author: STEAKLEY, Justice.

text:
    Floyd K. ROBINSON, Pete Koontz and Don Jacobs, Petitioners, v. Fred W. ASHNER, Sr., Respondent.
    No. A-9116.
    Supreme Court of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 13, 1963.

      Wilbur T. Knape, Dallas, for petitioners.
    Elizabeth Carp, Strasburger, Price, Kel-ton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for respondent.
   STEAKLEY, Justice.

A pickup truck driven by Ered W. Ash-ner, Jr., in which his seventy-five-year-old father, Fred W. Ashner, Sr., was riding, collided with a dump truck driven by Floyd K. Robinson, an employee of Pete Koontz and Don Jacobs, the owners of the truck. Ashner, Jr., and Ashner, Sr., filed separate suits against Robinson, Koontz and Jacobs to recover damages for their personal injuries, and, in Junior’s suit for damages to his pickup. No motion was filed to consolidate the suits. Junior’s suit was first tried and he lost, the jury finding both Junior and Robinson guilty of negligent acts proximately causing the collision. The judgment was affirmed on appeal and is reported as Ashner, Jr. v. Robinson et al., Tex.Civ.App., 344 S.W.2d 909.

In the suit of Ashner, Sr., Respondent here, Robinson, Koontz and Jacobs, Petitioners here, filed a Third Party Petition against Ashner, Jr., for recovery of property damage to their truck, and for indemnity or contribution with respect to any recovery by Senior against them; Petitioners also filed a cross-action against Senior for recovery of property damage to their truck. Petitioners alleged that Senior and Junior were engaged in a joint enterprise. The trial court sustained Junior’s Plea in Bar and Abatement to the Third Party Petition based on the outcome of Junior’s case. No appeal was taken against Junior. The trial court also granted Senior’s Motion for Summary Judgment respecting Petitioners’ cross-action against him and overruled Petitioners’ Motion for Summary Judgment predicated on joint enterprise, res judicata and estoppel by judgment. Respondent’s jury verdict upon the first trial of the case on the merits was set aside upon Petitioners’ Motion for New Trial. Respondent again won a jury verdict upon second trial and his judgment for $33,000.00 was affirmed by the Court of Civil Appeals. Tex.Civ.App., 357 S.W.2d 611. As pertinent here, the jury found that Senior did not fail to keep a proper lookout; that Senior and Junior were not engaged in a joint enterprise; that Junior was not negligent in various particulars and that Robinson was.

Petitioners’ basic contention is that Ash-ner, Sr., was precluded from recovery against them as a matter of law. This is predicated on that portion of the deposition testimony of Senior which was incorporated in Senior’s Motion for Summary Judgment; upon his testimony in the trial of the case; and upon the finding in the order of the trial court overruling Petitioners’ Motion for Summary Judgment “that the admissions of the plaintiff herein conclusively established joint enterprise and that therein no actual controversy exists.” Which, in turh, say Petitioners, are contrary to and inconsistent with the essential fact embraced in Senior’s theory of recovery, i. e., the negligence found against Junior in his separate suit is not imputable to Senior and hence Junior’s suit cannot be res judicata of Senior’s suit. Stated affirmatively, Petitioners’ position is that they were entitled to judgment as a matter of law (hence their motions for instructed verdict and for judgment non obstante veredicto should have been sustained) because the negligence of Junior found by the jury in Junior’s suit is imputed to Senior in his suit, and that the judgment in Junior’s suit is res judicata of, or, in the alternative, estoppel by judgment against, Senior’s suit.

The negligence of the driver of an automobile may not be imputed to a passenger whose status is that of guest. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379. An action for personal injuries brought by the guest against the driver of the other automobile may be defeated only where the act of the driver of the car in which the guest is riding was the sole proximate cause of the injuries to the guest. Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Holland v. De Leon, 118 S.W.2d 489, er. ref.

In the case before us, the trial court obviously concluded upon the trial of the suit of Ashner, Sr., that the evidence did not establish that Senior and Junior were engaged in a joint enterprise as a matter of law at the time of the accident. The question of joint enterprise was submitted to the jury by means of an appropriate special issue and the jury found in the negative. This forecloses the question of the imputation of the negligence found against Junior in his suit to Senior in the separate trial of his suit (and removes any basis for the judgment in Junior’s suit to be res judicata of Senior’s cause of action in his suit or for estoppel by .judgment to operate against him) unless the evidence in Senior’s suit establishes joint enterprise as a matter of law. It was shown by the evidence that Ashner, Jr., owned the pickup truck and that Ashner, Sr., did not have an equal right, express or implied, to direct and control the conduct of Junior in its operation. Ashner, Sr., had not owned or driven an automobile, or held a driver’s license, for many years. Ashner, Jr., is employed as a fireman and has driven various types of fire fighting vehicles for fifteen years. The evidence is conflicting touching the question of whether the object of the trip was common to them. It is clear that the evidence in the trial of Senior’s suit did not establish that Junior and Senior were engaged in a joint enterprise as a matter of law. See Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65; El Paso Electric Co. v. Leeper (Tex.Comm.App.), 60 S.W.2d 187; Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474.

The portion of the deposition testimony of Ashner, Sr., which was included as a part of his Motion for Summary Judgment, was not such a testimonial declaration or admission as to preclude trial of the issue of joint enterprise in the trial on the merits. See United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, wr. ref., pointing out that for the rule precluding recovery by a party’s testimonial declarations to be applicable, it must appear, in addition to other requirements, that the statement is deliberate, clear and unequivocal; and that “If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury * * The deposition testimony of Ashner, Sr., forming a part of his Motion for Summary Judgment is not construable as an admission of joint enterprise; the testimony is equivocal concerning common object of the trip and is silent with respect to the question of joint control.

In view of the foregoing, Ashner, Sr., was not in a position of inconsistency upon which estoppel may be based, as contended by Petitioners, in his Motion for Summary Judgment to Petitioners’ cross-action against him as derivatively liable upon the basis of joint enterprise for the damages to Petitioners’ dump truck, and in which motion it was urged that the judgment in the suit of Ashner, Jr., was determinative of the cross-action issues of derivative liability. In his connection Petitioners also contend that the granting of Senior’s Motion for Summary Judgment, as well as the sustainment of Junior’s Plea in Bar and Abatement to the Third Party Petition against Junior, relegated them to a prejudicial defensive position before the jury in the trial of Senior’s suit against them. Petitioners show no harm or prejudice, and we perceive none, approaching reversible error in the fact that Petitioners were not in both an offensive and defensive position before the jury. Petitioners were not deprived of the opportunity to present any evidence to the jury, or the submission of the controlling issues to the jury, as a result of the action of the trial court in the respects under review.

Petitioners also claim error by the trial court in overruling their Motion for New Trial because, say Petitioners, the jury “discussed and considered a statement made by the Court Bailiff during the trial that the case had been tried before and that the jury returned a verdict against the Defendants in the amount of $34,000.-00.

The wholly inexcusable and improper conduct of the court bailiff is shown in the testimony of the juror McKeever in the lengthy hearing on the Motion for New Trial. At some time apparently after the jury had been impaneled, the exact time being unclear, this juror testified that while alone with the court bailiff in the courtroom the bailiff stated to him that the case had been tried before and had resulted in a jury verdict of $34,000.00 for the plaintiff. The juror McKeever further testified that he did not tell any of the other jurors of the conversation until after the jury had reached a verdict; that there was no discussion or consideration by the jurors of the information imparted by the bailiff; and that he, McKeever, was in the “lower fifty per cent of the jurors,” and compromised upward in agreeing to the verdict. One of the other eleven jurors who testified in the hearing of the Motion for New Trial was not asked about the matter but all of the remaining jurors testified that they did not know of the statement made by the bailiff during their deliberations and that there was no discussion or consideration of the information by the jury.

The situation, then, is not one of jury misconduct but of misconduct of a gross nature on the part of the court bailiff. The juror McKeever was an innocent victim of the conduct of the bailiff and the evidence does not establish misconduct by McKeever or the other jurors, or harm to Petitioners in the deliberations of the jury.

The judgments below are affirmed.


source: Caselaw Access Project

author: MORRISON, Judge. DICE, Commissioner.

license: Public Domain

text:
    Ethel Lee JEFFERSON and Debora Johnson, Appellants, v. The STATE of Texas, Appellee.
    No. 34845.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    Rehearing Denied Jan. 2, 1963.
    Second Rehearing Denied Feb. 13, 1963.
    John Cutler, Houston, Pepper & Goldgar, Houston (on rehearing), for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is keeping and exhibiting a policy game; the punishment, two years in the penitentiary against each appellant.

Officer Driskell of the Houston vice squad testified that on the day in question, while armed with a search warrant, he and his fellow officer entered a certain dwelling house in the city and there found the two appellants seated at a table, and spread out before them on the table and in a box on the floor between them he saw certain policy books, slips and a sum of money. Also in the room, but not seated at the table, were eight colored men, a Latin American, and a colored woman. He stated that appellants were charged with the felony offense of keeping and exhibiting a policy game, while a majority of the others present were charged with possession of policy paraphernalia. The witness qualified as an expert on policy and stated that only the “writers,” such as appellants, ever exhibited the game to the public.

The written confession of appellant Johnson was introduced 'without objection in which she stated that she and appellant Jefferson were writing policy for three different companies on the day of the raid and-that at such time she had written eight or ten dollars in each of two policy books and that she had paid out approximately two dollars to those who had won on the previous day’s drawing.

Appellant Jefferson, testifying in her own behalf, admitted that she was writing policy on the day of the raid but stated that she was working on a salary for a regular writer who had hired her to help him. She stated that it was her function as a writer to take bets and pay off wins up to ten dollars. She explained that the “field man” in the game paid off larger wins. She also testified that appellant Johnson was seated at the table with her and was writing for another policy company.

It is appellants’ primary contention that the evidence is insufficient to support this conviction as a felony under Section 1 of Article 642c, Vernon’s Ann.P.C. They readily admit their guilt of the misdemean- or offense of accepting bets upon a policy game, denounced by Section 2 of said Act. They recognize the holding of this Court in Sinclair et al. v. State, 159 Tex.Cr.R. 35, 261 S.W.2d 167, but contend, and we quote from their brief, as follows:

“That the application of Art. 642c of the Texas Penal Code and its interpretation of the present decisions of this
Court is left up to the arresting officer of the District Attorney’s Office and/or the Grand Jury. The interpretation of what offenses are felonies and what offenses are misdemeanors is entirely left up to the prosecuting attorney and/or the Grand Jury. Said officials may either file a felony or a misdemeanor on the same evidence.”

The rule is well settled that "the fact that testimony relied upon by the State to show the offense charged against an accused also develops facts which constitute another independent crime does not prevent a conviction for the offense on trial.” Lewis v. State, Tex.Cr.App., 346 S.W.2d 608, and Fuentes v. State, 163 Tex.Cr.R. 410, 292 S.W.2d 117.

Appellant next contends that the offense' denounced in Section 2 of said Act is not a lesser included offense of the felony offense denounced by Section 1 and asserts that the court erred in failing to instruct the jury to acquit them if they found that they were only guilty of the misdemeanor offense denounced by Section 2. In response to such objection, the court amended his charge and instructed the jury that if they did not find the defendants guilty of keeping and exhibiting a policy game they should next consider whether or not the defendants were guilty of a misdemeanor as denounced by Section 2 and set forth the requisite elements thereof.

Appellants point to the fact that in Griffey v. State, Tex.Cr.App., 342 S.W.2d 582, we declined to pass upon the question of whether the possession of a policy slip is a lesser included offense in an indictment charging the keeping and exhibiting a policy game. We see no occasion to do so at this time because appellants were shown to be in possession of policy books and actually engaged in writing policy plays for the company.

We find the evidence sufficient to support the conviction for exhibiting for the purpose of gaming a policy game,

Finding no reversible error, the judgment of the trial court is affirmed.

ON APPELLANTS’ MOTION FOR REHEARING

DICE, Commissioner.

In their motion for rehearing, appellants urge as reversible error the court’s action in permitting Officer Driskell to testify, over objection, that in the game of policy it is the writer who does the actual exhibiting to the public, it being appellants’ contention that such testimony of the officer was tantamount to a legal conclusion and invaded the province of the jury.

Officer Driskell, as stated in our original opinion, was shown to be qualified as an expert on policy. Under the holdings of this court, an officer whose qualifications as an expert on policy are shown may testify as such and explain the game to the jury. Grigsby v. State, 164 Tex.Cr.R. 248, 298 S.W.2d 595, and Griffey v. State, 168 Tex.Cr.R. 338, 327 S.W.2d 585. Officer Driskell, as an expert, was qualified to explain the game of policy to the jury. We are unable to agree that his statement to the jury that only the writers exhibited the game to the public constituted a legal conclusion. Such was nothing more than a statement of fact and inference by the officer, based upon his knowledge of the game of policy as an expert. Nor do we agree that his testimony constituted an invasion of the province of the jury. In the relatively recent case of Cordero v. State, 164 Tex.Cr.R. 160, 297 S.W.2d 174, this court, in discussing a similar question, quoted the rule as stated by Judge James R. Norvell in his article “Invasion of the Province of the Jury,” in 31 Texas Law Review, p. 731, as follows:

“ ‘The rule supported by the later American authorities is in substantial accord and may be stated as follows:
“ ‘A witness in testifying as to what he has perceived may employ inferences and state all relevant inferences, including those embracing ultimate fact issues to be decided by the trier of fact, provided he possesses a special knowledge, skill or experience not possessed by the trier of fact, which places him in a better position to draw the inference than is the trier of fact, or if the witness may more adequately and accurately communicate what he has perceived to the trier of fact by testifying in terms of inference or by stating inferences, and his use of such inferences in testifying will not be likely to mislead the trier of fact to the prejudice of the objecting party.’ ”

Clearly, in the instant case, Officer Dris-kell was possessed with more knowledge of the game of policy than the jurors in the case and his testimony could not have misled the jury to the prejudice of appellant.

It is further contended by appellants that the court erred in refusing to declare a mistrial when Officer Driskell, while being questioned on direct examination concerning his knowledge that appellants had picked up some bets for another writer, stated:

“The defendants told me they had been dropped off * *

The record reflects that no objection was made by appellants until after the question was asked and answered by the witness, when their counsel stated:

“We object and at this time we ask for a mistrial.”

Thereupon, the question was withdrawn by state’s counsel and the jury was instructed by the court not to consider the question and answer for any purpose whatsoever. Under the record, we perceive no reversible error in the bill.

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

Opinion approved by the court.


author: MORRISON, Judge.

text:
    O. V. LUPER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35266.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    Joe M. Joiner, Sherman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 15 years.

Appellant’s confession, the voluntary nature of which is not questioned, gives the following version of the homicide. Appellant had been at his Uncle Lafayette’s house shooting dice on the night in question, and when they finished he, his uncle and deceased drove to Denison to a cafe. Appellant and his uncle went in, leaving deceased asleep in the back seat. While in the cafe, appellant met Arthur Ray Mask (his cousin) and told him that deceased had won a little money in the crap game. The confession continues, “We decided at this time that we would take Gus Sloan (deceased) out on the road and get the money.” Soon after leaving the cafe headed “to Bonham to a honk tonk,” Lafayette got out of appellant’s automobile and Mask and deceased remained on the back seat. Further down the road, “Arthur was trying to hold Gus and go through his pockets to see if he had any money on him,” and “Arthur then told him that if he did not hold still he was going to hit him in the head with something.” After passing through Bells, “Arthur got a lug wrench that was on the back floor board of the car and started hitting Gus Sloan with it.” Further down the road, appellant brought his automobile to a halt when Arthur announced that Sloan was dead. At this point in the confession, we find the following, “That is when I started to get out of the car and Arthur Ray reached up and locked the door so I couldn’t get out, and he still had the wrench in his hand. He says that if I do not drive him on down the road he was going to hurt me.” The confession continues, “We took Gus out the right side of the car and carried him about 50 or 60 yards to a little gully that had some water in it. We laid Gus down on his back and then rolled him over into the water, face down.” Appellant took Arthur Ray back to the cafe, at which time Arthur threatened to kill appellant if he told. Appellant then went by to see two girls, stopped at a poker game, and got home about sunrise. The following day, appellant found some keys in his automobile and took them by deceased’s home, “I knew that he was not there * * * I was going to make it look good.”

Appellant, testifying in his own behalf, admitted that the confession was correct in almost all its details but stated “Arthur Ray Mask had done nothing to lead me to believe that he would kill Sloan to get his money. Arthur Ray Mask and I never did agree to kill Sloan, if necessary, to get his money. The killing happened so fast that it was almost over before I knew what was going on.”

In addition to the above, the State proved that deceased’s body was found in the vicinity described, that he had met his death from blows upon the head inflicted by a blunt instrument.

Lafayette Luper, appellant’s uncle, testified for the State, related the events of the evening, the trip to the cafe in Denison where he and appellant left Gus Sloan in the automobile and where he saw appellant and Arthur Ray Mask talking together. His version was that appellant did not pick up Mask until after they had left and that he soon thereafter got out of the automobile and caught a cab back to the cafe.

Appellant introduced in evidence a confession which he made to the officers some few days before the one introduced in evidence by the State, and we are unable to find any substantial difference in the two documents.

We overrule appellant’s contention that the evidence is insufficient to corroborate appellant’s confession. He testified to practically the same facts as contained in the confession, and the court instructed the jury to acquit if they found that the killing of Sloan was not in any way connected with the common purpose and design of appellant and Mask and if the killing was done without the knowledge and consent of appellant upon an independent impulse of Mask. He further instructed them to acquit if they had a reasonable doubt as to appellant and Mask entering into an agreement to rob deceased. Prudently, the judge further charged the jury that the State was bound by all of appellant’s confession unless shown to be untrue.

Appellant’s further complaint relates to a question propounded by the State. On cross-examination by appellant’s counsel, Sheriff Blanton testified that “Arthur Ray Mask is in jail and available if the State wants to call him as a witness.” On re-direct, he was asked if the defendant had subpoenaed Mask as a witness. The question was not answered, and the careful judge instructed the jury not to consider the question pursuant to appellant’s request.

Later on during the trial, appellant stated that, since it had been brought to the jury’s attention that Mask “is here, we would like to agree with the State to bring him down and let him testify, let the jury hear what he has to say in this case.” At the State’s objection, the jury were instructed not to consider this statement made by counsel.

We cannot bring ourselves to agree with appellant that the above proceedings reflect a deliberate effort on the part of the State to make the jury believe that appellant was intentionally withholding evidence damning to him by not calling his co-indictee as a witness. In the first place, it was appellant who first made it known to the jury that appellant’s co-indictee was available as a witness. Any error committed by the State in asking the question was clearly cured when appellant offered, in the presence of the jury, to agree that such co-indictee might testify.

Among the cases cited by appellant, we find only Ramirez v. State, 112 Tex.Cr.R. 332, 16 S.W.2d 814, and Grille v. State, 112 Tex.Cr.R. 561, 17 S.W.2d 833, which require differentiation. In Ramirez, the prosecutor for the first time in his argument injected the question of the availability of a co-indictee as a witness for the defense and challenged accused’s counsel to explain why such witness has not been called. The objection to such argument on the grounds that such co-indictee was not available to the accused under the statute was apparently overruled, and this Court reversed because of such argument and an error in the charge. In Grille, the prosecutor also in his argument demanded an explanation of appellant as to why he had not called a co-indictee so that he (the prosecutor) might have cross-examined him. As stated, appellant in the case at bar first made it known to the jury that the witness was available. All the State did was to ask if the appellant had subpoenaed such witness. This question was not answered, and the court instructed the jury to disregard. The error, if any, was waived when appellant offered to call such witness. We have concluded, as this Court did in Kelsey v. State, 109 Tex.Cr.R. 275, 4 S.W.2d 548, that no reversible error is reflected by the above.

Finding the evidence sufficient to support the verdict and no reversible error appearing, the judgment of the trial court is affirmed. '


author: DICE, Commissioner.

text:
    Benny Lee BRUMBELOW, Appellant, v. The STATE of Texas, Appellee.
    No. 35257.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for assault with intent to murder with malice; the punishment, confinement in the penitentiary for fifteen years.

The injured party, Cynthia Dianne Whit-mire, was the two-year-old daughter of Mrs. Geneva Morris, who lived with the appellant in the city of Houston. On September 12, 1960, Cynthia was brought to the office of Dr. L. D. Bricker by her mother, at which time she had certain contusions and bruises about her face and body and was in a semi-comatose condition. From his observation, Dr. Bricker assumed that Cynthia either had a skull fracture or a concussion, and recommended that she be hospitalized. Thereupon, she was taken by her mother to Jefferson Davis Hospital, where she was observed by Dr. Mark Kubala, a neurosurgeon. Dr. Kubala testified that upon his physical examination of the child when he first saw her in the emergency room he found:

“ * * * there was the inch and a half cut in the right oceipical region, which is the right part of the head in the back. There was a swelling in the right forehead, and there was swelling around the right eye. The swelling around the right eye was what we call ecomotic, or discolored. In lay terms, it is sometimes called a blue-black eye. There was tenderness to the touch of this swelling. There was swelling in the right ear, and on examination of the external ortatory canal, or the ear, as we know it; with an ordascope, we found blood behind the eardrum, which indicated to me a baser skull fracture. I found multiple bruises over the body, including the right hip, the thigh, the right thigh, the left leg, and the back and the abdomen * * *. The blood behind the eardrum and the discoloration in back of the ear are diagnostic as a baser skull fracture. By baser, we mean a fracture of the skull in the bottom part of the skull, that is, the part where the ear is connected * *

Dr. Kubala further testified that from the physical examination showing a baser skull fracture he concluded that the child had sustained a severe head injury which could cause death and, consequently, he placed her on the critical list, and that after receiving treatment she was discharged from the hospital on September 22.

Dr. Jim J. Moore, testified that he first saw the child in the hospital, on September 13, 1960, and his testimony corroborated that of Dr. Kubala as to the description and extent of her injuries.

Four photographs taken of the child following her admission to the hospital were introduced in evidence as state’s exhibits 1, 2, 3, and 4, after being identified by Dr. Kubala as truly and accurately representing her condition when he saw her in the hospital except for a small bandage which had been applied to her scalp. The photographs show certain bruises and abrasions on the child’s body, mainly about the face and head, both eyes being discolored and the right eye closed.

Appellant was arrested by Officer John J. Orlando on September 19 and, after having been duly warned, made and signed a written statement to the officer in which he admitted having struck the child on September 11, when the two were alone together in the home. The statement was introduced in evidence by the state, with the exception of certain portions offered by appellant. In the statement, appellant among other things stated:

“On Sept. 2, 1960_I rented a house at 4729 Ramus street, here in Houston. Geneva and I moved in that night. On. Zabor-day, which was Sept. 5, 1960 — . Geneva and I went to Geneva’s mother.? and got Cynthia and Geneva’s belongings.
“On iuesday morning Sept. 6, 1960_ Cynthia Dianne Regan crying for some reason or another, I don’t remember now, but to get her way she will have a temper fit. I got mad and took a belt and whipped Cynthia with it. Geneva had gave me permission to whip Cynthia, but Geneva became angry on this occasion for Geneva felt that I had whipped Cynthia t/nnecessary hard. In the next two or three days I had to whip/» Cynthia several other occasions, however not as hard as before.
“On Sunday Sept, 11, 1960 Geneva had to go to the store. I stayed home with Cynthia and was washing dishes. Cynthia was crying because she wanted to go to the store with her mother. I gave her a small pie plate to wash, but she was making a mess with it and I then put Cynthii on the Drainboard near the sink. Then Cynthia put her feet in the dish water and was playing with the pie plate. Cynthia then started her crying again and I tried to get her to stop crying by talking to her, but she just kept on and I guess I lost ■ my temper and struck cynthia on her face with the back of my left hand, and the blow caused her head to hit the edge of the cabinet * * * I picked her up and was bathing her face when Geneva came in from the store and I told Geneva what had happened, however at the time I did not tell Geneva that I had struck Cynthia causing Cynthia to hit the back of her head on the cabinet * *

As a witness in his own behalf, appellant denied having struck the child on September 11th and testified, in substance, that her injuries were caused from falling from the drainboard to the floor while he was out of the room and had gone to the front door.

Dr. Kubala testified that in his opinion the injuries he found on the child’s body were not compatible with her falling off the drainboard but were compatible with a child’s being beaten about the face, head, and body by a man the size of appellant, with his fists, and knocking the child’s head into a sharp-cornered object that cut the back of the head.

Appellant further repudiated that portion of his confession in which he admitted striking the child, and testified that the reason he made such statement was to prevent charges being filed against the child’s mother.

Officer Orlando, to whom the confession was made, denied that he or anyone else threatened appellant with any harm or that he threatened to file charges against the child’s mother.

The record presents no objections to the court’s charge, nor does it contain any formal bills of exception, and no brief has been filed on behalf of appellant.

We have examined the informal bills of exception appearing in the statement of facts and find no reversible error therein.

The admission in evidence of the four photographs of the minor child, to which appellant objected on the ground that they were highly inflammatory, were hearsay, and did not truly depict the child’s appearance and would inflame the minds of the jury, does not present error. The photographs, except for the small bandage, were shown to truly portray the appearance of the child when first admitted to the hospital. The photographs showing the condition of the child’s body at that time could shed light on and aid the jury in passing upon the issue raised by appellant’s testimony as well as on the issue of malice and intent to kill. Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625; Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124; Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112; Cordero v. State, 164 Tex.Cr.R. 160, 297 S.W.2d 174; and Wilkerson v. State, Tex.Cr.App., 342 S.W.2d 431; and Cantrell v. State, 156 Tex.Cr.R. 329, 242 S.W.2d 387.

The evidence, viewed in the light of appellant’s confession, the tender years of the child, and injuries inflicted, is sufficient to sustain the jury’s verdict finding appellant guilty of assault with intent to murder with malice aforethottght. See Hignett v. State, Tex.Cr.App., 341 S.W.2d 166.

The judgment is affirmed.

Opinion approved by the court.


author: McDonald, judge. MORRISON, Judge

text:
    James Franklin SADLER, Appellant, v. The STATE of Texas, Appellee.
    No. 35137.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    Rehearing Denied Feb. 13, 1963.

      Francis C. Richter, Hondo, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The appellant was convicted for the offense of murder with malice aforethought, under an indictment alleging that he killed Lorene Taylor Hill by hitting her in the face and head with his hands and fists. His punishment was assessed at 15 years’ confinement in the State penitentiary.

The evidence reflects that the deceased was a young girl, 22 years of age; that she weighed between ninety and one hundred pounds, not over 100 pounds, and that she was five feet in height, and shown by the testimony to have been a very small woman, very small bones and arms, not a fleshy person. The evidence adduced from the appellant’s written statement without objection further reflects that she had been rather sickly, that she was subject to blackout spells and had low blood pressure, that she took medicine for her illness and that she had gone to several doctors in Rio Grande City, Zapata and Jourdanton.

The appellant was described, as shown by the testimony of Sheriff Dobbs, as being a man that would weigh a hundred and ninety pounds and was six feet two or six feet three inches in height; that he was a very strong man; that he had been an athlete, been a boxer fighting in the Golden Gloves tournaments; that he was around thirty years old.

The written statement of appellant reflects that he and the deceased had been living together for about 4 months, that she had been legally married to someone else during this time, that she had been separated for a long time, that they started living together on or about March 5, 1961.

The State’s testimony reflects a series of acts of violence committed on the part of appellant against the person of the deceased, during the period of several months while the parties lived together out of wedlock.

Richard Lloyd Wilkinson, a witness for the State, testified that he was running Scottie’s Blue Top in Jourdant-on on the day of the death of the decedent; that he saw appellant in this place of business with the deceased and another couple; that he heard a little commotion and saw appellant slap his wife completely out of the chair and onto the floor right at the side of the chair; that he wouldn’t say it was a closed fist or what.

The appellant did not testify, but in his written statement he says that he went to the rest room '(shown to he at Scottie’s Blue Top) and when he returned the deceased and the others with them were gone; that they had gotten in the barbecue line; that this made him mad and he asked the deceased why they did not wait for him; that he told her she was supposed to do what he told her to do, and not what somebody else told her to do; that he and deceased had a few words; that he then got real mad and he hit her in the face with his hand one time; that it knocked the barbecue out of her hand; that she did not fall out of the chair when he hit her; that they then left the cafe, and .went to his father’s home; that the deceased said she was tired and wanted to go to bed; that she went to bed and seemed to be crying or whimpering; that he went to see about her and subsequently he determined to take her to a doctor, going to his sister’s home for a car, as his was about out of gas; that when he returned to his father’s house the deceased was dead.

Dr. Robert Hausman, shown to be the medical examiner of Bexar County, a witness for the State, who performed the autopsy on deceased, described in detail that the deceased had, evidence of bruises. The bruises consisted of some fresh bruises and some old bruises. There were bruises around the right eye, right upper and lower eyelids were discolored, and there was hemorrhaging in the white of the eye; the outside of the right eye in the white was hemorrhaged. The bruises of the right eye trailed all over the cheek as yellow discolorations, and it merged with other bruises over the side of the lower jaw, so the right side of the face was bruised. There was a nail mark over the left eyebrow, two small hemorrhages in the right half of the lower lip in the inside of the lip; on the left side of the face, from the outer ridge of the eye socket to the ear there was a swelling and blue discoloration. The bruise of the left eye and the left temple was less than twenty-four hours old, possibly less than twelve hours old. The bruise of the right eye was older than 24 hours. There was a clot which covered the right half of the brain. The right half was filled with a clot which pressed on the brain, that this blood clot is called a subdural herna^-toma, meaning a collection of blood, and it compressed the right half of the brain and it was the cause of death. This subdural hematoma was caused by blunt force directed -against the head. Dr. Hausman expressed the opinion that the subdural hema-toma was brought about by blunt force injury directed to the left temple and to the left eye because they appeared about the same age. In addition to this hematoma, the brain showed some other injuries, too. Over the part of what we call the temporal, there were two areas of old bruising; that was in addition to the blood clot that he found overlying the right half of the brain. On sections of the brain itself, there was a small hemorrhage, also old, inside the brain matter. Also, there was evidence that part of the subdural hematoma was older than twenty-four hours. The doctor stated that he did not find anything that could have caused her death except for this fresh sub-dural hematoma; that the wounds he examined were caused by blunt force to the face, in this case two separate blows, one of which produced the black eye on the left and one which produced the black eye on the right; that on the inside of the dura mater there was evidence that there had been previously blood; that this was a matter of days, did not look that it was older than two or three weeks. The same held true for the bruising on the right side of the brain; that was also a matter of days and possibly weeks. All of those bruises and injury to the brain in his opinion were not over three •weeks old.

“Q. Dr. Hausman, I’d like to ask you a hypothetical question based upon your autopsy of this girl and what you found that you have testified here to before the jury. Now, assuming a few things that I will state to you, that approximately one week before you conducted this autopsy, a man of the weight of one hundred and ninety pounds, an ex-boxer, a strong man, struck this girl in the right eye with his hands and fists and then on approximately 8:30 P.M. •of the night before you conducted this autopsy, that on the night ■of July the 4th at approximately 8:30 P.M. he again struck lier in the face with his hands and fists sufficient to knock her out of a chair and on the floor, onto the floor, would such injury to the face of this girl and such force applied to the fists have created the subdural hematoma that you have described as resulted in her death ?
•“A. Yes, sir, it would in my opinion.
“Q. And if that did happen, Dr. Hausman, and with no evidence of anything else, would that in your opinion have caused her death from what you found ?
“A. Yes, sir.”

Appellant predicates his appeal ■on one contention; that is, that the evidence is insufficient to support the conviction in -that there is a total lack of any evidence of an intent to kill, which is essential to the •crime of murder. Appellant cites us two -cases in his brief in support of his contention. The first case is Watson v. State, 148 Tex.Cr.R. 589, 189 S.W.2d 1020, and the other case is McDonough v. State, 147 Tex.Cr.R. 111, 178 S.W.2d 863. In Watson’s case, supra, the evidence reflected that the deceased was 24 years of age and weighed about 200 pounds, and the appellant was 36 years of age and weighed about 215 pounds; that appellant struck the deceased two or three licks about the chin and right side of the head in the region of the temple and as a result of these licks deceased crumpled or slumped to the pavement; that he was picked up, taken home, lapsed into unconsciousness and died of concussion of the brain about ten hours after the difficulty. As held by this Court in Watson, supra, “The intent to kill is either presumed or established by the facts. Where the instrument used — as in the instant case— is not one which, in the mode or manner of its use, is calculated to produce death or serious bodily injury, the burden is upon the State to establish, beyond a reasonable doubt, the intent to kill.” There was no testimony in Watson’s case, supra, suggesting antecedent grudges, ill-feeling or motive for appellant to kill, or desire to kill, the deceased. We feel that this Court in Watson’s case, supra, no doubt gave serious emphasis to the relative size, age and strength of the parties in reaching its conclusion to reverse the case for want of sufficient evidence to support the conviction for murder.

In McDonough’s case, supra, this Court, speaking through Judge Beauchamp, said: “If the jury had any evidence from which they might find an intention to kill, their finding would be binding on this court. An utterance made by the appellant, the relative sise and strength of the parties, the manner of the attack and the extent to which it was carried are all proper factors for consideration.” It is interesting to note that the relative size and strength of the parties is not shown by the opinion in Mc-Donough’s case, supra, although it was a case of murder by striking and beating the deceased with his fist and by kicking him with his feet. We adopt the foregoing statement of Judge Beauchamp in Mc-Donough, supra, • for our holding' that the jury had, in this case, evidence from which they found an intention to kill, considering the relative size, weight and strength of the parties, and the jury’s finding in this respect is binding upon this Court. Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124. The question as to whether there was an intent to kill was for the jury. Ebers v. State, 129 Tex.Cr.R. 287, 86 S.W.2d 761; McNeill v. State, 128 Tex.Cr.R. 250, 80 S.W.2d 995; and Walker v. State, 94 Tex.Cr.R. 414, 251 S.W. 235.

We think that each case must necessarily turn upon its own facts, and prior cases are only useful to determine the dividing line. In each murder case affirmed by this Court, it necessarily finds sufficient intent to kill. Thus, in Medina v. State, Tex.Cr. App., 49 S.W. 380, continuous beatings and starvation showed an intent to kill. There was no one blow that could be pointed to as the cause of death. The Court held that it was competent to prove the prior beatings as evidence of the appellant’s malice toward deceased. The conviction was upheld. In Phillips v. State, Tex.Cr.App., 216 S.W.2d 213, appellant and deceased got into a fight. Appellant struck deceased with his fist one to four times and then left him lying by a road. The Court said: “The facts, in our opinion, show such a disregard for human life as would justify the jury’s conclusion that he intended.to kill the deceased.” Bell v. State, 149 Tex.Cr.App. 509, 196 S.W.2d 923, is almost four square on the facts with the case at bar. The appellant was charged with killing his wife by striking her with his fists. She appeared one day with a “bump” on her head and told her . son that “Daddy caused it.” There was evidence of prior violence by the husband on the wife. The case was reversed because the State failed to show that the blow was struck by the husband, but the opinion indicates (inferentially) no question in the court’s mind as to intent — had the blow been shown.

We are of the opinion that the evidence is sufficient to sustain the jury’s verdict. The judgment is affirmed.

MORRISON, Judge

(dissenting).

The indictment was in three counts. The second and third charged negligent homicide under Article 1242, Vernon’s Ann. P. C., in that appellant, while committing an aggravated assault and battery, he being a male and deceased being a female, through accident and mistake killed deceased by striking her in the face with his hands- and fists. It is apparent from the way the indictment was drawn that there was serious-doubt, in the minds of the prosecutor and the grand jury which returned the indictment, that the evidence was sufficient to-support a conviction under the count charging murder. The facts, as I view them,, amply support a finding of guilt under count two but do not support a conviction under the first count.

Sheared of all the gory details, we have here an unexpected death which resulted, from a blow with the hand or fist administered in a public place by a sober person who made no utterance from which an intent to kill might be inferred and which, grew out of a trivial disagreement.

A careful analysis of Dr. Plausman’s testimony will reveal that, although he found evidence of two blows, he attributed' the cause of death to one blow to the left temple and eye, which resulted in a hema-toma. He said, “I did not find anything that could have caused her death except this-fresh subdural hematoma.” He further-stated that a subdural hematoma may result from the application of a blunt force,, a slight force or no force at all, and that because of an earlier disease which deceased had suffered, the residual effects of which he was able to detect from his autopsy, the-deceased was more susceptible to formation of a hematoma. He further stated that when a man strikes a woman a blow on the side of the head “usually no hematoma, will form.”

I cannot agree that the fact that deceased went with appellant’s brother and his wife-to the barbeque line without waiting for appellant was such a provocation as to give rise to an intent to kill or that appellant might reasonably foresee that death would follow. However reprehensible his conduct may have been, appellant is entitled to the full protection of the law and should not be held accountable for unforeseeable results.

Because this record, as I view it, does not support a verdict of murder with malice, I respectfully dissent. Authorities supporting my views appear in the footnote.

      . Hill v. State, 88 Tex.Cr.R. 179, 225 S.W. 521; Jones v. State, 94 Tex.Cr.R. 471, 251 S.W. 1096; Hawkins v. State, 115 Tex.Cr.R. 163, 29 S.W.2d 384; Allison v. State, 131 Tex.Cr.R. 428, 99 S.W.2d 917; Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943; Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140; McDonough v. State, 147 Tex.Cr.R. 111, 178 S.W.2d 863; Watson v. State, 148 Tex.Cr.R. 589, 189 S.W.2d 1020.


author: BELCHER, Commissioner.

text:
    Ex parte Vernice G. HOBBS.
    No. 35307.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 13, 1963.
    No attorney for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Relator, an inmate of the Texas Prison System, seeks his release by an application for the issuance of a writ of habeas corpus alleging that on March 1, 1962, he entered pleas of guilty to offenses less than capital in Causes Nos. 95,063 and 95,064 in the Criminal District Court No. 3 of Harris County and that at no time did the attorney representing the State execute a written consent for the relator to be tried without a jury as is required by Art. 10a, Vernon’s Ann.C.C.P.

When the application of the relator was presented, this Court directed that it be filed and that the facts be developed and certified to this Court. This has been done.

The judgment in each of said causes in part recites that “the said defendant Ver-nice G. Hobbs having the consent and approval of the court and J. R. Musslewhite, attorney for the state, having agreed and consented in writing, which consent duly signed has been filed in the papers in this cause, waives a jury herein and in open court entered a plea of guilty * * * ”

The Deputy District Clerk serving in said court at the time of relator’s conviction testified that he did not find any written jury waivers signed by the state’s attorney on his search of the files in said causes; that he had no independent recollection of such waivers but it was possible for them to have been removed or lost; that the docket sheet in said causes bore the rubber stamped recitation as follows: “Jury waived by defendant in person, approved by the court and consented to and approved by state’s counsel in writing.”

Another Deputy Clerk testified to the indexing, storage and security of the records in the criminal section of the Clerk’s office.

The state prosecutor of these causes testified that he had no independent recollection of having filed waivers of consent; that it was his policy and that of the trial court not to take a guilty plea to a felony without a jury unless a waiver had been signed and filed with the clerk but that it was possible that he omitted filing consent waivers of the jury.

The relator testified that he did not see any waiver of a jury signed by the state’s attorney nor was mention made of a jury by the prosecuting attorney or the court.

The trial judge testified that it was his custom to inquire of counsel for the state if he had filed a tonsent waiver of a jury before accepting a plea of guilty. But in these cases he had no recollection of whether he had made such inquiries, and that during the trial he made no inquiry of the clerk about such waivers.

In face of the recitations in the judgments as shown above, it is concluded that the evidence is insufficient to show that the requirements of Art. 10a, supra, were not complied with.

The same contention was urged by relator for release from confinement under a 1952 conviction in Ex parte Foster, 162 Tex.Cr.R. 191, 283 S.W.2d 761. There a search of the records failed to disclose a jury waiver in any case during the year 1952. Counsel for the state testified that he could not recall when he began filing waivers but his examination of the records showed that the first waiver was filed in November, 1953. Relator’s attorney also testified that his examination of the records for two years prior to November, 1953, revealed no waivers. This evidence warranted the conclusion that Art. 10a, supra, was not complied with in the Foster case.

In the case at bar there had been no evidence of a systematic omission to file waivers as disclosed in Foster but merely a failure of the witnesses to recall what was done, which was insufficient to render void a judgment valid on its face.

The application for the issuance of writs of habeas corpus in said causes is denied and the relator is remanded to custody.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Mike PICARONI et al., Appellants, v. The STATE of Texas, Appellee.
    No. 35297.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.

      Brooks Holman, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal by Brooks Holman, surety, from a judgment entered in Criminal District Court of Travis County forfeiting a bail bond.

The bond, dated January 8, 1962, is in the sum of $1000. It is conditioned that the principal, Mike Picarone, make his appearance before the Justice Court of Travis County, Texas, Precinct No. 3, on the 9th day of January 1962 at 10:00 P. M. It recites that the principal “stands charged with felony theft” and contains the usual provision that the principal “there remain from day to day and from term to term of said Court until discharged by due course of law, then and there to answer the accusation against him.”

Judgment nisi was entered in Criminal District Court on March 1, 1962, reciting: “And it appearing to the Court that the defendant Mike Picaroni as principal, together with Brooks Holman and -, as sureties, on the 8th day of January, A. D. 1962, did enter into a Bail bond, payable to-The State of Texas, in the penal sum of One Thousand Dollars ($1,000.00) conditioned that the defendant, as principal, should well and truly make his personal appearance, instanter, before the Honorable Criminal District Court of Travis County, Texas, at the Courthouse of said County, in the City of Austin, Texas, at the January Term of said Court, and there remain from day to day and from term to term of said Court until discharged by due course of law, then and there to answer the State of Texas upon a charge by Indictment therein filed accusing him of the offense of a felony, to-wit: Felony Theft.”

The scire facias or citation to the surety stated the condition of the bond as requiring the personal appearance of the principal before the Honorable Criminal District Court of Travis County, Texas, on the 9th day of January, A. D. 1962, to answer a charge by indictment accusing him with the offense of theft.

Evidence was introduced showing the return of an indictment against Mike Picaroni in Cause No. 33,400; his failure to appear when such case was called and the forfeiture by judgment nisi. The indictment, judgment nisi and citation to the surety were introduced.

The appellant filed in order: (1) a plea to the jurisdiction of the Criminal District Court; (2) a motion to set aside the judgment nisi; (3) motion to quash the citation or scire facias, each of which was overruled. He also filed a verified general denial.

Prior to the enactment of Art. 275a, Vernon’s Ann.C.C.P., the variance between the bail bond and the scire facias or citation to the surety would have been fatal. Bonds v. State, 162 Tex.Cr.R. 419, 286 S.W.2d 313.

Art. 275a, V.A.C.C.P., provides in part:

“Section 1. Where a defendant, in the course of a criminal action, gives a bail bond or enters into a recognizance before any court or person authorized by law to take same, for his personal appearance before a court or magistrate, to answer a charge against him, the said bond or recognizance shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court or magistrate designated therein, and for any and all subsequent proceedings had relative to the charge, and each such bail bond or recognizance shall be so conditioned except as hereinafter provided.
“Sec. 2. When a defendant has once given a bail bond or entered into a recognizance for his appearance in answer to a criminal charge, he shall not be required to give another bond nor enter into another recognizance in the course of the same criminal action except as herein provided.”

The question of whether these statutory provisions may be read into a bail bond, or whether such a bond may be construed in the light of said statute to require the principal’s appearance in District Court need not be passed upon. This record does not show that the principal was committed to await the action of the grand jury, and no proof was offered showing that the indictment returned against the principal was for the same offense that was charged against him in the Justice Court. Whether he appeared before the magistrate, as the bond required, or not, and whether an examining trial was held or was waived, does not appear. For aught this record shows, the magistrate could have discharged the defendant.

It follows that we are in no position to say that the bond for the appearance of the principal in the Justice Court on January 9, 1962, by reason of Art. 275a, V.A.C.C.P., became an obligation binding the principal and surety for the principal’s appearance in Criminal District Court instanter at the January Term, as stated in the judgment nisi, or on the Pth day of January 1962, as the citation or scire facias shows, or for his appearance in any court other than the Justice Court of Precinct No. 3 at any time.

The judgment is reversed and the cause remanded.


author: McDonald, judge.

text:
    Willie James CALDWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35275.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.

      J. M. Anderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is assault with intent to murder with malice; the punishment, five years in the penitentiary.

No statement of facts accompanies the record in this case.

The sole question presented for review is that the action of the trial court in overruling appellant’s motion for new trial, based upon newly discovered evidence of insanity, constitutes error.

The record reflects that appellant’s trial was concluded with the jury verdict on April 12, 1962. Thereafter, on April 18, 1962, appellant’s present counsel, J. M. Anderson, filed a motion for new trial to the effect that the verdict was contrary to the law and the evidence. An amended motion was filed on May 2, 1962, by Mr. Anderson, setting forth the defense of insanity for the first time, both at the time of the alleged offense and at the time of trial. The amended motion stated, in substance, as follows: Some time before the trial of appellant, represented by appointed counsel other than Mr. Anderson, Mr. Anderson and Mr. Sam Jones, attorney, of Waco, Texas, being retained by appellant’s family, were aware of a possible or probable insanity defense. Acting on such premise, Mr. Anderson interviewed appellant in jail, on which occasion appellant indicated he was a member of the F. B. I. and would handle his own defense. Mr. Anderson contacted numerous psychiatrists in the Dallas area for the purpose of examination but was unsuccessful. Mr. Jones then engaged Dr. S. Bergen Morrison, of Waco, who, with the permission of the Dallas authorities, namely the sheriff and the office of the district attorney, examined appellant in the Dallas jail on April 7, 1962. When Mr. Anderson received the report of Dr. Morrison to the effect that appellant was insane at the time of the offense and presently insane, he forwarded this information to the first assistant district attorney of Dallas County, Honorable James K. Allen, but this information was not received by Mr. Allen until after the trial below. Mr. Anderson alleged that appellant’s appointed attorney did not know that a psychiatric examination was being arranged for by “defendant” and his “counsel” and that neither appointed counsel nor the district attorney’s office was notified as to the results of the examination until after the trial. Mr. Anderson further alleged that he used reasonable diligence in securing such medical information.

After a hearing on May 21, 1962, on the amended motion, at which time the testimony of Dr. Morrison was received as to his examination and report, which he testified he mailed to Mr. Anderson and Mr. Jones on April 9, 1962, the trial court overruled said motion. To such order, appellant excepted and gave notice of appeal.

No statement of facts as to the testimony on the main trial has been brought forward, although a stipulation appears attached to- the statement of facts as to the testimony on the motion to the effect that no' lay or medical testimony with regard to mental capacity was offered at the main trial-or submitted in a charge to the jury, and that, inter alia, state’s trial counsel had no notice that Mr. Anderson had been retained.

No formal bills of exception having been filed herein, it appears that' the matter complained of is not properly before this court for review. The motion for new trial does not qualify as an informal bill under Art. 760e, Vernon’s Ann. C.C.P., inasmuch as only motions for new trial relating to jury misconduct or the reception of new evidence by the jury are specified therein. As stated in Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587, the rule requiring complaint of failure to grant a new trial based on newly discovered evidence to be presented by bill of exception was not changed by enactment of Art. 760e, supra. Neither formal nor informal bills appearing of record, there is nothing for review.

If the matter complained of were properly before - this court for review, it appears that appellant would fail for lack of diligence. In his brief, appellant relies upon Pappas v. State, 127 Tex.Cr.R. 570, 78 S.W.2d 619, to excuse the lack of diligence. Under the doctrine of Pappas, the rule of diligence is relaxed only as to the accused. Counsel in Pappas did precisely what appellant’s counsel herein should have done — i. e., he advised the court, before trial, of an insanity defense and asked for a postponement for necessary time to prepare the insanity defense. In the Pappas opinion it was stated: “They [counsel] were not in the attitude of waiting until after the trial to raise the question.” Of course, appellant’s present counsel states that the appointed counsel was unaware of the psychiatric examination which was conducted some five days before trial. This merely raises the critical question: Why did not appellant’s'retained counsel advise the appointed counsel or the court or both ? Further, why did not retained counsel apprise himself of the date of trial and have his name entered by the clerk as attorney of record for appellant? He could have then filed an affidavit for a sanity hearing prior to the trial on its merits.

A jury trial upon the issue of appellant’s sanity, under the provisions of Art. 932b, Sec. 3, V.A.C.C.P., is not precluded prior to the final disposition of this appeal. Thereafter, Sec. 11 of Art. 932-1, V.A.C.C.P., will be applicable.

Finding no error calling for a reversal, the judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Verna Katheryn SARTAIN, Individually and as Next Friend of Her Minor Children, Kathy Sartain and Janie Sartain, Appellant, v. SOUTHERN NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 11016.
    Court of Civil Appeals of Texas. Austin.
    Jan. 9, 1962.
    Rehearing Denied Jan. 30, 1963.
    Runge, Marschall & Hall, San Angelo, Graves, Dougherty, Gee & Hearon, William L. Garwood, Jr., Austin, for appellant.
    Kerr, Gayer, Ray & Lyons, San Angelo, for appellee.
   HUGHES, Justice.

Frank W. Sartain, the husband of Verna Katheryn Sartain and the father of Kathy and Janie Sartain, was killed in an automobile collision on October 18, 1958, on U. S. Highway 158, about twenty-six miles east of Midland, Texas. He was driving alone in an eastbound automobile when it collided head-on with a westbound automobile operated by Ollie L. Gray, in which car Billy Gene Bruce was a passenger. Mr. Bruce also died of the injuries sustained in the collision.

This appeal, as it reaches us, is from a judgment rendered, notwithstanding the jury verdict, in favor of Southern National Life Insurance Company, by which such company was dismissed with its costs.

Mrs. Sartain had filed pleadings for herself and children alleging that Ollie L. Gray was guilty of negligence proximately causing the collision, and that at such time he was the agent and employee of the Southern National Life Insurance Company and was then engaged in the business of the company. She sought judgment for damages against Gray and the company.

The case was tried to a jury which found Gray guilty of eight negligent acts proximately causing the collision. Mr. Sartain was exonerated of allegations that he was contributorily negligent.

The jury also found that at the relevant time Ollie L. Gray was an employee of the appellee insurance company and was in the course of his employment; that Billie Gene Bruce was a “vice principal” of appellee, was in the course of his employment, and had a right to control the operation of the automobile in which he and Gray were riding.

The validity of the negligence and related findings are not here in issue. The only jury findings which are questioned are those bearing upon the relationship between appellee, Bruce and Gray. If there is any evidence to sustain those findings, then the Trial Court erred in disregarding them in the rendition of judgment. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

The question of no evidence requires us to give credit to all evidence supporting such findings and to indulge every legitimate conclusion in their favor. Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575. This, we do.

Appellee is a life insurance company with its home offices in San Antonio, Texas.

Ollie L. Gray was appellee’s insurance soliciting salesman for “San Angelo and vicinity.”

Gray and appellee entered into a written contract of employment on October 9, 1958, nine days prior to the collision in suit.

Appellant has summarized or quoted the portions of this agreement which she deems pertinent and since appellee does not object thereto we quote from appellant’s brief and adopt the following statement:

“This agreement is in the form of a letter to Mr. Gray from Southern National signed by its President, and bearing a printed endorsement at the end signed by Mr. Gray accepting the appointment. Gray’s signature is witnessed by ‘Bill G. Bruce, District Manager.’
“Gray’s appointment was as ‘Agent of the Southern National Life Insurance Company’ for the territory of San. Angelo and vicinity, ‘but without exclusive rights in such territory.’ Section 1 states that Gray’s duties shall be:
“ ‘(a) To solicit and procure applications for life insurance, annuties, and accident and health insurance in the Southern National Life Insurance Company.
“ ‘(b) To deliver policies and make collections and remittances subject to the rules, regulations or instructions of the Company and to perform such other duties as may be requested by the Company.’
“Section 2 is headed ‘Responsibility’ and in it Gray agrees to account to the company ‘for all policies, premiums and other receipts, moneys and also all other papers and property received by you from the Company, its policyholders or representatives.’ Gray also agrees to treat all collections as ‘trust funds,’ to furnish a surety bond at the company’s request and, in subparagraph (b):
“ ‘To represent the Company in accordance with the laws in force in your territory and with all present and future rulings, regulations and instructions of the company.’
“Section 3 is headed ‘Limit of Authority,’ states that Gray’s ‘authority shall extend no further than stated herein,’ and lists certain specific acts which Gray is not authorized to perform on behalf of the company.
“Section 4, headed ‘Compensation,’ states that this ‘shall consist of the following commissions and fees upon premiums paid to the company in cash’ and sets forth a table of first-year and renewal commissions upon various plans of insurance.
“Section 5 provides that death shall terminate the agreement, and that it may also be terminated ‘at any time by either you or the company upon ten days’ written notice’ or ‘by the company immediately for cause.’ Termination and forfeiture of accrued commissions are also provided for if Gray refuses to turn over to the company any of its property, or in the case of similar misdeeds.
“The Company agrees in Section 8 to furnish Gray ‘with a reasonable amount of printed matter such as it issues for the general use of its representatives’ and requires that Gray not use or ■circulate ‘any written or printed matter pertaining to the Company or its business without first obtaining written approval therefor from an officer of the Company.’ Gray is also prohibited from instituting legal proceedings .against any applicant or policyholder ‘or against any other party for any cause growing out of business transaction under this contract’ without the Company’s prior approval. Gray is required to forward immediately to the home office ‘all applications and medical examination reports obtained under the authority of this contract.’
“Gray also agrees (Section 16) that ‘all books of accounts, documents, vouchers, letters and all other property and papers connected with the business transacted under this agreement shall be the property of the Company, and that they shall be open to inspection at all times by its officers, or their authorized representatives and shall, at the termination of this agreement, be turned over to the Company or its duly authorized representative upon demand.’
“Section 17 provides that ‘No assignment of this agreement of the commissions accruing under it or any interest therein shall be effective except with the prior consent of the Company.’
“In Gray’s acceptance of the appointment, he agrees ‘faithfully to perform the duties incident to the position, in accordance with the terms and provisions of the foregoing, and in conformity to the general rules of the Company and such instructions as I may receive from the officers thereof.’ ”

Billie Gene Bruce also had a contract, dated October 6, 1958, with appellee similar in nature to the Gray contract. In addition Bruce had a contract with appellee designated “District Manager’s Contract.” This contract, also dated October 6, 1958, has been described by appellant in her brief to which appellee makes no objection. We quote and adopt the following statement from appellant’s brief:

“This contract supplements Bruce’s Agent’s Contract, and appoints Bruce as ‘a District Manager of Southern National Life Insurance Company for the San Angelo District of Texas, but without exclusive rights in such District.’ The San Angelo district is stated to include ‘San Angelo and vicinity.’ The first portion, headed ‘Duties and Responsibilities,’ provides:
“ ‘This contract is given to you on your assurance that you will, for the benefit of Southern National Life Insurance Company, perform the following duties and assume the following responsibilities, to-wit:
“‘(a) To faithfully and industriously comply with the terms and conditions set forth in your appointment as agent of Southern National Life Insurance Company, and to perform the duties incident thereto, except as may he specifically modified or enlarged herein.
“ ‘(b) To hire agents to work in your district, and to properly train, supervise and work with agents of the Company working under you in your district, whether hired by you or assigned to you by the Company. All such agents supervised by you shall be considered a part of the San Angelo district agency. All agents .hired by you must first be approved by the Company.
“‘(c) To see that the agents of your' district agency under your supervision and for whom you are responsible perform the duties incident to their position and comply with the terms and provisions of their agent’s contracts.
“ ‘(d) To comply with all rules and regulations which from time to time may be promulgated by the Company as to the management and supervision of your District Agency.’
“The next section, headed ‘Compensation,’ states that Bruce ‘will be compensated for your personal production under the provisions of your Agent’s Contract’ and that in addition he will be entitled to receive, both on his personal production and also on business written by agents working in his district, certain ‘overriding’ commissions, as set out in a table included in the printed form.
“The contract contains termination provisions identical to those in the Agent’s Contract, but provides in addition that the company may terminate the Manager’s Contract, at its discretion, without terminating the Agent’s Contract.
“The contract grants Bruce an ‘expense allowance’ for the first four weeks after his October 6th appointment of $25 to $100 weekly, depending upon his ‘production.’ It is provided that ‘This expense allowance is to be used by you to pay expenses incurred by you, such as rent, telephone, stenographic or clerical help. You are not to make any contracts or create any obligations in the name of Southern National Life Insurance Company, and the Company will not be liable for any of your expenses or of your agency beyond the expense allowance herein provided.’ After the first four weeks, the expense allowance is to be continued only after specific approval and for so long as Bruce ‘shall reasonably maintain’ the production of his agency, as determined by the Executive Committee of the Company,
“This contract also contains a provision against its assignment, or the assignment of the commissions accruing under it, without prior written consent of the company.
“Bruce’s District Manager’s contract is also signed by Fred H. Brown, President of Southern National Life Insurance Company, is approved by the Chairman of the Executive Committee, and signed by Bruce.”

Ollie L. Gray testified that he was hired by Bruce to go to work for appellee about six weeks before the accident. During-this time he sold some insurance for it and earned about six hundred dollars. M,r. Gray considered Bruce his “boss” who had the right to fire him.

Mr. Gray regularly used his car in selling insurance and testified that he could not make a living selling insurance without the use of a car.

On the day of the accident Mr. Gray had been delivering policies and collecting premiums. He met Mr. Bruce about 2:00-p. m. in a friend’s office in San Angelo. About 5 :00 p. m. they left San Angelo for Midland in Gray’s car, and Gray was driving. Before leaving, the car was filled with gasoline, Mr. Bruce paying for it by use of a credit card. The purpose of the trip to Midland was to see prospective insurance purchasers, whose identities and addresses were known only to Bruce, and to further the training of Gray by Bruce. Both men carried insurance papers and material furnished by appellee. The trip was for business reasons alone and was solely for the purpose of furthering appellee’s insurance business.

Gray and Bruce agreed to evenly divide any commissions they might earn on this trip; also to evenly share losses.

Mr. Bruce did not complain of the manner in which Gray drove the car. Mr. G-ray stated that he would have yielded to reasonable suggestions by Mr. Bruce as to operation of the car.

Considering these facts, conclusive or evidentiary, can it be said that they, viewed most favorably to appellant, support the jury findings making appellee liable to appellant under the doctrine of “respondeat ■superior?” Appellee, relying primarily upon American National Insurance Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409, and Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, would have us say “no”.

The opinion in Denke was by the Commission of Appeals, and was adopted by the Supreme Court. It involved the liability of an insurance company for the negligent operation of an automobile by one of its insurance salesmen, named Saunders, who also collected premiums on old policies. The accident occurred in Galveston where Saunders worked for the company. While enroute, in his wife’s car, from his home to visit prospects in another agent’s territory whom Saunders was required by the company to assist, he negligently collided with another vehicle. The company did not furnish Saunders with a car, nor require him to use a car. The evidence showed that the company had knowledge that Saunders was using his wife’s car in his work as agent.

Saunders had a written contract with the company. It retfuired him to solicit new insurance, collect premiums and among other duties “[t]o obey the orders and to carry out the instructions of the company, and to use my best efforts to further its success.” As compensation, Saunders was paid 15% of his collections and certain commissions on new insurance. The Court held that Saunders was not a servant of the company. We quote from that opinion:

“Without undertaking to comment upon the various terms of the written contract between the insurance company and Saunders, we think we may safely and confidently say that it is undoubtedly one of agency. Eliminating all matters of definition and distinction, it is obvious we think that Saunders was in common and everyday parlance an ‘insurance agent,’ and, as such, plaintiff in error was his principal. That he was not a ‘servant,’ within the usual significance of that term, seems to be obvious. See American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115. Therefore, in considering the liability of plaintiff in error for the tortious acts of Saunders, we must apply the principle governing in such matters where the relationship or principal and agent is involved, and as particularly applicable in cases of this special class.
“In Section 250 of the Restatement of Law of Agency by the American Law Institute, it is said:
“ ‘Except as stated in section 251, a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal’s business unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.
“ ‘Comment:
“‘(a) A principal employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction. Thus, the principal is not liable for the negligent physical conduct of an attorney, a broker, a factor, or a rental agent, as such. In their movements and their control of physical forces, they are in the relation of independent contractors to the principal. It is only when to the relationship of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relationship of master and servant, that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor.
“‘* * * [2] We are brought therefore, to the precise inquiry as to whether or not in this instance Saunders, in his capacity as agent, also occupied the further capacity of servant of the insurance company in the matter of operation of the automobile. It is settled that ‘the test of one’s liability for the act or omission of his alleged servant in his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect.’ Putting the matter in a different way, it may be said that a master is liable for acts of his agent under the doctrine of respondeat superior only where the relationship of master and servant exists ,at the time and in respect to the very thing causing the inquiry and from which it arises.
“* * * In our opinion, while there are numerous provisions in the contract which indicate control over Saunders, yet we think the control evidenced by such provisions related primarily to the contractual features of his employment, and to the attainment of ultimate results, and not to ‘physical details as to the manner of performance’ of his movements while soliciting, collecting, attending meetings, etc. Falling short in this last particular, the control was not such as to create liability on the part of plaintiff in error fo,r his negligent acts in the operation of his wife’s automobile; although at the time he may have been engaged in the furtherance of the company’s business.”

Referring to Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189, the Court in Denke stated:

“ * * * It reviews practically all American cases falling in this class. It demonstrates clearly how the doctrine here announced as applicable to-salesmen and insurance agents has developed as a departure from the rigid rule applicable in cases of master and servant. The court notes the importance of a recognition of the distinction between an ordinary servant and an agent, such as was Saunders in this instance, and concisely puts the question for ultimate decision as indicated by the italicized portion of the following excerpt from the opinion:
“ ‘A servant is defined as a person employed to perform personal service for another in his affairs, and who, in respect to his physical movements in the performance of the service is subject to the other’s control or right to control, while an agent is defined as a person who represents another in contractual negotiations or transactions akin thereto. The reason assigned for the importance of making the distinction is that an agent who is not at the same time acting as servant cannot ordinarily make his principal liable for incidental negligence in connection with the means incidentally employed to accomplish the work intrusted to his care. * * *
“After .referring to certain cases which sought to give controlling effect to provisions of the contract which evi•denced a right to control in contractual matters, as distinguished from control of the physical movements of the ■agent in the particular matter wherein the accident arose, the court said:
“ ‘In so far as these cases base the right of control on the fact that the employer had the right to direct the terms of the contract, they are opposed to the great weight of authority. If that test were correct, then there would be few, if any, cases involving the negligence by a salesman, in which the doctrine of liability of the master for the negligence of a servant would not be applicable. These cases treat the physical movements of the person employed as but a minor part or incident in the performance of the employment, when, as a matter of fact, it is the major factor so far as an automobile accident is concerned. The making of a contract, affected by an agent, would seem to be but the result which is sought. It is exactly during the time that the so-called minor part is performed when an accident with an automobile is apt to occur. It will not likely take place while the salesman is talking to a customer, trying to effect, or effecting, a sale. If accordingly, the right of control is the test in connection with the question before us, and the courts apparently agree that it is, then, it would seem, it ought to be directed to that portion of the employment directly connected with the factor by reason of which liability is sought to be established. It would not do, we think, to pursue the shadow, leaving the substance out of consideration.’ (Italics ours.)
“After a review of numerous other cases the court reached the conclusion that ‘the right of control of the physical movements — the automobile — is the decisive inquiry.’ The court then concludes that in the absence of an express reservation in the contract of control in that regard, or a necessary implication of such right from all the provisions of the contract and the circumstances, there could be no liability on the part of the principal.
“As pointed out in the statement of the case, the contract in this instance gave plaintiff in error no control over the manner and means adopted by Saunders in the performance of his work, and left him free to choose any mode of travel which might seem to him best. He owned no automobile, and was furnished none by the company, and only at times used his wife’s car for transportation. Most frequently he went on foot or by other means. Tested by the principles above announced, we are inescapably driven to the conclusion that there was no control over him by plaintiff in error in the matter of physical movements in the accomplishment of his work, and consequently plaintiff in error was not liable for his negligent acts in operation of the automobile.”

The opinion in Burt v. Lochausen, supra, affirms the above stated legal principles.

We find no substantial dissimilarities between the contract in Denke and the contract between Gray and appellee in aspects found by the Court to preclude liability of the employer for negligence of the agent in operating an automobile. Neither the contract there nor the contract here mentions transportation or the means by which the agent is to move about in the performance of his duties. Not only was the contract in suit silent in this respect, but factually appellee did not furnish or pay for Gray’s transportation.

We are not to be understood as holding that appellee did not contemplate the use of a car by Gray in the discharge of his duties. We know, and appellee knew, as a matter of common knowledge that the only practical way in which an insurance salesman or collector can cover a district as large as “San Angelo and vicinity” which concededly extends more than a hundred miles to Midland, is by private automobile. This knowledge, however, is not the equivalent of actual authority, either express or implied. The fact that the parties knew that some conveyance was indispensable to Gray in covering his district and yet made no provision for it in their contract fortifies the conclusion that this was a matter left to the independent discretion and control of Gray. We therefore, hold that Gray was on his own in providing and paying for the transportation he required, and that there is no evidence that appellee had supervision over the method employed or the manner in which it was conducted. It follows that the claimed liability of appellee is non-existent, unless the finding that Mr. Bruce was a vice principal of appellee together with his presence in the automobile at the time of the collision alters the situation.

A vice principal, as defined in the Court’s charge, is a servant, who, in addition to his authority to direct and supervise the work of those under him, has authority to hire and discharge a subordinate servant.

The work which Mr. Bruce was authorized and required to do under his contract with appellee as its district manager is hereinabove shown. As applicable here it relates to the training of Mr. Gray as an agent for the company and assisting him in the performance of his duties as an agent.

We believe that the omission here, as in the agent’s contract, of any .reference to transportation of the district manager in the performance of his duties as such, and the absence of other evidence in this regard, negatives any right of control by the company over his locomotion or the means by which it was accomplished.

We readily concede that the purpose of the trip was to further the business of appellee. It is immaterial, we believe, that the training of one of its agents was involved. The use of an automobile was not required in order to train an agent to sell' insurance or to collect insurance premiums, although it may have been required in order to reach the place of activity.

Appellant has cited many authorities to-us, both local and foreign, but he has cited no case by our Supreme Court which casts-disparagement upon its decision in Denke.. For this reason, we would accomplish nothing in reviewing those decisions, and we-refrain from doing so. Since it is our opinion that the rules set out in Denke require affirmance of the judgment of the Trial! Court, it is so ordered.

Affirmed.

PHILLIPS, J., not sitting.

      . The jury found that Gray and Bruce were engaged in a joint enterprise.


author: WERLEIN, Justice.

text:
    Levoy MUSICK, Relator, v. Honorable Wilmer B. HUNT, District Judge, et al., Respondents.
    No. 14159.
    Court of Civil Appeals of Texas. Houston.
    Jan. 28, 1963.

      C. C. Divine, Houston, counsel for relator.
    Bracewell, Reynolds & Patterson, Robert I. Peeples, Houston, for all respondents except Judge Hunt.
   WERLEIN, Justice.

This is an original proceeding filed in this Court by Relator, Levoy Musick, applying for a writ of prohibition against the Honorable Wilmer Hunt, Judge of the 133rd Judicial District Court of Harris County, Texas, and a writ of injunction against Arch Hollingsworth, Trustee, and Bracewell, Reynolds & Patterson, and Ted Musick, as agents and attorneys of Hol-lingsworth.

Relator avers that the respondents, whom he seeks to enjoin, filed an affidavit in Cause No. 594,300, which is a trespass-to-try title suit instituted by said respondents and now pending in the 151st Judicial District Court of Harris County, charging that relator was in disobedience of a temporary injunction granted in said cause restraining him from taking possession of or attempting to take possession of certain lands, and from going on or about the same and from attempting to gain possession by force or otherwise of any property which is the subject matter of such trespass-to-try title suit. Relator also avers that pursuant to such affidavit a judgment of attachment was granted against relator returnable to the 133rd Judicial District Court for a hearing before such court on December 14, 1962 at 9 o’clock a. m., and that such hearing would proceed unless restrained and prohibited by order of this Court.

Relator further alleges that the order granting such temporary injunction was and is invalid and that said District Court has no authority to hear said complaint of contempt, and that relator had no adequate remedy other than to petition this Court for a writ of prohibition against said Honorable Wilmer Hunt and any other District Judge of Harris County from hearing any affidavit of contempt involving said injunction order, the appeal from such injunction order having been perfected in this Court prior to relator’s alleged violation of such order as shown in said respondents’ affidavit charging contempt.

In the affidavit filed by said respondents it is alleged that the writ of injunction was duly served on relator on November 9, 1962, and that he had refused to obey the same, and had on December 7, 1962, accompanied by several others, proceeded to go on or about the premises known as the 618.7 Acre Tract and the premises known as the G. A. Parker 100 Acre Tract, and attempting to gain possession of said premises, harassed the occupants thereon by locking a gate leading into said premises and by placing himself near the gate with a loaded double barrel shot gun; that relator refused to let Mrs. Paul Carter, occupant of said premises, return to her house after she had delivered her children to the school bus line, and had otherwise disobeyed said injunction which specifically restrained the said relator from going on or about the premises or attempting to gain possession of the G. A. Parker 100 Acre Tract or of said 618.7 Acre Tract in the William White Survey.

This Court, on December 13, 1962, issued a temporary restraining order restraining the judge of the 133rd Judicial District Court of Harris County from proceeding to hear said contempt proceedings against relator until such time as this Court could determine whether a writ of prohibition and writ of injunction should issue as prayed for by relator, and also restraining said respondents from prosecuting said contempt proceedings or filing any other affidavits of contempt in any District Court of Harris County pending such determination by this Court.

It is relator’s contention that the injunction granted against him is invalid. He further contends that this Court and not the District Court has jurisdiction to hear and determine the contempt proceedings brought against him since such proceedings have grown out of alleged violations of said temporary injunction occurring after perfection of his appeal from the order granting such injunction, and after the jurisdiction of this Court had fully attached.

In Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487, Justice Greenwood, speaking for the Supreme Court, stated:

“After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the tern-porary injunction and to exercise the discretion involved in compelling obedience to the injunction pending the appeal, as well as to enforce its own final judgment, unless or until such judgment was subjected to review by a higher court. The district court could exercise no such authority while power to consider and determine these very matters lay exclusively in a higher court.”

In Ex parte Duncan, 1936, 127 Tex. 507, 95 S.W.2d 675, the court said:

“When an appeal was taken from the order granting a temporary restraining order by the trial court to the Court of Civil Appeals, the order was not suspended, and the Court of Civil Appeals acquired jurisdiction of the matter. Where the Court of Civil Appeals acquires jurisdiction of a question, that court has the right and power to issue all writs necessary to enforce and protect its jurisdiction.”

The court, in International Ladies G. W. Union No. 123 v. Dorothy F. Co., Tex.Civ.App., 97 S.W.2d 379, distinguished that case from the case of Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465, saying:

“We think this case (Ex parte Klugsberg) in no way affects the numerous decisions in this state holding in effect that, pending an appeal from an order granting a temporary injunction, the appellate court and not the trial court has jurisdiction to punish as for contempt of court any disobedience of such injunction. One of the most recent decisions to this effect is the case of Ex parte Travis, 123 Tex. 480, 73 S.W. (2d) 487.”

The court also observed that Justice Critz expressly distinguished the Klugs-berg case from the Travis case, and referred to a case in which the Texarkana Court of Civil Appeals had correctly announced that “After the appeal is thus perfected * * * then the trial court loses its power in respect to those things which might trench on the appellate functions, and the jurisdiction of the Court of Civil Appeals attaches.” See also Valerio v. Laughlin, Tex.Civ.App.1957, 307 S.W.2d 352; 3 Tex.Jur.2d, pp. 597-601, §§ 340-342.

We have concluded in light of the foregoing authorities that the trial court has no authority to pass upon the validity of the temporary injunction granted by it or to punish as for contempt of court any disobedience of such injunction pending the appeal from ■ the order granting such temporary injunction.

It is, therefore, ordered that Relator’s petition for writ of prohibition and writ of injunction be granted.