text:
    HARSHAW CHEMICAL COMPANY, Appellant, v. Robert McGUFFIN, Appellee.
    Court of Appeals of Kentucky.
    May 12, 1967.
    Rehearing Denied Oct. 20, 1967.
    Robert E. Hatton, Louisville, for appellant.
    Bill V. Seiller, Jones, Ewen, MacKenzie & Peden, Louisville, for appellee.
   HILL, Judge.

On May 21, 1965, appellee Robert McGuf-fin, herein referred to as the employee, was discharged by appellant, his employer, for being in an unfit condition due to claimed excessive alcoholic consumption. He had been warned and reprimanded before. He fell the same morning of his discharge and was taken to a hospital, where he remained until June 6 or 7.

A request that his grievance be heard and that he be reinstated with back pay was filed by the employee on June 10, 1965, with the proper grievance committee. His employer declined to honor his request. Whereupon, he filed this action demanding that the trial court direct arbitration under an agreement in force between the International Chemical Workers’ Union No. 604 and the employer. Section 32 of this agreement provided that any grievance “shall be presented in writing to the department supervisor within ten (10) working days of its occurrence.” (Emphasis ours.) Admittedly, his request was filed more than ten working days after the occurrence.

In his grievance the employee, apparently anticipating that his employer would raise the question of the timeliness of the filing of his request, stated: “Mr. McGuffin feels the 10 day period for filing grievance is not fair to him as he was in the hospital with to (sic) much pain to attend to such matters.”

In the trial court the employer filed answer and a motion for judgment on the pleadings. The trial court treated the motion for judgment on the pleadings as a motion for summary judgment. The employee filed his own affidavit, while the employer filed the affidavits of two union officials. The affidavit of Robert A. Pendleton, president of the local union, stated:

“That on May 24, 1965, he, together with Charles Thacker, and Seibert De-vine, visited Robert McGuffin who was then a patient in Jewish Hospital. He showed Mr. McGuffin a copy of the discharge notice dated May 21, 1965. He inquired of Mr. McGuffin if he wished the Union to file a grievance on his behalf on account of his discharge by the company. Mr. McGuffin stated that he did not.
“Some time later, and on three separate occasions, within the ten (10) working day period from May 21, 1965, Mr. McGuffin telephoned the affiant and tha (sic) affiant each time, inquired if he wished the Union to file a grievance on his behalf. Each time Mr. McGuffin’s answer was ‘No’.”

The affidavit of Charles J. Thacker, financial secretary of employee’s union, contains this statement:

“In response to a question by Mr. Pendleton as to whether or not Mr. Mc-Guffin wished to file a grievance, Mr. McGuffin stated, in my presence and in the presence of Mr. Pendleton, that he did not wish to file a grievance.”

The employee did not deny the statements contained in the affidavits of the president and the financial secretary of his union.

The bare statement that he was in the hospital “with to (sic) much pain to attend to such matters” in the face of the evidence mentioned above was not sufficient to toll the limitation provided in the labor contract.

The trial court found in its “Amended Memorandum Opinion, Findings, and Conclusions” :

“* * * (A) ccording to the uncontra-dicted affidavit of Robert A. Pendleton, President of Local 604, on four occasions prior to the expiration of the ten day period, said Pendleton asked the Petitioner, Robert McGuffin if McGuffin wished the union to file a grievance on his behalf, and on each occasion the petitioner, Robert McGuffin answered ‘No’.”

Notwithstanding the above findings of fact, the trial court in effect held that the ten-day filing period did not apply due to the employee’s being in the hospital during that period. We think the trial court correctly determined the question of fact pertaining to the employee’s late filing, but that he misinterpreted and misapplied the law thereto. It was incumbent on the employee to show that his failure to file grievance within the time provided in the contract was excusable. This he did not do. See Broniman v. Great Atlantic & Pacific Tea Company, 353 F.2d 559 (C.A. 6, 1965) cert. denied 1966, 384 U.S. 907, 86 S.Ct. 1343, 16 L.Ed.2d 360; and Doty v. Great Atlantic & Pacific Tea Company, 362 F.2d 930 (C.A. 6).

Other nice questions are presented by the able briefs of both appellant and appellee. The one containing the chief bone of contention raised the question as to the remedy available to the employee. The contract required him to exhaust four steps in order to reach arbitration. He took only the first step.

It is unnecessary for us to decide the proper remedy. The resolution of the threshold question of the timeliness or untimeliness of the filing of his request for grievance disposed of the case.

The judgment is reversed with directions to dismiss the complaint.

All concur.


source: Caselaw Access Project

author: JULIUS LEIBSON, Special Commissioner.

license: Public Domain

text:
    Uncel WHAYNE and the City of Perryville, Kentucky, Appellants, v. Harvey WEBB, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Rehearing Denied Oct. 20, 1967.
    A. Jack May, Donald D. Harkins, Begley & Harkins, Danville, for appellants.
    James F. Clay, James F. Clay, Jr., Dan-ville, for appellee.
   JULIUS LEIBSON, Special Commissioner.

This action was brought by appellants as a suit for a declaration of rights in which it was alleged that appellee had asserted claims of ownership to that portion of High Street that lies north of its platted intersection with Gray Street in the Prewitt Heights Subdivision in the City of Per-ryville, had placed upon said portions of the street gasoline pumps and other obstructions, and had obstructed the efforts of the city to open that portion of High Street to traffic and to surface same. In the complaint appellants asked the court to enjoin appellee Webb from obstructing that portion of High Street, relying upon the original, notarized and recorded plat of the subdivision which had been a public record in the custody of the clerk’s office for over 43 years.

The issues were joined by appellee Webb by a general denial. The request for admissions of fact and proof taken by appellee Webb indicate that he relied upon a blueprint filed with his request for admission of Fact 5, which blueprint he attempted to introduce in evidence over objection of appellants. Said blueprint would show High Street to come to a triangular point between lots numbers 68 and 23, both of which were owned by ap-pellee, thereby closing it.

The trial court decided that appellants failed to establish their right to have the street opened up as depicted upon the recorded plat, on the ground that said plat showed evidence of having been altered by erasure. The judgment relied upon the blueprint of the same subdivision introduced by appellee which shows the boundaries of the lots of subdivision, “as they appear on the recorded plat prior to the alteration”. Yet, when appellee received his deeds to lots numbers 63 to 68, the deed specifically referred to the recorded plat, not to a private blueprint.

The rights of the parties depend upon when the plat was altered. The trial court held that appellants had the burden of proving the alteration was made under circumstances which render it “lawful”, citing Denny v. Darraugh, 212 Ky. 655, 279 S.W. 1069; Dills v. Scroggin’s Ex’x, 251 Ky. 452, 65 S.W.2d 464; and Damron v. Damron, 301 Ky. 636, 192 S.W.2d 741.

It appears to this Court that these cases do not support this proposition when the instrument in question is one which has been recorded in the county clerk’s official records for many years. The Damron case involved an unrecorded deed in the possession of the grantee; the Darraugh case involved an unrecorded note; and in Dills v. Scroggin’s Ex’x, 251 Ky. 452,65 S.W.2d 464, 467, this Court said:

“It must be conceded, however, that the general rule is that the burden is upon the party offering an instrument to give a satisfactory explanation of erasures or alterations. However, there are exceptions to the rule, depending upon the facts of each case. In Crawford v. Crawford, 224 Ky. 535, 6 S.W.2d 685, 686, it is said: ‘A note, mortgage, or other paper must not be lightly set aside by evidence which merely raises a suspicion that it may not be genuine. It has always been the rule that the evidence must be clear and convincing.’ ” (Emphasis added)

There are other presumptions that should be considered in deciding this perplexing case. The common law rule was that an alteration appearing upon a deed should be presumed to have been made before delivery, in the absence of any evidence to the contrary. This doctrine was based upon the principle that a deed cannot be altered after it is executed, without fraud or wrong, and the presumption is against fraud or wrong. Tiffany on Real Property, Vol. 8, page 191. This common law rule has been recognized in Kentucky. Gunkel v. Seiberth, 27 Ky.Law Rep. 455, 85 S.W. 733; Pike County v. Sowards, 147 Ky. 37, 143 S.W. 745. No reason is shown why this rule should not apply to plats as well as to deeds.

Since this plat has been in the hands of the county clerk as part of his official records since 1921, it cannot be lightly disregarded. It is well known to all attorneys and judges that many, many recorded instruments have erasures and inter-lineations because of mistakes of the typist or draftsman. Surveyors frequently erase lines, particularly on plats which contain numerous lines. If all of these instruments were to be suspect, reliance upon recorded instruments would be dealt a severe blow. The recording system is built around the concept of respecting the records unless it is clearly shown that they are false. In unrelated cases we have recently held that “the dignity and majesty of public records increase with age, and the longer the period of time elapsing between their date and the time validity is questioned the greater the dignity, so that after the passage of a sufficient period of time such public records may become absolute and unassailable”. Moore v. Commonwealth, Ky., 407 S.W.2d 136, 137. See also Brown v. Commonwealth, Ky., 396 S.W.2d 773. This proposition applies to real property records as well as to other official records. We believe the better rule to be that a plat which has been recorded for many years will be presumed to have been executed and recorded with the erasures shown on it and such presumption is unassailable in the absence of evidence of alteration after execution and recording. See 4 Am.Jur.2d, Alteration of Instruments, section 81 (page 75). This is particularly true where the plat has been referred to in numerous conveyances over a long period of time.

Several matters impressed this Court which were not commented upon by the trial court. Robert Casey testified that in December of 1943 or January of 1944 he considered buying the lots in question, visited the property, and upon being accosted by a neighbor, went to the courthouse to see if High Street affected the lots. He testified that the existence of High Street in such a location was the reason he decided not to buy the lots. This testimony as to the condition of the recorded plat in 1943-44 was not contradicted by any other evidence. Appellee Webb testified that he purchased the lots in 1946, some two years later. He offered no testimony as to whether or not he examined the recorded plat before he purchased the property. From the uncontradicted testimony of witness Casey, appellee Webb would have found the recorded plat in 1946 showing the same state of facts it does today. Therefore it appears that he had constructive knowledge of the “altered” plat when he purchased the property. When he accepted his deed in 1946, which referred to the altered plat, he may have tacitly ratified it. The testimony of the county clerk and deputy clerk lent weight to the testimony of Casey by showing it to be virtually impossible for the plat to have been altered in an eight-year period prior to filing of this action. The trial court apparently did not consider what the significance of this testimony was. In any event, appellee completely failed to overcome the presumption of alteration prior to the time he purchased his lots, and he was bound by what the recorded plat showed at that time.

The judgment is reversed, with directions to enter judgment for appellants.

All concur.


author: WADDILL, Commissioner.

text:
    Louis WHITAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1967.
    Rehearing Denied Oct. 20, 1967.

      Stuart Lyon, David Kaplan, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Lacey T. Smith, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Louis Whitaker appeals from a judgment sentencing him to two years’ imprisonment upon a verdict finding him guilty of breaking and entering a dwelling house. KRS 433.180. He contends the trial court erred in conducting the voir dire examination of the jury, in refusing to suppress certain evidence, in overruling a motion for a directed verdict of acquittal and in instructing the jury.

The prosecuting witness, Claude Geary, testified that when he left his apartment on June 26, 1965, the only entrance door was closed but unlocked and that upon his return he discovered his television set and electric fan had been stolen.

Appellant, Whitaker, testified that he and Virgil Brumfield were introduced to Claude Geary by William Hays in a tavern on the night in question and that Geary offered to sell them his television set and electric fan. He stated further that Geary took Brum-field, Hays and him to Geary’s apartment where he purchased the television set and fan. Hays, who is Geary’s cousin, substantiated Whitaker’s account.

As Whitaker and Brumfield left Geary’s apartment building they were stopped on the sidewalk by two police officers who questioned them with regard to the television set and fan they were carrying. These officers copied the television’s serial number, released the men and made a police report of the incident. The next day police officers, who had received information of the alleged break in, went to Brumfield’s home where they recovered the television set and fan. Whitaker and Brumfield voluntarily came to police headquarters three days later contending they had purchased the seized articles.

Whitaker now contends the trial court committed prejudicial error in permitting the Commonwealth to announce, within the hearing of the jury, its acceptance of the jury. Appellant claims this procedure cast him in a bad light because it became necessary for appellant to later openly challenge and excuse certain prospective jurors. Regardless of the alleged psychological effect of this trial tactic, the voir dire traditionally and as a matter of practicality is conducted in open court. We are not disposed to change this accepted practice.

Whitaker contends that the trial court erred in failing to suppress evidence obtained when the officer stopped him on the public sidewalk on the night of the alleged break in. He claims the stopping of him constituted an unlawful arrest and the copying of the serial number of the television set during this detention was an unreasonable search. There are several answers to this contention. The most obvious one is that no evidence obtained from Whitaker on this occasion was used at the trial to convict him. Upon trial Whitaker admitted that he had possession of the property allegedly stolen from Geary. Whitaker’s defense was that he entered Geary’s apartment at Geary’s invitation and purchased the property. The crucial issue in the case was whether Whitaker’s possession of this property was by purchase or by break in. We find that the trial court committed no error in this respect.

Whitaker contends further that the trial court should not have defined “reasonable doubt” in its instructions to the jury. The definition given has been approved by this court. Merritt v. Commonwealth, Ky., 386 S.W.2d 727.’ This instruction therefore was not erroneous.

Finally, Whitaker contends the trial court erred in not sustaining his motion for a directed verdict of acquittal because there was no evidence of a forcible entry. The jury could find under the evidence that Whitaker opened the door of the apartment without permission of Geary and feloniously took the television set and fan. This constituted sufficient evidence of a forcible entry. Rains v. Commonwealth, 293 Ky. 429, 169 S.W.2d 41. We conclude there was no error in submitting the case to the jury.

The judgment is affirmed.

All concur.


text:
    Felix COOTS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Oct. 20, 1967.

      S. M. Ward, Hazard, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, Felix Coots, Jr., was convicted of the crime of rape and his punishment fixed at confinement in prison for ten years. His grounds for reversal of the conviction are that the verdict is flagrantly against the evidence, the instructions did not cover the whole law of the case and the trial court erred in failing to grant a new trial.

The prosecuting witness testified unequivocally that appellant forced her to submit to sexual intercourse with him by threats of physical injury. Appellant denied he had sexual intercourse with her and stated that he was so drunk that he was unable to do so. His testimony did not entitle him to a directed verdict of acquittal or render the verdict flagrantly against the evidence. It merely placed in issue the credibility of the prosecutrix’s testimony since we are unwilling to hold that her testimony is without probative value. Her version of the affair is not so incredible and improbable as to be patently untrue but is a lucid account of an unfortunate experience for her. See Holland v. Commonwealth, Ky., 272 S.W.2d 458. Moreover, there is other testimony that strongly tends to support her claim that she was raped by appellant. We find no merit in appellant’s first contention. Ewing v. Commonwealth, Ky., 390 S.W.2d 651; Roberson’s Kentucky Criminal Law & Procedure, Second Edition, Section 567.

Appellant next contends that he was entitled to an instruction to the effect that if the jury believed from the evidence that appellant was so drunk at the time of the alleged offense he did not realize the consequences of his act it should find him not guilty. Ordinarily, voluntary intoxication constitutes no excuse or justification for the commission of crime. Whenever an act constitutes the offense, drunkenness is no defense to its commission, hut where, in order to constitute the offense, the act must be combined with the intent of the accused, then evidence of drunkenness may be introduced as a defense to or in mitigation of the offense. Mearns v. Commonwealth, 164 Ky. 213, 175 S.W. 355; Roberson’s Kentucky Criminal Law & Procedure, Second Edition, Sections 64, 65, 66 and 67. In the instant case the act constitutes the offense without other indicia of intent.

We also observe that there is another sufficient reason why appellant is not entitled to an affirmative instruction. Such instruction is warranted only when an accused admits facts constituting the essential elements of the offense with which he is charged and relies upon facts and circumstances that would exonerate him.’ Here appellant denies having committed the offense and therefore the instructions given were sufficient. Himes v. Commonwealth, Ky., 350 S.W.2d 637; Marye v. Commonwealth, Ky., 240 S.W.2d 852; Stanley’s Instructions to Juries, Volume 3, Section 771.

Appellant further contends that he was entitled to a new trial on the ground of newly discovered evidence. This alleged evidence appears in this record by an affidavit of appellant that since the trial he has learned that the prosecutrix told a state trooper that appellant had not molested her. Assuming that the state trooper would so testify, his testimony would only tend to contradict or impeach the testimony of the prosecutrix. The rule is that in order for newly discovered evidence to support a motion for new trial in a criminal case it must be of such decisive value or force that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted. Wheeler v. Commonwealth, Ky., 395 S.W.2d 569; Parsley v. Commonwealth, Ky., 321 S.W.2d 259.

We find no abuse of discretion in overruling the motion for a new trial because (1) the affidavit fails to show that appellant exercised sufficient diligence to obtain the newly discovered evidence prior to his trial and (2) this evidence is not of such a character as to probably change the result if a new trial were granted.

The judgment is affirmed.

All concur.


text:
    Bert VAN HOOSE et al., Appellants, v. Tive DANIEL et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      W. B. Hazelrigg, R. B. Harrington, Paintsville, for appellants.
    Eugene C. Rice, G. C. Perry, III, Paintsville, for appellees.
    GEORGE O. BERTRAM, Special Commissioner.
   AFFIRMING ON ORIGINAL APPEAL REVERSING ON CROSS-APPEAL

Prior to September 23, 1956, appellant, Bert Van Hoose, and appellee, Tive Daniel, purchased a gas well in Johnson County. Thereafter, they entered into the following written agreement:

“This agreement, made and entered into this the 23rd day of September, 1956, by and between Bert E. Van Hoose, party of the first part, and Tive Daniel, party of the second part. Witnesseth: That the parties hereto have purchased from the Evans Oil and Gas Company and Oliver Jenkins and the Thealka Coal Company, a gas well located on the old William Castel tract of land on Toms Creek, Johnson County, Kentucky, and the parties hereto hereby agree that no gas shall'be sold from said well without the written consent of both parties hereto, neither shall any gas be given from said well without said written consent of said parties.” (Emphasis added)

Bert and Tive resided in their respective residences at Tutor Key, Kentucky on the date of the agreement. The residence of each was located on land owned by the respective parties or their wives. Each family was using gas from the gas well prior to the purchase and continued such use until Tive and his wife Edna moved to Paintsville and on September 6, 1960, conveyed their Tutor Key residence and approximately one acre to Don and Betty Kenner. Included in the deed of conveyance from Tive and Edna to Don and Betty was a one-fourth undivided interest in the gas well. However, there was a clause in the deed as follows:

“It is understood and agreed by the parties here that no gas shall be used from this well except for the use of the residence on the said property.”

On October 6, 1960, Bert filed suit in the Johnson Circuit Court against Tive and the Kenners seeking to set aside that portion of the conveyance from Tive and Edna to the Kenners that attempted to convey an interest in the gas well. The trial court entered judgment July 20, 1962, sustaining the contention of Bert. An appeal was taken from this judgment to this court by Tive and the Kenners. However, the appeal was never perfected and was dismissed by this court on motion of Bert.

On return of the action to the trial court an “Order of Restitution” was granted in favor of Bert directing the sheriff of Johnson County to “cut off and stop the gas being so diverted by such means as may be necessary”. Tive appealed this order to this court and we reversed and remanded the case to the trial court for further proceedings. However, the opinion was not reported nor is it a part of the record on this appeal.

It appears that Tive and Edna repurchased the property in question, that is, the one acre and residence they sold to the Kenners. Thereafter Tive and Edna rented the residence and the tenants were allowed to use gas from the well in question.

On March 25, 1965, Tive and Edna filed suit in the Johnson Circuit Court against Bert and his wife Ora alleging: Appellants had prior to March 25, 1965, on several occasions threatened to and did cut the gas off while tenants of Tive and Edna occupied the residence in question; that the tenants vacated the residence by reason thereof, leaving it vacant for a period of eighteen months; that appellees were entitled to damages of $50 per month for the eighteen months, as well as future months the residence remained vacant by reason' of the threats and the actual cutting off of the gas; that appellees were entitled to $5,000 punitive damages for the malicious acts of appellants; and that appellees should be granted injunctive relief, attorneys fees and costs. Appellants counterclaimed for $2,500 damages and injunctive relief to prevent appellees from selling, renting or giving away gas from the well.

By agreement the first and second actions were consolidated and all evidence and exhibits in both were to be used in the action instituted March 25, 1965. The trial court entered a judgment Décember 24, 1965, which was amended January 27, 1966. We are concerned only with the amended judgment, the pertinent part of which is as follows :

“ * * * each party may use or cause to be used upon their premises, in their dwelling houses and buildings adjacent thereto, their one-half interest in the gas well, either themselves or to their renters upon the premises thereon, providing, however, that they shall practice good, approved methods and means of consuming the said gas without wasting thereof, that is, that neither party shall hereafter permit gas to be burned in open receptacles, outside their dwelling houses, or buildings adjacent thereto. At all times both parties shall use due caution and moderation in using gas in order to protect the source thereof.”

On January 27, 1966, the trial court entered an order dismissing all claims for damages on the ground they were too remote and indefinite.

We conclude the Chancellor correctly adjudged the rights of the parties with respect to the use of the gas for the benefit of the premises owned by them. The evidence establishes that was the purpose for which the gas well was purchased. The provision that no gas should be sold or given away without the written consent of the parties pertained to the disposal of gas to other persons. By contemporary construction both parties at least tacitly agreed that the written consent provision did not relate to the use of gas on the premises upon which it had theretofore been utilized for domestic purposes. The right of user extended to appellees’ tenants.

Appellants have abandoned their claim for damages but we think the Chancellor improperly dismissed appellees’ claim, which issue is raised by cross-appeal. It is alleged that appellants wrongfully cut off the supply of gas while tenants were occupying appellees’ residence and that they threatened prospective renters with litigation concerning this subject. It is further alleged that by reason thereof appellees lost the rental value of this property. We find nothing remote or indefinite about this claim for damages and the Chancellor should hear proof on this issue.

The judgment is affirmed on the original appeal and reversed on the cross-appeal for proceedings consistent with this opinion.

All concur.


text:
    Walter WOODS et al., Appellants, v. Ted WOODS et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    Lester H. Burns, Jr., Manchester, for appellants.
    Roy W. House, O. Edward House, Charles C. Smith, Manchester, for appellees.
   WOODARD C. TIPTON, Special Commissioner.

The only question presented is whether or not the court should have adjudged the realty partitioned instead of adjudging it indivisible. The appellants seek to have the 60 to 68 acres of mixed mountain and bottom land partitioned into seven tracts.

The law is settled in Kentucky that where land is owned by two or more parties the land should be partitioned rather than sold and it will be sold only when the property cannot be divided without materially impairing its value, or the value of the plaintiff’s interest therein. KRS 389.020(1) (b).

The burden of proof is on the party who pleads indivisibility and he must establish that partition will materially impair its value. Purcell v. Purcell, 303 Ky. 478, 198 S.W.2d 43 (1946).

The evidence shows that the realty consists of some 60 to 68 acres and that it fronts from 300 to 500 feet on a public road. It has on it a run-down house and a run-down barn located about 300 feet apart and next to the public road and being valued at about $1,000 each; there is a family cemetery in a corner next to the public road; a private road leaves the public road about the middle of the frontage and therice winds around to one side of the farm and then winds back and goes through Goose Creek to that portion of the land on the other side of the creek; there are about 10 acres of good bottom land between the public road and Goose Creek and about 2 acres of bottom land on the other side of Goose Creek plus about 25 acres of recently cut-over timber land plus about 20 acres of mountain land and pasture. It appears that nearly all of the land flooded from Goose Creek and Martin Creek in 1947, but that ordinarily the 10 acres next to the public road does not flood. It also appears that one-half of the mineral or oil rights had previously been sold; that there is some coal under a part of the land of questionable value. There is a tobacco base of 1.9 acres which on partition would be divided out to the cultivatable crop acreage and not according to the acres. The plat filed as an exhibit by appellants has been examined which explains the testimony even though it is hand drawn and not drawn to scale. The timber land having been cut over about a year ago is not of much value at the present time. There is testimony of the number of possible house sites because of the flooding and it appears that there are two or three house sites between the public road and Goose Creek and about three house sites across the creek. There is presently no bridge across Goose Creek which is about 40 feet wide and the road would have to be privately kept up with easements of ingress and egress.

The only thing to be considered is whether the land value will be impaired if partitioned. There is ample evidence to sustain either position with some witnesses testifying that the property could be and others that it could not be partitioned without materially impairing its value and there is no necessity here of setting out the testimony. There was something in the pleadings about commissioners going on the property, but there was no evidence concerning the same.

The Chancellor found from the oral testimony before him that the land could not be partitioned without materially impairing its value and there was ample evidence on which the court could base same and also the Chancellor had an opportunity to hear and observe the demeanor of the witnesses and this court reviewing the entire evidence is not convinced that the trial court’s finding is clearly erroneous. CR 52.01 provides that findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Begley v. Wooten, Ky., 350 S.W.2d 497 (1961); Hoffman v. Russell Federal Saving & Loan Ass’n, Ky., 390 S.W.2d 644 (1965); Logan v. Logan, Ky., 409 S.W.2d 531 (1966).

This court concludes that the Chancellor was correct in adjudging that the property should not be partitioned.

The judgment is affirmed.

All concur.


author: W. MAJOR GARDNER, Special Commissioner.

text:
    INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, etc., et al., Appellants, v. Tazie C. HOLT, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      Joseph S. Freeland, Paducah, for appel- ^
    Herbert Schultzman, Paducah, for ap-pellee.
   W. MAJOR GARDNER, Special Commissioner.

Appellee, an employee of Paducah Marine Ways, Inc., was a member of the appellant, International Brotherhood of Boilermakers, Iron Shipbuilders, Forgers and Helpers (hereinafter called “the union”), a labor organization.

Appellee and other members of the union who were employees of Paducah Marine Ways went on strike pursuant to a strike call issued and a vote by the union. Thereafter, the union paid appellee strike benefits of $30.00 per week until he returned to work, by which time he had received a total of $270.00 in such benefits. These benefits were paid under a provision of the union’s constitution which reads as follows:

“Each member receiving strike benefits shall sign a note in duplicate, and such duplicate shall be forwarded to the International Secretary-Treasurer reading as follows:
‘State . City . Date .
If I. return to work for the employer against whom we are now on strike prior to the time that obligation to pay strike benefits has been terminated, I hereby agree to pay back to the International Brotherhood the full amount of benefits received by me.
'. Name
. Address
Register No.

Appellee executed such a note and delivered it to the union on September 10, 1962. Although the strike (and the union’s obligation to pay strike benefits) continued until January 12, 1963, appellee returned to work for Paducah Marine Ways long before that time. The union demanded that he repay the $270.00 which he had received, but he refused to do so. The union brought suit to recover. On motion by appellee for a summary judgment the circuit court dismissed the action upon the pleadings and this appeal followed.

The parties agree that the only issues to be determined are (1) whether this contract is void as against public policy for the reason that it interferes with appellee’s right either to engage in or refrain from concerted activities, and therefore, tends to prolong a labor dispute as well as to restrain and coerce appellee in violation of his rights under Section 7 of the National Labor Relations Act, and (2) whether ap-pellee is a third party beneficiary of the termination agreement between the union and the employer wherein the agreement recites “and no new litigation will be instituted as a result of any acts growing out of the strike which have occurred prior to this date”.

Section 7 of the National Labor Relations Act reads as follows:

“Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3).” (29 U.S.C. Sec. 157).

Counsel for both parties have been unable to find case authority directly in point. Counsel for appellant emphasizes the importance of requiring a party to a contract to abide by its terms while counsel for appellee insists that there is involved a matter of public policy which should outweigh all other considerations.

In Kentucky State Fair Board v. Fowler, 310 Ky. 607, 221 S.W.2d 435, this court restated the view that a court should proceed with caution in declaring a contract void as against public policy, saying:

“It is only where the Constitution and the Statutes are silent on the subject that the Courts have an independent right to declare the public policy. Chreste v. Louisville Ry. Co., 167 Ky. 75, 180 S. W. 49, 52, L.R.A.1917B, 1123, Ann.Cas. 1917C, 867. Until the mind of man becomes conditioned to the point that it can reconcile the many different and varying disciplines of thought in respect to human actions and relations, the Courts should use extreme caution in declaring a transaction to be void on the ground that it contravenes public policy.”

We cannot agree that the evil complained of by appellee is embodied in the contract. It must be conceded that a union may employ means of persuasion, within bounds, in an effort to hold the employees on strike. The real question is whether the union exceeded the proper bounds in the instant case. Again we find no authority covering the precise set of facts here involved. Appellee argues that it is to the public interest that strikes be settled as rapidly as possible. This may or may not be true. Many factors and considerations from the standpoint of the employer, the employee, the union, and the general public would have to be weighed. In the present action these various factors and considerations have not been presented in order to support the motion for a summary judgment.

Appellee’s main argument is to the effect that the contract imposes such an economic sanction upon appellee that it results in prohibited restraint and coercion. We do not find it so. In the first place he signed the contract voluntarily. In the second place he could continue on strike and receive the remunerations, or if he found it more advantageous (which he apparently did in this case) he could return to work. If appellee had continued striking to the end and the union defaulted with the weekly payments, could the union’s refusal to pay be defended on the ground that the contract was void as against public policy? Counsel for appellee concedes that the contract would not contravene public policy if it provided for the withholding of payments until the strike was settled and that the employee would be paid only if he continued on strike. We can see no difference insofar as public policy is concerned. In either case it might be said the contract would tend to prolong the strike and it would in a sense place an economic sanction against the employee.

The contract is clear and unambiguous. Since it is not clearly against public policy we think it is enforceable. Kentucky State Fair Board v. Fowler, supra.

The appellee’s contention that he was a third party beneficiary to the agreement terminating the strike is not helpful to him. Obviously, the contract was intended to settle disputes between the union and the employer and did not control controversies within the union or between the union and its members. Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must at least show that it was intended for his benefit. It was not so intended. Standard Oil Co. of New Jersey v. National Surety Company, 234 Ky. 764, 29 S.W.2d 29.

The judgment is reversed with direction to the circuit court to enter judgment in favor of appellant.

All concur.


text:
    George RENFRO et al., Appellants, v. C. K. FOX et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      Julian H. Golden, Pineville, for appellants.
    Charles Landrum, Jr., and Edwin R. Denney, Lexington, Herman M. Tye, Bar-bourville, James M. Terry, Louisville, for appellees.
   GEORGE O. BERTRAM, Special Commissioner.

On a clear day in August 1962 at about the hour of 3:30 p. m. appellant Joseph Dale Renfro backed his father’s pickup truck downhill and stopped, with the tailgate within four feet of the nearest rail of a private crossing of appellee L. & N. Railroad Company located in Knox County near Flat Lick. His testimony is that he looked both up and down the track but did not see or hear appellee’s train coming from the north. Joseph said he could see north, the direction from which the train was coming, for a distance of 135 feet. He proceeded to back across the railroad and was struck by the train when his tailgate was approximately middle ways of the two tracks. The truck was knocked approximately 79 feet and Joseph was thrown some 25 to 30 feet from the truck. Joseph and three witnesses called by him stated there was no bell, whistle, horn or any other warning device sounded by the engineer, and heard by them, warning of the approach of the train.

The engineer, by way of deposition, testified he could see 300 feet ahead as he rounded a curve and saw the truck about middle ways of the track. He was blowing the whistle before he came in sight of the truck. He was traveling something like 25 m. p. h. He was coasting downhill with the throttle off and had already applied his brakes to make a stop at the next station. When he saw the truck he immediately put the brakes in emergency. The engineer testified, “If the boy had kept backing across, he might have got across, he must have reversed his motor.”

One of appellants’ witnesses, a 17-year-old boy, testified he was about 50 feet from the point of accident watching Joseph back the truck and Joseph did not stop at anytime before going upon the tracks.

Joseph and his father sought damages of $161,800. The Knox Circuit Court directed a verdict at the. conclusion of appellants’ evidence in favor of appellees. Appellants ask us to reverse the judgment of the lower court stating, “The Court erred in sustaining the appellees’ Motion for a Directed Verdict.” As we view the case we think the only question is: “Was Joseph guilty of contributory negligence as a matter of law?

Appellants rely solely on L. & N. Railroad Company v. Quisenberry, Ky., 337 S.W.2d 409, and the eases therein cited. They contend that the crossing was a very hazardous one and the train was traveling too fast. They also rely heavily on the fact that the engineer stated the normal distance it would take to stop the train he was operating on the date of the accident would be 500 or 600 feet. Therefore, appellants contend, the engineer could not stop the train within the 300-feet distance at which he could see whether anyone was on the track at the crossing, and in fact the train would travel some 200 feet past the crossing before it could possibly be stopped.

In L. & N. Railroad Company v. Troutman, Ky., 351 S.W.2d 516, (involving a public crossing) this Court said:

“It is unquestioned that a railroad crossing is in itself a warning of danger and that a traveler having knowledge of its existence must exercise care for his own safety in, such a degree as is proportionate to the danger then present or apparent of being struck by a train. * * * If he knows, or in the exercise of reasonable care and prudence must have known, of a train approaching by using his senses of sight and hearing in a way that an ordinarily prudent person would do under similar circumstances, and drives his automobile in front of the train, he assumes the risk of crossing in safety. If he miscalculates and is injured, he is guilty of contributory negligence.”

We conclude from the evidence, exhibits filed and cases cited that Joseph Dale Ren-fro was contributorily negligent but for which there would have been no accident because, though he said he did stop and look in the direction of the oncoming train, yet he failed to see it. L. & N. R. R. Co. v. Troutman, supra; L. & N. R. R. Co. v. Tomlinson, Ky., 373 S.W.2d 601; L. & N. R. R. Co. v. Dunn, Ky., 380 S.W.2d 241; and Shewmaker v. L. & N. R. R. Co., Ky., 403 S.W.2d 283.

On the contributory negligence question L. & N. R. R. Co. v. Quisenberry, supra, has in effect been overruled.

For the reasons given we think the trial court properly granted a directed verdict.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Antoinette Goodman BALES (now Jinks), Appellant, v. John E. BALES, Jr., Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    O. T. Hinton, Pikeville, for appellant.
    Francis M. Burke, Pikeville, for appellee.
   DAVIS, Commissioner.

The narrow question presented upon this appeal is the propriety of the trial court’s order limiting visitation rights relating to a male child under six years of age by the appellant-mother to the Pikeville home of the appellee-father to whom custody of the child has been awarded.

The parties to this appeal were divorced July 26, 1965. The custody of the only child of the parties was awarded to the appellee-father by agreement. There is no question presented on this appeal as to the custody of the child. The judgment was silent as to any rights of visitation by the mother.

Shortly after divorce, the appellant-mother married her present husband, who was a biology teacher at Pikeville College. It suffices to note that the appellant was dismissed as a student from Pikeville College, and her present husband was discharged as a teacher in the college because of their conduct with each other prior to their respective divorces. The appellant and her present husband reside in Indiana, where the husband is engaged in teaching at a college which appellant has been attending as a pupil.

In December 1965, shortly before Christmas, the appellant-mother filed motion in the trial court seeking the right of visitation with the child. A hearing was had following which the trial court ordered that the appellant-mother be permitted to visit with the child in the home of the paternal grandparents in which the child and the appellee-father reside. The order recited that the appellant-mother “ * * * be and she is granted the right and privilege to visit her son at plaintiff’s home at reasonable times so as not to interfere with the health and well-being of the child.”

The record discloses that appellant sought to have permission for the child to visit in the Pikeville home of appellant’s mother and father (maternal grandparents of the child). It was stipulated in the record that the home of appellant’s parents is a suitable home for the purpose of visitation. The appellant testified that hostility towards her by the appellee and the appellee’s parents precludes visitation in that home by her and substantially nullifies the rights of visitation granted by the trial court.

We review this case within the framework of CR 52.01 which prescribes that the findings of fact by the trial court shall not be set aside unless “clearly erroneous.” We are also mindful of the principle that the chancellor’s determination in matters of custody and visitation will not be disturbed absent a showing of an abuse of his judicial discretion. Moreover, in custody and visitation cases, the doors of the court remain open for the purpose of modifying orders upon a showing of changed conditions requiring such modification for the best interests and welfare of the child involved. KRS 403.070.

The record before us is devoid of any testimony respecting the appellant’s experiences in seeking to comply with the visitation rights as ordered by the trial court. So far as is revealed by the record, the appellant may not have undertaken to visit with the child as directed by the court since the date of the court’s order, or the appellant may have exercised her visitation rights without adverse incident. Thus, we are not able to say that the chancellor has abused his discretion in directing a program of visitation concerning which no measurable record of experience is presented for review.

The judgment is affirmed.

All concur.


text:
    William G. FINN, Appellant, v. Raymond McCLARD, Jailer of Warren County, and Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      E. R. Gregory, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., Frankfort, for ap-pellees.
   DAVIS, Commissioner.

The appellant, William G. Finn, is accused of armed robbery in contravention of KRS 433.140. The death penalty is permitted upon conviction of the offense. Finn’s motion for bail was denied whereupon he filed habeas corpus petition seeking to be released upon reasonable bail pending action of the grand jury. His petition for writ of habeas corpus was denied by the Judge of the Barren Circuit Court, and Finn appeals. An order affirming the judgment of the circuit court has been entered heretofore; this opinion will relate the court’s reasons for the order.

Kentucky Constitution, Section 16, provides :

“All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.”

The mandate of the constitution provision has been recognized by this court in many cases including Smiddy v. Barlow, Ky., 288 S.W.2d 346, 347, in which it was written:

“A person accused of crime for which he might suffer the death penalty has the right to remain at liberty upon reasonable bail pending trial unless the Commonwealth shows his manifest guilt or produces evidence sufficient to create great presumption of guilt. Duke v. Smith, Ky., 253 S.W.2d 242, 243.”

Jerry Furlong, manager of Houchens Market in Glasgow, was confronted by an assailant on June 24, 1967, at approximately 9 p.m. Furlong testified that the assailant drove near him in a white 1964 Chevrolet automobile and called out, “All right, Jerry, hand it over.” Furlong said that he supposed that it was some acquaintance of his playing a prank on him. Furlong related that the assailant said, “I’ll shoot.” Upon being asked what happened then, Furlong testified, “I didn’t stop and didn’t drop the money or anything, and he came out of the car with a shotgun.

“Q. 17. Did he shoot you?
A. He shot me in the right hip.”

Three bags of money which Furlong was taking to the night depository were taken by the assailant, who fled the scene immediately by being driven away in the white automobile in which he had arrived. The robbery occurred on the well-lighted parking area of the market, while it was raining slightly.

A young couple were seated in an automobile quite near the criminal activity but were frightened when they observed the display of the shotgun and were not able to give helpful testimony concerning the description or identity of the assailant.

Furlong was taken to the hospital immediately after the shooting, and sedation was administered to him. An officer who interviewed Furlong two or three hours after the incident explained that Furlong was unable to recall coherently the events, and the officer did not undertake to obtain a detailed description of the assailant at that time. On the next day, however, the officer did obtain from Furlong descriptive data of the assailant. Furlong was able to select a photograph of the appellant from a group of photographs submitted to him by the officer. When Furlong was given an opportunity to view the appellant in person, he positively identified him as the assailant. At no time has Furlong wavered in his identification.

Finn did not testify in his own behalf at the hearing on the motion for bail or at the habeas corpus hearing. Evidence was presented in his behalf by his mother and father and other members of his family reflecting that the appellant Finn was at the home of his parents at a point about thirteen miles distant from the scene of the crime when the crime was committed.

It is our view that the present appeal is ruled by the rationale expressed in Nickell v. Kelly, Ky., 357 S.W.2d 856, in which it was said:

“In establishing that an offense is not bailable the burden is on the Commonwealth to show that ‘the proof is evident or the presumption great.’ Day v. Caudill, Ky.1957, 300 S.W.2d 45, 46, 48; Young v. Russell, Ky.1960, 332 S.W.2d 629, 633. However, the judge who conducts the hearing on the writ ‘is vested with a sound discretion’ in determining whether that burden has been sustained, and his decision will not be disturbed on appeal unless he has clearly abused his discretion. Wells v. Commonwealth, 1944, 299 Ky. 51, 184 S.W.2d 223; Brooks v. Gaw, Ky.1961, 346 S.W.2d 543. To state the latter policy another way, if it appears from a review of the record that there is room for an honest difference of opinion among reasonable men as to whether ‘the proof is evident or the presumption great,’ this court will not substitute its own judgment for that of the trial court.”

Our examination of the present record leaves us unpersuaded that the trial judge abused his discretion in refusing bail to the appellant.

The testimony of an eye witness identifying the accused as the person who killed another has been considered ample to support a denial of bail. Brooks v. Gaw, Ky., 346 S.W.2d 543. The evidence of Furlong was sufficiently unequivocal and convincing as to make the proof evident or the presumption of guilt great. Its efficacy was not so diminished by the alibi-testimony of appellant’s kin as to warrant our setting aside the finding of the trial judge.

The judgment is affirmed.

All concur.

      . Film had been transferred to custody of appellee McClard, Jailer of Warren County.


author: OSBORNE, Judge.

text:
    Harvey SEA et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      Robert E. Hatton, Louisville, for appellants.
    H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Perry White and Robert Rieckhoff, Dept, of Highways, Frankfort, for appellee.
   OSBORNE, Judge.

AFFIRMING

APPEAL W-15-67

Appellants are the owners of a tract of land in Anderson County. The tract contains 18½ acres and has access to highway 1387 by way of two separate easements across two separate tracts that lie between it and the highway. Construction of the Central Kentucky Parkway necessitates cutting off appellants’ access to highway 1387, as a part of the Parkway passes between it and the tract. In a previous proceeding instituted by the Department of Highways for the condemnation of these accesses there developed some doubt as to whether one or both easements were condemned. Without going into this aspect of the case, we deem it sufficient here to point out that the trial court has, in this action, determined that appellants still own one easement. This holding is now final and will not be disturbed. The only question presently before us is whether the amount awarded as compensation for the second easement is adequate. Compensation was fixed by a jury in both instances.

On the first trial the jury awarded $2500. On the second trial, the one here in question, they awarded $500. When we consider the results of both actions, appellants have received $3000 for the loss of access to their 18½ acres of farm land, which appellant Harvey Sea, himself, valued at $5700. We do not find this to be inadequate compensation in the constitutional sense. Just compensation as provided for by Sec. 242 of the Constitution is fair cash value at the time of taking. Brock v. Harlan County, 297 Ky. 113, 179 S.W.2d 202. Certainly we cannot say that an award in excess of one half the total value placed on the property by its owner is not fair compensation for two easements leading to it.

We find no error in Appeal W-15-67.

The judgment is affirmed.

All concur.

AFFIRMING

APPEAL F-149-65

This is an appeal from a judgment awarding appellants $565 for 4.85 acres of land out of a tract containing a total of 8.45 acres. This action was consolidated and tried along with the above proceeding to condemn the two easements. The record contains numerous objections.

First and foremost is an objection to the trial court’s consolidating the actions. We have examined the record and find that no objection was made at the time of the consolidation but was first made in a motion and grounds for a new trial. In our opinion this was too late.

Appellants’ next objection is to the failure of the trial court to permit the jury to view the premises. We have examined the record and find that appellant made no motion for a view of the premises. Therefore, this objection is without merit.

After appellant first testified in the case, he attempted to again return to the witness stand and give additional testimony concerning the value of the property. This was objected to and excluded by the court. We believe the action of the court was proper, as it appears appellant was attempting to give evidence in chief and not in rebuttal.

Upon the whole record, we find no reversible error.

The judgment in both actions is affirmed.

All concur.


author: ONION, Judge.

text:
    Guy SONDERUP and Dudley McManus, III, Appellants, v. The STATE of Texas, Appellee.
    No. 40520.
    Court of Criminal Appeals of Texas.
    July 19, 1967.

      Ed. P. Williams, Corpus Christi, for appellants.
    Sam L. Jones, Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Possession of Heroin; the punishment, assessed by the trial court against each appellant, twenty-five (25) years confinement in the Texas Department of Corrections.

We do not deem a complete recitation of the facts necessary. The evidence reveals a trip from Corpus Christi to the Mexican border by the two appellants, co-indictee Tommy Green, and a woman companion who was later revealed to be a police informant; the purchase by Green of heroin in Miquel Aléman, Mexico; the secreting of such heroin by the three men on the Texas side before the foursome re-crossed the border at Laredo, Texas, and the subsequent arrest of the three men in Corpus Christi on April 16, 1966, when the heroin purchased in Mexico was found in the rear seat of Green’s automobile where the two appellants were riding. At the time of the arrest, eight bottles of “dangerous drugs” were discovered in the possession of the appellant McManus.

Appellants initially contend that the trial court erred in overruling their pretrial motion for discovery generally requesting production of “all statements, documents and evidence now in the possession of police officers or the District Attorney of Nueces County.” We recently held that a similar motion was too broad to be effective. Smith v. State, Tex.Cr.App., 409 S.W.2d 408. The motion does not specifically designate the evidence referred to nor reflect the “good cause” required by Article 39.14, Vernon’s Ann.C.C.P. See 27 Baylor Review 451. There is no showing made by the appellants in the record that the evidence sought was material to their defense, that such evidence was non-privileged, and that their request was reasonable nor that the items demanded were in possession or control of the State or any of its agencies.

In overruling the discovery motion, the trial court did not abuse its discretion with consequent prejudice to the appellants.

Appellants next claim the trial court erred in failing to grant their separate motions for severance in view of the prior convictions of each. Such motions were not filed until the date of the trial and alleged that each appellant had a prior conviction, but for different types of offenses. There is no showing in the record that these convictions or their nature were introduced into evidence before the jury. At the penalty stage of the proceedings before the court, the prior convictions were stipulated to by the appellants. Such stipulations revealed that the appellant Sonderup had two prior burglary convictions and a misdemeanor conviction for possession of dangerous drugs, and that the appellant McManus had a previous felony theft conviction as well as a previous burglary conviction.

Severance is no longer a matter of right, but rests within the sound discretion of the court. Article 36.09, V.A.C.C.P. We cannot conclude, under the facts here presented, that the trial court abused its discretion and that a joint trial was prejudicial to the appellants.

Appellants further urge that the trial court erred in failing to hear evidence on their motions to suppress filed on the morning the trial began. The court was not required to hear such untimely filed motions for the same reasons set forth recently in Bosley v. State, Tex.Cr.App. 414 S.W.2d 468. Further, we observe that the appellants were not prevented during the trial from objecting to the admissibility of any of the evidence they may have sought to suppress. The contention is without merit.

If we understand the next ground of error of the appellants, it is that these convictions cannot stand because the statement of facts reveal a case of entrapment. The issue of entrapment was submitted to the jury by the careful trial judge in his charge and was resolved against appellant’s contention by the jury’s general verdict.

Appellants still further urge that the punishment assessed by the trial judge was cruel and unusual and lacked uniformity with the punishment earlier assessed against the co-indictee, Tommy Green, who had actually purchased the heroin and devised the means to smuggle it across the Mexican border. The record reveals that prior to the trial of the case at bar, the co-indictee Green, who was represented by different counsel, entered a plea of guilty to the indictment before a different District Judge in the same county and upon the evidence adduced at said trial was assessed a punishment of eight (8) years. The sentences imposed on the appellants were within the range of penalties prescribed by the Legislature, Article 725b, Vernon’s Ann.P.C., and do not constitute cruel and unusual punishment. Hunt v. State, 167 Tex.Cr.R. 51, 317 S.W.2d 743; Jacks v. State, 167 Tex.Cr.R. 1, 317 S.W.2d 731; 16 Tex.Jur.2d 120, Sec. 19. At the hearing on the proper punishment to be assessed against appellants, their prior convictions were relevant and admissible. Article 37.07, V.A.C.C.P. The lack of uniformity of sentences with punishment imposed on Green does not in and of itself reflect reversible error.

Lastly, the appellants themselves complained that the trial court erred in overruling their motion for new trial alleging jury misconduct, in that the jurors discussed punishment despite the court’s written instruction to consider only the issue of guilt or innocence. In accordance with the requirements of Article 37.07, Sec. 2(a), V.A.C.C.P., the court, in submitting the issue of guilt or innocence, instructed the jury in its charge as to the punishment provided by law for the offense charged. Testimony on the motion for new trial revealed that the jurors had discussed in their deliberations on the issue of guilt or innocence the evidence elicited from the co-indictee Green, a defense witness, that he had received an eight year sentence, but the disputed issue of whether the jurors had considered what punishment would be assessed in arriving at their verdict of guilty was resolved against the appellants by the trial court’s ruling on such motion.

The Texas Civil Liberties Union has filed an amicus curiae brief on the behalf of the appellant McManus. Such brief first contends that the trial court deprived the appellant McManus of his Fourteenth Amendment rights by failing to give an appropriate instruction to the jury that the testimony of an informer must be examined with greater scrutiny than that of an ordinary witness. Acknowledging the fact that such “error” was not assigned, the brief, nevertheless, insists that the same be considered as unassigned error in the interest of justice. Article 40.09, Sec. 13, V.A.C.C.P. We observed at the outset that no objection on this basis was addressed to the court’s charge nor was a special charge thereon requested. Articles 36.14 and 36.15, V.A.C.C.P. The ground of error is not before us for consideration.

The sufficiency of the evidence to sustain McManus’s conviction in “acting together” to possess the heroin as charged in the indictment is challenged next by the amicus curiae brief. Without a recitation of all the facts, we conclude that the testimony of appellant McManus’s knowledge of the purpose of the trip to the border was to buy narcotics, his knowledge that Green had purchased the heroin, and his subsequent assistance in hiding the heroin in a beer can prior to crossing the border again at Laredo is sufficient, when taken together with all the facts and circumstances, to sustain the jury’s verdict. See Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046.

Finding no reversible error, the judgment is affirmed.


text:
    Garfield HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 40594.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.

      B. F. Patterson, San Antonio, for appellant.
    E. W. Patterson, Gonzales, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Assault with Intent to Murder with Malice aforethought; the punishment, two (2) years- confinement in the Texas Department of Corrections.

At the outset, the appellant challenges the sufficiency of the evidence to sustain the conviction in view of what he contends is the absence of a showing of a specific intent to kill and physical injury to the person upon whom the assault was made.

The State’s evidence reveals that on December 15, 1966, Hugh F. Hartman, a Texas Highway Patrolman, was on patrol in Gonzales County. At approximately 9:45 p. m., he observed an Oldsmobile automobile parked off U. S. Highway 90-A, five and one half miles west of the City of Gonzales. Upon stopping to inquire if the occupants were having engine trouble which the driver and the passengers, including appellant, disclaimed, Hartman concluded the occupants had been drinking and had stopped to relieve themselves. As the Oldsmobile pulled onto the highway, Hartman followed in his patrol car and observed the Oldsmobile being driven erratically from one side of the highway to the other. Hartman immediately stopped the Oldsmobile by which time it was raining “heavily.” While Hartman was attempting to talk to the driver, appellant, who had gotten out of the car, constantly interrupted the conversation, refused the officer’s instructions to get back in the car, and appeared to Hartman to be intoxicated. When Officer Hartman attempted to place handcuffs on the appellant, he twisted away and began to shove and push Hartman up against a nearby barbed wire fence where he began choking Hartman. Upon finally freeing himself, Hartman pulled his pistol and ordered appellant to take a prone position on the ground.

At appellant’s request, he was allowed to get into the patrol car, but when he again refused to be handcuffed, the officer ordered appellant out of the car and the struggle resumed. When attacked again, Officer Hartman once more pulled his pistol, but either tripped or slipped on the mud into the nearby ditch and dropped his pistol. Thereupon, the appellant and Officer Hartman both grabbed for the weapon and struggled over its possession with appellant attempting to force the gun to the officer’s head. While kicking free of the appellant, the officer lost his grip on the pistol. Appellant then ordered the officer to back away from him and when Hartman was eight to ten feet away, the appellant fired the pistol at the officer, but did not hit him. When Hartman sought to secure another weapon from his patrol unit, the appellant ordered and forced the officer at gun point across the ditch and over the fence. When Hartman refused to go into the brush, appellant fired at him again from a point approximately twenty-five feet away.

At this time, appellant returned to the patrol unit and began blowing the unit’s siren. Officer Hartman made his way back to the highway where he flagged down two automobiles whose drivers he sent for help. Upon seeing the Oldsmobile move off and determining that the appellant had left the patrol unit, Officer Hartman returned to the patrol car, where he found his pistol, and began immediate pursuit.

As a result of the heavy rain, Hartman was unable to find the Oldsmobile and subsequently had a wreck and was injured.

The next morning at 7 a. m. the Sheriff of Gonzales County arrested the appellant following his discovery of the Oldsmobile in a ditch approximately a half mile from the scene of the events of the night before.

Appellant did not testify, hut offered a witness in support of his application for probation.

It is well established that a specific intent to kill is an essential element of the offense of assault with intent to murder. The intent to kill is a fact question, the existence of which must be determined by the trier of the facts, judge or jury, from the evidence and cannot be presumed as a matter of law. Hunter v. State, 161 Tex.Cr.R. 225, 276 S.W.2d 803.

The trier of the facts may, however, infer the intent from any facts in evidence which to his mind proves the existence of such intent to kill, as from the use of a deadly weapon.

In Kincaid v. State, 150 Tex.Cr.R. 45, 198 S.W.2d 899, this court said:

“The intent to kill is a question of fact to be determined by the jury from all the facts and circumstances in evidence. The intent is hardly ever provable by direct testimony, but is to be inferred from acts, words, and conduct of the party accused. In the instant case, appellant made the assault upon an officer with a deadly weapon, from which, in the absence of any evidence which would excuse or justify his act, an inference arises that he intended to kill. Here, no excuse or justification on the part of appellant is shown. Of course, he fired only one shot but what he had in his mind at the very time he fired the shot was a question of fact for the jury. The fact that he did not hit the officer may have been due to his drunken condition or to bad marksmanship and subsequently he may have abandoned his intent to kill. However, the subsequent abandonment of his intent would not make the assault any the less an assault with intent to murder.”
See also Wood v. State, 27 Tex.App. 393, 11 S.W. 449.

Even without the surrounding facts here presented, intent to kill may properly be inferred from the fact that the appellant committed the assault with a deadly weapon. Peterson v. State, Tex.Cr.App., 399 S.W.2d 813; Hernandez v. State, Tex.Cr.App., 375 S.W.2d 285; Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219. See also 4 Branch’s Anno. P.C.2d p. 173, Sec. 1812.

Further, proof of infliction of injury is not absolutely essential to a conviction for assault with intent to murder. Hunter v. State, supra; 4 Branch’s Anno. P.C.2d, p. 180, Sec. 1829; 29 Tex.Jur.2d 118, Sec. 106.

In determining the question of the sufficiency of the evidence to sustain the trial court’s finding that appellant intended to kill Officer Hartman, we must consider the evidence in the light most favorable to the State. Jennings v. State, Tex.Cr.App., 367 S.W.2d 670, appeal dismissed and denied 375 U.S. 398, 84 S.Ct. 453, 11 L.Ed.2d 412.

In view of the authorities quoted and the record before us, we conclude that the evidence fully sustains the conviction for assault with intent to murder as charged.

Appellant requests that if this cause be affirmed that this Court give favorable consideration to his application for probation denied by the trial court. We are without authority to do so. The authority to grant probation, in view of the waiver of the jury, was within the sound discretion of the trial judge. Article 42.12, Vernon’s Ann.C.C.P.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Billy Ray HUDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40525.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, 99 years and one day.

The indictment alleged that Jimmie Charles Hatchett and appellant killed Jeff Anderson Colvin, Jr. on or about the 7th day of February while engaged in the perpetration of and the attempt at the perpetration of the crime of robbery. Severance was granted, and appellant was tried first. His co-defendant testified as a witness in his behalf.

Appellant’s principal ground of error is that the evidence is insufficient to sustain the conviction.

This ground for reversal must be considered and viewed in the light of the following applicable rules of law.

The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. The jury may believe a witness though he has been contradicted, Navar v. State, Tex.Civ.App., 344 S.W.2d 188, and may accept a part of his testimony and disregard the remainder. Gaston v. Bruton, 358 S.W.2d 207 (Court of Civil Appeals).

One intending to commit a felony and who, in the act of preparing for or in executing the same shall, through mistake or accident, do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed. Art. 42, P.C.; Smith v. State, 154 Tex.Cr.R. 234, 225 S.W.2d 846.

The general verdict finding the defendant guilty of murder with malice will be applied to the acts finding support in the evidence. Johnson v. State, 169 Tex.Cr.R. 612, 336 S.W.2d 175, cert. denied, 364 U.S. 927, 81 S.Ct. 355, 5 L.Ed.2d 267.

The court’s charge, to which there were no objections, authorized conviction upon a finding by the jury that appellant made an assault upon the deceased and by said assault and violence attempted to rob him.

The court also charged on the law of principals, and submitted murder without malice, aggravated assault and simple assault, as well as the defense raised by the testimony of co-indictee Hatchett to the effect that the deceased had taken or was taking property from him (Hatchett) without his consent and he caused the fatal injury to be inflicted in defense of his property, and the defense of accident.

Hatchett’s version of the killing was that he first saw the deceased as he came out of the Calypso Lounge. The deceased asked him for a loan of a dollar and he told the deceased that he didn’t have one to spare. As he started walking off, the deceased took four dollar bills out of his (Hatchett’s) shirt pocket. Hatchett shoved him off and the deceased “fell up against this post and he fell off that post between two cars and when he fell he had the money in his hand and I reached down — when he fell the money fell out of his hand and I reached down and picked it up.” The deceased was between two automobiles, “his head was up on the bumper and one of his legs was on the curb or sidewalk.”

“Q. All right, did you — what did you do after you picked up the four one dollar bills?
“A. Well, I looked at him and walked off.
“Q. Did he appear to be hurt?
“A. No, sir.
“Q. Did you intend to hurt him?
“A. No sir.
“Q. Did you intend to kill him?
“A. No sir.
“Q. Did you know he was dead ?
“A. No sir.
“Q. Where did you go then?
“A. Well, I left — me and Billy Hudson left and went to the Club Matinee.
“Q. Where was Billy Hudson during this time?
“A. Me and him had walked out together.
“Q. Where was he when this man run his hand in your pocket and took the four one dollar bills ?
“A. If I am not mistaken I think he was standing in front of the cleaners on Lyons.
“Q. Did he say anything to you?
“A. If I am not mistaken he said that man took something out of my shirt pocket.
“Q. I didn't understand you.
“A. I said if I am not mistaken he said that man took something out of your shirt pocket.
“Q. Billy said that to you?
“A. Yes sir.
“Q. You say then you and Billy went where ?
“A. To the Club Matinee.
“Q. And did you get any notice or anything that the man was injured ?
“A. Well, when I got to the Club Matinee I heard somebody say that somebody got killed or hurt down there at Estes Lounge.
“Q. And did you know it was the same man?
“A. No sir, I did not.”

Sherry Whitten testified that Jimmie Hatchett, the deceased Jeff Anderson Col-vin, Jr., and appellant were in the Calypso Lounge at the same time on the evening in question; that the three men left the lounge separately and at different times; that shortly thereafter she (Sherry) left the lounge and walked to a spot adjacent to a cleaning establishment next door to the lounge where she heard some noise and saw the deceased, Jimmie Hatchett and appellant. She stated: “Jimmie (Hatchett) had something in his hand and it looked like he was hitting him (deceased).” She further testified that appellant was going through the pockets of the deceased. She attempted to get Jimmie Hatchett to leave the deceased alone, but he shoved her away. She stated that Theodore Searcy was standing nearby observing the affray and that “I told Theodore to call the law that they was fighting and he just stood there like he didn’t hear me and I ran past Theodore and I ran up on the porch (of the lounge).” Sherry went back inside the lounge and did not again see the deceased until she left the lounge when it closed and saw him lying on the street in front of the lounge.

Theodore Searcy testified that on the night in question he was standing on the front porch of the Calypso Lounge when he saw the deceased standing near the cleaning establishment next door. Appellant was standing next to the deceased when the deceased yelled at appellant: “Please don’t hit me no more.” The deceased then staggered backwards, whereupon appellant hit the deceased, causing him to fall against the curb' of the street. Appellant then walked away, leaving the deceased lying in the gutter, partially on the curb, where he remained until the police and ambulance arrived.

Officer Dickerson testified that when he and another officer arrived on the scene the deceased was lying in the street at the curb and was dead.

There was also testimony that the deceased was seen carrying a carton of cigarettes in the Calypso Lounge shortly before the killing, but that the cigarettes were not found on or near his body; that when he was found his right front pants’ pocket was turned inside out; that his clothing was in a state of disarray when he was found. This was in addition to the testimony that appellant had been seen going through the pockets of the deceased. All of such evidence was relevant on the issue of whether the killing occurred during a robbery or attempted robbery of the deceased.

The indictment alleged that appellant and Hatchett, with malice aforethought, voluntarily killed the deceased Colvin “by kicking and stomping him with their feet and by beating and striking him with blunt instruments and weapons the exact name or a further description of which is to the Grand Jury unknown.”

The Foreman of the Grand Jury testified that the evidence before the Grand Jury indicated that it was impossible to determine the means used and the Grand Jurors were undecided as to the exact description of the weapon used.

Dr. Joseph Jachimczyk, Chief Harris County Medical Examiner, testifying from a report made from an autopsy on the body of the deceased, stated that the deceased died from a skull fracture on the back of his head and subdural hemorrhage due to blunt trauma caused by “more than three blows” inflicted upon him within two hours of his death.

There was other testimony from the witness Sherry Whitten which placed the scene of the attack upon the deceased at an earlier hour and a different location outside the Calypso Lounge. Also the witness Searcy changed his testimony and denied that appellant participated in the assault by Hatchett upon the deceased. Searcy first testified that he was on the porch in front of the Calypso Lounge when he first saw the deceased: “He was outside. I mean he was down by the cleaners,” as was appellant.

“Q. Did anything happen between those two men?
“A. Well, the man was hollering.
“Q. What man?
“A. Anderson Colvin, Jr.
“Q. What now?
“A. The guy that’s dead now.
“Q. What was he hollering?
“A. He said please don’t hit me no more.
“Q. Who did he say that to? Now you have got to tell the truth. Who did he say that to?
“A. Billy Hudson.
“Q. The defendant in this case, Billy Hudson ?
“A. Yes sir.
“Q. What did Billy do when he said that?
“A. Well, when he said that the man just fell back — I mean staggered back over on the cleaners.
“Q. Where?
“A. Staggered back to the cleaners, just fell. The guy was mad I guess.
“Q. Just staggered back to the cleaners?
“A. Yes.
“Q. What happened after he staggered back to the cleaners ?
“A. Some blows hit him again.
“Q. Who hit him some blows again?
“A. Billy Hudson.
“Q. And after he hit him those blows where did the dead man, that you refer to as the dead man, where did he go?
“A. He just staggered back and as he did he staggered back against the post and hit his head.
“Q. The telephone post?
“A. As he staggered on back he just staggered on back and hit his head.
“Q. Where did he hit his head ?
“A. On the cement.
“Q. Of the street or curb or what?
“A. On the curb. As he hit he just slammed back like this.
“Q. What did this defendant do then?
“A. Walked off.
“Q. Now, when the old man fell were there some cars parked there along the curb?
“A. Yes sir.
“Q. Is that where he stayed until the police and ambulance got there ?
“A. Yes sir.”

Both the state and the defense offered evidence to impeach the witness Searcy and his two prior inconsistent statements were read to the jury by appellant’s counsel.

During his cross-examination, Searcy testified:

“Q. * * * Did you ever see Billy Ray Hudson strike that man ?
“A. No sir, I did not.
“Q. Did you see anybody strike him?
“A. Yes sir.
“Q. Who?
“A. Jimmy.
“Q. Jimmy who?
“A. Jimmy Hatchett.
“Q. Do you know Jimmy Hatchett by sight ?
“A. Yes sir, I have known him a long time.
“Q. All right now, at the time that you witnessed what you witnessed or what you say, did you ever see Billy Ray Hudson do anything at all to Mr. Col-vin?
“A. No.
“Q. Did you hear Billy Ray Hudson say anything at all?
“A. Yes sir.
“Q. What did you hear him say?
“A. He said freeze off the man, freeze off the old man, don’t kill him.
“Q. Don’t kill him or don’t hit him or what?
“A. Otherwise don’t kill him.”
He later testified on cross-examination:
“Q. You say in your statement that the old man struck a pole. What pole was that?
“A. Well, when he was hit he fell back against the post.
“Q. Now, did you see Mr. Colvin strike the post?
“A. Yes sir, he fell against the post.
“Q. Now, what caused him to fall against the post?
“A. The blow from the lick.
“Q. Whose blow?
“A. Jimmy’s.
“Q. Did you stay there or did you leave ?
“A. Well, I was fixing to walk off and the police drove up.
“Q. Well now, how long had you been there before the police arrived ?
“A. Well, I would say about two minutes. It was — just looked like I was in a trance, you know, me seeing a man out there like that.
“Q. Well, did you see Hatchett and Hudson, either one, do anything after the man fell?
“A. No sir.
“Q. Did you see Hatchett or Hudson either one take anything off of the man, Mr. Colvin, after he fell ?
“A. No sir.
“Q. Now, how far away from the fight was Billy Hudson?
“A. Well, he was on the side of the cleaners so I say he was about five feet, I guess.
“Q. Five feet?
“A. Five feet.”

There were conflicts in the testimony as to the time and exact place of the killing. These discrepancies do not render the evidence insufficient in view of testimony including that offered by the defense.

Viewed in the light most favorable to the state, the evidence is sufficient to sustain the jury’s verdict.

We overrule appellant’s further contention that the right to a fair and impartial trial was denied him.

The judgment is affirmed.

MORRISON, J., dissents.


author: BELCHER, Judge.

text:
    Julian J. DONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 40527.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Robert B. Billings, Dallas, for appellant.
    Hunter B. Brush, Dist. Atty., Milton G. Mell, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is under Art. 567b, Vernon’s Ann.P.C., for the giving of a worthless check in the amount of $1506.40; the punishment was assessed at four years.

In May, 1964, the appellant was operating twenty-two retail service stations and also selling wholesale to four outlets in Dallas, with a sales volume of 750,000 to 1,000,000 gallons of gasoline per month. The gasoline was supplied to the appellant by three refineries. About May 1, 1964, he became involved financially, having a total indebtedness of around $400,000, and his three suppliers of gasoline placed him on a cash basis. During this time the appellant and La Gloria Oil and Gas Company of Tyler began negotiations for a loan and the refinancing of his business, and for the sale and purchase of gasoline. The $1,506.40 check signed by the appellant, dated July 9, 1964, payable to La Gloria Oil and Gas Company for gasoline is the basis of this prosecution.

Among the grounds urged by the appellant for reversal is that, the trial court erred in refusing his requested charge to the jury which had been timely and properly presented. The requested charge was as follows:

“If you believe from the evidence that the defendant was induced into issuing the check in question by the offer on the part of La Gloria Oil and Gas Company or one of its representatives that he could give a check for oil and gas delivered to him and make the check good from the sale of the gas at a later date, knowing that defendant must pay for it in this manner, or if you have a reasonable doubt thereof, you will say by your verdict not guilty.”

The appellant testified in part as follows:

“Q When was this that you and Mr. Cain arrived at some agreement, or was the agreement with someone else?
“A Well, as I said, it was toward the latter part of June, I called Mr. Cain and I asked him if anything had been consummated that we could actually talk about. And he said, ‘Well, to this point, there isn’t anything actually consummated. It is just going to take a little more time, but, ‘he says, ‘One thing that will help the situation,’ he says ‘this is an ungodly amount of gasoline for an operation,’ and he says, ‘To substantiate the gallonage, to prove to La Gloria Oil & Gas that you do sell this much gasoline, and that they would have a sizeable account and an account that they could depend on,’ he says, ‘You ought to start buying gasoline from us.’ I said, ‘Well, John, there isn’t a way in the world that I can start buying gasoline from you unless you want to deliver it to me on credit.’
“Q. And this was at this conversation you told him that?
“A Yes, sir.
“Q And what was his reaction to that?
“A He said, ‘Well, I don’t know if that could be worked out at the present time, because of your debt to Anderson. ‘But,’ he says, ‘There must be a way that we can get the situation started, in order to benefit all .parties concerned.’
“Q Did you all make an agreement at that time as to your operation at all?
“A Not at that particular time. No we did not.
“Q When did you all get together again ?
“A A few days after that, Mr. Mason came to Dallas.
“Q Do you mean by himself? Or with someone ?
“A He was by himself.
“Q Did he come to your office?
“A He came to my office. And we discussed the entire situation, the loan and the availability of credit and the prospect of me buying gasoline from them, etc., and through the process of conversation, we arrived at a decision where I would start buying gasoline from them.
“Q What was this agreement with them as to how you would buy gasoline from them?
“A We reached an agreement on this basis. That, number one, Gas Mart had some Judgments on record and I was operating so close with the money situation and had so many taxes that were owed, etc. that—
“Q And you told Mr. Mason about this ?
“A Yes, and Mr. Cain and Mr. Jones also — they were aware of that. And we arrived at a way to handle the gasoline was for me to send a blank check down to the refinery.
“Q And what were the further details of this agreement?
“A Well. I was to establish this checking account, and as I sold the gasoline, put the money in the bank to clear the checks.
“Q And this was their agreement with you?
“A Yes.
“Q Now, this was your operation which started in July of 1964. Is that right ? Somewhere the first part of July?
“A Yes, yes.
“Q Now, right after you started this operation, were you contacted by Mr. Mason or Mr. Cain again?
“A After I started sending the trucks down to the Tyler refinery with these blank checks with them, I believe 4 or 5 loads of gasoline had been received and 4 or 5 checks had been delivered to the Tyler refinery, and I stand to be corrected on this, but I believe they had deposited the first checks, and we made our initial deposit. Mr. Mason called me — and his words were, ‘Julian3, he says, ‘Our bookkeeping department or office department just called the Merchants State Bank,’ and he says, ‘You know there is only $1900.00 in that account as of this morning,’ and he says, ‘There are more checks than that now being processed.’ And I said, T know it, but I have to sell the gasoline and put the money in the bank.’ He says, ‘Okay, be sure and take care of everything.’
“Q Your original agreement was just like you told us, and that occurred prior to this telephone conversation. Is that right?
“A Yes.
“Q And you were to sell the gasoline and deposit the money in the bank?
“A Right.
“Q And make payments on those checks?
“A Right.”
In rebuttal, Cliff Mason, testified for the state as follows:
“Q Mr. Mason, you testified yesterday, I believe, that you were the original La Gloria representative to be in touch with Mr. Donald with regard to the possible purchase of Petroleum Products from La Gloria by Mr. Donald and his Gas Mart Systems?
“A That’s right.
“Q All right, sir. Did you also testify that you were the representative of La Gloria, who worked out the arrangements under which these purchases were to be made?
“A Yes, I was.
“Q And what was that arrangement?
“A That Mr. Donald would pay for the product purchased by check on his corporation, signed by Julian J. Donald.
“Q Did you consider this to be an extension of credit to Mr. Donald or to Gas Mart Systems?
“A No, sir.
“Q Did Mr. Donald ever express to you that he did not feel that his checks would be good?
“A No, he did not.
“Q Did he ever indicate to you that he would have to wait until he could get the gasoline purchased back to Dallas and there sell it and collect for it and take that money and put it in the bank to cover the check with which he had originally purchased that gasoline from La Gloria ?
“A No, sir.
“Q Did you have any sort of discussion with Mr. Donald in regard to his checks? That is, whether or not they would be good or not?
“A Not at the time the original purchases were made.
“Q At what time did you have some conversation with him about that?
“A When Mr. Donald asked if our company would be interested in some sort of arrangement to finance his operation, or to buy into his operation. At that time I told Mr. Donald that if he wanted our company to consider it at all, that these checks certainly — the first check had better not bounce, or certainly our company would not be interested in pursuing the matter at all. In other words, he had to prove his self to us.
“Q And what did he say in response to this statement by you?
“A That his checks would be honored at the bank.
“Q Did Mr. Donald at any time prior to the time that he began to make these purchases under the arrangement to which you have previously testified, that is, paying for them with a signed check at the time each load was picked up, at any time prior to the beginning of this business arrangement and these purchases, did he indicate to you in any manner that his checks would not be good, or that he would have to wait until he could sell the products to get the money to cover these checks ?
“A No, sir, he did not.”

Further, in rebuttal, John Cain, Manager, Wholesale Sales, testified for the state as follows:

“Q Mr. Cain, do you recall receiving a telephone call from Mr. Donald in the latter part of June, 1964, at which time, during which conversation, you advised Mr. Donald that it would be a good idea for him to start buying gasoline or petroleum products from La Gloria?
“A No, sir.
“Q And at that time, do you recall the Defendant telling you that he couldn’t buy gasoline from La Gloria, unless La Gloria would let him buy it on credit?
“A No, sir.
“Q Did you ever receive any communication from Mr. Mason to the effect that the Defendant was going to begin buying gasoline from La Gloria, and that Mr. Mason had arranged for him to buy this gasoline and pay for it at the loading dock at the time the truck was loaded, with a check, and that Mr. Donald was then going to clear these checks with the money from the sale of the products that he bought from you?
“A No, sir.”

The appellant’s testimony raised the issue of whether the gasoline transactions were by agreement, credit sales, that is, the checks for the gasoline would be paid from the money deposited from the sale of the gasoline.

The testimony of Mason and Cain recognize the position here taken by the appellant, but each denied making any agreement for such manner of extension of credit; and Mason testified that the appellant told him “That his checks would be honored at the bank.”

The appellant was entitled to an appropriate affirmative submission of the defense to the jury as raised by the above testimony, and the main charge did not submit it.

The requested charge was sufficient to call the trial court’s attention to the omission in the main charge and preserves the error. Art. 36.15 Vernon’s Ann. C.C.P.; Barefield v. State, 165 Tex.Cr.R. 581, 309 S.W.2d 451.

The disposition hereof makes unnecessary the review of any ground presented as error other than the one herein considered.

The judgment is reversed and the cause is remanded.