author: DAVIS, Commissioner.

text:
    Donald Ray CARSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    As Modified on Denial of Rebearing Oct. 2, 1964.

      Joseph R. Huddleston, Bowling Green, for appellant.
    John B. Breckinridge, Atty. Gen., Geo-F. Rabe, Asst. Atty. Gen., Frankfort, Morris Lowe, Commonwealth Atty., Bowling-Green, for appellee.
   DAVIS, Commissioner.

Donald Ray Carson was found guilty of the willful murder of Bobby Young upon a. jury trial in the Warren Circuit Court. The jury’s verdict fixed his punishment at death.

On this appeal Carson presents these grounds for reversal of the conviction: (1) Permitting the prosecution to excuse for cause those prospective jurors who expressed conscientious scruples against imposition of the death penalty; (2) admission of a photograph of the appellant; (3) admission of a photograph of the victim; (4) admission of a written statement given by appellant before he was taken before a magistrate and while he was without legal counsel; (5) admission of oral statements made by appellant to the victim’s father, made while appellant had no legal counsel; (6) failure of the examining court to provide an attorney for the accused; (7) placing the jury in custody of the sheriff, since the latter was a prosecution witness; and (8) erroneous instruction concerning necessity for unanimity of the verdict.

The slaying of Bobby Young occurred September 5, 1962. Two days earlier appellant and a sixteen-year-old companion, William Boyd, both negroes, entered upon a joint course of conduct, interspersed with automobile theft, housebreaking, larceny and ultimately the murder of Bobby Young. The record is silent as to the age, experience and educational background of appellant. It is apparent from the record that appellant is older than William Boyd.

Appellant and Boyd (who was jointly indicted with appellant) stole a car in Bowling Green on the night before the homicide. They drove the stolen car into the western rural section of Warren County, near the scene of the killing. In fact, the car broke down in the gate of the Young farm (a farm owned by the victim’s father and managed by the victim). Appellant and Boyd temporarily abandoned the car that night and took shelter in a vacant residence in the neighborhood. On the morning of the instant crime the pair broke into a country house owned by Hon. Robert M. Coleman, presently judge of Warren Circuit Court. (Judge Coleman was not presiding at the trial of this case, however.)

Boyd and appellant stole several articles of clothing from Judge Coleman’s premises and made themselves completely at home by participating of food found there. In addition to the food and clothing they took Judge Coleman’s bolt action, single shot .22 caliber Mossberg rifle. Miscellaneous other articles were identified by Judge Coleman as having been taken from his house. Among articles recovered from the stolen car after appellant and Boyd abandoned it were crudely made masks.

The comrades in crime repaired and recovered the disabled stolen car from its situs near the Young farm. They remained in Judge Coleman’s property until about 4:00 or 4:30 p. m., at which time they departed, doubtless emboldened by being armed with the rifle, freshly stolen clothes, adequate food and some wine. They returned to the Young farm, where they had previously observed a tractor stored in a shed. Appellant and Boyd were engaged in siphoning gasoline from the tractor when they were interrupted by the arrival of Bobby Young and Harry Watkins.

Young and Watkins were traveling in a car driven by Young when the latter observed an open gate leading into the Young farm. Young drove in the gate to investigate. A second open gate was observed; Young and Watkins passed through the second gate to a point about four feet from the shed in which the tractor was stored. The tractor was sitting in the shed, and the stolen car was on the “other side” of it, backed up against it. Watkins related that he saw nobody about the tractor when he and Young arrived.

When appellant and Boyd observed the approach of Young and Watkins they left off their gasoline stealing project and took cover — Boyd fled “to the left” and hid in some weeds; appellant, according to Boyd’s testimony, went “to his right” toward the barn. Other evidence indicates that appellant had hidden in a barn close by. Whether Boyd or appellant then had possession of the stolen rifle is a point sharply disputed as between Boyd and appellant. However that may be, there is abundant evidence warranting the conclusion that appellant then had the rifle— the jury accepted that version, as it clearly had the right to do.

Young alighted from his car, as did Watkins. Young proceeded into the shed and got on the tractor, between the gas tank and seat. Watkins was standing about twenty feet from the shed. Without warning, Watkins was shot. He said the shot sounded as if it came from a rifle fired from the nearby barn. The bullet struck Watkins at a point just above his heart. Watkins then ran into the shed where Young was still on the tractor. Two more shots were heard; one of the shots wounded Young.

Watkins then came from the end of the shed and climbed a fence into a field of high weeds. He went along a trail in the weeds approximately 75 or 100 feet, whereupon he turned back toward the shed. He then observed a negro man, attired in a white shirt, brandishing a rifle above the weeds. (Later Watkins identified appellant as the man he saw with the rifle.) Watkins saw the man with the rifle climb back over the fence and go into the shed. Watkins heard two more shots. He did not see either of them fired, nor did he see Bobby Young alive again, lyat-kins said that it appeared to him that Young’s car had been moved to a position about 75 feet from the shed when the last shot heard by him was fired.

Boyd recounted that he had gone over the fence into the same field to which Watkins fled, and that Watkins had walked past Boyd as he went toward the Barren River. The same witness also said that Young too had gotten over into the same field, and that he, Boyd, “stood up and asked him what had happened and Bobby told me that he had been shot.” According to Boyd, Watkins called out to Young, directing him to get into the car as he, Watkins, had been shot.

Boyd said that as Young was getting in the car two more shots were fired, at which point he observed appellant standing by the driver’s side of the car, demanding that Young get out of the car. Bobby Young asked appellant not to kill him, as he had already been shot; but appellant shot Young again. Then appellant fired a shot into a front tire of the Young car. Thereupon, appellant and Boyd departed the scene in the stolen car, which was later found wrecked and abandoned.

It was shown that two bullet holes were found in the back portion of the front seat of the Young car just after the incident. They ranged in a downward course. The tire on the left front wheel of the car also had been shot and was flat.

Bobby Young was found alongside the road leading from the Young farm back toward the river. He was living, but fatally wounded. Appellant’s counsel elicited from a witness who found the victim that the latter had said he had been shot by two young negroes, but he had not identified either of them. Bobby Young died shortly after admission to the hospital at Bowling Green. Three bullet wounds, all reflecting a downward course of the bullets, were found in his body.

Appellant and Boyd were apprehended the next day after the shooting. At the time of their capture Boyd had the rifle in his possession. Boyd undertook to explain his possession of the rifle on the theory that appellant had threatened to kill anyone who attempted to stop them. According to Boyd, he took the rifle to avert further bloodletting.

The two fugitives were taken to the Kentucky State Police barracks about one mile south of Bowling Green. There they were fingerprinted and photographed. At that time each of them signed a statement, the details and circumstances of which will be later discussed in this opinion. The chief variance in the statements of the two men lies in the fact that each claimed that the other had done the actual shooting of Bobby Young.

One of the officers who took the statements estimated that no more that one hour elapsed in the process. There was no evidence that either of the men was threatened or otherwise mistreated on the occasion. The same officer testified that he telephoned to the county judge’s office just after obtaining the statements, but upon learning that the judge was not then available, lodged the two men in the county jail to await disposition of them by the judge. Although the record of proceedings before the county judge is not set forth, it is shown that appellant waived examining trial when brought before the county judge.

An indictment was returned on September 11, 1962, just six days after the shooting occurred. The circuit court appointed counsel for appellant, and upon motion of that counsel, granted a continuance of the case until the January, 1963, term of the court; the instant trial was held during the January, 1963, term.

There was no error in permitting the prosecution to excuse for cause those prospective jurors who expressed conscientious scruples against imposition of a death sentence. Counsel for appellant concedes that our cases resolve the contention adversely to his present position. However, it is correctly observed that the decisions deal with the law extant under former Criminal Code, § 210(7). That Criminal ‘Code provision specifically made such scruples ground for challenge for cause. Tar-rence v. Commonwealth, Ky., 265 S.W.2d 40. The present case was tried after the •effective date of the new rules of criminal procedure. RCr 9.36(1) has superseded § 210 of the Criminal Code of Practice. By its terms, RCr 9.36(1) omits any detailed list of challenges for cause, but authorizes “cause” challenges in this language:

“ * * * When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve.” RCr 9.36(1).

It is our view that a prospective juror’s unqualified opposition to capital punishment, regardless of the degree of proof, is valid ground for challenge for cause in a case wherein capital punishment is within the scope of permitted punishment. This is the view accepted by virtually all jurisdictions and is one that has basis in sound reason. See 48 A.L.R.2d 560, et seq.; 50 C.J.S. Juries § 275e; 31 Am. Jur., Jury, §§ 186, 187.

During the trial the prosecution introduced in evidence a photograph taken shortly after the apprehension of appellant and Boyd. It depicts two State troopers and the two accused men. Appellant suggests two bases of error in this respect. He insists that the picture casts him in a pose calculated to be prejudicial to him since it reflects a smile on appellant’s countenance. Appellant insists that the picture unfairly shows him as a haughty and disdainful person.

Secondly, appellant argues that the same photograph had appeared in highly inflammatory newspaper accounts of the murder. It is reasoned that this served to recall to the minds of the jurors all that had appeared in the press about the crime.

For the Commonwealth it is said that the purpose of the photograph was to point up the fact that appellant was clad in a white shirt — thus affording corroboration to the evidence of Boyd, the accomplice, and to the evidence of Watkins. We have examined the photograph. In our judgment there was no error in its admission. This is particularly so in light of the fact that no showing is made that the prosecution sought to argue to the jury that the picture demonstrated appellant’s character as haughty or disdainful. Moreover, the appellant was present before the jury throughout the trial; it may not be supposed that the jury attributed any unusual significance to the picture. It is significant that the same picture shows the officers smiling too.

As to the reference that the picture had appeared in news accounts, we need say only that there was no showing of the content of any such account. The jurors stated on their voir dire that they had read of the incident, but that they could and would dispel from their minds all they had read or heard. There is no showing that any juror failed to obey his oath. It is well-settled that photographs are admissible in criminal cases, usually bn the same basis as in civil actions. Even though the admission of a photograph may arouse passion, or bring to mind vividly the details of a shocking crime, if the picture serves to illustrate a material fact or condition, it is considered admissible. 20 Am. Jur., Evidence, §§ 727, 728; 159 A.L.R. 1413, et seq.; 2 Wharton’s Criminal Evidence, § 686.

What has just been said as to the admission of the photograph of the appellant is likewise applicable as to the introduction of the picture of the victim, Bobby Young. It is conceded by the Attorney General in brief that our cases recognize the principle that such photographs of ■ a victim should not be received in evidence unless some useful purpose is served thereby. However, in the absence of a showing of prejudice, admission of photographs of a victim has not been deemed reversible error. Milam v. Commonwealth, Ky., 275 S.W.2d 921; Cox v. Commonwealth, 215 Ky. 585, 286 S.W. 689; Alder v. Commonwealth, 215 Ky. 613, 286 S.W. 696; Coffey v. Commonwealth, Ky., 256 S.W.2d 379.

Appellant gave a written confession to the officers shortly after his apprehension. It is urged that the written confession should have been excluded from evidence, first, because the appellant was not taken forthwith before a magistrate, and secondly, because the appellant had no counsel when the statement was obtained. We shall discuss these contentions separately.

For the Commonwealth, without contradiction by or for the appellant, it was shown that the appellant and Boyd were advised of their right to have counsel, that neither of them was required to make any statement, and that any statement made could be used against them in pros-ecutive action. There is neither proof nor contention that any threat or promise was used in obtaining the statement. In short, the record affirmatively shows the statement was given freely and voluntarily; there is no hint of anything to the contrary.

It is to be observed that the statement given by appellant confesses appellant’s shooting of Watkins — but asserts that appellant dropped the rifle, which was picked up by Boyd, who proceeded to shoot and kill Bobby Young. Boyd’s statement, taken at the same time and under the same circumstances, is generally the same as appellant’s, with the pivotal exception of Boyd’s assertion that appellant did all of the shooting.

We adhere to the settled'rule that the admissibility of an accused’s statement under circumstances similar to those at bar must be tested upon the facts presented. The trial court’s ruling, resting on an issue of fact, will not be disturbed unless it satisfactorily appears there was insufficient evidence to support such ruling. Smith v. Commonwealth, Ky., 366 S.W.2d 902; Tarrence v. Commonwealth, Ky., 265 S.W.2d 52, cert. den. 348 U.S. 899, 75 S.Ct. 220, 99 L.Ed. 706, and cases there cited. Here there was no evidence that the appellant’s statement was coerced, or that it was made involuntarily.

The .fact that appellant was not “forthwith carried before the most convenient magistrate of the county” as prescribed by then applicable § 46 of the Criminal Code of Practice does not ipso facto vitiate the statement. We have consistently held that an accused’s statements made under such circumstances are properly admitted, unless it is shown that delay in pre-renting- him before a magistrate served as an unlawful means in coercing a statement. Brown v. Commonwealth, Ky., 275 S.W.2d 928; Reed v. Commonwealth, 312 Ky. 214, 226 S.W.2d 513; Commonwealth v. Mayhew, 297 Ky. 172, 178 S.W.2d 928.

In the annotation in 1 L.Ed.2d 1735, it is said:

“A confession is not, as a matter of due process, inadmissible merely because of an undue delay, prior to the making of the confession, on the part of the police in taking the accused before a committing magistrate. However, such delay is one of the factors to be considered in determining whether a confession, permitted to be introduced and relied upon at a state trial, has been obtained under such circumstances that its use violates due process.” 1 L.Ed.2d, pp. 1747-1748.

The United States Supreme Court has adhered to the principle that failure to carry an accused forthwith before a magistrate does not, standing alone, invalidate a confession obtained in the interim. Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. See supplemental annotation at 4 L.Ed.2d 1833, et seq.,. wherein are collected and discussed Supreme Court decisions subsequent to the annotation in 1 L.Ed.2d 1735.

Whether appellant’s statement should have been excluded because taken when he was without an attorney presents a related question to that just discussed. The point was decided adversely to appellant’s contention and fully discussed in Bauer v. Commonwealth, Ky., 364 S.W.2d 655, and Goff v. Commonwealth, Ky., 245 S.W.2d 446. In the instant case it is said without contradiction that appellant was fully informed that he could obtain counsel before making any statement; there is no showing that he requested counsel.

In Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, it appeared the defendant had asked state authorities for opportunity to obtain counsel, • but his request was refused. He made a statement, without counsel. The United States Supreme Court ruled that the statement was properly admitted in evidence in the absence of any showing of coercion or prejudice. In writing for the majority, Mr. Justice Clark observed:

“He would have every state denial of a request to contact counsel be an infringement of the constitutional right without regard to the circumstances of the case. In the absence of any confession, plea or waiver — or other event prejudicial to the accused — such a doctrine would create a complete anomaly, since nothing would remain that could be corrected on a new trial. Refusal by state authorities of the request to contact counsel necessarily would then be an absolute bar to conviction. On the other hand, where an event has occurred while an accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser but still devastating effect on enforcement of criminal law, for it would effectively preclude police questioning —fair as well as unfair — until the accused was afforded opportunity to call his attorney.” Op. cit. 357 U.S. at pp. 440-441, 78 S.Ct. at p. 1292, 2 L.Ed.2d at pp. 1454-1455.

We subscribe to the reasoning of the Supreme Court as expressed. If an accused may refuse opportunity to consult counsel and then claim denial of due process to foreclose admission of a statement voluntarily made, shrewd criminals will be quick to grasp the opportunity to confess without counsel, thus gaining complete acquittal without any trial. That this would present an anomaly is not to overstate the case.

We read Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, as standing for the proposition that the United States Supreme Court will review the de-cisión of any state court relating to the admissibility of a confession obtained from an accused in custody, and before he is taken before a magistrate, to determine whether such confession has been obtained voluntarily. We do not interpret that decision as holding that all confessions so obtained are inadmissible, no matter what the circumstances. See 19 A.L.R.2d 1331, et seq.

It is our conclusion that there is a complete absence of any showing tending to impugn the voluntary nature of the confession in this case. Accordingly, we find no merit in appellant’s contentions concerning the confession.

Shortly after the date of the crime, before the indictment, and while appellant was incarcerated in the Warren County jail, the father of the victim went into appellant’s cell and talked with him. The substance of their very brief conversation was admitted in evidence over appellant’s objection. Appellant attacks this admission of evidence as violative of Kentucky’s “Anti-Sweating Statute” (KRS 422.110) and as a denial of appellant’s constitutional right to be represented by counsel at every critical stage of the proceeding.

The testimony along this line is thus recorded :

“Q. 11: What did you say to him?”
“A: I said: ‘Donald, why did you kill Bobby?’ And he said: ‘Well, it is just this way, there was two of them.’ And I said, ‘ * * * well, there was two of you all and you all had a gun.’ And another thing I said: ‘Where did you shoot him from?’ And he said: ‘The first shot was out of the barn where you milked.’ ”

It is not claimed that the victim’s father used any force or in any other way intimidated appellant. The point is made that inasmuch as appellant was then in jail, charged with a capital offense, he was at such disadvantage as to make coercion implicit. The trial judge carefully considered the preliminary question whether appellant’s statements to the elder Young were voluntary and free of coercion. He resolved that question adversely to appellant. Under such: circumstances, and in the total absence of any contrary showing, we conclude that there was no error in the admission of appellant’s statements to the victim’s father. Bauer v. Com., Ky., 364 S.W.2d 655, and cases discussed therein. The same principles applicable to the admissibility of the written statement, discussed earlier in this opinion, apply to the question under consideration.

Our attention has been directed to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. In our view Mas-siah has at least four significant distinctions from the case at bar:

The prosecution there was in the federal court system where the specific guarantees of the Sixth Amendment directly apply.

Massiah had been indicted and had counsel; he was at liberty on bail. These facts were known to the federal agents.

The incriminating admissions were procured pursuant to a deliberate surreptitious subterfuge conceived and executed by the prosecuting federal agents.

Massiah was unaware that he was being interrogated. He had no idea that what he was saying was being overheard by federal agents.

In the case before us the appellant had not been indicted when his interview with Mr. Young took place. At that time, so far as is shown by the record, he had no attorney. Prior to the interview he had already made a written statement, as had his confederate. Appellant knew of the statement of his accomplice, since it had been read to him. Appellant knew that he was talking to the victim’s father— they were not strangers. There is no suggestion that the interview was the result of a scheme or device concocted by prosecuting officials, or anyone else. No pressure or coercion appears. In short, we believe the factual situation in Massiah readily demonstrates that its rationale does not rule the instant decision.

In 90 A.L.R.2d 732 appears an annotation dealing with the admission of a confession or incriminatory statement made after indictment and in absence of counsel. The annotation was published prior to the ruling in Massiah. (The case is discussed on the basis of the ruling of the 2nd Circuit Court of Appeals, which was reversed by the Supreme Court United States v. Massiah, (1962 CA2 N.Y.) 307 F.2d 62.) It is noted in the cited annotation that the question first arose in 1958. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. In the majority opinion in Spano, Mr. Chief Justice Warren wrote for the court that it was not necessary to reach the question whether any confession taken after indictment, without presence of counsel, ipso facto is violative of due process. In separate opinions other justices expressed the view that absence of counsel, of itself, was violative of constitutional due process. So far as we have found, no decision of the Supreme Court has held such confession void where taken before indictment or arraignment, solely on the basis of absence of legal counsel. We are of the view that the more reasonable and safer position is to examine the circumstances surrounding any confession, whenever made, so that its admissibility may be weighed in light of whether it was in fact truly voluntary. In our judgment it is unrealistic to hold, as a rule of thumb, that any confession is absolutely void solely on the basis of absence of legal counsel when made. Neither do we feel that the rule should be different whether the confession occurred before or after indictment. For these reasons, we conclude that the statements appellant made to Mr. Young were properly admitted.

Appellant insists that White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, conclusively determine that his constitutional right to due process was denied because he did not have counsel when brought before the Warren County Judge for examining trial. First blush reading of those decisions tends to support that view, but more considerate analysis of them shows they do not rule this case.

In White the accused entered a guilty plea at his preliminary hearing. The trial court permitted evidence of that guilty plea upon the jury trial. In Hamilton it appeared that only at the examining trial could certain defenses be raised. It is true that in each of the cited opinions the Supreme Court wrote that prejudice is not the determinative question. However, in each of those cases definite prejudice to the accused was shown. The basis for both decisions appears to us to be that the particular preliminary hearings were considered to be “critical stages” in the criminal proceeding. The Supreme Court rule, by which all federal and state courts are bound, is that due process requires that an accused have counsel at any critical stage of the criminal proceeding, unless that right is competently waived. If it is found that opportunity for counsel has not been afforded at a critical stage, the matter of prejudice is not involved. The determinative factor is whether the particular activity is at a critical stage.

The present record is nearly devoid of any showing as to the examining trial procedure. In fact, all of the evidence as to the examining trial is embodied in three questions and answers, as follows:

“Q. 74. Were you present at the ex-examining trial?
“A. Yes, sir.
“Q. 75. Was he given an examining trial?
“A. He waived to the magistrate.
“Q. 76. Was he advised at that time that he had a right to engage an attorney by’ the County Judge?
“A. I don’t recall, Mr. Huddle-ston, whether he was or not.”

We are told in appellant’s brief that no counsel was furnished by the examining magistrate (Warren County Judge).. Upon an oral argument before us appellant’s counsel asserted that as fact. For purposes of discussion we accept the statement as accurate, although we entertain doubt that the question is properly preserved.

The general framework for examining trials in Kentucky was embraced in §§ 49 through 71a-8 of the Criminal Code of Practice. The examining trial procedures are now contained in RCr 3.02 through 3.22, as supplemented by certain statutory provisions; the former Criminal Code provisions were applicable at the time appellant was before the Warren County Judge. Criminal Code § SI provided that before commencing the examination the magistrate shall state the charge, and inquire of the defendant whether he desires the aid of counsel, and shall allow a reasonable opportunity for procuring it. No provision of the Criminal Code required the examining magistrate to appoint counsel at the examining trial.

This jurisdiction has long held fast the fundamental right of an accused to be represented by counsel. Kentucky Constitution § 11 specifically provides that an accused has the right to be heard by himself and counsel in all criminal prosecutions. This court has repeatedly held that the accused’s right to counsel is an inviolable one, and may be waived only if done understandingly, intelligently, competently and voluntarily. Schneider v. Com., Ky., 332 S.W.2d 250; Roberts v. Com., Ky., 339 S.W.2d 640; Hart v. Com., Ky., 296 S.W.2d 212; 6 Ky.Digest 2, Criminal Law, <§=>641.

However, so far as our research has disclosed, we have no case which assures .the right to appointment of counsel at an examining trial. It is noteworthy that in the newly adopted- Rules of Criminal Procedure, by RCr 8.04 the matter of assignment of counsel is made necessary “If on arraignment or thereafter, in felony cases, the defendant appears in court without counsel * * By RCr 8.02 arraignment includes the reading of the indictment. Arraignment was defined by Criminal Code, § 154, as “ * * * the reading of the indictment by the clerk to the defendant, and asking him if he pleads guilty, or not guilty, to the indictment.” It is clear that an arraignment may not occur until an indictment or information has issued. Neither of these can be issued by the examining magistrate.

If the magistrate concludes from the examination that reasonable grounds exist to believe the defendant guilty of the offense charged, he shall be held for trial and committed to jail, or discharged on bail. Criminal Code, § 66. Conversely, Criminal Code, § 65, provided that should the magistrate be of the opinion that the examination failed to reveal sufficient cause for believing that the defendant had committed a public offense, he was to discharge the defendant from custody. The magistrate had no jurisdiction to try the charged felony on its merits, nor could any plea of the defendant’s guilt be accepted; such a “plea” could be interpreted only as a waiver of examining trial.

We envision a situation wherein an examining magistrate arbitrarily refuses to permit the defendant to have counsel; then the magistrate discharges the accused from custody upon a finding that no probable cause to hold him had been shown. Thereafter a grand jury returns an indictment accusing the defendant of the crime. Would the failure of the magistrate to furnish counsel at the examining trial preclude prosecution of the defendant? We cannot perceive that it would. By parity of reasoning, it is our conclusion that the alleged failure to furnish counsel to the present appellant at the preliminary hearing is not available as error here. It is our view that the examining trial is not such a critical stage of the proceeding as brings it within the purview of Hamilton v. Alabama, supra, or White v. Maryland, supra. Unless it is shown that something prejudicial to the defendant occurred by reason of his lack of counsel at that stage, there has been no infringement of his fundamental rights.

Appellant asserts that it was reversible error to place the jury in the custody of the sheriff, since the sheriff was a witness for the prosecution. The record reflects that the sheriff was a witness for the prosecution to the extent that he introduced into evidence a sealed envelope containing a bullet which had been delivered to him by a State trooper. The appellant does not charge that the sheriff made any overture toward influencing any member of the jury, but rests his claim on the theory that since the sheriff was gracious to the jury during the periods of court recess, ^the jury would likely feel inclined to favor the sheriff’s “side” of the case. Actually, there was no effort to attack the integrity of the bullet. Neither did the bullet have a significant part in the case, since no ballistic test was made. We conclude the asserted error is without merit.

Finally, the appellant charges error in failure of the trial court to specifically instruct the jury that its finding as to penalty required unanimity. There were five separate instructions given. The first one defined willful murder and advised the jury of the optional penalties of life imprisonment or death. It was in the usual and approved form. The second instruction informed the jury that even if it should believe beyond reasonable doubt that an out of court confession by appellant amounted to a confession of guilt, such confession may not support conviction unless accompanied by other proof that such an offense was committed. By the third instruction the jury was told that if it believed William Boyd was an accomplice, it could not convict upon Boyd’s testimony unless the testimony was corroborated by other evidence tending to connect appellant with the offense; the instruction was in usual form, and is not challenged. The fourth instruction was the usual reasonable doubt admonition. The fifth one required that the verdict be unanimous, and is as follows: “The verdict of the jury must be unanimous and signed by one of your number as foreman.”

It is fundamental that the instructions are to be considered as a series and in their entirety. Jackson v. Com., 285 Ky. 313, 147 S.W.2d 715; Stanley’s Instructions to Juries, § 800. There could be no doubt that the jury fully understood that its entire verdict must be unanimous, because its finding could not be called a “verdict” unless it encompassed both the issue of guilt and the degree of punishment. Upon a unanimous decision of "not guilty” the degree of punishment would have become moot. It is significant that in its verdict the jury incorporated this sentence: “This decision is unanimous.” We are unable to find error in this regard.

Consistent with our well-known policy, we have carefully examined every question presented in this record. We have bypassed the technical failure of appellant to timely file the record as required by RCr 12.58. Smith v. Com., Ky., 366 S.W.2d 902; Bowman v. Com., Ky., 290 S.W.2d 814.

In his petition for rehearing appellant urges that Escobedo v. Illinois. 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, requires reversal of the case at bar. The basis of Escobedo is stated in the majority opinion of Mr. Justice Goldberg:

“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and ■been denied an opportunity to consult ■with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342, 83 S.Ct., at 795 [9 L.Ed.2d at 804, 93 A.L.R.2d 733], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Emphasis added.) Op. cit. 378 U.S. 490, 84 S.Ct. 1765, 12 L.Ed.2d 986.

Here it is to be recalled that appellant was affirmatively advised of his right to counsel and his right to remain silent; he was cautioned that any given statement could be used against him in subsequent prosecution. We have no evidence of appellant’s request for counsel; neither is there evidence that counsel was refused. On the other hand, there is affirmative undisputed evidence that appellant did not request counsel. We consider these basic factual differences as clearly distinguishing the present case from Escobedo.

It is our view of the case at bar that appellant has been accorded that degree of fundamental fairness essential to the concept of justice.

The judgment is affirmed.


source: Caselaw Access Project

author: WALKER, Justice

license: Public Domain

text:
    Ex parte V. M. BROWN and Mrs. Afton Brown.
    No. A-10027.
    Supreme Court of Texas.
    July 22, 1964.
    Eli Willis, Lovell & Lyle, Dumas, for relators.
    McCown & Cobb, Dumas, for respondent.
   WALKER, Justice

This original habeas corpus proceeding involves conflicting child custody orders issued by two district courts with coordinate potential jurisdiction over the subject matter. On April 4, 1961, Glenn Doris Bray instituted divorce proceedings against her husband, William B. Bray, Jr., in Cause No. 3672 in the 69th Judicial District Court of Moore County, hereinafter referred to as the Moore Court. She there sought custody of William Michael Bray, a boy then about one and one-half years of age, who was the only child born to the marriage. The court originally awarded temporary custody of the child to his mother, but on June 30, 1961, an order was entered placing the child in the temporary care and custody of V. M. Brown and wife, Mrs. Afton Brown, who are re-lators here. Mrs. Afton Brown is the mother and V. M. Brown is the stepfather of Glenn Doris Bray. The plaintiff in that action, Glenn Doris Bray, later moved for a non-suit. On July 25,1961, the Moore Court granted such motion “as to her prayer for divorce only,” and in the same order decreed that relators should continue to have temporary care, custody and control of the child.

On February 11, 1963, William B. Bray, Jr., the defendant in the Moore County action, instituted suit for divorce and custody of the child against Glenn Doris Bray in Cause No. 1249 in the 84th Judicial District Court of Hansford County, hereinafter referred to as the Hansford Court. Glenn Doris Bray filed an answer and cross-action for divorce in which she alleged that the child was in the legal custody of relators. Relators intervened and took the position that the custody issue had been finally determined by the decree of the Moore Court. Subject to their plea of res adjudicata, they prayed in the alternative that custody of the child be awarded to them. On September 17, 1963, the Hansford Court entered judgment granting William B. Bray, Jr., a divorce and custody of the child. Notice of appeal was given by relators, but the appeal was not perfected.

Relators refused to surrender possession of the child to the father, and the latter thereupon instituted contempt proceedings in the Hansford Court. A few days later the Moore Court on its own motion issued in Cause No. 3672 a temporary restraining order directing relators not to surrender physical custody of the child to anyone, and cited relators to appear and show cause, if any they had, why a temporary injunction should not be issued. On February 17, 1964, after a hearing attended by relators and their counsel, the Moore Court issued a temporary injunction “pending final hearing in determination of this cause” restraining re-lators from allowing the child to be taken from their custody.

On February 28, 1964, relators were adjudged guilty of contempt by the Hansford Court, and their punishment was assessed at one hour in jail. It also ordered that re-lators be held in jail until they purge themselves by surrendering the child as directed by the divorce decree. After relators were confined pursuant to the contempt judgment, we granted a writ of habeas corpus and ordered them released on bond pending a hearing and determination of the legality of the restraint.

Relators say that the judgment entered by the Hansford Court on September 17, 1963, is void in so far as it purports to deal with the custody of William Michael Bray, because there was then pending in the Moore Court a prior action involving the same subject matter. They rely on Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800; Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701; and Fowler v. Fowler, Tex.Civ.App., 292 S.W.2d 800 (no writ). These cases hold that a custody decree, rendered at a time where there is pending in another court of competent jurisdiction a previous action involving the same subj ect matter, is void. They are not applicable here, however, because no action involving the permanent custody of William Michael Bray was pending in the Moore Court when the divorce suit was filed in Hansford County.

In the ensuing discussion of the temporary custody order of July 25, 1961, we are concerned only with the jurisdiction of the Moore Court to enter the same. No question as to whether such order was warranted by the evidence heard by that court is before us. We agree with relators that the non-suit in the original divorce action did not deprive the Moore Court of power to make temporary orders for the protection of the interests of the child. Article V, Section 8, of the Texas Constitution Vernon’s Ann.St. confers upon the District Court original jurisdiction and general control over minors under such regulations as may be prescribed by law. “While it has been held that a court may not take jurisdiction to adjudicate the custody of a minor on its own motion, Hardy v. McCulloch, Tex.Civ. App., 286 S.W. 629, writ refused, it has also been held that a child becomes a ward of the court when it is brought before the court for any purpose. In re Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; 27 Am.Jur., Infants, § 105, p. 827 ; 43 C.J.S., Infants, § 7, p. 56. One cannot invoke the jurisdiction of the court to deal with the personal status or the person of a child and at the same time deny the power of the court, in that proceeding, to do with the child’s person or his status whatever appears to the court to be for the best interest of the child.” Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79.

There are a number of decisions in which our Courts of Civil Appeals have recognized that orders concerning the custody of children may be made at the conclusion of a divorce proceeding even when the divorce is denied. Boggs v. Boggs, Tex. Civ.App., 306 S.W.2d 237 (no writ) ; Danache v. Danache, Tex.Civ.App., 296 S.W.2d 821 (no writ); Lolley v. Lolley, Tex.Civ. App., 181 S.W.2d 941 (writ dis.); Defee v. Defee, Tex.Civ.App., 51 S.W. 274 (no writ). It has also been held that the court may enter an effective temporary custody order upon the taking of a non-suit in the divorce action. McClendon v. McClendon, Tex.Civ.App., 289 S.W.2d 640 (no writ). This holding of the McClendon case is sound, but we do not approve the statements in the opinion of the Court of Civil Appeals indicating that the trial court might properly have made a custody determination that would have been final and permanent in the absence of some material change in circumstances. A district court must be, in. position to protect the interests of any minor that is brought before it, but this can be done by the entry of temporary orders in the unusual situation where the case in which its jurisdiction was invoked is dismissed. It is not necessary for the court to make a final adjudication of custody when no one is seeking that relief.

The order entered by the Moore Court on July 25, 1961, awarded temporary custody to relators, and that was the extent of the court’s power after the mother had taken a non-suit in the divorce action. In the ordinary case a temporary order such as this cannot remain in force after the entry of a final judgment, but a temporary custody order entered upon dismissal of the case which brought the child before the court necessarily continues in full force and effect until set aside by the issuing court or modified by another court of competent jurisdiction in an action instituted for the purpose of obtaining a final custody adjudication.

Aside from the power to make further temporary orders as the interests of the child might require, the active jurisdiction of the Moore Court over the subject matter terminated when it granted the wife’s motion for a non-suit. There was no prior case pending in that court which involved the same subject matter when the Hansford Court entered its divorce and custody decree. Relators intervened in the divorce action in Hansford County, and the Hans-ford Court thus acquired complete jurisdiction over the parties and the subject matter. Upon the rendition of its judgment awarding custody of the child to the father, the temporary custody order of the Moore Court was of no further force and effect.

Since prior active jurisdiction over the subject matter was vested in the Hansford Court at the time, the temporary injunction issued by the Moore Court is void and may be violated with impunity. Ex parte Lillard, supra; Ex parte Godeke, supra. Although relators argue to the contrary, it is our opinion that the judgment entered by the Hansford Court in the divorce action ordered them to surrender possession of the child on October 1, 1963. Their failure and refusal to do so constitutes contempt of that court, and they must be remanded to the custody of the Sheriff of Hansford County until they purge themselves of contempt as directed by the Hans-ford Court. It is so ordered.


author: STEAKLEY, Justice.

text:
    INDUSTRIAL LIFE INSURANCE COMPANY, Petitioner, v. Robert D. FINLEY, Jr., Respondent.
    No. A-10067.
    Supreme Court of Texas.
    July 8, 1964.
    Rehearing Denied Oct. 7, 1964.
    Locke, Purnell, Boren, Laney & Neely and J. L. Shook, Dallas, for petitioner.

      Douglas E. Bergman, Dallas, for respondent.
   STEAKLEY, Justice.

Petitioner, Industrial Life Insurance Company, defendant below, contracted in writing with Respondent, Robert D. Finley, Jr., plaintiff below, under the terms of which Respondent agreed to solicit life insurance for Petitioner from debtors of financial institutions and dealers located in the Midland area. The contract was dated July 8, 1958, and provided that Respondent would be compensated for his services in two respects: First, he would receive 50 per cent of the net premiums on insurance written by him; and, in addition, he would be paid contingent commissions computed upon the basis of a formula outlined in the contract. The relationship continued until August 1, 1960, as of which date Respondent ceased to write insurance for Petitioner.

Subsequently, Respondent instituted this suit against Petitioner for contingent commissions which he claimed to be due under the contract. Petitioner answered with a plea of accord and satisfaction, compromise and settlement, or release. Both parties filed motions for summary judgment. The trial court granted Respondent’s motion and entered judgment for him in the sum of $9,835.62. The Court of Civil Appeals held there were issues of fact to be resolved and reversed the judgment of the trial court and remanded the cause for trial on its merits. 374 S.W.2d 947. We granted the application for writ of error of Petitioner upon its points urging that there was an accord and satisfaction as a matter of law, and that the Court of Civil Appeals erred in holding that there were issues of fact to be tried on the merits. These we sustain.

The sworn pleadings and affidavits of the parties in support of their respective motions for summary judgment, together with their respective answers to the motions for summary judgment, establish the sequence of events. The Agency Agreement between Petitioner and Respondent dated July 9, 1958, contained a termination provision that “Either party hereto shall have the right to terminate this agreement upon thirty days notice in writing of a desire to do so.” The contingent commission provision was as follows:

“In addition the agent will be entitled to receive a contingent commission which will be computed according to the following formula at the end of each twelve month period for which premiums are received under this agreement. The total amount of earned premiums, calculated on a monthly pro rata basis, will be determined through IBM computations. Thereafter the following deductions will be made from the calculated earned premiums: 50% of the net written life and accident and health premiums already paid to the agent; 15% of the net written premiums to be deducted for Industrial’s retention figure; all losses incurred during the twelve month period. If there is any remaining amount of earned premium, then all of the remaining amount will be paid to the agent in the form of a contingent commission.
“It is agreed that in the event the guaranteed commission paid the agent, and the amount of incurred losses during the year are such that Industrial does not receive its rentention figure, then the deficit amount will be carried forward to the following year and will serve as a deduction in computing the contingent commission due the agent that year. This deficit formula will continue on a year to year basis until Industrial receives it’s 15% retention figure each year. However, in no way will it affect the guaranteed 50% commission paid the agent on a net written premium basis.
“At the request of the agent the company hereby agrees to compute the contingent commission due, if any, according to the above formula every six months that premiums are received under this agency agreement.”

By letter to Petitioner dated August 16, 1960, Respondent confirmed his advice by telephone on August 15, 1960, that he was discontinuing the writing of business for Petitioner as of August 1, 1960.

Under date of July 7, 1961, the Agency Supervisor of Petitioner wrote Respondent as follows:

“Enclosed is your contingent statement of December 31, 1960. You will note that your statement is now in the black in the amount of $814.52. It is my understanding that Mr. Shepard has previously advised you that this money will not be payable to you until the business has run off the books.
“I hope this will give you the information you need and wish you the best of luck down in Austin.”

It may be noted at this point that the final and exact amount of contingent commissions which would result from application of the contract formula to the policies written by Respondent for Petitioner could not be known until the business had “run off the books,” that is, until the full experience of the policies, and the application of the contract formula to them, could be known. The time element could not exceed thirty-six months from the date of each policy because this was the maximum duration of coverage which Respondent could write under his contract with Petitioner. The final amount did in fact prove to be $9,835.62 (after deducting $814.-52 previously paid Respondent), for which amount the trial court entered judgment for Respondent.

Under date of December 8, 1961, the Vice President of Petitioner wrote Respondent the following letter:

“Reference is made to our recent conversation pertaining to possible contingent commission due to you that may have accrued as a result of the agency agreement that we had with you when you were with the City Finance Company of Midland.
“Our attorneys have examined our entire contingent commission program and have advised us that the wording which is controlled in the contingent commission portion of your original agency agreement which was dated July 9, 1958 covers only contingent commissions earned in ‘each 12 month period for which premiums are received under this agreement.’ They have advised that, whenever the agency agreement has been cancelled, the earning of any contingent commission ceases on that date. They have advised that your contingent commission should be computed August 1, 1960, since July, 196P [meaning 1960] was the last month in which you issued coverage for our company. However, since your agency agreement also provides that the formula be computed for each 6 month period, we furnished to you on July 7, 1961, a statement of the contingent commission which had accrued to you as of December 31, 1960. In the event you have misplaced your copy of this statement, I am enclosing a photostatic copy of same which reflects that, as of that date, your contingent commission amounted to $814.52.
“Inasmuch as this is the last date that the contingent commission will be computed, I am enclosing herewith our check in the amount of $184.52 which is full and final settlement for the contingent commission due under our contract which you terminated by letter dated August 16, 1960. In the event you do not have a copy of your letter of termination, I am enclosing herewith a photostatic copy of it, together with a photostatic copy of the contingent commission provision of the agency agreement.” (Italics added.)

The check of Petitioner in the sum of $814.52 transmitted to Respondent by the above letter also carried on its face a notation which read: “Received as full payment of all money due as contingent commission under an Agency Agreement between Robert D. Finley, Jr. and Industrial Life Insurance Company dated July 9, 1958.” Respondent cashed the check.

Subsequently, under date of December 21, 1961, Respondent wrote Petitioner’s Vice President as follows:

“I have been out of town this week and in checking with my wife last night, I find that the contingent Commission Statement which was to have been in my hands not later than Monday December 18, 1961 had not been received. I will appreciate your sending this statement at once.
“1 want to thank you for sending the Statement of Losses. It was about what I had figured except for the Foy account. It looks as if you may be charging me with your attorney ex-pence [sic], which I cannot be held responsible for this expence [sic] since it was your election to handle the claim in this manner.
“Jim, please do not feel that my feelings in this is personal. I am' simply not going to just give the commissions due me away. I will do what is necessary to see that I receive my full commissions.”
This suit was filed May 10, 1962.

As previously mentioned, the Agency Agreement expressly provided that either party could terminate the contract upon notice in writing to the other. There is, however, no express provision regarding the effect of a termination upon the contingent commission account. The contract is subject to the construction that Respondent’s right to contingent commission on all policies he had written for Petitioner was unaffected by his act of discontinuing the writing of further business, the amount of which being determinable by application of the contract formula. This is the theory of Respondent’s suit against Petitioner, and no doubt was the basis for the judgment of the trial court granting Respondent’s motion for summary judgment.

On the other hand, the contract is subj ect to other constructions, e. g., that the earning of contingent commissions ceased when Respondent discontinued writing business for Petitioner; or, that Respondent was entitled to the payment of contingent commissions only after the policies he had written for Petitioner had established their full experience under the contract formula; or, that at the end of the last six month period in which Respondent had written policies for Petitioner, Respondent was entitled to contingent commissions in an amount determinable by application of the contract formula at such time. It is apparent that Petitioner through its Agency Supervisor expressed the second view mentioned above in the letter to Respondent dated July 7, 1961; and that Petitioner through its Vice President stated in the letter of December 8, 1961, to Respondent that Petitioner’s attorneys had advised that the first view was correct, but that Petitioner was tendering its check in the sum of $814.52 to Respondent upon the basis of a final contingent commission payment to Respondent as of the end of the last six month period in which Petitioner was required to render Respondent a computation under the contract formula.

Respondent in his First Supplemental Petition alleged that it was Petitioner’s “position and so expressed to Plaintiff prior to December 8, 1961, both orally and in writing, that contingent commissions could not and would not be calculated on the premiums received by the Company under the terms of the above-mentioned contract and its amendments until all of the insurance business so written by Plaintiff had run off the books.” This allegation corresponds to the position taken by Petitioner in the letter of the Agency Supervisor dated July 7, 1961, previously quoted. In Respondent’s affidavit to his answer opposing Petitioner’s motion for summary judgment, Respondent stated “that subsequent to the writing of such letter [the letter of July 7, 1961], Mr. James W. Shepard, Vice Presi-den of Industrial Life Insurance Company, asserted to me the position of the company, that I was entitled to no contingent commissions under the terms of my contract with such company for the reason that it was their position that the company had not received any premiums subsequent to August 1, 1960.” This statement corresponds to the position of the attorneys of Petitioner outlined in the letter of its Vice President dated December 8,1961, transmitting Petitioner’s check in the sum of $814.-52.

Petitioner alleged in its motion for summary judgment, and in the supporting affidavits of its officers, that a bona fide dispute existed between the parties at the time of its tender to Respondent of the check in the sum of $814.52; that Petitioner was contending that the earning of contingent commissions ceased on the day Respondent discontinued writing business for Petitioner under the contract, or that contingent commissions could not accrue subsequent to the end of the last six month period in which Respondent wrote business under the contract and in which premiums were received from Respondent on business he had written.

In the solution of the problem of accord and satisfaction before us we are not required to construe the basic contract of the parties, and we express no opinion thereon. The various possible constructions and the positions of the parties, reviewed above, are relevant only in the establishment of the fact that there existed a bona fide dispute between the parties at the time of Petitioner’s letter to Respondent, dated December 8, 1961. This is the letter which transmitted Petitioner’s check in the sum of $814.52 with the statement that the check was tendered in “full and final settlement for the contingent commission due under our contract which you terminated by letter dated August 16, 1960”; and with the check bearing the corresponding notation, “Received as full payment of all money due as contingent commission under Agency Agreement between Robert D. Finley, Jr. and Industrial Life Insurance Company dated July 9, 1958.”

Much has been written upon the defense of accord and satisfaction. 1 Am. Jur.2d 299, 1 C.J.S. Accord and Satisfaction p. 460, 1 Tex.Jur.2d 206, 4 A.L.R. 474, 34 A.L.R. 1035, 53 A.L.R. 768, 75 A.L.R. 905, 112 A.L.R. 1219, 4 Tex.L.R. 523, 16 Tex. L.R. 101, 17 Tex.L.R. 205. There must be a new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of the lesser payment tendered and accepted. The defense may be established by part payment of an unliquidated demand; and “[s]uffi-cient consideration for accord may inhere in or arise out of a dispute as to liability upon a liquidated claim. This presupposes that denial of liability, in whole or in part, is not merely factitious or mala fides.” Simms Oil Co. v. American Refining Co., Tex.Comm.App., 288 S.W. 163 (1926), quoted with approval in Ortiz Oil Co. v. Geyer, 138 Tex. 373, 159 S.W.2d 494 (1942). McCarty v. Humphrey, Tex.Comm.App., 261 S.W. 1015 (1924), speaks in terms of the evidence conclusively establishing “an assent of the parties to an agreement that the amount” paid by the debtor to the creditor “was in full satisfaction” of the “entire claim.” Simms, supra, says “the minds must meet” and where resting in implication, “the facts proved” must “irresistibly point” to such conclusion.

In Root & Fehl v. Murray Tool Co., Tex. Comm.App., 26 S.W.2d 189 (1930), the check from the debtor to the creditor was marked in full payment of the account. The jury found that it was not agreed between the parties that the check was in full satisfaction; but the jury also found that the creditor knew the check was marked as a payment in full. The court said:

“We think, in view of the fact that there was no evidence in the record of any express agreement between the parties that the check was to be accepted only as partial payment, the legal effect of the acceptance with the knowledge of the recital on the check that it was tendered in full payment, as a matter of law, operated to sustain plaintiff in error’s plea of accord and satisfaction, entitling it to the judgment rendered by the trial court.”

This Court in Texas & Pacific Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591 (1938), held there was no issue of fact where a draft was accepted and cashed by an injured party containing the provision “In full and complete settlement and payment for personal injuries and damages received at Sweetwater, Texas, November 23, 1931.” There also appeared on the draft the words “Read before endorsing.” To the same effect are the cases of Fennell v. Troel, 226 S.W. 442 (Tex.Civ.App.1920, no writ), in which the check was marked “Paid in full”; Burgamy v. Davis, 313 S.W.2d 365 (Tex. Civ.App. 1958, no writ), in which the check notation “Payment of account in full” was marked out before cashing, but such fact was not communicated to the debtor ; Robertson v. National Spiritualists’ Ass’n., 25 S.W.2d 889 (Tex.Civ.App.1929, writ dism.), in which the check carried the notation “In full of all demands of any character whatsoever against the estate or will of John L. Jackson, deceased, National Spiritualists Association of the United States of America, George B. Warne, President of said Association, and Ethridge-McCormick and Bromberg, or any of them”; Buford v. Inge Construction Co., 279 S.W. 513 (Tex.Civ.App.1925, no writ), wherein the court held:

“The indorsement on the check certainly was in unequivocal terms, and declared that its acceptance by appellee would constitute a full settlement of the claim. The letter in effect stated that the amount of the check was. tendered in full payment of the work done, and further that, if settlement of the account on that basis was not satisfactory, the matter would have to-be arbitrated. We can only construe the tender thus made as an unequivocal offer of accord and satisfaction. When appellee received this check and explanatory letter, it was given the choice, either to accept the check as full payment of its debt, or to return same, unaccepted, and hold appellant for its full claim. When appellee’s manager chose the former course, and accepted the money represented by the check, he thereby took said money under the sole condition on which it was tendered, unaffected by the mental attitude of its said manager in reference to whether it was accepted as full and complete-payment of the debt. Such mental attitude cannot control the effect of the said act. We therefore hold that the undisputed evidence in this case shows ■that there was a valid accord and satisfaction of this debt, and that same is a bar to the claim asserted by ap-pellee in this suit.”

McCarty, supra, held under the facts there considered that the question of whether or not there was an accord and satisfaction presented at most a question of fact as to which the conclusions of the Court of Civil Appeals were final; but in so doing, the court said, by way of parenthesis, “(It is significant and important that this check did not have upon it some such notation as. ‘in full’ or ‘in full for all claims.’)”

Under the precedents we have reviewed, the conclusion is inescapable that the undisputed facts in the case at bar establish the defense of accord and satisfaction. The notation on Petitioner’s check, and the statement of the basis of its tender to Respondent in the transmittal letter, were a clear and unequivocal offer of an accord. The act of Respondent in accepting and cashing the check with knowledge of the recitals on the check and in the transmittal letter was an acceptance. The resulting transaction constitutes an accord and satisfaction. It matters not whether Respondent’s claim is considered to be liquidated or unliquidated. If unliquidated, in the sense of the amount being unknown and unascer-tainable at the time of the transaction, the offer and acceptance of a lesser payment establishes the defense; if liquidated, there is consideration in the dispute between the parties as to the extent of Petitioner’s liability to Respondent under their contract.

Respondent urges that there are fact issues in two respects which require a remand of the case. He asserts these to be whether there was a meeting of the minds and whether there was a mistake of fact in the acceptance and cashing of Petitioner’s check. He argues that the word “due” employed in the notation on the check was used in the present tense only; that the amount of the check was all that was due and owing Respondent at that time; and that his acceptance and cashing of the check was not with the understanding that it was in settlement of contingent commissions that might later become due under his construction of the contract. Under the decided cases, these contentions of Respondent cannot stand in the face of the language of the transmittal letter and the check notation. “Full and final settlement for the contingent commissions due under our contract which you terminated by letter dated August 16, 1960” can only be construed as imparting knowledge to Respondent that the accompanying check was tendered in full accord and settlement of all the obligations of Petitioner for the payment of contingent commissions. Under the holding in Root & Fehl, the recitals in the letter and in the check operate to sustain the plea of accord and satisfaction in the absence of any evidence of an express agreement that the check was to be accepted only as partial payment. There is no such evidence here. This is also the rationale of the cases in which notations and recitals of similar import have been considered.

The principal cases cited to the contrary are distinguishable. While recognizing the consequences of accepting a check marked “Paid in full,” the court in Firestone Tire & Rubber Co. v. White, 274 S.W.2d 452 (Tex.Civ.App.1954, no writ), remanded the cause in the interest of justice because “The record therefore shows that each party was laboring under a mistake of fact,— Firestone as to the amount due and Crow as to the amount of his loss in the partnership venture. That is to say, neither party knew all the material facts at the time Firestone confirmed the balance due by Crow and at the time Crow paid such stated balance. Under such circumstances each party failed to fully develop his evidence on material issues * * Similarly, in Call of Houston, Inc. v. Mulvey, 343 S.W.2d 522 (Tex.Civ.App.1961, no writ), the court said:

“The doctrine under which a debt may be discharged by acceptance of a check in a smaller amount requires that the check be tendered on the condition that its acceptance will be in full satisfaction of the debt. This condition may be expressed or inferred from circumstances and the debtor’s conduct clearly indicating that acceptance of the check is to disharge the entire debt. 1 Tex.Jur.2d Accord and Satisfaction, § 34, p. 234. Here it is not beyond dispute that the check was so tendered.” (Italics added.)

The judgments of the trial court and of the Court of Civil Appeals are reversed, and judgment is here rendered for Petitioner.

      . The contract was later amended to increase the percentage on premiums and to effect changes in the formula for computing contingent commissions; the subsequent amendments are not relevant to the problem of the case but are reviewed in the opinion of the Court of Civil Appeals. 374 S.W.2d 947.

      . The agreement was subsequently amended to effect changes in the formula which are not material to the question at hand.


author: NORVELL, Justice.

text:
    Clyde R. VANCE et al., Petitioners, v. Maud Lillian WILSON, Ind. Ex’x., Respondent.
    No. A-10002.
    Supreme Court of Texas.
    July 15, 1964.
    Rehearing Denied Oct. 7, 1964.
    Hardie, Grambling, Sims & Galatzan, El Paso, for petitioners.
    Kerr, Day & Cook, Fort Worth, Hill D. Hudson, Pecos, for respondent.
   NORVELL, Justice.

In essence this is a suit to declare invalid four deed of trust sales covering various parts of a section of land in Reeves County, Texas. The legal effect of a judgment rendered in Cause No. 65,906-C on the docket of the District Court of Wichita County, Texas, styled Maud Lillian Wilson, Executrix v. Billie Sol Estes is the controlling factor in the case.

The plaintiffs in the trial court were Clyde R. Vance, Clyde Littlefield, Gus Morris and R. G. Weatherly. The defendant was Maud Lillian Wilson, individually and as independent executrix of the estate of J. R. Wilson, deceased. Mrs. Wilson by counterclaim brought Billie Sol Estes into the case.

The subject matter of the suit is Section 24, Block SO, Township 8 of the Texas & Pacific Railway Surveys, Reeves County, Texas. The plaintiffs separately claim various acreages in the section while Mrs. Wilson claims the entire section.

Both sides conceded that there were no fact issues involved and made motions for summary judgment. The trial court granted plaintiffs’ motion. The Court of Civil Appeals reversed and remanded the cause to the trial court with instructions to render judgment for Mrs. Wilson. 373 S.W.2d 848.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The plaintiffs in the trial court and Billie Sol Estes, the cross-defendant in Mrs. Wilson’s counterclaim, are the petitioners in this Court. Mrs. Wilson is the respondent.

The facts and circumstances giving rise to this litigation are as follows:

On March 28, 1956, J. R. Wilson conveyed all of Section 24 to Billie Sol Estes by four separate deeds. The purchase price was represented by notes secured by deeds of trust. After Wilson’s death, the respondent brought suit upon these notes. She alleged that such notes were secured by liens represented by four deeds of trust which were attached as exhibits to her petition. She prayed for judgment for her debt, together with interest and attorney’s fees and for foreclosure of the deed of trust liens against the land. This cause was docketed as No. 65,906-C. A money judgment was rendered against the defendant. This judgment was silent as to the foreclosure relief prayed for by Mrs. Wilson.

Subsequently, without paying off this judgment, Estes conveyed four separate tracts out of Section 24 (aggregating the whole of the section) to petitioners Vance, Littlefield, Morris and Weatherly, and then took agricultural leases on the property from his grantees. Thereafter, the respondent requested the trustee named in the four deeds of trust above mentioned to sell the land described therein. At such sales the property was struck off to the respondent.

It is petitioners’ contention that the judgment rendered in Cause No. 65,906-C by implication denied Mrs. Wilson a recovery by way of foreclosure of the deed of trust liens and consequently she could not thereafter foreclose the same by trustee’s sale.

The general rule in Texas is that all issues presented by the pleadings are disposed of by the judgment unless the contrary appears from the face thereof. “[A] judgment which grants part of the relief but omits reference to other relief put in issue by the pleadings will ordinarily be construed to settle all issues by implication.” 4 McDonald, Texas Civil Practice, 1340, § 17.10.

In Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77 (1896), Fowlkes sued for rentals covering 75 acres for the years 1889, 1890, 1891, and 1892. The defendant Rackley pleaded among other things that Fowlkes had previously sued him in trespass to try title to recover the 75 acres in question and for rents for the year 1889; that Rackley had denied all and singular plaintiff’s allegation; that the court had rendered judgment for plaintiff Fowlkes for the title and possession, of said land but that the judgment made no mention of rents. Rackley introduced in evidence the petition, answer and judgment in this former cause and claimed that Fowlkes’ right to recover rents for the year 1889 was barred by said judgment. Fowlkes’ attorney testified that the question of rents was not considered in the trespass to try title case. The trial court allowed rentals for the year 1889 as well as for the other years requested and the Court of Civil Appeals affirmed, saying that since there was no evidence offered on the point in the previous case and the judgment did not mention the issue of rent, then it was manifest that the question of rent had not been adjudicated. In reversing, Mr. Justice Denman speaking for this Court said:

“The first question for us to determine is, what is the prima facie legal effect of the petition, answer, and judgment in the original cause, herein pleaded by defendant, Rackley, and introduced in evidence by plaintiff, Fowlkes, as aforesaid, upon the latter’s claim for rent for the year 1889 ? The proposition seems to be sound in principle and well supported by authority that where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause [citing authorities]. This liberal construction of the judgment against the party who sought to recover therein is supported by the presumption that the court performed the duty devolved upon it upon the submission of the cause by disposing of every issue presented by the pleadings so as to render its judgment final and conclusive of the litigation, and by the further fact that the policy of the law favors the speedy settlement of litigation and opposes the harassing of the defendant with two suits for the same cause. The issue of plaintiff’s right to recover rent for 1889 having been clearly presented by the pleadings, plaintiff cannot escape this construction of the judgment, except by showing that, before its rendition, he withdrew such issue, or that the court refused to • decide it.”

See also Hermann v. Allen, 103 Tex. 382, 128 S.W. 115 (1910).

There are cases in which the question of the finality of a judgment so as to make it appealable has been passed on by the courts. The rule is that where a claim is not expressly disposed of by the judgment although -raised by the pleading, the judgment will be construed as denying relief upon such claim, and the judgment will be considered as being final and appealable. Davies v. Thomson, 92 Tex. 391, 49 S.W. 215 (1899); Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161 (1913).

We hold that the judgment rendered in said Cause No. 65,906-C is properly construed as denying to Mrs. Wilson a foreclosure of the deed of trust liens which she alleged were valid subsisting liens securing the notes upon which she obtained her money judgment. This is not a case in which the plaintiff has mistaken a remedy or one in which a remedy was pleaded and afterwards discontinued. This is a case in which the plaintiff sought two things, namely, a recovery of a money judgment and the foreclosure of certain deed of trust liens. The case was prosecuted to final judgment and that judgment, while awarding plaintiff a recovery for her debt, must be construed as denying her prayer for foreclosure of her deed of trust liens.

The respondents argue and the Court of Civil Appeals adopted the view that because the judgment rendered in said Cause No. 65,906-C was an agreed judgment, the rule of refusal of requested relief by implication has no application. We do not follow this argument. The judgment on its face does not purport to be an agreed judgment. Its recitals clearly indicate the contrary. For ought that appears, the judgment was one relating to the merits or validity of the asserted deed of trust liens. It is true that this result is arrived at by implication, but the implication is as binding as if explicitly set forth in the judgment. There is no ground here for saying that under the pleadings, the case went off on some special plea such as limitations, nor, as urged by respondents, that Mrs. Wilson discontinued her action insofar as relief by way of foreclosure is concerned.

Nor is respondent’s position bettered by her references to the statement of facts upon which she relies to demonstrate the agreed nature of the judgment. These references simply show that Estes’ attorney stated that his client had no defense to the suit and he would not contest the same, but would agree to the rendition of a judgment against Estes. The attorney said that he consented to the entry of a form of judgment which had been prepared by Mrs. Wilson’s attorney; that such judgment did not mention the matter of foreclosure; that he did not insist on omitting the foreclosure provision from the judgment, but that foreclosure was never mentioned. If the judgment were based upon consent, the written instrument, — the form of judgment prepared by Mrs. Wilson’s attorney and signed by the judge, would be the best evidence of the judgment consented to or agreed upon. We find no evidence of an agreement that Mrs. Wilson was to retain the right to foreclose by trustee’s sale in the event the judgment was not paid. Respondent insists that Mrs. Wilson abandoned any attempt to obtain a judicial foreclosure in Cause No. 65,906-C. The fact that Estes’ attorney consented to the entry of the judgment actually signed by the judge does not establish such fact. This judgment must be construed in accordance with the well-established rules heretofore set out, and this requires a holding that after the entry of final judgment in Cause No. 65,906-C, the right to foreclose by trustee’s sale was barred, and the attempted exercise of such right was nugatory.

Respondent calls our attention to Ferrantello v. Paymaster Feed Mills, Tex. Civ.App., 336 S.W.2d 644, n. r. e. (1960). It appears that Paymaster sued Bezner for debt and prayed for the foreclosure of chattel mortgage liens against a number of flocks of chickens. Paymaster also sued Ferrantello for conversion of four flocks of chickens. Suit was filed in Taylor County but, because of the filing of a plea of privilege, the case against Ferrantello was transferred to Dallas County. This resulted in a severance of the causes of action. In the Taylor County suit against Bezner, Paymaster recovered a money judgment but the judgment did not provide for a foreclosure of its chattel mortgages. The trial court and the Court of Civil Appeals held that this circumstance did not bar Paymaster’s suit for conversion against Ferrantello. Only by remote analogy can the Ferrantello case be made applicable here. The application for writ of error in Ferrantello was refused by this Court, no reversible error. Any expressions in the opinion which might be considered contrary to the rules set forth by the Supreme Court cases above cited were not necessarily approved by this Court in denying the application for writ of error. Rule 483, Texas Rules of Civil Procedure.

The judgment of this Court is rendered in the terms and provisions above indicated.

      . Estes tendered into court the full amount of principal and interest due under the judgment rendered in Cause No. 65,906-C. The trial court’s judgment directs that this money be delivered to Mrs. Wilson by the clerk of the court

      . Cf. Bandy v. Cates, 44 Tex.Civ.App. 38, 97 S.W. 710, wr. ref. (1906); Poe v. Continental Oil & Cotton Co., Tex.Com. App., 231 S.W. 717, holding approved by Supreme Court (1921); Breland v. Guaranty Building & Loan Co., Tex.Civ.App., 119 S.W.2d 690, wr. ref. (1938), and see also, Seamans Oil Co. v. Guy, 115 Tex. 93, 276 S.W. 424 (1925); Delaney v. West, Tex.Civ.App., 88 S.W. 275, wr. ref. (1905); 19 Am.Jur. 728, Estoppel § 82. These authorities are for the most part election of remedies cases and discuss circumstances under which an election is or is not binding. A number of cases hold that there is no binding election when one of the apparent remedies is wholly ineffective and unavailable. Such cases are not in point here.