author: McDonald, judge. MORRISON, Judge. WOODLEY, Judge WOODLEY, Judge

text:
    Fredrick Joseph HENLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37034.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    On Rehearing Jan. 27, 1965.
    Second Motion for Rehearing Denied and Dissenting Opinion Filed March 17, 1965.
    Baldwin & Goodwin, by Joe B. Goodwin, Johns, Willard & Hannah, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De-Witt, Asst. Dist Atty., Beaumont and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Our prior opinions are withdrawn and the following is substituted.

The conviction is for the unlawful sale of a narcotic drug; the punishment, five years in the penitentiary.

The indictment charged that on or about the 12th day of September, 1962, the appellant “ * * * did * * * unlawfully sell to Mary Trahan, a narcotic drug, to-wit: Paregoric, in an unlawful amount.”

By motion to quash and exception to the indictment, appellant alleged that the indictment failed to charge an offense because (1) paregoric was not included within the definition of a narcotic drug as defined in Section 1, subdivision (14) of Art. 725b, Vernon’s Ann.P.C., and (2) the term “unlawful amount” used in the indictment was vague and indefinite and did not give him proper notice so that he could adequately prepare his defense.

Art. 725b, supra, provides in Section 1, subdivision (14), that ‘“Narcotic drugs’” means, among other things, “opium,” and in subdivision (12), that “ ‘Opium’ ” includes “morphine * * * and any compound, manufacture, salt, derivative, mixture, or preparation of opium * *

While paregoric is not included within the statutory definition of a narcotic drug, the proof shows that it is, in fact, a narcotic drug known under the official drug name of “camphorated tinture of opium” and that it contains morphine, which comes from opium, a narcotic drug enumerated in the statute.

Recently, in Taylor v. State, 172 Tex.Cr.R. 461, 358 S.W.2d 124, we upheld, as against a similar attack, an indictment alleging the unlawful possession of “a narcotic drug, to-wit: dolophine,” where the proof showed that dolophine, although not enumerated in the act, was a narcotic drug, registered under such trade name and of the same chemical substance and formula as “amidone,” which is" named in the statute. Under the Taylor case, we hold the indictment in the instant case sufficient to charge an offense.

The use of the term “unlawful amount” in the indictment can be treated as surplusage.

Prior to the 1963 amendment of Art. 725b, supra, it was provided in Section 9 of the statute “ * * * that any person may purchase at any time one (1) ounce of paregoric without a doctor’s prescription.” Such provision constituted an exception to the act, which, under the provision of Sec. 21, the state was not required to negative in the indictment. Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757.

The state’s evidence shows that the appellant was a duly licensed pharmacist and operated a small pharmacy in the city of Port Arthur. On the day in question, he was under investigation and surveillance of certain officers in connection with the-sales and delivery of paregoric. At the instance of the officers, one Mary Trahan, a narcotic addict, called appellant on the telephone and told him she wanted to get a sixteen-ounce bottle of paregoric. Appellant replied: “All right,” and told her to go to the home of Aleñe Joseph and bring seventeen dollars. Mrs. Trahan was then equipped with a small radio transmitter under her clothing and given seventeen dollars in bills. The serial numbers on the bills were noted by the officers and the bills were treated with a chemical. Mrs. Trahan proceeded, alone, to the home of Aleñe Joseph. At the same time, Officers Mitchell, Clayton and Gilbert drove to the vicinity of the Joseph home in a panel truck and. parked about a block away from the house. In a short time appellant came to the house- and, some five minutes later, Mary Trahan; arrived upon the scene. When she entered the house appellant was leaving. Aleñe Joseph was inside and she asked appellant about the paregoric. Appellant inquired if she had the seventeen dollars and after she gave him the money he stated that “ ‘Aleñe has got the bottle.’ ” He then told Aleñe to give Mrs. Trahan the bottle. Appellant left and returned to his place of business. Aleñe said: “ ‘Here comes the law/ ” and then put the package in a drawer in her room. Thereupon, the three officers who were in the panel truck and had overheard the conversation between appellant and Mrs. Trahan by radio, entered and proceeded to search the house, under the authority of a search warrant.

In the search, a package containing a bottle was found by the officers in the dresser drawer in a bedroom.

It was shown by the testimony of Chemist Rolland E. Tullís, of the Department of Public Safety, that the bottle contained slightly over sixteen ounces of paregoric. Chemist Tullis testified that the official name of paregoric is “camphorated tincture of opium” and that paregoric is a narcotic ■drug in that it contains opium.

It was further shown that, following his arrest, appellant did have a trace of the chemical substance on his thumb, but none ■of the money delivered to him by Mrs. Trahan was found in his possession.

Testifying as a witness in his own behalf, appellant admitted going to the home of Aleñe Joseph on the day in question, but swore he only took with him a bundle of clothes to be laundered and nothing else. In this he was corroborated by the witness Aleñe Joseph, as will be shown later.

The jury by their verdict resolved the conflict in the testimony against appellant, and we find the evidence sufficient to support the conviction.

In addition to his attack upon the indictment, appellant urges three other grounds if or reversal of the conviction.

By both formal and informal bills of exception, appellant insists that the court erred in refusing to require the state to deliver to him a certain police offense report, made in connection with his arrest, to be used in cross-examination of two of the state’s witnesses, Officers Mitchell and Hunter.

The record reflects that the report was actually made by Officer Phillips in collaboration with Officers Mitchell and Hunter. Officers Mitchell and Hunter both stated that before testifying in the case they had read the report for the purpose of refreshing their memory, but the same was not exhibited before the jury or referred to by either witness in the jury’s presence.

The police report is before us for inspection, as part of the record on appeal.

While under the rule announced in Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, and Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528, it appears that the appellant should have been furnished the report for the purpose of cross-examination of the witnesses, an examination of the report leads us to the conclusion that he was not injured thereby. The offense report does not vary materially from the two officers’ testimony given at the trial. Under such a record the court’s action does not present reversible error. Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.

Appellant also contends that the court erred in permitting the state to impeach its witness Aleñe Joseph.

The record reflects tha't on her direct examination the witness Joseph testified that while appellant did come to her home on the morning in question and brought some clothes to be laundered, he did not bring her a package for Mary Trahan. State’s counsel then proceeded to question her with reference to a written statement which she had made to the police. The witness admitted that she signed a statement but denied that she made statements therein which were contradictory to her testimony. The written statement referred to during her examination was not introduced in evidence nor was proof made of its contents. In the absence of such proof, the witness was not contradicted and no question of her impeachment is presented. Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106.

Appellant’s last contention is that the search warrant was not produced by the State and exhibited to the Court as a valid search warrant. We agree with appellant’s contention that he would have had standing to urge this complaint, under the authority of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, had he been on the premises at the time of the search. However, the record in this case clearly shows that appellant was not present on Aleñe Joseph’s premises at the time the search was made (not even as an invitee) but was in fact back at his own place of business at such time. Under the record and the law he had no standing to complain of the search of Aleñe Joseph’s house or of the recovery of the evidence resulting from such search.

Finding 'no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In our prior opinion we held that the witness Aleñe Joseph had not been impeached and cited as authority Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106. Upon further examination of Lopez we find the rule there expressed as follows: “To constitute impeachment of which the appellant complains, it would be necessary for the State to support the predicate laid, either by the introduction of the written statement or by an affirmative showing that the written statement contained such matter.” We now re-examine the record before us in the light of this rule. When the witness Joseph, while being examined by the State, first denied that appellant had brought a package to her house (a fact which was necessary for the State to prove in order to make its case) she was asked if she had given “this statement.” To this she replied, “No sir, I didn’t, but I signed my name.” She then testified that after signing the statement she had refused to talk to the prosecutor. After a hearing in the absence of the jury, the court expressed the opinion that the State had established that they were surprised at her answer in which she denied that appellant had brought a package to her home. The following then transpired in the presence of the jury:

“Q. Do you know Max Phillips or Sergeant Phillips, a police officer for the Port Arthur police ?
“A. Yes, sir.
“Q. On September 13, 1962 he was questioning you concerning this matter and you gave him certain answers ?
“A. Yes, sir.
“Q. Isn’t it a fact that you told him ‘My name is Aleñe Joseph.’ ?
“A. Yes, sir.
“Q. Isn’t it a fact that you told him, T am thirty-six years old and I live at 6032 Buckner Drive, Port Acres, Texas and I am a housewife.’? Isn’t it a fact that you told him that?
“A. No, I didn’t tell him I was thirty-six ; I am thirty-eight years old.
“Q. This was in September of 1962.
“A. Yes, uh-huh.
“Q. That’s a fact you told him that?
“A. Uh-huh.
“Q. Isn’t it a fact that you said, ‘Yesterday morning, September 12 at about 10:20 Doc Henely came to my house at 6032 Buckner Drive, he brought some clothes in to be washed.’ ? isn’t it a fact that you told him that?
“A. Yes, sir.
“Q. Isn’t it a fact that you told him the following: ‘After he brought the clothes he gave me a package and told me if Mary Trahan came by to pick me up to go do some work for her today to give her this package.’?
“A. No, sir.
“Q. That is not a fact. You did not tell him that?
“A. No, sir.
“Q. Isn’t it a fact that you told him this: T was shown a package by Detective Mitchell and Sergeant Phillips, it is the same package that Doc gave me to give to Mrs. Trahan.’ ?
“A. No.
“Q. That is not true ?
“A. No, sir.
“Q. Isn’t it a fact that you told him the following: ‘After Doc Henley gave me the package he told me to go put it up.’ Isn’t that a fact?
“A. No.
“Q. Isn’t it a fact that you told him, T put the package in the back bedroom in a dresser drawer.’?
“A. No, sir.
“Q. Isn’t it a fact that you told him, ‘When Mary Trahan came in the house she asked me was I going to help her today. I told her I would not, the weather was too bad. I told her I had a package that Doc Henley had told me to give her.’ ? Isn’t it a fact you told him that?
“A. No. I told them when they asked me — I told them she had come to get me to go work for her.
“Q. Isn’t it a fact that you told him the following: T had not had time to give Mrs. Trahan the package yet when the police came into my house. The police found the package where I had put it in the dresser drawer.’?
“A. No, sir.”

It is now apparent from' the above that this constituted “an affirmative showing that the written statement contained such matter,” and the witness was actually impeached.

This brings us to the question of the Court’s charge which we have not heretofore discussed. In appellant’s objections to the charge we find the following two paragraphs :

“In addition the defendant objects to said instruction because it is not complete and requests the Court to further instruct the jury that they are not to consider any prior statement made by the witness, Aleñe Joseph, as any proof that said testimony was not true, or a proper instruction embracing this last principle of law.”
“The defendant objects to the court’s charge because same fails to withdraw from the evidence the questions and answers concerning a prior statement made by the State’s witness Aleñe Joseph, and here and now requests the court to give a proper instruction withdrawing from the evidence all attempted impeachment of the said witness by the State.”

The court failed to respond to either objection. In Hall v. State, 164 Tex.Cr.R. 142, 297 S.W.2d 685, we had occasion to discuss fully the law relating to the court’s charge in cases where a State’s witness has been impeached. There we quoted with approval a charge which was given in Carroll v. State, 143 Tex.Cr.R. 269, 158 S.W.2d 532, as follows:

“You are further instructed that the testimony of the witness, E. D. Cartwright, regarding the statements of the witnesses Frank Carroll and Mrs. Frank Carroll, was admitted for the purpose of impeaching the said witnesses, Frank Carroll and Mrs. Frank Carroll, if you find that it does impeach them, and you cannot consider said impeachment testimony as any evidence whatever of the guilt of the defendant.”

We have now concluded that appellant’s objections clearly pointed out to the court the defect in his charge and that he fell into error in not responding to such objections.

Having so concluded, appellant’s motion for rehearing is granted, the judgment of affirmance is set aside and the judgment is now reversed and remanded.

It is so ordered.

WOODLEY, Judge

(dissenting).

Aleñe Joseph, called as a witness for the state, testified to affirmative facts injurious to the state. She testified that appellant did not bring her a package and that she had never seen the bottle the officers said they found in her house. The state pleaded surprise and was properly permitted to impeach her.

The questions and answers set out in the majority opinion are erroneously construed as “an affirmative showing that the written statement contained such matter,” and constituted impeachment, though the witness denied:

(1) that she told the police officer that appellant gave her a package;,
(2) told her to give it to Mrs. Trahan;
(3) that she was shown a package which was the package that appellant told her to give to Mrs. Trahan;
(4) that she put the package appellant gave her in a dresser drawer;
(5) that she told Mrs. Trahan she had a package that appellant told her to give her, and
(6) denied that' she made the statement: “I had not had time to give Mrs. Trahan the package yet when the police came into my house. The police found the package where I had put it in the dresser drawer.”

Predicate was thus laid for the impeachment of the witness by proof that she in fact had matíe the statement she had denied making to Officer Phillips, but neither the witness sought to be impeached nor any other witness testified that she made any of the statements, and no statement in writing was introduced.

As I see it, the majority opinion confuses the question of error in the state’s attempted impeachment of its own witness who has merely failed to give the testimony expected, and the attempted impeachment of such a witness who, contrary to his previous statement and to the surprise of the state, testifies to facts injurious to the state.

The majority errs in holding that the trial court should have instructed the jury as though the witness had been impeached. Certainly an instruction such as quoted from Carroll v. State would not be proper.

Suppose the court had instructed the jury that certain evidence had been admitted for the purpose of impeaching the witness Aleñe Joseph. To whose testimony and to what evidence would the court have directed the jury’s attention? To hers? And how could the jury have found that the questions answered by her in the negative impeached Aleñe Joseph? What “impeachment testimony” could the jury properly have been instructed not to consider as evidence of the guilt of the defendant? Her testimony?

ON STATE’S SECOND MOTION FOR REHEARING

Rehearing denied.

WOODLEY, Judge

(dissenting).

The majority overrule the state’s second motion for rehearing without written opinion.

In doing so they cast aside the following authorities which sustain Judge McDonald’s disposition of the question of whether the state’s witness Aleñe Joseph was impeached, in his opinion affirming this conviction.

From Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106:

“While testifying for the State, Marcella Lopez (the mother of appellant) admitted that she signed a statement by making a mark in the presence of her son, Domacio Lopez, and his wife, in which she stated that shortly after Christmas, in 1958, she found some money in the roof of an outside toilet after she had seen the appellant go to the outside toilet, but she denied saying that she saw him take anything from his pocket and hide it on the roof of the toilet. She further denied saying that ‘After I found the money, I began to wonder if maybe Andres (appellant) had killed Miguel Ramos.’ The statement referred to during the examination of Marcella Lopez was never introduced in evidence.
“(2) To constitute the impeachment of which the appellant complains, it would be necessary for the State to support the predicate laid, either by the introduction of the written statement or by an affirmative showing that the written statement contained such matter. In the absence of such proof, her denial of making such statement was not contradicted. Therefore, the matter of her impeachment is not presented. Bailey v. State, 37 Tex.Cr.R. 579, 40 S.W. 281; Robbins v. State, 162 Tex.Cr.R. 107, 282 S.W.2d 711.”
From 62 Tex.Jur.2d Sec. 307:
“ * * * Where the contradictory statement is contained in a document if is not a sufficient predicate merely to ask if a certain writing had been signed by the witness; the document must be produced for inspection by counsel for the opposite party, and for identification by the witness whose attention must he called to the statements therein that are relied on by the cross-examiner as being in conflict with the testimony.”

From McCormick and Ray, Texas Evidence, Second Edition, Section 687:

“ * * * In the contradiction already considered the statements of other witnesses were relied on to show the error. Here the witness’ own prior statement in which he gave a contrary version, is used. Since his previous statement and his present testimony are contradictory, one of them must be erroneous * * *. Qj course where the witness denies making the former statement other witnesses must be called as in the preceding method.”

Section 692:

“One of the chief objections to the use of prior contradictory statements is that of unfair surprise. * * * To obviate this objection the rule was laid down more than a century ago that before a witness could be impeached by prior inconsistent statements a predicate must first be laid. This consists in asking the witness, on his cross-examination, whether he made the alleged contradictory statement. The witness is thus warned that the statement will later be used against him. He, is given an opportunity to deny it and prepare to disprove it, or if he admits making it, to explain the statement. This rule is recognized in almost all jurisdictions. It was adopted by the Supreme Court of Texas at an early date and has been rigidly enforced since that time. The Texas Courts have made no distinction between oral and written statements in this regard.”

Section 695 :

“Where the witness denies making the prior contradictory statement all the courts hold that the adverse party may prove that he did make such statement. And where he states that he 'does not remember’ having made the statement or is not positive he made it, the predicate is complete and the impeachment may proceed.”

I respectfully dissent.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    William Joseph MELTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37769.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Rehearing Denied March 31, 1965.
    W. Alfred Winder, Fort Worth, for appellant
    Doug Crouch, Dist Atty., Grady Hight, , Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced under Art. 62, P.C. by a prior conviction of burglary, 12 years.

The indictment alleged the burglary of a house owned and occupied by W. W. Grosclose. He testified that he was Principal of Riverside Junior High School and had the care, custody and control of the band house and all other property there; that someone forced the door of the band house on the night of November 25, 1963, and an alto horn, an alto sax and a trombone were missing; that he did not give the appellant or anyone else permission to break and enter the band house, and that the'missing' instruments were returned several days later by the police.

Charles Hoffman, band director, testified that he locked the door of the band house when he left the premises on November 25, 1963, as was his custom, and when he saw it the next morning it was obvious that it had been “pried or forced”.

Three accomplice witnesses, two of them •females, testified for the state. The girls •testified in substance that appellant left them on the night in question saying he was going to try to get some money. He returned with two musical instruments which he said he got at Riverside High Band House — said he broke in the door and :got them.

Upon appellant’s request they went with appellant to the vicinity of the band house and watched outside while he entered and came out with another instrument. The next day they took the three instruments to Clifford Busby’s house.

Donald Walton, student at Riverside Junior High, testified that he was familiar •with the instruments and recognized the alto horn and Donnie Waugh’s saxophone which two men were carrying to the back of a house. Mike Smith, who was with Walton, testified that he saw three boys and a girl sitting in a car and the boys were playing instruments which Donald said he recognized.

Clifford Busby, the third accomplice witness, testified that appellant asked him to sell or pawn the instruments and he agreed; that he pawned one at Leo’s Pawn Shop and drove with Marion Akers to another pawn shop on Main Street where Akers took "two horns in and brought back the money and that he pawned a horn at City Loan and Jewelry.

City Detective Max Victor, assigned to investigate the burglary, testified that he talked to Donald Walton at the school and discovered the location of the three horns after and as a result of a conversation with appellant in which he said he had given them to Clifford Busby and he thought Busby had pawned them at French’s Jewelry.

Police Officer H. O. Middleton testified that after talking to Walton, Smith and Waugh, and ascertaining who lived in the house and who owned the car the boys reported seeing in front of it, he had a conversation with appellant who told him he had left the instruments at Clifford Busby’s house. Then he talked to Busby’s mother. She later brought Clifford to the police station and Clifford directed him to three different pawn shops, at each of which one of the instruments was recovered.

As a witness in his own behalf, appellant testified that he had been living with the girls who were supporting him from their earnings as prostitutes; that Clifford Busby was there quite a bit and wanted money from them also; that they had an argument and he told Busby “to stay away from me and he did.”

Appellant testified that he saw the musical instruments at the girls’ apartment and they told him that they had come from a school and that the next day he and the girls took them to Busby’s house. He denied that he went to the school for the purpose of stealing musical instruments or that he broke into the building. He denied that he told Officer Middleton this, or told him that Busby had them, or that he told Busby that he had gotten the instruments out of the Junior High School.

The state proved and appellant admitted the prior conviction for burglary alleged in the indictment and that he had been convicted of misdemeanor theft.

The jury resolved the issues of fact against appellant and we find the evidence sufficient to sustain the conviction.

Appellant’s court appointed counsel on appeal alleges in his brief that appellant’s trial counsel, also court appointed, was barred by the sheriff from entering the jail and appellant was never able to talk to him until the day of the trial, for which reason neither appellant nor his counsel was fully prepared.

There is nothing in the record to support the representations in appellant’s brief.

The indictment was filed February 18, 1964; counsel was appointed pursuant to appellant’s request on February 28, 1964. The case was tried on June 10, 1964, the state and the defendant announcing ready for trial. We see no error.

The judgment is affirmed.


text:
    Eddie DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 37754.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 31, 1965.
    Herschel B. Cashin, Galveston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is unlawfully carrying a pistol; the punishment, three months in jail.

The state’s evidence shows that appellant was arrested for being drunk in a public place by an officer of the La Marque Police Department. The officer drove him to the police station in his patrol car where he searched him and found a pistol in his coat pocket.

Appellant seeks reversal upon the grounds (1) that the arrest was unlawful; (2) the court erred in refusing to submit to the jury the question of whether the defendant was intoxicated; (3) the search was not an incident to the arrest and (4) he was deprived of an effective procedure for vindicating his constitutional rights by the summarily overruling of his motion challenging the legality of the arrest, search and seizure.

The arresting officer testified that on the day alleged in the information he was driving a La Marque patrol car in which he had a prisoner charged with being drunk. As the car approached an intersection he noticed the appellant and a companion walking across the road in front of the patrol car; that his attention was drawn to appellant because he was unsteady on his feet and staggered as he walked.

The officer stopped the patrol car and called appellant to him. A conversation ensued during which the officer noticed that appellant’s speech was incoherent and that he had a strong odor of alcohol about his person. The officer concluded that appellant was intoxicated and directed him to get in the patrol car.

Appellant, testifying in his own behalf, admitted having the pistol when he was arrested and testified that he got it from his brother with the intention of selling it or pawning it to a Mr. Pruitt who owned a business establishment in the vicinity of his arrest.

Appellant further testified that when he was searched, and. the officer found the pistol in his pocket, it was empty and the two cartridges were loose in his pocket.

It has been often held by this Court that error in the admission of evidence obtained as the result of an illegal search becomes harmless where the defendant testifies and affirms the truth of such evidence. Lee v. State, 148 Tex.Cr.R. 220, 185 S.W.2d 978; Welch v. State, 143 Tex.Cr.R. 529, 154 S.W.2d 248, and cases cited in Texas Digest, Criminal Law <®=51169(2), 1169(3). See also 5 Tex.Jur.2d, Sec. 446, p. 708, citing Kilrain v. State, 166 Tex.Cr.R. 265, 313 S.W.2d 299.

We need not rest our decision upon the waiver of objection, however.

When the officer concluded from what he observed that appellant was drunk in a public place, it was his duty to arrest him. Under the facts above shown, the officer had sufficient cause to so believe and conclude and the arrest was lawful. Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200; King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501.

The search was incident to the lawful arrest and was not unlawful. Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264; Mays v. State, 165 Tex.Cr.R. 123, 304 S.W.2d 118.

Our holding that the arrest and search were lawful and the fact that appellant testified that the pistol was in his pocket dispose of appellant’s remaining claim of error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Edward Donald CRESWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 37662.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 31, 1965.

      D. B. Mauzy, Lee Mauzy, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley Woodard and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was jointly indicted with James Benny Evins and Charles Edward McKinney for the offense of robbery by assault.

A severance being granted, appellant was separately tried and convicted and his punishment assessed at confinement in the penitentiary for twenty-seven years.

The state’s evidence shows that on the night of December IS, 1962, while the injured party, eighteen-year-old Ronald Kaiser,' was driving his automobile on Hardy Street in the northern part of Harris County, a car drove up behind, flashing its lights from dim to high. Kaiser proceeded to stop and two colored men identified as James Evins and Charles McKinney came to. the door of his car. Evins, who was armed with a pistol, said: “ ‘ * * * move over and we won’t hurt you, or we will shoot.’ ” Kaiser then moved to the center and the two men got in on either side of him. Evins asked if the injured party could identify the car they came up in and, when told that he could not, hit him “up-side” the cheek with his hand. Evins then asked Kaiser how much money he had and said that he wanted it. Thereupon, Kaiser produced his wallet and gave Evins nine $1 bills, being at such time in fear of death or serious bodily injury. After the money was given to Evins, McKinney proceeded to drive the car to a dirt road, where he drove it into a ditch and stuck it in the mud. While they were driving, Kaiser was struck in the face with a flashlight and the pistol was pointed at his chest. After the car was stuck in the ditch, Kaiser was told to lie down on the floor and the two men got out. McKinney then proceeded to raise the hood and jerk some wires out and Evins fired a shot which struck a window glass in the car door. After the shot was fired, both Evins and McKinney left. Another shot was fired and then the injured party heard a car drive off.

The state’s evidence further shows that Evins, McKinney, and appellant were arrested within a few days after the robbery. A pistol taken from McKinney’s home by the officers was identified by the injured party as similar to the one which Evins had in his possession on the night of the robbery.

Appellant was arrested on December 17, 1962, at 9:30 p. m. by deputy sheriff Larry M. Frazier and, after being questioned by chief deputy sheriff Loyd Frazier, made and signed a written confession between 1:30 and 2:30 a. m., in which he admitted his participation in the robbery.

When the confession was offered by the state, the jury was retired and a hearing was held by the court on the question of its admissibility. At the conclusion of the hearing, the court admitted the confession in evidence over appellant’s objection that it was not dated and that he had not been taken immediately before a magistrate after his arrest, as provided by Art. 217, Vernon’s Ann.C.C.P.

At the hearing and before the confession was admitted in evidence by the court, proof was made by the state through the testimony ■of Officer Loyd Frazier that appellant voluntarily made and signed the confession after having been given the statutory warning. It was shown that the confession was taken on December 18, 1962, and that a part ■of the date on the instrument had been obliterated by a hole punched in the paper. It was also shown that appellant had not been taken before a magistrate prior to his making the statement.

In his confession, appellant stated, in part, as follows:

“It was last Saturday night December IS, 1962_ that I was at Mr. Henry Hill’s place in Bordersville, Texas-just outside of Humble, Texas— drinking beer when James Evins came in. James asked me to ride to Spring, Tex-as_ with him and I told him that I would go. We went outside and got in James— car which is a 1958 Chevrolet and I am not sure about the color but it has some white on it and the other could be blue or green and Charles McKinney was in there. We left there with James driving and drove to Springs Texas to the Honeycomb and went inside and drank some beer there. We drank two beers there and then we decided to leave. We were on our way back to Bordersville, Texas— and were on Hardy Street and we got to talking about stopping cars and holding people up. We pulled up alongside a 1956 Chevrolet and James blinked his lights and the other car pulled over to the side of the road and stopped and James stopped behind this car and James and Charles got out of the car and I didn’t see any gun at that time. They walked up to that car and they got into the car on opposite sides and James got in on the drivers side and Charles got in on the passenger side. They taken off and I didn’t follow as I couldn’t drive James— car. They stopped and James came back and showed me how to drive his car and then he went back and got in the car and they drove off and I followed them. They drove down Hardy until they got to 1960 and then they turned left on 1960 until we got to Aldine and turned right and went to a little road that I do not know the name of and I stopped about a half of a block down from where they did and in about five minutes I heard a shot and I got out of the car and they said that they would be on in a few minutes and then I heard another shot and they came running back to the car and we went back to Bordersville, Texas— to Hills and on the way there they gave me three dollars and said that they only got nine dollars. We drank one beer there and then w;e split up and I left them outside and went to dance. I think that is all.”

Testifying as a witness in his own behalf, appellant admitted being with Evins and McKinney on the night in question but denied any complicity with them in the commission of the robbery. He stated that he was asleep when the injured party’s car was stopped; that he followed behind in Evins’s car because Evins told him to but that he did not know a robbery had been committed. He also admitted receiving $3 from Evins but swore that he did not know it was taken in the robbery.

Appellant repudiated certain incriminating statements contained in his written confession, saying that he did not make such statements to the officer. He also testified that he was not warned by the officer to whom the statement was made and was not allowed to call a lawyer. Appellant swore that he was physically mistreated and threatened by one of the officers during the interrogation and testified, in substance, that the statement was not voluntarily made.

The state called, in rebuttal, deputy sheriff Loyd Frazier, the officer to whom the statement was made, who swore that he gave appellant the legal warning and did not refuse him permission to call a lawyer or use the telephone. The officer testified that appellant did not mention making a telephone call. He also denied that anyone physically mistreated or threatened appellant during the interrogation. Other officers present when appellant made the statement were called by the state and swore that appellant was not physically mistreated or threatened in any manner.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals. The issue as to the voluntary nature of his written confession was also submitted, with appropriate instructions.

The evidence is sufficient to support the judgment of conviction.

Appellant insists that his confession was illegally obtained and, therefore, inadmissible in evidence because he was not immediately taken before a magistrate, as required by Art. 217, Vernon’s Ann.C.C.P.

The failure to take appellant before a magistrate between the hours of 9:30 p. m., when he was arrested and 1:30 or 2:30 a. m., when the confession was made, was not an unreasonable delay. Childress v. State, 166 Tex.Cr.R. 95, 312 S.W.2d 247. It is observed that if there had been an unreasonable delay, the confession would not be inadmissible in the absence of a showing of some causal connection between the delay and the making of the confession. Collins v. State, 171 Tex.Cr.R. 585, 352 S.W.2d 841. The contention is overruled.

It is also contended that under the authority of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 1759, 12 L.Ed.2d 977, the confession was inadmissible because appellant was not allowed consultation with an attorney prior to making and signing the same. In his brief, appellant insists that this contention should be appraised in light of the dispute in the evidence as to whether he was advised that he had a right to remain silent.

In Escobedo v. State of Illinois, supra, a confession was held inadmissible where the proof showed that the officers had not effectually warned the accused of his right to remain silent and the accused had requested and been denied the opportunity to consult with his counsel. In the present case there is a sharp conflict in the testimony as to whether appellant was given the statutory warning prior to making and signing the confession. With reference to his claim that he was not allowed to consult with counsel, appellant testified as follows:

“Q At the time that you made this statement, were you allowed to call a lawyer? A No, sir.
“Q Were you told you could call one? A No, sir.
“Q Did they let you use the phone at all? A No, sir.”

Officer Loyd Frazier, called as a witness in rebuttal, upon being examined by the court, swore that he did not refuse the appellant permission to call a lawyer or use the telephone. He further swore, in answer to questioning by state’s counsel, that appellant did not mention to him that he wanted to make a telephone call. Under such evidence, Escobedo v. State of Illinois, supra, is not controlling. The contention is overruled.

Appellant’s remaining contention is that he was denied due process of law because of 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. 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 relied upon in support of the contention.

Jackson v. Denno, supra, and Boles v. Stevenson, supra, have no application to the present case, where the state’s proof as to the voluntary nature of the confession was not questioned by appellant when the same was offered in evidence by the state. See: Garrett v. State, Tex.Cr.App., 387 S.W.2d 53, opinion delivered January 27, 1965; and Miller v. State, Tex.Cr.App., 387 S.W.2d 401, opinion delivered February 3, 1965. The issue raised by 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. The contention is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Jeannie DEMPSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37906.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    John Knoff, Gene Barrington, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ripley E. Woodard, Jr., Asst. Dist Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, two years.

T. S. Prescott testified that he was the owner and- operator of a service station and that in response to a telephone call while at home for his evening meal, he immediately returned to the station and found missing therefrom three small cans of Bardahl oil and -$94 in one-dollar bills from two cigar boxes which were under the counter. He testified that Edward Melcer had been in charge of the station while he was gone.

On December 11, about 7:30 P.M., with Duffey driving, the appellant, Joy Graves, and Edgar Duffey drove an automobile into a service station. Duffey said he was having motor trouble. While Melcer and Naivar, an attendant, helped Duffey with the car, appellant and her woman companion walked over to a Bardahl oil rack and then went inside the station, out of the cold weather. When Naivar entered the building to get a quart of oil, one woman was in front of the desk with the drawer partly open. The desk drawer had been closed. Naivar then went outside and talked with Claude Kristinek, who had just arrived, and he (Kristinek) went inside. The girls left the building, got in the car with Duffey and drove away. Melcer testified that he did not give the appellant or her companions consent to take the money or the oil.

Claude Kristinek testified that after talking with Melcer and Naivar at a service station about 7 P.M., he drove away looking for a man and two women in an automobile. After going a short distance and between five and ten minutes later, he saw these three persons at another service station.- ' The appellant and her woman companion were inside the service station building /while the attendant and Duffey were at the- grease rack with the car. As Krist-inek entered the station building one of the. women closed the desk drawer.

Deputy Sheriff Cowart testified that following the arrest of Duffey and Joy Graves-shortly after receiving a report of a theft at a service station, one small can of Bar-dahl oil was found on the seat of the automobile, two more were found in the Graves-woman’s purse and some money was recovered from Duffey and Graves. He further testified that the appellant told him at the Sheriff’s Office that “we” got the money from the cigar box which was under the desk in the office of the Prescott service station; that they divided the money three ways; that she had her share of the money on her person, except that which she had spent, and produced the money from her person, which Cowart counted’ and it totaled $13.30; that she had no money before going to the station; and that all the money she had came from the service-station.

Testifying in her own behalf, the appellant admitted going to the two service stations, as shown by the testimony of the-state, but she denied taking, or seeing Joy Graves take, anything from the stations or opening or taking anything from the desk. Further, that the $13.30 which she hadwhen arrested included one ten dollar bill,, and that she had worked for this money. She also denied telling Officer Cowart that “we” took the money from the desk.

By informal bill of exception, the appellant complained of the trial court’s permitting Officer Cowart to testify as to the-facts she related to him on the ground that she was then under arrest.

The officers had received a report that a. felony theft had been committed at the Prescott service station, and also a description of the persons who committed it and a description of the automobile in which they were traveling. After Duffey and Graves were apprehended they told the officers that the appellant was involved with them in the theft Shortly thereafter the appellant was apprehended. She admitted the theft of the money. At this time neither Duffey, Graves, nor the officers knew of the whereabouts of appellant’s share of the money taken from the station.

The facts related by the appellant to Officer Cowart enabled him to discover and recover appellant’s share of the money taken from the service station, except the amount she had spent. This authorized the admission in evidence of his testimony of the facts as related to him by the appellant about the theft of the money. Arts. 325 and 727 C.C.P.

Appellant urges error because of comments by the trial judge before the jury concerning the alleged oral statements of the appellant.

In the absence of any objections during the trial to any remarks by the trial judge, and none of the remarks appearing to be fundamentally erroneous, no error is presented. 24 Tex.Jur.2d 421, Sec. 86.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Boyce Monroe CARLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37765.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 31, 1965.
    Billy C. Powell, J. Robert Harris, Houston, for appellant
    Frank Briscoe, Dist Atty., Carl E. F. Dally, James C. Brough and W. Louis White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice under Article 802c Vernon’s Ann.P.C.; the punishment, two years.

Mrs. Brock, wife of one of the deceaseds, and her sister, Mary Wellman, testified that after midnight on the night in question they received a call from her husband and drove to Crosby to deliver some gasoline to his truck, that her husband and his companion siphoned some gasoline from the tank of Mrs. Wellman’s Ford, placed it in the truck, and they followed the truck on into Houston. After reaching the city limits the truck ran out of gasoline again and while the men were siphoning more gasoline and while the lights of the Ford were on and blinking a left turn, suddenly something out of the dark collided with the rear of the Ford which was parked immediately behind the truck. Upon extricating themselves from the damaged Ford, they saw appellant as he got out of his automobile immediately to their rear and staggered up to them saying “what’s going on around here?” When he was asked to do so, appellant returned to his Chevrolet and turned on its lights. One of the women testified that when they discovered that both men had been killed, appellant had said, “It’s not the dead we should worry about. It is the living.” Both women testified that appellant smelled of alcohol, staggered when he walked and spoke with a thick tongue and expressed the opinion that he was intoxicated.

Accident Investigator Young testified that when he arrived at the scene he asked appellant “Who was driving this car at the time of the accident?”, and appellant replied, “I was. And I wish you could tell me what happened.” He stated that he found a truck and two automobiles had been invplved in a collision on the shell shoulder of the road and the Ford had sustained severe damage in the rear and lesser damage to its front end and that the Chevrolet had been damaged in the front. He stated that appellant did not speak clearly, that his eyes were watery, that his face was flushed, that he had difficulty walking or standing and that his breath smelled of alcohol, and expressed the opinion that he was intoxicated. Young stated that only Mr. Brock’s body was at the scene when he arrived, but that he saw Mr. Looney’s corpse later at the morgue. A test was made on both corpses and revealed no indication of intoxication. A hose and a can were found at the rear of the Ford. An empty beer bottle was found in the Chevrolet A sample of appellant’s urine was taken with his consent and was shown to contain .34 percent alcohol which was indicative of intoxication.

Appellant did not testify in his own behalf, but called the witness Wilson, who testified that he drank a beer with appellant in the evening prior to the accident and expressed the opinion that he was not intoxicated. He also introduced a hospital record which showed minor injuries he had sustained in the accident.

Only one question is presented for review and it relates to an alleged comment upon the defendant’s failure to testify. Evidence of an accused’s reputation for truth and veracity is not admissible unless he takes the stand in his own behalf, and his failure to do so may not be commented upon by counsel. Two attorneys represented the State in this case. When the witness Wilson was concluding his testimony he was asked if he was acquainted with appellant’s reputation for truth and veracity and he replied that he was. At this juncture one of the prosecutors objected on the grounds that no issue existed and the other prosecutor stated, “Your Honor, it is my understanding that the defendant is going to take the stand.” Thereupon defense counsel asked for a mistrial. The prosecutor who had made the statement quoted above was then sworn and testified in the absence of the jury as to an agreement he had had with defense counsel “That I would waive my objection to his testifying about the truth and veracity before the defendant would take the stand, in order to get this Mr. Wilson out, as requested by the defense counsel.”

Defense counsel stated in open court “I don’t recall having told anybody, if Your Honor please. I told this counsel that I may put the defendant on the stand.”

Thereafter the court stated “Well, I assured defense counsel that he could put the witness on, recall him, if he didn’t want to make such an agreement at that time.”

Among other cases, appellant relies on Biggerstaff v. State, 125 Tex.Cr.R. 372, 68 S.W.2d 498, and Heeter v. State, 103 Tex.Cr.R. 399, 281 S.W. 565. In Winfield v. State, 163 Tex.Cr.R. 445, 293 S.W.2d 765, this Court indicated that it would not extend the rule announced in those cases. In Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873, we refused to consider a question as a reference to the defendant’s failure to testify. We so construe the above occurrence.

Finding the facts sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


text:
    Landon Raymond COMPTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38057.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Robert E. Burroughs, Centerville, Emmett Colvin; Jr., Dallas, for appellant.
    Leon B.. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802, Vernon’s Ann.P.C., for the offense of driving a motor vehicle upon a public highway while intoxicated, with punishment assessed at a fine of $50.

The minimum punishment for such offense under the provisions of Art. 802, supra, is three days in jail and a fine of $50.

The punishment assessed, being less than the minimum provided by law, requires a reversal of the conviction. Compian v. State, Tex.Cr.App., 363 S.W.2d 468.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court


text:
    Jesse LUNA, Appellant, v. The STATE of Texas, Appellee.
    No. 37790.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Rehearing Denied March 31, 1965.
    Clyde W. Woody, Houston, on appeal only, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the sale of heroin; the punishment, 25 years.

The count of the indictment upon which the case was submitted to the jury alleged the sale of a narcotic drug, to-wit, heroin, to William Gober.

Gober, an ex-convict, testified that on August 30, 1963, the date alleged in the indictment, he was at an Icehouse-Beer Parlor drinking beer. About 1 o’clock P.M. the appellant and one Robert or Bobby Ortega drove up.

In a conversation between them appellant asked Gober if he “wanted to score” and Gober said he probably would in a little while.

Appellant said he would have “some stuff” ready shortly, and left.

Gober finished his beer and called Police Officer Hightower.

About 3 P.M. appellant again came to the beer parlor and told Gober that he had “some stuff” over on James Street under a house, and asked Gober if he was ready to buy. Gober replied that he had to go around the corner and would be back and appellant said he would wait in Ortega’s car, “and he asked me how long it would be before I would be back and be ready to buy this heroin,” and Gober replied that it would just be a few minutes.

Gober then went to a Pig Stand on North Main where he met Police Officers High-tower and McMannes who, after searching him and the front part of his car, gave him $21.00. Gober then drove back to the Ice-house where appellant and Ortega were sitting in Ortega’s tan Chevrolet car. Upon signal from appellant, Gober followed the Chevrolet driven by Ortega to a place in the 400 block of James Street where the Chevrolet car stopped and Gober drove up directly behind it and got out of his car.

Appellant went across the street and crawled under a house. In a matter of seconds he came out and walked up to Gober and said “Where’s the money ?” Gober got the $21.00 out of his pocket and gave it to appellant in exchange for three capsules which appellant took from a package.

Gober further testified that Officers Hightower and McMannes, in an unmarked car, followed him from the time they gave him the $21.00, and that after appellant received the money and drove away Officer Hightower followed as he drove to a secluded area near some warehouses where he gave the capsules he had bought from appellant to Officer McMannes and they again searched him and searched his automobile.

Officer Hightower, assigned to the Narcotics Division of the Houston Police Department, testified that he received a call from Gober, went with his partner, Mc-Mannes, to the Pig Stand dressed in plain clothes, where they had a conversation with Gober; searched him and his car and advanced him $21.00 “of official city funds” with instructions.

Officer Hightower further testified that he and his partner followed Gober to the icehouse, where he saw appellant with his arm out the window of the car driven by Ortega, and continued following both cars to the 400 block of James Street. He testified that from a distance of a block and a half, using field glasses, he saw appellant go to the house at 411 James and return to where Gober was standing; saw Gober hand appellant some money and appellant, in return, hand Gober something.

Also he testified that he and his partner followed Gober to the pre-arranged meeting place where Gober gave Officer Mc-Mannes three capsules and they again searched him and his car, and returned the money they had found in his pocket when they first searched him.

Floyd E. McDonald testified that he ran an analysis on the contents of the three capsules identified as State’s Exhibit No. 1 which revealed that each contained about one gram of 26.4 percent pure heroin, a narcotic drug.

We find the evidence sufficient to sustain the conviction.

There are no formal bills of exception or exceptions relating to the court’s charge.

Appellant’s counsel on appeal presents but one point of error. It relates to the following which occurred on cross-examination of the state’s witness Gober, who had testified on direct examination that he was convicted in 1955 of murder without malice and in 1961 of burglary and felony theft, and had repeated such testimony on cross-examination.

Appellant’s trial counsel asked the witness: “You have been charged * * * ” The question was interrupted at this point by objection of counsel for the state pointing out “Convictions are all that he can ask him about as Counsel well knows.” Appellant’s counsel then stated: “I want to ascertain the number of charges that was in Harris County, Your Honor,” to which the Court replied “Just convictions please. You know the rules,” and appellant’s counsel responded “Yes, Your Honor.”

Appellant’s counsel’s next questions regarding charges other than those which resulted in the convictions that had been admitted were: “Q. What other indictments —have you been under other indictments?” to which the state’s objection was sustained; and after he had been asked and had answered that he was not addicted to the use of narcotics: “Q. How many cases have they filed on you * * * do they have over you right now?” which he answered: “I don’t have any pending cases against me,” and the question: “How many times have they caught you with narcotics ?” to which the state’s obj ection was sustained and counsel for appellant was admonished: “Counsel, please pay attention. * * * You know what is admissible, and you know what is not admissible. Please don’t ask any more questions along that line.”

The questions propounded to which objection was sustained related to prior charges filed against the witness which did not result in convictions. We find no error in the trial court’s rulings. Art. 732a Vernon’s Ann.C.C.P.; Gibbs v. State, Tex.Cr.App., 385 S.W.2d 258; White v. State, Tex.Cr.App., 362 S.W.2d 650; Scarborough v. State, 171 Tex.Cr.R. 83, 344 S.W.2d 886; Gomez v. State, 126. Tex.Cr.R. 30, 280 S.W.2d 278.

No reversible error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Jessie Lee CREW, Appellant, v. The STATE of Texas, Appellee.
    No. 37791.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 31, 1965.
    Teague & Carlisle, by Marvin O. Teague, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley E. Woodard, Jr., and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault to murder, with a prior conviction for an offense of like character alleged for enhancement; the punishment, 25 years confinement in the state penitentiary.

We shall pretermit a discussion of the facts in view of our disposition of this appeal.

At .the conclusion of the state’s testimony appellant’s counsel told the court that he would like to make a short opening statement to the jury, which the court declined, and to which appellant’s counsel excepted. Art. 642, Vernon’s Ann.C.C.P. provides for the order of trial proceedings in criminal actions. Section 5 of this article is controlling so far as our disposition of this case is- concerned. It states “The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel”. This section follows in chronological order section 4, which states: “The testimony on the part of the State shall be offered”.

' This Court held in Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400, “The privilege of making such statement is a valuable right provided by statute (Art. 642, sub. 5, C.C.P.), and if denied, would constitute error.” In Price v. State, 167 Tex.Cr.R. 105, 318 S.W.2d 648, the trial court refused to permit counsel to make such statement. The state confessed error and said that such ruling called for a reversal. Judge Wood-ley wrote the opinion of this Court reversing that case. Also, see McBride v. State, 110 Tex.Cr.R. 308, 7 S.W.2d 1091 and Dugan v. State, 82 Tex.Cr.R. 422, 199 S.W. 616. The learned trial judge fell into error in refusing appellant’s counsel’s request.

It is the state’s position that this complained of error is not before us for review as it was not raised by formal bill of exception. The state adopts the view that this request of appellant to make an opening statement must be done by a motion for leave to make the statement. That is one reason for the state’s insistence that this matter should be brought forward by a formal bill of exception. The state says that such a motion is not within the scope of Articles 759a and 760e, V.A.C.C.P., which sets out where no formal bill is necessary. While this precise question has been urged before this court by formal bills of exception in the cases that we have examined, we do not agree that it is necessary to do so. Neither do we agree that it is necessary to have a separate statement of facts, as provided for by Sec. 6 of Art. 759a. We are not here dealing with a motion. It is a statutory right available to counsel. He need not make a motion to avail himself of it. All he need do is request the Court to allow him to make an opening statement, as appellant’s counsel here did. Sec. 2 of Art. 759a allows an appellant to bring forward by an informal bill of exception in the Statement of Facts his objection to the action of the trial court and no formal bill of .exception shall be necessary. The Statement of Facts reflects all that is necessary for this Court to review the matter. It contains all of the testimony adduced by the state, reflects that the “state rests”, and then contains appellant’s counsel’s request to make the opening statement. There was nothing further required of him. How better could we have the matter brought before us than in the Statement of Facts? We see no merit in the state’s contention. The matter is before us and error is reflected thereby.

. The judgment is reversed and the cause .remanded.


text:
    Don Cody BATTLE, Appellant, v. The STATE of Texas, Appellee.
    No. 37980.
    Court of Criminal Appeals of Texas.
    March 17, 1965.

      Fred Time, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade, Howard Weinberger 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 felony theft; the punishment, four years.

The injured party testified that he awoke in the middle of the night and observed a dump truck without any lights shining pull out of the alley in back of the apartment house where he resided, that he called the police, got in one of his automobiles and pursued the truck until the police brought it to a halt, and that in the back of the truck he found four expensive hub cabs valued at $27.50 each that had come from his Buick automobile.

- Officer Woodrow testified that he stopped the dump truck which was traveling without lights in the middle of the night, that shortly thereafter the injured party arrived upon the scene and identified his hub caps from among others in the back of the truck, and that he then arrested appellant and his companion.

Appellant, testifying in his own behalf, admitted his guilt as he had in his plea of guilty and stated that he stole the hub caps while his companion served as “the lookout”, and that they intended to sell them.

The sole question presented on appeal is whether or not appellant should have been allowed to have Counselor Time enter the case and represent him at trial. The record on the motion for new trial reflects that the indictment against appellant was returned on May 4, 1964. The case was originally set for trial on May 21, but at such time Honorable Edgar Smith, a member of the Bar, informed the court that he represented appellant, and the case was reset for September 2, at which time it was passed until September 10, when the case went to trial with Edgar Smith representing appellant. While it is true that Attorney Time, at the hearing on the motion for new trial, developed from the prosecutor the fact that he had approached him on September 10, with a request that the case be passed so that he might sit in and participate in appellant’s defense, there is no showing that Attorney Time made any request to the court that the case be passed or continued, and no motion for continuance appears in the record.

In order to preserve any error, it is incumbent upon appellant to secure a ruling from the court. Yaffar v. State, 171 Tex.Cr.R. 341, 349 S.W.2d 730, and 5 Tex.Juris.2d, p. 47.

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


author: BATEMAN, Justice.

text:
    Betty Jo MADIGAN, Appellant, v. UNITED FINANCE & THRIFT CO. OF DALLAS, Inc., et al., Appellees.
    No. 16442.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 22, 1965.
    Rehearing Denied March 5, 1965.
    Fritz, Vinson & Stevens, Dallas, for appellant.
    Bailey & Williams and Irion, Cain, Cocke & Magee and Burt Berry, Dallas, for ap-pellees.
   BATEMAN, Justice.

Betty Jo Madigan, a feme sole, brought this suit against United Finance & Thrift Company of Dallas, Inc., and two affiliated corporations for $450.98 double damages for usurious interest paid, and for actual and exemplary damages on account of excessive and unreasonable collection efforts of appellees. Before trial the defendants stipulated that judgment should be rendered for plaintiff for the $450.98 double damages for usurious interest paid. The jury found that appellee United Finance & Thrift Company of Dallas, Inc., through its agents, servants or employees, made unreasonable collection efforts against plaintiff, but answered “No” to Special Issue No. 3, as follows:

“Do you find from a preponderance of the evidence, that Plaintiff, Betty Madigan, suffered any physical illness or aggravation thereof after Defendant, United Finance & Thrift Company of Dallas, Inc., made any such efforts, if any you have found in answer to the. foregoing issue?”

The jury found actual damages of $500 and $2,060 as exemplary damages, the collection efforts having been made with malice.

The court rendered judgment for appellant for the $450.98 and she appeals. Her ■first point is that the court erred in not granting a new trial because there was “no evidence” to support the answer of the jury to Special Issue No. 3. This point is overruled because, as hereinafter pointed out, there was at least some evidence to support the finding.

Appellant’s second point asserts that the negative answer of the jury to Special Issue No. 3 was against the great weight and preponderance of the evidence. A proper consideration of this point requires us to review all of the evidence hearing upon whether appellant did or did not suffer any physical illness or aggravation thereof after the unreasonable collection efforts were made. In doing this we must consider all the evidence, that which supports, as well as that which is contrary to, the verdict. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant owed United Finance & Thrift Company of Dallas, Inc., certain balances on three notes dated, respectively, July 29, 1960, June 8, 1961 and October 25, 1961. Appellee’s collection efforts, which the jury said were unreasonable, began February 6, 1962 and extended over a period of slightly more than two months. As appel-lees do not attack the finding of unreasonableness of the collection efforts in any way, we shall not recite the testimony pertaining thereto.

Neither do we consider it necessary to set forth in detail the testimony regarding the effect of such collection efforts on appellant’s health. A brief summary should suffice. It appears that she consulted Dr. Guerriero, a gynecologist, numerous times during the period from January 18, 1959 through May 7, 1962, although she did not consult him (or any other doctor) during the period in which the unreasonable collection efforts were made. Dr. Guerriero treated her for severe menstrual irregularities and disturbances and performed a dilation, curettage and biopsy of the cervix in March 1959. She said she did not discuss the contacts by appellee with Dr. Guerriero because she did not want to embarrass herself.

Appellant’s testimony was to the effect that the telephone calls and visits from ap-pellee’s collectors caused her stomach to “start going around,” her heart to “pound,” her head to ache, and that sometimes she would tremble or “shake” and “get sick at her stomach and vomit,” and sometimes she would become so upset she would “break out in a cold sweat all over.” Sometimes she would cry, become depressed, nauseated, unable to sleep, and very nervous, which at times interfered with her work. She said that in February 1962 she received notices other than telephone calls but that this did not bother her because she knew she was “overdue” and this knowledge was enough to distress her. It is also noted that she stated that she had suffered moderately with these conditions prior to the time the unreasonable collection efforts began; and that even before she started getting the “badgering” she couldn’t pay her bills and was worried about it and would get upset and couldn’t sleep. She said that when the loans were paid on April 10, 1962 her headaches, weariness and fatigue disappeared, although her nerves have never “calmed down” and she still trembles and her heart pounds whenever she gets upset.

Appellant introduced several other witnesses, but their testimony simply tends to corroborate her statements about crying and being emotionally upset and nervous following contacts with appellee’s collectors.

The last two items under the heading “Progress Notes” of Dr. Guerriero’s records, as best we can make out the photostatic copy of the handwriting, are:

“4-27-62 wt. 1491/z UA neg. BP 120/80 Had one day flow 1-8-62
Now having_hot flashes which are getting worse past 2 mo c 6 weeks.
No other problems.
Ex B P R Neg
Go see K_(illegible) for (illegible) & obesity Cyt.
Rx for flushes.
“5-7-62 No flushes. Complete Rx. Feels fine.”

Thus it is seen that the evidence raised an issue of fact which the jury could have decided either way. We cannot say that the finding in question is against the great weight and preponderance of the evidence, and the judgment is therefore

Affirmed.


author: MOORE, Justice.

text:
    F. K. PARKER, Appellant, v. CENTER GROCERY COMPANY, Inc., Appellee.
    No. 89.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 18, 1965.
    Rehearing Denied March 18, 1965.

      •Marion G. Holt, Nacogdoches, for appellant.
    . Jqe Davis Foster, Center, for appellee.
   MOORE, Justice.

.Appellee, Center Grocery Company, Inc., instituted this suit against F. K. Parker, appellant, upon a sworn account for merchandise allegedly sold and delivered. The trial was before a jury; however, at the conclusion of all the testimony, the court upon appellee’s motion, withdrew the cause from the jury and rendered judgment for the Center Grocery Company, Inc. in the amount of $895.14, together with attorney’s fees in the amount of $500.00.

Appellant perfected this appeal contending that the trial court was in error in withdrawing the case from the jury and rendering judgment for the appellee. We sustain this contention for the reasons hereinafter shown.

Appellee’s unsworn petition alleges that on and before March 1, 1962, appellee sold and delivered to the appellant goods, wares and merchandise amounting to the sum of $911.51. These purchases were not itemized in the petition nor was an itemized statement thereof attached to the petition, but were only referred to as being the “balance” due on said date.

Appellee’s petition further alleges that subsequent to March 1, 1962, appellant purchased additional merchandise totaling $904.41. Itemized copies of the invoices covering these purchases were attached to the appellee’s petition as an exhibit which was duly sworn to by the company’s vice-president. The exhibit and the supporting affidavit relates only to that portion of the account which accrued after March 1, 1962, amounting to $904.41.

Appellant’s pleadings consist of a sworn denial alleging that the account was not wholly just or true; a plea of payment and a general denial.

The only evidence supporting that portion of appellee’s account accruing prior to March 1, 1962, was the testimony of a former bookkeeper of the company who testified that he was familiar with the company’s books of account; that the books were properly and accurately kept, and that as of March 1, 1962, the books showed appellant owed the company the sum of $911.51.

As to that portion of the itemized account accruing after March 1st, appellee sufficiently proved each invoice, and appellant, while testifying in his own behalf, admitted that each of these items were true and correct. He denied, however, that there was any previous balance on his account, maintaining that all previous accounts had been paid.

The company’s ledger sheets which are in evidence show numerous debits and credits extending over a period of time from May, 1960, to August 23, 1962, and show that on March 1st, 1962, appellant’s balance was $911.51. The undisputed testimony shows that appellant made payments on his account between March 1, 1962, and August 23, 1962. The total amount of such payments is equal to the total amount of the purchases, that is, $904.41. Appellee takes the position that since appellant failed to specify how the payments were to be applied, the payments must be applied to older portions of the account which accrued prior to March 1, 1962, and when so applied the company is entitled to judgment on the subsequent account covering the items purchased after March 1st in the amount of $895.14.

The general rule is that when payments are made on a running account without either the debtor or the creditor having specified as to how the payments are to be applied, the law applies such payments to the oldest unpaid portion of the account. Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W.2d 460.

This rule, however, does not in any way alter appellee’s burden of proving the entire account sued upon.

Our search of the record fails to reveal any evidence which would sustain the initial unitemized balance of $911.51. Appellant denied the account in toto by filing his sworn denial under the provisions of Rule 185, Texas Rules of Civil Procedure. The effect of the appellant’s sworn denial was to put the appellee on proof of its case by a preponderance as at common law. Essential elements of such proof are inter alia (1) sale and delivery of the merchandise and (2) that the amount of the account is just, or in other words, that the prices charged are in accord with agreement, or in the absence of an agreement that they are usual, customary or reasonable. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357, (Tex.Civ.App.), citing Burtis v. Butler Bros., 243 S.W.2d 235, (Tex.Civ.App.) no writ hist.; J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325.

Even though the proof offered relating to that portion of the account accruing after March 1, 1962, be considered sufficient to sustain that portion of the account, there is no evidence showing that the goods, wares and merchandise covered in the unitemized balance on March 1, 1962, were ever furnished appellant or received by him or that the charges therefor were either agreed upon or were reasonable or customary. Dodson v. Kemper Military School, 42 S.W.2d 288, (Tex.Civ.App.) err. dis.

If the payments made by the appellant are to be applied to the older account, such account must be based upon evidence sufficient to support a judgment thereon. Appellant obviously must rely upon the older account as a basis of recovery, otherwise the evidence would show payment in full as a matter of law. The evidence offered in support of the unitemized balance is not sufficient to support the judgment and reversal is required. Devlin v. Heid Bros., Inc., 21 S.W.2d 746, (Tex.Civ.App.); Taylor v. Wright Sales Company, Inc., 357 S.W.2d 824, (Tex.Civ.App.); 1 Tex.Jur.2d, par. 64, page 314.

It is only in cases where the testimony is positive, direct and unequivocal that the trial court is authorized to instruct a verdict. We are of the opinion that the testimony introduced by the appellee is not. so positive, direct and unequivocal that when viewed in a light most favorable to appellant, it would authorize the trial, judge in directing a verdict in appellee’s favor upon the account or in withdrawing, the cause from the jury and rendering judgment thereon. Schucht v. Stidham, 37 S.W.2d 214, (Tex.Civ.App.).

The judgment is reversed and cause remanded.


author: WALTER, Justice.

text:
    Abelino ALVIAR, Individually and as Next Friend of Linda Alviar, Appellants, v. Raymond Remigio GARZA et al., Appellees.
    No. 3923.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 29, 1965.
    Rehearing Denied March 12, 1965.

      Perkins, Floyd, Davis & Oden, Alice, for appellants.
    Keys, Russell, Keys & Watson, Corpus Christi, Lloyd, Lloyd & Dean, Alice, for appellees.
   WALTER, Justice.

Abelino Alviar individually and as next friend for his daughter Linda Alviar, filed suit against Raymond Remigio Garza, a minor, and his father Remigio M. Garza to recover damages for personal injuries sustained by the minor plaintiff. Linda, a girl eleven years of age was crossing Almond Street in Alice, Texas, and was struck by an automobile driven by the defendant Raymond Remigio Garza. Based on the verdict, judgment was rendered that plaintiffs take nothing. The plaintiffs have appealed.

Raymond Remigio Garza was called as an adverse witness and testified substantially as follows: On April 17, 1962, when I was involved in an accident on Almond Street here in Alice, Texas, I was 17 years old. After attending a meeting at the Catholic school, I started to the Williams Drive-Inn to get a Coke. I was operating my father’s 1957 Chevrolet. I had some friends with me at the time. When I came to the intersection of Dewey and Almond Street, I turned and proceeded north on Almond. The first street I crossed was Cactus which runs east and west. As I entered this intersection I saw a sign “Do not enter, one-way”. After I passed Cactus Street going north on Almond, I met a truck which was proceeding south. I was traveling about twenty-five miles per hour. The truck was going with the one way signs on Almond and I was going in the opposite direction. I first saw Linda when she was in the middle of Almond Street. This was at a point approximately 19 or 20 feet south of the intersection of Almond and Hill Street which is an east and west street that intersects Almond. She was running from the west to the east side when I first saw her. She was angling across the street. When I saw her I immediately applied my brakes. I laid down about 18 feet of skid marks. Immediately before the collision Linda threw her arms up in front of her face and continued running. Her body came in contact with my automobile on the left front fender, about a foot back from the front of the car. No damage was done to my automobile and I didn’t find blood on the car. When I saw her in the middle of the street she was running out from behind the truck. I had noticed this truck as it left a little store on the comer at the intersection of Hill and Almond Street. This RC Cola truck was standing still when I first saw it. I didn’t see Linda or any other children around the truck in this area when I first saw the truck. The truck was parked parallel with Hill Street, facing east. The truck had completed its turn and headed south on Almond Street before Linda ran into the side of my station wagon. At the time I first saw Linda the front bumpers of the truck were about even with the front bumpers of my car. At this point there was about three feet between us. Linda was coming out from behind the truck at this point. At the time I first saw Linda she was looking in a northerly direction. She never did look toward my car until just before she ran into the side of it. I could not tell how far Linda was back from the rear end of the truck when I first saw her but I would estimate she was a foot and a half or two feet. I parked my car and came back to see about Linda. Her body was lying in the intersection of Hill and Almond about 23 feet from the spot where her body came in contact with my car. An ambulance was called and Linda was taken to the hospital. My father and I went to the hospital.

Linda was called as a witness but she remembered nothing about the accident.

Sam Herrera testified substantially as follows : On April 17, 1962, I was a witness to an accident near the intersection of Hill and Almond Street here in Alice. I was parked in front of my father’s house at the time. The first thing I saw was two children running right behind a truck. As well as I can remember the two children were real close together and they were pretty well keeping up with the truck which was proceeding south. I also saw a car approaching from the opposite direction. Just before the accident occurred I saw the children as they started to cross the street. They started to go across Almond Street in an easterly direction. At this point I would say the truck and the car were approximately parallel. I saw the children running behind the truck while it was in the turn here until they continued to run into the path of the car coming toward it. I would say the truck was traveling about five miles per hour.

The court defined negligence as the failure to use “ordinary care”, and “ordinary care” as applied to the minor, Linda, as such “care as an ordinarily prudent child of her age, intelligence, experience and capacity would have exercised under the same or similar circumstances.”

The jury answered that Linda kept a proper lookout for her own safety; that Almond Street had been designated as a one-way street for southbound traffic only; that Raymond Garza was negligent in proceeding north on Almond Street and such negligence was a proximate cause of Linda’s injuries. Issues 14, IS and 16 and the jury’s answers are as follows:

“SPECIAL ISSUE NO. 14
“Do you find from a preponderance of the evidence that just before the accident Linda Alviar ran from immediately behind the soda-water truck?
“Answer ‘Yes’ or ‘No’.
“We, the Jury, answer Yes
“If you have answered Special Issue No. 14, ‘Yes’, then answer Special Issue No. 15; otherwise do not answer same.
“SPECIAL ISSUE NO. IS
“Do you find from a preponderance of the evidence that such action on her part, if you have so found, was negligence ?
“Answer ‘Yes’ or ‘No’.
“We, the Jury, answer Yes
“If you have answered Special Issue No. 15, ‘Yes’, then answer special issue No. 16;. otherwise do not answer same.
“SPECIAL ISSUE NO. 16
“Do you find from a preponderance of the evidence that such negligence, if you have so found, was a proximate cause of the accident?
“Answer ‘Yes’ or ‘No’.
“We, the Jury, answer ‘Yes’.”

We granted appellants’ motion for permission to re-brief their points. However, no amended briefs have been filed. We have reconsidered point number 4 and believe that when it is considered in the light of the statement and argument it presents a point on the insufficiency of the evidence to support the jury’s answer that Linda was. negligent Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. Our order granting appellees’ motion to strike points 1, 2, 3, 4 and 6 is set aside insofar as point number 4 is concerned.

In appellants’ motion to disregard certain findings of the jury, which was attached to and made a part of their amended motion for a new trial, they asserted that the answer to special issue number 15 should be disregarded by the court because there was insufficient evidence to support such finding.

We have considered all of the evidence, some of which is set out above, in the light of the court’s definition of ordinary care as applied to a child of Linda’s age and find that the evidence is insufficient to support the jury’s answer to. issue number 15.

The jury found that Linda was negligent in not crossing the street at the regular crosswalk but that such negligence was not a proximate cause. Appellees contend in one of their crosspoints that the jury’s negative finding on proximate cause should be disregarded because such negligence was a proximate cause as a matter of law. We find no merit in this contention. The evidence does not conclusively show that the proximate cause issue should have been answered in the affirmative. It was therefore the duty of the court to submit the issue to the jury.

Appellees also contend that the “one-way” signs on Almond Street were not placed there by proper authority. Article 6701d-3 of Vernon’s Annotated Civil Statutes provides that proof by either party of the existence of one-way street signs shall constitute prima facie proof of all facts necessary to prove the proper lawful installation of such signs at such place. It was conclusively established that the one-way signs for southbound traffic on Almond Street had been installed at the time of this unfortunate occurrence. Raymond Garza testified that he saw the signs. Our Supreme Court in Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, at page 417, said:

“As a general rule, criminal statutes do not create civil liability, and since this Court has held that although a penal statute may be held void for lack of certainty, yet it has been held that it may constitute a rule of civil conduct.”

We hold that the city ordinance or resolution created a rule of civil conduct regardless of, whether it was passed in strict compliance with the city charter. The appel-lees’ crosspoints have been considered and are overruled.

The judgment is reversed and the cause is remanded.


author: PARKER, Justice.

text:
    Mildred Brooks MOLLEY et vir, Appellants, v. C. E. JAMES et al., Appellees.
    No. 6757.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 18, 1965.
    Rehearing Denied March 17, 1965.

      John H. Benckenstein, Beaumont, for ap-pellants.
    Hustmyre, Harris & Dorman, Orange, ■for appellees.
   PARKER, Justice.

This suit was brought by C. E. James, father of George Edward James, a minor, .and Vertís Wagner, guardian ad litem of said minor, against Mildred Brooks Molley .and husband, Joe Molley, Jr., for injuries received by said minor and damages to the father as a result of a collision between a motorcycle driven by the minor and an Oldsmobile station wagon driven by Mil- ■ dred Brooks Molley. The trial before a jury resulted in a judgment against Mildred Brooks Molley and her husband, Joe Mo-1- ' ley, Jr., for $7,500.00.

Mildred Brooks Molley and husband, Joe Molley, Jr., will be designated herein as appellants or by name. The plaintiffs below will be designated as appellees here or '.by name.

In response to special issues submitted to the jury, it found:

(a) That Mrs. Molley failed to keep her car under proper control just prior to the collision which was negligence and a proximate cause of the collision.
(b) That Mrs. Molley failed to give appropriate warning that she was going to stop her vehicle which was negligence and a proximate cause of the collision.
(c) That Mrs. Molley failed to keep a proper lookout which was a proximate cause of the collision.
(d) That Mrs. Molley stopped her automobile at a place other than an intersection which was negligence and a proximate cause of the collision.
(e) That George James suffered damages of $7,500.00 as a result of injuries caused by negligence of Mrs. Molley.
(f) That George James was not following Mrs. Molley’s automobile more closely than was reasonable and prudent.
(g) That George James did not fail to keep a proper lookout
(h) That George James did not fail to have his motorcycle under proper control.
(i) That it was not an unavoidable accident.
(j) That George James’ father, C. EL James, knew his said minor son did not have a license to drive the motorcycle; C. E. James was negligent in entrusting the motorcycle to his son knowing his son did not have a license to drive it.

Appellants’ first 41 of their 43 points of error urge there is no evidence, insufficient evidence or that the evidence is so contrary to the great weight and preponderance of the evidence as to be clearly wrong to support the jury’s findings set forth in (a), (b), (c), (d), (e), (f), (g), (h) hereinabove. There were only two witnesses to this collision — Mrs. Molley and the minor, George James. The jury believed George. There was a third witness, Mrs. Marie Broussard, but she did not see the accident and her testimony was limited to what she saw after the accident. We shall first consider the evidence bearing'upon the “no evidence” points of error urged by appellants — that is to say, the evidence favorable to appel-lees-: George James, 15 years old at the time of the collision, was driving a motorcycle, On August 17, 1962, George on his motorcycle followed his father, who was driving a Ford truck eastward on MacArthur Drive, which is a four-lane street in Orange, Texas, running east and west with an esplanade in the middle of the four lanes. George was two or three car lengths behind his father, both traveling east about 40 miles per hour in the inner or north lane. Mrs. Molley was driving a station wagon on MacArthur Drive in an easterly direction in the outer or south lane. As George followed his father down MacArthur Drive, George’s father suddenly turned into the right hand lane. After George’s father had completed turning into the outside lane, George could see down the inner lane of MacArthur Drive to the Bayou Bridge which was several hundred feet past the place of collision. There was no obstruction to hinder his visibility down the inner lane of MacArthur Drive. He was looking down the clear lane in front of him when Mrs. Molley’s car suddenly appeared in his traffic lane, immediately stopping at a place other than an intersection. (It .is undisputed that the appellant, Mrs. Molley, stopped at a place other than an intersection.) Mrs. Molley failed to give any warning of her intention to stop in front of George on a busy thoroughfare at a place other than an intersection. There was no avenue of escape for George. The esplanade was to his left and there was a car traveling to his right in the outer lane. George applied his brakes as soon as Mrs. Molley stopped in front of him but was unable to stop before hitting the rear end of her' station wagon. Mrs. Molley admitted that she observed George in her rear view mirror and that he was not doing anything dangerous; that he was not violating any law. . She stated that she “just felt like getting in the left hand lane”, and further stated, “I just drive where I feel like driving when I go down the road.” This is not a case of George’s following Mrs. Molley “too closely”. George was following his father up until the time his father suddenly turned into the right hand lane. Immediately after this happened, Mrs. Molley suddenly appeared in the lane in which George was traveling.

George was injured in the collision and hospitalized. One of his legs was broken in four places. His left thumb was nearly torn from his hand. He was kept under sedation some three weeks while he was in the hospital, which could only mean that he was suffering pain. In the back of his leg the bone was pushed in such a manner that he is unable to squat down without suffering pain. Because of such pain he could not work in that position at the time of trial, some two years after the accident.

All of appellants’ “no evidence” points of error are overruled. Considering the entire record, and not just the evidence in favor of appellees, each and all of appellants’ points of error to the effect that the evidence is insufficient to support the jury’s findings above detailed are overruled. Further, appellants’ points of error urging that such findings of the jury in answer to such special issues are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong are overruled.

Appellants’ points of error contending that the jury’s finding of damages in the sum of $7,500.00 is so excessive as to indicate that the jury was influenced by passion, prejudice or other improper motive is baseless and, accordingly, overruled. Likewise, appellants’ point of error contending such finding of $7,500.00 damages is excessive is overruled.

Judgment of the trial court affirmed.


author: STEPHENSON, Justice.

text:
    Joe SOLOMON et al., Appellants, v. Patricia BECK et al., Appellees.
    No. 6749.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 18, 1965.
    Zbranek & Friend, Liberty, for appellants.
    Baker, Botts, Shepherd & Coates, Houston, Bradford Pickett, Liberty, for appel-lees.
   STEPHENSON, Justice.

This is an action brought in Liberty County to remove a cloud upon the title to land situated in Liberty County. Defendant filed a cross action in trespass to try title. At the close of all of the evidence the jury was discharged and the court granted plaintiffs’ motion for directed verdict. The parties will be referred to here as they were in the trial court.

Plaintiffs introduced evidence showing record title. Defendant offered an instrument in evidence which was excluded by the court. The sole question in this case is the admissibility of this excluded instrument. This instrument purported to be an examined copy of a deed dated January 16, 1837, and recorded June 26, 1876, in Liberty County. Without this deed defendant had no record title, and plaintiffs' were entitled to judgment.

Plaintiffs filed an affidavit of forgery as to the excluded instrument. Defendant contends the instrument was admissible as an “ancient instrument” without proof of execution.

The instrument excluded was not the original deed nor was it a copy certified by the custodian of the recorded original deed. It shows on its face that it purports to be nothing more than an examined copy of an original. The following certificate is attached to the instrument:

“STATE OF NEW YORK ..CITY OF NEW YORK
“I, George C. Gibbs Commissioner in said State, appointed by the Governor of the State of Texas, to administer oaths &. affirmative and to take depositive affidavits and the acknowl-edgements and proofs of Deeds to be "iised or recorded in the said State of "Texas‘duly commissioned and sworn and dwelling in the City of New York State of New York, as hereby certify that this and the foregoing Deed and writing is a true copy of the original ■ Deed dated the 16th day of January, ■ 1837, as presented - and compared by . me.
• “In witness whereof I have hereunto set my hand and affixed my official seal this the fourth day of October, 1860.
George Gibbs, commissioner for Texas in New York.”
(Seal)

An examined copy of an instrument cannot be admitted without proof of execution, however old it may purport to be. Schunior v. Russell (1892), 83 Tex. 83, 18 S.W. 484. Further,.under the laws of this state there is no- provision for the recordation of an “examined copy”.

In order to qualify as an ancient instrument, the original deed would be admissible as an “ancient instrument” when it comes from the proper custody, when it is free from suspicion and when it has been in existence more than 30 years. If the original instrument had been promptly recorded, a certified copy could be offered as an “ancient instrument”, upon a showing that the original deed was lost. Emory v. Bailey, 111 Tex. 337, 234 S.W. 660, 18 A.L.R. 901. The original deed was not accounted for in the present case, even had the instrument being offered been a certified copy of a recorded deed.

Plaintiff offered in evidence a certificate executed by James M. Day, Director of the State Archives of the Texas State Library that George C. Gibbs was commissioned October 9, 1860, which was five days after the excluded instrument showed the original deed was presented to him and examined by him. This certificate by James M. Day also shows that George G. Gibbs did not qualify until October 20, 1860. This record shows affirmatively that George C. Gibbs was not qualified as a Commissioner for the State of Texas on the date he certified to the excluded instrument. A copy of the law of the State of Texas in effect at the time George C. Gibbs made such certificate does not show that Gibbs was authorized to make a certificate of certified copies.

Further, at the time the deed defendant relies upon was executed (1837), the burden was upon the holder of the first deed, which was unrecorded, to prove that the grantee under the second deed, which was recorded, had notice of the first unrecorded deed, or that such grantee in the second recorded deed did not pay a valuable consideration. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533. There is no such proof in this case. For all of these reasons, the defendant’s points are overruled.

Affirmed.