author: W. M. KIMBERLIN, Special Judge.

text:
    Samuel J. TEMPERATO (Plaintiff) Respondent, v. Vernon E. LaBROT and Alma M. LaBrot (Defendants) Appellants.
    No. 31078.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.

      Charles W. Medley, McClintock & Medley, Flat River, for appellants.
    Blumenfeld, Abrams & Daniel, Harold J. Abrams, St. Louis, Roberts & Roberts, J. Richard Roberts, Farmington, for respondent.
   W. M. KIMBERLIN, Special Judge.

This is a suit to enjoin the use by the defendants of the trade name “Dairy Queen” in Flat River, Missouri, upon the ground it constitutes unfair business competition.

Plaintiff, Samuel J. Temperato, brought this suit in two counts against the defendants, Vernon E. LaBrot and Alma M. La-Brot. The first count prayed for an injunction to enjoin the use by the defendants of the name “Dairy Queen” in the operation of their store at Flat River, St. Francois County, Missouri. The second count prayed for damages.

Plaintiff alleged in substance that he was the sole and exclusive owner of the “Dairy Queen” franchise in the territory in question and that the defendants were using the trade name in the operation of their business which constituted unfair competition; that the trade name had acquired a secondary meaning in the minds of the public; that since plaintiff had no adequate remedy at law the defendants should be enjoined from the use thereof.

Separate answers were filed by each of the defendants alleging substantially the same defenses; namely, the contract entered into on April 26, 1952, wherein J. A. LeGrand was first party, Vernon L. LaBrot and Alma LaBrot were second parties, and R. E. Rice and Garnet Rice were third parties, was illegal because it violated the statutes dealing with unlawful restraint of trade and further denied that plaintiff or any other persons owned or had the exclusive right to the use of the trade name “Dairy Queen,” following the expiration of a patent on the “Dairy Queen” machine.

Defendants filed a motion for judgment on the pleadings which was by the court overruled. Since this case is being decided on the merits this ruling will not be further discussed.

The case was tried to the court. At the conclusion of the hearing the defendants requested of the trial court findings of fact and declarations of law. These were made by the court and judgment entered for the plaintiff granting injunctive relief on Count I, but against the plaintiff on Count II for damages. Defendants’ motion to set aside verdict and to enter judgment in their favor or in the alternative for a new trial or rehearing was overruled. Hence the defendants perfected this appeal.

The facts are that R. E. Rice and Garnet Rice for a number of years prior to this litigation owned the “Dairy Queen” freezer franchise covering a large territory in Missouri and more particularly the territory involved in this controversy. This territory is described as the corporate limits of the City of Flat River, Missouri, and within a four mile radius of the “Dairy Queen” store located therein. The store was owned originally by Paul and Lois Fullop.

The freezer machine was used in the store to make soft ice cream or iced milk on which the patent expired on May 18th, 1954. R. E. Rice, Garnet Rice and the Fullops subsequently sold their interest in the “Dairy Queen” franchise and store in the above described territory to J. A. Le-Grand. R. E. and Garnet Rice retained royalty rights in the franchise.

On the 26th day of April, 1952, J. A. LeGrand, R. E. Rice and Garnet Rice, and Vernon E. LaBrot and Alma M. LaBrot, his wife, entered into a contract wherein these defendants purchased from J. A. LeGrand the exclusive right to the use of the “Dairy Queen” freezer for the territory above described. Defendants were to continue to make royalty payments to the Rices for the balance due on the freezer and after the freezer was paid for to pay fifteen cents a gallon as a royalty as long as the freezer was in operation and the name “Dairy Queen” used. The contract contained the following clause:

“The parties of the Second Part will purchase all necessary supplies, accessories, and other equipment, and including, but not limited to mix, cones, cartons, topping, flavoring, cleaning supplies, mix cooler, and related compressor, hot-water heater, topping cabinet, and cone trays, at no expense to the Parties of the Third Part; and the Parties of the Second Part recognize the right of the Parties of the Third Part to reserve the right and privilege to select the brands and/or source of mix, topping, flavoring, cartons, or other like commodities used.”

A clause very similarly worded was held by the Missouri Supreme Court to have vitiated a contract relative to the sale of a “Dairy Queen” franchise. The style of that case is Temperato v. Horstman, Mo. Sup., 321 S.W.2d 657. It was held in this case that a similar clause constituted an unlawful restraint of trade and of competition under the Missouri Statutes and more particularly was a violation of Section 416.-040, Missouri Revised Statutes of 1949, V. A.M.S. These defendants admit and agree that by virtue of this Supreme Court case this clause makes illegal and void this contract dated April 26, 1952.

On January 15, 1959, R. E. Rice and Garnet Rice sold their interest to J. A. Le-Grand. Subsequently J. A. LeGrand died and in May of 1960 this plaintiff purchased from R. B. Manley, executor of the Le-Grand Estate all of deceased’s interest in the “Dairy Queen” franchise for St. Francois County, which included this particular territory involved in this controversy.

Plaintiff testified that he had been in this “Dairy Queen” business since 1949, granting franchises to retail operators, obtaining locations, assisting operators with advertising and training operators in the territory embracing two counties in Illinois and approximately 26 counties in Southeast Missouri, including the County of St. Francois. He further testified that he advertised throughout the area in the form of hand bills, newspapers, radio and television with the aim and intent of enhancing the name “Dairy Queen.” That the name, “Dairy Queen” “was advertised nationally” by the Dairy Queen National Development Company.

R. E. Rice testified that the term “Dairy Queen” meant a store having that merchandising name on the window, the appearance of the store and the operator, and the ingredients of the product and the form that they took.

The defendant Vernon E. LaBrot testified he had been running a “Dairy Queen” store serving “Dairy Queen” products in Flat River since 1951. The first operation was under a lease from J. A. LeGrand until the latter part of 1951, and then subsequently in 1952 he purchased from LeGrand the store and franchise under the contract of April 26, 1952.

Plaintiff talked to Vernon LaBrot in June or July of 1960 and told him he had taken over the LeGrand franchise. Plaintiff further told LaBrot that he couldn’t operate under the franchise unless defendants paid to him fifteen cents per gallon royalty. The defendants had been paying fifteen ■cents per gallon royalty before the expiration of the patent and continued so to do after the expiration of the patent until some time in 1958. After plaintiff’s discussion with Vernon LaBrot the defendants refused to pay to plaintiff the fifteen cents per gallon royalty, but continued to operate the store in Flat River. The “Dairy Queen” store had two signs upon it, one being a pole sign displaying the name “Dairy Queen” and the other a plastic lettering sign on the building spelling out “Dairy Queen.” Defendants continued to use the eight ounce “Dairy Queen” cups. Plaintiff and defendants never entered into any contractual relationship. After defendants refused to pay to plaintiff the royalty plaintiff on November 17th, 1960, through his attorneys requested the defendants by letter to cease the use of the name “Dairy Queen” in their business. Defendants refused to comply and this injunction suit ensued.

The defendant Alma LaBrot has not been active in the business for the last five or six years. She has been teaching school for the last two or three years. She signed the contract of April 26th, 1952, with her husband and with LeGrand and R. E. and Garnet Rice. On May 3, 1959, Vernon LaBrot wrote a letter to Mr. Rice repudiating the contract, stating, “We feel that you people have been well paid for all that we have received and have no intentions of making any further payments.”

On this appeal the defendants contend that the judgment of the court below is erroneous because no showing was made that Alama LaBrot was using the trade name “Dairy Queen”; that the defendants are the owners of the trade name “Dairy Queen” in the Flat River area and acquired the name prior to and from the same source that plaintiff claims; and that the name “Dairy Queen” was dedicated to the public on the expiration of the patent on the “Dairy Queen” freezer.

This being an injunction suit it was tried to the court and on this appeal it is our duty on review to try the case de novo and reach our own conclusions on the facts and the law. In so doing we give due regard to the findings of the trial chancellor since he had an opportunity to personally see and hear the witnesses and to judge of the weight and credibility to give to their testimony. The judgment will be not set aside unless clearly erroneous. Sec. 510.310 RSMo 1949, V.A.M.S.; Shrout v. Tines, Mo.App., 260 S.W.2d 782; Davidson v. Fisher, Mo.App., 258 S.W.2d 297; Midland Realty Co. v. Manzella, Mo.App., 308 S.W.2d 326.

As to the defendants’ first assignment of error that there is no substantial evidence showing that defendant Alma La-Brot was using the trade name “Dairy Queen” it must be borne in mind that she was a party to and signed the contract of April 26th, 1952, conveying the interest in the franchise and store to her and her husband. There is no evidence she ever executed an instrument divesting herself of any interest acquired under said contract. While she has been teaching school the last two or three years it is fair to infer she did work in the business prior to that time. Furthermore in the letter of May 3, 1959, written by Vernon E. LaBrot to Mr. Rice telling him that he had no intentions of making any further payments, the letter refers to what Vernon and Alma had discussed and used the word “we” twice in the letter which would strongly indicate that Alma was considered to have had an interest in the business of the store and was being consulted by Vernon. The case cited by defendants to sustain their position is not helpful to them. Substantial evidence can be fairly deduced that Alma LaBrot had a sufficient interest in the “Dairy Queen” store to be subject to be enjoined from the use of the “Dairy Queen” trade name.

The next assignment of error by defendants goes to the heart and meat of the case. The defendants admit this contract of April 26th, 1952, was void but contend that the defendants are the owners of the trade name “Dairy Queen” in the Flat River area and acquired said name prior to and from the same source through which plaintiff claims his right to said trade name; that since the contract is illegal plaintiff’s rights are no greater than his predecessors Rice and LeGrand and that the parties, since the contract has been executed on both sides, should be left in the position where they put themselves. Defendants cite three cases to sustain this position, namely: Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731; Gilbert v. Edwards, Mo. App., 276 S.W.2d 611, and the Temperato case, supra. Defendants’ position is not well founded in that they are claiming ownership of the name “Dairy Queen” by virtue of a contract which they admit is illegal and void and which has been found by the Supreme Court to be inseverable. In the Gardine case a property settlement contract entered into between the wife and husband prior to divorce was held not binding on the wife because of fraud and overreaching on the part of the attorney for the husband. It must be stressed that in the Gardine case the wife was not in pari delicto with reference to the illegal contract and further that no one was seeking to enforce the property settlement contract. Actually in the case at bar the reasoning in the Gardine case is helpful to the plaintiff rather than to the defendants. After a careful analysis of the Gardine case, supra, this court concludes it does not fortify defendants’ position in the instant case. Neither does the Gilbert case which is cited by the defendants. In the Temperato case the Supreme Court held the evidence justified injunctive relief regardless of the illegality of the contract and stated that the conduct of the defendants that gave rise to the injunction occurred after the repudiation of the contract. Substantially the same factual situation obtains in the case at bar. All of the acts complained of by plaintiff were committed by the LaBrots after they had repudiated the contract of April 26, 1952.

True these three cases announce the general rule that parties to an illegal contract will be left in the position where they put themselves and the law will not afford affirmative relief to them. The holding of this court in no way conflicts with this well established rule of law, because it is not applicable under the facts of this particular case. Plaintiff acquired his rights for the use of the trade name “Dairy Queen” by reason of the purchase agreement executed by the executor of the J. A. LeGrand Estate pursuant to the order of the Probate Court of St. Francois County, Missouri. This was in May of 1960. There was nothing illegal about this contract. Plaintiff, Temperato, was not in pari delicto with the parties to the illegal contract of April 26, 1952, nor is he seeking to enforce this illegal contract.

As previously stated the acts giving rise to this cause of action occurred after the repudiation of the contract and franchise in this territory and continued until the time they were enjoined by the trial court. The plaintiff was the exclusive owner of the trade name “Dairy Queen” and of the good will attached thereto in the area involved in this controversy. He had the exclusive right to use and enforce this trade name as against these defendants. Plaintiff’s cause of action arose by virtue of the common law. As was stated in the opinion in the Temperato case, supra, at (321 S.W.2d 1. c. 665) :

“The right to the use of a trade-name or mark, though it be subject to federal registration, does not arise from that registration or from federal law, but from a prior, exclusive appropriation and user under the common law. E. F. Prichard Co. v. Consumers Brewing Co., 6 Cir., 136 F.2d 512, 518. And the registration is merely ‘prima facie evidence’ of the right. Prichard, supra.”

The Federal case of Fry v. Layne-Western Co., 8 Cir., 282 F.2d 97, also is authority for this legal principle.

This court determines that the continued use by the defendants of the trade name was an unfair trade practice and constitutes unfair competition. Defendants’ argument on this point is without merit.

The defendants’ last contention is that the name “Dairy Queen” was dedicated to the public upon the expiration of the patent of the “Dairy Queen” freezer and therefore plaintiff is not the owner thereof and would not be entitled to relief.

The patent on the freezer machine expired on May 18th, 1954, but that does not mean the product of the freezer machine automatically became a part of the public domain. As was stated in the case of Ross-Whitney Corp. et al. v. Smith Kline and French Laboratories, 9 Cir., 207 F.2d 190, 1. c. 194:

“When a new product or machine is patented and then marketed for the duration of the patent under a particular name, if the consumer so identifies the name with the article itself, without regard to the source of its manufacture, that name may become the generic designation of the product and as such enters the public domain along with the patent at the end of the protected period. The generic designation may have originated as a proper name, or a descriptive name, or even an invented name. However, to the extent that the given name is identified in the mind of the consumer with the source of the product, the name may be protected. ‘There is no presumption of law, without proof of the fact * * *, that a name used on a patented article passes to the public on the expiration of the patent.’ President Suspender Co. v. MacWilliam, 2 Cir., 1916, 238 F. 159, 163.”

There is no presumption of law that on the date of the expiration of the patent on the freezer machine that the name “Dairy Queen” became a part of the public domain. The evidence in the instant case proves it did not become a part of the public domain. The evidence demonstrates that the name “Dairy Queen” is not necessarily identified with the product itself, without regard to the source of its manufacture or its sale. One of the defendants’ witnesses testified that he thought of “Dairy Queen” as “a frozen dessert of any of the brands.” Our courts have recognized various other brands. See Temperato v. Horstman, supra.

The evidence indicates that the term is not generic in nature, but that it does have a specific and distinctive meaning relative to iced milk or soft ice cream products. Moreover, the evidence discloses the term “Dairy Queen” means more than the name of a product itself. It signifies a style, mode of operation and sale of the product. Plaintiff testified he trained operators for these stores; that he conducted an advertising and marketing program; that an advertising kit is sent to retail stores containing 670 pieces and all of them are imprinted with the name “Dairy Queen.” All this is done to promote uniformity of quality, quantity and style of operation. It can therefore be said and this court concludes that the term has acquired a secondary meaning in the minds of the consuming public and is entitled to be protected against, unfair competition. Better Business Bureau of Kansas City Advertising Club, Inc., v. Chappell, Mo.App., 307 S.W.2d 510.

Defendants were actively operating the “Dairy Queen” store. It had displayed on it “Dairy Queen” signs. “Dairy Queen” cups were used. Plaintiff testified he could not obtain another franchise in Flat River with the defendants operating there. The court determines that the acts of the defendants complained of were wrongful. The defendants unfairly used this trade name in the conduct and operation of their business to the prejudice of plaintiff’s interests. These acts constituted unfair competition as against this plaintiff. See Triangle Publications, Inc. v. Central Publishing Company, Inc., 117 F.Supp. 824. Better Business Bureau of Kansas City Advertising Club, Inc. v. Chappell, supra; Shrout v. Tines, supra.

The trade name continued and did not pass to the public at the expiration of the patent. See Cecil R. Medd, et al., v. Boyd-Wagner, Inc., et al., 132 F.Supp. 399. Telechron, Inc. v. Telicon Corp., 198 F.2d 903; 52 American Jurisprudence 611, Sec. 136. The trade name “Dairy Queen” is not in the same classification as the words “cellophane,” “shredded wheat,” and “castoria,” as contended by the defendants. Therefore, this contention that upon the expiration of the patent on the freezer machine the trade name became a part of the public domain is ruled against the defendants.

For the various reasons herein assigned the trial court did not err in permanently enjoining the defendants from the use of the trade name “Dairy Queen” or any other name confusingly similar thereto in the operation of their business in Flat River, Missouri, and accordingly the judgment and decree of the trial court in granting the injunction is by this court affirmed.

ANDERSON, P. J., and MARSHALL CRAIG, Special Judge, concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    William WOLFF, Appellant, v. Richard RICHARDSON, Respondent.
    No. 23489.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Donald L. Randolph, Kansas City, for appellant.
    Ernest H. Fremont, Jr., E. E. Thompson, Thomas A. Sweeny, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   CROSS, Judge.

Plaintiff filed this action to recover damages for personal injuries resulting from a collision between an automobile he was driving and an automobile driven by defendant. Plaintiff has appealed from a jury verdict and judgment in favor of defendant.

Defendant has moved for dismissal of the appeal on the ground that plaintiff has violated Civil Rule 1.08 in that he fails to make a fair and concise statement of the facts in his brief and has not supported certain of his points by any citation of authorities. Although plaintiff’s brief does not comply with Rule 1.08, we are able to determine from the whole brief the assignments of error and the points made under them. We decline to enter a dismissal and proceed to rule the case on its merits.

The collision occurred in the intersection of Forty-seventh Street and Troost Avenue in Kansas City, Missouri, on January 3, 1959, at approximately the hour of 7:00 o’clock A.M. The streets were covered with packed snow and were very slick. According to plaintiff’s evidence it was daylight at the time of the collision. According to defendant’s evidence it was still dark. Forty-seventh Street runs east and west, Troost Avenue north and south. Prior to the collision plaintiff was driving an automobile on Forty-seventh Street, in the north lane next to the curb, from the east, approaching the Troost Avenue intersection, intending to cross that street and continue west on Forty-seventh Street. Defendant was also driving his automobile on Forty-seventh Street, but from the west, and also approaching the intersection. He was traveling in the left hand lane for eastbound travel, next to the center line of Forty-seventh Street, intending to make a left hand turn, to the north, into Troost,

There is considerable conflict in the evidence. Plaintiff testified that as his vehicle approached the intersection he had slowed down from 10 or 15 miles per hour to a speed of less than 10 miles per hour. The traffic light was green for east and west travel. When plaintiff was 10 to 15 feet east of Troost, he observed defendant’s car for the first time. It was also approaching the intersection, and was then about a car length west of Troost. Plaintiff stated that he was first to enter the intersection and that after he had done so, defendant made a left turn in front of him. Plaintiff applied his brakes and skidded 10 or 15 feet to his left (southwest) into collision with defendant’s automobile. Defendant had almost completed turning. His car was then 10 feet south of the north curb line of Forty-seventh Street. Plaintiff estimated defendant’s speed at 5 miles per hour and stated that defendant did not sound his horn or give any signal for a left turn.

Defendant testified that as he approached Troost Avenue from the west he had turned on his signal lights for a left turn about a quarter of a block before he reached the intersection. When he first saw plaintiff’s car it was then 75 feet east of the east curb line of Troost Avenue, traveling toward the intersection at about 15 miles per hour. At that time defendant’s automobile was already in the intersection and 2 feet west of the center of Troost Avenue. Defendant completed his turn, and drove north at 5 miles per hour until he reached a position 2 feet south of the north curb line of Forty-seventh Street. At that point plaintiff, who had entered the intersection and applied his brakes, skidded northwest into defendant’s vehicle, striking it from the rear half of the right front fender “on back”. The directional signal light on the left front fender of defendant’s car was still blinking after the collision.

Plaintiff’s case was submitted on two alternative theories, to-wit: (1) that defendant negligently made a left turn in front of plaintiff’s automobile without giving any signal; (2) that while defendant was in the intersection, intending to make a left turn, he negligently failed to yield the right of way when plaintiff's vehicle was approaching the intersection so closely as to constitute an immediate hazard.

Plaintiff’s first assignment of error is that the judgment for defendant is contrary to the evidence and against the weight of the evidence. This contention presents nothing within the scope of our properly exercised appellate authority.

It is a well established rule that when the plaintiff carries the burden of proof (as in this case), even though he makes a prima facie case by oral testimony, or by oral testimony and documentary evidence, and even though the defendant offers no testimony in contravention, the jury has the right to disbelieve plaintiff’s evidence and return its verdict for the defendant. J. D. Streett & Co. v. Bone, Mo. Sup., 334 S.W.2d 5; Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 590; Baugh v. Life & Casualty Ins. Co. of Tenn., Mo.Sup., 307 S.W.2d 660.

In Dixon v. Edelen, Mo.Sup., 300 S.W.2d 469, the Supreme Court considered a plaintiff’s contention that there was no substantial evidence to support the verdict in defendant’s favor. In ruling against the contention that court said, “We need not develop the matter at length. It is sufficient to say that such a verdict is not required to have evidentiary support, but rests upon a finding by the jury against the party having the burden of proof”. Also see Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, and cases therein cited.

We consider the following statement, quoted from J. D. Streett & Co. v. Bone, supra, as controlling authority on the present issue: “Thus, it is the rule that where the burden of proof is on the plaintiff who relies on oral testimony, or upon documentary testimony that is not legally conclusive, or a mixture of both, to establish all or some of the essential elements of his cause of action a verdict in the defendant’s favor is not required to have evi-dentiary support but rests upon a finding by the jury against the party having the burden of proof, and after the trial court exercises its discretion by overruling a motion for new trial, the appellate court, on the sole contention of abuse of discretion thereby, will not entertain the contention”. The assignment will not receive our consideration.

Plaintiff’s remaining contentions are complaints of error in defendant’s instructions, the first of which is directed against Instruction No. 5. That instruction essentially told the jury to return a verdict for defendant if they believed (1) that defendant, prior to executing the left turn described in evidence, “gave a timely, visible warning of his intention to make such left turn, by exhibiting a signal device in good mechanical condition, so as to be visible from both the front and rear of his said motor vehicle”, and (2) that when defendant began to make a left turn, “the automobile operated by plaintiff was not within the intersection of 47th and Troost or so close thereto as to constitute an immediate hazard of danger of collision”.

Plaintiff first urges that Instruction No. 5 is erroneous because it did not require the jury to find that defendant turned on his signal device. Amplifying the point, plaintiff says the instruction should have required the jury to find “that if defendant exhibited a signal device which would light up, such light was turned on”. We think the charge of error is baseless. A motorist’s duty to make turn signals is prescribed by Section 304.019, V.A.M.S., which defines the required signals as follows: “The signals herein required shall be given either by means of the hand and arm or by a signal light or signal device in good mechanical condition”. The instruction requires a finding that defendant exhibited a “signal device in good mechanical condition”. The required finding comports with the statute in exact, literal language. The evidence justifies the instruction because it shows that defendant turned on his signal light one-fourth of a block back from the intersection, that the turn indicator on the dash was ticking and blinking before the collision, and that after the collision the turn indicator light on the front fender was still lighted and blinking. Under our assumption that the jury was composed of men of ordinary intelligence, we do not believe that they were mislead because the instruction did not specifically require them to find that the signal light was turned on. We think that finding was necessarily included in the required express finding that defendant gave a “ * * * timely, visible warning * * * by exhibiting a signal device in good mechanical condition * * * The turn light would have been neither timely nor visible if it had not been turned on. If plaintiff considered the instruction insufficiently or not clearly hypothesized, he should have offered a clarifying or amplifying instruction. Having not done so, he will not now be heard to complain. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496.

Further contending that Instruction No. 5 is erroneous, plaintiff insists that there is no evidence to support the permitted finding that when defendant began to make a left turn, plaintiff’s automobile was not within or so close to the intersection as to constitute an immediate hazard. This contention is not consistent with or supported by the facts. Defendant testified that when he was already in the intersection and within 2 feet of its center, plaintiff’s car was 75 feet away from its east boundary. We find no error in Instruction No. 5.

Plaintiff next contends that the trial court erred in giving defendant’s Instruction No. 6, which submitted, as a defense, the issue of plaintiff’s contributory negligence in failing to keep a lookout ahead. Plaintiff makes this contention on grounds that were not the subject of objection either at the trial or in the motion for a new trial, and which are asserted for the first time on this appeal. Therefore, we do not consider the point.

Plaintiff’s next assignment is that the giving of defendant’s burden of proof instruction (No. 8) was error “because the instruction is argumentative, repetitious, confusing, misleading, unfair comment and amounts to a lecture to the jury.” The instruction is conventional in form and substance. In text it is almost identical to a burden of proof instruction which was considered in Byrd v. McGinnis, Mo.Sup., 299 S.W.2d 455, and held not erroneous. In our opinion Instruction No. 8 is not of undue length and does not possess the infirmities charged against it. Cases cited by plaintiff on this point do not support his contention. We consider it to be without merit.

Plaintiff’s final point is that the trial court erred in giving defendant’s Instruction No. 9. The substance of the instruction is that the mere fact plaintiff has brought suit is no evidence of negligence on the part of defendant resulting in plaintiff’s injury; that negligence is not presumed in law but must be proven; that a verdict cannot be based on guesswork and speculation; and, that unless the jury can find that defendant was guilty of negligence proximately causing injury to plaintiff without resorting to guesswork and speculation outside the scope of the evidence, plaintiff is not entitled to recover. Plaintiff concedes that this is a cautionary instruction, “such as should be given with caution”, but complains, without citing authority, that it appears to put the court “unfairly” on the side of defendant. The instruction correctly states the law. Almost identical instructions were approved by the Supreme Court in Le Grand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706 and Gardner v. Turk, 343 Mo. 899, 123 S.W. 2d 158. The giving or refusal of cautionary instructions is largely within the discretion of the trial court. In this case the trial court has endorsed the propriety of Instruction No. 9 by denying plaintiff’s motion for a new trial. We will not disturb that court’s action.

The judgment is affirmed.

All concur.

      . Now Civil Rule 83.05, V.A.M.R.


author: PER CURIAM.

text:
    D. C. HALL TRANSPORT, INC., et al., Petitioners, v. J. L. HARD, Respondent.
    No. A-8990.
    Supreme Court of Texas.
    June 6, 1962.
    Rawlings, Sayers, Scurlock & Eidson, Fort Worth, for petitioners.
    Barwise, Magoffin & Carrigan, and Til-ley, Hyder & Law, Fort Worth, for respondent.
   PER CURIAM.

As to those fact issues discussed by the Court of Civil Appeals which are exclusively within its jurisdiction, such as the contention that the trial court’s findings are against the overwhelming preponderance of the evidence, this Court should not and does not express an opinion. We are, however, in agreement with and accordingly approve the decisions of law announced by the Court of Civil Appeals in its opinion. This Court may not refuse a writ of error outright unless the opinion of the lower appellate court be one concerned exclusively with points over which this Court has jurisdiction. In other words, the opinion must be one which could properly be written or adopted by this Court. As the opinion of the Court of Civil Appeals (355 S.W.2d 257) discusses fact issues not within this Court’s jurisdiction, the application for writ of error is refused, no reversible error. Article 5, §§ 3 and 6, Constitution of Texas, Vernon’s Ann.St., Rule 483, Texas Rules of Civil Procedure, Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815.


author: DICE, Commissioner. WOODLEY, Presiding Judge.

text:
    Elton Carl PODANY, Appellant, v. The STATE of Texas, Appellee.
    No. 34420.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    Rehearing Denied May 16, 1962.
    Second Motion for Rehearing Denied June 20, 1962.
    Charles William Tessmer, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Gene Ater, John F. Simmons, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted under Art. 6687b, Vernon’s Ann.Civ.St. of operating a motor vehicle upon a public highway while his operator’s license was suspended and assessed punishment at a fine of $250 and confinement in jail for 6 months.

The sufficiency of the evidence to sustain the conviction is challenged.

While the evidence shows that on the day appellant drove an automobile upon a public highway he possessed a Texas Commercial Operator’s License which had been ordered suspended for six months by the Department of Public Safety for certain moving traffic violations there was no proof that he had received notice of the order of suspension.

Art. 6687b, Sec. 26, supra, provides “The Department, upon suspending or revoking a license, shall require that such license shall he surrendered to and be retained by the Department except that at the end of the period of suspension of such license, the license so surrendered shall be returned to the licensee.”

Sec. 22(c) of the same article provides that any licensee who is not willing and does not consent to abide by the final ruling or decision of the Department suspending his license may “within thirty (30) days after the date of receipt of notice of the suspension of such license from the Department,” bring suit in the County Court, or County Court at law of his residence, to vacate and set aside the final ruling and decision suspending the license and “if such licensee has not filed suit within thirty (30) days after the date of notice by registered mail of the suspension of such license, as provided herein, then the final ruling of the Department suspending such license shall become final.”

The only evidence of notice to appellant of the suspension of his license was that a letter containing the order of suspension was addressed to him and sent to the address shown on his operator’s license by certified mail but that the same was returned to the Department unclaimed.

With respect to notice under the statute, Sec. 22 of Art. 6687b, supra, provides: “Notice by registered mail to address shown on the license of licensee shall constitute service for the purpose of this Section.”

Art. 29c, V.A.C.S. subsequently enacted, authorizes the use of certified mail in lieu of registered mail “provided receipt for such certified mail is validated by official post office postmark.”

In the recent case of Smith v. State, Tex.Cir.App., 324 S.W.2d 207, in reversing a conviction under Art. 6687b, supra, because notice of hearing and suspension had not been given to the accused it was pointed out that notice by certified mail under Art. 29c, supra, requires that ‘receipt for such certified mail is validated by official post office postmark.”

The mailing of the letter addressed to appellant and sent by certified mail was insufficient as a notice to him of the suspension of his operator’s license, in the absence of a receipt therefor validated by an official post office postmark.

The evidence is undisputed that appellant had not received notice of the order suspending his operator’s license, and under such record the conviction cannot stand.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Our holding that the state did not sufficiently prove notice of suspension of appellant’s commercial operator’s license is questioned in the State’s motion for rehearing argued and briefed by the District Attorney, and in Amicus Curiae Brief filed with leave of the Court by the Attorney General of Texas at the request of the Texas Department of Public Safety, because of the importance of the question involved in the administration of the Drivers License Law.

The argument is advanced that under the statute no notice of such suspension is required to make it effective; that if the Department orders such suspension it becomes effective immediately until such time expires or until the suspension is abated by the filing of an appeal, and if the licensee operates a motor vehicle on the highways of this state during the time the suspension is in effect the offense is complete, regardless of whether he had notice, either actual or constructive, of the suspension.

We are unable to agree with such contention.

As pointed out in our opinion on original submission Sec. 22(c) of Art. 6687b, Vernon’s Ann.Civ.St., authorizes the licensee who is not willing and does not consent to abide by the ruling or decision of the department suspending his license to file suit to vacate and set aside such decision. The 30 days allowed for the filing of such a suit does not begin to run until “the date of receipt of notice of the suspension of such license from the Department”, and if the licensee has not filed suit within 30 days “after the date of notice by registered mail of the suspension of such license, as provided herein, then the final ruling of the Department suspending such license shall become final.”

These references to notice are in addition to the requirement of Sec. 26 of the statute that the Department shall require that the license suspended be surrendered.

The further contention advanced by brief and oral argument is that “receipt for such certified mail”, as used in Art. 29c, V.A.C.S., refers to a post office receipt showing mailing, not receipt showing that such mail had been delivered.

It is argued that the letter enclosing the order suspending appellant’s license, sent to his address by certified mail with return receipt requested, though not delivered, constituted service, the envelope bearing official post office postmark, and there being attached thereto “certification receipt”.

The Legislature has not provided simply that certified mail may be substituted where service or notice by registered mail is authorized, as has the Supreme Court in Rule 21b, Rules of Civil Procedure.

Art. 29c, V.A.C.S., provides for the use of certified mail “with return receipt requested” in lieu of registered mail, and provides that the mailing of any required notice by such certified mail shall have the same legal effect as if sent by registered mail, provided receipt for such certified mail is validated by official post office postmark.

We understand that the receipt referred to and required is the return receipt to be signed upon delivery of the certified mail. To hold otherwise would be to disregard the proviso.

The state’s evidence showing that there was no notice by registered mail, and that the certified mail was not received but returned with the unsigned requested receipt attached thereto, and there being no evidence that appellant had notice otherwise that the Department of Public Safety had suspended his license, the conviction cannot stand.

The state’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Clarence GOODRUM, Appellant, v. The STATE of Texas, Appellee.
    No. 34601.
    Court of Criminal Appeals of Texas.
    May 9, 1962.
    Rehearing Denied June 20, 1962.

      Howard O. Lake, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Erwin G. Ernst, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault, with a prior conviction for a felony of like char.acter alleged for enhancement; the punishment, life imprisonment.

Appellant’s identity as being the same person who had been previously convicted of the offense of burglary in Cause No. 9042 in Criminal District Court No. 4 of Harris County was established.

John Kilgore, 16 years of age, testified that on the date in question he was working alone in the L. & J. Grocery; that appellant and another individual entered the store and asked for change for a dollar bill in •order to make a telephone call; that they made the call from a pay phone in the store ■and departed; that appellant soon returned alone and asked to see the watches that were in a glass case on the counter; that while he was producing the watches appellant .announced that it was a holdup and demanded all the money in the cash register; that appellant kept one hand thrust in his pocket; that he was in fear at the time he ■gave appellant some $70.00 from the cash register; that appellant forced him to lie •down on the floor, face down; and that appellant stepped over him to get the watches .and other merchandise.

He further testified that after appellant left the store he called the owner of the store and the sheriff’s department and that he later identified appellant in a police line-up.

Officers from the sheriff’s department testified that after obtaining descriptions from Kilgore they arrested three individuals in an automobile shortly after the holdup, that one of the three was identified as appellant’s companion by Kilgore, and that merchandise stolen from the store was found in his possession. The officers further testified that after conversing with the three individuals under arrest and, acting upon information given by them, they went to appellant’s house and found him standing in a closet of a rear bedroom behind the clothes.

Appellant did not testify or offer any evidence in his own behalf, and his sole contention on appeal is that the evidence is insufficient to prove ownership or the right of possession of the property taken in any person.

In Barfield v. State, 137 Tex.Cr.R. 256, 129 S.W.2d 310, 123 A.L.R. 1093, this Court stated the rule regarding possession as used in the definition of robbery as follows:

“In robbery the property must be taken by force and violence not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. The very fact that property is taken from a person by the use of firearms, violence or threatened violence, is, within itself, sufficient to show that the person from whom it was taken was in possession thereof. There would be no occasion to resort to the use of violence directed to a person who is not in possession of property; nor could property be acquired by the means stated from a person who did not have possession thereof.” (Emphasis supplied)

In motion for rehearing, Judge Hawkins stated:

“ * * * the term ‘possession’ as used in the definition of robbery has a somewhat broader meaning than as restricted in the statute relating to theft. * * * As early as 1867 it appears that the court sensed a distinction in the character of possession in robbery and theft. In Smedley v. State, 30 Tex. 214, 215, we find the following expression. ‘It should clearly appear from the indictment that the article taken belongs to some person other than the accused, or that the party deprived of the possession through violence is entitled to such possession as against the defendant.1 ” (Emphasis supplied.)

In the case at bar, Kilgore stated that he was working at the L. & J. Grocery, and the facts show that he was the sole occupant of the store and was in charge of the premises at the time of the robbery. His possession of the property as an employee is sufficient trader our robbery statute.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Marcilino N. BRITO.
    No. 34679.
    Court of Criminal Appeals of Texas.
    June 6, 1962.
    Leonard Howell, Midland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding by the Judge of the 142nd Judicial District Court of Midland County, remanding appellant to custody for extradition to the State of Nebraska.

The executive warrant issued by the Governor of Texas, directing the arrest of Marcilino N. Brito and his delivery to the agent of the State of Nebraska for return to that state, was introduced in evidence.

Being regular on its face, the warrant made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Green, Tex.Cr.App., 340 S.W.2d 821, and Ex parte Thompson, Tex.Cr.App., 351 S.W.2d 890.

The executive warrant and other papers introduced in evidence show that appellant stands charged in the State of Nebraska with the crime of failure to support minor children.

Appellant insists that he should not be extradited, because the 142nd District Court of Midland County had, at the instigation of the State of Nebraska, exercised jurisdiction over him under the Uniform Reciprocal Enforcement of Support Act, Art. 2328b-l et seq. Vernon’s R.C. S., prior to institution of the extradition proceedings.

In support of his contention, appellant relies upon the provisions of Sec. 6 of the act, which has been adopted in both this state and in the State of Nebraska. The section reads:

“Any obligor contemplated by Section 5, who submits to the jurisdiction of the court of such other state and complies with the court’s order of support, shall be relieved of extradition for desertion or non-support entered in the courts of this State during the period of such compliance.”

While the record reflects that prior to the extradition proceedings a petition had been filed in the 142nd District Court of Midland County against appellant under the Uniform Support Act, there is no showing that appellant had submitted to the jurisdiction of the court and complied with any order of support. On the contrary, the record shows that appellant, although duly served with citation, had filed no answer in the cause and no order for support had been entered by the court. Under such record, the provisions of Sec. 6 were not applicable.

Appellant further urges a fatal variance in the allegations of the requisition papers because the complaints annexed to the application for requisition alleged that he was in the State of Nebraska when the offense was committed and the application alleged that he committed the offense in Texas, resulting in a crime in the State of Nebraska.

Section 5 of the Uniform Reciprocal Enforcement of Support Act, Art. 2328b, supra, provides in part as follows:

“The Governor of this State * * * (2) may surrender on demand by the Governor of any other state any person found in this State who is charged in such other state with the crime of failing to provide for the support of a person in such other state. The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom. Neither the demand, the oath nor any proceedings for extradition pursuant to this Section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or the other state.” [Emphasis supplied.]

In Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712, it was held that under such provision of the Support Act the Governor of this state may surrender a person charged in the demanding state with the crime of failing to provide for support, although the accused was not in the demanding state at the time of commission of the crime.

Appellant’s contention that the variance is fatal to his extradition to the State of Nebraska is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Alfred TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 34602.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Rehearing Denied June 20, 1962.
    Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Robert Edward Delany, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 725b, Vernon’s Ann.P.C., for the unlawful possession of a narcotic drug, with punishment assessed at life imprisonment, enhanced under Art. 63, V.A.P.C., by reason of two prior convictions for felony offenses less than capital.

The indictment charged that the appellant did unlawfully possess a narcotic drug,, to-wit: dolophine.

The state’s evidence shows that on April 7, 1961, the date alleged in the indictment, Federal Narcotic Agent John E. Sherman, upon being informed that narcotics could be purchased at a certain address in the city of Houston, drove to the corner of Rosalie and Dowling Streets in company with an informer. When they arrived, they observed the appellant and a companion, Helen Jackson, seated in an automobile. The informer proceeded to the automobile and after talking to appellant and his companion, returned to the agent’s car. Agent Sherman then gave $30 to the informer, who returned to where the couple were seated and handed the money to appellant’s companion, Helen Jackson. Agent Sherman then proceeded to drive to various places in the city upon the instructions of appellant and his companion. While he was driving, appellant told his companion, Helen Jackson, to give him the money because his connection “Roy” would only sell to him. After continuing to drive, Agent Sherman — upon appellant’s instructions — stopped the car and “honked” the horn. Thereupon, a person identified as “Roy” came to the car and after talking to appellant and receiving some money from him gave appellant five capsules. Appellant then directed Agent Sherman to drive to a “cool” place, by which he meant a secluded place. When they arrived, appellant gave Agent Sherman a capsule and $14 in money and also gave a capsule to the informer. After delivering the capsules, appellant, the informer, and Helen Jackson proceeded to take a “fix” with some of the capsules, by an injection into their arms with an eye dropper and syringe.

It was shown that the contents of the capsule delivered to Agent Sherman by the appellant were analyzed by Chemist Kenneth Anderson of the Alcohol and Tobacco Division of the United States Treasury Department at Dallas, Texas. Chemist Anderson testified that the results of the various tests run upon the contents of the capsule showed that the substance was 37.7 per cent dolophine, a narcotic drug. He testified that dolophine was a registered trade name of Eli Lilly Company but that he could not say that the substance contained in the capsule in question was in fact made by that company. He further testified that the chemical formula for dolophine was 4-4-Diphenyl-6 — Dimenthylamino-Heptanone- 3, and that dolophine was indistinguishable from amidone and methadone hydrochloride, both of which are narcotic drugs and have the same formula.

Proof was made by the state that appellant had been twice previously convicted in the United States District Court for the Southern District of Texas, Houston Division, of two noncapital felony offenses. The first conviction on October 1, 1951, was for the offense of unlawfully acquiring marihuana and the second conviction on April 22, 1953, was for the offense of unlawfully forging and passing a United States Treasurer’s check.

Appellant did not testify or offer any evidence in his behalf.

Appellant urges as unconstitutional that portion of section 1, subdivision (14) of Art. 725b, V.A.P.C., defining a narcotic drug, which reads: “ * * * and opiates which shall mean any drug found to be an addiction-forming or addiction-sustaining liability similar to opium or cocaine, which are now or may be added subsequently, as restricted preparations under the provisions of the Federal Narcotic Laws” on the ground that such is an unwarranted delegation of legislative power to the Federal1 government.

We need not pass upon the constitutionality of this portion of the statute, as appellant’s conviction does not rest upon the provisions under attack but upon other portions of the act defining a narcotic drug.

It is a rule of statutory construction that if a proper disposition of the case can be made without considering a constitutional issue the courts will not pass upon the constitutionality of a statute. See 12 Tex.Jur., 2d, Constitutional Law, par. 32, page 377, and cases there cited.

Appellant insists that the indictment is fatally defective because it does not allege an offense under the law.

It is first contended that the allegation in the indictment that appellant did unlawfully possess “a narcotic drug, to-wit: dolophine” did not charge an offense, because, first, dolophine is not one of the narcotic drugs named in the act, and second, not being named in the act, such allegation was insufficient to give notice of the offense with which he was charged.

Art. 725b, Sec. 1(14), which defines a narcotic drug, reads, in part:

“ ‘Narcotic drugs’ means coca leaves, opium, and cannabis, amidone, and isonipecaine, every substance neither chemically nor physically distinguishable from them * *

While dolophine is not named in the statutory definition of a narcotic drug, the proof shows that it is a narcotic drug and registered under such trade name. The proof further shows that dolophine is of the same chemical formula and substance as “amidone,” named in the statute. We are unable to agree that the description of the narcotic drug by its trade name, “dolo-phine,” was insufficient to charge an offense under the statute and to apprise the appellant of the offense charged against him.

Appellant further contends that the court erred in overruling his motion to quash the indictment on the ground that the alleged prior conviction for unlawfully acquiring marihuana without having paid the transfer tax, being for a violation of a federal regulatory statute, could not be used, under Art. 63, supra, to enhance a conviction for violation of the act. Art. 725b, supra, a prohibitory statute.

Recently, in Lopez v. State, Tex.Cr.App., 352 S.W.2d 747, we overruled a similar contention in holding that a prior federal narcotic conviction for a like offense could be used under Art. 63, supra, to enhance punishment for a violation of Art. 725b, supra. We adhere to such ruling, and overrule appellant’s contention.

We overrule appellant’s remaining contention that the evidence is insufficient to sustain the conviction because the state failed to prove appellant possessed “dolo-phine,” which was a descriptive averment in the indictment. While the chemist testified that he could not swear that the substance was manufactured by the Eli Lilly Company, he testified positively that it was of the same chemical formula as amidone, which is sufficient, under Sec. 1(14) of the statute.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Charles M. HARRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34644.
    Court of Criminal Appeals of Texas.
    June 6, 1962.

      Sam Hoover, Houston, W. E. Martin, Houston, of counsel, on appeal only, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Lee P. Ward, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape of a female under the age of 18; the punishment, life.

Prosecutrix, a sixteen-year-old Houston girl, testified that she was introduced to appellant by Jerry Daniel, whom she had known for a number of years, and that Jerry accompanied her and appellant on the two dates she had with appellant. She stated that on the second evening she complained of a stomach ache and appellant gave her a small yellow pill and told her that it was a tranquilizer, that soon thereafter she began to feel “kinda drunk or dizzy” and the last thing she remembered was going to a girl’s house in search of a date for Jerry and returning to the automobile occupied by Jerry and appellant. Finally, she woke up in the hospital and felt pain in her private parts, and remained in bed for some ten days.

Jerry Daniel, a sixteen-year-old boy, testified for the State and recounted how he had introduced appellant to prosecutrix and accompanied them on their two dates. At the time of this trial, he was serving a term at the State Training School for having raped prosecutrix on the same night as is charged in the instant indictment. On the first night, he had a girl companion of his own but on the second night, being unable to secure any company, he, appellant and prosecutrix proceeded in his automobile to a secluded spot in the country. He testified that appellant, who was in the back seat with prosecutrix, took off his pants; that he saw prosecutrix naked, lying on the back seat with appellant on top of her, where he remained for some twenty minutes, moving up and down; and that he heard prosecutrix utter the words “don’t” and “stop” during this period. After this, appellant asked him if he would like to get in the back seat and take his place, which he did, had an act of intercourse with pros-ecutrix, and was followed by appellant who got on top of her again. He stated that each time after appellant had been on top of the girl he told him that he had had an act of intercourse with her. He testified that throughout all the acts of intercourse prosecutrix only mumbled, that he found her private parts to be loose and slippery as the result of her bleeding, and that he finally ascertained she was unconscious. After leaving the place where they had been parked, the three proceeded to a cafe where he and appellant attempted to revive her with coffee and where he saw appellant with a cloth in his hands and his pants open in front. Enroute, appellant told him that he and the prosecutrix had been taking pills, showed him the box, and instructed him to stop the automobile so that he might hide them. When the coffee failed to revive prosecutrix, they took her to a funeral home where they secured some ammonia inhalants and the aid of attendants, but all efforts to revive prosecutrix failed, and they were advised to take her to a hospital.

Two attendants at the funeral home testified that appellant and Jerry brought pros-ecutrix to the rear of their place of employment on the night in question, that she was unconscious, and that blood was exuding from her privates. One of the attendants stated that appellant told him that he and Jerry “had been with the girl,” and they both testified that when they suggested she be taken to a hospital, after their efforts to revive her had proved futile, appellant demurred, stating that if they did so an investigation would follow and he would he charged with statutory rape and would probably he sent back to prison.

Four doctors testified concerning prosecu-trix’s unconscious condition as the result of having taken barbiturates and as to the tear in her vaginal tract, which reached as far as the anus, and stated that she had bled profusely therefrom.

Chemist and toxicologist McDonald testified that he was called into the investigation of this case and examined appellant’s clothes and person, that he found in the fly of his undershorts a pubic hair which was identical in all respects with a pubic hair which had been taken from the vaginal area of prosecutrix and was different from appellant’s pubic hair.

Appellant’s confession, introduced in evidence without objection, recites the full events of the evening, including the statement “ * * * I got on top of her (prosecutrix) and had intercourse with her for about 15 or 20 minutes but did not reach a climax.”

Appellant, testifying in his own behalf, admitted lying on top of prosecutrix in the hack seat of the automobile while she was undressed and endeavoring to have an act of intercourse with her, but denied that he ever had an erection or that he penetrated her sexual organ, though he admitted that he placed his privates against her private parts and attempted to effect entry. He stated that the officers had not accurately transcribed what he had told them and that he signed the confession without reading it. He admitted, however, that he had told one of the employees of the funeral home that he was afraid he would be filed on for statutory rape.

His principal contention on appeal is that penetration was not shown except by his confession. He points out that Jerry admitted on cross-examination that he merely saw appellant on top of prosecu-trix and did not witness any actual penetration.

Great stress is placed on the fact that Jerry’s underclothes were shown to be bloody while those of appellant were not. We observe that appellant was shown to have taken off his trousers before getting on top of prosecutrix, and the witness did not know whether or not he also removed his underclothes. Jerry stated that he removed none of his clothes but opened the fly of his trousers prior to his act of intercourse.

We have concluded that the State was not, as appellant asserts, without proof of penetration other than from his confession.

The trial was conducted, without objection of appellant, upon the theory that Jerry was not an accomplice, and that question is not before us for review. However, the rule in this Court has been well established that the testimony of an accomplice witness together with the confession of the accused is sufficient to establish the corpus delicti. Scott v. State, Tex.Cr.App., 318 S.W.2d 650, and cases there cited.

In Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381, where one of the complaints was that the State had failed to prove the corpus delicti, we said, “We have concluded that this is a case where the facts are in such juxtaposition one to another that only one logical conclusion may be drawn therefrom.” We have carefully analyzed the facts before us here and have concluded that they are of such a nature that the mind is led intuitively, or by a conscious process of reasoning, toward the conviction that from the facts proven penetration may be inferred. See Thomas v. State, 108 Tex.Cr.R. 131, 299 S.W. 408.

During the course of the examination of the two funeral home employees, they gave some testimony which was later by the court ascertained to have been hearsay. As soon as such fact was brought home to the trial court, he withdrew such testimony from the jury’s consideration. We fail to find reversible error reflected by the court’s refusal to grant a mistrial.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Paul Glen PERDUE, Appellant, v. The STATE of Texas, Appellee.
    No. 34614.
    Court of Criminal Appeals of Texas.
    June 6, 1962.
    C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 6 years.

The state relied upon circumstantial evidence. One circumstance was that tracks impressed on the floor of the burglarized premises were, in size and description, such as would be made by a pair of shoes which appellant said he owned and which were introduced in evidence.

Appellant’s oral statement that he owned such a pair of shoes was made while he was in jail. The sheriff was looking for shoes that made the tracks in the burglarized building.

Art. 727, Vernon’s Ann.C.C.P. prohibits the use of the defendant’s oral confession made while in jail, or in custody of an officer, “unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

Appellant’s oral statement and the shoes were admitted in evidence, over proper objection, as being admissible under the quoted exception.

The fact that the shoes which appellant said he owned were produced and turned over to the sheriff did not conduce to establish his guilt in the commission of the burglary. At most, the production of the shoes corroborated appellant’s statement that he owned them. Appellant made no admission that he wore the shoes, or that he committed the burglary. No individual distinguishing marks were found on the shoe's from which it could be determined that the tracks were made by them, and not by other shoes of the same size and design made by the same manufacturer.

That the tracks in the building were made by such a pair of shoes was known to the officers before appellant’s statement was made.

The evidence relating to appellant’s oral statement made while under arrest could have been used by the jury to his injury, and the admission thereof was in violation of the statute; was prejudicial and calls for reversal. Shelton v. State, 168 Tex.Cr. R. 432, 328 S.W.2d 445, and cases cited.

The judgment is reversed and the cause remanded.


text:
    Jeff Davis HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34627.
    Court of Criminal Appeals of Texas.
    June 6, 1962.
    J. W. Reid (on appeal), Abilene, Clay Coggins, Roby, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunken driving; the punishment, thirty days in jail and a fine of $100.

In view of our disposition of the case, a recitation of the facts is unnecessary.

Officer McCormick, while testifying on direct examination for the state, referred to and testified from a report which he had made in the case

At the conclusion of the state’s examination, appellant’s counsel requested that he be permitted to inspect and use the instrument for the purpose of cross-examination.

Counsel’s request was by the court refused and, under the record presented, such refusal constitutes reversible error.

It is a well settled rule in this state that where a witness, while testifying, uses a writing to refresh his memory or testifies from the writing, without any independent recollection of the facts, the defendant or his attorney has a right to inspect the statement for the purpose of cross-examination. Long v. State, Tex.Cr.App., 340 S.W.2d 58; Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166; Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920, 22 L.R.A., N.S., 706; McCormick and Ray, Texas Law of Evidence, 2d Ed., p. 449, Sec. 553; 44 Tex.Jur., p. 1140, Sec. 144; and 1 Branch’s Ann.P.C., 2d Ed., page 189, Sec. 182.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Earnest Leroy BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 34516.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Rehearing Denied June 20, 1962.
    E. B. Votaw (on appeal), Vidor, John O. Young, Orange, for appellant.
    James A. Morris, Dist. Atty., Roy Win-gate, Asst. Dist. Atty., Orange, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the felony offense of driving while intoxicated; the punishment, six months in jail and a fine of $500.

Proof was offered of the prior conviction as alleged, and that the appellant was the same person so convicted.

The only dispute on any material issue was whether the appellant was driving his automobile at the time and place in question.

Officer Hudson testified that when he arrived at the scene of an automobile collision, about two or three minutes after he had received a radio dispatch to investigate an accident, he found that two cars “had both started backing out and they backed into each other in the middle of Green Avenue”, a public street, and “They were across the center stripe”; that from his investigation he was able to determine that “the cars were still in the same position as where the accident happened”, and that prior to the accident ‘‘one car was parked on the north side of Green and the other was parked on the south side”. Officer Hudson further testified that, in talking with the appellant immediately after he arrived at the scene, he “asked who was driving the cars and Mrs. Peveto said she was driving one and he (appellant) said he was driving the other one”. When asked who Mrs. Peveto struck, Officer Hudson replied: “She said he hit her and he (appellant) said she hit him.”

The appellant called Mrs. Peveto who testified that when she backed her car out from the south curb she backed into appellant’s car which was located where cars are not normally parked, and that the appellant was alone in his car at the time. She further testified that she told the officers that “he must have backed into me”.

Testifying in his own behalf, the appellant stated that because of cars already parked at the curb he parked his car a short distance from the curb, entered the lounge, drank a few beers and later returned and sat on the right hand side of his car; that while waiting for a friend to come and take him home Mrs. Peveto backed her car, which had been parked across the street, into his. He denied that he backed his car into Mrs. Peveto’s car or that she backed her car into his in the middle of the street.

It is concluded that the evidence is sufficient to sustain the jury’s finding that the appellant drove an automobile upon a public street while intoxicated.

Appellant contends that the trial court erred in refusing to exclude from the record the testimony of Officer Hudson on direct examination that Mrs. Peveto told him she was driving one of the cars and that appellant told him he was driving the other, over his objection that it was not a part of the res gestae.

In the absence of an objection that appellant was under arrest at the time, and in view of the similar testimony of Officer Hudson during cross-examination that Mrs. Peveto said appellant hit her and appellant said she hit him, which was admitted without objection, no error is shown.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Martin WEST, Appellant, v. The STATE of Texas, Appellee.
    No. 34655.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    John Wright, Grand Prairie, for appellant.
    Henry Wade, Criminal Dist. Atty., Emmett Colvin, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for speeding; the punishment, a fine of $105.

It affirmatively appears from the record that the trial in this case was had before a Special County Judge of Dallas County. However, the record fails to show the mode of the selection of the judge trying the case, as prescribed by statute, and it also fails to show that he took the oath of office, as required by Vernon’s Ann.St. Art. 555, C.C.P. 33 Tex.Jur.2d 460, Sec. 85; Baker v. State, 159 Tex.Cr.R. 130, 261 S.W.2d 593; Parish v. State, Tex.Cr.App., 268 S.W.2d 149.

For the reason pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Johnny VAUGHNS, Appellant, v. The STATE of Texas, Appellee.
    No. 34596.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Rehearing Denied June 20, 1962.
    James S. McGrath, Beaumont, for appellant
    James A. Morris, Dist. Atty., Roy Win-gate, Asst. Dist. Atty., Orange, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, two years.

Texas Highway Patrolman Hickman testified that, while on routine patrol at about 6:05 A.M. on the date in question, he observed appellant in front of Haley’s junk yard loading a tire and wheel into his car; that he stopped and questioned him; that appellant claimed he was employed at the junk yard and the tire and wheel belonged to him; that further investigation revealed that appellant had in his possession one Cadillac tire and wheel, two Chevrolet tires and wheels, and certain generators and starters, and, upon checking appellant’s story with the owner of the junk yard, he determined that appellant was not an employee of the yard.

He further testified that at the time he observed appellant there were no other people in view and that he was unable to find any person on the scene or about the scene other than appellant.

Roy Laughlin, deputy sheriff of Orange County, testified that he was called to the junk yard at about 6:30 A.M. on the date in question, that he saw appellant there with officer Hickman, that there was no one working at the junk yard and no one else in the immediate area at that time of morning, and that he took possession of the tires, wheels, generators and starters.

Both officer Hickman and officer Laughlin .testified that, as a result of appellant's later story that he had bought the merchandise in question from an employee of the junk yard just before officer Hickman arrived at the scene, they investigated all the employees of the junk yard but could not find anyone fitting the description given to them by appellant.

. Charles Haley, the owner and operator of the junk yard, testified that the tires, wheels, generators and starters in question belonged to him and that they had a value of $160.00.

Appellant, testifying in his own behalf, stated that on a previous occasion he had stopped at Haley’s junk yard to see about a carburetor, that a person named “Skeeter” sold him a radiator, that on the date of the alleged offense he was passing the junk yard and Skeeter beckoned for him to stop, that Skeeter had the tires, wheels, starters and generators and asked appellant if he could get rid of them, that Skeeter wanted $50.00 for the merchandise but appellant offered him $30.00 and they struck a bargain and Skeeter left, and that officer Hickman arrived on the scene as he was loading the merchandise he had bought from Skeeter. He further testified that he told officers Hickman and Laughlin about buying the merchandise from the person called Skeeter and that he had voluntarily made a written statement concerning this transaction.

At the close of appellant’s testimony, the State introduced into evidence the written statement he had made concerning the purchase of the merchandise.

Appellant contends on appeal that the trial court erred in admitting his written statement into evidence over his objection because he was not warned by the officers in accordance with Article 727, Vernon’s Ann.C.C.P., before making the statement.

Appellant took the witness stand and testified substantially to the same facts contained in the statement, and he cannot now claim to have been injured by the introduction of the statement in evidence. Womble v. State, 165 Tex.Cr.R. 23, 301 S.W.2d 928; White v. State, 150 Tex.Cr.R. 546, 203 S.W. 2d 222; Henderson v. State, 118 Tex.Cr.R. 436, 39 S.W.2d 900; Govance v. State, 109 Tex.Cr.R. 47, 2 S.W.2d 853.

Appellant also contends that the evidence is insufficient to sustain the conviction because the State failed to disprove his exculpatory statement which was introduced into evidence by the State. While it is true that when the State introduces a confession containing exculpatory statements it is ordinarily incumbent upon the court to instruct the jury that the exculpatory statements are to be regarded as true unless disproved, this is not the rule where the accused testifies before the jury in accordance with such exculpatory statements, and his defensive theory is fairly submitted to the jury. Madden v. State, Tex.Cr.App., 344 S.W.2d 690, and Treadway v. State, 150 Tex.Cr.R. 271, 200 S.W.2d 199.

In the case at bar, appellant testified substantially in accordance with his exculpatory statement and made no objections or requests regarding the court’s charge.

Finding no reversible error, the judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Laura S. KIRKLAND, Appellant, v. William A. PITTENGER, Executor, et al., Appellees.
    No. 3996.
    Court of Civil Appeals of Texas. Waco.
    April 19, 1962.
    Rehearing Denied May 10, 1962.
    McNicholas & Schmolder, Dallas, for appellant.
    Hassell & Hassell, W. D. Riley, Jr., Dallas, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment finding legal title to 240 shares of Sharp and Company stock in plaintiffs, and further finding that a certain $6000. debt owing defendant secured by such stock had been paid. Plaintiffs, (the Executor and heirs of the Estate of Burt Pittenger), filed this suit for title to 240 shares of stock, and to declare the indebtedness of $6000. owing by Burt Pittenger to defendant to be paid. Defendant answered that the $6000. debt had not been paid and cross acted for the stock. The stock was issued to Pittenger but was endorsed in blank by him and attached to an informal agreement signed by Pittenger and defendant, which reflected that the stock was security for a $6000. loan from defendant to Pittenger. (Pittenger is dead).

Plaintiffs filed motion for summary judgment asserting as a matter of law that defendant had been paid the $6000. indebtedness owed her by Pittenger; and attached thereto affidavit of O. E. Mitchell which stated that Mitchell knew the parties; that he knew the signatures on the surety agreement to be those of Pittenger and defendant; that he had examined certain checks payable to defendant and signed by deceased Pittenger (which he attached) ; that such checks were cashed by defendant; that such checks added up to $8363.65.

Defendant filed answer to motion for summary judgment, alleging that the $6000. debt was still owing by deceased’s estate; and attached defendant’s affidavit thereto which stated that the $6000. debt was still owing by deceased’s estate; and that the monies paid by defendant were for “services performed.” ,.

In such state of the record the Trial Court entered summary judgment finding that the $6000. debt owing to defendant had been paid, and declaring title to the 240 shares of stock in plaintiffs.

It is undisputed that the stock certificate was signed in blank, as security for $6000. loaned to deceased by defendant. It is undisputed that defendant received some $8400. from the deceased subsequent to making the loan. Defendant’s affidavit is that the $6000. is still owing, and that the monies paid her by deceased were for “services performed”.

We think the foregoing a fact question which cannot be resolved by summary judgment, and upon which defendant is entitled to go to the trier of fact. As a matter of fact, plaintiff’s affidavit and motion does not say the $8400. paid by deceased to defendant was in repayment of the $6000. loan. Showing that deceased paid defendant amounts in excess of the $6000. loan cannot constitute a basis for summary judgment in the face of defendant’s affidavit that the $6000. debt here involved is still owing, and that the monies that were paid were for services performed. This simply makes for a fact issue the trier of fact must resolve. See: Gulbenkian y. Penn, 151 Tex. 412, 252 S.W.2d 929; Flowers v. Central Power & Light Co., (n. r. e.) Tex.Civ.App., 314 S.W. 2d 373.

'The judgment appealed from is reversed and the cause remanded for trial upon its merits.

Reversed and remanded.


author: HIGHTOWER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Ike GLENN, Jr., Appellee.
    No. 6488.
    Court of Civil Appeals of Texas. Beaumont.
    May 10, 1962.
    Rehearing Denied June 6, 1962.

      Baker, Botts, Andrews & Shepherd, Houston, for appellant.
    J. C. Zbranek, Liberty, for appellee.
   HIGHTOWER, Chief Justice.

Plaintiff brought three suits under the Workmen’s Compensation Act based upon three separate injuries, and three separate awards of the Industrial Accident Board. Plaintiff had the same employer in each instance, and this employer had the same insurance carrier at the time of all three injuries. By agreement all three suits were consolidated and tried as one. The third injury was abandoned during the course of the trial and no issues in reference to it were submitted to the jury.

The jury found that plaintiff was totally disabled for 150 weeks and 75 percent permanently partially disabled as a result of the first injury, which occurred February 15, 1957. The jury also found plaintiff was totally disabled for 78 weeks, and permanently partially disabled with an $88.00 per week difference between his average weekly earnings before his second injury, and his wage earning capacity during his incapacity, as a result of his second injury, which occurred June 30, 1958. Both injuries were compensable general injuries. The trial court entered its judgment for plaintiff for compensation for the second injury only and gave defendant credit for all payments made after the date of the second injury.

Defendant first complains of the action of the trial court in disregarding certain findings of the jury in response to Issues 25, 26, 27, and 28. These issues and the answers were as follows :

“SPECIAL ISSUE NO. 25

“Do you find from a preponderance of the evidence that the injuries of February 15, 1957, contributed to the incapacity, if any, suffered by Ike Glenn, Jr. after June 30, 1958?

“ANSWER: Yes.

“SPECIAL ISSUE NO. 26

“From a preponderance of the evidence, what do you find to be the percentage or degree of incapacity which Ike Glenn, Jr. would have sustained as a result of the injury of June 30, 1958, had there been no previous injury?

“ANSWER: None.

“SPECIAL ISSUE NO. 27

“From a preponderance of the evidence, what do you find to be the duration of the incapacity which Ike Glenn, Jr. would have sustained as a result of the injury of June 30, 1958, had there been no previous injury?

“ANSWER: None.

“If you have answered Special Issue No. 13 ‘Yes’, and only in that event, then answer :

“SPECIAL ISSUE NO. 28

“Do you find from a preponderance of the evidence that the plaintiff’s incapacity, if any, since June 30, 1958, would not have resulted but for the injury on February 15, 1957?

“ANSWER: Yes.”

Section 12c of Article 8306, Vernon’s Ann.Civ.St., was intended to afford an insurance carrier the protection from having to pay an insured party for incapacity resulting from a prior injury, for which it was not liable. The jury found the second injury was the producing cause of total temporary incapacity for 78 weeks and permanent partial incapacity and the court entered judgment for this recovery only. Even though the jury also found the plaintiff sustained certain incapacity as the result of the first injury, the trial court in its judgment allowed no recovery for the first injury. The defendant could not be harmed under these circumstances, as there could be no double recovery or overlapping of the amount the plaintiff was awarded by the court in its judgment.

We also feel the action of the trial court in disregarding Special Issues 25, 26, 27, and 28 was not error because these issues were not properly submitted in order to arrive at ultimate issues upon which the defendant could base a defense under sec. 12c of Art; 8306. Even though Special Issue 25 inquired of the jury as to whether the first injury contributed to the plaintiff’s incapacity, no issue was submitted to determine the extent of the contribution. This extent could have been determined by asking the jury what percent of plaintiff’s present incapacity, if any, resulted solely from the second injury, or by asking the jury what percent of the plaintiff’s present incapacity, if any, resulted solely from the first injury. We hold that asking the jury what percent of incapacity plaintiff would suffer as a result of the second injury had there been no previous injury is not a proper issue.

The way these issues were framed the plaintiff was in a trap from which he could not extricate himself. The first injury was to his right arm and other parts of his body. • The second injury occurred when plaintiff was lifting a heavy weight and the same arm gave way, resulting in further injury to plaintiff’s arm and to his back. No one could argue that the plaintiff would not have been injured the second time had there been no previous injury. That is the very logic argued by the attorney for defendant on these issues, as follows :

“Special Issue No. 26 asks you, what do you find to be the percent or degree of incapacity which Ike would have suffered .as a result of the accident of June .30 had there been no previous injury. Well, now, let’s think back a minute to how that June 30 injury happened according to Ike, which is the only testimony on it we have got. He says he was lifting up on something — ■ I don’t remember anything about 2 or 3 hundred pounds, I just remember it was a gin pole, said he was lifting on something and arm gave out and he twisted his back a little bit. Now, that wouldn’t have happened at all if it hadn’t have been for the February 15 accident.”

The jury must find that plaintiff, under these circumstances, would have suffered no incapacity had there been no previous injury, but this was not a finding as to the percentage of disability plaintiff was suffering solely as a result of the second injury. Federal Underwriters Exchange v. Tubbe, Tex.Civ.App., 193 S.W.2d 563.

By reason of our foregoing conclusions, appellant’s fifth point complaining of the failure of the trial court to give it credit for 81 weeks of compensation it had previously paid appellee by reason of the first injury is also overruled.

By its third point of error appellant complains of the failure of the trial court to declare a mistrial. It contends that in his closing argument appellee’s counsel informed the jury that the effect of an affirmative answer to Special Issue No. 30 would deprive appellee of compensation benefits. Special Issue No. 30, and the answer thereto, reads:

“Do you find from a preponderance of the evidence that on and after a certain date the incapacity resulting from the injuries, if any, sustained on February 15, 1957, or the effects thereof, and the incapacity resulting from the injuries, if any, sustained on June 30,1958, or the effects thereof, are confined to the Plaintiff’s arm?
“To which issue, the jury answered ’No’.”

In his final argument concerning this issue, counsel for appellant sought to influence the jury to find that the incapacity of the injury was confined solely to the arm, and, in effect, urged that appellant was willing to pay to such extent. Subsequently, in the closing argument appellee made the following argument:

“ * * * Finis says [counsel for appellant] ‘Oh, we want to pay for that arm.’ Special Issue No. 30, and when he read it, he didn’t like it like it’s submitted, so please read it carefully. It says, ‘Do you find that the incapacity resulting from the injury, if any, or the effects thereof, if it’s limited to the arm — ’ That’s the thing, that’s the coconut here, my friends. They want to pay him for that arm because they can wash him out that way. * * * They don’t want to consider- — -they don’t want to pay him for the effects of those injuries though and that’s the problem in this case.” (Italics ours)

Objection to such argument was sustained by the court in the following language: “Ladies and Gentlemen: On thé statement of counsel that that would wash Ike out, disregard that for all purposes just as though you never heard it. Forget it.”

Even should we concede that jurors of ordinary intelligence would not have realized the effect of any answer made to such issue, and should we concede that such argument had the effect contended by appellant, we, nevertheless, are of the opinion that the forceful instruction to disregard by the trial judge cured any harm that might have resulted. The language of Justice Norvell is pertinent:

“During the heat of trial extravagant and ill-considered statements are often made. The prejudice resulting from such remarks can generally be removed by an admonition to the jury from the presiding judge and we are unwilling to accede to the proposition that juries pay little or no attention to the instructions of trial judges. We do not regard the improper argument made in this case as being beyond correction by means of a proper instruction.”' Younger Bros. Inc., v. Myers, 159 Tex, 585, 324 S.W.2d 546.

Further complaints of appellant are to the' effect that other remarks of counsel for appellee were such as to cause rendition of an improper judgment. We have carefully considered such remarks in the light of the whole record. We deem them trivial and the complaints in connection therewith untenable.

The judgment is affirmed.