author: BELCHER, Commissioner. McDonald, judge. MORRISON, Judge McDonald, judge. MORRISON, Judge

text:
    Pete GIACONA, Appellant, v. The STATE of Texas, Appellee.
    No. 34930.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 30, 1963.
    Certiorari Denied Oct. 14, 1963.
    See 84 S.Ct. 92.
    On Motion to Withdraw Mandate and Abate Appeal Nov. 27, 1963.

      Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James M. Shatto, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marijuana; the punishment, five years.

Officers Hightower and Shelton, of the narcotics division of the Houston police department, passed by the house located on the front of a lot and went between thirty and forty yards from the' street to a three-apartment unit, two of which were downstairs and one upstairs, located on the back of the lot. While on the porch downstairs and outside of th,e apartment adjacent to that of the appellant, Hightower and Shelton heard loud talking and cursing, and smelled marijuana burning. Then they moved in front of appellant’s apartment and on looking through the window of his apartment they saw the appellant smoking a handrolled cigarette, and then pass it to a male companion. From the outside the officers also saw through the window three handrolled cigarettes with the ends tucked and a quantity of green plant substance on a table.

Officer Hightower knocked on the front door of appellant’s apartment, announced he was a police officer and when no one responded, Officer Shelton unlatched the screen door after cutting the screen and the wooden door being open, they entered the apartment. Officer Hightower took the cigarette from the companion of appellant that he had seen pass between them a few seconds before.

The officers took possession of only that which they had seen from the outside of the apartment which was the partially smoked cigarette, the three other cigarettes and the loose plant substance on the table; and an analysis made by a chemist showed that they each contained and were marijuana.

The officers had no warrant of arrest or search warrant for the appellant or his apartment.

The appellant did not testify or offer any evidence.

Appellant strenuously urges that the trial court erred in admitting in evidence the officers’ testimony of what they did, saw or heard after entering on his premises on the ground that they were not at such time legally on his premises.

■Appellant .relies upon Gonzales v. State, 131 Tex.Cr.R. IS, 95 S.W.2d 972, but overlooks the opinion of this Court in Crowell v. Statej 147 Tex.Cr.R. 299, 180 S.W.2d 343, in which it was held that the contention which appellant here makes was not the basis for the reversal in the Gonzales case.

In considering a similar contention that the testimony of two officers was not admissible in evidence because they were unlawfully on the premises, this Court in Heath v. State, 161 Tex.Cr.R. 323, 276 S.W. 2d 534, 535, said:

“Appellant objected to the testimony of the Sheriff and the Ranger on the grounds that they were not armed with a search warrant and were unlawfully upon his premises.
“The State relies upon Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, and Eversole v. State, 106 Tex.Cr.R. 567, 294 S.W. 210. The rule announced in those cases seems to be that if one is foolish enough to leave his windows uncurtained he may not complain if another comes upon his property and observes an illegal act being committed therein. In the Crowell case we discussed the holdings of the Supreme Court of the United States on the question.”

See Art. 212, Vernon’s Ann.C.C.P., and the cases noted under it.

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

Opinion approved by the Court.

ON MOTION FOR REHEARING

McDonald, judge.

In his Motion for Rehearing and by well-prepared brief and forceful oral argument appellant’s very able counsel requests this Court to specifically pass on the federal issues raised in this Court and in the trial court. It is appellant’s position that we have wholly overlooked many of his objections taken to the search in question and that we have not seen fit to so much as give him the benefit of our views on these objections and exceptions raising the federal constitutional issues. Appellant further takes the position that we have only considered the limited question of whether or not trespassing is a violation of the laws of the State of Texas and that we have not considered the right of privacy and the right to be left alone. We shall attempt to fully state and clarify our position on these various matters.

Without adverting to a restatement of the facts, which are rather fully related in our original opinion, we reiterate that this is not a case of evidence obtained as a result of an illegal search. It is clearly a case of an arrest being made by officers without a warrant for the felony offense committed in their presence and to seize as an incident to this legal arrest, the marijuana found in possession of appellant.

Appellant seems to take the position that the two officers were initially upon private premises illegally. We entertain no doubt that the two officers had a perfect, legal right to be upon the premises, the front porch. “Neither under the common law nor by virtue of any general statute, is a mere invasion of private property indictable in Texas.” 41A Tex.Jur., page 500, section 44.

Whether the officers had obtained a search warrant, or by what authority they went on the premises occupied by the several apartments, is not shown, appellant having objected when such questions were propounded to the State’s witness Shelton, and the objection having been sustained. Suffice it to say that, as we view the record, it does not show that the officers were unlawfully on the porch when they heard loud talking and cursing, smelled marijuana and looked in and saw appellant and Lewis smoking a marijuana cigarette.

Appellant cites us: Brock v. United States, 5 Cir., 223 F.2d 681; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; and Johnson v. United States, 333 U. S. 10, 68 S.Ct. 367, 92 L.Ed. 436, in support of his contention that the evidence was obtained by the officers after an illegal entry into appellant’s home, and he excerpts from these cases cited pertinent portions to sustain him, but he does not give us the factual basis for these various cases. In our judgment, it is necessary to fully analyze the cited cases to see if they are in point or may be distinguished from the case at bar. To us, it is clear that in all of the cases cited by appellant the evidence admitted was obtained as a result of an illegal search and not as an incident to a lawful arrest without a warrant.

Brock, supra, was a case from Florida involving an illegal still. It was reversed because the government had violated petitioner’s rights under the Fourth and Fifth Amendments to the United States Constitution, which respectively avail the citizen against unlawful searches and seizures and also insure him against self-incrimination.

Appellant insists that Brock, supra, is on a parallel with the case at bar because the federal agents looked through the window and then made the search without a warrant. He overlooks the fact that these federal agents had observed an illicit still for TWO DAYS before they made the raid, without first attempting to obtain a search warrant.

In Mapp, supra, the Ohio officers went to Miss Mapp’s home pursuant to information that a person was hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home. The officer first knocked on the door and demanded entrance, but Miss Mapp, after telephoning her attorney, refused to admit them without a search warrant. The officers advised their headquarters and undertook a surveillance of the house. The officers again sought entrance SOME THREE HOURS LATER when four or more additional officers arrived at the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened. They then searched the entire premises and found obscene materials for possession of which she was ultimately convicted. The officers had not seen any offense, either felony or misdemeanor, committed in their presence. There was no justification for an arrest without a warrant. As we understand it, Mapp v. Ohio, supra, held, as a matter of due process, evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible in a state court as it is in a federal court.

We are not in disagreement with the results announced in either Brock, supra, or Mapp, supra. We think that in both instances the officers had adequate time to and should have secured a search warrant. In this connection, we point out that in this state search of one’s place of abode (which includes a hotel room occupied by him) requires a search warrant or the right to arrest the occupant. Such a search upon probable cause is not authorized. Tarwater v. State, 160 Tex.Cr.R. 59, 267 S.W.2d 410; Giles v. State, 133 Tex.Cr.R. 454, 112 S.W.2d 473; Williamson v. State, 156 Tex. Cr.R. 520, 244 S.W.2d 202.

Also is the fact that by statute (Article 727a, V.A.C.C.P.) in effect before Mapp v. Ohio was written, evidence obtained in violation of any provision of the Constitution or laws of the United States or of this state, is inadmissible against the accused on trial in a criminal case in the courts of this state.

We are here dealing with an arrest made without a warrant by officers who saw a felony being committed in their view and a subsequent legal seizure, or taking, of the contraband in the officers’ view and in appellant’s possession, as an incident to a lawful arrest. We are not here dealing with a factual situation primarily involving search. Appellant has apparently overlooked this distinction.

Bynum, supra, involves a defendant who was arrested without probable cause at a time when he was committing no offense against the law in the presence of the ar-. resting officer. We do not think it applicable to the case at bar.

In McDonald, supra, the defendant had been under surveillance Jor months, as shown by the opinion. He was convicted for carrying on an illegal lottery. The officer “did not then have knowledge of a crime sufficient even in his own opinion to justify arrest, and he did not even know that the suspect, McDonald, was in the rooming house at the time.” Under these facts, what the officer saw when he climbed on a chair and looked through the transom of the room of the appellant, and the evidence obtained as a result of a search of said room after McDonald’s arrest, was held to be inadmissible.

Johnson, supra, a narcotic addict informer, told the Seattle police officer at about 7:30 P.M. that opium was being smoked at the Europe Hotel. The officers then went back to the hotel between 8:30 and 9:00 P.M. They smelled opium but saw none— they saw no law being violated until they went in the hotel room and made the search and then found the opium. In the case at bar, the officers smelled marijuana and also saw the appellant smoking and pass the cigarette to Lewis. The officers in Johnson’s case, supra, had between an hour and an hour and a half in which to have secured a warrant.

The Fourth Amendment to the Constitution of the United States reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Constitution of Texas, Art. 1, § 9, Vernon’s Ann.St., provides:

“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as ' near as may be, nor without probable cause, supported by oath or affirmation.”

Basically, there is little, if any difference, between the Fourth Amendment to the Federal Constitution and the foregoing article from our Constitution, known as the Bill of Rights. It is to be noted that neither prohibit all searches and seizures, but only such as are “unreasonable.”

A search without a warrant will not be regarded as unreasonable where the search was incidental to a lawful arrest. This has been the rule in Texas so long that we find it unnecessary to cite authorities in support of it.

It is also the same type of rule in effect in the United States. In Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, the Supreme Court of the United States, speaking through Mr. Justice Butler, used the following language:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was. committed, as well as weapons and other things to effect an escape from custody is not to be doubted.”

In State v. Smith, 37 N.J. 481, 181 A.2d 761 (June 4, 1962), the Supreme Court of New Jersey had before it a fact situation almost identical to the case at bar. Smith’s case was a narcotics prosecution in which it was held that the offense was committed within the officers’ “presence,” justifying arrest without warrant and subsequent search, where officers saw offense through crack in door or keyhole. The Court stated in Smith, supra:

“Here the officers saw the offense. That they saw it through a crack in the door or the keyhole does not affect the direct character of the knowledge gained or the conclusion that the offense occurred in their ‘presence’ within the meaning of that word. Rather it raises at best a different question, whether thus to peer into private property through an aperture constitutes a search, with the result- that the arrest depended upon the product of the search, rather than the search upon the arrest. See Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).”

The Court further stated in Smith, supra :

“Thus the presence of the detectives at the door to the apartment itself involved no misconduct or invasion of the rights of anyone. A policeman is not out-of-bounds when he is in the common passageway of a multi-family house in the furtherance of an investigation. * * * Peering through a window or a crack in a door or a keyhole is not, in the abstract, genteel behavior, but the Fourth Amendment does not protect against all conduct unworthy of a good neighbor. Even surveillance of a house to see who enters and leaves is something less than good manners would permit. But it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement, the Fourth Amendment itself draws the blinds the occupant could have drawn but did not. In the absence of a physical entry into premises secured by the Amendment, there is no unreasonable search. In such circumstances it has been held that the guaranteed right of privacy is not violated when a police officer, by use of his senses, detects a criminal event occurring in an area protected by the Amendment. As to eavesdropping, see Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) (even with aid of detectaphone).”

Also, see the many authorities cited on page 769 of Smith, supra.

“The question then is whether the Fourth Amendment intended to nullify the State’s clear right to search by imposing a condition which would defeat it. If the State’s right to the contraband is to be denied, it must be because of the evident danger and rudeness of a sudden entry. But the danger and the rudeness are not the gratuitous product of official insolence or indifference; they are the consequences of the criminal enterprise, made inescapable by its nature. Moreover, in striking a balance between the right of the State and the rights of the individual, the need to protect the innocent is not a conspicuous factor; for, as we have said, the hypothesis includes the existence of probable cause and indeed a reasonable basis to believe a criminal event is in progress. Hence, to require that admittance be demanded and the mission revealed before entry into the premises would, overall, benefit the guilty alone. It seems to us that the Fourth Amendment does not transmute a ‘reasonable’ search into an ‘unreasonable’ one merely because the officer discharged his duty to arrest and search in a manner which fairly appeared necessary for the successful enforcement of the State’s right. At any rate, in these circumstances the exclusion of the evidence would not be an appropriate sanction in the light of the probable rationale of the exclusionary rule.”

We do not think that this case comes under the search and seizure decisions relied on by appellant; we think that it is clearly a case of a legal arrest for a felony committed in view of the officers and that it comes under the terms of Article 212, V.A.C.C.P.

For these reasons we are satisfied the evidence in question was properly received and that the prior decisions of this Court cited in the original opinion sustain our holding.

Appellant’s motion for rehearing is overruled.

MORRISON, Judge

(dissenting).

Now that the full import of the holding of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, has been brought home to the writer, I find that I cannot agree with our original disposition of this case nor can I agree with my brethren in their opinion on rehearing. What we overlooked originally and what they fail to give full application to on rehearing is the basic concept of the right of privacy as guaranteed by the Fourth Amendment to the Constitution of the United States as interpreted by the Supreme Court, together with the fact that by the opinion in Mapp the guaranties of that Amendment as so interpreted have been extended to those who are tried in State courts. The fact that the officers may not have been violating a State statute when they went upon appellant’s porch is not the question. The Supreme Court has said that all citizens are by the Fourth Amendment granted “reasonable security and freedom from surveillance.” The Court of Appeals of New York (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478) has given the same construction to Mapp which the writer asserts is the correct one. See opinion of Mr. Justice Goldberg in Cleary v. Bolger, 83 S.Ct. 385 (1963).

The emergency rule which is recognized in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, has no application here. The occupants were evidently not aware of the presence of the officers, the fact that they were being pried upon or that they were in any way suspected, and time was not of the essence. In our original opinion, we failed to point out that the officers were not able to see into appellant’s apartment until they approached the window and peered through the broken slats of a closed Venetian blind. Hence, there was no occasion for haste or' the application of the “grave emergency” or “exceptional circumstances” rule, such as the hearing of a shot or flight by the suspect or destruction of the contraband. An officer was on hand to apprehend the occupants if they had attempted to leave, while the other had ample time to have secured a search warrant.

It should be borne in mind that there is an absence of any showing as to why the officers went upon appellant’s porch. Nothing came to their attention to arouse their suspicions until after they mounted the porch. So far as this record reveals, the officers may have planned to look into the window of each apartment there situated.

Because I firmly believe that the Supreme Court of the United States will reverse this conviction when it reaches them upon their holdings in Mapp v. Ohio, supra; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, supra; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; and Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, I dissent to the overruling of this motion for rehearing.

ON MOTION TO WITHDRAW MANDATE AND ABATE THE APPEAL

McDonald, judge.

It is made to appear by proper death certificate that after the conviction herein was affirmed by this Court and the Supreme Court of the United States had denied certiorari, but before mandate of this Court issued, the appellant died.

Accordingly the mandate affirming the conviction is withdrawn and the appeal is abated.

MORRISON, Judge

(dissenting in part and concurring in part).

I concur in the order of this Court in withdrawing the mandate and abating the appeal, but dissent to their refusal to follow the unanimous holding of this Court in Schaeffer v. State, Tex.Cr.App., 363 S.W.2d 944, (decided in January of this year) in which we held that where an appeal is abated, the prior opinions should be withdrawn. In White v. State, Tex.Cr.App., 299 S.W.2d 143 and Vasquez v. State, Tex.Cr.App., 238 S.W.2d 968, we held that the death of the appellant rendered moot all matters presented by the appeal. Therefore, the prior opinions in this case have, no value as precedent. I would not make this protest were I not deeply convinced that my brethren are in error in this case and were it not for the fact that the rules of search and seizure are among the most serious questions that come to this Court for decision.

My brethren can take no solace in the refusal of the Supreme Court of the United Stat'is to grant a writ of certiorari in this case because as that Court said in United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361, the denial of the writ of cer-tiorari imparts no expression of opinion upon the merits of the case.


source: Caselaw Access Project

author: BELCPIER, Commissioner.

license: Public Domain

text:
    Bobby Clyde BRADFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 36031
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Doss Hardin, Fort Worth, for appellant.
    Bruce Allen, County Atty., Waxahachie, McGee Parramore, Asst. County Atty., Waxahachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCPIER, Commissioner.

The conviction is for murder with malice; the punishment, death.

The testimony of the State reveals that in response to a radio dispatch about 8:30’ p. m. on September 22, Constable Wicker went to Sanders’ Place in Ferris where the appellant had shot his pistol three times in the yard while drinking beer, cursing and “raising sand.” While shooting the pistol appellant said, “ ‘God damn it to hell. I am going to kill me somebody before in the morning,’ and * * * things wasn’t going to happen like it did last year,’’.and then he went inside the house. It was shown that .Wicker had. arrested the appellant in July 1961, for carrying a pistol which caused him to go to the county farm. The testimony shows that shortly before going to Sanders’ Place on the night of the killing the appellant had said, “ * * * Mr. Ben (deceased) is not going to arrest me no more.” In ten or fifteen minutes after the appellant entered Sanders’ Place •Constable Wicker entered it also, where he searchéd several persons, and while he was. doing so the appellánt started toward the door. At this time Constable Wicker 'told .the' appellant to. wait and “took him on the shoulder”, ■ whereupon '.the appellant drew his pistol and. began shooting Wicker. After appellant began shooting, Wicker drew his pistol and shot the appellant; thereafter he walked over to the appellant and while taking his gun said, “turn a loose” several times; he then handed his pistol and the appellant’s 380 automatic pistol, which was empty, to Bill Moffett.

The radio dispatcher received a call at 8:40 p. m. from Constable Wicker, and he immediately dispatched an ambulance and officers to the scene of the shooting.

Testifying in his own behalf, the appellant stated that he went with three companions from Ferris to Dallas on the day of the shooting. While in Dallas they bought some beer and wine, which they began drinking in the morning and appellant did not remember leaving the beer place in Dallas, nor did he remember what happened during the day; the next thing he recalled it was 2:40 a. m. the next day and he was in Parkland Hospital. Appellant further testified that after regaining consciousness he discovered that he was suffering from a serious head injury, three shots in the hand, and one in the shoulder, and the doctors were telling him that he was going to die. He also testified that he did not remember seeing or having any difficulty with Constable Wicker on September 22; and that he did go to the county farm in 1961.

It is insisted that the trial court erred in the admission of the following statement by Wicker to Max Zilem: “‘Max, I didn’t have a chance. He ducked his head and came out at me like a football player, shooting off his gun,’ ” over appellant’s objection that it was made in his absence and was not a part of the res gestae.

This matter arose in the following manner: Max Zilem, Texas Highway Patrolman, while on routine patrol, heard a radio dispatch about 8:30 p. m. concerning a shooting in Ferris. He testified that seven or eight minutes after he heard the above dispatch, he heard a radio dispatch by Constable Wicker stating “I have been shot”; that in approximately seven or eight minutes thereafter, he arrived at the place where Constable Wicker was leaning against’ a car with several other persons nearby, and that Wicker was about one-fourth of a mile from where he had been shot. Officer Zilem observed blood on his midsection and leg. Zilem asked Wicker to get in his car, which he did, and as Zilem started toward the hospital Wicker said: “ 'Max, I didn’t have a chance. He ducked his head and came out at me like a football player, shooting off his gun.’ ”

The physician who examined Wicker at the hospital testified that he was in acute distress and shock, and therefore he was taken directly into the operating room for emergency surgery; that he suffered several penetrating wounds in the abdomen, and that one shot “just blew that portion of the bowel open.” The physician also testified that the death of Wicker was caused by gunshot wounds.

The facts and circumstances under which the statement here complained of was. made, including the time as shown by the evidence after the shooting, that it was not prompted or made in response to inquiry, and that deceased was then suffering from' the infliction of a mortal injury, bring the statement within the rule of res gestae. Therefore its admission in evidence was not error. Freeman v. State, 40 Tex.Cr.R. 545, 46 S.W. 641; Stovall v. State, 53 Tex. Cr.R. 30, 108 S.W. 699; Green v. State, 114 Tex.Cr.R. 274, 23 S.W.2d 376; Fambro v. State, 142 Tex.Cr.R. 473, 154 S.W.2d 840; 29 Tex.Jur.2d 223, Sec. 162; 1 Branch 2d, 117, Sec. 105.

Appellant contends that the trial court erred in refusing to grant his motion for a new trial on the ground of newly discovered evidence. This complaint is not presented by a formal bill of exception, hence it is not properly before this Court for review. Art. 760e, Vernon’s Ann.C.C. P.; Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587; Calanchi v. State, 169 Tex. Cr.R. 97, 332 S.W.2d 722. The evidence of the appellant and the state have been brought forward in a separate statement of facts. Careful consideration thereof shows no abuse of discretion by the trial court in refusing the motion on the ground of newly discovered evidence.

Appellant also contends that the trial court erred in sending a note into the jury room in response to a question by the jury.

The purported question and answer appear alone on a page in the transcript. They are not in any manner authenticated or presented in the record in any form which would authorize their consideration. It is observed that a similar contention was properly presented and considered in Pennington v. State, Tex.Cr.App., 364 S.W.2d 376. No error was found in that bill of exception.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Frank Neil STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 36210.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    No attorney on appeal.
    Henry Wade, Dist. Atty., Dallas, John C Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, ands Leon B. Douglas, State’s Atty., Austin, for the State
   MORRISON, Judge.

The offense is burglary; the punishment, five years.

Appellant entered a plea of guilty and waived his right to trial by jury. Appellant agreed to the stipulation of testimony to the effect that one William F. Elmore lived in Dallas, where on March 23, 1962, personal property of the value of $60.00 was taken from his home without his consent and that entrance could have been gained only by opening a door of the house.

The confession of the appellant was introduced into evidence without objection, wherein he admitted entering the house by opening the front door and taking personal property therefrom.

The record does not contain formal or informal bills of exception and no brief has been filed on behalf of the appellant.

Finding no reversible error, the judgment is affirmed.


text:
    Earl DONALDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36122.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, Joe C. Shaffer and Neil McKay, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 99 years.

In compliance with the ruling of the Supreme Court of the United States in Douglas and Meyes v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, this writer instructed the trial court to appoint an attorney to represent this appellant on appeal. The Honorable John Cutler was appointed, has presented a capable brief and appeared in person to argue the case.

The facts reveal that appellant and deceased engaged in an all night poker game at the home of a procurer, Koury; alcoholic beverages were consumed; and several girls were present, some of whom were shown to be prostitutes. At approximately 9:00 a. m., a disagreement arose as to the type of poker they were playing. Deceased claimed that he won the pot and took the money. Appellant made a demand for the return of his portion of the pot, and deceased refused such demand and cut appellant on the hand and in the abdomen. None of the wounds were shown to be serious. Appellant, who had twice before been to the penitentiary, testified that Koury assured him that he would try to get his money back for him, and he then went to his own home, secured his pistol and went to deceased’s place of employment. Deceased was not there, and appellant returned to Koury’s house. At approximately 11:45 p. m. appellant again returned to deceased’s place of employment, “pointed the gun at him (deceased) and told him I come after my money.” According to appellant, deceased cursed him, threatened to kill him, and reached in his coat, whereupon appellant shot the deceased several times and beat him over the head with the pistol after he ran out of ammunition. Following this, appellant went to a building nearby, reported that he had shot deceased, and surrendered the pistol. He was carried to the hospital where several stitches were taken in his hand, and within a few hours, he was released and carried to jail.

Two questions are presented for review. The State called as one of its witnesses one Georgia Bobbitt, who denied being a prostitute, but stated that deceased had brought her to Houston to “sell her to Koury”, who later set her up in an apartment. She stated that while in Houston, deceased had taken a diamond ring from her and refused to return it and that her purpose in being at Koury’s house on the night in question was to secure the return of her ring. By some means not shown in this record, the 'ring in question had come into the possession of the police, and appellant secured a subpoena duces tecum and had the officer bring the ring to court, but the court over the State’s objection refused to permit Georgia to identify the ring in the presence of the jury. In such ruling we perceive no error. No issue in this case could have been solved by such identification.

The next question presents difficulty. Appellant requested that the jury be charged that if appellant armed himself and sought out deceased for the purpose of recovering money which deceased had obtained from him by means of cheating at tards and that if he would not have used more force than that reasonably necessary to achieve such purpose, “you would further consider (appellant’s) plea of self defense.”

Reliance is had upon those cases such as Fisher v. State, 102 Tex.Cr.R. 229, 277 S. W. 386 and Cole v. State, 104 Tex.Cr.R. 533, 286 S.W. 204, both of which were robbery cases wherein this Court has said that if one seeks to retake only his money which he lost in a crooked gambling transaction, the accused would not be guilty of robbery. In neither of the cases is the issue of self defense discussed. In fact, Cole intimates that the accused might be guilty of an assault growing out of such a transaction. We have concluded that neither case is here controlling and that they merely hold that one who by use of a weapon retakes that which has fraudulently been taken from him has no intent to commit the offense of robbery. Neither case goes further and says that the cheated party has the right to arm himself, seek out the one who defrauded him, and kill him in an effort to achieve such end.

It should be noted that in the case at bar appellant testified as 'to his purpose in seeking out the deceased, but as to the shooting, he justified it on the threat and motion of deceased toward his coat. " The court gave an unlimited charge on the law of self defense, and we have concluded that the trial court, under the facts, did not err in refusing the requested charge.

Appellant further contends that the court should have charged that even if he provoked the difficulty, he would be guilty of no greater offense than aggravated assault if he had no intention of killing deceased. Jackson v. State, 118 Tex.Cr.R. 448, 39 S.W.2d 63, relied upon by appellant, has no application here because in that case the court charged on provoking the difficulty while no such charge was given in the case at bar. The rule expressed in Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W.2d 901 would seem to be here controlling.

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


author: McDonald, judge.

text:
    Harry Thomas McCLAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36177.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, Joe C. Shaffer and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is Driving While Intoxicated; the punishment, a fine of $200.00 and confinement in the County Jail for a period •of three days.

The testimony of the State’s witnesses, three police officers, indicated that oh the date of the alleged offense the appellant was observed driving his automobile at a high rate of speed as he proceeded through an intersection on a red light, oh a public highway in Harris County, Texas. It was the testimony of two of the officers who observed the appellant after his automobile had been stopped, that he staggered when he walked, that there was an odor of alcohol on his breath and about his person and that, in their opinion, the appellant was intoxicated. There was further testimony by the officers that the passenger in the automobile driven by the appellant was also intoxicated.

It was the appellant’s testimony, corroborated by a defense witness who had been present in the company of the appellant on the evening of the alleged offense, that he had consumed approximately three glasses of wine during the evening at the Cork Club in Houston, Texas. The appellant further testified that during the evening he had taken medications prescribed by a Dr. Ray H. Skaggs, who then testified that these medications might cause drowsiness, unsteadiness, and a temporary subduing of consciousness due to lowering of the blood pressure.

The jury resolved the conflict as to his intoxication against appellant. We find the evidence sufficient to support their verdict.

Appellant complains of the action of the Court in overruling his objection to the admission of testimony concerning the state of sobriety of the passenger in the automobile with him at the time of his arrest. The condition of the other occupant or occupants of the automobile is clearly admissible as part of the res gestae. Baggett v. State, 154 Tex.Cr.R. 618, 229 S.W.2d 801. After this testimony, appellant’s counsel admitted and offered to stipulate that appellant’s companion “was intoxicated” and "was stone drunk”. Appellant, later testifying in his own behalf, testified his companion was intoxicated.

No further points are presented for review, either by informal or formal bills of exception.

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


text:
    Ex parte George Charles HILLYER.
    No. 36264.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    Rehearing Denied Nov. 27, 1963.
    Le Grand J. Woods, Marvin F. Foster, Jr., Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Relator filed an application for, and was granted, a writ of habeas corpus by Honorable J. D. Todd, Judge of the 105th District Court of Nueces County, a hearing was held, relief was denied and notice of appeal was given.

Relator was indicted for the offense of Murder in 1954 in Nueces County. At a sanity hearing before the main charge he was adjudged to be insane at the time of the homicide and at the time of trial. He was then committed to the State Hospital at Rusk in 1954. In 1957 he was- returned to Nueces County where, after a hearing, a jury found him to be insane at that time, and he was returned to the State Hospital.

On the 8th day of June, 1963, relator was returned to Nueces County, after an affidavit of Dr. Charles W. Castner, Superintendent of the Rusk State Hospital, certifying appellant sane, was mailed to Judge Todd, as provided in Art. 932a, Sec. 3, Vernon’s Ann.C.C.P.

The trial court appointed attorneys, had a hearing, and relief was denied. The trial court found that Sec. 20 of Art. 932b, Vernon’s Ann.C.C.P., adopted in 1957, effective January 1, 1958, provides:

“The repeal of any law by this Act shall not affect or impair any act done or right, obligation or penalty existing or accrued under the authority of the law repealed; and such law shall be treated as still remaining in [full] force for the purpose of sustaining any proper action concerning any such act, right, obligation or penalty.” Vernon’s Ann.C.C.P. art. 932-2.

The Court held that this provision applied, and that relator could not be discharged until he had a sanity hearing under the pre-existing law relating to discharge of persons certified to he sane.

The appellant correctly states that the subject of this appeal requires the Court to construe the effect of the enactment of Art. 932b of the Vernon’s Ann.C.C.P. in its repeal of Art. 932a Vernon’s Ann.C.C.P. and the effect, if any, of the savings clause contained in the new statute upon persons confined under the repealed law.

It is appellant’s position that he is entitled to elect to follow the procedure of the new law, and that under the provisions of Sec. 2 of Art. 932b, Vernon’s Ann.C.C.P. he can he transferred, furloughed, or even discharged without any further Court action ■ because he stands in the status of a patient acquitted as provided for in said section.

We have carefully reviewed the record, and we do find that the trial judge who was then in office in 1954 did erroneously enter in his judgment committing the appellant to a hospital for the insane, pursuant to a jury’s finding of insanity at the time of the alleged offense and present insanity at the time of that trial that he further ordered, adjudged and decreed that the defendant, George Charles Hillyer, be and he is hereby acquitted and found not guilty of the offense alleged in the indictment in this cause. The latter part of the trial judge’s order acquitting the defendant and finding him not guilty was erroneous and has no legal effect. The primary change that the legislature ac-complished in its enactment of Art. 932b, Vernon’s Ann.C.C.P. which repealed Art. 932a, Vernon’s Ann.C.C.P. was to make such a determination of an acquittal possible on the trial of the sanity issue alone before the main charge. In effect, the present law which became effective in January of 1958 now makes it possible for a defendant to be acquitted and found not guilty of the alleged offense even though the indictment is not read, no plea is entered, and the trial on the merits or the main charge is never had. We have here the case of a' defendant whose status as an insane person at the time of the commission of the offense of Murder and at the time of the trial was determined by a jury labelling him as insane in both instances. This finding certainly did preclude or bar the State from prosecuting him for the offense of Murder, but it did not acquit him for the Murder, nor did it find him not guilty. It did not change his status to that of a person not charged with a criminal offense and it did not bring him under the terms of Sec. 2 of Art. 932b as contended by appellant. By illustration, the appellant is in the same category as one who has an indictment pending against him for felony theft, which shows clearly on its face that the offense is barred by the statute of limitations. Although he might not be successfully prosecuted and he could successfully set up his limitation plea as a bar to the prosecution, he would still be in the category of a person charged 'with a criminal offense.

We also observe that Sec. 6 of Art. 932b prescribes and carries forward virtually the identical procedure set forth in Sec. 3 of Art. 932a, the repealed act. Sec. 6 of 932b is as follows :

“(a) If the head of a State mental hospital in which a person charged with a criminal offense is confined under this Chapter is of the opinion that the person is sane, he shall so notify the court which committed the person to the State mental hospital.
“(b) Upon receiving this notice, the judge of the committing court shall impanel a jury to determine whether the person is sane or insane. If the jury finds the person is sane, the proceedings in the case against him shall continue. If the jury-finds the person is insane, the court shall order his return to the State mental hospital until he becomes sane.”

In view of the foregoing provisions, contained in Sec. 6 of Art. 932b, the present iaw, we do not think it necessary to advert to a discussion of the savings clause.

Finding no reversible error in the action of the trial court, the judgment is affirmed and the relief sought is denied.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Ralph James FOWLER.
    No. 36449.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Harris E. Lofthus, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty,, Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding wherein the appellant attacked as void a judgment of conviction in corporation court of Amarillo which purports to be the judgment in some IS separate cases and which contains an order remanding the appellant to custody until fine in the sum of $1210 and all costs are paid.

The District Judge declined to hear evidence when the appellant was produced pursuant to the writ which had issued, and remanded the appellant to custody under the order in the judgment of the corporation court.

The District Judge was in error in not permitting the appellant to introduce the docket sheet, the jury’s verdict and any other evidence which might bear upon the validity of the judgment of conviction.

The judgment remanding the appellant is not regular on its face'. If the corporation court had jurisdiction to pronounce the judgment upon the jury’s- verdict, any irregularity or defect in its form was waived by the failure of the appellant to -Appeal to the county court at law.

On the other hand, if the corporation court was without jurisdiction to enter a judgment remanding the appellant to custody until a fine of $1210 and costs were paid, appellant’s confinement under such judgment is unlawful and he should be discharged.

Without having before us the facts relating to the validity of the judgment, we are unable to pass upon the question.

The order of the District Judge remanding the appellant to custody is reversed and the cause is remanded with instructions that, if the questions are not moot, such evidence as may be offered be heard and judgment be rendered as the judge finds proper concerning the jurisdiction of the corporation court to enter the judgment and the validity of the judgment.


text:
    Trinidad TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 36043.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    George T. Thomas, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is shoplifting (Art. 1436e Vernon’s Ann.P.C.); the punishment, 3 months in jail and a fine of $300.

The complaint and information alleged that the appellant, “while in a retail business establishment, to-wit: J. C. Penney Company, did then and there remove from its place a half slip, of the value of $3.98, that was displayed for sale with the intent to fraudulently take and to deprive the owner, to-wit: Paul Hathaway, of the value of the same and to appropriate the same to the use and benefit of the said Trinidad Torres.”

The complaint and information are deficient in that there is no allegation to the effect that the accused was legally in the Penney Company store as an invitee or licensee.

Art. 1436e V.A.P.C. was upheld as a special statute in Sullivan v. State, Tex.Cr.App., 354 S.W.2d 168.

One of the provisions of the shoplifting statute which distinguishes the offense therein defined from theft and embezzlement is that the accused be legally in the retail business establishment as an invitee or licensee. The statute does not apply to persons on the premises as employees nor does it apply to one who makes a burglarious entry into the establishment.

The complaint and information being insufficient to support a conviction for shoplifting, the trial court erred in overruling appellant s motion in arrest of judgment.

The judgment is reversed and prosecution under the present complaint and information is ordered dismissed.


text:
    Donald Gene TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 36059.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    L. D. Hillyer, E. P. Woodruff, Jr., Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for .the State.
   WOODLEY, Presiding Judge.

The offense is obtaining a thing of value by the giving of a worthless check in the sum of over $50 (Art. 567b, Vernon’s Ann. P.C.); the punishment, enhanced by two prior convictions for felonies less than capital (Art. 63 P.C.), life.

The indictment alleged that appellant made and delivered the check to A. Lock in exchange for a railroad ticket which was described in the indictment and was alleged to be a thing of value and as being of the value of more than $1.00.

The evidence shows that the appellant boarded a train of the Gulf, Colorado and Santa Fe Railway Company at Comanche, Texas, and upon arriving at Brownwood went to the ticket office and purchased from A. Lock a ticket for transportation from Comanche to Los Angeles, California and return; that he acquired such ticket by the drawing and delivery of a check in the sum of $125.62 drawn on the Temple National Bank of Temple, Texas; that he had no account in the bank on which the check was drawn, and payment was refused by the bank.

Two prior convictions were' proved as alleged.

Appellant’s able court appointed counsel present three points all of which relate to the sufficiency of the evidence to sustain the conviction.

It is contended that the railroad ticket acquired by appellant had no value.

This contention is predicated upon the theory that the ticket was not transferable ; was good only on certain railroad lines and within certain time limits, and that the price of the ticket was not its value.

Also it is argued that the railway company would not redeem an unused ticket purchased with a check until the check was paid, and that there is no evidence that appellant used the ticket for transportation after he acquired it.

We are cited to no authority which supports appellant’s contention that the ticket was without value.

The prosecution was under Art. 567b V.A.P.C. under which the amount of the worthless check rather than the value of the property acquired by its delivery determines the punishment applicable. Under the portion of the statute here applicable, it was necessary for the state to prove that the ticket was “a thing of value,” the amount of its value being immaterial.

This Court held in Patrick v. State, 50 Tex.Cr.R. 496, 98 S.W. 840, that railroad tickets are that character of property which under our statutes is the subject of theft.

It is the rule in theft cases that where stolen property has no market value recourse may be had to proof of other values or some other criterion of value, and in some cases testimony is admissible to show what the owner paid for the property or its value to him. 41 Tex.Jur. 187-189, Theft, Sec. 118.

The owner’s testimony as to what he paid for material that went into it and that it had a value has been held sufficient to meet the statutory requirement that property stolen must have some value. Thomas v. State, 85 Tex.Cr.R. 246, 211 S.W. 453, cited in 41 Tex.Jur., Sec. 118, p. 189.

We do not agree that the- railroad ticket had no value. It was of value to the appellant for he could use it for passage to California and return.

We note further that there was some evidence that the ticket was used for transportation past Brownwood. Appellant’s father testified that appellant made the trip to California and evidence was offered by the defense tending to show that the Railway Company was reimbursed for their loss on the ticket.

Be this as it may, the ticket, had it been paid for, was of value for transportation and if not used within six months, for a refund.

The contention that the evidence is insufficient in that no unlawful or fraudulent intent is shown is predicated upon the theory that passage from Comanche to Brownwood was a pre-existing debt and that no thing of value was acquired by the delivery of the check. Our holding that the ticket was of value for passage beyond Brownwood disposes of such contention.

We commend appellant’s court appointed counsel for their diligence in representing the appellant in his trial and on appeal, but are unable to agree that under the record the conviction should be set aside.

The judgment is affirmed.


author: PHILLIPS, Justice.

text:
    Dominic H. SABELLI, Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellee.
    No. 11121.
    Court of Civil Appeals of Texas, Austin.
    Oct. 30, 1963.
    Rehearing Denied Nov. 20, 1963.
    Reid & Taylor, San Antonio, for appellant.
    Brown, Sparks & Erwin, Austin, for appellee.
   PHILLIPS, Justice.

This is a workmen’s compensation case. After a hearing before the Industrial Accident Board, the claimant Sabelli (appellant in this court) was awarded two weeks total disability. He appealed this award to the District Court.

In his petition appellant alleged that he was injured during the course of his employment when a transport in which he was riding overturned “injuring his head, neck, back, left leg, left elbow, right shoulder, and body generally, causing him to suffer incapacity to his body as a whole.” Appellant asked for 401 weeks of total permanent incapacity at thirty five dollars per week, which is the maximum amount allowed by the statute. Art. 8306, Sec. 10, Vernon’s Ann.Civ.St.

The case was tried before a jury after which the Trial Court entered -judgment based upon the jury verdict for 5% weeks total disability followed by 35 weeks of partial disability.. Appellant, plaintiff in the Trial Court, has duly perfected his appeal from that judgment.

We affirm the judgment of the Trial Court.

Appellant’s first two points, briefed together, assign error to the refusal of the Trial Court to grant appellant’s first motion for continuance and in refusing to allow appellant to withdraw his announcement of ready. Appellant alleges that his reason for these motions was that an indispensable medical witness would not appear.

Appellant’s original petition was filed in the Trial Court in March of 1962. The case was called for trial several times before it was actually tried but was continued for various reasons not pertinent here.

The medical witness, whose testimony appellant alleges is indispensable, is a Dr. Brunner. Dr. Brunner had examined and treated appellant at the time of his injuries in December of 1961. After this, Dr. Brunner continued to treat the appellant on various occasions.

On January 7, 1963, the case was set for trial on February 4, 1963 on appellant’s motion.

On February 1, 1963 the Trial Court notified appellant that in all probability his case would go to trial on February 4, 1963. Appellant contends that he immediately informed Dr. Brunner of the trial and the doctor stated that he would be available as a witness however he would like to examine the appellant once more before trial. Appellant lives in San Antonio and the trial was to be in Georgetown some 110 miles away. On Monday morning, February 4, appellant’s case was called to trial and appellant’s attorney announced ready. On this same day appellant was examined by Dr. Brunner in San Antonio.

After appellant’s attorney announced ready, the trial began, a jury was selected and it was not until the following morning that appellant learned that Dr. Brunner would not appear as a witness.

Appellant stated to the court that the testimony of Dr. Brunner was material and handed the court a written statement by Dr. Brunner describing his findings upon an examination of appellant on the previous day. The Trial Court examined the statement, then denied motions made by appellant that his case be continued or that he be allowed to withdraw his announcement of ready. The trial then proceeded without the testimony in question.

Appellant alleges that he was completely taken by surprise in the failure of Dr. Brunner to appear, that the doctor had given him every reason to believe that he would appear and that the location of the trial was of such distance that it would have been impossible for the appellant to have compelled that doctor’s attendance through a subpoena. Appellant alleges that his belief that the doctor would be available as a witness was the reason that the doctor’s deposition was not taken.

Appellant further alleges that the testimony that the doctor would have given was material relative to disputed issues.

In August of 1962, the defendant, by written interrogatories, took the depositions of Drs. Price and Cochran of San Antonio, Texas and the appellant filed cross interrogatories. These depositions were used in the trial of the case.

There is no contention here that appellant has not complied with Rule 252, T.R.C.P., in seeking his continuance.

Rule 251, T.R.C.P., directs that a continuance shall not be granted except for sufficient cause.

In Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, the Supreme Court in a fact situation substantially similar to the one before us stated that the absence of a material witness under Rule 251 is “sufficient cause” but only if proper diligence has been used to procure the testimony of the witness. The court stated:

“There is nothing in the rules on continuance requiring the granting of a first motion merely because it is in statutory form and is not controverted by affidavit of the opposite party. Surely it will not be gainsaid that a trial court, in determining the existence of diligence, may examine the allegations of diligence contained in the motion in the light of the record before it. Moreover, a trial court will not be required to grant a motion for continuance, at the risk of committing error in overruling it, when the allegations in the motion examined in the light of the record show beyond cavil a complete lack of diligence as measured by other rules regulating procedure in the trial of cases.”

and further:

“ * * * Rules 186 et seq. authorizing the taking of depositions, if utilized, offer parties to civil suits ready and fairly certain means of procuring the testimony of resident witnesses. More than that, if resorted to with promptitude and pursued with diligence, they offer parties absolute protection against being forced to trial by arbitrary and unreasonable action of a trial court without the benefit of the testimony of material witnesses. If parties choose to forego their rights under these rules and resort to other and less effective and less certain means of procuring the testimony of material witnesses they must be held to do so at their own risk and with foreknowledge that they may be put to trial without the benefit of the testimony.” (citing cases)

Appellant contends that the Fritsch case does not apply because he was powerless to subpoena Dr. Brunner in that the doctor resided outside the limits of a subpoena. We cannot agree. There was ample time to take Dr. Brunner’s deposition and that by the very nature of his profession the fact that he would be unable to attend trial was more probable than possible. In Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, the Supreme Court affirmed the Trial Court in overruling petitioner’s motion for a continuance and stated that where petitioner had no right to rely on a subpoena, he had not shown due diligence where he had failed to take the witnesses’ depositions.

The question of whether a continuance is to be granted is largely within the discretion of the trial judge in the light of the facts before him. In view of the record before us and the holding in the Fritsch case and the Cole case, both cited above, we overrule appellant’s contentions with respect to these points.

Appellant’s points three and four assign error of the court in permitting questions by defense counsel, and allowing argument pertinent thereto, regarding a claim appellant had previously made with the Federal Government, on the grounds that the questions and arguments were highly prejudicial and inflammatory to plaintiff’s rights and had no bearing whatsoever on whether the plaintiff was suffering any incapacity as a result of the injuries received by him. This claim made to the Federal Government was in respect to a fungus of the feet for which appellant had what was referred to as a “ten per cent disability.”

The appellant voluntarily testified on direct examination that prior to the date of the accident he had a fungus infection of his feet. He also testified that after the accident, he could not stand for any long period of time and that if he stood for an hour and a half, he would have to get off his feet. He also testified that he had had no such trouble prior to the date of the accident

On cross examination, the appellant testified that there was nothing physically wrong with him prior to the date of the accident. He was then cross-examined about making a disability claim to the Federal Government and about receiving ten percent disability benefit. This testimony was admissible both for impeachment purposes and as a declaration against interest. Defendants were entitled to impeach appellant through prior inconsistent statements and show the circumstances surrounding the prior statements in order to give them credence. Also, the appellant opened the matter by his attorney’s interrogation about his prior disability. Cheshire v. Dow Chemical Company et al., Tex.Civ.App., 319 S.W.2d 358, n. r. e.; Griggs Furniture Company v. Bufkin et ux., Tex.Civ.App., 348 S.W.2d 867, writ ref., n. r. e. Also, see Hawkins v. Missouri, K. & T. Ry. Co. of Texas, 36 Tex.Civ.App. 633, 83 S.W. 52, no writ history.

Appellant’s fifth point of error is that the court excluded the testimony of R. F. Parker, the foreman for King Transport Company and the person in charge of the convoy of which the appellant was a member at the time of his injuries.

Parker testified that he had known the appellant eight or nine years before the day of the accident. He had seen appellant at least once a week after the date of the accident until the time of the trial. He testified that he observed no change in appellant which would keep him from hiring the appellant as a truck driver.

In response to questions propounded by appellant, Parker testified that he would not hire a person suffering from mental defects; that he would not hire a person suffering from loss of memory or subject to bad eye sight or dizzy spells. Again, in response to a hypothetical question by appellant, which contained all of appellant’s complaints, Parker said he would not hire a man having such complaints.

Appellant then showed Parker a letter from Dr. Harmon Brunner, dated February 4, 1963, requested that he read the letter, and then asked him if he would hire a man having the disabilities or complaints noted thereon. The report of Dr. Brunner had not been and was not admitted into evidence. Defendant’s objection to the admission of testimony which was based on facts not in evidence was properly sustained. A hypothetical question cannot take into consideration facts within a doctor’s knowledge and not in evidence. Texas Employer’s Ins. Ass’n. v. Fitzgerald, Tex.Com.App., 296 S.W. 509; Gulf Oil Corp. v. Walker, Tex.Civ.App., 288 S.W.2d 173, no writ history.

Appellant’s points of error six and seven relate to the testimony of the defendant’s doctors Cochran and Price in that the court admitted testimony as to the future medical results of appellant’s injuries, which testimony was not based on reasonable probability. We overrule this assignment. The record discloses that the gist of the testimony given by the doctors was that based on their examination of appellant and their prognosis that he had made a complete recovery and that there was no permanently disabling injury. This does no violence to the rule that testimony concerning future consequences must be based on reasonable probability. 23 Tex. Jur. 620, Sec. 416 and the cases cited.

Appellant’s point of error number eight is to the effect that the court erred in excluding testimony as to the reason Dr. Brunner did not appear and testify, and then allowing counsel for the defendant to refer to the fact that he did not appear.

We overrule this point. We have reviewed the record and find that the allusion to the fact of whether or not Mr. Sabelli was still under the care of Dr. Brunner made by defendant in his closing argument to the jury was harmless under Rules 434, 503, T.R.C.P.

In his closing argument, appellant stated that Dr. Brunner was still treating him, “a fact well known to them; and if he * * * ” Here the court rightly sustained defendant’s objection as any evidence concerning the reason for Dr. Brunner’s absence would have been misleading, immaterial and hearsay testimony.

Appellant’s point of error number nine is that the court erred in failing to excuse two jurors for cause who had been represented by one of the attorneys for the defense in the past.

We overrule this point. The two jurors testified that they would not be influenced by this fact and that they could render a fair and impartial verdict to both sides regardless of that fact. The Supreme Court has held that where the Trial Court has found as a matter of fact that there was no bias or prejudice on the part of a juror that the court’s finding should not be disturbed unless bias or prejudice can be shown as a matter of law. Swap Shop v. Fortune, Tex.Civ.App., 365 S.W.2d 151. Under the record before us we are unable to find bias in this regard as a matter of law. Lumberman’s Insurance Corporation v. Goodman, Tex.Civ.App., 304 S.W.2d 139, writ ref., n. r. e.

Appellant’s tenth and last assignment of error is that the Trial Court erred in committing numerous errors during the trial of the case, and the combination of all the errors became cumulative error, which was harmful to appellant’s rights to a fair trial.

We overrule this point. In Dennis v. Hulse, Tex., 362 S.W.2d 308, the Supreme Court stated the rule that an appellate court is not authorized to reverse merely because the record discloses some error reasonably calculated to cause miscarriage of justice, but the party appealing must also show that it probably did cause rendition of improper judgment, citing rules 434 and 503 T.R.C.P. Appellant has not met this test.

Appellant cites Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642 as authority for the rule of cumulative error. In this case the old rule of presumed prejudice was applied because the case was tried before the effective date of our present Rules of Civil Procedure. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493.

The judgment of the Trial Court is affirmed.

Affirmed.


author: ARCHER, Chief Justice.

text:
    The STATE of Texas et al., Appellants, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellee.
    No. 11113.
    Court of Civil Appeals of Texas. Austin.
    Oct. 30, 1963.
    Rehearing Denied Nov. 20, 1963.

      Waggoner Carr, Atty. Gen., H. Grady Chandler and W. E. Allen, Asst. Attys. Gen., Austin, Paul D. Connor, Asst. Commissioner of Insurance, Austin, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Conrad P. Werkenthin, Mary Jo Carroll, Austin, for appellee.
   ARCHER, Chief Justice.

Appellee sued the State of Texas to recover an excess of occupation taxes paid by it to the State pursuant to Article 4769, Vernon’s Civil Statutes of Texas, and Articles 3.34, 3.36 and 4.05, Vernon’s Texas Insurance Code, for the years 1952 through 1957 and 1959.

Appellee’s grounds for recovery were that these excess taxes were paid as a result of a mistake of fact on the part of Ap-pellee in the nature of a clerical error, or in the alternative, that such excess taxes were paid under legal duress or business complusion or in a second alternative, that such excess taxes were paid as the result of a mutual mistake on the part of Appellee and the defendant Insurance Commissioner.

Trial was before the court on stipulations in the main and most of the other evidence was undisputed.

The appeal is predicated on 24 points and are to the effect that the trial court erred in not holding that the rate at which appel-lee’s tax should have been computed for the years 1952 through 1957 was 3.3%, and for the year 1959 was 2.2%, because Article 4769, Vernon’s Texas Civil Statutes, clearly prescribes such rates for taxpayers whose reports show the information on Texas securities and “similar securities” which was shown by appellee’s reports; in holding that appellee was entitled to recover any money, because it voluntarily paid the taxes, and is estopped from recovering any money because of reports it filed and cannot claim such did not speak the truth; in holding that the Board of Insurance was not authorized to accept as correct the rate of tax and the amount set out in the reports made by appellee; in holding that the certifications of the Board of Insurance to the State Treasurer as taxes owing by appellee for the years in controversy was duress; in holding that such certifications was a mistake on the part of the Board of either law or of fact; in holding that Article 4.05 of the Texas Insurance Code imposed on the Board the mandatory duty to finally determine and certify an amount of taxes less than the amount reported by appellee; in holding that any officer of the State exercised any duress to cause appellee to pay any excess taxes because there is no evidence to show such duress; in holding that the Board of Insurance or any other officer of the State made a mistake of law or mistake of fact which caused appellee to pay any of the taxes because the evidence is insufficient to show such and because there is no evidence to show such; in not holding that appellee is barred from recovering any money because appellee violated its duty imposed by law to make and to file with the Board of Insurance its report correctly stating the information required and the mistake of appellee in ascertaining the amounts reported and paid as taxes was a mistake of law and not of fact; that the evidence is insufficient, and there is no evidence to show a mistake of fact; the trial court erred in not holding that appellee is barred from a recovery because the evidence shows that appellee failed to make an attempt to calculate the percentage ratio of its New York securities to its Texas securities to ascertain the taxes it owed; because appellee was grossly negligent in failing to calculate such percentage of ratio; in failing to list on the tax reports the amounts of similar securities in the state in which it had its highest percentage of admitted assets invested; in failing to use the degree of care which the law requires in the preparation of its reports, and the money sought to be recovered had been received in good faith and legally expended prior to any claim made by appel-lee ; because there is no pre-existing law to authorize the recovery of any sum; in holding that certain securities owned by appellee were not similar securities and that such securities (The Detroit Edison Company) were not New York securities because there is no evidence to support such finding and finally the court erred in holding that the Detroit Edison Company was not doing business in New York within the purview of Article 3.34 of the Texas Insurance Code.

Appellee makes counterpoints to the effect that the action and judgment of the trial court is correct and supported by the record and the law and should be upheld, such being a general judgment and other than certain specific findings stated in the judgment itself and no findings of fact or conclusions of law were filed or requested. Appellee further contends that it pled independent alternative grounds of recovery that the court on any theory it could have followed will be applied in support of the judgment, and in support thereof cites City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 and other cases.

The stipulations as set out were agreed to, but not exclusive and either party could introduce additional evidence that does not conflict with such stipulations.

It was stipulated that the plaintiff was a foreign corporation and obligated to pay-gross premium taxes in accordance with Article 4769 and were paid on or before the lSth day of March following the tax year after being certified and the amounts were set out as follows:

“4. The amounts of gross premium taxes paid by Plaintiff to the State Treasurer on or before the 15th day of March following the tax year after being certified to the State Treasurer by the Insurance Commissioner in accordance with Article 4769, V.A.C.S., are as follows :
Year Amount
1952 $ 80,153.94
1953 124.676.20
1954 150,473.05
1955 152,735.61
1956 190,881.87
1957 233.512.20
1959 161,180.69
“5. The amounts of taxes overpaid by Plaintiff for each of the above years are as follows:
Year Amount
1952 $ 13,358.99
1953 20,779.36
1954 25,078.57
1955 63,639.83
1956 79,534.11
1957 97,296.74
1959 -0-
“Plaintiff has overpaid its taxes under Article 4769 for the above years in the total aggregate amount of $299,687.60; all subject, however, to the alternative stipulations appearing in Paragraphs 15, 16, 17 and 18, infra.
“6. The rate at which plaintiff computed its taxes under Article 4769, V. A.C.S., and the rate at which these taxes should have been computed are as follows, subject only to the alternative stipulations in Paragraphs IS, 16, 17, and 18, infra:
Tax Correct Year Rate Used Tax Rate
1952 3.3% 2.75%
1953 3.3 2.75
1954 3.3 2.75
1955 3.3 1.925
1956 3.3 1.925
1957 3.3 1.925
1959 2.2 2.2 ”

Paragraphs 15, 16, 17, and 18, referred to above, are as follows:

“15. The Detroit Edison Matter. If called to testify in this cause A. G. Maihofer of Detroit, Michigan, would state under oath as shown on Exhibit Number 1, hereto attached and made a part hereof. If this Court finds that Detroit Edison securities should be excluded from New York investments under Article 3.34, Vernon’s Texas Insurance Code and similar security under Article 4769, V.A. C.S., then, in that event only, the Plaintiff overpaid its taxes by the following amounts, rather than the amounts set out in Paragraph 5 above, and the rate at which such taxes should have been calculated is as follows, rather than as set out in Paragraph 6 above:
Amount of Correct Tax Year Overpayment Rate
1952 $ 13,358.99 2.75
1953 41,558.73 2.2
1954 50,157.69 2.2
1955 63,639.83 1.925
1956 79,534.11 1.925
1957 97,296.74 1.925
1959 20.H7.58 1.925
Total $365,693.67
“16. The Dallas Hotel Company Matter
“If this Court finds from the evidence presented at the trial that the Dallas Hotel Company securities held by Plaintiff are qualified Texas securities under Article 3.34, Vernon’s Texas Insurance Code, and Article 4769, V.A.C.S., then, in that event only, the Plaintiff overpaid its taxes by the following amounts, rather than the amounts set out in Paragraph S above, and the rate at which such taxes should have been calculated is as follows, rather than as set out in Paragraph 6 above:
Amount of Correct Tax
Year Overpayment Rate
1952 $ 26,717.98 2.2
1953 51,948.41 1.925
1954 62.697.11 1.925
1955 63,639.83 1.925
1956 79,534.11 1.925
1957 97,296.74 1.925
1959 20.147.58 1.925
Total $401,981.76
"17. The New York Real Estate Matter
“If this Court finds that under Article 3.34 only real estate which would be a valid investment of Plaintiff in Texas under Article 3.40, Vernon’s Texas Insurance Code, is a similar security in New York under Article 4769, V.A.C.S., and, therefore, a valid New York security, then in that event only the plaintiff overpaid its taxes by the following amounts, rather than the amounts set out in Paragraph 5 above, and the rate at which such taxes should have been calculated is as follows, rather than as set out in Paragraph 6 above:
Amount of Correct Tax
Year Overpayment Rate
1952 $ 26,717.98 2.2
1953 51,948.41 1.925
1954 62,697.11 1.925
1955 63,639.83 1.925
1956 79,534.11 1.925
1957 97,296.74 1.925
1959 20,147,58 1.925
Total $401,981.76
“18. If the Court finds affirmatively to more than one of the stipulations presented in Paragraphs 15, 16, and 17, then in such event, the Plaintiff overpaid its taxes by the following amounts, rather than the amounts shown in Paragraphs 5, 15, 16, or 17:
Amount of Correct Tax
Year Overpayment Rate
1952 $ 33,397.48 1.925
1953 51,948.41 1.925
1954 62,697.11 1.925
1955 63,639.83 1.925
1956 79,534.11 1.925
1957 97,296.74 1.925
1959 20,147,58 1.925
Total $408,661.26”

Stipulation No. 7 is that the report form was furnished by the Board pursuant to Article 1.10 Insurance Code.

By Stipulation No. 8 it was agreed that upon receipt by the Board of the tax reports the Board promptly certified to the State Treasurer the amount of the taxes, shown.

It was stipulated in No. 9 that no communication was received by plaintiff from the State, as to tax liability other than the report forms and by Stipulation No. 10 plaintiff made no protest to payment of the taxes or complaint until December 1960, when plaintiff notified the State that it intended to file a claim for refund of some of the taxes and the State was unaware of any overpayment until then.

In Stipulation No. 12 it was agreed that plaintiff worked with employees of the Board in an effort to discover and determine the exact amount of taxes overpaid and the Board has certified that plaintiff has overpaid its taxes by the amounts shown in paragraph 5, supra and in paragraphs 15, 16, 17 and 18, copied hereinabove.

By Stipulation No. 13 it was agreed that all of the taxes had been legally disbursed by the State lawfully prior to the claim made by plaintiff.

We believe that the judgment of the trial court was correct and we affirm such.

There is no question but that the taxes for the years involved were overpaid by a mistake of fact in the nature of a clerical error, business compulsion and by mutual mistake.

An official of the company, vice-president and general counsel, testified as to the size and business activities of the company and -had been advised that the company had less than 75 percent invested in Texas securities by some one in the collection department of the company and would not have paid the taxes if he had known the true facts; that in the fall of 1958 the true facts were ascertained and such were reflected in the return for 1958 which was filed in 1959 and taxes paid at a lesser rate than 3.3 percent.

On cross examination the witness testified that the company did not calculate the percentage of New York securities to Texas securities accurately.

Miss Virginia Gardner, tax analyst for the Board, testified that her duties were to check the taxes on the premiums that the insurance company writes in Texas as shown by a gross premium return to be filed on or before March 1st and that it is usual to file the annual return and the gross premium return at the same time and that she reviewed the returns to determine the correct tax and payments are sent to the Treasurer; that she was required to certify such to the Treasurer by the 15th of March. The witness testified that she audited the tax returns of appellee for the years 1952 through 1957 and certified to the Treasurer the amount of taxes shown and that if a lower tax rate is taken she notifies such company.

The witness testified that she wrote the following letter:

“STATE BOARD OF INSURANCE
Austin 14, Texas
April 13, 1961
Mrs. Doris Titsworth, Clerk Claims and Accounts Committee 57 Legislature State Capitol Austin, Texas
Dear Mrs. Titsworth:
We have examined the annual statements of the Connecticut General Life Insurance Company and wish to advise that our records show this claim to be just and correct.
It is our recommendation that this company be reimbursed in the amount of $391,592.08 as claimed in the attached affidavit.
Very truly yours, COMMISSIONER OF INSURANCE By: /s/ Virginia Gardner
Virginia Gardner Tax Analyst
VG :md Enel.”
A former Assistant Attorney General wrote the following letter:
“THE ATTORNEY GENERAL OF TEXAS Austin 11, Texas May 22, 1961
Honorable Obie Jones, Chairman House Claims and Accounts Committee Capitol Station Austin, Texas
Re: Claim No. H-220
Dear Mr. Jones:
The above claim involves a refund of premium taxes paid by the Connecticut General Life Insurance Company for the years 1952-57, which overpayment resulted from a clerical error in calculating the percentage of New York securities to Texas securities owned by this company
We have always regarded overpay-ments in the nature of clerical errors as overpayments resulting from a mistake of fact, and as you know, it is well established that taxes erroneously paid by a mistake of fact may be legally refunded by appropriation.
If further clarification is desired, we will be happy to comply.
Very truly yours,
/s/ Morgan Nesbitt
Morgan Nesbitt Executive Assistant
MN :me”

Ray Clark Diebel, principal examiner for the Board, testified that the witness Virginia Gardner works under his direct supervision and that he was familiar with the reports at issue and that there was nothing in the reports to cause the Board to question the correctness of them and that the remittance for each of the years in question was received prior to the certification to the Treasurer.

The witness testified that he sent an examiner to the home office of appellee to determine the accuracy of the reports, and that the company paid money as set out in the stipulation that it did not actually owe the State and testified in detail as to form and content of the annual statement prescribed by the statute by the Board.

We recognize that no employee of the State by statements can bind the State.

There can be no question but that appel-lee’s taxes for the years in question were computed at incorrect rates, even if the reports do not show any of the ratios of Texas securities to similar securities which are called for by Article 4769.

We believe that appellants’ construction of the statute has been disapproved by the Supreme Court in Metropolitan Life Insurance Company of New York v. Mann, 140 Tex. 450, 168 S.W.2d 212.

Patton v. American Home Mutual Life Insurance Company, 143 Tex. 373, 185 S.W.2d 420.

Then the stipulations of the parties as to the rate to be used in computing the taxes hereinabove set out are binding.

City of Dallas v. Texas Prudential Insurance Company, 156 Tex. 36, 291 S.W.2d 693.

Taxes paid which are not legally due are paid under implied duress, when the statute provides that the company shall lose its permit to do business if such tax is not paid. State v. Akin Products Company, 155 Tex. 348, 286 S.W.2d 110.

We do not believe that the clerical error on the part of appellee’s employees in compiling its reports operate as an estoppel to present its later claim asserting claim for refund.

The elements of estoppel are not present in this case, as are set out in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, where it is held:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S., Estoppel, § 67, page 254.”

In Guarantee Mutual Life Insurance Company v. Harrison, Tex.Civ.App., 358 S.W.2d 404, er. ref., n. r. e., this Court discussed the theory and basis of estoppel.

We do not believe that appellee was barred from recovery by negligence, gross negligence, or negligence per se.

There was offered no evidence as to negligence, which term is defined in Taylor v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, but was a clerical or inadvertent error. 40 Am.Jur. 848, Payment, Section 194.

The fact that the funds have been received by the State Treasury and legally expended, does not bar the tax payer’s right to refund of monies to which the State was not entitled. Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242. Union Central Life Insurance Company v. Mann, 138 Tex. 242, 158 S.W.2d 477.

The State says that the action of the court in rendering judgment is unconstitutional as being in violation of Section 44 of Article III of the State Constitution, Vernon’s Ann.St., because there is no preexisting law to support any recovery.

The State has permitted this suit and the judgment is of a court of competent jurisdiction. No appropriation has been made to pay the judgment, but even in that event the defense is without merit. Austin National Bank v. Sheppard, supra.

We believe the trial court was justified in holding that the Detroit Edison security should not be classified for Texas tax purposes as “similar securities” in the State of New York, within the meaning of either Article 4769, or Article 3.34.

It was stipulated (No. 15) that appellee has invested in certain securities of the Detroit Edison Company and that, if those securities should not be classified as “Similar Securities” in the State of New York, appellee is entitled to a further reduction in tax rate than that undisputed.

It was stipulated that A. G. Maihofer of Detroit would testify briefly from the full stipulations that he was Secretary of the Detroit Edison Company and was familiar with the corporate structure, the extent of its activities in Michigan and elsewhere, and that the company is an operating utility corporation engaged primarily in the production and sale of electricity conducted entirely in Michigan.

That the company is incorporated under the laws of New York, but does no utility business in New York, manufactures or sells any goods and has no customers in the state; that the company maintains an office at which stockholders and some directors’ meetings are held, and has some bank deposits with some United States Government obligations which are held by a bank; that a franchise tax of $25.00 is paid, but does not pay any business tax. Guarantee Mutual Life Insurance Company v. Harrison, Tex.Civ.App., 358 S.W.2d 404, er. ref. Merrick v. Van Santvoord, 34 N.Y. 208.

The State, through its counsel, has filed an excellent brief citing many cases, which has had our careful consideration, but we believe the judgment to be correct and just and should be affirmed.

The judgment of the trial court is affirmed.

Affirmed.