author: SAM C. BLAIR, Special Judge.

text:
    Theodore TRIPLETT, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
    No. 31152.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      . Donald W. Bird, and John D. Schneider, St. Louis, for appellant.
    Donald S. Hilleary, and Harry L. Hil-leary, St. Louis, for respondent.
   SAM C. BLAIR, Special Judge.

A jury in the Circuit Court of the City of St. Louis awarded the plaintiff a verdict against the defendant in the sum of $12,000 for personal injuries, and the defendant appeals.

Defendant challenges the sufficiency of the evidence to support the verdict. In the outset, plaintiff argues that the sufficiency of the evidence is not open to question on this appeal, for the reason that plaintiff submitted “the same identical humanitarian theory” on “identical evidence” at a prior trial of this cause, and on appeal from the judgment defendant failed to raise any objection to the sufficiency of the evidence. Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670. Invoked is the rule that adjudication of questions presented on a former appeal constitutes the law of the case, and of a subsequent appeal, not only as to all questions directly raised and adjudged, but also as to all matters which arose prior to the first appeal and which might have been raised, but which were not raised or adjudged, unless the former ruling was palpably wrong, or unless there is substantial difference between the evidence at the two trials. Lonnecker v. Borris, Mo., 245 S.W.2d 53, 55; Wilson v. Toliver, Mo., 305 S.W.2d 423, 428; 3 Mo.D. 2, Appeal and Error, ®=}1097(3), 1195(3). Decisions we have examined, where this rule of res ad-judicata has been applied on a second appeal, have been rulings where the appellate court could look to the opinion on the former appeal for a statement of the evidence for a comparison with the evidence on the second appeal.

The decision on the former appeal of this case dealt only with the qualifications of the jury which tried the case. The sufficiency of the evidence was not questioned. Nothing in the opinion sheds any real light on what the facts were at that’ trial. Plaintiff offers us no assistance in making a comparison between the evidence presented in the first and second trials, except the bare assertion that plaintiff submitted “the same identical humanitarian theory” on “identical evidence” at both trials, and the suggestion that we get out the transcript of the first trial and see for ourselves. This we decline to do, for it is our settled judgment that this novel method of claiming res adju-dicata by force of a prior appeal is wholly inadequate to present anything for our review and places no duty on us independently to search the first transcript to determine whether the evidence at the earlier trial and at this one was “identical” or substantially different. We will examine the record to determine if the evidence on this appeal was sufficient to support the verdict.

In the vicinity of the occurrence we must examine, Grand Avenue is level and is four lanes wide from curb to curb. It runs generally north and south. Defendant maintains two sets of car tracks in the middle of Grand to accommodate both north and southbound traffic. Keokuk runs generally east and west and intersects with Grand Avenue. This intersection is the locale of the accident. Defendant’s streetcar collided with the rear of plaintiff’s automobile after plaintiff had come to a stop in the intersection on the northbound streetcar tracks.

Plaintiff’s and defendant’s theories concerning the manner in which the collision occurred differed materially.

We must view this record most favorably to plaintiff, allow him the benefit of every favorable and reasonable inference which the entirety of the evidence justifies, including any evidence of defendant which is not at war with plaintiff’s own fundamental theory, and we must disregard all of defendant’s evidence conflicting with plaintiff’s theory. Steele v. Woods, Mo., 327 S.W.2d 187-191; Brooks v. Terminal Railroad Association, Mo.App., 276 S.W.2d 600-601.

Plaintiff’s theory of the facts: One of the defendant’s streetcars, northbound on Grand Avenue, stopped at a safety zone south of Keokuk to take on passengers. Traveling north on Grand, plaintiff drove his automobile past the stationary streetcar and on its right side, and proceeded at 15-20 miles per hour toward Keokuk, the next intersecting street. The distance from the north end of the safety zone to Keokuk is one hundred feet. Midway between the safety zone and Keokuk plaintiff gradually angled over and onto the northbound tracks, preparing to turn left and west on Keokuk, and stopped with the rear end of his automobile on Keokuk’s south boundary and its front end in the center of Keokuk pointed northwest. The left front wheel stood on the west rail of the northbound tracks, “slightly over the track” and the left rear wheel stood, “about in the center” of the tracks. Plaintiff’s reason for stopping was to allow an automobile coming south on Grand toward him to pass across Keokuk to his left and clear his way to make his left turn. The oncoming automobile was “close enough I didn’t want to cut in front of” it. Plaintiff remained stopped in this position 5-10 seconds with his directional light signaling a left or west turn on Keokuk and was then struck from the rear by defendant’s streetcar. He had not seen the streetcar after he passed it at the safety zone, and he had no knowledge of its movement until he heard its warning signal immediately before the collision. He had no knowledge at all of its speed. The time was 7:30 A.M., Grand Avenue was level, and the weather was clear.

Defendant’s theory of the facts: The operator of the streetcar took on three passengers at the safety zone, collected their fares and closed the door. Then he started the streetcar moving toward Keokuk. Ninety feet from Keokuk’s south boundary he attained a speed of 10 miles per hour. At that point he observed plaintiff on the streetcar’s right side, traveling north and ahead of him. The front end of plaintiff’s automobile was then forty-five feet south of Keokuk’s south boundary. Plaintiff’s automobile was fifteen feet long. Thus, its rear end was sixty feet south of Keokuk. In an instant plaintiff cut left in front of the streetcar and onto the northbound tracks. At that moment the front end of his automobile was fifteen feet from Keokuk, and his rear end thirty feet. The front end of the streetcar was forty-five feet from Keokuk, and it was traveling 10 miles per hour. Thus, between the streetcar and the rear of the automobile only fifteen feet intervened. Plaintiff continued toward Keokuk’s south boundary and then suddenly stopped there on the northbound tracks with his vehicle turned northwest at a 45 degree angle, directly in front of the streetcar. At that moment the distance intervening between the streetcar and the automobile was still fifteen feet. At once the operator applied all brakes, gave continuous repetitions of the electric bell signal, and managed to reduce his speed to 2 miles per hour, and collided with the rear end of the automobile at that speed. The operator testified that the shortest distance within which his streetcar, traveling at 10 miles per hour, could be stopped was thirty-five feet, including reaction time, under the conditions then existing. There is no contrary or other evidence in the record on this point.

Submitted solely was the humanitarian inquiry whether the defendant’s streetcar could have been stopped and the collision avoided by the defendant in the exercise of ordinary care.

Our view is that substantial evidence warranted a finding of these facts by the jury: Plaintiff drove past the right side of the streetcar at a time when it was standing beside the safety zone, loading passengers, and continued on at a speed 10-15 miles per hour toward Keokuk until he finally stopped in Keokuk with his blinking directional signal and his automobile’s position in the middle of the street indicating that he was waiting to turn left or west on Keokuk and that he did not intend to start and go farther forward on Grand. Precisely when the operator of the streetcar completed loading his passengers, closed the door, collected the fares and began moving north toward Keokuk, we do not know. But we do know that ninety feet from Keokuk he says he was traveling 10 miles per hour. We do know that forty-five feet from Keokuk he says he was moving at the same speed. We do know that he did not begin decelerating his 10 miles per hour speed until he was thirty feet from Keokuk and the rear end of plaintiff’s automobile. Obviously, from the point ninety feet from Keokuk to the point thirty feet from Keokuk, his speed was a uniform 10 miles per hour, and, thereafter, if he was believed, he decelerated to a final 2 miles per hour. After stopping on Keokuk, plaintiff’s automobile stood unmoving for five to ten seconds. Traveling 10 miles per hour, if the streetcar had traversed the entire distance of ninety feet without decelerating, it would have covered that distance in six and a fraction seconds. Likewise if plaintiff’s automobile was stopped and unmoving for six and a fraction seconds before the collision, it is obvious that the streetcar, moving a uniform 10 miles per hour to the point of collision was 90 feet to its rear at the beginning of those six and a fraction seconds. If the operator decelerated from 10 to 2 miles per hour during the last 30 feet to Keokuk’s south boundary, where the rear end of plaintiff’s automobile was standing, the time consumed was obviously more than six and a fraction seconds, but less than ten seconds. But this alters nothing. What is decisive is his failure to begin decelerating until he was only thirty feet from plaintiff’s automobile, for he could not stop in less than thirty-five feet. The day was clear. The locale was level, and we must assume that the view of Grand Avenue ahead was unobstructed. Adequate circumstances in the record support this assumption and no defense of obstructed view is even suggested. It was the duty of the operator at that time to observe not alone plaintiff’s position and his own, but to observe and be guided by the entire traffic situation, including the presence of traffic north of plaintiff on Grand, coming south toward plaintiff, and preventing him from safely beginning his left turn on Keokuk. Nothing in the situation facing the operator at this time, as we view it, justified him in assuming plaintiff would move out of his path and there were strongest reasons for him to take immediate notice that plaintiff intended to remain just where he was, and that he was not going to move his automobile until he could safely turn left on Keokuk.

Therefore, the jury could find that the operator, with a clear day and nothing obstructing his view, by exercising ordinary care, saw or could have seen plaintiff 90 feet ahead of him, stopped and unmoving on Keokuk, with his blinking directional signal and the position of his automobile plainly indicating that he intended to remain stopped and to wait where he was until southbound traffic cleared and permitted him to turn west on Keokuk. It became the duty of the operator within those 90 feet to act on appearances and to take timely and available measures to avoid the collision. Had he done so, the collision would have been avoided. His failure to do so caused the collision and justified the verdict. Millard v. St. Louis Public Service Company, Mo.App., 330 S.W.2d 147, 153; Cherveck v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 599, 601-603; McClellan v. Kansas City Public Service Co., Mo.App., 19 S.W. 2d 902, 904; Ingino v. Metropolitan St. Ry. Co., Mo.App., 179 S.W. 771, 772.

We notice that defendant claims that plaintiff’s case cannot be aided by defendant’s evidence of the streetcar’s 10 miles per hour speed for the reason that such testimony is at war with plaintiff’s own fundamental theory of his case. But plaintiff offered no evidence at all with reference to the speed of the streetcar. Defendant’s speed evidence was the only evidence of speed in the case. Of course, we fully recognize that a party cannot adopt evidence of his adversary favorable to him if that evidence is at war with his own fundamental theory. On the other hand, it is elementary that he may do so if adopting such evidence presents no such conflict. Our decisions long since have put this point beyond dispute. There is no war between plaintiff’s fundamental theory of recovery and defendant’s speed evidence. The speed evidence does not contradict or tend in any way to disprove any of the essential and ultimate facts embraced in plaintiff’s fundamental theory of liability. Millard v. St. Louis Public Service Co., supra, 330 S.W.2d 151, 153; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47-50. For these reasons we must reiect defendant’s argument, long since repudiated, that plaintiff cannot adopt defendant’s speed evidence without adopting all of its evidence and thereby defeating his case. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 12-13. The decisions relied on by defendant to support its present arguments have been differentiated so frequently that any further analysis by us would be superfluous.

For defendant Norman Atkins testified he was a special investigator, and that after the collision he had taken moving pictures of the plaintiff pumping up a flat tire, stooping down weeding, picking weeds out of a lawn, moving his back at all times, all exertions inconsistent with plaintiff’s claim of injury. Defendant did not develop whether Atkins was self-employed or employed by someone else. The foregoing is all the defendant presented to identify the witness. The moving pictures were exhibited to the jury. On cross-examination Atkins reiterated that he was a special investigator. The next questions elicited the following:

“Q. By whom are you employed? A. Public Service Company. Q. Is Public Service Company your employer? A. Well, most of my work is Public Service. Q. Who is your employer? A. Transit Casualty. Q. Transit Casualty? A. Yes, sir. Q. And they are the carrier that covers this company. Is that right? A. I assume so.”

After objections at the bench and lengthy colloquy:

“Q. Now, you said you are employed by Transit Casualty Company. Is that right? A. Yes.”

The defendant claims that the reference to Transit Casualty Company, Atkins’ employer and defendant’s insurer, was “wholly irrelevant, patently mischievous, and calculated to inflame rather than to inform” the jury, and that the court abused its discretion by refusing a mistrial. Plaintiff claims that in presenting Atkins and identi-lying him only as a “special investigator” defendant -purposely failed to reveal Atkins’ employer and left the jury with the erroneous impression that he was self-employed ; and that,, therefore, plaintiff. had the right to develop that Atkins was actually c.mployed by Transit Casualty.

There was no-dispute that Transit Casualty was the insurer interested in the outcome of the case. Counsel for the defendant frankly made that admission to plaintiff’s counsel at the beginning of the trial, and to the court while objecting to th.e cross-examination y/e are examining. Of..course, defendant was not under any compulsion, after Atkins characterized him.self only as a special investigator, to develop also that he was an employee of Transit Casualty. But .defendant’s failure to disclose Atkins’ employment, and the interest of his employer, Transit Casualty, certainly raised no barrier preventing plaintiff from developing such facts. Of course, this evidence, as we say, “injected insurance” into the case. Yet it was settled long ago that relevant and material evidence may not be excluded merely because it tends to prejudice a party. Jablonowski v. Modern Cap. Mfg. Co., 312 Mo. 173, 279 S.W. 89, 97. If evidence is competent for any purpose) its prejudicial effect cannot authorize its exclusion, for obviously all competent evidence that makes against a party’s cause tends to prejudice him. Crampton v. Osburn, 356 Mo. 125, 201 S.W.2d 336, 340-341, 172 A.L.R. 344; Carlson v. Kansas City, Clay County & St. Joseph Auto Transit Co., 221 Mo.App. 537, 282 S.W. 1037, 1042. It was competent and relevant for plaintiff to show that Atkins was in the employ of Transit Casualty as an aid to the jury in determining Atkins’ interest and credibility and the value of his testimony. For the purpose of Atkins’ moving pictures was to destroy or at least to diminish plaintiff’s claim of disablement by impugning his testimony and that of his medical and lay witnesses. In a recent ruling involving this defendant, Atkins as a.,witness presenting incying pictures -of.,a plaintiff,, and”a .cross-examination similar in all respects to the one we discuss, we ruled : “The authenticity and accuracy of the movies -taken by Atkins were material to the issue of the extent and nature of the plaintiff’s injuries and the damages to be awarded. They had a definite bearing upon the .weight to be given by the jury to the plaintiff’s medical testimony and constituted an attack upon and refutation of the testimony of plaintiff’s fellow workers. The defendant urged the films upon the jury without any qualifications. Under these circumstances the plaintiff was entitled to show that Atkins, who took the films, was -an employee of Transit Casualty, who was financially interested in the outcome of this litigation.” Wren v. St. Louis Public Service Company, Mo.App., 355 S.W.2d 365, 368. Earlier the same imbroglio, embracing the same dramatis personae, was viewed by this court and ruled the same way in Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131, 137-139. Some of the earlier rulings to the same effect are Jablonowski v. Modern Cap. Mfg. Co., supra, 279 S.W. 89-97; State ex rel. Tramill v. Shain, et al., 349 Mo. 82, 161 S.W.2d 974, 976; Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, 223 S.W. 911, 918.

The complaint that plaintiff’s coun-sel overemphasized insurance by twice asking Atkins if he was employed by Transit Casualty does not persuade. After the question was asked and answered the first time, a long colloquy ensued at the bench. Its very length was likely to dim Atkins’ answer in the jury’s mind, or even to lead it to forget. In the circumstances we cannot convict plaintiff’s counsel of a repetition made in bad faith, or believe he engaged in overemphasis, especially when it is remembered that he had the right in argument to the jury to argue and to reiterate that Atkins’ testimony ought to be discredited because he was employed by Transit Casualty, the insurance company interested in the outcome of the trial. Wren v. St. Louis Public Service Company, supra, 355 S.W. 2d 368-369. We rule, that the ,cross-examination complained of did not violate the defendant’s rights.

Contention is made that plaintiff's counsel, in argument to the jury, said that the operator testified that the streetcar was forty-five feet from the rear end of plaintiff’s automobile when it came to a stop. It is claimed that there was no evidence to support that statement and that the operator actually testified that the streetcar was forty-five feet from the south boundary of Keokuk when plaintiff’s automobile was fifteen feet south of the boundary, and that the separation between the two vehicles was then only fifteen and not forty-five feet. Plaintiff contends that his counsel did not tell the jury that the operator had so testified, but that he only argued his own conclusion from calculations he had made on the basis of testimony. Be this as it may, defendant admittedly made no objection whatever to this statement. Objections to arguments must be made in the trial court, not for the first time in the appellate court. It is the general rule that the effect of improper argument is considered on appeal to have been waived if a proper and timely obj ection is not made to the trial court so that it may, if the impropriety is of a character subject to correction, take appropriate action to cure the prejudicial effect. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 428; Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718. We believe that the effect of the argument in this case, if it was improper, could have been cured by a corrective action on the part of the trial court. We are not confronted by a situation where a course of wrongful conduct was pursued in violation of the court’s ruling, Dunn v. Terminal Railroad Association of St. Louis, Mo., 285 S.W.2d 701, or where the argument standing alone was so prejudicial as to destroy the likelihood of a fair trial, Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454, or where the trial court had a duty to act even though objection was not made, Critcher v. Rudy Fick, Inc., supra, or where we are called on to apply Supreme Court Rule 3.27 under the belief that the argument was so improper and damaging to defendant’s substantial rights that a manifest injustice or miscarriage of justice has resulted. In summary, defendant’s failure to object in the trial court precludes review in this court for that reason and because the argument made does not disclose, and defendant does not present anything bringing it within any of the foregoing exceptions. 2A Mo.D., Appeal & Error, ^207.

Defendant asserts that the court erred in permitting plaintiff’s counsel to make, in his closing argument, the “untrue statement that defendant had plaintiff examined by a second doctor because it didn’t believe the report of the first doctor”. The argument went:

“Mr. HILLEAKY: If he * * * (defendant’s first' examining physician) was such a wonderful doctor, why did Dr. Smolik (defendant’s second examining physician) make an examination after they had that report (of the first examining physician) ? Apparently, they didn’t believe that report.
“Mr. BIRD: I object. This plaintiff has been examined by four doctors. So defendant wanted examination by two doctors (sic) by defendant' — that’s the reason. Mr. Hilleary is commenting on things not in evidence. For that reason, I object.
“THE COURT: Overrule the objection”.

This was the only objection defendant made, although it now argues several others it believes we ought to consider. Those objections, not having been made in the trial court, will not be reviewed here for the reasons given to support our preceding ruling on another portion of plaintiff’s argument.

Viewing the argument made from all sides, we are convinced that it accomplished no more than the presentation of a non sequitur so palpable that any jury of ordinarily intelligent laymen would reject it automatically and immediately as a conclusion wholly illogical and unsound. Especially would this be true, we think, after defendant’s counsel, in immediate response, charged in his objection, and without any contradiction by plaintiff’s counsel, “This plaintiff has been examined by four doctors. So defendant wanted examination by two doctors”. If the fallacious argument of plaintiff’s counsel needed exposure, this did it, and at once.

Moreover, it has been frequently ruled that counsel is allowed wide latitude in argument and in drawing inferences, even though the inferences drawn are illogical or erroneous. Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802, 810; Raymore v. Kansas City Public Service Co., Mo.App., 141 S.W.2d 103, 109. For, said the Supreme Court, in Atkinson v. United Railways Co., 286 Mo. 634, 228 S.W. 483, 484, “ * * * if this court should reverse every case where a lawyer made an unsound argument or drew an unwarranted conclusion from given premises, few cases would stand the test”. 27 Mo.D., Trial, «=>121(2). Actually we believe the occurrence was a trivial one, and in view of defense counsel’s instant retort that plaintiff had been examined by four doctors, we also think that, if any prejudice resulted, it was plaintiff’s counsel who was on the receiving end.

We find no reversible error and the judgment is affirmed.

ANDERSON, P. J., and PHIL H. COOK, Special Judge, concur.

RUDDY and WOLFE, JJ., not participating.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NO. 55, Relator, v. Waggoner CARR, Attorney General of Texas, Respondent.
    No. A-9735.
    Supreme Court of Texas.
    Nov. 20, 1963.
    Vinson, Elkins, Weems & Searls, William E. Stapp, Houston, for petitioner.
    Howard Mays, James Strock, Asst. Attys. Gen., Austin, for respondent.
   STEAKLEY, Justice.

Relator is Harris County Fresh Water Supply District No. 55. It seeks a writ of mandamus to require Respondent to approve its bond issue. The Attorney General refused to approve the bonds on the ground that Relator was created in 1963 in violation of Article 7880-la which, he says, forbids the creation of a Fresh Water Supply District. The full text of Article 7880-la follows:

“An Act providing that Water Control and Improvement Districts and underground water conservation districts may be created only according to the provisions of Section 59 of Article 16 of the Constitution; providing exemptions; and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
"Section 1. After the effective date of this Act no water district shall be created to effectuate the purposes expressed in Section 59 of Article 16 and Section 52(a) and 52(b) of Article 3 of the Constitution of Texas except such districts may be created by the provisions of Article 7880-1 et seq., Revised Civil Statutes of Texas. The provisions of this Act shall not be applicable to districts created pursuant to the provisions of the State Soil Conservation Law, codified as Article 165a-4, Vernon’s Texas Civil Statutes. The passage of this Act shall in no way affect any water district heretofore lawfully created, nor shall this Act affect the authority of the Legislature to create special districts pursuant to the provisions of Section 59 of Article 16 of the Constitution of Texas.
■ “Sec. 2. • The fact that existing laws permit the creation of ■ such a wide variety of water districts; the fact that such condition leads to confusion and overlapping -of powers in the vital field of water resources conservation and development; and the importance . of this legislation to the people of Texas create an emergency and an imperative public necessity that the Con- - stitutional Rule requiring bills to be ..read in each House on three several .days be suspended, and said Rule is hereby suspended, and this Act shall take effect and be in force from and , after its passage, and it is so enacted.”

Relator says the statute is unconstitutional because its title does not meet the requirements of Section 35 of Article III of the Texas Constitution, Vernon’s Ann. St., which states that “No bill * * * shall contain more than one subject, which shall be expressed in its title.” We have concluded that the title is insufficient and that Relator is entitled to the writ for which it applies.

The title on its face indicates that the Act applies to Water Control and Improvement Districts and to Underground Water Conservation Districts, the creation of which is to be in accordance with Section 59 of Article XVI of the Constitution. The purported effect of the statute, on the other hand, is that no water district may be created other than those for which provision is made in Article 7880-1 et seq.; Article 7880-1 is applicable to Water Control and Water Improvement Districts, and Article 7880-3c is applicable to Underground Water Conservation Districts.

The deceptive feature of the title is thus apparent. A reader is misled into believing that the bill will have no application to any type of water district except the two which are specified in the title, and that the purpose of the Act is to establish restrictions with respect to these two types of districts. But the intended effect of the Act is to prohibit the creation of any type of water district other than the two mentioned. This prohibition would appear to include Relator which was organized pursuant to Article 7881 et seq., ,and other types of water districts noted in the footnote.

This Court in Adams v. San Angelo Water Works Company, 86 Tex. 485, 25 S.W. 605, considered a title which read, “An act to amend an act to regulate the condemnation of property * * * for water mains * * The Act was held unconstitutional in so far as it authorized the condemnation of land for reservoirs for water works. The Court recognized that the relation of “water mains” to “reservoirs” in ordinary use may evince the intention of the Legislature to make the law applicable to both. “But,” said the Court, “it is not with a question of intention .we have to deal. The inquiry is not what the legislature intended to embrace in the title, but what, by the terms employed, it did, in fact, embrace.”

In Ward Cattle and Pasture Company v. Carpenter, 109 Tex. 103, 200 S.W. 521, this Court considered a title which indicated that certain counties were being included in the benefits of the stock law when, in fact, one county — Matagorda—was dropped from the list of counties that might avail themselves of the law. It was held that the Act violated the Constitution to the extent of its attempt to exclude Matagorda County. Particular emphasis was given to the fact that the title was misleading and carried “a distinct assurance that the object of the Act was a limited one, and that its scope was to amend the article in that way and no other.”

The majority of this Court in Gulf Insurance Company v. James, 143 Tex. 424, 185 S.W.2d 966, was persuaded that the title there under review was insufficient because the language was misleading and did not properly advise the Legislature and the public of the subject of the Act. The established rule that a liberal construction will be indulged to uphold the title of an Act of the Legislature was fully recognized by the majority. But it was held that this rule will not save a title that is deceptive or misleading, or relieve the Legislature of the necessity of disclosing in the title the real subject of the Act.

While recognizing the deficiencies in the title, the Attorney General argues that it can be made sufficient, and the statute upheld, by transposing the word "only” so that the title would read “An Act providing that only Water Control and Improvement Districts and Underground Water Conservation Districts may be created according to Section 59 of Article 16.” Also, argues the Attorney General, the word “only” is so habitually misused that its use in a title is itself suspect and puts the reader on notice that it may be wrongly positioned.

The function of the title requirement in legislative bills is to give notice during the legislative process. 'The title must not only express a subject, but must fairly express, and point to, that which is dealt with in the body of the Act. Its sufficiency is determined by what the title says .and not by what it was intended to say. It must give fair notice within itself and a reading must reasonably forewarn of the subject of the statute. The constitutional requirement that the subject of a bill shall he expressed in its title would be rendered ■meaningless if titles can be later upheld by means of word transpositions requiring a study of the body of the Act to ascertain what words are to be transposed, and where. The title requirement was designed to assure readers of the title during the legislative process that they would not be required to study the body of the Act to .avoid being misled or deceived.

It is agreed by the parties that Relator has been organized, and its bond issue of $750,000.00 has been authorized, in accordance with applicable constitutional and statutory requirements.

We assume that Respondent will act in accordance with this opinion, and that issuance of writ of mandamus will be unnecessary.

      . H.B. 376, Ch. 457, p. 1034, Acts 1961, 57th Leg, R.S.

      . Water Improvement Districts, Article 7.622 e.t seq.; Water Supply Districts, Article 7807f et seq.; Water Control and Preservation Districts, Article 7S08 et seq.; Drainage Districts, Article 8097 et seq.; and Conservation Reclamation Districts, Article 8194 et seq.; Navigation Districts, Article 8198 et seq.


author: NORVELL, Justice. GRIFFIN, Justice

text:
    TEXAS HIGHWAY COMMISSION et al., Petitioners, v. TEXAS ASSOCIATION OF STEEL IMPORTERS, INC., et al., Respondents.
    No. A-9515.
    Supreme Court of Texas.
    Nov. 6, 1963.
    Rehearing Denied Dec. 11, 1963.

      Waggoner Carr, Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., Austin, for petitioners.
    William B. Dazey, Houston, for respondents.
   NORVELL, Justice.

Article 6674h, Vernon’s Ann.Tex.Stats. provides in part that:

“All contracts proposed to be made by the State Highway Department for the improvement of any highway constituting a part of the State Highway System or for materials to be used in the construction or maintenance thereof shall be submitted to competitive bids.”

On March 28, 1960, the Texas Highway Commission passed its Minute Order No. 48,644 which reads as follows:

“All construction contracts, beginning with the January 1961 letting, shall include a provision that materials furnished under such contracts shall be manufactured in the United States, its territories and possessions. It is further understood and directed that where finished construction material is manufactured in a United States or territories mill it will be considered as a domestic product and will be acceptable under the terms of this Order provided all other requirements of the specifications are met.”

The Court of Civil Appeals has held that Minute Order No. 48,644 is void because it is contrary to the provisions of Article 6674h above quoted. See 364 S.W.2d 749. The effect of the order would be to eliminate from the field of bidders upon highway construction contracts all those who owned or intended to acquire foreign materials and use them in carrying out highway construction contracts. Quite obviously the field of material suppliers would be drastically reduced. For example, it is shown without dispute that during the first seven months of the year 1960, the year in which the anti-foreign order was passed, forty-four per cent of all reinforcing steel and ninety-five per cent of all prestressed wire strand used in Texas highway construction was manufactured outside the United States. As an incidental matter, it was admitted that all the foreign materials used had passed the same tests and met the same specifications as their domestic counterparts and that no instance of a failure of imported materials used in highway construction was known to the Department. If the suppliers in one field of materials, such as steel, will be reduced by approximately fifty per cent, it seems obvious that the clear purpose for which Article 6674h was enacted is being circumvented.

It is stated by McQuillin that where the subject matter of the contract is not a monopoly, but where there are several manufacturers who produce a certain article or where the material can be secured from two or more different localities, “it is held in nearly all the decisions that bidding cannot be restricted to bids on an unpat-ented article manufactured by a particular firm or material from a particular locality (Emphasis supplied.) 10 McQuillin Municipal Corporations, 3rd Ed., Sec. 29.49, pp. 304-5. If the Highway Commission could (without express statutory authority) restrict the locality from which it would accept manufactured materials, it could as well restrict such materials to those manufactured within the State of Texas or any particular county within the state. We are not here concerned with restrictions which could be imposed by the Congress of the United States or the Legislature of the State of Texas but with the order of an administrative authority which must act in accordance with and not contrary to the acts of the legislative branch of government. Had the Legislature proscribed foreign materials, we would have an entirely different question. There might be some constitutional objection to such a statute, but in the present case the Legislative decision is one favoring free and unrestricted bidding.

A number of cases hold that provisions in an ordinance or an administrative order restricting hours of labor and providing that no aliens may be used on public improvements are invalid. Such restrictions have been avoided on both constitutional and statutory grounds. Undoubtedly some of the cases construing various constitutional provisions with reference to restrictions on the hours of labor would not be followed today. Texas has statutes relating to such matters which are applicable to highway construction. Article 5165, Vernon’s Ann.Tex.Stats. See, Scott v. Vilbig Const. Co., Tex.Civ.App., 140 S.W.2d 874, no wr. hist. However, aside from any constitutional question that may be involved, it seems that a nonstatutory restriction in the form of an ordinance or administrative order restricting employment to native and naturalized Americans is invalid because it is contrary to a statute providing for competitive bids. Glover v. People ex rel. Raymond, 201 Ill. 545, 66 N.E. 820; Taylor v. City of Philadelphia, 261 Pa. 458, 104 A. 766. Cf. Bohn v. Salt Lake City, 79 Utah 121, 8 P.2d 591, 81 A.L.R. 215, wherein it appeared that a state statute provided that in the employment of labor upon public works, preference should be given to citizens of the United States and those having declared their intention to become citizens and it was held that the City could not restrict the employment preference to heads of families who were residents of Salt Lake City.

The purpose and intent of competitive bidding ordinances and statutes are well stated in Sterrett v. Bell, Tex.Civ.App., 240 S.W.2d 516, 520 (no wr. hist.) wherein it was said:

“ ‘Competitive bidding’ requires due advertisement, giving opportunity to bid, and contemplates a bidding on the same undertaking upon each of the same material items covered by the contract; upon the same thing. It requires that all bidders be placed upon the same plane of equality and that they each bid upon the same terms and conditions involved in all the items and parts of the contract, and that the proposal specify as to all bids the same, or substantially similar specifications. Its purpose is to stimulate competition, prevent favoritism and secure the best work and materials at the lowest practicable price, for the best interests and benefit of the taxpayers and property owners. There can be no competitive bidding in a legal sense where the terms of the letting of the contract prevent or restrict competition, favor a contractor or materialman, or increase the cost of the work or of the materials or other items going into the project.”

In Taylor v. City of Philadelphia, 261 Pa. 458, 104 A. 766, the Supreme Court of Pennsylvania was concerned with the validity of' ordinances of the City of Philadelphia which in effect provided that “in all contracts * * * for the construction of public buildings, * * * it shall be specified that the work of cutting and preparing (building) stone for use shall he done in Philadelphia.”

The two lowest bidders submitted alternative bids. The bid of Fuller & Company was $2,570,000, subject to a deduction of $155,000 if the provisions of the ordinances as.to the Philadelphia preparation of building stone were eliminated. Gill and Sons submitted a bid of $2,535,000 with a $110,-000 reduction if the Philadelphia stone preparation requirements were eliminated. The; ..Gill bid. was accepted despite the fact that the Fuller bid was lower if the requirement as to place of cutting and preparing, the, building .stone be eliminated. Taylor, as a taxpayer, sought to' enjoin the execution of the proposed contract-■ with :Gill and Sons- The’ Supreme Court' held that a purported legislative enactment' which- sought- fo'authorize the insertion of' stich restrictive clauses in municipal ordinances was invalid b'ecaus'e it was a species- of special legislation not permitted by'-the'-Pennsylvania constitution. The Court then -said, “The act of 1917 (above mentioned) being' eliminated, it remains to consider the validity of the ordinances themselves. * * * [T]he only question is whether the ordinances violate the provisions of the Act’ * * * requiring all work and materials furnished to the city under contracts to be let to the lowest responsible bidder.”

The Court made clear the distinction between a statute, — an expression of a higher legislative authority — and an ordinance. It then pointed out that, “[a]n act of the Legislature can, of course, be modified by the Legislature itself,” but this modification cannot be effected by City ordinance nor, (it would follow) by the order of an administrative body. The Court concluded by saving: ' ' v ..

“Nó cáse hás' been found which’- is direct authority to sustain the validity of municipal ordinances such as are here in question where the effect is to conflict with an express, statutory provision requiring contracts to be let to the lowest responsible bidder. That the cost here has been increased because of the ordinances cannot be disputed in view of the difference in the bids of both contestants. From what has been said the judgment of the court below must be reversed.”

See also, 10 McQuillin, Municipal Corporations, 3rd Ed., Sec. 29.30, p 268.

Undoubtedly the Minute Order is viola-tive- of the competitive bidding- law, unless it-can be supported upon the thesis asserted by the Attorney General, namely, that the Commission found that • foreign ■ steel is sometimes rusty, that it- is sometimes-imr properly or defectively threaded, that it is often difficult to test foreign materials at the- place.of manufacture, that- sometimes foreign steel is improperly marked, and .that for these reasons a rejection of substantial amounts of foreign products at the job-site takes place.

•• All- of these matters relate- to quality' of materials and convenience of the employees of the State Highway Department. ,As pointed out by the respondents, the order itself makes no effort to provide definite and objective physical and chemical standards which must be met by the contractor insofar as materials are concerned. The order does not say that steel which is rusty, improperly threaded or of substandard quality shall not be used in carrying out any highway contract. The proscription relates to “foreign, materials.”

It is admitted that prior to the passage of the order, substantial amounts of foreign steel were used in highway construction and that so far as the' Highway Department knows there have been no structural failures resulting from the use of foreign, steel. There is no showing that the' inspection processes of the Department have failed to detect the use of defective' materials. No effort was made to trace the stéel which had caused some trouble and resulted in an abnormal amount of rejections to any particular steel producing area or company. Steel from Sweden, England, West Germany, Japan and other steel producing countries having commercial relations with the United States are dumped into one common lot, labelled “foreign” and thus proscribed.

While the- State of Texas in building highways through its Highway Department is acting in a proprietary rather than a sovereign capacity, insofar as foreign commerce is 'concerned, rit is undoubtedly operating in an area largely 'controlled by agreements and treaties negotiated by the central government.' While this record will not support a- finding that the Commission is attempting through- indirection to invade the’ field of - foreign - commerce regulation and-grant a-preference-tó domestic manufacturers Over their- foreign counterparts, it- is nevertheless suggested that if the true basis Of the: order and the festilts sought- to be obtained thereunder are the securing of quality products for highway construction purposes, as the Department’s witnesses- say, — then, that' result should be secured by the use'o'f direct rather than indirect means. No one questions the power and'authority of the Commission to specify the • physical and chemical ■ standards for construction materials which are to be used in Texas highway construction. If the Commission desires that no rusty steel be used, it may say so. Matters of quality should be fixed by quality specifications and not by proscriptions as to localities of manufacture or fabrication. Indirection should be avoided. If an order be one designed to secure quality products in highway construction then it should be couched in the terms of physical and chemical specifications, so that one contending that the order is Unreasonable or arbitrary may attack it directly, rather than being called upon .to meet.evidence of a.nature not suggested nor comprehended by the wording of the order. Why should not the term, “st'eélj free from rust” be used instead of “domestic steel” if that is the quality that is desired in re-enforcing materials used in highway construction ?

It is wholly unsound to say that as the competitive bidding statute has for its purpose the securing of the best work and materials at the lowest practicable price, no cause of action is shown unless it demonstrated that as a result of the restrictive order an actual rise in material costs has taken place. Many factors enter into the cost of materials. The Legislature has in effect declared that open bidding contributes to the lowering of costs while restrictive bidding tends to an increase in costs. The Legislature has said what.shall be done in the situation and impliedly said what shall not be- done. Noncompliance with the man' datory statutory procedures cannot be .excused by blandly' contending that no one was actually hurt by the law violation. One might as well argue that as the policy of the law against' mürder is the protection of society, the specific proscription, “Thou shalt not till” could be disregarded úpon a showing that actually society had been protected by the timely removal of the deceased as a member thereof'.

The- question of the necessity of proving actual harm as a prerequisite for belief was considered by the Supreme Court of Illinois in Glover v. People ex rel. Raymond, 201 Ill. 545, 66 N.E. 820 in which a property owner resisted the collection' of. a special assessment against his property Upon the ground that the contractual restrictions insisted upon by the City of Chicago in letting contracts for -special improvements were contrary to the statute providing for competitive bidding. The Court in upholding the property owner’s contention quoted from the earlier case of McChesney v. People ex rel. Raymond, 200 Ill. 146, 65 N.E. 626, as follows:

“The contract' is to be awarded to the responsible bidder offering to do'the work for the lowest sum, and any provision tending to increase the cost, and make the bids less favorable to the public and the property owners, is against public policy, illegal, and void. * * * Such a provision or restriction in a competitive bidding is unlawful and against public policy, and this is conceded by counsel for appellee. They insist, however, that, to enable one whose lands have been assessed to pay for an improvement to avail himself of such an objection, he must show that the existence of the provision has increased the cost of the work, aad this must be a definite showing of a financial injury to him, in dollars and cents. That is not the rule. The law entitles a property owner to the security afforded by its provisions, and it is sufficient for him to show that he has been deprived of the protection which the law gives him, of having bids made upon a lawful basis, and free from restrictions likely to produce a result detrimental to his interests. It would certainly be difficult, if not impossible, to prove in every instance that an illegal limitation worked unfavorably, or the amount of injury, in dollars and cents, resulting from it. The property owner is not obliged to show in each instance that he was prejudiced by unlawful restrictions and disregard of the law, but it is for the authorities seeking to impose the burden upon his lands to prove a substantial compliance with all of these provisions designed for his benefit. It would be just as reasonable to insist that if the requirements of competitive bidding were disregarded, and the work done by hiring laborers by the day, the property owner must be able to show that the price was not reasonable, or that the work was done at a greater expense than it would have been if the law had been complied with. It is a material and important right of the property owner that there shall be free and open competition, unrestricted by illegal and unconstitutional provisions, the natural tendency of which would be to increase the cost of the work; and it is undeniable that the clauses in question in this case lay down rules which would naturally increase such cost, and be detrimental to the public.”

This is a sound rule which should be followed, although there are authorities which are contrary thereto. It seems, however, that even under a number of cases following a contrary rule as to the showing of actual harm, the burden rests upon one seeking to recover despite an admitted violation of the statute to demonstrate that no harm could have resulted to the plaintiff. For example, in Pasche v. South St. Joseph Townsite Company, 190 S.W. 30, the Kansas City Court of Appeals held that while ordinarily a provision restricting the construction of a public improvement to brick manufactured in Missouri would render a special tax invalid, it would not have such effect when “it was admitted that brick manufactured in (Missouri) could be purchased for a less price than that manufactured outside the state.” The facts of this case do not bring it within the Missouri rule as there is no showing that domestic materials are less costly than foreign materials.

Once the view be adopted as it must under the record before us, that the Minute Order is void because it is contrary to the competitive' bidding statute, there can be no basis for saying that the disputed order was authorized by law. It was wholly nugatory and hence the present proceeding cannot be classed as a suit against the state. United States v. Lee, 106 U.S. 196, 197, 1 S.Ct. 240, 27 L.Ed. 171; State v. Epperson, 121 Tex. 80, 42 S.W.2d 228; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709; State v. Lain, 162 Tex. 549, 349 S.W.2d 579.

The respondents as plaintiffs in the District Court brought this suit for a judgment declaring Minute Order No. 48,644 to be invalid, illegal, void and of no lawful effect. Said respondents are resident citizen property taxpayers of the State of Texas or the representatives of such property taxpayers. Some of them are owners of imported foreign manufactured products suitable for highway construction purposes. All of them are actively engaged in or interested in the sale and use of imported manufactured products. As this is not a suit against the State, such parties clearly have the right and litigable interest to have the challenged Minute Order declared null and void. The order is clearly void for the reasons stated and the judgment of the Court of Civil Appeals so holding should be affirmed. It is accordingly so ordered.

GRIFFIN and STEAKLEY, JJ., dissenting.

WALKER, J., not sitting.

GRIFFIN, Justice

(dissenting).

I would hold the Highway Commission had the power and authority to pass Minute Order 48644, and that this is a suit against the state. I would, therefore, dismiss this cause.

The Legislature, in creating the Highway Commission, provided as follows:

Article 6663 : “The administrative control of the State Highway Department * ' * * shall be vested in the State Highway Commission * * *.” All references to statutes in this opinion are to Vernon’s Texas Civil Statutes, unless otherwise indicated.

Article 6665: “ * * * They [the Commission] shall formulate plans and policies for the location, construction and maintenance of a comprehensive system of State highways and public roads. * * * ” (Emphasis added.)

Article 6666: “The Commission shall establish and make public proclamation of all rules and regulations for the conduct of the work of the [State Highway] Department as may be deemed necessary, not inconsistent with the provisions of law. * * ”

Article 6667; “ * * * It [the Department] shall investigate and determine the methods of road construction best adapted to the different sections of the State, and shall establish standards for the construction and maintenance of highways, bridges and ferries, giving due regard to all natural conditions and to the character and adaptability of road building material in the different counties.”

Article 6674k: “The State Highway Commission shall prescribe the form of such contracts [for work on state highways and public roads] and may include therein such matters as they may deem advantageous to the State. * * *" (Emphasis added).

In the case of Robbins v. Limestone County (1925), 114 Tex. 345, 268 S.W. 915, this court said:

“The establishment of public highways being primarily a function of government belonging to the state, the right to establish them resides primarily in the Legislature, and, in the absence of constitutional restrictions, the Legislature may exercise that right direct or delegate it to a political subdivision of the state, or to such other agency or instrumentality, general or local in its scope, as it may determine. * * * The Legislature may exercise possession of public roads and control over them, by and through such agencies as it may designate.” 268 S.W. 918(5) (Citing authorities.)

Also, this court said:

“We do not deem it necessary to state the provisions of the highway statutes. They do, of course, create an agency in which are vested powers to formulate and execute plans and policies for the location, construction and maintenance of a comprehensive system of state highways and public roads.” 268 S.W.2d col. p. 920. (Emphasis added.)

In the case of Nairn et al. v. Bean et al. (1932), 121 Tex. 355, 48 S.W.2d 584, wherein Nairn and others brought suit against the Highway Commission, its individual members, the County Judge and County Commissioners to enjoin the relocation of a state highway, this court said:

“The effect of the present statute (6663 et seq.) on the subject is to vest administrative control of all public roads which might be a part of the state highway system in the state highway department, with respect to the * * * relocation, improvement, construction * * * thereof. Whatever said department may do in the premises, in the exercise of an honest, discretion, must be respected when untainted by fraud and unassailed on account of accident or mistake occurring in their performance, or such abuse of discretion as under the authorities would avoid the same.” (Citing authorities).

See also Texas Highway Commission et al. v. El Paso Building and Construction Trades Council (1950), 149 Tex. 457, 234 S.W.2d 857(1).

In Johnson v. Ferguson (1932), Tex.Civ.App., 55 S.W.2d 153, writ dismissed (18-22), the court said:

“The highway department is one of the most important departments in the state' government. * * * -It would probably be difficult to find a citizen of the state who has not a direct concern in the affairs it administers, and this is certainly true as regards taxpaying citizens. To the members of the commission and in large measure to its chief engineer are intrusted responsibilities of outstanding importance. To meet these responsibilities they are invested with a wide discretion. This is of necessity so from the very nature of their duties. To properly discharge such duties they would perforce be required to make careful investigation from all competent and reasonably available sources in determining the bases for their action and for estimates from which to ascertain the bounds .of their authority. As public officials they are presumed to exercise their authority and perform their duties honestly, conscientiously, and efficiently.”

The above cases show that the Legislature has established the 'Highway Commission and given it full authority to carry out the duties imposed by the Constitution to establish a system of public roads.

Paraphrasing what we said in Haden Co. v. Dodgen (1958), 158 Tex. 74) 308 S.W.2d 838 at p. 842, 2nd col.: Power to construct public highways is conferred by'Arts. 6663, et seq., Revised Civil Statutes, upon the State Highway Commission. There is no statutory provision governing or limiting the manner in which this power may be exercised, save as to competitive bidding. So far as the statutes are concerned, so long as contracts are let by competitive bidding, the Commission may prescribe the kind and character of materials to be used in constructing and maintaining the public highways. The Commission’s action in prescribing materials to be used in the construction of our public roads is the selection and decision of the state.

I will now discuss whether or not the Commission’s order violates Art. 6674h requiring that road' contracts be let under competitive bidding procedure.

Respondents contend that it is not within the power of the State Highway Commission to pass Minute Order No. 48644, because it violates the provisions of Article 6674h requiring competitive bidding in the letting of highway construction contracts.

' In discussing what constitutes competitive bidding under the charter provisions of the City of Dallas,'this court said:

“Two forms of competition may exist. One is secured by calling for bids on only one kind of material for the work, which is a competition among bidders on the same thing. The other is secured by calling for bids on several kinds of material, any one of which is suitable for the work; this form brings bidders on different things in competition with each other. The latter kind of competition includes, it seems plain, the former.” (Citing authorities). Vilbig Bros. v. City of Dallas (1936), 127 Tex. 563; 91 S.W.2d 336(5), rehearing overruled 127 Tex. 563, 96 S.W.2d 229.

The court then concludes that the specifications in question which include materials patented, materials which can be furnished by only one bidder, and materials which can be furnished by many bidders are valid and provide for competition, unless ipso facto calling for bids on a patented article voids the bidding. The court quotes from 3 McQuillin: Municipal Corporations (2d Ed.) § 1299 to the effect that even though a patented article or process is the only one on which bids are asked, the letting is not void so long as there is competition among those furnishing such patented article or process. (Emphasis added.)

The case of Sterrett v. Bell (1951, Tex.Civ.App.), 240 S.W.2d 516 (5, 6), no writ history, defines competitive bidding as follows :

“ ‘Competitive bidding’ requires due advertisement, giving opportunity to bid, and contemplates a bidding on the same undertaking upon each of the same . material items covered by the contract; upon the same thing. It requires that all bidders be placed upon the same plane of equality and that they each bid upon the same terms and conditions involved in all the items and parts of the contract, and that the proposal specify as to all bids the same, or substantially similar specifications.”

The Supreme Court of Iowa in the case of Iowa Electric Light & Power Co. v. Incorporated Town of Grand Junction et al. (1933), 216 Iowa 1301, 250 N.W. 136(3), has defined the term “competitive bidding” as used in the Iowa Statutes regulating public improvements as, “Competitive bidding means that all contractors make bids based upon the same or at least substantially similar specifications.”

The Supreme Court of Oklahoma, in the case of Flynn Construction Co. v. Leininger (1927), 125 Okl. 197, 257 P. 374, 377, has said:

"* * * [Y]et they [the court decisions] are all in substantial harmony on the abstract proposition that in order that bids may come clearly within the meaning of the term ‘competitive,’ they must be upon a common standard, a common basis, upon the same thing, the same subject-matter, the same undertaking.”

To the same effect is the case of Leininger v. Ward (Okla.Sup.1927), 126 Okl. 114, 258 P. 863.

In defining the term “competitive bidding,” in the case of State Highway Commission of Kentucky v. King et al. (1935), 259 Ky. 414, 82 S.W.2d 443, 450, the court quotes from the case of State Highway Commission v. Veiling, 230 Ky. 381, 19 S.W.2d 967, as follows:

“ ‘Competitive bidding requires that all bidders be placed on a plane of equality, and that they bid upon the same terms and conditions.’ ”

The Supreme Court of Delaware in. the case of Wilmington Parking Authority v. Ranken (1954), 34 Del.Ch. 439, 105 A.2d 614, 631 (20-22), has stated that the term “competitive bidding” as used in the law applicable to the letting of public contracts requires due advertisement and the giving of an opportunity to bid, and contemplates a bidding on the same undertaking upon each of the same material items covered by the contract, and it requires that all bidders be placed upon the same plane of equality and that they, each bid upon the same terms and conditions involved in all the items and parts of the contract, and that the proposals specify as to all bids, the same or substantially similar specifications.

The record in this case shows that there are many suppliers of domestic steel and that there is great competition among the domestic steel dealers; that since the adoption of Minute Order 48644 the price of steel furnished for highway construction work is lower than prior to the adoption of this order and when imported steel was being used. The record also shows that the Highway Commission keeps a check on the cost of steel, and that, if Minute Order 48644 results in higher steel prices, the Commission will review the matter and change Order 48644.

The case of McChesney v. People, ex rel. Raymond, 1902, 200 Ill. 146, 65 N.E. 626, quoted by the majority as authority for the fact that this Minute Order under consideration ipso facto violates Art. 6674h, Vernon’s Texas Civil Statutes, begins, “ * * any provision tending to increase the cost, and make the bids less favorable to the public and the property owners, is against public policy, illegal, and void. * * * ” It is this reasoning upon which the majority opinion rests its conclusion that Minute Order 48644 is invalid. This view is the minority view held by only the Courts of Pennsylvania, Illinois, Utah and New York.

The rule adopted by a majority of the states passing upon this is stated in Ebbeson v. Board of Education, etc., 18 Del.Ch. 37, 156 A. 286 (1931), as follows:

“But even under that view, the courts adopting it say that whether the conditions imposed do violate the statute is to be determined, not by a mere inspection of the condition, but by whether or not its actual operation in practice does in fact increase the costs. In other words, whether the condition stands or falls is a question of fact; it does not carry its own prima facie condemnation. For instance in St. Louis Quarry & Construction Co. v. Von Versen, 81 Mo.App. 519, and in Taylor v. Philadelphia, 261 Pa. 458, 104 A. 766, the condition was found as a matter of fact to cause an increase in cost and therefore was held invalid under a statute requiring the work to be let to the lowest responsible bidder; whereas in Allen v. Labsap, 188 Mo. 692, 87 S.W. 926, 3 Ann.Cas. 306, the condition was found not to effect an increase in cost and therefore was not invalid.” 156 A. 288.

On the question of whether or not the adoption of Minute Order 48644 increased costs, there is no dispute about the fact that since the adoption of this order in I960 the cost to the state, as reflected by the contractors’ bids, has decreased, and that the highway contracting business has continued most competitive.

The uncontradicted testimony of Mr. Petry, Chairman of the Highway Commission, was that from 1958 to 1960 (date of entry of order) there was no difference in cost of steel on purely state-financed projects when foreign materials were excluded, and federally-aided projects, where foreign materials were not excluded.

In answer to one of the issues submitted to the jury trying this case, the jury found: That the evidence did not show the order (No. 48644) resulted in increased cost of such materials (steel) to the State of Texas.

Thus the great bogey-man of the majority that increased costs will result is shown by the testimony given and the jury finding to be just a figment of the imagination and not a fact.

The view of the majority of the states which have passed on the point is: Ex parte Gemmill (1911) 20 Idaho 732, 119 P. 298, 41 L.R.A.,N.S., 711—county printing must be done within the State of Idaho; Hersey v. Nelson (1913) 47 Mont. 132, 131 P. 30—printing must be done within the state; Pasche v. South St. Joseph Town-Site Co. (1916, Mo.Ct. of Appeals), 190 S.W. 30—bricks used in paving must be manufactured in the state; St. John v. King (1933—hearing denied by Sup.Ct.) 130 Cal. App. 356, 20 P.2d 123—California product required in paving; State, ex rel. Collins v. Senatobia Blank Book & Stationery Co. (1917) 115 Miss. 254, 76 So. 258—non-residents or those not having a printing plant within the state prohibited from bidding on county printing contracts; Knight v. Barnes (1898), 7 N.D. 591, 75 N.W. 904—all county printing shall be done in the state, and if practicable in the county ordering the same. (The question of competitive bidding was also raised in this case, hut summarily dismissed). City and County of Denver v. Bossie (1928) 83 Colo. 329, 266 P. 214—Colorado materials to be used in all public works; Wilson v. Board of Commissioners of Warrick County (1923) 79 Ind.App. 250, 137 N.E. 783—provision for clean Ohio River gravel; Rote v. Bexar Co. Water Control & Imp. Dist. (1936, Tex.Civ.App.), 91 S.W.2d 1095, writ dismissed—holding district directors in their discretion could limit their call for bids to clay pipe without violating competitive bidding statute.

The record shows that Mr. Herbert Pe-try, Chairman of the Highway Commission, testified that in adopting this policy, the Commission gave consideration to matters of quality, uniformity, price, testing, and maintaining reliable sources of supply, particularly in times of war. He stated that the Commission had received numerous complaints concerning foreign products, not only from the contractors, but from fabricators as well; that in some cases, sizes of foreign steel would be different from those shown by the markings thereon; that they would be rusty, and the threads would not work right; and if not rusty, they would come in covered with some sort of solution that would have to be removed. He testified that it was difficult for the Department to test foreign materials at the source of •manufacture. He testified that testing at the source of manufacture was important; that the Department employs two private companies to do such testing at the source; •that where material was not so tested at the source of manufacture, and testing on the job site resulted in a rejection of materials, this produced delays and inefficiency in highway construction projects. He pointed out that altered mill reports received by the Department on foreign steel created problems as to testing, as to quality, and as to uniformity and reliability of the products. He testified that staff reports to the Commission reflected a lack of uniformity in the quality of foreign steel — even in a given batch or bundle of it — which adversely affected the reliability of the sample-testing methods used by the Department. Mr. Pe-try summarized the Commission’s position in adopting the Minute Order in these words:

“From the experience we have had, from the reports of staff, and for other reasons that I have enumerated here, and feeling that we were charged bylaw with the construction efficiently of the highway system, we determined that the passage of this minute order was to the best interest of the Texas Highway Department in its responsibility to wisely expend the tax dollar.”

Having held that the Commission had the power and authority to pass Minute Order No. 48644, and that such action was not arbitrary nor an abuse of discretion, it must follow that this is a suit against the State of Texas, and should be dismissed. Griffin v. Hawn (1960), 161 Tex. 422, 341 S.W.2d 151(1); W. D. Haden Co. v. Dodgen (1958), 158 Tex. 74, 308 S.W.2d 838; Larson v. Domestic & Foreign Commerce Corp. (1948), 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.

I would dismiss this cause.

STEAKLEY, J., joins in this dissent.


author: WOODLEY, Presiding Judge.

text:
    Gerald Vernon WESTBROOK, Appellant, v. The STATE of Texas, Appellee.
    No. 36004.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Warren McKenney, Austin, for appellant.
    Leon B. Douglas, State’s Atty., of Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced under Art. 62 P.C., 12 years.

The indictment alleged' the burglary of ■a building owned' by Joe Teague with the intent to steal.

The prior conviction for burglary was proved as alleged.

Sufficient evidence was introduced to show that a building occupied and controlled by Central Texas Equipment Company, owned by Joe Teague and H. C. Bell, Jr., was broken into on the night of November 7, 1962, entry into the building having been' made by breaking the glass and crawling through a window.

The office safe was damaged beyond repair by the use of a cutting torch that was moved from the shop part of the building to the office and a sledge hammer.

The contents of the safe were set afire by the torch and a fire extinguisher was ■emptied.

The room • was filled with smoke when the owners arrived the next morning. They found the fire still burning and called the police and- the- fire department.

Business records were destroyed and there was damage to the building, but no property was removed.

Footprints of a crepe-type'shoe sole were found near the safe.

The appellant was wearing such- a shoe when he was questioned but there was no evidence identifying the track as having been made by his shoes.

The state relied upon appellant’s written statement, to identify and connect him with the burglary. The question presented on this appeal is the admissibility of the statement as a voluntary confession.

The statement introduced in evidence reads, in part: “I went to the back side of the lot and crawled over the fence to the equipment yard and then went to a window which is on the west side of the building. I had a flashlight with me so I used it to break the glass from the window and -then reached inside and released the latch to the window and crawled inside. . I then went to the office portion of the building and looked through the 'desk and some files and I then looked for the "company safe which I found in the closet beside the office. I pulled it out of the closet into.the .outer office where I made an attempt to get in. I used some of the tools which I found on the inside. When I was unable to get in I "went into the shop part of the building and found a cutting torch equipment. This was on a dolly so I pushed it into the office and used it to cut the hinges off the safe and I then cut a hole in the botto» of the safe. After I got the bottom plate off I used a sledge hammer to break out the file clay and I then found it had a enter steel place which I used the torch to cut. When I got this hole cut it began to burn inside of the safe so I went for a fire extin£T«c/ier which I found in the back of the office and tried to put the fire out. .**.*»-

“The office became full of smoke so it was hard for me to stay on .the inside so I then left the building by the front door which I opened from the inside and went back to my car without taking anything from the building. No one gave me permission to enter this building and I knew no one who worked at this place nor had I ever been inside of this building before.”

Upon the trial appellant repudiated his confession; he testified that he did not make the above quoted statements and that he signed the confession because he was “scared and afraid for my life * * *. It was either sign it or get my head beat off. If I didn’t sign it, I -was going to get it beat off anyhow, so what’s the difference * * because I didn’t think there was any sense in me getting my head beat off for nothing.”

The appellant testified that he cried because the officers struck him on the head with a. newspaper .and he wanted .to 'get out and go home; that he was not,allowed to use the telephone until after he had signed the confession and' that he was under •illegal arrest. ' .. :.

According to appellant’s testimony at the trial he did not go into the building but was at the filling station until he went home and remained’ there on the night in question. Also, according to his testimony at the trial, the statement he signed because he was in fear which was read to him had nothing in it about the burglary and did not “talk about Central Texas Equipment Company and about it having been broken into” by him.

Sergeant Bert Bowman, of the Austin Police Department, who made the investigation and to whom the confession was made, denied that any coercion was used or that appellant was struck. According to his testimony the confession as introduced was voluntarily made.

Mrs. McElroy, who signed the confession as a witness, testified that the appellant was looking at the statement as it was read to him and that he appeared to be calm and not in fear. She denied any mistreatment or coercion while she was present.

The court in his charge instructed the jury that before they could consider the purported statement of the appellant they must first believe from the evidence beyond .a reasonable doubt that .the same was voluntarily and freely made, and the jury was instructed to acquit if they believed or had reasonable doubt that the statement was made as a result of persuasion, coercion, compulsion or force, either physical or mental, or by promise made to the appellant.

The court also instructed the jury to acquit if the evidence raised in their minds a reasonable doubt as to the presence of the appellant at the place where the offense was committed.

The jury resolved the issues raised against the appellant and the evidence sustains their verdict finding the appellant guilty as charged and .that he was previously convicted as charged. Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411.

Appellant’s able court appointed counsel argues that appellant’s confession was not admissible because the appellant was not taken before a magistrate prior to the making of the confession. He argues that the cumulative effect of this and the other evidence relating to the taking of the confession requires the conclusion that the confession was not voluntarily made.

Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293, and Smith v. State, 171 Tex. Cr.R. 313, 350 S.W.2d 344, are authority for overruling such contention.

The judgment is affirmed.


text:
    Trinidad ARSIAGA, Appellant, v. The STATE of Texas, Appellee.
    No. 36020.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    George T. Thomas, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of a dangerous drug (Art. 726d Vernon’s Ann. P.C.) ; the punishment, 60 days in jail and a fine of $100.

We adopt the brief of our able State’s Attorney as the opinion of the Court reversing the conviction.

“The State’s testimony reflects that Robert C. Smith and another officer went to the Caballero Cafe in Big Spring on Sunday afternoon; that several people were there; that three people were sitting at a booth; that appellant got up after the officers arrived and went behind a booth and sat back down at his place; that the officer later found a bottle which contained amphetamine and barbiturate drugs; that the officer did not know what appellant had in his hand; that he did not see him possess anything.

“Appellant testified that he was drinking beer; that the owner of the place was serving beer on Sunday afternoon in paper cups; that appellant thought it was illegal to sell beer on Sundays; that he ran to the door and poured his beer out; that he did not possess any capsules.

“Among other things, appellant objected to the trial court’s charge for failure to instruct on circumstantial evidence, which the court should have done, as shown by appellant’s brief. For this error, the State does not seek an affirmance.

“There is a serious question as to the sufficiency of the evidence to sustain the conviction. See Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745.”

The judgment is reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Larry STUBBLEFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 36249.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    H. Glynn Windham (On Appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., Edwin Davis, Don Nicholson and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for felony theft; the punishment, eight years.

The state’s evidence shows that on the morning of September 3, 1962, the witness John Tribble observed a man dressed in gray clothing, whom he identified at the trial as looking like the appellant, walking down Harwood Street in the city of Dallas, around 4 o’clock a. m., carrying something under his arm which appeared to be heavy. The object was wrapped in some type of material. He then observed the man cross the street, “duck” into a parking garage, and walk up a ramp. Thereupon, the witness walked to a street corner, “flagged down” a patrol car, and after a conversation with the officers, they (the officers) proceeded to the garage building which the man had entered. While Tribble was summoning the officers, a pedestrian, Elsie Erwin, watched the building and observed no one go into or leave the building. The building had only one entrance and exit, which was up or down the ramp. When the officers entered the building and had gone to the second floor, they found a large type postage stamp machine lying on the floor at the top of the ramp. A brown coat was under the machine. They then proceeded to search the second and third floors and found no one. While they were on the fourth floor, a man who looked like the appellant came out on the fire escape on the second floor and went back into the building. The officers then returned to the second floor, where they found appellant, wearing gray pants and coat, lying face down in the corner on the floor.

A search of appellant’s person revealed that he had an eight-inch freshly broken file in his right back pocket and $32 in change in his right front pocket. An examination of the stamp machine revealed marks which appeared to be file marks.

Mrs. Naneda Farley testified that, based upon certain markings thereon, the stamp machine recovered by the officers was hers, that she had placed the machine in the White Plaza Hotel some two years before, and that when she went to the hotel on September 4, 1962, after being called by the manager, she ascertained that the machine was not there. Mrs. Farley stated that she had not given appellant permission to take the same, and that the machine had a value of approximately $145.

It was shown by expert and opinion testimony that fingerprints taken from the machine were identical to those of the appellant. It was also shown that the coat found under the stamp machine at the parking garage was of the same design as a pair of pants which were in a cloak room at the hotel.

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

The court submitted the issue of appellant’s guilt to the jury upon a charge on circumstantial evidence.

We overrule the contention urged by appellant’s counsel, in oral argument, that the evidence presented by the state is insufficient to sustain the conviction.

The evidence shows possession by the appellant of recently stolen property, which possession was unexplained. Evidence of such possession is sufficient to sustain the conviction. Foster v. State, Tex.Cr.App., 338 S.W.2d 458.

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

Opinion approved by the Court.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Virgil Allen REYNOLDS, Appellant, v. The STATE of Texas.
    No. 35958.
    Court of Criminal Appeals of Texas.
    Oct. 9, 1963.
    Rehearing Denied Dec. 4, 1963.
    Mauzy & Mauzy, by D. B. Mauzy,'Hous-ton, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Rick Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is aggravated assault with a motor vehicle; the punishment, 730 days confinement in jail, and a fine of $1,000.

In view of the disposition to be made of this case, the evidence need not be discussed at length. Suffice it to say that there was evidence that a car driven by Mrs. Minnie Boyd Grimes, and one driven by Mr. Loy B. Young were struck by another on 69th Street in Houston. The evidence shows that Grimes and Young were driving north on 69th, which is a one-way street headed north, when the other car approached headed south (opposite to the direction of the traffic on the street). Appellant was found near the car with cuts, lacerations and bruises which matched the steering wheel of the “wrong-way” car. He gave a number of conflicting statements to the investigating officer, one of which was to the effect that he had been driving 35 miles per hour at the time of the accident.

Dr. Harry Preble was called as a witness for the State. His testimony was that he had happened on the scene shortly after the accident, and had sought to aid Mrs. Grimes, and had treated her after she was taken to the hopsital.

After detailing, over objection of appellant’s counsel, the physical injuries which Mrs. Grimes had received the following transpired:

“A. * * * She had multiple abrasions, contusions of the body and on the second time — do you want the final diagnosis ?
“Q. Yes, Sir, I would like to have the final diagnosis.
“Mr. Mausy: Your Honor, we would object to that on account the testimony of this Doctor does not solve any issue in the case and any injuries after that date, the diagnosis thereof not an aid in the determination of this case.
“The Court: Any other injuries sustained but what he found on this occasion overruled.
“The Witness: Then shall I go on. She developed some gastrointestinal hemorrhage a day after admission. She also passed some blood in her urine and she had some transit acathectic, that is like a person has what they call yellow jaundice, turn yellow like when you have gall bladder disease. She developed that too. I think it is related to absorption of the blood products in all the bruises of the body.”

This testimony comes clearly within that prohibited in Fowler v. State, Tex.Cr.App., 352 S.W.2d 838.

The nature and extent of the injuries had been proven. The further testimony of the Doctor was surplusage. As stated in Fowler:

“ * * * This testimony was no doubt prejudicial and inflammatory to the rights of the appellant before the'jury,' and it probably resulted in the imposition of a heavier penalty than would have been imposed absent this testimony. * * * ”

In light of this error appellant’s other contentions need not be passed on. The judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting).

I respectfully dissent for the reasons stated in my dissent in the Fowler case cited and relied upon by the majority.


author: McDonald, judge.

text:
    Albert RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35844.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.

      George T. Thomas, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, • for the State.
   McDonald, judge.

The offense is the unlawful possession of a barbiturate; the punishment, confinement in jail for six months.

The evidence reflects that appellant possessed some capsules that were shown to contain a barbiturate.

Appellant testified that he saw two of his nieces at his mother’s house playing with some red pills or capsules; that he carried them away from the house to keep them from the children; that he did not know what was in the capsules; that he had never taken a barbiturate.

Whether the defense was true or not was a question of fact to be decided by the jury. Appellant had the legal right to have his defensive theory submitted in an affirmative manner to the jury. Fawcett v. State, Tex.Cr.App., 127 S.W.2d 905.

The jury should have been instructed to the effect that if appellant came into possession of the capsules by having picked them up to keep his nieces from playing with them, and did not know they contained barbiturate that he should be acquitted.

The judgment is reversed and the cause remanded.


text:
    Mildred Hall MORRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 36027.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    Rehearing Denied Nov. 27, 1963.
    Bernard A. Golding, Houston (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction for the felony offense of driving while intoxicated, the jury having assessed the punishment at 20 days in jail and a fine of $500.

The sole ground upon which reversal is sought is the contention that the evidence is insufficient to sustain the jury’s verdict.

We overrule the contention.

The previous conviction for the misdemeanor offense of drunk driving alleged in the indictment was shown by the evidence and admitted in the testimony of the appellant.

The evidence shows that the appellant was driving an automobile upon a public highway in Colorado County on the day alleged in the indictment.

State’s witness John W. Matthews testified that he saw the appellant in John’s Cafe some 2 or 3 miles east of Columbus. He testified that when she went to her car he noticed that she had trouble getting it unlocked, and that as he followed her toward Columbus “she was weaving on one side of the road, she would drift over onto the left hand side of the road, it wasn’t a drift, it was just more of a kind of cut, I would call it, and we met three or four cars and one car had to put its right side of its— the right wheels off of the highway onto the shoulder to keep from being sideswiped.”

The appellant, followed by the witness, proceeded through Columbus toward Austin. The witness Matthews, who described the manner of her driving as dangerous, stopped at a service station and suggested that the attendant get in touch with the sheriff or the highway patrol, stating: “A lady is driving a light Mercury automobile and drives as if she’s drunk. Something’s wrong and she should be stopped.”

J. W. Coate, a deputy sheriff of Harris County, testified that after leaving a service station in Columbus on a trip to Bastrop he stopped the appellant because the car she was driving was not on its own side of the road and was weaving, going from side to side of the highway.

He asked the appellant, who was alone in the car, for the key and called Columbus by radio. He testified that the appellant asked, “Sir, why did you stop me, what are you stopping me for?” to which he replied “Because you are not in condition to drive the car.” The witness further testified that the appellant’s speech was “a little shaky” and on cross-examination he testified that he smelled alcohol on her breath or in the car. He expressed the opinion that “she was either intoxicated or some such other method of becoming intoxicated.”

Patrolman Brock arrived at the scene some ten minutes after Mr. Coate stopped the appellant’s car, talked to the appellant and took her in the patrol car to the sheriff’s office in Columbus. He testified that from her conduct and behavior he formed the opinion that she was intoxicated.

Leo Kohleffel, a game warden, testified that he was at the County Jail when Patrolman Brock brought the appellant in and from her demeanor, actions and speech he formed the opinion that she was drunk. On cross-examination he testified that the patrolman “had to help her into the jail” and “she couldn’t walk under her own power.”

Deputy Sheriff Schlichting testified that he booked the appellant at the jail when she was brought in and listened and watched when Patrolman Brock was talking to her. From his observation of her demeanor, conduct and behavior this witness formed the opinion that the appellant “was very much so intoxicated.”

The appellant testified that she had drunk no intoxicating liquor or beverage on the day in question. She called as witnesses Mrs. Henneke, waitress in John’s Cafe, who testified that she noticed nothing unusual about her speech or manner when she ordered and- was served coffee, and that she appeared to be normal at that time.

Mary Mieth, waitress at Riverside Cafe, which is some 28 miles from John’s Cafe, testified that she served the appellant two cups of coffee there on the day in question and that she was nqt drunk-and-had not been drinking. ...

- L.-G. Simpson, who came to the jail and ■became a bondsman for the appellant, testified that at the time he talked to her and took her with him from the jail, the appellant was not intoxicated, but was “very mad and humiliated.”

M. H. Buller, Chief Deputy Sheriff of Colorado County, called by the state in rebuttal, expressed the opinion that the appellant was intoxicated, based upon his observation of her conduct, 'demeanor and behavior when she was brought to the jail.

It would serve no useful purpose to set out various conflicts between the testimony of the appellant and the witnesses for the state, or to discuss other testimony such as that of the witnesses who attested the good reputation of the appellant -for sobriety, and .as .law abiding.

Suffice it'to say that the'jury resolved the issues against -the appellant and the evidence, viewed in the light most favorable to the state, is sufficient to sustain their verdict. -

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Alberto ESTRADA, Appellant, v. The STATE of Texas, Appellee.
    No. 36184.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Robert Fagan, Corpus Christi, for appellant.
    ■Leon ■ B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marihuana; the punishment, twenty-seven years.

Joe Kinder, supervising agent of the Texas Department of Public Safety, called by the state as a witness, testified that he first met the appellant when he went to his house on December 2, and ágain saw him there on December 6; that during another visit to appellant’s house about 8 p. m., January 7, they went into a bedroom, and appellant removed some substance which appeared to be marihuana from a small package, and rolled three cigarettes from this substance. Appellant then handed the three cigarettes to Kinder, and he gave the appellant a dollar which was the current price for the cigarettes. After a short time Kinder left and later marked the three cigarettes for identification and delivered them to the Texas, Department of Public Safety for analysis. While testifying he identified the cigarettes as those he purchased from the appellant.

A chemist from the Texas Department of Public Safety testified that an analysis of the three cigarettes showed that each contained marihuana.

The appellant did not testify, but called only his wife as a witness. She testified that the state’s witness Kinder had never been to her house, and that none of those whom Kinder named a-s accompanying him to her home had ever come there.

There are n.o formal bills of exception, and no obj ectip|is Jo the court’s-charge nor any requested charges. The informal hills have been considered and they do not reveal error.

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

Opinion approved by the Court.


text:
    Ramon ADAME, Appellant, v. The STATE of Texas, Appellee.
    No. 36190.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    No attorney for appellant on appeal.
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, twelve years, enhanced under Art. 62, Vernon’s Ann.P.C., by virtue of a prior conviction for an offense of like character.

The state’s evidence shows that W. B. Russell, the injured party, lived some four miles north of Weslaco in Hidalgo County. On December 22, 1962, Russell left home with his family around 11 o’clock, a. m., and went to Harlingen Christmas shopping. Upon returning home at 6 o’clock, p. m., they discovered certain items of property missing from the house, including a record player, some records, a fifth of Scotch whisky, and part of a canister set. An investigation revealed that entry into the house had been gained by removing a screen and raising a window. The next day a clothes hamper was also found to be missing from the house.

The state’s proof further shows that on December 29, 1962, officers armed with a search warrant went to a house owned and occupied by the appellant, a mile south of Donna, to search for stolen property. The house was referred to in the testimony as a four-room house “twenty by twenty.” In their search the officers found in the house, among other items of stolen property, the record player, clothes hamper, and part of the canister set which had been stolen from the Russell home.

At the time of the search, the appellant, his brother, Clemente Adame, and his mother, Felipa Resendiz, who all lived in the house, were present. Four or five children were also present. While the officers were in the house looking for the stolen property, appellant stated to his mother, on more than one occasion: “Don’t tell them nothing; let them look,” and when asked about the stolen property found in the house he would not answer. During the search, appellant’s mother on one occasion stated to the officers, in appellant’s presence, that it was he who brought the stolen property to the house.

Proof was made of the prior conviction, as alleged.

Testifying as a witness in his own behalf, appellant admitted having been previously convicted of the. offense of burglary but denied that he entered and burglarized the house in question.

Clemente Adame, the appellant’s brother, called as a witness by him, testified that it was he who burglarized the Russell home and that appellant did not participate in the burglary. Clemente admitted that he had previously told the officers it was the appellant who committed the burglary but repudiated such statement upon the trial.

The record presents no formal bills of exception, and there are no objections to the court’s charge.

We find the evidence sufficient to sustain the conviction.

The evidence shows a burglary of the house in question. Part of the property stolen in the burglary was found in the house owned and occupied by appellant. The facts warrant the conclusion that the stolen property was in appellant’s possession. His possession of the property was unexplained. The proof of appellant’s unexplained possession of the recently stolen property is sufficient to sustain his conviction for the burglary. Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747; Alexander v. State, Tex.Cr.App., 340 S.W.2d 493.

In his motion for new trial, appellant complained of the court’s action in refusing to order the sheriff to return appellant’s mother from the penitentiary so that she might be a witness in his behalf. The record shows that she had been taken to the penitentiary two days prior to the trial upon a conviction for receiving and concealing stolen property. No application had been made by appellant, prior to the trial, for the issuance of a subpoena for his mother as a witness. Appellant’s request, made during the trial, that she be ordered returned from the penitentiary would have delayed the proceedings. No diligence is shown on the part of appellant, prior to the trial, to secure the attendance of his mother as a witness. We perceive no error in the court’s action.

Appellant also alleged newly discovered evidence as a ground for new trial and attached the affidavits of two witnesses to his motion in support thereof. In the absence of a formal bill of exception, the court’s action in refusing to grant a new trial for such reason is not properly before us for review. Calanchi v. State, Tex.Cr.App., 332 S.W.2d 722. We observe, however, that the testimony of the two affiants, if given at the trial, would only present evidence of an alibi, which could not constitute newly discovered evidence. Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641.

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

Opinion approved by the Court.