text:
    Margaret McINTOSH, Appellant, v. ELECTRIC & WATER PLANT BOARD OF FRANKFORT, KY., Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.
    Edward F. Prichard, Jr., Frankfort, for appellant.
    Charles L. Hobson, Frankfort, for appel-lee.
   DAVIS, Commissioner.

This appeal presents the question whether the appellant was required to furnish the notice prescribed in KRS 411.110 as a prerequisite to her filing suit for personal injuries against the Electric & Water Plant Board of Frankfort. It was the view of the trial court that appellant’s admitted failure to furnish the statutory notice proscribed her right to maintain the action. We disagree and reverse.

Frankfort is a city of the second class. KRS 81.010(2). It had elected to operate the present electric and water system within the framework of KRS 96.172 to 96.188 while a third-class city; when its classification was changed to second-class city, the provisions of KRS 96.165 effectively continued in force the status of the Board. By the express terms of KRS 96.172(1) the appellee Board is “a body-politic and corporate” with power to sue and be sued. The Board has control of funds derived from its operations. KRS 96.181, 96.182.

The present action is not against the City of Frankfort. The notice prescribed by KRS 411.110 relates to actions against the city. There is no similar provision with respect to actions against an independent Board such as the present appellee.

Hancock v. City of Anchorage, Ky., 299 S.W.2d 794, is not controlling here. In the cited case the action was directly against the municipal corporation of Anchorage, which was operating its water system municipally, but not through an independent Board. We are not persuaded to the view presented ably by appellee that the word “city” as used in KRS 411.110 “embraces any action against any municipal agency which is a creature of the municipal corporation.” We are mindful of the purposes of the “notice” statute, but note that these purposes would not be subserved by compliance with the statute inasmuch as the notice would be given to city officers not charged with the responsibilities for the operation and affairs of the appellee Board.

We take this occasion to point out that KRS 411.110, limited in application to a narrow field of claims, is no longer adequate to serve its intended purpose in light of the broader exposure of cities to liability. Haney v. City of Lexington, Ky,, 386 S.W.2d 738. The desirability of enlarging the statutory notice to include all claims may commend itself to the legislative branch of government.

The judgment is reversed for further proceedings consistent with the opinion.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    CARGO TRUCK LEASING COMPANY, Appellant, v. James PIPER, d/b/a Piper’s Service Station, Appellee.
    Court of Appeals of Kentucky.
    Sept. 24, 1965.

      Robert C. Manchester, Thomas J: Marshall', Jr., Wheeler, Marshall & Manchester, Paducah, for appellant.
    Milton C. Anderson, Wickliffe, Nancy D. Montgomery, Clinton, Earle T. Shoup, Paducah, for appellee.
   CLAY, Commissioner.

This is a case in which the rights of appellant became lost in a maze of procedural complexities, in part attributable to consolidation for trial of three cases arising out of a motor vehicle accident.

Clyde Daws, an employee of appellee, lost his life in a collision between two tractor trailer trucks. One was driven by Daws and the other by an employee of the William Bonnell Company. Bonnell had leased its truck from appellant, but appellant was in no way responsible for its operation and by directed verdict was absolved of liability to any parties in the respective suits.

By cross-claim appellant had asked for recovery against appellee for the property damage to its tractor trailer unit. This liability could be based only on a finding by the jury that appellee’s employee Daws was negligent. It is not clear whether appellant made a motion for a directed verdict against appellee at any time during the trial; but if such a motion was made, it was properly overruled because, as mentioned above, appellant was entitled to recovery only if appellee’s employee was found negligent by the jury.

The first verdict of the jury was incomplete and the court thereupon resubmitted the case to it on form verdicts. One of these forms, to which appellant objected, gave the jury the option of finding for ap-pellee on appellant’s claim (although the only other alternative was to find for Bonnell, not for appellant, thus implying agency between Bonnell and appellant which did not exist). The jury found for appellee. Thereupon appellant moved for judgment notwithstanding the verdict.

The trial court’s disposition of the issue of appellee’s liability to appellant was in error. With respect to at least two other claims in these proceedings the jury found appellee’s employee Daws negligent. Had a proper form verdict been submitted, the jury must inevitably have found for appellant. Actually no jury verdict was necessary on this issue, because appellant’s right of recovery followed as a matter of law from the jury finding of Daws’ negligence. Although the jury also found Bonnell’s employee negligent, this negligence cannot be imputed to appellant. Thus appellee’s liability and appellant’s right to a favorable judgment are established.

The controversy on appeal resolves itself into the question of whether appellant properly preserved its right to a favorable judgment. (The amount of its damages was stipulated.) Appellee takes the position that appellant waived its right to object to the unfavorable verdict by failing to make a timely motion for rectification of any error in the verdict while the jury was available. This argument cannot be fitted to the facts of the action before us. The Crenshaw test (Smith v. Crenshaw, Ky., 344 S.W.2d 393) relied on by appellee applies to defects in verdicts rendered. Appellant’s objection was not to a defect in the verdict but to a defect in the form submitted. In light of the form submitted, the jury could have made no other finding and it would have been a futile gesture to send it back to reconsider the verdict.

Appellee also asserts that appellant’s motion for judgment notwithstanding the verdict was not the proper motion to obtain the relief it sought. In this appellee is correct. Appellant was not entitled to a directed verdict under CR 50.01- or to a judgment notwithstanding the verdict under CR 50.02. However, we are not disposed to permit the formal designation or name of a motion to control the rights of the parties where the nature of the relief sought is apparent and the substantive rights of the parties may be properly determined. See Blanton v. Pacific Mutual Life Insurance Company, D.C.N.C., 4 F.R.D. 200. As said in Moore’s Federal Practice, 2d Ed., Vol. 2, paragraph 7.05 (page 1547): “The 'nature and legal effect’ of a motion is determined by 'the substance, not the mere linguistic form.’ ”

Perhaps appellant should have moved for judgment on the verdict, or after judgment it should have made a motion under CR 59.05 to amend or vacate so much of the judgment as was adverse and enter a new one allowing recovery. As a matter of fact, that Rule was amended in 1960 for the very purpose of extending its coverage to a situation such as we have before us; that is, to enable a party to obtain a favorable judgment after a jury determination of an issue of liability between other parties which controls as a matter of law the rights of the moving party. See Clay, Kentucky Practice, Vol. 7, Comment 2; and Moutardier v. Webb, Ky., 300 S.W.2d 791.

Appellant throughout these proceedings has asserted its right to judgment against appellee conditioned upon a jury finding that appellee’s employee Daws was negligent in causing the accident which resulted in the stipulated damage to appellant’s vehicle. When the jury made such finding, appellant’s right to judgment coalesced as a matter of law. Its-motion for judgment notwithstanding the verdict should have been treated as a motion under CR 59.05, and the judgment should be altered and amended to grant this relief.

The judgment is reversed with directions to modify and amend the judgment consistent with this opinion.


author: POPE, Justice. GRIFFIN, Justice

text:
    N. E. GUTHRIE, Jr., Petitioner, v. NATIONAL HOMES CORPORATION, Respondent.
    No. A-10722.
    Supreme Court of Texas.
    July 28, 1965.
    Dissenting Opinion Oct. 6, 1965.
    Short & Smith, Wichita Falls, for petitioner.
    Fillmore, Schaeffer & Fillmore, Wichita Falls, for respondent.
   POPE, Justice.

National Homes Corporation sued N. E. Guthrie, Jr. and John D. Crow and recovered judgment upon a jury verdict against both for $780.00, owing upon what it alleged was a negotiable promissory note. The- Court of Civil Appeals affirmed. 387 S.W.2d 158. Guthrie alone has appealed and he has done so without bringing forward a statement of facts. He urges that he is not liable on a negotiable instrument on which his name nowhere appears, and also that the note contains a variance between the figures and the unambiguous written words that state the amount payable, in which case the courts below should have given controlling effect to the written words. It is our opinion that the instrument sued upon was not a negotiable instrument, and Guthrie is bound by the jury finding that he ratified it. We sustain Guthrie’s contention that the unambiguous written words control the figures.

The instrument sued upon is as follows:

“$5780.00 Electra Texas H 1962 “Ninety (90) Days after date for Value Received _I Promise To Pay to the Order of NATIONAL HOMES CORPORATION Five Thousand Eighty and 00/100 Dollars at Earl Avenue at Wallace. Lafayette, Indiana
It is hereby understood that $1000. overpayments will be made on future house deliveries until this obligation is paid.
With Interest at 6.5% per annum after date. All parties to this note, including endorsers and guarantors thereof, hereby waive presentment and demand for payment, protest, and notice of dishonor.
No-Due_/s/ John D. Crow Crow Construction Co.”

The instrument is non-negotiable. These words were written in longhand on the face of the note, “It is hereby understood that $1000. (sic) overpayments will be made on future house deliveries until this obligation is paid.” Goldman v. Blum and Heidenheimer Bros., 58 Tex. 630 (1883) says: “ * * * though the agreement or written instrument may have to some extent the form of a promissory note, and may use in its body the conventional terms that ordinarily invest such instruments with the character of negotiability, but if, by a stipulation in the body of the instrument, these elements which give it negotiability are limited and qualified, the negotiability of the instrument is destroyed * * See also, Martin v. Shumatte & Matthews, 62 Tex. 188 (1884). The additional terms written into the note burden it with the conditions of an extrinsic agreement and render it non-negotiable. Lane Co. v. Crum, Tex.Com.App., 291 S.W. 1084 (1927); Texas Land & Cattle Co. v. Carroll & Iler, 63 Tex. 48 (1885).

Parol evidence was properly admitted to prove that Guthrie ratified Crow’s execution of the note. Texas Land & Cattle Co. v. Carroll & Iler, supra; Grimes v. Hagood, 27 Tex. 693 (1864). National Homes Corporation, the payee, obtained a jury finding that Guthrie ratified the note and ratification is ordinarily a jury issue. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471 (1945). In the absence of a statement of facts, we must presume that the evidence supports the finding. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951). National Homes Corporation, therefore, proved that Guthrie was liable upon the non-negotiable note.

The trial court admitted parol evidence concerning the agreement between National Homes Corporation and Crow with respect to the amount payable. The jury found that the principal amount they agreed upon was $5780 as evidenced by the figures instead of $5080 as evidenced by the written words in the note. The jury also found that there was an unpaid balance of $780. In other words $5000 had been paid on the note. Guthrie contends, however, that the written words “Five Thousand Eighty and 00/100 * * * Dollars” are unambiguous and. that they prevail over the figures as a matter of law. That is the rule applicable to negotiable instruments. Section 17(4), Article 5932, Vernon’s Ann.Tex. Civ.St.; 11 Am.Jur.2d, Bills and Notes, § 158. It is our opinion that the reasons for the rule are sound and that the same rule applies and should apply to non-negotiable instruments. State v. Collier, 160 Tenn. 403, 23 S.W.2d 897, 901 (1930); Duvall v. Clark, 158 S.W.2d 565 (Tex.Civ.App.1941, writ ref. w. o. m.); Wallace v. Cook, 190 Ky. 262, 227 S.W. 279, 281 (1921); Romine v. Haag, 178 S.W. 147 (Mo.1915); 17A C.J.S. Contracts § 311. When there is a variance between unambiguous written words and figures the written words control, and the trial court erred in giving judgment based upon the figures. The amount payable was therefore “Five Thousand Eighty and 00/100 * * * Dollars” and according to the jury $5,000 has been paid. National Homes Corporation should have judgment for only eighty dollars.

The judgments of the trial court and the Court of Civil Appeals are accordingly reformed so that National Homes Corporation shall have judgment for the sum of eighty dollars. Costs are adjudged against the National Homes Corporation.

GRIFFIN, Justice

(dissenting).

I disagree with the majority opinion in the following particulars:

The majority has held the instrument in question to be nonnegotiable. I believe that this determination was unnecessary for the proper disposition of the case because the rights of the parties involved do not hinge on negotiability of the instrument.

The cause of action hinges on whether or not Guthrie ratified Crow’s action in making this instrument and thereby became bound as the Maker thereof. In the absence of a statement of facts it must be presumed that sufficient evidence was introduced to support the jury’s finding that Guthrie did so ratify Crow’s action in making the note. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946); Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683 (1951); City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952). As between Guthrie and National Homes Corporation, the established law of agency is that as soon as Guthrie ratified the making of the note by Crow he became subject to all the obligations that pertain to the transaction in the same manner and to the same extent that he would be, had the act been done originally by him in person. Mechem, Law of Agency, “Ratification,” § 178; Restatement of the Law of Agency, Vol. 1,. § 100; Gallup v. Liberty County, 57 Tex.Civ.App. 175, 122 S.W. 291 (1909) err. ref.; Hoffer v. Eastland Nat’l Bank, 169 S.W.2d 275 (Tex.Civ.App.1943) and copious authorities cited therein; Howth v. J. I. Case Threshing Machine Company, 280 S.W. 238 (Tex.Civ.App.1926) writ ref. in 116 Tex. 434, 293 S.W. 800. Inasmuch as no other defense was found in Guthrie’s favor, the jury’s finding that Guthrie ratified the making of the note not only conclusively established his liability on the note but also puts the parties to this case in proper focus as Maker and Payee. In a suit between the Maker of a note and the original Payee, it is established law in Texas that the original Payee is not a “holder in due course” and therefore is subject to every defense to which he would be subject if the note were nonnegotiable. Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256 (Comm. Appeals, Sec. B, 1932) opinion adopted; Stetson v. First Nat’l. Bank, 44 S.W.2d 792 (Tex.Civ.App.1932) err. ref.; Article 5935, Sec. 58, Vernon’s Ann.Civ. St. Since the Payee, National Homes Corporation, is subject to every defense available against a holder of a nonnegotiable instrument (which is no more than a simple contract), the majority’s determination of the negotiability of the instrument is, in my opinion, unnecessary to the case because the rights of the parties are determined by contract law and not negotiable instrument law.

The only question left to be decided is the amount for which Guthrie is liable. The jury found that the note should be in the principal amount of $5,780.00; that such note had not been paid in full; and that $780.00 principal- amount plus $168.31 interest remains unpaid on the note. In the absence of a statement of facts we cannot say that the judgment against Craw and Guthrie for the $780.00 plus the $168.31 was not authorized.

In Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, 685 (1951), this Court said: “In the absence of a statement of facts it must be presumed that sufficient evidence was introduced to support the findings of the jury and the judgment of the court. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946).”

In City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863(1), this Court said: “There being no statement of facts in the record we must presume that there was evidence to support the verdict of the jury and judgment of the court.” (Citing authorities.)

The majority, however, has withdrawn this question from the jury’s consideration and has held that as a matter of law the written words “Five Thousand Eighty and 00/100” are controlling: I cannot find an adequate basis for holding as a matter of law that typewritten words control over typewritten figures in a simple contract; the majority opinion doesn’t afford an answer but merely says that the “reasons for the rule are sound,, citing the rule applicable to negotiable instruments. The obvious basis for applying this rule to negotiable instruments is to aid the free flow of the instrument in commerce because to render a note negotiable the amount to be paid must be ascertainable from the face of the instrument. Furthermore, I do not believe that the four cases cited by the majority as authority for the rule that typewritten words control over typewritten figures will support such a rule.

The first case cited is State v. Collier, 160 Tenn. 403, 23 S.W.2d 897 (1930). In this case the State of Tennessee sued several defendants to collect delinquent state, county and city taxes. The defense to the action was that the statutes authorizing the collection of the taxes were unconstitutional because they were not read and passed on three different days in each house of the Legislature. The Senate Journal which recorded the history of these statutes was ambiguous in that the number of the bills did not conform to the description of the bills in all instances. In dictum the court said, “This ambiguity might be resolved by the application of familiar rule of construction of written instruments that words prevail over figures where there is a conflict between” (emphasis added), but the court goes on to ground their holding not on contract law, but rather by deciding that the Legislative file number was not a legal or constitutional part of the statute and the passage of the statute had conformed to the requirements of the Tennessee Constitution.

The second case cited, and the only Texas case to be found on the subject, is Duvall v. Clark, 158 S.W.2d 565 (Tex.Civ.App., 1941) ref. w. o. m. In this case an interest coupon note for $900.00 had the figures “900.00” typed in the left-hand margin. The figures “900.00” had been stricken by running a mark through the same and a penciled notation of “930.00” was placed in the margin to the right of the “900.00” so stricken. No changes were made in the typewritten words that constituted the body of the note. In answering the maker’s defense that this changing of the face of the note rendered it void in toto, the court said:

“It is elementary that the written words of an instrument control and prevail over figures. It is well settled that an alteration of an instrument, to have effect, must be a material one. In our opinion,, the penciled alteration was a marginal memorandum that did not change the original legal effect of the instrument, and therefore it was not a material alteration.”

It seems clear that the court was concerned here with an alteration and what effect should be given thereto. The facts of the case indicate that the opinion is not grounded on any rule establishing as a matter of law that the words in the instrument were controlling, but rather the court was trying to uphold the validity of the contract by determining that the handwritten figures did not materially alter the contract and thereby defeat its purpose. Furthermore, I think my interpretation is borne out by the fact that the only case which I can find citing this case cites it for the proposition that:

“The alteration to a written instrument, to render it void, must affect the liability of the parties, and must materially change the instrument, causing it to fail to reflect the meaning and intent of the parties to the agreement.” Associated Sawmills, Inc. v. Peterson, 366 S.W.2d 844, 848 (Tex.Civ.App., 1963) n. w. h.

Likewise, the remaining two cases cited, Wallace v. Cook, 190 Ky. 262, 227 S.W.2d 279 (1921) and Romine v. Haag, 178 S.W. 147 (Missouri Sup.Ct., 1915) do not rely on the rule laid down by the majority and in the latter case the court refers to the rule as an “inflexible rule” not applicable to the facts before them.

In reading these and other cases in other jurisdictions, my own conclusion is that the courts have confused this rule of negotiable instrument law which pertains to written figures and written words with the established rule of contract law that written words control over printed words and/or figures. There is sound basis for this latter rule in that the written or typed words are the immediate language of the parties themselves, whereas, the language of the printed form is intended for general use. See McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957). However, such a basis does not exist where typewritten figures conflict with typewritten words in a nonnegotiable instrument; a simple contract.

A written contract is no more, or less, than the integration in writing of terms already agreed on by the contracting parties. If the parties are in clear agreement as to the factual and legal result that they wish to accomplish and the scrivener captions the agreement with “$5780” in figures and inscribes in the body the words “Five Thousand Eighty and 00/100 Dollars,” the contract is burdened with a conflict patent on the face of the instrument. Since the parties thought the instrument contained words and figures which it in fact did not contain, their mistake is one of fact and is a proper case for reformation to correctly express the true intentions of the parties. Under the majority opinion, however, it is a mistake of law and the defense of “mistake of fact” is foreclosed. Suppose for example that A borrows $50.00 from B and the note recites “$50.00” in figures and “Five Hundred Dollars” in the body of the instrument. Can it be said as a matter of law that A owes B $500.00 ? Surely our system of justice permits no such result; and this is so whether B was likewise mistaken or knew of the conflict and seeks to profit thereby.

Equity grants relief where, as a result of a mistake by the parties in an effort to reduce their agreement to writing, the subsequent contract does not express their real agreement, and this is exactly what has happened in this case. The jury found in answer to special issues that the note in question should be in the principal amount of $5,780.00 and in the absence of a statement of facts this Court is bound to assume that there was evidence to support these findings and the judgment entered by the trial court. See Root v. Hester, 309 S.W.2d 480 (Tex.Civ.App., 1958) writ ref.; Kelley v. Ward, 94 Tex. 289, 60 S.W. 311 (1901); Miles v Martin, 159 Tex. 336, 321 S.W.2d 62 (1959).


author: McDONALD, Presiding Judge. MORRISON, Judge.

text:
    Curtis A. McCLANAHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38253.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 13, 1965.

      Jack W. Knight, Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty.,. Austin, for the State.
   McDONALD, Presiding Judge.

The offense is the unlawful sale of a narcotic drug, to-wit, demerol; the punishment, confinement in the Texas Department of Corrections for 7 years.

The indictment on which appellant was tried alleges in pertinent part that: “Curtis A. McClanahan on or about the 31st day of December, 1962, in said county and state, did then and there unlawfully sell to Ardelle LoCascio a narcotic drug, to-wit, demerol.”

Ardelle LoCascio was the first witness for the State. She testified that she presented to- appellant a forged prescription, purportedly signed by Dr. I. S. McReynolds, M.D., and made for the benefit of a Clara D. Elliott, when appellant sold her the demerol in issue. This forged prescription is State’s Exhibit No. 3 and is also Defendant’s Exhibit No. 1. It is dated 12-31-62. Mrs. LoCascio testified that she paid for the demerol on December 31, 1962, with a personal check made out to cash, and erroneously dated 1-2-1962. She had intended to make it for 1-2-1963, the 2nd day of the following month in the new year. This check was endorsed by typewriter on the back, reading “McClanahan Pharmacy For Deposit Only”.

Dr. McReynolds, who was purported to have signed the prescription, testified that he did not sign it, and that Mrs. LoCascio was not a patient of his.

Mrs. LoCascio testified that she liad known Mr. McClanahan for years, had traded with him extensively, had bought narcotics from him without a prescription previously, and that he had taught her how to forge prescriptions for narcotics. State’s Exhibits 1 and 2 include 23 purported prescriptions, which Mrs. LoCascio testified she forged. They were made out to the benefit of four different names, none of which was hers, and purported to be signed by two different doctors on their prescription blanks. Mrs. LoCascio testified she used all of them to obtain narcotics directly from appellant. She testified that she wrote some of these in the back of the drugstore. They were admitted on the limited issue of intent and system.

For the same limited purpose, more than 300 other purported prescriptions which appellant filled for narcotics, and marked as State’s Exhibit Nos, 13 through 45, inclusive, were introduced into evidence. Witness Bobby Carroll Parson testified that he forged most of these, that all of them were forged, and that he got them all filled by appellant. The prescriptions were made to various names, and the witness -testified that appellant would honor as many as three different prescriptions on three different doctors all at one time in one day and give him the narcotics, none of it being in his name. Parson testified that out of approximately 261 prescriptions that he passed in Houston, he passed all of them at McClanahan’s Pharmacy, excepting one. That one he attempted to pass at Jones Apothecary and got arrested as a result

Mrs. LoCascio testified that some of the drugs which Parson bought from appellant, Parson resold to her and her husband, and that appellant knew this and tried to discourage it.

Another group of purported prescriptions were filled by appellant for Kenneth Gayle Ferguson, who testified that he had known appellant for four or five years, that all of the prescriptions were to the name of a person other than himself, that appellant called him Gayle and sold him the drugs on presentation of these forged prescriptions.

Envelopes, in which Mrs. LoCascio had had films developed and which bore the name LoCascio were introduced into evidence without objection. Mrs. LoCascio testified that appellant wrote her name and address on the envelopes.

M. B. Hightower, a member of the Houston Police Department Narcotics Section, testified that he observed the prescriptions introduced into evidence when, in his capacity as a member of the Narcotics Section, he asked appellant to let him see his narcotics prescriptions for the preceding two years. This request was made in connection with examination of appellant’s records, the officer testified, without objection.

It was approximately January 16, 1963, that the officer had a conversation with appellant at appellant’s pharmacy at 5703 Almeda Road, Houston, Harris County, Texas, relating to the forged prescription which is State’s Exhibit No. 3 and Defendant’s Exhibit No. 1. This is a prescription for five ampules of demerol. It is this sale for which appellant was indicted. As they went through the prescriptions, Officer Hightower asked appellant if he could describe the person who passed or had that prescription filled, and appellant replied that lie remembered the individual. He described her as a female, red-headed, approximately 35 to 40 years old, and said her name was LoCascia or -LoCascio, or something of that nature, her first name being Ardelle or Odell.

Asked by Officer Hightower why he remembered this prescription particularly, appellant replied that Ardelle LoCascio had been in the store that day and had asked him if he had any narcotics, and that he told her, “Well, yes, but you will have to have a -prescription”. The woman said that she would go to her doctor and get one. She was gone a short period of time and came back with this prescription, and High-tower testified appellant said, “I know that she didn’t have time to go to the doctor”.

Appellant was asked then by Officer Hightower why he would fill this prescription, which was to the benefit of Clara D. Elliott, when he knew the individual’s right name. Appellant replied, “Oh, I didn’t even notice that”. The officer testified that when he questioned appellant as to why he did not require that the narcotic registry number of the doctor who wrote the prescription be placed thereon, he never received any answer from appellant.

Officer Hightower testified that appellant fold him 'he filled approximately 360 prescriptions for Bobby Carroll Parson. When the officer discussed with appellant that there were many different people named in the prescriptions as being the beneficiaries, and that Bobby Carroll Parson’s name did not appear, he got no answer. The officer testified appellant told him he knew the individual known as Kenneth Gayle Ferguson.

During his direct examination, the officer testified, without objection, that demerol is a trade -name for isonipecaine, being the trade name of Winthrop Pharmaceutical Company for isonipecaine.

On cross-examination, Officer High-tower, in reply to questions of appellant’s counsel, testified that he determined appellant was a duly licensed and practicing pharmacist under the laws of the State of Texas, and had a current narcotics permit from the 'United States Government on display. Appellant’s counsel also brought out that when the officer asked, appellant why he didn’t notice the names of the persons getting the prescriptions, appellant replied variously: “I just didn’t notice it”, or “Oh well, that is all right.”

Being asked if the law didn’t require a doctor to put his narcotic stamp number on his prescription, the appellant would reply: “Oh, I don’t know.”

Appellant’s first contention is that the trial court reversibly erred in overruling his exceptions to the indictment and his motion to quash. He contends that by virtue of his status as a duly licensed and registered pharmacist, it not appearing from the face of the indictment what elements of the alleged offense he would be met with upon the trial, he was unable to prepare his defense. Section 2 of Art. 725b, Vernon’s Ann.P.C., sets forth the prohibited act, under which appellant was indicted. Section 2A provides for exceptions where authorized under the terms of the Act, and these two sections must be construed together, De Vine v. State, 151 Tex.Cr.R. 179, 206 S.W.2d 247, cited and followed in Leonard v. State, 172 Tex.Cr.R. 394, 356 S.W.2d 926 at page 927. It is not necessary for the pleadings to negative exceptions under this Act. Medina v. State, 149 Tex.Cr.R. 249, 193 S.W.2d 196; Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853. It is not necessary for the state to allege and prove that the appellant is not a pharmacist. Manson v. State, 166 Tex.Cr.R. 514, 316 S.W.2d 414; Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757. It is appellant’s -position that he is indicted only under Section 2 of this Act and therefore the issue of good faith or bad faith, which would come under Section 6 of Art. 725b, V.A.P.C., is not subject to proof or a charge by the Court. Section 6 actually gives effect to Section 2A and sets forth those individuals who may legally proceed, naming those whose acts shall not be unlawful. These individuals referred to in Section 2A and Section 6 must then necessarily claim their exceptions or exemptions and the legality of their acts as a bar to prosecution. It is their burden to do so and not that of the state. The state alleged and proved unlawful possession. This proof also showed that appellant was a licensed and registered pharmacist. Appellant could have relied defensively upon this issue. The state then proceeded to prove lack of good faith on the part of appellant. We perceive of no error in the action of the trial court in overruling appellant’s motion to quash.

We find no merit in appellant’s second contention that the trial court reversibly erred in overruling his motion for an instructed verdict of not guilty. The evidence was amply sufficient to sustain the verdict. This contention is overruled.

Appellant next contends that the trial court reversibly erred in admitting into evidence various state’s exhibits, same being numerous other prescriptions filled by appellant. We find no error in the action of the trial court. These exhibits were properly admitted to show intent, scheme and design. O’Brien v. State, Tex.Cr.App., 376 S.W.2d 833; McClelland v. State, Tex.Cr.App., 389 S.W.2d 678, and cases there cited. The careful trial judge properly instructed the jury that they were admitted for this limited purpose.

The fourth proposition urged as error by appellant is what he terms the action of the trial court in limiting his cross-examination of the state’s witness, Ardelle LoCascio. Appellant desired to learn where else the witness was buying drugs. The state contended that she was an informant, but she testified that she was not. While the question constituted proper cross-examination, we fail to find the materiality nor do we see how appellant was harmed by not getting an answer to the question. Although the trial court’s ruling was erroneous, it was harmless and does not constitute reversible error.

Appellant’s fifth proposition is levelled at the trial court’s charge. He contends that the court erred in charging that demerol is a narcotic drug. We find no merit in this contention. While demerol is not mentioned in the Act, Section 1(14) includes isonipecaine as a “Narcotic drug”. Officer Hightower testified that demerol is a trade name for isonipecaine. The charge of the court in this respect conformed to the proof. We find no error in the action of the court in so charging. Under the next two contentions with reference to the Court’s charge being erroneous and constituting reversible error, appellant complains that the Court shifted the burden of proof and submitted an issue not plead in the indictment. The trial court instructed the jury to acquit if they believed or had a reasonable doubt that appellant was actually selling the narcotics as a pharmacist in good faith. We find nothing in this instruction which was prejudicial to appellant. The evidence reflected that appellant was a licensed, registered pharmacist. We find no harm in the Court’s action in gratuitously charging. The second contention under this phase of appellant’s objection, numbered by him as (3) in his brief, complains of a lack or failure of the trial court to charge upon circumstantial evidence. After carefully reviewing the entire record, we find no basis for appellant’s contention. The evidence was real and demonstrative and a charge upon circumstantial evidence was not called for. The last portion of the Court’s charge to which appellant objected and urges as error was the failure of the trial court to instruct the jury that the two witnesses, Parson and Ferguson, were accomplice witnesses as a matter of law. The trial court instructed the jury, as a matter of law, that Ardelle LoCascio was an accomplice witness and submitted to them the issue of accomplice witness as to Ferguson and Parson. The jury was properly instructed as to necessity for corroboration. Neither Ferguson nor Parson was in any way connected by testimony with the sale of narcotics for which appellant was tried. If a state’s witness has no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice whatever may have been bis complicity with the accused in the commission of other offenses. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627, and cases there cited.

By formal bill of exception appellant complains of the action of the trial court in overruling his motion to quash the jury panel because of certain questions propounded to the panel by the Assistant District Attorney. We have examined this contention with care and find no error in the action of the trial court.

We have examined the remaining informal bills of exception not briefed by appellant. We do not find reversible error reflected by any of them.

The sentence orders that the imprisonment be for a period of not less than two nor more than seven years. It is reformed to read “not less than five years nor more than seven years”, five years being the minimum punishment for the offense charged. Art. 847 V.A.C.C.P., note 14; Perez v. State, 172 Tex.Cr.R. 492, 358 S.W.2d 381.

As reformed, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant urges that we distinguish the case at bar from the opinion of the Supreme Court of the United States in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240. In Russell the accused was not informed in the indictment as to the matter which was being investigated by the Legislative Committee nor was he told the questions which he was alleged to have refused to answer. To bring this case within the rule in Russell, the indictment would have to have alleged that appellant sold an unnamed drug to an unnamed person on the day in question. Had this indictment been so indefinite, we would have no hesitancy in agreeing with appellant, but here we have the name of the drug and the name of the purchaser, and the rule in Russell and the other cases cited by appellant have no application.

Appellant further contends that we have approved the admission of the numerous other forged prescriptions upon a theory not authorized by the charge, i. e., on the issue of intent. He relies upon Cole v. State of Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L.Ed. 644. Such was not our intention. According to the officer’s testimony, appellant stated that the purchaser returned to his drug store in such a short length of time that it was highly improbable that she might have secured a legitimate prescription. In order to demonstrate that appellant knew that the prescription involved in the instant case was not genuine, it was proper for the State to show that appellant had in his possession numerous other prescriptions which were forged. This is the same line of reasoning employed by this Court in the recent case of Hill v. State, Tex.Cr.App., 364 S.W.2d 381.

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


author: BELCHER, Commissioner.

text:
    Earnest WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38425.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Francis L. Williams, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

The appellant owned two houses which, were located on adjoining lots. He occupied one and Jonathan Hadnot and Jessie Marie Dickson lived together in the other, as tenants. On the day of the shooting, when Jessie paid the past-due rent money to the appellant, he asked that they move and offered to return the money if they would do so and leave the house in good condition. About 9 P.M.,. Hadnot’s mother, Mildred Lee Smith, and his foster grandmother, the deceased, went in the deceased’s automobile to help Hadnot and Dickson move. The house was soon vacated. When the appellant came to inspect the house and said something about its being dark, the deceased replied that “A person could get a match and' see better.” Appellant then said he would get a light bulb of his own and left, going to his house and returning with a bulb. Dickson forgot to take the light bulb from the living room when she left and on her return to the house the appellant gave her the bulb with the warning that it was probably hot. After Dickson and Smith had gotten in the car, parked in front of the house and beside which the deceased, with only the car keys in her hand, was standing on the passenger side, which was next to the house, the appellant came from the house toward the car.

The witness Mildred Lee Smith testified in part as follows:

“A. After we got in and she (deceased) was fixing to come around he (appellant) said something to her.
“Q. Did you hear what he said to Victoria Thomas (deceased) ?
'‘A. No, sir, I didn’t but she said to him, what I heard her say to him was well, Mr. Washington, (appellant) I hope you don’t treat the next people you get in your house like you did my son Johnny. That’s what I heard her say.
“Q. After she said that, what next happened ?
“A. She turned to get around in the car and she had her back to him and he had a gun. I said oh, Mamma, he’s got a gun. He shot the first shot and he missed.
“Q. And so she ran around the front of this car?
“A. Yes, sir.
“Q. What was Earnest Washington doing ?
“A. He was following her.
“Q. What did he do?
“A. He shot her again as she went to turn to come in the door and he shot again as she got to the back of the car. * * * in the street, and * * *
“A. She fell when she got back of the car.
“Q. After she fell then what did the defendant, Earnest Washington, do?
“A. He stood over her and shot another time.
“Q. Did you see that ?
“A. Yes, sir.
“Q. And you mean after she was on the ground he shot her again ?
“A. He stood over her and shot her.
“Q. How many shots did you count in all?
“A. Three or four.
“Q. Now, after he shot her this last time and when she was on the ground, what did you do?
ífí % í{C sfc iff
“A. I said oh, Mr. Washington, when I come out of the car and he pointed the gun at me like this and pulled the trigger and nothing happened.
“Q. After this happened, what did he do?
“A. He walked on in his house like nothing happened.”
“Q. Let’s back up a little bit. Back before the first shot was fired, did Victoria Thomas make any move toward this defendant?
“A. No, sir, she wasn’t. She was running from Mr. Washington.
“Q. Did she move her hands toward him in any threatening manner?
“A. No, sir.
“Q. Was she shot again at that point?
“A. She was shot, it looked like, every time she turned.”

Jessie Marie Dickson testified that she saw the appellant shoot the pistol four times as the deceased moved around the car, and also heard the fifth shot, which was fired from the rear of the car. Her testimony is substantially the same as that of the witness Smith.

When Officer Sawell arrived at the scene of the killing, the appellant delivered to him the .38 caliber pistol containing five spent shells, telling Sawell that he had used it in shooting the deceased. At the time the pistol and shells were introduced in evidence the appellant stated that he had “no objection” thereto.

Dr. Jachimczyk testified that from an autopsy which he performed upon the body of the deceased he determined that a gunshot wound in the left chest caused her death; and that there were three other gunshot wounds in the body, two of which passed through. He further testified that an anaylsis of her blood showed that it contained no alcohol or narcotics.

Testimony was introduced as to the voluntary nature of appellant’s written statement showing that the statute applicable thereto had been complied with. When the statement, in part, was introduced by the state, the appellant, through counsel of his selection, stated that he had “no objection.” At this time the trial judge directed that the record show, as it does, that the appellant, through his counsel, had no objection to the admission of the statement in evidence and it was so admitted.

The statement reads in part as follows:

“Tonight after dark after they had finished moving Jessie Hadnot come over to the house and told me that they had finished moving and wanted me to come over and inspect the house. * * * I went in and looked at the house * * * as I come out the door and noticed that they were setting in the car and it was parked right in front of the walk gate. * * * I was started out so I come on out of the yard * * I don’t know how many times I shot her, I shot as long as it would shoot. I don’t know where I was hitting her. * * * When they (officers) got there I * * * gave one of them the gun.”

From an examination of the pistol admittedly used by the appellant to shoot the deceased and a bullet identified as one removed from the body of the deceased, a firearm and ballistic examiner testified that the bullet had been fired from the pistol.

A chemist testified that in making a “distance determination test” he found nitrate particles on the right chest portion of the dress the deceased was wearing at the time she was shot. He expressed the opinion that the muzzle of the pistol was approximately three feet from that part of the dress at the time it was fired..

Testifying in his own behalf, the appellant stated that about 4 P.M. Hadnot had cursed him when he asked him to move; that he later refused to accept fifty cents which Smith offered in payment of a rent sign Hadnot had torn off the house; and that he (the appellant) showed them the damage to his fence as the deceased stood in the back door. On appellant’s return to inspect the house about 10 P.M. Smith and the deceased were standing in the doorway. When appellant asked if this was the “only light” in the house, the deceased said “Damn it, strike a match,” and he replied that he would go home and get another light bulb so he could see the whole house, which he did, and, finding it in good order, returned the rent money to Jessie. Moments later, Jessie came back from the car for a light bulb, which he gave her with the warning that it was hot. As appellant was walking toward the yard gate to lock it he saw the deceased get out of the ear “With her hand down with something in it coming toward me,” saying, “Damn it, I got property and you can’t do my son like that.” Appellant testified further as follows:

“Q. What happened after she said that?
“A. Well, quite natural, I had had trouble with the son she was talking about and I figured — I knew she ought to have done been gone. I wasn’t looking for them out there at that time of the night and, well, I was afraid. I was scared for my life. As she come to me eussing me about she’s got property and I can’t do her son that a way — see what I’m talking about — I can’t — I don’t know. I was afraid for my life because of the fact I knew what Jonathan Hadnot had already started, you understand, and I knew from what she said this was her son.”
sfc * * * * *
“Q. Now, you fired how many times, Mr. Washington?
“A. Just as many times as it would shoot I fired and I think it fires five times, because I was afraid.”

On cross-examination the appellant testified that he owned the pistol introduced by the state, that he always kept it loaded, and put it in his pocket on the date in question because he thought he might have trouble with Hadnot when he went to his rent house; that as he walked from the house after inspecting it, the deceased got out of the car and was coming toward him and he thought she had something in her hand; and that he shot at and pursued her around the car, continuing to shoot as long as the pistol would fire. He denied shooting her at a distance of less than six feet or that he shot her while standing over her after she fell, claiming that after the last shot he went into the house and notified the officers.

The evidence is sufficient to sustain the conviction for murder with malice.

Appellant insists in his brief that the trial court should not have allowed testimony by the witness Christian as to nitrate particles on the dress of the deceased in that such testimony was highly “inflammatory”; and further, that the witness should not have been allowed to testify “as to his opinion as to relative position of the parties and distance between them.”

The testimony of Officer Christian pertaining to appellant’s contentions was, in part, as follows:

“Q. What type of test did you run on it? (dress of deceased)
“A. What is known as a distance determination test.
“Q. Would you explain briefly for the benefit of the jury exactly what that is?
“A. The test is to determine whether or not there are nitrate particles present and if so at what distance the bullet was fired.”
* H; *
“Q. In running your test did you find any nitrate particles on the clothing of the deceased?
“A. Yes, sir.
“Q. When running a distance test on the garment worn by the deceased, in this test were you able to ascertain how far the pistol had to have been away from the dress at the time the shell was fired ?
“A. Yes, sir, I did.
“Q. And how far would that be?
“A. Approximately three feet.”
“Q. Was there any pattern on this garment?
“A. Yes, sir. The nitrate particles ereate a pattern.
“Q. Was there any bullet holes on this dress worn by the deceased?
“A. There was a bullet hole in the right chest and this is where the nitrate particles were found — ”
“APPELLANT’S ATTORNEY: I would like to object to the bullet holes on the dress. I believe there is testimony here already and I believe this is inflammatory and it serves no good purpose.
“THE COURT: They haven’t offered the dress.
“STATE’S ATTORNEY: We did not intend to offer the dress.”

No objections were made to the testimony that the dress revealed nitrate particles, or to the testimony as to the position of the parties and the distance between them. The dress was not admitted in evidence. The admission of the evidence complained of in appellant’s brief in light of the record was not error.

There are no formal bills of exception or objections to the Court’s charge.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    H. K. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 37931.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.
    J. Charles Whitfield, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Charles M. Pri-bilski, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is a violation of an ordinance of the City of Houston which provides that it shall be unlawful to park or stand any vehicle other than a commercial vehicle in any truck loading zone during certain hours; the punishment, a fine of $200.00.

In view of our disposition of this case it will not be necessary to set forth the facts. By specially requested charge which was by the Court refused to which appellant preserved his exception, appellant asked that the jury be given a definition of a commercial vehicle in the terms of the city ordinance # 41-2 (A) (9). Instead, the Court gave the definition found in Article 6675a-l (i), Vernon’s Ann.Civ.St., but added thereto the following paragraph:

“You are instructed that commercial motor vehicle, as used above, means any motor vehicle bearing a commercial license plate.”

By adding the above definition, which is not a requirement of either the ordinances of the City of Houston or the State statutes, the court placed upon the appellant an undue burden and in so doing fell into error which calls for a reversal of this conviction. This is especially true in the case at bar because the officer’s testimony upon which this conviction rests was that appellant’s automobile did not have a commercial vehicle license plate.

The judgment is reversed, and the cause is remanded.


text:
    Rebecca Kay WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 38434.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    John T. Boyce, Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Scott F. Bradley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of barbiturates; the punishment, 90 days in jail.

The sole question presented is the legality of the arrest.

It is undisputed that the officers had no warrant for appellant’s arrest and saw her commit no act other than walking in the company of a man.

At the trial the State proceeded on the theory that the arrest was authorized by a city ordinance. The legality of such arrest cannot be sustained under that theory because no ordinance was introduced in evidence, and the facts fail to reveal that the arrest took place within the corporate limits of the city of Dallas. Willis v. State, 157 Tex.Cr.R. 628, 252 S.W.2d 169.

On appeal the State takes the position that the arrest was authorized under Section 16 of Article 607, Vernon’s Ann. P.C., which denounces a prostitute as being a vagrant. The legality of such arrest cannot be sustained under that theory because there is no evidence that appellant was a common prostitute, even so, her arrest was not authorized by Article 607, supra.

Upon the record, the conviction must be set aside because of the want of authority of the officer to make the arrest and search.

The judgment is reversed, and the cause is remanded.


author: McDONALD, Presiding Judge, WOODLEY, Judge.

text:
    Clifford OLSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37150.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    On Rehearing Oct. 13, 1965.
    Louis G. Me'hr (on appeal), Houston, S. John Odom (on rehearing only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Gene Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge,

The offense is forgery, with a prior offense of like character alleged for enhancement ; the punishment, 7 years confinement in the Texas Department of Corrections.

The evidence showed that the appellant, a former employee of the complainant, Robert L. Nance, had, without authority, made a check in the amount of $75.00, payable to himself, and signed as maker the name of Robert L. Nance. Appellant had then passed the check in a grocery store and received $75.00 in cash.

The appellant, testifying in his own behalf, admitted that he had made the check and signed the name of his former employer, Robert L. Nance, but insisted that he was a partner of Nance and had authority and permission from Robert L. Nance to affix his signature to the check. While testifying, he repudiated his confession in which he had stated he had forged and cashed the check in question and had not had permission to sign the name of his former employer, Robert L. Nance.

The jury resolved the conflict in the evidence against the appellant, and the evidence is amply sufficient to support their verdict.

No formal bills of exception were brought forward with the record, there were no objections or exceptions to the Court’s charge,, and no requested charges were submitted! to the Court.

The prior offense alleged for enhancement purposes was properly proved in the customary manner. The judgment and sentence, relating to the former offense, and the fingerprints of the appellant, all being official records certified by the Texas Department of Corrections, were admitted into evidence, and a comparison of the known fingerprints of appellant by an expert revealed that he was one and the same person.

The evidence showed that the appellant had made a .statement in writing to the officers after his arrest. Before making such statement, he had been duly warned as required by Article 727, Vernon’s Ann.C. C.P. The appellant’s attorney did not ask that the jury be removed, nor offer evidence bearing upon the voluntariness of the confession, but upon his request was permitted to take the witness on voir dire and question him at length concerning the circumstances surrounding the giving of the confession by the appellant. Through such voir dire interrogation, appellant’s counsel showed that the appellant was interrogated some thirty minutes to an hour before he made the confession. Appellant had been in jail one day prior to being questioned by the witness. After interrogating the witness at length on voir dire, without having elicited any testimony as a basis for his objection, the appellant’s attorney objected to the introduction of the statement on the ground that it was obtained by duress, threats, continued incarceration, and long continued questioning. The objection was overruled and the statement was admitted and read in evidence.

Thereafter, testifying in his own behalf, the appellant testified substantially that the officers said they would make it doubly hard on him if he did not cooperate with them, and that he was thus intimidated and made the statement which was untrue in respect to whether or not he had permission of the complaining witness to sign his name to the check.

Under the facts presented by this case, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; and Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109, are not applicable. The trial court’s failure to hold a separate hearing and make an independent finding on the question of the voluntariness of the confession prior to its admission in evidence before the jury was not a denial of due process. No issue as to the voluntary nature of the confession had been raised prior to the time it was offered and admitted in evidence. The issue raised by the appellant’s testimony as to the voluntary nature of the confession after it was admitted in evidence was-properly submitted to the jury under appropriate instructions: Creswell v. State, Tex.Cr.App., 387 S.W.2d 887 and Miller v. State, Tex.Cr.App., 387 S.W.2d 401.

The remaining informal bills of exception in the record do not merit discussion.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Our attention is directed to a variance between the instrument set out in the indictment according to its tenor and alleged to have been forged and the instrument offered in evidence as it appeared at the time it was made and passed by appellant at “Randall’s No. 2” in Houston.

The state’s evidence, including the testimony of Mary Heatherman, employee at Randall’s No. 2, and the picture taken of appellant and of the check, shows that the words and figures “Signature not like on file 35-107”, which appear on the instrument set out in the indictment, were placed on the check offered in evidence after it had been passed and the number A-05413 was placed on such check by Mary Heatherman when she cashed it.

The variance is fatal and renders the evidence insufficient to sustain the conviction. Payne v. State, Tex.Cr.App., 391 S.W.2d 53; Strong v. State, 143 Tex.Cr.R. 641, 160 S.W.2d 923; Harvey v. State, 132 Tex.Cr.R. 213, 104 S.W.2d 26.

Appellant’s motion for rehearing is granted and the judgment is now reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Elbert WOODS, Appellant, v. The STATE of Texas, Appellee.
    No. 38408.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.

      Cattanach, Capps, Turner, Coe, Reardon, Chaney & Thorne, by Joe E. Turner, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, R. W. Hope, Jr., and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1436e, Vernon’s Ann.P.C., for the felony offense of shoplifting; the punishment, enhanced under Art. 63, V.A.P.C., by reason of two prior convictions for felonies less than capital, life -imprisonment.

The indictment charged, in substance, that -on or about the 23rd day of December, 1963, appellant committed the primary offense of shoplifting while in the business establishment of Thoede Auto Supply Company, Incorporated, as an invitee and guest, by removing one battery of the value of less than fifty dollars from its place in the establishment, where it was being kept, stored, and displayed for sale, with the intent to fraudulently take the said property and deprive the owner of the value thereof and appropriate it to his own use and benefit.

It was alleged that on such date appellant had theretofore been twice duly and legally convicted of two misdemeanor offenses of shoplifting, the first conviction being on March 16, 1962, in Cause No. 164987 in the County Criminal Court at Law No. 1 of Harris County, and the second conviction being on September 12, 1963, in Cause No. 182,740, in County Court at Law No. 2 of Harris County, for an offense committed after the first judgment of conviction had become final.

The indictment further charged that, prior -to the commission of the primary offense, appellant had been finally convicted of two felonies less than capital, the first conviction being in the Criminal District Court No. 3 of Harris County, on August 5, 1954, in Cause No. -72351, for the offense of theft, and the second conviction being in the Criminal District Court No. 2 of Harris County, on October 13, 1959, in Cause No. 88886, for the offense of theft committed after the first judgment of conviction had become final.

We overrule appellant’s contention that the indictment is fatally defective because it authorizes the enhanced punishment under Art. 1436e, supra, by reason of the two prior misdemeanor convictions for shoplifting, to be further enhanced under Art. 63, V.A.P.C., by reason of the two prior convictions for felonies less than capital.

In Tomlin v. State, 170 Tex.Cr.R. 108, 338 S.W.2d 735, we held that the punishment for a subsequent conviction under the Narcotic Drug Act, Art. 725b, V.A.P.C., could be' enhanced under Art. 63, supra, the general enhancement-of-punishment statute. In the opinion in that case, it was pointed out that' the punishment for violation of Art. 802b, V.A.P.C., may be enhanced under Art. 63, supra, the prior convictions being for other non-capital felonies.

In this connection, it should be noted that proof was made by the state, in the manner which has been approved by this court, by the introduction in evidence of certain judgments of conviction, official records, and comparison of fingerprints by an expert, that appellant had been twice convicted of the two alleged misdemeanor offenses of shoplifting and that the 1963 conviction was for an offense committed after the 1962 conviction had become final.

In like-manner, proof was made that appellant had been twice convicted of the two alleged offenses of felony theft, but there was no showing that the conviction in 1959 was for an offense committed after the 1954 conviction had become final.

In the absence of such proof, appellant’s punishment cannot be enhanced under the provisions of Art. 63, supra. In the two recent cases of Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697, and 169 Tex.Cr.R. 239, 333 S.W.2d 383, it was pointed out that to invoke the provisions of Art. 63, supra, it is necessary that each succeeding conviction be subsequent to the previous conviction both in point of time of the commission of the offense and the conviction therefor. See, also, Cowan v. State, 172 Tex.Cr.R. 183, 355 S.W.2d 521.

While, under the record, appellant’s punishment cannot be enhanced under Art. 63, supra, there is no reason why it cannot be enhanced under Art. 62, V.A.P.C., as a subsequent conviction for a non-capital felony offense of like character, and fixed at the maximum punishment of five years, provided by Art. 1436e, supra, for the commission of the felony offense of shoplifting. Haines v. State, Tex.Cr.App., 391 S.W.2d 58. Clearly, shoplifting and theft are offenses of like character and the record shows that appellant committed the primary felony offense of shoplifting after the prior convictions for felony theft had become final.

We also overrule appellant’s contention that Art. 1436e, supra, is void for indefiniteness by reason of the following language in the statute:

“Section 1. Any person while legally in a retail business establishment as an invitee or licensee who removes from its place, goods, edible meat or other corporeal personal property of any kind or character * * (Emphasis supplied.)

We do not agree that the use of the words, “its place,” renders the statute indefinite. Clearly, these words refer to the removal of goods from the place where they are located in the establishment. The indictment follows such interpretation of the statute and is sufficient. See: Henderson v. State, Tex.Cr.App., 362 S.W.2d 322, where the statute was upheld against various attacks of indefiniteness.

Briefly, the state’s evidence shows that, on the date alleged, the appellant went into the Thoede Auto Supply Company, which was a business establishment located at 4370 Holmes Road in the city of Houston.

Wesley Langham, an employee in the store, testified that on such occasion he saw appellant between the battery rack and the door, with a twelve-volt Delco battery in his possession; that when he hollered at appellant, he (appellant) said “whoops you caught me,” and then ran outside the door and back inside and set the battery down, and left.

E. E. Fuller, manager of the store, testified that he was present when appellant took the battery out of the store; that the battery had a value of $28 and was displayed for sale in the business establishment and was taken without the consent and permission of the witness.

As a witness in his own behalf, appellant admitted going into the store on the day in question and stated that after entering the store he walked over to the battery rack, picked up the battery, and, after he had finished looking at it, put it back in the same place, and left. Appellant denied taking the battery outside the store and swore positively that he did not steal it.

The jury by their verdict rejected appellant’s explanation of the transaction.

We find the evidence sufficient to support the conviction, and overrule the contention that the evidence is insufficient to support a finding that appellant intended to deprive the owner of the value of the battery. Appellant’s actions as described by the two witnesses, including his statement, “whoops you caught me,” and his flight from the scene, were amply sufficient to warrant a finding by the jury that appellant removed the battery from its place in the store, with the intent to deprive the owner of the value of the same and appropriate it to his own use and benefit.

It is contended that the court erred in refusing to give appellant’s requested instruction which would have charged the jury, in substance, that if they believed that appellant stole the battery but also believed or had a reasonable doubt that he voluntarily returned it before prosecution commenced then they would find him guilty and assess his punishment at a fine of not to exeeed $1,000.

Appellant insisted that under the facts and the provisions of Art. 1424, V.A.P.C., he was entitled to such an instruction.

With such contention we do not agree. Art. 1436e, supra, defining the offense of shoplifting, is a special statute. Sullivan v. State, 172 Tex.Cr.R. 156, 354 S.W.2d 168. Art. 1424, supra, is one of the general statutes relating to the offense of theft. It would not be applicable to the special statute of shoplifting, Art. 1436e, supra. We further observe that should Art. 1424, supra, be held applicable to the statute denouncing shoplifting, the facts in the present case do not raise the issue of voluntary return of the battery before prosecution. Appellant, in his testimony, denied stealing the battery and did not raise the issue of its voluntary return. The testimony of the two state’s witnesses present at the time appellant removed the battery does not raise an issue of voluntary return.

Appellant’s remaining contention that permitting the state to read the indictment containing the allegations as to the prior convictions constituted a denial of due process to him under the Fourteenth Amendment to the Constitution of the United States has been recently rejected by this court and will not be discussed. See: Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and cases there cited. See, also, Breen v. Beto, Fifth Circuit of Appeals, 341 F.2d 96.

The judgment and sentence are reformed to provide for appellant’s confinement in the Texas Department of Corrections for a term of five years.

As reformed, the judgment is affirmed.

Opinion approved by the court.

MORRISON, J., not participating.


author: WOODLEY, Judge.

text:
    Harold L. MARLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37469.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.

      J. Charles Whitfield, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Milton Mc-Collough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The conviction is for the felony offense of driving a motor vehicle upon a public highway while intoxicated; the punishment, 90 days in jail.

The offense was alleged to have been committed in Harris County on or about November 2, 1963 and the indictment alleged that appellant had been previously convicted in Cause No. 12669 in the County Court at Law of Nueces County on November 10, 1953 for the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated.

The sufficiency of the evidence to sustain the finding of the jury that appellant was intoxicated about 8:25 P.M. on November 2, 1963, when he was arrested by Officer Robert Ray Caswell while driving a pickup truck on the North Freeway in Harris County is not questioned.

The arresting officer testified that appellant was weaving from lane to lane as he followed him some seven blocks.

When stopped, he had difficulty in getting his driver’s license out of its holder; he was unsteady on his feet; had the odor of alcohol on him and several times he fell against some lumber that was on the pickup. His speech was such that the officer could hardly understand him.

Based upon his experience and observations, Officer Caswell testified that in his opinion appellant was intoxicated.

Police Officer James Harold Legg, who responded to the call and arrived at the scene of the arrest when appellant was seated in the patrol car, testified that he had a conversation with appellant; that he had a “very strong odor of alcohol about his breath * * * he talked slurred and incoherent and his eyes were red,” and based upon his observations expressed the opinion that appellant was intoxicated. He also testified that he found a pint bottle of Old Crow whiskey, half of it gone, in the seat of appellant’s pickup truck which he drove to the police station.

Certified copies of the complaint, information and judgment of conviction in Cause No. 12669, in County Court at Law of Nueces County, were introduced in evidence, the judgment bearing notation that it was entered the 10th day of November 1953.

The state also introduced notice of said conviction certified by the clerk of said court and bearing the signature of the defendant and his license Number 3750130; the name and address of the defendant, the offense, date of conviction and penalty assessed.

The arresting officer testified that the license he got from the appellant was Commercial License Number 3750130.

The state offered in evidence the appearance bond in the cause on trial signed Harold Lee Marley, hence the trial court and jury had the opportunity of comparing it with the signature of Harold L. Marley on the notice of conviction report.

We find the evidence sufficient to establish that appellant was the defendant in the prior misdemeanor conviction alleged in the indictment.

Appellant points out that there is a slip attached to the notice of conviction which indicates that it was received by the Driver’s License Division of the Texas Department of Public Safety on March 13, 1959, whereas it should have been sent with driver’s ' license attached within 10 days from date of conviction. (Art. 6687b, Sec. 25, V.A.C.S.)

The defendant’s license to drive a motor vehicle was automatically suspended when the conviction for drunk driving became final, whether the report was sent to Austin or not. Art. 6687b, Sec. 24(a) V.A.C.S.

No reversible error appearing, the judgment is affirmed.


text:
    Steve ESCALANTE, Appellant, v. The STATE of Texas, Appellee.
    No. 37877.
    Court of Criminal Appeals of Texas.
    June 2, 1965.

      Whitlow & Cole, by Emmett Cole, Jr., Victoria, for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced under Art. 62 P.C., 12 years.

The indictment alleged that appellant burglarized a house occupied and controlled by Maximo Olivarez on or about July 8, 1963. A prior conviction on June 21,1960, in the same court, for burglary was alleged for enhancement purposes.

The state’s evidence, including the testimony of Maximo Olivarez, two of appellant’s companions who remained in the car, and the confession of the appellant, established that appellant and two of his several companions broke into Olivarez’s place of business and stole 5 or 6 cases of beer. The prior conviction was proved by the records and by witnesses who were present at the trial in 1960.

Appellant’s first and principal ground for reversal relates to the admission in evidence of his confession, the contention being that the prosecution was permitted to introduce it without the court having first conducted a separate hearing to determine whether or not the statement was voluntary.

The record reveals that at the beginning of the trial appellant’s counsel moved that the state be instructed not to offer any statement or confession into evidence nor to exhibit it before the jury until counsel had a chance to examine it and make certain inquiry as to whether or not it was properly taken.

The trial court ruled that counsel for the state would be allowed to lay a predicate for the introduction of the statement in evidence and “when he gets to that point then we will refer the matter to you, and then the court, if you make an objection or anything else, the court will hear them either within or outside the -- jury, and I will leave it up to the defendant as to whether or not the jury should be excluded.”

Pursuant to this ruling of the court, Deputy Sheriff Jimmie Kubecka was permitted to testify that he took a statement from appellant after first warning him that he did not have to make any statement at all, and that any statement that he made could be used in evidence against him, and appellant then freely and voluntarily made a statement to him which he took down in writing and appellant signed it in his presence. The witness then identified the instrument marked Exhibit A as the statement he took from appellant, and appellant’s signature thereto.

At his request appellant’s counsel was then permitted to take the witness Kubecka on voir dire and he proceeded to do so in the presence of the jury. He elicited from the witness testimony to the effect that he had known appellant for some time; knew his parents and his brother when he saw them; that he arrested appellant on September 18, 1963, brought him to jail and asked him to make a statement and sign it. That he did not tell appellant that he would do what he could to help him if he would make a statement; did not tell appellant it would go lighter on him if he would make a statement; did not tell appellant’s mother and sister, who were at the jail, that if appellant would make a statement he might be able to help him out, and did not tell them it would go easier on appellant if he made a statement. Also that Chester Powell was present; that there were officers in and out of the office all morning; that he was not the only one talking to appellant, and that he typed the statement there in the jail.

• Following this examination of the witness in the jury’s presence, appellant’s counsel objected to the admission of the statement “as a whole on the ground that under the circumstances it was not a voluntary statement. He was being held in jail and it was given in the presence of these police officers, and we will offer some more evidence on that.”

The objection was overruled, as was a further objection to a portion of the confession on another ground.

The witness Kubecka then testified further on direct examination that the statement was taken in the office part of the Sheriff’s Department; that appellant was given the opportunity to read it over before he signed it and he read and signed it and that he truthfully and correctly put the information in the statement as it was given to him by appellant. The statement was admitted in evidence over the obj ection previously made.

After the confession was admitted before the jury, other evidence was offered and the issue as to the voluntariness of the confession raised by said testimony was submitted to the jury.

As we view the record, it shows:

(1) Appellant was afforded opportunity for a fair and reliable hearing before the court as to the voluntariness of the confession.
(2) He was given the option of having the hearing in the absence of the jury or in the jury’s presence.
(3) Evidence was heard by the court in the presence of the jury^ relating to the voluntariness and admissibility of the statement of the appellant. All of such evidence was to the effect that the statement was voluntarily made.
(4) No evidence was introduced prior to the admission of the confession to the jury to the effect that the statement was not freely and voluntarily made.
(5) After the confession was admitted in evidence to the jury, evidence was offered which raised an issue of fact as to whether or not appellant was induced to make the statement by promise of help.
(6)The issues raised by the evidence were submitted to the jury with instructions to draw no inference or conclusion from the confession and to acquit if the jury believed or had reasonable doubt that it was not voluntarily made or was induced by promise of help.

We overrule the contention that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, or Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, supports appellant’s claim of error.

If there be any question (and we see none) as to whether the trial judge “made a clear cut determination of the voluntariness of the confession including the resolution of disputed facts upon which the voluntariness issue may depend,” all doubt is removed by the finding of the trial judge at the trial, reduced to writing and forwarded to this Court in a supplemental transcript.

Appellant challenges our consideration of such supplemental transcript and the court’s certification as not being a part of the record on appeal, but prepared and signed long after the time for filing the statement of facts and bills of exception had expired.

Similar certifications by the trial judge are before us in other appeals.

After much deliberation, we have concluded that in view of recent decisions of the Supreme Court of the United States, such as Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, the belatedly entered findings of the trial judge certified while the appeal is pending should be considered where a federal claim is asserted.

Appellant’s second ground for reversal relates to the court’s action in excusing members of the jury panel who furnished no reasonable excuse supported by oath.

In the absence of any claim or showing that appellant exhausted his peremptory challenges or was required to accept a juror who was objectionable to him, no reversible error is shown. Rogers v. State, 163 Tex.Cr.R. 260, 289 S.W.2d 923.

Appellant’s third claim of error relates to various remarks of the district attorney in his argument to the jury.

We note that the formal bills of exception complaining of argument were qualified and the matters of fact therein were certified only insofar as they are borne out by the record.

The argument of the district attorney in the record referred to appears only in the statement of facts relating to the hearing of the motion for new trial.

Art. 759a, Sec. 6, Vernon’s Ann.C.C.P., requires that the statement of facts relating to any motion be separately filed.

We have examined the record, however, and in view of the evidence and of the fact that the jury was not called upon to assess the punishment, no reversible error is shown by the complained of remarks.

Appellant’s remaining complaint is that the district attorney inferred that appellant had been handled by the.sheriff’s department on numerous occasions and thereby violated appellant’s rights.

This complaint relates to a number of statements and acts of the witness, none of which standing alone is claimed to constitute reversible error. We do not agree with appellant’s contention that collectively the testimony and evidence shows an obvious attempt to give the jury the impression that appellant had been guilty of crimes other than those properly in evidence.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Kelsey S. DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38232.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.

      No attorney on appeal.
    Henry Wade, Dist. Atty., Don Koons, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the -punishment, sixty days in jail.

The trial was before a jury in County Criminal Court No. 3 of Dallas County, during the term which began September 7,1964, and expired October 31, 1964.

The verdict was returned and the judgment entered on September 18,1964, and the original .motion for new trial was filed on the same date. An amended motion for new trial was filed October 8, 1964.

The amended motion for new trial was overruled by operation of law when the trial court took no action on it within the twenty days allowed by Art. 755, Vernon’s Ann. C.C.P.

The judgment became final during the term of court which expired October 31, 1964. Brinkley v. State, 167 Tex.Cr.R. 472, 320 S.W.2d 855. No notice of appeal was given during said term as required by Art. 827, V.A.C.C.P.

From the record it appears that the order of November 20, 1964, overruling the amended motion for new trial, and the notice of appeal given on the same date were not authorized under the provisions of Art. 755, supra.

No notice of appeal having been given during the term at which the amended motion for new trial was overruled by operation of law, this Court is without jurisdiction to enter any order other than to dismiss the appeal. Art. 827, supra.

The appeal is dismissed.

Opinion approved by the Court.


text:
    Russell Mae MATTHEWS, Appellant, v. The STATE of Texas, Appellee.
    No. 38409.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Neil English, Jim Zimmerman, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is -passing as true a forged instrument in writing; the punishment, enhanced by two previous convictions for forgery, life.

The indictment alleged the forgery and passing of a check purportedly drawn by Stanley H. Marcus on the National Bank of Commerce payable to the order of Laura Ann Davis in the sum of $850, dated July 3, 1963.

The evidence shows that such a check was presented by appellant to Mae Starks, a teller at the City Bank and Trust Company, which opened for business in Dallas on July 1, 1963.

The teller cashed the check upon the assumption that the initials “G. B.” appearing thereon represented the approval of the bank president, G. B. Bowman.

The check was introduced in evidence. Mae Starks identified appellant at the trial and in a police line up as the person who passed the check to her.

Mr. Bowman, the bank president, testified that he did not approve or initial the check for cashing.

Stanley Marcus, President of Neiman Marcus Company, testified that he did not sign the check; that he did not give appellant permission to sign his name on any check and to his knowledge he did not know her. He further testified that he had not for some years used his middle initial; that his address was on the check but was misspelled; that he did not know a Laura Ann Davis, and that he had never had an account at the National Bank of Commerce.

The prior convictions for forgery alleged for enhancement of punishment were proved by the records and fingerprint testimony.

Appellant did not testify but offered witnesses whose testimony raised the issue of alibi.

The jury resolved the issue against appellant and the evidence is sufficient to sustain the verdict.

There are no formal bills of exception or exceptions to the court’s charge. The informal bills of exception show no reversible error.

The judgment is affirmed.


text:
    Arturo Galvan ALEJANDRO, Appellant, v. The STATE of Texas, Appellee.
    No. 38297.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.

      Carter, Callender & Onion, by Leo Dougherty, San Antonio (on appeal only), for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides, Rudolph Georges, Earl C. Hill and Raymond A. Wietzel, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like .character, life imprisonment.

The state’s evidence shows that the prosecuting witness, Roman N. Pena, with his brother, owned and operated a supermarket located at the corner of Barrett and Noga-litos Streets in the city of San Antonio. On the night of July 7, 1964, a masked bandit entered the store and, at the point of a gun, robbed the injured party of approximately $250 in money. After obtaining the money, the bandit left the store and as he walked by a window he removed the mask, which permitted the injured party to see his face. A two-tone dark and light green Plymouth automobile was then seen to leave from the rear of the building. Some thirty minutes after the robbery, the injured party, while at the police headquarters, identified a picture of the man who had robbed him and two weeks later identified appellant at a police lineup as the person. He also positively identified appellant at the trial as the guilty party.

It was further shown that some fifteen minutes after the robbery, appellant was observed, by Officer Manuel Ortiz, driving a 1954 green two-tone Plymouth automobile on Hamilton Street. Officer Ortiz testified that when he drove up beside the Plymouth and told appellant to stop “he took off” at a high speed and the officer gave chase. During the chase, Officer Ortiz fired at the Plymouth, hitting it once in the trunk. After being pursued for some distance at a speed up to 75 miles per hour, the Plymouth came to a stop at the intersection of Chihuahua Street and Apache Creek. Appellant jumped out and ran off. Six blocks from where the Plymouth was abandoned a .22 calibre pistol wrapped in a mask was found at a point where Elvira Street deadended with Apache Creek. The mask was identified by the injured party as similar to the one worn by appellant at the time of the robbery.

The prior alleged conviction of appellant for the offense of robbery was stipulated by the parties.

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

We find the evidence sufficient to support the judgment of conviction.

Appellant predicates his appeal upon certain informal bills of exception.

Complaint is first made to the admission in evidence of the photograph (state’s exhibit #1) which the prosecuting witness testified he identified at the police station shortly after the robbery as being of the man who had robbed him, over appellant’s objection that it resolved no disputed issue in the case, was harmful and prejudicial to him, and was an attempt upon the part of the state to bolster the witness’s testimony.

The record reflects that the photograph was not admitted in evidence until after the appellant, on cross-examination of the prosecuting witness, had gone into the details of his identification of the guilty party from the photograph. Under the record, the photograph was admissible on the issue of appellant’s identity and the court did not err in admitting it in evidence.

Complaint is also made to the admission in evidence of the mask (state’s exhibit 7) found by the officers, over appellant’s objection that it had not been connected with him and for the further reason that it was an attempt to bolster the testimony of the complaining witness.

The record reflects that before the mask was admitted in evidence, it was identified by the prosecuting witness as one similar to that worn by the robber on the night in question. Appellant’s objection to the evidence went to its weight rather than its admissibility, and we perceive no error in the court’s ruling.

By informal bill of exception #3, appellant complains of the court’s action in permitting Officer Ortiz to relate that in his pursuit of appellant on the night in question, appellant operated his automobile at the high rate of speed, over the objection that it constituted proof of an extraneous offense.

The evidence of appellant’s flight was clearly admissible, and the fact that the circumstances of such flight showed the commission of another offense did not render it inadmissible. Cox v. State, 170 Tex.Cr.App. 128, 338 S.W.2d 711.

In his brief, appellant insists that he was denied a fair and impartial trial by reason of certain actions and remarks made by the trial judge during the course of the trial.

An examination of the record reflects that no objection was made by appellant to any act or remark of the court of which he now complains. Such contention is not properly presented for review.

Appellant also contends that he was denied a fair and impartial trial because the jury, during their deliberations, discussed his failure to testify.

No claim of jury misconduct was made by appellant in his motion for new trial and such claim is made for the first time on appeal. In support thereof, appellant has attached to his brief an affidavit of one of the jurors who served in the case.

The claim of jury misconduct, not having been raised by appellant in his motion for new trial, will not be considered by this court on appeal. Wilson v. State, 121 Tex.Cr.R. 250, 53 S.W.2d 43; Williams v. State, Tex.Cr.App., 219 S.W.2d 688. Also, we cannot consider the affidavit attached to appellant’s brief. Lavan v. State, Tex.Cr.App., 363 S.W.2d 139.

The judgment is affirmed.

Opinion approved by the court.