text:
    Evelyn RAYMOND, etc., et al., Appellants, v. Edward H. SCHLOEMER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Rehearing Denied Jan. 20, 1967.
    Kenneth L. Anderson, Robert P. Hob-son, Woodward, Hobson & Fulton, William M. Harvin, D. H. Robinson, Harvin & Robinson, Louisville, for appellants.
    John T. Fowler, Frank E. Haddad, Jr., Louisville, for appellees.
   MONTGOMERY, Judge.

This is an appeal from a judgment holding that an instrument dated April 19, 1962, and executed by Albert J. Schloemer, now deceased, is not his will. The appellants are: Evelyn Raymond, individually and in her capacity as the executrix of the will, Joyce McLennan, Garrett Hampton, and William M. Harvin, beneficiaries. The appellees are a brother and child of a deceased brother of the testator. Appellants urge that the trial court erred in overruling appellants’ motions for a directed verdict and for a judgment notwithstanding the verdict and that the court erred in the instructions given.

The first ground of claimed error is that the evidence is not sufficient to sustain the verdict. The will was attacked on the grounds of lack of capacity and undue influence. In reviewing the evidence to determine its sufficiency to sustain the verdict in favor of the contestants, the testimony favorable to them is examined. The trial consumed five days and the evidence is voluminous.

Albert Joseph Schloemer died June 16, 1962. Prior to October 1954, Albert and his brother Louis, neither of whom ever married, had been engaged together in the meat business in Louisville. In October 1954, they went to live with Evelyn Raymond, a second cousin. Both were elderly men at that time. Louis was hospitalized and died shortly thereafter, leaving a considerable estate, the bulk of which was left to Albert, who continued to live with Evelyn until his death.

The remaining near relatives of Albert’s were a brother, Edward H. Schloemer; Edward’s daughter, Edna Mae Schloemer; and a nephew, Arthur Joseph Schloemer, the only son and child of a deceased brother, Arthur. Each is a nonresident of Kentucky. Edward and Arthur Joseph were contestants and are appellees.

The purported will was executed on April 19, 1962. The estate consisted principally of 2800’ shares of Allegheny Power System stock valued at the date of his death at $118,300. The named beneficiaries were: Garrett Hampton, William M. Har-vin, and Wanda Cox Bailey, 100 shares each; Arthur Joseph Schloemer and Edna Mae Schloemer, 200 shares each; Joyce R. McLennan, 1000 shares; and the residue, including 1100 shares, was left to Evelyn, the mother of Joyce. Evelyn was named executrix, with her husband, William, as alternate personal representative. Edward did not receive anything.

Hampton was a stockbroker who had handled Louis’ account and also an account for Evelyn. Albert’s transactions were limited mostly to transfers of stock to Evelyn. Harvin was an attorney at law and had known Evelyn since 1943. He first represented her in 1953. He advised Albert in 1961 concerning taxes on a gift to Evelyn, and in 1962, in a dispute with one Meisel. Evelyn took Albert to Harvin for counsel. Harvin was also employed concerning the rezoning of some real estate to which Evelyn had title.

Shortly after Albert and Louis came to live with Evelyn in October 1954, and after Louis’ death, Albert made gifts to Evelyn valued at the date of transfer as follows: May 17, 1955, real estate, $5,000; October 10, 1955, stock, $103,000; October 27, 1955, stock, $54,500; totaling $162,500. These gifts are shown on the inheritance tax return of Albert’s estate prepared by Harvin for Evelyn as executrix. In 1955 or 1956, an air-conditioned room was added to Evelyn’s home for Albert.

There was evidence to show that in two wills executed by Albert in January and May 1957, respectively, he had left the bulk of his estate to Edward and Arthur Joseph, with Wanda Cox Bailey, a close personal friend, as executrix; that the relationship existing between Albert and his near relatives, Edward, Arthur Joseph, and Edna Mae, worsened during the time that he lived in Evelyn’s home; that Evelyn sought to isolate Albert from them and to prevent communication between them; that on February 21, 1962, Evelyn obtained from Albert stock valued at $113,850, which she claimed as a gift; and that Albert thought he was transferring the stock to her in order to permit her to secure the debit balance of $57,716.58, which she owed Hampton’s brokerage firm. The balance was paid immediately after the transfer.

Further, it is shown that in November and December 1961, Albert’s health began to fail, he then being 75 years of age, and he sought medical care until his death; that he suffered from a severe heart condition and arteriosclerosis in an advanced stage; and that he suffered a stroke on May 4, 1962, was hospitalized on May 6, 1962, and died on June 16, 1962. He was completely incapacitated during this period. Albert received medical treatment from Dr. Norman Glazer on March 20, April 4, April 13, and April 19, 1962. Each time he was accompanied by Evelyn. On the April 13 visit, Dr. Glazer made the following notation in his record:

“Patient is of sound mind at this time. I signed note to this effect presented by Mrs. William Raymond.”

On that same day, April 13, 1962, Albert executed the first of a series of five documents culminating in the execution of the will on April 19, 1962. The April 13, 1962 document was a power of attorney in favor of Evelyn and William Raymond, containing a certification of Dr. Glazer as to Albert’s mental soundness and capacity. Two days later, Albert executed a trust agreement in favor of Evelyn as trustee, by which he transferred all of his estate, including 2900 shares of stock. Evelyn settled the Meisel claim by transferring 100 shares of stock to him, leaving the 2800 shares which constituted the bulk of his estate.

On the April 19 visit, Albert executed the purported will, with Dr. Glazer and his two nurses as witnesses. Each of them sighed a prepared certificate of the execution to the will which contained in part the following:

“ * * * the said Testator was of sound and disposing mind, to the best of our knowledge, information and belief.”

There was evidence to show that Evelyn, acting on the advice of Harvin, had previously asked Dr. Glazer if he would sign such certification. Appellees had medical testimony that Albert lacked the capacity to make a will.

The April 17, 1962 trust agreement contains a statement that Albert was “feeling that he is not able to manage said estate and save it from loss.” A signature card was executed on April 17 by Evelyn, as trustee, and by Albert, giving her access to his bank account of $3,171.39. On April 18 he signed a written authorization for Evelyn to have access to his safety vault box at his bank. The bank record shows that Evelyn entered the box on April 20. The box was found to be empty after Albert’s death.

Harvin prepared the power of attorney, trust agreement, and will. On June 12, 1962, he was paid $1,000 by Evelyn, as trustee, for his services in preparing the first two instruments and in the rezoning matter. The bequests in the will were set forth in accord with a piece of paper listing the names and amounts, but he could not say whether the list had come from Evelyn or Albert. He had not kept the paper. In addition to the bequest in his favor, Harvin testified, he expected to receive a fee of $18,000 for his services as an attorney for the estate. It is noted that the estate, excluding the gifts and transfers valued at $97,175, was valued at $122,457.71.

In reviewing the sufficiency of the evidence to sustain a verdict for the ap-pellees, the evidence will be considered in the light most favorable to the appellees. The search is for substantive probative evidence from which the jury may draw legitimate inferences upon which to base a verdict. From such review the jury was justified in concluding that at the time the will was executed Albert was an infirm old man who lacked the requisite mental capacity to make a will. The jury had abundant evidence from which to conclude that Albert was unduly influenced by Evelyn, assisted and counseled by Harvin. Each had benefited from the relationship with Albert and might well have had great expectations of further benefit. Evelyn had received gifts totaling $276,350 before the will. Her distributive share under the will, according to the inheritance tax computation, was valued at $83,996.94. Further, her daughter, a third cousin of the testator’s, received the next largest bequest. The jury might well have concluded that there was no legitimate justification for a bequest to Garrett Hampton, the stockbroker who, undoubtedly, had already received the usual compensation for his services. It could have concluded that this was one of the many steps in a meticulously planned preparation to draw an “unbreakable” will. Considering that Evelyn received $162,500 in gifts within approximately twelve months after Albert came to live with her, the jury would have been justified in believing that she intended from the very first “to take him to the cleaners,” to use the vernacular. Under the proof in this case there is no difficulty in deciding the question of the sufficiency of the evidence to support a verdict in favor of appellees.

The contention concerning the instructions is more worthy. The court gave the usual instructions on mental capacity and undue influence appropriately defined, which were justified under the testimony. No question is raised concerning the correctness of these instructions.

The objectionable instruction is Instruction IV, which is as follows:

“The evidence shows that the contestee, William M. Harvin, attorney, was the draftsman of the Will in question in this litigation, and that he was the confidential adviser and attorney for the deceased, Albert J. Schloemer, at the time of the preparation and execution of the Will, and that he was also a legatee receiving a benefit under the said Will, and because of these facts the jury might infer undue influence in the execution of the Will.”

Appellants urge that the instruction is too broad, citing Woods’ Ex’r v. Devers, Ky., 19 S.W. 1, and Hanna v. Eiche, 258 Ky. 282, 79 S.W.2d 950, dealing with undue influence as it affects a part of the will instead of the whole will. They urge that Instruction IV should have been limited to an invalidation of the Harvin bequest only instead of the whole will. Cf. Bohannon v. Tracy, 295 Ky. 456, 174 S.W.2d 722, involving spoliation of part of a will.

Appellants apparently concede that some paragraphs of the purported will may have been obtained as the result of undue influence. A supplementary instruction embodying this principle and purporting to be based on the Hanna case was tendered by them. It was rejected by the court.

Appellees cite, in answer, Wood v. Rigg, 152 Ky. 242, 153 S.W. 214, which by dictum states the converse of the situation here, and Rounds v. Rounds, 214 Ky. 294, 283 S.W. 77, in which it was held that undue influence which invalidates the entire will may be that of any one or more of the beneficiaries or of a third person. Appellees point out that the Rounds case dealt with lack of capacity and undue influence while the Hanna case dealt only with undue influence. Instruction IV should have been limited to the bequest in favor of Harvin under the Woods and Hanna cases unless the undue influence exercised by Harvin extended to the whole will, in which event it is bad because of undue prominence it gives to the relationship of Harvin. Stanley’s Instructions to Juries, Volume 1, Section 28, page 54; Cincinnati, N. O. & T. P. Ry. Co. v. Commonwealth, Ky., 376 S.W.2d 307. Under the circumstances here it is hard to confine any undue influence exercised by Harvin to the bequest in his favor, especially considering his relationship with Evelyn. Any undue influence exerted by him would have affected the entire document. Accordingly, the giving of Instruction IV was error. In the event of another trial, should the evidence be substantially the same as on the first trial, the instructions given on lack of capacity and on undue influence should be sufficient to present the issues.

Judgment reversed.


source: Caselaw Access Project

author: CLAY, Commissioner. HILL, Judge

license: Public Domain

text:
    Samuel R. MOORE, Movant, v. Willis D. TILLER et al., Respondents.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Barkley Sturgill, Prestonsburg, for appellant.
    Eugene C. Rice, Paintsville, for appellee.
   CLAY, Commissioner.

This cause has come before us on a motion for a temporary injunction under CR 65.07. An order granting such relief was entered on November 4, 1966, but due to the importance of the question involved, we set forth the reasons for our decision which effectively terminated the controversy.

This declaratory judgment suit sought the removal of respondent’s name from the ballot in a school board election held in Martin County on November 8, 1966. The principal ground of disqualification asserted was that respondent was not a legally qualified voter in the division of the district he sought to represent on the county school board.

KRS 160.180 provides that no person shall be eligible for membership on a board of education unless he is a “voter of the district from which he is elected”. KRS 160.210 provides that in a county school district, which is involved here, members shall be elected from “divisions” of the district.

Clearly the “voter” referred to in KRS 160.180(1) (b) means a legally qualified voter. As observed in Hall v. Reid, Ky., 305 S.W.2d 923, 924, the meaning of such a term depends upon the connection in which it is used. While for interpretative purposes in Chapter 117 of the Kentucky Revised Statutes, KRS 117.600(1) defines a “voter” as any name contained in any registration list, whether the voter is an illegal or legal one, it certainly cannot be that the term “voter” in KRS 160.180 has such a technical connotation. This is made clear by KRS 160.180(2) which provides for an automatic vacation of the office if the board member “moves his residence” from the district for which he was chosen, thereby recognizing the residential, as opposed to the registration, requirement. We are convinced the statute required a candidate to be a fully qualified legal voter, and to determine his status as such, we must resort to section 145 of the Kentucky Constitution.

That section provides that one of the qualifications of a “voter” is that he shall have “resided in * * * the precinct in which he offers to vote sixty days next preceding the election”. (Emphasis added.) Our question is whether respondent, though absent therefrom, maintained his residence in the Black Log Precinct so as to be a legal voter therein, and entitled to represent the division in which this precinct lies as a member of the Martin County Board of Education.

The residential requirements of the Constitution or a statute must have some reasonably determinable aspect and the objective of such a requirement deserves consideration. We construe it to be that a voter should exercise this privilege in an area where he is most likely to be cognizant of local issues and candidates. By the same token, a person running for office from a particular area should be so closely associated with the problems of that area that he can effectively represent the inhabitants thereof. Living there assures the accomplishment of these objectives. The question is not where a person has a sentimental desire to vote, or what group of people he wishes to represent, but where the law considers him best qualified to exercise his political rights and privileges.

The circuit court made the following pertinent findings: (1) Respondent had lived outside the division involved for the last three years; (2) he was a registered voter in the Black Log Precinct; and (3) he maintained his legal residence there.

The facts show that respondent grew up in Division 2 and had always voted there (although he had been temporarily absent from the precinct on several occasions). Approximately three years ago he and his wife moved into an apartment in Inez, which is outside the division and precinct. He testified he did not intend to permanently change his residence and, as a matter of fact, since the filing of his nominating petition, he has moved back into the precinct and established a home there. However, the crucial issue is whether respondent retained his legal voting residence in the division precinct up to the termination of his three-year absence.

KRS 117.610 provides in part:

“The following rules, so far as applicable, shall be observed in determining the residence of a person offering to vote:
“(1) A voter’s residence shall be deemed to be at the place where his habitation is, and to which, when absent, he has the intention of returning;
“(2) A voter shall not lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his home.”

As set forth in the statute just quoted, the basic consideration with respect to a voter’s residence is the place where his habitation is. As defined in Webster’s New International Dictionary, Second Edition, a habitation is: “Place of abode; settled dwelling; residence; house.” When respondent departed from the Black Log Precinct he actually abandoned his “habitation” there. However, for certain purposes the law recognizes that a person may still retain his voting residence in what was his former habitation area even though absent therefrom. Thus, as the statute provides, a voter does not lose his residence by being absent therefrom for temporary purposes. For that reason the purpose, nature and extent of the absence must be examined.

The intention of a person who bodily moves to another dwelling place may often be of controlling importance. For example, as recognized by KRS 117.610(2), if the voter moves to another place with the intention to establish a new home there on something other than a temporary basis, he loses his former residential status forthwith. See Nelson v. Gass, 27 N.D. 357, 146 N.W. 537. The same is true if the voter intends to establish a permanent residence elsewhere, which respondent in this case said he did not intend. On the other hand, an intention to return to the precinct from which the voter has departed may or may not be determinative.

When a person retains a habitation or dwelling, intention to return to it is a most important consideration and may oft-times be controlling. On the other hand, when a person no longer has a physical place of abode in a particular area, his intention to return to the area is of lesser significance. Otherwise, any citizen of Kentucky could retain his original voting precinct in perpetuity by simply intending to take up residence somewhere therein at some future date. Clearly the determination of residence, where no place of habitation exists in the departed precinct, must rest upon more concrete considerations than a general prevailing intention.

As stated in 25 Am.Jur.2d, Elections, section 67 (page 760):

“The intention to be considered is that which is manifested by the voter’s acts. If there exists a discrepancy between declarations of intention and acts, the declarations yield to the conclusion to be drawn from the acts. If the intention and acts of a party are in accord with the fact of residence in a particular place, there can be no doubt of the fact that the party is a resident of such place.
“The word ‘intention’ as used in a statute fixing qualifications of voters in respect of residence does not mean an undefined or undefinable purpose on the part of the voter to return to his former residence at some unknown time during the course of his life. To entertain a doubtful, vague, or unequivocal purpose to return does not prove ‘intention’ as used in the statute.”

Similar language was used in Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58.

A case directly in point is Matney v. Elswick, 242 Ky. 183, 45 S.W.2d 1046. In that case it appeared that the voters whose qualifications were questioned had, as in the case before us, been absent from their home district for three years. They had moved fifteen miles away and rented a dwelling. They testified they had moved for a temporary purpose, but we held that as they had maintained a home elsewhere for this long a period, the mere possibility of their return to the original voting place at some indefinite time in the future was not sufficient to retain their former voting residence. This was so even though they had left household goods at their original place of residence. The opinion makes the following observations (page 1047):

“Under these rules, a citizen cannot select for himself a voting place other than the place the law constitutes his legal home and habitation. Penny v. McRoberts, 163 Ky. 313, 173 S.W. 786. If he actually lives in one district, he cannot vote in another, unless he resides in the former merely for a temporary purpose. Though he may have a home, or own property in the district, yet, if he leaves there, and takes up an actual residence elsewhere with the intention of remaining there indefinitely, he becomes a legal voter at the place where he lives, and cannot vote at his former home. In each case the facts must control, and not what the voter ■ says about being absent for a temporary purpose. Thus one who leaves his home and establishes a home elsewhere, not for the purpose of performing a particular service, or of doing a particular job for another, or engaging in business for a limited time, but with the purpose of engaging in business or obtaining employment for an indefinite period, and remains away for two or three years, and does not return except for the purpose of voting, it cannot be said that he was absent for a temporary purpose.”

In the present case, while it is apparent respondent may have intended to retain ties with his former area of residence and expected someday to return there, the fact is that he had for quite a substantial length of time maintained a habitation in another place. He did not even testify that living in Inez was for a temporary purpose. The record does not show that his residing there was in any sense involuntary or necessitated by a limited expediency.

It has been said that to reside means to “[l]ive, dwell, abide, sojourn, stay, remain, lodge.” Western-Knapp Engineering Co. v. Gilbank, CCA Cal., 129 F.2d 135, 136. Respondent had physically resided in Inez for three years, and without any significant factors being shown, other than a “floating” intention to return to his former residential area, it is clear to us that living in another place for so long a period cannot be held a “temporary” absence from his former habitation. Certainly respondent was qualified to register and vote in Inez.

Since respondent had lost his legal voter status in Division 2, he was not qualified to serve the district he sought to represent as a member of the Martin County School Board, and for this reason we directed that his name be removed from the ballot.

HILL and STEWART, JJ., dissenting.

HILL, Judge

(dissenting).

Although Section 145 of the Constitution defines a qualified voter as one who “resides” in the territory in which he undertakes to vote, our case law, as well as KRS 117.610 holds that a resident who is temporarily absent therefrom with the intent to return does not lose his residence so as to operate as a disfranchisement.

The Legislature of this Commonwealth, with forethought and wisdom, provided in Chapter 117 (Qualification, Registration and Purgation of Voters) that:

“The following rules, so far as applicable, shall be observed in determining the residence of a person offering to vote: * ⅜ * (2) A voter shall not lose his residence by absence for a temporary purpose merely; * * * ”

In 98 A.L.R.2d, Voting Residence, p. 489, it is written:

“The universal rule on acquiring a new domicil of one’s own choice has the essential elements of (1) physical and bodily presence in the new locality; (2) an intent to abandon the old domicil; and (3) a concurrent intent to adopt another domicil in the new location.”

The following is quoted from Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58, 63, which is cited in the majority opinion:

“In case of doubt as to the voter’s residence, it is resolved in favor of the permanency of residence in the precinct where he votes.”

Before looking at the facts in the present case, I copy the first sentence of a quotation in the majority opinion taken from 25 Am.Jur.2d, Elections, Section 67, p. 760, which reads as follows: “The intention to be considered is that which is manifested by the voter’s act.”

Now, to the record in the present case in an effort to ascertain Tiller’s “intention” with respect to whether his absence from the precinct in which he was registered was temporary or permanent.

Tiller testified he was registered in Black-log precinct, which is in Educational Division 2; that he “never voted anywhere else except when” he was “going to school at Morehead,” and he voted then by absentee ballot. He said he had “always been back there (Blacklog) on election day”; that he was temporarily away from Division 2 only to attend Morehead State College for one year, to work on construction at Morehead, for “two or three weeks” while in Columbus, and one summer when in Michigan; that he moved into an apartment at Inez and resided there for three years, which period ended the Sunday before he testified; that he didn’t regard his living in the apartment as a permanent residence; that he started constructing his home in April 1966, completed it, and moved into it just prior to giving his testimony. He stated he had never had the intention to permanently change his residence or place of registration to any place other than Division 2.

The able and impartial trial judge, free from the influence of school politics, found as a matter of fact that Tiller at all times nourished the intention of residing in Division 2 and that his journeys away therefrom were temporary in nature, and, in effect, as described by Judge Willis in Thompson v. Emmert, 242 Ky. 415, 46 S.W.2d 502, his “absence depends upon the completion of some temporary task, or upon the discharge of some duty of a temporary nature.” I do not consider the findings of the trial judge clearly or at all erroneous. CR 52.01. The majority opinion hurtles this code provision without so much as a murmur.

I can find no authority in Matney v. Elswick, 242 Ky. 183, 45 S.W.2d 1046, to support the majority opinion. The facts are entirely different. It is sufficient to quote the following from Matney:

“It is not even claimed that R. T. Elswick and his daughter were in Elkhorn City, which is some distance from subdistrict No. 41, for a temporary purpose with the intention of returning to their home in the latter district.”

Aside from the fact that the result of the majority opinion has disfranchised one-fifth of the voters of Martin County on a doubtful hypothesis, it has more far reaching consequences. There are thousands and thousands of Kentuckians “temporarily” away from their claimed places of residence where they are registered to vote under our law. They cherish the privilege of returning to their “claimed” voting places and will travel great distances to exercise the right of suffrage. In the event the purgation boards enforce .the law as announced in the majority opinion, a great number of persons temporarily away from their voting places will be disfranchised. The modern trend in this Nation of nomads is to allow man the right of suffrage wherever he may be found on election day.

I would affirm the judgment of the trial court.

STEWART, J., joins in this dissent.

      . Some question may be raised concerning the extent to which the legislature may bind the judiciary in the interpretation of constitutional phraseology, but these statutory provisions appear reasonable and substantially conform to our judicial guidelines in determining what constitutes a residence for voting purposes.


author: CLAY, Commissioner.

text:
    Wayne HATTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Rehearing Denied Jan. 20, 1967.

      James F. Thomas, New Castle, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was convicted of storehouse breaking and his punishment fixed at two years in the penitentiary. The sole ground for reversal here presented is that the Commonwealth’s proof was insufficient to warrant submission of the case to the jury.

Appellant did not move for a directed verdict or a peremptory instruction, nor did he move for a new trial. Since he failed to raise the question of the sufficiency of the evidence in the trial court, this claim of error is not properly before us on appeal. Hart v. Commonwealth, Ky., 296 S.W.2d 212.

In civil cases, a party waives the insufficiency of the evidence if he does not move for a directed verdict or a peremptory instruction during the course of the trial. Claspell v. Brown, Ky., 332 S.W.2d 851; Walker v. Bencini, Ky., 374 S.W.2d 368. In Claspell we held that the matter involved the propriety of instructions and applied CR 51, which requires an objection before the court instructs the jury.

In criminal cases, under RCr 9.54, objections to instructions are not necessary to preserve error. However, the policy of RCr 9.22 is to require a defendant in a criminal case, like a party in a civil case, to present to the trial court those questions of law which may become issues on appeal. The appellate court reviews for errors, and a nonruling cannot be erroneous when the issue has not been presented to the trial court for decision. See Clay, Kentucky Practice, Vol. 7, CR 51, Comment 5. For this reason we have held that though a defendant in a criminal case need not object to instructions at the time they are given, any claimed errors therein must be called to the attention of the trial court at some time, and no later than the motion for a new trial. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861.

Whether or not we consider a motion for a directed verdict in the category of an instruction to the jury, a properly raised question of the sufficiency of evidence requires a ruling by the trial court, and the failure to present such issue at the trial level constitutes a waiver of that ground of appellate review. This is consistent with our long-established practice when the defendant fails to question the admission of incompetent evidence or other allegedly improper procedures during or pertaining to a criminal trial.

We have, however, examined the record and find the evidence sufficient. It shows that a local storehouse was broken into and several hams stolen. Shortly thereafter appellant sold a ham to one Wilson at about one-half the usual price. Wilson delivered the ham to a peace officer who testified that Wilson stated it was the ham purchased from appellant. It was identified as one of the stolen hams.

Some of the evidence was hearsay, but it was not objected to and had some probative value. Direct testimony of appellant’s conduct tended to implicate him in the unlawful possession of the ham sold to Wilson. Appellant did not testify.

The direct and circumstantial evidence was amply sufficient to support the finding by the jury that appellant committed the crime for which he was charged.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Myrna L. SATTERLY, Appellant, v. Pauline S. STILES and Martin Transfer and Warehouse Company, Inc., Appellees.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Rehearing denied Jan. 20, 1967.

      C. M. Leibson, Louisville, for appellant.
    Victor W. Ewen, John L. Bennett, Jr., Louisville, for appellees.
   DAVIS, Commissioner.

As she was walking across Hill Street in Louisville the appellant was struck and injured by an automobile operated by appellee Stiles. Appellant sued Mrs. Stiles for damages, and joined as a defendant the appel-lee Martin Transfer and Warehouse Company, Inc., (hereinafter Martin) asserting that one of Martin’s drivers negligently assured appellant that she could cross the street in safety. The trial court directed a verdict in favor of both defendants below at the conclusion of the plaintiff’s testimony. This appeal presents the question whether there was sufficient evidence to make a jury issue as to the liability of either or both of the defendants.

Although there are some discrepancies in the testimony presented for appellee, we must test the propriety of the directed verdict by indulging the inferences and constructions most favorable to the appellant fairly and reasonably ascribable to the evidence. Johnson v. Vaughn, Ky., 370 S.W.2d 591, 597. By that approach, the appellant’s evidence warrants the following statement of facts.

The accident occurred on a clear, dry afternoon in April. Appellant was attempting to walk from the south side to the north side of Hill Street when she was struck by the car. Hill Street is a two-way, four-lane thoroughfare, running in an east-west direction. Admittedly, appellant was not in a crosswalk, but was walking across Hill Street at a point five or six car lengths east of the intersection of Hill and 12th Streets.

At the time appellant started across the street the automatic traffic signal at 12th and Hill was “stop” for traffic along Hill Street — thus, there was no eastbound traffic in the two southernmost lanes of Hill Street between the 12th Street intersection and the point where appellant started across the street. There were some cars in the southernmost or inside westbound traffic lane on Hill Street; these vehicles were stopped in obedience to the electric traffic light at 12th Street. One of those so stopped was a truck of appellee Martin. The driver of the Martin truck signalled to appellant that he would remain stopped in order to permit her to walk in front of his truck. Accordingly, appellant walked across the two eastbound lanes and across the southernmost westbound lane (in front of the Martin truck). Then she stopped, at which time the driver of Martin’s truck looked into his right rear-view mirror and indicated to her that the inside (norther-most) westbound traffic lane was clear. Thereupon appellant looked toward the east to determine whether any traffic was approaching in the inside or “curb” lane. She saw that no vehicle was in that lane and started to cross the lane; when she had taken “one or two” steps she was struck by the Stiles car which had “whipped out” of the line of traffic in which the Martin truck was stopped. At the time the Stiles car “whipped out” it was about 110 feet from appellant, and she thought it was travelling about 40 to 45 miles per hour. The Stiles car struck appellant, after laying down skid marks 15 to 20 feet in length before the impact. The skid marks of the Stiles car were noted for 40 to 45 feet after the impact; the car came to rest at a slight angle against the north curb of Hill Street; the rim of the right front wheel was bent. Appellant testified on direct examination in part:

“Q77. Now, would you tell us whether or not you formed an opinion as to how fast that car was going when it came around there?
A. 40 to 45 miles an hour.
Q78. Do you feel sure in your mind that it was going that fast?
A. Yes.
Q79. How long did it take that car to get up on you?
A. One or two seconds.
Q80. Was it quickly?
A. Yes.
Q81. Did you have time to do anything after you saw that car start around?
A. No.”

A witness testified that there was a movement of traffic on Hill Street just prior to the accident — from which it may be inferred that the traffic signal at 12th Street had changed to “go” for Hill Street traffic. Appellant suggests that an inference could be made that Mrs. Stiles had observed the change of the traffic signal and swerved to the outside lane in order to “beat” the standing line of traffic. The record reflects that Mrs. Stiles had lost her son in a downtown store, had reported him lost, and was on her way to get her husband — presumably to assist in locating the child — at the time of the accident.

Appellant recognizes the statutory requirement that a pedestrian shall yield the right-of-way to automobiles when crossing a roadway at any point other than within a marked or unmarked crosswalk. KRS 189.570(4). Our decisions implementing the statutory proscription of “jaywalking” are discussed in appellant’s brief, and effort is made to distinguish them from the case at bar. Some of the decisions so discussed are: Music v. Waddle, Ky., 380 S.W.2d 203; Travis v. Embry, Ky., 257 S.W.2d 64; Turner v. Fields, Ky., 309 S.W.2d 752; McKinney v. Ballard, Ky., 352 S.W.2d 200; Clark v. Smitson, Ky., 346 S.W.2d 780 and Severance v. Sohan, Ky., 347 S.W.2d 498. The trial court held that appellant was guilty of contributory negligence as a matter of law in crossing Hill Street outside of any crosswalk; appellant insists that the “yield” requirement imposed upon a pedestrian by the statute — and upheld in the cited cases — must not be inflexible. Appellant contends that it could not be negligence for the pedestrian to cross a street, even outside a crosswalk, when there is no approaching vehicle discoverable by exercise of ordinary care. Thus, it is reasoned, since appellant could not see the Stiles car when she looked eastward down the northernmost lane on Hill Street, nor could she be expected to anticipate that the Stiles car would pull out of traffic, she was not negligent. We are not so persuaded. It must be borne in mind that the roadway is primarily designed for vehicles, and except at designated crosswalks, the motorist has the right to expect that the roadway will be free of pedestrians. The pedestrian is charged with knowledge that motor vehicles will travel the street in all traffic lanes. We do not consider it to be unreasonable to suggest that appellant might very well have expected — and thus have foreseen — that a car would pull into the traffic lane just as the Stiles car did. We. find nothing in the factual situation at bar which may be said to take this case outside the rule as applied in the cited cases.

Appellant would equate this case with one in which a pedestrian crosses between intersections when no vehicle is in sight, but the pedestrian is struck by a car suddenly pulling from the curb, or from a drive. It is reasoned that the “yield” duty imposed on the pedestrian must give way if it be shown that the pedestrian, through no negligence, had no reasonable opportunity to yield. Without elaboration upon that theory, we are of the view that the factual situation at bar would not bring the appellant within the ambit of the theory anyway. Appellant admittedly saw automobiles using one westbound traffic lane, and there simply is no way to rationalize away her negligence in placing herself into the perilous situation which resulted in her injuries. It is our view that the trial court correctly ruled that the appellant was guilty of contributory negligence as a matter of law.

Appellant urges that the doctrine of “last clear chance” is applicable here, and that at least the case should have been submitted to the jury upon that theory. Reliance is placed upon Chism v. Lampach, Ky., 352 S.W.2d 191, and Riley v. Hornbuckle, Ky., 366 S.W.2d 304.

In Chism, the pedestrian was not crossing the street, but was walking on the right-hand paved surface, in violation of KRS 189.570(6). The defendant-motorist admitted that he saw the pedestrian so walking when he was 150 to 200 feet from her, and he took no precautionary action to avoid striking her, except to sound a “beep” on his horn when he was about 50 feet from her. In that case we said the “last clear chance” doctrine entitled the pedestrian to go to the jury. (As noted in Barker v. Danville Const. Co., Ky., 389 S.W.2d 931, KRS 189.570(4) is not applicable to persons walking along the highway, as opposed to crossing the highway; in the latter situation KRS 189.570(6) is applicable). We think it is obvious that the Chism decision does not rule the present case.

As respects the decision ir. Riley v. Hornbuckle, Ky., 366 S.W.2d 304, it is plain that the facts of that case raised a justifiable inference that the helpless plight of the negligent pedestrian was discoverable by the motorist for a sufficient time and space to permit the motorist to avoid the accident. So long as the pedestrian and the motorist have equal opportunities to avoid the accident, neither may be said to have the “last” chance — they simply have concurrent chances. As noted in the Riley opinion “ * * * there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a ‘clear’ chance ought to be left to the jury.” Tested by that principle, there is no basis in the present record for submitting an issue as to whether the appellee Stiles had a “clear” chance to avoid striking appellant. If we should assume that appellee Stiles was negligent in deviating from the inner westbound lane to the curb-lane, and further assume that she was negligently driving 45 miles per hour, in excess of the stated speed limit of 35 miles per hour, all of this “assumed” negligence was antecedent negligence, and may not be reckoned in the “last clear chance” question. Severance v. Sohan, Ky., 347 S.W.2d 498, 501. We are then left to examine what “chance” was available to appellee Stiles during the time appellant took her “one or two” steps into the curb-lane. If the car of appellee Stiles was not in the curb-lane when appellant looked, then it is obvious that the car came into that lane after appellant looked — then the car had to cover the space between it and appellant within the split second required for appellant to take her “one or two steps.” Appellant characterized her pace in walking as “hurriedly.” It is virtually impossible to perceive how the Stiles car could have trav-elled 110 feet while appellant was taking “one or two” steps, but assuming that it did (as appellant’s evidence states), we are entirely unable to envision that brief time elapsing while appellant took “one or two” steps “hurriedly” as being a sufficient interval to afford to appellee Stiles a last, clear, chance to avoid the collision.

As appellant suggests, if the car travelled at 45 mph, it would go about 66 feet per second. It must be recalled that appellant was not within the normal line of vision for appellee Stiles until appellant emerged from in front of the Martin truck; since the Stiles car had to come from behind the Martin truck (or the line of traffic in which the Martin truck was stopped) it necessarily travelled somewhat at an angle as it changed lanes. In such circumstances it may well be doubted that the driver’s vision would have included the position of appellant until the Stiles car had practically straightened itself into the curb-lane. In substance, appellant had positioned herself so that she could not see, nor could she be seen, until she “cleared” the Martin truck. Assuming a “reaction” time of tyiths second (as is suggested in the record) the Stiles car would have gone nearly 50 feet before any braking could take place. The skid marks indicated that the brakes were applied some 15 to 20 feet before the impact; this leaves unaccounted for the 40 to 45 feet in which the brakes could have been applied during the estimated 110 feet that appellee Stiles travelled in the curb-lane. It is apparent that those “unaccounted for” feet could have been consumed in the brief interval required to change the car from one lane to the other. In any event, there is no evidence that the Stiles car could have been brought to a stop within 110 feet, assuming an original speed of 45 mph. We think it becomes clear, from the “hindsight” splitting of seconds and estimating reaction times that the “chance” afforded appellee Stiles was not a “clear” one, if indeed it was any chance at all.

There was no basis for submission of the case to the jury as respects the liability of Martin. Without undertaking an exploration of the so-called “good Samaritan” principles, it is plain that appellant did not rely on the alleged assurances of the Martin driver for her entrance into the curb-lane. She testified that she assured herself that the curb-lane was safe, and she must have known that the Martin driver had no means of determining whether any traffic would turn into the curb-lane from the inner westbound lane. Assuming, without deciding, that appellant had a right to rely on the assurances of the Martin driver up to the point of her passing in front of the Martin truck, she clearly did not rely on any such assurance as she walked into the lane where she was struck. Thus there is no causal connection between her injuries and any activity of the Martin driver.

Appellant complains of certain adverse rulings incident to admissions and rejections of evidence. None of the matters complained of, even if all were decided favorably to appellant, would affect the basic questions of contributory negligence and last clear chance. In view of what we have said, the questions thus raised become immaterial and we shall not discuss them.

The judgment is affirmed.

      . We are not holding or suggesting that Mrs. Stiles was guilty of negligence in this maneuver.


author: STEAKLEY, Justice.

text:
    HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Petitioner, v. Harold G. DIETER, Respondent.
    No. A-11569.
    Supreme Court of Texas.
    Dec. 31, 1966.
    Evans, Pharr, Trout & Jones, Charles B. Jones and Carlton B. Dodson, Lubbock, for petitioner.
    Huffaker & Green, Harold Green, Taho-ka, for respondent.
   STEAKLEY, Justice.

This is an agreed workmen’s compensation case submitted in accordance with Rule 262, Texas Rules of Civil Procedure. Petitioner is the compensation carrier; Respondent is the injured employee and claimant. The one question presented for decision is whether Petitioner, who had not invoked the provisions of Section 12e of Article 8306 , was entitled in the trial of the case to make proof of the possible beneficial effects of pre-trial surgery voluntarily undertaken by Respondent at the hands of his personal physician. The agreed statement of facts submitted to the trial court is quoted in the opinion of the court of civil appeals. It appears therefrom that on June 19,1964, Respondent suffered a compensable injury to his back consisting of a rupture of two intervertebral discs and other related injuries. An award was entered by the Industrial Accident Board on January 27, 1965. An appeal was timely filed on March 2, 1965. On May 19, 1965, Respondent voluntarily and at his own expense submitted to surgery at the hands of his personal doctor to correct the results of the injury. A semihemilaminectory at L4-5 and L5-sl interspaces was performed on the right side, and degenerated disc material was removed. The injury was the cause of the rupture of the discs and consequential protrusions and irritation of the nerve roots. Respondent’s surgeon was of the medical opinion that the Respondent was totally incapacitated at the time of the surgery which incapacity would have continued as a permanent condition; but he was of the further medical opinion that the surgery was beneficial in partially restoring Respondent’s capacity to work. It was stipulated that if this testimony of the surgeon is admissible, Respondent is entitled to recover the sum of $6,000; but if inadmissible, he is entitled to recover the sum of $10,000. The trial court ruled the evidence admissible and entered judgment for Respondent in the lesser stipulated amount; this was held to be error by the court of civil appeals which reversed the judgment of the trial court and rendered judgment for Respondent in the higher stipulated amount. 403 S.W.2d 222. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

Section 12e of Article 8306 provides in part:

“In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the employé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the employé as herein provided, and the association shall provide and pay for all necessary surgical treatment, medicines and hospital services incident to the performance of said operation, provided the same is had. In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employé in the same manner as is provided for in the section of this law relating to hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the injured employé or will materially benefit him, the board shall so state in writing and upon unanimous order of said board in writing, a copy of which shall be delivered to the employé and the association, shall direct the employé at a time and place therein stated to submit himself to an operation for said injury. ⅜ ⅜ ⅜ if

Petitioner’s points, in summary, are that failure to invoke the provisions of Section 12e does not preclude proof of the possible beneficial effects of surgery actually performed prior to trial, Petitioner asserting that in such situation “the insurer is entitled to show the effect of the surgery, be it good or bad, and the claimant is entitled to show the effects of surgery, good or bad, since all of such testimony is material as bearing on the actual condition of the [claimant] at the time of trial.” While agreeing that the question before us is one of first impression, Respondent argues that we have said, in effect, particularly referring to Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960), that in order for the compensation carrier “to reap any benefits from any testimony concerning the beneficial effects of surgery” the carrier “must do certain things at certain times and that it is too late to reap the benefits of any such testimony after a compensation claim has been decided by the Industrial Accident Board.” The underlying reasoning of Respondent is that “whether the surgery is performed or not, the testimony concerning its beneficial effects will be merely expressions of medical opinion as to ‘probabilities’ which is sometime fraught with extreme frailties.” From this, Respondent asserts that we intended in Seelbach to condemn “resort to probabilities” in connection with-any testimony concerning surgery unless it had been performed under the supervision pf the Industrial Accident Board, whereby the Board could delay a final decision on the claim until the effects of the surgery became a certainty.

We held in Seelbach that medical testimony asserting the beneficial effects of unperformed surgery is not admissible in the trial court on appeal where the insurer did not admit liability, where no operation was tendered or requested in the proceedings before the Board, and where no surgery was indicated prior to the rendition of the final award by the Board. In so holding, we recognized the dilemma posed by the statute and resolved the problem favorably to the claimant. Our reasoning emphasis was upon the inherent element of uncertainty where the actual effects and results of surgical procedures were not susceptible of proof at time of trial because of their non-utilization. We said that “the benefits from surgery are to be determined not by evidence based on probabilities but rather on what has actually happened.” The crucial consideration that surgery had not in fact been performed is also common to Texas Emp. Ins. Assn. v. Shelton, 161 Tex. 259, 339 S.W.2d 519 (1960) and Hardware Mutual Casualty Co. v. Courtney, 363 S.W.2d 427 (Tex.Sup.1963).

It is settled, of course, that the rights and obligations of parties in a suit brought under the Workmen’s Compensation Act are controlled by the statute. But Section 12e does not expressly preclude evidence of the results of pre-trial surgery as it bears on the question of the incapacity of the injured employee at the time of the trial. The court of civil appeals has read this restriction into the statute by implication and held such proof impermissible except and unless the carrier has demanded surgical procedures and otherwise met the statutory conditions during the pendency of the claim before the Industrial Accident Board. With this we disagree.

The problem here to be solved presents the other side of the Seelbach coin. The problem in Seelbach was twofold: first, the obvious speculative element of opinion testimony as to the possible results of surgery which had not occurred and might never occur; and second, the undesirable result which was described as being “tantamount to applying the provisions of §§ 12b and 12e in the trial court.” Here, surgical procedures have been utilized at the voluntary instance of the injured employee and the results are properly the subject of proof; further, the trial court is not being called upon to order or supervise surgery or act in any respect as an administrative board.

The inquiry at the trial of a workmen’s compensation case is the extent of incapacity of the injured employee at that time. It is the purpose of the Workmen’s Compensation Act to afford compensation for incapacity for work as it then exists. The degree and duration of this incapacity is reduced and earning capacity is restored to the extent that surgical procedures have corrected the disabling results of a compensable injury. It cannot be gainsaid that there is less speculation and uncertainty where surgery has been performed and its results susceptible to proof than in the situation of unperformed surgery where the proof is necessarily limited to expressions of opinion and conjecture as to what would be the results of surgery if performed. Moreover, any uncertainty which may exist with respect to performed surgery is present alike whether the matter is before the Board or the court, and no significant reason is perceived for limiting proof thereof to the period when the claim is pending before the Board. No case has been made known to us where evidence of the results of surgery has been held inadmissible, or where medical and lay witnesses have been required to exclude consideration thereof in testifying to the present incapacity of an injured employee, and in stating a prognosis for the future. Such a requirement of exclusion would necessarily restrict a witness in his testimony to less than the full and present facts. Cf. National Surety Corp. v. Bellah, 245 F.2d 936 (5th Cir. 1957). Section 12e of Article 8306 does not evidence a legislative intent to thus withhold from the court or jury the actual facts at the time of trial concerning the then existing incapacity for work of an injured employee. The statute shows by its provisions to have been enacted for the purpose of establishing a procedure under which, in proper circumstances, an injured employee may be required to submit to curative surgical procedures or suffer a suspension of compensation payments. Its. provisions are to be strictly enforced against the compensation carrier before an injured employee may be thus penalized. But beyond this there is nothing to evidence a legislative purpose to foreclose proof of the fact and results of surgery voluntarily assumed by the employee subsequent to the award of the Board and prior to trial of an appeal suit.

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

      . The reference is to the statute as it appears in Vernon’s Annotated Civil Statutes.

      . “The insurer says that under the 1957 amendments Seelbach, after recovering a final judgment in the district court awarding to him compensation based on total and permanent disability, may there- . after apply to the Board for and receive an operation that will completely cure or substantially benefit him all at the expense of the insurer. Seelbach would thus be drawing compensation for total and permanent disability and at the same time be employed at full wages. This would be unfair and unjust, says the carrier. On the other hand, consider the medical testimony that in all probability Seelbach would be cured by an operation and return to work with little, if any, disability. If the jury gave full credence to this testimony it would award a few months of total disability followed by ten per cent permanent partial. It might then be discovered that a later performed operation was of no benefit, but actually injurious. Admittedly, Seelbach would thus be totally and permanently disabled but would receive much less in the way of compensation than his condition would require. That result would be equally unfair and unjust. * * * ” Id. 339 S.W.2d at 524-525.


author: PER CURIAM.

text:
    HILLCREST STATE BANK OF UNIVERSITY PARK, Appellant, v. EVIS-SOUTHWEST, INC., Appellee.
    No. A-11525.
    Supreme Court of Texas.
    Nov. 9, 1966.
    Fanning, Billings, Harper, Pierce & Gilley, William F. Billings, Dallas, for petitioner.
    Andress, Woodgate, Richards & Condos, William Andress, Jr., Dallas, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The application for writ of error is refused, no reversible error. In so doing we neither approve nor disapprove the holding of the Court of Civil Appeals that Article 342-711 of Title 16, Vernon’s Ann.Tex.Civ. Stat., gives the depositor a period of one year during which he is under no duty to examine his statements and cancelled checks, and would not be negligent in failing to discover forgeries. The Court of Civil Appeals opinion is reported in 402 S.W.2d 276.


author:
GREENHILL, Justice.
      NORVELL, Justice

text:
    Marvin G. STACKS, Petitioner, v. EAST DALLAS CLINIC et al., Respondents.
    No. A-11267.
    Supreme Court of Texas.
    Nov. 2, 1966.
    Rehearing Denied Jan. 18, 1967.

      Fritz, Vinson & Turley, Dallas, for petitioner.
    Abney & Burleson, Ernest Conner, Dallas, for respondents.
   GREENHILL, Justice.

This is an action in which Marvin G. Stacks seeks to recover double the amount of usurious interest paid by him to the defendants, East Dallas Clinic, C. N. Duncan, M.D., R. D. Mahon, M.D., Walter H. Patton, M.D., William T. Green, M.D., and East Dallas Hospital, Inc., under article 5073. The determination of the case necessarily requires a construction of that statute. Article 1728 § 3. Trial was to a jury in county court where the court instructed a verdict in Stack’s favor. Judgment was entered for plaintiff in the amount of $305.10. The Court of Civil Appeals sitting at Tyler reversed and remanded. 397 S.W.2d 558.

The question presented for decision here is whether the defendants received a benefit from the usurious interest paid to them by Stacks and which they in turn paid to a third person. We hold they did not.

The suit was instituted by Stacks against East Dallas Clinic, a partnership of physicians above named and East Dallas Hospital, Inc., a corporation that owns the hospital used by these physicians. Since these two organizations operated in effect as one entity, they will be hereinafter referred to as the Clinic. Stack’s wife had an operation at the East Dallas Hospital in February of 1961, and her physician was from the East Dallas Clinic. The total bill was $652.90. Stacks signed two notes payable to the Republic National Bank, one for $325.00, due the Clinic for the doctor’s bill, and the other for $327.90, due the Hospital for hospital charges. Benson, the Clinic’s credit manager, told Stacks that the monthly payments on the two notes would be $54.41 for twelve months, and these were to be deposited with the bank. Twelve times $54.41 equals $652.92 — within two cents of the amount owed.

At the same time Stacks signed the two notes, he also filled out and signed two applications for credit addressed to W. H. (Joe) Bailey and the Dallas Retail Credit Managers Association. Bailey was the auditor of the Association and had no connection whatsoever with the Clinic except as set out below. The Dallas Retail Credit Managers Association had worked out a plan with the Republic National Bank to enable debtors of various Dallas businesses to pay their bills. The debtor would apply to Bailey, otherwise known as the Dallas Retail Credit Managers Association, for a loan in the amount of the debt. At the same time, the debtor would sign a note payable to the Republic National Bank which would be endorsed by the creditor to the extent of the amount due him. The application form and note were forwarded to Bailey, who checked them, and forwarded them to the bank. The bank would pay the amount of the note (debt) to the creditor, and then collect monthly payments from the debtor. Bailey paid the bank five percent interest on the notes.

Stacks and his wife made out separate checks, one to the East Dallas Clinic for $32.50, and the other to the East Dallas Hospital for $32.79. Benson, the Clinic’s credit manager, told the Stackses that these checks were for interest. The interest equalled ten percent of the total amount due, but we shall assume that it was usurious because it did not take into account the monthly payments which would reduce the balance of the principal. The Clinic deposited the two interest checks to its account. The Clinic then wrote Bailey two checks of its own for $32.50 and $32.79, which were forwarded to him by the Clinic together with the two notes and applications. The Clinic retained none of this “interest.” Bailey sent the notes to the bank, which forwarded cashier’s checks in the amount of $325.00 and $327.90, respectively, to the Clinic.

Stacks made two monthly payments of $54.41 to the bank. Thereafter the payments proved to be too large for Stacks to handle; so he asked Benson to reduce the monthly payments. Benson called Bailey to ask him if the payment could be reduced and extended, and if so, what the charge would be for doing this. The balance of the two notes was consolidated into one note for $544.10, and a renewal and interest charge of $81.61 made. Stacks wrote a check payable to the Clinic for $81.61 and gave it to Benson. This check was deposited in the Clinic’s bank account. The Clinic sent its own check to Bailey for the $81.61.

The Clinic took up the two original notes on which they were shown to be endorsers, and made payment to the bank for the balance owed thereon. The new note for $544.10, together with the $81.61, was sent to Bailey, who forwarded the note to the bank as before. The bank promptly remitted $544.12 to the Clinic. Stacks made regular payments on the consolidated note until June 8, 1962, when he again fell behind. The bank then sent the note back to the Clinic, and charged it with the balance of $362.74. Stacks made two additional payments totaling $45.34 to the bank after June 8. The bank credited the Clinic’s account with only $39.69 of this, however, retaining $5.65 as a “late collection” charge. The Clinic turned the note over to a Dallas collection agency which collected the balance from Stacks. This suit was then filed by Stacks to recover the alleged usurious interest.

Article 5073 reads in part:

“Within two years after the time that a greater rate of interest than ten per cent shall have been received or collected upon any contract, the person paying the same or his legal representative may by an action of debt recover double the amount of such interest from the person, firm or corporation receiving the same. * * *” [Emphasis added.]

“Receiving” as used in the statute means “benefiting” from the interest paid. Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942 (1935); Deming Inv. Co. v. Giddens, 41 S.W.2d 260 (Tex.Civ.App.1931, writ dism’d). These cases are controlling here.

This Court noted in the Best case, cited just above, that a cause of action to recover double the amount of interest paid is derived from a statute creating a penalty. It is not a suit in tort. Since the statute is one involving penalties, this Court in that case said that the statute would be strictly construed and that “the language of the statute is not to be given a mere literal construction.” In the Best case, the original lender did collect the interest and forwarded it to the then holder of the indebtedness. In that sense, as here, it “received” the interest. This Court, speaking through Judge Smedley, stated, “This statute was intended to penalize one who exacts and receives the benefit of usury, not every one who may be connected with its collection.” 80 S.W.2d at 947. .

While the Best and Giddens cases dealt with the receipt of interest by a trans-feror (payee) for value of the notes in question and remittance of this interest to his transferee, the principle stated is applicable to this case. The Clinic received the interest from Stacks, and promptly remitted payment in an equal amount to Bailey. The Clinic did not lend Stacks any money. The only benefit the Clinic received was the collection of its account from Stacks. A “benefit” from the interest refers to a direct benefit from the receipt and retention of the interest itself, and not to something so incidental as the collection of an account receivable, admitted due, as in this case.

This Court will look through the form to the substance of a transaction; and the substance here bears out defendant’s contention that it only collected the interest for another, and received no benefit from such interest itself.

Stacks next contends that in a usury case, payments are allocated to principal first and interest last; therefore, the last payments made by Stacks to the collection agency and by the agency to the Clinic should be regarded as the actual interest payments. This rule has no application to our case. Here, the advance payments made by Stacks to the Clinic were for interest. The Clinic told Stacks that the payments would not apply to reduce the principal of the notes. Likewise, Mrs. Stacks testified that she knew the first two advance payments were for interest. Where the parties designate a payment as interest, then interest it will be. Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935); Rosetti v. Lozano, 96 Tex. 57, 70 S.W. 204 (1902); Hamilton v. Bill, 90 S.W. 2d 929 (Tex.Civ.App.1936, writ ref’d).

Further, Stacks contends that, even if the “benefit” interpretation of article 5073 prevents a double recovery from the Clinic, the Court of Civil Appeals erred in not allowing a recovery for the single amount of the interest paid to the Clinic. We overrule this contention.

Nowhere in his pleadings does Stacks assert a cause of action for recovery of the single amount of usurious interest alone. He bases his entire cause of action on a double recovery under article 5073; and under these circumstances, a recovery for the single amount of interest paid will not be allowed, notwithstanding a prayer for general relief. Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935); Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931 (1935).

Finally we come to the question of what judgment should be entered by this Court. The trial court instructed a verdict for Stacks. The Court of Civil Appeals found error. It was of the opinion that Stacks was not entitled to recover under Deming Inv. Co. v. Giddens, and Commerce Trust Co. v. Best, discussed above. Ordinarily this would result in the reversal and rendition of the judgment by the Court of Civil Appeals. Without any explanation, however, that court reversed and remanded the cause for a new trial. The Clinic et al. filed no application for writ of error. That being so, there can be no rendition in its favor. Henderson v. Gunter, 160 Tex. 267, 328 S.W.2d 868 (1959). The judgment of the Court of Civil Appeals is, therefore, affirmed.

SMITH, NORVELL, STEAKLEY and POPE, JJ., dissenting.

NORVELL, Justice

(dissenting).

This case involves a construction of Article 5073, Vernon’s Ann.Tex. Stats. The petitioner, Marvin G. Stacks, owed bills totaling $652.90 to East Dallas Hospital and East Dallas Clinic. He managed to discharge this indebtedness in a series of transactions involving the hospital, the clinic, the Republic National Bank and one W. H. (Joe) Bailey, a “go between” in the various negotiations and agreements of the parties. All this is set out in the court’s opinion. In addition to the principal of the debt, Stacks has paid over money in excess of ten per cent per annum of the principal. This excess amounted to $152.55 and the trial court rendered judgment for double that amount, namely, $305.10. Among the numerous papers and documents executed by Stacks there was a request that Joe Bailey arrange a loan for him, but Stacks did not agree to pay Bailey a sum certain in money for services to be rendered in securing a loan. He testified that he did not know that Bailey “had anything to do with the money part” of the transactions. However, Mr. Benson representing the clinic and the hospital testified that he collected a “charge” in connection with the obtaining of a loan for Stacks, the proceeds of which were used to pay the hospital and clinic bills owed by Stacks. Stacks gave Benson checks for $32.50 and $32.79, payable to clinic and hospital respectively, and later, Stacks paid another “charge” of $81.61 in connection with a loan renewal negotiation.

The court holds that the respondent clinic and hospital cannot be held liable under Article 5073 because shortly after receiving the money called for by these checks, they paid the same over to Joe Bailey. This holding is primarily based upon Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942 (1935).

Article 5073 says that: “[T]he person paying the same [interest at greater rate than ten per cent] or his legal representative may by an action of debt recover double the amount of such interest from the person, firm, or corporation receiving the same”.

Here the evidence is undisputed that the clinic and hospital received the items of $32.50, $32.79 and $81.61 above mentioned. However in Best, this court refused to give the statute its literal meaning. From the report of the case, it appears that while Commerce Trust Co. had received interest payments from Best, it had accepted the same on behalf of California State Life Insurance, the holder of the note which was the basis of the usury claim. The court rejected the theory that Commerce Trust Company was a joint tort-feasor with its principal, California State Life Insurance Company, and held that where the principal holds a usurious obligation, an agent or employee of the principal is not liable for payments received by him as agent and thereafter transmitted to his principal.

This court said:

“It is true that plaintiff in error received these interest payments in the sense that they came into its hands and passed from them when it transmitted them to its principal, but the language of the statute is not to be given a mere literal construction. If it were, then any employee of a corporation who accepted and deposited to the credit of the corporation money paid in settlement of usurious interest notes belonging to it would be personally liable for double the amount of the interest so collected.”

Deming Investment Company v. Giddens, 41 S.W.2d 260 (Tex.Civ.App.1931, writ dism’d) was referred to in Best. Deming Investment Company had transferred a usurious note to Rutland Trust Co. and thereafter received and transmitted certain interest payments received by it to Rutland. Here, Deming was obviously acting for and on behalf of Rutland and the holding of the Court of Civil Appeals is in accord with the later holding of this court in Best.

When the court attempts to apply the principle of the Best and Giddens cases to the one now before us, some difficulty is encountered. The rule of the Best case is a narrow one, namely, that one acting merely as an agent in collecting interest on a usurious note and forwarding the same to the holder of the note is not liable under the penalty prescribed in Article 5073. The rule stated has no application to this case. The hospital and clinic collected the $32.50, $32.79 and $81.61 items, totaling $146.90, and turned the same over to Joe Bailey. Stacks had never agreed to pay Bailey anything. I can find no contractual basis which would authorize the hospital and clinic to pay over Stacks’ money to Bailey.

To support the court’s judgment in this case, the rule in Best must be extended to apply to any transaction wherein one collects money from a debtor and turns it over to some person to whom the debtor is in no way legally obligated, thus ridding himself of the taint of “benefit” from the transaction.

When we look to substance, this is what happened: Stacks went along with a well designed plan whereby he could obtain a loan, discharge his hospital and clinic bills, but at a cost to him of more than ten per cent per annum. In order to accomplish this, Joe Bailey as a “go between” was employed. He may be a legitimate loan broker but strange to say, no one in this lawsuit pleaded that he was or that the money paid to him was a legitimate brokerage charge, and certainly Stacks did not agree to pay him $146.90 for brokerage services. He thought these advance charges ultimately paid over to Bailey were interest charges. It seems that the East Dallas Clinic may have been under a similar impression as it transmitted the $32.50 to Joe Bailey by means of a check signed by Benson which bore the notation, “Note Interest, Marvin G. Stacks $32.50”. Mr. Benson spoke of the items which were paid to Bailey as interest charges. There is no basis in the present record for saying that the money paid to Bailey was for services rendered to Stacks. When this fact is accepted, and respondents do not dispute it, there is no escape from the conclusion that Mr. Stacks has paid more than the statutory limit for the use of money.

The plan of financing adopted in this case was the result of a three way agreement between the hospital and clinic, the bank and Joe Bailey. It appears that Bailey received money as interest, that the bank received money as interest and that the hospital and clinic received payment for the bills owed by Stacks. In the process, Stacks paid some 19% per annum for the money he obtained to discharge his bills. From a creditor’s standpoint there is a difference between an unpaid bill and one that is paid. By joining with the bank and Bailey, the hospital and clinic certainly received a “benefit”, that is, an advantage or profit. The fact that the payments made (other than those applicable to the principal of the debt) went to more than one person or entity should not obscure the situation. Too much was here paid for the use of money.

I fear that the decision of the court in this case will provide in effect an unfortunate breach in our anti-usury laws. Much time and ingenuity has been expended in attempts to circumvent these statutes, and we need to be ever alert to this situation. If a borrower is to employ and pay a person in connection with the securing of a loan, he is entitled to know about it. He should also be entitled to know the rate of interest he is required to pay.

I respectfully dissent. I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

SMITH, STEAKLEY and POPE, JJ., join in this dissent.

      . Tex.Rev.Civ.Stat.Arm. art. 5073 (1962). All references to statutes herein are to Vernon’s Annotated Revised Texas Civil Statutes.

      . The statute was amended in 1963 in ways not considered material to this case. Acts 1963, 68th Leg., p. 550, ch. 205, § 28.


author: BELCHER, Commissioner.

text:
    Samuel James OAKLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39984.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    No attorney on appeal, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Leon B. Douglas, State’s Atty.-, Austin, for the State.
   OPINION

BELCHER, Commissioner.

Upon a waiver of a trial by jury, the appellant was convicted upon his plea of guilty before the court of the possession of marihuana, and his punishment was assessed at twenty years.

The trial was had and the judgment rendered on October 8, 1965, and sentence was pronounced on that date.

No notice of appeal was given at the term of court at which the conviction was had, as required by Art. 827, Vernon’s Ann.C.C.P., which was in effect when sentence was pronounced. In the absence of such notice this court has no jurisdiction. Bradley v. State, Tex.Cr.App., 403 S.W.2d 154.

The appeal is dismissed.

Opinion approved by the Court.


author: MORRISON, Presiding Judge.

text:
    James S. HARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 39983.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.

      M. Jack Tabor, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough and Richard M. De Guerin, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is driving while license was suspended with two prior misdemeanor convictions for offenses of the same nature alleged for enhancement; the punishment, confinement in the county jail for six months and a fine of $100.00.

The sole question sought to be raised by this appeal is appellant’s plea of former jeopardy. He bases this question upon his testimony that he plead guilty and paid a fine for the offense of failing to have a valid operator’s license in Judge Albert Lee’s Justice of the Peace Court in Humble. Even if we were to assume that the two offenses grew out of the same transaction, jeopardy would not be shown to have attached, because there is a failure to show that the case in Judge Lee’s Court was prosecuted upon an information “signed by the district or county attorney, officially,” as is required by Sec. 9 of Article 21.21, Vernon’s Ann.C.C.P., 1965, so as to bring the same within the provisions of Article 28.13, V.A.C.C.P.

Finding no reversible error, the judgment is affirmed.


text:
    Ray Dean BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 39917.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    Rehearing Denied Jan. 11, 1967.
    Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Kerry P. Fitz-Gerald, Asst. Dist. Atty., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is robbery by assault; the punishment, 50 years.

Notice of appeal was given after January 1, 1966. Appellant did not comply with Sec. 9 of Article 40.09, Vernon’s Ann.C.C.P. (1965), in that he did not file his brief in the trial court pointing out the grounds of error of which he desired to complain on appeal.

We consider as unassigned error only his complaint as to appellant’s being the same person who made the confession that was introduced in evidence. A review of the record reveals that when the confession was offered in evidence, appellant’s counsel stated, “No objection.”

Finding no reversible error, the judgment is affirmed.


text:
    Milton GRAYSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39851.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    Kenneth W. Gentry, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Upon consideration of appellant’s motion for rehearing the original opinions are withdrawn and the following substituted in lieu thereof.

The offense is burglary; the punishment, ten years.

Trial was had and notice of appeal was given on February 16, 1966. Appellant first contends that his written confession which was witnessed by Justice of the Peace Roberts was not admissible, because it was not also witnessed by someone other than a peace officer as is required by Sec. 3 of Article 38.22(a), Vernon’s Ann.C.C.P. (1965). Such section deals with oral confessions and needs not be considered here.

He further contends that the trial court’s resolution of disputed facts was not ■sufficient under our holding in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345. His findings contained the recitation that appellant was not refused the assistance of counsel and that he freely and voluntarily made the statement. We deem these findings sufficient.

The judgment is affirmed and appellant’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Joe PONCE, Appellant, v. The STATE of Texas, Appellee.
    No. 39972.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    Rehearing Denied Jan. 18, 1967.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for burglary; the punishment, two years.

Sentence was pronounced and notice of appeal was given on November 11, 1965.

No statement of facts upon the merits accompanies the record and there are no bills of exception. No brief has been filed on behalf of appellant.

Appellant’s motion, filed in the trial court on August 10, 1966, to correct the record by having it prepared and filed under the provisions of Art. 40.09 of the 1965, Vernon’s Ann.Code of Criminal Procedure is not well taken. It is only in cases where notice of appeal was given on or after January 1, 1966, that preparation of the record on appeal is governed by the 1965 Code. Rivera v. State, Tex.Cr.App., 403 S.W.2d 130; Ross v. State, Tex.Cr.App., 403 S.W.2d 138.

The proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Duane Gail PETERSON.
    No. 39924.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    Rehearing Denied Jan. 18, 1967.

      M. Earl Rutledge, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., William R. Magnussen and Truman Power, Asst. Dist. Attys., Fort Worth, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

This is an appeal from an extradition proceeding.

The sole question presented for review is the sufficiency of the application for requisition made by the Deputy County Attorney of Sedgwick County, Kansas, to the Governor of Kansas which causd him to make a demand upon the Governor of this State.

Appellant contends that the application is insufficient because it does not state the approximate time, place and circumstances of the commission of the offense for which lie is sought to be extradited. Reliance is had upon Sec. 23 of Article 51.13, Vernon’s Ann.C.C.P. (1965).

We have examined the application, together with the documents attached thereto, in the light of Sec. 3 of Article 51.13, supra, which is here controlling, and find the same sufficient.

The judgment remanding appellant to the custody of the Sheriff of Tarrant County to be by him delivered to an agent of the State of Kansas is affirmed.


text:
    Preston DEWITT, Appellant, v. The STATE of Texas, Appellee.
    No. 39971.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    Rehearing Denied Jan. 18, 1967.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for passing a forged instrument; the punishment was assessed at two years.

Following a trial on December 8,1965, the appellant gave notice of appeal on February 4, 1966.

No assignments of error by appellate brief have been filed with the clerk of the trial court. Nothing is presented for review. Art. 40.09(9), Vernon’s Ann.C.C.P.

The judgment is affirmed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge. DICE, Commissioner. MORRISON, Presiding Judge.

text:
    Ruben TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 39679.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 12, 1966.
    Second Motion for Rehearing Denied Nov. 23, 1966.
    Third Motion for Rehearing Denied Jan. 18, 1967.
    H. C. Petry, Jr., Carrizo Springs, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is unlawful possession of the narcotic drug, marijuana; the punishment, 30 years in the penitentiary.

Appellant plead guilty to the offense, and the sole issue before this court is whether or not certain remarks by one juror, made during deliberation as to punishment, constitute jury misconduct.

All twelve jurors testified at the hearing on appellant’s motion for new trial.

Juror Dale Hall testified that he had favored a 10-year sentence until juror Merlin Gary stated that if the jury gave the defendant 30 years he would only have to serve 10 years; that he was influenced by this statement; and that he thereafter agreed to a 30-year sentence.

On the witness stand, juror Robert Sramek controverted his own affidavit in which he had sworn that such a statement had been made. He testified that the statement actually made was that “if he got 30 years he might get out in 8 or 10 years and we might see him out on the streets.” He testified that the statement was made as “more of a probability” than a definite assertion that appellant would serve only 10 years.

Nine jurors did not hear the statement which juror Hall attributed to juror Gary.

Juror Gary testified that “to the best of my knowledge I said if we agree on a 30 year sentence that he will probably be out in 8 or 10 or possibly 12 years.”

We find no abuse of discretion in the trial court’s overruling of appellant’s contention that the statement of juror Gary constituted jury misconduct which deprived him of a fair trial. Mandujano v. State, 170 Tex.Cr.R. 166, 339 S.W.2d 528; Salcido v. State, 167 Tex.Cr.R. 173, 319 S.W.2d 329; Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557; Plasentilla v. State, 152 Tex.Cr.R. 618, 216 S.W.2d 187.

We further observe that no statement of facts relating to the trial before the jury accompanies the record and there are no formal bills of exception, in the absence of which this court is not in position to appraise the claim that the remarks of certain jurors constituted “other testimony”.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that the statement in our opinion, affirming his conviction, that juror Sramek testified that the statement actually made by juror Gary during the jury’s deliberation as to punishment was “if he [appellant] got 30 years he might get out in 8 or 10 years and we might see him out on the streets” is wholly unsupported by the evidence, and that under the record he should have been granted a new trial.

In the light of such contention, we have again reviewed the evidence adduced at the hearing on the motion for new trial and find that the juror did testify as stated in the opinion.

A fact issue was raised by the evidence as to whether juror Gary’s statement was made as an assertion of fact or a mere expression of probability that appellant would be released from the penitentiary in eight or ten years if given a sentence of thirty years.

It is within the province of the trial judge to decide the issue against appellant and, under the record, he did not abuse his discretion in refusing to grant a new trial.

The motion for rehearing is overruled.

Opinion approved by the court.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

MORRISON, Presiding Judge.

Appellant has urged that we refuse to consider the testimony of jurors Sramek and Gary because of certain inconsistencies found in their testimony under the rule which has been given application in civil cases in Easton v. Dudley, 78 Tex. 236, 14 S.W. 583. We need not decide whether to give application to such rule in criminal cases, because we do not find that a definite issue was made at the hearing on motion for new trial. The juror Hall stated that the positive statement was made and that it was made by Merlin Gary. Gary unequivocally stated that he made no such statement.

The issue of fact was decided by the trial court and is binding on this Court under the rule announced in Walton v. State, 398 S. W.2d 555.

Appellant’s second motion for rehearing is overruled.


author: McDonald, judge.

text:
    Kenneth Ray BURLESON, Appellant, v. The STATE of Texas, Appellee.
    No. 39795.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Rehearing Denied Jan. 18, 1967.
    Victor R. Blaine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert Floyd, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is robbery by assault; the punishment, 10 years confinement in the Texas Department of Corrections.

Notice of appeal was given on September 3, 1965.

The record reflects that on the night of January 13, 1965, Wayne Reed was working in a Seven-Eleven store in the city of Houston. William Edmunds, a customer, was present when three men entered the store. At gun point they took $57.00 from Reed and forced him and Ed-munds into the store’s refrigerator vault. A short while later a Mr. Thompson came into the store. He saw the three men in the store and went back outside where he stayed until he saw them leave. He went back into the store and released the two men in the vault. Edmunds and Thompson identified one of the three men who robbed the store as Kenneth Ray Burleson, the appellant. On January 26, 1965, appellant was arrested by police officers, to whom he gave a written statement admitting his participation in the offense committed on January 18th. We find the evidence sufficient to sustain the jury’s verdict.

Appellant’s sole contention is that the trial judge committed reversible error in refusing a requested charge to the jury. The requested charge sought to instruct the jury to decide whether or not appellant had been fully advised of his constitutional right to have counsel present prior to his making the aforementioned statement, and further that the jury should decide whether he freely and voluntarily waived his constitutional right to counsel before it could consider the statement as evidence.

During the course of the trial appellant’s attorney requested, and was granted, a hearing outside the presence of the jury on the voluntary nature of the confession. During this hearing the trial judge heard testimony from the state and from appellant and concluded that as a matter of law and beyond a reasonable doubt none of appellant’s constitutional rights had been violated. The statement was admitted into evidence. This confession contained the proper statutory warning, including the statement: “That I have a right to consult an attorney, which right I hereby waive.” The appellant then testified in the presence of the jury that the confession he made was involuntary. The state again rebutted this testimony by its witnesses as it had previously done outside the presence of the jury.

Issue having been made, the trial judge instructed the jury as follows:

“If you believe from the evidence that the defendant made the statement of confession which has been introduced in evidence by the state, and that he signed same, and before making the statement he had been warned that he did not have to make any statement at all, that he had a right to consult with an attorney, and that any statement made by him must be free and voluntary on his part and could be used against him as evidence on the trial of the case or cases concerning which the statement is made, and that he signed the statement knowing the contents thereof, then you may consider said statement with the other evidence, if any, before you in arriving at your verdict.
However, if you believe or have a reasonable doubt thereof, as of any of the above matters, that the defendant made said statement through fear, or because of any threats that might have been made against him to do violence to him, or because of any promises of immunity made to him, then you will not consider said statement for any purpose.”

Appellant relies upon the cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Turner v. State, Tex.Cr.App., 384 S.W.2d 879, to support his contention. We do not find in any of these cases any basis for appellant’s contention that a defendant has the right to have a jury pass on the issue of whether or not he voluntarily waived his right to counsel.

Though he does not cite it as authority for his contention, it appears that the rules set out in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 are sought to be applied by appellant in this case. Miranda, supra, is only applicable to cases arising after the date of that decision, June 13, 1966, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, granting that it lent support to appellant’s contention, which we fail to perceive.

The trial judge instructed the jury on all issues concerning the voluntariness of appellant’s statement, following the suggested requirements of Lopez v. State, Tex.Cr.App., 384 S.W.2d 345. The issue was decided against appellant.

Finding no reversible error, the judgment is affirmed.


text:
    Acie COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 39948.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    Richard E. Harrison, Dallas, for appellant.
    Henry Wade, Dist. Atty., Curtis D. Glover and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

Upon a jury trial on March 9, 1966, the appellant was found guilty of the possession of marihuana. The punishment was assessed by the jury at fifteen years.

The appellant assigns as error the failure of the trial court to sustain his objection and motion to declare a mistrial when the state introduced in evidence a .38 caliber pistol, and five live shells on the ground that the appellant was on trial for the possession of marihuana and not for the possession of firearms.

The evidence of the state reveals that when Officer Riggs saw a marihuana cigarette in appellant’s hand in a night club, he took possession of the cigarette, and on searching the appellant outside of the club he found a .38 caliber pistol containing three live shells and two other live shells in his pocket.

While testifying in his own behalf, the appellant on direct examination stated that the pistol introduced in evidence by the state was his gun and he had it with him when he was arrested by Officer Riggs.

It is a general rule that an accused cannot complain of the admission of testimony when he later testified on direct examination to substantially the same facts. Phillips v. State, 166 Tex.Cr.R. 206, 312 S.W.2d 644; Hudson v. State, 172 Tex.Cr.R. 565, 361 S.W.2d 388; McCain v. State, Tex.Cr.App., 363 S.W.2d 257; Jenkins v. State, Tex.Cr.App., 367 S.W.2d 343; Long v. State, Tex.Cr.App., 375 S.W.2d 913.

No error appearing, the judgment is affirmed.

Opinion approved by the Court.