author: PALMORE, Chief Justice.

text:
    ROBERT SIMMONS CONSTRUCTION CO., Inc., Appellant, v. BIRMINGHAM FIRE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied March 10, 1967.
    Wilbur Fields, Louisville, for appellant.
    Robert G. Breetz, Lively M. Wilson, Louisville, for appellee.
   PALMORE, Chief Justice.

The appellant corporation, Robert Simmons Construction Co., Inc., was a prime contractor on a construction project. One of its subcontractors defaulted in payment of a supplier. The supplier, Powers Regulator Co., sued and obtained judgment against Simmons and its surety, National Union Fire Insurance Company, in the principal amount of $18,602 on their bond guaranteeing payment for all labor and materials furnished on the project. In Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901 (1965), the judgment was affirmed as to Simmons and reversed for further proceedings on the claim against National Union. This appeal relates to subsequent proceedings in the circuit court.

The mandate pursuant to final disposition of the first appeal was issued June 4, 1965. In due course Powers moved for a judgment against Birmingham Fire Insurance Company, the present appellee, as surety on a supersedeas bond filed in connection with the first appeal. Including interest and the 10% damages provided by KRS 21.130, the aggregate amount then payable was slightly over $28,400. In responding to the motion Birmingham stated that it knew of no defense to the motion; that it had called upon Simmons to satisfy the judgment or to assert whatever defense it might have against the bond; and that it believed Simmons would claim the bond was invalid on the ground that Simmons had not authorized its execution. Birmingham objected to the entry of a judgment against it until the validity of the bond was determined.

At this point the record reflects some confusion, which bears mention only because a point is made of it in the brief for Simmons. Birmingham’s response was served on August 4, 1965, with notice that it would be brought on for hearing on August 13, though on August 2 Birmingham had served a notice that on August 13 it would tender a judgment, thereto attached, which in substance recited that Birmingham had paid Powers and awarded judgment to Birmingham against Simmons in the same amount. Actually, Birmingham had not yet paid Powers and did not do so until August 18. On August 10 Powers served notice that on August 13 it would tender a judgment, as attached to the notice, awarding recovery by Powers against Birmingham and, upon payment thereof, by Birmingham against Simmons. Despite their inconsistency the trial judge signed both judgments.

As between the two judgments, obviously the one prepared by Powers and served August 10 is correct, as it is in accordance with the facts. Both having been entered the same day, it may be presumed that the correct superseded the incorrect one. The argument that because Birmingham tendered and caused to be signed an erroneous judgment reciting that it had paid Powers, Simmons somehow is entitled to relief from the correct judgment is simply incomprehensible. Surely it can be laid quietly to rest without further ceremony.

So far as the record discloses, Simmons did not make any written response to the motions for judgment by Powers and Birmingham. On September 8 and 10 orders were entered showing that Birmingham had satisfied the judgment in favor of Powers, filing an assignment from Powers to Birmingham dated August 18, and substituting Birmingham for Powers as plaintiff in the action. Then, on September 24, Simmons moved to set aside the various judgments and orders upon numerous grounds, one of which was that Simmons had neither procured nor authorized execution of the su-persedeas bond. A supporting affidavit by Robert F. Simmons, president of the company, stated that he never had known the necessity for or existence of such a bond until after this court had rendered its opinion in the case.

A counter-affidavit by Wallace S. Lap-ham, manager of the Louisville office of National Union and Birmingham (an affiliate of National Union), presented copies of two letters written in November of 1961 by Hon. Alexander G. Booth, who at the time was representing both Simmons and National Union, in which he asked National Union to have one of its affiliated companies execute a supersedeas bond for both National Union and Simmons in order that Simmons might be spared the expense of paying for the bond. The bond was executed and filed on December 11, 1961.

In overruling Simmons’s motion to set aside the judgments and orders in question the trial court made a determination of their finality in accordance with CR 54.02, and this appeal followed.

The supersedeas bond was filled out and signed for both Simmons and National Union “by Thomas W. Burks Atty.” Mr. Burks was an associate of Mr. Booth. Birmingham, the surety, executed it through Mr. Lapham as attorney-in-fact. The tenor of Simmons’s argument is that its attorneys had no authority to execute or procure execution of the bond, that Simmons therefore was not a party to it, and that in executing the bond as surety for Simmons and later satisfying the judgment against Simmons, Birmingham was a volunteer and is not entitled to indemnification.

That anyone might seriously believe law and justice to be so utterly estranged that Simmons could escape the judgment scot-free at Birmingham’s expense defies credulity. The good faith of Birmingham is beyond question. If the attorneys did not have the requisite authority, Birmingham’s exposure to liability re-suited from an honest mistake on its part. Where a person discharges an obligation owed by another, being induced by mistake of such a character that he is justly entitled to restitution, he is subrogated to the position of the obligee. Restatement, Restitution, §§ 162, 171. Quite aside from the supersedeas bond, Simmons was liable to pay the amount of the judgment anyway. To the party appealing, the only unfavorable aspects of a supersedeas bond are the expense of procuring a surety and the increased exposure of 10% as provided by KRS 21.130. Since the attorneys for Simmons undoubtedly were authorized to prosecute the appeal, it is our opinion that the procurement of a surety to supersede the judgment free of the expense of a premium' or fee came within the legitimate scope of their authority.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Jessie W. COZART, Gladys Cozart, his wife, Carroll County Industrial Development Foundation, a Corporation, Appellants, v. Don TURLEY and Jerry Stafford, Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied March 10, 1967.

      William G. Reed, Carrollton, for Jessie W. Cozart and Gladys Cozart.
    Alfred W. Minish, Carrollton, for Carroll County Industrial Development Foundation.
    Berry & Floyd, New Castle, for appellees.
   DAVIS, Commissioner.

Appellants Jessie W. Cozart and Gladys Cozart own a tract of land in Carroll County and have given an option to purchase it to appellant Carroll County Industrial Development Foundation (hereinafter CCIDF) and have contracted to sell it to appellees Turley and Stafford, subject to the rights of CCIDF under the option. The Cozarts filed this action seeking a declaration of rights and a determination of whether CCIDF or Turley and Stafford had the superior right to a deed. The trial court adjudged that Turley and Stafford had priority, and the appellants challenge that ruling.

By writing dated March 24, 1964, the Cozarts purported to grant an option to CCIDF’s predecessor, wherein the Cozarts agreed, in pertinent part as follows:

“That for and in consideration of the sum of $1.00 * * * the said parties of the first part have granted unto the party of the second part and their successors and assigns, the exclusive right and option to purchase the following described real estate.”

A metes and bounds description of the land is contained in the writing, following which appears this language:

“The parties of the first part propose to sell the said land to industry for the purpose of erecting an industrial plant thereon, and the purchase price is to be $700.00 per acre cash in hand paid to the parties of the first part.
“When the parties of the second part have found a purchaser for the said property, and all forms and conditions have been agreed upon, the parties of the first part agree to execute and deliver to the party of the second part, or to whomever they may sell the said option, a good fee simple unincumbered deed, conveying the full fee simple title to the said property.”

The option agreement provides that unless it shall have been exercised by January 1, 1965, it shall remain in force until 60 days after the Cozarts furnish written notice of termination.

On October 1, 1965, the Cozarts gave written notice to CCIDF of their election to terminate the option as- of December 1, 1965. On October 15th, 1965, the Cozarts entered into a contract of sale with Turley and Stafford by which they agreed to sell the same land included in CCIDF’s option, excepting therefrom “ * * * the house and lot now occupied by the grantors herein as a residence * * *.” The agreed sales price was $30,000, of which $6,000 was paid at the time the contract was executed. The contract contained this clause:

“It is understood between the parties hereto that the vendors herein have granted an option to a third party for the sale of the premises herein, which option shall expire on or about December 1, 1965, but if the said third party or its assigns shall elect to exercise said option before its expiration, then this agreement shall be null and void and the vendors shall return the $6,000 paid by the vendees herein.”

On November 28, 1965, CCIDF furnished written notice to the Cozarts advising that CCIDF wished * * * to exercise the option as per agreement dated March 24, 1964.” The notice related that the necessary purchase money had been deposited in escrow, to be paid to the Cozarts upon delivery of unincumbered title. The closing paragraph of the notice to exercise the option stated:

“We further understand that the prior agreement includes the entire tract of real estate described in the option with the exception of the house and lot which acreage will be further described by a survey conducted by an engineer approved by both parties.”

It will be noted that the option to CCIDF’s predecessor had not expressly referred to an exclusion of the residence and lot, but had merely contained a detailed description of the property as containing 56 acres, more or less, from which 5.7 acres had theretofore been conveyed, leaving about 50 acres in the tract described. One of the persons who had negotiated the 1964 option with the Cozarts testified that it had been orally agreed that when and if the option was exercised the residence and lot would be retained by the Cozarts. Opposing this was evidence from Turley and Stafford that Mr. Cozart told them he wanted “loose” from the option because it was at $35,000 and would include his residence. Neither of the Cozarts gave testimony touching this point; such evidence as was given was by way of discovery depositions only.

In its answer CCIDF recited that it had caused a survey to be made, excluding the house and a lot for it, so that the land to be claimed under the option contained 48.41 acres. CCIDF tendered its check in the sum of $33,887 as payment for the 48.41 acres @ $700 per acre, and submitted a proposed deed containing a revised description of the property so as to reserve the residence and lot to the Cozarts.

The trial judge ruled that the 1964 writing from the Cozarts to CCIDF was not an option, but merely an agency agreement in which CCIDF undertook to act as a selling agent of the land. In the findings of fact and conclusions of law the trial judge discussed Faraday Coal & Coke Co. v. Owens, 80 S.W. 1171, 26 Ky.Law Rep. 243, and regarded that precedent as governing the present litigation. We are unable to concur in the conclusion of the trial court. It is our view that the writing did create a valid option, not merely an agency arrangement.

As called to our attention by appellees, there appears a general text discussion in 2 C.J.S. Agency § 2, p. 1034, pointing up the distinctions between contracts of agency to sell and options to purchase real estate. The general principles are thus summarized:

“An option to purchase certain real estate on given terms within a specified time does not make the holder of the option an agent of the owner, but rather creates the relation of vendor and purchaser, but a contract authorizing one. to sell land for the owner on prescribed terms for a commission creates an agency rather than an option. The relation is to be determined by the terms of the contract between the parties expressing their intention, although their own designation of it is entitled to some weight; and, where intent to create an agency appears, the contract will be so construed although it purports to be an option, as where the option is a mere form of agency given to secure to the agent control of the negotiations, or to lend him the appearance and character of a purchaser for the effect it may have on others, and it is not intended that he shall acquire title or become a purchaser. There is no inconsistency in a contract which creates an agency to sell and also gives the agent an option to purchase during his agency.” 2 C. J.S. Agency § 2, p. 1034.

Faraday Coal & Coke Co. v. Owens, 80 S.W. 1171, 26 Ky.Law Rep. 243, and Chesbrough v. Vizard Inv. Co., 156 Ky. 149, 160 S.W. 725, are among decisions from this jurisdiction which discuss the legal principles. We think it is plain that the option afforded CCIDF more than an agency to sell. It will be observed that the instrument is denominated as “option and contract; ” it recites that the second party is granted “the exclusive right and option to purchase from the date hereof;” the Cozarts agreed to execute a deed “to the party of the second part, or to whomever they may sell the said option.” There is nothing in the option to suggest that the optionee is a mere broker selling on a commission. It is patent that the parties recognized that the intent and purpose of the optionee was to effect a means whereby a suitable industry might be established in the community, and although it may well have been supposed that the ultimate purchaser would take a deed directly from the Cozarts, there is nothing in the instrument which precludes the optionee from buying the property “on its own.” We do not deem it inconsistent to recognize the intention of the optionee to purchase the land on its own account as distinguished from its procuring an industrial purchaser. The very situation which has developed suggests the sound basis for the optionee’s assuring itself of protection.

It is most significant that in the sales contract between the Cozarts and the appellees the existing arrangement between the Cozarts and the “third party” was described as an “option.” The sales contract fully recognized that the “third party” had a right to buy the property, and made careful provision that the contract would be “null and void” in the event the third party should exercise its “option.” The Cozarts certainly regarded their relationship with CCIDF as one of option when the sales contract with appellees was executed; so did the appellees. Obviously the CCIDF so regarded it.

It is suggested for appellees that even if the writing be deemed an option, it was an unenforcible one because it was indefinite as to duration, description of property and other details. This argument overlooks the fact that the appellees never saw the option until this suit was filed; they placed no reliance upon its being unenforcible. All they knew was that if the “third party” exercised its option, then the appellees had no contract of purchase. The “third party” had the option to buy the entire tract at $700 per acre; if it had done so it is plain that these appellees would have had no enforcible contract against the Cozarts. Does the fact that CCIDF permitted the Cozarts to retain the residence despite the option’s failure to grant that right make any difference? We do not think so.

In Faraday Coal & Coke Co. v. Owens, 80 S.W. 1171, 26 Ky.Law Rep. 243, it was held that the holder of an option could not pay less than provided in the option and thereby defeat the rights of one who had acquired those rights subject to the option. It seems to us that the rationale of that decision lies in the fact that by offering less than provided in the first option there simply was no exercise of the option, but just a counteroffer; thus the counter-offer was actually later and inferior to the rights which had been acquired subject to the original option. AVe have no doubt that had CCIDF advised the Cozarts of its election to exercise the option exactly as written it could have made a gift to the Cozarts of the residence and lot, but the appellees could have no benefit from it. It is our view that the option holder does exercise the option when he gives as much or more than the option requires.

Appellees have directed attention to Murphy Thompson & Co. v. Reid, 125 Ky. 585, 101 S.W. 964, 10 L.R.A.,N.S., 195, for the proposition that there was no consideration for the option. It is observed, however, that after discussing the inadequacy of the consideration for the option, the court held that since the offer to sell contained in the option was accepted before withdrawal the question of consideration became immaterial. The same situation prevails here. CCIDF accepted the offer of the Cozarts before it was withdrawn. It cannot be reasoned that the Cozarts “withdrew” the offer to sell when they notified CCIDF on October 1st that the offer would expire sixty days later; on the contrary they affirmatively recognized that the offer was to remain open for sixty days. The appellees also recognized that the offer was extant when they contracted with reference to it on October 15th. Since the Cozarts and CCIDF are not in dispute as to the details of the option, it does not lie in the mouths of the appellees to raise any objection in these respects. The judgment is reversed with directions to enter a new one requiring that the conveyance be made to CCIDF according to its answer.


author: NORVELL, Justice.

text:
    CITY OF FORT WORTH et al., Relators, v. Harold CRAIK, District Judge, Respondent.
    No. B-40.
    Supreme Court of Texas.
    Feb. 8, 1967.
    Rehearing Denied Feb. 8, 1967.
    S. G. Johndroe, Jr., City Atty., Jerome H. Parker, Jr., David Wesley Gulley, Asst. City Attys., Fort Worth, for relators.
    Brown, Herman, Scott, Young & Dean, William M. Brown and Shelby Sharpe, Fort Worth, for respondent.
   NORVELL, Justice.

This is an original proceeding in which the relators, City of Fort Worth, its governing Council and Secretary, sought a writ of mandamus ordering the Honorable Harold Craik, District Judge of Tarrant County, Texas, 153rd Judicial District, to vacate a restraining order issued by him on the 10th day of January 1967 at the instance of The National Foundation, a corporation. This order restrained the City of Fort Worth from enforcing the penal provisions of an ordinance which proscribed (in the absence of a proper permit) the solicitation of funds “on the streets, in any office building or other public or private place, by house to house canvass or by telephone within the city” upon the representation that such funds are to be used for a charitable, educational, religious, patriotic or philanthropic purpose. The ordinance exempted certain organizations, but The National Foundation, which conducts an annual March of Dimes, is not one of these. The Charitable Solicitation Commission, a municipal administrative agency created by ordinance, refused to approve a permit for the solicitation of funds by The National Foundation because the expected costs of solicitation were deemed excessive in relation to the expected gross amount to be collected. The action of the Commission was sustained by the City Council.

On January 13, 1967, this Court, without written opinion, held that the restraining order was void and granted the relief prayed for by relators. The respondent in its motion for rehearing again urges the validity of the restraining order. However, we are of the opinion that our original disposition of this case was correct and accordingly the motion for rehearing is overruled.

The Fort Worth ordinance (chapter 32 of the Fort Worth City Code, 1964), relating to the solicitation of funds upon the city streets and in public places, is penal in nature and has never been declared invalid or unconstitutional by a court exercising criminal jurisdiction. In Ex parte Phares, 122 Tex. 104, 53 S.W.2d 297 (1932), this Court in speaking of a criminal regulation, said:

“The power and authority to interpret this act rest exclusively with the courts of this state exercising criminal jurisdiction. A court of equity will not, through the medium of an injunction, determine whether given acts violate the provisions of a criminal statute. Such construction can be had only in the due and orderly enforcement of the statute through the forum prescribed for the trial of criminal cases.”

In view of this situation, the case is controlled by the rule stated in Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1932), and consistently followed by this Court, viz:

“Under the well-established rules of equity jurisprudence, it is clear that the district judge was without authority to issue the writ of injunction to prevent the enforcement of the law regulating the operation of motor trucks upon the highways of this state unless the petition for such injunction clearly showed the existence of two facts, viz.: First, that such law is unconstitutional and void; second, that its enforcement constitutes a direct invasion of a vested property right of the complainants.”

It is recognized that in unusual cases, a court of equity may declare a penal statute or ordinance unconstitutional or invalid although such invalidity has not been determined by a court exercising criminal jurisdiction. The rule is stated by the Court of Criminal Appeals in State ex rel. Burks v. Stovall, 168 Tex.Cr.R. 207, 324 S.W.2d 874 (1959), as follows:

“The constitutionality or validity of a penal ordinance is a question ordinarily within the exclusive jurisdiction of courts exercising criminal jurisdiction. However, courts of equity may enjoin the enforcement of a penal ordinance where the ordinance is unconstitutional and void, and its enforcement will result in irreparable injury to vested property rights. State ex rel. Flowers v. Woodruff, supra [150 Tex.Cr.R. 255, 200 S.W.2d 178]; State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760; Kemp Hotel Operating Company v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217; Malone v. City of Houston, Tex.Civ.App., 278 S.W.2d 204.”

The privilege of soliciting funds for charitable purposes upon the streets, in public places or by house to house canvass cannot be properly classified as a vested property right. As pointed out in the recent case of Crouch v. Craik, 369 S.W.2d 311 (Tex.Sup.1963), the rule restricting equity interference with criminal regulations to cases involving irreparable injury to vested property rights is firmly established as the law of this state.

Respondent has cited a number of cases by the Supreme Court of the United States as supporting the proposition that the solicitation ordinance is invalid as an illegal restraint upon the exercise of the fundamental freedoms of free speech and free press guaranteed and protected by the first and fourteenth amendments to the Constitution of the United States and Article 1, §§ 8 and 19 of the Texas Constitution, Vernon’s Ann.St. These cases are not in point. They were decided by a court exercising criminal jurisdiction. The validity of the present ordinance may, of course, be tested in the criminal courts and it is unnecessary for us and we do not pass upon the validity of such ordinance here. Our holding is that a court of equity will not determine originally the validity of a criminal regulation in the absence of a showing of irreparable injury to vested property rights. That showing was not made in this case.

Motion overruled.


author: DICE, Judge.

text:
    James Winston HEARN, Appellant, v. The STATE of Texas, Appellee.
    No. 40117.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.

      James & Crosier, Cleburne, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

Notice, of appeal was given on April 7, 1966.

Facts germane to the grounds of error set forth in appellant’s brief will be stated.

On the night of December 25, 1966, appellant was stopped and arrested, around 10:20 p. m., by highway patrolman Paul E. Busby while driving his automobile upon U. S. Highway 81 in Johnson County. After appellant was ordered into the patrol car, patrolman Busby attempted to place handcuffs on him. Appellant objected and in a struggle which ensued appellant was struck by the officer, on the nose, with the handcuffs. Officer Busby testified that he did not strike appellant until he opened the car door and had one foot on the ground in an attempt to leave. Appellant denied that he attempted to get out of the car.

Appellant was taken from the scene to the Johnson County Memorial Hospital, arriving a few minutes before 11 p. m. There he signed a written consent to the giving of a blood specimen. Dr. Tolbert Yater then took the blood specimen from appellant, which specimen was mailed to the laboratory of the Department of Public Safety in Austin. The wound on appellant’s nose, which was bleeding, was also cleaned and six stitches were taken by the doctor.

A test run upon the specimen in the state laboratory revealed that the blood contained .25% alcohol. Chemist Straughan testified that in his opinion the person from whom the blood was taken was intoxicated.

After some thirty minutes at the hospital, appellant was taken to jail. The following morning he was released on bond, after his wife had visited him and arranged for the services of an attorney.

Testifying in his own behalf, appellant stated that as a result of being struck on the nose with the handcuffs he was dazed and remembered but very little of what happened at the hospital. He stated that while he did remember the officer telling him he had to have a blood test he only had a vague recollection of signing something at the hospital but did not remember what it was. Appellant further swore that when he was taken to jail he requested permission to call his wife and a lawyer but his requests were denied. The denial of his requests was not disputed.

By grounds of error 1, 2, and 5, appellant complains of the court’s action in overruling his motion to suppress the evidence pertaining to the blood test and his motion to quash the complaint and information and his motion for an instructed verdict in the case.

By ground of error #4, he complains of the court’s refusal to give certain requested charges with reference to the jury’s consideration of the evidence of the blood test.

In such motions and requested charges, it was appellant’s contention that the evidence presented by the state relative to the blood test was inadmissible because of the arresting officer’s failure to comply with Arts. 1.09, 15.17, and 16.21 of the Vernon’s Ann.Code of Criminal Procedure of 1965.

Arts. 1.09 and 16.21 prohibit cruel and harsh punishment and treatment of prisoners.

Art. 15.17 makes it the duty of an arresting officer to immediately take the prisoner before a magistrate, who shall inform the person arrested “of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the appointment of counsel if he is unable to obtain counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.”

While appellant was not immediately taken before a magistrate and informed of his rights as prescribed by Art. 15.17, supra, such failure did not render inadmissible the evidence pertaining to the blood test.

Prior to the enactment of the 1965 Code of Criminal Procedure it was the consistent holding of this court that the confession statute, Art. 727, V.A.C.C.P., now Art. 38.22, had no application to the obtaining of consent to the taking of a blood specimen for analysis. Heath v. State, 156 Tex.Cr.R. 563, 244 S.W.2d 815; Monett v. State, 168 Tex.Cr.R. 124, 323 S.W.2d 456; Sartain v. State, 171 Tex.Cr.R. 192, 346 S.W.2d 337; Ragland v. State, Tex.Cr.App., 391 S.W.2d 418. We adhere to such holding under the present Code.

Recently, in Weeks v. State, # 40,037, opinion delivered March 29, 1967, and not yet reported this court held that a consent to search is not a confession and not governed by the rules announced by the Supreme Court of the United States in cases such as Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

While the cases from this court have been more restrictive, we observe that in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Supreme Court of the United States held that obtaining a blood specimen from an accused without his consent did not violate his constitutional rights.

Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, cited by appellant, relate to confessions and incriminating statements made by an accused, and are not here controlling as to the giving of consent to take a blood specimen.

Under the decisions of this court, a consent to the taking of a blood test must be voluntary.

The careful trial judge submitted to the jury in his charge, with appropriate instructions, the question as to whether appellant voluntarily gave his consent to the taking of the blood specimen.

The court’s instructions adequately submitted to the jury appellant’s claim of mistreatment, denounced by Arts. 1.09 and 16.-21, supra.

In his ground of error #6, appellant complains that the court erred during the trial in making remarks and comments and using facial expressions and inflections in his voice directed toward appellant’s counsel which were calculated to prejudice and did prejudice the jury against appellant. It is also insisted that the court erroneously restricted appellant’s counsel in his questioning the jury panel on voir dire examination.

We have carefully considered each remark by the court of which appellant complains, and find no benefit to the state or injury to appellant which would call for a reversal of the conviction under Art. 38.05 of the 1965 Code. We do not agree that the court’s inquiry of appellant’s counsel, at the beginning of the trial, if he wanted appellant sworn “at this time” was injurious to appellant and calls for a reversal of the conviction. This is especially true in view of the court’s instruction to the jury not to consider the comment and of the fact that appellant was sworn as a witness and testified.

The proceedings on voir dire examination of the jury panel have also been considered and do not reflect that the court erroneously restricted appellant’s counsel in his quesr tioning of the panel.

There is nothing in the record which reflects the facial expressions and tone of voice used by the court during the trial.

Appellant’s complaints as to the purported facial expressions and tone of voice are not verified by a proper bill of exception and therefore cannot be appraised. See: 5 Tex.Jur.2d 330, Sec. 200.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Silverio MENDOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 40099.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.
    Abel Toscano, Jr., Harlingen, for appellant.
    F. T. Graham, Dist. Atty., Brownsville, Joel William Ellis, Asst. Dist. Atty., Harlingen, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary of a private residence at night; the punishment, five years.

The sole question presented by briefs filed in the trial court was the exercise of discretion by the trial court in refusing to hear evidence on appellant’s motion for new trial. Appellant was represented by the same counsel of his own choosing both in the trial and on appeal. Trial before a jury concluded on April 1, 1966, when appellant elected to have the court assess his punishment, but appellant availed himself of the ten day period in which to file motion for new trial before being sentenced. After the expiration of the ten days allowed by Article 40.05, Vernon’s Ann.C.C.P., on April 15, appellant and his counsel appeared before the court. At this time the court inquired of appellant if he had any grounds for a motion for new trial, or a motion in arrest of judgment, and appellant replied in the negative, and sentence was pronounced.

Thereafter on April 18, appellant’s attorney filed a motion for new. trial, and attached thereto allegations in support of his reason for the late filing. On May 4, a hearing was had, and the court heard testimony relative to the good cause for late filing at which time appellant’s counsel tendered three affidavits of jurors which he asserts show jury misconduct. The dates on the affidavits are significant. The one from juror Rice is dated April 7, (the day appellant’s counsel states he was employed to appeal appellant’s conviction) and the one from juror Fuqua is dated April 13. Appellant’s counsel admits that he had these affidavits in his possession at the time he appeared with appellant before the court for sentencing on April 15. The affidavit of juror Edwards is dated April 16.

We have examined these affidavits and have concluded that the Edwards affidavit is merely cumulative of the ones given by jurors Rice and Fuqua. No explanation is made by appellant’s counsel for remaining silent at the April 15th sentencing, except that one of his secretaries was pregnant and came to work only a part of the time, that he had received only a small fee from appellant and was extremely preoccupied with a busy law practice, and that he wanted to bolster the two affidavits which he had by securing others. Appellant’s counsel admitted that he was aware of the contents of the affidavits, but that he made no oral or written motion for extension of time for filing a motion for new trial at the time of sentencing.

Under the facts set forth above we have concluded that the trial court did not abuse his discretion in refusing to entertain appellant’s motion for new trial which was filed without leave of the court after the time provided by Article 40.05, V.A.C.C.P. had expired. Bryan v. State, Tex.Cr.App., 406 S.W.2d 210, and Gibson v. State, 172 Tex.Cr.R. 435, 357 S.W.2d 569.

The judgment is affirmed.


text:
    Bobby Fay CISCO, Appellant, v. The STATE of Texas, Appellee.
    No. 40123.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.

      W. C. Wiebusch, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Phyllis Bell and Shelly P. Hancock, Asst. Dist. Attys. Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $100.

Appellant predicates his appeal upon one ground of error — which is the contention that the complaint, upon which the information was based, “as to substance, is unconstitutional, void and a nullity since there is no allegation therein of affiant’s personal knowledge or showing of probable cause that the offense was committed by Defendant.”

Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, and Barnes v. State of Texas, Tex.Cr.App., 390 S.W.2d 266, Id., 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, are cited and relied upon by appellant in support of his contention.

The complaint, omitting the formal parts, reads:

“I, Irene K. Harper, being duly sworn do state upon my oath that I have good reason to believe and do believe that in said County of Harris and State of Texas, heretofore on or about the 16th day of February, A.D. 1966, Bobby Fay Cisco did then and there unlawfully, while intoxicated, drive and operate a motor vehicle upon a public highway in said Harris County, Texas.”

Recently, in Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113, this court overruled a similar contention made in an attack upon a complaint filed in corporation court and pointed out that the cases of Giorde-nello v. United States, supra, and Barnes v. Texas, supra, relate to the necessity of stating facts constituting probable cause in a complaint or affidavit for the issuance of a warrant of arrest used as a basis for a search, or for the issuance of a search warrant, and have no application to a complaint made in court as the basis of a criminal prosecution.

We are not here dealing with the question of the legality of a search but with the sufficiency of the complaint to support the information.

The instant complaint contains the requisites prescribed by Art. 15.05 of the 1965 Vernon’s Ann.Code of Criminal Procedure. We hold the complaint valid.

The judgment is affirmed.


author: ONION, Judge.

text:
    Porter SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 40082.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.

      Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The appellant was tried in the District Court of Hale County on an indictment charging him with the murder with malice of one Frank Richson. He was convicted and his punishment assessed at ten years confinement in the penitentiary. Notice of appeal was given on June 2, 1966.

The State’s evidence, with some minor inconsistencies, shows that on the evening of May 16, 1965, the appellant, the deceased, and their friends, most of whom played in a dance band, were at a dance at the Roughhouse Cafe in the City of Plainview. A fight or disturbance in which none of the parties or the witnesses was involved broke up the dance at approximately 9:00 p. m. As the appellant, the deceased, and their friends got into appellant’s automobile with their musical instruments, the appellant and the deceased engaged in an argument of undetermined origin. The argument resulted in the appellant striking the first blow and the deceased retaliating. As they left the automobile to continue the scuffle they were separated by their friends. At such time the appellant was heard to tell the deceased, “You hit me in the eye * * * you are a dead man.” The appellant Smith then left alone in his own automobile driving fast. The deceased and most of those left behind subsequently entered Albert (Baby Ray) Coleman’s 1955 Oldsmobile. At the intersection of Austin and Henry Streets those in the Coleman car saw the appellant sitting in his automobile talking to James White. John Lewis White, Johnnie Mae and Freddy White (appellant’s sister-in-law and her husband) left the Coleman car, approached the appellant, observed that he had a .25 caliber pistol, and heard him say, “He did me wrong. He hit me in the eye.” Johnnie Mae took the pistol from the appellant, and the trio rode with the appellant to the home of John Lewis White where the appellant’s wife and children were staying.

Shortly thereafter the deceased and others arrived in Baby Ray Coleman’s car and parked without blocking the driveway. The deceased remained in the car. The appellant, having regained possession of the pistol, approached the Coleman car. The appellant’s wife, Alice Smith, pleaded with him, “Don’t do it Porter. If I can’t talk to you, who can?” The appellant apparently struck or shoved his wife down.

The appellant then fired one shot at the deceased in the Coleman car, who then crawled into the back seat of the car from the front. The appellant then opened the car door and fired two more shots. After three shots were fired the deceased lunged out of the car at the appellant who fired two more shots and deceased fell on the ground. At such time the appellant was heard to exclaim, “You did me wrong, hit me in the eye, I’ll kill you.”

When the police officers arrived, after receiving a call at 9:30 or 9:35 p. m., the appellant told them, “I am the one that shot him and here is the gun in my pocket.” The cause of death was stipulated as a bullet wound in the neck of Frank Richson, the deceased.

The appellant, testifying in his own behalf, related that on the day in question he left his home in Earth, Texas, and arrived in the City of Plainview with his wife and six children. Leaving his wife and children at the home of John Lewis White, he arrived at the Roughhouse Cafe at approximately 3:00 p. m. He stated he attempted to prevent the deceased from becoming involved in the disturbance that terminated the dance; that an argument ensued as they were leaving in his automobile; that the deceased cursed him, struck him, dragged him from the car, hit him in the eye, and knocked him up against the automobile. When the appellant and deceased were separated the appellant related he got the pistol from his car, loaded it and returned alone to John Lewis White’s house about seven blocks away. He revealed that he left the scene at the Roughhouse to keep from having trouble and because he was afraid of the deceased. He denied threatening the deceased or stopping at the intersection of Austin and Henry Streets where other witnesses placed him, or that others were with him when he arrived at the White house.

He related that as his wife and children were getting in his automobile for the purpose of returning home an Oldsmobile drove up and “blockaded” the drive preventing him from leaving. He testified he requested Freddy White to ask the driver to move the Oldsmobile, but was told to, “Tell him yourself.” He denied any difficulty with his wife at such time, which denial is supported by his wife’s testimony. The appellant Smith further testified that as he approached the Oldsmobile he observed someone in the back seat, but he did not know who it was as it was dark and that he asked the person to move the car at which time the deceased Richson said, “I am going to get you”, opened the car door, got out, shoved the appellant away from the car, slammed the car door and knocked appellant down at which time the appellant fired three shots. When the deceased continued the attack, and “come in on a crouch over me”, the appellant testified he fired two more shots and deceased fell on his left arm. He related that he did not intend to kill, but acted in self defense as he was afraid deceased was going to kill or seriously hurt him. W’hile he did not see a weapon in the possession of the deceased at the time of the shooting, the appellant stated he had seen the deceased with a knife, an East Dallas Special, earlier in the day.

We feel that the foregoing is a fair summary of approximately 290 pages of testimony, and is sufficient to bring in review appellant’s grounds of error.

The appellant urges 27 grounds of error, but the one we regard as most material is the court’s charge on self-defense in connection with the charge on provoking a difficulty by the appellant.

In paragraph 11 the trial court in sub-paragraphs A through D charged abstractly on the law of self-defense, and in subpara-graphs E and F he charged abstractly on the law of provoking the difficulty.

In paragraph 12 of the court’s charge the law of self-defense was applied to the facts, but we are unable to find in the charge where the court applied the law of provoking the difficulty to the evidence.

The appellant objected to the manner of the submission of the charge on self-defense and objected to the charge on provoking the difficulty being given. Appellant requested three special charges dealing with the law of self-defense; all of which were overruled.

We need not determine whether provoking the difficulty should have been given, for in charging only abstractly on the law of provoking the difficulty the learned trial judge fell into error. Carter v. State, 37 Tex.Cr.R. 403, 35 S.W. 378; Franklin v. State, 34 Tex.Cr.R. 286, 30 S.W. 231; Morgan v. State, 34 Tex.Cr.R. 222, 29 S.W. 1092; Saens v. State, Tex.Cr.App., 20 S.W. 737.

Since a charge on provoking the difficulty is a limitation on the law of self-defense, the charge on provocation should cover the particular facts in evidence and should be so worded as to preclude the jury from misapplying it. Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952; Sorrell v. State, 74 Tex.Cr.R. 505, 169 S.W. 299.

The danger of charging only abstractly on provoking the difficulty without telling the jury the nature and quality of the act or acts which would operate to limit the right of self-defense or the extent to which the right would be abridged is well described in Morgan v. State, supra.

This Court has said many times before that a charge which deprives the appellant of the right of self-defense if he intended to provoke a difficulty is erroneous if it fails to require the jury to find that he did or said something which was reasonably calculated to and which did provoke it. Frank v. State, 120 Tex.Cr.R. 350, 49 S.W.2d 759; Jones v. State, 99 Tex.Cr.R. 50, 267 S.W. 985; Cottom v. State, 91 Tex.Cr.R. 534, 240 S.W. 918; Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952; Hammonds v. State, 82 Tex.Cr.R. 387, 198 S.W. 944; Ware v. State, 68 Tex.Cr.R. 376, 152 S.W. 1074; Smith v. State, 48 Tex.Cr.R. 203, 87 S.W. 151.

When self-defense is an issue the charge on provoking the difficulty should be in a distinct paragraph and should not be intermingled so as to confuse the jury and to deprive the appellant of a separate, distinct and affirmative charge on self-defense apart from and untrammelled by the issue of provoking the difficulty. 4 Branch’s Ann.P.C.2d Sec. 2136, p, 469.

While it does not appear that appellant in the case at bar requested such a charge, or objected specifically to the failure of the court to give such a charge, it is observed that where a judge instructs the jury on the effect of provoking a difficulty he should also instruct on the converse of the proposition, and instructions on such converse should be given from the appellant’s viewpoint untrammelled by any extra burden or insinuation. 29 Tex.Juris.2d, Sec. 328, p. 637. See Sorrell v. State, 74 Tex.Cr.R. 505, 169 S.W. 299.

The appellant in the case at bar objected to the failure of the trial court to charge on the relative size and strength of the parties with regard to the self-defense charge in view of the evidence that the deceased was somewhat the larger man. This Court has previously held that even though appropriate under the facts the trial court is not required to charge on the relative size and strength of the parties where an unrestricted charge on self-defense is given. Powers v. State, Tex.Cr.App., 396 S.W.2d 389; Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d 808; Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562. See 4 Branch's Ann.P.C.2d, Sec. 2313. The charge in the case at bar having restricted the appellant’s right of self-defense the court should have, upon appellant’s objection, charged on the relative size and strength of the parties, and in failing to do so erred.

By Appellant’s Special Requested Charge No. 2, which was refused, he requested a charge in connection with the law of self-defense, on the right of the appellant to act and resist an unlawful or threatened attack so long as it reasonably appeared to him, as viewed from his standpoint at the time that he was in danger. It is undisputed that there was a change in the position of the parties at the time of the killing, and the appellant’s testimony showed continuing danger. Under the facts and circumstances of the case, even though the shots were apparently fired in fairly rapid succession, it was error to fail to charge the jury that if the appellant had the right to act and resist the attack or the right to fire the first shot, then he had a right to continue to act and resist the attack, or continue shooting until the danger had ceased. Bayer v. State, 96 Tex.Cr.R. 310, 257 S.W. 242; Waters v. State, 80 Tex.Cr.R. 573, 192 S.W. 778; Best v. State, 61 Tex.Cr.R. 551, 135 S.W. 581; Smith v. State, 57 Tex.Cr.R. 455, 123 S.W. 698.

The State in its brief cites Conn v. State, 143 Tex.Cr.R. 367, 158 S.W.2d 503, as justifying the refusal of the court to give a charge on the right to continue to shoot. As pointed out in Conn v. State, supra, whether or not such an instruction is required depends upon the facts of the particular case. We feel that Conn v. State, supra, is distinguishable on its facts from the case at bar, and that the trial court erred in failing to respond to Appellant’s Special Requested Charge No. 2.

It is clear from what has been said that for the errors described the cause must be reversed and remanded.

Since a new trial will be required we shall review additional grounds of error urged by appellant which might have a bearing thereon. One of these grounds of error relates to the trial court’s failure to respond to appellant’s objection and charge the jury on the lesser offenses of assault with intent to murder, aggravated assault and simple assault. Instructions on these offenses need not be given unless they are called for by the evidence and this depends upon the facts and circumstances of each case. 29 Tex.Juris.2d Sec. 286, p. 533, 534. These charges are not called for by the evidence in the case at bar. The mere denial by the appellant of an intent to kill, standing alone, is not sufficient to raise these issues. See Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162. Ordinarily the failure to give a charge on aggravated assault or simple assault is not error where the appellant killed the deceased with a deadly weapon per se. Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123; Turner v. State, 148 Tex.Cr.R. 491, 187 S.W.2d 991; Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517; Blanton v. State, 144 Tex.Cr.R. 198, 161 S.W.2d 1063. In passing we note that the defense raised by the appellant was self defense. We do not believe that the Court erred in failing to submit the lesser offenses to the jury under the facts of the case at bar. See Preble v. State, Tex.Cr.App., 374 S.W.2d 444, cert. den. 379 U.S. 882, 85 S.Ct. 151, 13 L.Ed.2d 88.

Another of appellant’s many grounds of error relates to the admission into evidence of State’s Exhibits Nos. 14, 15 and 16, which were photographs of the body of the deceased. The appellant contends that the pictures were highly inflammatory and prejudicial and did not prove any point in issue which had not already been verbally testified to by several witnesses. The photographs were in black and white and depicted the partially clothed body of the deceased at the Plainview Hospital and revealed the position of the wounds. It is to be observed that an issue was made as to the respective position of the appellant and deceased at the time of the killing. The State’s testimony shows that the deceased crawled from the front to the back seat of the Oldsmobile when the appellant began to shoot and that the deceased was bent over when the appellant shot through the door. The appellant in his testimony contended that the deceased opened the door of the Oldsmobile, knocked appellant away from the car and was approaching the appellant when the first shot was fired. Appellant related he acted in self-defense. This Court has held that photographs are admissible in homicide cases to resolve disputed issues. Burns v. State, Tex.Cr.App., 388 S.W.2d 690, reversed on other grounds, Burns v. Beto, 5th Cir. U. S. Court of Appeals, 371 F.2d 598; Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112. No error is shown.

Three of appellant’s grounds of error relate to the action of the trial court in permitting the District Attorney, over appellant’s objection, to cross examine character witnesses by asking if they had heard that appellant had, on a previous occasion, cut up his father-in-law without offering proof of the other transaction.

It appears from the record that the District Attorney asked the character witnesses if they had heard of a specified act of misconduct, not if they knew of specific acts of misconduct of the accused. We perceive no error.

It has been held that witnesses attesting the good reputation of an accused may, as affecting the weight, credibility and sincerity of their testimony, be asked upon cross-examination as to whether they have heard of acts of the accused inconsistent with that reputation. Vance v. State, Tex.Cr.App., 365 S.W.2d 182; Linton v. State, 171 Tex.Cr.R. 213, 346 S.W.2d 320; Willard v. State, 170 Tex.Cr.R. 118, 338 S.W.2d 472; Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946.

In view of the stipulation that the cause of death was due to a bullet wound of the neck, we can find no reversible error in the admission into evidence, over appellant’s objection, of the X-rays or the books kept at the Plainview Hospital on the grounds that the proper predicate had not been laid. The cause of death was in substance what the doctor testified about.

We have carefully considered appellant’s remaining grounds of error, and have concluded that in a re-trial they are not likely to re-occur.

The judgment is reversed and the cause remanded.


author: BARROW, Chief Justice.

text:
    Virginia Laird GARCIA, Appellant, v. Helen Kahn PELLEGRIN, Appellee.
    No. 14549.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1967.

      Raul Villarreal, San Antonio, for appellant.
    Lieck & Lieck, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an appeal from a summary judgment granting possession of a long cap-and-ball rifle, known as the “Bowie gun,” to ap-pellee, Helen Kahn Pellegrin.

Appellee, the sole heir and independent executrix of the estate of her deceased husband, Alfredo Garcia Pellegrin, brought this suit against the Daughters of the Republic of Texas as curator of “The Alamo” to recover possession of the Bowie rifle which was allegedly loaned to the museum by Alfredo in April, 1936, for display to the public. Appellant, Virginia Laird Garcia, intervened and alleged that she was the legal owner of said rifle as the surviving widow and sole heir of Joe Pellegrin Garcia. The Daughters asserted no claim of ownership but asked for a decree determining ownership of the rifle before they are required to deliver it to anyone.

Alfredo Garcia Pellegrin and Joe Pelle-grin Garcia were brothers and both appellant and appellee claim ownership of the rifle through a parol gift to their respective spouses from their grandfather, Jose Maria Garcia Villarreal, Sr. Appellee also asserted claim of ownership through the statutes of limitation by virtue of the adverse possession of Alfredo for over thirty years.

Appellee’s motion for summary judgment is supported by certified copies of probate proceedings in Alfredo’s estate and the affidavits of Jesse Applewhite, Sr., Ed Villarreal, Sr., Alicia Garza Zertuche Kahn, and Robert A, Kahn, as well as her own affidavit. In opposition to this motion, appellant filed affidavits of Henry Lapoe Phillips and Lavender Wilson Davis. The following facts in these affidavits are uncontradicted:

Since April, 1936, the rifle has been on display in The Alamo museum, with a card beside the rifle stating substantially as follows : “Loaned by A. G. Pellegrin of Laredo.” The rifle was delivered to the custodian of The Alamo by Mr. Jesse Apple-white, Sr., on behalf of Alfredo, and the receipt given therefor reads as follows: “Received of Mr. Jesse Applewhite — James Bowie’s gun — to be placed in the Alamo subject to the call of the owner, Mr. Pelle-grin.”

The record does not establish when the grandfather died or when he made a gift of the rife to anyone. The record is undisputed, however, that the rifle had continuously been in the possession and under control of Alfredo since prior to 1929. The affidavits filed on behalf of appellee state that Alfredo had openly and notoriously claimed the rifle at all times, and that prior to being- placed in The Alamo, the rifle was on display in Alfredo’s home. These affidavits also state that Alfredo’s claim of ownership was made in the presence of Joe Pellegrin Garcia without contradiction by him.

There is no contention in any of appellant’s affidavits that Joe ever had the gun in his possession. The affiant Davis, who was related to Joe through marriage, stated that on one occasion at Alfredo’s house, the gun was discussed and both Alfredo and his mother stated that it was Joe’s gun. Davis did not identify the time of this conversation, but it occurred prior to the placing of the rifle in The Alamo in 1936. This af-fiant did not give any reason for the gun being or remaining in Alfredo’s possession so as to overcome Alfredo’s subsequent adverse possession. The affiant Phillips related conversations he had with Joe subsequent to 1952, in which Joe stated the Bowie rifle belonged to him. These conversations occurred outside the presence of Alfredo.

Appellee excepted to these statements by Phillips as being hearsay. In Nagel v. Kiibler, Tex.Civ.App., 212 S.W.2d 1009, writ ref’d n. r. e., the applicable rule is stated: “It is the settled law in this state that declarations of a person made while in possession of property, though in their nature self-serving and hearsay, are admissible to explain the nature and character of his possession and to show the extent of his interest and the character of his holding.” Joe was not in possession of the rifle at the time the statements were purportedly made to the affiant Phillips, and they amounted to no more than mere narrative of past transactions relating to the title and were hearsay and therefore inadmissible. Stegner v. Womack, Tex.Civ.App., 321 S.W.2d 97, writ ref’d n. r. e.; Radford v. Hill, Tex.Civ.App., 185 S.W.2d 129, writ ref’d w. o. m.; 1 McCormick & Ray, Texas Evidence § 797 (2d ed.). The hearsay statements by affiant Phillips are of no probative force in determining the motion for summary judgment. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962).

It is seen from the uncontradicted affidavits that Alfredo held possession under his claim of ownership at the time he loaned the rifle to The Alamo museum for public display. For nearly thirty years it was on open display with notice to all that he claimed ownership of same. He thereby established his ownership through adverse possession. Art. 5526, § 2, Vernon’s Ann. Civ.St.; Texas & N. O. R. Co. v. Schoenfeld, 136 Tex. 173, 146 S.W.2d 724 (1941). This title was devised to appellee as shown by the certified copies of the will of Alfredo and the order admitting same to probate.

Furthermore, it is seen that appellant failed to establish a superior title in herself so as to entitle her to recover possession from appellee. Mexia Planing Mill Co. v. Werner, 24 S.W.2d 737, writ dism’d. There is no competent evidence to establish a delivery of possession of the rifle to Joe by his grandfather with a purpose of vesting ownership in Joe unconditionally and immediately, as required to constitute a gift inter vivos. Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964 (1952); Garrett v. Hunt, 283 S.W. 489 (Tex.Comm'n App.).

The judgment is affirmed.

KLINGEMAN, J., not participating.

      . Alfredo adopted the Spanish custom of putting his mother’s maiden name last.


author: CHAPMAN, Justice.

text:
    PAN AMERICAN FIRE & CASUALTY COMPANY, Appellant, v. C. P. LOYD, Appellee.
    No. 7680.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 6, 1967.

      Morehead, Sharp, Boyd & Tisdel, Plain-view, Robert L. Gibbins, Jr., Plainview, of counsel, for appellant.
    Stovall & Stovall, Plainview, Richard F. Stovall, Plainview, of counsel, for appellee.
   CHAPMAN, Justice.

This is a venue case.

Plaintiff-appellee, C. P. Loyd, filed suit in Hale County against Pan American Fire & Casualty Company, his public liability insurance carrier, to recover under their “Uninsured Motorist Insurance” endorsement 230, titled “Family Protection Against Uninsured Motorists,” for damages sustained by him as a result of the death of his wife and thirteen-year old daughter in an automobile collision with William David Cofer at approximately 7:15 p. m., October 15, 1964, about 1.2 miles north of Petersburg on Farm to Market Road 789. All three parties were killed in the collision. Recovery was sought by virtue of allegations that Cofer was an uninsured motorist and by reason of specific acts of negligence alleged on the part of Cofer which proximately caused the death of Mr. Loyd’s wife and daughter.

A plea of privilege was filed seeking transfer of the case to Harris County, where the principal office of appellant is located. The plea was controverted, alleging as the only exception to the right to be sued in the county of appellant’s principal office, Subdivision 23 of Article 1995, Vernon’s Ann. Texas Revised Civil Statutes. It thus evolved upon appellee the requirement to plead and prove that a cause of action or a part thereof arose in Hale County. Subdivision 23 of Article 1995, Texas Revised Civil Statutes; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941).

Under the terms of endorsement No. 230 this required proof by a preponderance of the admissible testimony, that deceased Cofer was an uninsured motorist, a condition precedent to proof óf a cause of action under the terms of such endorsement. The other requirement, of course, was that ap-pellee must prove by a preponderance of the evidence Cofer was negligent upon the occasion in question and that such negligence was a proximate cause of the damages sustained by appellee. Southland Beauty Shops, Inc. v. Foreman, 319 S.W.2d 737 (Tex.Civ.App. Houston, 1958, writ dism’d).

Plaintiff is only required to make out a prima facie case, “ * * * and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence by the defendant, then it is proper to overrule the plea of privilege.” Austin Road Company v. Willman, 303 S.W.2d 878 (Tex.Civ.App. Fort Worth, 1957, no writ).

The court of last resort in Texas in Lynch v. Ricketts, 158 Tex. 487, 314 S.W. 2d 273 (1958) has held: “It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence.” See also Texas & N. O. R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164 (1935, opinion adopted).

There is no question in the record of coverage if Cofer was an uninsured motorist, so we must look to the evidence to determine if appellee, under the applicable rules, complied with his burden of proof in that respect. The Supreme Court of Texas in the Warden case just cited undertook to define circumstantial evidence for civil cases, which is as clear and succinct a statement of the term as applicable to the instant case as we have been able to find. After quoting some textual definitions that court then said: “ * * * facts not seen or heard may be presumed or taken for granted from other proven facts or circumstances. However, for the proven facts or circumstances to establish a fact, the main fact sought to be proved must follow as a natural or probable sequence from the facts actually proven. A conclusion that is based on mere speculation from facts or circumstances proven is not justified and cannot be sustained.” (Emphasis ours). In attempting to establish by circumstances the fact that Cofer was not an insured motorist Jim Norman, who qualified as administrator of Cofer’s estate (without any estate in existence from this record) obviously as a courtesy to appellee in the prosecution of his suit, wrote seventeen insurance companies to determine if Cofer had insurance with them. Some made negative replies and “quite a few” of them wrote they would need more information to properly answer the inquiry. He admitted there were many insurance companies writing public liability policies in Texas he had not written and that he had not written to any in Georgia, where the only relatives of Cofer’s anyone knew about lived.

One of the attorneys for appellee testified he had written the Texas Department of Public Safety for information as to whether Cofer had complied with the Texas Responsibility Act or had evidence or record he carried liability insurance. We know of no reason why the Department should possess such information unless Cofer had been previously involved in an automobile collision from which a report had been made. Anyhow, counsel never did testify to the reply he received even though the trial court overruled an objection that such reply would be hearsay. The counsel for appellee also testified there were more than twenty insurance companies that write such insurance in and around Plainview and Olton and that he had sued more than twenty right there.

It is admitted in the record that Cofer has a sister in Tignall, Georgia, to whom the body was sent, by the name of Clara Ardister. An effort was made to serve her and to contact her personally from Plain-view, but that appears to be the extent of any effort to learn from her if Cofer was an uninsured motorist.

Mr. Loyd testified he did not say the claims manager and adjustor for appellant, Mr. Pardue, “ * * * definitely said he was an uninsured motorist” but quoted him as saying “on your non-insured motorist,” that “we are ready to settle with you on this other if we can get together.” Then when asked if Mr. Pardue was talking about the uninsured motorist provision his reply was, “ * * * I was.”

The testimony shows deceased, Cofer, had a clear title to his automobile. To us that fact constitutes no probative evidence the automobile was not insured.

Counsel for appellee secured from Mr. Pardue testimony that he had inquired of Cofer’s employer and he did not know if the deceased had insurance or not. The type insurance was not mentioned. The court having permitted Mr. Norman to testify to what other insurance companies told him, he then permitted Mr. Pardue to testify he heard Cofer had come from Olton and possibly had insurance. He testified he did not know if Cofer was an uninsured motorist or not. Actually, the testimony does not even show who Cofer’s employer was or where he lived, and there is no probative evidence by anyone where Cofer resided and if his room had been searched for an insurance policy.

From his replies to letters written insurance companies Mr. Norman was permitted by the court to testify in his opinion Cofer was an uninsured motorist.

Because of the fact the venue hearing was tried to the court it is not possible for us to determine which part of the testimony was considered and which part was not. Much of it was clearly hearsay and not admissible to prove the truth of the statements made. It has been textually stated with respect to such testimony: “The rule in truth is this: evidence of a statement made out of court when s^lch evidence is offered for the proof of proving the truth of such previous statement, is inadmissible as hearsay.” Texas Law of Evidence, McCormick and Ray, Vol. 1, Sec. 781, p. 558, ch. 9.

The testimony of Mr. Norman as to statements made by the insurance companies who wrote him would constitute statements of human utterances; i. e., the writers of the letters, offered as the truth of the facts asserted therein without the opportunity of cross-examination, the fact to be proven thereby being that Cofer did not have a policy of public liability insurance. His opinion based on such statements, would, in our opinion, constitute mere conclusions, and however sincere would constitute no probative evidence of the matter sought to be proved.

“Evidence is hearsay when its probative force depends in whole or in part on the competency or credibility of some person other than the person by whom it is sought to be produced. Texas Employers Insurance Ass’n v. Ritchie, Tex.Civ.App., 75 S.W.2d 942; 31 C.J.S., Evidence, § 192.
“Hearsay evidence is in itself wholly incompetent and therefore without probative force. It does not even gain vitality because it is admitted without objection. It will not support a verdict by a jury or a finding of fact by a court. Ward v. National Benevolent Society, Tex.Civ.App., 155 S.W.2d 994; Hargis v. Moxon et ux., Tex.Civ.App., 34 S.W.2d 353; Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197.” Winn v. Federal Land Bank of Houston, 164 S.W.2d 864 (Tex.Civ.App. Galveston, 1942, writ ref’d.).

Even if it should be said, arguendo, that Mr. Norman’s testimony concerning statements made by insurance companies to him were admissible, it still would not, in our opinion, be sufficient to prove by a preponderance of the evidence that Cofer was an uninsured motorist. We may take judicial knowledge that there are many, many insurance companies in Texas other than those contacted who write public liability insurance. Additionally, there is no evidence as to how long Cofer had lived in Texas or any evidence concerning the requirements for public liability insurance required of automobile drivers in Georgia.

The fact that no other insurance company contacted appellee also fails to supply the necessary element of proof of non-insurance. Levy v. American Automobile Insurance Co., 31 Ill.App.2d 157, 175 N.E.2d 607 (Ill.First District, Second Div.1961).

Also the admissible evidence of appellant’s adjustor, Mr. Pardue, adds nothing to the proof that Cofer carried no public liability insurance on his automobile. His hearsay testimony indicated he did have such insurance, but furnishes no probative value against appellee.

We therefore are , compelled to the conclusion that appellee failed to discharge the burden of proving a prima facie case that Cofer was an uninsured motorist, though it is obvious there are many avenues yet to explore which might establish such a case.

There is also a very serious question of prima facie proof of negligence and causation, the other requirement to show a cause of action in Hale County. Appellee relies on the testimony of a youngster by the name of Miller. When his testimony is carefully examined and all inferences required are indulged in favor of such testimony, it is difficult to find any help for appellee in such testimony. We do not consider it necessary, however, to pass on the negligence and proximate cause question because we believe the other phase of the case we have discussed is controlling.

Having held that appellee has failed to meet the burden required to establish a prima facie case on the question of Cofer being an uninsured motorist, we have the authority to require that the case be transferred to Harris County. However, we do not believe the case was fully developed on the proof required to establish Cofer as being an uninsured motorist, the only question we are passing upon here. Under such circumstances we have authority to reverse and remand. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (1936).

Accordingly, the judgment of the trial court is reversed and remanded.


author: DENTON, Chief Justice.

text:
    Virgil MATHEWS et al., Appellants, v. SUN OIL COMPANY et al., Appellees.
    No. 7669.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1966.
    Rehearing Denied Jan. 30, 1967.

      Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, C. J. Humphrey, Amarillo, of counsel, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Lynn Adams, Oklahoma City, Okl,, C. F. Heidrick, E. M. Cage and J. C. Peurifoy, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, A. W. Walker, Jr., Jack Pew, Jr., Dallas, and H. A. Berry, Amarillo, of counsel, for appellees.
   DENTON, Chief Justice.

Suit was instituted by appellants, Virgil Mathews and wife, J. W. Sanders, Zula Scott, E. T. Scott, Jr., and John William Scott, Trustees of the E. T. Scott Trust and Howard F. Saunders, Trustee of the Willie Belle Sanders Trust against Sun Oil Company and Kerr-McGee Oil Industries, Inc., seeking a judgment declaring that a certain oil and gas lease executed by Virgil Mathews and wife be terminated as to one section of land therein described. All parties filed motions for summary judgment. The trial court granted the defendants’ motion and held the lease in question is effective and had not terminated.

All material facts were stipulated by the parties or agreed upon by uncontroverted affidavits and exhibits filed with the motions for summary judgment. Prior to November 9, 1949 appellants Virgil Mathews and wife owned the surface and entire mineral fee title to all of Section 13 DL&C Co. Survey containing 244 acres more or less and all of Section 4, Block M-22, T.C. Ry. Co. Survey containing 542 acres more or less, both in Hutchinson County, Texas. Mathews and his wife owned the full executive right to lease both sections which were contiguous tracts. On November 9, 1949 Mathews and his wife executed an oil and gas lease to Kerr-McGee covering both sections 13 and 4 for a primary term of eight years. On March 8, 1957 Mathews and wife, who owned the same mineral interest and leasing rights referred to, executed a second oil and gas lease to Kerr-McGee covering the same two sections of land. Lessors received a cash bonus of $15,720.00 and reserved the usual ]/g royalty. This lease was for a primary term of five years and was to commence on November 9, 1957, the expiration date of the 1949 lease. At the time the 1957 lease was executed there was an outstanding ¼.e non-participating royalty interest in both sections 13 and 4. The ¾6 non-participating royalty interest in all of Section 4 was owned by J. W. Sanders, the E. T. Scott Trust and the Willie Belle Sanders Trust, who were the plaintiffs below along with Virgil Mathews and his wife. The owners of the ½6 nonparticipating royalty interest in Section 13 was owned by others who are not parties to this suit, and none of the non-participating royalty owners in this suit had an interest in Section 13. There was no pooling clause in the 1957 lease. All rentals were paid in the manner provided for in the lease. On November 7, 1962, two days prior to the termination of the primary term, Sun Oil Company, pursuant to an agreement with Kerr-McGee, the Lessee, commenced the drilling of a well for oil and gas on Section 13. The drilling continued until such well was completed on February 6, 1963 as a dual gas well capable of producing gas with condensate and was placed on actual production on June 28, 1963. No well has been drilled on Section 4.

Appellants, both the lessors and the royalty owners, take the position that the one lease on the two tracts of land has the effect of pooling the royalties of the nonparticipating owners in Section 13 with the royalties of the non-participating owners in Section 4; and that such action was not authorized in the absence of a pooling clause in the lease. They urge that the lease as to Section 4 expired at the end of the primary term in the absence of drilling or production on that section. They contend the legal effect of the lease was to create two separate and distinct oil and gas leases, one effective for Section 13 and one effective for Section 4. They concede the lessor possessed the right to execute leases that would bind the non-participating royalty interest, but contend one lease cannot bind the royalty interest in both sections. They do not contend the lease was invalid at the time of its execution.

It is settled in this state that, when an oil and gas lease covers land consisting of one or more tracts, paying production from one of such tracts will perpetuate the lease as to all the land described in the lease. Orive v. Sun Oil Company (Tex.Civ.App.) 346 S.W.2d 383 (Writ Ref.). That case involved a single lease which covered four described non-contiguous tracts of land. In holding paying production from one tract extended the lease beyond the primary term to the three other tracts described in the lease, the court said: “In the absence of anything in the lease to indicate a contrary intent, production on one tract perpetuated the lease as to all the land described.” The lease here in question described both Sections 13 and 4 and provided for a primary term of five years “and as long thereafter as oil, gas, or other mineral is produced from the land hereinabove described.” (Emphasis added). Appellants have pointed to no language in the lease, nor have we found any, to indicate an intention of the parties not to perpetuate the lease on both tracts by paying production on one of the tracts. In fact, the specific language of the lease is contrary to such an intention. The lease was for the primary term of five years and as long as there was paying production “from the land hereinabove described” which included Section 4 together with Section 13. No other language in the lease contradicts or tends to modify this unambiguous language.

As we understand it, appellants also argue that in view of the rule that the holder of the executive right to lease has no authority to pool the royalty interests in Sections 13 and 4, the lease terminated at the end of the primary term as to Section 4 because of the absence of paying production in that section. We agree that it is a settled rule that the executive right to lease does not include the authority to pool the outstanding royalty interests. Gulf Oil Corporation v. Marathon Oil Company, 137 Tex. 59; 152 S.W.2d 711. Guaranty National Bank and Trust Co., etc. v. May (Tex.Civ.App.) 395 S.W.2d 80 (Ref. N.R.E.). Nugent v. Freeman (Tex.Civ.App.) 306 S.W.2d 167 (Ref. N.R.E.). However that rule gives no comfort to appellants’ position. Those cases do not invalidate the lease as to the tract in which the royalty owner held his interest. They simply hold the holder of the leasing rights has no authority to pool outstanding-royalty interests. The lessees here make no contention the lease resulted in a pooling of the royalty interest in the two sections. In further support of their position, appellants cite the well-known case of Brown v. Smith (Tex.Com.App.) 141 Tex. 425, 174 S.W.2d 43 (Opinion adopted). That case was brought by the lessors against the lessee for specific performance of a contract for an oil and gas lease on 62.75 acres of land. There were two lessors, one owned 42.75 acres of land and one owned a 20 acre contiguous tract, who executed a single lease. Upon a title examination it was discovered there was an outstanding ⅜2 non-participating royalty interest in the 20 acre tract owned by a third person who was not a party to the contract to lease. The court denied specific performance and held the lessees could not be required to accept the lease on the 62.75 acres because the lease contained a pooling clause and the lessors with the executive leasing rights could not require the non-participating royalty owner to pool her royalty interests in the 20 acre tract with the royalty rights owned by others in the other tract. The court’s language “in many respects the burdens and obligations of petitioners under the lease tendered by respondents would be the same as they would be under two separate leases, one effecting the 20 acre tract and the other effecting the 42.75 acre tract” is pointed out by appellants to support their contention the lease under consideration should be treated as two separate leases. We do not agree. The court did not hold the lease would be invalid as to the 20 acre tract. That question was not before the court. We therefore conclude the lease in question is a single lease; that such lease does not pool the non-participating royalty interest in Section 4 with such interest in Section 13. It follows, in accordance with the language of the lease itself, that paying production in Section 13 extends the lease beyond the primary term for both sections described in such lease.

We further conclude, under the uncontroverted facts of this case, the appellants are estopped from seeking to convert the single lease on both Sections 13 and 4 into two separate leases on each of these sections. This same doctrine of estoppel by deed also precludes the contention that production on Section 13 does not continue the lease in force as to Section 4. Estoppel by contract or deed is the doctrine whereby a party is bound by the terms of his own contract or deed until it is set aside by fraud, accident or mistake. United Fidelity Life Insurance Co. v. Fowler (Tex.Civ.App.) 38 S.W.2d 128 (Error Dis.) and Gress v. Gress (Tex.Civ.App.) 209 S.W.2d 1003 (Ref. N.R.E.). 22 Tex.Jur.2d Estoppel, Section 3. Estoppel by deed precludes parties to a valid sealed instrument and their privies to deny its force and effect by evidence of inferior solemnity. It denies to the grantor or those claiming under him the right to take a position inconsistent with the grant. Surtees v. Hobson, Tex.Civ.App., 4 S.W.2d 245. Affirmed Tex.Com.App., 13 S.W.2d 345. That doctrine is applicable under the uncontradicted facts of this case.

Virgil Mathews and his wife, fee simple owners of both the surface and minerals in both Sections 13 and 4 granted this “land”, described both Sections 13 and 4 for a period of five years “and as long thereafter as oil, gas, or other mineral is produced from the land”. A cash bonus was paid the lessors for the single lease on both sections of land. The same doctrine of estoppel by deed that precludes Mathews and his wife from denying the force and effect of the language of the single lease also applies to the other appellants as they are privy to the estate at the time the oil and gas lease was executed. At that time appellants J. W. Sanders, the Trustee of the E. T. Scott Trust and the Trustee of the Willie Belle Sanders Trust were owners of a ¾6 non-participating royalty interest in Section 4. On September 18, 1964, which was prior to the filing of this suit, Virgil Mathews and his wife executed an instrument designated “Quit Claim Deed” by which they conveyed to the other named appellants a ½ mineral fee interest in Section 4, non-participating only as to bonuses and delay rentals. They were thus in privity with the Mathews at all material times. We therefore conclude all appellants are estopped from seeking to convert the single oil and gas lease covering Sections 13 and 4 into two separate leases for each of these sections, and from claiming paying production on Section 13 does not continue the lease in full force and effect as to Section 4.

The judgment of the trial court is affirmed.

CHAPMAN, J., not participating.