and his general reputation in the community in which he lived for sobriety, and that said general reputation of the appellant for sobriety was good.

The trial court erred in sustaining the state’s objection and in excluding the proffered testimony. Jean v. State, 163 Tex. Cr.R. 533, 294 S.W.2d 406; Commarrilo v. State, 164 Tex.Cr.R. 319, 299 S.W.2d 128; Barber v. State, Tex.Cr.App., 324 S.W.2d 553.

Appellant’s motion for rehearing is granted and, for the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Junior Ray HOLLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 34442.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The indictment charged that appellant, with malice aforethought, made an assault upon Sandy A. Taylor, W. L. Davis, and V. G. Grady with intent to kill them.

At the close of the evidence, the trial court submitted the case to the jury under a charge authorizing conviction of assault with intent to murder with and without malice and of aggravated assault, and the jury returned a verdict finding appellant guilty of aggravated assault, and assessed his punishment at six months in jail and a fine of $200.00.

V. G. Grady, a Brownwood police officer, was the sole witness for the State. He testified that he and Officers Davis and Taylor went to the house in question to check on a report that a man was beating a little girl; that they went up to -the house and knocked on the door; that appellant responded by asking, “Who is it?”; that they informed him they were police officers; that appellant then came from a back room into the living room, armed with a .22 caliber rifle, and stated, “I am going to kill some g— d-cops”; that the officers then drew their pistols and asked appellant to put his gun down; that appellant replied, “I’ll put it down if you’ll put your guns up”; that the officers put their guns in their holsters and kept talking to appellant, who continued to hold the rifle on them; that Officer Davis worked the screen door open with his foot and they rushed appellant and disarmed him, and that the rifle was loaded.

Officer Grady further testified that they had no warrant for appellant’s arrest and had not intended to arrest him.

Appellant did not testify or offer any evidence in his own behalf, and his sole contention on appeal is that the evidence is insufficient to support the conviction because he had the right to defend himself against an illegal arrest.

In all the cases cited by appellant in support of his contention, the officers had either arrested the defendant illegally or were attempting to do so when he exerted force to extricate himself. In the case at ■bar, the uncontroverted evidence reflects that the officers, were merely investigating a reported disturbance, that they did not intend to arrest appellant and that they had made no attempt to arrest him prior to the time he made the assault upon them.

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


text:
    William C. BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34559.
    Court of Criminal Appeals of Texas.
    April 25, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist.- Atty., Carl E. F. Dally, Robert E. Delany, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of heroin; the punishment, twenty years and one day.

Five officers of the City of Houston Police Department went to the apartment of the appellant to execute a search warrant on October 3, 1960. After entering the apartment, they went to the bedroom where they saw the appellant and a female, Mabel Elizabeth Wells. They also noticed a plastic vial on top of the headboard of the bed, and, when the appellant reached for the vial, Officer Chavez quickly moved to him and took possession of the vial. The vial contained 23 capsules and 14 tablets. The officers also found several cellophane papers which they identified as being paper in which heroin is commonly wrapped.

Proof was offered that an analysis made by a chemist showed that each of the capsules contained heroin, four of the tablets contained dilaudid, and ten tablets contained amidone.

The appellant did not testify but called one witness, Mabel Elizabeth Wells. She testified that at the time the officers entered the apartment the appellant was asleep, and it was she who reached for the vial on the headboard of the bed; that the vial did not belong to the appellant, and he did not know it was there. She further testified that another female, whose name she did not know, had left the vial and she was keeping it for her.

There are no formal bills. No brief has been filed on behalf of the appellant.

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

Opinion • approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Ex parte John Joseph MORIN.
    No. 34470.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    Relator represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Petitioner is serving a life sentence from Wilson County for felony theft (punishment enhanced under Art. 63, P.C.) affirmed by this Court in Morin v. State, 346 S.W.2d 327.

The judgment is attacked as void on the ground that the offense was barred by limitation when the indictment was returned on October 11, 1960, it alleging that the offense was committed on or about September 27, 1955.

The indictment further alleged that the petitioner was absent from the state from the 23rd day of February, 1960, until the 19th day of August, 1960.

Art. 179, Vernon’s Ann.C.C.P., provides that an indictment for felony theft may be presented within 5 years and not thereafter. Section 1 of Art. 183, V.A.C.C.P., provides that the time during which the accused is absent from the state shall not be computed in the period of limitation.

An examination of the record on appeal reveals that the undisputed evidence was that the petitioner herein escaped from jail and was in the State of California during the time the indictment alleged he was absent from the state, and that there was no complaint that an issue was not submitted to the jury.

It is not error to fail to charge on limitation if there is no issue or question of limitation raised by the testimony. 1 Branch’s Ann.P.C.2d 639, Sec. 661, and cases cited.

Petitioner’s contention that the offense was barred by limitation when the indictment was returned is overruled.

The petition is denied.


author: McDonald, judge.

text:
    Aaron BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 34582.
    Court of Criminal Appeals of Texas.
    April 25, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Under an indictment charging assault with intent to murder, appellant was convicted of assault to murder without malice and his punishment assessed at confinement in the penitentiary for two years.

No statement of facts or bills of exception accompany the record.

All proceedings appear to be regular and nothing is presented for review.

The trial court failed to give effect to the indeterminate sentence law. Accordingly, the sentence is here reformed so as to fix appellant’s punishment at not less than one year nor more than two years in the penitentiary.

As reformed, the judgment is affirmed.


text:
    Willie Lee BURRAGE, Appellant, v. The STATE of Texas, Appellee.
    No. 34481.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    Bill Stephens, Wynn G. Stanton, Dallas, for appellant.

      Henry Wade, Dist. Atty., John Rogers, Robert Maloney, O. H. Harris and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 20 days in jail and a fine of $50.

The sole ground for reversal is the contention that the evidence is insufficient to sustain the conviction.

Police Patrolmen Hutson and Litherland stopped the automobile appellant was driving because it fitted the description of a car that had been involved in a hit and run accident. It proved not to be such car, but as a result of the officers’ conversation with appellant and their observation of him, the manner of his speech and his walk, and the odor of alcoholic beverage on his breath, they formed the opinion that he was intoxicated.

Appellant testified that he had not consumed more than four large glasses of beer and, in effect, testified that he was not intoxicated.

Officer Hutson testified, in part:

“A. I asked him if he had had anything to drink, an alcoholic beverage, and he said, ‘Yes,’ he had had quite a few beers.”
“Q. What was his manner of walk at this time? Why was it you assisted him? A. He was swaying, and walking along, hobbling.”
“Q. And, during this period of time that you talked with him, what was his manner of speech, how did he form his words and speak to you? A. His speech was thick, and at times it was incoherent.”
“Q. There were six cans of beer in the Defendant’s automobile ?
“A. Yes, sir.”
“Q. And, how was his walk at this time ? A. It was swaying.
“Q. And, did you observe his eyes ? A. Yes, sir, I did.
“Q. And, what was the condition of them at that time ?
“A. They were bloodshot.
“Q. Again, relating both to the scene, and while you had the Defendant in the jail office, did you smell anything on his breath? A. Yes, sir, I smelled an alcoholic beverage breath.”
“Q. Now Officer Hutson, I believe you stated that you had been on the police force seven years?
“A. Yes, sir.
“Q. And, during this period of time, have you had the occasion to serve or handle few or many people under the influence of alcohol?
“A. I have handled many, many people under the influence of alcohol.
“Q. And, based on this experience on the police force, and based on your observation of the defendant, Willie Lee Burrage, on the 12th day of November, 1960, about 12:30 A.M., did you form an opinion as to whether or not the Defendant was intoxicated or under the influence of intoxicating liquor ? A. He was intoxicated.”

Patrolman Litherland’s testimony was to the same effect.

In describing the manner in which appellant walked, he testified: “He was walking in a weaving, staggering, unbalanced condition”, whereas Patrolman Hutson testified on cross-examination: “He didn’t stagger, he was swaying — that he was taking steps to the side, but he was listing more or less and lean — over at an angle, not staggering.”

The discrepancy mentioned, together with the fact that one of the officers testified that he assisted appellant in walking whereas the other testified that he held appellant’s arm and did not even let him walk by himself, is pointed out in appellant’s brief.

There being sufficient evidence to support the jury’s verdict, the discrepancies in the testimony of the officers do not render such evidence insufficient to sustain the conviction. Singleton v. State, 150 Tex.Cr.R. 372, 200 S.W.2d 1015.

The judgment is affirmed.


text:
    John Henry EDISON, Appellant, v. The STATE of Texas, Appellee.
    No. 34457.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    Duke Taylor, Center, for appellant.
    Crawford Parker, Jr., County Atty., Carthage, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while under the influence of drugs; the punishment, a fine of $225.

No statement of facts accompanies the record.

Appellant has filed a brief in which he attacks the validity of the complaint and information upon the ground that in a single count he is charged with operating the motor vehicle upon a public highway while intoxicated, and while under the influence of drugs, which are separate and distinct offenses.

No motion to quash or exception to the information was filed in the trial court. Only the offense of which appellant was found guilty was submitted to the jury. No motion for new trial or in arrest of judgment was filed. The information is attacked as duplicitous for the first time in this Court.

An information charging more than one offense in the same count is subject to motion to quash for duplicity. Bush v. State, 91 Tex.Cr.R. 296, 238 S.W. 664 Such an information is not void, and the objection that it was duplicitous raised for the first time after verdict comes too late. Roberts v. State, 125 Tex.Cr.R. 101, 67 S. W.2d 283.

The judgment is affirmed.