author: HILL, Judge.

text:
    MENGEL PROPERTIES et al., Appellants, v. CITY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    As Modified on Denial of Rehearing April 15, 1966.

      Lawrence S. Grauman, Louisville, for appellant.
    Eugene H. Alvey, Bernard S. Goldstein, Louisville, for appellee.
   HILL, Judge.

Appellant Mengel Properties, a corporation, appeals from a verdict and judgment of $132,000 for 42.9 acres of unimproved land sought by appellee, the City of Louisville, to be used along with other land in constructing a zoo. The procedure provided in KRS 97.257 and 416.120 was followed.

A reversal is urged on the grounds that: (1) the trial court erred in refusing to permit the introduction of competent evidence; (2) the trial court erred in overruling appellant’s motion to discharge the jury for misconduct of the witness Harris; (3) the award by the jury was grossly inadequate; (4) the court erred in admitting incompetent evidence by appellee; and (5) the court erred in permitting appellee to introduce the testimony of the witness Libby in rebuttal.

The land herein condemned is situated between Trevilian Way and the Watterson Expressway in the southern part of the corporate limits of the City of Louisville, with frontage of 1,500 feet on Shuff Lane. It was purchased in 1960 by appellant for $79,000. At this time, it was known by appellant that a sewer system would be extended to the subject property without cost to appellant. Such system was thereafter installed.

First, appellant contends the trial court erred in refusing to allow appellant to prove by Eugene Alvey that appellee purchased 37.24 acres adjacent to the subject property for $186,200 and another tract containing 61 acres in the amount of $198,250. Appellant argues that these two sales were voluntary transactions, and that the land was comparable to the land herein condemned. With this we cannot agree. At the time the claimed comparable sales were made, condemnation cases were pending to acquire title thereto. We have held that purchases of property by potential condemners are not admissible as comparable sales. Commonwealth, Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15 (1963); Commonwealth v. Evans, Ky., 361 S.W.2d 766 (1962); and Commonwealth, Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964). It is earnestly insisted by appellant, not without eminent authority such as Nichols’ Eminent Domain and 1 Drgel on Eminent Domain, that purchases by prospective condemners should be admitted and obj ection to such evidence should go to its weight rather than to its admissibility. It is also pointed out that a distinction should be made in a situation where the condemner is not compelled to acquire the land and those situations where the condemner is impelled to acquire, as in highway condemnation cases. In Commonwealth Dept. of Highways v. McGeorge, Ky., 369 S.W.2d 126 (1963), we recognized such a distinction, but we classed as compulsory the situation where the condemner has “committed itself to * * * a particular block of tracts” and has “begun the acquisition.” That was the situation in the instant case, and in our opinion the evidence in question was properly excluded.

Complaint is made of the refusal of the trial court to allow appellant to show that the Planning and Zoning Commission requires the Metropolitan Sewer District to approve property before the Commission will act favorably. This is the law, hut we fail to see wherein such evidence would have been of aid to the jury- in arriving at the value of the property.

Error is claimed also when the trial court allowed appellee to prove that the City of Louisville, in consideration of appellant’s giving an easement through its property, installed the sewer without cost to the property owner. We consider this evidence improper hut not prejudicial to appellant. Without question, the construction of sewer facilities thereon increased the value of appellant’s property. However, as is noted above, appellant and its predecessor in title knew of the planned sewer extension at the time of purchase of the tract. Although the sewer was not actually constructed until after the acquisition of the tract by appellant, it is fair to assume that such circumstances figured in the sale price of the property. We conclude this evidence was not prejudicial to appellant in view of the fact that the verdict was about $52,000 more than the property cost appellant four years before the taking.

The second ground presented for our consideration relates to the testimony of the witness Harris, who referred unresponsively to the assessed valuation of appellant’s property at $42,520. Following is a full quotation of what was said in connection with the assessed valuation:

“A. * * * and in your overall thinking, you know the assessment is $12,520 and you know its (sic) the duty of the tax assessor—
“Mr. Grauman: Now, your Honor, Mr. Goldstein knows that’s not competent.
“Mr. Goldstein: Now that wasn’t responsive to my question Judge. I think it has no bearing on the case.
“The Court: Listen to counsel’s questions, Mr. Harris, and answer them directly.
“Mr. Grauman: Counsel for the defendants moves to discharge the Jury because of the misconduct of the witness Claude H. Harris.
“The Court: Overruled.”

The jury heard all of this exchange except the motion to discharge the jury. Certainly the jury must have concluded that the testimony was improper because both attorneys and the court treated it so. While it is true the tax assessment of property is incompetent unless assessed by the property owner, as was held in Commonwealth v. Gilbert, 253 S.W.2d 264, 39 A.L.R.2d 205 (1952), we must give due credit to the intelligence and fairness of the jury in being able to disregard improper evidence that may creep into a trial. We think the court committed no error in overruling the motion to discharge the jury. There was no motion for an admonition to the jury. In Commonwealth v. Shaw, Ky., 390 S.W.2d 161 (1965), this Court said:

“However, it is counsel’s responsibility to request the relief to which he is entitled, and in the absence of an appropriate motion the trial court’s failure to act on its own volition is not an error. The court is of the opinion that a blanket motion to strike the entire testimony of the witness is not sufficient to make it incumbent on the trial court, upon correctly overruling the motion to initiate some other and more appropriate action.”

The Shaw case involved a motion to strike the evidence of a witness. We think the situation is analogous.

It is next insisted the verdict is grossly inadequate. Three of appellee’s witnesses fixed the value of the tract between $93,000 and $109,275. Three witnesses for appellant fixed the valuation from $215,000 to $258,000. We cannot say the amount of the verdict strikes the mind of the court at first blush as having been given under the influence of passion or prejudice. Cf. Commonwealth, Dept. of Highways v. Adams, Ky., 388 S.W.2d 569 (1965); Commonwealth, Dept. of Highways v. Osborne, Ky., 387 S.W.2d 854 (1965); Commonwealth, Dept. of Highways v. Gardner, Ky., 388 S.W.2d 360 (1965); Commonwealth, Dept. of Highways v. Darch, Ky., 390 S.W.2d 649 (1965); and Commonwealth, Dept. of Highways v. Holbrook, Ky., 390 S.W.2d 897 (1965).

Appellant complains of evidence offered by appellee relative to other sales, particularly evidence of the sale of a 24-acre tract with a large brick residence thereon. The witness undertook to value the residence separately in an effort to fix a value on the land without the improvements. We conclude this evidence was competent. Its weight was a matter for the jury to determine. Whether the land in the 24-acre tract was like or similar to the subject property was likewise a question for the jury.

Finally, it is asserted by appellant that the court erred in allowing appellee to introduce the witness William P. Libby to testify in rebuttal. Appellant contended and offered evidence that there was no low land subject to overflowing contained in the tract sought to be condemned. Appellee sought to prove by Libby that he used a planimeter to determine that 12.9 acres was low land. His evidence is also attacked because his name did not appear on the list of appellee’s witnesses.

Appellant reminds this Court that in some jurisdictions the parties in litigation are required by pre-trial order to furnish the adverse party with a list of the names of all witnesses intended to be used at the trial, and that failure to furnish the name of a witness may be grounds for refusing to allow such witness to testify. Newsum v. Pennsylvania Railroad Co., 97 F.Supp. 500 (S.D.N.Y.) (1951), and Battershell v. Bowman Dairy Co. (1962) 37 Ill.App.2d 193, 185 N.E.2d 340, are relied on by appellant. This Court has not definitely adopted this rule, but a quotation from 17 Am.Jur. section 68, (Discovery and Inspection), page 64 appearing in Commonwealth, Dept. of Highways v. Frank Fehr Brewing Co., Ky., 376 S.W.2d 541, indicates the rule may in a proper case be invoked. The rules of civil procedure do not require litigants to furnish the names of their intended witnesses. We do not now announce the rule as a hard and fast one but prefer to leave the question to the sound discretion of the trial judge. It can be said, however, that ordinarily there would be less reason to apply the rule to rebuttal witnesses.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FRANKLIN COUNTY et al., Appellants, v. Mose WEBSTER et al., Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.

      William A. Young, Frankfort, for appellants.
    Allen Prewitt, Jr., William M. Johnson, George M. Catlett, Thomas F. Marshall, Frankfort, for appellees.
   HILL, Judge.

This is an appeal from an order sustaining a motion to dismiss the complaint in an injunction suit filed by appellants attacking the action of the Capital Planning and Zoning Commission granting Petrie and Throneberry a special permit to construct a nursing or convalescent home adjacent to Indian Hills No. 4 subdivision of the city of Frankfort.

The complaint, the allegations of which must be taken as confessed on a motion to dismiss under CR 12.02(6), pleads an estop-pel and that the action of the Commission is void because the ordinance of the city of Frankfort empowering the Capital Planning and Zoning Commission to issue an additional use permit was in violation with KRS 147.480, 100.079, and 100.086.

Appellees take the position, which was followed by the trial court, that the appellants cannot maintain this action because they had an administrative remedy under KRS 100.057 which they failed to pursue. Appellees also contend some of the appellants have no capacity to sue, and the lower court so found. But inasmuch as we reverse the judgment and conclude some of the appellants are entitled to the relief sought, it becomes unimportant that some of the appellants “had no standing to challenge” the act in question.

Before discussing the legal questions involved here, we should identify the parties and outline some of the historic background of this litigation. Appellants Stokes and Thompson are the owners of lots and residences in Indian Hills No. 4, a subdivision immediately adjacent to the city limits of Frankfort. They undertake to prosecute this action as a class in their own interest and in the interest of others like situated. We refer to them herein as the “Residents.” The other appellants are Franklin County, the individual members of the Franklin County Fiscal Court, and the County Judge of Franklin County.

Appellees include Mose Webster, Building Inspector and Zoning Enforcement Officer of the City; the individual members composing the Capital Planning and Zoning Commission; R. E. Petrie and Charles W. Throneberry, applicants for the permit in question; and Franklin Goins and James C. Pickett, the developers of the subdivision. R. E. Petrie and Charles W. Throneberry will hereinafter be referred to as the “Applicants” ; the Capital Planning and Zoning Commission will be designated the “Commission”; and Goins and Pickett will be referred to as the “Developers.” Although not a party, a Board of Zoning Adjustment and Appeals was created by Kentucky Acts 1950, Chapter 214, now KRS 147.540, and will be referred to in this opinion as the “Board.”

On September 14, 1959, the Commission approved a plat of “Indian Hills No. 4,” including lots No. 41 and 42. Shortly thereafter and before the recording of the plat, the Commission made a zoning change of a 16-acre tract joining the subdivision, lot No. 42, and portions of lots No. 41 and 43 so that after the change all the territory contained in said 16-acre tract, lot No. 42, and the portions of lots No. 41 and 43 were classified from R-l (single-family dwelling) to C-l (local commercial). A nursing home is not authorized under R-l or C-l classifications. This was about October 20, 1959. It is also alleged in the complaint that after the change above referred to, Stokes and Thompson purchased lots in the subdivision in question upon the strength of representation made by the Developers that all the lots therein including Nos. 41, 42, and 43 would be used only for single-family dwellings.

Early in 1964 the Developers sold to Applicants a portion of the land in question for the purpose of erecting a “nursing” or “convalescent” home. Applicants requested a permit, or technically a “certificate of occupancy”, from appellee, Mose Webster, Building Inspector and Zoning Enforcement Officer, and were informed such permit could not be issued because a nursing home was not authorized under C-l zoning classification. Application was then made to the Commission for an “additional use permit” under City Ordinance 71.17 enacted October 27, 1952, which ordinance, among other things, provided:

“The Capital Planning and Zoning Commission may, by special permit after public hearing, authorize the location of any of the following buildings or uses in any district from which they are prohibited * * * (c) hospitals, clinics, and institutions, including educational, religious, and philanthropic institutions and convalescent homes * * *.”

It is argued by appellants that the attempted appeal of the order of the Building Inspector to the Commission and the order of the Commission granting the permit are void as being unauthorized and in conflict with KRS 147.540(2), 100.079, and 100.086. We quote from 100.079: “Appeals to the board may be taken by any person, * * * aggrieved by any official action or decision of any zoning enforcement officer.” In other words, appellants contend the above statutes provide for an appeal from the action of the Building Inspector and Zoning Enforcement Officer directly to the Board and not to the Commission. This premise is based on the proposition that Chapter 214 of the Legislative Acts of 1950, section 2, amending KRS 147.220, defined the powers and duties of the Commission in terms of a planning and advisory commission and did not empower the Commission to entertain an appeal from the order of the Building Inspector, but that the same Act of 1950, section 4, KRS 147.245, creating a Board of Zoning Adjustment and Appeals, specifically and exclusively provided for appeals to the Board. Better stated, the thrust of appellant’s position is that “by the enactment of Section 71.17 of the ordinance of the city of Frankfort, the City has undertaken to transfer to one administrative agency a power and function clearly vested by statute in another administrative agency by the same statute.”

Appellees’ counter contention, while not conceding the invalidity of City Ordinance 71.17, is that by the enactment of Chapter 147 of the 1950 Acts of the General Assembly “any and all existing planning and zoning plans, ordinances, resolutions or orders, and regulations and restrictions or amendments thereof in effect within the respective territorial jurisdiction of the county and city shall continue and remain in full force and effect.” With this position we cannot agree. If the ordinance was void insofar as it attempted to proyide for appeals inconsistent with the provisions of KRS 147.510, it was invalid for all purposes and was not resurrected by the Act of the legislature. We think the legislature did not intend by the enactment of KRS 147.540 to enlarge the powers of the Commission or alter the provisions for appeal contained in KRS 147.540.

In the recent case of Thomas v. Barnett, Ky., 397 S.W.2d 781 (1965), in the discussion of an ordinance similar to that under consideration here, this Court observed:

“Actually, we would doubt that the order gives such authority to the planning and zoning commission, as distinguished from the board of zoning adjustment and appeals, because the granting of permission for special uses or special exceptions is not within the statutory powers of the zoning commission as set forth in KRS 100.854 and 100.860, while it is among the statutory powers of the board of adjustment and appeals under KRS 100.866. See Schmidt v. Craig, Ky., 354 S.W.2d 292.”

We conclude that so much of City Ordinance 71.17 as attempts to empower the Commission to entertain appeals from orders of the Building Inspector or to grant special permits is void. It is written in 1 Am.Jur.2d Administrative Law, section 70, p. 866 that:

“Where a statute authorizes local governmental authority to create a particular agency but the statute itself provides the authority and powers of the agency, as in the case of local zoning boards of adjustment, the powers of the agency stem directly from the statute and may not in any way be circumscribed, altered, or extended by the municipal governing body, and under these circumstances an ordinance creating-a local board need not include a word-for-word recital of the statutory powers of the board.”

The statute is paramount to the ordinance. City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945); Reed v. Hostetler, Ky., 245 S.W.2d 953 (1952); and Linkous v. Darch, Ky., 323 S.W.2d 850 (1959). In the discussion of facts analogous to those in the present case, this Court said in Darch, supra:

“An administrative agency such as the Department of Insurance generally may regulate relative to administration and enforcement of a statute when the regulation is within the limit set by the statute, but the regulation adopted must not exceed the specific power delegated to the agency by the Legislature. It may not by rule or regulation amend, alter, enlarge, or limit the terms of a legislative enactment.”

Having reached the conclusion above indicated, we turn now to the question of procedure raised by appellees. They point out that KRS 147.560 and 100.057 provide the exclusive remedy, that of appeal, by the filing of a certified copy with the circuit court clerk of such order appealed from within thirty days from its entry. It is true appeal is provided by statutes, and usually this remedy must be exhausted. See Oertel v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 251 S.W.2d 275 (1952); Hennessy v. Bischoff, Ky., 240 S.W.2d 71 (1951); and Bischoff v. Hennessy, Ky., 251 S.W.2d 582 (1952). However, it is provided by KRS 100.086 that: “Nothing contained in KRS 100.031 to 100.097 shall be construed to deprive any person * * * of any right * * * to proceed by injunction, mandamus, or other appropriate proceeding either in equity or law.” This Court has interpreted the foregoing statute adversely to appellees’ contention in Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948), and Louisville & Jefferson County Planning & Zoning Commission v. Stoker, Ky., 259 S.W.2d 443 (1953). We quote from Goodwin, supra: “But direct judicial relief is held available without exhaustion of administrative remedies where the statute is charged to be void on its face * * *.”

In the present case the remedy of appeal provided by KRS 147.560 and 100.057 is not considered exclusive. We might also point out that these statutes do not pertain to appeals from the action of the Commission.

The procedure followed was available to appellants Stokes and Thompson.

The judgment is reversed with directions for further proceedings consistent herewith.


author: CULLEN, Commissioner.

text:
    PROPANE TRANSPORT COMPANY, Appellant, v. Earl EDELEN, Appellee.
    Court of Appeals of Kentucky.
    March 18, 1966.

      Edwin O. Davis, Davis & Mahan, Louisville, Robert C. Jackson, Brandenburg, for appellant.
    James R. Watts, Brandenburg, Charles B. Zirkle and James H. Highfield, Louisville, for appellee.
   CULLEN, Commissioner.

In this litigation growing out of a collision involving three motor vehicles the jury’s verdict was:

“The twelve members of this jury have agreed that Mr. Jupin was the cause of the accident. We also agree that the Propane truck was also at fault by traveling too close. We agree to award Mr. Edelen $10,000.00; $5,000.00 to be paid by the Jupin estate. $5,000.00 to be paid by Propane Transport Company.”

Judgment was entered awarding Edelen (the appellee here) $5,000 against the Jupin estate and $5,000 against Propane Transport Company. The latter company has appealed.

Edelen was driving his pickup truck in a northerly direction on a two-lane state highway. A tractor-trailer unit of the Propane Transport Company, operated by an employe, Oliver Leihgeber, was following the Edelen truck. Roy Jupin’s automobile was approaching from the opposite direction. The Jupin vehicle came across on the wrong side of the road and struck the Edelen truck, despite the fact that Edelen had driven almost completely off the road on his side to avoid being hit. The Propane unit, in Leihgeber’s efforts to stop it, jackknifed and the trailer slid into the Edelen truck. Jupin was killed in the accident and Edelen was injured. Everyone involved in the accident sued everyone else but we are concerned here only with the verdict and judgment in favor of Edelen against Propane.

There was evidence that the tank-trailer in the Propane unit was empty; the highway was wet; the Propane unit had attempted to pass the Edelen truck around a quarter of a mile back from the scene of the accident; the accident occurred a short distance beyond the crest of a hill which the Edelen and Propane vehicles had climbed, and as they went up the hill the Propane unit was as close as 40 feet to the Edelen truck; the Propane unit struck the Edelen truck only a second or less after the Jupin car hit the truck.

The applicable statute, KRS 189.340(6) (a), provides:

“The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having regard for the speed of the vehicle and the traffic upon and condition of the highway.”

An obvious purpose of the statute is that a reasonable margin of safety be allowed in case of an emergency requiring the front vehicle to stop, reduce its speed, or change its course. The statute contemplates that emergency situations may arise, so it is no excuse for a too close follower that his collision with the front vehicle was precipitated by an emergency.

It is our opinion that reasonable men could conclude that a following distance of only 40 feet with an empty tank-trailer, on a wet country highway, going up a hill which crested so as to limit the visibility ahead, was more close than was reasonable and prudent. Certainly it left practically no margin of safety in case of an emergency confronting the driver of the front vehicle. Traffic conditions were not so congested (as they often may be on urban expressways) as to require close following.

What we have said answers the contention of the appellant that it was entitled to a directed verdict because there was no evidence of negligence on the part of the Propane driver.

The appellant also contends that it should have had a directed verdict because Edelen judicially admitted that Ju-pin’s negligence was “the” proximate cause of the accident. Nowhere in Edelen’s testimony did he admit that the Propane truck was not closer behind him than was reasonable and prudent; so he did not admit that the Propane driver was not negligent. As far as proximate cause is concerned, Ede-len’s description of the circumstances of the accident, while perhaps constituting an admission that the Propane driver could not avoid the accident after the Jupin car created the emergency situation, in no way admitted that the Propane driver could not have avoided the accident had he been maintaining a reasonably long distance between his unit and the Edelen truck. The apparent belief of the appellant that there can be only one proximate cause is of course fallacious. See Alva West & Co. v. Corwin, 273 Ky. 557, 117 S.W.2d 192.

The appellant’s final contention is that because the jury did not make an award against the driver of the Propane vehicle (who was a party to the suit) the judgment against the Propane Company is void. This contention is based on cases such as Baldwin v. Wiggins, Ky., 289 S.W.2d 729, holding that exoneration of the employe by the jury requires that the verdict against the employer be set aside. We do not construe the verdict in the instant case (quoted at the outset of this opinion) as indicating any intent to exonerate the driver. In fact, the finding that the “truck” was at fault was obviously a finding of negligence of the truck driver.

In Bowling Green-Hopkinsville Bus Co. v. Adams, Ky., 261 S.W.2d 14, the court pointed out that there is no invariable rule that in every case and under all circumstances the mere failure to specifically find against the servant will be regarded as an affirmative finding in his favor, such as to relieve the master. The problem, says the opinion, is merely one of determining the intention of the jury as indicated by the verdict. As in that case, we think here that the verdict, fairly interpreted, amounted to a finding against the employe. This being so, the trial court properly could have entered judgment against the employe on the verdict. However, no one asked the court to do that, so no one can here complain of its not having been done.

The judgment is affirmed.


author: PER CURIAM.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. Ferdinand LEDERLE et ux., Respondents.
    No. A-11102.
    Supreme Court of Texas.
    March 23, 1966.
    Head & James, Michael C. Kendrick, Jr., with above firm, Charles R. Cunningham, Corpus Christi, for petitioner.
    Mahoney, Shaffer & Hatch, Corpus Christi, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 394 SW.2d 31. We granted writ of error to review the holdings made by the Court of Civil Appeals and its judgment declaring the rights and duties of the parties.

The parties have now filed a joint motion to dismiss the applications for writ of error filed by both parties, asserting in their motion that all matters in controversy have been compromised and settled.

The cause is moot. To dismiss the applications would permit the judgment of the Court of Civil Appeals to become a final judgment in a moot case. No reason is made known to us and none appears in the record to cause us to vary from the rule that a moot cause should be dismissed. See University Interscholastic League v. Sims, 133 Tex. 605, 131 S.W.2d 94 (1939); International Ass’n of Machinists, Local Union No. 1488 et al. v. Federated Ass’n of Accessory Workers et al., 133 Tex. 624, 130 S.W.2d 282 (1939); City of Western University Place v. Martin, 132 Tex, 354, 123 S.W.2d 638 (1939).

• It is accordingly ordered that the judgments of the courts below be vacated and that this cause be, and the same is hereby, dismissed with costs assessed according to the agreement of the parties.


author: WOODLEY, Judge.

text:
    Leroy KNOX, Appellant, v. The STATE of Texas, Appellee.
    No. 39213.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 13, 1966.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Edward B. McDonough, Jr., and Frederick M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital, life.

Trial was before a jury on a plea of not guilty. Notice of appeal was given on August 6, 1965, and entered of record as part of the sentence.

The prior convictions were proved by the records and appellant admitted his identity as the defendant so convicted.

The evidence from the standpoint of the state shows ¿hat appellant, while in the appliance section of Britt’s Department Store in Houston, was seen by a clerk to go behind a counter, stoop down, open the front counter and take two radios out, then open the second counter and take two .radios out. As he was walking toward the rear exit he was holding one of the radios underneath his coat. When stopped, some 10 or 15 feet from the exit, he had four radios in his possession, one inside his pants, one in his pants pocket, one in his coat pocket and the one that he was holding under his coat.

The state’s evidence further shows that the four radios were of the value of more than $50 and that the assistant manager in custody and control of the merchandise in the store did not give his consent to the removal of the radios from their location in the store.

Appellant’s version was that he went to the store to buy a radio; had selected a transistor Valiant and was looking for someone to pay. He denied having any other radios in his possession of having any intent to steal a radio.

The jury resolved the disputed issue of fact against appellant.

The record shows that appellant orally moved for continuance and that his objections to the court’s charge were orally made. Any error in the overruling of such motion and objections is not preserved, the statutes requiring such to he in writing. See Arts. 540 and 658 Vernon’s Ann.C.C.P.

The record further reflects that appellant objected to the sustaining of the state’s objection to the question propounded to the jury panel on voir dire as to whether or not they understood the penalty to be meted out if appellant was “found to be guilty of being an habitual criminal.”

Under the statutes and decisions applicable at the time of the trial, the trial court did not err in sustaining the state’s objection. Punchard v. State, 142 Tex.Cr.R. 531, 154 S.W.2d 648.

The judgment is affirmed.


author: DICE, Commissioner. BELCHER, Commissioner.

text:
    Jimmie Ray GUILLORY, Appellant, v. The STATE of Texas, Appellee.
    No. 38769.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Rehearing Denied March 30, 1966.

      James M. Crane (Court Appointed), Con-roe, Hopkins & Alworth (Court Appointed), Conroe, for appellant.
    Ellis A. Oualline, Jr., Dist. Atty., William J. Benardino, County Atty., Conroe, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon a plea of guilty, of murder and his punishment was assessed by the jury at death.

At the trial, evidence was presented by the state which showed that the deceased operated a Fina service station on Highway 105 near Beach, in Montgomery County. On the day in question, the deceased left his home around 6 a. m. to go to the station. Around 6:30 a.m. his wife and stepson went to the station and discovered that he was not there. A cash register was empty and certain credit tickets and slips were missing. Thereupon, the stepson called the sheriff’s department. While the wife and stepson were at the station, appellant came in, patted Mrs. Hughes, the deceased’s wife, on the shoulder and asked where the deceased was.

Around 7:30 a. m., deputy sheriff W. D. Winford arrived upon the scene and soon determined that there had been a robbery at the station. Later, at 8:30 a. m., the deputy talked to appellant at another service station and, as a result of the conversation, appellant led the officer to where the deceased was found lying on the ground in some thick underbrush off the Honea Road some eight miles west of Conroe. At such time, the deceased was lying face down, with his head and shoulders in a puddle of blood, still alive but struggling for breath. A coat hanger was underneath the body and some friction tape, which had been cut, was on each cuff of his shirt. The deceased was moved from the scene and later died as the result of injuries to the head and skull.

Dr. Joseph Jachimczyk, chief medical examiner of Harris County, who performed an autopsy upon the deceased, testified that he found extensive damage to the skull and brain; that there had been at least three and probably five blows to the scalp and that the cause of death was a fractured skull.

After the deceased’s body was found and Officer Winford had taken appellant to the courthouse, appellant accompanied the officer to a Billups service station, where he opened the door to his automobile and pointed to a jack handle wheel nut wrench which he stated he used to rob the deceased and strike him in the head. A long-blade pocket knife was taken from appellant’s person and also the sum of $124 in money. From the service station appellant then accompanied the deputy sheriff to a location 7¾ miles from Conroe on Highway 105, where he pointed out a group of checks and courtesy cards which he had taken in the robbery of the deceased.

In the conversation with Officer Win-ford which led to the finding of the deceased’s body, the weapon used by appellant in the killing, and the tickets and papers taken in the robbery, appellant related that he went to the deceased’s service station around 6 a. m. on the day in question and forced the deceased to put the money and tickets in a sack; that he then put the coat hanger around the deceased’s neck and forced him, at the point of a knife, to drive his automobile out on the Honea Road, where he was directed to stop. Appellant stated that he then forced the deceased to get out of the car, go under a fence, and when they had gone some seventy-five feet he taped the deceased’s hands behind him. Appellant related that after he had struck the deceased several times in the head with the lug wrench he cut the tape from his hands.

A written confession made by appellant to Officer Winford, after being duly warned, was introduced in evidence by the state without objection, in which appellant admitted having gone to the service station on the day in question and robbing the deceased, then forcing him to drive the automobile out on the Honea Road, stop, and, after forcing the deceased to cross the fence into the woods, hitting him three times on the head with the tire tool.

Testifying as a witness in his own behalf, appellant admitted robbing the deceased and then striking him on the head with the tire tool but denied that he had any intent to kill.

The question of appellant’s sanity was also raised in his testimony when he testified and offered proof that he had been admitted to a mental hospital in the State of Louisiana, in the year 1959, for examination but was discharged after three months. He also testified that when he was fourteen years of age he was struck with, a baseball bat and since that time had suffered from headaches and ear trouble. His two sisters, called as witnesses, corroborated his testimony relative to the headaches and ear trouble. He further stated that on the day in question, before the robbery he took some pills and drank some whisky.

Witnesses were called by the state, including Dr. Herschel M. Faulkner, who testified that appellant was sane.

The court, in his charge, to which no objection was made, submitted to the jury the defense of insanity and instructed the jury to acquit appellant if they believed he was insane on the date the deceased was struck and killed.

The jury was further charged with reference to their right to consider evidence of temporary insanity produced by the recent use of intoxicating liquor or narcotics, or a combination thereof, as mitigation of the penalty to be assessed.

Appellant complains of the admission of certain evidence in the case. He first insists that the court erred in permitting Officer Winford to relate to the jury the statements made to him by appellant while under arrest and without having been duly warned.

The record shows that the statements made by appellant to the officer led to the recovery of the deceased’s body, the murder weapon, and some of the fruits of the crime. Such statements were admissible as an oral confession under the provisions of Art. 727, Vernon’s Ann.C.C.P. Riley v. State, 168 Tex.Cr.R. 417, 328 S.W.2d 306; Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946.

It is also insisted that the state was erroneously permitted to show that appellant had a juvenile record and that he was a homosexual.

The record reflects that the hospital records introduced by appellant reflected that he had been in a reform school. On cross-examination, appellant was asked if he had been sentenced to the state reformatory in Louisiana in 1955 and he answered in the affirmative. While no objection was made by appellant to the question, the trial court instructed the jury not to consider the question and ordered it stricken from the record.

On further cross-examination, appellant was asked if he had not been kept in solitary confinement because he was a homosexual. After he had answered in the negative, the objection: “Your Honor, we are going to object to that,” was made, which was sustained by the court and the jury instructed not to consider the question and answer for any purpose. We perceive no reversible error.

Further cross-examination of appellant with reference to his having struck the victim of an attempted armed robbery with a piece of iron pipe, for which offense he was convicted, was not error in view of appellant’s testimony on direct examination that he had never taken or attempted to take the life of anyone.

Complaint is also made that the court erred in permitting deputy sheriff Winford and the ambulance driver, Gates, to describe the bloody scene where the deceased was found.

This testimony was admissible to show the circumstances of the killing, and— as was stated in Hanie v. State, 151 Tex.Cr.R. 395, 208 S.W.2d 373 — it frequently serves a useful purpose in enabling the jury to fix an appropriate penalty. See, also, Hall v. State, 164 Tex.Cr.R. 573, 301 S.W.2d 161. It should be pointed out that we are not here dealing with photographs of the deceased but with testimony of the witnesses describing the scene of the killing.

Numerous complaints are made to the court’s refusal to grant a new trial. It is first insisted that a new trial should have been granted because of separation of the jury in the case, in violation of Articles 623 and 668, V.A.C.C.P.

The record reflects that at the beginning of the trial it was made known to the parties that the courthouse was under construction and the jury room had been made useless for habitation by the jury. At such time it was agreed between the state and the appellant that the jury might be cared for at night in a hotel where they could be kept together “in the sense that two or more may be occupying one room and two or more in another room, adjacent rooms in the hotel, under the strict supervision, and care, and instruction of the officers of the court.”

Pursuant to such agreement, the twelve male jurors were housed in the Con-roe Hotel on the night of June 14, 1965, in six separate rooms — two jurors to a room, in charge of an officer who slept in another room. The officer had a key to the rooms, and there is no showing of any outside communication with any juror. Under the record, we perceive no reversible error. Dukes v. State, 162 Tex.Cr.R. 71, 282 S.W.2d 235.

In his motion for new trial, appellant alleged as jury misconduct that the jury foreman, Warren Sherrod, had made a telephone call to his wife after being chosen as one of the jurors in the case. At the hearing on the motion, the juror Sherrod testified that he did call his wife for some clothes but did not discuss the case. Two other jurors testified that they made telephone calls either to their homes or to someone to relay a message to their relatives but that the case was not discussed. The recipient of each telephone call was placed on the stand and testified that the case on trial was not discussed. Under the record, no reversible error is presented, Bryan v. State, 63 Tex.Cr.R. 200, 139 S.W. 981; Early v. State, 51 Tex.Cr.R. 382, 103 S.W. 868.

Appellant also alleged as a ground for new trial that the sheriff of Montgomery County stated in the presence of juror Sherrod, after he had been sworn in the case, that appellant was a bad man. At the hearing of the motion, the juror Sherrod testified that after two or three jurors had been selected and they were in the judge’s chambers, the sheriff stated that appellant was “a bad fellow,” or something to that effect.

None of the other eleven jurors who testified upon the hearing stated that they heard such statement. Sheriff Reaves testified that at no time did he make the statement that appellant was a bad man. Under the record, the court did not abuse his discretion in refusing to grant a new trial.

Appellant’s remaining claim of error is that the jury was guilty of misconduct when, during its deliberations and before reaching a verdict, a discussion was had to the effect that if appellant was given a life sentence or ninety-nine years he would probably be released in about fifteen years.

While there was testimony that one or more of the jurors stated that if appellant received a life sentence he could possibly get out in about fifteen years, such statement — not being a misstatement of the law — would not call for a reversal of the conviction.

Article 781d, Section 15, V.A.C.C.P., authorizes the Board of Pardons to release with the approval of the Governor any person confined who has served one-third of the maximum sentence imposed, and provides that anyone may be paroled after serving fifteen years. Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929; Salcido v. State, 167 Tex.Cr.R. 173, 319 S.W.2d 329; Napier v. State, 166 Tex.Cr.R. 361, 314 S.W.2d 102; Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is again insisted that the misconduct of the jury warrants a reversal because of the jury’s discussion during its deliberations before reaching a verdict that the appellant would probably be released in about fifteen years if given a life sentence.

A re-examination of the testimony on the hearing of the motion for new trial reveals that the appellant called two jurors. The first juror testified that in discussing the punishment before arriving at a verdict, one or more of the jurors said the appellant could probably get out in about fifteen years if assessed a life sentence, but he could not recall the name of the juror or jurors who made the statement. No inquiry was made of the other juror pertaining to the time the appellant would serve before his release.

The state called the other ten jurors and none of them were asked or testified pertaining to any discussion during their deliberations concerning the punishment to be assessed or the time served on a life sentence before release. The refusal of a new trial because of jury misconduct was not error.

For the first time on motion for rehearing, the appellant contends that the trial court committed fundamental error in failing to withdraw his plea of guilty and enter a plea of not guilty for him, before submitting the charge to the jury, since evidence was introduced bearing upon his sanity at the time of the offense and the court charged the jury on the defense of insanity. It is contended that such action deprived the appellant of his defense of insanity and due process.

In submitting the case to the jury, the court charged in the first paragraph that the appellant had pleaded guilty to the offense of murder; however, there was no instruction to find appellant guilty upon such plea.

The court further charged upon the law applicable to both murder with and without malice, and then submitted the issues of each to the jury, authorizing a conviction only after they had found beyond a reasonable doubt that he was guilty, and applied the law of reasonable doubt thereto.

Insofar as our original opinion may be construed as holding that there was evidence introduced before the jury which would support a finding that appellant was insane, at the time of the killing, or at the time of the trial, such opinion is now amended and corrected.

While there was testimony as to appellant’s mental condition, all of the evidence was that he was legally sane.

The issue of appellant’s sanity was raised, not by his testimony, but by his plea of guilty.

The judgment recites “it plainly appeared to the Court that said defendant was sane”; that the plea of guilty was received and entered of record as the plea of the defendant and that it was read to the jury.

There being no evidence that the defendant was insane, there was no occasion for the court to withdraw his plea of guilty, and an instruction to the jury to find him guilty would have been proper.

The trial court chose, however, to submit the question of appellant’s sanity as well as the question of malice and temporary insanity produced by the use of intoxicating liquor or narcotics, or a combination thereof, which related only to the punishment to be assessed by the jury.

The charge was more favorable' to appellant than was required.

There were no objections to the court’s charge and no requested charges.

The appellant relies upon Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538, for a reversal.

In that case the court instructed the jury that the defendant was sane and to find him guilty as charged in the indictment, but in a requested charge instructed the jury to find him not guilty if he was insane. It is evident that there was a direct conflict between the main charge and the requested charge.

The failure of the court to withdraw the plea of guilty and enter a plea of not guilty, under the facts and the charge as given does not present reversible error. Art. 666 Vernon’s Ann.C.C.P.

The motion is overruled.

Opinion approved by the Court.


author: BELCHER, Commissioner. WOODLEY, Judge.

text:
    Jackie WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38873.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 23, 1966.
    Second Motion for Rehearing Denied March 30, 1966.

      Charles W. Tessmer, Dallas (On Appeal Only), Emmett Colvin, Jr., Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Jim Zimmerman, Mike Evei*3tt and W. John Allison Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, fifty years.

This is a companion cause to Fuller v. State, Tex.Cr.App., 397 S.W.2d 434, dated January 5, 1966.

It is undisputed that the deceased was killed when he was shot with a shotgun about 2 A.M., Saturday, August 30th.

The testimony of the state reveals that on August 29, Jean Carter, age 17, lived with her mother and grandfather; that she had known the appellant, age 18, three or four years, and had previously dated him without the knowledge of her mother who had forbidden it; that she had known the deceased about three weeks before August 29, and had seen him during the last week except Tuesday night; that she went to see the appellant on Wednesday, August 26, at his grandmother’s and they went to a friend’s house, and then she returned home about noon; that she had visited him numerous times before at his grandmother’s ; that her mother left home about 1 P.M., and her grandfather about 4:30 P.M.; that the appellant telephoned about 4:30 P.M. and wanted her to meet him at the store nearby but she declined. Jean further testified that she telephoned the deceased about 6:30 P.M., and that they were together that night and returned home about midnight; that about 2 A.M. while she and her mother were doing some housework and the deceased was sitting in the house but visible from the outside, they heard some noise which caused the deceased to go out on the porch and then she heard a shot, and the deceased said he had been shot and the police were notified.

Mrs. Ruby Bynum testified that she was a next-door neighbor of Jean Carter, her mother and grandfather; that from her kitchen window about 4:30 P.M., August 29, she saw the appellant with an open knife gripped in his hand go from the front porch of the Carter house to the side door, and when no one responded he returned to the front door and after getting no response he slammed the door and kicked the screen, and on returning to the side door repeated the same acts. She further testified that after a shot from a gun awoke her early Sunday, August 30, she saw a man lying on Carter’s front porch and heard him cry for help.

The testimony further reflects that shortly after 11 P.M., August 29, the appellant, driving his car, began asking different persons at various places about a gun, and still unable to locate a gun, with several boys in the car, he said as they passed Carter’s house where a 1964 yellow Impala was parked in the driveway that “if he had a gun he could blow him out of that chair”; later, appellant’s inquiry of another person failed to locate a gun, and then he asked Charles Fuller who let him have a shotgun but he had no shells, and next he asked W. E. Thomas who gave him some shells, and Thomas joined the group which made seven in the car. After getting the shells the appellant drove directly to a place near the Carter house where he parked. Appellant handed two of the boys a brick while the other boy got one, and he told them to hit the car in the driveway, and when “that boy” came out he would shoot him. Two boys remained in the car, and appellant with the gun, Fuller next, followed by the three with the bricks went to the Carter house. After the three threw the bricks, and while returning to the car, they heard a shot, and shortly the appellant with Fuller carrying the gun returned and they drove away. Lorinzo Mabry, one of the two boys who remained in the car during the shooting testified that he heard the appellant tell his mother, “Yes, I shot him,” referring to the deceased.

A physician, who examined the body of the deceased, testified that the projectiles from the shotgun pierced his lungs, the heart and stomach, and his death was caused by the gunshot wound.

The appellant, testifying in his own behalf, and other defense witnesses stated that Fuller was drunk, and while on-the way from the car to the Carter house Fuller took the gun from him (appellant), and the other three boys ran toward the Carter house and threw the bricks, hitting the car in the driveway; that after Fuller approached the house he, appellant wanted to leave but that Fuller insisted that he was going to shoot somebody, and while running toward the car he (appellant) heard the gun discharge and a woman scream, but Fuller denied shooting a woman after he got to the car. A defense witness testified that appellant returned to the car first with Fuller close behind with the gun.

Appellant insists that the trial court erred in refusing his motion for new trial which alleged that the jurors heard discussions in the hallway of the courthouse before they were selected as jurors that his codefendant, Fuller, had been previously assessed fifty years; and that during their deliberation at least one juror said he heard that Fuller received fifty years.

In support of his motion the appellant called only juror Hoffman, the foreman. He testified that after he was selected but before the jury was completed he heard a juror say that Fuller got fifteen years; that during deliberation he heard a juror say that he had heard that Fuller got fifty years, and he (Hoffman) said he had heard something else, and he then said that it had no bearing on this case and never heard it mentioned again. The affidavits of two jurors were introduced by appellant; that of Gregory recited that he heard Fuller was convicted but no mention was made of the extent of the punishment assessed; and that of Blakeslee recited that after a remark that Fuller got fifty years the foreman advised that Fuller’s penalty was immaterial and nothing further was said about it.

The state introduced the affidavits of five jurors which state that they never heard or that they never had any knowledge of the punishment assessed Fuller; another affidavit states that the juror did not remember anything specifically that was said about Fuller’s sentence, and two others state that they thought and another stated that Fuller got fifty years but when they were told it had no bearing it was not mentioned again. The state’s affidavits of jurors Blakeslee and Gregory were introduced but appellant had already introduced those given to him.

There was testimony during the trial from several witnesses that Fuller had been previously tried. A statement was made before the jury by one of the attorneys that Fuller was “under conviction” for the same offense; and the law which permits the state to call Fuller, who is “under conviction,” as a witness but that appellant could not, was discussed in the jury argument.

It is concluded that the trial court did not abuse its discretion in overruling the motion for new trial.

It is contended that the trial court erred in refusing his requested charge on the corroboration of accomplice testimony for the state and as to inculpatory statements of accomplices testifying for the appellant.

No exception was reserved to the court’s action, therefore the refusal of the requested charge is not properly presented for review. Massiate v. State, Tex.Cr.App., 365 S.W.2d 802; Thomas v. State, Tex.Cr.App., 387 S.W.2d 665; Faulkner v. State, Tex.Cr.App., 390 S.W.2d 754.

The appellant contends that he was denied his constitutional right to have compulsory process for obtaining witnesses in his favor, namely, his co-defendant, Fuller, who had been previously convicted under a separate indictment for the same transaction.

The record shows that the appellant and Fuller were co-indictees for the same offense, and the court refused appellant’s request to eall Fuller as a witness following the state’s objection thereto.

The legislature has the power, except as limited by the constitution, to prescribe the competency of witnesses in all cases.

The Arts. 711 Vernon’s Ann.C.C.P. and 82, Vernon’s Ann.P.C., have welded to them the severance statutes (Arts. 650, 651, 652, 653 and 654 C.C.P.) which provide the means and procedure for obtaining the testimony of accomplice witnesses. These statutes are procedural only, and do not deprive the accused of any constitutional right. No cases declaring Arts. 711 and 82, supra, unconstitutional are cited and we are aware of none.

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

Opinion approved by the Court.

ON APPELLANT’S SECOND MOTION FOR REHEARING

WOODLEY, Judge.

Appellant challenges the accuracy of our original opinion wherein we said: “The affidavits of two jurors were introduced by appellant; that of Gregory recited that he heard Fuller was convicted but no mention was made of the extent of the punishment assessed; * *

The affidavit referred to in the opinion was introduced in evidence as Defendant’s Exhibit No. 2 and reads: “I was a member of the jury in Cause No. E—7925-K, styled The State of Texas v. Jackie Washington, in Criminal District Court No. 4 of Dallas County, Texas. Some time during the period which I was confined as a juror I recall a remark concerning the co-defendant’s case, to the effect that he had been convicted. I recall no mention as to the number of years he was sentenced. This remark in no way effected my judgment as a juror.”

Appellant directs our attention to the affidavit of the same juror (Gregory) which the state introduced as its Exhibit 13. It reads: “I was a member of the jury in the Jackie Washington murder case. I did not hear what punishment was assessed any other person who was connected with Washington in this case. I did not know what punishment was assessed any other such person and I arrived at my verdict without knowledge or consideration of what punishment any other person connected with the case may have received.”

We remain convinced that under the record the trial judge did not abuse his discretion in overruling appellant’s motion for new trial.

Appellant’s second .motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Willie C. KELLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39352.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 13, 1966.
    Howard O. Lake, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and C. A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Houston filling station attendant Thibo-deaux testified that shortly after midnight on the night in question appellant came to his station, asked to use the rest room and then departed. Some fifteen minutes later, appellant returned, had the automobile he was driving serviced, and when this was completed he told Thibodeaux, “Give me the money, and you won’t get shot”, at which time he had his right hand in his pants pocket, and the outline of a pistol in his pocket was apparent. Thibodeaux surrendered $94.11 of the funds from the station cash drawer, and as appellant drove away, the witness took down the license number, and the police were notified. It was shown that the automobile was found abandoned in Houston and was later returned to Fort Worth from where it had been stolen. Thibodeaux identified appellant in a police line up approximately a week after the robbery.

Appellant, testifying in his own behalf, admitted the two prior convictions but denied being in Houston on the day of the robbery. He explained that he spent three days drinking with his former employer Cisson, the owner of the automobile, and then drank with a woman, whose name he did not know, in hotels near the Fort Worth stockyards for five days, at the conclusion of which he called Mr. Cisson and informed him that he had not stolen his automobile.

The jury chose to reject appellant’s defense of alibi, and we find the evidence sufficient to support the conviction.

There are no formal bills of exception and no informal bills which raise the question presented in appellant’s brief relating to the reading to the jury of the enhancement counts in the indictment. Regardless of this, we remain convinced of the soundness of our opinion in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and cases there cited.

The judgment is affirmed.


text:
    Ex parte Charles Melton LeFORS.
    No. 39427.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    No attorney of record on appeal, for appellant.
    Henry Wade, Dist. Atty., Ben Ellis and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from the order of the Criminal District Court of Dallas County refusing to release appellant from confinement. From the record it appears that appellant is confined by virtue of a conviction, wherein he was assessed a sen-fence of eight years, m the Criminal District Court of Dallas County in which a motion to dismiss the appeal was this day granted in Cause No. 39,413. It is apparent that appellant is not illegally confined.

The judgment of the trial court is therefore affirmed.

The order of this Court in Cause No. 38,657, Ex parte Charles Melton LeFors, remanding appellant for extradition is suspended until such time as the appellant is discharged from further confinement under the penal judgments and charges of the State of Texas.


author: WOODLEY,‘Judge. DICE, Commissioner. MORRISON, Judge

text:
    Charles Benjamin MIZE, Appellant, v. The STATE of Texas, Appellee.
    No. 39161.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 30, 1966.

      Orville A. Harlan (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Jimmy R. James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY,‘Judge.

The offense is robbery by assault; the punishment, enhanced by two prior convictions for felonies less than capital, life.

It is not deemed necessary that the evidence be set out in detail. Suffice it to say that appellant was positively identified by two witnesses as one of the persons who walked into the East-Tex Pharmacy in Harris County and, at gunpoint, robbed the owner and pharmacist, taking a 50 milligram bottle of demerol with 100 tablets in it and a bottle of liquid hycodan which Evans, upon the order of appellant, took out of the safe, and more than $100 in money which they took out of the cash register, which Evans opened upon their order.

The contents of both bottles were shown to be narcotics.

Out of the presence of the jury, and in connection with appellant’s request that the enhancement allegations be withheld from the jury, appellant stipulated that such allegations were true and correct and that he was the same person previously convicted.

The sole ground upon which reversible error is claimed is the overruling of the motion to quash the indictment, the contention being that it was “vague, indefinite and uncertain in alleging the character and description of the property alleged to have been taken from Clarence Evans, referring in a portion of the indictment, to a ‘bottle of narcotics’.”

Art. 403 Vernon’s Ann.C.C.P. provides, in part :

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient.”

Appellant relies upon Hart v. State, Tex.Cr.App., 396 S.W.2d 873, and Baker v. State, 123 Tex.Cr.R. 209, 58 S.W.2d 534, 535, and cites other cases where a description of property by its generic name only has been held to be insufficient.

See Horton v. State, 123 Tex.Cr.R. 237, 58 S.W.2d 833.

Assuming that the description of the property alleged to have been taken other than the money was insufficient, it does not follow that the indictment should have been quashed.

“One hundred dollars in money” has been held to be a sufficient description of property alleged to have been stolen. See 5 Branch’s Ann.P.C.2d 17, Sec. 2576, and cases cited. See also Edwards v. State, 162 Tex.Cr.R. 390, 286 S.W.2d 157.

In a robbery case it is not necessary to prove that all of the property alleged to have been taken was taken. Proof that the money was taken was sufficient. 5 Branch’s Ann.P.C.2d 23, Sec. 2589, and cases cited.

The allegation and proof that one hundred dollars in money was taken in the robbery being sufficient to sustain the conviction for robbery, the insufficiency of the description of other property also alleged to have been taken did not vitiate the indictment.

The trial court did not err in overruling the motion to quash the indictment.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that our holding that the court’s action in overruling the motion to quash the indictment was not reversible error is in conflict with the opinion by this court in Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528.

In Brumbelow v. State, supra, the indictment for robbery charged that the accused took from the possession of the injured party $1,058 in money “and $484 in checks of the value of $484.” A motion to quash that part of the indictment charging the taking of the checks on the ground that the checks were not sufficiently described was filed by the defendant. The motion was overruled, and the court submitted to the jury not only the taking of the money described in the indictment but also the checks. Under the charge, the jury was required to find, before convicting the defendant, that he took the property described in the indictment, consisting of the money and the checks. In reversing the conviction it was held that the motion to quash was well taken, that the court should have treated the allegations as to the checks as surplusage, and that the question of the defendant’s guilt — insofar as being dependent upon the taking of the checks — should not have been submitted to the jury.

We remain convinced that the court’s action in overruling the motion to quash the indictment in the present case does not call for a reversal of the conviction. This is so because that portion of the indictment which alleged that appellant took “one bottle of narcotics” from the injured party may be treated as surplusage and the allegation and proof that one hundred dollars in money was taken in the robbery is sufficient to sustain the conviction.

Insofar as our opinion affirming the conviction is in conflict with Brumbelow v. State, supra, the latter is overruled.

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

Opinion approved by the Court.

MORRISON, Judge

(dissenting).

On original submission the case of Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528, was not cited by appellant nor discussed in our opinion. The trial court in the present case as in Brumbelow submitted to the jury not only the taking of the money described in the indictment, but also the “bottle of narcotics” as a condition precedent to their finding of guilt.

Now that it has been called to our attention, and since it should be determinative of this appeal, it should be followed unless a valid reason for not doing so is advanced. No such reason has been presented, and I am aware of none.

I respectfully dissent to the overruling of appellant’s motion for rehearing.


text:
    Tomas Quirova MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39477.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    Mike V. Gonsalez, Uvalde, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, six years.

No statement of facts accompanies the record and there are no bills of exception.

The record reveals that the trial judge, after a hearing in the absence of the jury, entered an order finding that the statement of the defendant offered in evidence was voluntarily given after statutory warning and after he had been told that he had the right to consult an attorney, which he declined to do. Also, the court’s charge reflects that the issue of voluntariness was submitted to the jury.

In the absence of a statement of facts or bills of exception, the complaint relating to the admission of the confession is not before us for review.

The same is true as to appellant’s complaint which relates to argument of counsel for the state.

The judgment is affirmed.


author: WOODLEY, Judge. BELCHER, Commissioner.

text:
    Sidney David MACKEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38772.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied March 9, 1966.
    Second Motion for Rehearing Denied April 13, 1966.

      Charles W. Tessmer, Frank' S. Wright, Emmett Colvin, Jr., Dallas, for appellant.
    Doug Crouch, Dist. Atty., John H. Chambers, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is negligent homicide in the second degree; the punishment, a fine of $750.

The count of the information under which the case was submitted to the jury alleged that the defendant did unlawfully “commit a negligent homicide upon the person of Kay Gordon, in that he, the said Sidney David Mackey, while engaged in the unlawful act of driving and operating a motor vehicle in a race and contest for speed with another motor vehicle upon a public highway did then and there negligently cause said vehicle to collide and crash into a motor vehicle in which Kay Gordon was an occupant, said collision caused injuries to the body of Kay Gordon from which injuries Kay Gordon died. The death of Kay Gordon was the consequence of said unlawful act. The said unlawful act was an act of negligence and there was then and there an apparent danger of killing Kay Gordon and other persons upon said highway.”

The facts are thus stated in the State’s brief: “The facts briefly stated are that on Tuesday, June 4, 1963, the defendant was with a group of people at Lake Arlington. He left Lake Arlington driving a bronze colored late model Chevrolet automobile. At the same time he left, another car, driven by Robert Morris Allen, also left the parking lot at the lake. These cars were observed to be traveling close together at a high rate of speed by witnesses, stationed at different points along the route which they traveled. Some distance from the point of departure at Lake Arlington, the defendant tried to pass another car which was traveling in the same direction and at a slower rate of speed. The defendant changed his mind about passing and braked his car. At this point, the car driven by Robert Morris Allen hit the car driven by the defendant causing it to slam into the left rear of the car which the defendant had started to pass. This third car was knocked off the road and caused to turn upside down. The car driven by Allen after the impact with the rear of the car driven by the defendant careened off to the left and collided head-on with an approaching car in the left lane. The car driven by defendant skidded around about 180 degrees and came to rest some distance down the road and facing in the opposite direction. Mrs, Tommy Zane Gordon was an occupant of the car coming from the opposite direction which collided with the car driven by Robert Morris Allen and she was admitted to St. Joseph’s Hospital, Fort Worth, Texas, on the afternoon of the 4th of June, 1963. She died the following day, and her death was attributed to the injuries that she received in the above described collision.”

The sufficiency of the evidence to sustain the conviction is not questioned. The ground relied upon for reversal is that the trial court erred in overruling appellant’s motion to quash the information.

The contention in this regard is that under the allegations of the information appellant was not adequately apprised of the offense with which he was charged to thereby enable him to prepare his defense, in violation of his constitutional rights.

Appellant contends that Art. 795 P.C. is unconstitutional for vagueness and uncertainty. It provides:

“No race or contest for speed between motor vehicles of any kind shall be held upon any public highway. Any person violating this article shall be fined not exceeding one hundred dollars.”

We are cited to no authority and know of none which sustains either of appellant’s claims for reversal.

We find the allegations of the information sufficient to charge the offense of negligent homicide while engaged in the violation of Art. 795 P.C., and the evidence sufficient to sustain the conviction.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is strenuously urged that the evidence is not sufficient to support the conviction on the ground that at the time of the accident the appellant was not engaged in an illegal act as charged.

From a re-examination of the evidence in the light of appellant’s contention, it is concluded that the evidence is sufficient to support the finding of the jury that the appellant is guilty of the offense alleged in the information.

The motion is overruled.

Opinion approved by the Court.


author: McDONALD, Presiding Judge. MORRISON, Judge.

text:
    Ben Capple CROWE, Appellant, v. The STATE of Texas, Appellee.
    No. 39088.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 30, 1966.

      John Whiteside, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., John H. Chambers and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is forgery; the punishment, two years confinement in the Texas Department of Corrections.

It is undisputed that the witness D. F. Lee spent the greater part of December 24, 1964, drinking in the various bars and taverns located in the vicinity of the Fort Worth stockyards, beginning at about 9 a. m. and continuing in this pursuit until shortly before midnight. During much of this time he was accompanied by appellant, who was also drinking, and during the course of the afternoon, Mr. Lee prevailed upon appellant to drive him to the Fort Worth State Bank, where Mr. Lee purchased $1200 worth of Traveler’s Checks in preparation for leaving town. Appellant saw Mr. Lee make this purchase and was with him when he affixed his signature to the checks.

When the witness Lee left his last bar for the evening, and as he was making his way to a hotel about a block away, he was robbed of these Traveler’s Checks.

Garth Smith, a witness for the state, testified that appellant approached him on the morning of Christmas Day and told him that if he, Smith, would cash some Traveler’s Checks and bring appellant the money, they would divide the proceeds. Smith agreed to this proposal and took the checks from appellant. He further testified that appellant accompanied him to the Whitley Pharmacy, where they purchased a wristwatch and an electric shaver, and that the merchandise was paid for with a Traveler’s Check of $100 denomination purporting to have been issued to D. F. Lee. Mr. Lee identified the check at the trial as one of those he had purchased the previous day while accompanied by appellant. Smith testified that he forged Lee’s signature to the check and that appellant was present when the forgery occurred. It is undisputed that appellant knew that Smith was not D. F. Lee.

Mr. and Mrs. Whitley, operators of the pharmacy where the forgery was committed, sufficiently corroborated Smith’s testimony, saying that appellant was present when Smith identified himself as D. F. Lee, and that appellant told them that the check was good. Mrs. Whitley testified that appellant showed Smith where to sign the instrument and encouraged him to do so.

Appellant testified that Smith did not get the Traveler’s Check from him. It was appellant’s version that Smith told him that Lee had given the check to him in payment for services which Smith had performed for Lee. Appellant further testified that he did not even see the instrument Smith signed in the pharmacy, and did not know that Smith’s endorsement was a forgery of Lee’s signature.

The jury chose to believe the testimony of the state’s witnesses, and the evidence is sufficient to sustain the conviction.

We do not agree with appellant’s contention that the trial court erred in its failure to instruct the jury on the law of circumstantial evidence. The evidence connecting appellant with the offense was direct evidence adduced from witnesses to the forgery. The jury was properly instructed on the law of principals, and we find no error in the charge.

Appellant urged in his motion for new trial that the trial court committed error in refusing to grant a mistrial as requested by appellant during state’s argument. We agree with appellant that the following excerpt from the statement of facts shows that the prosecutor went outside the record during his argument:

“Money can buy almost anything in this country. It can buy Deloris Fishers and it can hire lawyers.” (Deloris Fisher was a witness for the defense.)
Mr. Whiteside (Appellant’s counsel):
“Your Honor, My Lord, we are going to object to that; suggesting we bribed some witnesses; telling the jury that money can buy Deloris Fisher. It is so prejudicial.”
The Court: “Sustained.”
Mr. Whiteside: “We make a Motion for a Mistrial and ask the Court to instruct the jury not to consider it.”
The Court: “You will not consider the last argument. The Motion is overruled.”

There is no evidence in the record to justify an inference that the witness Fisher was bribed. This Court has consistently admonished prosecuting attorneys to confine themselves in argument to the evidence upon the trial, and to refrain from bringing outside influence to bear upon the jury in order to obtain a conviction. Palmer v. State, 148 Tex.Cr.R. 39, 184 S.W.2d 471. In determining whether or not the state’s argument constitutes reversible error, however, the entire record must be reviewed. After carefully considering this record, we have determined that appellant does not present reversible error. Our conclusion is based upon several factors. The first of which is that the statement was promptly withdrawn from the consideration of the jury. Where such timely action is taken, the state’s argument presents reversible error only when the record reflects that the accused has been prejudiced or harmed thereby. Simone v. State, 157 Tex.Cr.R. 393, 248 S.W.2d 938 and cases cited. Here, the state’s evidence strongly presented the guilt of the accused, and the minimum punishment was assessed. Absent the improper argument by the state, it is extremely doubtful that a verdict more favorable to appellant would have been reached by the jury.

We further note that witness Fisher’s testimony was of little material value to appellant. She testified that on December 24, 1964, she was employed at the Maverick Bar, and D. F. Lee entered this establishment shortly after it opened at 9 a. m. on that day. Mr. Lee, according to this witness, was drinking “pretty heavily” and passed out on two occasions during the afternoon and evening. Mrs. Fisher further testified that it was necessary to “put him out” of the bar two times that day, and Mr. Lee was intoxicated to the point that he purchased a $1.98 doll from a girl in the bar, paying her $30.00 for it. She testified that appellant had been drinking in the bar with Lee and knew him at least well enough to call him by name; that appellant left the bar about 8:30 p. m.; and that Mr. Lee remained there until about midnight. This testimony bore little relation to the forgery which occurred the following day (and, in fact, bolstered the state’s proof that appellant knew that the forger, Smith, was not D. F. Lee, the person to whom the bank had issued the Traveler’s Check. Had the jury been moved by the state’s argument to believe that the witness had been bribed, and consequently disbelieved her testimony, we fail to see that appellant would have been harmed by their conclusion.)

While not implying that the state’s retaliation was justified, we also point out that such argument was indulged in only after appellant’s counsel, during argument, had intimated that a “deal” had been made between the state and the accomplice witness, Smith. For these reasons, we find that appellant was not prejudiced by this argument. We also overrule appellant’s contentions as to other parts of the state’s argument which were allegedly prejudicial.

Appellant’s remaining informal bills of exception present no error, and the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

By brief and in argument counsel complains that we failed to distinguish the case at bar from Sample v. State, 158 Tex.Cr.R. 200, 254 S.W.2d 401. We shall now do so. In Sample the accused was compelled to answer repeated questions about his prior marriages and divorces. An objection was interposed prior to any answer being given; the objection was overruled, and the court refused to instruct the jury to disregard such matters. In the case at bar appellant’s objection to the argument was sustained, and the jury was instructed not to consider the same. In Sample the jury was led to believe, by the court’s ruling, that the questions and answers were proper and relevant to appellant’s guilt. In the case at bar they were told the opposite.

These factors, in addition to those set forth in our original opinion, sufficiently distinguish the two cases.

Remaining convinced that we properly disposed of this appeal originally, appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Robert Donnell PARKS, Appellant, v. The STATE of Texas, Appellee.
    No. 39192.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 13. 1966.

      John M. Anderson, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape; the punishment, fifty years.

The prosecutrix testified that after a telephone conversation with her husband, from whom she had been separated about three weeks, he came to see her about 10:30 p. m., at her brother’s home where she had been staying; that they went to a drive-in restaurant where they remained until midnight and then drove to a public park; that after twenty or thirty minutes they had sexual intercourse in the rear seat, during which time she saw a man standing at the window with his faee and hands pressed against it, and when she screamed her husband jumped up, "and I saw it was a Negro man”; that her husband locked both doors on the driver’s side which the Negro tried to open, and while he (Negro) ran to the other side she locked those doors, and he returned to the driver’s side and shined a flashlight on them; that her husband said, “We don’t have any money”, and the Negro replied, “I don’t want your money”; that the Negro held up a gun and ordered her husband, who had moved to the front seat, to be still or he would shoot him, and the Negro broke the vent window, placed his hand inside, unlocked the door and got in the car. When the door was open the lights would come on and she (prosecutrix) got a good look at the Negro, and while testifying on this trial she identified the appellant as the man who entered the car, threatened to kill her, and -placed his private parts into hers and had intercourse with her without her consent. The appellant then asked for the car keys and left the scene.

The prosecutrix was taken immediately to the hospital, and an examination by a physician revealed that her private parts had been penetrated and in which sperm was found. At 9 a. m., November 24, the prosecutrix identified the appellant in a five-man lineup at the police station as the man who had intercourse with her without her consent in the park on November 22.

While testifying, the husband -identified the appellant as the man who had intercourse with the prosecutrix in -the park, and his testimony is substantially the same as that of the prosecutrix.

Detective Sinclair testified that when appellant was arrested he had a small laceration on his left hand near the knuckle of the little finger.

The appellant did not testify but called one witness who identified a photograph made of the appellant at the police station on November 24, 1964. It appears from the photograph that the appellant had a mous-tache, while the prosecutrix testified she could not recall whether he did or not.

The record shows that this trial began June 1, 1965, the verdict was returned on June 3, 1965, and sentence was pronounced and notice of appeal given July 22, 1965.

The record also shows that the prosecu-trix and her husband were divorced after the offense herein was alleged to have been committed.

It is contended that the trial court erred in making an oral charge on the law of reasonable doubt to the jury panel of about 35 prospective veniremen before the individual voir dire examination began; that the attempted definition of reasonable doubt was not correct or complete, and placed the burden of proof upon the appellant to prove his innocence beyond a reasonable doubt.

These contentions are not presented by formal bills of exception. Such contentions are not authorized to be presented by informal bills of exception. Art. 760e and 759a, Vernon’s Ann.C.C.P.

However, it is observed that the appellant, in his brief, directed his attack to the following oral remarks to said jury panel:

“In this case, as in all criminal cases, the burden of proof is on the State to show the defendant’s guilt beyond a reasonable doubt, and after all the evidence is in, if there is a doubt in your mind, a reasonable doubt, that is, a doubt based upon reason, that a reasonable man would have as to the guilt or innocence of the defendant, the law says you must resolve that doubt in favor of the defendant and say by your verdict, ‘not guilty,’ and it would be your duty to follow the law in that instance. If after all the evidence is in, the State has discharged that burden and you have found beyond a reasonable doubt that a defendant is guilty, then it is your duty to follow the law in that case.”

The court in its written charge fairly and adequately instructed the jury on the burden of proof, the presumption of innocence, the credibility of the witnesses, and that they must find beyond a reasonable doubt that the appellant was guilty as charged before they could find him guilty, and then applied the law of reasonable doubt thereto.

From a consideration of the record, it appears that the remarks complained of were not a comment on the weight of the evidence, did not convey to the jury any opinion of the court as to the facts, and were not calculated to injure the rights of the appellant. No error is shown.

It is insisted that the state’s attorney committed error during his closing argument to the jury when he said:

“Your verdict will say to the people of the State of Texas and to the people of the United States that we in Tarrant County are going to have law enforcement and we are going to send the felon to the penitentiary or the rapist to his death, or are you going to invite all the people in Dallas County, Wichita County, McLellan County and anywhere else to come into our area.
⅝ ⅝ ⅝ ⅜ ⅝ ⅜
It is just as clear as it can be. The facts are as simple as they can be. The whole case is just as simple that there can be no other conclusion except as to the guilt of this defendant, and I want to say to you once again, picture yourself witnessing the rape of one of your loved ones. Picture yourself under those circumstances.”

These arguments, when considered in light of the facts and circumstances shown by the evidence and in connection with the preceding arguments, were nothing more than a plea for law enforcement, and were reasonable deductions within the scope of the evidence and the jury arguments previously made. No error is presented. Jones v. State, 153 Tex.Cr.R. 345, 220 S.W.2d 156; Guajardo v. State, Tex. Cr.App., 363 S.W.2d 259.

Complaint is also made of state’s counsel’s jury argument that if you saw a loved one raped “do you think for one minute when you open your eyes you still won’t see the sight of that black face right there.” No objection was made at the trial to this argument. However, there is evidence that the appellant, a Negro, forcibly had intercourse with the prosecutrix, a wife, while the husband was present.

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

Opinion approved by the Court.


text:
    Mike GONZALES, Alias Macedonio Gonzales, Appellant, v. The STATE of Texas, Appellee.
    No. 39422.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    No attorney of record on appeal for appellant.
    Wiley Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 35 years.

The state’s testimony reflects that Jimmy Barrera, the deceased, along with two of his brothers and two others, went from Beeville to visit Fred Barrera in Refugio. While they were in a beer joint one of them became involved in an argument with Penny Moya about the ownership of a bottle of beer, and Moya held a knife against one of the Barrera brothers. One of the Bar-reras offered to buy Moya a beer. The group from Beeville left and returned and the deceased approached the appellant with a friend of Moya’s and offered to shake hands and be friends. Appellant stabbed Jimmy Barrera with a knife having a blade 3½ to 4 inches long and Jimmy Barrera walked back about six feet and fell down. The deceased made no move toward the appellant and no blows were struck before the stabbing.

Travis Charles Meitzen, a doctor in Refugio County whose qualifications were stipulated, testified: Thanksgiving evening he had a chance to examine Jimmy Barrera in the emergency room at the Refugio County Hospital and found him in a dying condition. He was gasping his last. He had a stab wound in the right side of his chest just off the midline, a little higher than the nipple. The wound was in the right place to cut some important structures of the heart, the great blood vessels entering and leaving the heart, or entering and leaving the lung. Jimmy Barrera lived two to five minutes after he saw him. The heart or vital blood vessels leading to the heart were struck. This wound in the chest was definitely the cause of death. He noticed no other wounds.

Appellant testified that he worked for a construction company; that the boys told him that the Barrera brothers wanted to fight Penny (Moya) at Mary’s place; that he went to talk to Penny to get something straight; that three of the Barreras were coming toward him; that the deceased wanted to shake hands; that appellant said he did not know him; that the deceased tried to hit the appellant, and appellant hit him on the jaw or chin; that he did not stab the deceased. On direct examination he testified that he had been to Huntsville for car theft.

On cross-examination, he testified that he had been convicted for car theft in Refugio County; that he opened his knife when he walked toward Mary’s place; that he thought the Barrera boys were going to fight and he wanted to be ready; that he threw the knife away at Zarsky’s Place; that he did not cut anything; that he had been in jail for carrying a dagger.

The jury resolved the issues of fact in favor of the state and the evidence is sufficient to sustain their verdict.

Appellant’s able court appointed counsel reserved no exceptions to the court’s charge or formal bills of exception. Contrary to their advice, appellant chose to testify in his own behalf. His testimony was impeached by his voluntary statement which was introduced in his behalf and which contained statements contrary to his testimony.

An examination of the informal bills of exception reveals no error that would warrant reversal. If there were errors in the court’s rulings on the admissibility of evidence, such errors were rendered harmless by appellant’s testimony.

The judgment is affirmed.