text:
    W. T. WAGGONER ESTATE, Appellant, v. Wilmer GLEGHORN, Appellee.
    No. 3819.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 8, 1963.
    Rehearing Denied Oct. 4, 1963.

      Pruitt & Hughes, Vernon, I. O. Newton, Seymour, for appellant.
    R. J. Balch, Seymour, for appellee.
   GRISSOM, Chief Justice.

Wilmer Gleghorn owns 1600 acres of land surrounded by land of the W. T. Waggoner Estate. He has a recognized roadway from his house on the south portion of his 1600 acre tract across the Wag-goner land to a public road on the south. He sued the Waggoner Estate to establish a right to a road from said public road across the Waggoner land to the north portion of his 1600 acre tract. The north and south portions of Gleghorn’s land are separated by the Wichita River. Gleghorn also sought a road over the Waggoner land to 40 acres out of his southeast corner. The defendant moved its fences back, permitting a road to the 40 acres, in Gleghorn’s southeast corner and the right to that road is not here in controversy. The only question presented here is the right of Gleghorn to a road across the Waggoner land to that portion of his land lying north of the Wichita River. In a trial to the court, judgment was rendered awarding Gleghorn such a road. The Waggoner Estate has appealed.

Appellant contends the court erred in awarding Gleghorn an easement by necessity across appellant’s land to that portion of appellee’s land lying north of the Wichita River because there was neither pleading nor proof that there was ever a unity of ownership of appellant’s and appellee’s land. We sustain the point presenting that contention. Waggoner excepted to Gleghorn’s petition because it contained no allegation that there had ever been a unity of ownership of appellant’s and appellee’s property. The exceptions were sustained. Gleghorn amended, but in the pleading upon which he went to trial, as in all others, there was no such allegation. Likewise, there was no evidence that there had ever been a common ownership of said tracts of land. In Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 627, our Supreme Court held that such unity of ownership was a prerequisite to establishment of a way of necessity. In the more recent case of Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 641, our Supreme Court, speaking through Judge Griffin, said:

“In * * * Othen v. Rosier, * * *, this Court held there were three requisites for a way of necessity, to wit: (1) unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a convenience; and (3) that the necessity existed at the time of the severance of the two estates.”

He also said:

“This Court, in the recent case of Mitchell v. Castellaw, 1952, 151 Tex. 56, 246 S.W.2d 163, 168, discussed at some length the doctrines of ‘strict’ vs. ‘reasonable’ necessity, and the applicable authorities. In that case this Court held in unequivocal terms that Texas was committed to the doctrine of ‘strict’ necessity.”

See also Neblett v. R. S. Sterling Investment Company, Tex.Civ.App., 233 S.W. 604, (Writ Ref.); Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399; Parker v. Bains, Tex.Civ.App., 194 S.W .2d 569, 575, (Ref. N.R.E.).

Gleghorn did not establish the prerequisites to establishment of a way of necessity to wit: (1) unity of ownership of the Waggoner and Gleghorn tracts of land; (2) that the roadway sought was a necessity, and (3) that such necessity existed at the time of severance of the two estates. Therefore, the judgment could not be supported by a finding of a way of necessity across appellant’s land to appel-lee’s land north of the Wichita River. But, appellee says the judgment is supported by Article 1377b of the Vernon’s Ann. Penal Code. Appellee pleaded that statute as a basis for his claim to a right to the road in question. Said statute, which was House Bill 36, Chapter 42, page 164, 56th Legislature, second call session, became the law in 1959. It repealed Article 1377 P.C. The repealed article made it a misdemeanor to enter upon the enclosed land of another without his consent and hunt, fish, camp or depredate thereon. Article 1377b, Vernon’s Ann. P.C. includes practically the same provisions. But, Section 2 of Article 1377b deals with the right to a route over “surrounding” land granted therein to a person who has a right to use the “surrounded” land. Subdivision (b) of Section 2 of Article 1377b provides that

“A person who claims the right to use land which is either wholly or partially surrounded by land owned by another person shall have the right to enter the surrounding land for purposes of ingress and egress to such land that is wholly or partially surrounded. Such person shall follow for purpose of ingress and egress to such land, a reasonable route designated by the owner, proprietor, lessee or person in charge of the surrounding land. Such person who claims a right to use land wholly or partially surrounded, shall furnish the owner, proprietor, lessee, or person in charge of the surrounding land, with a description of the location and boundaries of the land wholly or partially surrounded, and if requested by the owner, proprietor, lessee or person in charge of the surrounding land, shall go upon the wholly or partially surrounded land and point out the boundaries of such land so as to enable the owner, proprietor, lessee or person in charge of the surrounding land to designate a reasonable route for ingress and egress to such wholly surrounded or partially surrounded land. In the event the owner of the surrounded land shall not have a survey of his claim and should the owner of the surrounding land demand the boundaries of the surrounded land, then the expense of surveying the surrounded land shall be borne and paid by the owner of the surrounding land demanding the same.
“2. The owner, proprietor, lessee or person in charge of surrounding land shall designate a reasonable route for purposes of ingress and egress to land wholly or partially surrounded by such surrounding land within thirty (30) days after being notified in writing by the owner or surface lessee of the surrounded lands that such a route is needed, and if such route is not designated in writing within such thirty (30) days the owner or surface lessee of the surrounded lands shall have the right to select the shortest route to the said surrounded lands, having due regard to selecting the route which will least damage such surrounding lands and which will cause the least inconvenience to the owner or surface lessee of the surrounding lands. The owner or surface lessee of such surrounded lands shall notify the owner or surface lessee of the surrounding lands in writing of the route that he proposes to use, and he shall be confined to such route.”

Section 3 makes violation of any of the provisions of the article a misdemeanor punishable by a fine of not less than $10.00 nor more than $50.00. It provides for a second conviction a fine of not less than $200.00 nor more than $500.00 and forfeiture of hunting and fishing licenses and the right to hunt and fish in Texas for two years and for a third conviction a fine of not less than $500.00 nor more than $1,000.00, and forfeiture of hunting and fishing licenses and the right to hunt and fish in Texas for three years. Section 7 provides that no prosecution may be maintained if there is a dispute as to the title to the land and the person charged files an affidavit that he believes he owns the land or an interest therein.

Appellant says said statute cannot support the judgment because it is unconstitutional. It contends that the quoted portion of Article 1377b, Vernon’s Ann. P.C. is unconstitutional and cannot support the judgment because it violates Article 3, Section 40 of the Texas Constitution, Vernon’s Ann.St., which provides that

“When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, or presented to them by the Governor * * *»

Appellant argues that the proclamation and other submission of subjects by the Governor for consideration by the Legislature at said special session contains no mention of the subject matter of said statute heretofore quoted, upon which appellee’s judgment must be based. Appellant’s contention as to the facts appears to be supported by the record. However, we think that our power to consider said facts and for that reason hold said portion of Article 1377b, Vernon’s Ann. P.C. unconstitutional has been decided against appellant by the Supreme Court. In Jackson v. Walker, 121 Tex. 303, 49 S.W.2d 693, under a fact situation not distinguishable it was held that it was not necessary to decide whether the subject matter of a statute passed at a special session of the legislature was submitted by the Governor because the courts could not look to the proclamation, or other submission of subjects for consideration by the legislature to determine whether the statute violated the constitution because the subject matter of the statute was not submitted by the governor to the legislature for its consideration. In City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251, 257, it was held, in an opinion adopted by the Supreme Court, that “It is now the settled law of this state that the courts will not go behind such a record to ascertain if the subject-matter of legislation enacted by a special session of the Legislature was in response to a subject designated by the Governor’s proclamation calling the special session, or otherwise presented by him.” See also Williams v. Taylor, 83 Tex. 667, 19 S.W. 156; Ellison v. Texas Liquor Control Board, Tex.Civ.App., 154 S.W.2d 322, 324, (Writ Ref.); Nueces County v. King, Tex.Civ.App., 350 S.W.2d 385, 387, (Writ Ref.). The applicable rule is stated in 39 Tex.Jur. 121, 122 as follows:

“In other words, according to the settled rule an act passed by the Legislature, signed by the proper officers of each house, approved by the Governor or passed notwithstanding his disapproval, and filed in the office of the Secretary of State, constitutes a conclusive record of the passage of the act as enrolled. As against this record, resort may not be had to a proclamation of the Governor, to the terms of the bill as originally introduced or amendments thereto, to the journal of the Legislature, nor to parol evidence, for the purpose of impeaching or invalidating the law.”

We have considered appellant’s contentions that said statute violates other articles of the state and federal constitutions. Appellant has cited no decision by our Supreme Court, and we have found none, which authorizes us to hold that said statute was enacted in violation thereof. See 12 Tex.Jur.2d 385. The statute supports the judgment. It is affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Lucille WATSON, Independent Executrix, Appellant, v. W. W. BEATY, Administrator, Appellee.
    No. 3822.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 13, 1963.
    Rehearing Denied Oct. 4, 1963.
    Beard, Kultgen & Beard, Waco, for appellant.
    C. O. McMillan, J. F. Whisenant, Steph-enville, for appellee.
   GRISSOM, Chief Justice.

Lucille Watson, independent executrix of the estate of H. E. Watson, sued W. W. Beaty, administrator of the estate of Sarah Watson, for conversion of bonds. In a trial to the court, judgment was rendered for the defendant and the plaintiff has appealed.

The plaintiff alleged that H. E. and Sarah Watson were married in 1913; that they had no children; that H. E. Watson had two children by a prior marriage, Lucille Watson and Lorene Thompson; that H. E. and Sarah Watson remained married until his death in 1956 and that he left a written will bequeathing and devising to Sarah Watson a life estate in all of his property with remainder to Lucille Watson and Lorene Thompson and that Sarah Watson died intestate in 1957.

Plaintiff further alleged that during said marriage Sarah Watson gave some United States Savings Bonds to her relatives; that said bonds were purchased with community funds; that the purchase of said bonds and the making of said gifts was without the consent of H. E. Watson and had the effect of defrauding the community estate and constituted a conversion thereof. Wherefore, plaintiff sued for one-half the value of said bonds.

Appellant’s first point is that the court erred in holding that the estate of H. E„ Watson did not have an enforcible claim against the estate of Sarah Watson for half the value of the bonds. Appellant says, there is no evidence the husband consented to the purchase or gift of the bonds; that, there is no evidence of the source of the money used to purchase the bonds; that the only pertinent evidence available is that the bonds were bought and given away during the marriage. Appellant concludes from the fact that the bonds were purchased and given away during the marriage that it must. be presumed they were bought with community funds and, since they were purchased with community funds and, under Article 4619, Vernon’s Ann.Civ.St., the wife had no power to dispose of them without the consent of her husband that the burden was upon appellee to prove the husband’s consent. Appellant says that, in the absence of proof of the husband’s consent, it must be presumed that the bonds were community property and, since the wife had no authority to give away community property she was guilty of converting them and, therefore, her estate is liable to the husband’s estate for one-half the value of the bonds.

In support of appellant’s contention that it must be presumed the bonds were bought with community funds she cites Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, and Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904. The latter case does not support the contention. In Sherman v. Roe, there was a suit upon a group insurance policy which insured the life of the husband. The wife was the beneficiary. The husband and wife were killed in a common disaster and it was unknown which survived the other. Judge Smedley did say (262 S.W.2d page 397)

“In our opinion it should be presumed that the payment of premiums by James Roe after his marriage to Edna I. Roe were made from community funds. State v. Jones, Tex.Civ.App., 290 S.W. 244, 250, reversed on other grounds Tex.Com.App., 5 S.W.2d 973; Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904, 906. Further, the insurance was maintained by these payments and by his continuing to work as employee of the company insured by the group policy.”

But, the court held that, by reason of the provision in Article 4619 that all effects the husband and wife “possess at the time the marriage may be dissolved”, shall be regarded as common effects or gains, the proceeds of the policy should be deemed community effects. The insurance was maintained by payments of premiums and by the insured continuing to work as an employee of the company insured by the group policy. The wife was the beneficiary. In the absence of other evidence, under those circumstances, it may be reasonable to assume that the premiums were paid from community funds. But, whether the quoted statements should be treated as dicta or not, it does not necessarily follow that, under the circumstances of this case it should be presumed from the mere fact that during marriage the wife gave some bonds to her relatives that the bonds were purchased with community funds, without the consent of the husband and fraudulently converted by her. Such acts of the wife commenced seven years before the death of her husband.

By virtue of Article 4619, all effects “possessed by the husband and wife at the time the marriage is dissolved” by death must be regarded as community effect or gains in the absence of proof to the contrary. But, neither the bonds nor the money were possessed by the husband or wife at said time. Generally speaking, there is a presumption that property acquired during marriage is community property. There is no evidence that the money used to purchase the bonds was acquired during marriage. The evidence shows that most of the bonds were purchased and given away long before the death of her husband. Under these facts, why should it be presumed that the bonds belonged to the community? We think there can be no presumption that the wife acted without the consent of the husband and fraudulently converted a portion of the community estate. Therefore, the court properly decreed that the plaintiff take nothing.

The burden of proving the alleged fraudulent conversion was upon appellant. 26 Tex.Jur.2d 77, Section 111. If the money used to purchase the bonds did belong to the community the husband had the power to give it to the wife. In Buford v. Southwestern Life Insurance Company, Tex.Civ.App., 77 S.W.2d 318, 321, it was held that a husband could make a gift of community or-his separate property to the wife and thereby make it the wife’s separate property, and that where the property stood in her name, it was prima facie her separate property. There was no evidence that the money used to buy the bonds was acquired during marriage. See Irving v. Fort Worth State Bank, (Tex.Com.App.), 256 S.W. 584. It would be more reasonable •to presume from mere proof of gift of the bonds during the marriage that they were purchased by funds from her separate estate or that the husband consented thereto than to presume that said gifts, which commenced seven years before the husband’s death, were made from community property without his consent. See also Hall v. Barrett, Tex.Civ.App., 126 S.W.2d 1045, 1047; Emery v. Barfield, Tex.Civ.App., 156 S.W. 311, 313.

Appellant’s second point is that the court erred in holding that it had no jurisdiction “if it did so hold.” The case was not dismissed for want of jurisdiction. The judgment simply shows that a jury was waived; that all matters of law and fact were submitted to the court and that judgment was rendered that plaintiff take nothing.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. E. J. KNIGHT, Appellee.
    No. 7506.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 27, 1963.
    Rehearing Denied Sept. 17, 1963.
    R. O. Kenley, Jr., Kenley, Ritter & Boy-land, Longview, for appellant.

      Gallagher, Francis, Bean, Wilson & "Berry, Dallas, for appellee.
   DAVIS, Justice.

A Workmen’s Compensation case. Appellee sued appellant under the extraterritorial provisions of the Texas Workmen’s Compensation Act, Art. 8306, Sec. 19, V.A.T.S., for disability and medical payments as the result of injuries he received while working for Gene McCutchin, who has an office in Dallas County, Texas, as a driller on an oil well in the State of New Mexico under a contract of employment made in Texas in March, 1961. Under the contract of employment, appellee was supposed to work as a roughneck, or as a driller, in the drilling of oil wells for McCutchin wherever such work might be done, as a Texas Employee.

The defenses were a general denial, and special defenses:

(1) That the appellee was able to earn an equal or a greater amount than prior to his alleged injury;
(2) that he was not a Texas Employee :
(3) that if he did receive an injury that the same was temporary and partial, and resulted from matters or things in no way connected with his employment by McCutchin, and in the alternative,
(4) that such matters were the sole cause of any alleged disability.

No payment of any compensation has been made.

At the trial, it was proved that appellee received his injury while working on an oil well in the State of New Mexico as an employee of McCutchin. Most of Mc-Cutchin’s prior drilling operations has been in Texas. He did not establish an office in the State of New Mexico for paying the men, or for doing any other character of business. According to the evidence, all pay checks for his employees, including appellee, were issued out of the Dallas office. Social security and withholding taxes were reported to the Federal Government from the Dallas office. Unemployment taxes on all wages paid to ap-pellee, including the date of his injury, were reported and paid to the Texas Employment Commission. It was proved that as to the employment and services of his men, Mc-Cutchin’s method of conducting business was that each of them were employed from job to job and from day to day, and when a particular job was finished, the payroll would be closed and the men would be off of the payroll until another job was commenced and they began to work on it. His employees were not carried on the payroll between jobs. It was customary, if he was satisfied with the men on the job, for the tool pusher to speak to them while still at work and thereafter about reporting to the next job for work when it began. In such event their employment, services and pay would start, not from the time of this arrangement, but from the time of their actually beginning work on the new job.

Appellee was a resident of Rusk County, Texas, under the provisions of the Workmen’s Compensation Act. Appellee’s first work for McCutchin was done in New Mexico. He had already learned that most of the work for his employer would be in Texas. Upon completion of the well in New Mexico, the rig was moved back to Texas, and a well was drilled in Upton County, Texas. Appellee returned to Texas and worked on the well in Upton County. While the rig was down after completion of the well in Upton County, appellee obtained the tool pusher’s permission to seek temporary work elsewhere. Appellee did, in fact, work temporarily for another drilling company in Utah. He kept in touch with the tool pusher to determine when he was to return to his job with Mc-Cutchin. This was done by long distance calls, collect, to the tool pusher for Mc-Cutchin. Appellee was on leave for approximately three weeks. In early July, 1961, appellee called the tool pusher, collect, and he was told to report to Hobbs, New Mexico, as a driller, the same job he had occupied for McCutchin on the well in Upton County. While working on the well near Hobbs, New Mexico, he received the injury. Appellee continued with his job, and following the completion of the well in New Mexico they moved the rig back to Texas and appellee drilled the well.

Trial was to a jury that found the ap-pellee sustained an injury, as a Texas Employee, while in the continuation of his employment by McCutchin under his contract of hire. Judgment was entered, and appellant has perfected. its appeal. It brings forward -five points of error.

By its point 1, appellant takes the position that the evidence established, as a matter of law, that appellee was not covered by the extraterritorial provisions of the Texas Workmen’s Compensation Act at the time material to this lawsuit.

By its point 2, it says the evidence failed to establish, as a matter of law, .that at the time of his injury appellee was covered under the extraterritorial provisions of the Workmen’s Compensation Act of the State of Texas.

By its point 3, it says the evidence was insufficient to establish the fact that appel-lee at the time of his injury was covered under the extraterritorial provisions of the Workmen’s Compensation Act of the State of Texas.

By its point 4, it says the trial court erred in failing to submit issues to the jury inquiring if appellee was a Texas employee temporarily working out of the State of Texas.

It does not take issue with the fact that appellee actually sustained an injury, and that the injury actually resulted in total and permanent disability. Appellant takes the further position that appellee was an oil field worker and that he was actually employed by McCutchin on the date of injury. They argue that the appellee was an employee, employed in the State of New Mexico, and that he can not recover under the extraterritorial provisions of the Workmen’s Compensation Act of the State of Texas.

To the contrary, appellee takes the position that he was a Texas Employee, and is entitled to recover. There are several cases direct in point on the question involved. In Associated Indemnity Corporation v. Scott, 5 Cir., 103 F.2d 203, and the cases therein cited, it points out that the primary purpose of our compensation law was to protect our own workmen and upholds the extraterritorial provision of the Workmen’s Compensation Act of the State of Texas. In Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590, the Supreme Court of Texas said: “[T]he place where the contract was made and entered into is not the determining factor in deciding a case like this.” In Jordan v. Standard Accident Insurance Company (Tex.Civ.App.) 339 S.W.2d 267, N.W.H., the court said:

“The phrase, ‘who has been hired in this State,’ has no reference to the place where the contract of hiring took place.” The court must liberally construe the Workmen’s Compensation Statutes. Texas Employers’ Ins. Ass’n v. Volek (Tex.Comm. of App.) 69 S.W.2d 33. Oil field workers are one of the groups of workmen to be protected under the extraterritorial provisions of the Texas Workmen’s Compensation Act. Traders & General Insurance Co. v. Collins (Tex.Civ.App.) 321 S.W.2d 178, W.R., N.R.E.

A letter was written to the appellee by McCutchin' over the signature of an employee. A part of the letter was offered in evidence, but its admission was erroneously refused by the trial court. The letter is stated, in part, as follows:

“We consider that your employment was in the State of Texas, and that you were temporarily transferred out of the State for the work that was done in New Mexico.”

2 Jones on Evidence 865, Sec. 367; 24 NACCA Law Jour. 132; 100 C.J.S. Workmen’s Compensation § 535, p. 535.

Construing the statute as we should, the appellee was a Texas employee, employed outside the State of Texas at the time of injury. Hale v. Texas Employers’ Ins. Ass’n, 150 Tex. 215, 239 S.W.2d 608, and authorities therein cited. 16 NACCA Law Jour. 38 to 66.

Appellant takes the position that the trial court erred in not submitting a special issue inquiring as to whether or not the appellee was a Texas Employee. In his original charge he asked the question. The appellant objected. At that time, it considered the finding of whether or not appel-lee was under the Statutes of Texas a Texas Employee was a matter of law rather than an issue of fact. It being the custom of the employer to transfer his crews from place to place, and there being no evidence of a new contract, it can be presumed in law that the relationship entered into between the parties continued in force and effect. Aetna Casualty & Surety Co. v. Dixon (Tex.Civ.App.), 145 S.W.2d 620, W.R. The points are overruled.

Appellant does not argue its 5th point of error. It contends the court erred in submitting to the jury special issue No. 15. The special issue and the jury’s answer thereto is as follows:

“SPECIAL ISSUE NO. 15:
“Do you find from a preponderance of the evidence that at the time the plaintiff, E. J. Knight, sustained the injury, if any, inquired about in Special Issue No. 2, in Lea County, New Mexico, such was sustained in the continuation of his employment by Gene McCutchin under his contract of hire, if any, of March, 1961 ?
“Answer ‘It was’ or ‘It was not’.
“ANSWER: It was.”

The issue is not erroneous, nor is it duplicitous. Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575; Eubanks v. Texas Employers’ Ins. Ass’n, 151 Tex. 67, 246 S.W.2d 467. Appellant failed to request any issue touching upon this matter. The point is overruled.

The judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Emory FORD et ux., Appellants, v. TEXAS & PACIFIC RAILWAY COMPANY, Appellee.
    No. 3823.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 13, 1963.

      John Whiteside, Ft. Worth, Dewey Cox, Jr., Ranger, for appellants.
    Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Earl Conner, Jr., Eastland, for appellee.
   COLLINGS, Justice.

Emory Ford and wife brought suit against the Texas and Pacific Railway Company for damages on account of the death of their son, Tommy Ford, who was killed in a collision between defendant’s train and the automobile operated by the deceased. The collision occurred at the Main Street crossing in the City of Ranger, Texas, on February 16th, 1960. The case was tried before a jury which found no acts of negligence on the part of the defendant and found four acts of contributory negligence against plaintiffs’ son proximately causing the fatal collision. Based upon the verdict judgment was entered in favor of the defendant railway company and Mr. & Mrs. Ford have appealed.

There is no statement of facts showing the evidence adduced at the trial. The only record of any testimony is that presented on appellants’ motion for a new trial, bearing upon the question of the alleged disqualification and misconduct of one of the jurors. Appellants’ points of error are limited, solely, to the alleged misconduct and disqualification of such juror. Appellants urge that the court erred in holding (1) that the juror, W. E. Austin, was not prejudiced in favor of appellee railway company and not disqualified to serve as a juror and (2) that such juror was not guilty of misconduct in that he decided in favor of appellee before the evidence was heard. Appellants’ points are not well taken and are overruled. In considering the question of whether a judgment should be reversed because of jury misconduct, the appellate court will examine the matter in the light of the entire record including the evidence heard on the motion for new trial and the evidence in the main trial and all other parts of the record pertinent to the issue. Rule 327, V.A.T.R. provides that:

“Where the ground of the motion is misconduct of the jury * * *, the court shall hear evidence thereof from the jury or others in open court, andi may grant a new trial if such misconduct proved, * * *, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

Since there is no statement of facts showing the evidence adduced at the trial of the case on the merits, we have no- way to determine that the alleged jury misconduct and alleged prejudiced juror probably resulted in the rendition of an improper judgment. See Davis v. Damge, Tex.Civ. App., 328 S.W.2d 203, (Ref. N.R.E.) ; Chadwick v. Glens Falls Insurance Company,. Tex.Civ.App., 340 S.W.2d SOI. In the last cited case which is directly in point the court stated as follows:

"The burden is on the plaintiff, who complains of the trial court’s action, to show from the record as a whole that the errors complained of amount to such a denial of his rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.”

We have also, however, examined the testimony presented on the motion for new trial bearing upon the question of the alleged disqualification and misconduct of the juror, W. E. Austin, and find that the trial court did not abuse its discretion in finding as a fact that such juror was not prejudiced against appellants and that he was not guilty of misconduct by having a preconceived opinion as to the merits of the case. In determining these facts the trial court heard the testimony of Mr. Austin, himself, who testified that he didn’t have “any particular axe to grind in the case” and that he did not “have a preconceived notion” about the case when he was selected as a juror. He denied making any statement while going to and from court during the trial that he did not feel that the railroad owed the Fords anything as a result of the collision. He stated that the only benefits received by any of his family from a railway company was that his mother draws benefits that are received when a person reaches 65, that is, instead of Social Security, “its whatever the railroad retirement thing is.” The juror, however, denied that this matter was mentioned in the jury room.

The question of whether the juror was prejudiced against appellants and guilty of misconduct or of having a preconceived opinion as to the merits of the case, were under the evidence questions of fact for the trial court. The trial court heard the evidence on a motion for new trial and made no express findings of fact but it is presumed, in support of the judgment, that the court found the juror was neither prejudiced nor guilty of misconduct. Such findings must be respected by this court unless it can be said that the trial court abused its discretion. The evidence presented on the motion for a new trial, in our opinion, amply supports the presumed finding that the juror, Austin, was not prejudiced against appellants and was not guilty of misconduct.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    The STATE of Texas, Appellant, v. John B. JACKSON et al., Appellees.
    No. 14180.
    Court of Civil Appeals of Texas. Houston.
    Sept. 12, 1963.
    Rehearing Denied Oct. 3, 1963.

      Waggoner Carr, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Austin, for appellant.
    Jackson & Jackson, Guy C. Jackson, III, Joe F. Sandlin, Anahuac, for appellees.
    E. W. Newman, W. M. Streetman, I. M. Wilford, Houston, for amicus curiae Sportsmen’s Clubs of Texas. Andrews, Kurth, Campbell & Jones, Houston, of ■counsel.
   WERLEIN, Justice.

This consolidated suit was brought by the State of Texas, acting by and through the Game and Fish Commission, to enjoin ap-pellees from further violation of that certain proclamation issued by said Commission on April 24, 1959 by virtue of the authority vested in the Commission under Article 4045, Vernon’s Annotated Texas Statutes (Acts 1923, 38th Leg., Ch. 139), proclaiming and decreeing that it shall be unlawful for any person to use seines or nets or to drag same for the purpose of taking or attempting to take any fish or other •edible life, with the exception of shrimp and oysters, in the waters of Galveston Bay, Trinity Bay, East Bay and West Bay in the Counties of Galveston, Chambers and Harris, provided, however, that the use of shrimp trawls shall not be prohibited, except by special law relating to the same, nor shall the use of a cast net or minnow seine of not more than twenty (20) feet in length for the catching of bait be prohibited.

The judgment of the trial court in denying the injunction sought by appellant recited: “for the reason that Article 4045 of Vernon’s Annotated Civil Statutes, 1925, on which Plaintiff relies in support of its contention is in direct conflict with House Bill 835, 55th Legislature, Chapter 480, page 1394, which is codified as a note under Article 978j of Vernon’s Annotated Penal Code, said Article 978j being enacted at a date subsequent to the enactment of Article 4045 aforementioned."

In an effort to determine whether the trial court properly denied the injunction sought by appellant, we shall briefly review certain Acts of the Legislature. In 1919 the 36th Legislature at its First Called Session (Ch. 73, p. 204) passed a comprehensive conservation law, which, among other things, created the office of Game, Fish & Oyster Commissioner (now Game and Fish Commission) and defined his duties and powers. Article 39 of the Act provided, among other things:

“And the Game, Fish and Oyster Commissioner, whenever he has reason to believe it is best for the protection and conservation and increase of fish life, or to prevent their destruction in the bays or part thereof, or such tidal waters of the State, to close such bays or parts thereof, or such tidal waters against all forms and kinds of seining or netting or using gigs, spears and lights, he is hereby authorized to close such waters against fishing with any seine, net, spears, gigs, lights or other devices, except with a hook and line or cast net or minnow seine of not more than twenty feet in length.”

This article imposes a legislative prohibition on netting in certain defined areas, and also provides for an administrative prohibition on netting in all bays and tidal waters.

In 1925 the Legislature adopted the Revised Civil Statutes and the Penal Code. The subject matter of Article 39 of the 1919 law, as amended in 1923, 38th Leg., Ch. 139, was carried forward in Article 4045, Revised Civil Statutes and in Article 941 of the Vernon’s Ann.Penal Code. In the first sentence of Article 4045 it is stated that it is unlawful to use nets and seines in the waters specified in Article 941 of the Penal Code. In a subsequent sentence, Article 4045 continues in effect the provisions aforesaid for the administrative closing of the bays and other tidal waters.

In 1929 Article 941, Penal Code, was rewritten and included Galveston Bay and Trinity Bay within the areas in which netting was made a crime. No change, however, was made in the administrative authority of the Game and Fish Commission to close any bay or tidal area. Hence the Commission continues to have the administrative authority to close any bay or tidal area to netting under Article 4045 unless such authority was repealed in 1957 by the enactment of H.B. 835 which deals with the taking of fish and shrimp in the area of Galveston and Trinity Bays north of the line between Eagle Point and Smith Point. House Bill 835, among other things, provides:

“Section 1. It shall be unlawful for any person to place or set, or have in his use or possession, in or on any of the waters of that portion of Galveston Bay and Trinity Bay lying within Chambers and Harris Counties, Texas, north of a line extending from Eagle Point to Smith Point, any set net, or gill net, trap or similar device for the purpose of catching fish. Provided it shall be lawful to use trammel nets which shall not exceed a length of twelve hundred (1200) feet and shall have at least a three and one-half (3½) inch stretch mesh.
* * * * * *
“Sec. 7. All other laws and parts of laws in conflict herewith are hereby expressly repealed, to the extent of such conflict only.” .

In the emergency clause of H.B. 835 it is stated:

“The fact that the present laws for the protection, preservation, conservation, and propagation of the State’s fish reserves in the waters of that portion of Galveston Bay and Trinity Bay lying within Chambers and Harris Counties, Texas, north of a line extending from Eagle Point to Smith Point, are conflicting, confusing, and inadequate, creates an emergency * * ⅜»

The evidence shows that appellees were fishing with nets which were in violation of the proclamation of the Commission issued April 24, 1959, but not in violation of said House Bill 835, enacted in 1957, which is the penal law currently governing the use of seines and nets in that area of Galveston and Trinity Bays north of a line between Eagle Point and Smith Point, since the trammel nets which were used by appellees at the time and on the occasions in question did not exceed a length of 1200 feet and such nets had at least a 3½ inch stretch mesh.

Appellees take the position that by the 1957 Act the Legislature specifically vested in fishermen an absolute right to catch fish with trammel nets in the area in question, provided such nets were not greater in-length than 1200 feet and had at least a 3½ inch stretch mesh, and that the Commission had no power under Article 4045-to close the affected area insofar as trammel nets of the prescribed dimensions were used. The 1957 Act, H.B. 835, repealed all conflicting laws to the extent of the conflict. It, therefore, repealed Article 941 of the Penal Code and Article 4045, V.A. T.S., to the extent that such articles made it unlawful to use trammel nets of the size and dimensions permitted by such Act in the area of Galveston and Trinity Bays north of the line between Eagle Point and Smith Point. The question remains whether it repealed Article 4045 insofar as that article gives the Commission the administrative authority to close the affected area to trammel netting.

House Bill 835 does not expressly repeal Article 4045, V.A.T.S. The law is well settled that it is only when two statutes are directly and irreconcilably in conflict that the latter repeals the former, in the absence of specific language repealing the same. Conley v. Daughters of Republic of Texas, (1913) 106 Tex. 80, 156 S.W. 197, 157 S.W. 937; Wintermann v. McDonald, (1937) 129 Tex. 275, 102 S.W. 2d 167, 104 S.W.2d 4. It has also been held that statutes which apparently are in conflict should be harmonized by the most reasonable construction that can be placed on them consistent with the intention of the Legislature. Cole v. State, 106 Tex. 472, 170 S.W. 1036.

Article 4045, V.A.T.S., is a civil statute which in part deals with an administrative agency and its authority to prohibit legal acts; whereas, the 1957 law is a criminal statute which makes illegal certain kinds of fishing in the affected area but which expressly legalizes or excepts the use of trammel nets of certain dimensions. The administrative right of the Commission to close any bay or other tidal area to netting has been in existence since 1919. It is our view that H.B. 835 does not take away from the Commission its general power under Article 4045, V.A.T.S., to close bays and tidal waters to certain kinds of fishing and netting where there is no specific legislation making it lawful to engage in same. It is further our view that if the Legislature by specific legislation closes or opens bays or tidal waters to certain kinds of fishing, only the Legislature by later similar specific legislation can open or close the same.

Had the Legislature never enacted any law with respect to the waters or area in controversy, the Commission would have the right under Article 4045, V.A.T.S., to close the same, and later to open such waters. We are of the opinion that where the Legislature has closed certain waters generally, but provides that it shall be lawful to use trammel nets of certain specifications within a specific and defined area thereof, the Commission may not forbid that which the Legislature has specifically authorized. It seems highly improbable that the Legislature, when it specifically authorized the use of trammel nets in the affected area, did not intend to remove from the Commission the power to forbid that which it had expressly authorized.

The general state-wide administrative authority of the Commission to issue proclamations closing bays and tidal waters under Art. 4045, V.A.T.S., was not repealed by H.B. 835. Such bill expressly repeals all other laws or parts thereof “to the extent of such conflict only.” Hence, it repeals Art. 4045, V.A.T.S., only insofar as it gives the Commission the power to issue proclamations closing the affected waters to the use of trammel nets of the dimensions prescribed by the Legislature in the proviso or exception contained in H.B. 835. The proclamation of the Commission to the extent that it undertakes to override the specific exception in the proviso contained in H.B. 835, is in direct and irreconcilable conflict with such legislative enactment and is, therefore, invalid.

We are of the opinion that the trial court did not err in refusing to grant the injunction sought by the State.

Judgment affirmed.


author: RUARK, Presiding Judge.

text:
    In the Matter of the ESTATE of Jacob SCHELL, Deceased. Mary E. SCHELL, Appellant, v. Hugh SCHELL, Administrator, Respondent.
    No. 8218.
    Springfield Court of Appeals. Missouri.
    Oct. 7, 1963.

      James L. Paul, Pineville, for appellant.
    Robert E. Yocom, Pineville, for respondent.
   RUARK, Presiding Judge.

This action originated in the probate court when Mary Schell, widow of Jacob Schell, filed in such court what she entitles “Exception to Inventory and Appraisement.” Jacob Schell was an old age pensioner who died in 1958. The widow’s motion, or whatever it may be termed, first states that no real estate of her deceased husband has been inventoried. It then alleges that prior to decedent’s marriage with “your applicant” a warranty deed was executed by decedent and was left at a bank “conditionally and not absolutely”; that a few days after the death of Jacob such deed was procured by the grantees therein and recorded; that “title to said real estate was vested in the decedent at the time of his death and that said warranty deed, if effective at all, was merely a testamentary deed and by reason thereof, your applicant is entitled to a widow’s share of said real estate.”

“WHEREFORE, your applicant prays that this matter be set down for hearing and that the court make further inquiry and if the allegations contained in this exception be sustained, that the court award your applicant such money as she may be entitled to by reason of being widow of the deceased and establish the same as a lien against said real estate.” (Our italics.)

The probate court had a hearing, at which Hugh Schell, Clifford Schell, and Jewell Robbin (the grantees in the deeds herein mentioned, Hugh also being the administrator) appeared by counsel. That court found that two deeds, conveying separate tracts to the abovenamed persons, had been executed during the lifetime of Jacob Schell, but had never been delivered and, “therefore, the real estate covered by the two deeds hereinabove referred to is a part of the estate of the said Jacob Schell and as such should be included in the Inventory and the administration.”

This order was appealed to the circuit court where the parties appeared and tried the case anew, the only issue of fact so tried being as to whether or not the deeds were delivered during the lifetime of deceased. The trial court’s judgment was as follows:

“ * * * The Court now finds as follows: That two Warranty deeds executed by Jacob Schell, dated February 17, 1953, were delivered in the lifetime of the grantor and were observed in the possession of one of the grantees ‘about May, 1955.’ The Court finds that said deeds were, therefore, not testamentary in character but passed title to the grantees. The said real estate not being in possession of Jacob Schell, at the time of his death, should not have been included in the inventory as a part of his estate. This cause should be returned to the Probate Court of McDonald County, Missouri, with directions to the Judge of that Court to proceed in accordance with the above findings and enter judgment against Mary E. Schell. * * * ”

The widow has appealed.

We are first concerned with our jurisdiction. The appellant does not make any jurisdictional statement as such, although, in advance of the statement of facts appears a short chronological history of the proceedings. No reason is assigned or theory offered as to how or why this court has jurisdiction, nor is any authority cited. Perhaps the appellant felt that we could easily determine our jurisdiction from the chronological statement alone.. Not so, as will hereafter appear. We believe the statement is not in compliance with the purpose and spirit of Rule of Civil Procedure 83.05 (a, b), V.A.M.R., and that the appeal is subject to dismissal. Langhammer v. City of Mexico, Mo., Mo., 327 S.W.2d 831; McHenry v. Wabash R. Co., Mo.App., 216 S.W.2d 538; Prewitt v. Zook, Mo.App., 197 S.W.2d 691; Feltenberger v. Evers, Mo. App., 210 S.W.2d 404. However, the respondent-administrator filed no motion to dismiss but submits his own jurisdictional statement wherein he contends that jurisdiction is in the supreme court because title is directly involved. So, we will attempt to determine that question.

We approach the question of jurisdiction with the view that in order to vest jurisdiction in the supreme court the judgment sought or the judgment rendered must affect or operate upon the title in the sense that some interest or moiety therein is denied to one and placed in another. The title must be directly in controversy. It is not sufficient that, in determining the issue involved, the court may incidentally or collaterally find it necessary to decide the question of title in order to arrive at a correct conclusion as to the question which is directly at issue. A plethora of cases bearing on one or more of the above statements will be found at West’s Missouri Digest, Courts, ^231(25, 40, 41).

If, however, we find title to be directly involved, we do not consider whether the proceedings were proper, nor whether the court had jurisdiction to render the judgment which it did, nor whether the judgment rendered was unauthorized or void on its face. If jurisdiction is vested in the supreme court, such questions are for that court to decide. Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, and cases at footnote 6, Mo., 297 S.W.2d 391; Kansas City v. Hammer, Mo., 347 S.W.2d 865(2); Howell v. Reynolds, Mo., 249 S.W.2d 381, 384. Nor is the form of action important in determining whether title, in a jurisdictional sense, is involved. Mack v. Mack, Mo., 281 S.W.2d 872; Albi v. Reed, Mo., 281 S.W.2d 882; Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 63.

As nearly as we can interpret the judgment soiight by the widow, it is that the court determine that she is entitled to an interest in the land, which has not been inventoried (and there is no direct request that the administrator be required to inventory), as the widow of Jacob Schell, and that such interest as may be reduced to money by court allowance be made the subject of an equitable lien on such lands— a sort of declaratory judgment that the family allowance and homestead are a charge upon the uninventoried and unap-praised lands. The ultimate issue tried by the court was whether or not the wife had any interest in said land as widow of Jacob Schell; this dependent upon whether he had conveyed it in his lifetime. The judgment rendered was that whole title was vested in the grantees in the deeds and that the land should not be inventoried as a part of the estate. The direct effect of the judgment declaring title in the grantees is to deny any title or interest in the widow applicant. Whether, under the new probate code, this declaration of title and direction not to inventory would have any direct effect upon the right of heirship under § 474.010, V.A.M.S., is one question. A judgment declaring title or an interest therein, even though unnecessary to the determination of the actual issues and not requested by the parties, raises the question of title in a jurisdictional sense.

Another question is whether the denial of the claim for an “equitable lien” of the widow against uninventoried lands constitutes the deprivation of an “interest” in real estate such as to directly affect the title. This does not involve the imposition and enforcement of a lien or charge in the usual sense. Where the lien claimed is something which can be satisfied by payment of money and is engrafted upon an undisputed title, or was admittedly valid in its inception, then the title itself is not in dispute, although it may ultimately be affected. In this instance the very essence of the claim for a “lien” or charge is a claim that an interest exists; that the title is one way, whereas the judgment of the court is that title is another way and no interest exists.

The homestead allowance is “in lieu” of former dower and homestead. Under the previous law the dower would have been consummate upon the death of the husband. The present homestead right claimed by the widow springs into being upon the death of the husband, although it is subject to being lost or divested if the widow (a) dies before receiving it, or (b) waives it. We believe this right or interest is, until limited to certain specific real estate by selection or order of the probate court, or until lost as above stated, a general charge against all of the real estate of the husband for security of the homestead right. Certainly, if she had filed an application and requested the allowance of certain specific property, jurisdiction would be in the supreme court. In re Bell’s Estate, Mo., 328 S.W.2d 697. See, also, Schubel v. Bonacker, Mo., 331 S.W.2d 552, as to claim filed by widow’s executor.

Bearing in mind that the statutes creating the right of homestead are to be construed with great liberality (Owen v. Riffle, Mo., 323 S.W.2d 765), we conclude it is at least reasonably arguable that the “lien” which the widow attempted to assert, and which the court denied, was an interest in real estate.

In cases of this kind the court of appeals examines the record, and if doubt as to the jurisdiction of the supreme court exists, the case is transferred to that court. This is not because we choose to surrender any jurisdiction which is properly ours (we could more easily decide the case on the briefs or merits), but because, since the supreme court is vested with the power to determine title questions, it has the ultimate authority to determine what is a title question. In this instance, we believe that our jurisdiction, in a constitutional sense, is doubtful and, hence, the case should be transferred to the supreme court.

It is so ordered.

STONE and HOGAN, JJ., concur.

      . We do note, however, jurisdiction to render the judgment was considered in Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 777, and Bank of Forest City v. Pettijohn, 338 Mo. 506, 92 S.W.2d 189.

      . So far as we can see, this would be the family allowance, § 474.260, Y.A.M.S., 1957, and the homestead, § 474.290, V.A. M.S., 1957.

      . State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544(6); Dillard v. Dillard, Mo., 266 S.W.2d 570, 572; Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142; Domyan v. Dornin, Mo.App., 348 S.W.2d 360, Mo., 356 S.W.2d 70; Kennedy v. Duncan, 224 Mo. 661, 123 S.W. 856, 857.

      . Chapman v. Chapman, 194 Mo.App. 483, 185 S.W. 221(6), 269 Mo. 663, 192 S.W. 448; Shiner v. Polk, Mo., 366 S.W.2d 449; Boesel v. Perry, Mo., 262 S.W.2d 636; see Brannock v. Magoon, 216 Mo. 722, 116 S.W. 500; Snodgrass v. Copple, 203 Mo. 480, 101 S.W. 1090.

      . Reece v. Van Gilder, Mo., 272 S.W.2d 177; First Nat. Bank of Monett v. Kinser, 341 Mo. 819, 109 S.W.2d 1221.

      . Null v. Howell, 40 Mo.App. 329, 111 Mo. 273, 20 S.W. 24; Missouri City Coal Co. v. Walker, Mo.App., 183 S.W.2d 350, Mo., 188 S.W.2d 39; Bingaman v. Hannah, 171 Mo.App. 186, 156 S.W. 496, 270 Mo. 611, 194 S.W. 276; In re Ellis’ Estate, Mo.App., 110 S.W.2d 864, Mo., 127 S.W.2d 441.


author: PALMORE, Judge.

text:
    K. L. CRADY et al., Petitioners, v. Edward J. BENSINGER, Jr., Judge, Jefferson Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 17,1963.
    Daniel B. Boone, Boone & Triplett, Louisville, for petitioners.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Laurence E. Higgins, E. P. Sawyer, Cecil Davenport, Louisville, for respondent.
   PALMORE, Judge.

This is an original proceeding for a writ prohibiting the respondent, as judge of the trial court fro.m which the appeal was taken in Crady v. Cranfill, Ky., 371 S.W.2d 640, from entering an order which in effect would direct the re-arrest of Kenneth Lee Crady and Frank Odell Gaines and rule their sureties to deliver them up at a specified time or be held liable to bond forfeiture. A temporary writ was denied.

The contention that Judge Bird’s order setting aside that portion of the judgment admitting Crady and Gaines to bail was void is settled to the contrary in Crady v. Cranfill.

As the trial court in Crady v. Cran-fill had jurisdiction of the parties, its action in admitting the prisoners to bail, though erroneous, was not void. Hence the substance of Judge Bird’s order with respect thereto was to revoke the bail. This left the judgment fully operative except as to the bail provision. With that provision no longer in force the legal effect of the judgment denying discharge of the prisoners was to require their remand to the custody of the jailer. There being no provision of law giving their appeal the effect of a stay, appellee was entitled to enforce the judgment through such ancillary steps as were necessary in order to effect a remand. It is true, of course, in a general sense that the trial court no longer had jurisdiction of the proceeding, since its judgment had been appealed, but jurisdiction need not, like an egg, be all at the same place at the same time. “Except where the appeal operates as a stay or su-persedeas, the lower court may proceed to the execution of an original judgment or decree, notwithstanding the pending appeal.” 4 Am.Jur.2d 837 (Appeal and Error, § 360); Garnett v. Oliver, 242 Ky. 25, 45 S.W.2d 815, 816 (1931). Unless otherwise provided by law, an appeal “does not operate a divestiture or suspension of the authority of the court to proceed in the execution of the decree. Whatever measures are necessary for the execution of the decree, it is the duty of the court, on the application of a party in interest, to pursue as if the appeal had not been taken.” Ex parte Hood, 107 Ala. 520, 18 So. 176, 177 (1895).

It is our conclusion that the course of action the respondent proposes to take is neither erroneous nor beyond the jurisdiction of his court.

The writ is denied.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Fernando Vicinte MARGANON et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 20, 1963.
    John B. Breckinridge, Atty. Gen., Bowling Green, Joe Nagle, Asst. Atty. Gen., Frankfort, for appellant.
    Joseph R. Huddleston, Bowling Green, for appellees.
   MONTGOMERY, Judge.

An indictment under KRS 433.120(2) against Fernando Vicinte Marganon, Arthur MacBride, and Danny Leroy Caldwell, was dismissed as failing to state an offense under the statute. The Commonwealth seeks a certification of the law.

The statute provides:

“Any person who has possession of any tools, implements or other things used by burglars for housebreaking, forcing doors, windows, locks or buildings or other places where goods, wares, merchandise or money is kept, with the intention of using them burglariously shall be confined in the penitentiary for not less than two nor more than ten years.”

The indictment charged the possession of “tools and implements used by burglars for forcing locks to places where goods, wares, merchandise, and money is kept, to-wit: One brake adjusting tool, two tire irons, one screw driver, one knife, the type that is used for picking locks as the end has been filed and honed down, and that said defendants possessed same with the intention to use them burglariously and that at the time and place they had the intention to force a lock on a place where goods, wares, merchandise, and money was kept, to-wit: A Royal Crown Cola soft-drink vending machine located just outside the building of Basham’s Marathon Service Station * *

The language of the indictment follows the language of the statute. Apparently the basis for holding the indictment defective was that the lock to be forced was on a vending machine located outside of a building. The question is whether by the use of the words “burglars” and “burglar-iously” in the statute it was intended to restrict its application to possession of tools with the intent to commit common law burglary.

The language of the statute indicates a broader intent by the Legislature. It expressly condemns the possession of tools for the unlawful entry into “other places,” as well as for housebreaking, forcing doors, windows, locks, or buildings. The use of the phrase “or buildings or other places” indicates a statutory intent to include all buildings or places where goods, wares, merchandise, or money is kept, instead of limiting the operation of the statute to dwelling houses. Such construction is necessary to give meaning to these words. As such, it is sufficient to include a vending machine outside of a building.

Similar interpretations have been made. In Commonwealth v. Riley, 192 Ky. 153, 232 S.W. 630, tools for extracting and stealing whiskey from barrels in a warehouse were condemned under this statute. In Burch v. Commonwealth, 240 Ky. 519, 42 S.W.2d 714, a conviction of possession of nitroglycerin for cracking a safe in a store building was upheld. See also Johnson v. Commonwealth, 240 Ky. 123, 41 S. W.2d 913; Commonwealth v. Tilley, 306 Mass. 412, 28 N.E.2d 245, 129 A.L.R. 381 (auto trunk); Sanchez v. People, 142 Colo. 58, 349 P.2d 561, 78 A.L.R.2d 775 (telephone booth).

The proper interpretation of the statute is that possession of tools with intent to break unlawfully into any “places where goods, wares, merchandise or money is kept” is a violation.

The law is so certified.


author: CULLEN, Commissioner.

text:
    Charles Eugene GOEHRING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 20, 1963.

      Ragland & Miller, Owensboro, Kenneth N. Ragland, Calhoun, John D. Miller, Owensboro, for appellant.
    John B. Breckinridge, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Charles Eugene Goehring appeals from a judgment imposing a 21-year sentence upon a conviction of armed assault with intent to rob.

Counsel employed by the family of prosecuting witness was permitted to assist in the prosecution, his assistance being limited to sitting at the prosecution counsel table and advising with the Commonwealth’s attorney. Appellant concedes that the present rule in this jurisdiction permits such assistance but he argues that the rule should be changed or at least should be qualified by a requirement of advance notice to defense counsel. No persuasive reasons why the rule should be changed are presented. As concerns the suggested qualification, we do not see any particular benefit that would accrue from the giving of advance notice that employed counsel will assist in the prosecution.

At times during the trial a brother of the prosecuting witness sat at the prosecution counsel table and conferred in whispers with the prosecuting counsel. The brother was an attorney and was judge pro tem. of the local county court. Appellant argues that the participation by the brother was prejudicial, particularly since the brother held a judicial office. Whether prejudice could have resulted from this is a matter of mere speculative possibility. In our opinion there is not a sufficient probability of prejudice to warrant reversing the judgment.

The prosecuting witness testified that during the course of a ride in the appellant’s car the appellant drew a gun on him and demanded $20,000 under threat of death to the witness and of bodily harm, by confederates of the appellant, to the children of the witness. He testified that the appellant seemed to have detailed knowledge of the ages of the children, where they attended school, the times of their going to and returning from school, and the going and coming habits of the family generally. The witness also testified that he had seen the appellant driving back and forth in front of the home of the witness on the morning of the day of the assault, and that the appellant had followed the witness in his car when the witness drove to work that morning. Some relatives and neighbors of the prosecuting witness then were permitted to testify, over objection, that on numerous occasions prior to the day of the assault they had seen the appellant driving back and forth, or around the block, past the house of the prosecuting witness. The appellant maintains that it was prejudicial error to admit the latter testimony. He argues that the testimony did not tend to show a continuing plan or intent to commit the charged assault, it was therefore not relevant, and it had a prejudicing effect.

In our opinion the testimony was relevant as corroboration of the testimony of the prosecuting witness that the appellant had detailed knowledge of the movements of the family of the prosecuting witness and made threats of harm to the children. The threats made by the appellant at the time of the assault were an essential part of the offense. We think that evidence of prior conduct of the appellant tending to show a plan of preparation for the making of such kind of threats was admissible.

After the appellant had testified in his own defense the Commonwealth introduced witnesses who testified that his reputation for truth and veracity was bad. Some of the questions asked these witnesses concerned the reputation of the appellant immediately prior to the day of the charged offense. The appellant argues that it was error to admit evidence of reputation at the time of the offense as distinguished from the time of the trial (which was nine months after the offense).

The rule is that evidence affecting the defendant’s credibility as a witness must be directed to the time he testifies and a reasonable period theretofore. Buchanan v. Commonwealth, 304 Ky. 225, 200 S.W.2d 459; Shell v. Commonwealth, 245 Ky. 223,, 53 S.W.2d 524. However there is a qualification of the rule in that if it appears that the bad reputation at the time of trial grew out of the commission of the offense for which the accused is on trial, the evidence is not admissible. Frith v. Commonwealth, 288 Ky. 188, 155 S.W.2d 851.

There is always danger of a defendant’s reputation for credibility at the time of his trial being affected by the circumstances of the offense and the fact of his having been charged with the offense.. See Gabbard v. Commonwealth, 159 Ky. 624, 167 S.W. 942. It may be impossible-in some instances to show that these factors did influence the reputation, in which case-the defendant would have no protection-against the evidence. For this reason we-think the courts should not be too strict in. measuring what constitutes a reasonable time in determining whether evidence of reputation at a time prior to the trial' should be admitted. Under the particular circumstances of this case it is our opinion, that the time as of which the witnesses said the defendant’s reputation was bad! gine months before the trial) was within a reasonable period prior to the trial, under the rule.

The appellant is not entitled to claim error of the trial court in failing to •admonish the jury that the testimony concerning his bad reputation could be considered only as affecting his credibility, because appellant did not ask for an admonition. Lewis v. Commonwealth, Ky., •3S7 S.W.2d 31.

Appellant complains of a remark made by the Commonwealth’s attorney, in his closing argument, to the effect that he (the attorney) had children in the same ■neighborhood as the prosecuting witness •and that he “wouldn’t want the defendant messing with his children.” It appears that •an objection was made before the attorney finished the remark and nothing further was said along this line. In our opinion this remark was not so calculated to inflame or arouse the passion of the jury as to be prejudicial.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Orville NOLAN, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Sept. 20, 1963.
    Orville Nolan, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appel-lee.
   WILLIAMS, Judge.

The grand jury of Harlan County indicted the appellant, Orville Nolan, for housebreaking and three previous convictions of a felony. When the case came on for trial in the Harlan Circuit Court the appellant, being represented by counsel, entered a plea of guilty. Judgment was entered against him and he was sentenced to ten years in the State Reformatory. Thereafter appellant petitioned the Lyon Circuit Court for a writ of habeas corpus. Judgment dismissing the petition for a writ of habeas corpus is the subject of this appeal.

The appellant maintains that the indictment falsely charged a previous conviction of felony and consequently was defective. Since appellant chose to enter a plea of guilty there was no necessity to prove the previous convictions charged in the indictment. Had the indictment been defective, such defect could have been raised on an appeal and is not such an exceptional circumstance as could be resorted to in a habeas corpus proceeding. Rice v. Davis, Ky., 366 S.W.2d 153.

The Harlan Circuit Court invoked a penalty which' was less than that required by the habitual criminal act. KRS 431.190. The failure to invoke the penalty prescribed by that statute was of benefit to the appellant. In Thomas v. Maggard, Ky., 313 S.W.2d 271, we said that a judgment imposing a sentence less than the minimum authorized by statute is erroneous but not void. We can not conceive that appellant was deprived of any constitutional right by the imposition of a sentence of less duration than that dictated by statute.

It appears that the attorney appellant hired to represent him was a son-in-law of the Commonwealth’s prosecuting witness. Because of this appellant feels that he was effectively denied assistance of counsel. The mere fact that the attorney whom he chose to represent him was related by marriage to a witness in the case was not sufficient to show that the accused was deprived of a fair trial.

The Harlan Circuit Court had jurisdiction of the appellant and the offense, and the judgment rendered on the plea of guilty was not void. It does not appear that appellant was denied any constitutional right, nor is there any other fatal defect shown which would justify relief under habeas corpus.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    KENTUCKY POWER COMPANY, Appellant, v. Maggie DAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    June 14, 1963.
    Willis W. Reeves, Hazard, O. J. Cock-rell, Jackson, Smith, Reed & Leary, E. Gaines Davis, Jr., Frankfort, for appellant.
    J. Douglas Graham, Campton, Jesse S. Hogg, Winchester, for appellees.
   MILLIKEN, Judge.

The one and a half story frame home of the Davises burned down about 8:00 a. m. ■on a fair day, November 7, 1958, when the ■outside temperature was near freezing and no heating equipment was in service in the house. Maggie Davis was finishing washing the breakfast dishes in her detached kitchen, heated by a coal-burning range, when her three-year old grandson ran in to tell her the house was on fire. She testified that the fire was on the opposite or lower side of the home, about twelve feet from the electric meter, and ran down along the lead wire or cable to the meter box. This circumstance was confirmed by a helper who also supported her testimony that the cable was attached to the side of the frame home by metal staples or steeples and not by the insulated clamps usually used for that purpose. The Power Company denied the use of such staples in the wiring and introduced its records to support its contentions. In any event, no previous trouble had occurred from the installation which had functioned properly for approximately fifteen years.

Since there was no heating equipment in use in the home at the time and no evidence of fire inside the home in the beginning, it is the Davises’ view that the fire was started by the Company’s wiring on the outside of the home, erosion of the insulation and contact of the bared cable with the metal staples which held the cable to the frame home. In view of the total destruction of the home, it was impossible to establish the truth of that theory by direct evidence, thus leaving tenable the Company’s theory that the fire started within the walls of the home from defective wiring over which the Company had no control. The jury awarded the Davises $2,500 for the loss of their home, and the question before us is whether there is enough evidence of negligence to sustain the award. Despite the contention of plaintiffs in the brief, we have not found any direct testimony that the wires were on fire on the outside of the home before the home itself was aflame — that is, whether flaming wires set fire to the home or the flaming home set fire to the wires.

In Kentucky & West Virginia Power Company v. Kilburn (1947), 304 Ky. 635, 201 S.W.2d 896, at page 898, where a somewhat similar situation was discussed, we said:

“We cannot usurp the prerogatives of the jury. It was alleged and proven by a number of witnesses that staples were used in fastening the service wires to the house and that insulators were not used. We are not to pass upon the credibility of the witness, Cornett, who testified positively that he saw the wires leading to the house first burning. It is true that mere suspicion or conjecture as to what caused a fire is not sufficient to take the case to the jury. The plaintiff, to entitle him to recover, has the burden first of showing negligence in the installation. * * * It cannot be said here that there is a total failure of proof of negligence or no room for reasonable inference that the proven negligence had causal connection with the fire.”

In the present case we do not have any witness who testified that he “saw the wires to the house first burning,” so as to establish the causal relationship between the initial negligence — the use of staples (if that is negligence) — and the location of the fire along the cable on the side of the house. We have held heretofore that such evidence does not establish the causal relationship but merely causes a jury to speculate as to whether the Company’s portion of the wiring was so defective as to cause the fire. Kentucky Power Company v. Combs (1957), Ky., 305 S.W.2d 105. And in Kentucky Power Company v. Hogg (1957), Ky., 301 S.W.2d 1, where a worn place was noticed on the Company’s cable, hut of which the Company had no notice, and its wires were down after the fire was discovered, we commented “this wire could have easily burned through after the fire [was] started,” and was so speculative in its implications that it was not sufficient to justify submitting the case to the jury.

Speculation is heightened in the present record because the Company offered evidence that its cable was properly installed by insulated clamps and the plaintiffs’ own witness, the electrician who rewired their home, declared that he always made it a point to check the outside wiring when he wired a home and that in this instance the Company’s cable was properly installed with insulated clamps, not staples. Of course, this testimony, as well as any other admitted, is a matter for the jury to consider, but we mention it here to show the conflicting nature of the testimony offered in this case in order, in turn, to show how important it is to establish the causal relationship by evidence of probative value and not by mere speculation. The rapidity with which the home was consumed in itself suggests that fire was at work for some time before it was discovered on the outside of the building, but this, of course, again is speculation — not proof. Attempts to establish causation by assuming that the staples allegedly used wore through the insulation on the cable and thus caused the fire are assumptions purely, for there is no evidence that the insulation on the cable or the service wires was in fact worn off before the fire.

The judgment is reversed and judgment is directed- for the Company.