text:
    Bobby Wade DARK, Appellant, v. The STATE of Texas, Appellee.
    No. 39693.
    Court of Criminal Appeals of Texas.
    June 15, 1966.
    Rehearing Denied Oct. 12, 1966.

      Robert E. White, John Y. Cassell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, E. John Emmett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for an aggravated assault upon a police officer; the punishment, two months in jail and a fine of $200.

Judgment was rendered on May 4, 1965, and notice of appeal given by appellant on June 18, 1965.

Officer Johnny Duncan Steinsick, the injured party, testified that he was employed as a patrolman for the Mesquite police department; that on the night in question, while on duty and in uniform and writing a speeding ticket, he received a radio call to go to apartment #46 of the Hilltop Arms in Mesquite; that in response to the call he proceeded to the address of the apartment and was met downstairs at the front by Cathy Dark, a young girl twelve years old, who, at the time, was screaming and hysterical; that after a conversation with the girl he followed her upstairs to apartment #46 and entered after she opened the door and invited him in; that after he entered the apartment he observed appellant standing in a doorway; that he asked appellant what the trouble was and appellant replied: “ ‘There is no trouble here’ ”; that appellant’s wife then called from another room and said: “ ‘Officer, please come up here’ ”; that he then went with appellant and Officer Sprague, who had arrived upon the scene, into a bedroom where appellant’s wife was; that when they entered the room the wife stated that when she came home from work at 11 o’clock she found appellant drunk and that “he started beating on her and that she wanted him out of the apartment.” Officer Steinsick stated that when he asked her if she would sign a complaint and she said: “‘Yes,’” the appellant then hit him with his right fist and broke his nose. After striking him on the nose, appellant tried to again hit the officer but the blow was partially blocked and landed on Officer Sprague, who had come to his rescue. A struggle then ensued between appellant and the two officers which ended in the living room when appellant was finally subdued and handcuffed while lying on the floor.

Officer Larry J. Sprague, of the Mesquite police department, testified that in response to a disturbance call he went to the apartment on the night in question, arriving at about the same time as Officer Steinsick. Officer Sprague testified that he and Officer Steinsick were met by the young girl and admitted into the apartment by her, and corroborated Officer Steinsick’s testimony relative to the events and the assault thereafter committed by appellant upon the injured party.

Testifying in his own behalf, appellant stated that on the night in question he had been drinking and that he and his wife did have a difficulty but not of a serious nature. He testified that he first saw the officers in the living room of the apartment and his daughter standing behind them and that after they had gone to the bedroom he said to the officers: “ ‘Just don’t touch me and I will go with you,’ ” and Officer Steinsick then “reached up and took me by the shoulder” and “Then I hit him.” Appellant stated that he was not afraid of the officers and swore, in substance, that — at the time — he was protecting his home and family.

Cathy Dark, appellant’s stepdaughter, upon being called as a witness, testified that it was she who called the police but that it was one of the officers, and not she, who opened the door to enter the apartment.

In submitting the issue of appellant’s guilt to the jury, the court instructed the jury on the right of appellant to use such force as was reasonably necessary in preventing or interrupting an intrusion upon the lawful possession of his property.

By their verdict of guilty, the jury rejected appellant’s defensive testimony.

We find the evidence sufficient to sustain the jury’s verdict, and overrule appellant’s contention that his conviction cannot stand because it is based upon evidence illegally obtained as the result of an unlawful entry and search of his home and his subsequent illegal arrest without probable cause and benefit of an arrest or search warrant.

No evidence was introduced against appellant that was obtained as the result of an arrest or search.

By bill of exception # 1, appellant complains that the court erred in making a certain comment in the presence and hearing of the jury while discussing a requested charge presented by appellant.

The bill was approved by the court, with the qualification that the court “refuses to certify that such discussion was made in the hearing of the jury.” The bill, as qualified, does not present error.

By bill of exception # 2, appellant complains that the court erred in refusing his special requested charges # 1 through # 5.

Requested charge #1' was an instruction to the jury relative to appellant’s right to control and protect his property and use all necessary and reasonable force to prevent an unlawful intrusion thereon. The refusal of such instruction was not error, in view of the instruction given by the court on the subject in the main charge. 31 Tex.Jur.2d 541, Sec. 32; Bond v. State, Tex.Cr.App., 345 S.W.2d 520; Clayton v. State, Tex.Cr.App., 361 S.W.2d 385.

Requested charges #2, 3, and 4 were instructions relative to arrest and search and were not warranted under the testimony.

Requested charge #5 was an instruction on the right of appellant to act in self-defense.

Such defense was not raised by the evidence, as appellant swore that at the time of the assault he was not afraid of the officers.

Certain purported objections to the court’s charge appearing in the transcript are shown by the certificate of the trial judge not to have been presented to the court in writing prior to the time the charge was read to the jury, as required by Art. 658, Vernon’s Ann.C.C.P., and they therefore present nothing for review. Howell v. State, Tex.Cr.App., 352 S.W.2d 110; Reyes v. State, Tex.Cr.App., 388 S.W.2d 433.

By formal bill of exception #3 appellant insists that the court erred in permitting Officers Sprague and Steinsick to relate certain statements made by appellant’s wife on the night in question, in violation of Art. 714, C.C.P.

We find no error in the bill, as the court correctly admitted the testimony showing the wife’s statements, under the rule of res gestae. Johnson v. State, 95 Tex.Cr.R. 269, 252 S.W. 554.

By bill of exception #5, appellant complains of certain jury argument of state’s counsel when in his closing argument he stated that the ‘defendant would be in the brig if he were in the Marines now.’ ”

The bill, as qualified by the trial judge, certifies that prior to the closing argument, counsel for appellant “had discussed the defendant’s service in the Marines where he had then learned the lesson of protecting his Country and protecting his Home” and that the court overruled appellant’s objection. We perceive no reversible error in the bill, as the argument appears to have been in response to argument of appellant’s counsel.

Other contentions presented by appellant have been considered and are overruled.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Roland SIMON, Appellant, v. The STATE of Texas, Appellee.
    No. 39636.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.

      Lipscomb Norvell, Jr., Phillip Bordages, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Beaumont, John R. DeWitt and Wendell C. Radford, Asst. Dist. Attys., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is murder with malice; the punishment, 30 years in the penitentiary.

It is undisputed that appellant stabbed David “Priest” Comeaux during a crap game following an argument as to whether or not the deceased had “made his point”, and that the deceased bled to death as a result of the stab wound. It was appellant’s contention that he stabbed the deceased in self-defense.

The facts, briefly summarized from testimony including that of three eye-witnesses, are that the dice game was held in the home of witness Richard Overton, with appellant, his brother, Joseph Simon, several others, and the deceased participating. Shortly after the game began, an argument erupted between the deceased, who was rolling the dice, and Joseph Simon, who had bet money against him. A brief scuffle ensued which terminated short of a fight, and it was the general feeling that the argument was “all over with,” when appellant pulled a knife from his pocket and advanced toward the deceased. He was restrained, first by Overton, the host, then by his brother Joseph, who pleaded with him not to cut the deceased. Appellant broke away and charged into the deceased who was unarmed and who was backed up against the wall with his hands down at his sides. Appellant pushed the knife into the deceased’s groin and “pulled up,” apparently severing the femoral artery. The victim died in a very short time.

Appellant testified, and contended that he killed the deceased because “he attempted like he was getting his knife, you know, and coming towards me,” and that he (appellant) “just met him.” The gist of his testimony was that he was singularly sensitive concerning the protection of his person because he “had been getting cut pretty regular.” As examples, he testified as to skirmishes during the preceding month in which he had been slashed on his right arm with a hatchet, stabbed in his hand, and cut in his mouth with a knife. He related that it had been necessary to subdue one of his assailants with a two-by-four. On direct examination appellant testified that he had been convicted of burglary in 1963.

The jury, charged on the issue of self-defense, rejected appellant’s theory, and the evidence is clearly sufficient to support the conviction.

On motion for new trial, appellant re-urged his exception taken to the trial court’s action in restricting the scope of appellant’s voir dire examination of prospective jurors. Specifically, he alleges that the court refused to allow him to ask each member of the panel whether or not that prospective juror thought that a person unlawfully attacked had a moral duty to retreat to avoid the necessity of killing his assailant.

Appellant propounded the question to only four jurors, none of whom served on the jury, and appellant makes no effort to show that he was forced to accept an objectionable juror because of the trial court’s ruling. We further note that appellant and the state stipulated that the following statement is true:

“Each prospective juror was examined on individual voir dire examination. On such examination, whenever counsel for either side desired to qualify the juror on the law of self-defense, the Court, at all times, permitted counsel to state the law of self-defense (including the right not to retreat) to each such juror and then to inquire of the juror whether he had any prejudice against such law and whether he would follow it if the Court so charged him that it was the law.”

We find no error in the trial court’s action of overruling appellant’s motion for new trial based on this point of error. Clowers v. State, 146 Tex.Cr.R. 1, 171 S.W.2d 143; Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855.

By informal bill of exception, appellant challenges the admission into evidence of two written statements of the witness Over-ton. The following is an excerpt from the record:

MR. NORVELL (Counsel for appellant): “Your Honor, we object to that written statement being introduced in evidence. He cannot introduce statements he has made sometimes in the past.”
MR. DEWITT (Prosecutor) : “Does the Court need me to state the law on that proposition ?”
THE COURT: “Let him finish the objection.”
MR. DEWITT: “Oh. All right. Yes, sir.”
MR. BORDAGES (Appellant’s other counsel): “Your Honor, we waive any objection. We would like to have it in. We request that * *
THE COURT: “Admitted.”

The record shows that Attorney Bordages was appellant’s counsel, and when a similar controversy arose at another point in the trial, appellant expressly stated that he placed the responsibility of his trial on Mr. Bordages. Error, if any, in the admission of Overton’s two written statements, was waived.

The state called as a witness Joseph Simon, brother of appellant, and after a very brief examination of that witness, tendered him to appellant for cross-examination, which offer was declined by counsel for appellant. In its opening and closing argument, the state alluded to this fact, arguing that if appellant’s version of the facts were correct, why had his brother not been asked to verify and support the fact that appellant acted in self-defense. Appellant contends that “(t)he argument of the prosecutor violates the fundamental rule that an attorney can not argue, comment, speculate on alleged facts not in evidence.”

The argument to which appellant objects was not speculation as to what testimony that witness would have given, but was rather an inference that his testimony, whatever it may have been, would be unfavorable to appellant. While un-sworn testimony by counsel during argument as to what a witness would have testified to is inadmissible as hearsay, the failure to produce readily-available evidence is a subject properly commented upon by the opposing party. See cases collected in Texas Digest, Criminal Law Section 721½ (1) and (2); see also Texas Law of Evidence, McCormick and Ray, Section 439; 56 Tex.Jur.2d 597, Trial Sections 259-265; Annotation at 5 A.L.R.2d 893; 23A C.J.S. Criminal Law § 1099, p. 174.

We likewise find no reversible error in appellant’s other obj ections to the argument of the prosecution.

Appellant contends that the trial court reversibly erred in allowing the state to introduce into evidence State’s Exhibit No. 3, the written statement of witness Preston Williams, over the objection of appellant.

Even if we were to hold that the trial court erred in admitting the statement, such error could not be considered prejudicial to appellant. There is overwhelming evidence found elsewhere in the record, including very similar testimony of three witnesses to the killing, which would render harmless any error in the reception of the statement in evidence. Johnson v. State, Tex.Cr.App., 378 S.W.2d 76.

The unsworn argument of counsel for appellant and the state is not evidence, and the trial court properly refused the jury’s request, during deliberations, for a written copy of the summations.

Appellant’s remaining informal bills of exception present no reversible error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Willie ROSS with Alias, Appellant, v. The STATE of Texas, Appellee.
    No. 39711.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    Marvin O. Teague (On Appeal Only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery with a prior conviction for burglary with intent to commit theft alleged for enhancement; the punishment, life.

Trial was begun on December 5, and judgment was rendered on December 6, 1965. The order overruling appellant’s motion for new trial in which notice of appeal was noted was dated January 28, 1966. Appellant did not comply with Sec. 9 of Art. 40.09, Vernon’s Ann.C.C.P. (1965) in that he did not file his brief in the trial court pointing out the grounds of error of which he desired to complain on appeal.

We have concluded that the following questions raised in his brief filed in this Court should be considered as unassigned error under Sec. 13 of Art. 40.09, supra (1965) because of the above sequence of events.

He claims that the prior conviction alleged for enhancement was void because it assessed his punishment at not less than two years nor more than three years. No sentence in said cause accompanies the record before us.

We have concluded that the holding of this Court in Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219, wherein this Court distinguished the majority of the cases relied upon by appellant is directly in point and authorizes the overruling of appellant’s contention.

Appellant next contends that he was deprived of due process because the indictment which was read to the jury contained reference to the prior conviction and proof was adduced as to the same. As stated, trial was had in this cause on December 5, 1965, and until the United States Supreme Court holds to the contrary, we abide by our decision in Taylor v. State, 398 S.W.2d 559, and the cases there cited, in all cases which were tried prior to the effective date of the 1965 Code of Criminal Procedure.

We have reviewed the record in its entirety and have concluded that the other contentions attempted to be raised in this Court on appeal do not merit discussion.

Finding no reversible error, the judgment is affirmed.


text:
    Ex parte George H. GREENE, Jr.
    No. 39658.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    W. C. Wiebusch, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Richard DeGuerin, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order in a ha-beas corpus proceeding in which appellant was remanded to the custody of the Chief of Police of the City of Houston.

The avowed purpose of this proceeding is to test the sufficiency of the complaint upon which appellant has not yet been tried and to test the form of the bail bonds required by the City of Houston.

In Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84, 57 A.L.R. 82, Judge Hawkins speaking for the Court said:

“In the present case the effort is to have this court declare in a habeas corpus proceeding that a particular information fails to charge the violation of a law, the existence of which is not questioned.
Whatever may be the rule in other jurisdictions it seems to be the settled policy in this state not to permit resort to habeas corpus proceedings primarily for the purpose of testing the sufficiency of a complaint or indictment in advance of a trial in the lower court.”

Later in Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870, this Court said:

“This court is not a jury, nor is it a nisi prius court. Every question that is here presented could and should be first presented to a trial court upon the support of competent testimony, and from the decision of such trial court, if unsatisfactory, an appeal could be had to this court, which could then pass upon the law and the testimony heard by the trial court.”

See also Article 11.45, Vernon’s Ann.C. C.P.

The judgment remanding appellant is affirmed.


text:
    Julia Sillera RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. 39680.
    Court of Criminal Appeals of Texas.
    June 25, 1966.
    Rehearing Denied Oct. 19, 1966.
    Leonard C. Kahn and Adolph Uzick, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Rough and Tom Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, 15 years.

In view of our disposition of this case a recitation of the facts is deemed unnecessary other than to state that it was appellant’s defense that she shot her husband in self defense after he had physically abused her throughout the night. The State called Officer Perry, who testified that he went to the scene of the homicide and there talked with appellant and her daughter. He was asked if he had a conversation with appellant and if he had asked her about how the deceased received his injuries. When appellant’s counsel objected and asked to examine the witness on voir dire, the jury was retired and the witness testified that appellant had made the statement, “He choke, I shoot.”

At this juncture the appellant’s counsel withdrew his objection and the jury was recalled. The State continued its examination of the witness, but having received an unfavorable answer, made no further reference to the officer’s conversation with appellant. On cross examination of Officer Perry appellant sought to elicit the testimony which the witness had given in the jury’s absence, but the court sustained the State’s objection thereto. In this, we have concluded, the court fell into error which deprived the appellant of valuable self defense testimony. The case most nearly in point to which appellant has called our attention is Trammell v. State, 145 Tex.Cr.R. 224, 167 S.W.2d 171. Since the State made the first inquiry about appellant’s report of how the homicide had occurred, the appellant was entitled to develop the testimony fully.

Trammell v. State, supra, authorizes a reversal of this conviction. The judgment is reversed, and the cause is remanded.


author: BELCHER, Commissioner.

text:
    Eugenio MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 39719.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.
    Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary; the punishment, three years.

The appellant and his counsel and the state’s attorney in writing waived a trial by jury which was approved by the trial court. Upon pleading guilty, the appellant was duly admonished by the court as to said plea before it was accepted.

Jimmy Toone testified that he owned and operated a grocery store which he closed on August 2, 1963, and the next morning he found that entrance had been gained into the store building by forcibly removing some tin at the rear of the building; and that over fifteen hundred dollars in money was taken from the building which was entered without his consent.

Deputy Sheriff Ingram testified that his investigation revealed that entrance to Toone’s store building had been effected by the removal of some tin from the building; that during his investigation he apprehended the appellant; that on August 20, 1963, the appellant made to him a written statement pertaining to the burglary of Toone’s store; that he warned the appellant of his right not to make a statement and that it could be used against him; that no inducements were offered or threats made to obtain it, and that he voluntarily made and signed the statement.

Omitting the formal parts the following portions of appellant’s written statement was introduced in evidence without objection:

“On August 2, 1963 I met Bill Rudy and Arturo Villalobos at the park near the Earl Bell School around 10 P.M. We went to the Cory Penn Station in the east end of Pecos and homed Pete Villalobos’ pickup. We then went to The Toone’s Grocery Store, on west highway 80. I was driving the truck. We used a screwdriver to pull the tin loose on the back of the store. We all went into the store. We got the money from a desk in the front part of the store. The money was in a drawer of the desk, also we got some money out of a cash register. Most of the money was in pay envelopes. We left the store and went to Bill Rudy’s house on worth Oak street and split the money. I then took the pickup back to Pete and went home. I got about $280.00 for my part. Most of my money was spent on clothes. The Saturday after the robbery Bill bought a car and we went to Ojinaga, Mexico. We spent a lot of the money there.”

The appellant testified in his own behalf, and his testimony during his examination by his attorney is in part as follows:

“Q You understand that you do not have to testify?
“A Yes, sir.
“Q And you understand that no power on earth can make you testify against yourself unless you are willing to ? Do you understand that ?
“A Yes, sir.
“Q. Are you taking the Stand freely and voluntarily after talking with me as your attorney because you think that is the best thing to do ?
“A Yes, sir.
“Q All right. Now, you heard Mr. Archer read the statement you gave Mr. Ingram, is that true?
“A Yes.
* * * * * *
“Q Now, you were given a suspended sentence in 1958 which has run out. If the Court should extend mercy to you in the way of the length of your sentence, do you promise that when your time is over down there that you can and will straighten out and make a good citizen?
“A Yes, sir.
* * * * * *

On cross-examination the appellant testified as follows:

“Q You are telling the Court here that you with these other two boys, Bill Rudy and Arturo Villalobos went into the Toone Grocery and broke in, is that right ?
“A Yes, sir.
“Q You did not have permission to do that, did you?
“A No, sir.
“Q You did take part of the money?
“A Yes, sir.
“Q And what was read in the statement is true and correct?
“A Yes.”

The trial was had and the judgment entered by the court on the plea of guilty on October 27, 1965.

The record shows that the following proceedings were had in the trial court on January 15, 1966:

“Appellant’s Attorney: The Motion for New Trial was filed on November 2nd, 1965, and was overruled by operation of law on December 2nd. He received three years before the Court.
“The Court: Yes, he plead guilty before the Court and the Court assessed the three years according to my docket notation. The Court calls at this time the State of Texas vs Eugenio Morales, Cause No. 2717, on the Criminal Docket of the District Court of Reeves County.
“Eugenio Morales, your Motion for New Trial having been filed in this cause on the 2nd day of November, 1965, and having been overruled as a matter of operation of law on December 2nd, 1965, do you have anything at this time to say why sentence should not be pronounced against you? You are here with your attorney and you realize what you are doing ?
“The Defendant Eugenio Morales: Yes, sir.
“The Court: Very well. The Motion for New Trial having been overruled by operation of law and the Court having heard nothing in bar of sentence, the Court proceeds to pronounce sentence against the Defendant Eugenio Morales.”

Notice of appeal was given on January 15, 1966.

For reversal, the appellant’s sole contention is that he was not afforded counsel when arrested, nor advised of his right to counsel before he made the written statement, and that therefore his statement was not admissible in evidence.

In the light of appellant’s plea of guilty and his judicial admissions while testifying on examination by his own counsel that he and his two companions forcibly entered the store without consent and took the money therefrom, and that his written statement made to Officer Ingram which was introduced in evidence was true, his contention does not reveal error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    William Joseph BOARD, Appellant, v. The STATE of Texas, Appellee.
    No. 39684.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.

      Irwin & Scales, by George W. Irwin (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., David Johnson, Michael N. Buckley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is aggravated assault upon a peace officer (Art. 1147(1) Vernon’s Ann.P.C.) ; the punishment, 2 years in jail and a fine of $1,000.

Appellant’s amended motion for new trial was overruled and notice of appeal was given on December 17, 1965.

Reversal is sought upon the ground that the evidence is insufficient as a matter of law to sustain the conviction and the ground that appellant was denied a fair and impartial trial “by a highly prejudicial and inflammatory argument of the district attorney which necessarily caused prejudice and prevented justice under the record in this cause.”

The complaint and information alleged that the assault was committed upon I. E. Shelton, a police officer of the city of Dallas, then and there being in the lawful discharge of said office and the defendant then and there being informed and knowing that I. E. Shelton was then and there an officer discharging an official duty.

Ivan E. Shelton, the injured party, had been a police officer of the City of Dallas for nine years. On the date alleged in the indictment he was attached to the Special Service Bureau and was on duty in the Glendale Park Area in plain clothes and under written orders from the Chief of Police to investigate and check on homosexual activities in said park.

About 11:55 A.M. Officer Shelton and his partner, Samuel E. Ozment, who was also in plain clothes, were at a table in the southwest corner of the parking area when appellant drove up in a 1965 Sports Special white Chevrolet and parked.

The officers did not know appellant, or know who the driver of the car was, and appellant had no idea that the two men that were at the table were officers.

Officer Shelton testified that appellant nodded at him a couple of times and smiled.

Both Shelton and appellant testified that, after appellant parked his car and Shelton left his partner at the bench and was walking toward the car, appellant motioned for Shelton to get in the car, and he did so.

Shelton’s testimony was that after he got in the car he asked: “What are we going to do?” Appellant replied: “Let’s go to my house” (or “my home”). Shelton said: “What are we going to do whenever we get there?” At that time appellant placed his hand on Shelton’s privates and Shelton knocked his hand away, took his badge out of his back pocket, told appellant that he was a police officer and said: “You are under arrest”; took the car keys; stepped out of the car and motioned for his partner to come.

Officer Shelton demonstrated before the jury how he had exhibited his badge and identification card at the time he told appellant he was under arrest.

Appellant attempted to get out of the car on the passenger side and Officer Shelton told him to keep his seat.

Officer Shelton got back in the car and appellant knocked or kicked him out and he fell to the ground.

Appellant got out of the car, grabbed the car keys and kicked Officer Shelton “on the right shin and the left thigh, and the groin” and he went down again.

Appellant got back in the car and was trying to start it when Officer Ozment came to the driver’s side of the car, reached in and grabbed appellant who, in turn, grabbed Officer Ozment by the throat. In the struggle Officer Ozment’s pistol was discharged.

The two plain clothes officers did not succeed in subduing appellant until a uniformed officer arrived and assisted them. He also was assaulted by appellant.

The record reveals that appellant is deaf, a fact which the officers did not know at the time he was arrested. He had lost his hearing at the age of two, and was in the State School for the Deaf in Austin from 1938 until 1952. He used both speech, pad and pencil and lip reading as a means of communication. Officer Shelton testified that he noticed an impediment or defect in his speech and did not learn he was deaf until they got to the police station. On the day in question appellant was employed at a Dallas bank.

Appellant’s testimony was that Shelton asked him “What did he want” and how far his home was, and he told him “two miles” and asked Shelton “Do you want to see my forks and spoons in the trunk?”

He testified that he felt maybe the man did not understand what he was saying and he pushed him back, reaching to get a notebook which was in the glove compartment on which to write and explain about the forks and spoons he was selling, but the man got mad at that time and pushed his hand away and reached for the keys. He (appellant) grabbed the keys and while both were holding them Shelton pulled him out of the car.

Appellant denied that Shelton exhibited a badge and identification before he took the keys, and testified that he fought over the keys because he thought the man “was a gangster of some sort,” and that when the second man came to the car and had a pistol and brass knuckles he thought he was “a gangster of some sort” and he was “very scared” and tried to turn on the engine switch. He further testified that Ozment “had the gun down in the steering wheel and shot,” and after that he (appellant) “lost his memory and was fighting with them and doesn’t know what happened after that.”

Appellant’s testimony was that he pushed Shelton “on the chest” and he did not remember placing his hand on the man’s privates; that his only purpose was to move him back to reach for a notebook that was in the glove compartment.

On cross-examination he further testified that he did not want to go near the man when he was sitting at a table because there were two men waiting at the rest room when he came up and he felt afraid. He did not want to get near the rest room, he wanted to get farther away.

Appellant also testified that he was charged with, tried and convicted and received a 5 year suspended sentence for sodomy on September 15, 1961.

The assault relied upon by the state was that which was committed upon Officer Shelton after appellant was told that he was under arrest.

The acts of the appellant which led to and were the cause of his arrest were those which culminated in the placing of his hand on the privates of Officer Shelton, which constituted an assault, Art. 1138 P.C., and a breach of the peace.

Viewed in the light most favorable to the jury’s verdict, the evidence is sufficient to sustain the allegations of the information and the jury’s findings and to show that Shelton was a police officer in the discharge of his duties as such; that the assault was made upon him after he informed appellant that he was such an officer and was made as an interruption of the officer’s official duties in lawfully arresting appellant.

The evidence is sufficient to support a finding by the jury that appellant was informed and knew Shelton was an officer discharging an official duty when he assaulted him, kicked or knocked him out of the car and fought him for the car keys.

Appellant’s contention that the evidence does not show interference with a lawful act of the officer is overruled.

Appellant complains of certain remarks of counsel for the state in his opening argument to the jury. To some of such remarks no objection was made.

Counsel argued: “On June 2nd, 1962 it was a Dallas City Vice Officer; what if it had been your children or mine or your neighbor’s children?” To which appellant made the objection:

“Your Honor, I’m going to object to the reference to perversion and I feel that this is an improper drawing of conclusions from the evidence presented, and also, it’s immaterial, because he is not charged with any other activity other than assault in this case on a police officer.”

The court’s ruling, to which appellant excepted, was:

“Well, as long as the District Attorney limits its to his deduction from the evidence, I’ll overrule you. But if he makes it as a positive statement, well, make your objection and I’ll sustain it.”

Complaint is also made to the closing argument of the state wherein the assistant district attorney argued:

“I’d like to talk just a few moments about what type of defenses were offered by the defense attorney. You first found that the defendant drove into the park and saw two men over by the portable bathroom, and one man sitting on a park bench. Why didn’t he stop then, or why didn’t he stop after he first waved at the police officer? He said he was scared. Well, I submit to you, ladies' and gentlemen, that he was scared. He had been arrested before, and he knew that this might possibly be some police officers because he went into that park for only one purpose.”

Appellant’s trial counsel objected without stating any grounds and the court sustained the objection.

The informal bill of exception is insufficient to show that appellant was denied a fair and impartial trial by reason of the argument of counsel for the state and is overruled.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Clovis BACA, Appellant, v. The STATE of Texas, Appellee.
    No. 39718.
    Court of Criminal Appeals of Texas.
    June 22, 1966.
    Rehearing Denied Oct. 19, 1966.

      Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Appellant was convicted, upon his plea of nolo contendere and waiver of trial by jury, of the offense of hog theft and his punishment was assessed at confinement in the penitentiary for two years.

Judgment was rendered on October 27, 1965, and notice of appeal was given on January 15, 1966, when sentence was pronounced by the court.

The record on appeal was prepared under the provisions of the 1965 Vernon’s Ann. Code of Criminal Procedure.

Appellant’s sole ground of error urged on appeal is that the state failed to prove ownership of the stolen hogs, as alleged in the indictment.

The indictment alleged ownership of the two stolen hogs in Joe Knust.

At the hearing on appellant’s plea, proof was offered by the state that on the night in question the appellant and two companions, while acting as principals, went to the Davidson Feed Pens, in Reeves County, and took two hogs without consent of the owner.

The prosecuting witness, Joe Knust, in whom ownership of the hogs was alleged, testified that on such date he was employed by the Davidson Feed Pens as manager in charge of its operations and that he gave no one permission to take the hogs.

The testimony of the prosecuting witness was sufficient to sustain the allegation of ownership in the indictment. Art. 402, C.C.P. of 1925 (Art. 21.08, 1965 Code), provides, in part, as follows:

“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either * *

See: Ritchie v. State, 171 Tex.Cr.R. 51, 344 S.W.2d 878.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Richard ZAPATA, Appellant, v. The STATE of Texas, Appellee.
    No. 39287.
    Court of Criminal Appeals of Texas.
    June 15, 1966.
    Rehearing Denied Oct. 12, 1966.

      Arthur L. Lapham, Victoria, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary; the punishment, six years.

Leon Smith testified that while he, the appellant, and Hector Castenada were in a tavern in Victoria on September 20, 1964, the appellant first mentioned burglarizing Wagner’s Hardware Store in Cuero, and after discussing it they went in appellant’s car to his house in Cuero, where he drew a plat of the interior of the store, explained the best method of entry and how to prevent discovery from the street, and if any rifles were taken from the store he could sell them and they would, divide the money three ways; that all three had agreed to burglarize the store and get the rifles but had set no time; that after about one hour, he alone, went to Wagner’s Hardware Store and by force opened the back door, and returned to appellant’s house and told him and Castenada that he had gained entrance through the rear door of the store; that appellant said he would stay home and get some oil and blankets to protect and wrap the rifles, then appellant took him and Cas-tenada near the store and returned home; that Castenada stood watch and he entered the store and moved the rifles to a place just inside the rear door; that they returned to appellant’s house, “borrowed” his car and went back to the store, put 22 or 23 rifles, 6 pistols, several rifle scopes, and some ammunition in the car, and again returned to appellant’s house, showed him what they had taken from the store, and appellant began driving because he had said he knew where to hide the rifles until they could be sold, and they first drove by appellant’s parents’ home where he got a blanket to wrap the rifles; that they hid the loot in a gravel pit after each of them had taken two guns; that appellant then drove him and Castenada to Castenada’s rooming house in Victoria and they got out, taking their rifles, and appellant left for home taking one or two pistols with him; that he and Cas-tenada were arrested the next day and the officers took the guns they had.

Hector Castenada was called as a witness by the state, and his testimony is substantially the same as that of Leon Smith.

Sheriff Dietze testified that during his investigation of the burglary of Wagner’s Store he talked with the appellant and on going to appellant’s house he gave him two pistols, and then the appellant directed him to a gravel pit where they recovered over twenty rifles and some ammunition; that from information given him by the appellant he arrested Smith and Castenada and from them he recovered two rifles, a rifle scope and some ammunition; and that the appellant later made a written statement pertaining to the burglary.

Officer Dreyer testified that while on patrol shortly after midnight on September 21, 1964, he saw a car which he then recognized as appellant’s in an alley near Wagner’s Hardware Store in Cuero.

Bob Wagner, manager of the hardware store, testified that he closed and locked the building September 20, 1964, and on the next morning he found the store had been forcibly entered, and all the rifles and pistols except those in the display window were missing, and also three rifle scopes and some ammunition; and that he did not give anyone his consent to break and enter the store building and take anything therefrom.

Proof was offered that the appellant made and signed a written statement after being warned in accordance with the provisions of the statute in effect at the time. Omitting the formal parts it reads as follows:

“On Monday night, Sept. 21, 1964, Leon Smith, Hector Castanado and I were in Victoria drinking beer and we 3 talked about the possibility of breaking into Wagner Hardware itore in Cuero, Texas and stealing some guns and ammunition and the safe that was in the store. Then we three drove back to Cuero and ate supper at my house. We talked some more about burglarizing the Wagner Hardware Store in Cuero and I drew a sketch of the store showing where the guns were kept and where the safe was kept. I told them that I knew where I could sell the guns if they stole them. Awhile later Leon Smith took a walk and went to town and then later came back and told Hector Castanada and I that he’d broken the back door to Wagner Hardware and had moved most of the guns back near the back door so they would be easier to load into the car. So then I took Hector Castanada and Leon Smith back to town in my car and dropped them off at the intersection of Main and Esplanade Streets ⅛ Gucr-⅛; near the Wagner Hardware Store.- stop sign near the Victory Cleaners and the tin shop which is back of Wagner Hardware Store. When I dropped them off I knew that they were going to get the guns at Wagner’s and I drove on back home and waited for them. After awhile they came back and wanted my car so they could put the guns in my car that they’d stolen out of Wagner’s so I let them have my car. After they, Leon Smith and Hector Castan-ada, had been gone awhile with my car they came back and had about 26 rifles, 5 to 6 pistols, ammunition, scopes and rifle slings with them in the car. Leon Smith and Hector Castanada were afraid that the officers had seen them and asked me to tell the officers, if they contacted me, that my car had been stolen and that I had been home in bed with my wife all night and I told them I would. I drove off with Hector Castanada and Leon Smitw in my car with all the guns and ammunition in it that had been stolen from Wagner’s Hardware in Cuero, Texas. I drove by my mother’s house and got a couple of blankets to wrap the guns in and then we drove off to find a hiding place and we ran out of gas and had to hide the guns in the weeds off the road till we could walk back to town and buy some gas at the Gulf station and Mr. Quintirro waited on us. After we put the gas in my car then we three drove to Victoria in my car and we went to Victoria on a back road through Arnecke-ville so the police would not see and stop us and find us with the stolen guns and stuff in my car. We went to some gravel pits south of Victoria and hid the guns in some weeds and bushes. After I had been caught I took the officers and showed them where we had hidden the guns so they could find the stolen guns. When we hid the guns in the gravel pits near Victoria that night Hector Castanada and Leon Smith each took a rifle and pistol apiece and I took 2 pistols and we left the rest in the brush and weeds where we had hidden them. I told Hector Castanada and Leon Smith that I would get the guns later and sell them and then meet them in Larado and we would split the money and then go to Mexico with the money so we wouldn’t get caught. I took Hector Cas-tanada and Leon Smith to Hector’s apartment in Victoria and left them with the guns that they’d each held out of the bunch of guns that we’d hidden at the gravel pits and then I drove on back to Cuero with the 2 pistols that I had from the Wagner Hardware ¿tore burglary. When I finally got back to Cuero, it was daylight on the morning of Sept. 22, 1964. That same morning some of the officers came out to my house and talked to me and I admitted what had been done and gave them back the two pistols I’d gotten and then took the officers to Victoria and showed them where we had hidden the guns in the gravel pits.”

Testifying in his own behalf, the appellant’s testimony was, in substance, the same as that offered by the state. He admitted that he was the first one of the three to mention committing the burglary but that he soon changed his mind and only went through with the plans after he was told of the burglary out of fear of the other two; that he told the sheriff where the merchandise was hidden and aided in its recovery and he also revealed where the other two men could be apprehended. Further, he admitted that he was warned as shown in his written statement introduced by the state.

Reversal is sought because of the admission in evidence of other and extraneous crimes by the accused.

There was testimony of and reference to other offenses committed by the accused which was admitted without objection. The specific objection set out in appellant’s brief gave no grounds to support it or for the mistrial requested. This contention presents no error.

Appellant contends that the evidence shows only that he was an accomplice and not a principal offender.

In considering all the facts and circumstances it is concluded that the evidence is sufficient to support the conviction of the appellant as a principal in the commission of the burglary as alleged.

Complaint is made of the attempt by the state to introduce the written confession of the witness Castenada.

The only written statement of the witness Castenada appearing in the record was introduced in evidence by the appellant. In face of the record the complaint presents no error.

In appellant’s brief he contends that the sheriff had promised him safety if he cooperated and while still under such mental process he gave a statement.

In light of the appellant’s testimony that he was warned as shown in the written statement which was made in accord with the statutory requirements in effect at the time, the recovery of the loot at his direction by the sheriff, and the disclosure of of the whereabouts of his companions, no error is presented.

The other matters complained of during the trial but not briefed have been considered and do not reveal error.

Notice of appeal was given on June 25, 1965.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

DISSENTING OPINION

MORRISON, Judge.

I cannot bring myself to agree that this appellant was shown to be a principal to the burglary. All of the evidence shows that at the time the burglary was being committed, appellant was not doing anything in aid of the commission of the crime. This Court in Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174, had occasion to point out that unless the accused be then actually doing something which associated him with the execution of the unlawful act at the very time it is done, he would not be a principal. See also Volume I, Vernon’s Ann.P.C., p. XIII.

I respectfully dissent.


author: PARKER, Justice.

text:
    Charles R. HALEY, Jr., et ux., Appellants, v. The STATE of Texas et al., Appellees.
    No. 6829.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.

      King, Sharfstein & Rienstra, Weller, Wheelus & Green, Beaumont, for appellants.
    W. G. Walley, Jr., Beaumont, for ap-pellees.
   PARKER, Justice.

Exercising its right of eminent domain, the State of Texas, acting by and through the Commissioners Court of Jefferson County, Texas, instituted condemnation proceedings to take for highway purposes all of one body of land comprised of .58 acres called Parcel No. 53-A and .811 acres called Parcel 53-B belonging to appellants, Charles R. Haley and wife, Thelma R. Haley, subject to a lease by them to the appellant, Billups Petroluem Company. The title taken by appellee, The State of Texas, is that of a fee simple title. The date of taking is agreed to be February 14, 1964. The parties will be referred to as condemnor and condemnees.

The issues submitted to the jury and the answers thereto are as follows:

“SPECIAL ISSUE NO. 1
“From a preponderance of the evidence, what do you find was the market value of the tract of land and improvements of Charles R. Haley and wife, Thelma Haley and Billups, condemned for highway purposes described as Tracts 53-A and 53-B in the evidence before you on the 14th day of February, 1964?
“Answer by stating the amount in dollars and cents.
“ANSWER: $65,000.00
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that the removal of the railroad right of way on parcel 53-B, as described in the evidence admitted before you, resulted from the proposed highway improvement for which the subject tract of land is being condemned ?
“Answer ‘yes’ or ‘no’.
“ANSWER: Yes
“If you have answered Special Issue No. 2 ‘yes’, and only in that event, then answer:
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence that any portion of the sum you have found in answer to Special Issue No. 1 constituted enhancement or increase in value of the land in question resulting from the said removal of said railroad right of way, if you have so found?
“Answer ‘yes’ or ‘no’.
“ANSWER: Yes
“If you have answered Special Issue No. 3 ‘yes’, and only in that event, then answer:
“SPECIAL ISSUE NO. 4
“What do you find from a preponderance of the evidence to be the amount of said enhancement or increase, if any?
“Answer by stating the amount in dollars and cents, or answer ‘none’.
“ANSWER: $25,000.00”

Judgment was entered that the owners take $40,000.00 as compensation, the enhancement in value of $25,000.00 being allowed as an offset to the $65,000.00 market value of the tract at the time of taking. Such railroad track was removed in late 1960 or January 1961.

The condemnees have appealed.

The brief of appellee expresses “serious doubt as to whether the district court had jurisdiction of the subject matter under the terms and provisions of Article 3269, Revised Civil Statutes of Texas of 1925, as amended, upon which the jurisdiction of the District Court must rest.” This suit was instituted in the district court of Jefferson County, Texas, by Charles R. Haley, Jr., and wife. Their original petition was in trespass to try title as to the entire tract of land involved here and for declaratory judgment, such action being brought against Billups Petroleum Company, not against the State of Texas. The pleadings of the Haleys and Billups Petroleum Company alleged that Billups had leased the land in controversy from the Haleys on June 18, 1951, at which time the Haleys owned all the land here involved burdened with an easement of a railroad on Tract B, being the west 50 feet of the railroad easement, approximately 700 feet long north and south. The provisions in the lease presented problems as between the Haleys and Billups as to what compensation each would be entitled in the event the State condemned the entire tract for highway purposes as it was seeking to do in the County Court’ at Law of Jefferson County, Texas. Such condemnation suit had been filed in the County Court at Law. The judge of said court had appointed commissioners. It was alleged by the Haleys that since issues of title were involved as between the Haleys and Billups Petroleum Company, of which the County Court at Law lacked jurisdiction, the State “is made a party here in order that all issues including value of the property taken under condemnation can be determined in this suit.” The Haleys alleged they were entitled to all compensation awarded in a proper condemnation proceeding. The State filed answer of general denial to the plaintiffs’ petition with a cross-action against the Haleys and Billups, alleging that such cross-action was instituted for the purpose of condemning such land which was necessary for highway purposes; that because “of the diversity of adverse claims of the cross-defendants in and to the title and possession of said land, it is impossible to agree, compromise or settle with said cross-defendants upon the amount to be paid for said land, or for the damages” etc., praying for condemnation of the land. Billups filed answer to the cross-action of the State. Thereafter, the Haleys and Billups stipulated that the fee title to the land in controversy between them for the purposes of trial in this suit was owned by them jointly, and that the sole issue to be tried “in this case would be the value of the improvements on said property and the value of the lands taken by the State of Texas under condemnation in this cause.” This stipulation referred to a written compromise and settlement such parties had executed.

The district court had lawful and proper jurisdiction of the causes of action by virtue of Article 3269, Vernon’s Ann.Civ.St. By the above stipulation between the Haleys and Billups the district court did not lose jurisdiction. Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762, 763 (1924); Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962); Magee Heirs v. Slack, 152 Tex. 427, 258 S.W.2d 797, 803 (1953).

Under such pleadings the State admitted fee simple title in the subject property to be in the condemnees. At one time a railroad right of way burdened Tract 53-B. It is undisputed the railroad abandoned such easement in December 1960 or January 1961. This right of way was 100 feet in width east and west, running in the direction of north and south. At the time of the taking of this land for highway purposes, February 14, 1964, this tract of land was bounded on the west by State Highway 69, which was a four-lane highway. On this land Billups had a filling station. Highway 69, sometimes called Eleventh Street, was a heavily-travelled street or highway. Admittedly, the removal of the railroad track from Tract 53-B sometime late in 1960 or January-1961 enhanced the value of the subject property. As indicated, the State sought to and did obtain a $25,000 offset upon their alleged responsibility for the removal of the railroad track resulting in the enhancement of the value of the entire tract. Condemnees, the Haleys and Billups, have appealed contending they were entitled to judgment for the full value of the property at the time of taking as found by the jury, to-wit: $65,000.00.

Condemnees contend there is no evidence from which the jury could believe that the removal of the railroad right of way on Tract 53-B resulted from the proposed highway project. Further, they contend it was error for the trial court to overrule their motion to disregard the answer of the jury to special issue No. 2 and their objection to submission of special issue No. 2. Condemnees contend special issues 2, 3 and 4 should not have been submitted because as a matter of law there was an unreasonable delay by condemnor in taking condemnees’ property subsequent to the abandonment of the railroad right of way. Further, condemnees urge the undisputed evidence shows the relocation of the T&NO tracks was not due solely to the highway program but was due to the fact that T&NO Railroad Company desired to use the Santa Fe track. On these “no evidence” points, the evidence favorable to condemnees is controlling.

The market value of the land and improvements of condemnees on February 14, 1964 was found to be $65,000. Special Issues 2, 3 and 4 are attacked by condem-nees-appellants. In a condemnation suit the general principle is the owner has a constitutional right to the market value of the property taken as of the date it is actually taken. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (Tex.Comm.App., opin. adopted); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. An exception to this rule is that the condemnor is not obligated to pay for an enhancement in value of the property occurring as a result of a public improvement made before the date of taking, provided certain facts appear as set forth in City of Dallas v. Shackelford, 145 Tex. 528, 199 S.W.2d 503 (1947); State v. Willey, 351 S.W.2d 904 (Tex.Civ.App.1961); State v. Vaughan, 319 S.W.2d 349 (Tex.Civ.App.1958); City of Dallas v. Rash, 375 S.W.2d 502 (Tex.Civ.App. err. ref. n. r. e.); City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S.W. 502; Rayburn, Texas Law of Condemnation (1960) § 156 (2).

T&NO Railroad Company had tracks on and was using the railroad easement involved on November 19, 1958. On that date T&NO and Santa Fe executed an agreement, subject to approval by the Interstate Commerce Commission whereby T& NO would operate its trains and cars over the Santa Fe line from Beaumont to Loeb by provision of a new rail and connection at Loeb in Hardin County, thus making it possible to remove the existing T&NO line from Beaumont to Loeb. The State of Texas and Jefferson County were not parties to that agreement. There is no evidence that the State in any manner encouraged or brought about such agreement between the two railroad companies. There was no new rail line to be laid by T&NO in Jefferson County. On July 6, 1960, Commissioners Court of Jefferson County adopted an agreement dated May 20, 1960, by and between the State of Texas, acting by and through the State Highway Engineer. This agreement stated it was not to become effective unless the Interstate Commerce Commission approved the agreement between T&NO and Santa Fe above described. The obligations of T&NO were limited to providing a new rail line in Hardin County, acquiring easements, licenses and other instruments necessary for the new rail line in Hardin County, providing for safety signals in Hardin County, removal of trackage in Hardin and Jefferson Counties, reimbursement to the State for work required to adjust the highway embankment in Hardin County and conveyance to the State by deed or other instrument, without warranty of title, express or implied, of all T&NO’s rights, titles and interest, except trackage, on portions of its right of way in Jefferson County. Upon abandonment of that part of the easement in Jefferson County involved in this suit, the T&NO had nothing to convey to the State. Jefferson County agreed to pay T&NO the sum of $32,235.00 for such quit claim deed. Jefferson County stipulated that the State was not a party to the above provisions for payment to T&NO except to the extent that the State was a third party beneficiary.

Unquestionably, there was an enhancement in value of this tract of land in December 1960 or January 1961 when the T&NO removed its tracks from Tract 53-B and abandoned its easement thereon. In condemnees’ Exhibit D-2 dated May 20, 1960, it is recited that the State and Jefferson County had executed a contractual agreement dated August 19, 1957 whereby Jefferson County would acquire right of way in the name of the State within Jefferson County necessary for the improvements on US Highway 69. There is no evidence of the contents of such agreement. Exhibit D-2 also recites:

“WHEREAS, T&NO and Santa Fe have executed an agreement dated November 19, 1958, subject to approval by the Interstate Commerce Commission, whereby T&NO will operate its trains and cars over the Santa Fe line from Beaumont to Loeb, by provision of a new rail line connection at Loeb, from point of switch on the Santa Fe line at Santa Fe Station 545+83 approximately; thence crossing US Highway 69 at Highway Station 67+55 to the T&NO line at T&NO Station 535+72.3, thus making possible the removal of the existing T&NO line from Beaumont to Loeb; and
“WHEREAS, the State plans the further development and improvement of US Highway 69 in Jefferson County adjacent to the existing T&NO line, and in Hardin County in the vicinity of Loeb, making desirable the acquisition of T&NO right of way, no longer needed by T&NO, in the event of the removal of said T&NO line between Eeaumont and Loeb, by the State for right of way for the planned highway improvements;”

The Santa Fe and T&NO agreement of November 19, 1958 was not offered in evidence. The above phrasing does not designate for immediate acquisition, by purchase or condemnation, of condemnees’ property along with other property as in a simultaneous and in a common proceeding. In 1964 when the State and Jefferson County decided to acquire condemnees’ property by condemnation, this property had already been benefited and enhanced in value as the result of the abandonment of the railroad right of way by the T&NO as a logical result of an entirely separate and disassociated proceeding from any highway plan. In Exhibit D-2 all that T&NO obligated itself to do was to provide for a new rail line connection in Hardin County, move its automatic grade crossing and all equipment where US Highway 69 crossed the railroad about 4,000 feet north of condemnees’ land, removal of existing trackage and other surface facilities from approximately 9,000 feet of right of way including the 720 feet of condemnees’ land. Under Article 4 of D-2, Jefferson County agreed to pay T&NO $32,235.00, “such sum being the value of all the rights, title and interest of T&NO, except trackage and other surface facilities” to portions of its right of way, “said sum to be paid by Jefferson County to T&NO upon delivery to and acceptance by the State of proper instruments conveying all rights, titles and interest of T&NO therein.” Such a quit claim deed from T&NO to Jefferson County was executed on March 20, 1962. By letter of March 23, 1962 from T&NO to the County Judge of Jefferson County specific reference is made to every provision of Article 4 of D-2 stating:

“Under Article 4 of the above agreement Jefferson County agreed to pay T&NO the sum of $32,235.00 for its right, title and interest to certain right of way upon delivery to and acceptance by the State of proper instrument.”

Payment was made by Jefferson County of such sum. Delivery of the deed was made.

This quit claim of T&NO’s rights, title and interest is to some 9,000 plus feet of right of way with no evidence offered as to any title T&NO had. As to condemnees’ land T&NO had nothing to convey. As to other portions of said right of way T&NO may or may not have had fee title.

Robert Hawn, a highway engineer employed by the Highway Department, testified he was familiar with a schematic of proposed improvements of Highway 69 prepared by the Highway Department in 1959 as being a revised schematic. This schematic was approved by the City of Beaumont but not by Jefferson County or the State of Texas. This is identified as Exhibit D-7. It indicates that the State planned to use some of the land within T&NO’s right of way in the construction of the improvement of Highway 69. Hawn testified that for a highway plan to be a fixed project a minute order of the district engineer was necessary. No minute order or final plan is in evidence. It had no probative force on the problem of abandonment of the railroad right of way or the cause thereof. Hawn did not testify, nor did anyone else, that the State persuaded or even requested T&NO to abandon its right of way. It cannot be inferred from his testimony or any exhibits that such abandonment was the logical consequence of, or activated by, any highway plan of the State of Texas. It is undisputed that con-demnees’ property was never designated for immediate acquisition by fixed date by any authoritative action by the State Highway Commission or Jefferson County until the taking on February 14, 1964. No explanation or justification for delaying such action from about the 1st of January, 1961, until some three years later is in evidence. There is no probative evidence of the taking of any other property required in any proposed plan of improvements of Highway 69. Under this record, condemnees were entitled to be paid for the entire market value of their land on the date of taking, including the enhancement in value resulting from the abandonment of the railroad right of way. The value is not to be referred back to a previous time when the taking was first contemplated as “desirable” in the future. The decisions referred to herein-before are directly in point supporting these holdings.

Condemnees contend that con-demnor was not entitled to the benefit of any enhancement in value resulting from the removal of the railroad right of way because condemnor had no pleadings with reference to these defensive issues. The sole issue raised by the pleading of the State was the market value of condemnees’ land as of February, 1964. In such pleading part of the prayer is that the “value of the land be assessed,” and for such other and further relief “ * * * ' it may show itself entitled.” This pleading was not amended or supplemented. Throughout the trial condemnees timely objected to each and every offer of evidence concerning enhancement in value or benefit to con-demnees’ land by reason of the abandonment by the railroad of its easement in late 1960 or early 1961. Among the objections was the objection that the State had no pleadings alleging it was entitled to a reduction in the compensation to be paid for condemnees’ property to the extent of such enhancement in value. Condemnees objected to the submission of special issues 2, 3 and 4, filed their motion to disregard these special issue jury findings and moved for judgment upon the finding on special issue No. 1, disregarding the jury findings in response to special issues 2, 3 and 4. All of such objections and motions were overruled. Under such circumstances, Rule 279, Texas Rules of Civil Procedure, prohibited the submission to the jury of special issues Nos. 2, 3 and 4 or evidence in support of them. It follows that the findings of the jury thereon cannot support the judgment decreasing the recovery by condemnees from $65,000 to $40,000. Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919 (1948). Evidence offered by the State to prove enhancement of value as a basis for reducing and offsetting the compensation to be paid condemnees was improperly admitted in the absence of a pleading to support such issues. Burton Lbr. Corp. v. City of Houston, 45 Tex.Civ.App. 363, 101 S.W. 822, err. ref.; Dickens County v. Dobbins, Tex.Civ.App., 95 S.W.2d 153; 22 Tex.Jur.2d 296, Eminent Domain, § 188 and cases cited.

The quit claim deed from T&NO to Jefferson County dated March 20, 1962 when offered in evidence by condemnor was for the limited purpose “of showing that the railroad, not that it conveyed any interest to the State of Texas, but the fact that through these instruments the abandonment of the railroad took place, it gave rise to the enhancement of the value of that land, and that is our contention,” with the statement made that the requested instruction of condemnees that the jury be instructed the deed conveyed no interest should be overruled. The trial court did finally overrule such requested instruction. The witness Hall, who was testifying as to values, stated he had seen this quit claim deed and knew that the landowner had no title to the abandoned right of way. From his conclusion as to condemnees’ title, he placed a very nominal value on condemnees’ ownership of that portion of the tract of land. Thus, the impression was given to the jury that to pay condemnees for this portion of said land would be a double payment. Clearly, it was prejudicial. Such an instruction as requested should have been given the jury.

Condemnees also contend it was error for the trial court to provide in its judgment that interest on the $40,000 stopped when paid by condemnor even though appellants-condemnees would have lost their right to appeal had they withdrawn such sum. This point of error is without merit and is overruled. Condemnees’ controlling points of error have been passed on. Other points of error are not passed on because no useful purpose would be served.

The judgment of the trial court is reformed so that Charles R. Haley, Jr., and wife, Thelma R. Haley, Billups Petroleum Company and Billups of Beaumont, Inc., in accordance with stipulation among themselves, recover of and from the State of Texas through the Commissioners Court of Jefferson County, Texas, $65,000.00, together with interest on $25,000.00 thereof only at the rate of 6% per annum from the 14th day of February, 1964, until paid with the other provisions of the judgment of the trial court unchanged.

As so reformed, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    SHAMROCK FUEL & OIL SALES CO., Inc., et al., Relators, v. Honorable Bert H. TUNKS, Judge 113th Judicial District Court of Harris County, Texas et al., Respondents.
    No. 14887.
    Court of Civil Appeals of Texas. Houston.
    Oct. 6, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, Houston, for re-lators Shamrock Fuel & Oil Sales Co., Inc. and Keith L. Ward.
    McGregor, Sewell, Junell & Riggs, Ben Sewell, Houston, for relator Johnny Hale.
    Joe Jaworski, Ronald C. Kline, Houston, Bracewell & Patterson, Houston, of counsel, for respondents.
   COLEMAN, Justice.

This is an original proceeding for mandamus to require the trial court to enter judgment in a cause wherein he had set aside the verdict of the jury and declared a mistrial. Among the issues to be considered are: (1) the necessity for privity in a suit for personal injuries based on implied warranty, and (2) whether contributory negligence is a defense in such a suit.

This suit was instituted by William Earl Munsinger, for himself and as next friend of his minor son, against the retailer, the distributor, and the manufacturer of kerosene oil purchased by him, which exploded when poured on a glowing coal at the direction of his minor son by another child. As a result of the explosion the minor, Omy Ray Munsinger, received serious burns and his father incurred the considerable expense of his necessary medical treatment. The explosion happened while the children were playing with fire, contrary to the instructions, and without the knowledge of their parents.

Relator Shamrock purchased the kerosene oil from a refiner in bulk and stored it in a large tank. As needed it was withdrawn from the storage tank and placed in the tank trucks owned by the company. Employees of the company then drove the trucks on regular routes to various retail establishments, including the Gulf Filling Station operated by Relator Hale. There is testimony that one of the route men visited Hale’s station at two-week intervals. He would check the 55 gallon barrel in which Hale stored kerosene and, if an appreciable amount was required to fill the barrel, would remove the pump and fill the barrel. No name appeared on the barrel which was painted in the Gulf colors.

William Munsinger purchased kerosene from Hale, and there was evidence that at the time of the explosion the kerosene was adulterated by the addition of gasoline to the extent that the flash point of the kerosene was lower than that specified by Article 1104, Vernon’s Ann.P.C. There was evidence that kerosene oil, with the flash point specified, when poured on a glowing coal would smoke and probably extinguish the coal, but would not explode.

The trial court granted an instructed verdict in favor of the refiners and no question concerning this action is involved in this proceeding.

The jury was unable to agree on answers to all of the issues and the parties agreed, subject to the right to object that material issues were not answered, that the court might receive a partial verdict. The jury had not been able to agree on answers to all of any series of issues submitting the plaintiff’s grounds for recovery against any of the defendants. It found that the minor plaintiff directed his brother to pour the kerosene oil on the glowing coal and that this action constituted negligence and was a proximate cause of the explosion.

Relators contend that the contributory negligence finding would have prevented a judgment for the plaintiff, no matter how the jury answered the issues on primary negligence or on implied warranty, and that in view of the finding of contributory negligence all of the other issues became immaterial. They also contend that there was no evidence of privity of contract between the injured minor and the retailer or between either of the plaintiffs and the distributor, Shamrock, and that privity of contract must exist before liability can be predicated on the breach of an implied warranty.

The trial judge expressly based his action in declaring a mistrial on his finding that material issues of fact were not answered by the jury.

The Relators concisely state the problem presented as follows:

“The two issues before this Court are simple: (1) Is privity of contract between the injured plaintiff and the defendants essential to any liability on implied warranty? (2) If the answer to (1) is no, is contributory negligence a defense to implied warranty liability?”

Neither of these questions has been determined by the Supreme Court of Texas, except in cases involving food for human consumption. In Jacob E. Decker & Sons, Inc. v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, the ultimate consumer brought an action for injuries to herself, her husband and other members of her family caused by eating contaminated food manufactured by Decker and sold to a retailer in a sealed container, who, in turn, sold it to the plaintiff in the same container. The Court allowed the action against the manufacturer based on an implied warranty of fitness, and held privity of contract unnecessary in such an action. The Court stated:

“While a right of action in such a case is said to spring from ‘warranty,’ it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health. * * * The action on a warranty sounded in tort was in the nature of an action on the case for deceit, although it was not necessary to plead or prove scienter. * * * The doctrine of privity of contract and of the necessity therefor in order to sustain an action grew out of the later action of assumpsit. It applies only when one is seeking to enforce a contract.”

The Court held that a nonnegligent manufacturer, who processed and sold contaminated food to a retailer for resale for human consumption, is liable to the consumers of the food for injuries sustained as a result of the eating of such food. “Liability in such case is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of the public policy to protect human health and life.”

While this case spoke only of food for human consumption, and stressed the public policy to protect human health and life, the doctrine has been extended to include drugs for human consumption or intimate bodily use. Cudmore v. Richardson-Merrell, Inc., Tex.Civ.App.1966, 398 S.W.2d 640, writ ref., n. r. e. The principle has also been extended to include cattle feed. Burrus Feed Mills, Inc. v. Reeder, Tex.Civ.App.1965, 391 S.W.2d 121.

These decisions eliminating the requirement of privity in implied warranty cases might have been predicted by reason of the opinion of the Supreme Court of Texas in United States Pipe and Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432. There the Court held the manufacturer of pipe liable in damages to the City of Waco for breach of warranty although the pipe was purchased by a contractor and used in performing a contract with the City. In the opinion the Court cited two cases involving the sale of food, Madouros v. Kansas City Coca-Cola Bottling Company, 230 Mo.App. 275, 90 S.W. 2d 445, and Coca-Cola Bottling Company of Fort Worth v. Smith, Tex.Civ.App., 97 S.W.2d 761, and, referring to these cases, stated:

“By citing the above cases) this court does not commit itself either to the correctness of the holding in each case or to the correctness of every expression therein. Their reasoning aptly applies here, and illustrates the tendency of modern courts away from the narrow legalistic view of the necessity of formal immediate privity of contract in order to sue for breach of an express or implied warranty.”

Strict liability was enforced in Decker because of the public policy to protect human health and life. The same policy should be, and is, applicable to products other than food which, when defective or contaminated, are highly dangerous to human life and health. Bowerman v. Goodyear Tire & Rubber Co., 105 F.Supp. 119 (N.D.Tex.1952); Siegel v. Braniff Airways, Inc., 204 F.Supp. 861 (S.D.N.Y.1960); Crusan v. Aluminum Company of America, 250 F.Supp. 863 (E.D.Tex.1965).

One selling, or offering for sale, a product, representing either expressly or by implication that it is kerosene, thereby impliedly warrants that the product is suitable for use for domestic cooking, illuminating, heating, or other domestic uses, and that the flash point of the product is 112° Fahrenheit, or higher, according to the United States official closed cup testing method of the United States Bureau of Mines. Such a warranty will be implied as a matter of law since a strong public policy to afford such protection to the citizens of this State can be discerned from the provisions of Article 1104, V.A. P.C.

The right to recover damages in this case, insofar as the recovery is predicated on the breach of one of these implied warranties, cannot be denied by reason of the alleged failure to prove privity of contract.

Putman v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964), strongly supports this decision. There the court considered both the applicable Texas cases, many cases from other jurisdictions, and the considered opinions of many' legal scholars in reaching the conclusion that when the matter is properly presented the Supreme Court of Texas will hold that “ * * * a manufacturer or assembler of a defective product, unreasonably dangerous to the user, is subject to strict liability to the user for an injury caused by the defect, even though the product is not a food for human consumption, there is no proof of negligence, and there is no privity between the user and the manufacturer or assembler.” Comprehensive citations to relevant material are found in Judge Wisdom’s opinion which support our decision in this case. To avoid extending this opinion we refrain from again citing the wealth of authority on this question.

In Brown v. Howard, 285 S.W.2d 752, Tex.Civ.App.1955, ref., n. r. e., it was pointed out that the rule of “implied warranty” set forth in Jacob E. Decker & Sons, Inc. v. Capps, supra, was not based on a warranty implied from the terms of a contract, but had its basis in a public policy imposed for the protection of the public health. The court emphasized that such an “implied warranty” should not be confused with a contractual warranty, either express or implied, in which privity of contract is an essential element of recovery. The court then refused to extend the rule of Jacob E. Decker & Sons, Inc. v. Capps to one formulating chemicals for use as a cattle spray where damages for injuries to cattle from use of the spray were sought by one not in privity with the nonnegligent manufacturer. The court stated that a strong public policy was required to support a rule imposing liability without fault and determined that it was not authorized to extend the rule of Jacob E. Decker & Sons, Inc. v. Capps and make it applicable to the case under consideration, particularly in view of the fact that the Decker case emphasized “food for human consumption”.

Neither this case nor Baylor v. Eastern Seed Co., 191 S.W.2d 689, Tex.Civ.App. 1945, is authority for the proposition that privity of contract is required where products presenting great danger to human life and health, when defective, are involved. However, Talley v. Beever & Hindes, 33 Tex.Civ.App. 675, 78 S.W. 23, 1903, no writ hist.; Stamford & Western Gas Co. v. Starkey, 26 S.W.2d 368, Tex.Civ.App. 1930, and Dunn v. Texas Coca-Cola Bottling Co., 84 S.W.2d 545, Tex.Civ.App., writ dism., are such cases. In each of these cases the rule applicable to contractual warranties was applied and recovery refused because of lack of privity. These cases were decided long before Jacob E. Decker & Sons, Inc. v. Capps, supra, and the theory of liability applied in that case, in all probability, was not brought to the attention of the courts deciding them. The rule of law applied in this case has been carefully examined in many of our sister states since those cases were decided, and our decision is supported by recent cases from many jurisdictions. Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965); Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189 (1965); Continental Copper and Steel Industries v. E. C. “Red” Cornelius, Inc., 104 So.2d 40 (Fla.App.1958); Wood v. Hubb Motor Co., 110 Ga.App. 101, 137 S.E.2d 674 (1964); Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965); State Farm Mutual Automobile Insurance Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449 (1961); Rupp v. Norton Coca-Cola Bottling Co., 187 Kan. 390, 357 P.2d 802 (1960); Dealers Transport Co., Inc. v. Battery Distributing Co., Inc., 402 S.W.2d 441 (Ky.App., June 4, 1965, as modified May 13, 1966); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo.S.Ct.1963); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963); Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.S.Ct.1965); Lonzrick v. Republic Steel Corp., 1 Ohio App.2d 374, 205 N.E.2d 92, aff’d 6 Ohio St.2d 227, 218 N.E.2d 185 (1966); Marathon Battery Company v. Kilpatrick, 418 P.2d 900 (Okla.S.Ct., Dec. 28, 1965); Wights v. Staff Jennings, Inc., 405 P.2d 624 (Ore.1965); Ford Motor Co. v. Lonon, 398 S.W.2d 240 (Tenn.S.Ct.1966); Brewer v. Oriard Powder Co., 66 Wash.2d 187, 401 P.2d 844 (1965).

It has long been the rule in Texas that privity of contract is not required in a tort action based on the sale of such an explosive substance as coal oil. In Cohn v. Saenz, Tex.Civ.App.1919, 211 S.W. 492, writ den., the court held:

“ * * * It is the duty of a seller of gasoline and coal oil, who knows the danger to life and health incident to the attempted use of gasoline, or any other highly explosive substance similar to gasoline, for illuminating purposes, not to sell the same as coal oil suitable for illuminating purposes. This duty he owes, of course, not only to his buyer, but, knowing that it is purchased for resale, he owes it to all who have occasion to purchase some of the substance.” See also Waters-Pierce Oil Company v. Deselms, 1909, 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453.

In many jurisdictions contributory negligence is held to be a defense in an action to recover for a product caused injury where the basis of the action is negligence even though the product is explosive or flammable and the seller has violated a statute regulating the sale of such products. Anno., 80 A.L.R.2d, Products Liability—Explosion, etc., § 10, pp. 508-510; Gulf Refining Co. of Louisiana v. Jinright, 5th Cir. 1925, 10 F.2d 306; Rivera v. Ancient City Oil Corp. (1956), 61 N.M. 473, 302 P.2d 953; Hourigan v. Nowell (1872), 110 Mass. 470; Douglas v. Daniels Bros. Coal Co., (1939), 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761.

While no case by the Supreme Court of Texas has been cited directly holding contributory negligence a defense in such a case, no Texas cases have been found creating an exception to the general rule that contributory negligence of a plaintiff will bar recovery from a negligent defendant. The jury finding of contributory negligence, if supported by the evidence, would have defeated recovery in this case, no matter how the jury answered the issues on the defendant’s negligence. Magnolia Petroleum Co. v. Beck, Tex.Civ.App., 1931, 41 S.W.2d 488, writ dism.; Dunn v. Texas Coca-Cola Bottling Co., Tex.Civ. App.1935, 84 S.W.2d 545, writ dism.

No Texas cases have been citing holding that contributory negligence is a bar to recovery on a cause of action based on breach of implied warranty. In Jones v. George, 61 Tex. 345, the court held that one suing for damages resulting from a breach of contract could not recover for such part of his loss as he could have avoided by ordinary care. The Court said: “If, notwithstanding the breach of contract, the appellant by the use of ordinary care, and at reasonable expense, could have avoided the loss in whole or in part, then the loss which might have been arrested by the use of such care ought not to be recovered.” This appears to be a statement of the duty to minimize damages.

In Tex-Tube, Inc. v. Rockwall Corp., 379 S.W.2d 405, Tex.Civ.App.1964, no writ hist., the court held that contributory negligence precluded judgment for the plaintiff “to the extent that plaintiff’s own negligence proximately caused its damage.”

The court applied the rule applicable to contractual warranties, quoting from Hursh, American Law of Products Liability:

“Note that something closely akin to the idea of contributory negligence is embodied in Section 336 of the Restatement of Contracts, which states that damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.”

These decisions are not in point on the question of the availability of contributory negligence as a defense to a cause of action on a warranty implied in law for the protection of the life or health of the purchaser or user of a defective product, the cause of action not being based on contract.

There are decisions from some jurisdictions that speak of denying recovery because of contributory negligence in such actions. The opinions in other jurisdictions avoid the use of that term by grounding their decisions on a failure to show proximate cause or the duty to mitigate damages, or the failure to prove reliance on the warranty. In other jurisdictions the courts consider contributory negligence and assumption of the risk to be doctrines of the law of torts and not applicable to actions for alleged breach of implied warranties based on the law of contracts. In all events, it is apparent that the cases are in disagreement. Anno., 4 A.L.R.3rd, Products Liability — Implied Warranty, §§ 3 and 4 (at pg. 505).

This explanation for the disagreement among the courts is found in Prosser, Law of Torts, 3rd Ed., pp. 656-657:

“There has been ostensible, and quite superficial, disagreement over whether contributory negligence is available as a defense where the action is one for breach of warranty. A few decisions have said flatly that it is not. The greater number have said quite as flatly that it is. The conflict is, however, more apparent than real. If the cases are examined, it readily appears that those which refuse to allow the defense have been cases in which the plaintiff negligently failed to discover the defect in the product, or to guard against the possibility of its existence. They are entirely consistent with the general rule that such negligence is not a defense to an action founded upon strict liability. Those which have permitted the defense all have been cases in which the plaintiff has discovered the defect and the danger, and has proceeded nevertheless to make use of the product. They represent the form of contributory negligence which consists of deliberately and unreasonably proceeding to encounter a known danger, and overlaps assumption of risk. They are quite consistent with the general rule that this is a defense to strict liability. There are only a few cases which have recognized the distinction; but it seems quite clear that it is made in fact.”

The Supreme Court of Texas, in Jacob E. Decker & Sons, Inc. v. Capps, supra, and Griggs Canning Co. v. Josey, 1942, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424, adopted a rule of strict liability in food cases substantially the same as the American Law Institute, in Sec. 402A, Restatement of the Law of Torts, 2d, later applied to all products in a defective condition unreasonably dangerous to the user or consumer.

Since, under the particular factual situation here present, we are of the opinion that the strict liability rule of Decker is applicable, it follows that the question of contributory negligence as a defense should be governed by the rules applicable in other cases of strict liability.

The Restatement of the Law of Torts, 2d, Sec. 402A, Comment N. Contributory Negligence (Vol. 2, pg. 356) reads:

“Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

Section 524, Restatement of the Law of Torts, Vol. 3, pg. 52, provides:

“(1) A plaintiff is not barred from recovery for harm done by the miscarriage of an ultrahazardous activity caused by his failure to exercise reasonable care to observe the fact that the activity is being carried on or by intentionally coming into the area which would be endangered by its miscarriage.
“(2) A plaintiff is barred from recovery for harm caused by the miscarriage of an ultrahazardous activity if, but only if,
“(a) he intentionally or negligently causes the activity to miscarry, or
“(b) after knowledge that it has miscarried or is about to miscarry, he fails to exercise reasonable care to avoid harm threatened thereby.”

By analogy it appears that in a case such as this a plaintiff would not be barred from recovery even though his injury was caused in part by his failure to test the kerosene, or by his failure to foresee that the kerosene might have a dangerously low flash point and to guard against such a possibility. He would, however, be barred if he misused the product, that is, if, by reason of the manner in which he used the product, he would have been injured had the kerosene conformed to the statutory standard, or if, knowing that the kerosene was defective and of the danger of an explosion, he fails to exercise reasonable care to avoid the threatened harm.

The jury finding that the injured boy was contributorily negligent in directing his brother to pour the kerosene on the glowing stick would not bar a recovery for the damage caused by the breach of an implied warranty that the kerosene had a flash point not below 112° Fahrenheit.

Relators suggest that the rule of strict liability for breach of implied warranty, whether contractual or imposed by law, is inapplicable to the Relators, with the exception of Johnny Hale, the retail dealer, under the rule of Bowman Biscuit Company of Texas v. Hines, 1952, 151 Tex. 370, 251 S.W.2d 153. In that case the Supreme Court refused to apply the rule of Jacob E. Decker & Sons, Inc. v. Capps, supra, and Griggs v. Josey, supra, to a suit by a consumer against a wholesaler. While these Relators occupy the position of a middleman, this case is not controlled by the rule of the Hines case since the product in this case was sold in bulk rather than in a sealed container. Here it is established that the product was not defective when it was delivered by the manufacturer to the wholesaler.

Apparently eight of the Justices taking part in the decision of Bowman Biscuit Company of Texas v. Hines, supra, were of the opinion that there was little or no distinction between the liability of the retailer and that of the wholesaler. Justice Wilson, in his concurring opinion, stated that he found no impelling reason to extend to a wholesaler a direct liability to the consumer, and that the rationale of the Decker case was not applicable since the wholesaler did not know or control the contents of the sealed package.

The rationale of the Decker case would appear to be applicable here, as well as that of Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170, where the fact that the identity of the manufacturer was concealed by the middleman was sufficient to place him in the legal position of the manufacturer. Here the name of the manufacturer did not appear on the product and was not known to the buyer. If the product was defective at the time of the sale to the retailer, the defective product was placed in the stream of commerce by the wholesaler, not the manufacturer.

The conclusion that the rule of strict liability is applicable to all vendors is in line with the views of the courts in the other jurisdictions adopting strict liability for breach of implied warranties. Anno., 75 A.L.R.2d, Products Liability—Privity, § 15; Harper and Jones, Law of Torts, Vol. 2, § 28.31, pp. 1601-1602.

The trial court correctly declared a mistrial for the reason that the jury was unable to answer material issues submitted to it by the court’s charge.

The application for a writ of mandamus is denied.