author: DAVIS, Commissioner.

text:
    Robert Lee CLEMENTS, Adm’r, etc., Appellants, v. Reynolds J. PEYTON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Rehearing Denied Feb. 18, 1966.

      Robert Hubbard, Louisville, for appellant.
    John L. Bennett, Louisville, for appellee.
   DAVIS, Commissioner.

Appellant’s decedent, Lee Clements, was fatally injured when struck by appellee’s automobile. A jury returned a verdict for appellee; appellant attacks the ensuing judgment by contending that the court erroneously excluded competent evidence, the verdict is contrary to the evidence, and certain instructions erroneously were refused and others erroneously given.

The fatal accident occurred shortly after 10:0Q p. m. on April 29,1963, during a heavy and blinding rainstorm. The decedent was walking across Taylor Boulevard in Louisville when he was struck by appellee’s car. The site of the accident was near the intersection of Taylor Boulevard with Central Avenue. Much of the controversy rages around the question whether the decedent was a pedestrian in the crosswalk at the intersection, or whether he was attempting to cross Taylor Boulevard between intersections and away from the marked crosswalk.

Appellee was the only eyewitness whose testimony was heard at the trial. He said that he was proceeding southwardly on Taylor Boulevard at a speed of 2S-30 m. p. h. His vision was so impaired by the rain that he was unable to see ahead for more than twenty feet. Taylor Boulevard is a four-lane, two-way street; appellee was driving in the inside or left traffic lane for vehicles traveling southwardly. Appellee first saw decedent when the latter was twenty feet in front of appellee’s car; at that time decedent was walking from the east toward the west side of Taylor Boulevard, and had stepped from a “median” in the street into the traffic lane of appellee. It was appel-lee’s estimate that decedent was “about two feet off the median” into appellee’s line of travel when appellee first saw decedent. Appellee’s car had an over-all front width of six feet eight inches; an indentation was made in the front of the car by the impact of decedent’s body against it. The indentation was four feet, eleven inches from the left side of the automobile front.

Appellee testified that he applied his brakes immediately after seeing decedent, and his car had slowed somewhat at the moment of impact. It was appellee’s estimate that decedent’s body lay on the car’s fender about two seconds after which the body “slid off the fender” to the point where it came to rest. Appellee “skidded about fifty feet” before his car stopped. His headlights were on low beam and would disclose a substantial object one hundred feet ahead, under normal atmospheric conditions.

The point of collision, according to ap-pellee, was substantially opposite the front door of the South End Cafe, which is a business place located on the east side of Taylor Boulevard. Decedent had just left the South End Cafe, where he was a “handy-man” and where he had been on duty since about 8:00 a, m. on the day of the accident. The point of impact, as fixed by appellee, was about seventy-five feet south of the crosswalk at Taylor and Central. The decedent’s body was found at a point nearly one hundred feet from the same crosswalk.

It was shown that decedent’s place of residence was south of Central Avenue, so that the most direct route from South End Cafe to his. residence would not have been via the crosswalk at Taylor and Central located north of South End Cafe.

At the time of this accident there was an electric traffic light signal regulating the flow of vehicular and pedestrian traffic at the intersection of Taylor and Central; according to appellee, thL signal was green for his passage through the intersection, and the accident did not occur until he had cleared the intersection by some seventy-five feet.

The first assignment of error relates to exclusion of two items of evidence offered by appellant. We shall treat these separately. Appellant offered the witness Norma Jean Smith, a waitress in the South End Cafe. By her it was shown that decedent had left the cafe immediately before the accident occurred. The witness “heard a noise like a wreck” just after decedent left the cafe. When she undertook to testify as to the site of the noise the court sustained appellee’s objection to the evidence. By avowal she then testified that the noise “sounded like it come from the corner of Taylor and Central.” She estimated that she was standing inside the cafe at a point about twenty-five feet from the open front door. The front door of the cafe is not flush with the sidewalk on Taylor, but is located some forty-four feet east of the street curb to accommodate parked automobiles. The witness was engaged in conversation with two patrons of the cafe when she heard the noise; between her position and the door was a wooden lattice partition. The witness did not elaborate as to the nature of the sound she heard — -whether of brakes howling, or the thud of an impact, or of glass breaking.

We hold that it was not prejudicial error for the trial court to exclude the tendered evidence. Appellant relies on Daniels v. Commonwealth, 302 Ky. 672, 195 S.W.2d 265; Hornsby v. Commonwealth, 305 Ky. 747, 205 S.W.2d 338; and Freeland v. Todd, Ky., 379 S.W.2d 723, to support his contention that the evidence was competent, but we are of the view that those decisions are not dispositive of the point at hand. In Daniels this court allowed evidence that the sound of a “high powered rifle” shot had come from up the river. But there was no effort there to pinpoint the origin of the sound — merely a general direction from which it had emanated. In Hornsby two witnesses, standing about twenty or twenty-five feet from a certain house, testified they heard two shots fired inside that house. This was held competent, and rightly so. The latter case would more nearly approach the one at bar had these witnesses undertaken to specify from which room or whieh floor of the house these sounds had originated. Moreover, the opportunity for the witnesses to form an accurate and trustworthy opinion in the Hornsby case was far greater than in the case before us. In Freeland the testimony about the sound of a collision was not offered nor received for the purpose of demonstrating where the collision occurred; neither is there any indication that objection to the evidence was made in that case. Neither do we observe anything in the text authorities cited by appellant impelling a different view. See 20 Am.Jur., Evidence, § 888; 32 C.J.S. Evidence § 546(5). In short, we do not subscribe to the position that the rule permitting a witness to express an opinion as to the direction from which a sound appeared to come is sufficently broad to allow the evidence for the purpose of fixing a relatively precise location of the sound’s origin — and particularly under the physical circumstances of the present case. We think the evidence was admissible, but it was not sufficent to place decedent in the crosswalk, nor to overcome the evidence tending to prove that decedent was not in the crosswalk. For this reason, the exclusion of the evidence was not prejudicial. CR 61.01.

We conclude that the trial court properly rejected the evidence offered through the same witness, Norma Jean Smith, as to the statements of “some guys sitting in the bar.” The evidence came in by avowaL The witness said that just after the sound of the crash was heard “some guys sitting in the bar” expostulated “* * * there has been another 'wreck on the corner” — or, as she put it another time, “They said there had been another wreck on that corner.” Appellant contends that this testimony should have been admitted under the res gestae exception to the hearsay rule, but we disagree. Bypassing the serious question whether this statement emanated from a participant or actor (as distinguished from a mere bystander), and assuming, without deciding, that no inhibition to admissibility is found in that area, the statement yet remains incompetent. The same reasoning applied to the ruling on the opinion of Norma Jean Smith applies as to the statement of these “guys.” Additionally, the res gestae rule recognizes that outcries which qualify under the rule with respect to time and place, yet must be competent evidence. See 20 Am.Jur., Evidence, §§ 674, 679. For example, a bystander might cry out, upon witnessing an accident, “I know A has lots of insurance,” but this statement would not be admissible. Since these “guys” could not have qualified to assert their opinion that there had been another “wreck on that corner” — absent some showing of their reasonable opportunity to make such a conclusion — neither can their opinion be injected by the devious means here presented.

Appellant contends that even without the rejected testimony just discussed, the verdict is contrary to the evidence. The tenor of this argument is that the physical facts so refute the eyewitness testimony of appellee as to demonstrate that the victim was in the crosswalk when struck by the car. Appellant points to these factors to sustain his position:

Appellee admitted that his vision was so obscured by rain and atmospheric conditions as to prevent his seeing more than twenty feet ahead. Thus, it is reasoned, appellee could not possibly know that the point of impact was about opposite the South End Cafe, since that place was more than seventy feet to the side of appellee. Moreover, this situation precluded appel-lee’s seeing the median and prevented his formulating a credible estimate of the distance between the crosswalk and the point of collision.

Further, appellant states, it is demonstrably impossible that decedent could have walked four feet eleven inches while ap-pellee’s car traveled only twenty feet— whether at twenty-five or thirty miles per hour.

Additionally, since appellee estimated that decedent’s body lay on his fender for two seconds after the impact, this shows conclusively that the decedent was carried at least eighty-eight feet beyond the point of impact, whereas the body was found merely twenty-eight feet south of the claimed impact point.

Witness Norma Jean Smith testified that when appellee came into the South End Cafe to use the telephone just after the accident he said that he'had first thought he had struck a dog, but learned that it was a man; this is cited as evidence that appel-lee actually never did see decedent until after the collision.

Using the circumstances just mentioned, the appellant contends that the true impact of this evidence is that decedent was in the crosswalk when struck. The argument rests on the theory that appellee’s car must have carried decedent’s body almost a hundred feet from the intersection, thereby demonstrating that decedent was in the crosswalk when struck.

We are mindful that in some situations physical evidence is so convincing as to destroy the probative value of contrary testimony from an eyewitness. Thornberry v. Smith, Ky., 346 S.W.2d 727, is a typical case in point. It is to be noted that in the cases applying the rule the physical facts are found to be conclusive. The physical facts in the case at bar are. not so conclusive as to destroy the probative value of the testimony of appellee. Even if we indulged the speculation that appellant presents— thereby placing the decedent in the crosswalk — what evidence remains with regard to the traffic signal at the intersection? The only evidence on that point is that the signal was green for appellee as he entered and passed through the intersection. In fact, a witness for appellant testified that he was driving eastwardly along Central Avenue, approaching the intersection, just prior to the accident. This witness said that the traffic light was red for traffic on Central when the witness was about 150-200 feet from the intersection, but changed to green for Central Avenue traffic after this witness had traveled about thirty feet. According to the witness “just at the moment the light changed” an automobile going south on Taylor Boulevard went under the light through the intersection; although the witness was not able to identify the car as appellee’s, the clear inference from his testimony — and from the offering of him as a witness by appellant — is that the unidentified car was appellee’s. The same witness said that he saw no pedestrian in the crosswalk as the witness approached Taylor Boulevard. However, the witness did hear a noise, which he first thought to be thunder, but which he supposes was the noise of the collision. At the time he heard the noise the car he had seen pass under the light was not within his range of vision — although the crosswalk was. The witness turned right onto Taylor and drove southwardly until he crossed over to the other side and went to the South End Cafe. It was not until he reached the cafe that he learned of the accident and saw decedent’s body on the street. It seems clear that the evidence of this witness forecloses the idea that decedent was struck in the cross walk. Moreover, the evidence of the same witness supports the view that had decedent entered the crosswalk to come from the east to the west side of Taylor Boulevard he would have walked against the red light that this witness saw.

Thus, the evidence tends to show only that decedent was struck as he was attempting to cross the street between the intersections and not in the crosswalk. Under such circumstances the rule is well settled that the pedestrian is guilty of contributory negligence as a matter of law. Severance v. Sohan, Ky., 347 S.W.2d 498; Music v. Waddle, Ky., 380 S.W.2d 203, and cases there discussed.

The evidence precludes the theory of “last clear chance” as a basis for recovery. The only evidence shows that the accident happened in the twinkling of an eye, and that appellee had "no chance to avoid the accident — certainly not a last or clear chance. Appellant relies on Riley v. Hornbuckle, Ky., 366 S.W.2d 304, as demonstrating his right to recover under the “last clear chance” doctrine, but that decision is readily distinguishable from the present case. In the Riley case the evidence revealed that the pedestrian was in the automobile’s path while the car moved several hundred feet along a well-lighted, unobstructed highway. Here the only evidence reflects that decedent stepped into the path of the car in a blinding rainstorm, at a point only twenty feet in front of the car.

This view of the case leads us to the inevitable conclusion that the appellee was entitled to a directed verdict. In such a situation, we refrain from consideration or discussion of the asserted errors.as to the instructions offered and given. No error in that regard could avail for appellant, since he was not entitled to have the case submitted to the jury anyway. Tate v. Crockett, Ky., 277 S.W.2d 22.

The judgment is affirmed.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    Betty Hughes McREYNOLDS, Appellant, v. Robert K. HUGHES, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Hugh L. Hollingsworth, Russellville, for appellant.
    James C. Lyne, Russellville, for appellee.
   WADDILL, Commissioner.

When the parties to this appeal were divorced on December 22, 1964, the custody order entered pursuant to an agreement of the parties placed their two infant children with the maternal grandmother. After the mother of these children had remarried she filed an action seeking to obtain the permanent custody of these children. Her former husband opposed the requested change of custody.

Following a full hearing of the matter the chancellor refused to alter his former custody order. On this appeal it is urged that the chancellor abused his discretion and thereby entered an erroneous judgment.

The paramount concern of the courts in cases of this character is to determine in whose custody will the welfare of the child best be served. See Yelton v. Yelton, Ky., 395 S.W.2d 590; Turner v. Turner, Ky., 336 S.W.2d 586. Ordinarily a natural parent, preferably the mother, should have custody of an infant child but the welfare of the child always takes precedence over this consideration or the desires of either parent. Yeary v. Yeary, 308 Ky. 353, 214 S.W.2d 587.

The facts and circumstances appearing in the instant case present a difficult custody question to resolve. Upon a careful consideration of the evidence we cannot reasonably say that the children’s welfare will not best be served by permitting them to remain in the custody of their grandmother at this time. Hence we find no abuse of judicial discretion on the part of the chancellor.

Therefore the judgment is affirmed.

PALMORE, J., not sitting.


author: HILL, Judge.

text:
    BOARD OF EDUCATION OF PENDLETON COUNTY, Appellant, v. Richard L. GULICK, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Ben B. Fowler and Dailey & Fowler, Frankfort, for appellant.
    William E. Johnson and Johnson & Burton, Frankfort, for appellee.
   HILL, Judge.

In this declaratory judgment action appellant, Board of Education of Pendleton County, appeals from a judgment upholding an order of that board employing appellee as the superintendent of schools for a four-year term to commence one year before the end of the term running at that time.

In January 1961 the board employed ap-pellee for a four-year term beginning July 1, 1961, and ending June 30, 1965. On June 6, 1964, a majority of the board entered an order employing appellee as such superintendent for another four-year term, commencing July 1, 1964, and ending June 30, 1968. Two of the three members of the board so voting on June 6, 1964, were defeated in the November 1964 election, and their successors on the board joined with another member (who voted against the initial employment of appellee) in the prosecution of this action. The annual salary in the first order of employment was fixed at $7,200, and the second order of employment entered June 1964 raised the salary to $7,700 annually.

Terms of two of the three members of the board who voted for the first term of employment of appellee expired with the year 1964, and their successors qualified in January 1965.

The judgment of the trial court upheld the order employing appellee Richard L. Gulick for the second four-year term.

The question presented involves a construction of KRS 160.350, which in part is as follows:

“Each board of education shall appoint a superintendent of schools whose term of office shall begin on July 1 following his appointment. The appointment may be for a term of one, two, three or four years. The board shall fix the salary of the superintendent at not less than $1,200 per annum, to be paid in monthly installments. In the case of a vacancy in the office for an unexpired term, the board of education shall make the appointment so that the term will end on June 30.”

Appellant argues that when a “term” is once fixed by the board at either one, two, three or four years, it does not have the authority to change the expiration date of; the term so fixed in order to create a term differing from that originally fixed. Ap-pellee contends the hoard has authority to change the length of the term, as well as the date of its beginning, at any time it may desire to do so.

Appellee points out, with some logic, that when the Legislature enacted KRS 160.350 it left out the following language which appears in K.S. 4399a-10, now repealed by KRS 160.350: “In case of vacancy due to any cause the county board of education shall fill the vacancy and the appointment shall be for the unexpired term, and until his successor shall have been appointed and qualified.”

To place the two provisions side by side, even at the risk of repetition, we quote the pertinent portion of the present statute: “In the case of a vacancy in the office for an unexpired term, the board of education shall make the appointment so that the term will end on June 30.” This change in language is some evidence of the legislative intent as it relates to the filling of a vacancy for a “term,” but we do not think it conclusive of the legislative intent. The history and tradition in Kentucky of the use of the word “term,” as well as its use and interpretation given by our Constitution, afford further insight into what the Legislature meant by the use of the word “term” in the statute in question.

The second edition of Webster’s International Dictionary defines “term” thus: “A limited or definite extent of time; the time for which anything lasts; duration; tenure; as, a term of five years; the term of life, of a policy; a presidential term.”

We find the word “term” in Section 23 of our Constitution, which we quote in full: “The General Assembly shall not grant any title of nobility or hereditary distinction, nor create any office the appointment of which shall be for a longer time than a term of years.” (Emphasis added.)

The word “term” is defined in the early case of Speed & Worthington v. Crawford, 60 Ky. (3 Met.) 207, to be a fixed and definite period of time.

Really, there is virtually no controversy as to the actual meaning of the word “term.” Our question relates to the power of the board of education in the present case to change a term after it has once been established under legislative authority. Therefore, we are led to analyze the reason for the use of the word “term.” The writers of the Constitution wanted no title of nobility or hereditary distinction. They also provided that no office should be created, “the appointment of which shall be for a longer time than a term of years.” (Emphasis added.) It was contemplated by the authors of the Constitution that the Legislature would have the right to fix terms of office for only a period of years, thereby enabling the people periodically to select public officers. The reasons are obvious.

Apparently it is a general rule that a school board may contract with the superintendent for a period extending beyond the term of the board, unless forbidden by statute. 70 A.L.R. 802; 147 A.L.R. 336, 343; 47 Am.Jur., Schools, Section 117; King City Union High School District v. Waibel, 2 Cal.App.2d 65, 37 P.2d 861; Hovart v. Jenkins Tp. School District, 337 Pa. 193, 10 A.2d 390; Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765. However, the board has no power to disturb a pre-existing term. Whitley County Board of Education v. Rose, 267 Ky. 283, 102 S.W.2d 28, 29 (1937), from which we quote:

“The fact that the County Board of Education attempted to elect Rose for a new term worked no change in his status. At the time of the election there existed only a vacancy in the term of Hill, who had resigned before the expiration of his term. The statute in force at that time provided that in case of vacancy due to any cause the County Board of Education should fill the vacancy, and the appointment should be for the unexpired term, and until his successor shall have been appointed and qualified. Section 4399a-10, Kentucky Statutes. It follows, as held by Judge Dietzman, that the board had the power only to fill the vacancy, and did not have the power at that time to extend the term of office and elect Rose not only for the vacancy, but for the extended term.”

Notwithstanding the slight difference in the statute quoted in the Rose case and the present statute, we think the conclusion and philosophy in Rose is disposi-tive of the present case. In the present statute, a choice is given in the matter of the length of term to be fixed, either one, two, three or four years. But once the length of the term has been fixed, the board loses control over the term thus created. Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 28 (1930), wherein it is said: “When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered. * * * Thus the appointment became complete, and the power of the board for the time being was exhausted.”

The legislative and judicial tendency in this State in a similar situation was further demonstrated in Hoke v. Richie, 100 Ky. 66, 37 S.W. 266, 38 S.W. 132 (1896), in which this Court said:

“In November, 1893, he died, and the county judge of Jefferson county thereupon appointed the appellant for four years, and the question for decision is whether this appointment was to fill the unexpired term of J. Fry Lawrence, or whether it was a new term of four years. The language of the statute is peculiar, and lends some force to the argument of appellant’s counsel that the vacancy was in the office and not in the term. The cases cited in support of this view (notably the ones from New York) arise in states where the legislative will is in the direction of each officer holding, for the full term provided by law, whether selected to fill a vacancy or at the expiration of a full term. Such is not, and has not been, the legislative tendency in this state. On the contrary, all the legislation upon the subject of tenure of those offices for which terms are fixed by law has been in the direction of fixed terms of office, and of filling vacancies therein, whether filled by appointment or election, only until the expiration of the regular term. We have concluded, though with some hesitation, that the apparent purport of the peculiar language of the statute must yield to the general legislative purpose prevalent in this state. We are of opinion, therefore, that in July, 1892, J. Fry Lawrence was appointed for a term of four years, and that the appointment of appellant was for the unexpired part of that term.” (Emphasis added.)

We quote further from the same styled case found in 38 S.W. 132, apparently on petition for rehearing:

“The statute provides (section 2204, St.Ky.) that the ‘inspector shall remain in office for four years, unless removed by the court,’ etc. The question is whether the words used mean, and were intended by the legislature to mean, that the inspector’s term should be four years from the time when the first inspector might be appointed under the statute, with successive terms of four years each, or whether on each occasion of a vacancy, however caused, a new full term was to commence at that date; in other words, whether the legislature intended to create a regular term of office, disconnected from the person of the incumbent, or a personal franchise which attaches to him. After carefully reconsidering the argument of counsel and the authorities cited, we have concluded that the intent of the statute was to designate consecutive periods of four years following each other in regular order, the one beginning where the other ends.” (Emphasis added.)
. “If the contention of appellant were to prevail, it would permit the appointing power to extend the terms of his •appointees, by causing them to resign on the last day of his own term of office, and thereupon reappointing them. for. new terms of four years. We cannot believe that the legislature so intended.”

The reasoning in Hoke v. Richie, supra, was also followed in Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, 317 (1929), wherein we find the following good definition of “term” as used in a similar situation: “‘Term’ is thus identified and defined as a certain and fixed period of four years. It commences when the mayor is elected and inducted into office, and ends at the end of the- four years for which he was elected.”

Counsel for appellee earnestly contends that Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598 (1961), provides precedent and authority for upholding the action of the board in the present case. With this we cannot agree. De-Weese involved the power of the county board to increase the salary of its superintendent during his term of office. The facts are dissimilar.

Finally, we conclude the board of education was without power to create a new term before the end of and out of the previous term. Under any other conclusion, it would be possible for a superintendent, by hook or crook, barter or trade, to secure the votes of a majority of the board members, splice terms, and perpetuate himself in office indefinitely, thereby defeating the right of the people to indirectly select this important officer.

By the conclusion reached, we do not intend to imply that the board of education may not change the length of the term of the superintendent, but it must be done within a reasonable time before the end of a term and in a manner not to disturb a term theretofore established.

Wherefore the judgment is reversed with directions to enter another consistent herewith.


author: A. MURRAY BEARD, Special Commissioner.

text:
    Ruby PEMBERTON et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF MENTAL HEALTH et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Ernest G. Baxter, Stanford, for appellants.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellees.
   A. MURRAY BEARD, Special Commissioner.

Appellant, Ruby Pemberton, was seriously injured when the car she was driving was run into by a stolen car driven by Vernon Harrison, an escaped inmate of Kentucky State Hospital. The liability of Harrison is not questioned. Appellant filed a claim for injuries with the Board of Claims against the Commonwealth of Kentucky, Department of Mental Health, Kentucky State Hospital and Dr. R. R. Knowles, as the Superintendent of Kentucky State Hospital alleging negligence in permitting the escape of Harrison and in his stealing of the car. The Board of Claims denied her claim and she appealed .to the Lincoln Circuit Court. Again her claim was denied, the circuit court upholding the decision of the Board of Claims. This appeal is from the decision of the Lincoln Circuit Court.

In Kentucky no new evidence may be introduced on appeal from decisions of the Board of Claims. Only the evidence introduced before the Board is reviewable as was said in Deby Coal Company v. Roark, Ky., 360 S.W.2d 511, a workmen’s compensation case:

“Upon an appeal from an award of the Board the courts are authorized merely to examine the record in order to determine if the evidence introduced is relevant and substantial and, if so, they have no choice except to sustain the award, even though there may be considerable proof pointing the other way. Stated somewhat differently, it may be said that the award must stand unless there is an absence of material evidence of probative force to buttress the Board’s finding.”

In Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406, where the claims were denied this Court said:

“There is no showing of fraud or misconduct in the hearing before the Board. The wording of KRS 176.-360(2) is very similar to the provision for appeals in Workmen’s Compensation Board cases. There we have held in many cases that the findings and awards of such boards, if supported by substantial evidence, are conclusive, [cases omitted].
“Here, although we might have reached a different conclusion if we had been members of the Board, there is substantial, competent evidence to support the findings of the Board of Claims.”

See also Kentucky State Fair Board v. Nicklies, Ky., 361 S.W.2d 289.

Vernon Harrison, a youth, was admitted to the Kentucky State Hospital, Danville, by order of the Pulaski Circuit Court on February 21, 1959, and was discharged September 28, 1959. He was admitted a second time on May 24, 1960, and was not discharged until July 12, 1961, several months after the accident in question which happened on March 14, 1961.

During his first commitment he escaped from the hospital grounds twice. On one of these occasions he stole a motor boat which he drove across Herrington Lake, then stole a farm tractor and drove it across the Southern Railway Bridge over the Kentucky River.

About a month later he again escaped, stole a truck, was arrested, placed in the Danville jail and later returned to the hospital where he was placed in a closed ward.

The medical testimony shows that Vernon Harrison was not an insane person and was not a proper subject for a mental institution. The hospital authorities, however, could not get the cooperation of the court in placing Harrison in a penal institution where he belonged. He was classified as a person of low mentality having an IQ of 70 and antisocial tendencies. They believed, however, that since he was committed by the court they had to keep him and so they attempted to give him treatment suitable for his condition. After his escape he was kept in closed wards under close supervision until his conduct warranted the return of certain ground privileges.

During his second commitment there is no evidence of any escape from the grounds prior to the occasion of March 14, 1961. During this period he was only unaccounted for on two occasions. On one occasion he was found asleep under a bed in his ward. On the other occasion he was unaccounted for only ninety minutes while going from the gymnasium to his ward.

During the period of his second commitment he showed no tendency to escape from the grounds and although he had been known to steal small things around the ward, he seemed to the doctors to be progressing with his treatment. In fact, he was given an extended convalescent leave on January 8, 1961, but was returned to the hospital on February 28, 1961, for some misbehavior at a Christmas visit on December 30th and 31st, 1960.

On March 14, 1961, Harrison stole an employee’s car from the parking lot and negligently ran it into the car being driven by appellant, seriously injuring her. She is claiming negligence on the part of the authorities in not keeping Harrison in a security ward under close supervision.

As above stated, Harrison was being medically treated for his mental condition and not being punished for his misdeeds. The inmates are placed there for medical and therapeutic treatment in an effort to cure their mental illnesses and return them to society sound in body and mind. They are placed under the care of doctors and nurses, not wardens and guards. It is true there are security wards for the violent and dangerous, but those patients are given more freedom as they respond to treatment and this freedom is increased until they can reclaim their place in the outside world. When they reach this point they are discharged.

Such was the case of Vernon Harrison. He was placed in the institution for treatment of his mental condition, either real or imaginary. During his first commitment he showed a history of escapes and theft of motor vehicles. At this time he was intermittently kept under close supervision. During his second commitment his tendency to escape seems to have subsided and he was responding to treatment. The doctors could not foresee that he would revert to his original tendencies. Consequently he was given more privileges and thus acquired the opportunity to make the theft of March 14, steal the car and cause the wreck.

It may be said that the authorities of the institution made a mistake in judgment, but we cannot as a matter of law call it such negligence as constituted liability for the injuries sustained by the appellant.

Since there was substantial evidence to uphold the findings of the Board it is our recommendation that the judgment of the Court be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: PALMORE, Judge.

text:
    John Henry WARNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee
    Court of Appeals of Kentucky.
    Jan. 21, 1966.
    John Henry Warner, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Appellant, a prisoner in the state penitentiary at Eddyville, brought this RCr 11.42 proceeding to vacate his conviction after an earlier attempt to secure the same relief had proved unsuccessful. See Warner v. Commonwealth, Ky., 385 S.W.2d 77 (1964). He appeals from a judgment overruling the new motion.

Subsection (3) of RCr 11.42 was intended to protect the courts against the abuse and vexation of successive proceedings to vacate the same judgment, and obviously it applies in this instance.

The judgment is affirmed.


text:
    Charlie D. LEWIS, Appellant, v. UNITED STATES STEEL CORPORATION et al., Appellants.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      C. W. Napier, Hazard, for appellant.
    William A. Rice, Harlan, Robert Matthews, Atty. Gen., for appellees.
   PALMORE, Judge.

This is a workmen’s compensation case in which the evidentiary situation is on all fours with Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73 (1964), except for the fact that the board, confronted by the conflicting opinions expressed by the medical witnesses offered by the respective parties, appointed and had the benefit of an additional opinion from a disinterested physician pursuant to KRS 342.315.

At the time the case was heard appellant was 59 years old and had been a coal miner for 43 years, the last 10 of which were in the employment of appellee company. His experience included much exposure to coal and silica dust. He is now disabled, probably from pulmonary emphysema. The question is whether the board was required by the evidence to find that the disability resulted from appellant’s occupation as a soft coal miner.

Pulmonary emphysema is one of the two most prevalent chronic respiratory diseases in the country (the other being bronchitis). One of the defense witnesses went so far as to say that there is no more emphysema among coal miners than there is in the general population. It was the position of the company’s medical witnesses that the only instance in which it is recognized that coal mining causes emphysema is upon a showing of silicosis, which in turn must be indicated by “nodular fibrosis or massive fibrosis” in the lungs. Their X-rays did not disclose any such condition, and they were of the positive opinion that appellant does not have an occupational disease.

Two doctors in Baltimore, Maryland, formerly connected with Johns Hopkins University found no evidence of silicosis but stated that pulmonary emphysema can result from the inhalation of coal dust alone, without the intervention of silicosis (which is caused by inhalation of silicon dioxide in sand dust), and that in view of the case history it is fair to assume, and is their professional opinion, that appellant’s disability, is attributable to his occupation.

Another of appellant’s medical witnesses, after physical examination, pulmonary function studies, and X-rays, diagnosed pneumoconiosis and attributed it to his employment. This doctor’s X-rays showed “scattered areas of nodular fibrosis throughout the lung fields.”

The board-appointed physician, Dr. J. E. Myers, Jr., of Lexington, a specialist in internal medicine, took the case history, performed a complete physical examination including electrocardiogram and pulmonary functional studies, and made X-rays. His report concluded as follows:

“This patient by history has spent forty-three years working in the mines mostly within the mines themselves and in rather dusty jobs. He now has chronic lung disease with a history of onset in 1960. He does show some pleural reaction on the left side, probably representing his pneumonia in childhood. His major symptoms at present are on the basis of a chronic bronchitis with obstructive defect in ventilation. His chest X-rays are not classically those of silicosis. The etiology of this patient’s lung disease may therefore be a mixed one. I would be unable to state however that this patient has no silicosis on the basis of his history and physical findings. His symptoms in fact may all be on that basis. The major X-ray criteria for the diagnosis of silicosis are lacking in this individual and therefore I am not able to say without a doubt that this man’s sole problem is that of a pneumoconiosis.”

In a deposition taken after the submission of his report Dr. Myers made it quite clear that although he could not make a “definite” diagnosis of silicosis, it was nevertheless his opinion that appellant “probably has silicosis.” He explained that the nodules in the lung fields' observed in the X-ray photographs were “so widely scattered that one could not make an X-ray diagnosis of silicosis by the number that are present * * * I expressed an opinion that this patient most probably does have silicosis and therefore these micro-nodules would be on that basis * * * I I think this man’s present pulmonary condition and his work history is of more value to me in making a diagnosis even of probable silicosis than anything else * * * If similar findings were present in this patient with a more definitive X-ray picture of silicosis I would make a definite diagnosis of silicosis.”

In its decision and order rejecting appellant’s claim the board recited that under the conflicting state of the evidence it chose to accept and believe the testimony of the defendant’s doctors, citing Hardman v. Owensboro Forging Company, Ky., 309 S.W.2d 339 (1958).

Under KRS 342.121(4), which applies to the appointment of a disinterested physician in subsequent injury cases, the findings and conclusions of the physician so appointed are, if unequivocal, binding on the board. However, KRS 342.315 does not contain a similar provision, from which we think the only reasonable inference for us to draw is that the findings and conclusions of a physician or physicians acting pursuant to KRS 342.315 are not conclusive. Hence the board has the option, within reason, to reject them. Cf. American Radiator & Standard San. Corp. v. Givens, Ky., 383 S.W.2d 690, 692 (1964).

Clearly, Dr. Myers felt that this appellant probably has silicosis and that it is at least a contributing factor in his disability. In view of the observation in Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47, 49 (1961), that the law does not demand certainty of cause, probability being sufficient, it is difficult to understand why the board, after having gone to the trouble of seeking Dr. Myers’ assistance in resolving its doubts, would then turn a deaf ear on his conclusions. That they were couched in terms of probability rather than absolute certainty did not make them in any sense equivocal. Nonetheless, the board is the ultimate fact-finding authority, and that was its prerogative. Hence the judgment of the circuit court affirming the order was correct. KRS 342.-285; Branham v. Eastern Coal Corporation, Ky., 389 S.W.2d 926 (1965); Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73 (1964) ; Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856 (1963).

The judgment is affirmed.


text:
    Ronald Lee TIPTON et al., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Ronald Lee Tipton, pro se and James Sprinkle, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

The appellants, Ronald Lee Tipton and James Sprinkle, appeal from the order denying their joint motion to vacate a judgment convicting them of armed robbery. The same appellants have previously had review of their former motion to vacate the same judgment. Tipton v. Commonwealth, Ky., 376 S.W.2d 290.

The present appeal flows from their RCr 11.42 motion filed in the trial court on August 23, 1965. In the motion so filed the appellants presented two bases upon which they deemed themselves entitled to the relief sought: (1) that no counsel was appointed for them upon their examining trial, and (2) the counsel who was appointed to represent them upon the trial in circuit court failed to perfect an appeal for them, in forma pauperis, which had been permitted by the trial court. After the Commonwealth had filed response to the motion, appellants filed a “rebuttal” in which it is at least suggested that it was the duty of the trial court to afford these appellants counsel for an appeal. For purposes of this opinion we shall regard this' as a third point advanced by appellants.

The trial court overruled the motion to vacate, without a hearing and without appointment of counsel, upon the grounds that the alleged bases for relief were refuted on the face of the original record and in light of the adverse ruling already made in the first appeal above cited. Odewahn v. Ropke, Ky., 385 S.W.2d 163.

The appellee points out that RCr 11.42(3), which became effective January 1,1965, specifically requires that any motion to vacate under RCr 11.42 shall “* * * state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” The appellants retort that RCr 11.42 contained no such provision at the time they filed their original motion to vacate. However, we do not consider that fact as dis-positive of the matter. In our view, the amendment to RCr 11.42 promulgated September 23, 1964, effective January 1, 1965, now designated as RCr 11.42(3) is merely declaratory of the common law rule which already applied to RCr 11.42 as it was originally drafted. The purpose of the amendment was to dispel any doubt in that area. The language as now written in the rule is comparable to that employed in the federal rule affording post-conviction remedy. 28 U.S.C. § 2255 contains, among others, this provision:

“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”

We are of the view that appellants have no legal right to make this second assault upon the judgment of conviction. However, since the record is before us, and in order to preclude additional litigation, we shall dispose of the points raised by appellants.

The fact that appellants were not provided counsel at. the examining trial is not basis for the relief sought in the absence of any allegation or showing that anything occurred at the examining trial amounting to prejudice to either of the appellants. Carson v. Commonwealth, Ky., 382 S.W.2d 85; cert. den. 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; DeToro v. Pepersack, (4th Circuit), 332 F.2d 341, cert. den., 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

Neither is there merit in the claim that appointed counsel failed to perfect an appeal for the appellants from the original judgment of conviction. Under no circumstance would that have become a ground for vacating the judgment per RCr 11.42. It could, under appropriate circumstances, become the basis for an appeal which otherwise would have been foreclosed as too late. See McIntosh v. Commonwealth, Ky., 368 S.W.2d 331; Curry v. Commonwealth, Ky., 390 S.W.2d 891. The appellants have failed to point to any asserted error at the original trial of which complaint could have been made upon appeal. In such circumstance, even if appointed counsel had deliberately or negligently failed to perfect an appeal (which we by no means imply), appellants would not be entitled to perfect a perfunctory appeal — devoid of any claimed basis for reversing the judgment from which the appeal would be taken. Mitchell v. United States, 103 U.S.App.D.C. 97, 254 F.2d 954, cert. den., 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 73.

What we have said disposes of the contention that appellants were denied the right to counsel on appeal. The record does not reflect that they actually were denied counsel, but even if it did, this alone would not afford basis for vacating the judgment of conviction in the absence of at least an allegation of reversible error lurking in the original trial.

By a supplemental brief filed in this court, the appellants raise for the first time their claim that they were denied a court reporter at the original trial. They place reliance upon Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed. 892; Griffin v. State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055; Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, and similar decisions. The case at bar is, we think, clearly distinguishable from the cited authorities. There was a bystander’s bill of evidence brought up on the appeal in the first RCr 11.42 proceeding. Ky., 376 S.W.2d 290. RCr 12.70 permits such a bill in this jurisdiction. In Lane, supra, the Indiana procedure required that a transcript be filed to perfect an appeal from the denial of a writ of error coram nobis. Indiana’s Public Defender Law reposed in the Public Defender the sole discretionary right to provide such a transcript. It was that phase of the matter which caused the Indiana law to be struck down. The other cited authorities relate to situations in which an indigent defendant was denied a transcript — when one was available. Such is not this case. Neither is there any factual showing that a court reporter was denied — but most significantly, there is no allegation of any erroneous action taken during the trial which could be made basis for a reversal of the original judgment of conviction. Failing that, the appellants cannot be said to have suffered any prejudice to any substantial right. In such cases we will not reverse. RCr 9.24.

The judgment is affirmed.

      . See Burton v. Tartar, Ky., 385 S.W.2 168; Baker v. Davis, Ky., 383 S.W.2 125.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mabel V. THOMPSON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Lexington, for appellant.
    George R. Silliman, William M. Dish-man, Jr., Danville, for appellees.
   HILL, Judge.

In this highway condemnation action to secure land necessary to widen the Danville-Perryville Road (U S 150) only one question is presented as ground for reversal, that is the fixing by the jury of the “after” value of appellees’ land at $1700 less than the lowest “after” value testified to by any witness.

It will serve no useful purpose to detail facts and circumstances of this case as Commonwealth, Department of Highways v. Wynn, et al., Ky., 396 S.W.2d 798 (1965), disposes of this question. We quote from it as authority for reversing the judgment appealed from herein:

“The trouble is that the lowest estimate by any witness of the ‘after’ value was $4,400 more than that found by the verdict. The only assumption we can make is that the jury chose to put its own values on the property, ignoring the evidence.
“This defect in the verdict requires reversal of the judgment.”

See also Pierson v. Commonwealth, Ky., 350 S.W.2d 487 (1961); and Commonwealth, Department of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249 (1964).

Wherefore the judgment appealed from is reversed with directions to sustain appellant’s motion for a new trial.


text:
    William T. GRIDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      William T. Grider, pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

In 1954 the appellant, Grider, was convicted of willful murder and sentenced to imprisonment for life. KRS 435.010. In 1965 appellant filed motion to vacate the judgment of conviction. RCr 11.42. The sole basis alleged for the motion to vacate was appellant’s assertion that “⅜ * ⅜ the Jury imposed an eight (8) year term of imprisonment on movant at its April Term, 1954, and the court change judgment to life. (Sic.)”

The trial court overruled the motion to vacate, without a hearing and without appointment of counsel. The basis for the trial court’s ruling was that the record of conviction (which is before us on this appeal) reflects that appellant pleaded guilty to the murder charge, and the court instructed the jury to find him guilty and fix his punishment at death or confinement in the reformatory for life. The verdict of the jury is in the record, reproduced partially in the handwriting of the jury foreman. It recites: “We, the jury, find the defendant guilty and fix his punishment at life imprisonment in the State Reformatory.” The verdict bears the signature of a juror as foreman. The judgment of conviction conforms to the verdict.

Appellant presented with his motion to vacate an affidavit signed by nine of the jurors (sworn to telephonically by seven of them) in which it is recited: “We, the undersigned jurors gave said William T. Grider eight (8) years at his trial April court 1954. (Sic.)” Beneath the signatures of the jurors appears the typed statement: “And we feel he should be discharged as he has more than served his sentence.”

It is fundamental that jurors may not impeach their verdict in this manner. See Cr. C. Section 272 (applicable at the time of the conviction) and RCr 10.04 now in effect. Howard v. Commonwealth, Ky., 240 S.W.2d 616. Moreover, the effort at showing the verdict provided imprisonment for eight years is manifestly untenable. The only possible verdicts under the instruction and statute were punishment by death or life imprisonment. Obviously the trial ccurt properly denied the motion to vacate without a hearing.

Appellant seeks to advance other bases for vacation of the judgment, but these are advanced for the first time on appeal. They are not before us for review, although we take occasion to observe that the asserted grounds are patently vaporous.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    GATEWAY AUTO AUCTION, INC., et al., Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.
    S.Russell Smith, Robert H. Malone, Louisville, for appellants.
    John A. Fulton, Louisville, for appellee.
   MONTGOMERY, Judge.

Gateway Auto Auction, Inc., and its insurer, Georgia Casualty & Surety Company, appellants, filed an action to recover the fair market value of four automobiles alleged to have been wrongfully converted by General Motors Acceptance Corporation, appellee. The trial court entered a summary judgment in favor of GMAC on the ground that Gateway failed to prove ownership of the automobiles in question. This appeal is from the judgment entered below dismissing Gateway’s complaint.

This case must be resolved and determined by the status, activities, and conduct of Gateway Auto Auction, Inc., of Louisville, Billington Downs Used Cars, of Murray, Bob Calvin Oldsmobile, Inc., of Seymour, Indiana, and Robert Lawrence Auto Sales, hereinafter referred to as Gateway, Billington Downs, Calvin, and Lawrence, respectively.

Gateway has conducted an automobile auction service in Louisville for a number of years. Its chief service is to make sure that the seller of an automobile is paid the promised purchase price and that the buyer gets good title to the vehicle purchased. For this service it charges a small commission.

Immediately prior to the occurrence of the events out of which this action arose, Billington Downs owned the four automobiles in question; namely, a 1953 Oldsmobile, a 1954 Chevrolet, a 1957 Mercury, and a 1956 Chevrolet.

On September 17, 1957, Lawrence, an employee of Billington Downs, brought a number of automobiles owned by Billington Downs, including the four in question, to Louisville for auction. These cars had been purchased in Michigan and Lawrence was in possession of the title papers which showed Billington Downs was the owner. The automobiles were parked and kept in the possession of Gateway. Gateway gave its check of $5,165 to Lawrence in payment of the four cars. This check was endorsed by Lawrence and also by Billington Downs. No issue is being raised by Billington Downs that Lawrence was its agent or that it had not been paid for the cars in question. In addition, there were other cars that were also purchased. . These cars were sold by Gateway to Calvin for the sum of $5,225.

Lawrence executed before Thelma West-erman, the office manager and notary public for Gateway, a separate bill of sale for each of these cars on forms required by the Kentucky License Statute. Lawrence signed the name of Billington Downs to the bills of sale and, underneath, wrote his own name. Gateway then gave its check to Lawrence for these and other cars purchased from Billington Downs on September 17, 1957. This check was endorsed by both Lawrence and Billington Downs and cleared the Louisville bank on which it was given on September 19, or two days later. On the same day of the purchase Gateway gave Calvin two documents with respect to each of the cars in question. One was a bill of sale of motor vehicles required by the Kentucky License Statute, KRS 186.190 and 186.200. In these bills of sale the name of Calvin had been inserted as the direct vendee of Billington Downs. The other title paper was Gateway’s printed title warranty and bill of sale. Each of these warranties and bills of sale described with particularity each of the four automobiles in question and warranted that the title was in Gateway and that title would not pass to Calvin until the check he gave for them had been paid.

The check for $5,225 was given by Calvin on September 17, the date of the sale, on the Seymour Bank, showing on its face that it was for the automobiles in question. This check was dishonored by the Seymour Bank for “insufficient funds” and returned to Gateway on September 24.

These cars, with others, were placed on the garage floor of Calvin at Seymour, Indiana, who executed a floor plan mortgage upon two of them for $2,902 to GMAC, who, in turn, mailed a check to Calvin in the sum required by the mortgage. On the following day, September 19, Calvin notified GMAC that he was in financial difficulty. GMAC agents, on the following day, intercepted the $2,902 check and required Calvin to endorse it and deliver it back to them and took possession of the four cars in question. Immediately the four cars in question were sold to purchasers who had no knowledge of the conditional sales contract between Calvin and Gateway. The amount realized was applied on prior debts that Calvin owed GMAC.

The court below based its judgment on the premise that these cars were never licensed in the name of Gateway and that Gateway was never the owner of them and thus could not maintain an action against GMAC for their conversion. Gateway contends that the license registration or bill of sale of an automobile is not conclusive evidence of ownership and may be rebutted. Reliance is placed on the Uniform Sales Act, KRS 361.030, in effect at the time of the transaction and prior to the effective date of the Uniform Commercial Code. Reliance also is placed on a number of cases, including Bevins v. Ford, 302 Ky. 346, 194 S.W.2d 657, wherein cases are collected and the rule is stated thus:

“The weight to be given to a bill of sale of motor vehicles, as against one asserting title in opposition thereto, has been before this court in a number of cases, * * *. (Citations omitted) In each of them we held that the bill of sale was not conclusive on the question of title and ownership of the vehicle, and that the title of the one to whom the bill of sale was issued might be impeached by parol testimony clearly showing that the title was actually in another. * * * ”

The facts are not in conflict. Each party moved for a summary judgment. No meritorious reason is advanced as to why this is not a proper case for summary judgment. CR 56.03.

As stated in Bevins v. Ford, above, a bill of sale may be impeached by parol evidence “clearly showing” title in another. The evidence shows that paper title to the cars was transferred by Billington Downs by its employee, Lawrence, to Calvin. The bills of sale were so executed before the office manager and notary public of Gateway. The difference in the check of $5,165 given by Gateway to Billington Downs for the four cars and in the check of $5,225 received by Gateway from Calvin is $60, four times the fee of $15 charged by Gateway for handling the sale on a single car. The latter check was dishonored and Calvin entered bankruptcy.

It is true that Gateway gave Calvin its printed “Title Warranty and Bill of Sale” for each car in which the automobile sold was described. It contained a warranty of title and sought to retain a lien. However, these documents referred to Lawrence, who never had any paper title, as the transferring owner while the title to the cars was in Billington Downs for whom Lawrence was acting. The execution of the bills of sale from Billington Downs to Calvin simultaneously with the execution of the Gateway title warranties refutes the idea that Gateway had any title and shows that Gateway recognized the title to be in Bil-lington Downs. The nature of Gateway’s business, that of auction service, also refutes the idea of its taking or holding title. Ordinarily one who engages in an auction service does so as an agent. Becker v. Crabb, 223 Ky. 549, 4 S.W.2d 370; Parke v. Spurlin, Ky., 268 S.W.2d 33.

In an action for conversion the burden is upon the plaintiff, Gateway here, to establish title. Fightmaster v. Beasly, 30 Ky. (7 J. J. Marshall) 410; Commercial Credit Corporation v. W. E. Caldwell Company, Ky., 279 S.W.2d 803. Under the circumstances it is concluded that Gateway has failed to show clearly any title to impeach the title transferred to Calvin by Billington Downs under which GMAC claims. Summary judgment in favor of GMAC was correctly granted. It is unnecessary to discuss other questions raised.

This case is not to be confused with the common occurrence when the owner of a car delivers a bill of sale in blank in so far as the vendee is concerned and the automobile dealer subsequently inserts the name of the person to whom he sells as vendee.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    HIGHWAY TRANSPORT COMPANY, Inc., Appellant, v. DANIEL BAKER COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    As Modified on Rehearing Feb. 11, 1966.
    Oscar H. Geralds, Jr., Moloney & Molo-ney, Lexington, Kramer, Dye, McNabb & Greenwood, Knoxville, Tenn., for appellant.
    Roy W. House, Lester H. Burns, Jr., John M. Lyttle, Pleaz Mobley, Manchester, Robert L. Milby, Hamm, Taylor & Milby, London, for appellees.
   CLAY, Commissioner.

Several actions and claims for damages, consolidated for trial, arose out of a fire at the petroleum bulk plant of appellee Daniel Baker Company, and the respective claimants obtained judgments against appellant. Its principal ground for reversal is that it was entitled to a directed verdict.

The fire occurred in the late afternoon while appellant’s employee was unloading gasoline from appellant’s tank truck into Baker’s overhead storage tanks. The only person present in the immediate area was this employee, a truck driver, and his testimony was substantially as follows. He properly stationed the tank truck and cut off the motor. Upon entering the pump house he observed a puddle of gasoline on the floor beneath the pump, indicating that it had been leaking. He swept out the gasoline and connected the discharge hose from the tank truck to the pump. After adjusting the proper valves, he opened the dome covers on the truck and started the pump by means of an electrical switch inside the pump house. He then spent a few minutes measuring the gasoline in the storage tanks, returned to the truck, and made out a delivery ticket. He returned to the pump house to hang up the ticket and as he removed his glove an explosion took place which knocked him backward.

No one could say what was the exact cause of this explosion and ensuing fire. Obviously it occurred as a result of the ignition of gasoline vapor. It is appellant’s contention that appellees failed to sustain the burden of establishing either negligence or causation because they failed to prove with any degree of certainty either the immediate source of the inflammable vapor or the place of the igniting spark.

Appellees apparently lean to the theory that appellant’s driver negligently created a source of gasoline vapor when he opened the dome covers on the tank truck, which appears to be contrary to regulations of the Fire Marshal’s office. Appellees contend these fumes were ignited by heat generated by the running truck motor. Though the driver stated the motor was not running, two witnesses for appellees testified they thought the motor was running at some time before the explosion. One of these witnesses did not know whether he heard the truck motor or the electric motor and pump in operation. The other witness was ISO to 200 yards away and on cross-examination he testified he was not aware that the electric motor and pump were in operation at the time. The testimony of these two witnesses was equivocal in character, but we need not decide if it rose to the level of substantial evidence. In any event, it furnished only a weak link in the chain of possibilities.

That appellees are not committed to this theory as to the cause of the fire is indicated by their suggestion that there were other possible sources of ignition. They say the fife may have started by static electricity generated by an improperly grounded truck or hose, or because appellant’s employee was smoking on the job. (Not shown by evidence.) Appellant points out three other possible sources of gasoline vapor and seven other possible sources of ignition. The experts who investigated this accident could form no opinion as to its cause. Perhaps also of significance is the jury verdict which was predicated on the finding that appellant and its employee failed “one or more of their duties”. (Our emphasis) In the light of the instruction which numerically specified appellant’s duties (most of which were not shown to have been breached), the verdict itself indicates speculation by the jury.

The immediate cause of this fire was obviously a combination of several factors or conditions, at least two of which must have existed simultaneously, i. e., the presence of combustible gasoline vapor and the igniting spark. A human agency may have created one or more of these conditions, but not necessarily so. A malfunction in a valve, or a switch, or the electric motor, or the pump, could have played a critical part.

It has many times been said that a jury verdict must rest on stronger support than surmise and speculation. Smith v. Kentucky-West Virginia Power Co., Ky., 283 S.W.2d 376; Kentucky Power Company v. Hogg, Ky., 301 S.W.2d 1; Burnette v. Moss, Ky., 381 S.W.2d 624; Hall v. E. I. Du Pont De Nemours & Company (D.C.Ky.), 142 F.Supp. 737.

In drawing the line between speculation and relative certainty, we have said that where the evidence is equally consistent with negligence and non-negligence the plaintiff, with the burden of proof, has not made his case. McAtee v. Holland Furnace Co., Ky., 252 S.W.2d 427. In other words, the claimant must introduce sufficient proof to tilt the balance from possibility to probability. Only then would a jury have some basis for drawing a reasonable inference that the accident was in fact caused by a combination of circumstances proximately traceable to a negligent act or acts.

The proof in this case establishes no more than possibilities or combinations of possibilities. We can find no evidence of substance which would even tend to tilt the balance of causation as between an unavoidable accident, a defective condition in the pump house, or negligent activity on the part of appellant’s employee. It is pure guesswork that the fire was attributable to the latter and, of course, that is the only conjecture upon which appellant’s liability can be based. Since the claimants’ proof did not pierce the veil of speculation, appellant was entitled to a directed verdict.

Had appellant made a timely motion therefore it would have been entitled to a judgment notwithstanding the verdict. CR S0.02 is very specific in requiring such motion to be made within 10 days after the reception of a verdict (when one is returned). Appellant did not comply, hut waited until after judgment was entered and then filed a motion under CR 50.03 asking for a judgment n. o. v. or a new trial. The motion for a new trial was timely under CR 59.02. It is contended by appellant that since CR 50.03 authorizes this joint motion, the time limit for filing a motion for a new trial controls.

Nothing in CR 50.03 relates to the time of filing. It cannot he construed as enlarging the time for making a motion for judgment notwithstanding the verdict. It does not create a new type of motion but, while recognizing a joint motion, provides the procedure to be followed in the event both motions are filed, either jointly or separately.

Since appellant failed to comply with the time limitation of CR 50.02, we do not have before us a motion for judgment notwithstanding the verdict. The relief we may accord is governed by its proper motion for a new trial.

We do not pass upon the question of whether the trial court properly ruled on appellant’s motion to abate the proceedings involving appellee Daniel Baker Company.

The judgment to the extent that it disposes of the claims of Highway Transport Company, Inc. and Daniel Baker Company, Inc. against each other is reversed with directions to grant a new trial of those claims, and if on a new trial the evidence is substantially the same, the trial court will direct a verdict against the respective claimants on those claims.

HILL, J., not sitting.

      . CR 6.02 provides that the Court may not extend this time.


author: WILLIAMS, Judge.

text:
    Frankie WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.
    Frankie Williams, pro se.
    . Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

In his motion under RCr 11.42, the .appellant alleges he was denied a continuance at his trial for various reasons. The record shows he was represented-by counsel and that no motion or request for a continuance was made.

Relief was properly denied.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    E. Poe YOUNG, Petitioner, v. Hon. George O. BERTRAM, Judge of the 11th Judicial District of Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    Joseph J. Leary, Thomas F. Marshall, Marion Rider, Frankfort, for petitioner.
    Lester Spaulding, Commonwealth Attj. Barry Bertram, Campbellsville, for respondent.
   CULLEN, Commissioner.

Upon appearing for arraignment in the Taylor Circuit Court on 12 felony indictments against him charging misapplication of public funds, E. Poe Young, County Court Clerk of Taylor County, filed an affidavit alleging that the circuit judge was prejudiced against him and moved that the judge vacate the bench. The judge failed to vacate the bench whereupon Young brought the instant original proceeding in this Court seeking an order prohibiting the circuit judge from proceeding further in the prosecution under the indictment.

The respondent judge does not question the sufficiency of the motion and affidavit or assert any reason why he should not vacate the bench. 'His only contention is that any error in his failure to vacate can be remedied by appeal and therefore this Court should not invoke the extraordinary power of prohibition.

It is our opinion that in the circumstances here presented the remedy by appeal would not be adequate. Cf. Farley v. Lowe, Ky., 382 S.W.2d 409. Accordingly, we invoke the original jurisdiction of this Court.

The respondent hereby is prohibited from acting as judge of the Taylor Circuit Court in any further proceedings on the indictments against Young.


author: MILLIKEN, Judge.

text:
    Curtis Lee RAY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Curtis Lee Ray, Jr., pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal from a judgment overruling the appellant’s RCr 11.42 motion to vacate his conviction and sentence upon a plea of guilty to stealing from a public building. The governing statute (KRS 433.180) imposes a penalty of two to ten years.

The gist of the appellant’s contention revolves about his having no counsel at arraignment, inadequate counsel at his trial, and the failure of the trial court to probate his sentence as he was led to believe it would. The record refutes his contentions; it states that the appellant withdrew his “not guilty” plea and pleaded guilty in open court in the presence of his appointed counsel, that the court found him guilty accordingly, fixed his punishment at five years’ imprisonment and, upon motion of his counsel, withheld the entering of the judgment for approximately a month until investigation would reveal whether probation of the sentence would be justified.

The appellant’s claim that he was deprived of counsel is too general to justify relief, Oakes v. Gentry (Ky.1964), 380 S.W. 2d 237; it does not disclose enough to justify a hearing on the issue and, besides that, it is expressly ⅛ refuted by the record. His claim that counsel said he would make no defense is another general assertion which does not disclose what defense, if any, could have been made. The record shows that his plea of guilty was made in open court in the presence of his counsel, and it is obvious that appellant pleaded guilty in order to obtain a lighter sentence than a jury might have imposed under the statute. Furthermore, even if the appellant had been induced to plead guilty in the hope of proposed probation, the appellant had no right to assume that the trial court would accede to such a proposal. Hurt v. Commonwealth (Ky.1960), 333 S.W.2d 951; Franklin v. Commonwealth (1947), 305 Ky. 111, 203 S. W.2d 2, 3.

The judgment is affirmed.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Leport WALTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39174.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 9, 1966.
    Saunders & Caldwell by J. Byron Saunders, Tyler, for appellant.
    ■ W. E. Coats, Jr., Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, SO years.

The homicide occurred after midnight on New Year’s Eve at the Palomino Club. Appellant was the owner, and the deceased was a patron.

The State’s witnesses testified that an altercation arose between the wife of the deceased and a female employee of appellant, that deceased attempted to separate the women, and that appellant came to the table, asked “who is pushing my woman”, to which deceased replied that he was trying to separate them and told appellant that he had no argument with him, at which time appellant pointed a pistol at deceased and fired. It was shown that this bullet killed the deceased instantly.

Appellant’s witnesses’ version of the transaction was that deceased hit appellant with his fist and continued to advance upon him with his right hand in his pants pocket, whereupon, appellant fired the fatal shot. The defense witness Williams testified that at some time prior to his death the deceased had pulled a knife on him and that he had later told appellant about it. The witness Nash, who had been a deputy sheriff at the time of the homicide testified as to the location of the body of the deceased at the time he arrived at the scene.

Appellant, testifying in his own behalf, stated that when he went to quell the disturbance at the table, the deceased threatened to kick him, then hit him, and that based upon what Williams had told him, he shot the deceased because he did not know what he had in his pants pocket where his right hand was as he was advancing toward him.

The jury resolved the issue of self defense against the appellant, and we find the evidence sufficient to support the conviction.

The sole question presented for review by brief and in argument is the failure of the trial court to grant a motion for new trial because of alleged jury misconduct. There is no contest over the following facts. Appellant was tried in the District Court of Smith County in 1964, and received a sentence of five years. From this conviction he appealed to this Court, and his conviction was reversed. Walton v. State, 386 S.W.2d 80S. He was tried again in 1965 on the same indictment and received a sentence of SO years. The jury was able to determine from the testimony that there had been a prior trial of this same case, but there was no evidence as to what punishment had been assessed. While the jury was in their quarters, and prior to reporting their verdict to the court, the following occurred. One of the jurors asked “Does anyone know what he received before?”, and another said, “Anybody in here know what he received?”, and the juror Land-rum said, “I read in the paper that he had received fifty years.”

The only issue upon which the trial court was called to decide was whether this statement was made before or after the jury had reached their verdict. Juror Lan-drum, who admits that he furnished the information which he later learned to be incorrect, staunchly maintained at the hearing on the motion that this occurred after all the jurors had voted for a 50 year verdict and that one of his fellow jurors said, “Is it a coincidence * * * that we * * * gave the same amount.”

Juror Moegelin testified just as emphatically that every juror save him had cast their votes at the time the statement was made, and that it was after he heard the statement that he agreed to the SO year verdict which was in excess of what he had been favoring up until that time.

The other ten jurors were far less certain. Some claimed that they did not hear the statement made at all; one was emphatic in his assertion that it was not made while he was in the jury room. He stated that he went to the rest room immediately after the jury agreed upon a verdict. Others stated that they were not sure whether it was made before or after the verdict was agreed upon. They all agreed that some time did elapse after they reached their verdict and before the bailiff could be summoned to bring them into court.

It has been the consistent ruling of this Court that where an issue of fact is drawn as to what occurred in the jury room, the proper tribunal to decide that issue is the trial judge, who hears the witnesses. It is apparent from his ruling that the trial court accepted the testimony of juror Landrum, and we find no abuse of discretion. See Loshe v. State, 160 Tex. Cr.R. 561, 272 S.W.2d 517, and Judge Haw-kin’s opinion on rehearing in Freeman v. State, 95 Tex.Cr.R. 515, 254 S.W. 791.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that in addition to the alleged jury misconduct which was discussed in our opinion on original submission, the jury discussed the number of years which he would be required to serve if he were assessed punishment of fifty years.

While the record reflects that there was a discussion in the jury room with reference to how long appellant would be required to serve if he were assessed punishment of fifty years, there was a conflict in the testimony as to what was actually said.

The record does not reflect any undisputed testimony showing a misstatement of fact relative to the granting of parole.

In refusing to grant a new trial, the court did not err. Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929.

Remaining convinced that a proper disposition of the case was made in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Bobby Raye DOBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 39170.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom F. Reese, John C. Vance and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

Cafeman Doyle testified that he closed and locked his place of business on the day in question and was called by the police to come back there at 2:00 a. m., at which time he found that a pay telephone had been ripped off the wall, his cigarette machine had been broken into, and several items including his toaster were missing.

Officer Slemmons of the Dallas Police testified that while on patrol on the night in question he saw a station wagon being driven at a high rate of speed, gave chase and brought it to a halt, that while examining appellant’s driver’s license he looked into the station wagon and saw a pay telephone, and that when he asked appellant where he had gotten it, appellant replied “that he got it out of a cafe just off Bryan Street.” At this juncture handcuffs were placed on appellant and his companion. Inside the automobile the officer found an electric toaster and other items similar to those described in Doyle’s testimony. According to the officer, appellant agreed to show him where the cafe was located; it was found and Doyle was notified. Slem-mons’ partner, Officer Williams corroborated his testimony in many respects.

Identification Officer Hicks testified that he arrived at the cafe and lifted a fingerprint from the empty coin box in the cigarette machine, and that he later took appellant’s prints while he was in jail.

Lt. Day, the supervisor of the fingerprint files testified that he compared the two sets of prints given him by Hicks and expressed the opinion from his 16 years experience that they were both the prints of the same person.

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

We shall discuss the contentions advanced by appellant by brief and in argument by counsel on appeal. Appellant concedes that the statement made by appellant at the time of the arrest that he had gotten the pay telephone at a cafe was res gestae, but earnestly urges that the testimony of the officer as to the directions which appellant furnished while enroute to the cafe were not. We quote from the record:

“Q. You know or you asked him what happened?
A. He stated that he would show me the place. We turned around; we got on Bryan Street. He directed me to go west on Bryan Street.
Q. You went west on Bryan Street?
A. We went west on Bryan. He directed me to turn north on Peak Street. At that time we turned the corner he pointed to the cafe at 1407 North Peak.
Q. What direction did you turn on Peak?
A. We turned north on Peak Street from Bryan.
Q. And after you did that, what ?
A. He pointed out the cafe on the left side of the street, which is 1407 Peak Street.”

It was not until this juncture that any objection was interposed, and appellant’s trial counsel asked if he might have a full bill to the entire conversation. This Court has consistently held that an objection must be timely interposed in order to raise a question for review. Renfro v. State, 156 Tex.Cr.R. 400, 242 S.W.2d 772.

His next contention related to the officer’s testimony that he booked appellant at the jail for “investigation of burglary and theft, and investigation of County Vag.” Appellant’s counsel interposed a general objection immediately subsequent to the prosecutor’s question, “Do you recall what charges they were booked into jail on?” It is clear that the trial court properly overruled appellant’s objection because the officer might properly have answered, “For burglary.” When the answer was given appellant seemed to have been satisfied because he made no further objection and no motion to have the court instruct the jury not to consider the remainder of the officer’s answer.

His last contention is that reversible error is reflected by the prosecutor’s reference to the records of the Department of Corrections in the prior case alleged for enhancement as being the records of this defendant. The trial court told the jury, “Of course, you’re not bound by his (the prosecutor’s) statement of what it contains.”

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


author: WOODLEY, Judge.

text:
    Earl Curtis TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 38906.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied Feb. 16,1966.
    Z. D. Allen, John Bradshaw, Wichita Falls, for appellant.
    Stanley Kirk, Dist. Atty., Stanley M. Vickers, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery by assault; the punishment, enhanced by two prior convictions for felonies lets than capital, life.

Sentence was pronounced and notice of appeal was given on July 7, 1965.

No statement of facts accompanies the record.

The appeal is predicated upon the overruling of appellant’s Motion In Limine which requested the court to instruct state’s counsel not to inform the jury in any manner, either by reading from the indictment or offering any evidence, to the effect that the appellant had been previously convicted of other felonies.

Appellant’s able counsel concedes that the prior decisions of this court and of the United States Court of Appeals for the 5th Circuit are against his contention and are favorable to the state’s position, but argues that we should depart from these holdings and follow Lane v. Warden, 320 F.2d 179 (4th Circuit).

We do not agree. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, cert. denied, 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189, cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and cases cited; Howard v. State, Tex.Cr.App., 387 S.W.2d 387; Edwards v. State, Tex.Cr.App., 388 S.W.2d 427 (where, as here, there was no offer to stipulate as to the prior convictions alleged for enhancement); Sims v. State, Tex.Cr.App., 388 S.W.2d 714; Capuchino v. State, Tex.Cr.App., 389 S.W.2d 296; Ex parte Gomez, Tex.Cr. App., 389 S.W.2d 308; Stoneham v. State, Tex.Cr.App., 389 S.W.2d 468; Matula v. State, Tex.Cr.App., 390 S.W.2d 263; Conley v. State, Tex.Cr.App., 390 S.W.2d 276; Eldred v. State, Tex.Cr.App., 396 S.W.2d 142; Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393; Moses v. Beto, 352 F.2d 88 (5th Circuit); Taylor v. Beto, 5 Cir., 346 F.2d 157; and Breen v. Beto, 5 Cir., 341 F.2d 96, support the state’s position that the reading of the indictment and proof of the allegations as to prior convictions alleged for enhancement does not constitute a violation of due process.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Fred ROACH, Appellant, v. The STATE of Texas, Appellee.
    No. 39155.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    ' Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade, Harryette Bercu and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced by reason of two prior convictions for felonies less than capital, life imprisonment.

The state’s testimony shows that the prosecuting witness, W. M. Gardner, was the manager of a drive-in grocery store located at 3415 Oak Lawn Avenue in the city of Dallas. On February 19, 1965, Gardner left the store at 5 p. m., being relieved by an employee, Curley Washington. At 9 p. m., Washington closed the place and locked all doors. The following day when Gardner returned to the store at 5:30 a. m., he discovered that the building had been broken into and the place burglarized. Entry had been gained into the building through a window in a storeroom at the rear of the building. The window, which had been covered with plywood and mesh wire, was completely torn out. Inside the building a hole had also been broken through a wall between the storeroom and the main part of the building. Some fifteen cartons of cigarettes and other items, including lotion, shaving cream, razor blades, and chewing gum were missing from the building. In the investigation, by the officers, of the burglary, a button and a piece of cloth were found on a shelf to the left of the hole which had been made in the wall of the storeroom, inside the building.

It was further shown that at approximately 4:20 a. m. on the morning of February 20, 1965, Officers Vestal and Prich-ard, while on patrol in the 3100 block of Oakland Street, observed a man standing in “the shadows” of an alley. At such time, the man, according to Officer Vestal, was “adjusting his clothes or putting something into them * * * running his hands along on the inside of his clothes,” and, in the absence of the jury, he further stated that the man “was lingering around up in between the buildings and up in the alley, in the dark.”

The officers proceeded to make a U-turn and when they returned to the location the man was out in the street on the sidewalk. Officer Vestal got out of the patrol car and then went to the man, who was identified as the appellant, and searched him. In the search, ten bottles of shaving cream, some razor blades, matches, and a pair of yellow gloves were found in appellant’s pockets. After being searched, appellant was taken to the police car and left in custody of Officer Prichard. Officer Vestal then proceeded to the location where he had seen appellant standing in the alley by the side of the building, and there found two burlap bags full of cigarettes, shaving lotion, and cigars. Appellant stated at the scene that he had found the merchandise by the side of the building and had taken it out of the sacks and was going to try to sell it. He was then taken to the police station. At such time he was wearing a blue plaid cotton shirt which had several torn places on it, including a pocket that was torn and a piece gone from inside.

It was shown that certain scientific tests were made, in the city-county criminal investigation laboratory of Dallas County, of the shirt worn by appellant and the piece of material found near the hole in the wall inside the store which was burglarized, to determine if the two materials were identical. Lieutenant Floyd Alexander, whose qualifications as an expert were shown, testified that he made the various tests including microscopic, thread count and twist, and expressed his opinion that the piece of scrap material came from the pocket of appellant’s shirt. The witness further stated that the piece of material fit into the hole inside the pocket of the shirt which was torn.

Proof was made of the two prior convictions alleged for enhancement.

Testifying as a witness in his own behalf, appellant stated that on the morning in question, while on his way to a cafe, he saw the two sacks in the alley by the building; that he took some razor blades, lotion, and other items from one of them. He further stated that when the officers took his shirt at police headquarters the pocket was not torn.

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

Appellant insists that the court erred in admitting in evidence the fruits of an illegal search.

It is the state’s position that the search of appellant was made incident to a lawful arrest authorized by Section 37-5 of the Revised Code of Civil and Criminal Ordinances of the City of Dallas, which was introduced in evidence.

The ordinance enacted by the city of Dallas under the authority of Article 214, Vernon’s Ann.C.C.P., authorizes all policemen in the city to arrest without warrant any person found in suspicious places or circumstances reasonably tending to show that such person has been guilty of some felony or is about to commit some offense against the laws of the state or ordinances of the city.

We conclude that the circumstances under which appellant was observed, by the officers, standing in the alley at 4:20 a. m., were such as to authorize his arrest under the ordinance, without a warrant. Ringo v. State, 161 Tex.Cr.R. 93, 275 S.W.2d 121.

It is insisted that the evidence is insufficient to sustain the conviction.

We find the evidence sufficient. The proof shows a burglary of the building on the night in question. The scientific tests and comparison made of appellant’s shirt and the piece of material found in the burglarized building are sufficient to warrant a finding that appellant broke into and entered the building.

Fingerprints of an accused, which necessarily must have been made at the time of a burglary, have been held sufficient to sustain a conviction without further evidence of identification. Grice v. State 142 Tex.Cr.R. 4, 151 S.W.2d 211.

The facts and circumstances shown in the instant case are sufficient to exclude every other reasonable hypothesis except that of appellant’s guilt and to warrant his conviction upon circumstantial evidence.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Robert Earl DORSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38984.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Joe E. Turner (Appointed on Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Carol' S. Vance, Asst. Diát. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant entered a plea of guilty to the offense of rape. He was found guilty by a jury, and his punishment assessed at 50 years confinement in the Texas Department of Corrections.

Appellant and his counsel in open court expressly waived confrontation of witnesses.

The state introduced into evidence the sworn affidavits of Gladys Mae Washington, the 12-year-old prosecutrix, and Richard Jones, stepfather of the prosecutrix, as well as the written statement of appellant. No objection was made to the admission into evidence of these documents.

Appellant and his counsel, along with counsel for the state, stipulated to the following :

“That if the prosecutrix and her stepfather were present and testified under oath, each would testify in accordance with his respective sworn affidavit and further that the facts related in these affidavits were true; that if Officer G. C. Montgomery of the Houston Police Department were present and testified under oath, he would testify as to facts which would show that there was no irregularity in the taking of appellant’s written statement; that the facts related in appellant’s written statement were true; that if the prose-cutrix were present and testified under oath, she would testify that appellant did, in fact, place his private parts in her private parts; that she was a female person under the age of 15; that she was not the wife of appellant; and that this offense occurred in Harris County.”

The record reflects that on the night of October 25, 1963, appellant, 24 years old, had attended the grand opening of Carter’s Night Club, where he “had too much to drink.” After leaving the club he stopped at his apartment to change clothes and then went to his girl-friend’s house, where he made known his intention to have intercourse with her. The girl-friend, saying that he was “too drunk,” repelled his advances by threatening him with a knife, and told him to “get out of there,” which he did.

On that same evening, the prosecutrix and her stepfather had watched television, and both had fallen asleep while so occupied, with Mr. Jones, the stepfather, in the bedroom and the prosecutrix on the adjacent living room floor with the door between these two rooms left open.

The record shows that appellant and the family of the prosecutrix were acquainted, though probably not too well; that appellant had been in their house on several occasions; and that appellant had seen the prosecutrix in the neighborhood prior to this night.

After being rejected by his girl-friend, appellant was “just walking” when he passed a window in an alley through which he saw Mr. Jones sleeping in front of the television set. He then went around the house to the kitchen window, through which he entered after removing the screen. Once inside the house, appellant closed the door between the two rooms and shook the prosecutrix until she awakened. Holding a pocket knife against her throat, he ordered her to undress, then to lie down on the floor and when she had complied, appellant proceeded to have intercourse with her.

At this time Mr. Jones awakened and noticed that the door between the two rooms had been closed. When he opened it, he saw a man on top of his stepdaughter. The light of the television set illuminated the living room to the extent that the prose-cutrix was able, for the first time, to recognize her assailant, who jumped up as Mr. Jones entered, and ran out the kitchen door.

There are no formal or informal bills o£ exception. No objections or exceptions were taken to the court’s charge, and no motion for new trial was filed.

We find the evidence sufficient to support the jury’s verdict, Griffith v. State, Tex.Cr.App., 391 S.W.2d 428. Finding no reversible error, the judgment is affirmed.