author: JAMES S. SHAW, Special Commissioner.

text:
    Edward L. SPENCER et al., Appellants, v. Joseph P. LEONE et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    Rehearing Denied Dec. 15, 1967.

      Herbert D. Sledd, Brown, Sledd & Mc-Cann, Lexington, for appellants.
    Johnson & Burton, Dailey & Fowler, Frankfort, for appellees.
   JAMES S. SHAW, Special Commissioner.

Appellees brought this action seeking in-junctive relief or damages against the appellants, alleging that appellants installed catch basins and drainage pipes which diverted water from natural drainage and caused the water to flow from their property into that of appellees. They also alleged that noxious odors were coming from a sewage treatment plant placed on the rear of appellants’ property. By proper pleadings these facts were denied and a third party complaint was filed by appellants against the Frankfort Country Club seeking relief against it in the event appellees were successful against the appellants on their original complaint. After all issues were joined and the deposition of Dr. Leone, an appel-lee, was taken, appellees made a motion for summary judgment, supporting same by the record, deposition of Dr. Leone, and a number of affidavits of witnesses who would have been used in a trial on the merits. A number of counter-affidavits were filed by appellants in opposition to said motion and the matter was submitted to the trial court on the motion for summary judgment.

The trial court, apparently concluding that the evidence offered by the deposition and affidavits filed would be the same as in the trial of the case on its merits (and prob- - ably correctly so) sustained the motion for summary judgment in favor of appellees. From this judgment appellants appeal, assigning as errors three separate grounds, only one of which this court will concern itself with because the judgment must be reversed by virtue of the single error. The question — shall the trial court sustain a motion for summary judgment when there exists a single material issue of fact raised either in support of or opposition to the motion ?

Evaluating the testimony of the appellees, certain evidentiary facts are offered in the testimony by deposition of Dr. Leone, the affidavits of Leone and wife, Frazer and wife, Boden and wife and Baker, all of which support and tend to prove the facts alleged by appellees. On the other hand, appellants offered in support of their pleadings the affidavits of F. P. Phipps, W. H. Grove, Henry H. Carter, J. W. Schneider and Eugene F. Perkins. The bulk of the information gleaned from reading the statements of the appellants is negative in nature, but there is just enough probative evidence therein to raise an issue of fact, which, in this situation, will require a “full blown” hearing on a subsequent trial on the merits of the case. Appellees’ proof shows that the drainage had been changed, and that the sewage treatment plant erected by appellants caused offensive and noxious odors. Appellants’ statements offered indicated that the odors were not noticeable to many and that the drainage had not been changed in any way that appellees might be affected except by heavy rains. For a witness to say “we smelled noxious and nauseous odors coming from Spencer’s sewage plant” is positive testimonial evidence. For another to testify “we smelled no odors in that area” we take to be purely negative testimony. However, following the guide lines heretofore laid down, we must now conclude that the trial court was in error. All doubts must be resolved against the movant as indicated by the last three decisions of this court.

In Robert Simmons Construction Company v. Powers Regulator Company, Ky., 390 S.W.2d 901, 905 (1965), this court thus summarized the law pertaining to summary judgment:

“Since the burden of establishing the nonexistence of any genuine issue of material fact is on the moving party, for the purposes of the motion all doubts are to be resolved against him. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3, 6 (1956); Clay, Kentucky Practice, CR 56.-03, Note 5 (Vol. 7, p. 165.) Ordinarily, summary judgment is proper when it is manifest that the opposing party could not strengthen his case at trial and the moving party would be entitled ultimately and inevitably to a directed verdict. Adkins v. Greyhound Corporation, Ky., 357 S.W.2d 860, 862 (1962). There may be instances in which the opposing party, if he has countervailing evidence, cannot hold it back until trial — for example, if it consists of information to which he alone has access. See Moore’s Federal Practice, R. 56, § 56.15(5) (Vol. 6, p. 2144 et seq.). But that situation cannot arise unless and until the moving party has properly shouldered the initial burden of establishing the apparent non-existence of any issue of material fact. Id., p. 2153. It is clear that one party cannot compel the other to try his case on a motion for summary judgment. Clay, Kentucky Practice, CR 56.03, Note 5 (Vol. 6, p. 166); Payne v. Chenault, Ky., 343 S.W.2d 129, 132-133 (1960).”

In Conley v. Hall, Ky., 395 S.W.2d 575 (1965), this Court held as follows:

“It should be borne in mind that ■ the granting of a summary judgment is a drastic remedy because it deprives a party of a trial and results in a final judgment against him. If the motion is denied, the moving party suffers no such consequences and may still obtain a favorable judgment. It is for these reasons the considerations on a motion for summary judgment must be loaded in favor of the party opposing the motion, particularly when that party is the plaintiff. The very latest emphasis upon this aspect of the motion appears in Fowler v. Connecticut Mutual Life Insurance Co., D.C. La., 38 F.R.D. 11, page 12: ‘The granting of a summary judgment in effect means there is no evidence in existence upon which a trial is necessary. Because it is such a drastic remedy it must be used with a due regard for its purposes, and a cautious observance of its requirements in order that no person will be deprived of a trial upon disputed factual issues.’ We believe if this approach is kept in mind, summary judgment procedure will be viewed in its proper perspective.”

In the very recent case of Mooser v. Mason, Ky., 416 S.W.2d 355 (1967), the court has adopted the reasoning as set out in the Simmons and Conley cases, cited, supra, and the court stated:

“The procedure for summary judgment under CR 56.01 is a handy tool for the bench and bar alike, but the procedure is a drastic one and should not be invoked where a genuine issue of a material fact is involved. Cf. Conley v. Hall, Ky., 395 S.W.2d 575 (1965).
It is concluded there were genuine issues of material facts raised in the pleadings and that appellants were entitled to a jury trial on those issues.”

There may be a question in the minds of some that a different yardstick should be used in an equitable action since this is an equitable action and much of the proof will be a “repeat performance” before the Chancellor. This court does not differentiate between equity and common law actions as indicated in the Conley decision, supra, which was an equitable action involving an accounting and there the court held that all actions were to be measured by the same criteria.

Therefore, the judgment of the trial court is reversed with directions that the court hear all proof on the merits of the cause.

All concur.


source: Caselaw Access Project

author: EDWARD P. HILL, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Dallas R. ELKIN et ux., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Bowling Green, for appellant.
    G. D. Milliken, Milliken & Milliken, Bowling Green, for appellees.
   EDWARD P. HILL, Judge.

This is an appeal from a circuit court judgment for $5000 in a highway condemnation case. The amount of the county court judgment' was $3760.40, from which only the Commonwealth appealed.

The judgment of the circuit court cannot exceed the amount of the judgment in the county court. Cf. Commonwealth, Department of Highways v. Berryman, Ky., 363 S.W.2d 525 (1962); Commonwealth, Department of Highways v. Parsons, Ky., 383 S.W.2d 360 (1964); and Commonwealth, Department of Highways v. Johnson, Ky., 403 S.W.2d 691 (1966).

Appellant contends that the circuit court judgment is erroneous and should be reversed for the following reasons: (1) The landowners not having appealed from the county court judgment, the amount of the circuit court judgment cannot exceed the amount of the county court judgment, (2) the verdict is grossly excessive and unsupported by sufficient probative evidence, and (3) incompetent evidence was admitted over its objections.

We agree with appellant that the circuit court judgment must be reversed as it exceeds the amount of the county court judgment. But we still are confronted with the question of whether or not a judgment in the amount of the county court judgment is proper. In other words, if the evidence in the circuit court was competent and proper, we may reverse the judgment with directions to enter one for the identical amount of the county court judgment. Therefore, we must answer the remaining questions presented by appellant that contend the amount of the verdict, whether it be the circuit court judgment or the county court judgment, is grossly excessive and that the witnesses for the landowners considered improper factors in determining the before value.

Inasmuch as we conclude the judgment should be reversed for introduction of incompetent evidence and for error of the trial court for failure to exclude the evidence based upon improper factors, we shall not pass upon the question of whether or not the judgment for $3760.40 is excessive

Before proceeding to the question of competency of evidence, we note that the taking involved .31 of an acre of appellees’ land located in the northwest corner of the intersection of Grider Pond Road, a county road, and U. S. Highway 231. Before the taking appellees’ property consisted of four acres with a frontage on U. S. 231 of 206 feet and a depth of 840 feet running back along Grider Pond Road. The residence was situated at the rear of the tract with a driveway from Grider Pond Road. The area condemned is a strip 67 feet in depth across the entire frontage on U. S. 231. None of the improvements or accesses were affected by the taking.

The project for which the right of way was acquired was the reconstruction of U. S. 231 from a two-lane highway to a four-lane highway divided by a median and designed to serve as a connector to the 1-65 interchange approximately four miles from Bowling Green.

The testimony to which appellant strenuously objects and moved the trial court to strike was that of the landowners’ witnesses C. W. Long and Edgar Walker. These witnesses readily admitted they based their before value on the contemplated construction of the Greenwood Interchange for 1-65. Long was asked and answered the following questions:

“Q. 84 Do you think that that Elkin’s property would be worth anything close to that without the US 231 improvement and the Greenwood Interchange?
“A. Not as great I would say, — no. But when I made my appraisal I made it knowing that the 1-65 was there and 231 improvement was in the making.”
“Q. 86 Can you make an appraisal now or would it be fair to ask you what in your opinion would be the fair and reasonable market value of the total Elkin’s property before the taking assuming there would be no Greenwood Interchange or improvement of 231?
“A. I couldn’t give you an answer on that just offhand — no.”

The witness Edgar Walker was asked and answered as follows:

“Q. 29 In other words in your appraisal those enhancement factors are essential to your before value of $40,000.00?
“A. Of course this road has pushed values up out there. There is no question about that.”

In Tharp v. Urban Renewal & Community Develop. Agency, Ky., 389 S.W.2d 453, 456, this court said:

“ * * * We adhere to the rule that the property owner is entitled to the value of his property taken by condemnation as of the taking date; however, we have recognized the corollary rule that the ‘before’ valuation date is at the time just before it was generally known that the public project would be performed. Com. of Ky., Dept. of Highways v. Wood, Ky., 380 S.W.2d 73, and cases there cited. The rationale for the rule is that the landowner is not to be penalized for any depreciation in value attributable to the public’s learning of the condemnation, nor is the condemnor to be required to pay for any enhancement in values which may be attributable to the proposed project.”

We conclude that the testimony of Long and Walker pertaining to the before value of landowners’ property was based upon market value after it was generally known that the project was to be developed. Their testimony should have been stricken.

Further complaint is made of the testimony of Edgar Walker for the reason that he did not consider the value of improvements on the landowners’ property in arriving at his after value. He admitted that he did not consider the improvements but was only placing a value on the land taken. At any rate, this situation may-not develop on another trial of this case.

The judgment is reversed with directions to grant appellant a new trial in conformity with this opinion.

All concur.


author: GREENHILL, Justice. SMITH, Justice.

text:
    PHILLIPS PIPE LINE COMPANY, Petitioner, v. Emilio RAZO et al., Respondents.
    No. B-48.
    Supreme Court of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 29, 1967.

      Andrews, Kurth, Campbell & Jones, Hall E. Timanus and George H. Hagle, Houston, William J. Zeman and Lloyd G. Minter, Bartlesville, Okl., E. H. Brown, Houston, for petitioner.
    Combs & Mitchell, Glynn W. McDonald, Fulbright, Crooker, Freeman, Bates & Ja-worski, Royce R. Till, Houston, Davis & Kee, Angleton, for respondents.
   GREENHILL, Justice.

Plaintiff, Emilio Razo, was injured when a bulldozer operated by his employer or employers, Monical & Powell, Inc. and T-T Construction Co., joint venturers, hit and ruptured a buried ethylene pipeline operated by defendant Phillips Pipe Line Company, causing an explosion and fire. The trial court entered judgment for Razo for $304,288 based on jury findings that Phillips was negligent in failing to bury its pipeline to a proper depth, in failing to inspect properly, and in failing to give proper warning of the presence of the pipeline. The trial court also granted an instructed verdict against Phillips on its cross-action for contribution and indemnity against Bechtel Corporation, the primary contractor for the Monsanto pipeline on which Razo was working. The Court of Civil Appeals at Tyler ordered a remittitur of $104,288 and affirmed. 409 S.W.2d 565.

Phillips Pipe Line Company operated its six-inch pipeline on an easement purchased from Lee S. Krause. The six-inch pipe was built in 1960 and paralleled a four-inch pipeline which had been laid by Phillips on the same easement in 1956. The pipes ran east and west through a cleared right-of-way across Krause’s land down to the Brazos River. The Krause land was heavily wooded and marshy river-bottom land in a remote rural area which was used only for grazing a few head of cattle. In 1961 Krause granted a right-of-way across a different part of the same tract of land to Monsanto Chemical Co., and Monsanto contracted for the construction of a pipeline. The Monsanto pipeline construction was along a cleared right-of-way parallel to and some 500 feet north of the Phillips pipelines.

Monsanto contracted with Bechtel Corporation for the construction of its pipeline. Bechtel then contracted with Monical & Powell and T-T Construction Co.; and the subcontractors contracted with one B. D. Carlton for the clearing of the Monsanto right-of-way. The landowner, Krause, gave Carlton permission to move tools and equipment across the Krause land for the construction of the Monsanto pipeline. Pursuant to Krause’s permission, Monical & Powell made several trips with a dragline and bulldozer along a small, private, ranch road which extended down the Phillips’ right-of-way clearing. The explosion occurred when the bulldozer, making a return trip up this road from the west, became stuck in the mud and struck the high-pressure pipeline during the efforts to free the bulldozer.

The questions before this Court concern the duty of an owner of a pipeline easement toward those moving or riding upon heavy equipment over its buried pipeline. None of the contractors notified Phillips that they were using its right-of-way as an access route to move heavy construction equipment to the Monsanto easement, and Phillips had no actual knowledge that its right-of-way was being used for that purpose. The Court of Civil Appeals held that since Phillips had notice of the existence of the private road on its right-of-way, it was charged with foreseeing that the right-of-way might be used for the movement of heavy equipment, and therefore must have used ordinary care to protect the users of such equipment from contact with its pipeline. We do not agree.

Phillips was lawfully maintaining its pipeline in the easement granted it by the landowner. The operator of a pipeline has the duty of ordinary care in the construction and maintenance of its lines, but this duty does not extend to hold the pipeline operator liable for every conceivable contact with its pipeline. In Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.Sup.1963), this Court held that pipeline operators had the “duty to properly install their lines and to avoid dangers from occurrences such as leaks and breaks in the pipe which could result from others making ordinary use of the surface.” [Emphasis added.]

The initial question which must be reached is whether the explosion in the instant case was caused by an ordinary use of the surface. The jury found that the movement of the dragline and bulldozer down Phillips’ right-of-way was not an extraordinary use of the surface. There is no evidence to support such a finding. The movement of a 50,000-pound dragline and a 40,-000-pound bulldozer over a small, private and rarely used road or trail in heavily wooded and muddy terrain is an extraordinary use as a matter of law. The evidence indicates that the road was passable by a pickup truck only in dry weather, and it was used only infrequently by the landowner for that reason. The accident occurred in January of 1962. The road was impassable during all of 1960, and used only a few times in 1961, the year preceding the explosion. The use of a dragline and bulldozer in the wet soil was as damaging to the surface as that of the scraper involved in the Pioneer Natural Gas case. The evidence indicates that the equipment left ruts from 12 to 48 inches deep over Phillips’ pipeline.

Respondent points out that the use of bulldozers for clearing timber is not uncommon in heavily wooded areas. However, this frequency of use does not make the use of heavy-tracked equipment ordinary in the sense that it should be anticipated by a pipeline operator under the circumstances here present. The duty of using ordinary care to protect those making a reasonable and ordinary use of the surface does not extend to require the protection of those moving heavy construction equipment across a pipeline, because the pipeline operator is not charged with foreseeing such an extraordinary use of the surface.

The cases indicate that one making an extraordinary and damaging use of the surface has the initial burden of avoiding contact with pipelines and other buried equipment. In the Pioneer Natural Gas case, supra, this Court said:

“Under these circumstances, the question is whether it is the duty of the pipeline company to continuously police its lines to keep others from interfering with them or being injured by them; or whether it is the duty of persons who do make an unusual or extraordinary use of the surface to find out where the lines are, and then either (1) avoid them or (2) request their relocation or that they be deactivated during operations, or to make reasonable inquiry so that it then becomes the duty of the pipeline company to make a disclosure of the location of its lines so that the other party may avoid striking the line.”

The Court decided this question, at page 219, holding:

. “We think it sound * * * to hold that at least where the activity is in an urban street or road, and where an unusual or extraordinary use of the surface is necessary to unearth the pipeline, and where there is no contract, statute, ordinance, or regulation governing the matter, the initial burden is upon the one who excavates or digs up the surface to avoid striking the line or to make reasonable inquiry as to the location of any lines that might be encountered. The duty arises, then, when it is requested to alter its lines or their use, when it is asked for information, or when it is otherwise put on such notice that it is required to take particular action to protect the lives or property of others.”

In Young v. Herrington, 312 S.W.2d 685 (Tex.Civ.App.-Austin 1958, no writ), plaintiff sued for injuries sustained when his bulldozer hit a pipeline covered only by a few inches of dirt. The court there said:

“There is no showing that the right of way easement required appellant’s pipe to be buried or located* at any particular place or its location marked. In this state of the record there is no showing that any duty rested on appellant to mark the location of his lines or to bury them to any particular depth. However appellant was notified that the land was to be cleared and of the then existing hazard of the pipelines to both machinery and the operator. Thereafter it became the duty of appellant to either bury the lines or mark their location in order to prevent contact with them.” 312 S.W.2d at 687.

The Pioneer Natural Gas holding dealt with an activity in an urban street or road. However, it is not unreasonable to expect one making an unusual use of the surface in a rural area to make a reasonable effort to determine the location of existing pipelines in order to avoid contact with them. In the instant case, it seems clear that the subcontractor, Monical & Powell, had sufficient notice of Phillips’ pipeline in the vicinity to require it to inquire as to the pipeline’s location or request that it be marked. The alignment sheets and maps furnished Monical & Powell showed that the Phillips’ pipeline crossed the Monsanto right-of-way at two points less than two miles distant on either side of the explosion site. Monical & Powell’s construction supervisor had seen Phillips’ aerial marker and pipe risers adjacent to the Krause land. The existence of a fifty-foot clearing through an otherwise heavily wooded area should suggest the possibility of a pipeline, particularly to one engaged in constructing another pipeline on a similar clearing only 500 feet to the north. Under these circumstances, at least in the absence of a request of its owner or operator to move or deactivate the line, it is not unreasonable to place the burden of avoiding contact with the pipeline on the one making use of heavy-tracked equipment with knowledge of a pipeline in the vicinity.

Phillips had no knowledge, either actual or constructive, sufficient to charge it with the duty of warning the contractor of the presence of its pipeline. 'The existence of the small, private, ranch road down its right-of-way in a remote area is insufficient, as a matter of law, to charge it with foreseeing that the road would be used for the movement of such heavy equipment. It is undisputed that Phillips was not advised that heavy equipment would be moved along its right-of-way. Phillips’ knowledge of the construction on the Monsanto right-of-way north of its pipeline is likewise insufficient to charge it with knowledge that its right-of-way would be used as an access route for the movement of heavy equipment to the Monsanto right-of-way. Phillips was aware of the construction on the Monsanto pipeline, just as the subcontractors were aware of the existence of a Phillips pipeline in the general vicinity of their construction. However, Phillips had no knowledge that Monical & Powell would move its construction equipment to the south of the Monsanto right-of-way, rather than using that easement for the movement of equipment.

Furthermore, Phillips’ easement was the dominant estate on the Krause land. The landowner had no right to make a use of the surface that might endanger or interfere with Phillips’ pipeline; and hence the landowner could not grant the right of using the surface in such a manner to anyone else. The landowner’s right to make reasonable use of the surface above Phillips’ pipe did not give Phillips notice that Monical & Powell would make an extraordinary use of the surface. Therefore, Phillips had no constructive notice of the unusual and damaging use of the surface which caused the explosion. The pipeline operator’s duty to prevent contact between its pipeline and heavy construction equipment does not arise until it is informed or has knowledge that an extraordinary or damaging use will be made of the surface near its pipeline. Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.Sup.1963). There being no duty, Phillips cannot be liable for failing to mark or give warning of its pipeline.

There is no evidence to support the jury’s finding that Phillips was negligent in failing to bury its pipe deeper. There is no evidence as to the depth at which the line was originally laid. The evidence is disputed ; but it seems clear that at the time of the explosion, the pipe was buried from 10 to 30 inches deep near the explosion site, even after heavy equipment had traveled across the easement. The right-of-way grant from Krause to Phillips did not specify any particular depth at which the line was to be buried, and there is no statute fixing a minimum depth for pipelines in rural areas. There are a number of cases in which by-contract the pipeline company has been required to bury the line under agricultural land “below plow depth,” the depth at which it might be hit by an ordinary plow. No such provision exists here. As stated, in the instant case, the surface was heavily wooded land used for grazing, not agriculture. The existence of a private road on the pipeline right-of-way might have created a duty to bury the pipe at a depth sufficient to support the anticipated use of the road by a pickup truck or light vehicle; but, as stated, Phillips cannot be charged with foreseeing that the easement would be used for the transporting of heavy construction equipment. Therefore, Phillips had no duty to bury its pipe deep enough to support the movement of heavy construction equipment, and cannot be held to be negligent in failing to do so under the circumstances.

There is no evidence to support the jury’s finding that Phillips was negligent in failing to inspect properly its buried pipeline, and that such negligence was a proximate cause of the explosion. There was no evidence of any leak in the pipeline or any exposure to the surface. The evidence indicates that Phillips scheduled regular weekly aerial inspections over this particular pipeline, and there is no testimony that it failed to make this regular inspection at any time prior to the explosion. There is no evidence as to whether or when any ruts or tracks had been made along the pipeline prior to the explosion which should have been visible from the air. In the absence of such proof, an aerial inspection would provide no warning of the use of the pipeline right-of-way as a road for heavy equipment unless such inspection took place at a time when the equipment was actually moving on Phillips’ right-of-way. Since it is undisputed that the equipment was moved down the right-of-way infrequently in the space of over two weeks, it would have been a coincidence for the pilot to have flown his inspection at the same time the equipment was moving on the right-of-way. The failure of such a coincidence to take place cannot, as a matter of law, be a proximate cause of the explosion.

There is no contention made that the practice of aerial inspections of pipelines is, in itself, negligence, since there is evidence that such inspections are now the accepted standard in the industry. There being no evidence that Phillips failed to make its regular inspection prior to the explosion, there is no evidence that Phillips was negligent in failing to properly inspect its pipeline, or that such failure was a proximate cause of the explosion.

We conclude, therefore, that under the circumstances Phillips Pipe Line Company had no duty to warn Monical & Powell or its employee, Razo, of the presence of its pipeline, or to mark the pipeline. There is no evidence that Phillips was negligent in failing to properly inspect its pipeline or to bury the pipe deeper. Therefore, Phillips was not guilty of primary negligence proximately causing Razo’s injury, and Phillips is not liable to respondent Razo.

The judgments of the courts below are reversed, and judgment is here rendered that respondent take nothing. In view of this disposition of the case, there is no need to decide whether the trial court erred in granting Bechtel Corporation an instructed verdict on Phillips’ cross-action for contribution and indemnity.

DISSENTING OPINION

On Motion for Rehearing

SMITH, Justice.

Further consideration of the record in this case leads me to conclude that I was in error in agreeing to the result reached by the Court on October 4, 1967. An exhaustive review of the evidence is unnecessary. It is sufficient to say that the evidence supports the finding of the jury that a clearly defined roadway existed on the Krause property at the point in the roadway where the accident occurred; that the petitioner knew of the existence of such roadway; that the petitioner prior to the time of the explosion failed to give such warning of the presence of the six inch pipe line on the Krause property as would have been given by an ordinary prudent pipe line company under the same or similar circumstances; and, that the failure to warn was a proximate cause of the explosion.

There are other favorable jury findings to support the judgment entered for respondents, but the above will suffice to illustrate my point. Under the evidence in this case the petitioner was under a duty to warn the public, whether some were riding in automobiles, jeeps or in a bulldozer. The petitioner should have anticipated the use of such vehicles. In fact, the petitioner lost its case before the jury largely because it “administratively, unilaterally and mistakenly” decided there was no road at the point of the explosion. Both Phillips’ superintendent and pipe line construction superintendent testified on this question to the same effect. The superintendent testified:

“Q If there had been a place there that was a road, and being used as a road by folks, then you would have considered it desirable to make some kind of a marker there, would you not?
“A As a rule. We have other instances like that where we can’t keep people from building a road over our right-of-way, but we put up a big sign warning people, ‘This road is traveling over a high-pressure pipeline.’
“Q You had no such sign on this right-of-way on the Krause land ?
“A No, sir. There was no road there and we didn’t consider it a road.”

The evidence is clear that petitioner followed the custom of erecting warning signs such as “[t]his road is traveling over a high-pressure pipeline” at points where a road existed. The Krause road and a neighboring road are clearly shown upon an aerial map in evidence. There was a marker where the petitioner’s line crossed the neighboring private ranch road; there was no marker to indicate the presence of the pipeline under the Krause road. This Court should not excuse the petitioner merely because it mistakenly believed no road existed on the Krause property. As argued by the respondents in their motion for rehearing:

“ * * * roads, public and private, bespeak human activity — travel, if you please, travel by all kinds of vehicles— bulldozers, pickup trucks, maintainers and all of the other machinery and vehicles which go to the building, maintenance and use of roads. Many uses must be anticipated for roads. For instance, just as this road was graded and built by a maintainer, a maintainer will most certainly be employed sooner or later in the maintenance of same. A maintainer so used, unless adequate warning is given, will most certainly rupture one of Phillips’ shallow pipe lines.”

Whether or not petitioner was under a duty to warn does not depend upon whether the use of the road was an ordinary use or an extraordinary use. The degree of care to be exercised must be commensurate with the danger. I cannot accept the statement in the Court’s opinion that “[t]he duty of using ordinary care to protect those making a reasonable and ordinary use of the surface does not extend to require the protection of those moving heavy equipment across a pipe line, because the pipe line operator is not charged with foreseeing such an extraordinary use of the surface.” The concept that the size of the equipment used on a road determines whether or not the pipe line company owes a duty to warn has no merit. The petitioner was under a duty to mark road pipe line crossings. See Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d 116, 224 N.E.2d 131 (1967). Green, Proximate Cause in Texas, 28 Texas L.Rev. 776-77.

The Court relies upon the case of Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.Sup.Ct., 1963) in support of its decision. I agree with respondents that there is no analogy between that case and this. I agree with respondents’ argument that,

“Pioneer Gas involved an altogether different situation, with vastly differing duties and obligations. In that case it was held that K & M Company was charged as a matter of law with the duty to inquire before excavating in a city street by reason of the fact that it is a matter of common knowledge that all kinds of gas lines, electric lines, sewer lines, etc., are to be found under city streets. There is no analogy between K & M dealing with city streets and urban conditions and the present situation dealing with a private ranch road and rural condition. Further no analogy exists between excavation and travel upon a road, a distinction made in Thompson (supra). All of the other cases referred to in the Court’s opinion in Pioneer are cases involving gas or electric transmission lines under city streets. Not a single case relates to a rural situation. All of these cases are based upon the fact that any [one] knows excavating in a city street is potentially dangerous.”

The basic issue before the Court is whether or not there was any evidence from which the jury could conclude that the petitioner should have anticipated the need for a warning marker near the explosion site. As heretofore stated, the jury has found that the petitioner knew there was a clearly defined road where the accident occurred, and that the failure to warn of the existence of the pipe line was a proximate cause of the resulting injuries sustained by respondents.

The judgment of the trial court and the Court of Civil Appeals should be affirmed.


author: GREENHILL, Justice. HAMILTON, Justice.

text:
    Henry EUBANKS et ux., Petitioners, v. W. H. WINN, Respondent.
    No. B-150.
    Supreme Court of Texas.
    Nov. 15, 1967.

      John H. Holloway, Houston, for petitioners.
    Fulbright, Crooker, Freeman, Bates & Jaworski, L. S. Carsey, Houston, for respondent.
   GREENHILL, Justice.

In this damage suit growing out of a two-car collision, the jury answered all the liability issues in favor of the defendant, W. H. Winn, and found that the plaintiffs, Mr. and Mrs. Henry Eubanks, had been damaged in a sum considered by them to be grossly inadequate. The jury’s answers totaled $1,600 for plaintiffs’ pain and suffering, medical expenses, loss of earnings, and inability to perform household duties. As will be developed below, a judgment was ultimately entered for the plaintiffs for the amount found by the jury plus the stipulated property damages. The plaintiffs were dissatisfied and appealed. The Court of Civil Appeals affirmed. 411 S.W.2d 60. The plaintiffs Eubanks are petitioners here. We shall refer to the parties as they were in the trial court.

The jury found that the defendant was not negligent in any respect. Following the jury’s verdict, several moves and counter-moves were made. Upon the court’s receipt of the verdict, the plaintiffs moved to disregard the answers of the jury favorable to defendant, and that having done so, they moved the court to declare a mistrial. In the alternative, they moved to disregard such findings and for a judgment based on the jury’s answers to the damage issues. On April 18, the court entered a judgment overruling these motions and decreeing that plaintiffs take nothing.

The plaintiffs filed an original and an amended motion for new trial. The amended motion contended that there was both no evidence and insufficient evidence to support the jury’s answers to the issues absolving the defendant of negligence as to lookout, speed and brakes. It also had assignments, among other things, based on defendant’s jury argument, jury misconduct, and as to alleged grossly inadequate damages. The prayer of the amended motion for new trial was that “the judgment heretofore entered, and the verdict of the jury, be in all things set aside, and that plaintiffs be granted a new trial upon all issues herein” and for general relief. [Emphasis ours.] It will be noted that the prayer was not for judgment for $1600 or any other sum upon disregarding the answers to the liability issues.

Thereafter the defendant made a motion to set aside the judgment entered in his favor, and he moved that judgment be rendered in plaintiffs’ favor for the amount of damage found by the jury. In it he waives the jury findings favorable to him on the liability issues and “moves the Court not to consider the answers of the jury. to the liability issues.” It will be noted in the “order and final judgment” set out below, the court granted this motion of the defendant. The parties are at odds as to the legal effect of the order. Ultimately, it set aside the take-nothing judgment of April 18 and entered judgment for plaintiffs. The plaintiffs contend that it granted a motion for new trial and then entered a new judgment. The defendant disagrees. The order reads :

“ORDER AND FINAL JUDGMENT
“BE IT REMEMBERED that on the 30th day of May, 1966 came on to be heard plaintiffs’ amended motion for new trial and matters related thereto, and came the plaintiffs by and through their attorney of record and came the defendant by and through his attorneys of record and full hearing thereon was had in open court, and it appearing to the court that the said motion should be granted on the grounds assigned in paragraphs I, II, and III of plaintiffs’ amended motion for new trial, relating to the jury’s answers to Special Issues No. 1, 3 and 5 concerning the liability of defendant, only and overruled as to all other grounds alleged therein, it was therefore ORDERED, ADJUDGED and DECREED by the court that the judgment heretofore entered on April 18, 1966 should be and is hereby cancelled, vacated and set aside. Plaintiffs’ amended motion for new trial is in all other respects overruled.
“Further be it remembered that on the said 30th day of May, 1966 came defendant, William H. Winn, by and through his attorneys of record, and after the court had made known its intention to sustain plaintiffs’ amended motion for new trial on certain grounds as set out above but before the court had made any docket entry or éntered any written order the defendant filed a written motion to set aside the judgment previously rendered on April 18, 1966 that plaintiffs take nothing and in writing waived the advantage gained by the ‘we do not’ answers of the jury to Special Issues Nos. 1, 3 and S and consented to and moved the court to enter a judgment for plaintiffs for the amount of damages found by the jury in answer to Special Issues Nos. 7, 8 and 9 and for costs of court, irrespective and regardless of the other findings of the jury, and the court being of the opinion that said waiver and motion had the effect of admitting liability and confessing judgment herein for the purposes of this hearing only, and the same as if the jury had answered ‘we do’ to Special Issues Nos. 1, 2, 3, 4] 5, and 6 instead of ‘we do not,’ and being further of the opinion that said motion of defendant should be in all things granted.
“It is accordingly, ORDERED, ADJUDGED and DECREED by the court that the said motion of defendant referred to in the preceding paragraph be and the same is hereby in all things granted; that plaintiffs, Henry Eubanks and wife, lia Ruth Eubanks, do have and recover of and from defendant William H. Winn, the sum of * * [The order entered judgment for the amount of damages found by the jury plus the stipulated property damages and taxed court costs against defendant.] [The emphasis above is ours.]

Because of the alleged gross inadequacy of the award, plaintiffs strenuously objected to this order granting them judgment. They have maintained their objections on appeal. In affirming the judgment, the Court of Civil Appeals at Waco held that the court’s order did not grant a new trial, but merely indicated that the trial judge set aside the previous judgment, then gave effect to defendant’s motion waiving favorable jury findings and granted judgment for plaintiffs. The court further held that the damages were not inadequate, and that the trial court did not err in rendering judgment for plaintiff under these circumstances, despite the jury verdict favoring defendant.

The order and judgment set out above is unique and difficult to interpret. The judgment recites that it was the trial court’s opinion that plaintiffs’ motion for new trial should be granted on certain grounds; and it is capable of the construction that the motion was granted in part but overruled in part. Then the judgment proceeds to grant defendant’s motion and to set aside the previous judgment. It set aside the jury’s answers to the liability issues. Then based on the defendant’s waiver of the answers in his favor, the court enters judgment for plaintiffs on the damage issues. Such an order is foreign to our practice and cannot stand.

The issues of liability and of damages in cases such as these are elements of an indivisible cause of action and may not be tried piecemeal. Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956). The problem was reviewed at length in Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958); and the Court wrote that contested issues of liability and damages were to be tried together. The logic of that opinion is that damages in cases such as these should be fixed by the same jury which decides the issues of liability.

The holdings in the Waples-Platter Co. and Iley cases would preclude a trial court from granting a motion for new trial on either the issue of liability or damages alone. We are not here dealing with other severable issues. If a new trial is to be granted in a case such as this, it must be a complete new trial, even though the motion for new trial was granted on points relating solely to liability and not to damages, or vice versa. In this case, the trial court stated in his judgment that he had made known his intention to grant plaintiffs’ motion for new trial at least in part, and his order stated that this motion should be granted on certain grounds. If the plaintiffs were entitled to a new trial, they should not be compelled to accept the damages findings of the jury in the first trial.

Under this rationale, it is immaterial that judgment was entered for plaintiffs on the basis of defendant’s confession of liability. The legal effect of the order was to sever the issue of damages from the contested issues of liability, which were found by the trial court to be subject to such question as to be grounds for the granting of a new trial to the plaintiffs. While a party against whom a cause of action is asserted can confess his liability and proceed to trial on the issue of damages alone, such a confession of liability cannot be made over the objections of the plaintiffs after the jury verdict in order to prevent the granting of a new trial. Such confession of liability came too late.

Nor was the judgment correctly entered under Rule 301, Texas Rules of Civil Procedure. That rule provides that upon motion and notice given, judgment may be entered notwithstanding the verdict or upon disregarding one or more special findings. A judgment notwithstanding the verdict is authorized under Rule 301 only when a directed verdict would have been proper; and special issue findings may be disregarded which are immaterial or have no support in the evidence. It clearly appears that an instructed verdict would not have been proper in this case; and there is evidence to support the answers to the material liability issues which were disregarded.

The cases cited by the Court of Civil Appeals do not support the proposition that a “waiver of all favorable jury findings” or a confession of liability after the verdict is a sufficient basis upon which to enter judgment contrary to the jury verdict. The cases citéd in the opinion of the Court of Civil Appeals are those in which a party waived a particular favorable finding in order to resolve a conflict in jury answers, such as Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940). They are not controlling here. In those cases the judgments were not rendered contrary to the jury verdict, but were based on that part of the verdict which was not destroyed by the conflicting answers. The other case cited, Malone v. Pioneer Bus Co., 315 S.W.2d 311 (Tex.Civ.App.-Waco 1958, writ ref’d n.r.e.) is hereby disapproved to the extent that its holding conflicts with the holding in the instant case.

We do not consider that the plaintiffs invited the error here. In their motion for judgment, they did have an alternative motion for judgment based upon the disregarding of the answers to the liability issues. This motion was overruled and a take-nothing judgment entered. The amended motion for new trial did contain points of no evidence and insufficient evidence to support the liability issues. These were a necessary predicate for an appeal on these phases of the case. But the prayer was for a new trial on “all issues made herein.” There was no prayer for judgment by disregarding the liability issues. This did not invite the error, nor do we consider that it was plaintiffs’ prayer for general relief which invited error. It was the motion of the defendant “not to consider” the answers to the liability issues which was sustained in the court’s “final judgment.”

We conclude that there is no authority under the Rules of Civil Procedure to support the action of the trial court in giving effect to defendant’s confession of liability after the jury’s verdict and entering judgment contrary to the jury verdict over plaintiffs’ objections. The judgments of the trial court and the Court of Civil Appeals are reversed; and the cause is remanded to the district court for further proceedings not inconsistent with this opinion.

DISSENTING OPINION

HAMILTON, Justice.

I respectfully dissent.

On the state of the record in this case I think the trial court entered a correct judgment, and I would affirm the judgment of the Court of Civil Appeals. In the first place, I know of no sound reason why a Defendant cannot confess liability at any time before final judgment. Second, I cannot agree that the granting of the judgment notwithstanding certain jury findings has the legal effect of severing the issues of damages from the issues of liability so as to make applicable this Court’s holdings in the cases of Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956); and Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958). Such a judgment may be wrong because there is evidence to support the disregarded jury findings, but it should not be wrong because the judgment has the legal effect of severing the liability issues from the damage issues.

I agree with the Court that if the Respondent’s admission of liability is ignored there is evidence to support the jury findings on liability, but I do say that the Petitioners have never in the trial court, the Court of Civil Appeals, or in this Court attacked the judgment on that ground. In fact, Petitioners have at all times contended that there was no evidence to support the findings of the jury on the liability issues. Petitioners in their brief before the Court of Civil Appeals, in its argument under a jury misconduct point makes this statement:

“The jury returns a verdict on liability contrary to all the evidence, and even contrary to the judicial admissions of appellee that he could not avoid the collision although he had applied his brakes for possibly 90 feet, and he admitted that the speed he was traveling prevented him from avoiding the collision.”

Whatever may be said about the judgment entered by the court, it was the identical judgment requested by both parties at one time or another, and if ever a trial court could be safe in entering a judgment it should have been in this situation. After the verdict came in and before judgment, Petitioners filed a motion to disregard the findings on the liability of the Defendant (Issues 1, 3 and 5), and having done so, to declare a mistrial, and in the alternative to enter judgment for the Petitioners in the amount of damages found by the jury, plus the amount of property damages as stipulated by the parties.

As a basis for this alternative request they stated in their motion that each of the liability Issues 1, 3 and 5, should be disregarded “when considered as a whole for the undisputed facts of this case, reflects as a matter of law that the Defendant was guilty of one or more of such facts of negligence, and that same was the proximate cause of the collision.” This motion of the Petitioners was overruled by the trial court and judgment was entered on the verdict for the Defendant.

Petitioners amended motion for new trial states in regard to Issue No. I:

“The Court erred in refusing to disregard the negative finding of the jury to Issue No. 1, and in denying plaintiff a judgment based thereon, for each of the following separately assigned reasons”:
“ * * * ” (Here follows a statement of facts supporting such contention.)

In regard to Issue Number V the motion states:

“The Court erred in failing to disregard the finding of the jury to Issue No. 5, and in denying recovery of damages based thereon, for each of the following separately assigned reasons”:
“ * * * ” (Here follows a statement of facts supporting such contention.)

It thus appears that Petitioners at all times, up until the very time the judgment was entered for them, were maintaining that they were entitled to judgment for the damages found by the jury, plus those, as stipulated. Here the Petitioners sought two inconsistent methods of relief and the Respondent requested that one of them be granted. The trial judge granted that relief on which both concurred. Therefore, Petitioner may not complain of the denial of the other, for if there was any error in granting the judgment entered, it was invited error. Harris v. Christianson-Keithley Co., 303 S.W.2d 422, 427-428 (Tex.Civ.App.1957, error ref’d n.r.e.).

I would affirm the judgments of the Court of Civil Appeals and of the trial court.


author: MORRISON, Judge.

text:
    Bobby Edward ASH, Appellant, v. The STATE of Texas, Appellee.
    No. 40734.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.

      J. R. Blumrosen, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., J. Blair Cherry, Jr., Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with two prior convictions alleged for enhancement; the punishment, life.

On the night in question the witness Arwine returned to his drugstore after closing hours. Upon hearing strange noises like someone trying to break in, he left and called the police from another location. Five or ten minutes later, several officers arrived on the scene. One of the officers went to the rear of the store where he ascertained that the rear door was locked and secured. While doing so, he heard people talking in the store and heard coins dropping on the floor. Another officer stationed himself on the roof of the drugstore and he too heard voices “like someone counting money” and the sounds of coins dropping. Arwine opened the front door and two officers entered the drugstore and saw that the knob had been knocked off the safe. Further investigation revealed a fresh hole in the drugstore wall common to the departent store adjoining it. The officers proceeded through the hole and in the adjoining store apprehended the appellant and a companion who were hiding in a dressing room. The officers testified that the doors of the drugstore were locked and secured, that the department store’s rear door had been pried open, that no one left either the drugstore or the department store from the time the police arrived until the appellant was apprehended, that coins and burglary tools were found on the floor of the drugstore, and that appellant had a screw driver in his pocket.

Appellant urges as his first ground of error that the evidence is insufficient to support the conviction. Specifically, he points to the failure to show that he was in the drugstore at any time, that he was not lawfully in the department store when apprehended, and that he had taken any money from the drugstore.

The offense of burglary is complete without a taking of property where there is a breaking and entering with the intent to commit a felony or to commit the crime of theft. Duran v. State, 160 Tex.Cr.R. 167, 268 S.W.2d 167, and Rodgers v. State, 164 Tex.Cr.R. 375, 298 S.W.2d 827.

Taken as a whole, the evidence is sufficient to support the conviction under the rule relating to circumstantial evidence as set forth in Thomas v. State, 150 Tex.Cr.R. 540, 203 S.W.2d 536.

Appellant contends that the trial court erred in overruling his motion to quash the indictment because appellant was not granted an examining trial when such was requested in accordance with Article 16.01, Vernon’s Ann.C.C.P. The record reflects that appellant was arrested on the night of May 1, 1966, and an indictment was returned on May 3, 1966. Article 16.01 provides:

“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.”

Trussell v. State, Tex.Cr.App., 414 S.W.2d 466, is authority for overruling of appellant’s motion to quash the indictment.

Appellant’s third ground of error relates to the participation of the Court in questioning of one of the witnesses.

“Q. (By Mr. Cherry, the Assistant District Attorney) And where did you find them (burglary tools) ?
A. Well, this one was found in the drugstore and this one came out of Ash’s pocket.
⅜ * * * * *
THE COURT: And where did you say one of them came out of?
WITNESS: Out of Ash’s pocket.
MR. BLUMROSEN (Appellant’s counsel) : Excuse me. I object to the Court asking the witness a question.
THE COURT: I just didn’t understand what he said.”

Appellant contends that such statement made in the presence of the jury was damaging. Without discussing the failure of appellant to request that the jury be instructed to disregard the Court’s statement or to move for a mistrial, we call attention to Rodrigues et al. v. State, 110 Tex.Cr.R. 267, 8 S.W.2d 149, where we said that when the Court participates in the questioning of witnesses seeking information only, no error is committed.

We quote from appellant’s brief filed in the trial court:

“FOURTH PROPOSITION
The Charge given by the court in this particular case was defective in many instances and was not a proper charge.
STATEMENT UNDER FOURTH PROPOSITION
Before the Court gave its charge in this particular case, a copy of the same was submitted to the attorney for the defendant and the Defendant’s attorney dictated his objections to the Court’s charge which were all overruled.
ARGUMENT AND AUTHORITIES UNDER FOURTH PROPOSITION
Without being duplicitious in adding to the Appellant record, Defendant asks this Honorable Court to note all objections raised to the charge of the Defendant which have been made a part of the record.
Because of said defective charge, this case should be reversed.”

We do not consider the above as a ground of error because it did not tell the trial court what appellant is complaining about. Candor and specificity is necessary in order to state a ground of error.

Finding no reversible error, the judgment is affirmed.


author: ONION, Judge.

text:
    Donald N. HOWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 40742.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Joe Bob Brown, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Toby A. Pri-olo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Theft By False Pretext over the value of $50.00; the punishment assessed by the jury at ten (10) years confinement in the Texas Department of Corrections.

Appellant’s conviction stems from the passing of a worthless instrument as his payroll check. , We do not .deem a recitation of the facts necessary for a proper disposition of the grounds of error raised.

Appellant initially contends that his conviction for theft by false pretext under an ordinary theft indictment cannot stand, and that the court erred in overruling his motion to quash the indictment. It is this writer’s opinion that, in all fairness, the indictment should allege an offense of theft by false pretext if that is the offense upon which the State expects to rely in order that an accused might properly be apprised of the charge upon which he is called to defend. Nevertheless, it is well established in this state that under an ordinary indictment for theft charging that the property was taken without the consent of the owner, a conviction may be had for theft even though the taking was with the consent of the owner if the proof shows that such consent was obtained by any false pretext and the property then appropriated. 5 Branch’s Anno.P.C. 2d Ed. Sec. 2680, p. 126. Only recently this proposition of law was reaffirmed by this Court in Cameron v. State, Tex.Cr.App., 401 S.W.2d 809. See also Cameron v. Hauck, 383 F.2d 966 (5th Cir., Sept. 15, 1967).

The proof in the case at bar demonstrates a case of theft by false pretext. Therefore, appellant’s first contention is without merit.

In his second ground of error appellant urges that the trial court erred in making a comment during the trial of the case which conveyed to the jury his opinion of the case.

The first two defense witnesses were appellant’s wife and mother. Appellant’s wife testified that after appellant had been placed in custody in Potter County he requested and received a visit from a psychiatrist.

After the mother was excused as a witness, the record reflects the trial judge said: “This is the first knowledge I have had of the psychiatrist the defendant’s wife says he saw, and I think the record should reflect that. This is the first time I ever heard of his request for a psychiatrist.”

Subsequently it appears in the record that appellant’s court-appointed counsel had made arrangements for appellant, while in custody, to be examined by Dr. J. Y. Lara.

The remarks complained of were made immediately prior to the noon recess, and it is not clear from the record to whom they were addressed, or whether the jury was present or not. Appellant concedes that such remarks were not a comment on the weight of the evidence, but contends they were calculated to convey to the jury the judge’s opinion of the case in violation of Article 38.05, Vernon’s Ann.C.C.P. (former Article 707).

We find nothing in the court’s remarks which was a benefit to the State or injurious to the appellant. To constitute-reversible error in violation of Article 38.05, supra, the comment of the court must be such that it is reasonably calculated to-prejudice the defendant’s rights. Collins v. State, Tex.Cr.App., 376 S.W.2d 354; Martini v. State, Tex.Cr.App., 371 S.W.2d 387; Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121; Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245.

It is observed that no objection was-made to the trial judge’s statements, nor-was any request made to instruct the jury to disregard the same. No error is present-ed. See Steese v. State, 170 Tex.Cr.R. 269, 340 S.W.2d 49.

In his third ground of error, if we understand the same, appellant claims that this cause should be reversed because the overwhelming weight of the evidence was in his favor on the issues of present insanity and insanity at the time of the commission of the alleged offense. Appellant who testified on his own behalf also called his wife, mother, sister and stepfather as defense witnesses, while the State relied upon the testimony of Dr. J. Y. Lara on these two issues.

Appellant overlooks the fact that the jury is the exclusive judge of the facts proved, credibility of the witnesses, and the weight to be given to the testimony. See Article 38.04, V.A.C.C.P. We deem the evidence sufficient to support the jury’s verdict finding the appellant sane at both times.

The judgment is affirmed.


text:
    Ex parte Ricardo HERNANDEZ.
    No. 40740.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Rehearing Denied Dec. 6, 1967.
    Mike Thompson, El Paso, for appellant.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order entered in the 34th District Court in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Ohio.

At the hearing the State introduced into evidence the Executive Warrant of the Governor of Texas and supporting papers authorizing the arrest and return of the appellant to the State of Ohio to answer indictments for Breaking and Entering an Uninhabited Building in the Night and Failure to Appear on Recognizance, in violation of Secs. 2907.10 and 2937.29 Ohio.

If regular upon its face, as in the case at bar, the introduction of the Governor’s Warrant makes out a prima facie case authorizing extradition. Ex parte Juarez, Tex.Cr.App., 410 S.W.2d 444; Ex parte Kronhaus, Tex.Cr.App., 410 S.W.2d 442.

Further, the statutes of Ohio, Articles 2907.10 and 2937.29, were introduced into evidence which showed that the charge of breaking and entering an uninhabited building in the night and failure to appear on recognizance were penal offenses in Ohio. Moreover, the charge of breaking and entering an uninhabited building would be the crime of burglary in Texas.

It is appellant’s contention that the Governor’s Warrant was never admitted into evidence, and that there is no showing that appellant is legally restrained. See Ex parte Sykes, Tex.Cr.App., 400 S.W.2d 568. We reject such contention.

The hearing on the application for habeas corpus was conducted in two parts. On June 20, 1967, the State offered the Governor’s Warrant and the supporting papers into evidence, to which offer the court replied, “All right.” Thereafter the appellant entered a number of objections to the various instruments. The trial court astutely observed that Texas has no felony offense such as “failure to appear on recognizance.” Thereafter the State asked for additional time, whereupon the court replied, “I’ll reserve the ruling on this portion of it and see whether he comes up with any law, Mr. Thompson. If he doesn’t I’m going to sustain the objection.”

It is not clear from the record what “portion” and “objection” the court had reference to, but it appears to relate to the offense of failing to appear.

At the second part of the hearing on July 6, 1967, the prosecutor inquired whether the Executive Warrant and supporting papers (Exhibits one through five) had been offered into evidence, and the court replied, “That’s correct,” to which appellant made no objection. Thereafter the State offered into evidence a copy of the statutes of Ohio under which appellant was charged duly certified as authentic by the Secretary of State of Ohio. Appellant’s objection thereto that the Ohio laws were not certified to by any officer of the State of Texas was properly overruled.

The judgment is affirmed.

      . Observe, however, that as of August 28, 1967, Texas has a similar offense (Failure to appear; violation of bail bond). Article 22.01a, Vernon’s Ann. O.C.P. (Acts 1967, 60th Leg.R.S., Chapter 339, p. 804)


author: BELCHER, Judge.

text:
    Ex parte Otto THOMPSON.
    No. 40712.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Rehearing Denied Dec. 6, 1967.

      Davis, Davis & Hornbuckle by William E. Hornbuckle, III, Huntsville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the state of New Mexico.

The executive warrant issued by the Governor of Texas, which appears regular on its face, was introduced in evidence. It is recited in the warrant that the appellant stands charged by “judgment of conviction, sentence, parole violation, before the proper authorities, convicted of murder, committed in said state * *

The warrant made out a prima facie case authorizing the remand of the appellant to custody for extradition. Ex parte Favor, Tex.Cr.App., 406 S.W.2d 434.

As a ground for discharge, the appellant contends that the state failed to comply with Art. 51.13, Section 10, Vernon’s Ann.C.C.P., in that after his arrest under the Governor’s warrant, he was not taken “forthwith” before a judge of a court of record, but held in the county jail.

On May 10, 1967, the appellant was arrested on a fugitive warrant, and on the same date an extradition warrant was issued. The extradition warrant was withdrawn by the Governor on June 2, 1967. The appeal from an order remanding him to custody after a hearing on the fugitive warrant was dismissed on July 12, 1967, on the ground that the appellant was then in custody on another extradition warrant issued on June 26, 1967. Ex parte Thompson, Tex.Cr.App., 417 S.W.2d 169.

The petition for writ of habeas corpus in this cause was filed July 28, 1967. On July 31, 1967, the appellant was brought before the court, and after a hearing, counsel was appointed to represent the appellant, and a hearing on said petition was set for August 1, 1967. After a hearing, the court ordered the appellant remanded to custody for extradition. From such order he gave notice of appeal.

The statute relied on by the appellant provides that the accused shall not be delivered to the agent of the demanding state until he shall first be taken forthwith before a judge of a court of record who shall inform him of his rights. The statute also provides that when a writ of habeas corpus is applied for, notice of the hearing shall be given to the prosecuting officer and the agent of the demanding state.

The petition herein was filed Friday, July 28, 1967, and on Monday, July 31, the appellant was brought before the court and counsel appointed for him and the hearing was had on Tuesday, August 1. There is no showing when the writ was served or when it was first called to the attention of a judge of a court of record, or when the prosecuting officer or the extradition agent were notified of the hearing.

From all the facts and circumstances in evidence and in light of the applicable provisions of the statute, it is concluded that the trial court did not abuse its discretion in remanding the appellant to custody for extradition.

The judgment is affirmed.


author: DICE, Judge.

text:
    Raymond Earl QUILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 40678.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Howard O. Lake, Houston (on appeal), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for burglary; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, twelve years.

Appellant’s sole ground of error is that the sentence in the prior conviction introduced in evidence by the state is void because it fixed his punishment for an indefinite term of “not less than Two nor more Ten years” in the Department of Corrections.

The sentence properly applied the indeterminate sentence law, Art. 42.09, Vernon’s Ann.C.C.P., and is not void. The judgment in the prior conviction assessed a definite term of ten years.

In Ex parte Rodriguez, 167 Tex.Cr.R. 305, 320 S.W.2d 346, relied upon by appellant, it was the judgment of the court and not the sentence which was held void for indefiniteness.

The ground of error is overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Edwardo PADILLO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40633.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order revoking probation.

The conviction was for burglary and judgment was rendered, sentence pronounced and probation granted on November 1, 1965 (which was prior to the effective date of the 1965 Code of Criminal Procedure) .

One of the conditions of probation was that appellant “commit no offense against the laws of this or any other state.”

On February 8, 1967, the district attorney filed application alleging that appellant had violated said term and condition of his probation in that:

“He has violated the law in that he was drunk in a public place, to-wit: the City of Littlefield, Lamb County, Texas, on April 27, 1966. He also violated the law in that he was drunk in a public place, to-wit: the City of Littlefield, Lamb County, Texas, on October 16, 1966.”

Hearing was had on March 4, 1967, at the conclusion of which the court found that appellant had violated the terms of his probation “in that, to-wit:”

“He violated the law in that he was drunk in a public place, to-wit: the City of Littlefield, Lamb County, Texas, on April 25, 1966. He also violated the law in that he was drunk in a public place, to-wit: the City of Littlef'eld, Lamb County, Texas, on October 16, 1966, * * * »

The sole question for our determination is whether or not the trial court abused his discretion in revoking probation upon his findings.

While the form or sufficiency of the allegations of the application for revocation has not been attacked, and a mere allegation that appellant had violated the law in that he was drunk in a public place (a misdemeanor offense under Art. 477, Vernon’s Ann.P.C.) would have been sufficient, we point out that a city is not a “public place” as that term is used in said statute, and one being drunk anywhere in the City of Littlefield other than a public place, or a private house other than his own, would not violate the statute defining “Drunk in a public place.” See Murrey v. State, 48 Tex.Cr.R. 219, 87 S.W. 349.

We agree with appellant’s contention that the evidence adduced at the hearing on revocation is insufficient to sustain a finding that appellant was drunk on either of the dates mentioned. See Snodgrass v. State, Tex.Cr.App., 18 S.W.2d 1084; Clinton v. State, 64 Tex.Cr.R. 446, 142 S.W. 591.

On this issue, City Patrolman Don Savage testified that on April 27, 1966, he stopped the vehicle appellant was driving and asked him to step out. “When he got out of the car, he had trouble standing. I noticed that he had a very strong odor of beer on his person, and asked him to go back to' the patrol car, and I had to help him back to the patrol car as he was unable to make it back under his own power. We took him to the station and booked him, and we had to help him up the stairs.”

He further testified that he “lodged a complaint against” appellant in the corporation court.

This was all of the evidence admitted at the revocation hearing to support the allegation that appellant was drunk on April 27, 1966.

City Patrolman Gary Lightfoot testified that he had occasion “to handle” appellant on or about October 16, 1966; that he observed and stopped the car appellant was driving, and:

“Q. Back at the time when you stopped this vehicle, Mr. Lightfoot, would you tell us what you observed, please?
“A. As I walked up to the car, I saw that there was beer in the car, and in further talking to the boys, I smelled alcohol on all of them, and they weren’t too steady on their feet.
“Q. All right. Now, talking specifically about Edwardo Padillo, Jr., who sits at this counsel table, what did you observe as to his conduct and condition?
“A. He wasn’t steady on his feet. He smelled very heavily of alcoholic beverages.”

He further testified that he took appellant to the City Hall and lodged a complaint against him.

This was all of the testimony admitted to sustain the allegation that appellant was drunk on October 16, 1966.

Neither of the patrolmen testified or expressed the opinion that appellant was drunk; intoxicated or under the influence of intoxicating liquor at the time they “handled” him, and no evidence is found in the record (unless it be the length of their service as patrolmen, one 18 months and the other 20 months) as to their qualifications to form or express an opinion as to a person’s condition of sobriety.

Further proceedings to revoke the probation not being foreclosed, we direct attention to the fact that the record reflects that the arrest of appellant for violation of the terms of his probation was upon “alias capias” issued by the district clerk upon the filing of the application of the district attorney, and not “upon the order of the judge of such court to he noted on the docket”. (Art. 42.12, Sec. 8, Vernon’s Ann.C.C.P.)

The order revoking probation is reversed.


text:
    Jimmy Paul ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 40741.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    D. C. Gandy, Fort Worth, Court Appointed on Appeal Only, for appellant.
    Frank Coffey, Dist. Atty., Rufus Ad-cock and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is attempt to commit burglary; the punishment, four years.

Appellant’s first ground of error urged in argument on appeal is that the evidence is insufficient to corroborate the testimony of the accomplice witness Mil-liorn. The fact that someone made a bur-glarious attempt to enter the Playboy Lounge on the night in question is not questioned. The sole question is whether there were two or three participants in the attempt, and, if three, then was the appellant one of them.

John C. Williams, a street department employee, was in the area and saw three men on the top of the lounge roof. A short while thereafter he saw two men coming down the ladder and one man on the ground beside the lounge.

Audie Williams, another street department employee, arrived in the area and saw three men walking about one-half block from the lounge, saw them enter an automobile and followed them some two or three blocks to the spot where they were apprehended by the police.

Officer Phillips, who was on the roof of the lounge, saw three men in the automobile at the time it drove away from the parking area nearby.

Officer Johnson, at the instruction of Officer Phillips, pursued the same automobile from the time it left the parking lot near the lounge to the point of arrest and stated that three men were in the same and that appellant was one of them.

While some of the State’s witnesses saw only two men on the building, what we have set forth above constituted sufficient evidence to corroborate the witness Milliorn, who placed himself, appellant and Jack Allen Gee at the lounge, each participating in the attempted burglary.

It is evident from their verdict that the jury rejected Gee’s testimony that only he and Milliorn were at the scene and that they picked up appellant after they left the parking lot and while fleeing from the police.

Appellant’s second ground of error is the failure of the court to give the jury a charge on alibi. Such a charge he contends was called for by the testimony of Gee set forth above. Without passing on such contention, we observe that while he made other objections to the court’s charge, the failure to charge on alibi was not one of them. It is well settled that in the absence of a requested charge or an objection to the court’s charge, the question of the court’s failure to so charge cannot be raised on appeal. 1 Branch, 2d, Ann.P.C., Sec. 77, p. 72.

Appellant’s third ground of error is without foundation. It was his own trial counsel who elicited the evidence as to an extraneous offense and he cannot be heard to complain on appeal.

Finding no reversible error, the judgment is affirmed.


text:
    Edwin McAdoo CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 40682.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Rehearing Denied Dec. 6, 1967.

      Benjemin Kucera, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty, appellant was convicted of the offense of theft by bailee of property over the value of $50.00 on October 25, 1965. His punishment was assessed by the court at three (3) years confinement in the penitentiary. Thereafter execution of the sentence was suspended and appellant was placed on probation subject to certain terms and conditions.

We reject at the outset appellant’s contention that we are now called upon to review errors alleged to have occurred at the time of his conviction from which he failed to appeal. Chavez v. State, Tex.Cr.App., 375 S.W.2d 729; McMillan v. State, 166 Tex.Cr.R. 15, 310 S.W.2d 116; Lee v. State, 172 Tex.Cr.R. 240, 355 S.W.2d 715; Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59.

The sole question presented is whether the trial judge abused his discretion in revoking probation.

From the order entered on October 26, 1966, following a hearing on the State’s Motion to Revoke, it appears that the trial court revoked probation for the failure of the appellant to report as directed to the probation officer, failure to pay court costs and restitution and to report a change of address within twenty-four hours, all in violation of his conditions of probation.

The probationary condition imposed upon appellant relating to reporting reads as follows :

“(d) Report to the Probation Officer as directed; Defendant is paroled to P. L. Crossley, Adult Probation Officer, or his successors in office; Defendant shall report this day in person, and thereafter as directed by the said P. L. Crossley.” (Emphasis Supplied.)

By such condition the court delegated to the probation officer the responsibility for establishing reporting dates and periods and imparting the same to the appellant. No evidence was offered to show when the appellant was directed to report. Mr. Crossley, the Adult Probation Officer, did testify that he received a written report from appellant on November 8, 1965 (13 days after probation was granted) and none thereafter. While there was testimony to the effect that appellant had failed to report for a number of months, Mr. Crossley did not testify that he had directed appellant to report monthly or otherwise, and that appellant was in violation of such instructions. This situation points up the practicality of including specific reporting dates in the written conditions, a copy of which must be delivered to the probationer.

The conditions of probation relating to restitution and courts costs were as follows:

“(h) Make restitution in the amount of $838.26 to the said Probation Officer, or his successors in office, said amount to be paid on or before the 25th day of November, 1967.
"(j) Pay to the District Clerk of Lubbock County, Texas, or his successors in office, the sum of $39.00 representing Court costs in this cause, said amount to be paid on or before the 25th of November, 1967.” (Emphasis Supplied.)

It is obvious from the wording of these conditions that the date upon which the appellant would be in default, even at this late date, has not yet been reached.

The record reflects that appellant made a $40.00 payment on restitution on November 10, 1965, and $40.00 payments were made thereafter for several months by his parents. If the above-stated condition as to restitution was amended or modified by the court (as authorized by Section 6 of Article 781d, Vernon’s Ann.C.C.P., which is now Article 42.12) to include monthly payments, it is not reflected by the record before us. The probation officer had no authority to alter the conditions of probation. The very purpose of the requirement that the clerk of the court furnish the probationer a copy of the terms and conditions of probation and note the date of such delivery on the docket is to insure that the probationer may know with certainty what those conditions are, and upon revocation there can be little question about the same. See Sec. 6, Article 781d, V.A.C.C.P. (Article 42.12).

We further observe there is an absence of any showing of appellant’s ability to make the payments required, and that the failure to make restitution was intentional, McKnight v. State, Tex.Cr.App., 409 S.W.2d 858, and the failure to pay court costs was willful, Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422.

The last condition of probation, the violation of which this revocation is predicated upon, is as follows :

“(k) Defendant is to report any change of address within twenty-four (24) hours.”

It is not clear from this condition to whom the appellant was required to make such report. No testimony was offered to show that appellant had in fact changed his address. It is true that some hearsay evidence was offered to show that appellant had been in another state, but the record further reflects that the court granted him written permission on October 26, 1965, to travel in various states as his employment might demand.

Under the record, we find that the trial court did abuse his discretion in revoking the probation.

The judgment is reversed.


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    Felix ROSALES, Appellant, v. The STATE of Texas, Appellee.
    No. 40634.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Rehearing Denied Dec. 6, 1967.

      M. N. Garcia, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Charles R. Parrett, Asst. Dist. Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the unlawful possession of a narcotic drug, to-wit: marihuana; the punishment, five years.

A prior conviction of appellant was reversed in Rosales v. State, Tex.Cr.App., 399 S.W.2d 541.

Appellant’s sole contention on appeal is that the marihuana in question was obtained as the result of an unlawful arrest and illegal search and seizure.

Two grounds of error are presented by appellant, in which he insists that the court erred in failing to grant his motion to suppress the evidence and in permitting the state to use the same before the jury upon trial of the case.

The record reflects that the marihuana in question was obtained following appellant’s arrest, without a warrant, by two officers of the Austin police department.

It is the state’s position that appellant’s arrest and search without a warrant was upon probable cause.

On the question of probable cause, Lieutenant Harvey Gann, the officer in charge of the narcotics and vice detail of the City of Austin, testified as to the facts and circumstances surrounding the arrest and search, as follows:

On the evening in question he received a telephone call at his home about 7 p. m. from an informer, whom he had found to be reliable, that the appellant was going to an unidentified address in South Austin in the vicinity of the Molly Dawson school and that he was supposed to have in his possession an amount of marihuana. The address was not known but there was supposed to be a band practicing at the place. The description of the automobile appellant was driving was given by the informer, who advised that appellant was “possibly en route at that time.” Lieutenant Gann had known appellant for a number of years and was aware that he had twice been convicted as a narcotic violator. Lieutenant Gann then contacted Sergeant Moody and the two proceeded to the vicinity of the Molly Dawson school, arriving around 8 p. m. After locating a residence from which they could hear the sound of music, the two parked their vehicle and remained until appellant appeared. In approximately thirty minutes appellant drove up in an automobile meeting the description given, and parked the vehicle with the left wheel to the curb. Lieutenant Gann recognized appellant and observed him reach over to the right side toward the glove compartment. Appellant looked directly at Lieutenant Gann and immediately jerked back, opened the door in a hurried manner, and ran from the car. The officer then hollered: “Police. Stop,” as appellant proceeded to run. The two officers gave chase and finally captured and placed handcuffs on appellant after a struggle in which he fell to the ground. After handcuffing appellant, the officers turned him over and found, on the ground where he had been lying, a matchbox wrapped in white paper, and a set of car keys.

An examination of the contents of the matchbox by the Department of Public Safety chemist revealed that it contained 3.05 grams of marihuana.

Under the facts and circumstances, it is concluded that the officers did not have sufficient time to secure an arrest'or search warrant and did have probable cause to arrest and search appellant without a warrant. See: Clifton v. State, Tex.Cr.App., 399 S.W.2d 353, and Gonzales v. State, Tex.Cr.App., 402 S.W.2d 763, in support of the conclusion reached herein. See, also, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, in support of such conclusion.

The grounds of error are overruled.

The judgment is affirmed.


text:
    Carrel Wayne PITCOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 40644.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Rehearing Denied Dec. 6, 1967.

      John L. Scott, Jr., Amarillo, for appellant.
    Naomi Harney, County Atty., Franklin Killough, Ass’t. County Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for aggravated assault, with the punishment assessed at two years in jail.

The assaulted party was the wife of the appellant.

The refusal of appellant’s motion for a ■new trial is urged as reversible error upon the ground that the state did not contradict it.

It is not necessary for the state to join issue with the defendant by a written pleading. Art. 40.06, Vernon’s Ann. C.C.P.; Cade v. State, 96 Tex.Cr.R. 523, 258 S.W. 484; Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936, 939. Further, the motion for new trial was supported by one affidavit, that of Jerrie Shaw, who testified at the trial. Her affidavit recites that she told appellant’s counsel about the statements (those relied on by appellant) on September 21, which was before the trial on September 22. No reasonable diligence is shown to obtain the complained of testimony. No error is presented.

As ground for reversal, the appellant contends in his brief that the trial •court erred in refusing his first motion for a continuance for the reason that Alfred Manson, a material witness for him, was by force, threats and intimidation by the assaulted party made to evade process of the court.

The appellant’s affidavit in support of his motion states that Alfred Manson was a witness at a hearing held July 23, 1966, on the application of the assaulted party to have him placed under a peace bond; and that after the hearing it was reported to the appellant that the assaulted party “made the statement that her brother would be looking for Alfred Manson and would get him.” Appellant’s counsel attended the peace bond hearing.

There is no showing of the time the assaulted party made the statement or when the report thereof was made to the appellant.

The complaint and information were filed July 12, 1966. The case was set August 1, 1966, for trial on September 20, 1966, and was passed on motion to September 22. Appellant’s counsel knew Manson before the date of the offense charged, and shortly after it was set for trial on August 1, he told Manson to be present as a defense witness on September 20, and talked with Manson subsequent to August 18; and when he began preparing for trial about one week before September 22, he was unable to locate Manson, and for the first time made application for a subpoena for him on September 15, the return thereon showing that he could not be located. Appellant’s counsel did not testify that Manson had promised to be present at the trial.

The proper diligence required by law was not used to secure the attendance of Manson.

The trial court did not abuse its discretion in refusing to grant the motion for continuance.

Error is urged on the ground that the photographs of the assaulted party, showing her injuries, were admitted in evidence over appellant’s objection that they served no purpose and were inflammatory and prejudicial.

The assaulted party testified that the appellant hit her on the head. While testifying, the appellant denied hitting her on the forehead.

The accuracy of the photographs is not in dispute.

An examination of the photographs in the record reveal a wound on the forehead of the assaulted party. They were admissible on the issue of whether appellant hit her on the head. No error is shown.

It is insisted that the trial court erred in refusing to admit evidence of prior unprovoked attacks and acts of violence by the prosecuting witness upon third persons of which the appellant had specific knowledge.

On the state’s written motion the court excluded only the testimony of the complainant’s immoral sexual conduct.

The testimony does not reveal that the appellant knew of any unprovoked attacks upon third parties prior to the assault alleged herein. No error is presented. Reid v. State, 80 Tex.Cr.R. 288, 189 S.W. 483.

Reversal is sought on the ground that appellant was not allowed to cross-examine the assaulted party about whether she intimidated and threatened Alfred Manson, a material witness for appellant, and caused him to evade the process of the court.

An examination of the record reflects that the trial court did not restrict or limit the testimony of the assaulted party concerning whether she intimidated and threatened Alfred Manson, and there is no showing of any offer or attempt to offer or introduce such testimony from her. No error is presented.

The judgment is affirmed.