author: SAMUEL A. DEW, Special Commissioner.

text:
    William A. GAMEL and Louise B. Gamel, Plaintiff-Respondents, v. Alvin C. LEWIS and Claudia E. Lewis, Defendant-Appellants.
    No. 23800.
    Kansas City Court of Appeals-Missouri.
    Dec. 2, 1963.

      Don C. Carter, Sturgeon, for appellants.
    Falzone & Falzone, Moberly, for respondents.
   SAMUEL A. DEW, Special Commissioner.

The respondents brought this suit to recover $20,000 damages claimed to have been sustained by them as purchasers of certain real estate and personal property, due to alleged fraud and deceit on the part of the appellants, the sellers. The parties will hereinafter be referred to as plaintiffs and defendants, respectively. Defendants filed an answer and a counterclaim for specific performance. There was a jury verdict in plaintiffs’ favor on their petition in the sum of $6500, for which judgment was entered.

The court found in defendants’ favor on their counterclaim, ordering defendants to deposit with the clerk of the court their general warranty deed conveying the real estate in question to the plaintiffs, subject to a deed of trust therein described, securing the balance of $18,546.34, with interest prorated, which plaintiffs were to assume; and further ordered plaintiffs to pay to the clerk for use of the defendants, $16,614.14 principal and $556.57 interest, to August 2, 1962, representing the purchase price of the property, less interest paid by plaintiffs on behalf of defendants, plus city and county taxes and liability insurance prorated to October 5, 1961. Thereupon the clerk was ordered to pay to defendants the sum so deposited, and upon plaintiffs’ failure to so deposit the same, judgment to be entered in favor of defendants in the sum of $17,-170.71. From the foregoing judgment and decree the defendants have appealed.

Plaintiffs’ petition pleads a contract entered into by them with defendants for plaintiffs to purchase from defendants certain real estate and personal property thereon, located on Highway 63, in Moberly, Missouri, known and operated as Al’s Restaurant, Motel and Trailer Court. The contract provided for a purchase price of $55,-000 upon the closing of the transaction, assumption of the balance due on a deed of trust in the sum of $18,546.34, and a final amount to be paid defendants of $16,453.66, or a total of $55,000, subject to certain prorated items. It was alleged that plaintiffs had promptly executed the contract, paid defendants $20,000 and entered into possession, but had not yet paid the prorated taxes, nor the balance of the purchase price, nor had received a warranty deed from the defendants. The petition stated that plaintiffs were ready, willing and able to perform all of their obligations under the contract.

The petition alleged that at all times one Hugh Kelly acted as real estate agent for and in behalf of defendants; that the execution and performance of the contract were procured through the fraud and deceit on the part of defendants, their agents and servants, through willful, false and fraudulent representations and statements, to-wit: that the property known as Al’s Restaurant, Motel and Trailer Court was properly licensed in conformity with the state, county and municipal laws, and concealed the fact that defendants had been ordered by the City of Moberly to pave all of the trailer court driveways and streets with asphaltic or concrete pavement, and concealed the fact that defendants had promised the city to meet those requirements; that defendants, their agents and employees, represented that the trailer court housed 22 trailer spaces of 40 x 75 feet each, and that they had complied with state, county and municipal regulations, whereas, defendants concealed the fact that 12 of the 22 trailer spaces were subject to an order made by the City of Moberly that required the back line to be moved 10 feet further from the north line of the property, thereby reducing the trailer spaces to 40 x 45 feet, rendering the present patios and plumbing connections useless, and making the 12 spaces too small for 55 foot trailers; that defendants concealed the fact from plaintiffs that they had promised the City of Moberly to increase the back line of the property from 20 to 30 feet, as ordered.

The petition stated further that defendants made certain representations to plaintiffs as to the quality of construction of the buildings on the property and that the property was yielding a net income of $2100 per month, $1500 from the restaurant alone, when 10 employees were used therein. It is averred that in truth and in fact each of the foregoing representations was false and fraudulent, made intentionally to induce plaintiffs to execute and perform said contract, namely that the streets of the trailer court will have to be paved by asphaltic or concrete material by July, 1963, in order to comply with municipal ordinances; and by that date the north line must be set back 10 feet; that certain repairs will have to be made to the buildings; that the property never paid the profits as represented by defendants.

The petition states that plaintiffs believed and relied upon such statements and representations by defendants, and that if plaintiffs had known the truth as above stated, they would not have entered into the contract; that plaintiffs did not know the truth of such facts and defendants knew that plaintiffs would not have entered into the contract if such facts were known to them.

It is further alleged that $5,000 will have to be expended for pavement of the streets of the trailer court, new water lines installed, extensive plumbing repairs made, two-of the trailer spaces will be rendered useless, at least three trailer spaces will be lost by the setback; that the expected net profits will never be reached; that plaintiffs have been damaged in the premises in the sum of $20,000. The contract attached to the petition was substantially as described in the petition.

Defendants’ answer admitted the contract of sale, the payment to them of $20,000 by the plaintiffs on the purchase price, admitted that possession had been given plaintiffs, and alleged that plaintiffs had failed to pay the balance of the agreed purchase price. All allegations of fraud or deceit were denied. Defendants also filed a counterclaim, as stated, asking that plaintiffs be requested to pay defendants the balance of the agreed purchase price, with interest, that the payment due be declared a lien on the real estate in favor of defendants until paid, and that all costs be assessed against plaintiffs.

Answering the counterclaim plaintiffs admitted their failure to close the transaction at the times and places named in notices from the defendants and prayed for an order requiring plaintiffs’ petition first to be heard and determined, and that the court, upon consideration of the counterclaim, allow as a setoff from the balance of the purchase price due under the contract of sale, the amount of damages, if any, allowed the plaintiffs on their petition, the costs to he charged to the defendants.

According to the evidence adduced by the plaintiffs, they first became interested in defendants’ property through an advertisement of it by a real estate agent in a St. Louis newspaper. Plaintiffs talked with the agent Kelly, who supplied them with a brochure, describing the property. Plaintiff, William Gamel, testified that he had lived in Columbia during the past four years, during part of which time he was employed by General Motors in the equipment division, and part of the period in the State Highway Department. Prior to that, he had been in the business of making and marketing cookies for sale in Missouri and Kansas. Near Columbia, he had divided a tract of land into three parcels. The tract had no name nor was it affected by any zoning regulations, but was outside the limits of Columbia. He said he had had no experience in the operation of a restaurant, motel or trailer court.

Mr. Gamel testified that he and his wife and his brother-in-law later drove to Mo-berly, called on Kelly, the agent, discussed the property, the price of same, and were given the brochure. The brochure set out the number and capacity of the buildings operated as a motel, restaurant and trailer court, along with the monthly income therefrom. Among other things, the brochure stated that there were 10 units of the motel, 22 spaces for trailers and seating capacity for 58 persons in the restaurant; that there was a net income of $2100 per month from the property; that the reason for selling was that “Owner is a contractor and is just tired of running the business”. It also stated that the restaurant alone produced a net income of $1500 per month, with 10 persons employed therein. Plaintiffs were then shown through the buildings by the agent and defendant Alvin Lewis, and later made several tours of the property. Mr. Gamel testified that at no time was anything said to plaintiffs on those inspections of the property about any municipal requirement or agreement to replace the gravel paved streets around the trailer court by July, 1963, or to set back the north line of the trailer court ten feet by that date. Thereafter Mr. Kelly, the agent drew up a contract which was signed by the parties, and later a final contract was signed October 5, 1961.

The contract in evidence was generally in the usual form, as heretofore set out. It provided, among other things, that the seller would furnish an abstract of title no later than November 5, 1961, and second parties would have 30 days within which to examine the same, and if any defects appeared thereon defendants to have reasonable time to correct the same.

Testimony and official records of the Building Inspector’s office in Moberly disclosed that on July 18, 1960, defendants herein had appealed to the Moberly Board of Zoning Adjustment from the orders of the Building Inspector, which orders required defendants to comply with the city ordinance which would compel a 30 foot setback from the property line and that, upon defendants’ request, the Board granted them a variance as to such requirement until July, 1963; and that defendants at the same time had appealed from the ruling of the Building Inspector requiring them to replace the gravel pavement of the streets around the trailer court with asphaltic or concrete material, and upon defendants’ request the Board had also granted defendants a “variance” as to their compliance with that part of the ordinance until July, 1963. In their second appeal, above noted, defendants had stated that the business “was temporary”, but if it became profitable they would put in the streets as stipulated by the ordinance.

Plaintiff William Gamel testified that he knew nothing of the temporary “variance” permits; that the first he heard of such requirements was in January, 1962, when Bob Beecroft, one of the trailer tenants, a newscaster, told him of having learned about them at the City Hall, whereupon plaintiffs consulted their counsel about the matter. Mr. Gamel stated that compliance with the “variances” would cause the loss of several trailer spaces because of the necessary changes in angle parking and would cause changes in water and sewer lines serving the spaces.

A lady witness testified that while at a lumber yard as a customer she overheard Alvin Lewis say in a conversation with another man, that “he wished he could find out who was the blabber mouth that had been blowing his mouth to Mr. Gamel; that he wished he could be certain that it was Beecroft in regards to that property line. He could not park any large trailers there because the property line was such it couldn’t be done”. She said she was interested because her husband traveled for a paint company and they were trying to find trailer spaces for company trucks used by the painters.

A lady formerly employed by defendants as cook in the restaurant and who continued in that capacity after plaintiffs took possession, testified that on the day after this action was brought, Mr. Lewis called at her home, talked about the suit and remarked r “that if it hadn’t been for Bob Beecroft it. would have all been over with * * * and he would have had his money, * * * but Bob said something about it and that was-the reason * * * and he told it. That is what A1 told me”. She said Mr. Lewis-stayed and talked nearly an hour about the-trailer matter and said: “That son-of-a-buck has sued me. I said ‘No’, and he saidl ‘Yes’. I said ‘how come?’ He said ‘If it: hadn’t been for Bob Beecroft it would have-been all over. It was supposed to have-been all settled up’ ”. She said she reported', this conversation to plaintiffs the next day..

A general contractor testified that the area of the gravel streets around the-trailer spaces amounted to about 3000' square yards and that it would cost approximately $2.50 per square yard, ($7500) to replace them for light traffic with asphaltic concrete paving material; that concrete-would cost more.

A plumbing expert stated that it would' cost about $37.50 each to remove and replace the water and sewer connections at the trailer spaces. Other outside plumbing-to serve some of the motel units, he said, would cost, if removed and reinstalled, $90 each, not counting interior connections.

Bob Beecroft, a witness for the plaintiffs, stated that as a radio newscaster he accidentally learned in the Building Inspector’s office that orders had been made requiring the streets around the trailer spaces in the property in question to be repaved, and the-north setback line of the court to be increased to 30 feet to conform to the zoning-ordinance of Moberly; that he later told Mr. Gamel what he had learned; that Mr. Gamel was shocked to hear of it.

A real estate operator testified that there would be a difference of $5,000 in the market value of the entire property subject to> the pending zoning requirements and without any such limitations.

Defendant Alvin Lewis testified that he and his wife were the former owners of the-property involved; that they had owned and operated it about ten years; that they had listed it for sale with the Kelly Real Estate Company in 1961; that in August or September of that year Mr. Kelly brought plaintiffs to the property several times; that defendants, who were living in one of the motel units, showed plaintiffs the grounds, consisting of about six acres, the restaurant, the 10-unit motel and the 6-room residence and 22-space trailer court. He said about a week later Mr. Gamel and his brother-in-law came to see the property, asked about the income, expenses, etc. and expressed approval of the arrangement of the trailers. He said he told Mr. Gamel he had to arrange the trailer spaces as they were to comply with a 10-foot zoning requirement that trailers be parked 30 feet from the party line. He said he told Mr. Gamel at that time that he had gone to the Zoning Board and obtained a grant of to 10 feet, allowing him to park the trailers within 20 feet of the party line.

Defendant Alvin Lewis further testified that plaintiff inquired about the sewer and water pipes; that Mr. Gamel visited the plant five or six times, ate a meal at the restaurant and made no disparaging comments about the property. He said that on one of the occasions he told Mr. Gamel: “Another thing, I have got permission to park here for three years and I am to pave this street. If I am to park a trailer beyond three years I am to pave this street with asphalt or concrete pavement.” He said Mr. Gamel made no comment as to this zoning requirement. He said he started with two motel units, increasing them over the years to ten. He later built the additional units and the restaurant. He denied knowing Bob Beecroft, except over the radio, and never heard of him in connection with this suit until the trial. He denied the conversation which plaintiffs’ lady witness said she had heard in the lumber yard. He admitted going to the lady cook’s home after this suit was brought to find out what was the cause of the suit, whether business was falling off or what else might have gone wrong. He said he never mentioned Bob Beecroft on that visit nor on a similar call upon another former employee of his in the restaurant. He told of the failure of the plaintiffs to meet at the time and place designated by him for completion of the transaction. He testified to substantial net earnings from the property while in his possession and management.

On cross-examination defendant Alvin Lewis said that plaintiffs’ counsel had called him prior to the date set for closing the deal and said some matters would have to be worked out before the deal could be closed and referred to “something about the zoning ordinance and paving the street,” and at that time he asked witness if “I’d told Mr. Gamel anything about the trailer setback or anything like that. It took me by surprise. I said I wouldn’t be sure at this time whether I did or not because it shocked me. I figured all the time settling up by the 10th, just as the contract called for, and it shocked me at the time. I got to thinking after I told Mr. Falzone that I did tell him”. He was asked if he complied with the provision of the contract as to “having an abstract examined”. He replied that he did.

Hugh Kelly, defendants’ real estate agent, verified the previous statements as to plaintiffs’ visits to the property and their expressions of satisfaction. He described the records of the profits made by defendants while in business and he estimated the value of the physical property at $60,768, not counting the value of the going business. He had estimated net income of $1500 per month. Later, defendant Alvin Lewis gave him a figure of $2100 per month; that on the basis of 15 percent net income, the value of the property was $98,000, and with the loss of 12 trailer spaces, that amount would be reduced by $1260, reducing the estimated value of the property to $89,000. He said he did not believe he knew of the zoning requirements when he was negotiating with the plaintiffs.

In rebuttal, Riley Hall, Mr. Gamel’s brother-in-law, said that he recalled accompanying plaintiffs on several visits to the property; that at no time did he hear anything said about the pending zoning restrictions nor any “variances” granted defendants to July, 1963. He said Mr. Gamel had never indicated to him in any way that he knew of such requirements.

Mr. Gamel on rebuttal, stated that plaintiffs were willing to conclude the transaction as soon as the matter of their damages was determined by the jury in this case. He said he had never complained directly to defendant when he learned of the zoning ordinances but thought it was “high time” to consult his attorney.

Defendants’ first point of error is that the court erred in refusing to sustain their motion for a directed verdict in their favor at the close of all the evidence. The first ground assigned therefor is that there was no substantial evidence on which a verdict for plaintiffs could be had. They point out that the sole theory of the case as submitted to the jury was that at the time of the contract the defendants knew that under the zoning laws of Moberly defendants were under an agreement made by them with the Zoning Board of Adjustment to pave the driveway with asphaltic concrete or concrete and to set back the trailers from 20 to 30 feet from the property line, all to be done by July, 1963, and that defendants had intentionally and fraudulently concealed such facts from the plaintiffs. Defendants insist, however, that the jury was confused by the bulk of the evidence in the case relative to plaintiffs’ claims of faulty construction and defects, which were not •submitted to the jury. As to such contention, we find no valid ground of objection to the abandonment by the plaintiffs of parts •of their pleaded damages.

Defendants assert that the testimony of ■plaintiffs’ real estate appraiser, Austin Pierce, was confusing, contradictory and .ambiguous in his estimate of plaintiffs’ damages relative to the market value of the •property. While his testimony was complicated and in some instances not responsive, he did estimate a difference of $5000 in the market value of the property with and without the pending requirements of the zoning authorities affecting it. It is argued that at most such testimony substantiated damages of $5,000, not $6,500. There was, however, other evidence of the cost of compliance with the pending requirements of the zoning ordinance. For instance, the contractor testified that the paving costs alone would amount to $7,500. It was also shown that several trailer spaces would be lost by the setback line, and that substantial plumbing expense would be incurred by the changes.

Defendants also urge that the hypothetical question put to plaintiffs’ real estate appraiser as to market value did not embody the proper elements of damage. Defendants interposed only two objections to the question when asked, (1) that the matter of time was omitted, and, (2) that the answer was not responsive. No specific objection was made as to the subject matter being improper in respect to the measure of damages nor was any offer made to supply the claimed deficiencies. The objection was therefore not properly preserved for review. Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 411; Morton v. St. Louis-San Francisco Ry. Co., 323 Mo. 929, 20 S.W.2d 34, 45; Greenwood v. Bridgeways, Inc., et al., Mo.App., 243 S.W.2d 111, 113.

Defendants’ second point of error is that the court erred in giving Instruction No. P-1 at plaintiffs’ request. In substance that instruction directed the verdict for the plaintiffs if the jury should find and believe from the evidence that defendants undertook to induce plaintiffs to purchase the property described in the evidence and to execute a contract therefor; that defendants in 1960, had obtained a special permission from the City of Moberly to construct and operate a trailer park on the propertv with gravel driveways and a 20-foot setback line on its north boundary for only three years to July, 1963, and that defendants failed to disclose to plaintiffs the necessity to pave the driveways and to conform to the 30-foot setback by July, 1963; that plaintiffs had no knowledge of such requirements and “such knowledge was not as readily available to plaintiffs as to the defendants”; that defendants knew that plaintiffs had no such knowledge and intentionally failed to disclose such facts with intention to induce them to buy said property at $55,000 and to contract therefor; that plaintiffs would not have made such purchase or executed such contract therefor if they had known of such pending zoning requirements and agreements, and were damaged by such concealment of such facts.

Defendants first contend that the above instruction is erroneous (1) because the limitations and agreements constituting the zoning requirements in evidence were matters of public record, equally available to the plaintiffs, and that defendants were under no duty in the law to disclose or inform plaintiffs of the same. Defendants offered no instruction other than their motion for a directed verdict at the close of the testimony.

Plaintiffs maintain that the property was advertised and shown as a going concern; that they were told that the capacity of the trailer court was 22 trailers of the usual dimensions; that the profit records were shown them disclosing the net income from the various parts of the enterprise; that plaintiffs were inexperienced in the operation and management of such property and business; that nothing was said to them respecting the pending limitations allowed and agreed to between the zoning authorities and defendants as shown in evidence; that defendants had superior knowledge of such facts and that no ordinarily prudent person would have searched for any such agreed “variances” as shown, before acting upon the representations of the defendants.

It may be noted here that although the contract provided for a complete abstract of title to the real estate to be furnished plaintiffs by March 5, 1961, as heretofore stated, no mention of same is otherwise found in

the record except in the testimony of defendant Alvin Lewis: “Q. Now did you comply with this obligation on you as to having the abstract examined? A. Right.” Although defendants assert that the actions of the Moberly Board of Zoning Adjustment were public records available to plaintiffs, no showing is made by either party as to whether such records were contained in any such abstract.

The general law as to the right to rely on representations is expressed as follows:

“The right to rely on representations is generally conceded where the hearer lacks equal facilities for ascertaining the truth, as where the facts are peculiarly within the knowledge of the speaker and are difficult for the hearer to ascertain, as where misrepresentations relate to latent defects, where, because of the hearer’s ignorance and inexperience, it would be necessary for him to employ a third person to make an examination in order to learn the truth * * * ” 37 C.J.S. Fraud § 34, pp. 279, 280.

Even misrepresentations of law may be actionable if made by a party not in a position of trust, if such person has a superior knowledge of the law and the other party, relying thereon, is induced to execute an obligation to his injury. Security Sav. Bank v. Kellems, 321 Mo. 1, 9 S.W.2d 967, 970; Emily v. Bayne (St. Louis Court of Appeals), 371 S.W.2d 663.

Assuming that the facts concealed from the plaintiffs herein were matters of public record, it was said in 23 Amjur., Fraud and Deceit, Section 163, p. 972: “It is generally held that fraud may be predicated of false representations or concealments, although the truth could have been ascertained by an. examination of public records”. The facts-which plaintiffs claim were concealed from-them were latent matters; the long ownership and operation of the property by defendants supplied them with superior knowledge of the zoning requirements and the present status of the property thereunder. It must be considered that the jury determined that defendants did not in any way inform the plaintiffs of the zoning restrictions and “variances” of which defendants had actual and superior knowledge.

The Supreme Court in Bertram et al. v. Kempster et ux., Mo., 216 S.W.2d 494, 496, quoted with approval the following:

“ * * * ‘the law of fraud does not exact of the victim that degree of caution which some other hypothetically prudent person would have used, but only reasonable care in view of his situation. * * * The snares of the fraud-feasor are most often set for the incompetent, the ignorant, and the unwary’ ”.

See also Wolf v. Kansas City Tire & Service Co. et al., Mo.App., 257 S.W.2d 408.

“Where the fact misrepresented or the matters which are concealed are peculiarly within the representor’s knowledge and the representee is ignorant thereof, it is generally held that, although the real fact appears on the public records, the representee is under no obligation to examine the records, and his failure to do so does not defeat his right of action. This is especially true where the very representations relied on induced the hearer to refrain from an examination of the records, where the employment of an expert would have been required to deduce the truth from an examination of the records, * * * or where the defrauded party was inexperienced”. 37 C.J.S. Fraud § 34, p. 281.

We think that under the great weight of authority it was the duty of the defendants in this case to reveal to the plaintiffs the material limitations of the zoning ordinance affecting the operation of the property being sold to the plaintiffs, as to which defendants had procured temporary deferments and that the failure of the plaintiffs to search for any public records disclosing the same did not affect their right to recover their damages herein.

Defendants next claim error in the giving of Instruction No. P-1 in that it contains the following: “ * * * and if you further find that the plaintiffs had no knowledge of the necessity of paving the driveways and the conformity to the 30 foot setback line by July, 1963, and such knowledge was not as readily available to the plaintiffs as it was to the defendants, * * (Italics supplied.) Claim is made that the italicized words constituted a comment by the court, was contradictory of Mr. Gamel’s testimony that he was familiar with zoning laws and knew that Moberly had zoning regulations, but that he did not examine them because he thought “everything was in order”. The instruction, a verdict-finding one, submitted a series of factual elements, each preceded by the words “if you find and believe from the evidence”, or “if you further find”, etc., and the part complained of was plainly so expressed when the punctuation and phraseology are given effect. The point is overruled.

The instruction did not conflict with Mr. Gamel’s testimony. He testified that his property in Columbia was outside that city and zoning laws were not involved when he divided it into three parcels. He said he was “generally” familiar with zoning laws and assumed there were such laws in Moberly; that he did not examine them as to defendants’ property because it was an operating business and he felt that “everything was all right”.

Defendants’ last point is that Instruction No. P-2 on the measure of damages is erroneous, as not stating the true measure of damages. Admittedly this point was not included in the motion for new trial. It is therefore not preserved for review, Supreme Court Rules 70.02 and 79.03, V.A.M.R.; Arnold v. Fisher, Mo.App., 359 S.W.2d 602. Defendants ask this court, nevertheless, to entertain the point as a plain error. They did not offer any instruction at the trial other than their motion for a verdict. Under all the circumstances we believe this court is not justified in reviewing the point here made without the attention of the trial court being first directed to the same for consideration.

The judgment of the trial court should be affirmed. The Special Commissioner so recommends.

The foregoing opinion of SAMUEL A. DEW, Special Commissioner, is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Blanche Deputy LYNCH, Plaintiff-Respondent, v. WEBB CITY SCHOOL DISTRICT NO. 92, William H. Perry, William R. Chinn, John Lewis, Harvey E. Arnce, Robert J. Baker, Ralph H. Costley, and Lawrence Miner, Defendants-Appellants.
    No. 8194.
    Springfield Court of Appeals. Missouri.
    DeC. 6, 1963.

      Myers & Birk, Webb City, for defendants-appellants.
    Seiler, Blanchard & Van Fleet, Herbert Van Fleet, Joplin, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a summary judgment (Civil Rule 74.04, V.A.M.R.) rendered in favor of plaintiff-respondent on the first count of plaintiff’s petition in a school teacher’s suit to enjoin the board and officials of the Webb City School District No. 92 from preventing her from performing her contract, for an order that she be reinstated, for the balance due under her contract, and for “such other and further relief.”

The suit was brought May 16, 1961, against the Webb City School District and the named persons as its directors and its superintendent. It alleged that by written contract plaintiff was employed to teach for the school year (1960-1961) for a term of nine months, commencing in September 1960; that she did so teach through April 13, 1961, at which time the board terminated her services for the school year, although it voted to pay her salary for the remainder of the school year; that plaintiff offered to continue teaching, but defendants prevented her from so doing; that defendants tendered plaintiff a check in the sum of $1,266.-44 for the balance of the school year, but, as a condition of cashing the check, required her to execute a release in full of all claims; that plaintiff had (also) a claim against the district under a contract to teach for the following (1961-1962) year, and she refused to sign the release for that reason although she offered to give a receipt in full for the 1960-1961 year; but defendants refused to pay the balance unless she would release her claims in regard to the contract for the 1961-1962 year.

The second count declared upon a written contract to teach for the 1961-1962 year. It is not of concern to this case except as it may affect the finality and ap-pealability of the judgment on count one.

The answers of defendants make various allegations. We will consider only those which are carried into the appellants’ contentions in their brief as furnishing genuine issues. These contentions are whether or not: (1) plaintiff resigned; (2) plaintiff voluntarily abandoned her contract; (3) plaintiff performed her duties under the contract; (4) the contract originated in breach of faith and was obtained by unfair concealment; (5) plaintiff tried to mitigate damages; and (6) plaintiff had an adequate remedy at law.

The undisputed facts, as they appear from the pleadings, admissions, and answers to interrogatories, are as follows:

Plaintiff was a legally certified teacher. On April 8, 1960, there was a written contract whereby plaintiff was employed by defendants for a period of nine months, commencing on September 6, 1960, at a salary of $3850 per year payable in twelve monthly installments. She filed with the board her certificate from the State Board of Education of Missouri, entered upon her duties as a teacher, reported regularly for work and performed the duties prescribed by her contract, unless the matters contended in appellants’ brief can be said to be a failure to perform.

At a board meeting held on March 10, 1961, a number of teachers, including plaintiff, were re-elected for the 1961-1962 term. A form of contract was sent to plaintiff together with a letter advising her that it was the contract for the next year and that she had until April 20 to sign and return it. Plaintiff signed such contract and delivered it on April ll. On April 11, Superintendent Miner informed the board that plaintiff’s contract had been returned unsigned. The answers of defendants to count two deny that a contract for 1961-1962 was entered into.

At a special meeting of the board held on April 13, 1961, the superintendent advised the board he had been in error in advising the board that plaintiff had not signed and returned her contract. It was first voted that “Mrs. Deputy’s services be terminated at the end of the 1960-61 term and that a notice be sent her to that effect signed by both the president and the secretary of the board.” Superintendent Miner presented the following reasons why Mrs. Deputy not be retained as teacher:

(1) She is critical of other teachers.
(2) She is critical of the administration.
(3) She questions administrative decisions in an unprofessional manner.
(4) She lacks professional ethics in our opinion.
(5) She lacks desired tact in dealing with some parents or guardians.
(6) She is reluctant to carry out extra assignments.
(7) In our opinion, she performed an act of disloyalty toward the Board of Education, and the Superintendent of Schools.

Thereupon, it was voted that (a) plaintiff’s services and contract be terminated immediately and (b) she be paid “the balance of her contract for the 1960-61 term but that her services for the year he terminated immediately.”

Plaintiff was present at the meeting and through her attorney offered to continue her teaching, but at such meeting the superintendent informed her that her services were terminated and she should not report for work. Nevertheless, on the morning of the next day, before school hours, plaintiff called the superintendent and offered to work but was told not to. The following day she was notified in writing that her contract was “immediately terminated under Section 163.100 Revised Statutes of 1949 because of violations of the rules and regulations of the Board of Education.” Defendants thereafter tendered plaintiff a check for $1,266.44 and plaintiff refused to cash it because it contained, on the back, a release of any and all claims against the district.

We must first examine our jurisdiction. Anderson v. Metcalf, Mo., 300' S.W.2d 377. The summary judgment on count one was entered without further order in respect to finality. Ordinarily, a judgment to be final must dispose of all the issues in the case and if it is not final the judgment is not appealable. Appeals cannot be allowed piecemeal. Swan v. Stuart, Mo.App., 350 S.W.2d 832; Bays v. Lueth, Mo., 323 S.W.2d 236. But the appellate courts should avoid disposition of appeals on procedural grounds “when permissible.” Hahn v. Hahn, Mo., 297 S.W.2d 559. Civil Rule 82.06, V.A.M.R., provides that, when a separate trial is had before the court upon claims arising out of the same transaction or occurrence, the judgment upon one shall not be final unless specifically so designated. But when separate trial is had before the court on separate and independent claims, the judgment shall be deemed final unless the court orders it held in abeyance or enters it as an interlocutory judgment.

In this case, counts one and two were based on entirely different and distinct contracts. They call for service for different periods. This service as to count one was nearly completed, although the period of payment of installments was not. As to count two, the period contemplated for service had not commenced. The contract for count one is not denied. The contract involved in count two is disputed. The two actions have no relation to each other except that the matters claimed in defense (to be considered hereafter) may, if they be a genuine defense at all, be provable by the same evidence. We believe the finality of the judgment on count one is governed by the holding in Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377. If the actions are entirely separate and distinct, the situation would be governed by the concurring opinion in the Pizzo case at 295 S.W.2d 1. c. 387. If the actions are deemed to be related, then we think the judgment of the court is to be construed as an intention to make final disposition of count one and an order for separate judgment thereon, as held in the majority opinion of the Pizzo case. For such reasons we accept jurisdiction.

The written notice of “immediate termination” which was served on plaintiff-respondent was stated to be “under Section 163.100 Revised Statutes of 1949.” That section specifically provides “[t]he board shall have no power to dismiss a teacher; but should the teacher’s certificate be revoked, said contract is thereby annulled.” It is not contended that plaintiff’s certificate had been revoked. The courts have “inflexibly enforced” the rule of such statute prohibiting dismissal by the board. It has no implied authority to dismiss for any reason. Lemasters v. Willman, Mo.App., 281 S.W.2d 580; Magenheim v. Board of Ed. of School Dist. of Riverview Gardens, Mo.App., 347 S.W.2d 409. True, the statute does permit the board to withhold the pay of a teacher if such teacher fails or refuses to comply with the terms of the contract or execute the rules and regulations of the board, until compliance is rendered, but this withholding of pay is permitted only after due notice in writing. See Wood v. Consolidated School Dist. No. 13, Mo.App., 7 S.W.2d 1018. The action of the board of directors did not purport to be a withholding of pay pending compliance with the rules. As a matter of fact, it is the opposite. The action was a termination of the contract and payment for the balance of the year’s salary.

The action by someone in making the payment of this sum conditioned upon a release of other claims was apparently without authorization of the board. The order of the board was to pay, not to pay upon condition. Nor was the plaintiff given any “due notice” as provided by the statute. The fact that its reasons for termination were entered on the minutes was not the notice contemplated by the statute. Neither were the items thereon specified sufficiently definite and specific to apprise a person of all the specific things she was doing or failing to do in order that she. might intelligently comply. We believe the action of the board was a recognition that plaintiff had a valid contract and that defendant school system owed her the salary specified. Armstrong v. School District, 19 Mo.App. 462, 464.

As to appellants’ contention that plaintiff had an adequate remedy at law: In contracts such as this there is something involved other than money. The professional standing and reputation of the teacher are involved. Also involved is the plaintiff’s position and standing in The Public School Retirement System of Missouri. If she was not under the retirement system, her social security would be involved. The injury to a teacher because of a wrongful discharge can be more far-reaching than the specific amount of salary involved. We believe the plaintiff was entitled to pursue the remedy which she did. Lemasters v. Willman, supra, Mo.App., 281 S.W.2d 580, 590; see Magenheim v. Board of Ed. of School Dist. of Riverview Gardens, supra, Mo.App., 347 S.W.2d 409.

As to whether there is a genuine issue on the question of whether or not the plaintiff resigned: Defendants admit that plaintiff tendered no written resignation. Section 163.090, RSMo 1949, V.A.M.S., contemplates that a contract may be terminated by mutual consent of the teacher and the board. Defendants’ rules and regulations provide that “after contracts have been signed resignations of teachers and staff members will be accepted only when satisfactory qualified replacements can be found.”

Defendant Superintendent Miner, in answer to interrogatories, stated that plaintiff had verbally resigned (to him) on April 7, 1961, and that he communicated the fact of such resignation to the board at its meeting on April 11. He does not contend that the board accepted such resignation. Actually Miner told the board that the plaintiff had not returned her signed contract, and at the next meeting (April 13) he acknowledged his error in that respect. The minutes of April 13 do not show any acceptance of a resignation. They show the board “fired” the plaintiff upon representation made by Miner. But did the plaintiff actually offer any “verbal resignation” to Miner? A further examination of his answers to interrogatories shows that he and plaintiff had some talk (and evidently some friction) on April 7. He says, “I had not at that time looked or examined the alleged contract returned by the Plaintiff because Plaintiff had informed me that she had intended to resign” and “April 7, 1961 in my office, Plaintiff said she would resign, that she would not work where she was not wanted.” It is apparent that Superintendent Miner confused a statement of present intention to do an act in the future with a definite present fact. We conclude there is no. genuine good faith issue as to either the fact (a) that plaintiff actually tendered her resignation, or the fact (b) that the board accepted it. Appellants have cited no authority to sustain their position in regard to this contention. We shall cite none in denying it.

As to whether plaintiff voluntarily abandoned her contract: On the night she was fired the plaintiff offered to work but was told she was terminated. Despite that, she called before school hours the next day and again offered to teach and was again refused. On that or the following day she was given a written notice she was “terminated.” Enough is enough. She was not required to disrupt the school by attempting to force her way physically into the classroom. If the defendants actually prevented the plaintiff from teaching, such was sufficient. Wood v. Consolidated School Dist. No. 13, supra, Mo.App., 7 S.W.2d 1018(5). We think she was sufficiently “prevented” in this case. See Boswell v. Consolidated School Dist. No. 8 of Newton County, Mo.App., 10 S.W.2d 665. Defendants rely on Byington v. School Dist. of Joplin, 224 Mo.App. 541, 30 S.W.2d 621. That case is not comparable. There the teacher had failed to appear on November 28, the day she was married. On December 2 she was called into question about violating the regulation. She said she "had intended to quit anyway at the end of the term”; she left and never again presented herself for work A teacher was assigned to her place. On December 17 she wrote a letter offering to resume her services, and the court held that whether she abandoned was a factual question.

Appellants suggest that plaintiff “abandoned the contract * * * by misconduct in violation of Rules and Regulations” of the board. We will consider this suggestion under appellants’ next contention, that there was an issue as to whether plaintiff performed her duties tinder the contract. No authority is cited for this proposition. It may be that a failure to perform services might amount to an abandonment and a violation of rules and regulations might in some instances be so gross as to constitute a failure to perform; but in this instance there is no contention that the plaintiff did not regularly report and teach her class. The answers to interrogatories and the admissions show that the complaints against the plaintiff consist of the fact that she was “critical,” “complaining,” and “disloyal.” She was alleged to be critical of some other teachers, critical of the way the blinds were fixed, and critical of the principal and the school system, and she allegedly compared it unfavorably with others. She was “disloyal” because at a teachers’ meeting she asked the superintendent a question “in a manner which was critical.” She complained constantly about being asked to carry out extra assignments, such as selling tickets to the basketball games. She stated that she would not stay after four-thirty to talk with any parents, and she violated rules and regulations by handing communications directly to a school board member. These are not all of the charges made against plaintiff, but they are a fair sample, and the others are of the same nature. We think they do not comprise either abandonment or failure to perform the contract. If such can be used as a means to dispose of a teacher who may criticize, complain, or is guilty of lese majesty, then the provisions of Section 163.100, V.A.M.S., are completely nullified. We think all the claims of the defendants under the contentions of abandonment and failure to perform, if proven, would not establish a defense to this action.

As to whether there is a genuine issue on plaintiff’s failure to mitigate damages: The answer of defendant school district simply charged that “plaintiff has failed and refused to look for other employment to mitigate any damages.” It is defendants’ burden to plead and prove that plaintiff could have secured employment of similar character. Tate v. School Dist. No. 11 of Gentry County, 324 Mo. 477, 23 S.W.2d 1013, 70 A.L.R. 771; Edwards v. School Dist. No. 73 of Christian County, 221 Mo.App. 47, 297 S.W. 1001; Wood v. Consolidated School Dist. No. 13, supra, Mo.App., 7 S.W.2d 1018(11); (contrast the pleading in Alleger v. School Dist. No. 16, Newton County, Mo.App., 142 S.W.2d 660). Plaintiff was not required to accept any and all employment. It is not contended that plaintiff had the opportunity for employment in work of similar character. As a matter of fact, it is obvious that the teaching period for the school year was near the end, although the salary was stretched out over the full year. On this contention, also, the appellants cite no authority. We believe it deserves no further attention from us.

We consider the contention that there was a genuine issue as to whether the contract was obtained by unfair concealment of material facts.

In the first place, breach of faith or concealment of material facts was not one of the reasons assigned for the discharge of the plaintiff at the April 13 meeting. It appears to be an afterthought.

The answer of defendant school district states that plaintiff’s contract originated in a breach of faith and was obtained by unfair concealment of material facts in certain respects, and according to the answers and interrogatories we find that the charge of breach of faith is based on “failure to show her correct age and failure to inform the Webb City School District #92 that she had been fired by the Sar-coxie School District.” The allegation does not state that plaintiff affirmatively misrepresented these matters, only that she did not divulge this information; nor does it state that plaintiff was underage or overage, or that she represented herself as of any certain age; nor does it allege that she had actually been fired by the Sarcoxie District. It is not contended, and we do not find, that the negotiations leading to the contract, the proceedings by the board, or the rules and regulations required the plaintiff to affirmatively state her age or to affirmatively state whether she had been previously fired. Neither of these is made a condition of employment. The only representation appearing in the contract is that plaintiff is a legally qualified public school teacher. It is admitted that plaintiff filed her state certificate and defendants have never been notified that it has been revoked. She was not required to volunteer any information not required of her or made a condition of her contract. The case relied upon by appellants, Taggart v. School Dist. No. 52, Carroll County, 339 Mo. 223, 96 S.W.2d 335, was one in which single blessedness was made a condition of reemployment for a term to commence September 1. In the contract (May 1) the teacher made an affirmative declaration she was not married and that if she became married the contract would become null and void. On April 29 she had married, but she admittedly concealed such fact from the board. On July 29 the board discovered the marriage and declared the contract of re-employment to be null and void. It was held that the teacher’s written contract misrepresentation was a fraud of such nature as to affect the board’s willingness to contract with her and that the courts would not aid a tort-feasor by enforcing a contractual obligation procured by fraudulent misrepresentations. In the instant case there is no claim, either of a requirement nr condition, in respect to the matters alleged or of an affirmative misrepresentation in respect to such. We conclude that the “failure to show” or “failure to inform,” if there was any such failure to show, was not material to the questions involved in this case and did not make a genuine issue.

The final contention is that the court erred in entering judgment against the individuals named because they were no longer' directors of the defendant district. Again appellants cite no authority. The record shows that on March IS, 1962, hearing was held and the motion for summary judgment was taken under advisement. On July 23 the court rendered judgment for plaintiff on count one in the sum of $1,-266.44 as balance due on the contract, with a decree reinstating plaintiff as a teacher on the records of defendants for the full 1960-1961 school year. Defendants were required to pay the amounts due to The Public School Retirement System of Missouri for teachers’ retirement and to the Director of Internal Revenue for social security. On August 1, 1962, defendants filed motion for new trial wherein it was alleged that the court erred in entering judgment against defendants on July 23, 1962, “because on June 30, 1962 an election was held whereby Webb City School District #92 was dissolved and Defendants William H. Perry, William R. Chinn, John Lewis, Harvey E. Arnce, Robert J. Baker and Ralph H. Costley were dismissed as members of the Board of Directors of Webb City School District #92.”

As to the money judgment against the district: If the claim of the teacher is otherwise valid, a judgment cannot be denied simply because of the difficulty of collecting it. Dye v. School Dist. No. 32 of Pulaski County, 355 Mo. 231, 195 S.W.2d 874(15).

The supporting affidavit for the motion for new trial states that in the dissolution of Webb City School District No. 92 there was a school district reorganization. If Webb City No. 92 was absorbed into another district, the absorbing district would be bound to carry out the obligations of the original Webb City District. McClure v. Princeton Reorganized School Dist. R-5 of Mercer and Grundy Counties, Mo.App., 307 S.W.2d 726, Mo.App., 328 S.W.2d 65.

The individually named defendants were sued as officers and representatives of the district. Certain of the acts prayed for and ordered must necessarily be performed by such officers. Civil Rule 52.12, V.A.M.S., provides for continuance of actions against successors of public officers and for substitution of parties. The suggestion of dissolution of Webb City District No. 92 came after judgment. It was not sufficient to provide information permitting substitution because the suggestion did not inform the court of the name of the reorganized district or the names of its officials. For aught that appears, the named individuals of the old district are the officials of the new one. We think under the circumstances that the cause should not be reversed for failure to substitute after judgment, but that the cause should be remanded to permit substitution of parties if it be so desired.

The judgment is not erroneous because it directs payment of amounts due to the retirement system and to social security. The order is to pay all sums due. Probably the plaintiff is under the retirement system, but if no sums are due for social security, nothing will be paid and no one is hurt.

The judgment is affirmed and the cause is remanded for further proceedings not inconsistent with this opinion.

STONE and HOGAN, JJ., concur.

      . According to plaintiff's answers to interrogatories, she took this communication to the superintendent’s office between four-thirty and five p. m. with the intention of delivering it to the secretary of the board or the superintendent, but the office was closed, so she took it to and left it with a member of the board. At any rate, the paper was in the hands of the secretary by the time of the April 11 board meeting.


author: McDonald, judge. MORRISON, Judge.

text:
    Clarence MATLOCK, Appellant, v. The STATE of Texas, Appellee.
    Mo. 36069.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Dec. 4, 1963.
    A. L. Lowery, Marion G. Holt, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving a motor vehicle on a public highway while intoxicated; the punishment, confinement in jail for three days and a fine of $50.00.

The evidence presented by the state through its witnesses Patrolman Coker and Deputy Mitchell is briefly as follows: Coker and Mitchell were looking for appellant when a car approached them on the wrong side of the road, nearly hitting an abutment. The car was followed and appellant was observed driving it, no one else being in the car. The officers each testified that they smelled alcohol and urine in the car and on appellant; that there was a liquid on his pants and they were torn. Appellant was observed to stagger when he waked, and talked with a thick tongue.

Each officer stated that in his opinion, based on many observations of intoxicated persons, the appellant was intoxicated.

Appellant, his wife and daughter all testified that he had nothing intoxicating to drink. He further testified that he was woozy due to a blow to the head received in a fight earlier that day.

The jury resolved the issue of intoxication against appellant. We find the evidence sufficient to sustain their verdict.

Highway patrolman James Clyde Coker, a witness called by the State, upon being questioned by the county attorney, testified that he went to appellant’s home after receiving a telephone call saying a ruckus was being raised at appellant’s house. The officer further testified that on his arrival at the house, appellant’s wife stated that appellant and Junior Coats had been drunk and fighting.

An objection to this testimony was sustained by the court and the jury was instructed not to consider it.

Appellant complains, by informal bill, that this testimony by the state’s witness was fundamental error as a violation of Article 714 of the Vernon’s Ann.Code of Criminal Procedure of the State of Texas which provides as follows: “ * * * The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.”

It is contended that the fact that the court instructed the jury not to consider the testimony did not cure the reversible error and render harmless the prejudice already done to the rights of the appellant and that such fundamental error could not be cured by appellant later calling his wife as a witness to deny such declarations. We overrule the contention. The answer which related to the conversation with the wife was unresponsive. The state moved the court to withdraw the answer from the jury’s consideration, which motion was granted and the appellant asked no further ruling of the court. See Bearden v. State, Tex.Cr.App., 334 S.W.2d 447, and Baker v. State, Tex.Cr.App., 368 S.W.2d 627

The appellant cites and relies upon Sovey v. State, Tex.Cr.App., 362 S.W.2d 121; Cole v. State, 92 Tex.Cr.R. 368, 243 S.W. 1100. In the Sovey case, the prosecuting attorney asked the defendant questions which of necessity would have been known only by appellant and his wife and then followed with such improper questions as, “You know we can’t put her on the stand but you can,” “You don’t want this jury to hear what she has to say, do you?” and “You got to tell your side. Wouldn’t you like for the jury to hear her side?” Thereafter the prosecution offered the wife’s statement into evidence which forced appellant to object thereto. This court, through Judge Morrison, held this conduct to be highly improper and that the trial court should have granted a mistrial.

In the Cole case the prosecutor testified that he had been present at prior hearings and that appellant’s wife had testified against the accused. Judge Hawkins, writing for the court said reversible error was reflected because the prosecutor’s entire testimony was tantamount to telling the jury that her (appellant’s wife’s) testimony would have been favorable to the state and injurious to appellant and the state improperly sought advantage by commenting on her failure to testify at such trial. He concludes “[t]he effect of it was to indirectly make her a witness against her husband.”

The Cole and Sovey cases are easily distinguished from the one at bar. In the instant case there was no direct comment with reference to the wife’s testifying as in the cases cited by the appellant.

It is well settled that statements made by the wife to a third party or statements between husband and wife which are overheard by a third party do not come within the privilege under Article 714 of the Vernon’s Ann. Code of Criminal Procedure. Bibb v. State, 83 Tex.Cr.R. 616, 205 S.W. 135; Lawler v. State, 110 Tex. Cr.R. 460, 9 S.W.2d 259; Edwards v. State, 105 Tex.Cr.R. 458, 288 S.W. 1071. Whether or not the conversation is hearsay or admissible as res gestae does not concern us here as the testimony was not admitted and the jury was instructed not to consider it.

The statement in no case could be considered as fundamental error. See Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749 in which this court held that any error in permitting officers to testify as to what defendant’s wife told them was waived where defendant did not object to testimony of a police dispatcher as to what the wife told her when the wife called the police.

In Lawler v. State, a third party testified as to a statement made by the defendant’s wife and this court stated:

“[Wjhen she (the witness) gave the testimony complained of in response to the state’s question, the court instructed the jury not to consider such testimony. In this condition the bill fails to manifest reversible error.”

Since the testimony of the state’s witness, James Coker, concerning the declaration of the wife cannot be considered fundamental error, appellant’s further contention that he was forced to call his wife as a witness is without merit.

Finding the evidence sufficient to sustain the verdict and no reversible error - appearing, the judgment is affirmed.

ON REHEARING

MORRISON, Judge.

After appellant objected to the statement of Officer Coker, the State moved that the jury be instructed not to consider the same; such motion was granted by the Court and appellant took no further action.

In the recent case of Baker v. State, Tex.Cr.App., 368 S.W.2d 627, we quoted from Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447, and said:

“The court ruled favorably to the appellant on his objection. After his objection was sustained he appears to have been satisfied because he asked the court for no further relief. Appellant is in no position to complain of said statement. 5 Tex.Jur. (2) 61, Sec. 39; Martin v. State, 157 Tex.Cr.R. 210, 248 S.W.2d 126; Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652; Pruitt v. State, 164 Tex.Cr.R. 340, 299 S.W.2d 148.”

For the reason stated, appellant’s motion for rehearing is overruled.


author: WOODLEY, Presiding Judge.

text:
    Chester TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 36336.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.

      Billy C. Powell, J. Robert Harris, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault (Art. 1147, Sec. 3, Vernon’s Ann.P.C.) ; the punishment, one year in jail.

The complaint and information alleged that the appellánt did go into' the house of a private family and did then and there commit an aggravated assault and battery upon Kenneth Taylor.

. The statement of facts found in the record relates to a hearing on a motion of the appellant, not to the trial before the jury.

The only motions found in the transcript are a motion and first amended motion for new trial, the only ground being “that the judgment of the court is contrary to the law and evidence in said cause.” Neither motion is verified.

In this state of the record the contention that the appellant was denied due process of law by the failure of the court to appoint an attorney to represent him at his trial cannot be appraised. Thomas v. State, 166 Tex.Cr.R. 584, 316 S.W.2d 741; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878; Pizzitola v. State, Tex.Cr.App., 374 S.W.2d 446.

The remaining ground upon which reversal is sought is a claimed fundamental error in the charge which would authorize a conviction though only an assault was. committed in the house, whereas an assault without a battery would not constitute an aggravated assault. Art. 1147, Sec. 3, V.A.P.C.; Hamilton v. State, 138 Tex.Cr.R. 205, 136 S.W.2d 858; Pederson v. State, 21 Tex.App. 485, 1 S.W. 521.

Whether such error in the charge (to-which no exception was taken) was calculated to injure the rights of the appellant would depend upon the evidence.

- The complaint and information properly alleged the offense and charged a battery as well as an assault.

In the absence of a statement of facts the claim of fundamental error in the-charge must be considered upon the assumption that a battery was committed. Under Art. 666 C.C.P. the error is not ground for reversal. See Layman v. State, 126 Tex.Cr.R. 533, 73 S.W.2d 97.

The judgment is affirmed.


author: McDonald, judge.

text:
    Chester Soto DOMINGUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36192.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F„ Dally, Joe C. Shaffer and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawfully possessing a narcotic drug, to-wit: morphine; the punishment, confinement in the penitentiary for forty-five (45) years.

Police Officers Shelton and Hightower testified that they had received information from a credible person that the appellant had narcotics in his possession and would be at a particular location in Harris County, Texas. They further testified that they proceeded to this location where they found the appellant, proceeded toward him, and observed him swallow a white cellophane paper which he held at the time he was approached. Each officer testified that the appellant voluntarily consented to the extraction of the white cellophane paper by means of a stomach pump, or by means of voluntary regurgitation produced by a saline solution. The appellant was taken to the hospital where each of the officers observed the appellant drink the saline solution, which was administered by the doctor in attendance at the emergency room. The subsequent regurgitation produced the white cellophane paper which the officers identified as the same paper the appellant had swallowed earlier. This paper was placed in an envelope, identified by the initials of each of the officers, the appellant’s name and date, and deposited in a locked container in the Narcotics Division.

Mr. Robert F. Crawford, chemist in the City of Houston Police Department Criminal Laboratory, testified that he recovered the envelope containing the white cellophane paper from the locked container, and conducted a chemical analysis of the contents, which he determined to be approximately .9 grams of 17% pure morphine.

Mr. Frank Keegan, Deputy District Clerk of Harris County, Texas, testified that the documents pertaining to the instant case, over which he had care, custody and control, indicated that the offense occurred on the 23rd day of September, 1958; that the case was previously set for trial April 20, 1959, on which date a bond forfeiture was declared, and that a new bond was executed on the 4th day of June, 1962.

The appellant did not testify and offered no evidence. No exceptions nor objections were taken to the Court’s charge. The appellant has not favored us with a brief.

The arrest and search of the appellant was lawful, and the evidence is amply sufficient to support the verdict of the jury; Sanders v. State, 166 Tex.Cr.R. 255, 312 S.W.2d 640; Slaughter v. State, 166 Tex.Cr.R. 403, 314 S.W.2d 92; and Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757.

Appellant complains of the action of the trial court in permitting the Deputy District Clerk of Harris County to testify as to the information reflected by the Clerk’s records indicating a prior bond forfeiture and the execution of a new bond. Evidence that the appellant forfeited his bail bond is clearly admissible to show flight; Dickens v. State, 121 Tex.Cr.R. 298, 53 S.W.2d 41; Tindall v. State, 146 Tex.Cr.R. 245, 172 S.W.2d 328; Williams v. State, 148 Tex.Cr.R. 427, 187 S.W.2d 667; Henderson v. State, 163 Tex.Cr.R. 153, 289 S.W.2d 274.

Appellant further complains of the action of the Court in overruling his motion to quash the indictment. Appellant’s motion to quash does not constitute an informal bill of exception reviewable by the Court for the reason that it does not contain an order of the Court thereon and appellant’s exception to the ruling of the Court. Such an order and exception are required under Article 760e, Vernon’s Ann.C.C.P., to constitute an informal bill of exception to the court’s action in overruling the motion. Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Brooks v. State, 170 Tex.Cr. R. 555, 342 S.W.2d 439, Article 760e, V.A. C.C.P.

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    David Wayne LOVE, Appellant, v. The STATE of Texas, Appellee.
    No. 36333.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.

      Gene Starkey, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Richard P. Hogan, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is the unlawful possession of a dangerous drug: a barbiturate; the punishment, six months in jail.

Officers Strickland and Farrar of the Houston Narcotics Squad received information from a credible person that appellant would be driving a tan Plymouth automobile with Texas license number JA 3646 in about the 5200 block of Telephone Road, in Houston, and that he had narcotics in his possession.

Based on this information, the officers in less than ten minutes from the time of the receipt of such information stopped the appellant while he was driving a tan Plymouth automobile bearing Texas license number JA 3646 in the 5200 block of Telephone Road. On a search of the Plymouth, the officers found a piece of cellophane containing eleven green and white capsules in the middle of the front seat next to the driver. They further testified that they did not have time after the receipt of said information to obtain a search warrant.

Chemist McDonald testified that an analysis of four of the eleven capsules revealed that they contained a mixture of Amphetamine and a derivative of Barbituric acid.

The two officers also testified that from their observation of the appellant, they were of the opinion that appellant was under the influence of barbiturates at the time of his arrest.

Testifying in his own behalf, the appellant stated that while he was in a lounge on Telephone Road sometime after 11 p. m., a friend asked him to take her home, that he told her he would like to, but he did not have a car. At this time a car salesman offered him the use of his car, and he (appellant) went to a nearby parking lot, got the car, a Plymouth, and as he stopped in front of the lounge for his friend the officers stopped behind the Plymouth. The officers, after searching the car out of his presence, exhibited a package and said “Well, what about this ?” Appellant further testified that he had never seen the package before, that the capsules were not his, and denied telling the officers it was his car.

The testimony of the friend he was preparing to take home corroborates the testimony of the appellant.

The jury resolved the fact issues against the appellant.

Appellant contends that the admission into evidence of the results of the search of the Plymouth was error on the ground that his arrest and the search incident thereto was illegal.

Officer Strickland, wtien recalled by the state as a witness, testified without objection, that he found the cellophane package containing the capsules in the Plymouth on the middle of the front seat next to the driver. Therefore appellant is not in position to complain of the search because the same or similar testimony was introduced without objection. 5 Tex.Jur.2d 704, Sec. 446; Hughes v. State, 163 Tex.Cr.R. 224, 289 S.W.2d 768; Garza v. State, 172 Tex.Cr.R. 468, 358 S.W.2d 622.

Further, the statement of appellant’s counsel that “I have no objection your honor” at the time the capsules were introduced in evidence waived any complaint of the search. Wyatt v. State, 162 Tex. Cr.R. 134, 282 S.W.2d 392; Williams v. State, 166 Tex.Cr.R. 617, 317 S.W.2d 537; Williams v. State, 168 Tex.Cr.R. 643, 331 S.W.2d 214; Burns v. State, 172 Tex.Cr.R. 112, 353 S.W.2d 860; Bernard v. State, 172 Tex.Cr.R. 52, 354 S.W.2d 157.

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

Opinion approved by the Court.


text:
    Denver Colorado MASSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36307.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    No attorney for appellant on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $100.

The evidence shows that about one o’clock P.M. the appellant was driving a 1955 Dodge automobile west on Kingsley Drive, in the City of Garland, Dallas County, when he struck the rear of an automobile traveling in the same direction as it slowed to make a right turn.

Patrolman Sullivan was flagged by appellant’s son, who was a passenger in the Dodge automobile. He testified that as the appellant came from his vehicle to the Patrol Car he was “taking long, kind of uneven steps”. He testified that he conversed with the appellant and his son about the accident and observed them; that he noticed the strong smell of alcoholic beverage about the appellant; that he “had kind of a vacant look, flushed; he had kind of a glassy look to his eyes. * * * He spoke as though his tongue was thick. * * * He * * * weaved slightly * * * had trouble with his balance.”

Patrolman Sullivan further testified that he asked the appellant if he had been drinking and “he said three or four beers that morning.” He testified that he took the appellant to the police station and observed him there and that he formed the opinion that the appellant was drunk.

The appellant and his son testified that they had each consumed three cans of beer in the morning but both denied that the appellant was intoxicated.

The state called in rebuttal Lieutenant Bobby G. Presley of the Garland Police Department, who was summoned to the scene of the collision by Patrolman Sullivan and observed and conversed with the appellant. He described the appellant’s speech, appearance, manner of walk and the odor of alcohol about him, in much the same manner as had Patrolman Sullivan, and expressed the opinion that the appellant was intoxicated.

The jury resolved the issue of fact raised by the evidence against the appellant and there is sufficient evidence to sustain their verdict.

No brief has been filed, and there are no formal bills of exception and no complaint to the court’s charge. The informal bills of exception found in the statement of facts ■.present no reversible error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Lawrence O’CONNER, Appellant, v. The STATE of Texas, Appellee.
    No. 36242.
    ‘Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Rex Emerson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, death.

This is a companion case to Echols v. State, Tex.Cr.App., 370 S.W.2d 892. In order not to unnecessarily lengthen this opinion, the first four and the sixth paragraphs of the opinion in Echols are adopted as a statement of the evidence as this appellant’s role in the crime is fully set forth therein, and the same evidence was introduced in the trial of this case. Appellant’s full and complete confession was introduced without objection, and no question as to the voluntary nature of the same was raised. In the case at bar appellant did not testify or offer any evidence in his own behalf. The State, however, offered testimony that a pubic hair bearing the same characteristics as those which came from appellant’s person was found in the underclothes of the prosecutrix.

We find the evidence sufficient to support the conviction and shall discuss the contentions advanced by brief and in argument. He first contends that the arrest of appellant was illegal, and therefore, the confession and the fruits of the search of appellant’s person were inadmissible. The confession was introduced in evidence without objection and therein we find the admission that appellant had the watch and ring in question in his possession after the commission of the crime. Some SO pages later in the statement of facts appellant requested the court to instruct the jury to disregard the confession. This request clearly came too late. We observe in passing that the arrest does not impress us as being illegally made, but call appellant’s attention to what we said in Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419, as follows, “ * * * the appellant has confused illegal arrest and illegal detention following arrest. It is the detention and not the arrest which this Court and the Supreme Court of the United States hold under some circumstances vitiates a confession.” No illegal detention is shown in the case at bar.

Appellant next contends that the court erred in admitting in evidence the articles of clothing worn by the prosecutrix. There are no formal hills of exception and from the informal bills we are unable to find anything injurious to appellant from the items of clothing offered. There was no mention of the presence of blood on any of the items. Dreher v. State, 153 Tex.Cr.R. 398, 220 S.W.2d 170 and the cases cited therein illustrate that no reversible error was committed in this respect. See also 5 Tex.Jur.2d, Sec. 444, p. 696.

We commend able and experienced court appointed counsel for his efforts in appellant’s behalf, but have concluded that no reversible error is reflected by this record.

Accordingly, the judgment is affirmed.


text:
    Raymond Benjie MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36102.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    Rehearing Denied Dec. 18, 1963.
    Charles E. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Roy B. Johnson and William M. LauBach, Asst. Dist. Attys., Lubbock, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawful possession of marihuana; the punishment, 25 years.

Two officers testified that they saw the-appellant drop a paper cup. In it was a partially smoked cigarette. The state introduced evidence showing that the contents of the cigarette was marihuana, a narcotic drug.

On cross-examination of one of the officers, testimony was elicited to the effect that the appellant said he got the cigarette from another boy and that he was going to “show where a big stash was.”

The marihuana cigarette was offered in ■evidence.

All of the evidence stated was introduced without objection.

The appellant testifying in his own behalf denied having dropped the cup; denied that he had marihuana and denied that he made the statement attributed to him by the state’s witness. He testified that he had been convicted for felony theft and was released from the penitentiary on May 23, 1962. The court, in his charge, limited this evidence to impeachment purposes.

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

Appellant attacks that portion of the ■charge which instructed the jury as to the punishment provided for the unlawful possession of Marihuana, first offense, contending that the same constitutes fundamental error and that, in light of the punishment assessed, he was deprived of due process of law and a fair trial.

We are unable to agree with appellant’s contention that the court’s charge authorized the jury to assess a different or a. heavier punishment than that authorized "by the statute.

The court instructed the jury that the punishment provided by statute was “by ■confinement in the state penitentiary for life or any term of years not less than Iwo,” whereas the statute, Art. 725b, Sec. 23(1) Vernon’s Ann.P.C., reads in this regard: “by confinement in the State penitentiary for not less than two (2) years nor ■more than life.”

The punishment assessed by the jury was one allowed by the statute and by the court’s charge. We are aware of no possible punishment which could have been assessed under the court’s charge that could not have been lawfully assessed had the court used the exact words of the statute in instructing the jury regarding the punishment to be assessed.

Appellant’s complaint based upon the placement of the maximum punishment of “life” first instead of last, thus reversing the order found in the statute, is not ground for reversal. It was not essential that the language of the statute be quoted. Mangan v. State, 168 Tex.Cr.R. 265, 324 S.W.2d 849.

Appellant’s remaining contention is that insofar as it relates to punishment for possession alone of a narcotic drug the statute is unconstitutional as providing cruel and unusual punishment within the terms of the 8th and 14th Amendments of the Constitution of the United States. Arredondo v. State, 168 Tex.Cr.R. 110, 324 S.W.2d 217, is authority for upholding the statute.

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, cited by appellant, dealt with addiction to the use of narcotics as a crime. We followed Robinson v. California and held that part of Art. 725c Vernon’s Ann.P.C. which attempted to make it a crime to be an addict unconstitutional. See Ex parte Rogers, Tex.Cr.App., 366 S.W.2d 559; Salas v. State, Tex.Cr.App., 365 S.W.2d 174.

The cases cited furnish no authority for striking down the statute which provides life as the maximum punishment for the unlawful possession of a narcotic drug.

Court appointed counsel is to be commended for his diligent efforts in behalf of his client.

The judgment is affirmed.


text:
    Robert POSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36042.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Ben Hagman, Weatherford, for appellant.
    John R. Lindsey, Dist. Atty., Weather-ford, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The State moves to dismiss the appeal from a conviction for cattle theft with punishment enhanced by two prior non-capital felony convictions.

It is made to appear by said motion and the affidavit of the Sheriff of Parker County that on November 22, 1963, while this appeal was pending, the appellant escaped from jail and from custody.

The motion is granted, our prior opinion is withdrawn and the appeal is dismissed. (Art. 824 C.C.P.)


text:
    James Wilbert HOSKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 36088.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Dickson & Associates and William M. Dickson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Carol S

      Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This appeal is from a conviction of driving a motor vehicle while license as a commercial operator was suspended; the punishment, a fine of $50.00 and thirty days in jail.

Appellant’s motion for new trial was overruled, and notice of appeal was given in open court, on February 25, 1963. The ninety days during which appellant was required to file the statement of facts, as required by Article 759a, Sec. 4, Vernon’s Tex.C.C.P., expired on May 26, 1963. No statement of facts was filed by appellant by such date.

On June 11, 1963, one hundred and six days after notice of appeal, a thirty-day extension to the already expired ninety days allowed by statute for filing of the statement of facts was ordered. This order was signed by the Honorable George E. Miller, Judge of the trial court, and filed the same day it was signed. No application for this order is included in the transcript. There is nothing else in the transcript to indicate any attempt at diligence by appellant in filing the statement or seeking an extension of time for that purpose. The statement of facts was filed on the 24th day of June, 1963, which was within the 30 day period of extension but the trial judge has never approved the statement of facts in this case. See Jackson v. State, Tex.Cr.App., 344 S.W.2d 876, where Judge Belcher said, “the statement of facts, not approved by the trial judge, cannot be considered because they were not filed within 90 days after notice of appeal as required by Art. 759a, Vernon’s Ann.C.C.P.” See also Mobley v. State, Tex.Cr.App., 366 S.W.2d 558; Lynch v. State, 150 Tex.Cr.R. 148, 199 S.W.2d 172; and Griffin v. State, 59 Tex.Cr.R. 424, 128 S.W. 1134.

The action of the trial judge in extending the time for filing was not a nunc pro tunc action as the record shows exactly when the time was extended. Thus, in the absence of the trial judge’s signing of the statement of facts, there is no applicable presumption of proper extension of the time for filing. Art. 759a, Sec. 4, V.A.C.C.P., supra.

The statement of facts is not properly before this court, and the claims of error in refusal of requested charges and the overruling of objections to the charge given cannot be appraised in the absence of a statement of facts.

Nothing being presented for review, the judgment of the trial court is affirmed.


author: DICE, Commissioner.

text:
    Robert GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 35892.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.

      Hector R. Azios, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; 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 evidence shows that the Big Bonus Stamp Company maintained a warehouse in the 1500 block of Gentry Street in the city of Houston. On Friday before Labor Day in 1962, Willie Landolt, a company foreman closed the warehouse around 4:30 o’clock, p. m. At such time, Landolt checked the alarm system and ascertained that the warehouse was closed.

On September 3, 1962, being Labor Day, the witness Hill, and his partner, Teague, of the McCane-Sandock Detective Agency, went to the warehouse around 1 o’clock, a. m., after receiving a radio call. When they arrived, Hill went to the west side of the building and observed a large overhead door open. Appellant and another man were standing outside the building, on the ground and near the door, by a loading dock. About three feet from the dock there were some boxes of merchandise which had been removed from the building and stacked on the ground. Appellant had his hand on the last stacked carton, and the other man was hidden behind the boxes. Hill then proceeded to fire three shots with his pistol. However, none of the shots struck appellant or his companion. In a matter of minutes, police officers arrived upon the scene and took appellant and his companion into custody. Appellant then proceeded to tell and show the witness Hill how he and his companion had gained entry into the building by raising the overhead door. He further stated from what place in the building they removed the boxes of merchandise.

It was shown that the boxes contained a large number of radios and vacuum cleaners of the value of $800 and that appellant’s entry into the building was without the permission and consent of the company foreman, Landolt.

Certain authenticated records of the Texas Prison System, consisting of photographs, fingerprints, judgments and sentences, were introduced in evidence by the •state in proof of two of the three prior alleged convictions. State’s exhibit #1 in■cluded a judgment and sentence in Cause No. 1626, styled The State of Texas vs. Johnny Lee Garcia, Joe Edward Moya, and Robert Trevino Gonzales, wherein the defendant Gonzales was convicted, on March 21, 1958, of burglary and assessed punishment of two years’ confinement in the penitentiary. State’s exhibit #2 included certified copies of the judgment and sentence in Cause No. 99,122, styled The State of Texas vs. Pedro Jose Gonzales, on the docket of Criminal District Court No. 5 ■of Harris County, wherein the defendant named therein was convicted on January 26, 1962, of the felony offense of unlawful possession of a pistol and assessed punishment at confinement in the penitentiary for one year.

Witnesses were called by the state who identified appellant as the person so convicted in the two cases. Appellant’s identity was also established by comparison of fingerprints in the manner which has been approved by this court.

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

Appellant predicates his appeal upon three contentions. He first contends that the court erred in permitting the witness Hill to relate what appellant told him as to how he entered the building and removed the merchandise therefrom, over the objection that at such time he was under arrest.

The record shows that appellant’s statement to Hill was made at the scene of the burglary immediately after his arrest.

When apprehended, appellant and his companion were just outside the building, near the property stolen therefrom. At such time, appellant had his hand on one of the stolen boxes and his companion was hiding behind other boxes.

The indictment charged burglary with intent to commit theft. The statement made by appellant at the scene was admissible as a part of the res gestae. See: Hickman v. State, 65 Tex. 583, 145 S.W. 914; Matelski v. State, 126 Tex.Cr.R. 217, 71 S.W.2d 272; and Stout v. State, 142 Tex. Cr.R. 537, 155 S.W.2d 374.

By his second and third contentions, appellant questions the sufficiency of the proof offered by the state to establish the prior alleged conviction in Cause No. 99,122, styled The State of Texas v. Pedro Jose Gonzales.

It is first contended that no final conviction was shown because the judgment introduced was against Pedro Jose Gonzales, as defendant, and the sentence in the cause was against Edro Jose Gonzales, as the defendant. An examination of the certified copies of the judgment and sentence does not support appellant’s contention, but discloses that the defendant named in each instrument was Pedro Jose Gonzales.

It is next contended that because the state did not introduce the indictment in Cause No. 99,122 in evidence, the proof fails to show that appellant’s conviction for unlawfully possessing a pistol was for a felony, as recited in the judgment. We find no merit in this contention, as it was shown on appellant’s cross-examination of assistant district attorney James T. Garrett that the indictment in Cause No. 99,122, to which appellant entered a plea of guilty, charged that prior to his commission of the offense of unlawfully carrying a pistol he had been convicted of burglary. Under tire provisions of Art. 489c, V.A.P.C., it is a felony for persons who have been convicted of certain offenses, including burglary, to possess various firearms.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


text:
    Albert Stark HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 36124.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Joe C. Shaffer, and George Stack, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted for the unlawful possession of a dangerous drug, to-wit: barbiturates, and his penalty assessed at one year’s confinement in the county jail.

Due to our disposition of this cause, a recitation of the facts is not deemed necessary. The complaint as it appears in the transcript bears the jurat of the assistant District Attorney “Sworn to and subscribed before me this 2d day of July, A.D., 1962.” The complaint alleges that the offense was committed “on or about the 25th day of July, A.D., 1962.” The date on or about which the offense was alleged to have-been committed is subsequent and not anterior to the date the complaint was sworn to. Mitchell v. State, 170 Tex.Cr.R. 255, 340 S.W.2d 301.

The judgment is reversed and the cause: remanded.


text:
    W. H. HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 36019.
    Court of Criminal Appeals of Texas-
    Nov. 6, 1963.
    Rehearing Denied Dec. 18, 1963.

      Boulter, Fowler & Tunnell, by Joe Tun-nell, Tyler, for appellant.
    W. E. Coats, Jr., Dist. Atty., R. S. Bur-ras, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the felony offense of receiving and concealing a stolen camera; the punishment, four years.

The evidence shows the taking from a store of a camera of the value of more than fifty dollars on December 11, 1962. About three days after the loss of the camera Ike Young and Charles Turner were apprehended by officers, and they confessed to the officers that they took the camera in question. Young testified that he and some other boys had previously sold the appellant “some stuff”; that he asked when they were going to get him “some more stuff” and told them where they could get it; that they sold appellant the camera involved in the instant case for seven dollars. The written confession of Charles Turner was introduced in evidence by the state and in substance it contains the same facts showing the theft of the camera as the testimony of Young.

Officer Sides testified that shortly after Young’s arrest they went to a store other than the one that lost the camera, that “when we walked into the store, I asked Ike Young which man did he sell the camera to, and he pointed to Mr. Hall (appellant), and Mr. Hall was standing there, and I asked him about the camera and he said yes, he bought it, pulled it out of the counter and handed it to me.”

The appellant did not testify or offer any evidence except that of several reputation witnesses.

Appellant challenges the sufficiency of the evidence to corroborate the testimony of Young and the written statement of Turner on the ground they were accomplices.

The trial court charged the jury that Young and Turner were accomplices.

A conviction cannot be sustained upon the testimony of one or more accomplices unless corroborated by other evidence tending to connect the accused with the offense charged; and the corroboration is not enough if it merely shows the commission of the offense. Art. 718, Vernon’s Ann.C.C.P.

It is essential in a prosecution for receiving and concealing stolen property that the thief must be corroborated both as to the theft and the receiving and concealing by the accused from the thief, with knowledge that the property was stolen. Colley v. State, 140 Tex.Cr.R. 34, 143 S.W.2d 597.

Excluding from the case the testimony of the accomplice Young and the written statement of the accomplice Turner, there is only the bare possession of the camera, with the explanation that he bought it, to connect the appellant with the commission of the offense charged. Castleberry v. State, 35 Tex.Cr.R. 382, 33 S.W. 875; Hagan v. State, 132 Tex.Cr.R. 338, 104 S.W.2d 857; 5 Branch 2d 164, Sec. 2723.

The evidence is insufficient to warrant the conviction of the appellant of receiving and concealing stolen property knowing that it was stolen.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    William Everett ASHWORTH, Appellant, v. The STATE of Texas, Appellee.
    No. 36243.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Don Weit-inger, 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 proof was undisputed that, on the date alleged, the appellant operated his automobile upon a public street in the city of Houston.

Officer E. J. Smith, of the Houston police department, testified that on the night in question he observed the appellant driving west on Landor Lane in the city; that appellant was driving on the wrong side of the road and his automobile was weaving; that after he followed behind for three-fourths of a block appellant drove into a private driveway and stopped; that he went to the automobile where appellant was seated behind the steering wheel. Officer Smith stated that when he requested that appellant get out of the automobile he “nearly fell” in the driveway; that he had an alcoholic odor on his breath and person, his speech was “slurred”; and he staggered when he walked. The officer expressed his opinion that at such time appellant was intoxicated. The officer further testified that he took appellant to the 8700 block of Homestead Road where he had been involved in a collision with another automobile, and from the scene of the collision he took appellant to the police station, where, after he had executed his written consent to give a blood specimen, a specimen of blood was taken from him.

Chemist Floyd McDonald, of the Houston police department, testified that he analyzed the blood specimen, that the analysis showed the presence of .21% alcohol, by weight, in the blood, and that a person with such percentage of alcohol in the blood would be intoxicated.

Testifying as a witness in his own behalf, appellant admitted driving his automobile on the night in question and having run into the other automobile. Appellant stated that he left the scene of the collision after he had made arrangements with the owner of the automobile to pay for the damage to his vehicle. Appellant admitted that he had consumed two or three beers prior to the occasion of his arrest, but denied that he was intoxicated.

The jury by their verdict resolved the disputed issue of intoxication against the appellant, and we find the evidence sufficient to sustain the verdict.

There are no formal bills of exception or objections to the court’s charge. No brief has been filed on behalf of appellant.

The informal bills of exception appearing in the statement of facts have been examined and do not reflect error.

The judgment is affirmed.

Opinion approved by the court.