author: DOERNER, Commissioner.

text:
    Verla CHILCUTT, Plaintiff-Appellant, v. Joseph W. BAKER, Defendant-Respondent.
    No. 31741.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.

      Nelson B. Evans, Arnold, for plaintiff-appellant.
    Joseph W. Dierker, John B. Sharpe, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff appeals from an order granting only in part her motion to modify that portion of a divorce decree respecting the custody of the parties’ children. This is the second time the matter has reached this court, Chilcutt v. Baker, Mo.App., 355 S.W. 2d 338.

A brief résumé of the prior events will prove helpful to an understanding of the present proceedings. Plaintiff Verla Chil-cutt, then Verla Baker, filed suit for divorce on February 27, 1960, charging her then husband, defendant Joseph Baker, with general indignities. She prayed for a decree granting her custody of their two children, Ralph, then nine years of age, and Patricia Ann, then three. Defendant filed an answer and cross-bill on October 10, 1960, in which he alleged that plaintiff had deserted him on February IS, 1960 and had associated with another man (her present husband, James Chilcutt) both prior to and after the separation. He also sought custody of the children. Plaintiff did not appear at the trial and her petition was dismissed for failure to prosecute. A stipulation was filed which disposed of the rights of plaintiff in certain real estate for a stipulated sum, and which further provided that defendant, if granted a divorce, should have custody of the two children subject to certain custodial privileges to be granted the plaintiff. However, by its decree of October 31, 1960, the court gave the custody of the children to defendant but made no award of visitation or temporary custodial rights to the plaintiff.

On February 4, 1961, plaintiff filed what was captioned, “Motion to Modify.” In it she alleged that she had signed the stipulation regarding the custody of the children without benefit of counsel; that in doing so she had relied solely on representations made to her by counsel for her then husband, the defendant; and that she had since ascertained that she had not been correctly advised regarding her rights of custody. She prayed that the decree be modified by granting her custody of the children, together with an allowance for their support. At the conclusion of the hearing the trial court denied her motion, and plaintiff appealed. As we pointed out in our former opinion, 355 S.W.2d 338, 339, the allegations in plaintiff’s motion constituted an attack on the validity of the decree itself rather than the averments ordinarily found in the customary motion to modify. But we said', that since the matter had been tried by-both parties upon the theory that it was a. motion to modify we would therefore consider it amended to meet the proof andi theory upon which it was tried. We further stated that the motion had been presented' in such a cursory manner that the facts-necessary for a modification of change of custody had not been as exhaustively-developed as they should have been, and! for that reason the court had properly-denied the transfer of custody to the plaintiff. We held, however, that the evidence was sufficient to call for a modification of a decree so harsh that it made no provision-for visitation privileges. Accordingly, we: reversed the judgment and remanded the-case with directions to modify the decree-so as to give plaintiff certain stated rights of temporary custody. Our opinion was handed down on March 20, 1962.

It appears from the transcript that thereafter, on October 11, 1962, plaintiff filed' what was captioned, “Plaintiff’s First. Amended Motion to Modify” in which she-alleged that since the original decree had' been granted there had been a change of' circumstances in that she had remarrried;. that she and her present husband were able to furnish a suitable and proper home for the children; and that they were desirous, of having custody of and properly raising-them. Plaintiff further alleged that since the denial of her first motion for change-of custody further changes in the circumstances relevant to custody had occurred in that plaintiff and her husband had purchased a seven room house, located' near a school and a church; that plaintiff’smother-in-law was living with plaintiff and her present husband, and would care for the children while both were away at work;, and that both children had expressed a desire to live with plaintiff. The prayer was for absolute custody, with reasonable visitation privileges in favor of defendant, and for support money.,

The transcript further indicates that pursuant to a stipulation signed by the--parties the court on January 16, 1963 sus'tained plaintiff’s motion in part by modifying ■the decree so as to increase the time during which plaintiff was to have temporary ■custody of the children.

Less than five months later, on June 4, 1963, plaintiff filed the motion which gave ■rise to this appeal, terming it, “Plaintiff’s Motion to Modify Divorce Decree.” As •subsequently amended, her allegations are that since the last decree there has been a ■great change in the circumstances, condition and facts relative to the welfare of the •children, especially Patricia Ann, in that: ■the facts supporting the last motion to modify were not exhaustively developed; the attorneys who were employed to represent plaintiff in the presentation of the last motion induced plaintiff to sign the stipulation regarding custody, subsequently ■approved by the court, “ * * * which stipulation * * * was not for the benefit and welfare of the said children and which stipulation was signed by reason of the ill advice and inducement of her attorneys and against the will of this plaintiff”; that the children should attend Sunday School and church with their mother; that plaintiff and her present husband have a new seven room home close to a school and to their church; that the children, especially Patricia Ann, have expressed a sincere desire to live with plaintiff and her present husband; that the children are really in the custody of defendant’s mother “who is aged and very much handicapped by reason of said age, the result of which is neglect of care and control”; that the welfare of the children would best be ■served by granting permanent custody to plaintiff with reasonable rights of visitation and temporary custody to defendant; that defendant has failed to obey the decree of January, 1963; and that plaintiff has a ■competent, trustworthy and good person to care for the children while she is away from home. Plaintiff prayed that the decree of divorce be modified to give her absolute custody, subject to visitation and temporary custody privileges in favor of defendant; for an allowance for support; and for attorneys fees and costs.

At the start of the hearing on the present motion counsel for plaintiff, in his opening statement, declared that plaintiff’s evidence would show that plaintiff’s former counsel, who had represented plaintiff in the preceding motion which culminated in the modification of January 16, 1963, had coerced plaintiff into signing the stipulation regarding temporary custody, over her protest that she did not want to sign, on the representation that unless she signed she wouldn’t get anything. Counsel for defendant objected, and in the ensuing discussion stated that if that subject was gone into he wanted time to subpoena former counsel. The court pointed out that the present motion was one to modify the amended divorce decree, which acknowledged the fact that the decree (as previously modified) existed; that no motion to set aside the decree or the modification of January 16, 1963, had been filed; and that the evidence at the hearing would be confined to any change of condition which had occurred since that date. Counsel for plaintiff then stated that, “We would like to have a slight recess to file a motion to set aside that stipulation that was signed, for the reason of the fact that it was signed in coercion and ill-advised.” The court informed plaintiff’s counsel that he would pass plaintiff’s motion down on his docket and that if counsel cared to file any other motions he should prepare them and the court would look at them. Counsel for plaintiff presumably did not prepare or file any other motion for none is included in the transcript. Instead, the record shows that the cause was recessed until the completion of the court’s docket, and that the parties.then proceeded to trial.

Plaintiff’s testimony was that since May, 1962, plaintiff and her present husband have been living in a new home which consists of a living room, three bedrooms, a kitchen, one-and-a-half baths, and a utility room, and has all modern conveniences. It is located in an excellent neighborhood, close to the church which they regularly attend, and a quarter of a mile to a public school, to which bus service is available. Plaintiff and her present husband are both employed at Industrial Engineering in Brentwood, she at a salary of $80 per week and he at $84. They have a bank account (amount not stated) and are saving money. She and her husband arrive home from work about 4:30 P.M., which is the approximate time Patricia Ann would return home from school. She has made arrangements with her next door neighbor, Mrs. Emilie Dodson, to take care of the girl after school if that is necessary. Plaintiff described defendant’s home as having four large rooms downstairs, and the same amount of unfinished space upstairs. She stated that the furnace had burned out, that heat is supplied by one gas heater in a middle room, “and when I would go to visit the children they had on three pairs of pants to keep warm and sweaters in the house.” As to the neighborhood, plaintiff stated that it was poor, that there was a parking lot on one side of defendant’s house, a little store on the other, and an old house across the street. On cross-examination plaintiff conceded that the house was the same one which she and defendant had occupied during their marriage, with their children, but stated that when she lived there it had a furnace in it. The only evidence offered in support of the charge in the motion that defendant had failed to obey the decree of modification of January 16, 1963, related to an occasion when plaintiff came to get Patricia Ann, after the child had undergone a tonsillectomy. Plaintiff was handed a letter from the doctor by defendant’s mother which stated that it would be advisable to leave the child in her home, but plaintiff insisted on taking the child. On re-direct plaintiff was asked if she had consulted the doctor, and what the doctor had said, and answered, “He told me, if I wanted the girl that I could take her and they could not keep me from it, that it was on the court record that I was to have her.”

Plaintiff further testified that she had bought clothes for Patricia Ann, and had paid some doctor bills. She stated that defendant was employed by a trust company but that she had no knowledge regarding his earnings. Plaintiff testified that defendant’s mother, Mrs. Carrie Baker, lives in defendant’s home and takes care of the children. There was no evidence offered as to Mrs. Baker’s age, nor any evidence that because of her age the children were neglected as to care and control, as alleged in the motion. On direct examination plaintiff testified that both defendant and Mrs. Baker, in the presence of Patricia Ann, had charged her with being an adul-tress and with living in adultery because she had remarried; that in the presence of the child defendant had told her she was-bound for hell; that defendant was trying to teach the little girl to hate her; and that he had threatened Patricia Ann with a. reprimand in case she catered to or loved plaintiff. Plaintiff denied that she had committed adultery or had had intercourse with her present husband prior to their marriage. During direct examination-plaintiff’s counsel sought to develop from plaintiff that no evidence was heard on the motion which culminated in the modifying decree of January 16, 1963. The court sustained defendant’s objection that no attack was being made on the validity of that order; that the order was made by agreement and stipulation; and that only the-evidence which would be received would be that relating to any change of conditions, which had occurred since the order was entered.

The remainder of the evidence offered on-behalf of plaintiff consisted of the testimony of her present husband that his home had cost $10,600, that his daughter by a previous marriage visits him and is supported by him, that he loved Patricia Ann and would treat her as though she was his own daughter; the testimony of Reverend John Land, pastor of the church to which Mr. and Mrs. Chilcutt belonged, who stated that they attended church regularly, that plaintiff’s reputation in the community for chastity, morality and trustworthiness was ■excellent, and that in his opinion Patricia Ann loved plaintiff and plaintiff loved Patricia Ann; the testimony of Mrs. Emilie Dodson, plaintiff’s neighbor, who stated that she would give Patricia Ann the best ■of care, that she had two children of her own, and that the little girl reciprocated plaintiff’s love for her; and the testimony of Mary Lou Tyler, who said that plaintiff’s reputation for chastity, morality and truthfulness was excellent.

The transcript shows that at the conclusion of her evidence plaintiff through her •counsel expressed a desire for the court to talk to Patricia Ann in the presence of the .attorneys for the defendant and the plaintiff. In response, the court requested: ■“THE COURT: Gentlemen, let’s step into Chambers for a few minutes.” The transcript shows that there was a recess while the court and counsel were in chambers, and the next item in the record is the court’s statement for the record that the decree would be further modified so that plaintiff shall have custody of both children every other weekend commencing at 5:00 P.M. on Friday and ending at 5:00 P.M. on Sunday; that on the other weekends plaintiff shall have custody commencing at 5:00 P.M. on Friday and ending at 10:00 P.M. on Saturday; and that in all other respects the motion to modify was denied and the decree as it theretofore stood is to remain in full force and effect. Thus there was no evidence offered on the part of defendant.

Plaintiff’s brief falls far short of complying with Civil Rule 83.05(c), (d), and (e), V.A.M.R. Only the fact that the custody and welfare of children are involved has induced us to refrain from taking appropriate action under Civil Rule 83.-09. Ambrose v. M.F.A. Co-Operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647. Plaintiff’s first complaint, as best we understand it, is that the court erred in refusing to admit evidence striking at the

validity of the original decree of divorce and that of the order of January 16, 1963. There is no merit to this contention. An “ * * * original divorce decree is final and binding and cannot be disturbed except upon a proceeding and hearing held for that very purpose. * * * ” Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. The same is true of an order modifying such a decree. Wood v. Wood, Mo.App., 378 S.W.2d 237. The subject of the inquiry under a motion to modify a decree of divorce is whether there has been such a change of condition since its rendition as will justify and require its modification. Hayes v. Hayes, supra; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 173 S.W.2d 646. Such a motion cannot be employed as the means for a collateral attack upon the decree, for if the requisite grounds exist the proper procedure is by a direct attack in a court of equity. Hemphill by and through Burns v. Hemphill, Mo., 316 S.W.2d 582; McCarty v. McCarty, Mo., 300 S.W.2d 394; Coleman v. Coleman, Mo. App., 277 S.W.2d 866. The evidence regarding the alleged conduct of counsel may have been admissible to * * * sheds light upon the compulsions or impulsions under which the plaintiff acted at the time * * * to aid in' determining a change of condition under which the decree may be modified.” Chilcutt v. Baker, Mo.App., 355 S.W.2d 338, but it was not admissible for the purpose of vitiating in this proceeding the original decree or the order of January 16, 1963.

Plaintiff also complains that, “The Court erred in ordering the attorneys into his private chambers, after the plaintiff had rested, and rendering his judgment and decree in the aforesaid chambers; in the absence of the court stenographer, which action upon the part of the court made an incomplete record of the entire cause of action.” In the first place, the court did not order the attorneys into his chambers; as the passage quoted from the transcript shows, he requestéd them to enter' with him. And in the second place, the court did not render his judgment and decree “ * * * in the absence of the court stenographer * * * ” because the record shows that he dictated his order to the court reporter.

Plaintiff’s final two points may be considered together. It will be recalled that following the conclusion of plaintiff’s evidence and the conference in chambers the court dictated to the court reporter his order further modifying the decree, and that the defendant did not offer any evidence on his behalf. Plaintiff now contends that the court erred in that it, “ * * * did not hear all of the evidence on the part of the defendant”; that defendant and his mother are teaching the children to hate plaintiff “ * * * an(j it could have been shown on the part of the plaintiff by the aforesaid parties themselves should they have been permitted to testify as they both were present at the hearing”; and that plaintiff’s uncontradicted evidence established that the welfare and best interests of the children required that they be placed in the custody of plaintiff. By the first part of his argument counsel for plaintiff is attempting to shift from his own shoulders the responsibility for the failure to obtain the testimony of defendant and his mother. It is true that in a divorce case, because of the vital interest of society at large in the preservation of marriages, a trial judge may, in the conscientious and faithful discharge of his duty, elicit testimony from witnesses, cause other witnesses to be subpoenaed, and in all proper ways develop pertinent evidence not adduced by the parties themselves. Gosnell v. Gosnell, Mo. App., 329 S.W.2d 230; May v. May, Mo.App., 294 S.W.2d 627. A minor child of divorced parents becomes a ward of the court, which has the duty of ascertaining the best interests of the child, and of necessity the court is vested with a broad discretion in all matters pertaining to the child’s welfare. Dupree v. Dupree, Mo.App., 357 S.W.2d 241; Schumm v. Schumm, Mo.App., 223 S.W.2d 122. We have no doubt that for the purpose of determining the best interests of a child in a matter involving its custody the court may similarly elicit testimony from witnesses,, cause witnesses to be subpoenaed, and otherwise properly develop pertinent evidence. Zamzow v. Zamzow, Mo.App., 159 S.W.2d 346. But ordinarily it is the function of counsel, not that of the court, to-offer any and all evidence pertaining to the welfare of the child, particularly when,, as here, he maintains that such evidence would support his client’s position. If counsel was of the opinion that defendant and his mother would have testified that, they were teaching the children to hate-plaintiff, as he now contends they would have testified, it was his duty to call them, to the stand.

We must concede, however, that", the state of the record has caused us a great, deal of concern as to the disposition we-should make of plaintiff’s appeal. In a proceeding of this character it is our duty to-consider, weigh and evaluate all of the competent evidence tending to prove or to-refute the essential factual issues, to reach, our own findings, and to render such judgment as should have been rendered. Baker v. Baker, Mo.App., 319 S.W.2d 11; M— v. G — , Mo.App., 301 S.W.2d 865; Schumm v. Schumm, Mo.App., 223 S.W.2d 122. Ordinarily, where the evidence is conflicting and the determination of the factual issues rests upon the credibility of the witnesses the reviewing court will usually defer to the findings of the trial court. But we are not bound by his findings and. do not hesitate to make our own where the-probative force of the evidence requires it. Clemens v. Clemens, Mo., 235 S.W.2d 342; Oliver v. Oliver, Mo.App., 325 S.W.2d 33; M — v. G — , supra. The difficulty in the instant case is that the only testimony-in the record regarding those matters affecting the well-being of the children is-that given by plaintiff. And in her testimony plaintiff made serious charges against defendant regarding the surroundings in which the children are being raised, the deficiency which has developed in the home in which they live, the derogatory statements made by defendant in the presence of Patricia Ann impugning the plaintiff’s morals, and the attempts of defendant to alienate the little girl’s affection for plaintiff. These charges are grave in nature, and the latter, in particular, have been held to be valid grounds for the forfeiture of the right of custody. For as this court said in Kaplun v. Kaplun, Mo.App., 227 S.W. 894, a similar proceeding involving the custody of an eight year old boy: “ * * The supreme and paramount consideration is the welfare of the child. It is of that age when most sensitive to influence, and no argument can arise over the proposition that it is detrimental to the child to have any one, especially its father, speak abusively and disrespectfully of its mother.” To the same effect see Rone v. Rone, Mo.App., 20 S.W.2d 545, and Baker v. Baker, supra.

As the matter is presented to us plaintiff’s testimony stands uncontradicted and unrefuted. Neither defendant nor any witnesses on his behalf took the stand to deny the truth of the charges made by plaintiff. Defendant now argues that the trial court had full opportunity to hear plaintiff’s testimony and to judge her character while she was on the stand, and intimates that we should presume that the court found her character deficient. But the court’s action in increasing the time during which plaintiff was to have temporary custody of the children does not accord with or support such a presumption. Furthermore, where, as here, the paramount consideration is the welfare and best interests of the minor children, and evidence regarding that issue is readily available, we are not inclined to rely on legalistic presumptions. In re Shepler, Mo., 372 S.W.2d 87; In re Duncan, Mo., 365 S.W.2d 567.

In view of the gravity of the charges made regarding the well-being of the children, and the absence of any evidence respecting the truth or falsity of such charges, we are of the opinion that in the interests of the children the case should be remanded so that such evidence may be fully developed. M — v. G — , Mo.App., 301 S.W.2d 865; Oliver v. Oliver, Mo.App., 325 S.W.2d 33.

For the reasons stated it is the recommendation of the Commissioner that the judgment be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by DOERNER,. C., is adopted as the opinion of this court.

Accordingly, judgment is reversed and. the cause remanded.

WOLFE, Acting P. J., ANDERSON, J.,. and L. F. 'COTTEY, Special Judge, concur.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Frances DI PAOLI, a/k/a Providenza Di Paoli, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY, a Corporation, Defendant-Respondent.
    No. 31376.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.

      James & Hasler, John D. Hasler, Edward J. Wynne, St. Louis, for plaintiff-appellant.
    Lashly, Lashly, Rava, Hyndman & Rutherford, William I. Rutherford, Paúl B. Rava, Oliver J. Miller, Paul R. Moody, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This is an action brought by Frances Di Paoli to recover accidental death benefits under a policy of life insurance issued by defendant to plaintiff’s deceased husband, Luigi Di Paoli. Plaintiff was the named beneficiary in said policy. There was a verdict for plaintiff in the amount of $1,000, the amount alleged to be due on the policy together with interest thereon in the sum of $155.00. Defendant in due time filed its motion for new trial together with a motion for judgment in accordance with its motion for a directed verdict. Thereafter, the court sustained defendant’s motion for judgment in its favor, and at the same time entered an order that if said judgment be reversed by an appellate court defendant’s motion for new trial was denied. From the judgment, plaintiff has appealed.

The face amount of the policy was $1,000, and contained a provision that an equal amount was payable in the event of “death by accidental means” as defined in the policy. The insured died October 6, 1959, while the policy was in full force and effect. The insurance company paid one thousand dollars, the amount of the life coverage, hut refused liability for the accidental death benefit.

The petition alleged that on the 6th day of October, 1959, the said Luigi Di Paoli died as a result of a violent physical assault inflicted upon him on the 22nd day of September, 1959.

Defendant’s answer pleads the “accidental means” provision of the policy and avers that the death of the insured was not accidental within the policy provisions, since it resulted from his own misconduct, to wit, while he was an aggressor in a dispute wherein he was making threatening gestures with a gun.

Plaintiff’s evidence consisted of the testimony of Dr. Martin J. Glaser who performed a postmortem examination of the insured’s body on October 6, 1959; the hospital records of the City Hospital, the hospital records of the Missouri Pacific Hospital and the testimony of plaintiff’s son. The testimony of the son throws no light on the cause of insured’s death.

Dr. Glaser testified the insured died of a fractured skull which had caused profuse hemorrhage within the membrane that covered the brain; that he found four scars 3i/*j inches in length above the ear extending to the midline and backward. The scars were freshly healed and showed about 25 or 30 suture marks. The entire brain was covered with blood, mostly clotted, and a considerable clot of blood extending down into the base of the brain from the parietal region to the occipital region and into the spinal cord. He further testified that there was a linear crack in the skull bone extending from about the middle portion of the parietal bone to the occipital, with considerable displacement or separation laterally, but, he could not determine whether it was caused by a single blow or multiple blows to the head. The scars ran vertically up the side of the head.

The admission record of the City Hospital showed that insured was admitted there on September 22, 1959. It also revealed the patient had multiple abrasions and a laceration of the scalp which went down to the bone exposing the cranial vault in several places. Under anesthetic sutures were applied.

Insured, who was an employee of the Missouri Pacific Railroad, was thereafter removed to the Missouri Pacific Employees Hospital. The record of that hospital was offered in evidence by plaintiff. It showed that Di Paoli was born September 6, 1889; that he was transferred on September 23, 1959, from the City Hospital, to Missouri Pacific Hospital; that he had a head injury; that x-rays revealed a badly com-minuted fracture together with multiple lacerations of the left parietal, sphenoid and occipital portions of the skull; a one quarter inch depression of the left temporal and inferior parietal region extending to the base of the skull, and that on October 5, 1959, the patient expired.

John S. Farmer, defendant’s witness, testified that during the evening of September 22, 1959, he was the bartender at 2350 North Market. At about 10:15 or 10:20 p. m., while he was talking to a customer, John Lindner, a stranger (later identified as the insured Luigi Di Paoli) entered the bar room, walked beyond Lindner, then turned around and without prior conversation pulled out a gun, cocked it and pointed it at Farmer, and threatened to kill him, saying “I’ll kill you” several times. He further testified that Lindner then began talking to Di Paoli in an effort to persuade him from using the gun, whereupon Di Paoli turned and pointed the gun toward Lind-ner. When this occurred, he (Farmer) came from behind the bar to a position behind Di Paoli intending to relieve the latter of the gun, but just as Farmer got in back of him Di Paoli turned on Farmer with the gun. Farmer then struck Di Paoli with his left fist around the temple. Di Paoli fell to the floor and in the process of falling struck his head either on the bar rail or a rung of a bar stool. As he was falling, Farmer relieved him of the gun. Farmer called the police immediately thereafter, and then laid the gun on a table where it remained until the police arrived. Farmer stated that he did not have anything in his hand when he struck Di Paoli; that Di Paoli was IS to 16 inches away when he hit him; that Di Paoli fell hard; and that after he fell his head was eight to ten inches away from the rail which runs at the foot of the bar. On cross-examination, Farmer said he told the police when they arrived that Di Paoli probably could have hit the rung of the bar stool as he went down, although he did not know what Di Paoli struck when he fell.

John Lindner testified that on September 22, 1959, he was a customer at the North Market Bar, when he heard someone enter the bar and then saw this stranger, Di Paoli, a couple of feet to his right with a gun in his hand talking to the bartender. He was pointing the gun at the bartender. Di Paoli was about 1 to 2 feet from the edge of the bar. Lindner further testified he started talking to Di Paoli and Farmer came around the bar to a position behind Di Paoli and hit him. Di Paoli then went down to the floor, falling close to the bar. He further stated that when Di Paoli had the gun pointed at him, Di Paoli kept saying, “I’ll kill you” and spoke to Lindner in some foreign tongue which Lindner could not understand. He further stated that when Di Paoli went down after being struck by Farmer, the table and chairs, which were about 4 feet away, were shoved .and moved about. Lindner further testified that he had been at the bar since seven or ■eight o’clock that evening and had during that time 6 or 7 drinks of whiskey, but was not intoxicated. However, he was feeling his drinks. On cross-examination, Lindner said he did not actually see the blow ■struck by Farmer; that he saw Farmer moving from behind the bar and all of a •sudden Di Paoli was on the floor and the table and chairs were rocking. He further ■stated that Di Paoli brushed against him as he went down, and that he told the coroner’s jury, when asked what Di Paoli hit when he went down, “He never hit nothing I seen.”

St. Louis police officer, Phillip Dwyer, a detective, attached to the Homicide Section, testified that Farmer, who was arrested on suspicion of manslaughter in connection with the death of the insured, had never been tried on that charge. He further stated that the gun turned over to the police the night of the September 22 incident was a fully loaded .38 five shot revolver and that the history of the gun had not, to his knowledge been traced.

Appellant contends that the court erred in entering judgment for defendant for the reason that the pleadings and evidence presented an issue of fact triable by a jury. Specifically it is urged that a prima facie case of accidental death was shown upon proof of violent death, which prima facie case was not destroyed by defendant’s evidence which was calculated to show that insured died as a result of injuries sustained as a result of being knocked to the floor by a blow received in an encounter with John S. Farmer in which insured was the aggressor. Defendant admits that upon proof by plaintiff that insured met a violent death a presumption arose that his death was brought about by accidental means, but contends that such presumption, being purely procedural, disappeared when defendant offered its evidence showing the insured was the aggressor in an affray which terminated in his death, and that plaintiff, therefore, failed to sustain the burden of proof which the law casts upon her.

In suits on policies of accident insurance where no more is shown than a violent death, a presumption arises that said death was brought about through accidental means. Sellars v. John Hancock Mutual Life Ins. Co., Mo.App., 149 S.W.2d 404; Gilpin v. Aetna Life Ins. Co., 234 Mo.App. 566, 132 S.W.2d 686; Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436; McKeon v. National Casualty Co., 216 Mo.App. 507, 270 S.W. 707. The presumption is purely procedural and is destroyed by substantial evidence controverting the presumed fact. If there is positive, clear and undisputed evidence that insured’s death did not result from injuries sustained through accidental means, there is no issue for the jury, and the matter should be resolved by the court as one of law. The presumption may not be weighed as evidence. Sellars v. John Hancock Mutual Life Ins. Co., Mo.App., 149 S.W.2d 404. Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436. And where insured as the aggressor voluntarily engages in an affray with another person, or assaults or threatens another with a deadly weapon which takes on the aspect of a threatened deadly encounter, he must be deemed to have invited resistance of such force as likely to put him in danger of death or bodily harm. Such resistance will be regarded as the natural and probable result of voluntary exposure to danger which ought to have been foreseen, and if it results in death or bodily harm, such injury or death cannot be regarded resulting from accident within the provisions of a policy insuring against death or injury by “accidental means.” Podesta v. Metropolitan Life Ins. Co., Mo.App., 150 S.W.2d 596; Perringer v. Metropolitan Life Ins. Co., 241 Mo.App. 521, 244 S.W.2d 607.

But appellant says that defendant’s evidence was not clear, positive and substantial, and was therefore not sufficient to destroy the presumption of death by accidental means which arose upon proof of violent death. In support of this contention appellant points out certain differences in the testimony of the witnesses concerning certain details of the occurrence and contradictory statements by the witness with reference to these details, which appellant says raised a question as to the truthfulness of the testimony and thus presented a question of credibility to be resolved by the jury. We have read and reread the testimony and cannot agree that such is the case. To be sure, there were differences as to certain matters, but they were in reference to minor and unimportant details. As to all important matters the testimony of defendant’s witnesses was harmonious and in full accord. Considering the fact that the lives of the two men were threatened and that the action taken by Farmer to relieve them of their peril had to be and was a rapid process involving considerable danger and excitement, it is not strange to find the record disclosing some minor discrepancies in their testimony. If it did not, there would be more reason for doubting their veracity. On all matters of consequence, defendant’s evidence stood un-impeached, with no room for reasonable controversy in regard to the circumstances under which insured received the injuries which caused his death. Those circumstances show no liability under the policy.

The judgment is affirmed.

WOLFE, Acting P. J., and R. K. ELLIOTT, Special Judge, concur.


text:
    Irene HARDY, Plaintiff-Respondent, v. William Henry BRUNS, Defendant-Appellant.
    No. 31791.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.

      Dearing, Richeson, Weier & Roberts, Samuel Richeson, Hillsboro, Charles Shee-han, House Springs, for defendant-appellant.
    Blackwell & Blackwell. Hillsboro, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff sued for the sum of $9600 alleged to be due her from defendant for work and labor performed at the agreed rate of $1.00 per hour. Defendant denied the indebtedness and pleaded payment of $2,000 in full discharge of any and all claims which plaintiff had against him. The jury returned a verdict of $2,000 Rr plaintiff, on which judgment was entered, and defendant appealed.

There was no dispute between the parties regarding the terms of the oral contract. Both agreed that plaintiff helped defendant build a house on defendant’s land at Morse Mill out of cedar logs which they cut and peeled. Both agreed that the contract made was that plaintiff and defendant were to reside in the house; that defendant was to buy the food; and that in return plaintiff was to do defendant’s washing, ironing, cooking, and keep the house clean. Both further testified that it had been agreed that defendant would pay plaintiff $1.00 an hour for any work other than her household duties which plaintiff performed on defendant’s farm. Plaintiff testified that between 1952 and 1960 she performed a variety of work on the several, farms leased and operated by defendant during that period, that she had periodically requested payment and had been told by the defendant, “ * * * try and get it,” and that she had never been paid. Defendant admitted that plaintiff had performed a slight amount of farm work but testified that he had paid her for that which was done.

Defendant’s initial assignment is that there was not sufficient competent evidence in the record to support the verdict of $2,000. This requires a further statement of the evidence in the light most favorable to plaintiff. Kettler v. Hampton, Mo., 365 S.W.2d 518. Plaintiff testified that from April to September in each of the years from 1952 to and including 1960 she worked on defendant’s farm on an average of three to four days a week, for eight to twelve hours a day; and that such work consisted of planting corn, plowing, discing, driving a tractor, putting up hay, fixing fences, feeding day old calves out of a bucket, and feeding corn and hay to cattle all winter. Simple mathematics demonstrates that if the minimum figures to which plaintiff testified are used, eight hours per day, thrée days each week, twenty-six weeks each year, for nine years, the result would be 5616 hours. The agreed rate was $1.00 an hour. It is obvious that plaintiff’s evidence was more than sufficient to support the verdict of $2,000 which the jury returned.

Defendant next contends that the court erred in admitting into evidence, over defendant’s objection, defendant’s bank book and evidence of his bank deposits. Such evidence was injected into .the case by plaintiff, who called defendant to the stand. During her examination of defendant plaintiff inquired whether defendant had made a great deal of money from his farming operation and sales during the years 1952 to 1960. After an objection had been made and overruled defendant answered, “Not much.” Defendant was asked which banks he did business with during those years and stated there were two, those at Fenton and Hillsboro. Over further objection defendant identified plaintiff’s Exhibit A as his bank book for the Bank of Hillsboro, and plaintiff developed that defendant had made deposits totaling $51,570.28 in that bank between May, 1952 and August, 1961. However, defendant was not asked and did not state the source of such funds. As defendant points out, ; the parties were in agreement regarding ■ the terms of the contract and the fact that •plaintiff had performed some work for defendant The fundamental issues in dispute were the number of hours plaintiff had • labored for defendant, and whether defendant had paid her for the time she worked. Plaintiff seeks to justify the admission of such evidence on the ground that it “ * * was relevant and corroborative of plaintiff’s efforts and work on the-farm for the defendant, and which contributed to defendant’s earnings. * * * ” Implicit in that argument is the highly dubious assumption that two persons working on a farm will necessarily and invariably produce more income therefrom than one¡ But even under plaintiff’s theory of relevancy the burden was on her to establish that the deposits made were derived from defendant’s farming operation before such evidence was admissible. Admittedly, no such foundation was laid. Hence the evidence as to defendant’s bank book and deposits did not tend to prove or disprove the number of hours plaintiff had worked, or whether she had been paid, and was therefore irrelevant and prejudicial. Wiener v. Mutual Life Insurance Co. of New York, 352 Mo. 673, 179 S.W.2d 39; Springli v. Mercantile Trust Co., Mo.App., 333 S.W.2d 311.

At some unstated time prior to the trial of this case the plaintiff and defendant were married, and were divorced on December 10, 1962. The decree of divorce provided that defendant was to pay plaintiff the sum of. $2,000 as alimony in gross. During cross-examination of plaintiff defendant sought to inquire about a conversation between plaintiff and her counsel and defendant and his counsel which it was claimed had occurred on the day the divorce was granted. An objection was sustained, and defendant then offered to prove that the plaintiff and defendant had orally agreed that the $2,000 paid was to cover not only plaintiff’s alimony in gross but “ * * * any and all claims (the) parties had between each- other.” The trial court ruled such evidence was inadmissible because it constituted a collateral attack upon the decree of divorce. That ruling was correct. As stated in Owen v. City of Branson, Mo.App., 305 S.W.2d 492, 497: “Judgments (including judgments by agreement) are conclusive of the matters adjudicated and are not subject to collateral attack except upon jurisdictional grounds. Freeman on Judgments, 5th Ed., vol. 3, § 1350, p. 2773; Drainage District No. 1 Reformed, of Stoddard County v. Matthews, 361 Mo. 286, 234 S.W. 2d 567 * *

For the reason stated the Commissioner recommends that the judgment be reversed and the cause remanded for a new trial.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is reversed and the cause remanded for a new trial.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


author: R. KENNETH ELLIOTT, Special Judge.

text:
    Lorraine BROWNING and Lloyd Browning, (Plaintiffs) Appellants, v. The CITY OF ST. LOUIS, a Municipal Corporation, (Defendant) Respondent.
    No. 31515.
    St Louis Court of Appeals. Missouri.
    Dec. 15, 1964.
    David E. Horn, St. Louis, for appellants.
    Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, John S. Marsalek, G. W. Marsalek, Joseph H. Mueller, St Louis, for respondent.
   R. KENNETH ELLIOTT, Special Judge.

This appeal, resulting from a verdict and judgment for defendant in the trial court, was taken by plaintiffs, Lorraine Browning and Lloyd Browning, husband and wife, who brought suit against defendant for personal injuries to plaintiff Lorraine Browning, and for plaintiff Lloyd Browning’s loss of his wife’s services and expenses incurred as a result of her injuries. Hereinafter we shall refer to Lorraine Browning as plaintiff.

Defendant owned and operated a roller skating rink for public amusement in Forest Park, located in the confines of defendant. On July 10, 1959, along with her husband and others in her party, plaintiff entered the skating rink and engaged in roller skating for approximately an hour and 45 minutes. While skating with her brother, who was holding her left hand in his right, she was struck from behind by another skater who was skating in a manner described by her as fast, wild, rude and disorderly. Plaintiff’s theory was that defendant in the exercise of ordinary care could have observed those patrons who were skating in an improper manner and have stopped them, but failed to so do.

Plaintiff testified that she was an experienced skater, and that on the evening the accident occurred she observed a group of four or five boys skating wildly and dodging in and out of people, but that the boys did not knock anyone else down; however, one did run into a smaller boy, who was not knocked down at that instant.

Plaintiff testified that she saw three men on duty that evening, and that she did not complain to an attendant about the way she claimed the boys were skating.

Defendant produced five witnesses who were employees. Arrowsmith was the assistant manager who was present at the rink that evening, and he made entries in the employee’s attendance log and signed same. A duty sheet was kept which showed the employees on duty at the rink on the evening in question. The other attendants who testified were Prusaczyk, Boutin, Pierce and Strahan. The duty roster indicated that on the evening in question Boutin was assigned to the checkroom," Pierce and Strahan were assigned to the rink; and Prusaczyk was assigned to the turnstile located about eight feet from the rink.

The evidence in this case established that the duty roster and log showed that someone sustained a broken arm that evening; that the witness Pierce was on duty from 7:00 to 11:00 P.M. and assigned to the rink; that the duty of such men is to keep order on the rink; and that the witness Strahan was also assigned to the rink. The attendant assigned to the turnstile, Prusaczyk, would be close enough to the rink to observe the skaters.

Witnesses Arrowsmith, Prusaczyk, Bou-tin, Pierce and Strahan were asked substantially the same question, to the effect that if fast, wild skating by a group of somewhere between five to fifteen boys had occurred, would the witness have remembered it. In each instance the answer was in the negative.

Plaintiff’s only assignment of error is that the trial court erred in permitting the defendant’s witnesses to answer questions relating to their recollection of seeing dangerous skating by users of the rink because it was not established that the witnesses were in situations where their faculties were called into play during the time in question.

Defendant maintains that plaintiff’s motion for a new trial was insufficient in that it did not specify what evidence plaintiffs claimed was inadmissible, as required by Rule 79.03, V.A.M.R., and therefore there is nothing preserved for review in this court. This requires that we examine not only the motion for new trial, but the specific objections made by plaintiff at the time the questions were asked.

The only reference in plaintiff’s motion for new trial to the matter complained of on appeal is found in Paragraph 1, which read as follows:

“(1) Because the Court erred in admitting incompetent, irrelevant, immaterial and prejudicial evidence offered by the defendant over the objection of plaintiffs.”

In examining the grounds specified by plaintiff during the trial, we find that plaintiff objected to the question propounded to Arrowsmith on the grounds that the question was (a) improperly phrased; (b) involves a series of “ifs”; (c) leading; (d) “It is not a question, if it occurred did he see it, but what did he see?”; (e) the witness ought not to be entitled to say what happened that he did not recall.

We are, therefore, concerned whether these objections are sufficient to preserve error as an exception under Rule 79.01 to Rule 79.03, V.A.M.R., in view of the general. nature of the motion for new trial.

' On the question in issue propounded to the witness Boutin, who was assigned to the checkroom and could see the rink fairly good from that spot, the objection by plaintiff was that the question was not limited to the occasion of the night in question, since the question asked the witness- was, “did he at any time recall such activity ?” The question to the witness Pierce was objected to on the same basis, and likewise as to the witness Strahan.

When the question in issue was propounded to Prusaczyk, the turnstile attendant, there was no objection made by plaintiff. Witness-Prusaczyk testified after the witness Arrowsmith and before the other: witnesses, Boutin, Pierce and Stra-hafu Each of the attendants testified he was on duty and described his duties, and none of the defendant’s witnesses recalled: seeing a group of boys skating in the manner described during the 1959 season.

Plaintiff cites to us the case of Dodd v. Terminal Railroad Association of St. Louis, Mo.App., IOS S.W.2d 982, 1. c. 984, wherein this court discussed negative evidence as being proper statements of fact for the jury to consider when it has been established that the witness who testifies:

“ * * * was in a situation where his faculties were called into play at the particular moment; and if it appears that the faculties of the witness were being employed at the time, and he testifies to the nonexistence of the particular fact in inquiry, then his testimony is not to be treated as without probative force or as a mere con-elusion, but is instead to be taken as a statement of a fact so as to raise an issue for the determination of the jury.”

We fail to find any relationship between the assignment of error on, appeal and the specific objection made during, the trial as to the question propounded to the witness Arrowsmith. The one objection made to the question aske.d the other witnesses was-also unrelated. ■

Defendant in support of his argument that no error was preserved by plaintiff cites to us the case of Romandel v. Kansas City Public Service Company, Mo., 254 S.W.2d 585, wherein it was held that a general assignment in the new trial motion was not sufficient to preserve error in the admission of a deposition. In the Roman-del case there was a specific objection at the trial which was consistent with the complaint on appeal with a géneral assignment in the motion for new trial, which the Supreme Court held did not preserve error under the facts in that case. In the instant case, the specific objections made during the trial do not relate to the assignment of error in this court.

The facts here show the plaintiff’s objection does not specify the failure of the defendant to establish a situation showing the faculties of the witness were called into play during the time in question, but rather amounts to nothing more than a general objection, which, under the circumstances here, has preserved no error. State ex rel. State Highway Commission v. Henderson, Mo.App., 381 S.W.2d 10 (13); Gerald v. Caterers, Inc., Mo.App., 382 S.W.2d 740; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230 (235).

In Lott v. Kjar, Mo., 378 S.W.2d 480 (485), our Supreme Court has recently stated that:

“A claim of error here is limited to that advanced in the motion for new trial, and we do not consider a different ground of objection urged on this appeal.”

It has been further stated by our Supreme Court, in Galloway v. Galloway, Mo., 169 S.W.2d 883 (887), that the reason for a requirement that proper specific objection be first made in the trial court is:

“* * * In the making of objections the trial judge should be apprised of the grounds upon which objections are based that he may rule with intelligent fairness — opposing counsel should be likewise apprised, for, should the grounds specified be deemed valid ones, counsel may then avail of other, but proper, means of adducing the proof. * * *»

Further in regard to the necessity of making proper specific objections during trial, we find in Henson v. Pascola Stave Co., 190 Mo.App. 471, 177 S.W. 787, 1. c. 789, the language:

* * * The objection was that the proper foundation was not laid; that it called for a conclusion; and that it was wholly immaterial and incompetent. Such objections are too general to reach the point now contended for by appellant. State ex rel. West v. Diemer, 255 Mo. 336, 350, 164 S.W. 517. The contention should have informed the court and the plaintiff in what respect defendant considered no foundation was shown, whether it was a lack of a qualification of the witnesses to speak on this subject, or whether there was an absence of the necessary proof of a custom or usage existing elsewhere. Litigants should not be allowed to make objections of this character, and then urge here points which might have been met in the trial court had the objection been more specific. * * * ”

Here the plaintiff is attempting to raise in this court for the first time a point to which no proper objection was raised in the trial court. This the plaintiff cannot do. Hermann v. St. Louis Public Service Company, Mo.App., 345 S.W.2d 399 (405-406). Such attempt is in violation of Rule 83.13, V.A.M.R. Bader v. Hylarides, Mo.App., 374 S.W.2d 616.

Plaintiff in his reply ' brief cites to us Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, but we distinguish it from this case because that case, at page 768, points out that there is a modification of the general rule requiring specificity in obj ections where the evidence is so clearly incompetent that-there exists no objectional feature for removal to make it competent. This case does not come within that rule.

We have examined the authorities cited by both appellant and respondent and the record herein, and find no reason to apply our discretion under Rule 79.04, V.A.M.R., relating to consideration of plain errors not preserved for review. Miller v. Dowling, Mo.App., 360 S.W.2d 345 (349).

The judgment for defendant is affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: McDonald, judge

text:
    Erwin Robert KLEIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37378.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    No attorney of record on appeal, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Curtis Glover, Ross Teter and C. M. Tur-lington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge

The offense is aggravated assault with a motor vehicle; the punishment, 1 year in jail and a fine of $800.

The evidence reflects that on March 9, 1963, between 7:30 and 8 P.M. the appellant pulled out of a Dairy Queen with two friends riding with him in his 1961 Impala Chevrolet. He was demonstrating his .high speed equipment, 3 carburators, and four speed shift, when a patrol car approached them, turning on its red light and siren. The officers in the car testified at the trial that they followed the appellant throughout this chase at speeds up to 100 miles per hour for approximately 61/4 miles and that this chase terminated in the accident which resulted in this criminal prosecution. The appellant ran the red light at the intersection of Kiest and Polk, which was shown by several by-standers, who were stopped at the intersection and observed the appellant’s failure to stop for the red light.

The appellant crashed into a 1954 light blue Ford on the right front side, injuring the woman riding in the passenger side on the right.

The appellant, testifying in his own behalf, said that the reason that he tried to elude the police was because he was frightened, and “ * * * I had had two or three moving violations before and I just got scared and panicked.”

Mrs. Anna Lee Sprinkle, the injured party, testified that she received 4 broken ribs, a broken collar bone and a fractured knee and pelvis.

“Q: How did you go home when you left the hospital?
“A: Ambulance.
“Q: By ambulance, and did they put you to bed when you got home ?
“A: Yes, I was in bed part-time.
“Q: All right, did you wear any sort of a corset or brace or anything?
“Mr. Miller: Your Honor. I hate to interrupt counsel, but I would like for the witness to do a little testifying; he is asking her if she did so and so and he is putting the words in the mouth of this witness, and we object to it.
“THE COURT: Try not to lead your witness.
“Q: Did you wear anything after all of that happened?
“A: I wore a corset and a knee cage and used braces and used a walker at the hospital.
“Q: Do you know how long you used those braces?
“A: The corset I wore three weeks after I was out of the hospital. When I was at home I could leave it off, but if I was in the car I would have to wear it.
“Q: Did you have to use crutches at any time?
“A: Yes, I used crutches until right after the first of June somewhere — I don’t know the exact date but it was around the first of June.
“Mr. Martin: Your Honor, we make no contest or issue about injuries.
“Mr. Koons: Judge, I think the jury is entitled to know.
“THE COURT: All right, overrule your objection.
“Mr. Martin: This is not a civil suit, you know, to fix damages.
“THE COURT: I overrule the objection.
‘Mr. Martin: Note our exception;We object to it on the ground it is an attempt to inflame the minds of the jury and it is irrelevant.
“Mr. Koons: Judge, we have an assault here and I think the jury should know about it.
“THE COURT: Let him finish his objection.
“Mr. Martin: He had negligence, he hasn’t anything wilfull in this case.
“THE COURT: Overruled.
“Mr. Martin: Note our exception.”

The only other testimony adduced after counsel’s objection, was the question, unanswered, about what therapy she received-

While counsel’s objection, though rather general in nature, was probably good under our holdings excluding testimony as to the extent of injuries, the objection was not timely made. Error may not be, and is not preserved unless an objection is taken to the testimony at the time it is proffered.

No objections nor exceptions were taken to the Court’s charge. There are no formal bills of exception. We have carefully examined the informal bills and none of therm reflect error.

Appellant has not favored us with a brief.

By motion to quash, appellant contends that the information is insufficient and states no violation against the laws of the state of Texas.

We have carefully examined the information and conclude that it is sufficient. Appellant’s contention is without merit. 4 Branch Sec. 1762.1, page 144.

No reversible error appearing, and the evidence being sufficient to support the verdict, the judgment is affirmed.


author: McDonald, judge.

text:
    Robert Charles FORD, Appellant, v. The STATE of Texas, Appellee.
    No. 37452.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    W. S. Foster, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is operating a motor vehicle without a taillight; the punishment, a fine of $23.00.

Appellant’s’ conviction resulted from a trial de novo, before a jury, in the County Court at Law of McLennan County; after an appeal from a conviction in Justice of the Peace Court, Precinct No. 1 of Mc-Lennan County.

This Court’s jurisdiction in appeals in causes originating in the justice court is limited to convictions where the fine assessed in the county court exceeds $100.00. See Art. 53, Vernon’s Ann.C.C. P.; Trull v. State, 169 Tex.Cr.R. 357, 334 S.W.2d 180; Williams v. State, 170 Tex.Cr.R. 121, 339 S.W.2d 63; Payne v. State, 170 Tex.Cr.R. 347, 342 S.W.2d 580 and Hoover v. State, Tex.Cr.App., 355 S.W.2d 527.

The appeal is dismissed.


author: MORRISON, Judge.

text:
    Ex parte Tommy A. GOODWIN.
    No. 37485.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.

      Samuel L. Egger, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides and Earl C. Hill, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order of the District Court of Bexar County remanding relator to the custody of the Sheriff of said, county for delivery to an agent for the State of Colorado.

The State, introduced in evidence the Executive Warrant of the Governor of this State, regular on its face, authorizing the' arrest and return of the relator to the State of Colorado upon the demand of the Gov--ernor of that State to answer to charges of burglary and conspiracy to commit burg--lary. The Executive Warrant shows that: the extradition sought of the relator is based: upon an information, affidavit and warrant.

The relator offered in evidence the supporting papers which accompanied the warrant of the Governor of Texas and challenged their sufficiency in order to show that the Governor’s warrant was not legally issued, as this Court has recognized that he may in Ex parte Tucker, 168 Tex.Cr. 286, 324 S.W.2d 853. We find an information executed by the District Attorney which is sworn to before a notary public and which is therefore not an affidavit made before a magistrate as is required by Section 3 of Article 1008a, Vernon’s Ann.C.C.P.

There is no evidence in the record showing that a felony offense in Colorado may be prosecuted upon an information. In the absence of such proof, it is assumed that prosecutions for the felony offenses herein involved are not authorized by Colorado law upon an information. Ex parte Gardner, 159 Tex.Cr.R. 365, 264 S.W.2d 125; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; on second appeal, Tex.Cr.App., 308 S.W.2d 22; Ex parte Doyal, 167 Tex.Cr.R. 83, 318 S.W.2d 642. For that reason, extradition cannot be authorized by the information and affidavit before a notary public on file herein, as was done in Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755, appeal dismissed 350 U.S. 585, 76 S.Ct. 104, 100 L.Ed. 762.

In Ex parte Peairs, supra, we held the affidavit sufficient to support the information because there was an affirmative showing in the record that the laws of the demanding state authorized prosecution for all offenses upon an information.

The judgment is reversed and the cause remanded.


text:
    Ex parte William F. BLACK.
    No. 37262.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Jan. 6, 1965.
    Hope, Henderson & Hohman, by James E. Hope, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides, Raymond A. Wietzel and Earl C. Hill, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order of the 144th District Court of Bexar County remanding relator to the custody of the Sheriff of said county for delivery to an agent for the State of Georgia.

At the hearing the respondent offered the executive warrant of the Governor of Texas, regular on its face, authorizing the arrest and return of appellant to the State of Georgia upon demand of the Governor of that State to answer an “Indictment and Sentence” for “Robbery and Receiving Stolen Goods” pending against him in that State.

Under many decisions of this Court a prima facie case authorizing remand of relator to custody for extradition was made out by the introduction in evidence of the executive warrant of the Governor of Texas regular on its face. Ex Parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579, and cases there cited.

• The respondent went further and offered a witness who identified relator as being the person named in the Governor’s warrant.

Relator offered the supporting papers which had been served upon his counsel prior to the hearing which consisted of a photostatic copy of the Demand of the Governor of Georgia, a photostatic copy of a sworn application of the Assistant Director of the State Board of Corrections to the Governor of Georgia reciting that relator escaped confinement after conviction which is authenticated by the Secretary of State of Georgia, and photostatic copies of authenticated indictments from Fulton County, the Sentence and Bench Warrants.

In Ex Parte Hoover, supra, we said that since respondent was not bound to introduce the demand or requisition, appellant was in no position to complain that they were photostatic copies. The original executive warrant has been sent to this Court, and we find the same regular in all respects.

The judgment of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Benny LONGORIA, Appellant, v. The STATE of Texas, Appellee.
    No. 37132.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    Rehearing Denied Jan. 6, 1965.
    Henry Tirey, Dallas (on appeal only), Joe McNicholas, Dallas (on appeal only), for appellant.
    Bruce Allen, County Atty., Tom Crum, Asst. County Atty., Waxahachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for murder and his punishment was assessed at death.

The testimony of the state reveals that the appellant, while driving his automobile along a rural road, signaled for Elmo Rogers and his wife, Barbara, to stop their jeep, then at gun point and with threats to kill them he made them get in his car, and as Elmo drove, appellant told them he was going to Rocket to rob a store. He directed Elmo to stop the car at the store and order a quart of oil. This Elmo did. While the deceased was in front of the car, the appellant, exhibiting a shotgun, ordered the deceased into the- store and then shot him in the leg; and as the deceased started toward the store, appellant shot him in the head with the shotgun. The appellant entered the store, robbed the attendant of at least $85 in money, and left in the car with Elmo driving. While being pursued, the appellant told Elmo and Barbara to tell the officers that he made them do as they did, and he left the car. Several hours later the appellant was apprehended nearby in a barn.

The testimony of a physician who examined the body of the deceased at a hospital shows that a shotgun wound in the head caused the death of the deceased.

The appellant did not testify.

Appellant’s wife testified that about 3:10 P.M., August 20, the appellant gave her a note written in Spanish which she delivered to his brother the following morning. Raymond Longoria, appellant’s brother, while testifying, read the note to the jury. In the note appellant stated in substance, several times, that he was going to commit suicide, and made some personal requests including the place of burial.

An employer of appellant testified that he . was a good worker, and he had never heard anything against him. On cross-examination, he stated that he heard that appellant had paid a fine for being drunk in 1956; and that while appellant was working for him, he thought appellant knew right from wrong.

The state in rebuttal called Dr. Compton, M.D., who testified that he had examined the appellant and expressed the opinion that he knew the difference between right and wrong.

The sole contention relied on for reversal is that the trial court erred in refusing to grant appellant’s amended motion for a new trial on the ground of newly discovered evidence that he was insane. This contention is not properly before this court for review for the reason that it is not presented by a formal bill of exception. Art. 760e, Vernon’s Ann.C.C.P.; Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587; Calanchi v. State, 169 Tex.Cr.R. 97, 332 S.W.2d 722; Caldwell v. State, Tex.Cr.App., 364 S.W.2d 242; Bradford v. State, Tex.Cr.App., 372 S.W.2d 336; Adame v. State, Tex.Cr.App., 372 S.W.2d 545; Hill v. State, Tex.Cr.App., 375 S.W.2d 306.

In view of the penalty assessed, the amended motion for new trial and the evidence of both the appellant and the state, contained in a separate statement of facts, will be considered in reviewing the court’s action in overruling the motion:

The amended motion alleges that since the trial, material evidence has been discovered showing that appellant was insane at the time of the commission of the alleged offense and since that time has been insane. The motion is not verified and no affidavits are attached. The state took issue with the appellant by denying the truth of the allega-, tions in the motion, and offered evidence in rebuttal.

At the hearing, appellant’s wife testified that he would frequently have convulsions when drinking alcohol, would not recognize people, and sometimes would go into a rage; that she smelled the odor of alcohol on his' breath on the day of shooting. Further, that she was not asked about his mental condition when testifying on the main trial.

A brother testified that appellant had blackouts and seizures when drinking alcohol, and during such times did not know the difference between right and wrong. The brother was present in the courtroom during the trial, but did not testify.

A minister, who did not know appellant before he was incarcerated but had since visited him about seven times in jail and had read the note as shown in the summary of the evidence, testified that in his opinion the appellant did not know right from wrong and the nature and consequences of his acts.

An osteopath testified that he saw the appellant one time for a period of about two and one-half hours, that appellant had a deficiency in the architecture of the brain; that he had suffered from epileptic patterns since childhood; and that alcohol precipitated his problem, and when using alcohol and having seizures he did not know the difference between right and wrong.

In rebuttal, the state called Dr. John T. Holbrook, M.D., Dr. Robert Jones, M.D., and Dr. William R. Garrison, a clinical psychologist, and each testified that he had examined the appellant and expressed the opinion that the appellant knew the difference between right and wrong.

The affidavits of the sheriff and jailer of Ellis County and of Dr. Jones and Dr. Compton were introduced in evidence by the state, these affiants expressing the opinion that appellant knew right from wrong. It is noted that Dr. Compton testified on the main trial and Dr. Jones on the hearing of the motion. Also, the record shows that Dr. Jones examined the appellant at the request of the defense on February 2, before the main trial began on February 3, but he was not called to testify during the trial.

If the record properly presented appellant’s contention for review, it appears that a careful consideration thereof shows no abuse of discretion by the trial court in refusing the motion on the ground of newly discovered evidence,

It is observed that a jury trial upon the issue of appellant’s insanity is not precluded under the provisions of Art. 932b, Sec. 3, V.A.C.C.P., prior to the final disposition of this appeal.

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

Opinion approved by the Court.


author: DICE, Commissioner. MORRISON, Judge

text:
    Brooks TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 37139.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 6, 1965.
    Ralph Chambers, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

The state’s prosecuting witness, Gary Dale Hanks, operator of the Lindale Totem Drive-In Grocery located at 6618 Irvington in the city of Houston, testified that on the night of November 23, 1963, the appellant came into the store and bought a soda water. Appellant then took the soda water outside and when he returned with the bottle he produced a pistol, pointed it at the witness, and said: “This is a hold-up. Give me your money.” The witness, being in fear of his life or serious bodily injury, gave appellant approximately $100 in currency and half-dollars. After the robbery, appellant put the money in his pocket, required the witness to go into a “walk-in cooler,” and fled with a companion who had entered the store. .

Appellant’s written confession, made to Officer J. O. Parker following the arrest, was offered in evidence by the state, in which confession he admitted having committed the robbery.

Appellant objected to the introduction in evidence of the confession, on the ground that it was taken after indictment in the absence of counsel, in violation of the Fourteenth Amendment to the Constitution of the United States.

In the absence of the jury, testimony was presented which showed that appellant’s confession was made after indictment, and at such time he did not have counsel present. No testimony was offered by appellant with reference to the voluntary nature of the confession. The court, after hearing the testimony, overruled appellant’s objection to the confession and admitted it in evidence.

Proof was made by the state of the two prior alleged convictions.

Testifying as a witness in his own behalf, appellant denied having gone to the drive-in grocery on the night in question and robbing the prosecuting witness. Appellant further stated that his written confession was made under duress, by reason of bodily harm inflicted and threats made upon him by the officers.

Appellant’s claim of- bodily injury and threats by the officers was denied by Officer Parker, the person to whom the confession was made, and the issue as to the voluntary nature of the confession was submitted to the jury under appropriate instructions from the court.

Appellant’s sole contention on appeal is that the court erred in admitting the confession in evidence, over his objection that it was taken after indictment in the absence of counsel, in violation of the Fourteenth Amendment to the Constitution of the United States.

In support of this contention, appellant relies upon certain decisions by courts of other jurisdictions, including the Supreme Court of the United States in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

We have carefully reviewed the cases cited and conclude that under the facts here presented they are not controlling.

In Spano v. New York, supra, the confession was found, under the facts, to have been involuntary and the petitioner’s conviction was not permitted to stand, under the Fourteenth Amendment. While four of the justices in two separate concurring opinions made reference to the denial of petitioner’s request to consult with his counsel while being questioned, such denial was not the basis for the holding in the court’s opinion.

It should be here pointed out that there is no proof that appellant made any request to confer with counsel or that counsel be present when he made the ‘confession.

Massiah v. United States, supra, was a prosecution in federal court, where it was held that incriminating statements of an accused, obtained by federal agents under the circumstances disclosed, by surreptitious means, could not be constitutionally used against him. In that case, federal agents, by use of a transmitter installed in the automobile of the petitioner’s co-indictee, listened to a conversation between the two and testified in court to incriminating statements made by the petitioner.

No such facts are presented in the instant case.

The New York cases of People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, and People v. Meyer, 14 A.D.2d 241, 220 N.Y.S.2d 438, cited by appellant, are not here applicable, because they dealt with the rights of an accused under certain constitutional provisions and statutes of that state.

Art. 727, Vernon’s Ann.C.C.P., enacted by the legislature of this state, provides when a confession shall not be used, and contains no provision that it shall not be used when obtained in the absence of counsel for the accused.

Under the record here presented, the court did not err in admitting the confession in evidence. See: Lyles v. Beto, 5 Cir., 329 F.2d 332 (1964), which supports our conclusion herein.

The judgment is affirmed.

Opinion approved by the court.

MORRISON, Judge

(concurring).

I concur in the affirmance of this conviction solely on the grounds that nowhere in appellant’s testimony or elsewhere in the record do we find any reference to any request made by appellant to see any attorney or any evidence that he had employed an attorney or that he was too poor to employ one or that he had requested that one be appointed to represent him prior to the making; of the confession. So far as this record is concerned, this appellant had no desire for the services of an attorney at the time he confessed. Were it not for these facts, I am convinced that under the holdings of the Supreme Court of the United States in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, supra, this; conviction would be reversed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Joseph M. CVENGROS.
    No. 37158.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 6, 1965.

      Holman, Saccomanno, Clegg & Martin, Houston, Norman W. Black, Houston, of Counsel, for petitioner.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Petitioner seeks relief from an order entered in a civil suit (to which he was not a party) adjudging him in contempt of court for violation of a temporary injunction and remanding him to jail for three days and until a fine of $100 and costs were paid.

This Court has general original jurisdiction to issue writs of habeas corpus. Art. V, Sec. S, Constitution of Texas, Vernon’s Ann.St.

The Supreme Court of Texas has jurisdiction to issue writ of habeas corpus where any' person is restrained in his liberty by virtue of any order, process or commitment issued by any court or judge on account of the violation of any order, judgment or decree theretofore made, rendered or entered by such court or judge in any civil case. Art. 1737 Vernon’s Ann.Civ.St.; Ex parte Morris, 162 Tex. 530, 349 S.W.2d 99.

As a general practice, where there is reason to believe that the application falls within the area of concurrent jurisdiction, the Court of Criminal Appeals will decline to act until the Supreme Court has decided whether the case comes within its restricted habeas corpus jurisdiction.

If the Supreme Court exercises jurisdiction and issues or refuses to issue the writ, its orders will be treated by the Court of Criminal Appeals as a final disposition of the matter.

Ex parte Mussett, 72 Tex.Cr.R. 487, 162 S.W. 846, points out the reasons for the rule stated. See also Appellate Procedure in Texas, Original Jurisdiction of the Courts, Habeas Corpus, Ch. 1-3.

This petition was first presented to the Supreme Court where it was disposed of without written order. This Court ordered the petition filed and set for hearing on the question of whether the writ should issue, believing that the Supreme Court had declined to assume jurisdiction.

It now appears that the Supreme Court considered the petition and refused to issue the writ, but did not do so because of any question as to its jurisdiction.

The Supreme Court having concurrent jurisdiction under Art. 1737 V.A.C.S., the petition for writ of habeas corpus is dismissed.


text:
    Thomas Lorenza WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 37276.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 6, 1965.
    Kenneth Bing, Freeport, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an entry of a nunc pro tunc judgment.

Appellant was convicted on October 22, 1951, in the District Court of Brazoria County for theft of property over the value of $50.00; his punishment, two years confinement in the state penitentiary.

On June 8, 1964, the trial court on appellant’s application entered an order correcting the sentence to show that it should have contained the following: “This term to run concurrent with Federal Term existing on October 22, 1951.”

Appellant is attempting to here raise matters during the trial held some thirteen years before and apparently attack a sentence imposed against him in Moore County, Texas, in 1961. The trial court’s action did not disturb appellant’s status and constituted no action at all as the sentence was valid and had already been served. There is nothing before us for review.

No error is claimed in the nunc pro tunc proceeding, and we find none.

Accordingly, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Octa Branch ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37479.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.

      No attorney of record for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Ripley Woodard, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

The state’s testimony shows that on the day in question the appellant, while driving his automobile upon a public street and highway in the city of Houston, was involved in a collision with another automobile in which four young people were riding. After the collision, which occurred at an intersection, appellant drove about a block and stopped.

Larry Bond, the driver of the other automobile, testified that after the collision he went to where appellant was seated in his automobile, leaning against the door “from one side to the other,” and that at such time appellant acted as if he could not keep awake and was going to sleep.

Officers Rominger and Adamson testified that they went to the scene after the collision and observed the appellant. In describing his appearance and action, the officers testified that appellant appeared to be sleepy, that he had difficulty in producing his driver’s license, that he had trouble walking, his speech was slurred, he spoke with a lot of profanity and stated that he was “too damn drunk to drive his car.'v The officers testified that appellant had the smell of alcohol on his breath, and each expressed his opinion that appellant, at such time, was intoxicated.

It was further shown that after the collision a pint bottle of vodka which was one-fifth empty and two empty half-pint vodka bottles were found in appellant’s automobile.

Testifying as a witness in his own behalf, appellant admitted having had two drinks of vodka prior to the collision. He swore that he had no recollection of the collision and that he thought the juveniles in the other car were trying to curb him. Appellant denied making the statement that he was too drunk to drive "or having used profanity in talking to the police officers. He further denied that he was sleepy and explained that the reason for his leaning forward in the automobile was to relieve pressure from a chronic pain at the end of his spinal column.

The record contains no formal bills of exception and there are no objections to the court’s charge. No brief has been filed on behalf of appellant.

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

The evidence, being sufficient to support the jury verdict, the judgment of conviction is affirmed.

Opinion approved by the Court


text:
    Andrew JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37172.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 16, 1964.
    Mac L. Bennett, Jr., W. T. Bennett, Huntsville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for assault with intent to murder, and his punishment was assessed at two years.

The testimony of the state reveals that Freddie Short, the injured party, went to the house of Salome Mosley around' 12:30 or 1 A.M. to get his young son who was asleep in a small house about 36 feet from Salome’s house. Short parked his car, with the lights shining on the small house. While Short was trying to open the door, appellant arrived and parked his car behind Short’s, jumped out, and with a shotgun held down at his side ran between the two houses. When someone in the large house screamed “Gooch, don’t shoot that man,” Short turned, facing appellant, who said, “I knowed I’d catch you”, and Short threw up both hands and said “Don’t shoot me, Gooch. Don’t shoot me, please. I ain’t done nothing to you.” Then appellant, standing about midway between the two houses, raised the shotgun to his right shoulder and fired. After Short ran behind the small house and removed some splinters from his face, he saw the appellant get in his car and leave. Short ran to his car to go to the hospital and when he got to his car he turned his lights off, and then saw the appellant turn and start back. Then Short ran into some bushes and hid. When appellant got back to Short’s automobile he jumped out of his own car and asked: “Who pushed out these G- d- lights?”, saying also, “Salome, you’re trying to help him * *. If you stick you- G- d- head out that door I’ll blow your G- d- head off, because I’m going to kill him, Gd- it, if it’s the last thing I do.” The evidence shows that shotgun pellets damaged the screen door and the wooden door. At this time appellant’s mother arrived and they left the scene. Short went to the hospital and the doctor removed some splinters and wire from his face.

The appellant did not testify but called several witnesses who testified that he bore a good reputation.

The sheriff, also called as a witness by the appellant, identified a written statement which appellant made to him shortly after the shooting.

The statement, introduced in evidence by appellant, recites, in part, that he (appellant) had been going with Salome Mosley eighteen years; that he had heard Short was trying to go with her; that he followed him to her house; that he took with him a 12-gauge shotgun, with No. 4 shot, with which, in order to scare him, he shot at the door where the appellant was standing. He further testified that he had been giving Salome money and was terribly in debt.

The arresting officer, Darby, testified on cross-examination that appellant told him he just shot to scare Short.

It is contended that the trial court erred in failing to quash the indictment on the grounds that it was so general, vague, and indefinite that it did not apprise the appellant of sufficient facts to enable him to intelligently defend against it; and that, having alleged that the appellant did "shoot at Freddie Short with a shotgun,” (Emphasis added) it was necessary to further plead the means by which he thereby intended to commit the offense

The indictment alleged that the appellant “ * * * did then and there unlawfully with malice aforethought shoot at Freddie Short with a shotgun with the intent then and there to murder the said Freddie Short.”

An indictment for an assault with intent to murder need not allege the means used nor the manner of such use. Clark v. State, 162 Tex.Cir.R. 493, 286 S.W.2d 939; Thom v. State, 167 Tex.Cr.R. 258, 319 S.W.2d 313. The words “shoot at” did not vitiate the indictment, but placed upon the state the burden of proving them.. 1 Branch (2nd), 497; Sec. 518. These averments were met with the proper proof.

The refusal to grant the motion to quash the indictment as above contended was. not error.

It is further contended that the-trial court erred in refusing to grant his-motion to quash the indictment on the-ground that the name of the injured party was Freddie Shaw instead of “Freddie-Short”, as alleged.

The injured party testified that since-his mother told him when he was about twelve years old that his name was Short and not Shaw, he had used Short as his-real name, although at times he had used the name Shaw. The written statement, made by the appellant to the sheriff on the-day of the shooting, and introduced in-evidence by the appellant refers twice to-the injured party as Freddie Short, and', made no reference to him as Freddie Shaw.. Other testimony for and against the motion was offered.

It is concluded that the proof sufficiently shows that the injured party was Freddie-Short, as alleged. Art. 401, Vernon’s Ann. C.C.P.; Roberts v. State, 170 Tex.Cr.R. 146, 338 S.W.2d 718.

Error is urged on the ground that, the trial court refused to admit the testimony of Edith Goodin that appellant-over the years had hunted squirrels'- and rabbits and was a good shot with a shot- ■ gun. Appellant stated that he offered this testimony to show “that a man who could hit a squirrel in a tree could sure hit a man if he wanted to.”

In view of the testimony of the witness Goodin before the jury on appellant’s ability to shoot, to-wit: “Yes sir, he was a good shot”, the above contention presents no error.

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

Opinion approved by the Court.

McDONALD, j., not participating.


text:
    Burrell Issac GANDY, Appellant, v. The STATE of Texas, Appellee.
    No. 37140.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    Rehearing Denied Jan. 6, 1965.

      Dunnam, Dunnam & Dunnam, by W. V. Dunnam, Jr., Waco, for appellant.
    Charles H. Bolton, County Atty., Meridian, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving while intoxicated; the punishment, 60 days in jail and a fine of $50.

James A. Wright, Texas Highway Patrolman, testified that he observed the appellant driving a pickup truck on a public highway in Meridian, Bosque County, about 7:35 at night. He noticed that the tail light was not burning. The appellant was driving “exceptionally slow” and made “an exceptionally wide turn” at an intersection. He stopped the appellant who appeared to be intoxicated. He asked the appellant to get out of his vehicle and he did so. He observed the appellant closely, and observed that he smelled strongly of intoxicants, his speech was impaired, he slurred his words as he talked. He swayed as he walked. In his opinion, the appellant was intoxicated.

Deputy Sheriff and Jailer Charles Buckingham, who was in the patrol car with Patrolman Wright, gave similar testimony.

The appellant testified that he was not intoxicated and that he drank nothing at all that day except two bottles of beer which he drank in the morning.

Defense witness J. L. Mantooth testified,, as did the appellant, that they went fishing-that day and were together from about. 11:30 A.M. until about 7 P.M. and that they had no alcoholic beverages with them and' the appellant consumed none and had none-in his possession.

Mr. Mantooth testified further that he-followed the appellant’s pickup as it was being driven to the jail by the deputy sheriff' and observed the appellant and talked to¡ him and that he was sober.

Ranchman Fred Wright, called by the-defense, testified that he saw the appellant about sundown at which time he was in company of Mr. Mantooth and was, in his-opinion, sober.

Defense witness James E. Long testified' that he saw the appellant at the sheriff’s-office and that he was sober.

Each of the witnesses testified to their observation of the appellant and the facts-upon which they based their opinion as to-his being intoxicated or sober at the time-they observed him.

The appellant also called Clark Royal',, former Liquor Control Board Agent, and former Sheriff of Bosque County. Mr. Royal did not see the appellant at the time he was allegedly intoxicated. He went to-the sheriff’s office about 8:30 the following morning and signed the appellant’s bond. When asked “whether or not a man who has been drunk the night before has some visible showings of it at 8:00 or 8:30 the next morning,” he testified, over objection, that he could tell; “You can tell more by the scent. You let a person get drunk the night before on beer; you can smell him 10 feet away for 24 hours after he’s sobered up unless you let him take a bath.” He said that he “couldn’t smell a thing on him that morning.” Mr. Royal also attested the good reputation of the appellant for truth and veracity.

Sherill Benson, a farmer, over objection was also permitted to testify that the ap-pellant’s general reputation in the community for truth and veracity was good, though appellant’s truthfulness or veracity had not been made an issue.

There is one formal bill of exception. It relates to the overruling of appellant’s motion for mistrial when the jury, during its deliberations, sent a note to the court inquiring about the refusal of defendant to submit to a blood test.

It is appellant’s contention that his formal hill “shows affirmatively that the jury considered whether or not the defendant refused to take a blood test.”

No motion for new trial was filed and the question of jury misconduct is not before us.

The record shows that on cross-examination Patrolman Wright was interrogated as to the steps leading to the court house and was asked and answered:

“Q. * * * how many steps is there up and down that * * * out here into this court house here?
“A. I believe there’s 4 or 5.
“Q. 4 or 5. You don’t know, do you?
“A. Not for sure.
J‘Q. Approximately how high a step.? does a man have to climb to get up there?
“A. About so high I guess (indicating with hands height)
“Q. You could be wrong about that? Couldn’t you?
“A. I never have measured them.
“Q. You could be wrong in that? Couldn’t you?
■“A. I’ve never measured them, I wouldn’t know.
“Q. You didn’t measure the amount of alcohol, if any, that this old man had drunk either, did you?
“A. No.”

On re-direct examination by the County Attorney, Patrolman Wright was asked and answered:

“Q. Counsel asked you if you measured * * * this was his question to you; ‘Did you measure the amount of alcohol in this man ? ’ and my question is, did you have opportunity to do that ?
“A. No sir, he wouldn’t let me.”

We are unable to agree with the appellant’s contention that the question directed to the witness by appellant’s counsel did not relate to the question of a measure of the alcohol content of appellant’s blood.

We see no material difference between the question propounded to the witness Wright by appellant’s counsel shown by the record, “You didn’t measure the amount of alcohol, if any, that this old man bad drunk,” and the county attorney’s version of the question, “Did you measure the amount of alcohol in this man?” or the court’s reference to the question as being “whether or not this witness measured the alcohol content of his person.”

We are aware of no method other than one relating to the alcohol content in his blood which the witness who had not seen the appellant drinking could use to measure the alcohol he had consumed.

We overrule appellant’s contention that the court should have granted his motion for mistrial.

We see no error in the communication between the court and jury. The note from the jury inquired “Did Officer Wright ask Gandy to submit to a blood test and if so did he refuse?”

The court, having overruled appellant’s motion for mistrial based upon the note, instructed the jury in writing: “You must not consider in your deliberations whether the defendant was requested to submit to a blood test by Officer Wright or whether or not he did submit to a blood test.”

There is no evidence that the jurors violated the court’s instruction.

Appellant’s complaint that he was not furnished a copy of the information is not before us. There is no formal bill of exception relating to such matter and the motion is not one of the motions included or' referred to in Art. 760e, Vernon’s Ann. C.C.P. relating to informal bills.

The error, if any, in the exclusion of testimony of the witness Mantooth to the effect that he was under doctor’s orders not to drink any alcoholic beverages is not such as would warrant reversal.

The remaining ground for reversal relates to re-cross examination of Ex-Sheriff Clark Royal wherein he was asked, and answered: “Q. Do you recall the time while you were Sheriff, while you were on the payroll of the County, charged with enforcing the law that another officer had jailed one charged with DWI and you came down before breakfast and released that man, do you remember that? A. No sir, I sure don’t.”

The trial court sustained appellant’s objection and instructed the jury not to con-, sider the testimony and no motion for mistrial was made.

While the question should not have been asked, the error, in view of the witness’ testimony and the record, is not ground for reversal.

The evidence is sufficient to sustain the jury’s verdict and we find no reversible error.

The judgment is affirmed.


text:
    Thomas Hollan YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 37454.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    J. Harlan Fleming, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a plea of guilty to the offense of robbery by assault before the court without a jury, the punishment was assessed at twelve years.

The evidence as agreed and stipulated by the state, the appellant in person, and his counsel, reveals that Ronald Kesler identified the appellant as the same person who entered his grocery store and by force took $150 in money from his possession and without his consent by putting him in fear of bodily injury and his life.

The appellant did not testify.

There are no bills of exception.

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

Opinion approved by the Court.