author: SHARPE, Justice.

text:
    Ramon S. GARCIA, Appellant, v. PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellee.
    No. 18.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 23, 1964.
    Rehearing Denied March 10,1964.

      John J. Pichinson, Corpus Christi, for appellant.
    ■ Owen Cox, of Boone,- Davis, Cox & Hale, Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal from a take nothing judgment rendered on a jury verdict in a Workman’s Compensation case brought by appellant to recover 'benefits for injuries sustained by him on December 9, 1961. Appellant contends that he is entitled to a lietv trial because o'i'jury misbonduct. ■ We 'agree. /''''

,,, J5y¡^n$wers to eight?^ special issues the jiirjjjfound, in substance, as follows: That appellant sustained an accidental injury in the course of his employment on December 9, 1961, resulting in temporary-total disability for a period of four weeks and permanent-partial disability beginning .on January 6, 1962; that the average weekly wage earning capacity of appellant during such period of partial disability is $60.00 per week, and that aji average weekly wage of appellant as of the date of the injury which would be fair and just to both parties is $60.00 per week.

Appellant had been paid -the amount' of $140.00 for the temporary-total disability sustained by him and the trial court rendered judgment that appellant take nothing, even thoúghithe jury fotind he had sustained permanent-pa’rjtial disability. ¡ -,

Appellant contends that - material .jury .misconduct prohably resulting in injury to him was established .because, during the deliberations of the jury one of the jurors related a personal experience concerning his own back injury, and .that the trial court abused its discretion in overruling appellant's motion for new trial and in thereby impliedly finding that the jury misconduct did not occur and that injury to appellant did not probably result from the alleged jury misconduct.

We'ha've before us the statement of facts on the main trial of the case as well as the record of the testimony heard by the trial judge on the motion for new trial. The record on the main trial has been of considerable assistance, and without the same a different result might have been reached on this appeal.

The record shows that appellant suffered injuries resulting from an accident in which a tub of boiling water was turned over and spilled on him while he was working as a meat cutter in a locker plant. He was given medical attention at the hospital for a brief period of time shortly after the accident, was then taken to his home for a period of about eight days, and was thereafter hospitalized for a period of about six days. He returned to work about a month after such injury but discontinued the same after about ‘three weeks, claiming he was unable to per'form his duties. On the trial of the case appellant testified he had been unable to work up until the time of trial in April, 1963, and that several different injuries had -resulted frqm such accident, the most serious of which was-an injury to his back. Two doctors, 'called as witnesses by appellant, supported his contention as.'tp.a back injury -and by way , of opinion - evidence testified, .in effect, that-appellant-was totally-and permanently disabled. Such testimony was disputed by a doctor called on behalf of appel-lee 'wlio .testified, in substance, -¡that' appellant was able, and had been able for some -time past,'to-go backjto worki;...Jhe issue 'was strongly contested as to whether appellant had suffered -an,,injury to his;back, and if he’ had, the nature and extent of same. The alleged misconduct must be’psnsidpped in this context.

The trial court overruled the motion for new trial in general terms. No findings of fact or conclusions of law were requested or filed. On the hearing of the motion for new trial, four jurors testified that while the jury was deliberating, another juror by the name of Smith, who had been a ball player, related his personal experience about a back injury suffered by him. The substance of the testimony of the said jurors will be briefly stated. Mrs. H. P. Campbell testified that, during the deliberations of the jury, the juror Smith said he had suffered a back injury while playing ball and it got all right; that prior to such statement by Smith she had been for awarding the appellant total disability, but afterward voted for partial disability. The juror Mrs. O. C. Farrar testified that, while the jury was deliberating, the juror Smith picked up the X-rays which were in evidence and used a pencil to point out certain areas to indicate where he had suffered injuries and stated that in his opinion and based upon his experience with his back injury a man likely, probably, or possibly would make a complete recovery and not suffer any permanent disability or be disabled for any length of time because in his own case he hadn’t been; that she had changed her vote from total disability to partial disability after the juror Smith made such statements. The juror Mrs. Pauline Fawcett testified that the juror Smith, while the jury was deliberating, said that he had suffered a back injury, that he was in a cast and that he had gotten over it and he could do a man’s work and a man’s job of any kind; that prior to such statement by juror Smith the jury had not decided whether the appellant was partially or totally disabled and after such statement she had voted for partial disability. The juror Mrs. Emily Cain testified that, during the deliberations of the jury, a juror by the name of Sidney Smith, who was sometimes referred to as a football player, related a personal experience in connection with an injury to his own back; that Smith said he had injured a bone or vertebra in his back and illustrated where the same was located on the X-rays, drawing a line and explaining, and that the doctor did something to take the pressure off this vertebra and that the same thing could be done with appellant; that the same kind of treatment could be given to appellant as had been given to him; that if the same thing was done to appellant’s back as was done to Smith’s back, that appellant would be all right.

The record shows that six of the remaining jurors were outside the courtroom at the time of the hearing on appellant’s motion for new trial and, although they were available as witnesses, none of them were called. The testimony given by the said four jurors, briefly summarized above, therefore, stood uncontradicted.

If the evidence-on the motion for new trial had been disputed or conflicting, we would be bound by an implied finding of the trial court in support of its order overruling the said motion, that the personal experience of the juror Smith was not related or that it was not related in the detail testified to by the above-named four jurors; and, therefore, that there was no misconduct. But such is not the case here. The testimony of the said four jurors was not disputed and we cannot presume that the juror Smith did not make the statements substantially as related by them. Barrington, et al. v. Duncan, et al., 140 Tex. 510, 169 S.W.2d 462 (1943); Rodman Supply Company v. Jones, 370 S.W.2d 951 (Tex.Civ.App., 1963, no writ hist.); Parris v. Jackson, et ux., 338 S.W.2d 280, (Tex.Civ.App., 1960, no writ hist.).

Appellee concedes that some character of personal experience was related by the juror Smith, without admitting that the same constituted misconduct, was material or resulted in probable injury to-appellant.' Appellee contends that the remarks- made by Smith did not amount to jury misconduct because the same involved matters of common knowledge. We hold that such position is not well taken. The matter related by the juror Smith was not one of common knowledge or experience but, on the other hand, was a specific, particularized, personal experience which was not known to the other jurors and should not have been made known to them. Crawford v. Detering Co., et al, 150 Tex. 140, 237 S.W.2d 615 (1951).

Statements of the nature here involved have long been held to constitute misconduct and, in connection with a motion for new trial, the only remaining questions are of law as to materiality and probable injury. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944) ; Rule 327, T.R.C.P.

There is no doubt as to the materiality of the statements made by the juror Smith. They were relevant to the issues of the existence of a back injury or the extent of such injury allegedly suffered by appellant, with the said juror giving his own experience of a similar injury suffered by him, the results of the treatment of such injury and expressing an opinion that similar treatment and results could be given and brought about in appellant’s case. As we have heretofore pointed out, the issues as to existence or extent of the back injury claimed by appellant were strongly contested. In determining the question of law as to probable injury we have reviewed the entire record in this case and it is apparent that the improper relation by the juror Smith of his personal experience with a back injury, the treatment and results thereof and his opinions based upon his own experience, could have made the difference in the jury findings as to total or partial incapacity, as well as on the finding of appellant’s wage earning capacity during the period of his permanent-partial disability.

We hold that appellant carried his burden of establishing jury misconduct, the materiality of same, that injury probably resulted to him, and that the lower court should have granted him a new trial. Texas Employers Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958); Crawford v. Detering Company, et al, 150 Tex. 140, 237 S.W.2d 615 (1951); White Cabs, et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); Rodman Supply Company v. Jones, 370 S.W.2d 951 (Tex.Civ.App., 1963, no writ hist.); Texas Employers Insurance Association v. Price, 336 S.W.2d 304 (Tex.Civ.App., 1960, writ ref. n. r. e.) ; Central Power & Light Co. v. Butler, 311 S.W.2d 871 (Tex.Civ.App, 1958, no writ hist.) ; Travelers Insurance Co. v. Carter, 298 S.W.2d 231 (Tex.Civ.App, 1957, writ ref. n. r. e.).

Reversed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Eva M. MILLER, Appellant, v. Charles E. MILLER, Appellee.
    No. 14219.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1964.
    Rehearing Denied March 11, 1964.

      House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.
    Robert I. Wilson, Burkett & Petsch, Kerr-ville, for appellee.
   BARROW, Justice.

This is a boundary line dispute between appellant, Eva M. Miller, and her former husband, Charles E. Miller, concerning land located in Kerr County, Texas. During the course of a jury trial, the trial court sustained appellee’s motion to dismiss the suit for want of jurisdiction. Appellant has perfected this appeal from the judgment of dismissal, and the sole point is whether the Kerr County District Court has jurisdiction.

Appellant and appellee were divorced on July 21, 1955, by the District Court of Bas-trop County, and that decree is now a final judgment. On July 15, 1955, the parties executed a property settlement agreement which was attached to and made a part of the divorce decree. Among other community property, the parties owned a tract of land in Kerr County containing approximately 377 acres, which is the subject matter of this controversy. The property settlement agreement provided that appellant would receive 124 acres out of the tract, including the house and improvements in connection therewith, and appellee would receive the remaining 253 acres. The agreement further provided that if a survey showed a variance from 377 acres, each party would receive or lose one-half of the amount of the variance.

The divorce decree approved the property settlement agreement and specifically set aside to appellant 124 acres of the Kerr County tract. Her tract was described in the decree by metes and bounds. In addition, the decree provided that if a survey of the tract awarded to her showed less than 124 acres, “then a line shall be drawn parallel to the N. W. line of the J. C. Hays Survey No. 117, being the S. E. line of the Selph Survey and the S. E. line of the J. R. Rarsons Survey, such line to include sufficient acreage to make up the deficiency.” Shortly after the divorce was granted, ap-pellee executed and delivered to appellant a warranty deed to 124 acres, with the same description as contained in the divorce decree. This deed, dated July 21, 1955, was duly recorded in the Kerr County deed records.

It is undisputed that a survey of the Kerr County tract showed that it contained a total of 406.32 acres, in lieu of 377 acres, and that appellant is entitled to 138.66 acres under the property settlement agreement. The dispute between the parties is over the location of the original 124 acres. Appellant relies on the description in the deed, which she asserts provides for an east-west division of the original tract, whereas appellee asserts that the agreement was to divide the tract on a north-south line, with appellant to receive her 124 acres from the southerly part and appellee’s remainder to be located in the northerly part.

Appellee urges that the true nature of this suit is for enforcement of the 1955 divorce decree and therefore the Bastrop County District Court has exclusive jurisdiction. It is seen, however, that all provisions of the divorce decree have been carried out, insofar as the land in controversy is concerned. Appellee executed a deed conveying the land to appellant. Obviously a boundary line dispute or construction of the deed could not be resolved by contempt proceedings. The divorce decree is final and the Bastrop County District Court would not have jurisdiction to change the disposition of the community property of the parties.

It is our opinion that under the pleadings of both parties, the suit involves title to land, and the District Court of Kerr County has jurisdiction. Art. 5, § 8, Texas Constitution, Vernon’s Ann.St. Art. 1906, Vernon’s Ann.Civ.Stats.; Stewart v. Patterson, Tex.Civ.App., 204 S.W. 768, writ ref. Appellant pleaded the deed to her and asked for a construction of same, and for a declaration of the rights of the parties under said deed. She specifically prayed that the court determine the boundary line between the parties. The land is located in Kerr County and the District Court of that County has jurisdiction and venue of suits for recovery of land, to remove cloud from title, or to quiet title. Art. 1995, Subd. 14, Vernon’s Ann.Civ.Stats.; Hidalgo & Cameron Counties Water Control & Imp. Dist. v. Maverick County Water Control & Imp. Dist., Tex.Civ.App., 349 S.W.2d 768.

Appellee pleaded that the deed was signed by him through fraud, accident or mistake and that he had no intention to execute or deliver such a deed. He further alleged that the deed was void because the description was too ambiguous, vague and indefinite. He prayed affirmatively for judgment can-celling the deed to appellant. This pleading involves incumbrance or cloud on title to land and the suit is required to be brought in the District Court where the land is lo•cated. Lott v. Fields, Tex.Civ.App., 236 S.W.2d 878; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477.

The trial court erred in dismissing the ■suit for want of jurisdiction. The judgment is therefore reversed and the cause remanded for trial.


author: PER CURIAM.

text:
    William B. BRAY, Jr., et al., Relators, v. Hon. Harry H. SCHULTZ et al., Respondents.
    No. 7389.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 30, 1963.
    Rehearing Denied Feb. 3, 1964.

      McCown & Cobb, Dumas, for relators.
    Eli Willis, Lovell & Lyle, Dumas, for respondents.
   PER CURIAM.

This is an original application for a writ of prohibition and ancillary orders filed by William B. Bray, Jr., joined by his father and mother, William B. Bray, Sr. and Bonnie Bray, against Judge Harry IT. Schultz, Judge of the 69th Judicial District Court, Iley Compton, Moore County Welfare Board Supervisor, and Mr. and Mrs. V. M. Brown, to prohibit these respondents from taking further action and from further prosecuting Cause No. 4177, styled In Re: William Michael Bray, an adoption, now pending in the District Court of Moore County and set for hearing on January 3, 1964. Other ancillary orders are sought by relators, however, these matters will be referred to and disposed of later.

The record before us discloses the following events leading to the filing of relators’ application:

(1) On April 4, 1961, Glenn Doris Bray, former wife of relator William B. Bray, Jr., filed suit for divorce in Cause No. 3672 in the 69th District Court of Moore County, Texas.

(2) On April 21, 1961, the trial court entered an order granting temporary custody of William Michael Bray, the minor child, to the said Glenn Doris Bray, the mother.

(3) On June 30, 1961, the trial court entered an order changing the temporary custody of said child from Glenn Doris Bray to Mr. and Mrs. V. M. Brown. Mrs. Brown is the mother of Mrs. Bray and Mr. Brown is her stepfather. From this record there are no pleadings on file to support this order.

(4) On July 25, 1961, the trial court entered an order of nonsuit as to the divorce action only and left the temporary custody of the minor child to Mr. and Mrs. V. M. Brown.

(5) On February 11, 1963, relator William B. Bray, Jr., filed suit for divorce in the District Court of Hansford County, Texas, being Cause No. 1249.

(6) On June 25, 1963, Glenn Doris Bray filed an answer and cross-action in said cause In such cross-action she prayed for divorce and attorney’s fees but made no request for the custody of the child.

(7) Subsequently, Mr. and Mrs. Brown intervened in said Cause No. 1249 and prayed for custody of said minor child.

(8) On September 20, 1963, the District Court of Hansford County entered judgment granting relator William B. Bray, Jr. a divorce from Glenn Doris Bray and awarded the said relator custody, and.control of said minor child. The judgment further provided that intervenors, Mr. and Mrs. V. M. Brown, were to relinquish the care, custody and control of said child to William B. Bray, Jr. on October 1, 1963. The court further provided that the said child should remain in the home of Mr. and Mrs. William B. Bray, Sr. until their son established his own home. Notice of appeal was given by Mr. and Mrs. V. M. Brown, but said appeal was not perfected and that judgment has become final.

(9) On September 30, 1963, Iley Compton, Moore County Child Welfare Supervisor, on behalf of the Moore County Child Welfare Board, filed an injunction suit in the District Court of Moore County being Cause No. 4159. The trial court issued a temporary restraining order restraining and enjoining relators, William B. Bray, Jr., William B. Bray, Sr. and wife, Bonnie Bray, from removing the minor child from the home of Mr. and Mrs. V. M. Brown, and from taking custody of said child.

(10) On October 21, 1963, relators, defendants in said Cause No. 4159, filed their answer and plea of privilege seeking the removal of the case to Hansford County, Texas. Respondent, Iley Compton, timely filed a controverting plea.

(11) On November 8, 1963, the trial court in a consolidated hearing on the plea of privilege and motion for temporary injunction, entered judgment overruling relators’ plea of privilege and granted the temporary injunction. From said judgment the rela-tors have timely perfected their appeal to this Court styled William B. Bray, Jr. et al. vs. Iley Compton, Cause No. 7385, the record in said cause having been filed in this Court on December 4, 1963.

(12) On November 18, 1963, an adoption proceeding was filed by Mr. and Mrs. V. M. Brown in Cause No. 4177, in the District Court of Moore County seeking to adopt the said minor child, William Michael Bray. Upon the filing of said petition, the trial court appointed respondent Iley Compton as the investigator, and set the hearing for the adoption for January 3, 1964.

Courts of Civil Appeal are given authority to issue writs of prohibition and other similar writs by Article 1823, Vernon’s Ann.Tex.St., when necessary to enforce their jurisdiction. The writ of prohibition sought here is in its very nature an extraordinary remedy which will be granted only in cases of necessity to protect the jurisdiction of this Court against encroachment by parties or other courts. Stone v. Kuteman, (Tev.Civ.App.), 150 S.W.2d 107; Union Bank & Trust Co. of Fort Worth v. Smith, (Tex.Civ.App.), 166 S.W.2d 928.

The adoption case is obviously a suit to relitigate the issue of care and custody of the minor child, William Michael Bray. The injunction suit filed by the Moore County Welfare Board sought to nullify and render meaningless the final judgment of the Hansford County District Court. All parties in the present proceeding were before the Flansford County District Court save and except the District Judge of Moore County and Iley Compton. The jurisdiction of the Hansford County District Court to hear and determine all issues before it cannot be questioned. We know of no legal basis whereby the Moore County Welfare Board or its supervisor could have been properly made a party thereto. Such boards are not legal entities as such but are simply authorized to “promote * * * the enforcement of all laws for the protection of defective, illegitimate, dependent, neglected and delinquent children; to co-operate to this end with Juvenile Courts * * * and to take the initiative in all matters involving the interest of such children where adequate provision therefor has not already been made.” Article 695a, Section 2, V.A.C.S. No such conditions are pleaded or found in this record.

This Court’s jurisdiction over the parties and the subject matter of the present controversy attached upon the filing of the ■appeal in this Court of the injunction case in Cause No. 4159 from Moore County. Relators perfected that appeal and the record of the case was filed in this Court on December 4, 1963. That case not only involves the custody of the same minor child, but attempts to either challenge or ignore the final judgment of the Hansford County District Court. In the later court’s judgment of September 20, 1963, the Court denied Mr. and Mrs. V. M. Brown, inter-venors, request for custody of the child and further found relator, William B. Bray, Jr., “is a fit and proper person to have the care, custody and control of said child.” The relators’ appeal of the adverse judgment in Cause No. 4159 from Moore County clearly invokes this Court’s jurisdiction. The prosecution of the adoption case on January 3, 1964, would interfere with our jurisdiction. Respondents contend the writs here being sought should be denied because of the fact a judgment which may be rendered in the adoption case would be appeal-able. Undoubtedly the latter assertion is correct, but this Court, in view of the many proceedings already had between these parties, cannot rest a decision in this cause on such speculation. If this Court’s jurisdiction is jeopardized, we cannot anticipate a future proceeding which would have the effect of re-instating our jurisdiction. Rela-tors are denied leave to file a writ of mandamus. Such relief is sought to prohibit the enforcement of the temporary injunction issued in Cause No. 4159. As stated above that cause is now in this Court on appeal.

It is therefore ordered that all respondents be and they are hereby prohibited from prosecuting and hearing the adoption proceeding by Mr. and Mrs. V. M. Brown in Cause No. 4177 in the District Court of Moore County, Texas, styled In Re: William Michael Bray. All other relief not specifically granted is denied. The costs of this proceeding will be taxed against respondents Mr. and Mrs. V. M. Brown.

Relators’ application for writ of prohibition is granted.


author: PRESLAR, Justice.

text:
    Martha Dixon GARDNER, Appellant, v. Wilburn C. BAILEY, Jr., Appellee.
    No. 5593.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1964.
    Rehearing Denied March 4,1964.

      Edwards, Belk, Hunter & Kerr, El Paso, for appellant.
    Lipscomb, Fisk & Cox, El Paso, for ap-pellee.
   PRESLAR, Justice.

This is an automobile collision case in which plaintiff, Wilburn C. Bailey, Jr., recovered judgment against defendant, Martha Dixon Gardner, for injuries to plaintiff’s wife arising out of a collision between a car driven by her and one driven by Mrs. Gardner. The collision occurred on Chaffee Road, within the confines of Fort Bliss, Texas, a United States military reservation. Trial was before the court without a jury, on pleading of the plaintiff alleging certain acts of common law negligence, and pleading of the defendant consisting of a general denial and allegations of contributory negligence. There was a cross: action by the defendant, but the court’s denial of relief on it is not appealed.

Defendant, as appellant, assigns as error certain findings of fact and conclusions of law filed by the court. Summarized, the-findings of fact and conclusions of law of the trial court are as follows: that the-plaintiff’s wife, Elaine W. Bailey, was. driving their automobile in an easterly direction in the left-hand lane of Chaffee-Road, when the motor vehicle driven by defendant Martha Gardner emerged from the-exit of the parking area of Building 777 on Chaffee Road, intending to turn left in a westerly direction, and collided with and ran into the right front grill and fender of the motor vehicle driven by Elaine W. Bailey; that there was a plainly visible stop-sign at the exit on to Chaffee Road; that Martha Gardner failed to keep a proper-lookout as a person of ordinary care and', prudence would have kept under the same- or similar circumstances; that Martha Gardner failed to yield the right of way to Elaine W. Bailey; that plaintiff Elaine-W. Bailey kept a proper lookout as a person of ordinary prudence would have kept, under the same or similar circumstances,, and was guilty of no act of contributory negligence and had the motor vehicle she was. operating under proper control; that as a. proximate result of the collision Elaine W. Bailey suffered in the past mental and physical pain, loss of earning capacity, incurred medical expenses, damage to plaintiff’s automobile, and will, in the future, suffer such pain and incur medical expenses and loss of' earning capacity; that the sum of $9,263.53 would reasonably compensate the plaintiff for the injuries, and plaintiff was entitled to. recover such amount from defendant; that the defendant Martha Gardner was under a common-law duty to keep a proper lookout and her failure to do so was a proximate cause of the collision; that she was under a common-law duty to yield the right of way and her failure to do so was negligence which proximately caused the . collision;. that Elaine W. Bailey was guilty of no act ■of proximately causing the collision.

Appellant presents twelve assignments of •error, all based on the court’s findings of fact and conclusions of law, so that it is necessary to discuss the evidence in great ■detail for an understanding of our conclu.sion that the judgment should be affirmed.

Appellant urges that the evidence is insufficient to support the court’s finding •that she failed to keep a proper lookout. 'The evidence is that as appellant approached the exit on to Chaffee Road she intended to -turn to her left, go west on Chaffee Road, and that a line of cars headed easterly on 'the outside lane had stopped for a red light to the east of the exit, but had left the ■exit open. There was a car in front of her, .and the driver of a car situated just west -of the exit signaled that car to proceed •into Chaffee. That car proceeded into Chaf-•fee and appellant pulled up to the exit and stopped and looked both ways. The driver ■of the car situated west of the exit signaled her on and she pulled out into the intersection past that car, and had turned about 20 degrees, when she collided with the ap-pellee’s car.' The left front of appellant’s car collided with the right front of appel-lee’s car. Appellant’s immediate supervisor, or “boss”, was behind her and corroborated her testimony that she looked both to the left and right while stopped at the stop sign. Appellee’s car was in the inside lane and going east on Chaffee Road at the time of the collision. Appellant is insistent that her view was not blocked and that she could clearly see in the direction •she intended to turn, and from which direction appellee was approaching. In brief, •appellant says she could see, she looked, "but she did not see the approaching car. It is the duty of a driver about to enter a favored street not only to look, but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including ■the speed and proximity of vehicles, approaching from either direction. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. In that case it was held that the facts and circumstances, including testimony that the person, after stopping, entered the intersection and drove forward slowly, steadily and directly into the path of the other automobile, supported the jury’s findings that the collision was proximately caused by the failure to keep a proper lookout. In a fact situation similar to the case at bar the Supreme Court, speaking through Justice Cul-ver, said:

“The findings can be reconciled on the basis that Mrs. Ethridge was not negligent in failing to keep a proper lookout while stopped and before attempting to enter the intersection, but that she was guilty of negligence in failing to keep a lookout thereafter. The obligation rests upon the automobile driver not only to keep a proper lookout while stopped and before starting to cross, but at all times thereafter until the crossing has been negotiated in safety. Certainly one is negligent who looks both ways while stopped before entering the intersection and then proceeds blindly ahead.” Traywick v. Goodrich, 364 S.W.2d 190 (Tex.S.Ct., 1963).

In the case before us, if we consider all the facts and circumstances as shown by all the evidence, we arrive at the conclusion that the findings of the court in this regard is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. The mere fact that an accident happened is not evidence of failure to keep a proper lookout; but here, there was more than the mere happening. It was a bright, clear day. Appellant intended to turn to the west; appellee’s car was approaching from that direction; it was a moving object; appellant failed to see it; her attention should have been directed in that direction — the direction which she intended to turn — and was, in fact, in the process, of doing so when the collision occurred. The trial court’s conclusion that the appellant’s failure to keep a proper lookout was the proximate cause 'of the collision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, when all the evidence is considered. Appellant Martha Gardner was insistent that she could see, and the evidence is that had she seen, she was in a position to avoid the accident by not pulling out, or by stopping; and but for her failure to see the approaching car, the accident would not have happened. Appellant’s Points I and V are accordingly overruled.

Appellant urges the error of the trial court in finding that the appellant failed to yield the right of way to appellee’s wife, and that such failure was negligence and a proximate cause of the accident. We hold that such findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. It would not add to an understanding of the case to again set out, in detail, more of the evidence in this now too long opinion, but it is clear from the evidence that Chaffee Road was the favored street, in that it was a four-lane thoroughfare, heavily traveled at the time, while the way upon which appellant was traveling was an exit way from a parking area, and which came from nowhere and went nowhere except to empty out on to Chaffee Road. If the statute were controlling here (Vernon’s Ann.Civ.St. Art. 6701d), the question of right of way would be determined by sub-section 74, regarding vehicles entering highways from private roads or driveways, as distinguished from right of way at intersections generally. In the absence of statutory control, the trial court correctly held that appellant was under a common law duty to yield the right of way, and that she was thus under a duty to exercise that degree of care as would have been exercised by an ordinarily prudent person. In pulling into the path of the car on a favored street, when such car was in hazardous proximity, she was negligent and -such negligence was a proximate cause of -the accident. Appellant’s Points of Error numbered II, VI, VII, and VIII are overruled.

Appellant brings forward as error the finding of the trial court that Elaine W. Bailey kept a proper lookout, and by separate points of error says there is no evidence to show this, and that the finding is against the great weight and preponderance of the evidence. We overrule the contention of no evidence because there is evidence of probative force to support such finding. We are also of the opinion that such finding is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust considering all the evidence. The direct evidence of what Mrs. Bailey was doing at the time-just prior to the collision comes from her,, an interested witness, but it describes things that the other witnesses also describe. The trier of facts, as the sole judge of the credibility of the witnesses, could believe or disbelieve ; and he apparently believed the witness Bailey. Mrs. Bailey testified that she was keeping a lookout for cars in front of her; that she was looking straight ahead; that she observed the line of cars along the right-hand lane of Chaffee Road; that she was slowly passing such cars; that there were a number of such cars, although she did not know how many, and that she saw the car at the exit way (from which the signal was given to Mrs. Gardner to proceed) ; that she observed the traffic light at the intersection of Chaffee Road and Pleasanton, but did not remember whether it was red or green; that she saw the car of Mrs. Gardner as it proceeded from behind the line of cars on her right, and she saw an approaching car in the lane to her left. From such evidence we think the trier of facts might reach the conclusion which he did. Points III and IV are accordingly overruled.

All other points of error have been considered and are overruled.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    The STATE of Texas, Appellant, v. Harris E. VICK et ux., Appellees.
    No. 14291.
    Court of Civil Appeals of Texas. Houston.
    Feb. 13, 1964.
    Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold and F. William Colburn, Asst. Attys. Gen., Austin, for appellant.
    E. R. Wright, Huntsville, for appellees.
   WERLEIN, Justice.

This is a condemnation suit brought by the State of Texas, acting by and through the State Highway Commission of Texas, against Harris Eugene Vick and wife, Vivian Vick, to condemn approximately 19.-31 acres of land owned by them in Walker County, Texas, for the construction of Interstate Highway 45. After the taking there will remain to appellees approximately 17.2 acres on the northwest side of the Highway and approximately 98.62 acres on the southeast side thereof.

The jury found in answer to Special Issues that the market value of the strip of land taken was $7,000.00; and that the market value of appellees’ remaining land after the taking remained the same. We have read the statement of facts and find that there is no evidence that will support the jury’s finding that the market value of the land taken was as much as $7,000.00. Ap-pellee Vick’s testimony was that the market value of the land taken was $150.00 per acre, or a total of $2,896.50., He did not testify as to the length or value of the fence that was actually on the land taken, but included in his estimate the cost of fences apparently later built along the right of way. Witness Graham testified that he figured the value of the fence on the land taken at $162.30. This was the highest value placed on the fence that was on the land taken. This amount added to the market value of the land taken, as testified to by Mr. Vick, makes a total of $3,058.80. The other witnesses testified to a lesser market value for the land taken than the value placed thereon by Mr. Vick. The finding of $7,000.00 as damages for the land taken is, therefore, excessive in the amount of $3,941.20, thus requiring reversal. Rule 440, Texas Rules of Civil Procedure; Carter v. Texarkana Bus Company, 1956, 156 Tex. 285, 295 S.W.2d 653. Although the record indicates that appel-lees have suffered considerable damage to their remaining land as a result of the taking, neither they nor appellant have assigned as error the finding of the jury that the market value of the remaining land as a result of the taking remained the same. It is suggested that if this case is retried, the issues submitted should substantially conform to the form suggested by our Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. See also City of Austin v. Cannizzo, 1954, 153 Tex. 324, 267 S.W.2d 808.

Appellant has assigned as error the admission by the court of evidence that appellees had sold to the State Highway Department, prior to the condemnation suit, a parcel of land consisting of 2.97 acres adjoining the tract condemned but not involved in the present suit, because the sale of such tract of land was made under threat of condemnation. The evidence shows that the sale was made by Mr. Vick to the State Highway Department, but fails to disclose when the sale was made, or that it had any relation to the acquisition of land by the State Highway Department for the construction of Interstate Highway 45. In view of the condition of the record, we are unable to say that the admission of such evidence was error. In view however, of the likelihood-of another trial, it is pointed out that our courts have uniformly held that prices paid for property by a condemning authority are not admissible to establish market value of the property being condemned because such sales are not free and voluntary. Menchaca v. San Antonio Independent School District, Tex.Civ.App., 297 S.W.2d 363, writ dism.; Robards v. State, Tex.Civ.App., 285 S.W.2d 247, writ, ref., n. r. e.

Appellees are given ten days from this date in which to file a remittitur of $3,941.-20. If such remittitur is filed within the time indicated, the judgment of the trial court will be reformed accordingly and, as. reformed, will be affirmed; otherwise, the-judgment of the trial court will be reversed and the cause remanded for a new trial.

Supplemental Opinion

On February 13, 1964, we indicated by am opinion in writing that if appellees did not file a remittitur of $3,941.20 within ten days from such date, the judgment of the trial court would be reversed and the' cause remanded.

Appellees have failed to file the suggested remittitur within the time indicated, therefore the judgment of the trial court is reversed and the cause remanded for a new trial.

Motion for rehearing may be filed by either party within fifteen days after this date.

Reversed and remanded.


author: RENFRO, Justice.

text:
    AMERICAN GUARDIAN INSURANCE COMPANY, Appellant, v. John Thomas GROVES, Appellee.
    No. 16491.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1964.

      Stigall & Maxfield and John F. Maxfield, Dallas, for appellant.
    Jimmy P. Horany, Archer City, for ap-pellee.
   RENFRO, Justice.

Plaintiff John Thomas Groves sued American Guardian Insurance Company, an old line legal reserve stock company, for 75 per cent of the premiums which he had paid to Vernon Mutual Life and Accident Association, a local mutual insurance company. Previously, American Guardian Life Insurance Company, a state-wide mutual, had reinsured Vernon Life and Accident Association. In a non-jury trial, judgment was rendered for the plaintiff.

In 1960 the membership of American Guardian Life Insurance voted to accept a plan whereby the Company was dissolved, its policies voided and assumption certificates as issued by an old line legal reserve stock company be offered in lieu of the original policies to each policyholder. The Insurance Commissioner approved the plan.

On March 8, 1960, American Guardian Insurance Company, successor to American Guardian Life Insurance Company, mailed assumption certificates, in lieu of policies, to the policyholders of the dissolved company, and on March 8, 1960, the president of American Guardian Insurance Company mailed letters to the policyholders in which each was advised he had a right to accept the legal reserve insurance, or within sixty days return the certificate and request his actuarial portion of the mortuary fund

The certificate provided that plaintiff would have the same coverage as he had under the mutual policy for a two year term beginning December 31, 1959, and ending December 31, 1961, after which time plaintiff had a choice of three plans set out in the assumption certificate.

Plaintiff did not return the certificate, and did not designate a choice of plans. He continued to pay the quarterly premiums through 1961.

On November 12, 1962, plaintiff filed suit against American Guardian Insurance Company for 75 per cent of the amount of premiums paid by him to his original insurer, the Vernon Mutual Life and Accident Association. The original policy provided that at the age of 70 plaintiff had the option of receiving from the Company an amount equal to 75 per cent of the premiums paid. Although plaintiff reached the age of 70 while Vernon Mutual was still in existence, he never exercised his option to receive the percentage of premiums paid.

Article 14.61, Insurance Code, V.A.T.S., provides: “The standing of all claims under the former association shall be preserved unimpaired under the new corporation, and all debts, liabilities and duties of the former association shall thenceforth attach to the reorganized corporation and may be enforced against it to the same extent as if said debts and liabilities had been incurred or contracted by the new corporation, except that the liabilities created under the terms of policies or certificates outstanding at the date of conversion or reorganization may be altered in accordance with the provisions of said plans approved by the Board of Insurance Commissioners; * * (Emphasis added.)

It has been held that where mutual benefit association transferred all of its policyholders and assets to insurance company which agreed to rewrite policies according to its own rates and transfer was duly approved and ratified and certificate of insurance had made by-laws part of insurance contract, beneficiary was only entitled to recover benefits in accordance with rewritten policy notwithstanding benefits were reduced thereby, where no fraud was perpetrated upon insured. Simon v. Atlanta Life Ins. Co., Tex.Civ.App., 204 S.W.2d 201.

It is stated in 33 Tex.Jur.2d, p. 47, § 604: “The reorganized company (from mutual to legal reserve) acquires all of the assets, the rights, privileges, and franchises of the former company; and the reorganized company likewise becomes liable to all claims against the former company with the exception that liabilities created under the terms of outstanding policies at the time of conversion for reorganization may be altered in accordance with plans approved by the state board of insurance.”

As previously stated, the plan approved by the membership was duly approved by the Board of Insurance Commissioners.

We have studied the entire record with great care and have reached the conclusion that plaintiff did not have a cause of action against American Guardian Insurance Company for the relief sued for. In our opinion, under the Insurance Code and the holding in Simon v. Atlanta Life Ins. Co., supra, we must reverse the judgment of the trial court and render judgment that plaintiff take nothing.

Reversed and rendered.


author: HUGHES, Justice.

text:
    GREAT WESTERN LOAN AND TRUST CO., Inc., Appellant, v. Thomas J. MONTGOMERY, Appellee.
    No. 11162.
    Court o£ Civil Appeals of Texas. Austin.
    Feb. 19, 1964.
    Rehearing Denied March 11, 1964.

      Leonard L. Franklin, Austin, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, for appellee.
   HUGHES, Justice.

This is a venue case in which appellant, Great Western Loan and Trust Company, Inc., sued Thomas J. Montgomery, a resident of McLennan County, on a promissory note executed by him and Leola Montgomery in the sum of $468.96 payable in twenty four monthly installments of $19.54 each. This note reads, in part, “Waco, Texas, June 28, 1962 Waiving Grace, for value received, I, we, or either of us promise to pay to the order of Family Freeze of Central Texas at Great Western Loan & Trust Co.” the amount and in the manner indicated. There is nothing in the note from which the location of Great Western Loan & Trust Co. can be ascertained.

The Trial Court sustained appellee’s plea of privilege and transferred this case to McLennan County, the count of his residence.

The trial was non-jury. There is no statement of facts. There are in the record findings of fact and conclusions of law made by the Trial Judge.

The findings of fact disclose that when the note in suit was executed appellant had its principal office and place of business in San Antonio, Bexar County, and that it had and maintained offices in seventeen other counties in Texas, including Travis County, the county in which this suit was instituted, but not including McLennan County.

This note, by its terms, is not payable in any identifiable county. By extrinsic evidence it is shown that the place of payment could be in one or all of eighteen counties. These facts do not show a contract in writing performable “ * * * in a particular county, expressly naming such county, or a definite place therein, by such writing * * * ” as required in sub. 5, Art. 1995, Vernon’s Ann.Civ.St., in order to constitute an exception to the general rule that a person is entitled to be sued in the county of his residence. Dowd v. Dowd, 359 S.W.2d 287, Texarkana Civ. App., writ dism.

The Trial Court also made a fact finding that appellee made four payments on the note in suit at the office of appellant in Austin, Texas.

It is appellant’s contention, as we understand it, that this fact finding supports the conclusion that the note contains identification of a definite place of payment, to wit, its office in Austin, Texas, and it cites, Strange v. General Motors Acceptance Corporation, 2 S.W.2d 255, Dallas Civ. App., writ dism. (1928) to sustain its position. This case was decided before the present wording of sub. 5, Art. 1995, was enacted. It holds, under facts strangely analogous to those presented here, that place of performance of a contract performable in several counties may be by parol evidence of conduct of the parties shown to be performable in a particular county. We are inclined, as was the Amarillo Court of Civil Appeals in General Motors Acceptance Corporation v. Hunsaker, 50 S.W.2d 367, writ dism., not to follow the Strange decision but rather to follow the case of Turner v. Ephraim, 28 S.W.2d 608, by the El Paso Court of Civil Appeals, wherein it was stated:

“ * * * ‘a particular County,’ as used-in subdivision 5 of article 1995, R.S., contemplate and mean a county fixed and certain at the time the contract is executed and not a county subject to change by subsequent events within the control of the obligee. A contract of the latter nature is wholly uncertain as to the county in which it is to be performed, and certainly not within the spirit of subdivision 5.”

A written contract which leaves to either party, the obligor or the obligee, the privilege of selecting the place of performance in one of two or more counties is not, in our opinion, a contract performable in a “particular county, expressly naming such county, or a definite place therein, by such writing” as required by sub. 5, Art. 1995, to fix venue outside the County of a defendant’s residence.

The judgment of the Trial Court is affirmed.


author: LANGDON, Justice.

text:
    TWIN CITY BOWLING LANES, INC., et al., Appellants, v. C. I. T. CORPORATION, Appellee.
    No. 16495.
    Court of Civil Appeals of Texas. Port Worth.
    Feb. 14, 1964.

      Allred & London, and Marvin F. London, Bowie, for appellants Twin City Bowling Lanes, Inc., and W. Ray Harlow.
    Joe H. Cleveland, Bowie, for appellant Ray 'Whittington.
    Benson & Benson, and T. B. Coffield, Bowie, for appellee.
   LANGDON, Justice.

This is a suit on a promissory note and foreclosure of liens on real and personal property securing the payment thereof. The note sued upon was fully described in the appellee’s petition, including the commencing date of the 84 successive monthly installments, the provisions relating to interest, attorney’s fees, indorse-ments, the unpaid balance, and assignment and transfer of the note and liens. It also contained appropriate allegations and prayer for payment of the unpaid balance with interest and attorney’s fees provided by the terms of the note.

The appellants answered by way of special exceptions all of which were overruled by the court and by general denial. Trial was to the court without a jury.

The note and the indorsements thereon together with the instruments evidencing the liens and the assignments were placed in evidence. Judgment was entered for the appellee in the amount of the unpaid balance alleged to be due plus interest and attorney’s fees as provided by the note.

We affirm.

The appellants in their brief concede that there is no dispute as to the execution of the note or the ownership thereof and they raise no question as to correctness of the balance due upon the note.

They contend the court erred in rendering judgment on the pleadings in the absence of evidence reflecting the amount due on the note, a proper calculation of the interest, the employment of attorneys and the amount of reasonable fees therefor. That the note or copy including the reverse side showing credits and dates or else a ledger sheet showing such credits should have been attached to appellee’s petition and absent such attachments the contents of such instruments should have been set out haec verba in the petition.

Rule 59, Texas Rules of Civil Procedure, provides that notes and other written instruments, constituting, in whole or in part, the claim sued on may be made a part of the pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations and that such pleadings shall not be deemed defective because of the lack of allegations which can be supplied from examination of the written instruments so attached or filed.

While Rule 59, T.R.C.P., permits filing of or attachment of notes and other instruments to the petition or their incorporation into the body of the petition it does not require it. Aetna Insurance Company v. Klein, Tex.Civ.App., 318 S.W.2d 464, reversed on other grounds, 160 Tex. 61, 325 S.W.2d 376; First National Life Insurance Company v. Vititow, Tex.Civ.App., 323 S.W.2d 313, dismissed.

It was not an absolute necessity that a note be set forth haec verba in the pleadings prior to the adoption of the present Rules of Civil Procedure. Only the provisions which were material and essential to a determination of the controversy were required. Ramsey v. Wahl (Com. of App.), 235 S.W. 838.

Thus if pursuant to Rule 45, T.R. C.P., the petition is in such concise and plain language as to give fair notice to the opponent under the allegations as a whole it is not necessary to attach to or incorporate the instruments sued on in the petition.

In pleading to a preceding pleading a party shall set forth affirmatively payment and any other matter constituting an avoidance or affirmative defense. Rule 94, T. R.C.P.

“When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.” Rule 95, T.R.C.P.

Absence of a plea of payment renders evidence as to payment inadmissible. King v. Cash, Tex.Civ.App., 156 S.W.2d 307; Erback v. Donald, Tex.Civ.App., 170 S.W.2d 289; Kothmann v. Phipps, Tex.Civ.App., 214 S.W.2d 201.

Possession of a note at the time of suit, where there are no marks or in-dorsements on the note to show payment, is prima facie proof that the note is unpaid. Where the defendant interposes a plea of payment the burden of proving the payment is imposed upon him. 9 Tex. Jur.2d, pp. 315, 316, § 288.

The appellee’s petition was couched in plain and concise language and gave fair notice to the appellants of the claim upon which the cause of action was based in accord with Rule 45, T.R.C.P.

The appellee’s petition alleged the face amount of the note and the amount which according to their books was unpaid. Under the pleadings the appellee limited his recovery to the sum alleged to be due. The burden then rested upon the appellants to affirmatively plead and prove the payment or release of any additional sums which would reduce the amount of the unpaid balance alleged to be due. Southwestern Fire & Casualty Company v. Larue, Tex., 367 S.W.2d 162.

It was held in Krueger v. Klinger, 10 Tex.Civ.App. 576, 30 S.W. 1087, that “There being no testimony before the court but the note sued on, the indorsement, thereon, and the credits admitted in the petition, it was not error to charge the jury to find for plaintiff, against defendants, for ‘the balance due on the note, after deducting all credits set forth in the petition.’ ”

When a note stipulates the attorney’s fees as it does in the present case a holder is prima facie entitled to recover the sum stipulated. If there is any reason why such fees should not be paid it is a matter of affirmative defense. Thus, if a petition contains the necessary allegations for recovery of stipulated attorney’s fees they may be allowed in the absence of plea and proof that the amount stipulated is unreasonable. 9 Tex.Jur.2d, pp. 295, 296, § 273, and authorities cited. See also 9 Tex.Jur.2d, p. 277, § 256.

In our opinion the trial court did not commit error in overruling the appellants’ exceptions levelled at the pleading of the appellee or in entering judgment for ap-pellee on the pleadings and proof presented. Judgment is accordingly affirmed.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Carroll Wayne GOACHER, Appellant.
    No. 49930.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.

      Robert B. Randolph, St. Joseph, for appellant.
    Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

The defendant was convicted of First Degree Murder and sentenced to life imprisonment. He was represented at the trial by three unusually diligent appointed counsel, and here by one equally so. Since it is actively urged that the evidence was insufficient for such a conviction, we find it necessary to state the somewhat complicated facts in detail.

Sylvester Ralph Puckett, a filling station operator in St. Joseph, sixty-six years of age, was killed in his station at some time between 7:00 a. m. and approximately 8:30 a. m. on November 3, 1961. He was slain by being brutally beaten about the head with a “semi-sharp” instrument, resulting in an “egg-shell” or crushing fracture of the skull with “multiple breaks all over the skull” and visible destruction of brain tissue. The undertaker testified that he counted thirty-three cuts on the victim’s head. Mr. Puckett died shortly after reaching a hospital. There was little or no controversy over the fact that the blows were inflicted by a bloody, metal tire tool found by the police on the station floor. The filling station was at the corner of 8th and Monterey Streets. Mr. Puckett had driven his wife from their home to the bus line at 6th and Monterey where he left her about 6:50. She testified that he then had on his person $50 to $60, some in his billfold and some pinned in a shirt pocket, and that after his death she only got back “some little items” and pieces of tobacco. No billfold was found at the hospital.

The defendant lived across the Missouri River bridge in Elwood, Kansas, with his mother, who was a nurse’s aid at the Methodist Hospital in St. Joseph. He was 16 years old at the time of the death of Puckett, 17 at trial. Apparently, after defendant reached the sixth or seventh grade, he was transferred to a school for “special education.” He had quit school prior to the occurrence in question here. He went' to Chicago in October 1961, to look for a job, but had come home about a week prior to November 3. It was apparently his custom to go from his home to St. Joseph substantially every morning to take his girl friend, Linda Linder, to school; he had no car, getting there by hitchhiking or as best he could; then, if her brother’s car was in operating condition, he would drive her to school, otherwise he would “walk” her to the bus stop, about two blocks away. Linda was in the 11th grade. The Linders lived at 2140 South 9th; their home was eight blocks from Mr. Puckett’s filling station.

One of the principal controversies arose over the testimony as to the times of defendant’s various activities on that morning; coupled with this was the fact that “Bud” Linder’s car would not start because the starter had been removed. We digest that testimony briefly. Linda testified for the defendant that he arrived at her house about 7:00 o’clock, “walked” her two blocks to the bus corner, and left •her. Linda’s sister Barbara (put on the stand by the State) testified that defendant came about 7:00, walked Linda to the bus line, and came back about 7:10 or 7:15; that he sat down for a while and then went ■outside to see about fixing her brother's car, after which he was “in and out”; that he was still around when she sent the “kids” to school about 8:25, and that he left about ten or fifteen minutes before nine. When asked if she had not previously stated that the brother’s car (and defendant) were gone about 8:00, she testified that she had ■been informed by a woman named “Pat” not to tell “exactly what I knew,” and not to tell everything. Jerry Blake (produced by the State), who lived just west of the Linders, testified that on November 3, 1961, ■defendant came to his house “around 7:30 a. m.,” for help in starting a car, but that his own battery was down; that they both went across the alley to a garage or repair shop and tried to borrow a booster battery, but were told to come back later; that he, Blake, went home and defendant went back to Linders; that about 8:25 they went back to the shop, got the battery and started Blake’s car, whereupon he pushed the Linder car (with defendant driving) and got it started; that he last saw defendant about 8:30.

A driver for Budweiser Distributors, Paul Hill, drove his truck into the driveway of Puckett’s station at about 8:30 a. m. He knew Puckett. As he stopped, he first stepped into the interior of the truck to replace some yeast which had fallen down. Either just before or just after he arrived a Mercury car (described variously as green or blue, but nevertheless the Linder car; pulled into the station. While Hill was inside the truck defendant came over and said that “something was wrong with the old man.” Hill then saw Puckett standing at the window bleeding, went across -the street to “Ross-Frazier’s” (an auto supply store) and asked someone there to call the police; he returned, went into the station and tried to help Puckett. He managed to get him seated and tried to check the flow of blood from his head. Apparently defendant waited outside during most of that time, but he may have also been in the station. After a few minutes various police officers arrived; Puckett’s head was covered with blood and he was bleeding profusely; he was taken away in an ambulance. Before he left, the police tried to talk to him, but got little response; two of the officers testified that Puckett said to one officer, “Leo, I don’t know why he did it”; Paul Hill testified that Puckett said, “I don’t know why they * * On the floor of the station were two pools of blood; a bloody tire iron was found on the floor in one of these, and there were spots of blood on a vending machine and on the lower part of the front door. Some hair was found on the tire tool. There was some testimony that the cash register was open and disarranged. The police talked to defendant briefly; he stated that he had just come there to get air in a tire, had discovered Puckett’s condition, and had asked Paul Hill to call the police because he had no money; no blood was observed on defendant’s clothing and the witnesses disagreed as to whether he seemed nervous or excited. Appellant was then wearing jeans and a rather long, dark jacket.

An employee at “Ross-Frazier’s” testified that defendant came there after the ambulance left, wanted his car pushed and, when he heard them discussing Puckett’s injury, said, “I hit him on the head,” and repeating, — “I hit the old s. o. b. in the head”; also, that defendant’s eyes were glassy, and that he had a blank stare. A customer there at the time repeated defendant’s statement as, — “I am the guy that killed him.” Both hearers were somewhat shocked, and the employee testified that he reported it to his boss, to the detectives who came there, and later to “juvenile authorities.” It seems apparent that when defendant finally got the Linder car pushed and started he went back to the Linder house where he stayed a while; at about 11:30 he went to the home of a friend, Gary Proctor, in St. Joseph, still using the Linder car. From this point we take up Gary Proctor’s testimony as to the events of that day. Gary was 19 years old and worked nights. He testified that defendant asked him if he knew Mr. Puckett who had been hit in the head, but Gary did not. They went to defendant’s home in Kansas, where Gary waited in the car about fifteen minutes; defendant came out with a small pocketbook, some one dollar bills and four or five dollars in change; thence they proceeded to a filling station where defendant bought one dollar’s worth of gas; thereafter they went to the “Tin Barn” where Gary made a $10 payment on his car. The crux of Gary’s testimony, however, was that enroute to Kansas and on the bridge defendant “pulled a dark leather billfold out of his left hand coat pocket and threw it out of the car window” by throwing it up over the top of the car “to the north”; that it “hit that side railing and glanced off and landed on the bridge.” Gary asked defendant “why” he did this, and defendant said that it was “just an old billfold he found.” When they got back to Gary’s home they ate lunch, then went to a filling station in an effort to get a hoist to repair the car; being unsuccessful, they went to the Methodist Hospital where defendant went in to see his mother; he came out in 10-15 minutes, saying that “the old man was dead.” Gary left defendant and went to work about 4:00 p. m. He positively identified the billfold produced in evidence as the one he saw defendant have in the car. There was much impeaching testimony to the effect that (among other things) Gary had testified in his deposition that defendant only bought forty-six cents worth of gas with pennies; that it only “looked like” he had thrown something out of the window of the car, and that the police had intimidated him. We note here that the verity of Gary’s trial testimony was solely a matter for the jury; and, incidentally, he testified at the trial that defendant’s counsel had made him “afraid of him” at and just prior to the taking of his deposition. He further testified at the trial that he first went to the police “of my own free will” to tell about the billfold. He later confronted defendant on November 6, when the latter was being questioned by the police. Defense counsel have filed here an affidavit of Gary Proctor supposedly repudiating his trial testimony; this was executed in July, 1963, long after the judgment and sentence; it was never presented to the trial court, and it is of no relevancy whatever here. It is wholly unnecessary to relate all the controversies shown in this voluminous record concerning Gary’s testimony.

The billfold introduced in evidence was picked up on the highway bridge by a nonresident traveler; he turned it in to an official at the Port of Entry,.who promptly notified the St. Joseph police; they sent over and recovered it on November 3, the date of Mr. Puckett’s death. That billfold was positively identified at the trial, not only by Gary Proctor but by Mrs. Puckett.

On November 6, 1961, oral and written confessions were obtained from defendant. We shall not attempt to digest all the testimony dealing with the circumstances of the confessions. At the trial a lengthy hearing was held outside the presence of the jury in order to determine the admissibility of the confessions. The Court ruled that the confessions were prima facie admissible. Thereafter the substance of the same testimony was submitted to the jury, with some exceptions. For the State this testimony was: that, since defendant was a juvenile, the juvenile officers participated in all such proceedings and that he was eventually “booked” by the juvenile officer; that defendant came in voluntarily on Saturday and Sunday (November 4 and 5) and was questioned, remaining wholly free to come and go, which he did do; that on November 6 he came in by request at about 9:00 a. m. and was intermittently questioned from perhaps around 10 :00 until his written statement was completed in the late afternoon; that around noon he was taken to the Highway Patrol station but was promptly brought back, since the desired official was not there; that defendant denied all guilt until confronted by Gary Proctor who told his story, and that soon thereafter defendant orally admitted his guilt; that he was advised of his rights; that no promises or threats were made, no force or duress used, and that he was not denied water, food, toilet facilities, etc.; only one of the several State’s witnesses recalled any request by defendant that he be permitted to call his mother; these witnesses testified that defendant appeared normal, not frightened, that no harsh language was used, and that soon after Proctor stated his version of the facts defendant made a rather complete oral confession, followed very shortly by the taking of a stenographic question and answer confession, which was promptly signed by him; and that his signing was wholly voluntary. Several police officers were in and out of the room during this period, along with two juvenile officers, but most of the questioning was done by the Chief of Detectives. Eight officers and the stenographer witnessed the signing of the confession. When defendant made the oral confession, at about the middle of the afternoon, he was “booked” as a juvenile. (He was later released by the Juvenile Court for prosecution, on the basis of his confession.) The Juvenile Officer of Buchanan County was one of the officers present during the questioning, and he testified generally as above indicated; he did testify that he thought defendant asked on one occasion for permission to call his mother. Defendant was interviewed on the evening of November 7, 1961, by Duane Nedrud, an Associate Professor of Law at the University of Kansas City, who specialized in criminal interrogation. Mr. Nedrud testified that, with no one else present, defendant voluntarily told him that Mr. Puckett accused him of burglarizing his place and came at him; that he hit Puckett on the head with a tire iron and kept on hitting him until he fell; that he then took Puckett’s billfold and left, but came back to the filling station later. The substance of defendant’s written confession was: that he went to Puckett’s station shortly after 8:00 o’clock on November 3, 1961, to get some air in a tire and entered the station; that Puckett, whom he did not know, said to him, “You are the little bastard that tried to jump me Thursday night,” and then swung at defendant but missed him; that Puckett was between defendant and the door, so he grabbed the tire iron and hit Puckett with it and Puckett fell; that he did not remember whether he struck Puckett while he was on the floor, but that he might have struck him more than once; that he started out the door, but returned and took Puckett’s billfold from his trousers’ pocket; that he later went back to the station when Hill was there and still later threw the billfold out on the Missouri River bridge; that he only got six or seven dollars.

The defendant testified at length. He detailed his activities on the morning in question, denied the Crime, and told specifically of coming to the station with a low tire and of finding Mr. Puckett bleeding. He denied having Puckett’s billfold, denied making the statements of guilt across the street at Ross-Frazier’s, and denied the statements to Mr. Nedrud. Concerning his confessions, he testified in substance: that Chief of Detectives Starmer questioned him from about the middle of the morning until the latter part of the afternoon (with a short intermission for the trip to the Highway Patrol), accusing him of the crime, shouting at him, cursing, and saying “I’m going to see you go to the gas chamber or the penitentiary * and “We know you did it and you might as well tell us”; that he, defendant, was scared and crying, that every few minutes he asked to call his mother but was never permitted to do so; that Starmer also said (after the confession was written) —“If you do sign it, it will go easier on you”; that Starmer kept telling him about the gas chamber and the penitentiary and that he “got scared” and doesn’t know what happened after that; that Maxwell (one of the juvenile officers) also questioned him and said that if he would sign the' statement, he would see about his going home; he admitted making oral statements and admitted describing some events in the filling station, but he also testified that he did not remember what he said; finally, he testified that he made statements to keep Starmer from “hollering” at him, and that after the confession was written he was so scared that he did not know what he was signing; also, that “whatever Chief Starmer said — I just followed him,” and that he was so scared that he did not know what he said. Defendant’s mother and brother saw him at the police station that evening and testified that he was nervous, crying, and upset or “shaken up,” and that he kept saying that “he didn’t do it.”

There was testimony from Mr. Oren Miller, a consultant in guidance for the St. Joseph Schools, that an intelligence test showed that at 14 years and 8 months of age, defendant’s mental age was 10 years and 3 months; that test was made about two years before the date of this crime. Another test showed a mental age of 11 and an IQ of 80. Defendant had quit school during or at the end of the 1959-1960 school year. There was no contention of insanity, and this evidence was offered as bearing upon the voluntariness or involuntariness of the confession. In the foregoing lengthy recital we have omitted masses of evidence which we do not deem necessary here.

Although we have determined that this case must be reversed for error in an instruction, there are certain questions which we must rule, in view of another trial. The first of these is the contention that the evidence -was insufficient (on any degree of murder, as we understand) to establish the State’s case, because its own evidence showed that defendant was “elsewhere” at the time of the crime, because some of the State’s evidence was incredible, and because the confession was in direct conflict with the State’s other evidence. Essentially, the point is that the State produced Barbara Linder and Jerry Blake whose testimony as to times is said to show that defendant could not have been present when Puckett was murdered. Their testimony has already been digested. It is sufficient to say that the times stated were estimates, for no one claimed to have looked at a clock and noted the precise time. In addition, Barbara testified on permitted cross-examination by the State, and in explanation of a statement given to the Prosecutor’s representative, that she had been instructed before she was first interviewed “not to tell exactly what I knew.” We are wholly unwilling to hold that the State is foreclosed by the time estimates of such a witness. Jerry Blake, in his estimates, left a time gap from a little after 7:30 to approximately 8:15 or 8:20 when defendant was not with him. Counsel also attack as wholly incredible the testimony of Gary Proctor who, they say, was discredited by his deposition testimony and his recent affidavit (which we have said may not be considered). The truth of his trial testimony, as well as that of the other State’s witnesses, was for the jury. This is true also of the attacks on the witnesses from Ross-Frazier’s who testified to defendant’s statements there, and of the testimony of the police officers, whom counsel so freely attack both for their affirmative testimony and for supposed negligence in their investigations. We do not sit here as a jury to weigh evidence. Counsel cite State v. Liston, 315 Mo. 1305, 292 S.W. 45, and State v. Gregory, 339 Mo. 133, 96 S.W. 2d 47. Rarely, indeed, does an appellate court reject the testimony of the State as incredible, and that should only be done where the Court determines that the testimony does not constitute substantial evidence. Gregory, supra; State v. Cohen, Mo., 100 S.W.2d 544; State v. Peterson, Mo., 305 S.W.2d 695. Defendant’s confessions, oral and written, placed him in the filling station at the time of Puckett’s slaying and directly implicated him. These confessions were direct evidence. State v. Criger, Mo., 46 S.W.2d 537. In so far as counsel claim that the oral testimony of defendant’s presence at certain places at certain times was destructive of his confession, that again was a matter for the jury. The confession was corroborated by Proctor’s testimony of defendant’s possession of the billfold, and by defendant’s statements to Mr. Nedrud; the State’s case was certainly sufficient for submission.

We need spend little time on the point that the confession was inadmissible. Our recital of the facts shows that the evidence, both on the preliminary examination and before the jury, established prima facie that the confessions (oral and written) were voluntarily made. If the evidence concerning the voluntary nature of a confession is conflicting, the question is for the jury. State v. Bridges, Mo., 349 S.W.2d 214; State v. Cochran, Banc, 356 Mo. 778, 203 S.W.2d 707; State v. Perkins, 355 Mo. 851, 198 S.W.2d 704, 168 A.L.R. 920; State v. Laster, Banc, 365 Mo. 1076, 293 S.W.2d 300. The only recent cases cited by defendant (State v. Butts, 349 Mo. 213, 159 S.W.2d 790, 140 A.L.R. 1177, and State v. Bradford, Mo., 262 S.W.2d 584) were decided on substantially different facts. And the mere fact that defendant was not taken before a magistrate until the morning of November 7 does not render his confession involuntary. State v. Bridges, supra, and cases there cited. The fact, if true, that defendant had a somewhat retarded intellect could not affect the admissibility of his confession upon this evidence, but the jury could and undoubtedly did consider the testimony (which came from one witness only). We note, parenthetically, that defendant’s own testimony throughout the case appeared to be very clear, both in his understanding and his expression.

Defendant contends that it was error to submit to the jury a charge of first degree murder, because there was no evidence of “deliberation,” citing State v. Liolios, 285 Mo. 1, 225 S.W. 941, and State v. Jackson, 344 Mo. 1055, 130 S.W. 2d 595. In Liolios, the Court discussed the contrasting requirements of “deliberation” and “heat of passion,” and merely held that a second degree murder instruction should have been given. Here, such instruction was given. In Jackson, supra, the Court held that the defendant’s testimony of the circumstances would, if true, negative deliberation and that a second degree murder instruction was required. In making this contention defendant relies principally upop the written confession which the State introduced, namely, that the confession showed a provocation, an attack by Puckett and, at the most, a killing without deliberation, and not in “cool blood.” The State is not conclusively bound by all statements in a confession, nor does it vouch for all such statements. State v. Payne, Mo., 342 S.W.2d 950. The confession was introduced as statements of the defendant, not as judicial admissions by the State. The jury could take or leave any part of it, or all of it. Here, for instance, the jury could believe from the confession and the evidence of defendant’s possession of the billfold that defendant killed the deceased, but could have disregarded the extenuating circumstances stated in the confession. The elements here which speak forcibly of deliberation are: first, the fact that Mr. Puckett’s skull was almost completely crushed, — an “egg-shell” fracture, — by thirty-three blows on his head; and, second, evidence of the possession of the billfold by defendant, and the fact that the victim’s money was gone. The question of who killed the deceased in this manner was for the jury, but the very physical nature and the circumstances of Puckett’s death were such as to imply and almost force a conclusion of deliberation. It does not necessarily take a day or an hour or even minutes for “blood to cool” so as to justify an inference of deliberation; and a “heat of passion” cannot well be deemed to continue long enough to permit one to strike a victim thirty-three separate blows on the head with a tire iron. Somewhere down the line deliberation enters. This may always be inferred from the circumstances. See, generally, State v. Goodwin, Banc, Mo., 352 S.W.2d 614; State v. West, 346 Mo. 563, 142 S.W.2d 468.

As a corollary point defendant complains of that part of the principal instruction defining deliberation; this contained the following: “ * * * it means an intent to kill, executed by a person in a cool state of the blood, in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose, * * The phrase “or to accomplish some other unlawful purpose,” has been criticized specifically. State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75; State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843. However, in State v. Hershon, 329 Mo. 469, 45 S.W.2d 60, the use of the term was discussed more fully and criticized, but it was held to be harmless error, and favorable to the defendant. The definition should be recast at another trial.

Instruction No. 7 submitting-to the jury the issue on the voluntariness-of defendant’s confession was as follows:

“A confession of a defendant, either oral or written, if accompanied with proof that the crime was committed by someone, will warrant a conviction if you believe it expresses the truth.

“A confession in order to be considered, must.be made voluntarily, that is without anyone holding out any hope or reward or leniency or fear of punishment for not doing it. You have a right to consider all the circumstances surrounding and concerning the defendant at the time the confession was made, if you find it was made, in determining the voluntariness of the confession. If you find that it was voluntarily made, it is competent for the jury to consider it and give it such weight as you see fit and proper under all of the circumstances.”

Counsel urge that the definition of “voluntarily’ was not full and fair in the light of the evidence, particularly in that the evidence showed coercion and “mental duress.” Specifically they note: the accusations and threats continuing throughout the day, the supposed shouting and cursing, the denial to defendant of the right to call his mother, the fact that defendant became scared, confused, and did not know what he was doing, that one officer told him he would see about his going home if he signed, and that defendant had the mental age of a ten year old child. We disregard the supposed denial of food, water and cigarettes, because defendant made no point of this in his testimony before the jury, and thus abandoned it as a trial issue. His testimony in the other respects definitely raised an issue of supposed coercion and duress, and that issue-was pressed throughout the case. The instruction as given singled out and emphasized “hope of reward or leniency” and “fear of punishment.” Nowhere did it mention coercion, duress, intimidation, mental pressure or any equivalent term. If certain elements, such as “reward” or “fear of punishment” were to he singled out, the instruction should certainly have mentioned specifically the element of coercion or duress which was the real issue. Instructions are given for the purpose of hypothesizing the basic factual issues for the jury. In our view this omission was not cured by adding the generality that “You have a right to consider all the circumstances,” as was done here.

In State v. Williams, Banc, Mo., 369 S.W.2d 408, a most recent case, the judgment was reversed solely because of the omission of all reference to the issues of mental duress and coercion in a very similar instruction, and in a case where that was a basic issue. There also the instruction referred to “hope of leniency or reward” and it included the phrase “without * * * any threat or doing any violence.” The present instruction does not refer to threats. The Court said there, 369 S.W.2d loc. cit. 420: “While, as stated, the evidence on some of these matters was conflicting, the issue was for the jury and the issue of mental duress and coercion had to be decided in order to determine whether the confessions were or were not voluntarily given. No such issue was presented to the jury by Instruction 7 or any other instruction. In omitting to present the issue of mental duress and coercion for determination by the jury, the instruction was clearly erroneous and should not have been given. We find no merit in the other contentions.” And there, as here, the age, education, experience and intelligence of the defendant were necessarily involved “when determining whether the confessions were voluntary or coerced.” It may also be noted that the defendant did not even testify in that case. And see, also, State v. Deyo, Mo., 358 S.W.2d 816. In the present case the mentality of the defendant was submitted in another instruction. We are hesitant to reverse a case for error in an instruction after a long, arduous, and conscientiously conducted trial, but we cannot disregard so recent a mandate of our Court on an issue which we deem to be indistinguishable. Moreover, we agree with the ruling there. It is unnecessary to determine whether the Court erred in refusing Instruction “C” on the same subject, as tendered by defendant. It is certainly not in one of the usual forms.

Certain points made in defendant’s brief are based upon matters which will presumably not occur on another trial. One of these is the claimed error in permitting certain witnesses to testify in rebuttal; in that, incidentally, the trial court has a wide discretion. State v. Washington, Mo., 320 S.W.2d 565; State v. Dees, Mo., 276 S.W.2d 201; State v. Phillips, Mo., 299 S.W.2d 431. Another point is the alleged error in permitting the State’s attorney to cross-examine Barbara Linder, a witness put on the stand by the State. In that matter, also, the trial court had a broad range of discretion, which is to be upheld unless abused. State v. Shelton, 351 Mo. 799, 174 S.W.2d 202, and cases there cited. Counsel have included in their brief a point to the effect that the Court erred in failing to give a manslaughter instruction. No cases are cited nor is the point included in the argument. We deem it abandoned. It should also be noted that any such theory would be wholly opposed to defendant’s basic defense of alibi and to his repeated repudiations of his confession ; for such an instruction would necessarily be based upon a part of the confession. We find no error in the alibi instruction complained of, and find it unnecessary to discuss that point at length. For the information of counsel, see: State v. Baldwin, Mo., 281 S.W. 940; State v. Dworkin, 307 Mo. 487, 271 S.W. 477; State v. Howe, Mo., 343 S.W.2d 73; and the very recent cases of State v. Bryant, Mo., 375 S.W.2d 107 and State v. Arrington, Mo., 375 S.W.2d 186, No. 49,965, opinions filed on February 10, 1964. The instruction did not shift the burden of proving an alibi to defendant by telling the jury that if, upon consideration of all the evidence, it had a “reasonable doubt as to the defendant’s presence” it should acquit him; it was, of course, to be considered with all other instructions, including the one requiring the State to prove defendant’s guilt beyond a reasonable doubt. In State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, cited by defendant, the language used was wholly different and very clearly cast the burden upon the defendant to prove an alibi defense.

We find it necessary to discuss one other Instruction, No. 4. It was as follows: “The Court instructs the jury that under the law of this state every homicide which shall be committed in the perpetration of or attempt to perpetrate a robbery, is deemed Murder in the First Degree. And in this case, if the jury find and believe from the evidence beyond a reasonable doubt, that a homicide occurred while the defendant was robbing or attempting to rob the deceased Sylvester Ralph Puckett, then such perpetration or attempt to perpetrate such robbery stands in lieu of deliberation and premeditation as herein-before defined, and the jury will be warranted in finding the defendant guilty of Murder in the First Degree and should so say in their verdict, however, if you find that the design and intent to commit a robbery, if any, was formed after the striking and beating of the defendant, if any, then you will not find the defendant guilty of murder in the first degree, and will not consider such robbery for any purpose other than as it may tend to prove or disprove the commission by the defendant of the homicide herein charged.” This instruction was given on the State’s alternative theory of a felony-murder, pursuant to § 559.010, RSMo 1959, V.A.M.S. Defendant insists here: that no robbery was sufficiently proven to justify the instruction (allegedly at most, a larceny from the person), that the instruction did not define robbery leaving the jury to guess at its meaning, and that it constituted a comment on the evidence by a reference to “such robbery.” Our previous discussion indicates that the evidence was sufficient to justify the robbery-murder submission. If defendant had the intent to rob, the mere fact that he beat the deceased and knocked him down before he took his wallet does not make the crime any less a robbery. State v. Churchill, Mo., 299 S.W.2d 475; State v. Courtney, 356 Mo. 531, 202 S.W.2d 72; State v. Hawkins, Mo., 165 S.W.2d 644. The instruction did not constitute a comment on the evidence by the use of the term “such robbery”; the submission was sufficiently qualified as to leave the occurrence of a robbery, fairly considered, to the jury. The failure to define “robbery” is a more serious question. In State v. Messino, 325 Mo. 743, 30 S.W.2d 750, the Court said that it was unnecessary to define the term; but there the felony relied upon was a bank robbery perpetrated by several armed men who killed a policeman in their escape. There could have been no doubt whatever in that case as to the nature of the act. In State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, the statement was made that the phrase “attempted robbery” did not need to be defined, citing Messino, but there the term was defined in another instruction and, under the direct and positive evidence of the State, there could have been no doubt that the evidence, if believed, proved a robbery. And see State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Hart, 292 Mo. 74, 237 S.W. 473. There may have been no necessity for a definition of the term under the facts of those cases, but where as here the facts and circumstances may or may not prove a robbery (as defined in our statutes) depending upon the inferences to be drawn, and the jury is required to find the commission of a robbery if, in fact, it convicts under that instruction, then the term should be defined. We fail to follow the State’s argument that, since the prosecution was not for a robbery as such, the term need not be defined (and see Peak, supra). That is simply a non sequitur. If the State chooses to charge the defendant with the commission of a robbery as a material element of the first degfee murder charge, even upon an alternative theory, then “robbery” should definitely be defined, or all the facts essential to constitute a robbery should be hypothesized. State v. Brown, Mo., 245 S.W.2d 866. Perhaps the latter part of this instruction, including all that part after the word “however,” operated to take away the prejudicial effect of the failure to define. That part told the jury, in effect, that if a design and intent to rob was formed after the beating of the “defendant” (deceased), then it would not find defendant guilty of first degree murder (presumably under this instruction only). That wording is somewhat obtuse, and if the instruction is used again it should be entirely recast. We do not hold that the instruction constituted prejudicial error, but it certainly should not be used again in its present form.

For the error in giving Instruction No. 7, the judgment is reversed and the cause is remanded.

All of the Judges concur.