author: WOODLEY, Presiding Judge. BELCHER, Commissioner.

text:
    Fred Edmond OEHLERS, Appellant, v. The STATE of Texas, Appellee.
    No. 35439.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    On Motion to Reinstate Appeal April 17, 1963.
    Rehearing Denied May 29, 1963.
    Greenwell & Hines, Thomas E. Hines, Robert A. Greenwell, Houston, for appellant.
    Ted Schulz, County Atty., Richmond, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is operating an automobile upon a public road while intoxicated; the punishment, 3 days in jail and a fine of $50.

The record contains no notice of appeal entered of record, as required by Art. 827, C.C.P.

Recital appearing in the court’s docket: “Notice of appeal given” is not a sufficient compliance with the statute. Keilmann v. State, 162 Tex.Cr.R. 603, 288 S.W.2d 113; Root v. State, 164 Tex.Cr.R. 589, 301 S.W.2d 145; Black v. State, Tex.Cr.App., 268 S.W.2d 661; Loud v. State, 166 Tex.Cr.R. 81, 309 S.W.2d 71.

In the absence of a notice of appeal entered of record, as required by the statute, this Court is without jurisdiction to enter any order other than to dismiss the appeal.

The appeal is dismissed.

ON MOTION TO REINSTATE APPEAL

BELCHER, Commissioner.

The record having been perfected, the motion to reinstate is granted.

It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.

Appellant contends that Officers Wilson and Nicholson, both State Highway Patrolmen, who were the only witnesses to express opinions that he was intoxicated, did not show by their testimony that they possessed sufficient facts upon which they could base their opinions.

In describing the manner of appellant’s operation of his car, which Officers Wilson and Nicholson followed for about one quarter of a mile before he turned off and stopped, Officer Wilson testified that:

“The car was being driven in an erratic manner. It would dribble over to the center stripe and touch the center stripe and weave back over on the right-hand side of the roadway and back over to the center stripe. One time it run completely off the pavement about three-fourths of the car was off on the shoulder.”

He further testified of his observations of the appellant immediately after he had stopped, as follows:

“Q. Officer, in all events according to your testimony, his walk was slow and deliberate? That is the way you describe it ?
“A. Yes, sir.
“Q. How close did you get to him, at this time?
“A. Quite close to observe his breath and smell about him.
“Q. Did you notice any particular odors at that time?
“A. Yes. His breath had the smell of alcoholic beverages.
“Q. Will you state whether or not you noticed anything about his speech ?
“A. His speech was similar to his walking. His speech was slow and his mind was slow.
* * * * * *
“Q. Mr. Wilson, during your time you have served as a patrolman, will you state whether or not you have handled drunken people under the influence of intoxicating liquor.
“A. Yes, sir.
“Q. Many of them?
“A. Yes, sir.
“Q. Officer, will you state whether or not in your opinion Mr. Oehlers was under the influence of intoxicating liquor.
“A. Yes, he was.
“Q. You took him in custody on the basis of that? Is that correct?
“A. Yes, sir. * * *”

Testifying about the first time Officers Wilson and Nicholson saw the appellant, Officer Nicholson testified as follows:

“A. We were looking for his car and we saw the car pass us going east and we turned around and followed him.
“Q. Now, Officer Nicholson, at that time, did you notice his driving?
“A. Yes, sir.
“Q. Will you tell the court and jury what took place?
“A. Well, the driving was very erratic. He ran off the shoulder on the right side of the road and back to center line and he was weaving from the outside edge of the pavement back to the center line.
“Q. All right, sir. How far, Officer, do you think that you observed him driving like that?
“A. Oh, I would say — we were exactly behind him. I would say approximately a quarter of a mile. It could be slightly more. Around a quarter of a mile.
* * * * * *
"Q. Will you tell the court and jury how you saw him walk? If you observed it.
“A. He walked slow and deliberate. He watched the ground like he was afraid—
* * * * * *
“Q. How did he talk?
“A. His speech was slow.
⅝ ⅜ }jC ⅜ ⅝ ⅜
“Q. Officer, did you get close to Mr. Oehlers ?
“A. Yes, sir.
“Q. Did you smell any odors?
“A. Yes, sir. There was an odor of some type of alcoholic beverage about him.
“Q. All right, sir. Now, Officer, you have handled people who have been under the influence of intoxicating liquor ?
“A. Yes, sir.
“Q. Based upon your observation of Mr. Oehlers and things which you saw as you observed him there, will you state whether or not in your opinion he was under the influence of intoxicating liquor?
“A. In my opinion he was under the influence of liquor.”

According to the testimony, the witness Harvey Neil alerted Officers Wilson and Nicholson about the erratic operation of a certain automobile which conforms to the description the officers gave of the one driven by the appellant when apprehended. While testifying about said car Harvey Neil stated:

“Well, the first thing I noticed about the car it was traveling extremely slow for the highway and the car was not only traveling slow, but was swerving on the highway running across the center line into the oncoming lane of traffic. And in the distance that I observed the car, which I presumed to be something like three miles or so between Park Road and the river bridge, he actually went off either shoulder of the road on both sides of the highway and at least of the oncoming cars, two had to leave the road to keep from having a headon collision.
“Q. All right, sir. How far did you observe the car? Do you have any idea, Reverend, about the number of miles?
“A. I would guess approximately three miles. Possibly four.”

Testifying in his own behalf, the appellant admitted that he was driving an automobile on the highway at the time in question but denied he was intoxicated. He attributes any erratic driving to his tired and exhausted physical condition due to working long hours daily and the strain of business complications. He testified that he had two mixed drinks that day, one in the morning and another after lunch,, and two beers about 6 p. m.; that about 9 p. m. he turned off the road and stopped because he was getting sleepy, and was then approached by the officers, but said he did not stop because of any signal given by them. His testimony was corroborated by several witnesses, and others testified that he bore a good reputation.

The question is whether there is sufficient evidence to support the conviction because the officers’ opinions were based upon facts, which were as consistent with sobriety as with intoxication, and not whether they had sufficient knowledge of the facts to permit them to express an opinion as to appellant’s intoxication. There was no objection to their testimony expressing the opinion that appellant was intoxicated.

The testimony of the appellant and his witnesses showing his tired, sleepy and exhausted physical condition and explaining his erratic driving, with the other evidence offered by him when considered in connection wtih the testimony of the two officers at most raised an issue of fact as to appellant’s intoxication. We do not agree that the facts and circumstances upon which the officers based their opinion that appellant was intoxicated are as consistent with sobriety as with intoxication or that the probative value of their opinions was overcome by the facts upon which such opinions were based. Mendoza v. State, 169 Tex.Cr.R. 88, 332 S.W.2d 335.

The jury resolved the issue of intoxication against the appellant.

The other contention presented has been considered and it does not show error.

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

Opinion approved by the Court.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Leanordo HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35812.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful sale of beer in a dry area; the punishment, a fine of $250.00.

Judgment was rendered on December 7, 1962, and motion for new trial was filed December 14, 1962.

The term of court ended December 15, 1962, at which time the motion for new trial was pending.

The motion for new trial was overruled on December 28, 1962, and notice of appeal was given.

On the same day the bail bond which appears in the transcript was approved and filed.

Art. 755, Vernon’s Ann.C.C.P. provides in part that motion for new trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed.

An appeal bond signed and filed on the same day notice of appeal is given is not sufficient to confer jurisdiction upon the Court of Criminal Appeals, a recognizance on appeal being required if the appellant is not in jail. Art. 830 V.A.C.C.P.; Geisler v. State, 165 Tex.Cr.R. 322, 307 S.W.2d 95; Fuller v. State, 163 Tex.Cr.R. 142, 289 S.W.2d 763.

The appeal is dismissed.


text:
      Cecilio HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35811.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of beer for the purpose of sale, in a dry area; the punishment a fine of $100.00.

It appears that the appellant is at large under an appeal bond approved and filed on the same day notice of appeal was given.

We are without jurisdiction to enter any order other than to dismiss the appeal. Art. 830 Vernon’s Ann.C.C.P.; Hernandez v. State, Tex.Cr.App., 367 S.W.2d 675; Geisler v. State, 165 Tex.Cr.R. 322, 307 S.W.2d 95.

The appeal is dismissed.


author: BELCHER, Commissioner.

text:
    Jack Doyle McMILLON, Appellant, v. The STATE of Texas, Appellee.
    No. 35652.
    Court of Criminal Appeals of Texas.
    May 8, 1963.

      Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Gus J. Zgourides and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder without malice under Art. 802c, V.A.P.C.; the punishment, four years.

The evidence of the state reveals that about 9:30 P.M., the appellant while intoxicated drove his automobile upon a two-lane highway and while so driving turned his Cadillac to the left across the center stripe to pass an automobile which was immediately in front of him and traveling in the same direction; that in proceeding to pass the automobile, the appellant was instantly confronted with a Volkswagen traveling in the opposite direction; that the Volkswagen swerved to its right and appellant swerved to his left, and the collision between them occurred causing the death of three of the four occupants of the Volkswagen, including the deceased named in the indictment.

Testifying in his own behalf, the appellant admitted that he was driving the Cadillac at the time and place in question but denied that he was intoxicated, although he stated that he drank two beers between I and 6 P.M., and the last of three other beers at 8 P.M., before the collision about 9:30 P.M. He further testified that immediately before the collision, an automobile suddenly came out of a side road on his right, turned onto the road in front of him, and to avoid striking it he applied his brakes, swerved into the lane on his left and hit the oncoming Volkswagen causing the death of three of its occupants.

Appellant in his brief and on oral argument contends that the court’s charge was fundamentally erroneous on the ground that it failed to correctly submit the means causing the death of the deceased as alleged in the indictment. The court in its charge, among other conditions, authorized a conviction if the jury found that appellant killed Dan Dansby by driving his automobile into and causing it to collide with Dan Dansby, thereby jarring, bruising and injuring his body which caused Dansby’s death. Whereas, the indictment alleged that appellant “did kill Dan Dansby by then and there driving said vehicle into and causing it to collide with an automobile, which said automobile was then and there occupied by the said Dan Dansby, thereby jarring, bruising and injuring the body of the said Dan Dansby, from which injuries the said Dan Dansby then and there died.”

There were no objections to the charge of the court or any requested charges.

It is uncontroverted that the collision caused the death of Dan Dansby. The appellant testified that the collision caused the death of three of the occupants of the Volkswagen. Therefore the failure of the charge to require, before conviction, the finding that the death of the deceased resulted from appellant’s driving his car into and against a car occupied by the deceased as alleged in the indictment, instead of the findings under the charge as given that he caused the car to collide with the body of the deceased thereby killing him, was not under the evidence calculated to prejudice the rights of the appellant. If there was error in the charge, it was not fundamental and was waived by the failure of the appellant to object in the trial court. Art. 666 C.C.P.

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

Opinion approved by the Court.


author: McDonald, judge.

text:
    Frank Granville MELTON, Appellant, v. The STATE of Texas, Appellee.
    No. 35790.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Ronald R. Waldie, Richard S. Geiger, Dallas, for appellant.
    Henry Wade, Dist. Atty., James H. Miller, Stephen Guittard and Emmett Col-vin, Jr., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is assault, with intent to murder with malice; the punishment, confinement in the penitentiary for seven years.

Appellant contends that the trial court was in error in refusing his requested charge on simple assault. If there was evidence from any source to support such a charge, it should have been given.

The appellant testified that he was riding along a Dallas street late at night with a young friend. A car pulled in behind him, with its lights on bright, and followed him for some distance, staying within a few feet of his rear bumper. He testified that he thought it was a police car; that he pulled over and began to slow down; that the car passed him, turned at the next intersection and stopped; that he then stopped and the car backed up to him. There were three large boys in the car. He related that some “pretty nasty words” were used by the boys in the other automobile and that they were the aggressors throughout the entire transaction. He stated that he took out a pistol from the glove compartment between the seats and pointed it out the window. He further testified that, fearing a fight, he fired four or five shots over the other car, because “I was hoping it would scare them off, and that would be all there was to it.”

As stated in Roddy v. State, 136 Tex.Cr.R. 496, 126 S.W.2d 669:

“We are of opinion that the court should have responded to appellant’s exception to the charge and submitted an instruction covering the law of simple assault. Appellant’s testimony to the effect that he shot in the air only to scare the injured party and his companions called for such an instruction. In Smith v. State, 114 Tex.Cr.R. 534, 26 S.W.2d 1069, we said: ‘The courts have many times held that an accused who unlawfully shoots a gun with intent to alarm or scare is only guilty of a simple assault.’ * * * ”

See also cases cited in Smith, supra, and Crowley v. State, 146 Tex.Cr.R. 269, 174 S.W.2d 321.

The judgment is reversed and the cause remanded.


text:
    Joseph Lester MIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 35612.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    Rehearing Denied May 22, 1963.
    Robert C. Benavides, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Ed Davis, Don Wills and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, two years in jail and a fine of $200.

The witness Gainer testified that about 7:30 P.M., January 7, while driving his pickup truck around a curve on a public road, he saw a huge cloud of dust rising up over the road in front of him, and a fender of a truck lying in the road rocking back and forth, and next he saw a pickup truck on his left hand side of the road headed down in a ditch with a small part of the rear extending onto the road; that when he backed up he saw a man under the steering wheel who would not look around or respond to his call if anyone was hurt. Gainer then went on to his home, about three blocks away, notified the police and returned to the pickup in the ditch. When Gainer returned to the scene about 8 to 10 minutes later, with a flashlight, he saw only one man in the truck, and he was under the steering wheel and would not respond to his questions. While Gainer waited at the scene the officers arrived and put the man in the squad car. Gainer saw no other person in or around the pickup.

Officer Smith testified that when he arrived he found the appellant slumped over the steering wheel with abrasions on his forehead and hands, and appellant said he did not know what had happened; that when appellant was lifted from the truck he began cursing and became very belligerent; that his breath had a strong odor of alcohol, his eyes were bloodshot and he was unable to walk, and he expressed the opinion that appellant was very intoxicated. Officer Smith further stated that he saw a fender lying in the road, and that from the tracks appellant’s pickup had gone off the road on the opposite side and swerved over to where it stopped in the ditch.

The Accident Investigator testified that the pickup in the ditch had first run off of the toad on the west side and then traveled to the east side where it stopped.

Testifying in his own behalf, the appellant stated that he was the owner of the pickup here involved; that he had loaned it to Ernest Morris to move a boat, and he was in the pickup with Morris who was driving, on the way to get the boat, when some mechanical trouble occurred causing it to go off the road into the ditch, resulting in heavy damage to it. He further said that he remained with the truck while Morris went for another truck to move the damaged pickup. Appellant admitted he had been drinking whiskey but stated he was not intoxicated.

Morris, testifying in behalf of the appellant, said that he was driving the appellant’s truck at the time in question, and that after the accident he caught a ride and went to get a truck to pull appellant’s truck out of the ditch; that when he returned to the scene some three hours later the truck and appellant were gone. He further testified that the appellant was drinking but he was not drunk.

The court charged the jury on the law applicable to circumstantial evidence.

The jury was not bound to accept as true the testimony of the defendant and his witness that Morris was the driver, and it is apparent that they did not. Jones v. State, 130 Tex.Cr.R. 102, 92 S.W.2d 246.

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

Opinion approved by the Court.


text:
    Bill Hugh ERVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35634.
    Court of Criminal Appeals of Texas.
    April 17, 1963.
    Rehearing Denied May 29, 1963.

      Hill D. Hudson, Pecos, for appellant.
    Edwin F. Berliner, Dist. Atty., Sam W. Callan, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder with malice; the punishment, ten years.

The evidence reflects that the appellant and Sam Keener, the deceased, were partners in an auto garage in Van Horn, Texas. The agreement between the two called for the appellant to furnish the building and some of the tools and the utilities, Keener was to do the work, and the profits were to be equally divided each day. There was some difficulty between the two as to this daily distribution, and the relationship appears to have been far from amicable. Keener and his wife had already decided to leave town and were in the process of packing and closing their affairs at the time of the homicide.

On the Saturday preceding the homicide, Keener and his wife, Ann, had been to a movie. Upon returning, they found the appellant at the garage, with the doors open and the outside lights on. These lights could only be turned on from the Keener apartment behind the garage. Ann Keener testified that entry had been gained by forcing the rear door of the apartment. [The appellant admitted the entry but contended that it had been gained through a window.} When Sam Keener discovered this, he confronted the appellant, and a fight ensued. It is undisputed that deceased procured a rifle and threatened the appellant’s life at that time.

Ann Keener testified that on the following Tuesday the appellant came to the garage three times. On the second visit, the two partners again commenced to argue. Keener instructed his wife to go across the street and call the sheriff to settle the dispute. When she returned, the appellant had gone but returned within fifteen or twenty minutes. She testified that:

“Well, I heard footsteps, and I looked up. I said to Sam, ‘He’s back,’ and he .said — Sam got up to go to the door, •and when he got up, I did too, so he stepped up to the door, and Bill had this pistol and he whipped it up;. he aimed it and I said, ‘Bill, go on; don’t have any trouble.’ Sam said, ‘See, I told you he had a gun.’ I said, ‘Yes, I see he has now,’ so I stepped in front of Sam and told Bill then, ‘You’ll have to kill me first.’ He fired a shot; it went into the side of the partition, and Sam said, ‘I’m going to the house and get my rifle now.’ Sam went to the house, and Bill pointed the gun again, and I don’t know; I guess I went toward him. I don’t remember; the next thing I knew I was trying to get up off the ground.”

Two other witnesses were called for the state and testified that they had seen the appellant fire one shot from a pistol, turn and hit Ann Keener on the head with the weapon, and run across the street. They heard a shot and then saw Keener fall.

Bill Germany testified that he was city marshal of Van Horn and was on his regular patrol on the day of the homicide, when he saw a man lying on the side of the road. He stopped and went to the man, whom he recognized as Sam Keener. He then observed the appellant crossing the street and carrying a rifle. He asked him if he had done “this,” and the appellant answered, “Yes, I shot him.”

Thad Williams testified that on the day of the homicide he was working in the appellant’s auto parts store. As to the homicide, he testified:

“ * * * I heard someone running and Bill ran in the door and ran up against the counter, threw his hands up against the counter, and stopped himself, and I turned and looked across the street at the garage, and I believe that I said, ‘Bill, what have you done now,’ and when I saw Sam’s wife laying on the ground and then asked Bill what he did, and I kept watching the garage and saw Sam come out of his house with his rifle and I guess took six or seven steps out and I heard a shot back to my left and saw Sam fall and I looked back and saw through the east door Bill walk out across the paved part of the front there and walk on across the street.”

The appellant was the only witness in his behalf. He testified that he had carried a .22 caliber pistol since the deceased had threatened his life on Saturday. The last visit to the garage on Tuesday had been to get his money. He testified that he feared for his life, but needed the money, and so had gone armed. When he got there he asked for his money, but was cursed by the deceased. He testified that the deceased then “ran his hand inside his shirt” and that he (the appellant) pulled his pistol and fired once, “because I thought he was fixing to shoot me.” After the first shot, he related, the pistol jammed and he turned and ran. He hit the deceased’s wife on the side of the head because he thought she was trying to hold him, and then ran across the street and got the rifle he kept in the parts store. He then went outside the parts building and stood in front where he could have a clear view. The rifle was loaded and ready to fire. He saw the deceased come out of the garage, he related, and “I thought he was headed for me * * * to shoot me.” He fired once and the deceased dropped.

On cross-examination, the appellant admitted that he would have killed Keener with his pistol if it had not jammed.

Appellant’s appeal is predicated upon four formal bills of exception, which will be discussed in the order presented.

The first formal bill of exception complains of Officer Germany’s testimony concerning the condition of the deceased’s gun. He stated that he found two live shells on the ground near the deceased. The rifle lay nearby, with its breech open and two live shells in the magazine but none in the barrel.

Appellant objected to this testimony because he had no way of knowing the condition of the deceased’s rifle at the time of the homicide. We fail to see how this testimony harmed the appellant, since it showed the deceased’s gun to be in working order, with two live shells in the magazine and the breech in such position as to indicate that one of the cartridges was about to be placed in the barrel. Additionally, since counsel for the appellant adduced the same testimony upon cross-examination of the witness, he is in no position to complain of the witness’s testimony. Ramirez v. State, Tex.Cr.App., 335 S.W.2d 228.

Formal bill of exception #2 complains of the court’s action in giving a charge upon provoking the difficulty. At the trial, appellant objected that this was not supported by the evidence, unduly limited his right of self-defense, and constituted a comment on the weight of the evidence.

In his brief, the appellant attacks only the sufficiency of the evidence to justify the charge. He relies upon Wampler v. State, 155 Tex.Cr.R. 327, 234 S.W.2d 1009. That was a circumstantial-evidence case, with the only testimony to support the charge coming from a waitress who, along with the deceased, heard a “racket” beside the cafe, which prompted the deceased to go outside where the homicide occurred. This is not such a case. Here, we have direct evidence that the appellant went to the garage armed, fired a wild shot, and when his pistol jammed, ran to rearm himself, hitting the deceased’s wife on the way out, and, having obtained another weapon, waited for the-deceased to follow.

“ * * * In every case where the acts- and conduct of the accused were the cause of an attack upon him, the question of whether they were reasonably calculated to-provoke the difficulty are questions of fact for the determination of the jury under appropriate instructions from the court.” Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806, 809.

We find the facts before us, here, demand the giving of such a charge when compared with the facts in Muckleroy v. State, 165 Tex.Cr.R. 629, 310 S.W.2d 315, where this court held the giving of the charge not to be error.

As set out in the third formal bill of exception, appellant’s primary point for reversal is the court’s failure to charge on abandonment of the difficulty. Having charged on provoking the difficulty, the court must charge on abandonment of the difficulty only if there is evidence to support such a charge. 4 Branch’s Ann.P.C.2d, Sec. 2144, pp. 477-478; 31 Tex.Jur.2d, Instructions, Sec. 6, pp. 514—515.

The appellant’s testimony was that he acted in self-defense, not that he abandoned a difficulty he testified he did not provoke.

The court, having presented the charge on provoking the difficulty in both an affirmative and a negative fashion and having charged on self-defense, did all that he was required to do under the evidence. Edwards v. State, 60 Tex.Cr.R. 323, 131 S.W. 1078; Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952.

This charge was properly refused on other grounds. Here we have a continuous action, occurring within a short time period.

“The authorities lay down the proposition that the abandonment of the difficulty by the defendant does not arise where the difficulty was continuous, the only change being in the position of the parties during the progress of the encounter.” Campbell v. State, 84 Tex.Cr.R. 89, 206 S.W. 348.

Also, it is necessary that the intention to abandon the difficulty be, in some manner, communicated by the appellant so as “ * * * to advise his adversary that his danger had passed, and make his conduct thereafter the pursuit of vengeance rather than measures to repel the original assault. * * *” Kelly v. State, 68 Tex.Cr.R. 317, 151 S.W. 304, 311. This was not done here. See: 29 Tex.Jur.2d, Homicide, Sec. 49, p. 33.

The cases relied upon by appellant for reversal: Harper v. State, 144 Tex.Cr.R. 385, 162 S.W.2d 971, Ware v. State, 68 Tex.Cr.R. 376, 152 S.W. 1074, and Edwards v. State, 60 Tex.Cr.R. 323, 131 S.W. 1078, are authorities for the proposition set out in 4 Branch’s Ann.P.C.2d, Sec. 2144, at page 478:

“If there is evidence which raises the issue of abandonment of the difficulty on the part of defendant and renewal thereof by his adversary, the court should charge on such issue.”

Here, the evidence does not raise the issue and no error is presented.

The last bill of exception concerns the court’s failure to charge on the appellant’s right to arm himself and go on the premises for a lawful purpose. The court qualified the bill to show that at no time did the appellant object to such omission in the charge, nor was such a charge requested by the appellant. There was no exception to the court’s qualification of the bill; therefore, appellant is in no position to complain on appeal. Nava v. State, Tex.Cr.App., 340 S.W.2d 955; Kogan v. State, Tex.Cr.App., 341 S.W.2d 925.

We have carefully reviewed the informal bills of exception, and find no error.

The evidence being sufficient, the judgment is affirmed.


author: MORRISON, Judge.

text:
    Edward Phillip BRYANT, Appellant, v. The STATE of Texas, Appellee.
    No. 35799.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Jack Hampton, John Rogers, Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary, with a prior conviction for an offense of like character alleged for enhancement; the punishment, 12 years.

Martin Her, branch manager of Anchor Fence Company, testified that he closed and locked his place of business on Saturday afternoon and, when he returned Monday morning, found that the back door had been pried open and a number of articles stolen therefrom, including 88 blank checks which bore the name of the company and were serially numbered.

Doyle Wilkinson, an employee of Tom Thumb Super Market, testified that appellant cashed one of the missing serially numbered Anchor Fence checks on Monday evening, it having been made out to Earnest Lee Gilbert in the sum of $81.72 and signed ■“James L. Wilson, Branch Mgr.”

Appellant was arrested sometime later as he attempted to pass another check. His •confession, which was introduced without •objection, recited that he broke into the Anchor Fence Company by forcing the door .and stole therefrom a ledger of checks as well as other items.

The prior conviction and appellant’s identity were established.

Appellant did not testify or call any wit-messes in his own behalf.

There are no formal bills of exception, and the only informal bills relate to the •asking of leading questions which are seldom the grounds for the reversal of a conviction. Piland v. State, 162 Tex.Cr.R. 362, 285 S.W.2d 230, and Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606.

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


author: DICE, Commissioner.

text:
    Charles Grafton WARREN, Appellant, v. The STATE of Texas, Appellee.
    No. 35691.
    Court of Criminal Appeals of Texas.
    May 8, 1963.

      C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, seven days in jail and a fine of $200.

The proof shows that on the day in question City Marshal Clarence Bearden, of Mingus, received a call between 6 and 6:30 o’clock, p. m., that there had been a wreck on State Highway 108 between Mingus and Strawn in Palo Pinto County. In response to the call, Officer Bearden went, in company with his son, to the scene — which was 1.3 miles west of Mingus. When they arrived some five minutes after receiving the call, the appellant was leaning against a Chevrolet pickup truck out in a field about fifty yards from the highway. Tire marks and other physical evidence indicated that the pickup had run off the highway and had torn down a fence and struck the corner of a house and a cistern before coming to rest in the field.

After talking to appellant, Officer Bear-den drove to Strawn to secure the assistance of Constable Ben Bradford. The son remained at the scene with appellant. Ten or fifteen minutes later Officer Bearden returned with Constable Bradford and City Marshal D. C. Goforth, of Strawn. When they arrived, appellant was standing by the house twenty or twenty-five feet from the pickup. The officers described appellant’s actions and demeanor and expressed their opinions that at such time he was intoxicated.

The proof further shows that State Highway Patrolman Charles D. White came to the scene around 7:30 o’clock, p. m., which was twenty-five or thirty minutes after Constable Bradford and the other officers arrived. At such time, Officers Bearden, Bradford, and Goforth were at the scene with appellant.

Patrolman White testified that after he arrived appellant approached him and “I asked him if he was driving” and “He said yes.”

Appellant timely objected to the testimony on the ground that at the time such statement was made to the officer he was under arrest; that he had not been duly warned and the statement was not reduced to writing; and that such statement was not admissible as res gestae.

Appellant’s objection was by the court overruled, upon the state’s contention that the statement made by appellant was admissible as a part of the res gestae and, further, that it was not shown that he was under arrest when he made the statement.

We are unable to agree with the state’s contention that appellant was not under arrest when he made the statement to the highway patrolman.

Constable Bradford testified that he would not have permitted the appellant to leave the scene after he found him walking around in an intoxicated condition. He further testified that he “would have held him there” and did do so. Under the constable’s testimony appellant was under arrest at the time Patrolman White arrived upon the scene and when appellant made the statement to him. Nolen v. State, 9 Tex.App. 419, and Bonatz v. State, 85 Tex.Cr.R. 292, 212 S.W. 494.

We do not agree that appellant’s statement to the patrolman was admissible as a part of the res gestae.

While, as stated in Bates v. State, 167 Tex.Cr.R. 414, 321 S.W.2d 76, the time within which statements may be regarded as res gestae is not related to any definite or fixed time, it is always an element to be given consideration. Under the record in the present case, appellant’s statement to the highway patrolman was shown to have been made at least an hour after the accident and when Officer Bearden first talked to him at the scene and twenty-five to thirty minutes after Constable Bradford arrived and placed him under arrest.

The improper admission of such statement in evidence, which was in the nature of a confession, calls for a reversal of the conviction. See: Bates v. State, supra; Lindsey v. State, Tex.Cr.App., 353 S.W.2d 444; and Freeman v. State, Tex.Cr.App., 354 S.W.2d 141.

We have considered the cases of Lamkin v. State, 136 Tex.Cr.R. 99, 123 S.W.2d 662, Fowler v. State, 162 Tex.Cr.R. 513, 287 S.W.2d 665, and Suiter v. State, 165 Tex.Cr.R. 578, 310 S.W.2d 81, where statements made by the accused were held admissible as res gestae, but we do not consider them here controlling under the facts presented.

Upon another trial, in the absence of direct evidence that appellant was the driver of the pickup, upon proper request being made a charge on circumstantial evidence should be given.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    Ex parte John Winston PRINCE.
    No. 35843.
    Court of Criminal Appeals of Texas.
    May 8, 1963.
    Relator represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner attacks as void the conviction by virtue of which he is confined and alleges that members of his race were excluded from the grand jury which indicted him and from the jury which tried him. Appellant was represented in the trial court by counsel and appealed his conviction to this Court. Prince v. State, Tex.Cr.App., 336 S.W.2d 140. Petitioner did not raise this question either in the trial court or in this Court.

The burden was upon petitioner to prove that persons of the Negro race were discriminated against in the selection of juries. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. Having failed to even raise this issue at his trial, he cannot now seek to collaterally prove discrimination. See Ex parte Bronson, 158 Tex.Cr.R. 133, 254 S.W.2d 117, and Ex parte Covin, 161 Tex.Cr.R. 320, 277 S.W.2d 109.

Petitioner does not allege that such discrimination was unknown to him and to his attorney at the time of his trial so as to bring his case within the rule announced in Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, and Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, and as followed by this Court in Singleton v. State, Tex.Cr.App., 346 S.W.2d 328.

As we construe the holding of the Supreme Court of the United States in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, petitioner knowingly forewent the privilege of seeking to vindicate his Federal claim when he did not raise the question at any stage of his State court proceedings.

The relief prayed for is denied.


text:
    Willie Emil SCHULTZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35714.
    Court of Criminal Appeals of Texas.
    May 8, 1963.

      Leo Dougherty, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

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

The evidence reflects that on August 24, 1962, Officer Arnold Rodriguez observed appellant pass a stop sign without stopping; that the appellant was driving approximately 20-25 miles per hour at the time; that he followed him for some three blocks with both his headlights and red light on; that he sounded his horn during this period, but that the appellant stopped only after he (the officer) pulled alongside of him and shouted. The officer recounted that the appellant had some difficulty in securing his driver’s license; that he staggered as he walked; that his speech was difficult to understand; and that in his opinion the appellant was drunk.

Officer James Lowe, who was called to the scene by Officer Rodriguez, testified that appellant’s eyes were bloodshot, that his eyelids were “heavy,” and that he was slobbering around the mouth.

Officer Munoz testified that he had administered a test to the appellant using the Hager drunkometer. The amount of water displaced in the test was 300 cc’s, and from this he concluded “that he was under the influence of intoxicants.” He also testified to the appellant’s appearance, indicating that his eyes were bloodshot, his face flushed, and his eyelids “heavy.”

Lt. Morales of the San Antonio Police Department testified that he had had special training in chemistry and in chemical tests for intoxicants, and that he was in charge of the police laboratory. He testified that Officer Munoz was a qualified operator of the drunkometer; that tire water displaced in the test indicated that the appellant had .18% alcohol in his blood; and that the weight of the ascarite tube, used as a check on the operator’s observations, indicated the appellant’s blood to contain .167% alcohol. He testified that this indicated the man to have been under the influence of intoxicants.

The appellant introduced evidence to show that he had not had anything to drink before 3:00 P.M. on August 24, 1962, and testified himself that he had drunk only three beers after that. He denied being intoxicated.

The jury decided the fact issue against the appellant, and we find the evidence sufficient to support their verdict.

We will consider appellant’s principal contentions as they appear in his brief.

After the charge was read to the jury, and they had retired to deliberate the case, they sent a note through the bailiff signed by the foreman requesting a charge on whether they could recommend the defendant be given a suspended sentence. The appellant waived the appearance of the jury, and, over his objection, the court instructed them in writing as follows: “Members of the jury: The suspended sentence law applies only to felony charges and not to misdemeanors. All the law governing this case is given in the court’s charge.”

We are cited to no case directly in point, but we find the cases of Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585; Jones v. State, 119 Tex.Cr.R. 525, 46 S.W.2d 308; Heald v. State, 130 Tex.Cr.R. 178, 92 S.W.2d 1042; and Rymer v. State, 171 Tex.Cr.R. 656, 353 S.W.2d 35, analogous. Those were felony cases where no application for suspended sentence had been filed. This Court held it not error for the trial court to instruct the jury, in answer to their request, that they could not grant a suspended sentence. In Heald, supra, this Court said:

“It is apparent from the record that the entire communication between the jury and court related to the suspended sentence law, which was foreign to any issue in the case. The court’s reply was not an instruction to the jury on the law of the case or any phase thereof, had no relation thereto, and could not have injuriously affected the appellant’s rights any more than if they had asked the court whether they might, during the time that they were considering the case, engage in a game of chess, checkers or dominoes. * * * ” 92 S.W.2d 1042, 1043.

We fail to see how the instruction in any way was injurious to appellant.

Appellant next complains of the trial court’s action in interrupting counsel during his argument to the jury and admonishing him to stay within the record. Such would not constitute reversible error, Beasley v. State, 97 Tex.Cr.R. 36, 259 S.W. 567, even though the State made no objection.

Counsel further objected to the court’s explanation of his statement before the jury. While the better practice is to refrain from elaborating upon rulings in front of the jury, we fail to find prejudicial error in this case since counsel was allowed to continue his discussion of the conflicting testimony of the three officers.

Appellant’s third complaint is of the prosecutor’s reference in jury argument to his failure to request an instructed verdict. We agree with the court’s qualification that the argument was in answer to appellant’s argument and invited thereby.

Appellant’s next complaint relates to the prosecutor’s argument that if appellant had had only three beers he should have called the bartender in the tavern he had visited to support him. This point was decided contrary to the appellant in Johnson v. State, Tex.Cr.App., 341 S.W.2d 453.

Appellant also urges that the trial court should have stricken the testimony of Lt. Morales because he failed to testify as to how he gave the drunkometer test. Appellant, however, failed to object until after the witness had stated his conclusions on the test and had left the stand. No error was preserved.

We have reviewed appellant’s other contentions and find them without merit.

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


text:
    Roy Allen MELANCON, Appellant, v. The STATE of Texas, Appellee.
    No. 35602.
    Court of Criminal Appeals of Texas.
    May 8, 1963.

      Louis Dugas, Jr., Hugh O. Lea, Orange, for appellant.
    James A. Morris, Dist. Atty., Roy Win-gate, Asst. Dist. Atty., Orange, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This appeal is from a conviction for burglary of a private residence at night, .with intent by force to have carnal knowledge of a named female therein without her consent.

A prior conviction for burglary in the same court in 1960 and a conviction on December 3, 1956, in the District Court of Calcasieu Parish, Louisiana, were alleged for enhancement of punishment.

The jury found appellant guilty of the primary offense and found that he had been convicted of two felonies, as alleged in the indictment, which were final convictions.

Having concluded that the life sentence imposed under authority of Art. 63 P. C. cannot be affirmed because of the insufficiency of the evidence relating to the Louisiana conviction, the evidence as to the primary offense will not be set out. However, we express doubt as to the sufficiency of the evidence to sustain a finding beyond a reasonable doubt that the appellant entered the house intending to have carnal knowledge of the female at all hazards, and intending to use sufficient force to accomplish his purpose notwithstanding any resistance she might make. Such was the state’s burden. See Walls v. State, 164 Tex.Cr.R. 470, 299 S.W.2d 953; Lawson v. State, 153 Tex.Cr.R. 188, 218 S.W.2d 845; Roberts v. State, 136 Tex.Cr.R. 138, 124 S.W.2d 128; Miller v. State, 134 Tex.Cr.R. 611, 117 S.W.2d 62.

The indictment herein alleged that the appellant was convicted on December 3, 1956, in the District Court of Calcasieu Parish, Louisiana, in Cause Number 40,342 on the docket of said court “ * * * for a felony less than capital, to wit: Burglary, upon an indictment then legally pending in said last named court * * * ”

To prove such allegations as to said prior conviction, the state offered records from the Louisiana State Penitentiary.

As we understand the exhibits, they show (1) that the conviction was not upon indictment, but upon information, and (2) the conviction was for simple burglary and also for theft, separate punishments being assessed to run consecutively.

The evidence is insufficient because of the variance between the allegation of the indictment that the conviction was upon an indictment and the evidence showing that it was upon information. It is also insufficient because of the presumption that the Laws of Louisiana are the same as the Laws of this state. Green v. State, 165 Tex.Cr.R. 46, 303 S.W.2d 392; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906. A conviction for a felony cannot be had in Texas without an indictment. See Art. 1, Sec. 10, Constitution of Texas, Vernon’s Ann.St.

Also, a conviction cannot be had for two separate felonies charged in the same indictment. Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766; Wooten v. State, 111 Tex.Cr.R. 524, 15 S.W.2d 635; Monroe v. State, 146 Tex.Cr.R. 239, 172 S.W.2d 699; Branch’s Ann.P.C. Sec. 506; 1 Branch’s Ann.P.C.2d Ed., Sec. 526, page 506.

The evidence being insufficient to sustain the conviction and life sentence, the judgment is reversed and the cause is remanded.


text:
    Ira LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35782.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Plummer & Wade, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Daniel P. Ryan, Jr., and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault; the punishment, one month in jail.

B. W. Zane, the injured party, testified that he was the operator of a gasoline service station in the city of Houston; that on the day in question the appellant and a companion drove into the station in an Oldsmobile automobile and asked an attendant to put water in the radiator; after the attendant filled the radiator with water the motor went dead and at appellant’s request the attendant started the motor with a battery charger; appellant then asked the injured party what the charges were for such service and when he replied “A dollar” appellant grumbled about it, grabbed the injured party, jerked him down, reached in his pocket, produced a knife and started slashing him with it, cutting him once in the side of the neck and once on the shoulder. The injured party described the knife as a “hooked blade carpet knife,” eight inches in length, and stated that the cut on his neck was three-fourths inches long and the one on the shoulder was six and a half inches in length.

Appellant, testifying in his own behalf, gave his version of the difficulty and stated that when he asked the injured party if there would be any charges for starting the car he said: “You damn right. What do you think this is, a charity organization?,” and then called appellant some names and hit him with a clipboard. Appellant testified that when the injured party struck him, he reached in his pocket, got his knife and struck at him, but did not think he cut him; that the reason he started cutting at the injured party was because he did not know what he was going to do.

Appellant’s version of the difficulty was corroborated by the testimony of his companion, John Hunter, Jr., upon being called as a witness in his behalf.

The evidence is sufficient to sustain the conviction for aggravated assault with a knife, as defined in Sec. (10) of Art. 1147, V.A.P.C.

Appellant’s sole contention on appeal is that the court erred in refusing to give his requested charge on self-defense.

The requested charge shown in the transcript appears to have been refused by the court, but no exception was reserved by appellant to the court’s action.

In the absence of an exception to the court’s action, duly verified by the trial judge, appellant’s complaint is not properly before us for review. See: Peavy v. State, Tex.Cr.App., 356 S.W.2d 942, and cases there cited.

A purported exception to the court’s ruling, filed in the record but not verified by the trial judge, is insufficient.

The judgment is affirmed.

Opinion approved by the court.


text:
    Toy Jefferson CUMBIE et al., Appellants, v. The STATE of Texas, Appellee.
    No. 35673.
    Court of Criminal Appeals of Texas.
    May 8, 1963.

      Lloyd W. Westerlage, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Toy Jefferson Cumbie, the principal, appealed to this Court from a conviction for drunk driving, and on May 18, 1959, with the appellants Fred Lozano and Freddie Lozano as his sureties, entered into a recognizance bond in the sum of $500.

The judgment was affirmed and mandate issued, and Cumbie not having appeared and the sheriff being unable to locate him so that capias could be served, the trial court on January 5, 1960, entered judgment nisi forfeiting the recognizance.

More than two years later, scire facias having issued, the appellants herein filed answer alleging that Cumbie was a member of the Armed Services of the United States and was “now stationed in Germany.” They invoked the Soldiers’ and Sailors’ Relief Act, praying that the action be abated until such time as the principal is restored to civilian status. The state excepted to said plea on the ground that military service alone was insufficient, and there was no showing that a proper effort had been made by the sureties to secure Cumbie’s attendance.

After hearing, judgment was entered on September 28, 1962, making final the judgment nisi.

Appeal was perfected by the sureties, and supersedeas bond was given and approved with M. E. Fields and E. Coley Sullivan as sureties.

The Soldiers’ and Sailors’ Civil Relief Act (Title 50 U.S.C.A. Appendix, § 513(3) provides:

“Whenever, by reason of the military service of a principal upon a criminal bail bond the sureties upon such bond are prevented from enforcing the attendance of their principal and performing the obligation the court shall not enforce the provisions of such bond during the military service of the principal thereon and may in accordance with the principles of equity and justice either during or after such service discharge such sureties and exonerate the bail,”

A showing that Cumbie was in the military service when the judgment nisi was entered, standing alone, was insufficient to invoke relief under said act. The sureties were under the necessity of also showing some unsuccessful effort to secure Cumbie’s appearance before the court to satisfy the judgment of conviction, and that his active military service prevented his appearance.

People v. Walling, 195 Cal.App.2d 640, 16 Cal.Rptr. 70; People v. Continental Casualty Co., 284 App.Div. 944, 134 N.Y.S.2d 742; State v. Benedict, 234 Iowa 1178, 15 N.W.2d 248; Ex parte Moore, 244 Ala. 28, 12 So.2d 77.

We note further that there is no showing in the record that Cumbie entered the military services other than by voluntary enlistment. On the other hand, a statement from the military authorities which the appellants attached to a belatedly filed motion for new trial certifies that Cumbie departed the United States on December 16, 1960 and re-enlisted on November 28, 1961.

“The surety on a bail bond is not discharged by the voluntary enlistment of the defendant in the military or naval service * * * ” American Law Institute Committee on Security, Permanent Edition, Sec. 211.

The judgment of the trial court is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said supersedeas bond for the performance of the judgment herein affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    David Charles FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35752.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Rehearing Denied May 15, 1963.
    See also 367 S.W.2d 345.
    Charles W. Tessmer, Dallas (on appeal only), for appellant.
    Henry Wade, Dist; Atty., George Milner and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an ordering entering a judgment nunc pro tunc for the purpose of correcting the minutes of the court.

A hearing was had on the State’s motion to enter a judgment nunc pro tunc, and from the entry of such judgment an appeal was brought to this Court. In our Cause No. 35,548, Tex.Cr.App., 365 S.W.2d 184, such appeal was dismissed because no judgment nunc pro tunc had in fact been entered. Since the rendition of such opinion, a júdgment nunc pro tunc has been entered, and the State has joined in a stipulation that the facts adduced at the hearing in our Cause No. 35,548 be considered as a statement of facts in this appeal. This we proceed to do.

The judgment nunc pro tunc recites that in fact relator was found guilty of robbery by assault and not assault with intent to rob.

The only probative evidence in the record to support the judgment nunc pro tunc, since neither the judge or any of the court attachés had any independent recollection of the case, was the judge’s docket. We are not unaware of the fact that we said in Walls v. State, 161 Tex.Cr.R. 1, 273 S.W.2d 875, that this Court has held many times that a docket notation does not constitute a record entry or minutes of the court, but feel that we are compelled to follow the holdings of this Court in Demus v. State, 111 Tex.Cr.R. 237, 16 S.W.2d 251, and Aubrey v. State, 114 Tex.Cr.R. 466, 26 S.W.2d 213, which say that the docket entry may furnish a basis for the trial court to order a correction of the minutes.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING.

WOODLEY, Presiding Judge.

Appellant’s able counsel expresses concern that our opinion herein may be construed as holding that any order evidenced by a docket entry will be sufficient to authorize the entry of a judgment or order nunc pro tunc and be sufficient to change the offense so as to fit the punishment without showing that the clerk made a mistake in recording the judgment. We therefore deem it proper to direct attention to the record herein, from which we conclude that the judgment entered nunc pro tunc was the judgment actually pronounced by the trial court when the case was tried.

The offense alleged in the indictment was robbery by assault.

The waiver of a jury, signed and sworn to by the defendant, averred that he was guilty of said charge and requested the court to consent to his waiver of a jury and accept his plea of guilty and proceed to trial “upon said charge.”

The consent and approval of the trial judge to the defendant’s waiver of the right to be tried by jury and his plea of guilty “together with the defendant’s request that he be tried in said cause for the offense of Robbery before the court” was signed and filed on the day of trial, as was the consent of the district attorney reciting that he was advised that the defendant “desires to enter a plea of guilty for the offense of Robbery and be tried before the court.”

The docket entry referred to in our original opinion, signed by the trial judge, reads: “Jury waived. Defendant warned. Plea of guilty before Court. Found guilty of Robbery by Assault. Punishment fixed at 15 years confinement in the penitentiary. Defendant sentenced. Back time allowed. Sentence to begin 10/14/58. Joe B. Brown, Judge.”

While Judge Brown had no independent recollection of the matter when the nunc pro tunc hearing was held, he testified from looking at his record that such record showed that the defendant was indicted for, and was tried and convicted of robbery by assault * * * and not assault with intent to commit robbery.

Other circumstances were that the clerk had .rubber stamps for use in filling out forms for judgments and sentences and determined what stamp to use from the various papers filed and filled out by the District Attorney’s office “ * * * and also by what the judge writes on the docket sheet.”

The records and testimony mentioned were introduced at the hearing.

In the absence of any evidence, entry, or document from which it could be inferred that the offense charged had been reduced from robbery by assault to assault with intent to commit robbery, the evidence sustains the trial court’s finding that there was ■clerical error in entering the judgment and sentence reciting the latter offense instead ■of the offense to which the defendant pleaded guilty and was convicted.

Appellant’s motion for rehearing is overruled.


text:
    Robert J. MACKIE, Appellant, v. The STATE of Texas, Appellee.
    No. 35531.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Rehearing Denied May 15, 1963.

      Clyde W. Woody, James C. Brough, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft, with two prior convictions for felonies alleged for enhancement; the punishment, life.

The indictment charged the primary offense of automobile theft from Charles L. Darnell, a prior conviction of felony theft resulting in a conviction on January 4, 1955, and another conviction for felony theft resulting in a conviction on November 7, 1952.

A statement of the nature of this case will be greatly simplified by setting forth appellant’s defense which he developed through questioning Captain Brown of the automobile theft division of the Houston police whom he called as a witness. Brown testified that sometime after his arrest for the primary offense appellant admitted that he was a receiver of stolen property but denied that he was the thief. He stated that it was his modus operandi to drive around with another man (whose identity he refused to disclose) and pick out the cleanest automobile that could be found to match a certificate of title and “serial plate” which had come into his possession by virtue of his employment in an automobile junk yard, then change the license plates and serial number from the junked automobile to the stolen automobile, which he then sold. He admitted receiving the Darnell 1953 Ford, switching the license plates and serial number and driving it to the Rio Grande Valley, where he sold it. From this information, the officers were able to recover the Darnell Ford. The jury were instructed to acquit if they found that appellant was a receiver and was not present when the Darnell Ford was stolen.

The facts will be more fully developed as we discuss appellant’s contentions advanced by brief and in argument.

His first contention is that the State failed to prove that the offense which resulted in the 1955 conviction was committed subsequent to the 1952 conviction. Reliance is had upon Rogers v. State, Tex.Cr.App., 333 S.W.2d 383, and Gibbs v. State, Tex.Cr.App., 336 S.W.2d 625, but the case at bar is clearly distinguishable from either case for the following reasons. The indictment which resulted in the 1955 conviction introduced in evidence charged that appellant stole an automobile from one M. C. Van-cleave on or about October 13, 1954. Officer Scarborough testified that on the same day charged in the indictment he arrested a Robert James Mackie in connection with that theft, took the said Mackie along with the stolen automobile out to the Greens Bayou area and delivered the automobile to a man by the name of Vancleave whom he knew well, and carried the Robert James Mackie he had in custody to jail and filed on him for felony theft. Though he said “his general appearance is the only thing I have” to identify appellant as the Robert James Mackie he arrested in 1954, he did testify that on October 13, 1954, he arrested a Robert James Mackie for the theft of an automobile from the Mr. Vancleave whom he had known for a long time, returned the automobile to Vancleave, and carried Mack-ie to jail. These facts clearly distinguish this case from Rogers and are sufficient to show that the 1955 conviction was for an offense which occurred after the 1952 conviction.

We are unable to comprehend appellant’s contention that the indictment which resulted in the 1955 conviction constituted no proof because the same did not conclude with the phrase “against the peace and dignity of the State.” While it is true that the court did sustain appellant’s objection to the second page of the 1955 indictment, the instrument which appears in the record before us, approved by counsel, does contain the phrase mentioned.

We overrule appellant’s complaint as to the sequence in which the prior convictions and the primary offense were plead. In addition to Clifton v. State, 156 Tex.Cr.R. 655, 246 S.W.2d 201, and White v. State, 157 Tex.Cr.R. 171, 247 S.W.2d 396 (cited by appellant), we call attention to Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182, which holds that where the matters are set forth in chronological order the indictment is sufficient.

We again uphold the constitutionality of Article 63, Vernon’s Ann.P.C., as we did in Ex parte Breen, Tex.Cr.App., 353 S.W.2d 233, and Finley v. State, 161 Tex.Cr.R. 458, 278 S.W.2d 864.

We find no merit in appellant s complaint, if we considered that it was properly before us, as to the indictment which alleged in part “appropriate to to the use and benefit.” In Lewallen v. State, 48 Tex.Cr.R. 283, 87 S.W. 1159, it was- held the -use of the word “is” instead of “his” would not vitiate the indictment.

We need not discuss the question as to the admissibility of the certificate of title because appellant introduced proof that he received the Darnell Ford and sold it after, altering it.

We overrule appellant’s contention that the evidence is insufficient to support the conviction because the indictment alleged that the courts in which the prior convictions had occurred had jurisdiction •of said offenses. We take judicial knowledge of the jurisdiction of district courts, and presume that venue was proved.

Appellant contends that, since he elicited testimony from his own witness Officer Brown that when first questioned he had explained his possession of the recently stolen property, he may not be convicted of theft. Without further discussion, we observe that appellant developed this testimony and not the State, and the State is not bound thereby.

We have repeatedly approved the method of proof as to the prior convictions. Reyes v. State, Tex.Cr.App., 353 S.W.2d 450; Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154, and cases there cited.

We find the evidence sufficient to support the conviction.

The judgment and sentence are reformed to find appellant guilty of felony theft and that he had theretofore twice been convicted of felonies, and, as reformed, the judgment is affirmed.


text:
    Lee Truscott BIVINS, Appellant, v. The STATE of Texas, Appellee.
    No. 35796.
    Court of Criminal Appeals of Texas.
    May 15, 1963.

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

Upon appeal from a conviction in the Corporation Court of the City of Amarillo, appellant was found guilty in the County Court at Law of the offense of failing to stop at a stop sign which had theretofore been legally erected at a street intersection by the City of Amarillo and his punishment was assessed at a fine of $105.00.

It was clearly established that appellant failed to stop at an easily visible stop sign.

The sole question presented for review is the constitutionality of the following ordinance:

“(a) Not required of prosecution. In any prosecution for any violation of this chapter, it shall not be necessary for the state to prove the installation or authority therefor, of any traffic control device or simal.
“(b) Defense's right of rebuttal. Any person charged with a violation of this chapter shall have the right to prove the sign, signal or device was not so installed or authorized as a defense.”

It is well established that a legislative body has the power to formulate rules of evidence which change the burden of proof or state what constitutes prima facie evidence of guilt. Floeck v. State, 34 Tex.Cr.R. 314, 30 S.W. 794, and Newton v. State, 98 Tex.Cr.R. 582, 267 S.W. 272.

We overrule the contention that the ordinance is void.

Finding the evidence sufficient to sustain the conviction, the judgment is affirmed.


text:
    Lupe Ybarra RIBERA, Appellant, v. The STATE of Texas, Appellee.
    No. 35813.
    Court of Criminal Appeals of Texas.
    May 15, 1963.

      No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the sale of whisky and beer in a dry area; the punishment, a fine of $750.00.

The appeal bond upon which the appellant is at large was approved and filed the same day notice of appeal was given, whereas Art. 830, Vernon’s Ann.C.C.P. requires a recognizance on appeal. Hernandez v. State, Tex.Cr.App., 367 S.W.2d 675.

The appeal is dismissed.


text:
    Ex parte Walter Lee SIROS.
    No. 35818.
    Court of Criminal Appeals of Texas.
    May 8, 1963.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgourides and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order refusing appellant bail, after indictment for rape.

Prosecutrix and her husband were walking home from where their automobile had run out of gasoline on the night in question when appellant and his companion, who were traveling in a red convertible, forced prosecutrix into the automobile and sped away. When she plead with them to release her and told them that she was seven months pregnant, appellant stated, “You are the third one tonight — you are not about to get out.” Prosecutrix’s head was held down on the floorboard until they reached an isolated area where they forced her out of the automobile and appellant had intercourse with her while his companion was “using” and “biting” her breasts. Appellant’s companion also had intercourse with her. After they left the scene of the attack, one of the tires of the convertible blew out, and prosecutrix was shoved into a ravine.

These facts which we have set out make this a non-bailable case. Ex parte Black, 157 Tex.Cr.R. 467, 250 S.W.2d 224.

The judgment of the trial court is affirmed.


text:
    Lorenzo Dow McGREW, Appellant, v. The STATE of Texas, Appellee.
    No. 35732.
    Court of Criminal Appeals of Texas.
    May 15, 1963.
    Clay Coggins, Roby, J. W. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

■ The conviction is for the subsequent offense of driving while intoxicated; the punishment, six months in jail and a fine of $200.

The evidence sufficiently shows that the appellant Lorenzo Dow McGrew was guilty of the offense of driving while intoxicated on September 27, 1962.

To support the prior conviction alleged the state introduced in evidence certified copies of the complaint, information and judgment in Cause No. 4912 in the County Court of Nolan County, wherein Lorenzo D. McGrew was convicted on May 10, 1947, of the misdemeanor offense of driving while intoxicated.

Officer Adams testified that the appellant exhibited his Texas Operator’s license No. 2760530 when he was arrested on September 27, 1962, for driving while intoxicated. For the purpose of identifying the appellant as the person previously convicted as alleged the state introduced a certified copy of the Driver’s Records of the Texas Department of Public Safety showing that Operator’s License No. 2760530 was originally issued to Lorenzo Dow McGrew on August 21, 1947, and his physical description was shown thereon. This license has been renewed to expire August 19, 1963. The certificate of said record also included the notation:

“5-10-47 Convicted for driving while intoxicated in Cause #4912, County Court, Nolan County, Texas, filed 5-9-47.”

The appellant did not testify.

The original operator’s license was issued to Lorenzo Dow McGrew on August 21, 1947, which was more than three months after the conviction of Lorenzo D. McGrew on May 10, 1947. The operator’s license exhibited by the appellant to the arresting officer on September 27, 1962, was not introduced in evidence, and its contents are not shown in the record. There is no testimony that the accused named in the judgment of conviction dated May 10, 1947, is the same person as the appellant. The notation appearing in the operating record of Lorenzo Dow McGrew of a conviction on May 10, 1947, in Nolan County, does not identify the appellant as the Lorenzo D. McGrew named in the 1947 judgment of conviction.

There is no evidence except for the similarity of names to the extent shown and the notation appearing in the driving record that the appellant is the same person convicted on May 10, 1947, in Nolan County.

In Johnson v. State, 160 Tex.Cr.R. 290, 269 S.W.2d 393, this court said:

“The fact that a defendant has been previously convicted of the misdemean- or offense of driving a motor vehicle on a public highway while intoxicated is an essential part of the felony offense which must be alleged and proved, and without such proof the evidence is insufficient to sustain the conviction. A necessary part of this proof is the identification of the defendant as the person previously convicted.”

In Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654, 655, the accused had been issued an operator’s license the suspension of which was the basis of the offense charged of driving while his license was suspended. In the case at bar, according to the evidence, the appellant had not been issued an operator’s license on May 10, 1947.

The evidence is insufficient to identify the appellant as the same person who was convicted in the prior cause alleged.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Jimmy Rex WHALEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35471.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Rehearing Denied May 29, 1963.

      Walker Brents, Jr., Fort Worth (on appeal only), for appellant.
    Doug Crouch, Dist. Atty., Conard Florence, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, life.

In view of our disposition of the case, a recitation of the facts will not be necessary other than to observe that appellant and one of his companions were armed with pistols and deceased had two pistols on the seat beside him when he was killed after midnight in front of a beer drinking establishment.

During the course of his argument to the jury, the district attorney read certain portions of appellant’s confession, which had not been introduced in evidence, and which contradicted appellant’s testimony on a vital issue in the case. This was clearly error.

Over proper objection, the court permitted the State to offer into evidence three pictures of the nude body of the deceased and two pictures of the automobile in which he had been seated and which showed large pools of blood. None of these pictures solved any issue in the case, were highly inflammatory and should not have been admitted in evidence.

Recently, in Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178, we held that the pictures of the nude body of the deceased were not admissible under the rule cited in Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112. In Alcorta, there was an issue made by appellant’s testimony as to the number of wounds he had inflicted upon the body of the deceased, and we held the pictures admissible only in order to solve that disputed issue. In the case at bar, no issue was made which could have been solved by the introduction of the pictures; they were obviously inflammatory and constitute reversible error.

The judgment is reversed and the cause remanded.


text:
    Dana Harris STREETMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 35814.
    Court of Criminal Appeals of Texas.
    May 15, 1963.

      No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $75.00.

The bail bond upon which the appellant is at large was approved and filed on the same day notice of appeal was given. Art. 830 Vernon’s Ann.C.C.P. requires a recognizance on appeal. Hernandez v. State, Tex.Cr.App., 367 S.W.2d 675.

The appeal is dismissed.


author: BELL, Chief Justice.

text:
    HOUSTON MARITIME ASSOCIATION et al., Appellants, v. SOUTH ATLANTIC & GULF COAST DISTRICT OF the INTERNATIONAL LONGSHOREMEN’S ASSOCIATION et al., Appellees.
    No. 13975.
    Court of Civil Appeals of Texas. Houston.
    April 18, 1963.
    Rehearing Denied May 23, 1963.

      Robert Eikel, Theodore Goller, Jr., Houston, for appellant.
    Sewall Myer, Houston, for appellees South Atlantic & Gulf Coast District of International Longshoremen’s Ass’n Local Unions Nos. 1351, 1273 and 1665. ,
    Mandell & Wright, Arthur J. Mandell, Houston, for appellee I.L.A. Local 872.
   BELL, Chief Justice.

Houston Maritime Association, Galveston Maritime Association, both trade associations of steamship agents, owners and operators, Southern Stevedoring Co., Inc., herein called Stevédóring Co.,, and LykCs' Bros. Steamship Co., Inc., herein called Lykes, sued the South Atlantic & .Gulf Coast Longshoremen’s Association, herein called International, and Clerks and Checkers Locals Nos. 1351 ;and 1665, Longshoremen’s Locals Nos. '872 and 1273, and certain named ‘ officers and agents of said unions. Appellants sought a declaratory judgment as to the meaning of-the contract between them and the Clerks arid Checkers Unions that was in force in January, 1954, and also sought damages against ¿ppellees for alleged breach of that contract and an injunction against further work stoppages during the, life of the contract. Trial was to a jury and the trial court, based on the jury verdict, rendered judgment that appellants take nothing.

Appellants’ theory of liability on the part of appellees is that the contract between them and the Clerks and Checkers Unions authorized them to assign one timekeeper to keep tiriie on more than one ship at the same work period if one person, in the light of all circumstances, could do' the work. ’ Further they say that both the contract with the Clerks and Checkers and that with the Longshoremen prohibit work stoppages. It is contended that the Stevedor-ing Co., on January 25, 1954, assigned one timekeeper to keep time for two gangs of Longshoremen loading cargo on the Steamship Reuben Tipton and'one gang loading cargo on the Steamship Sue Lykes, ships belonging to Lykes, that were in adjacent berths in the Port of Houston; that the timekeeper, on instructions from the business agent of Local 1351, refused to keep time on the SS Sue Lykes, and that the Clerk and Longshoremen on the Sue Lykes refused to work unless a separate timekeeper was assigned to this ship and that such refusal was at the order of the officers of International and Locals 1351, 872 and 1273. The Site Lykes was not completely loaded with available cargo and had to sail, after some delay, without all scheduled cargo being aboard.

The position of International and the Clerks and Checkers Unions is that there must be one timekeeper for each ship and that they had nothing to do with the time-, keeper refusing to work both ships but that Mr. Vestal, the timekeeper, did it on his own responsibility. Locals 872‘ and 1273, the Longshoremen’s Locals, -deny any work-stoppage in connection' with the loading- of the Sue Lykes because of any desire to force employment of a separate timekeeper for the Sue Lykes, but say work of loading was not continued because after one work period there was no Clerk to point out the cargo in the warehouse that was to be loaded on the Sue Lykes, and further that the Stevedoring Co. representative failed and refused to point out the cargo to be loaded.

The jury answers were in substance as follows:

1. Special Issue No. 1 — International and Local 1351 entered into a conspiracy to effect work stoppages for the purpose of compelling Houston Maritime Association, Lykes and the Stevedoring Co. to hire a timekeeper for each ship.

2. Special Issue No. 2 — The failure to load the remainder of the cargo on the Sue Lykes was not the direct result of such conspiracy.

3. Special Issue No. 3 — Stevedoring Co. did not request Local 872 to furnish a gang to load the remainder of the cargo on the Sue Lykes.

4. Special Issue No. 5 — Stevedoring Co. made no request of Local 1273 to furnish a gang to load the remainder of the cargo on the Sue Lykes.

5. Special Issue No. 7 — Lykes could not have avoided the damages sustained by reasonable effort and expense.

6. Special Issue No. 8 — Mr. Casey, Superintendent for Stevedoring Co., failed and refused to show the gang of Longshoremen from Local 872 the cargo that was to be loaded on the Sue Lykes.

7. Special Issue No. 9 — Such failure and refusal on the part of Mr. Casey was the reason for the gang not loading the remainder of the cargo on the Sue Lykes.

8. Special Issue No. 10 — Damages to Lykes was found to be $1500.

The other issues were not answered as it was unnecessary in the light of the answers given by the jury to the enumerated issues.

Appellants, after the verdict, filed a motion asking the court to disregard the jury’s answers to Special Issues Nos. 3, 8 and 9, and to render judgment on the remainder of the verdict in their favor, after finding as a matter of law that Local 872 refused to comply with the request of Stevedoring Co. for a gang to load the remainder of the cargo.

For reversal of the trial court’s judgment, appellants complain there is no evidence to support the jury’s answers to Special Issues Nos. 2, 3, 8 and 9 and that as a matter of law the cause of the failure to load the remainder of the cargo was the conspiracy found by the jury in answer to Special Issue No. 1. Too, they complain the trial court erred in refusing to give a declaratory judgment that the contract did not permit appellees to refuse to work unless one timekeeper was hired for each ship. Complaint is also made of the refusal of an injunction to forbid refusal to work because of the refusal to hire a timekeeper for each ship.

In determining whether there is any evidence of probative force to support the jury’s answer to an issue, we must discard all evidence that militates against it and analyze that which is favorable to the answer and if from that which is favorable to it, together with all reasonable inferences that might be drawn therefrom, we conclude that reasonable minds might reach the answer the jury did, then there is evidence of probative force , supporting the answer. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561. We should probably note here, because appellants cite In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 600, and Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814, that we construe the Points of Error to be no-evidence points because they complain of the action of the trial court in not disregarding certain of the jury’s answers and after disregarding them in not rendering judgment for them. While in some of the points of error appellants also state the evidence is insufficient to support the answers, or, what is the same thing, that the answers are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust, they tie such assertion in with the procedural step calling for the court to disregard certain answers and render judgment in their favor. They are therefore no-evidence points. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361. If there is some evidence of probative force, a court may not disregard an answer and render judgment contrary to it but can only set it aside and grant a retrial.

It is established by the evidence that on January 25, 1954, Lykes had in the Port of Houston the SS Reuben Tipton and SS Sue Lykes. They were tied up in adjacent berths. A Mr. Vestal, who at that time was regularly employed by Lykes, and who was a member of Local 1351, was assigned by Mr. Eitelbach, who was then stevedor-ing supervisor for the Stevedoring Co., to keep time on the Tipton and the Sue Lykes. The first work period was from 7 P.M. to 12 P.M. on the 25th. Two gangs of Longshoremen were working on the Tipton and one on the Sue Lykes. The gang on the Sue Lykes was from Local 872. A Mr. Nicolini, who worked regularly for Lykes, and who was a member of Local 1351, was the Clerk assigned for this work period on the Sue Lykes. Mr. Vestal kept time on the Tipton but refused to keep time on the Sue Lykes for the same work period. The gang on the Sue Lykes worked without a timekeeper until 12 P.M. Mr. Nicolini worked as a Clerk with this gang until 12 P.M. After talking with the business agent of Local 1351, Mr. Nicolini went home. The gang took off for its meal at 12 P.M. They did not load cargo at the next work period which began at 1 A.M. Neither did any gang of Longshoremen work for the other work periods on January 26. Thereafter the Sue Lykes sailed without taking on any cargo except that loaded during the 7 P.M. to 12 P.M. work period on January 25. The executive committee of Local 1351 met at the docks just after midnight on the 25th. Mr. Nelson, president of Local 872, went to the docks, but not, according to his testimony, with that committee, but on his own.

The above facts seem not to be in dispute, but beyond this agreement ends and dispute as to other facts appears. We must, therefore, examine the testimony which is fadorable to the jury’s answers.

Mr. Vestal, the timekeeper for the Tipton, was the first witness after the contracts were proven, he being called by appellants at trial in July, 1961. In January, 1954, he was regularly employed by Lykes. When he was assigned to work both ships he took the position that under the contract with the Clerks and Checkers each ship must have a separate timekeeper. He did, on the night of January 25, call Mr. Morrow, the business agent for Local 1351, and after talking to him he kept time only on the Tipton. He knew it was the Union’s position as well as his own that there should be a timekeeper on each ship. He had never known one timekeeper to work two ships. Mr. Morrow testified that Mr. Vestal called him and asked about whether to keep time on the Sue Lykes and Mr. Morrow told him to use his own judgment. He did not instruct Mr. Vestal not to work the Sue Lykes. Mr. Vestal, on his own responsibility, decided not to work both ships.

Mr. Nicolini, the Clerk on the Sue Lykes until midnight of the 25th, testified he and the gang of Longshoremen worked until midnight though there was no timekeeper. He, in January, 1954, was a member of Local 1351 and was regularly employed by Lykes. About 8:30 he met Mr. Vestal and Mr. Vestal asked him if there was a timekeeper on the Sue Lykes and he informed him there was not. Mr. Nicolini went on back to work. About 11:30 he called Mr. Morrow. Morrow told him they were not supposed to work without a timekeeper, but for him to use his own judgment, so at 12 o’clock he went home. The next morning beginning at 8 o’clock he went to work at the docks and was available to work on the Sue Lykes but was not asked to and was not asked to point out any cargo. He had never known a timekeeper to work two ships. It should be noted the Clerk is the person looked to by the Longshoremen to point out the cargo stored in the large warehouse that is to be loaded on a particular ship. The large warehouses contain many types and tons of cargo intended for different ships. If it is erroneously loaded on a ship it must then be unloaded. Though Mr. Nicolini was at the docks all day January 26, he did not see any gangs of Longshoremen from Locals 872 or 1273. The significance of this is that there was testimony that there were gangs there on the 26th at the dock for the 10 o’clock and 3 o’clock work periods, supposedly in response to an order put in for them by Mr. Casey, of Stevedoring Co. If the gangs had reported it would be his duty to point out to them the cargo to be loaded. He actually went down on the dock to the Sue Lykes and didn’t see any gangs. If there had been any gangs there he would have worked.

Mr. W. J. Nelson, president of Local 872, was at the docks at 1 A.M., January 26, when the next work period began. There was no Clerk as Mr. Nicolini had gone home. Whether all of the gang of Longshoremen was there that had worked until 12 o’clock is not certain. Whether the pileman, the person to whom the Clerk would have pointed out the cargo, was the same for each work period is not shown. Nelson testified he was on the docks but he was not with the committee from Local 1351 and did not confer with them. He talked to Mr. Casey of the Stevedoring Co. (Mr. Casey was deceased at the time of trial). Mr. Casey ordered the gang of Longshoremen that was there to work beginning at 1 o’clock on the 26th to go home. No question of there being no timekeeper on the Sue Lykes was involved in their talk. They discussed that there was no Clerk available. Mr. Casey did not tell him the cargo to be loaded had already been pointed out to the pileman in the Longshoreman gang. He told Mr. Casey the men were ready to work when someone gave them the cargo to be loaded. Some members of the gang were aboard ship ready to work. He talked to the gang foreman, Richard Franklin, and Franklin told him there was no cargo. When he told Mr. Casey the men were ready to work if someone would point out the cargo, Mr. Casey said he would give them the cargo. Mr. Casey, without pointing out the cargo, went into the office, stayed a few minutes and came out and told Nelson to send the men home. He did not get an order for gangs of Longshoremen for the next day. Neither he nor his Local 872 had anything to do with the controversy between appellants and Local 1351.

Mr. J. E. Williams was Assistant Business Agent of the Longshoremen’s Local 1273. Records were kept of all orders for Longshoremen from either Local 1273 or 872. He was on duty, on both January 25 and 26. The records kept do not reflect that any gang of Longshoremen from either local was ordered for January 26. The records would reflect any gang ordered from either local because work is divided between the locals on a 50-50 basis and the business agents of each' local confer about gangs ordered so the records may be kept. A gang was ordered for the Sue Lykes for the 7 P.M. work period of January 25. An employer ordering the gangs could and probably would call both locals, but the business agents would inform one another so they could keep their records as to which local furnished the gang.

Mr. J. H. Washington, Secretary of the Board of Directors of Local 872, testified the records for Local 872 were kept in the same manner as those of Local 1273. However they had been unable to find the records for 1954. There had been a fire and many records were destroyed.

We have not given the testimony supporting appellants’ position because it is not material to a determination of the question before us; that is, whether there is evidence of probative force to support the jury’s answers favorable to appellees. We will state, however, there is evidence contrary to that we have specifically noticed which does support appellants’ theory that the failure to work on the Sue Lykes might have been due to the efforts of appellees to force the hiring of a separate timekeeper on the Sue Lykes. At least, there are evi-dentiary facts from which the jury could reach such a conclusion.

On a basis of the evidence the jury could well conclude that appellees International and Local 1351 did conspire to effect work stoppages in order to force hiring a timekeeper for each ship. It does now follow, however, that the work stoppage on the Sue Lykes resulted from such conspiracy. Viewing the above recited evidence most favorably to the jury’s answers, as above noted, the jury could well have concluded the failure of the Longshoremen to work for the work period beginning at 1 A.M. on January 26, was due to the failure and refusal of appellants’ representative to point out the cargo to be loaded. There is no dispute that the gang worked without a timekeeper until midnight. An argument then arose as to whether the gang that was to work the next work period knew the cargo to be loaded. That they know this was important as above pointed out. If the testimony above noted is to be believed, there was no one who would point out to the gang what the cargo was and the gang did not know the cargo. There was contrary evidence, but the jury is the proper body to resolve the conflict. As to the absence of loading work the next day the above testimony, if believed, would show it was due to the fact there were no additional gangs ordered for the 26th or no Clerk ordered to work with a gang. Whether gangs were ordered and were present on the 26th is a disputed issue. The jury, supported by evidence of probative force, resolved the conflict favorably to appellees.

' Appellants finally contend that the court erred in not granting an injunction enjoin■ing appellees from work stoppages because ! of the failure or refusal to hire a timekeeper •for each ship and it was error to refuse ¡to give a declaratory judgment that the '-Contract at issue did not permit appellees to refuse to work unless there was a timekeeper for each ship.

The jury having found in the case that no work stoppage resulted from the dispute over whether a timekeeper was required for each ship, there was no error in refusing an injunction. Also, the alleged work stoppage occurred in January, 1954. The case was not tried until July, 1961. The original contract involved was for the two year period from October 1, 1951 to September 30, 1953. By an amendment it was renewed on January 13, 1954, with some amendments. No term for the renewal as amended was specifically stated. The agreement to renew it would include a renewal for another two year term. The contract involved would have expired September 30, 1955. There is no showing in the record that the term had been extended so that the contract was in force at the time of trial. There was, therefore, no error in not entering a declaratory judgment.

The judgment of the trial court is affirmed.