author: STANLEY, Commissioner.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Mary A. MITCHELL, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1962.
    John B. Breckinridge, Atty. Gen., Wm. A. Watson, Asst. Atty. Gen., for appellant.
    (No counsel), for appellee.
   STANLEY, Commissioner.

The Attorney General seeks a certification of the law (§ 352, Cr.Code of Practice)with respect to the right and power of police officers to set up “roadblocks” for the-sole purpose of stopping motorists on the-highway and-requiring the production of am operator’s license. A subsidiary or dependent question is the admissibility in evidence that a driver did not have such license.

The appellee, Mary A. Mitchell, was cited by a state police officer to the Oldham Quarterly Court for driving a motor vehicle without an operator’s license. It was there stipulated that the citation was based upon a “roadblock” by which state police had indiscriminately stopped all traffic for the purpose of ascertaining whether the particular law was being violated, and that the defendant did not have a license. The Quarterly Court dismissed the charge on the ground that the defendant’s constitutional right of liberty had been violated by an illegal arrest or restraint and that the evidence obtained thereby was inadmissible. On appeal by the Commonwealth the Circuit Court affirmed the dismissal.

It is unlawful for anyone (subject to inapplicable exemptions) to operate a motor vehicle upon a highway unless he shall have previously secured an operator’s license as prescribed. Ky.Rev.Stat. 186.410. The operator must have his license “in his immediate possession at all times when driving a motor vehicle and shall display it upon demand to * * * a peace officer, a member of the State Highway Patrol” or other officers. KRS 186.510. The penalty for a failure to display a license or furnish satisfactory proof that one had been issued is a fine of not less than $2 nor more than $500 or imprisonment for not more than six months or both. KRS 186.990(3). Many states have similar statutes. 5A Am. Jur., Automobiles and Highway Traffic, § 134; 60 C.J.S. Motor Vehicles § 157; 61 C.J.S. Motor Vehicles § 651; Annotation, 143 A.L.R. 1019. The Kentucky State Police (successors of the Highway Patrol, KRS 16.180) are vested with the powers of peace officers generally and are charged particularly with the duty of enforcing the motor vehicle and traffic laws of the Commonwealth. KRS 16.060.

It may be observed that stopping vehicles for the purpose stated is not under a particular statutory authority. It is claimed to be in the exercise of police duty in the enforcement of a statute.

The questions are: Is the practice of setting up a roadblock for motor vehicles for the purpose of requiring the driver to display an operator’s license an invasion of the individual’s constitutional freedom? Is the act an unlawful arrest or restraint or an illegal search contrary to § 10 of the Constitution? The question of admissibility of evidence, obtained solely and entirely by the procedure, that a driver did not have or display a license is determinable upon the answers to those questions.

Let it be emphasized that we are dealing here with systematic and indiscriminate stopping of all motor traffic on the highway for the good faith purpose of making inspections of drivers’ licenses. Our decision may not be regarded as sanctioning the stopping of cars for the ostensible or pretended purpose stated when in reality it is actuated by an ulterior motive not related to the licensing requirement, or is done as a pretext or as a subterfuge for circumventing the constitutional provision against searches of persons and property without a valid warrant. We shall continue to condemn such an act. See 5A, Am.Jur., Automobiles and Highway Traffic, § 134; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 154 A.L.R. 809. And we are not concerned here with a search of a vehicle which has been intercepted for the purpose of examining the license of the driver, for there was no kind of search in the present case or proffer of evidence obtained by a search.

In City of Miami v. Aronovitz, Fla., 114 So.2d 784, a motorist had been stopped by a roadblock set up on a street by Miami police and requested to exhibit his state driver’s license. He displayed a license and was sent on his way. The Florida statute is practically the same as the Kentucky statute. The motorist brought a declaratory judgment action against the city and its officials, seeking a declaration of rights of freedom and an injunction against the officers from continuing the practice. The contentions of his complaint were, in part, substantially the same as the contentions made in the case now before us. The Florida court noted that the owner of an operator’s license exercises a privilege granted by the state and subject to reasonable regulation of the use of the highway common to all citizens. It held that the action of the police was within reasonable regulation of individual rights and was in the interest of the public good as an effective measure to compel the observance of the traffic laws and did not invade any constitutional right of the motorist.

Our court has likewise held that to . operate a motor vehicle on a public road is not a natural or unrestricted right but rather is a privilege granted by the statute and subject to reasonable regulation under the police power of the state. Such a license is issued and accepted under the terms and conditions of the statute. Commonwealth v. Harris, 278 Ky. 218, 128 S.W.2d 579; Ballow v. Reeves, Ky., 238 S.W.2d 141; Sturgill v. Beard, Ky., 303 S.W.2d 908. The license is accepted on the condition and the-implicit agreement that it will be displayed upon demand of proper officers. We would have a different case here had the appellee had a license to display, as did the complainant in the Florida case. She was cited to the court because she had no driver’s license. So, the rule as to the condition attached to the issuance and acceptance of a driver’s license does not apply. But the appellee, in using the highway, was, nevertheless, subject to the applicable statutory limitations and conditions regulating traffic.

We do not think of the uplifted hand of a traffic officer stopping the movement of an automobile as being an arrest or illegal restraint. Nor can the practice or the particular action taken in the instant case be regarded as exercising “arbitrary power over the lives, liberty and property of freemen,” which power is denied by § 2 of our Constitution. While personal rights of freedom of movement will certainly not be lightly regarded, there must always be a balancing of private right against public interests and welfare. There must always be a logical appreciation of the demands of public safety to which an individual’s personal liberties must yield when such yielding is not of an inalienable right or one that is vital but is merely an inconvenience. It is settled that the enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the police power of the state, which includes reasonable conditions as may be determined by the governmental authorities to be essential to the safety, good order and public welfare of the people. Mansbach Scrap Iron Co. v. City of Ashland, 235 Ky. 265, 30 S.W.2d 968; 11 Am.Jur., Constitutional Law, §§ 267, 274, 331; 33 Am.Jur., Licenses, §§ 20, 52; 16 C.J.S. Constitutional Law § 199(3)b. Regulating and licensing motor vehicles is a valid exercise of the police power. Smith v. Commonwealth, 175 Ky. 286, 194 S.W. 367; Whitney v. Newbold, 270 Ky. 209, 109 S.W.2d 406.

We have an analogous case in Commonwealth v. Abell, 275 Ky. 809, 122 S.W.2d 757. We therein held that there was no invasion of liberty in police officers’ requiring a loaded motor truck to be driven upon scales to be weighed for the purpose of ascertaining whether it exceeded the maximum limit prescribed by law. The truck was found to be overweight, and the driver was fined. Upon reason and authority we held there was no illegal search and seizure within the meaning of § 10 of the Constitution and that the evidence relied upon for conviction was not within the protection of § 11, providing, in effect, that in criminal prosecutions the accused cannot be compelled to give evidence against himself.

If stopping motorists indiscriminately by police officers for the good faith purpose of inspecting or asking for the exhibition of a driver’s license were not permitted, the licensing law would break down and become a nullity, and the objective of promoting public safety from irresponsible automobile-drivers would be seriously impeded. There would be but few occasions where an officer could otherwise learn that the law was being violated.

We hold the action of the police officers in this case was lawful. It follows as a matter of course that evidence obtained thereby is competent and admissible, hence, that the view of the circuit court with respect to the illegality of the procedure is erroneous.

The law is so certified.


source: Caselaw Access Project

author: STEWART, Chief Justice.

license: Public Domain

text:
    Iren NORVELL et al., Appellants, v. The CITY OF DANVILLE, Junction City, and Fram Corporation, Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Donald D. Harkins, James G. Begley, Begley & Harkins, Danville, for appellant.

      Wesley Gilmer, Jr., Danville, Franklin P. Hays, Skaggs, Hays & Fahey, Louisville, Jackson D. Guerrant, Danville, Richard Jackson, East Providence, R. I., William B. Gess, Lexington, for appellees.
   STEWART, Chief Justice.

The council of the City of Danville, a city of the third class situated in Boyle County, proposes by ordinance to issue and sell $500,000 of industrial revenue bonds under KRS 103.200 to 103.285, inclusive. The proceeds derived therefrom will be used to acquire a site and construct thereon an industrial factory building which Fram Corporation has agreed to lease for a period of 20 years for rentals sufficient in amount to amortize the principal and interest on the bonds and also pay the maintenance and depreciation costs. The proposed location of the plant is within the corporate limits of Junction City, a city of the fifth class located in Boyle County about 5 miles from Dan-ville.

This suit for a declaration of rights was brought in a representative capacity by appellants, Iren and Margaret Norvell, as citizens, taxpayers and residents of Danville, against the City of Danville, Junction City and Fram Corporation (hereinafter referred to as “Fram”). The trial court held on the three points placed in issue:

(a) The City of Danville has the power under the statute to issue industrial bonds to acquire industrial property within the corporate limits of another city for lease to a private corporation.

(b) The proposal will not constitute a lending of credit by the City of Danville to either a private corporation or another municipal corporation, as prohibited by Section 179 of the Constitution of Kentucky.

(c) There is sufficient unemployment in Danville and the surrounding area to render this proposal a public project.

.On the question of whether one city has the authority to obtain title to and lease an industrial building to a private corporation in another city, pursuant to KRS 103.200 through 103.285, we must look to the statute itself, particularly to the provisions of KRS 103.210 which read:

“In order to promote the reconversion to peace-time economy, to relieve the conditions of unemployment, to aid in the rehabilitation of returning veterans and to encourage the increase of industry in this state, any city may borrow money and issue negotiable bonds for the purpose of defraying the cost of acquiring any industrial building, either by purchase or construction, but only after an ordinance has been adopted by the legislative body of the city specifying the proposed undertaking, the amount of bonds to be issued, and the maximum rate of interest the bonds are to bear. The ordinance shall further provide that the industrial building is to be acquired pursuant to the provisions of KRS 103.200 to 103.280.”

Appellants argue that the City of Dan-ville has neither express nor implied power to acquire property for industrial use within the corporate limits of another municipality, because they contend it was shown there are large acreages suitable for industrial development located in certain unincorporated areas of Boyle County and so contiguous to Danville’s municipal boundaries as to be susceptible to annexation by the city.

Appellees point to the evidence which discloses that only in Junction City do there exist all the factors necessary for a plant site suitable to the proposed lessee, Fram, i. e., service by two railroads, good public highways, and all the utilities required by Fram. The various rural tracts suggested by appellants has one or more of these characteristics but not all. From this evidence, it may be taken that Junction City affords the only site which adequately fits the needs of Fram. Also it may be added, as indicated by the record, that Fram already leases a building in Junction City and plans to continue the use of this structure, plus enlarging its operation on the tract the City of Danville proposes to furnish it.

Appellants next maintain that even a case of stark necessity does not inexorably imply that Danville has the authority to own land in Junction City, for it was held in Rash v. Louisville & Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232, that two municipal corporations cannot have jurisdiction and control at the same time over the same population and territory and exercise like or similar powers within the same boundaries.

However, in Smith v. City of Kuttawa, 222 Ky. 569, 1 S.W.2d 979, this Court specifically decided that a city may obtain, or hold in fee, property beyond its corporate limits. This decision antedated the enactment of KRS 103.200 through 103.285. There this statement was made in approaching the question: “ * * * we should bear in mind the distinction between the right to acquire property beyond the corporate limits and the power to exercise the rights of sovereignty over it.” The opinion then went on to make it clear that the attributes of sovereignty do not in any wise accompany the mere ownership of property acquired by a city in a proprietary capacity for municipal use outside its boundaries. The central idea conveyed by Smith v. City of Kuttawa, supra, is that a municipality should have the same right to become a property owner as an individual beyond the confines of its limits, if it is not prohibited from doing so and if it is expedient for the interests of its inhabitants to do so.

There is no Kentucky statute which forbids one city from becoming a property owner in another city for reasons of a needful nature. In 10 McQuillin, Municipal Corporations (3d ed.), sec. 28.05, it is stated that although earlier rulings were to the contrary the weight of authority, as well as the better reasoning, is that a city, where not expressly prohibited, may purchase real estate outside its corporate limits for legitimate municipal purposes. That text also states that it is “well to bear in mind the distinction between the right to acquire property and the rights of sovereignty over such ■ property.” It points out, too, it has been. held that a city has general power to buy land outside its boundaries for a public park, a recreation area, a stone quarry, a gravel pit, a cemetery, a pest house, a water supply and the like.

This Court in the recent case of Bennett v. City of Mayfield, Ky., 323 S.W.2d 573, wherein the city proposed to issue revenue bonds for the acquisition of a site and the construction of an industrial plant thereon, held that this plant could be located beyond the city’s corporate limits. In Chrisman v. Cumberland Coach Lines, Ky., 249 S.W.2d 782, the City of Cumberland proposed to acquire, own and operate a bus system by the issuance of revenue bonds under the. provisions of KRS Chapter 58. The system would serve not only unincorporated settlements adjoining Cumberland but also two other cities, Harlan and Whitesburg, each 22 miles distant. It was contemplated buses would be operated regularly in Harlan and Whitesburg on runs from Cumberland and back. The opinion in that case upheld the validity of bonds issued in conformity with KRS Chapter 58, under which, although express power is given to a governmental unit to acquire a public project outside its territorial limits, there is no specific authority bestowed upon a city to own and use property inside the corporate limits of another city. Nevertheless, the City of Cumberland was given the green light to take over the bus system and provide transportation within and beyond Harlan and Whitesburg, the Court saying at page 785: “The operations beyond its (Cumberland’s) limits are necessary incidents of the principal public project, and as such may be acquired and maintained as a part thereof.”

Thus it may be stated generally that a municipal corporation has a governmental or public capacity and also a proprietary or private capacity and, when acting in its latter capacity, it stands on the same footing as a private corporation exercising such powers as are lawfully permissible. Furthermore, when a city operates beyond its boundaries it carries with it none of the prerogatives of sovereignty, but functions in its extraterritorial setting simply as a private corporation. See City of Cincinnati, Ohio et al. v. Commonwealth ex rel. Reeves, 292 Ky. 597, 167 S.W.2d 709. Therefore, we are of the opinion that the City of Danville, since it proposes to act here in a purely proprietary or private manner within the purview of KRS 103.200 through 103.285, has full authority to acquire a site in Junction City and locate thereon an industrial plant for its lessee’s use.

Appellants insist that the reason for the acquisition of the property in Junction City is not primarily for lawful municipal purposes of help to the City of Danville as a unit but is intended to extend the City of Danville’s excellent credit standing for the assistance of a private corporation, a smaller city, and Boyle County as a whole. But, the statute itself states that for the purpose of encouraging “the increase of industry in this state” any city may issue these revenue bonds. No mention is made of benefits to be reserved only to the city as a unit. Here, it is apparent that, while surrounding areas may receive advantages from the proj ect, the issuing city will benefit also, and in a substantial manner.

Throughout this controversy runs the inquiry of why Junction City does not issue the bonds itself. The mayors of the two cities testified that the bonds would sell better and command a lower interest rate if they are issued through the City of Dan-ville. There is testimony that Danville’s previous industrial bond issues have worked out well and that the city also has a staff already well trained and equipped to handle the paper work involved in keeping the records requisite to this bonding transaction.

It is with these thoughts in mind that appellants contend the proposal violates Section 179 of the Constitution of Kentucky. This provision reads in part: “The General Assembly shall not authorize any * * * city * * * to loan its credit to any corporation, association or individual * * Appellants submit that the identity of the concept of “municipal indebtedness” with that of “lending of credit” in the decisions we have handed down is contrary to the clear meaning of the constitutional language and that the present proposal is in truth and in fact a lending of credit. They argue that since the bonds can be sold at a lower interest figure because they bear the name of Danville, this is a lending of credit, although the bond issue has no actual relation to Danville’s indebtedness. More than that, the benefits from such a “lending of credit”, it is claimed, accrue directly to Junction City and to Fram, which is forbidden by Section 179.

It was held in Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80, and just recently in Bennett v. City of Mayfield, Ky., supra, that financing proposals similar to the one under discussion did not violate the foregoing constitutional provision. Simply stated, as fully reasoned out in each of these opinions, the City of Danville does not lend its credit to Junction City or to the private corporation leasing the property, because no indebtedness of the City of Dan-ville is created.

As to whether there is sufficient unemployment to justify the public project, the evidence abundantly indicates that the Dan-ville area is one of chronic and persistent unemployment and has even been so designated by the United States Department of Labor. The record reveals that since 1956 unemployment in the four-county area of Boyle, Garrard, Mercer and Lincoln Counties has ranged from the lowest of 8.2% to a high of 12.9%, based on employees who are covered by unemployment insurance. During the first ten months of 1961 the percentage of out-of-work persons was 10.9%. When all covered and uncovered employees are included for the first ten months of 1961, the unemployment in the four-county area was 9.2%. This same percentage evidently exists now.

The national average of unemployment is running from 4% to 6% at the present time. It was also brought out that many persons in the area have exhausted all their unemployment benefits and they and their families are on public relief. In the light of this proof, which is not in dispute, it is obvious that a factory employing several hundred people, which the one to be erected is contemplated to do, will tend to ameliorate the conditions we have detailed.

It is our considered opinion that none of the three grounds raised by appellants has merit, and that the trial court ruled correctly in this case.

Wherefore, the judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Douglas Rodney DUFF, Appellant, v. COMMONWEALTH of Kentucky, For Use and Benefit of Pearlean HUFF, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1962.
    S. M. Ward, Vernon Faulkner, Hazard, Clark Pratt, Hindman, for appellant.
    Dan T. Martin, Cordell H. Martin, Hind-man, for appellee.
   MONTGOMERY, Judge.

Douglas Rodney Duff appeals from an adverse judgment in a bastardy proceeding. He urges that the proceeding was barred by a three-year limitation contained in the statute. KRS 406.030(1).

On December 5, 1955, Pearlean Huff executed an affidavit before the Clerk of the Knott County Court in which she stated, inter alia, that on November 10, 1955, a bastard child, Rodney Stewart Huff, was born to her in Knott County, Kentucky, and that Douglas Rodney Duff is the father of the child. The affidavit was not marked “Filed” and no warrant or process was issued thereon until July 31, 1959. On that day, Pearlean delivered a warrant to an officer who arrested the appellant. No explanation is given for the delay. Trials in the Knott County and Circuit Courts resulted in judgments adverse to appellant.

It is the contention of appellant that under the language of the pertinent statute the prosecution of the proceeding was barred at the expiration of three years from the date of birth of the child. KRS 406.020 provides that the county clerk shall examine under oath the woman making the complaint concerning her residence, marital status, and the time and place of the child’s birth. It is made the clerk’s duty to reduce the statement to writing.

The pertinent statute, KRS 406.030(1) provides:

“If, on the examination made according to KRS 406.020, the child appears to be less than three years old, the clerk shall issue a warrant, directed to the sheriff or any constable, requiring him to arrest the person accused and bring him before the county judge of the county where he is found.”

The proceeding for the benefit of a bastard child and its mother has its origin in an Act passed December 14, 1795. Lit-tell’s Digest of the Statute Law of Kentucky, Bastardy, Chapter XXVI, page 178. Under the original statute, the general statute, of limitations applied. Commonwealth for Stafford v. Withers, 20 Ky. (4 T.B.Mon.) 510, 511. The statute concerning bastardy in substantially its present form was adopted in the 1852 revision. See Wickliffe, Turner & Nicholas’ Revised Statutes of Kentucky, 1852, Bastardy, Chapter VI. Section 3 of that statute has been carried down through subsequent revisions and is now KIRS 406.030(1).

In the 1852 revision, the reference to the age of the child at the time of the examination was inserted for the first time. A notation indicates the “Virginia Revision” as its origin. The reference to the age of the child apparently was intended, and has been so construed, as a limitation on the time within which the proceeding may be instituted. In Early v. Bradfield’s Ex’x, 266 Ky. 395, 99 S.W.2d 190, it was held that the mother of the child had “no legal right to invoke the Statutes” when the child was more than three years of age.

It would seem that in the more than one hundred years’ effective life of the statute the “three years” provision has been accepted as a limitation on' the bringing of such statutory action. See Commonwealth v. Ray, 196 Ky. 203, 244 S.W. 415; Clark’s Adm’x v. Campbell, 212 Ky. 341, 279 S.W. 327. No case except the Early case has been found or pointed out in which the matter was directly considered. No other significance has been suggested for the “three years” provision.

Limitations of time for instituting bastardy proceedings have been specifically provided by statute in many states. The time provided ranges from six months to three years after birth of the child. Annotation, 155 A.L.R. 33. KRS 406.030(1) is similar to the North Carolina statute which provides that “all examinations upon oath to charge any man with being the father of a bastard child, shall be taken within three years next after the birth of the child.” In State v. Perry, 122 N.C. 1043, 30 S.E. 139, it was held that this provision constituted a three-year period of limitation in which the proceeding must have been instituted. To the same effect is State v. Hedgepeth, 122 N.C. 1039, 30 S.E. 140. See also State v. Dill, 224 N.C. 57, 29 S.E.2d 145.

In view of the similarity of the North Carolina statute and the construction placed thereon and of the apparent construction by the courts of this state, the “three years” provision is a limitation which bars the bringing of a bastardy proceeding after three years from the date of birth of the child. This conclusion is in harmony with CR 3 and 4.01 concerning the commencement of a civil action. Wooton v. Begley, Ky., 305 S.W.2d 270. See Commonwealth v. Smalling, 146 Ky. 197, 142 S.W. 372; Commonwealth ex rel. Baker v. Bondie, 277 Ky. 207, 126 S.W.2d 148; and Pendleton v. Commonwealth ex rel. Rawlins, Ky., 349 S.W.2d 832, to the effect that a bastardy proceeding is a civil action and is governed by the Rules of Civil Procedure. The issuance of the warrant on which appellant was arrested was had more than three years after the birth of the child and was too late. State ex rel. v. Murphy, 120 Kan. 350, 243 P. 288; 10 C.J.S. Bastards § 60, page 156.

Judgment reversed.


author: MOREMEN, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. GENERAL & EXCESS INSURANCE COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., John J. Blackburn, Dept, of Highways, Frankfort, for appellant.
    J. D. Ruark, Morganfield, Willie M. Deep, Henderson, for appellees.
   MOREMEN, Judge.

This is an appeal from a judgment of the Union Circuit Court which confirmed an award of the Board of Claims of Kentucky for damages sustained by appellee Clark as the result of alleged negligence of the Commonwealth in maintaining U. S. Highway No. 60 at a point near Sturgis.

On December 9, 1957, Clark was operating a truck on U. S. 60 when an automobile being driven by Robert M. Dennis approached from the opposite direction. The vehicles collided. Dennis was killed and Clark was severely injured.

Clark had in effect a policy of insurance under which he was paid property damage. The insurance carrier has been subrogated to the amount of its payment and is a party to this litigation.

The basis of appellees’ claim was the averred neglect of the Department of Highways in permitting a large hole or ditch to form in the lane of traffic being used by Dennis at the time of the accident. The break in the highway was described by various witnesses who appeared at the scene of the accident soon after its occurrence. Some of them lived in the vicinity and were familiar with the defect. Their descriptions of the fault were not identical, but we draw a composite picture from the testimony that it was about seven feet long, two feet wide and from two to six inches deep. It extended from the edge of the road to near the center line.

Clark, the only eyewitness who survived, testified that as the cars approached their meeting point each car was in its own lane. It was raining but the visibility was good. And then:

“Q. But as you approached each other, tell the court in your own words what took place? A. As the automobile got in about three car lengths of me, and came right straight into me, something knocked him right straight into me.
* * * * * *
“Q. Prior to that had that car been on its own right-hand side of the highway? A. Yes.
“Q. Where were you at that particular time? A. I was on my side of the road.”

Clark lost consciousness at the time of the impact. He later returned to the scene and identified a patched place in the road as the point where the automobile began to cross from its side of the road and into his truck. The evidence disclosed that the break was repaired by the Department of Highways a day or two after the accident. It was also proved by several witnesses that the break had existed for a month or more before the accident occurred.

The Board of Claims found that the Commonwealth was negligent in maintaining the highway and concluded that the Commonwealth was “negligent in failing to take reasonable precautions to protect the traveling public from injury as the result of said defect in the highway.” Fact findings of the Board may not be disturbed by courts when supported by substantial evidence. Commonwealth v. Mudd, Ky., 255 S.W.2d 989.

We are confronted nevertheless with the question as to the extent of liability of the Commonwealth in connection with defects which from time to time have appeared and will appear in the highway. KRS 44.120 reads:

“An award shall be made only after consideration of the facts surrounding the matter in controversy, and no award shall be made unless the board is of the opinion that the damage claimed was caused by such negligence on the part of the Commonwealth or its agents as would entitle claimant to a judgment in an action at law if the state were amenable to such action.”

The difficulty one has in considering claims against the Commonwealth lies in the fact that in the development of law, the sovereign for so many years was exempt from liability for negligence in the maintenance of its roads and it was only possible to sue the Commonwealth after the Legislature had given special permission so to do. (See Taylor v. Westerfield, 233 Ky. 619, 26 S.W.2d 557, 69 A.L.R. 482.) However, the removal of this disability and the establishment of the Board of Claims in 1948 have compelled a readjustment of thinking on this matter.

Municipal corporations under common law long have been liable for damages resulting from defective public ways. City of Louisville v. Haugh, 157 Ky. 643, 163 S.W. 1101. This liability arose not from a statute, but from the common law and it sometimes has been termed an “illogical exception” to the general rule which does not permit actions against municipalities for negligence in discharging duties imposed upon them for the sole benefit of the public. McQuillin, Municipal Corporations, Vol. 19, Sec. 54.03.

We believe the law applicable to municipal corporations in connection with their duties to maintain streets and the liability which attaches when there is a neglect of those duties offers a fair analogy and precedent for application to the state’s duties to maintain highways (since sovereign immunity has been waived) and the subsequent penalties and liabilities when it fails to perform those duties.

Under municipal law it is not enough merely to show that a defect in the street exists. Notice to the city, either actual or constructive, must be shown. We have the rule that if the defective condition or danger which caused the injury had existed for such a period of time that the authorities, by exercise of ordinary care and diligence, must have known of its existence and could have guarded the public against injury because of it and failed to do so, notice will be imputed to the authority charged with the maintenance of the highway. City of Danville v. Vanarsdale, 243 Ky. 338, 48 S.W.2d 5; City of Richmond v. Hill, 195 Ky. 566, 242 S.W. 867.

In Bell v. City of Henderson, 74 S.W. 206, 24 Ky.Law Rep. 2434, it was said:

“It (city) is not liable for injuries caused by defective streets in the absence of actual notice of such defect, or unless they have existed so long that notice or knowledge thereof should be imputed to it; and notice should not be imputed where the defects are of recent origin, and particularly where they are concealed in any wise. Whilst generally the jury should determine, as a question of fact, whether a city has such notice, yet, where the facts are undisputed, and but one reasonable inference can be drawn from them, it becomes a question for the court to decide.”

There was sufficient probative evidence produced to support the Board’s finding that the hole had been in the road for a month or longer, and the Board’s conclusion that the break created a dangerous condition of which the Commonwealth “could have or should have had knowledge if it had exercised reasonable care in inspecting and maintaining the highway” was proper.

Finally we are confronted with the question of whether the break in the road, which has been described, was of such nature that the state should be held responsible. It is common knowledge that holes and breaks often appear in streets and highways through wear, erosion, freezing and other means. It was pointed out in Commonwealth of Kentucky v. Young, Ky., 354 S.W.2d 23 (February 9, 1962) that those in control of roads are not insurers of the safety of the traveling public, but there we held that those charged with the maintenance of highways are under duty to safeguard the traveling public while a highway is being repaired, and placed upon them the duty to observe proper precautions by the erection of suitable barriers or warning devices. It seems to us that the same duty devolves upon the Department of Highways to repair a hole which might cause the.highway to become dangerous or, at least, to erect devices to guard or warn against the danger. See McQuillin, Municipal Corporations, Vol. 19 Sec. 54.90.

The Board of Claims should have the right to use its sound discretion in determining whether, under the circumstances of the case, the break or hole was of a type that made the highway dangerous to the public for travel, as we have permitted a jury to do — under proper instructions— in cases involving municipal responsibilities.

In City of Catlettsburg v. Davis’ Adm’r, 255 Ky. 382, 74 S.W.2d 341, Davis died when an automobile in which he was riding turned over and his administrator brought suit against the city on the ground that the over-turning of the automobile had been brought about by reason of the defective condition of the street at the point of the accident. This street which was a part of U. S. Highway 23 was paved with concrete. Sutherland was driving the car in which Davis was a guest. This car undertook to pass another car. The opinion gives this description of the circumstances surrounding the accident:

“Right along where Sutherland was undertaking to pass Gallup’s car, the paving of the street was broken. It was full of holes, but the evidence is in sharp dispute as to the depth of these holes; the testimony for the Davis estate being that the holes were from three to eight inches in depth and so numerous and so close together as to cause automobiles, and especially this car, to bounce, rock, jolt, jar, and rattle, whereas the evidence for the city is to the effect that these holes were just small places in the pavement caused by the scaling of the surface coat of the concrete. There can be scarce doubt but that a large section of this concrete pavement on the downhill side of the road had broken and tilted in the direction of the slope of the hill, caused, perhaps, by the washing of the ground from beneath the base of the concrete road with no support left for the concrete slab that formed the roadway. This left the road on the downhill side in a sloping condition.”

There was some evidence to the effect that the Sutherland and Gallup cars struck one another which may have caused the accident. Other witnesses' testified that when passing the Sutherland car'bounced up and down as though it was hitting holes, and that the holes caused the car to run over the hillside and overturn.

The court held:

“Conceding such collision to have, taken place as Gallup testified, the jury were yet warranted in believing that the bad places in the road contributed as a concurring cause but for which Sutherland’s car would not have off the road and down the hillside. There was ample evidence to take the case to the jury and to sustain its verdict. City of Louisville v. Bridwell, 150 Ky. 589, 150 S.W. 672; Bickel Asphalt Pav. Co. v. Yeager, 176 Ky. 712, 197 S.W. 417; City of Providence v. Young, 227 Ky. 690, 13 S.W.2d 1022; City of Henderson v. Sizemore, 104 S.W. 722, 31 Ky.Law Rep. 1134.”

We have, concluded that the circuit court was correct in affirming the award of the Board. Subsection (2) of 44.140 provides that on appeal no new evidence may be introduced except as to fraud or misconduct of some person engaged in the hearing before the Board; that the court sitting without a jury should hear the cause on the record before it and dispose of the appeal in a summary manner, being limited to determining: “Whether or not the board acted without or in excess of its powers; the award was procured by fraud; the award is not in conformity to the provisions of KRS 44.070 to 44.160; and whether the findings of fact support the award.”

The above subsection does not grant to the circuit court the right to substitute its judgment for the judgment of the Board in the determination of whether the highway was in a dangerous condition, but merely to see whether the findings of fact supported the award. However, we do not construe the words “whether the findings ■of fact support the award” to mean that the written findings of fact, which the Board placed in the record, are binding, whether ■or not they are supported by evidence of •substance, but to mean that if the findings ■of fact are supported by substantial evidence, they are conclusive and the award made is supported by law, or, as said in Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406, the finding and award of the Board of Claims, if supported by substantial evidence, are conclusive. See also Commonwealth v. Mudd, Ky., 255 S.W.2d 989.

We believe the circuit court was correct in its judgment sustaining the award of the Board and the judgment is therefore affirmed.

STEWART, C. J., dissenting.

MONTGOMERY, Judge

(dissenting).

The majority opinion does not prescribe any proper standard of care by which the negligence of the Department of Highways in the maintenance of highways may be determined, and it holds the Department to a higher standard of care than would be required of an individual under the same circumstances. See KRS 44.120. Inasmuch as the right to recover for the negligence of the Department or its employees ■exists because of the waiver of governmental immunity, it is felt that such right of recovery should be limited strictly.

The Department of Highways is charged with maintaining approximately 20,000 miles of highway. It is partially responsible for the maintenance of an additional 12,000 miles of highway. These 32,000 miles of highway extend the length and breadth of the state, through urban and rural areas, up hollows and down creeks. Many miles are in isolated areas. The character of highways ranges from four-lane interstate highways with beautiful median strips to gravel roads filled with “chug holes.” The surfaces vary from excellent and smooth through broken concrete, worn out blacktop, to rock and gravel. The surface or shoulders may be made hazardous by weather conditions. See Commonwealth Dept. of Highways v. Brown, Ky., 346 S.W.2d 24; and Commonwealth v. Justice, Ky., 351 S.W.2d 507.

In addition to the variations in highway conditions, there is the problem of personnel and money with which to maintain the system. Should the standard of care be set at the highest degree and then it be held that anything less is a failure to maintain properly and thus render the Commonwealth liable for any injuries resulting? Manifestly, it would be utterly wrong to say that the Commonwealth is liable for injuries suffered by a motorist received by reason of a rut on a big rock in a gravel road. The majority opinion holds the Department liable for failure to maintain U. S. 60 at a point near Sturgis because of a break in its surface. If this creates liability, how can any other rut, break, or rough condition of the surface be distinguished, or must the Department of Highways be held liable for all injuries resulting therefrom? Again, I say there is no proper standard of care prescribed.

Further, the effect of the majority opinion is to hold the Commonwealth liable for a greater standard of care than is required of an individual, contrary to KRS 44.120. The operator of a motor vehicle is privileged to use the highway by reason of the exercise of licenses granted by the Commonwealth. It is the duty of the operator to drive with due regard to highway conditions. Atlantic Greyhound Corp. v. Franklin, 301 Ky. 867, 192 S.W.2d 753. In this respect, the analogy of a social visitor in the home, who in law is a licensee, is pertinent. There is no duty owed by the home owner to the licensee other than that of not knowingly letting one come upon a hidden peril or willfully or wantonly causing one harm. Terry v. Timberlake, Ky., 348 S.W.2d 919.

In Commonwealth v. Young, Ky., 354 S.W.2d 23, the latter rule, in effect, was followed. Recovery was allowed for a hidden defect in the blacktop which was known to the Department of Highways but which was not apparent to the motor vehicle operator. I have no quarrel with such holding, but do not think that the Commonwealth’s liability should be extended.

Recovery against the Commonwealth is permitted because of its waiver of governmental immunity. Such liability should be limited strictly.

For these reasons I respectfully dissent. I have purposely avoided any discussion of the more narrow field of proximate cause, which also is a problem.

STEWART, C. J., joins in this dissent.


author: NORVELL, Justice.

text:
    Ex parte Richard H. GODEKE.
    No. A-8808.
    Supreme Court of Texas.
    March 21, 1962.
    Rehearing Denied April 18, 1962.
    Camp & Camp, Cameron, Fischer, Wood, Burney & Nesbitt, Corpus Christi (James R. Harris, Corpus Christi, with above firm), for relator.
    Jack W. Prescott, Cameron, for respondent.
   NORVELL, Justice.

The District Court of Milam County found Richard H. Godeke guilty of contempt of court because he failed to return his minor son, Robert Frederick Godeke, to the child’s mother, Marjorie B. Hoppe (Richard H. Godeke’s divorced wife) as directed by an order of said court.

It appears without dispute that the relator took his son from the custody of the mother under a provision of the Milam County District Court’s order which permitted the child to visit his father for seven days during the Christmas season. While the child was with his father in Nueces County, the relator filed suit on December 29, 1961 in the Domestic Relations Court of Nueces County in which he sought a decree granting him “the full and absolute custody and control of said minor child.” The petition was presented to the Judge of the Domestic Relations Court on the day it was filed, and the Judge thereof, without giving notice to the mother of the child and without the hearing of evidence decreed “that the temporary care and custody of said minor, Robert Frederick Godeke, be vested in said Petitioner (the relator here) until and pending the hearing of this cause or until further Order of this Court.” This order recited that it appeared from the allegations of the petition that absent such action, the minor “may be removed from the continental limits of the United States.”

In his petition for writ of habeas corpus the relator set up the decree of the Nueces County Domestic Relations Court as a defense to the contempt charge and upon preliminary consideration of the case we granted habeas corpus and admitted relator to bail.

Carl C. Black, the Sheriff of Milam County, who occupies the position of respondent here, contends that the decree of Nueces County Domestic Relations Court upon which relator relies is void for two reasons: First, the Milam County District Court case in which the decree disobeyed or ignored by relator was issued, was a pending case at the time the domestic relations court undertook to assume jurisdiction, ánd, Second, that the action of the domestic relations court in entering the order without notice, without hearing evidence and without setting a specific time for a hearing of evidence, constituted an abuse of .discretion and was so arbitrary as to be wholly void under the due process clauses of the state and federal constitutions.

In our opinion, the decree of the Domestic Relations Court of Nueces County was void because it was in conflict with a prior decree of the Milam County District Court in a case which was then pending in said district court at the time of the entry of the Nueces County decree. This requires that relator be remanded to the custody of the Sheriff of Milam County and we do not reach the constitutional question.

There is dispute between the parties as to the date of the rendition of the Milam County decree. Relator contends that such date is October 30, 1961, while the respondent asserts that the date of signing in the order, that is, December 21, 1961, is to be taken as the true date of the rendition of judgment. Were this a factual dispute, this Court would be without power to decide it as we have jurisdiction of questions of law only. Article 5, § 3, Texas Constitution, Vernon’s Ann.St. However, the issue presented is one of law involving the construction of the decree according to the language contained therein and in accordance with the pertinent provisions of-the Texas Rules of Civil Procedure.

The Milam County order is quite lengthy for a decree of this nature and contains numerous detailed provisions as to the custodial rights of Marjorie B. Hoppe and the visitorial rights of the relator, Richard H. Godeke. The decree occupies five pages of an exhibit in the form of a transcript filed in this cause. The decree came about in this wise: Richard H. Godeke invoked the jurisdiction of the District Court of Milam County on October 26, 1961 in order to procure a temporary restraining order preventing the mother, Marjorie B. Hoppe, from taking the child, Robert Frederick Godeke, out of the State of Texas. It appears from this application that the Milam County District Court had entered a custodial order relating to the child on July 7, 1961. The injunction application, if granted, would have effected a modification of this order which was one of a long series of such decrees resulting from legal controversies between Richard H. Godeke and his former wife, the present Mrs. Hoppe, extending from January 25, 1954, when the parties were divorced by a decree of the District Court of Bexar County, Texas, up to the present time. Legal proceedings have been filed in at least four counties of Texas, —Bexar, Travis, Milam and now Nueces.

The Milam County decree contains two dates, October 30 and December 21 in that it was therein recited that, “[Ojn this the 30 day of October A.D. 1961, came on to be heard the above styled and numbered cause * * * ” and that such decree was “Signed and entered this 21st day of December, 1961.” This latter recitation appears at the bottom of the decree and immediately above the judge’s signature thereon.

The District Judge evidently followed the recommendations of Rule 306a in reciting-the date of the rendition of judgment and we think this recited date of signing is controlling.

It is conceded by relator that if “the Milam County District Court proceeding; was still a pending case at the time the Nueces County Domestic Relations Court undertook jurisdiction * * * the Milam County Judgment imprisoning Relator in-the Milam County Jail is valid.” This necessarily must • be true. The Milam County decree allowed the relator to have-the child during the Christmas holidays, but ordered him to return the child to the. mother at the end of the holiday period. The Nueces County order purports to vest custody of the child in the father until further orders of the court, thus permitting, him to ignore the Milam County decree.. The Nueces County order, if issued at a, time when there was a pending case in Milam County involving the same subject matter, would be void and would afford no. protection to relator for his refusal to abide, by the Milam County order. Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

The controlling and all important-question in this case is whether or not on December 29, 1961, the date of the Nueces-decree, the Milam 'County cause was a “pending case.” Under the provisions of our Rules of Civil Procedure this question must be answered in the affirmative. Rules 306a and 329b must be considered together. Rule 306a provides that “the date of signing” (December 21 in this case), as recited in the judgment or order, shall be deemed thé date of rendition thereof in determining the time within which to file a motion for new trial, notice of appeal, etc. Rule 329b, § 5 provides that, “after the expiration of thirty (30) days from the date judgment is-rendered or motion for new trial overruled, the judgment cannot be set. aside except' by bill of review for sufficient cause, filed within the time allowed by law.”

If October 30 were taken as the date of rendition of judgment, the same would become impervious to direct attack except by bill of review on November 29, thirty days after such date of rendition. However, under Rule 306a, taken in connection with Rule 329b, the Court would be clearly authorized to set aside the judgment upon motion for new trial or upon its own motion any time within 30 days after judgment was rendered. Rule 329b, § S. Our Rules of Civil Procedure must be construed so as to produce harmony rather than discord. It would be self contradictory to say that the judgment could only be attacked by bill of review from and after November 29, but that within thirty days after December 21, the judgment could be set aside on the court’s own motion, — or by action upon a motion for a new trial. The cuestión here is one of pendency. A cause still pends in a trial court so long as a judgment rendered therein remains subject to attack by motion for new trial or subject to judicial vacation or modification by such court under the terms and provisions of Rule 329b.

The relator is remanded to the custody of the Sheriff of Milam County.

      . It was orally argued that in eases of this character when, because of emergency conditions, a temporary custody is required some such procedure as that provided by Rule 680, Texas Rules of Oivil Procedure, relating to temporary restraining orders, should be followed; that is, a hearing should be set as soon as practicable for a day certain and both sides be given an opportunity to be heard. It is urged that the entry of an ex parte order Without hearing evidence until final disposition of the cause is a wholly arbitrary action and void. It has been held that a parent’s right to the custody of a child is afforded protection by the due process clauses of Article 1, § 19 and the Texas Constitution and the fifth amendment to the federal constitution, unless such right has been forfeited by abandonment or other misconduct. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, reversing Brooks v. DeWitt, Tex.Civ.App., 178 S.W.2d 718.


author: DICE, Commissioner.

text:
    Albert Sidney FAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34168.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Howard Hendrix, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, M. Frank Puckett, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 365 days in jail and a fine of $50.

Deputy Sheriff J. <W. Ratliff testified that on the night in question while on patrol duty with his partner, Jack Middleton, they met an automobile being driven by appellant on Little York Road which was weaving back and forth across the road and that they proceeded to turn around and stop the appellant. Deputy Ratliff testified that after stopping the appellant they found a six pack of beer in the back seat of his automobile and three bottles or cans of beer in the front seat which were partially empty. He further stated that at such time appellant had a strong odor of alcohol on his breath; that he was unsteady on his feet and that in his opinion appellant was at the time intoxicated.

Deputy Sheriff Middleton and Officer Wheatly, who was riding with the two deputies on the night in question, were called as witnesses by the State and corroborated the testimony of Deputy Sheriff Ratliff in his description of appellant’s actions and appearance and expressed their opinion that appellant was intoxicated.

Testifying as a witness in his own behalf, appellant denied that he was drunk on the night in question and stated that he had consumed only one beer. He further testified that he had been taking medicine which caused him to become drowsy. Witnesses were called by appellant, including two women passengers in the car with him, who testified in support of his contention that he was not intoxicated.

The jury chose to accept the testimony of the State’s witnesses and to reject that of appellant and we find the evidence sufficient to sustain their verdict.

Appellant predicates his appeal upon the contention that the court erred in overruling his amended motion for new trial based upon alleged jury misconduct.

At the hearing on said amended motion the juror Straub testified as follows:

“Question: State whether or not anything was stated about this being the third or second offense of Mr. Fain.
“Answer: Yes. Definitely there was discussion there. * * * There definitely was discussion. There was bound to be, while it was never brought out it was not permissible — any previous offense of a person — there was naturally a certain amount of supposition there, and you yourself (appellant’s counsel) kept bringing out in the trial that it was very important that he not be found guilty because there would be the possibility that he would lose his driver’s license.
“So naturally, the Jury was led to believe that he had been a previous offender. We didn’t know one way or the other. That was for us to determine. That was just one of the points we based our judgment on.
* * * * * *
“Q: And was there evidence introduced in the trial that this man had committed some traffic offense before ?
“A: As I recall, the officer said that immediately after apprehending Mr. Fain he had made the statement that he didn’t want to get another ticket or something to that effect.
“Q: All right. I will ask you whether or not there was any consideration of anything else other than that, any discussion of anything like that, in the Jury Room?
“A: Definitely not.”

The record reflects that on cross-examination by appellant’s counsel the arresting officer testified that appellant told him at the time of his arrest “if he got another traffic conviction he would lose his driver’s license.” Thus we see that the discussion in the Jury Room related to testimony adduced during the trial.

Under the record the court did not err in overruling the amended motion for new trial.

The remaining contention that appellant has been deprived of a complete statement of facts of the evidence adduced upon the hearing of the motion for new trial is without merit. The record reflects that on July 14, the appellant was accorded a full hearing on his amended motion for new trial and the statement of facts includes all of the evidence adduced at the hearing.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Lloyd Madison STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 34367.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    Jack W. Knight, Houston, for appellant.
    Henry Wade, Criminal Dist. Atty., Frank Watts, James K. Allen, Phil Burle-son, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802c, Vernon’s Ann.P.C., for the offense of murder without malice with punishment assessed at confinement in the penitentiary for a term of five years.

The State’s testimony shows that on the day in question, an automobile in which appellant and his two companions, Billy J. Matthews and William H. Vaughn, were traveling, collided with a Chevrolet automobile around 6 P.M. at the intersection of Westmoreland and Ledbetter streets in the city of Dallas. In the collision appellant and his companions received certain serious injuries and four persons riding in the Chevrolet automobile were killed.

It was shown by the State’s testimony that prior to the collision appellant and his two companions had been together drinking. They first met at the Manhat-ten Club around 4:30 P.M. at which time appellant had a pint bottle of scotch whiskey one-fourth full. After he and Vaughn consumed the whiskey they purchased a fifth of Ballentine Scotch Whiskey which they opened and each mixed a drink. The three then left the place and drove to Hall’s Drive In in appellant’s automobile. Appellant drove the car. While driving between the two places appellant and Vaughn finished their drinks. At Hall’s Drive In appellant and Vaughn each mixed another drink which they consumed. During all of the time Matthews was drinking beer. At 5 :30 P.M. they left Hall’s Drive In and drove to Westmoreland Heights Shopping Center where Vaughn got out of the automobile, went into a store, cashed a check, and purchased some cigarettes. He then returned to the automobile and got in the front seat with appellant and Matthews. Appellant, who was sitting under the steering wheel, then proceeded to drive the automobile from the place to the intersection where the collision occurred. Vaughn testified that while driving from the shopping center to the point of the collision appellant drove the automobile at a speed in excess of 100 miles per hour and that at least “three, four or five” times he screamed to the appellant “For God sakes slow down!” but'that appellant did not heed his warning and continued driving at the high rate of speed. Vaughn also testified that in his opinion appellant was on such occasion under the influence of intoxicating liquor.

The proof shows that after the collision the two automobiles left the ground and came to rest on top of a 5½ ft. embankment with the front of the appellant’s automobile embedded over ¾ way into the right side of the Chevrolet. The Chevrolet had moved 46 feet from the point of impact and there were skid marks 56 ft. in length in a southerly direction on West-moreland Street. In the collision appellant and two of the occupants of the Chevrolet automobile were thrown from the vehicles in which they were riding. A partially empty bottle of Ballentine’s Scotch Whiskey was found in appellant’s automobile. Accident Investigator Middleton, who went to the scene testified without objection that in his opinion the appellant’s automobile was traveling south on West-moreland and the Chevrolet automobile was traveling west on Ledbetter. The officer testified that he could smell the odor of alcohol on appellant’s breath at the scene of the accident. He further testified that in a conversation with appellant later in the evening at the hospital, appellant told him that the car belonged to his wife and that he was driving it at the time of the collision.

As a witness in his own behalf appellant stated that because of certain head injuries which he sustained he did not remember the collision. Appellant admitted that prior to the accident he had a drink of whiskey and one beer but denied that he was intoxicated. Appellant stated that while he did not remember the collision, he was under the impression that Matthews was driving the automobile and denied that he was the driver.

Witnesses were called by appellant who testified that they had observed him prior to the collision on the afternoon in question and expressed the opinion that at such time he was not intoxicated.

The jury by their verdict resolved the disputed issues against appellant and we find the evidence sufficient to support their verdict.

Appellant complains of the court’s charge on the ground that it did not properly instruct the jury on the required causal connection between his intoxication and the collision necessary to convict under the statute.

Appellant relies upon the decisions by this Court which hold that in prosecutions of this nature it is the court’s duty to instruct the jury as to the causal connection between the accused’s intoxication and death of the deceased necessary to convict.

In submitting the issue of appellant’s guilt to the jury the court instructed as follows:

“Now, therefore, I instruct you that if you find and believe from the evidence beyond a reasonable doubt that the Defendant, Lloyd Madison Stewart, as charged in the indictment, in the County of Dallas, and the State of Texas, on or about the 17th day of December, 1960, did then and there unlawfully while intoxicated or while under the influence of intoxicating liquor drive or operate a motor vehicle, to-wit: an automobile, upon a public road and highway in Dallas County, Texas, and did then and there in the execution, if any, of said unlawful act, if any, through mistake or accident kill Catherine Murphy, Stephen Rowe, Cris Rowe and Elisabeth Rowe Murphy, by then and there driving said motor vehicle into and causing it to collide with an automobile then and there occupied by the salid * * *, and that there was then and there no intention on the part of the said Lloyd Madison Stewart to kill the said * * *, if he did, then you will find the Defendant guilty of Murder Without Malice as charged in the indictment * * *

As heretofore shown, appellant denied that he was intoxicated and that he was the driver of the automobile at the time of the collision.

Under the evidence there was no issue raised that the cause of the collision and death of the deceaseds was entirely disconnected with appellant’s intoxication and therefore a defensive charge as to the causal connection was not required.

The charge given by the court, under the evidence presented, was sufficient; hence no error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Herbert Dunlavy TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 34222.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    Spence, Martin & Richie, by Gene Richie, Wichita Falls, for appellant.
    Donald E. Short, County Attorney, Paul H. Brunette, Glynn R. Purtle, Assistant County Attorneys, Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, seven days in jail and a fine of $75.

The evidence shows that about 10 P.M., January 7, 1961, the appellant, while operating his automobile upon a public street, drove it into the rear of an automobile which was stopped at an intersection for a red light. After the collision, appellant was found slumped over the steering wheel of his car and had to have assistance in getting out. Appellant’s speech was slurred, he staggered while walking and had the odor of alcohol on his breath. An almost empty fifth of whiskey, six cans of beer, and one empty beer can were found in his car. Two witnesses who observed the appellant at the scene expressed the opinion that he was intoxicated.

The appellant did not testify but called one witness who testified that about 10 P.M. the appellant drove his car onto the lot of a drive-in where she was working as a waitress. She stated that appellant’s face was covered with blood and his lips and mouth were cut and bruised; that he came inside the building and she washed the blood off of his face. She further testified that he was not staggering and was not intoxicated. She also testified that about 10:15 P.M. she saw a wrecker towing appellant’s car past the drive-in.

Appellant contends that the trial court erred in refusing to grant a mistrial when the state, in the presence of the jury, called one of appellant’s counsel as a witness for the state.

When the appellant announced he rested his case, the state’s attorney said: “We have a rebuttal witness * * * Mr. Richie (one of appellant’s attorneys).” Next, the court retired the jury. No questions were asked of Mr. Richie or any statement made by him before the jury. In this, there is no error.

Error is urged on the ground that the trial court erred in refusing to grant appellant’s motion for a mistrial when Robin Brown testified twice that she had never seen the appellant when he was sober.

Robin Brown, age 13, testified twice, without objection, that the only time she had ever seen the appellant was when he was drunk. Next, she was asked: “Did you ever see him sober?”, which was not answered. At this time appellant said: “We object to that as not being responsive * * * and is highly prejudicial”. The objection was sustained and the jury instructed not to consider it. Appellant then moved for a mistrial which was overruled. This sequence of events does not reflect reversible error.

Appellant contends that the trial court erred in permitting Delbert Deford to testify to other and extraneous offenses committed by him.

After Deford’s testimony was developed in the absence of the jury, the appellant objected to its admission in evidence because the date of the occurrences related by him was uncertain and too remote, and that the occurrences were immaterial to any issue and involved extraneous offenses.

Deford testified before the jury that about 3:30 P.M. on a Saturday in January, Mary Sue Brown and appellant drove into his service station; that appellant had the odor of whiskey on his breath, and he believed that appellant was drunk. Noticing that she had a cut over her nose, he told appellant not to hit her any more as long as she was in the driveway, even though he admitted that he did not know how Mary Sue had been injured. She then drove to the edge of the driveway, backed up, threw a .22 rifle on the driveway, and drove away. Deford stated that the appellant had a fifth of whiskey with him and drank some of it while inside the station.

The testimony further shows, without objection, that between 7 and 8 P.M., on January 7, the appellant, while intoxicated, went to see Mary Sue at her parents’ home and tried to get her to come out of the house. When he was told that she did not want to see him, he pulled on the door and insisted on entering, which conduct resulted in a fight and he was struck twice in the mouth causing much loss of blood.

The testimony that appellant, on a Saturday in January, was drinking from a fifth of whiskey that he had with him at the service station; that he had an almost empty fifth of whiskey at the time of the collision at the intersection on January 7; that Mary Sue had a cut over her nose at the service station and also when appellant came to see her at her parents’ home between 7 and 8 P.M. on January 7, was admissible as showing the date of the said occurrences and appellant’s intoxication.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    James Charles WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 34468.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Jon N. Hughes, Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder without malice (Art. 802c Vernon’s Ann.P.C.) ; the punishment, 3 years.

The evidence shows that appellant was driving a Cadillac automobile; that he failed to stop at a stop sign at an intersection, and without reducing his speed ran into the side of the Chevrolet automobile driven by Donald R. Higgenbotham; that Higgen-botham died several weeks thereafter as a result of the injuries he received in the collision, without regaining consciousness.

Officers who observed appellant at the scene testified that he said he was the driver of the Cadillac; that he had been drinking, and that he did not see the stop sign.

One of the officers, Accident Investigator Lewis M. Elliott, testified that appellant’s hair was dishevelled, his eyes were bloodshot, and that he could not answer a question without backing up and starting the sentence over again; that appellant had a strong odor of an alcoholic beverage about his person and breath; that he had difficulty in maneuvering and in his ability to stand erect; that he had a weaving motion about him, and that he formed the opinion that appellant was intoxicated. He also testified that the other occupant of the car, a female, had the odor of alcoholic beverage on her breath.

Deputy Sheriff P. A. Cashiola, who observed appellant and talked to him at the scene and identified the vial of blood taken from appellant in his presence some 2 hours after the collision, expressed the opinion that appellant was intoxicated.

The evidence shows that the blood of appellant contained nineteen hundredths of one percent alcohol by weight, the point at which a person with the greatest tolerance to the effect of alcohol is intoxicated being ten hundredths of one percent.

The appellant testified. His version of the accident was that he applied the brakes, and they failed to hold; that he had been checking the brakes and had put brake fluid in the master cylinder; that he had not been drinking prior to the accident; that he walked around and talked to several people for close to an hour after the collision before he was asked to get in the sheriff’s car. He estimated that it was around 30 minutes after he got in the car before they left the scene of the accident, and that he lost consciousness and when he came to the next day he was in the hospital.

Appellant’s witness Robert McAfee Jr., detective with the Houston Police Department, testified that he had some conversation with appellant at the scene of the collision; that he did not smell any alcoholic beverage on him, though he was close enough to him to tell and that appellant was sober. He testified on cross-examination that he was in the wholesale gasoline business and that appellant was his customer.

On his cross-examination appellant testified that after the accident and after he was away from McAfee, someone handed him a bottle and he drank from it, and if the blood test showed he was drunk, it was-the alcohol he took after the accident.

The witnesses Cashiola and Elliott were recalled in rebuttal. Cashiola testified that he arrived at the scene of the collision about 3 minutes after he received the call; that it could have been S minutes at the most from the time he arrived until he saw appellant and placed him in the sheriff’s car,, and that appellant did not at any time say that a brake failure was the reason he dicf not stop.

Elliott’s testimony was to the same effect.

The jury accepted the state’s version and rejected appellant’s claim that a brake failure was the cause of the accident, and that he had not been drinking prior thereto.

No brief has been filed in appellant’s behalf.

Two claims for reversal appear to warrant discussion.

Appellant excepted to the court’s refusal of his special charge which would have instructed the jury in effect that if they believed or had reasonable doubt that the defendant was operating the motor vehicle in a manner the same would have been operated by a person who was not intoxicated, and that the collision or accident was caused by the defective condition of the mechanism of the motor vehicle, they should acquit.

The court in his charge required the jury, in order to convict, to find beyond a reasonable doubt that appellant was intoxicated, and that the fact he was intoxicated was the cause of or contributed to the cause of the collision. The jury was also instructed that even though they found that appellant was intoxicated at the time, he would not be guilty of murder if he was operating the automobile in a manner such as a person not under the influence of intoxicating liquor would operate it.

The charge as given appears to have been sufficient to protect appellant’s rights, and the refusal of the requested charge was not prejudicial or reversible error. McKinnon v. State, 159 Tex.Cr.R. 65, 261 S.W.2d 335.

During the cross-examination of the appellant he was asked: “Do you have any witnesses here to testify to your good character ?”

The court promptly sustained the objection made by appellant’s counsel (which stated no ground), and instructed the jury when requested to do so, not to consider the question.

In view of the court’s ruling and instruction, the overruling of appellant’s motion for mistrial is not ground for reversal.

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

The judgment is affirmed.


author: McDonald, judge.

text:
    Ollie POLK, Appellant, v. The STATE of Texas, Appellee.
    No. 34445.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    J. C. Whitfield, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawfully carrying a pistol; the punishment, 180 days in jail.

Evidence adduced upon the trial below is before this Court by an agreed statement of facts in narrative form.

Officer T. J. Karalis, of the Houston Police Department, testified that on the night of November 5, 1960, while on routine patrol, he stopped at the Rose Kitchen, located in the City of Houston; that he observed appellant “staggering” in his walk and upon engaging appellant in conversation, noticed that, he talked with a “thick tongue”; that appellant’s breath smelled of alcohol; that in his opinion appellant was at such time drunk; that he placed appellant under arrest and a search of his person revealed a .38 caliber “snub nose” revolver in his trouser pocket.

Appellant, testifying as a witness in his own behalf, stated that the pistol had been stored at a friend’s house for some two months prior to his arrest; that on the night in question, he picked up the pistol and was on his way home when he noticed a woman acquaintance in a tavern which he passed; that he went inside and was drinking a coke when arrested. He further stated that he didn’t display the pistol to anyone, but kept it concealed in his pocket.

The jury resolved the issue of appellant’s guilt in favor of the State and we find the evidence sufficient to sustain their verdict.

The record before us contains no formal bills of exception and there are no objections to the court’s charge.

Appellant first contends that his arrest was illegal. An examination of the record reveals that no objection was lodged by appellant which would raise the question of legality of the arrest.

He next complains of the overruling of his motion for new trial in which he alleged jury misconduct and misconduct of the State’s witness, Karalis, in communicating with a member of the jury. The motion for new trial is but a pleading and as such must be supported by proof. The record does not contain a statement of facts of any evidence adduced upon the hearing of the motion, in the absence thereof, appellant’s complaint is not properly before us for review. Art. 760e, Vernon’s Ann. C.C.P.; Lucas v. State, 153 Tex.Cr.R. 11, 216 S.W.2d 820; Rogers v. State, 161 Tex.Cr.R. 536, 279 S.W.2d 97 and Crownover v. State, 162 Tex.Cr.R. 470, 286 S.W.2d 624.

No reversible error appearing, the judgment is affirmed.


text:
    Bobby LINK, Appellant, v. The STATE of Texas, Appellee.
    No. 34362.
    Court of Criminal Appeals of Texas.
    March 14, 1962.

      Richard D. Bird, Childress, for appellant.
    Jack E. Hightower, Dist. Atty., Vernon, Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in Wilbarger County, after a change of venue from Hardeman County, for the offense of cattle theft; the punishment, two years.

The testimony shows that Foy Horton and W. C. Howard had been in the ranching business for many years. On Friday, April 22, when one of their cows was bawling and walking along the fence, they investigated and found that a small white-faced calf with a swallow fork mark in each ear, belonging to them, was missing, and that an examination of the fences failed to show where it could have gotten out. They testified that they did not give anyone their consent to take the calf. Howard testified that on Sunday, April 24, he saw a calf coming down the road about a mile east of his pasture; that it was his calf that was missing, and he put it in his pasture. Horton testified that when he next saw the calf it was back in the pasture sucking its mother. He further said that the calf after its return, had the end of each ear cut off, but that there was a little of the swallow fork mark left in the ear.

The Sheriff and Horton traced the tracks of the calf to the farm of J. E. Troublefield. Troublefield testified that about April 21, he agreed to let Dale Barnett put a calf in his barn until Dale could sell it; that it was a white-faced calf and that it later got out of the barn.

Dale Barnett testified that about April 21, his brother, Willie Barnett, told him that he put a calf in Troublefield’s barn. He went to the barn to see the calf and on finding it already marked, he cut the ends of the calf’s ears off which was his mark. The testimony of Willie Barnett shows that he and the appellant took a young calf, which was ear marked, out of Horton’s pasture after dark, April 21, 1960, and put it in Troublefield’s barn, and that he told Dale about it.

Appellant’s written statement recites that he and Willie Barnett took a young calf of Horton’s out of a pasture, put it in his car and took it to a barn on a farm; that Dale and Willie told him the calf had ear marks and Dale put his ear mark on the calf.

The appellant did not testify or offer any evidence in his behalf.

Appellant contends that the trial court erred in changing the venue from Hardeman County to Wilbarger County on the ground that a second indictment had been returned and he had not been arrested or made bond under the second indictment.

After 'the indictment had been returned against the appellant in this cause, he and his counsel appeared in said court and appellant filed his application for a change of venue. The application was granted and the venue changed to Wilbarger County. At this time the appellant and his sureties entered into a recognizance for his appearance before the District Court of Wilbar-ger County. When this cause was called for trial, the appellant appeared in person. No motions for continuance or postponement were filed. It is apparent from the above facts that the contention presents no error.

Complaint is made of that portion of the witness Howard’s testimony when he said "As soon as the calf went back to the cow and was sucking, I just went on back to town,” on the ground that it was implying that the calf was sucking its mother. In view of the witness Horton’s testimony without objection, that after the calf was returned to the pasture he saw it sucking its mother, no error is presented.

Error is urged because the witness Howard testified that he thought the calf was taken out of the pasture; and that he thought the calf could have gotten through the fence unassisted, but he did not think it would. If this testimony presents error it was rendered harmless by the introduction of appellant’s written statement and the testimony of the accomplice that they took the calf out of the pasture.

Appellant contends that the trial court erred in failing to submit to the jury the issue of the voluntariness of the confession.

This contention rests on Sheriff Owen’s testimony before the jury that he told the appellant to tell the truth; that it would be better for him to tell the truth; and he explained to him that if he did not it would still be against him.

The admonition to tell the truth is not the type of inducement which would require a rejection of a confession. The evidence did not raise the issue of the involuntary character of the confession, hence no charge thereon was required. 2 Texas. Law of Evidence, 81, Sec. 1204; Smith v. State, 91 Tex.Cr.R. 15, 237 S.W. 265.

Appellant further urges error on the ground that the confession was not formally introduced in evidence.

The record shows that certain designated portions of the written confession were read to the jury by the county attorney, the person to whom it was made. There was no objection to the fact that it was not formally introduced in evidence.

Testimony read into the record is tantamount to the introduction in evidence of the documents from which the testimony was taken. 18 Tex.Jur. 363, Sec. 230.

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


text:
    Kenneth LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 34209.
    Court of Criminal Appeals of Texas.
    March 7, 1962.

      Boulter, Fowler & Tunnell, by Joe Tun-nell, Tyler, for appellant.
    Weldon Holcomb, Crim. Dist. Atty., R. S. Burruss, Jack G. Norwood, Asst. Crim. Dist. Attys., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an order of the 114th Judicial District Court of Smith County, revoking the probation of the appellant. Appellant was convicted in said court on March 2, 1959, of the offense of burglary and assessed five years imprisonment, probated on the usual terms and conditions. A hearing on the application of the district attorney to revoke the probation, had in the trial court on July 21, 1961, resulted in the Order of Revocation. Such order reduced the five-year sentence originally imposed to a two-year sentence, and in turn the court then revoked the two-year probationary sentence and required the appellant to serve it. Appellant then moved the court to reopen the hearing, held as a result of the district attorney’s motion, and hear additional testimony. The court granted the request and, at the conclusion of this second or reopened hearing had on July 31, 1961, adhered to its previous ruling of July 21, 1961, to which action taken by the court at both hearings the appellant excepted and gave notice of appeal to this Court.

: The statement of facts filed in this cause •constitutes the testimony adduced upon the hearing in the trial court on July 31, 1961; and with the exception of four exhibits does not contain the testimony adduced upon the hearing of July 21.

In an appeal from an order revoking probation the review is limited to the question of whether an abuse of the trial judge’s discretion is shown.

In absence of all the facts adduced at the hearing which resulted in the revocation of appellant’s probation we are in no position to pass upon the question. Bills v. State, Tex.Cr.App., 258 S.W.2d 804.

The judgment is affirmed.


text:
    Alton Barton CONLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34469.
    Court of Criminal Appeals of Texas.
    April 4, 1962.

      W. E. Martin (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward Nesbit Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the possession of heroin, a narcotic drug; the punishment, five years confinement in the penitentiary.

The State’s proof shows that on the date alleged, certain officers, armed with a search warrant, went to an apartment located at 114 Linden Place in the City of Houston. After Officer Garthman knocked, appellant came to the door dressed in dark pants and a light colored sport shirt and opened the door as much as possible with the night latch chain fastened. Upon being informed that they were police officers, appellant turned and walked hurriedly toward the back of the house. Thereupon, Officer Garthman forced the door open and the officers went inside the apartment. When they entered, appellant was in the living room and proceeded to take his hand out of his right front pants pocket and drop a small package to the floor. Officer Garthman recovered the package and found that it contained a capsule filled with white powder. An analysis of the contents of the capsule by Chemist and Toxicologist Floyd McDaniel disclosed that it contained approximately a grain of powder which was 30.4% pure heroin. In searching the apartment the officers observed a man’s black sport coat draped over a chair in the living room in which they found a doctor’s hypodermic syringe and two needles. An analysis of the syringe and one of the needles revealed that they contained 225 micrograms of heroin. The only other person present in the apartment when the officers entered was a woman who was asleep in a back bedroom. While the officers were in the apartment two' couples came to the premises and were placed under arrest and searched. A search of the first couple disclosed that the man had three morphine tablets in his sock and the woman had six “red birds” on her person. No narcotics were found in the search of the second couple.

Appellant did not testify but offered evidence that the apartment was rented to one Dolores Hart who was not present at the time the officers entered and searched the same. The manager of the apartment upon being called as a witness testified that appellant had not been seen around the apartment at any time.

We find the evidence sufficient to sustain the conviction.

Appellant predicates his appeal upon one bill of exception which complains of the court’s refusal to give his special requested charge which would have instructed the jury as follows:

“Gentlemen of the jury;
“You will disregard any and all testimony, sights or sounds or evidence of any kind whatsoever, that you may have been exposed to in the course of this trial, concerning one hypodermic syringe and two hypodermic needles that were consistently offered by the prosecution and not admitted in evidence.”

While the hypodermic syringe and two needles were never offered in evidence by the State, they were produced in court and identified by the witnesses as having been taken from the man’s coat found in the living room of the apartment on the occasion in question. The finding of the syringe and needles was a part of the search by the officers and proof thereof was admissible. Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264, cert. den. 359 U.S. 919, 79 S.Ct. 599, 3 L.Ed.2d 581 and Garcia v. State, Tex.Cr.App., 340 S.W.2d 803.

In refusing the requested charge, the court did not err.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Gene Carroll BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 34167.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Allan J. Showers, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, life.

The testimony reflects that the deceased, John Farris, and his companion, R. D. Andrus, after spending several hours at the Electronic Lounge, were leaving at the time the lounge closed after midnight. As they were leaving they helped push and start a car driven by Mrs. Ruth Jackson, who had been working at the Electronic Lounge that evening. Mrs. Jackson was accompanied by Doris Green.

The appellant had also been a patron at the same lounge that evening, but it seems that he and the deceased, and the deceased’s companion had had no conversation or any difficulties that evening. Prior to closing time, the appellant had been accompanied by Doris Green while he took his nephew home. This apparently took only a short period of time, and Doris Green went back into the lounge just before it closed.

Farris and Andrus, after helping Mrs. Jackson start her car, followed in their car down the road to a drive-in where both cars stopped. Almost immediately a brown pickup driven by the appellant drove up beside Mrs. Jackson’s car. The vehicles were stopped for only four or five minutes. While stopped, Farris conversed with Mrs. Jackson and Doris got out of Mrs. Jackson’s car and talked to the appellant. It appears that Mrs. Jackson also talked to the appellant, and he told her that he wanted to take Doris Green home. Mrs. Jackson informed the appellant that Doris was going home with her. The appellant then told her he wanted to talk to Farris and Andrus, that he “had something that would make them talk his way.” The parties then drove on a short distance, and the deceased stopped his car and Mrs. Jackson drove up behind him and stopped. While standing close to the back of her car with John Farris, the deceased, Mrs. Jackson “heard something go like a firecracker” and saw the deceased “catch his shoulder”. She saw the appellant standing by his pickup and “he had something in his hand with fire coming out of it”. She heard five or six other shots fired in rapid succession and then heard a clicking sound.

Andrus got out of the deceased’s car when he heard the first shot and ran to the deceased who told Andrus that he had been shot and asked Andrus to get him to a doctor. Andrus described the shooting in substantially the same manner as Mrs. Jackson. They said the appellant then got in his pickup and left at a rapid rate of speed, spinning his wheels as he left and almost struck Mrs. Jackson with his pickup.

Highway Patrolman Ben L. Bean testified that he arrested the appellant while he was driving a Falcon pickup truck in the vicinity of Dayton in Liberty County. When he was arrested, the appellant had eleven live rounds of .22 caliber ammunition in his pocket. The appellant was then taken to the Liberty County Courthouse where he was picked up by officers of the Harris County Sheriff’s Office. The appellant was removed to the Harris County Jail, and his pickup truck was driven to the Harris County Courthouse. A search of the pickup revealed a .22 caliber revolver hidden in the compartment under the dash board. Ballistics tests made showed that slugs taken from the body of the deceased had been fired by the pistol recovered from the appellant’s pickup. A paraffin test, which was made on the appellant’s hand, revealed a heavy concentration of nitrate particles on his right hand indicating that he had recently fired a gun.

Dr. W. W. Coulter, a pathologist in the Medical Examiner’s Office, testified that the cause of death of John Farris was a gunshot wound in the left chest. He further testified that he had examined the body and had found three gunshot wounds.

The appellant took the stand and testified in his own behalf. He testified that he had been convicted of robbery and had served his time' in the penitentiary, and that he had come to Houston, Texas, from Kentucky to visit some of his relatives. That he had carried the pistol with him on his trip from Kentucky for his protection. On the night in question the appellant testified that he and a fifteen-year-old cousin were at the Electronic Lounge, and just prior to closing time he was going to take the boy home and “run by” and see his grandfather and take his grandfather a “few beers”. He said that as he was leaving the Electronic Lounge Doris Green, who had been sitting at his table, complained of being sick at the stomach and he asked her if she would like to go for a ride and get a little fresh air, and perhaps it would make her feel better. He testified that she rode with him to his grandfather’s place which was about two miles from the Electronic Lounge. As they returned to the lounge, he said that he dropped a cigarette in the seat and after he stopped he was trying to find the cigarette so it would not cause a fire. Doris Green went back into the Electronic Lounge. At this time, he noticed that one of the billfolds which he was carrying and which contained approximately $87.00 was missing. By this time he saw Doris Green and Mrs. Jackson in Mrs. Jackson’s car, and the deceased and Andrus in the deceased’s car pushing the Jackson car to get it started. He said that he followed their cars in order to ask Doris Green about his money. The appellant said as he pulled up behind Mrs. Jackson’s car on the road, he thought he heard the deceased say as he got out of his car. “I will get this punk off our trail, and he didn’t exactly stop, he just momentarily slowed down and said, T will get this punk off our trail’, that is what is sounded like to me, and proceeded on toward me.” He said that the deceased was a “pretty good-sized hoy around 200 — pretty good size”; that he did not want to have a fist fight with him so he stepped outside his car and fired three times at the feet of the deceased. The deceased did not stop but kept coming, then “he momentarily stopped and I told him that if he’d come and give my money back, just throw it down in front of the lights and I’d get it and he could go on about his business, that I didn’t want to hurt no one.” He further testified that the deceased kept coming toward him and the appellant “put three more at his feet”; and he said to the deceased that he did “not want to have any trouble with him and if he would just bring his money, just drop it right there”. The deceased then said to him, “I ain’t got your money” and lunged at the appellant. The appellant then shot at Farris three times. He further testified that through fright he left the scene and started to return to Kentucky.

The jury accepted the State’s theory of the case and rejected that of appellant and we find the evidence sufficient to sustain their verdict.

The court’s charge was full and complete and included an instruction on murder without malice, the right of self-defense, and adequately protected all of the rights of the appellant. There were no formal bills of exception filed, but several informal bills of exception were reserved in the statement of facts filed herein.

It is the contention of the appellant that the trial court erred in admitting certain testimony which, under the State’s theory of the case, showed a motive for the killing of John Farris by the appellant.

Mr. T. J. Griffin, proprietor of the Riverside Inn, testified that on the evening of December 1st, 1960, he was introduced at his place of business to the appellant by Dude Landrum. At the time of the introduction while the appellant was still standing within three or four feet and in a position where he could hear, John Far-ris, the deceased, spoke up and said to Griffin “Tommy, watch that fellow over there (referring to the appellant). He’s an ex-convict and he is just out of Alcatraz for bank robbery, and I know something that will send him back and he knows that I know it.” Immediately after this was said by Farris, Landrum and the appellant paid a deposit on the bottles containing the beer which they were drinking and left Griffin’s establishment.

We hold this evidence was admissible to show that the appellant had a motive for killing Farris. If the appellant heard deceased’s statement and it was known or thought to be true by the appellant, it would furnish a motive for silencing Farris by killing him.

The question of whether or not Farris' statement to Griffin was heard by the appellant would be a question of fact to be decided by the jury. No request was made by appellant for a special charge instructing the jury not to consider such evidence if they believed it had not been heard by the appellant. All of the evidence shows he was in a position to have heard the statement, and his actions showed that he did. 24 Tex.Jur.2d, sec. S6S, pp. 78-80; LaGrone v. State, 61 Tex.Cr.R. 170, 135 S.W. 121 and Powell v. State, 99 Tex.Cr.R. 276, 269 S.W. 443. The evidence of the prior conviction was already in evidence as the appellant, himself, had so testified. The trial court did not err in admitting this evidence.

Appellant also contends that the trial court erred in permitting the State to introduce photographs showing where Far-ris fell after being shot. State’s Exhibit No. 2 was the body of Farris fully covered by a sheet, and State’s Exhibit No. 8 shows the deceased fully clothed and was taken at such an angle that only the lower extremities of his body are shown. In neither picture is there visible any blood or anything of an inflammatory nature. There was a conflict of testimony between that of the appellant and other witnesses as to where the deceased was standing when he was shot and where he fell. These photographs were admissible to illustrate a disputed issue. Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625; Cantrell v. State, 156 Tex.Cr.R. 329, 242 S.W.2d 387; Bell v. State, Tex.Cr.App., 340 S.W.2d 294; Wilkerson v. State, 342 S.W.2d 431; and Craig v. State, Tex.Cr.App., 347 S.W.2d 255.

Finding no reversible error, the judgment is affirmed.