author: BELCHER, Judge.

text:
    Tommy GLASS, Appellant, v. The STATE of Texas, Appellee.
    No. 40127.
    Court of Criminal Appeals of Texas.
    March 1, 1967.
    Max Blankenship, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., John Brady, Roland H. Hill, Jr., William R. Magnussen and Truman Power, Asst. Dist. Attys, Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is a conviction for giving a check for more than fifty dollars without sufficient funds, with intent to defraud; the punishment, ten years.

The, only ground relied upon for reversal is that the state’s attorney, during his argument to the jury, commented upon the appellant’s failure to testify.

The argument complained of, the objections thereto, the motion for mistrial, and the rulings of the court thereon were as follows:

“State’s Attorney:
The facts in this case are as simple as they can be. The man, Tommy Glass (appellant), is charged with violation of the check law. We feel that the evidence has proved to you; the only evidence you have heard from the witness stand to which there is no contradiction in this case; it is a most unusual case, is that he did violate the check law and that you should find by your verdict that he is guilty. (Emphasis as shown in appellant’s brief.)
“Appellant’s Attorney:
Your Honor, I want to object, if I may. I am a little slow rising, but counsel just argued to the jury here that this is a most unusual case and there is no evidence rebutting what the State presented. I want to object to that being improper argument to the jury for the reason it is a comment on the defendant’s failure to take the stand to testify or to put other testimony on when he is not burdened to put on any witness or any testimony.
“The Court:
I will sustain the objection and instruct the jury not to consider the last statement made by counsel for the State.
“Appellant’s Attorney:
At this time, Your Honor, I move the Court to declare a mistrial.
“The Court:
I will overrule the objection at this time.”

The appellant did not testify, but recalled the state’s witness, R. II. (Bob) Martin, the injured party, as the only witness.

R. H. (Bob) Martin, the person to whom it is alleged that the appellant delivered the check, while testifying for the state, identified the appellant as the person who gave him the check in question. He further testified that at the time of the check transaction, there were two other persons with the appellant, but that the appellant was the one who gave him the check.

The two persons with the appellant at the time the check was made and passed to Martin did not testify.

The prosecuting attorney’s remarks did not constitute a direct reference to the defendant’s failure to testify.

To constitute an indirect reference to the failure of the defendant to testify, the comment must be such that it cannot reasonably be applied to the failure of the accused to produce testimony other than his own. In order for the statement complained of to be construed as a comment upon the appellant’s failure to testify, there must not have been anyone other than the appellant who could have refuted any of the testimony given by the state’s witnesses. Other than the testimony of the appellant, it appears that the testimony of the two persons with the appellant at the time of the check transaction could have disputed the evidence of the state. 1 Branch 2d 413, Sec. 394; Mayfield v. State, 92 Tex.Cr.R. 532, 244 S.W. 819; Manning v. State, Tex.Cr.App., 393 S.W.2d 910, 911.

The argument complained of under the facts and circumstances presented does not reveal error.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    David ROBLES, Appellant, v. The STATE of Texas, Appellee.
    No. 40057.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied March 15, 1967.

      Bill Prewett and Travis Smith, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery by assault with a prior conviction of a felony less than capital alleged for enhancement; the punishment, life imprisonment.

Notice of appeal was given on April 22, 1966.

As a ground of error, the appellant contends that the jury, in determining his guilt or innocence, had before it evidence of a criminal record made by him, a picture of him standing in front of an open prison barred door, and he was looked upon and considered by officers as a “known narcotic offender, user and pusher,” and that such' evidence deprived him of a fair and impartial trial and its admission in evidence was fundamental error.

The evidence reveals that two narcotic officers patrolled an “area” frequented by known narcotic offenders, users and pushers, and after receiving a police radio pick-up for the appellant, and knowing him to “hang out in this area,” they soon located him there, and on the arrival of other officers, the appellant was arrested, and later a picture was made of him at the jail. There was no objection to this testimony, and its admission in evidence was not fundamental error.

Error is urged on the ground that there is no evidence that the David Robles named in the records of the prior convictions introduced is the same David Robles in this case.

Record proof of the prior convictions with attached photographs and fingerprints of David Robles were introduced.

The testimony of a fingerprint expert based upon his comparison of such prints with appellant’s known prints showed that the prints were those of the same person. This manner of proof of prior convictions, and that the appellant is the same person so convicted, has been approved. The contention reveals no error. Martini v. State, Tex.Cr.App., 371 S.W.2d 387.

The judgment is affirmed.


author: ONION, Judge.

text:
    Willie Ross MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 40024.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Rehearing Denied March 8, 1967.

      Herbert Landau, James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Jr., Scott Bradley and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, fifteen years confinement in the Texas Department of Corrections. The case was tried on January 12, 1966.

The complaining witness, Richard Man-kins, was at the time of the offense a sixteen year old high school student who worked as a part-time employee at the Holiday Cleaners located in the Preston Forest Shopping Center in the city of Dallas. Man-kins testified that shortly before 9:00 p .m. on Friday, October 1, 1965, the appellant entered the business establishment where he was employed. Mankins testified that after being unable to find any cleaning listed under the name given by the appellant, the appellant held a gun on him and told him to “put the money of the register in a brown paper sack.” Mankins opened one drawer and emptied the money into the sack, but neither he nor the appellant was able to open the second drawer. Mankins testified he had the care, custody and control of the premises and all property located therein and the appellant took approximately $125.00 in cash without his consent or permission, and at such time'he was in fear of his life or bodily injury. He testified the appellant upon leaving told him (Mankins) “not to follow him.”

The police arrived at 9:00 p. m. and were given a description of the robber. The following Monday Mankins was able to identify the appellant from among six or eight pictures shown him by the police. Later that evening he again identified the appellant from a police line-up of five men, all of whom were of approximately the same size, build and age.

While on the stand, Mankins testified the appellant was in the cleaning establishment for approximately five minutes and that he was watching the appellant’s face most of that time and that he was “positive” in his identification.

The appellant testified that on the evening of October 1st and at the time of the robbery he was at various other places. His alibi testimony was corroborated in part by several other persons. None of these witnesses, however, could corroborate the appellant’s testimony that for fifteen or twenty minutes and during a period of time coinciding with the time of the robbery that he had gone alone to a lounge known as “The Gusher” for the purpose of engaging in a game of pool.

There was other testimony that the appellant had once been a manager of the Holiday Cleaners, but at the time of the robbery was unemployed.

The appellant complains that the trial court erred in not instructing a verdict of “not guilty” when the State rested its case in chief and again when both sides closed. He contends that the overwhelming weight of the credible testimony as to appellant’s alibi renders doubtful the testimony of the lone identifying witness, and the evidence is insufficient to sustain the conviction of the appellant. In view of the evidence, despite the testimony as to the appellant’s alibi, the Court did not err in overruling the motions for instructed verdict. The jurors are the exclusive judges of the credibility of the witnesses and the weight of the testimony. Article 38.04, Vernon’s Ann.C.C.P. They chose to believe the State’s version of the case, and the evidence is sufficient to sustain their verdict. Except where corroboration is required by law, the fact that a single witness for the State is contradicted by a greater number of witnesses for the appellant does not alter the above rule. Hutchins v. State, 172 Tex.Cr. R. 525, 360 S.W.2d 534; see 24 Tex.Juris.2d 378, Sec. 715, and cases there cited.

The appellant next contends that the court erred in permitting in evidence over the objection of the appellant statements by Richard Mankins that he (Man-kins) examined various photos. The appellant cites no authorities for his contention, and he has not briefed the same. It is not clear whether he has reference to the photos Mankins testified he saw in attempting to identify the robber or to State’s Exhibit No. One (showing the interior of the cleaning establishment). The record reflects that to neither the introduction of State’s Exhibit No. One or to testimony about the photos used for identification purposes did appellant offer any objection. No error is presented. McClinton v. State, 170 Tex.Cr.R. 141, 338 S.W.2d 715.

The appellant further claims that the Court committed reversible error in permitting the District Attorney to place in evidence and argue before the jury that a police officer “received a call” from an informer who stated that the appellant had committed the robbery.

The record reflects that without recounting the conversation or mentioning appellant in connection therewith, Officer Ather-ton testified that he had a conversation with someone concerning the Holiday Cleaners robbery and related what action he took thereafter. To such testimony there was no objection.

Even if objection had been interposed the testimony of the officer was admissible. Woolsey v. State, Tex.Cr.App., 376 S.W.2d 572; Cameron v. State, 171 Tex.Cr.R. 224, 346 S.W.2d 845; Willman v. State, 92 Tex. Cr.R. 77, 242 S.W. 746; Johnson v. State, Tex.Cr.App., 379 S.W.2d 329, 333.

In Johnson v. State, supra, this Court in holding similar testimony admissible, said:

“With reference to the testimony of the witness Canfield, the record shows that the officer was permitted to testify that he had received a radio report of the robbery and description of a certain automobile, but he did not relate the contents of the report.”

Appellant did object to the prosecutor’s argument relating to Officer Ather-ton’s testimony, but the same appears to be a reasonable deduction from the evidence and presents no error. Further, this ground of error as to jury argument was not raised in the trial court, and is not such an error that this Court would be required to review under Article 40.09, Section 13, V.A.C.C.P.

We are further asked to reverse this conviction for the failure of the trial judge to order the court reporter to take the complete voir dire examination of the jury panel in accordance with the provisions of Article 40.09, Sec. 4, V.A.C.C.P. This is by far the most serious contention made by the appellant.

Section 4 of Article 40.09, V.A.C.C.P., reads as follows:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments. He is not entitled to any fee in addition to his salary for taking these notes. A transcription of the reporter’s notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, ■ argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof of the occurrence or existence of same shall he necessary on appeal; provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.”

Prior to the voir dire examination of the jury panel the appellant timely filed a written motion requesting the Court to have the court reporter take the voir dire examination of the jury panel and the argument of counsel in accordance with the provisions of the statute quoted above.

Acting upon such motion, the trial court entered the following order:

“The Court overrules the motion to the extent that the Ct. will not require the reporter to take the complete voir dire. Only those matters where objections may be made and the defendant desires to perfect a bill. The defendant may renew this motion at any time.
“The Court grants the motion for the court reporter to take jury arguments of both sides.”

From the very language of the statute itself the legislative intent is clear. When requested it becomes the duty of the Court to see that the court reporter takes the entire voir dire examination. The purposes of this particular revision of the Code were to insure, when requested, as complete a record in a criminal proceeding as possible, reduce the necessity for formal bills of exception, and eliminate any question concerning additional compensation for court reporters in performing such services. There can be no doubt but what the learned trial judge erred in failing to comply with all of its terms. The question remains, however, whether such error is reversible error given the particular circumstances of the case at bar.

Nothing of the voir dire examination of the jurors appears in the record before us. We are therefore unable to determine if no record was made at all, or if, in accordance with the trial court’s order, the portion recorded when desired by the appellant was not brought forward in the record by failure of the appellant to request its inclusion in the record. Art. 40.09, Section 5, V.A.C.C.P.

There is no showing that as a result of the trial court’s order appellant was deprived of any informal bills of exception reserved during voir dire examination, nor is there any claim, contention or suggestion made that anything occurred during the voir dire examination to the detriment of the appellant.

The appellant’s contention, as we understand it, is that, while asserting no specific ground of prejudice respecting the voir dire examination, the language of Article 40.09, Section 4, V.A.C.C.P. is mandatory and the failure of the trial court to fully comply therewith works an automatic reversal.

In considering a similar statute where the trial court had failed to require the court reporter to record under the Court Reporter Act, 28 U.S.C.A. Section 753(b), the Fifth Circuit, U.S. Court of Appeals, in Strauss v. United States, 311 F.2d 926, said:

“Furthermore, no specific error or prejudice resulting therefrom is called to our attention. This is the very least that would be required under Stephens v. United States, 5 Cir., 1961, 289 F.2d 308, where errors were specified, and where there was no record on which to test the claimed errors. To permit an appellant simply to claim error for failure to record under the Act, without more, would eliminate the necessity of a showing of prejudice because of the error. The error may well have been harmless when considered in the light of the facts which were reported.”

See also Addison v. United States, 5 Cir., 317 F.2d 808, cert, denied 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605; Burns v. United States, 5 Cir., 323 F.2d 269, cert, denied, 376 U.S. 907, 84 S.Ct. 660, 11 L.Ed.2d 606; Stirone v. United States, 3 Cir., 341 F.2d 253; Fowler v. United States, 5 Cir., 310 F.2d 66.

In Brown v. United States, C.A.Wash., 314 F.2d 293, the sole error specified was the failure to record the summations to the jury. The appellant argued, as here, that the error in itself required reversal and a new trial. There the Court said, “But we are not compelled to set aside a valid conviction because of an error which may have been wholly harmless in order to be sure that we are not, through ignorance of the facts, denying relief for error which prejudiced appellant’s substantial rights.”

The appellant cites in support of his contention the opinion of this Court in Moore v. State, 363 S.W.2d 477. In Moore, supra, appellant showed by a bill of exception and a bystander’s bill that by virtue of the court’s action he was deprived, over his objection, of a record of the jury arguments, including his objections, and exceptions to such arguments, and the rulings and remarks of the court thereon all of which he complained of on appeal. He even brought forward in the record the testimony adduced on the bystander’s bill. It is therefore distinguishable from the case at bar.

The appellant having specified no error to which the statement of facts of the voir dire examination would be relevant, and given the particular circumstances of the case, we cannot conclude that the error of the trial judge in failing to order the court reporter to record the entire voir dire examination is reversible error. An entirely different question would have been presented if the appellant had specified prejudicial error in the conduct of the voir dire examination which was not recorded by virtue of the court’s order and which he was unable to bring forward on review. In such a situation, we would be unable to appraise the alleged error, and would be called upon to reverse.

We do not mean to imply by this opinion any approval of the trial court’s refusal to completely comply with the requirements of Article 40.09, Section 4, V.A.C.C.P., especially in those cases where motions for change of venue are filed. These requirements are based upon the sound reasoning that every appellant should be enabled to prepare and present a full and fair statement of what occurred in the trial court for review upon appeal.

The judgment is affirmed.


author: DICE, Judge.

text:
    Claude GIBSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40143.
    Court of Criminal Appeals of Texas.
    March 1, 1967.

      Casbeer Snell, Jr., of Phelps, Kilgarlin & Snell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery by assault; the punishment, eight years.

The sufficiency of the evidence to support the conviction is challenged by appellant in his brief filed in the trial court. He insists that the evidence is insufficient to identify him as the person who committed the offense and therefore raises a reasonable doubt as to his guilt.

The injured party, L. J. Burns, testified in detail as to how he was robbed by a man, around midnight, while walking on McGowan Street in the city of Houston. He stated that it was “pretty light” in the area and that he got “a good look” at the man. On three occasions he observed the man’s face. The man “was wearing long processed hair.” At the trial the injured party positively identified appellant as the man who robbed him. He further testified that a week later, when he and his wife were in a lounge, he saw appellant and recognized him as the same man who had robbed him but did not call the police because he was afraid his wife would be hurt. Some three weeks later he again saw appellant, on Dowling Street, at which time he did call the police and appellant was there arrested. At such time, appellant had the same hair styling.

Testifying in his own behalf, appellant denied that he committed the robbery and swore that he was not present but was at another place at the time.

Witnesses whose testimony supported his defense of alibi were called by appellant.

Such defense was submitted to the jury in the court’s charge and by the jury rejected.

We find the evidence sufficient to support the conviction.

The testimony of the injured party was sufficient to authorize the jury to conclude that appellant was the guilty party. Ramirez v. State, 169 Tex.Cr.R. 494, 335 S.W.2d 228.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Linardo VILLASANA, Appellant, v. The STATE of Texas, Appellee.
    No. 40191.
    Court of Criminal Appeals of Texas.
    March 1, 1967.

      Denver E. Perkins, Houston 'Munson, Jr., Gonzales, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

We quote the statement of the case, the nature of the proceeding and the grounds of error from appellant’s brief.

“This is a proceeding initiated by the State’s attorney to revoke defendant Vil-lasana’s right to bail previously allowed by the committing magistrate.

“Defendant was arrested and charged before the justice of the peace with murder with malice. Examining trial was waived and defendant was admitted to bail in the amount of $5,000.00, which he gave and was thereupon released to await the action of the grand jury.

“Thereafter, the grand jury met and indicted the defendant for murder with malice. The State’s attorneys filed a notice that the State would seek the death penalty. They also filed the above mentioned motion to have the defendant held without bail pending the trial of this case. Upon hearing, the district judge so ordered. He was jailed on January 13, 1967. The defendant gave notice of appeal. The record was approved and filed in the trial court on January 24, 1967. Defendant remains in the jail of DeWitt County.

“APPELLANT’S POINTS OF ERROR

“1. The judge of the district court erred in committing the defendant to jail without bail, the State having failed in its burden to show that the proof was evident and the presumption great that defendant would receive the death penalty, and the evidence showing only an unexplained homicide.

“2. The judge of the district court erred in committing the defendant to jail without bail, there being no statutory warrant for such action.

“3. The judge of the district court erred in committing the defendant to jail without bail, the matter of bail having become res judicata upon his first having been charged and released on bond.

“4. The judge of the district court erred in committing the defendant to jail without bail, not having ordered the defendant re-arrested.”

The statute which controls the disposition of this appeal is Article 11.57 of the 1965 Vernon’s Ann.Code of Criminal Procedure, which reads:

“Where a person once discharged or admitted to bail is afterward indicted for the same offense for which he has been once arrested, he may be committed on the indictment, but shall be again entitled to the writ of habeas corpus, and may be admitted to bail, if the facts of the case render it proper; but in cases where, after indictment is found, the cause of the defendant has been investigated on habeas corpus, and an order made, either remanding him to custody, or admitting him to bail, he shall neither be subject to be again placed in custody, unless when surrendered by his bail, nor shall he be again entitled to the writ of habeas corpus, except in the special cases mentioned in this Chapter.”

This statute furnished authority for the trial judge’s order committing appellant after the return of the indictment, subject to his right to seek release by habeas corpus, including the right to appeal if remanded to custody. Art. 44.34 et seq., C.C.P.

Article 11.57 C.C.P. is also authority for the overruling of appellant’s contention that the matter of bail had become res judicata upon his having been released on bond set by a magistrate prior to the return of the indictment.

In Augustine v. State, 33 Tex.Cr.R. 1, 23 S.W. 689, and Jenkins v. State, 45 Tex. Cr.R. 253, 76 S.W. 464, cited by appellant, the order granting bail in a capital case held to be res judicata was one made after the return of an indictment.

Ex parte Korn, Tex.Cir.App., 400 S.W. 2d 564, also cited by appellant, dealt with Article 44.04(d) of the 1965 Code of Criminal Procedure and its applicability to a recognizance on appeal entered into prior to the effective date of said Code.

The effect of our holding in Ex parte Coker, 167 Tex.Cr.R. 208, 319 S.W.2d 120, in which we construed Article 275a V.A. C.C.P. enacted in 1957 (now Art. 17.09) was that a defendant is entitled to remain at liberty after indictment under the bond set by a magistrate, unless or until the trial judge orders his rearrest or commitment.

As to appellant’s contention that the proof is not evident, and he is entitled to bail, we direct attention to our recent holdings in Ex parte Parker, Tex.Civ. App., 370 S.W.2d 882, and Ex parte Perkins, Tex.Cr.App., 403 S.W.2d 410, in which no evidence was offered showing any justification or excuse for the killing.

Our disposition of the appeal is without prejudice to appellant’s right to seek relief by habeas corpus.

The appeal is dismissed.


text:
    Leon Reginold BORN, Appellant, v. The STATE of Texas, Appellee.
    No. 40023.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Rehearing Denied March 8, 1967.
    Ben Henderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stin-son, Scott Bradley and Kerry P. FitzGer-ald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for assault with intent to murder. The punishment was assessed at fifteen years.

Sentence was pronounced and notice of appeal given on January 21, 1966.

The appellant’s brief assigning error was filed in the trial court long prior to the approval of the record by the trial judge. From the oral argument at the time of submission and the record, it appears that said brief is still relied upon by the appellant. It will be considered.

The appellant contends that his written statement pertaining to the offense charged was illegally obtained from him on the ground he was arrested without a warrant, never taken before a magistrate, or advised of his right to counsel; and its admission in evidence was error.

The trial judge held a separate hearing in the absence of the jury on the issue of the voluntary nature of the written statement of the appellant, and prior to its admission in evidence before the jury he made an independent finding that it was voluntarily made.

The issue as to the voluntary nature of the written statement was properly submitted to the jury in the court’s charge.

At the time said written statement was offered into evidence the appellant made no objection, and it was admitted in evidence and read to the jury without objection. In the absence of any objection to the admission of said statement at the time it was offered in evidence before the jury no error is shown. 5 Tex.Jur.2d 67, Sec. 40; O’Conner v. State, Tex.Cr.App., 373 S.W.2d 245; Clemons v. State, Tex.Cr. App., 398 S.W.2d 563; Watts v. State, Tex. Cr.App., 408 S.W.2d 106.

Error is urged on the ground that the appellant has been denied a part of the record in the cause, that is, a transcription of all the argument to the jury.

At the beginning of this trial the appellant filed the following motion:

“Now comes Leon R. Born hereinafter called defendant in the above styled and numbered cause by and thru his attorneys of record and requests the court to cause all of the argument of counsel to be transcribed by the official court reporter that is allowed, by law, and in this connection defendant says that he is too poor to pay for same and further herein that he does not have property to pledge for said transcript of said remarks and summaries by the said attorney or attorneys in the summation to the jury in said cause.”

The above motion was granted by the court.

Art. 40.09, Sec. 1, Vernon’s Ann.C.C.P., provides as follows:

“In all cases appealable by law to the Court of Criminal Appeals, the clerk of the court that entered the conviction sought to be appealed from shall, under his hand and seal of the court, make and prepare an appellate record comprising a true copy of the matter designated by the parties, but shall always include, whether ■ designated or not, copies of the material pleadings, material docket entries made by the court, the charge, verdict, judgment, sentence, notice of appeal, any appeal bond, all written motions and pleas and orders of the court, and bills of exception.”

Art. 40.09, Sec. 2, C.C.P., reads:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”

Art. 40.09, Sec. 4, C.C.P., provides in part:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments.”

Art. 40.09, Sec. 5, C.C.P., provides:

“A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record * *

Art. 40.09, Sec. 7, C.C.P., provides:

“Notice of completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel.”

The only request for the transcription of the jury argument was made by motion filed November 30, 1965, the date the trial began. This motion was referred to in appellant’s brief filed August 31, 1966, before the approval of the appellate record on November 17, 1966. Appellant’s brief recites that no notice of the completion of the rec-cord had been received at the time of the filing of his brief. The appellate record fails to affirmatively show whether the appellant had notice of the completion of the record. The order of approval of the record by the trial judge recites that no objection in writing was made to the record. The appellant approved the statement of facts by signing it on June 27, 1966. In appellant’s brief he makes numerous references to the transcript which was certified by the clerk of the trial court as correct on July 15, 1966.

From the record, it appears that the appellant has failed to exercise due diligence to obtain a transcription of the jury argument and timely furnish it to the clerk for inclusion in the record. Art. 40.09, Sec. 5, C.C.P.

The appellant closes his brief with the plea that he was mentally incapable of protecting his rights and had been continuously confined in jail since his arrest.

The court charged the jury that if at the time the appellant made any written statement, if he did, he did not know what he was doing, or did not know and realize the nature and effect of his act or acts, if any, then to disregard said statement, if any, and not consider it for any purpose.

The court also charged the jury upon the law of insanity.

It appears that appellant’s rights were fairly and adequately protected during the trial.

Due to an order contained in the record extending the time for filing five formal bills of exception, which the court nevertheless had marked refused because they were not filed in time, the bills have been considered. They present substantially the same contentions hereinabove reviewed and none reveal error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Joseph Angelo CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 40085.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied March 15, 1987.

      Ben G. Levy, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and W. Louis White, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the felony offense of possession of a pistol away from the premises upon which he lives by an ex-convict; the punishment, two years.

The grounds of error urged by appellant by brief filed in the trial court will be discussed. He first contends that the court erred in failing to define the word “Premises” in his charge. Traylor v. State, 91 Tex.Cr.R. 262, 239 S.W. 982, is authority for the proposition that such word need not be defined in the charge.

He next contends that the court erred in failing to grant a mistrial when the prosecutor questioned appellant about prior convictions which he contends were too remote. Though the questions were not propounded in the proper sequence, the court sustained the objections to the first questions, and it was later developed that there had been intervening convictions, which bring this case within the rule announced in Walker v. State, 166 Tex.Cr.R. 297, 312 S.W.2d 666, where we said, “The convictions, taken together, clearly evidence appellant’s failure to reform and were therefore not subject to his objection of being too remote.”

His last contention is that the statute (Article 489c, Vernon’s Ann.P.C.) under which he was prosecuted is unconstitutional. We find no merit in this contention. See Long v. State, 170 Tex.Cr.R. 177, 339 S.W.2d 21S.

Finding no reversible error, the judgment is affirmed.


text:
    Manzell SENTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40142.
    Court of Criminal Appeals of Texas.
    March 1, 1967.

      James H. Martin, Dallas, for appellant.
    Henry Wade, Dist.'Atty., Robert H. Stin-son, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is hog theft; the punishment is confinement in the Texas Department of Corrections for ten years.

Appellant’s sole ground of error is the sufficiency of the evidence to support the “taking” of the six hogs alleged in the indictment.

The record reveals that on April 6, 1966, the date of the offense, Herman Pinson, the complaining witness, was the owner of a 20 acre hog farm in Dallas County where he was raising 500 hogs. The rectangular-shaped farm was completely surrounded by hog proof fencing and there was only one entrance gate. A number of pens were located on the farm. As we understand the record, the particular pens in question in the case at bar consisted of a small feeding pen adjacent to a loading pen which adjoined a loading chute. The feeding pen is entered from the pasture area by a gate. Another gate leads from the feeding pen into the loading pen, and the loading pen is separated from the loading chute by a locked gate to which only Pinson had a key. Pinson testified that when he left the farm on the day in question there were no hogs in the pens and chute described above and the gates were all closed. He further testified that he did not give the appellant consent or permission to take any of his hogs.

Charles Kale, an employee of Pinson’s, secreted himself in an old truck on the farm to watch the hogs shortly after Pinson left at 5 :00 p. m. on the day in question. At approximately 8:00 p. m. that evening Kale heard noises at the pens in question and saw three men. After some time elapsed Kale related, “I moved up close to the fence, and I watched where they were shutting the gate on the hogs and they got them in there.” He testified that at this time the three men had six hogs in the loading pen. Kale then hurried to the home of a nearby neighbor, Andrew Brashear, to enlist his aid. Brashear and Kale returned to the pens and observed all three men lift two of the six hogs out of the loading pen over the four-foot locked gate into the opened end loading chute. At this point Kale and Brashear apprehended the three men at gun point. The Sheriff’s office was called and a deputy subsequently arrived and arrested the appellant and the two other men. Shortly after the arrest, the deputy, Bobby Baker, discovered an empty pick-up truck parked a quarter of a mile from the farm and took it into custody. Both Kale and Brashear identified the appellant as one of the three men involved. In describing the activities of the three men in the loading pen, Brashear observed that the appellant appeared to be in the “lead.” The appellant offered no testimony at all.

In his brief appellant admits that a careful review of the facts reveals without a doubt an intent to steal the hogs and that great effort was made to maneuver the hogs into a place where they could be loaded into a vehicle and carried away. It is his contention, however, that evidence fails to show that the appellant obtained the complete, independent and absolute possession and control of the hogs adverse to that of the owner; that the evidence establishes only an “attempt to commit theft” and there is no such offense. He contends that the hogs were still on the owner’s property, and to have completed the offense of theft the hogs would have to have been loaded into a vehicle capable of asportation, although asportation is not necessary.

There is no such offense as “attempt to commit theft”, but with the remainder of appellant’s contention we cannot agree.

In 1 Branch’s Ann.P.C., 2nd Ed. p. 66, Section 2614, the rule is well stated:

“To constitute a taking, the property must be brought under the dominion and control of the defendant with the power to take it into his manual possession; if the property is attached to the owner or to something else the taking is not complete if the attempt to take it is interrupted before it is severed or detached.”

The text is supported by a number of authorities cited therein. See also Article 1412, Vernon’s Ann.P.C.; SS Tex.Jur.2d, p. 290, Sec. 15. The record does not reveal where on the farm the six Pinson hogs had been before they were observed in the pens in question with the appellant and his companions. We do know that the pens were empty when Pinson left at 5:00 p. m’. on the day in question. Kale testified he saw three men running around the farm beating sticks together for some time prior to seeing the hogs in the particular pen. It appears, though, the hogs were removed from their accustomed place. It is further obvious that at least two gates had to be opened and closed to get the six hogs into the loading pen. They were seen shutting one of the gates on the hogs, and they were observed to have lifted two hogs over the gate into the loading chute. Though the hogs had' not been carried away at the time of the apprehension, the evidence supports the fact that there had been a reduction to control and manual possession of the appellant and his companions.

In Jarrott v. State, 108 Tex.Cr.R. 427, 1 ’S.W.2d 619, it was pointed out that this Court has frequently held that one charged with theft may acquire that character of possession necessary to constitute his taking theft, even though the property is not removed from the presence of or the premises of the owner.

In Rodriquez v. State, Tex.Cr.App., 71 S.W. 596, it was said:

“ * * * It has been held that, where the evidence shows that a party charged with theft from the person had succeeded in placing his hand in the pocket of the person from whom the property was sought to be taken, and had grasped the pocketbook, and was in the act of extricating it from the pocket, the theft was complete. For collation of authorities, see Files v. State, 36 Tex.Cr.R. 206, 36 S.W. 93. But in those cases the alleged thief had gotten the property clearly within his possession; his hand had grasped and taken control of the pocketbook. Where that is the case, the removal of the property is not necessary * * * »

See also Harris v. State, 29 Tex.App. 101, 14 S.W. 390; Esparza v. State, Tex.Cr. App., 367 S.W.2d 861.

In support of his contention appellant cites Rosenbush v. State, 136 Tex.Cr.R. SO, 122 S.W.2d 1071; Clark v. State, 59 Tex. Cr.R. 246, 128 S.W. 131, 29 L.R.A.,N.S, 323; Herr v. State, 52 Tex.Cr.R. 53, 105 S.W. 190; Tarrango v. State, 44 Tex.Cr.R. 385, 71 S.W. 597; and Rodriquez v. State, Tex.Cr.App., 71 S.W. 596.

Rosenbush, supra, is clearly distinguishable upon its facts from the case at bar.

Herr, supra, and Clark, supra, were cases where the property attempted to be taken was attached to other property of the owner from which attachment there was no severance at any time. This same point was discussed in the Rodriquez and Tarrango cases, supra.

We do not regard the doctrine of these cases as applicable here. See Jarrott v. State, supra.

The trial judge carefully instructed the jury in his charge that:

“One of the essential elements of 'the offense of hog theft is the ‘taking’ of the animal by the accused. .You are charged that to constitute a ‘taking’ within the meaning of the statute, the hogs in question must be brought under the dominion’ and control of the accused, with the power to take said hogs into his manual possession, to the complete dispossession and control of owner. The length of time of such possession and control is immaterial, however,«the possession and control by the defendant must be complete.”

The evidence is sufficient to support the jury’s verdict.

The judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    The PEPPERMINT LOUNGE, Appellant, v. TEXAS LIQUOR CONTROL BOARD, Appellee.
    No. 7686.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1967.
    Gillespie & McClendon, Lubbock, William J. Gillespie, Lubbock, of counsel, for appellant.
    Waggoner Carr, Atty. Gen., Howard M. Fender, Douglas H. Chilton, Asst. Attys. Gen., Douglas H. Chilton, Austin, of counsel, for appellee.
   NORTHCUTT, Justice.

This is an appeal from the judgment of the district court affirming an order of the Texas Liquor Control Board suspending Peppermint Lounge’s (a private club) permit for a period of ten days. On June 7, 1966, the Liquor Control Board issued its order suspending Peppermint Lounge’s private club registration permit No. 42258. That order was appealed to the 137th District Court of Lubbock County, Texas. On June 28, 1966, a hearing was heard before Judge Ellis of the 137th District Court and judgment entered on June 30, 1966, affirming the action of the Texas Liquor Control Board. The judgment of the district court recited: “That said order of suspension by agreement of the counsel for the Texas Liquor Control Board and attorney for plaintiff shall be effective on July 11, 1966, and shall suspend said permit for a period of ten (10) days until July 21, 1966.” No notice of appeal was given in the judgment. On July 7, 1966, Peppermint Lounge gave notice that it desired to appeal from the judgment entered on June 30, 1966. On the same date, July 7, 1966, Judge Davison, judge presiding, 137th District Court, Lubbock County, Texas, acting under Rule 330, Rules of Civil Procedure, entered an order fixing supersedeas bond and on the same date, July 7, 1966, supersedeas bond was given and approved. On July 13, 1966, two days after the suspension was to take effect Peppermint Lounge requested a transcript of the proceedings in the district court. Transcript was filed in this court on July 19, 1966. Hereafter Peppermint Lounge will be referred to as appellant and Texas Liquor Control Board as appellee.

The first question presented relates to the action of the court in permitting appellant to suspend the judgment by filing a super-sedeas bond.

We are of the opinion, and so hold, that unless the supersedeas bond was permitted to be filed to suspend the judgment pending appeal, the bond herein would be void. The matters here involved concern regulations of private clubs as provided for under the terms of Article 666-15(e), Texas Penal Code. The Texas Liquor Control Board cancelled appellant’s permit for a period of ten days. That order of suspension was taken to the district court where hearing was had and the suspension sustained. It is appellant’s contention the trial court erred in applying the substantial evidence rule and placing the burden of proof upon it and there was insufficient evidence to suspend its permit and that the hearing was not a de novo proceeding. Subdivision 7a of Article 666-15(e) provides that the proceedings on appeal in the district court shall be de novo under the same rules as ordinary suits with the following exceptions which shall be considered literally; i. e., that the final judgment of the district court shall not be modified or suspended pending appeal. So far as we have found that subdivision has never been passed upon by our courts. However, an exact provision of Article 666-14 (d) dealing with liquor permits and suspensions has been determined and we think is controlling here. In Hallum v. Texas Liquor Control Board, 166 S.W.2d 175 (Tex.Civ.App.-Dallas, 1942, writ ref’d) it was held the court erred in permitting appellant to supersede the judgment pending appeal and quashed the supersedeas bond. To the same effect is Stubbs v. Texas Liquor Control Board, 166 S.W.2d 178 (Tex.Civ.App.-Dallas, 1942, writ ref’d w. o. m.) ; Mayhew v. Power, 104 S.W.2d 642(Tex.Civ.App.-Fort Worth, 1937) ; and Bacon v. Texas Liquor Control Board, 106 S.W.2d 382 (Tex.Civ.App.-Fort Worth, 1937). The ten days suspension, as provided for in the trial court’s judgment, was in effect before the record was filed in this court, and the full ten days of suspension had expired two days after the record was filed here, and the full time of suspension had passed before we could consider the case.

For the reasons heretofore stated the supersedeas bond issued by appellant is quashed as the judgment of the court suspending appellant’s permit cannot be superseded by a supersedeas bond, therefore this appeal is dismissed as moot.

Appeal dismissed.


author: DAVIS, Justice.

text:
    Charley PICKFORD et al., Appellants, v. Tyme O. BROADY et vir, Appellees.
    No. 7786.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1966.
    Victor F. Branch, Baker, Branch & Mc-Gehee, W. T. Dorman, Houston, for appellants.
    Frank Catón, William C. Bullard, Baker, Botts, Shepherd & Coates, Houston, for appellees.
   DAVIS, Justice.

A suit for damages. Plaintiff-appellant, Phillips Kingston Pickford, a minor, testified on direct, cross, re-direct and re-cross examination with respect to liability as a result of an accident that happened in the intersection of Bank Street and South Sheppard Street in the City of Houston. Defendants-appellees, Tyme O. Broady, et vir., agreeing to the presentation of further evidence with respect to damages, filed a motion for instructed verdict on the theory that the minor appellant was guilty of negligence as a matter of law.

The evidence shows that on June 17, 1963, while the minor appellant, a 13 year old boy, riding his bicycle in a westerly direction on the south side of Bank Street when he approached an intersection of Bank Street with South Sheppard Street. Bank Street was a two-way street. South Sheppard was a one-way street with all traffic going north. When minor appellant reached South Sheppard Street, he stopped in obedience to a stop sign. He testified that he was riding his bicycle on the left side of Bank Street because he had been taught to do so. He testified that he looked to the south and noticed an automobile about a block away on South Sheppard Street. He started across and he saw this lady (the appellant) coming at him real fast. She didn’t seem to be looking. He testified that she was looking off and she hit him. He testified that she was looking to the passenger side of the car. He testified that he proceeded on into the street because he thought he had plenty of time to make it across. He testified that the lady was driving a Blue Starfire, was speeding, and that he was about half way across South Sheppard when he was struck by her car. The trial court granted a motion for instructed verdict. Appellants have perfected their appeal and bring one point of error.

By their point of error, appellants say the trial court erred in granting the motion for instructed verdict because they had plead and presented a prima facie case of negligence, which proximately caused the injuries in question, and there was no evidence of contributory negligence as a matter of law.

The evidence must be construed in the light most favorable to appellants. 4 Tex.Jur. 259, Sec. 756; 4 Tex.Jur. 384, Sec. 1835.

We have carefully examined the entire record. The pleadings allege negligence and a cause of action for damages.

The evidence shows the minor appellant was travelling West on Bank Street. He stopped in obedience to a stop sign as he approached South Sheppard Street. He looked to his right and saw a car about a block away, and decided that he could cross the street before the car reached him. While he was crossing South Sheppard Street, and after he had entered the intersection, he looked towards the car again and saw that it was approaching him very fast. He noticed that the appellee was looking towards the passenger side of her vehicle as she entered the intersection. She was speeding. The impact occurred about 15 feet West of the East curb line of South Sheppard Street. The minor appellant suffered severe damages. The evidence is sufficient to show that the negligence of the appellee was proximate cause of the damages. There is no evidence of any negligence on the part of the minor appellant. The special issues should have been submitted to the jury. 4 Tex.Jur. 384, Sec. 835, and the authorities therein cited. The point is sustained.

The judgment of the trial court is reversed and the cause is remanded.


text:
    C. B. HAZEL, Appellant, v. MAGNET COVE BARIUM CORPORATION, Appellee.
    No. 7774.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1966.

      Patrick J. Kennedy, San Antonio, for appellant.
    Clarence C. Meyer, Eastham & Meyer, Houston, for appellee.
   DAVIS, Justice.

A suit on a promissory note. Plaintiff-appellee sued defendant-appellant on a promissory note. The trial court granted a summary judgment on the appellee’s pleadings. Appellant filed a verified amended original answer, and also filed an affidavit in response to the motion for summary judgment. In the verified pleadings and reply, appellants alleged fraud, error, duress or mistake, and failure of consideration. The appellee did not attach a copy of the note to his pleadings. Appellant has perfected his appeal, and brings forward five points of error.

By the points of error, appellant says the trial court erred because neither the original note, a certified copy, or a sworn copy was attached to the appellee’s pleading or motion; there was no evidence before the trial court, whether by pleading, affidavits or otherwise that the appellee was the present owner and holder of said note; in holding that the promissory note sued on was based on a valuable consideration when the appellant’s verified pleadings and affidavit contesting the failure of consideration raised material issues of fact; appellant’s pleadings and affidavit raised material fact issues of fraud; and, in holding that there had been a novation by the parties of accord and satisfaction.

In contesting the points of error, appellee says the note was exhibited to the court at the hearing. Unless the note was made a part of the pleadings, the trial court could not consider the same for any purpose. He must make up his mind from the pleadings, affidavits and depositions, if any, on file at the time. The material fact issues raised by the pleadings are fraud, error, duress or mistake, and failure of consideration. Ragsdale v. McLaughlin, (CCA, 1956) 285 S.W.2d 467, Error Dismissed; Snyder v. Jones, (CCA, 1965) 392 S.W.2d 504, W.R.,N.R.E.; Alexander v. Houston Oil Field Material Co. (CCA, 1965) 386 S.W.2d 540, W.R..N.R.E.

The points of error are sustained. The judgment of the trial court is reversed and the cause is remanded.


author: WILSON, Justice.

text:
    AUT-O-CEL COMPANY, Inc., et al., Appellants, v. HOUSTON PLASTIC PRODUCTS, INC., Appellees.
    No. 4574.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1967.
    Rehearing Denied Feb. 23, 1967.

      Arthur L. Forbes, Houston, for appellants.
    Barrow, Bland & Rehmet, Sidney Farr, Charles M. Leftwich, Houston, for appel-lees.
   OPINION

WILSON, Justice.

Two appeals arising from four related causes of action are presented. Disregarding of jury findings by the trial court is the basis for complaint. We affirm.

Houston Plastic Products, Inc. sued and recovered judgment against Aut-O-Cel Company for debt. This portion of the judgment is not assailed. Ancillary to its action for debt, Houston Plastics obtained issuance of a writ of attachment against physical assets of Aut-O-Cel. The latter defendant filed a cross-action alleging damages for breach of warranty and for wrongful attachment.

Aut-O-Cel, as dealer, marketed a unique battery under franchise. Brazell, its president, owned a set of “Series 200” battery case molds which he loaned to Houston Plastics for molding Aut-O-Cel’s battery cases. When Houston Plastics’ debt action was filed and the attachment issued, Brazell notified Houston Plastics by letter that he planned to “have these molds picked up” on a specified date, and requested they be “set on pallets for fork-lift handling,” for “a truck to pick them up as I instruct”; that he wished the molds released to him; and that he be notified that they were available.

The court disregarded jury findings in Brazell’s conversion action that he demanded the return of the Series 200 molds, which he owned, and that Houston Plastics refused to deliver them, to his damage in the sum of $15,000.

It is not necessary for us to pass on whether there was evidence to support any of the findings except that concerning refusal to deliver. There is no evidence that Brazell sent any trucks to pick up the molds, or came after them. There is nothing to indicate Houston Plastics refused to surrender them, repudiated Brazell’s title or right to possession or exercised any inconsistent dominion over the chattels. The court properly disregarded the finding, and, as a consequence, conversion was not established. Presley v. Cooper, 155 Tex. 168, 284 S.W.2d 138, 141; Hull v. Freedman, Tex.Civ.App., 383 S.W.2d 236, 238, writ ref., n. r. e. The judgment on Brazell’s appeal is affirmed.

Aut-O-Cel’s appeal first attacks the trial court’s action in disregarding jury findings in its action for wrongful attachment to the effect that Houston Plastics did not have probable cause to believe Aut-O-Cel was about to secrete its property for the purpose of defrauding creditors, and which assessed damages. After disregarding these findings judgment was rendered that AutO-Cel take nothing.

The evidence to support the contention that probable cause existed consists for the most part in testimony that Aut-O-Cel was delinquent in paying Houston Plastics for products delivered, that it told the creditor it had no money, notwithstanding it was selling batteries made from cases Houston Plastics had furnished. The evidence is not controverted, and in this state of the record we think the court properly disregarded the finding as to absence of probable cause for appellee’s belief.

Aut-O-Cel relies on Anderson v. Byrum, Tex.Civ.App., 73 S.W.2d 571,. no writ. There, however, the affidavit for the writ recited that the debtors “have disposed” of their property with intent to defraud creditors, and the court held that since the affidavit was “based alone” on failure to pay a debt, it was insufficient. That is not the present case. It is not necessary for us to decide whether the evidence did not support the finding as to damages on this phase of the case.

Aut-O-Cel finally presents points as to no evidence and preponderance of the evidence concerning adverse jury findings in its cross-action for breach of warranty. The jury returned a negative answer to an issue as to whether Houston Plastics failed to manufacture battery cases of suitable workmanship and quality as agreed, and found Aut-O-Cel _ sustained no damages. We have considered these contentions and the points are overruled. Affirmed.


text:
    J. P. BOWLES, Appellant, v. Bob LINDLEY ef ux., Appellees.
    No. 7678..
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1967.
    Rehearing Denied Feb. 27, 1967.

      Albert Smith, Lubbock, for appellant.
    Paul New, Denver City, for appellees.
   NORTHCUTT, Justice.

This is a common-law personal injury suit growing out of a three-car rear-end collision. The suit was brought by Bob Lindley and wife, Mary Dell Lindley, as plaintiffs, against J. P. Bowles, as defendant, to recover damages sustained by the plaintiffs and their minor son, David Wayne Lindley. The parties will hereafter be referred to as they were in the trial court.

Plaintiffs alleged that on or about September 29, 1964, they were riding as passengers in a 1962 Oldsmobile owned and driven by Forrest Freeman. The automobile in which the plaintiffs were riding was traveling east down 19th Street in Lubbock and when they reached an intersection, they stopped behind two other cars waiting for a red light to change. While they were stopped, another vehicle driven by a Mrs. Schank approached from the west and stopped to the rear of the car in which plaintiffs were riding and while these cars were stopped and waiting for the light to change, the defendant approached from the west and struck the Schank car, knocking it into the rear of the car in which the plaintiffs were riding. The plaintiffs alleged certain damages to each plaintiff and also to their minor son and prayed for the total amount of all damages in the sum of $51,000.

The case was tried to a jury upon special issues. The jury found the defendant failed to keep a proper lookout for the automobile in which plaintiffs were riding and same was a proximate cause of the injuries to Mary Dell Lindley; that defendant failed to apply his brakes in time to avoid the collision; such failure was negligence and a proximate cause of the damage; that Mrs. Schank stopped suddenly but the same was not the sole • proximate cause; that defendant was not driving his vehicle at an excessive rate of speed; that the collision was not the result of an unavoidable accident and that $7,500 would fairly and reasonably compensate Mrs. Lindley for such injury and damages. No issue was submitted as to Mr. Lindley’s injuries. Judgment was granted that Bob Lindley and wife, Mary Dell Lindley,. recover of and from J. P. Bowles the sum of $7,500. From that judgment the defendant perfected this appeal.

By his first point of error the defendant contends the court erred in refusing to submit the defendant’s sole proximate cause issue. The defendant pleaded that the action of Freeman in suddenly applying his brakes constituted the sole proximate cause of the collision. Alternatively the presence of dust or powder-like substance on the street constituted the sole proximate cause of the collision. In the further alternative a combination of the action of Freeman in applying his brakes suddenly and the presence of dust or powder-like substance on the street constituted the sole proximate cause of the collision. The issue requested by defendant as to sole proximate cause was (a) “Do you find, from a preponderance of the evidence, that on the occasion in question there was some substance on the-street?” (b) “Do you find, from a preponderance of the evidence, that the presence of a substance on the street, if you, have so found, was not the sole proximate cause of the collision?”

There were no pleadings in this case of unavoidable accident. Neither were there any pleadings or evidence to justify any issue that the acts of Mrs. Schank were the sole proximate cause of the collision here involved. However, since we are of the opinion the case must be reversed on other matters, we deem it unnecessary to pass upon any of defendant’s points of error except Point 4, hereafter considered, as they may not arise in another trial. We are of the opinion, however, and so hold, that if the substance on the street was responsible for defendant’s car knocking the Schank car into the Freeman car causing the damage, it must be because of some act of negligence on the part of the defendant which occurred prior to the hitting of the substance on the street, if any. Dallas Transit Company v. Tolbert, 337 S.W.2d 617 (Tex.Civ.App.-San Antonio, 1960, writ ref’d nre). It is further held in that case as follows: “At most the issue should have been - confined to the wet condition of the street as such a cause.”

By defendant’s fourth point of error it is contended the trial court erred in refusing to confine the jury in their assessment of damages to the damage which resulted from defendant’s negligence. The accident here in question occurred on September 29, 1964. Slightly more than two months before the accident here involved, the plaintiffs were injured in a rear-end collision just like the one here and received the same kind of injuries to the neck, back, and continued headaches. On September 9, 1964, Mr. Lindley stated that Mrs. Lind-ley was still having pretty serious headaches. On that same date Mrs. Lindley stated that her neck was still bothering her and she believed she would go see a chiropractor about it and did go to see the chiropractor about September 19, 1964, about her neck and headaches.

The trial court in charging the jury as to the matters they might consider in arriving at the amount of damages charged as follows:

“(a) Physical and mental pain and suffering, if any, as you may find from a preponderance of the evidence Mary Dell Lindley has sustained from the time of her injuries on the 29th day of September, 1964, to the date of this trial, and such physical pain and mental anguish, if any, as you may find from a preponderance of the evidence Mary Dell Lindley will in reasonable probability sustain in the future beyond this date.
“(b) Loss of earnings and capacity to work and earn money and perform household duties (which includes such aid, comfort, assistance and society of the wife in her condition at the time of injury as might reasonably have been expected, to her husband in the circumstances and conditions of their environment), if any, of Mary Dell LindZy since the date of her injuries, if any, to the present date, and such loss of earnings and capacity to work and earn money and to perform household duties in the future, if any, which she will reasonably and probably experience as a result of the accident in question. And you may further find for plaintiff whatever amount you may find from a preponderance of the evidence she has paid or become liable to pay for medical attention, hospital bills, mirse hire, but only in such amount as you may find to have been reasonable and necessary.
“(c) You are further instructed that in connection with answering the issue, you must exclude from your estimate any compensation for impairment, if any, and suffering, if any, of Mary Dell Lindley, which may have been or will be due solely or partly to ailments or physical conditions, if any, which she may have had before the accident, but if you find from the evidence that the injuries, if any, have aggravated or will aggravate any ailments or physical conditions, if any, which plaintiff may have had prior to the time of the alleged injuries, then you may consider in your estimate such aggravations, if any.”

It is stated in Dallas Ry. & Terminal Co. v. Ector, 131 Tex. SOS, 116 S.W.2d 683 (1938) as-follows:

“It has long been a settled rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for improper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence. In cases submitted upon a general charge that rule has been many times announced and applied. St. Louis [Southwestern] Ry. Co. of Texas v. Johnson, 100 Tex. 237, 239, 97 S.W. 1039; Gulf, C. & S. F. Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S.W. 66; Galveston, H. & S. A. Ry. Co. v. Coker, Tex.Civ. App., 135 S.W. 179, error refused; Gulf, C. & S. F. Ry. Co. v. Brown, 16 Tex.Civ. App. 93, 40 S.W. 608, error dismissed; 17 C.J. 1074, § 378.”

In confirming the holding in the Ector case, supra, the court in the case of Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862 (1948) stated:

“It therefore appears that for the rule of the Ector case to apply, there must be: (a) Evidence of a definite infirmity on plaintiff’s part aside from injury due to the accident; (b) evidence of causal connection — which might be close proximity in time — between such infirmity and some pain or disability suffered after the accident; and (c) confusingly close ‘intermingling’ between the infirmity not due to the accident and that due to the accident, so that the jury might be misled into awarding money for the total pain and disability accruing from both, rather than for that accruing only from the accident.”

See also Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 SW. 2d 877 (1954) where it is stated:

“Plaintiff attacks the holding of the Court of Civil Appeals which sustained defendant’s objections to the .trial court’s Issue No. 12, and the accompanying instruction. The Court of Civil Appeals held that the trial court should have submitted instructions which would have affirmatively limited the jury’s consideration to aggravation by defendant’s negligence, if any, of plaintiff’s arthritis as testified to by plaintiff’s witness, Dr. Barry. Since the case must be retried, we will not comment upon this testimony. However, if upon another trial the evidence in the case raises the fact issue as to part of the damages being due to a prior condition of arthritis, the matter of special issues in this Connection will be governed by the law as declared in Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, and Dallas Ry. & Terminal Co. v. Orr. 147 Tex. 383, 215 S.W.2d 862.”

We are of the opinion, and so hold, that since there were the two collisions of the exact nature and so close together and like items of damages, that the trial court erred in not limiting the jury to the damages which resulted from the defendant’s negligence by affirmatively charging the jury that the plaintiff was entitled to recover only to the extent that her injuries were aggravated by defendant’s negligence, as provided in the last three mentioned cases.

Judgment of the trial court is reversed and remanded.

DENTON, C. J., dissents.


author: FRASER, Chief Justice.

text:
    TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Edgar M. PITTSFORD, Appellee.
    No. 5810.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 1, 1967.
    Rehearing Denied March 1, 1967.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellant.
    John R. Lee, Kermit, John Howze, Mon-ahans, for appellee.
   OPINION

FRASER, Chief Justice.

This is a Workmen’s Compensation case in which the plaintiff, Edgar M. Pittsford, appellee here, recovered judgment on a jury verdict for total and permanent disability. Appellant’s amended motion for new trial was overruled and appeal has been duly perfected. Appellee claims that his injury was sustained while working at or on a drilling rig. The occurrence of the injury is not contested, the case having been tried on matters relating to the amount and extent of appellee’s injury.

Appellant maintains that the appellee, who apparently was hurt on the first night that he went to work on a drilling rig, was not totally and permanently disabled. In the first two points appellant sets out that appellee Pittsford showed more earnings after the injury than before, alleging that Mr. Pittsford averaged around $26.00 a week prior to the accident, and that from the month following his injury and on up to the trial, he was earning more than three times that amount. Appellant also points out that Dr. Gibson, who was ap-pellee’s doctor, referred Mr. Pittsford to a specialist in neurosurgery, one Dr. Hooker. Dr. Hooker was not used as a witness, but appellee’s doctor, Dr. Gibson, testified that Dr. Hooker did not find any neurological involvement and basically did not agree with Dr. Gibson’s diagnosis relative to ap-pellee’s condition. Dr. Gibson is a general practitioner, and Dr. Hooker a specialist. Appellant also emphasizes the fact that Pittsford, in 1963, which was some time before the injury herein concerned, sustained injuries in falling from a moving truck, such injuries including broken bones; and that later in the same year, 1963, he injured his right foot while riding in a sand buggy and developed an infection therefrom; and that subsequent to the date of the injury in controversy, he had an accident which rendered his car totally useless, but we do not find any evidence there of personal injury. In this connection Pittsford himself testified that the car was damaged so badly that it was not worth repairing.

We believe that these two points must be overruled. This, of course, is a fact question and was determined by the jury selected to hear the case and pass on these matters. It appears from the record that appellee Pittsford testified that after his injury at the well, he worked at various jobs under difficult health conditions, including pain, and that he was under a compelling economic necessity to do so. Among other things Pittsford testified that he had to abandon a cervical collar when he went to work as a barber because such collar practically immobilized him so that he couldn’t turn his head or move around easily; that he had to wear, and was wearing at the time of the trial, a back brace or corset; that he had to wear the corset constantly, and that the one he had on at the time of the trial was the third one he had used because he had worn out two others; and that he was in pain at the time of the trial. He described the pain in his neck, back and shoulder; that he had to wear the corset all the time and occasionally had to wear it while trying to sleep. That he was in the hospital in August (presumably in 1964) for eleven days, and that Dr. Gibson was in constant attendance during that period; that he had had to take treatment described as traction and ultrasonic, as well as pain shots; that his original vocation was that of barber, and that subsequent to his injury he worked for several barber shops and, although he made more money than he had made before the injury, that he couldn’t work steadily because he would have to stop work, replace the cervical collar and go into another room and lie down. That he worked for two other barber shops, but that he couldn’t work on children or do “flatttops” because he couldn’t move around to do this type of work. The last barber shop in which he worked was one owned or operated by a Mr. Dave Melton. Mr. Melton testified that appellee worked for him for several months; that he had to turn down customers like small children; that he, Melton, had observed appellee after he had tried to work on flattops and children, and that he would see Mr. Pitts-ford sitting down with his whole shoulder and arm trembling or shaking, and that because of Pittsford’s inability to work steadily, as did the other barbers he had to let him go, and that part of Pittsford’s absenteeism was caused by his being in the hospital or being unable to come to work. Dr. Gibson testified that appellee’s injuries and the conditions resulting therefrom were permanent; that Pittsford could no longer work as a barber, or as a roughneck in the oil field and could not lift and do heavy work of any kind; that he could not work as a carpenter’s helper because of the activities required by such work; that he could not work as a painter for the same reason, all of which occupations Pittsford had had some some experience in; and finally, Dr. Gibson testified that the present disability or incapacity of appellee was the result of the accident sustained when the tongs hit him and pinned him up against the drawworks while he was working on the drilling rig as an employee of the Hillin Drilling Company. In addition, ap-pellee’s wife testified to his pain and disability subsequent to the accident.

We think that the evidence referred to above was sufficient to warrant the submission of and answers to the issues involving total and permanent disability.

Appellant cites us to various cases which appellant urges indicate that it should be held that Pittsford was not totally and permanently disabled. Part of this argument is based on the fact that, assuming that there was evidence that ap-pellee could no longer work as a barber, at the time of the trial, appellee had nevertheless secured a job as sales trainee, selling cars on an $80.00 per week guarantee. It does not appear that the cases cited by appellant are sufficiently applicable to the present case. Without discussing these cases and the fact situations therein involved, we do not think that there is any authority cited comparable to the situation in testimony before the jury in this case— to-wit, that appellee could no longer work as a barber, painter, carpenter’s helper, or in the oil field business as a roughneck, and it is indicated that the work he was doing as trainee and car salesman did not cause him the pain and discomfort that trying to work as a barber or in these other occupations did. We believe the rule to be that the ability of the claimant or injured person to pursue some one type of work or economic endeavor does not pre-dude him from recovering for total and permanent disability, and this is a logical presumption, we think, because the majority of the skills or work that appellee had been working in and trained for were no longer available to him; and he was, in fact, working and trying to hold a job in a field in which he had never worked before, to-wit, trainee and salesman in the car selling business. It is obvious that should he lose this job, according to the testimony of the doctor, he could not go back to any of his previous types of occupation. There are many cases holding similarly and, as stated in Texas Employers Insurance Association v. Smith, Tex.Civ. App., 374 S.W.2d 287 (n. w. h.), there seems to be no fixed rule of evidence other than that the injury has precluded the claimant from the usual tasks of a workman, so that he cannot find and retain employment. We also cite State Automobile & Casualty Underwriters v. Reagan, Tex. Civ.App., 337 S.W.2d 522 (n. w. h.). Examination of these and other cases convinces us as stated above, that a situation like the one here presents a fact matter to be determined as such, and we find here that there was not only evidence to sustain the finding, but ample and sufficient evidence to warrant the jury’s finding that appellee was totally and permanently disabled. Appellant’s first two points are therefore overruled.

Appellant’s third and fourth points maintain that the trial court erred in sustaining objection to jury argument as to the failure of appellee’s counsel to ask Dr. Gibson about Dr. Hooker’s findings, and that the trial court further committed error in permitting appellee’s counsel to argue to the jury, over objection, that appellant’s counsel had tried to inject prejudice concerning Dr. Hooker’s findings, and that the court was wrong in sustaining appellee’s contention that he could not have called Dr. Hooker because such testimony would have been hearsay as to appellee, and implying that appellant was at fault in not having Dr. Hooker at the trial.

We believe these two points must be overruled because, in our opinion after having carefully considered the errors herein alleged in the light of the entire case as presented, we do not believe there was any error here of sufficient severity to warrant reversal or to suggest that an improper verdict had been rendered as a result of or because of the error or errors complained of. It must be remembered that appellant did cross examine Dr. Gibson, and brought out in evidence before the jury that Pittsford had been sent to Dr. Hooker by Dr. Gibson, and that Dr. Hooker did not find any neurological involvement and, as a matter of fact, did not agree with the diagnosis and findings of Dr. Gibson; so the controversy in these two points involves only jury argument. It is evident that either side could have called Dr. Hooker, or procured and offered his testimony, but neither did. It is also in evidence that appellant argued to the jury that had it not been for the cross examination by the attorney for appellant, the jury would never have known that Dr. Hooker did not agree with Dr. Gibson. We do not find any particular harm in allowing such jury argument, and we do not find that its exclusion amounted to reversible error, as the jury had heard that which was vital — to-wit, the testimony • — and these two points involve only the arguments of the lawyers relating to testimony and the absence of testimony. By the same token we do not think that the excluded statement referred to above was sufficient to permit the attorney for appel-lee to argue to the jury that appellant’s attorney was trying to inject prejudice and misquotations. The jury had heard the testimony and, as we have pointed out, it is not to be found in the record why neither party called Dr. Hooker. With regard to this matter we think that the errors alleged therein have some merit, but are not sufficiently severe to have caused the probable rendition of an improper verdict; in other words, they do not have the substance and strength to label them “reversible”. Appellant cites McCormick & Ray, and other authorities, but we do not think they are entirely applicable as they tend to deal with the rule that an expert wtiness, having testified to an opinion, may be permitted either in direct or cross examination, to give in evidence an account of the basis upon which he founds such opinion. The whole matter is simply that of jury argument and attempted jury argument. We agree with the contention of appellant that there are cases and situations where counsel can comment on the failure of the other party to call witnesses, either expert or non-expert, but we do not believe the cases cited and the fact situations therein contained sufficiently resemble the one confronting us in this case to make them applicable or controlling here. Appellant’s third and fourth points are accordingly overruled.

The appellant’s fifth point charges that the trial court committed error in that the court, in his definition of “injury” and “personal injury” contained in his charge, also contained the element of aggravation, over the objection of appellant. We have studied the charge and the definitions, and while it is true that there is no pleading or proof referring to the aggravation element, the court in his charge did say, among other things:

“You are instructed that you must not take into consideration in determining the amount of incapacity, if any, any disability which was the natural and probable result of any pre-existing disease or bodily ailm.ent of the Plaintiff.”

This paragraph, along with the rest of the charge, we think disposes of any error or allegation thereof, and instructs the jury pretty clearly what to consider. The element of aggravation does not appear in the evidence or jury arguments, and we do not see how this paragraph could be harmful to the appellant. We do not find evidence anywhere that the jury considered any possible pre-existing injury or the aggravation thereof, and for these reasons we feel that this point must also be overruled.

All of appellant’s points having been overruled, the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Teddy MILLER et al., Appellants, v. Lee BOSTICK et al., Appellees.
    No. 7792.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1967.

      Paul E. Lokey, Dallas, Parnass, McGuire & Lokey, Irving, Sidney J. Diamond, Biesel & Diamond, Dallas, for appellants.
    E. Paul Banner, Greenville, for appellees.
   PER CURIAM.

This is an appeal from a judgment dismissing an election contest suit. The judgment of the trial court is affirmed.

An election authorized by the provisions of Chapter 11, Title 28, Tex.Rev.Civ.Stat. of 1925, was held on March 7, 1966, for the purpose of incorporating the unincorporated village of West Tawakoni, Hunt County, Texas. In compliance with the governing statutes the County Judge of Hunt County had previously called the election and appointed C. H. Hale to preside. It was stipulated in the trial court, and the trial judge found as a fact that C. H. Hale as presiding election judge filed a written election return with the County Judge on or about March 17, 1966. The return, dated March 7, 1966, and signed by C. H. Hale and two election clerks, was attached to the trial judge’s findings of fact and shows that a total of 106 votes were cast, out of which 58 votes were for “Corporation”, and 48 votes were for “No corporation”.

The parties to the appeal agree to the facts, but disagree upon the applicable law. • The trial judge dismissed the suit in the trial court because the contestants did not give notice of contest within thirty days after the election return day as required by Tex.Election Code, art. 9.03 (1952) V.A.T.S. The appellants simplify the legal issue by taking an unqualified stand that return day in this instance, as the term return day is defined in Art. 9.03, is March 7, 1966, the date that Election Judge C. H. Hale counted the votes, and along with two clerks, signed an election return which apparently was delivered' to the County Judge of Hunt County on March 17, 1966. On the other hand, the appellees contend that return day in this instance is April 6, 1965, the day the County Judge entered an order on the records of the Commissioners’ Court that recited that he had canvassed the election returns and declared that the proposition for incorporation received a majority vote and carried, and further declared that the “inhabitants of the town or village of West Tawakoni are incorporated within the boundaries thereof”, and set out the boundaries of the town.

While the precise question presented by this appeal was not a decisive issue in either of the two cases about to be mentioned, the question was discussed in the first and by implication decided in the second. The opinion in the first case, Williams v. Glover, 259 S.W. 957 (Tex. Civ.App. 1924, no writ), speaking of the election procedure to be followed in the incorporation of a town or village said:

“ * * * the statute requires the returns to be made to the county judge and requires him to canvass the same and to declare the result of the election. * * * it is specifically provided that, upon canvassing the returns of the election, the county judge shall make an entry upon the records or minutes of the commissioners’ court, declaring and effectuating the decision of the voters in such election. * * * ”

The incorporation of a town was not before the court, and the quoted language appears to be obiter dicta. In the second and more recent case, Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961), the Supreme Court was reviewing an application for mandamus to require a respondent county judge to accept the returns of an incorporation election, canvass the votes and declare the results. In the case no issue was made respecting the duties Vernon’s Ann.Tex.Rev.Civ.Stat. art. 1139 (1963) places upon the county judge, but all factions of the divided court, by implication, agreed that the county judge had the duty, in a proper case, of accepting the election returns, canvassing the votes, and declaring the results of the election. By majority opinion the Supreme Court ordered the county judge to do just that.

Although the mentioned cases clearly point to the disposition that must be made of the appeal, examination of the probable reasons underlying the conclusions the courts reached seems justified. Art. 9.03 is a statute of general application enacted to apply in all contested election cases. It is sufficiently broad and flexible to govern an election in a one box precinct or an election wherein numerous voting precincts and boxes are involved and where the official and formal outcome of an election might only be determined in an orderly way by a return being made from each election box and the vote total and result of the election officially ascertained by examining each of the several returns. The procedure of examining returns is usually referred to as canvassing the vote. It appears to be contemplated by Vernon’s Ann.Tex.Rev.Civ.Stat. art. 1136 (1963) that in election such as this under review the area to be incorporated shall constitute the voting precinct and only one set of election officials and one polling place shall be used. The official return in this instance does actually show the day the votes cast at the election were counted and the totals for the proposition submitted, thereby forecasting what, in the absence of irregularities, must be declared by the canvasser as the official result of the election. Yet Article 1139 does not require the presiding judge at the election to make an official declaration of the result to the public, the duty imposed by law is that the officers of the election make a return to the county judge. A return is a report by polling officers to their superiors showing the number of votes cast for each candidate or for or against the propositions submitted to the electorate. 29 C.J.S. Elections § 229 (1965). The term has this special legal meaning and significance when used in the election statutes. Preparing the required return on March 7, 1966, and filing it on March 17, 1966, did not change the return’s nature or constitute the declaration of the official result of the election. The County Judge’s subsequent order on April 6, 1966, was the official declaration of the result and the return day contemplated by Art. 9.03.

It must be held that it is the duty of the county judge, rather than the election judge, to canvass the votes of the election held on March 7th, and declare the official result thereof. The record shows that the county judge performed such duty on April 6, 1966, and that the contestants did not thereafter give the notice required by Art. 9.03, as a prerequisite to a contest. The brief of the contestants, as appellants here, makes no contention that the order dismissing their suit is erroneous if the return day mentioned in Art. 9.03 was not March 7, 1966. The judgment of the trial court is affirmed.

      . “Art. 9.03. Any person intending to contest the election of any one holding a certificate of electibn for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the ‘return day’ is meant the day on which the votes cast in said election are counted and the official result thereof declared.”

      . “Art. 1139. If a majority of the votes are east in favor of incorporation the officers holding the election shall make return thereof to the county judge within ten days after the same was hold. The county judge shall, within twenty days after the receipt thereof make an entry upon the records of the commissioners court that the inhabitants of the town or village are incorporated within the boundaries thereof; which boundaries shall also be designated in the entry. A certified copy of such entry, together with the plat of the town or village, shall thereupon be recorded in the proper record of deeds of such county.”

      . “Art. 1136. If a satisfactory proof is made that the town or village contains the requisite number of inhabitants, the county judge shall make an order for holding an election on a day therein stated and at a place designated within the town or vil- - lage for the purpose of submitting the question to a vote of the people. He shall appoint an officer to preside at the election, who shall select two judges and two clerks to assist in holding it. After a previous notice of ten days, by posting advertisement thereof at three public places in the town or village, the election shall be held in the manner prescribed for holding elections in other cases.”


author: PARKER, Justice.

text:
    Lloyd John VIATOR, Appellant, v. AMERICAN GENERAL INSURANCE COMPANY, Appellee.
    No. 6872.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 26, 1967.
    Rehearing Denied March 1, 1967.

      Oldham & Lorance, Houston, for appellant.
    Vinson, Elkins, Weems & S earls, Houston, for appellee.
   PARKER, Justice.

Lloyd John Viator, hereinafter called ■“Viator”, sued American General Insurance Company for damages in the total sum of $57,500.00. While operating a truck, Viator was involved in an automobile accident resulting in severe injuries to Nelson J. Benoit and his wife, Dorothy Benoit, with the claim of the Benoits against Viator being settled by Viator for $50,000.00. Plaintiff Viator alleged that the truck was owned by one J. C. Martin, who had insurance covering bodily injury liability insurance limits of $50,000 for each person and $100,000 for each accident, with this policy having extended coverage to permissive users of the truck. Viator alleged that he was a permissive user of such truck and made demand upon American General Insurance Company under its policy issued to Martin to furnish the protection defendant’s policy obligated defendant to provide on Martin’s vehicles. Defendant refused to defend Viator from the claims of the Benoits or to make any payments to the Benoits in satisfaction of their claim. Although not before the jury, the claim of the Benoits was paid by Northwestern Mutual Insurance Company which joined in this suit in its own right as one of the liability insurers of Viator and as subrogee of Viator’s rights of recovery against American General Insurance Company. The $7,500 in excess of $50,000 was for expenses. Trial was to a jury and the court rendered judgment that plaintiff Viator (and Northwestern Mutual Insurance Company, his assignee^ take nothing by reason of his ■ suit against American General Insurance Company, sometimes called “defendant” herein.

This suit involved the question of who owned the truck involved in the collision with the Benoits. Viator contends the evidence conclusively established that the contract of sale between Viator and Martin was executory, and therefore ownership had not passed to Viator at the time of the accident in question and, accordingly, that Viator was covered under American General Insurance Company’s policy issued to Martin. Viator also contended that the trial court erred in failing to enter judgment against American General Insurance Company because, as a matter of law, the evidence conclusively established that the contract between Viator and Martin for sale of the vehicle was in violation of the Texas Certificate of Title Act and consequently void, and that therefore title had not passed from Martin to Viator, and Viator was accordingly covered under American General Insurance Company’s policy.

Martin was the owner of Gasoline Pump Service, Inc. He bought gasoline and other supplies from Viator. On December 28, 1961 Martin was the owner of the truck and owed $500 to Viator. Viator and Martin agreed that Viator would become the owner of the truck and in exchange Viator would cancel the $500 indebtedness owed by Martin to him and give Martin a $300 trade credit with Viator’s gas station. This credit was not to be used until after January 1, 1962, but was used and exhausted in three months thereafter. On December 28, 1961 Martin unloaded his tools and parts and other equipment that he had in this truck used by him in the business of Gasoline Pump Service, Inc., of which Martin was the president and the sole stockholder with authority to sell the truck, which had no outstanding lien against it. Possession of the truck on such date was taken by Viator and he drove it off. The truck was not taken on a trial basis, “the truck was his, then, as of that date”, as far as Martin was concerned. His old bill was cancelled as of that date and he did not consider he retained any right to control the use of the truck. Viator needed no further permission to drive away with the truck since he was its owner. Prior to December 28,1961 Martin had never allowed Viator to use the truck. Before Viator was involved in the accident with the Benoits, Martin had called his insurance agent, Sam Seragusa, and told him to cancel the insurance coverage on this truck, since he had sold it. American General Insurance Company had such coverage for Mr. Martin prior to the sale. It was agreed between Martin and Viator that the certificate of title would be transferred after the first of the year and Martin wouldn’t use the $300 credit until later. The accident between Viator and the Benoits occurred on December 30, 1961, when Viator was driving this truck.

There was no lien upon the truck. As between the parties this sale of the truck of December 28, 1961 was legal. In answer to special issues the jury found that on December 28, 1961 when Viator drove the truck away from Martin’s place of business that Martin and Viator had agreed that Viator was the present owner thereof; that Gasoline Pump Service, Inc. was not the owner of the truck on December 30, 1961.

On December 30, 1961 when Viator was involved in the automobile accident with the Benoits, which his insurance carrier, Northwestern Mutual Insurance Company settled for $50,000, Viator was the owner of the truck. Gasoline Pump Service, Inc. (Martin) then was not the sole owner as required by the policy of American General Insurance Company issued to Martin.

This court considers Rush v. Smitherman, 294 S.W.2d 873 (Tex.Civ.App.1956, err. ref’d) is contrary to the arguments asserted in the points of error of Viator. This was a case dealing with the doctrine of negligent entrustment in which that court held that since the defendant had already sold the car to the individual involved in the accident the question of whether he permitted him to use the car was not raised. The purchaser was not driving the vehicle by force or permission from the former owner. The court concluded in such opinion as follows:

“So, despite the failure to transfer the certificate and the Act’s declaration that the non-transfer will render the sale void, as between the parties and when the purposes of the Act are not defeated, the sale is valid. Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202; Knops v. Ordorica, Tex.Civ.App., 242 S.W.2d 454; Manning v. Miller, Tex.Civ.App., 206 S.W.2d 165. The failure to deliver the certificate does not destroy one’s rights and ownership in a vehicle in many other situations. See Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185; Pacific Finance Corp. v. Crouch, Tex.Civ.App., 243 S.W.2d 432; Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938.”
******
“We conclude that the seller delivered the control and possession of the vehicle to Munoz, and accepted part payment on the agreed purchase price. The seller retained the naked legal title so long as the certificate was not transferred. * * * As between seller and purchaser, when the accident occurred, the Seller had no right to possess or control the car.”

The legislative intent of the Certificate of Title Act is correctly stated in Hicksbaugh Lumber Company v. Fidelity & Casualty Company of New York, 177 S.W.2d 802 (Tex.Civ.App.1944, n. w. h.) :

“The legislative intent, as disclosed in Section 1 of the Certificate of Title Act, was to lessen and prevent theft and traffic in stolen motor vehicles (Motor .Investment Company et al. v. Knox City, 141 Tex. 530, 174 S.W.2d 482, 483), and not to prevent sales and transfers of interest in motor vehicles. The Act does not prohibit or provide penalties for persons who have transferred interest in motor vehicles without compliance with the provisions thereof.”

Judgment of the trial court is affirmed.