author: HILL, Judge.

text:
    Ezra CARTER et al., Appellants, v. E. E. HOWERTON et al., Appellees.
    Court of Appeals of Kentucky.
    April 30, 1965.

      Milliken & Milliken, Bowling Green, for appellants.
    Frank Goad, Douglas Keen, Scottsville, for appellees.
   HILL, Judge.

This is an appeal from a money judgment against appellants of approximately $7740.-00, an order of sale of appellants’ real estate, his two mules and his sawmill, growing out of two contracts for the purchase of two boundaries of timber, one in Butler County and the other in Warren County.

By contract dated July 29, 1959, Ezra Carter purchased from E. E. Howerton all the timber on a large tract of land located in Butler County, Kentucky. The contract provided that Carter pay $2.25 per 100 board feet for the hardwood and $2.75 per 100 board feet for cedar. On November 2, 1959, Carter purchased the standing timber from Robert B. Henderson and wife on their farm in Warren County, Kentucky, for the agreed price of $2500.00 for the entire boundary. In addition, Carter agreed to furnish to Henderson “sufficient lumber for the building of bam and certain lumber for furnishing two rooms.” The contract did not specify how much lumber he was to furnish for those two purposes or mention the dimensions of the barn or rooms. Carter was given the right to remove all the timber down to 12 inches, stump high. Carter also agreed to the “bunching of brush;” to repair any damages to road leading into farm; not to damage the farm in any other way and he was allowed two years within which to remove the timber.

Carter needed money with which to prepare for processing the timber and on November 4, 1959, Carter and his wife gave Howerton and Henderson a mortgage on his home in Allen County to indemnify them against loss on account of a $6,000.00 note of Howerton and Henderson which they executed at the Bowling Green Bank & Trust Company at Bowling Green, Kentucky. In addition, Carter assigned, on November 10, 1959, the two contracts he had for the removal of the timber on the two tracts. In this assignment Carter agreed to make a complete accounting of all sales and operations at the end of each two-weeks period and to pay the bank all the income from such sales less his operating expenses.

Carter commenced the cutting of timber on the Howerton-Butler County tract about the first of August, 1959, and removed considerable timber therefrom. For a period of about two weeks during December, 1959, Carter cut and removed some cedar timber from the Henderson-Warren County tract.

Apparently Carter desired to sell the hardwood on the Warren County tract to National Distilleries, a Tennessee concern, and in order to impress this concern with the quantity of his product, he asked and obtained from Henderson a writing showing that he, Carter, had paid $5,000.00 for the boundary. Carter succeeded in selling a part of the hardwood on the Warren County tract for $1100.00, which amount he promptly turned over to Howerton as a credit on the timber theretofore cut on the Howerton-Butler County tract.

Sometime in January, 1960, after the weather had gotten bad and after Carter had failed to file any accounting with the bank or pay any money to the bank, Henderson refused to allow Carter to continue cutting on the Warren County land; refused to allow Carter to have his two mules or access to his sawmill and left word for him to “stay off” the premises.

Howerton and Henderson took the proceeds from the $6,000.00 loan and turned it over to Howerton. Howerton paid Henderson the $2500.00 that Carter owed Henderson for the Warren County timber. Howerton testified he advanced to Carter a total of $4850.33, which includes the $2500.00 for Henderson.

The judgment of the- trial court, without a jury, provided that Howerton recover from Carter the sum of $2100.00 “by reason of the violation of the contract with Howerton.” It also adjudged that Henderson recover from Carter the sum of $2,240.-00 on account of “violation of the contract with Henderson.” These amounts are not taken from evidence but are the exact amounts mentioned in the complaint. The judgment also allowed Henderson to recover from Carter the sum of $2500.00 “which was received by the defendants from the plaintiffs out of money borrowed from the Bowling Green Bank & Trust Company.”

The judgment also provided as follows:

“The aggregate of these amounts exceeds the sum of $6,000.00 for which the above mortgage was given to secure. So that judgment is given against the above defendants, jointly and severally, in favor of Howerton and Henderson for the benefit of the Bowling Green Bank & Trust Company for the sum of $6,000.00 with interest and cost.”

Howerton was given a $900.00 judgment for damages “resulting to fence on farm of plaintiff in Butler County.”

Carter appeals from this judgment.

The appellant, Carter, contends that right after dark on November 2, 1959, at a place on the point near Alvaton, near King’s, in the presence of his son, a brother and another man, he paid Howerton $5,000.00' in cash in denominations of 100’s 50’s and 20’s, which he had accumulated and kept- at home for some years before. Howerton denies this. The trial judge specifically found in the judgment that no such cash payment was made.

Admittedly, Carter needed money about this time to finance his operations. He gave a mortgage on his home to secure the note heretofore mentioned. He obtained money from Howerton to make the down payment on a tractor and a truck; he purchased the truck on time. The testimony, both of Carter, his son and the other two or three witnesses was most conflicting and unconvincing. The trial judge heard all of this evidence and specifically found that no such cash payment was made. We heartily concur with the finding of the trial court in this regard.

Customarily, timber cutting controversies are most difficult questions for courts to resolve and we think this case is no exception. In fact, it is one of the more difficult ones. The contract with Howerton made no provision for measuring the logs as they were cut. Carter made no such measurements himself, although he introduced a witness by the name of Calbert who pretended that he “estimated” the amount of timber cut by Carter on the Howerton tract between 20,-000 and 25,000 feet. We are not impressed at all with the testimony of this witness. He claimed that such records he made were misplaced. So, we are left virtually with the testimony of Howerton and Henderson and their witnesses to try to reach a just determination of the rights of these parties.

Inasmuch as Howerton and Henderson are jointly and severally liable to the bank for the $6,000.00 note, we shall first discuss the rights of Howerton and Henderson in their joint relationship with Carter.

First, we find Howerton and Henderson advanced to Carter $2350.33 in addition to $2500.00 cash taken from the proceeds of the $6,000.00 note and turned over to Henderson. Therefore, Howerton and Henderson are entitled to judgment against Carter for $4850.33 with interest from date of note, together with a lien on the land, mules and sawmill to secure the payment of same. It should be observed in this connection that, in event the proceeds of sale are not sufficient to pay this amount, some adjustment should be made as between Henderson and Howerton since $2500.00 was taken from the proceeds of the loan and paid to Henderson for his timber. In event Howerton and Henderson should have any controversy after the sale, this issue should be determined on proper pleadings by the trial court after a sale of the property. By deduction, it can be seen Howerton and Henderson are jointly liable for $1149.67 to the bank, the difference between the amount of the loan and the amount advanced to Carter.

Next, we shall determine, as best we can from this poorly prepared case, the rights as between Howerton and Carter. We find from the evidence of C. B. Henderson, no relation to Robert B. Henderson, that Carter cut and removed timber from the Howerton-Butler County farm worth $3,000.60. J. W. Costello, another witness for Howerton, testified this timber had a value of $3500.00, but his estimate was more in the nature of a guess. C. B. Henderson estimated the stumps and his testimony is more convincing. Hence, we take his estimate. We conclude Howerton is entitled to judgment against Carter, by way of damages, in the sum of $3000.00, on which Carter is entitled to credit for $1100.-00, representing a check for the amount collected from National Distilleries for the hardwood on the Warren County farm and turned over to Howerton. Carter is also entitled to a credit of $339.77 for cedar cut from the Butler County farm, and sold to Costello, making a total credit of $1439.77 on this $3000.00 judgment for damages. This gives us a total judgment of $1560.23 in favor of Howerton. That part of the judgment appealed from allowing Hower-ton $900.00 for damages to fence is reversed because it is not supported by proper evidence.

Now, to the situation as between Henderson and Carter growing out of the sale of the Warren County tract. As we noted heretofore, Henderson has been paid in full for all his timber although it was paid out of proceeds of the note made by Howerton and Henderson and secured by mortgage of Carter. Having indicated that Howerton and Henderson are entitled to joint judgment against Carter for an amount including the contract price for the Warren County tract, it was not proper to again award Henderson this amount.

The contract provided Carter have two years in which to remove the timber from the Warren County tract of Henderson. In the contract Carter also undertook to furnish Henderson lumber for a barn and for two rooms of his dwelling house and to pay for damages to land and fences. The contract did not specify the amount of lumber to be so furnished, or the dimensions of the barn or rooms to be built. Carter did not comply with this part of his contract. However, according to the evidence of two witnesses, considerable timber was left at the end of the year, 1959, about the time Henderson stopped Carter from cutting. We think it unfair to Carter for Henderson to have a considerable quantity of his timber left, lock Carter out and still have judgment for damages. Henderson also claims $249.94 due him for gasoline and various other itemized amounts. We think the claim of Henderson for lumber for the barn and two rooms and his claim for $249.-94 should be offset by the amount of timber Carter was compelled to leave on the Warren County tract.

The judgment is reversed in part and affirmed in part with directions to enter a supplemental judgment according to this opinion.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Clifford BRANHAM, Appellant, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    April 23, 1965.
    Ronald W. May, Combs & May, Pike-ville, for appellant.
    Baird & Hays, Pikeville, for appellees.
    J. W. Craft, Jr., Frankfort, for Special Fund.
   CULLEN, Commissioner.

The Workmen’s Compensation Board denied the claim of Clifford Branham for compensation for disability from silicosis. The board’s opinion stated that the claimant had failed to establish to the satisfaction of the board that he had silicosis. On appeal to the circuit court judgment was entered affirming the order that dismissed the claim. Branham has appealed to this Court from that judgment.

Two doctors testified that Branham had silicosis in an early stage. Four doctors testified that they found no evidence of silicosis (they found other disabling ailments). The referee concluded that there was not sufficient evidence on which to base a finding that Branham was disabled from an occupational disease.

On appeal to the full board an order was entered for the appointment of a disinterested examining physician. The order recited as the reason for such appointment that the board, after reviewing the evidence, was in doubt as to whether the claimant was disabled as the result of an occupational disease.

The disinterested physician made a report, and gave a deposition, stating that in his opinion the claimant had “a mild form of silicosis” or “early category 1 silicosis.” However, his opinion was equivocal and lacking in positiveness. The board stated in its final opinion that the physician’s testimony was “of such a nature as to leave the Board still in doubt.”

In our opinion this is a simple case of conflicting evidence — the kind of case in which the board’s finding, whichever way it goes, must be upheld by the courts.

The appellant argues that the board did not actually decide the case as one of conflicting evidence, by choosing to believe one party’s evidence rather than the other’s; but instead the board based its decision on an erroneous theory of burden of proof, which in effect required the claimant to prove his claim beyond a reasonable doubt.

Where the evidence is conflicting the claimant has the burden of persuasion. His evidence has to be sufficiently strong to persuade the board of the truth of the fact his evidence is designed to establish. Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856. In the instant case the board simply was not persuaded.

The record indicates to us that the board reached its decision of the case on the basis of an evaluation of the evidence which it was entitled to make, and not through the imposition of an undue burden of proof. Cf. Lee v. International Harvester Company, Ky., 373 S.W.2d 418.

The judgment is affirmed.


text:
    Robert JONES, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 23, 1965.
    Robert Jones, Jr., in pro. per.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The circuit court dismissed, without a hearing, the motion of Robert Jones, Jr., under RCr 11.42 to vacate a 1962 judgment which, upon his plea of guilty to a charge of robbery, had sentenced him to an eight-year term in the penitentiary. Jones has appealed from the order of dismissal.

One of the allegations of the motion was that counsel appointed for Jones refused to defend him unless he pleaded guilty, counsel pointing out that he had been appointed by the court and was not getting paid for his services. This was coupled with an allegation that Jones had pleaded guilty under duress.

Jones was entitled to a hearing on the foregoing allegation. See Higbee v. Thomas, Ky., 376 S.W.2d 305; Lawson v. Commonwealth, Ky., 386 S.W.2d 734 (decided February 5, 1965).

The motion sought vacation of the judgment on several additional grounds. Under the decisions hereinafter cited none of those grounds was sufficient even to warrant a hearing. See Carson v. Commonwealth, Ky., 382 S.W.2d 85; Warner v. Commonwealth, Ky., 386 S.W.2d 455 (decided January 29, 1965); King v. Commonwealth, Ky., 387 S.W.2d 582 (decided February 2, 1965); Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

The order of dismissal is reversed with directions to grant Jones a hearing, with counsel, on the allegation concerning the circumstances of his plea of guilty.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William F. POLK et al., Appellees.
    Court of Appeals of Kentucky.
    April 23, 1965.
    John B. Breckinridge, Atty. Gen., William F. Lamkin, Asst. Atty. Gen., Frankfort, Thomas H Withers, Mitchell & Withers, Henderson, Dandridge F. Walton, Madison-ville, for appellant.
    William M. Deep, Leo King, King, Deep & Branaman, Henderson, William G. Craig, Owensboro, for appellees.
   WADDILL, Commissioner.

This condemnation action was instituted during October, 1959 for the acquisition of right of way for the construction of a limited access highway known as Henderson By-Pass. The portion condemned was a seven foot strip fronting 145.11 feet on the existing highway and a temporary easement 10 feet in depth immediately behind the land taken in fee. A circuit court jury awarded $3,500 for the land taken, $9,500 for damages to the remainder and $2,500 for the temporary easement.

While no improvements were located on the land taken in fee a commercial service station constructed by a lessee and a small residence were located on the remainder of the landowner’s lot. Prior to submission of the case to the jury the landowner and the lessee announced that they had agreed upon an apportionment of the award between them. Accordingly the jury was not instructed to value the leasehold interest separately.

Appellant contends that the trial court erred in allowing the jury to return a lump sum verdict. This was proper procedure because the owners of the various interests in the property had agreed upon the apportionment of the award (as they had the right to do). See Commonwealth, Dept. of Highways, v. Dowdy, Ky., 388 S.W.2d 593 (rendered March 26, 1965). The only remaining issue was the before and after value of the entire property which was correctly submitted to the jury.

Appellant introduced a copy of the service station lease to show that the lessee had the right to remove the service station building upon termination of the lease. Appellant contends that this provision of the lease made the building a trade fixture and thus it was error to permit evidence of damage to it. The contention is without merit. Although a building constructed upon the landlord’s premises by his tenant pursuant to a lease permitting the tenant to remove the building at the expiration of the lease is ordinarily considered to be personal property, this rule is entirely for the protection of the tenant and cannot be invoked in a condemnation action by the condemning party. Hence, buildings and fixtures attached to the real estate must be treated as real property in determining the total award. See Nichols on Eminent Domain, Volume 2, Section 5.81, Subsection 2.

Finally it is urged that the verdict is excessive because appellee’s evidence concerning damage is so incredible as to be without evidentiary value. All witnesses agreed that substantial damage would result from the taking. Stanley Hoffman, an appraisal witness for the Commonwealth, testified that the service station building would be damaged 75% because the new highway comes within a foot of the gasoline pumps and so near the building as to require it to be salvaged. The remainder of the lot would be damaged 20% and the residence 25%.

Two skilled professional appraisal witnesses for the landowner testified to damage which would justify a larger verdict than the one returned by the jury. For example, Woodring Fryer, one of the landowner’s professional witnesses, testified that the before value of this property with its improvements was $35,300 and its after value was $16,240 making a difference of $19,060. The witness explained in detail the method whereby he arrived at these amounts. His explanation is both plausible and acceptable. Appellant’s attack on the witnesses’ estimates of value and damage is not sustainable on the ground that their testimony has no basis in fact. While the award appears to us to be liberal there is evidence having sufficient probative worth to sustain it.

The judgment is affirmed.


author: STEWART, Judge.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellants, v. SOUTH-EAST COAL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 23, 1965.

      Paul E. Tierney, Benjamin J. Mann, Melbourne Mills, Jr., Frankfort, for appellant, Kentucky Unemployment Ins. Commission.
    Grant F. Knuckles, Pineville, Henry B. Noble, Hazard, for individual appellants.
    J. K. Wells, Paintsville, for appellee, South-East Coal Co.
    Louis Cox, John Hopkins, Hazelrigg & Cox, Frankfort, for Kentucky Coal Assn., amicus curiae.
   STEWART, Judge.

This appeal is from a judgment of the Franklin Circuit Court holding that a certain work stoppage was a strike and not a lockout within the purview of KRS 341.360 (1).

The faets in this case are not in dispute. For some time prior to January 4, 1962, there existed an agreement between ap-pellee, South-East Coal Company, and the United Mine Workers of America (herein referred to as “UMWA”). This agreement contained a clause to the effect that it could be terminated after the passage of sixty days from the giving of notice. Pursuant to this clause, appellee on January 4, 1962, notified the UMWA and each of the claimant-appellants herein, 114 of them, of its unwillingness to be bound by its agreement sixty days after the notice.

This notice also contained an offer to meet and negotiate with the UMWA’s bargaining representative; stated that appellee fully respected the right of the claimant-appellants to belong to a labor organization and to bargain collectively; proposed certain provisions to be set forth in a new agreement; and offered continued employment under the terms and conditions to be contained in the new agreement, in the event no new agreement was reached by March 4, 1962. The latter date was the day on which the old agreement, in accordance with the notice given, ceased to be effective.

Appellee offered wages the same as those received under the terminated agreement, but for a day of eight hours as contrasted with a day of seven and one-half hours portal to portal. Overtime pay was to start after the eighth hour each day; and with the forty-first hour each week instead of the thirty-sixth. It agreed to furnish medical and life insurance in lieu of payments to the welfare fund and a stipend for vacation.

The claimant-appellants did not accept appellee’s offer of continuing employment under the terms and conditions tendered for incorporation into a new agreement. Rather, they chose to stand pat upon the UMWA contract. A cessation of work ensued and the claimant-appellants became unemployed.

In passing upon their claims for unemployment compensation, payment for which could only be allowed the claimant-appellants if their unemployment resulted from a lockout, the Kentucky Unemployment Insurance Commission concluded as a matter of law that the terms and conditions offered by appellee were so “onerous” as to justify the rejection of them by the claimant-appellants.

This decision of the Commission was a holding that a lockout caused the unemployment, and that the claimant-appellants were entitled to receive unemployment benefits. Upon appeal to the circuit court, this ruling was reversed.

This Court first defined a strike and a lockout in the case of Barnes v. Hall, 285 Ky. 160, 146 S.W.2d 929, 936. The opinion stated in that case: “A strike is cessation of work by employees in an effort to get for the employees more desirable terms. A lockout -is a cessation of the furnishing of work to employees in an effort to get for the employer more desirable terms.” In Detroit Harvester Co. v. Kentucky Unemployment Insurance Commission, Ky., 343 S.W.2d 365, 367, the definition of a lockout was extended. This Court there said: “[A] lockout is the independent action of the employer in refusing to furnish work for the coercive purpose of compelling the employee to accept terms or make concessions favorable to the employer.”

In the recent case of D. J. B. Collieries Company v. Kentucky Unemployment Insurance Commission, Ky., 385 S.W.2d 772, the employer ceased its mining operation under its UMWA agreement with its employees and set forth new terms and conditions with no alternative except to work on those it offered. Furthermore, it threatened to operate on a non-union basis if its employees refused to return to their jobs under the new terms and conditions it specified. The employees quit their work and, despite the ultimatum character of the offer made by the D. J. B. Collieries Company as a.basis for hiring them back, this Court held the employees had called a strike.

In the instant case it appears appellee’s conciliatory proposal was intended as a lead toward negotiating a new work agreement. It had an undoubted right to resort to this course of action after, upon proper notice, it had abrogated its UMWA agreement. The claimant-appellants refused to negotiate and insisted the UMWA agreement should remain in full force and effect until they and appellee could arrive at a new contract

The Commission made this pertinent finding: “That the company has been placed in an unfavorable competitive position and must reduce costs to survive is undenied in this record. Willing workers and a reasonable employer have reached an impasse because of the rigidity of a national trade agreement which apparently cannot or may not be modified to fit local conditions.”

The action of the claimant-appellants in refusing to discuss any new working terms in the face of appellee’s willingness to continue operations in the manner heretofore described, while negotiations were under way, placed full blame on them for the wofk stoppage. Thus their action amounted to a strike and accordingly they must be denied unemployment benefits.

Wherefore, the judgment is affirmed.


author: J. W. HODGES, Special Commissioner.

text:
    George D. BARKER, Administrator of the Estate of Maut Estes, Deceased, Appellant, v. DANVILLE CONSTRUCTION COMPANY and Jackie Lee Hammons, Appellees.
    Court of Appeals of Kentucky.
    April 23, 1965.

      John L. Ward, Danville, for appellant.
    James F. Clay, James F. Clay, Jr., Pierce Lively, Danville, for appellees.
   J. W. HODGES, Special Commissioner.

This appeal is from a judgment for the defendants in an action for damages for the death of a 77-year-old man, Maut Estes, whose death was caused by being run over by a dump truck owned by the Danville Construction Company and driven by Jackie Lee Hammons.

On July 23, 1963, the appellee, Danville Construction Company, undertook to blacktop Shearin Avenue in Shelby City, Boyle County, Kentucky. Appellee, Jackie Lee Hammons, was an employee of the Danville Construction Company, engaged in operating one of its trucks. Shearin Avenue is a dead-end street extending east for about one block from U. S. Highway 127. There are houses built on both sides of the street, but there are no sidewalks on either side. The blacktopping was started at the dead end and on the north side of the street.

At about 2:30 in the afternoon the paving machine was located on the north side of the street and nearer the east end. Drivers engaged in hauling blacktop would turn their trucks at Highway 127 and back down Shearin Avenue to the paving machine where they would dump the blacktop. Maut Estes lived on Shearin Avenue between the intersection of U. S. Highway 127 and the point where the paving machine was operating.

Mrs. Jones, a witness, sitting in her back yard, saw the deceased walking eastward on the north side of the street. A very short time later, she learned that he had been run over, a very short distance from where she had seen him walking. Marvin Wilson, another truck driver for. the defendant construction company, who had stopped for the purpose of removing the tarpaulin from his truck prior to dumping the blacktop into the paver, saw the deceased being run over by the truck. At that time the deceased was on the north edge of the highway and the rear wheel of the truck operated by Ham-mons was passing over the body of the deceased at about the belt line.

At the conclusion of the proof, the lower court directed the jury to find for the defendants on the ground that a person who goes upon a highway at other than an intersection must yield to vehicles.

The appellant contends that: (1) The court erred in giving a directed verdict; (2) the court erred in not permitting plaintiff to read to the jury a sworn statement given by the truck driver; (3) the court erred in refusing to permit plaintiff to prove that no warning signs were posted by the construction company and no flagman was stationed upon the highway.

The lower court, in directing the jury to find for the defendants, mentioned a statute as providing that other than at an intersection, a man or woman who goes upon a highway must yield to a vehicle. Counsel for appellees cite KRS 189.570(4), together with a number of cases in support of the cour-t’s ruling. This section of the statute and all of the cases cited by appellees’ counsel have to do with pedestrians crossing the street at a point other than within a marked crosswalk.

There is no evidence in this case that Maut Estes was attempting to cross the street. The evidence shows that he fwas walking on the left side of Shearin Avenue in the direction he was traveling, in compliance with KRS 189.570(6), and that he was struck by the truck from his rear while the truck was being operated in reverse on its wrong side of the street.

The fact that the deceased was proceeding along the street, as the proof shows he was, does not make him, as a matter of law, guilty of contributory negligence. See Igo v. Smith, 282 Ky. 336, 138 S.W.2d 497. The driver of an automobile owes to pedestrians walking along a highway the duty to exercise reasonable care to avoid injuring them. See Chaney v. Holliday’s Admr., 235 Ky. 610, 31 S.W.2d 926; Tri-State Refining Company v. Skaggs, 223 Ky. 731, 4 S.W.2d 739.

The decedent had the right to be on the side of the street and to have that right regarded by the driver of the truck, who was charged with the duty of exercising care to avoid injuring a pedestrian walking along the edge of the road. See Hatfield, et al. v. Sargent’s Admx., 306 Ky. 782, 209 S.W.2d 306.

The driver of the truck testified that he never saw the deceased until after his truck was stopped and it was called to his attention by Wilson, the driver of the truck who was parked behind him.

The case should have been submitted to the jury under proper instructions setting out the duties of the truck driver and the deceased. See Hatfield et al. v. Sargent’s Admx., 306 Ky. 782, 209 S.W.2d 306.

Counsel for appellant complains that the court erred in refusing to permit him to impeach the testimony of the appel-lee Hammons by a contradictory statement made by him. The statement was made some ten or twelve days after the accident and was not a part of the res gestae. The statement could not he considered as substantive testimony against the appellee company. It was, however, competent for the purpose for which it was offered, with a proper admonition by the court. See Knight v. Silver Fleet Motor Express, 289 Ky. 661, 159 S.W.2d 1002; Hatfield et al. v. Sargent’s Admx., 306 Ky. 782, 209 S.W.2d 306.

The other complaint by the appellant is that he was not permitted to show that no signs were in place indicating that the road was under construction, nor was there any flagman present. All of the cases cited by the plaintiff concerning the placing of signs on a highway have to do with injuries as a result of striking machinery, equipment, or road obstructions, and we are of the opinion that under circumstances such as shown in this case, the deceased knew of the road construction and had observed it. The failure to have signs posted had nothing to do with the accident.

The judgment of the lower court is reversed, with directions to grant appellant a new trial in conformity with this opinion.


text:
    Otha BLANKENSHIP, Appellant, v. Addie BLANKENSHIP, Appellee.
    Court of Appeals of Kentucky.
    April 23, 1965.

      W. Elijah Coffey, Jamestown, for appellant.
    Jack B. Miller, Jamestown, Hollis E. Ed-monds, Russell Springs, for appellee.
   HILL, Judge.

This case involves a contest of the will of Asa Blankenship, father of appellant, Otha Blankenship, and the husband of the appellee, Addie Blankenship. The latter was the second wife of the testator. They were married December 1, 1926.

Asa Blankenship died December 4, 1963, at the age of 93, leaving a will dated November 19, 1962. His will provided for the payment of all debts and funeral expenses; that a marker be placed upon his grave and directed that all of his property, real and personal, be sold to meet the above bequests and the proceeds be distributed, one-fourth to his wife, Addie, and three-fourths to his son, Otha.

The appellee contested the will on three grounds. First, she contended the testator verbally directed that the residue of his estate be divided one-half to her and the other half to the son. She next relied upon undue influence and mental and physical incapacity to execute the will on the date it was executed. These three propositions were submitted to the jury which returned a verdict finding the instrument not to be the will of Asa Blankenship. From the judgment entered on this verdict this appeal is prosecuted.

The propriety of (1) a will contest by the widow, and (2) submission to the jury of the issue of a “verbal direction” of the testator in this will contest case are not before us, since the parties joined issue allowing the widow to contest the will and raised no objections to the instructions, the only question on this appeal is whether the evidence was sufficient to support the verdict.

We are first confronted with the well-recognized rule of law announced in Hines v. Price, 310 Ky. 758, 221 S.W.2d 673, wherein it is said:

As undue influence is peculiarly a question for the jury, this Court has been reluctant to upset the finding of the jury where there is more than a scintilla of evidence to support it.

Furthermore, where mental and physical incapacity, as well as undue influence, are relied upon, this Court said in Roland v. Eibeck, Ky., 385 S.W.2d 37 (1964):

“ * * * when a contest is pitched on both mental incapacity and undue influence, evidence that tends to show both need not be as convincing as would be essential to prove one or the other alone.”

Commenting further on undue influence and its very nature, the Court in the Eibeck case, supra, went on to state:

“It may be granted that the mere opportunity to exert undue influence is not, in and of itself, enough to justify a finding that it was in fact exercised. Cf. Waggener v. General Association of Baptists, Ky., 306 S.W.2d 271 (1957). Nevertheless, undue influence ‘is a subtle thing and can rarely be shown by direct proof. In many instances the facts and circumstances leading up to the execution of the desired instrument must be relied upon to establish its existence,’ McKinney v. Montgomery, Ky., 248 S.W.2d 719, 721 (1952), * * *”

Keeping these principles of law in mind, we have in this case a 93-year-old man who had previously suffered a stroke and had fallen and broken a hip. Admittedly, he had some physical as well as mental weakness. After his injury and after he had lived with the appellee for nearly 36 years he was taken from the hospital to the home of his son, the appellant, where he remained until his death. Appellee contends that the appellant would not allow her to take her husband away from his home, to a rest home, where they could be together. There was also testimony that Otha and his wife, Rooney, stated that the testator would not be taken out of their house except over their dead bodies.

Admittedly a confidential relationship existed between father and son and there was some participation by either the beneficiary or his wife in arranging for the preparation and execution of the will and after its execution it was handed to the wife of Otha.

We are not unmindful of the fact that the will was prepared by an attorney who testified that he took the information from the testator, prepared the will accordingly and returned in a few days and was present during its execution, and that Dr. Charles E. Peck, when asked whether he thought testator understood what he was doing, answered: “Apparently so.” O. D. Lawless stated that his mind was clear that night. On the other side, the appellee testified that the testator had periods when his mind was affected to such an extent that he wanted to go to see his mother who had died in 1925.

Ovalene Bryant, a nurse for Mr. Blankenship, testified that she was present when the will was executed and when the provision of the will was read giving Addie one-fourth and Otha three-fourths, Asa said: “No, no, I want Addie to have one-half and Otha one-half.” There is some corroboration of this testimony of the nurse and the evidence of Oliver D. Lawless. He stated that Asa said something about wanting his wife to have her portion although the attorney, who prepared the will, and the doctor who was present when it was executed, did not recall such an occurrence.

Another circumstance about which there can be no doubt, Asa was 93 years old and, as far as this record shows, never attempted to make a will before the one in controversy when he was, to say the least, an invalid in the home of his son, the chief beneficiary, and in the absence of his wife, the contestant, with whom he had lived over a quarter of a century.

The jury composed of 12 citizens of the locality, presumably acquainted with some or all of the witnesses and the parties, heard and observed all of the witnesses.

At first blush it may appear that Otha had the better part of it since he had a greater number of witnesses, yet, we are reluctant to upset the verdict of the jury when it was supported by substantial evidence and circumstances.

WHEREFORE, the judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    James DICKERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 23, 1965.

      James E. Higgins, Jr., Hopkinsville, for appellant.
    Robert Matthews, Atty. Gen., Frank Berry, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

On the 21st day of March, 1963, appellant, James Dickerson, after a plea of guilty to an indictment for rape, was sentenced by the Christian Circuit Court to life imprisonment in the penitentiary without privilege of parole.

On the 15th day of July, 1964, a motion to vacate that judgment was filed under RCr 11.42. The court docketed the case for trial, ordered the warden of the Kentucky State Penitentiary at Eddyville to produce the petitioner for a hearing, and appointed a local attorney to represent him. After a full hearing, the motion was overruled.

Appellant contends that the judgment should be vacated because (1) after his arrest he was not taken without unnecessary delay before a magistrate as directed by RCr 3.02, and (2) he was not represented by counsel at the time he made a confession.

Appellant concedes that the determination of a reasonable time within which to take an arrested person before a magistrate is to be made from the facts of the particular case. Rosenberg v. Bax, Ky., 258 S.W.2d 458, and Meyers v. Dunn, 126 Ky. 548, 104 S.W. 352, 13 L.R.A.,N.S., 881. He does not contend the circuit court was not justified in ordering his removal to a place of safety because of the high feeling present in the community. He insists, however, that he should have been granted a hearing before his removal to a place of safety. To grant such a hearing before his removal would defeat the purpose of the safety measure. Since there was danger of mob violence, any delay would have increased the hazard. We conclude that the terms of RCr 3.02 were not violated.

Appellant’s contention in regard to his second ground is not too clear. It seems to be based on the proposition that he confessed that he was guilty of the offense charged (after the examining trial) because of fear of mob violence and subsequently pled guilty at the trial because of the existence of that signed confession, not knowing that a confession given under such circumstances was inadmissible. First — the proof overwhelmingly discloses that the confession was not forced by the circumstances and was given voluntarily. Second — he had able counsel at the trial who testified at the RCr 11.42 hearing that he did not influence appellant in any manner to enter such a plea, but gave that option entirely to him.

The court, on the trial of this RCr 11.42 motion, held a full, complete hearing and reached a conclusion that seems absolute to us. Although we have reviewed this appeal at some length, it could well have been affirmed upon the citation of King v. Commonwealth, Ky., 387 S.W.2d 582, decided February 26, 1965.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. H. L. TUCKER and Zetta Tucker, et al., Appellees.
    Court of Appeals of Kentucky.
    April 23, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., L. A. Faurest, Elizabethtown, for appellant.
    Carmol D. Cook, Lake & Cook, Hartford, Sam T. Jarvis, Jarvis & Cornette, Greenville, for appellees.
   DAVIS, Commissioner.

The Department of Highways of the Commonwealth asks reversal of the judgment of $14,500 obtained by appellees in this condemnation action. The basis upon which the reversal is sought is the contention that the verdict is excessive and not supported by the evidence.

The present condemnation is for right of way necessary for construction of the Western Kentucky Parkway. Appellees owned a tract of about 235 acres near Rockport. The tract was cut in two by the railroad right of way of Illinois Central Railway Company. The present condemnation relates only to the tract lying south of the railroad; by common consent the parties have treated this action as if the 38 acres lying south of the railroad is the entity involved; we shall too.

The taken right of way embraces 12.12 acres of land lying south of the railroad. The 38 acre tract is severed by the non-access right of way, so that approximately 11.21 acres will lie north of the Parkway, just south of the railroad. About 14.88 acres of land will lie south of the Parkway, and no access to it will be available to ap-pellees ; it is landlocked. The 38 acre tract had not abutted a public road prior to the taking, but was served by a private passway which crossed the railroad at grade. This same access will serve the tract of 11.21 acres lying between the Parkway and the railroad.

Witnesses for both litigants agree that the entire 38 acres is underlain with a seam of No. 9 coal; all of the witnesses agree that the seam is of merchantable quantity and quality. The only real issue is whether the elevation above sea level is sufficient to admit of this coal’s being mined economically by the strip mine method. Witnesses for the appellant assert that the coal seam is found at elevations ranging from 293 to 336 feet above sea level. It is shown that the normal pool stage of the nearby Green River is 364 feet above sea level, thus placing the coal seam about 20 to 60 feet below the normal summer level of the river. It is recognized by all parties that in flooding periods of the Green River (which occur quite often in the winter and spring) the entire surface of the 38 acre tract is submerged.

Moreover, evidence was presented for appellant showing that the nature of the soil is such that it is not ideally suited to strip mining procedure. It was explained that the soil was “marine mud” and that by reason of its consistency it would not stay in a pile, but would slide and crawl. This condition was pointed to as a factor lessening the land’s coal potential. The appellant’s witnesses recognized that the land had a “speculative” value as potential coal land, but were of the view that under existing conditions it could not be mined profitably, nor sold as coal land on the market. Accordingly, the appellant’s witnesses ascribed a before market value of $3,821 to the land, with after market value of $912.

In contrast, the witnesses for appellees expressed the view that the land has present value as coal land and that the low elevation is not such a factor as would preclude its sale as such. Their before values ranged from $1500 to $1800 per acre, but they asserted that the remaining land would have no after value because of its size and proximity to the railroad. As noted, the jury’s verdict was for $14,500; this was reached by the jury’s fixing the before value of the 38 acres at $15,200 and the after value of the remaining land at $700. Considering the round figures at 38 acres, the jury’s before value finding was $400 per acre.

The appellant insists that the evidence for the appellees is so lacking in probative value as to be insufficient to support the verdict. The prime basis for this assertion is the fact that the comparable sales used by witnesses for appellees were shown to have been at sea level elevations higher than 400 feet, and that no coal had been mined in Ohio County at a surface sea level lower than 400 feet. This contention is buttressed by an official topographical map of the area. However, although no such mining at a level below 400 feet is shown, it is not claimed by appellant that its evidence conclusively demonstrates that no such mining has ever occurred in the county.

On the basis of the principles enunciated in Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, appellant contends that the verdict is excessive and unsupported by evidence of appropriate probative value. We are not able to accept this argument. As noted, the jury’s verdict and the consequent judgment were far less than the values asserted for appellees; the verdict was greater than the values expressed by witnesses for appellant, but not by nearly so much as it fell short of the values fixed by witnesses for appellees. Moreover, the witnesses for appellant conceded the ever present prospect that new developments may overcome the flooding difficulties they said now destroy the land’s value for coal purposes.

This case differs from the factual situation in such cases as Commonwealth, Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922. In the latter case there was sharp dispute as to whether coal was present in marketable quantity and quality, whereas that fact is admitted in the present case. The issue here, as noted, is whether the physical situation is such that the property has present market potential as coalv land. There was a direct conflict in the evidence on that point which emanated from witnesses qualified to express opinions in the premises. Although the witnesses for the appellees did refer to “comparable” sales which were not truly “comparable” to the extent of the difference in sea level elevations, this did not serve to utterly destroy the probative value of their evidence. It is significant that the jury’s verdict was substantially less than the acreage price paid in the “comparable” sales. Under all the circumstances of this case we are unable to say that the verdict is so excessive as to strike us at first blush as having been rendered as the result of passion or prejudice. We believe the verdict is adequately supported by competent evidence of sufficient probative value.

We refrain from discussion or consideration of certain points asserted in ap-pellees’ brief by way of “cross-appeal,” since no cross-appeal was perfected as prescribed by CR 74.


text:
    Kenneth HART, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.
    G. G. Teague, Jr., Williamsburg, for appellant.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Kenneth Hart, tried under an indictment for storehouse breaking (KRS 433.190), was convicted and sentenced to five years in the penitentiary. He appeals from the judgment entered.

The primary contention made on this appeal for reversal of the judgment is that Hart’s conviction rests solely upon the testimony of two accomplices and, as there was a lack of corroborative evidence tending to connect him with the commission of the offense, he was entitled to a directed verdict. We believe this contention is meritorious.

RCr 9.62 provides: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.”

During the night of August 20th, or the early morning of August 21, 1963, at Woodbine in Whitley County, a store owned by A. G. Perkins and the post office which is housed next to it were broken into and ransacked. Entry was made through a window in the front of the post office, and access to the store was gained by prying open a door that connects the two enclosures. A money order machine and a mail bag were taken from the post office. Merchandise and equipment of the estimated value of $1250 were stolen from the store.

Appellant, jointly indicted with Edward Russell Caywood and Fred Francis Gross, moved for and was granted a separate trial. Caywood and Gross, testifying for the Commonwealth, admitted their guilt in connection with the perpetration of the crime. They implicated appellant, stating that he transported them in his car to and from the scene of the crime.

Admittedly, the testimony of Caywood and Gross made appellant an accomplice in the commission of the offense. The Commonwealth produced W. H. Hendrickson, one of the postal inspectors who investigated the case. It is maintained his testimony corroborated that of Caywood and Gross. He questioned appellant concerning his participation in the larcenous act, and we quote from the evidence in the record the result of this witness’ interrogation of appellant:

“Q 7 Did he say he did not break into the store?
“A He didn’t say that he did and he didn’t say that he didn’t. He said he didn’t know anything about it and didn’t remember anything about it.”

This is all that was brought out as tending to substantiate, if it does, the testimony of the accomplices. We do not believe it was sufficient.

Corroborative testimony must be of such a quality that a reasonable mind could conclude it points toward guilt and tends to establish some fact that links the accused with the principle fact of the commission of the crime. See Harris v. Commonwealth, Ky., 285 S.W.2d 489. In Hartsock v. Commonwealth, Ky., 382 S.W.2d 861, this Court said: “The corroborative testimony may be circumstantial and may include an admission or confession of the defendant on trial. The court will consider implications in a defendant’s testimony which are inimical to his claim of innocence.”

The Commonwealth argues the jury might justifiably infer from appellant’s statement that he was connected with the perpetration of the offense of which he is accused. It is asserted he also .sought to establish a very poor memory and thus escape liability for his criminal acts.

Appellant did not testify. It was proven, too, he was drinking heavily at the time. In the case of White v. Commonwealth, 292 Ky. 416, 166 S.W.2d 873, White was charged with having committed rape. In a statement made by him prior to his trial he neither admitted nor denied the charge. In passing upon the probative worth of such a statement, this Court held: “Had appellant remained silent the effect of his action would have been neither to admit nor deny the charge, which silence could not have been used against him. When his only words on the subject were that he neither admitted nor denied the charge, it was equivalent to remaining silent. We can see no distinction between one remaining silent when charged with a crime and answering, ‘I neither admit nor deny the charge’. In effect it is one and the same thing.”

We are aware of the fact that appellant resorted to unusual words in his effort to declare his innocence. However, under the authority of White v. Commonwealth, supra, we conclude the corroborative evidence was insufficient to link him with the break-in charge.

Wherefore, the judgment is reversed and the case is remanded with the direction that, in the event of a new trial if the evidence be the same, the indictment will be ordered -dismissed.


author: PER CURIAM.

text:
    Clarence L. CAGLE, Petitioner, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Respondent.
    No. A-10636.
    Supreme Court of Texas.
    April 21, 1965.
    Rehearing Denied May 19, 1965.
    Herrick & Tillman, Fort Worth, for petitioner.
    Brown, Day & Crowley, Fort Worth, for respondent.
   PER CURIAM.

We are not in accord with the holding of the Court of Civil Appeals that Clarence L. Cagle was judicially estopped by former inconsistent testimony. However, the trial court correctly granted judgment notwithstanding the verdict, and the Court of Civil Appeals properly affirmed the judgment. 386 S.W.2d 149. The application for a writ of error is therefore refused, no reversible error.


author: STEAKLEY, Justice. SMITH, Justice

text:
    Sergeant Herbert N. CARRINGTON, Relator, v. Alan V. RASH et al., Respondents.
    No. A-10104.
    Supreme Court of Texas.
    April 7, 1965.

      Peticolas, Luscombe & Stephens, Wayne Windle, Jr., with above firm, El Paso, for relator.
    Tad R. Smith, El Paso, Waggoner Carr, Atty. Gen., Austin, Mary Kate Parker Wall, Asst. Atty. Gen., for respondents.
   STEAKLEY, Justice.

Relator, Sergeant Herbert N. Carrington, a member of the armed forces of the United States, filed his petition for writ of mandamus in this Court on April 15, 1964. The Respondents were the officials of the Republican Party of El Paso County. Relator sought the writ for the purpose of gaining recognition of his right to vote in the Republican Party Primary election of May 2, 1964. Relator entered the military service as a resident of Alabama, and under the provisions of Article VI, § 2, of the Texas Constitution, Vernon’s Ann.St., couH not acquire a voting residence in Texas So long as he was a member of the armed forces. On the basis of this provision of the Texas Constitution, this Court by its judgment dated April 29, 1964, denied Relator’s petition for mandamus.

The Supreme Court of the United States on March 1, 1965, held that the above-mentioned provision of the Texas Constitution deprived Relator of a right secured by the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, and ordered that the judgment of this Court be reversed with costs, and that the cause be remanded to this Court for further proceedings, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.

Our judgment of April 29, 1964, denying Relator’s petition for mandamus is set aside. The Republican Party primary election in which Relator desired to vote, and for which purpose he filed the petition for writ of mandamus, was held on May 2, 1964. This cause is now moot and the petition for writ of mandamus is dismissed.

The right of Relator to vote in future elections under the circumstances of this cause is, of course, guaranteed by the judgment and mandate of the Supreme Court of the United States and will be upheld by the courts of this State.

SMITH, Justice

(dissenting).

I do not agree that this cause is moot.

On April 29, 1964, we held that Article VI, § 2, of the Texas Constitution deprived the Relator, a nonresident of Texas at the time of entering the regular military service of the United States, of the right to acquire a voting residence in Texas so long as he remained'in the military service. 378 S.W.2d 304. In so holding, we rejected petitioner’s contention that this Article and Section of the Texas Constitution deprived the Relator of a right secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court granted Certiorari, 379 U.S. 812, 85 S.Ct. 33, 13 L.Ed.2d 26, and on March 1, 1965, that Court sustained petitioner’s position. 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.

The fact that the election in which the Relator desired to participate has long since been held does not preclude this Court from now declaring the law in accordance with the judgment of the United States Supreme Court. On the other hand, it is now our duty to affirmatively hold the Article and Section invalid.

This is an original petition for writ of mandamus filed by Relator, Herbert N. Car-rington, to compel Respondents to determine whether or not Relator is a qualified elector for the purpose of voting in the Republican party primary to be held on May 2, 1964, without taking into consideration the fact that he is a member of the United States Army and entered the military service while residing in Alabama. Respondents in this proceeding are Honorable Waggoner Carr, Attorney General of Texas; Honorable Alan V. Rash, Chairman of the Republican party Executive Committee of El Paso County, Texas, and Honorable Margaret Hockenberry, the “presiding judge” who will conduct the Republican party primary election in Precinct No. 16 of El Paso County, Texas.

Relator is a Sergeant in the United States Army. He entered the service in 1946, when he was a resident of Jefferson County, Alabama, and has been continuously in the military service since that time. It is undisputed that Relator is at present a resident of El Paso County, Texas, where he and his family have resided since February, 1962. He has designated El Paso, Texas, as his permanent home for all purposes on his military records, has paid ad valorem taxes and will pay such taxes in the future to the City of El Paso and to the County of El Paso, and has shown on his federal income tax return that he resides in El Paso, Texas.

On December 17, 1963, Relator paid the poll tax levied for the year 1963 to the County Tax Collector of El Paso County, Texas. Thereafter, on March 18, 1964, Relator wrote a letter to Respondent Rash, asking whether or not Relator would be allowed to vote in the Republican party primary election to be held on May 2, 1964. Respondent Rash, in his capacity as Chairman of the Republican party Executive Committee of El Paso County, and on behalf of Respondent Hockenberry, as “presiding judge” of Precinct No. 16, answered by letter that:

“Mrs. Margaret Hockenberry and I hereby refuse, and will continue to refuse to recognize Sergeant Carrington as a qualified voter. We have taken this position because he is in the United States Army and he resided outside the State of Texas at the time he entered military service.”

Prior to Relator’s correspondence with the Respondents, Rash and Hockenberry, the Respondent Attorney General, in an opinion, had interpreted the above amendment and its statutory counterparts. In interpreting these provisions, the Attorney General’s opinion stated in part:

“ * * * It goes without saying that the Texas Constitution cannot regulate voting rights of persons at any place other than within the State of Texas, and can not affect the voting rights of residents of other States while stationed in Texas. This provision relates only to residents of this State; but it does relate both to persons who were residents of Texas before entering service and to persons who became residents of Texas after entering service. If the only place at which a person may vote in this State is the County in which he resided at the time of entering service, and if at that time he did not reside in any County in Texas, it follows that he cannot vote in this State. Accordingly, it was said in an opinion S-148 that no person who entered service as a resident of another State may acquire a voting residence in Texas while he is in service.”

Based on this opinion, Respondents Rash and Hockenberry refused to recognize Relator as a qualified voter.

Relator first contends that the Attorney General’s interpretation of the above-quoted Constitutional provision is incorrect. It is Relator’s position that the provision was not intended to apply to members of the Armed Forces who were not residents of the State of Texas at the time they entered the military service, but who are now residents of Texas. Instead, Relator contends that the Constitutional amendment was intended to apply only to servicemen who resided in Texas when they entered the service.

Relator next argues that if the Constitutional amendment in question does apply to persons who resided in Texas and those who resided elsewhere at the time of entering service, then the amendment constitutes an unlawful discrimination within the class of military personnel; and, therefore, violates the equal protection clause of Section 1 of the Fourteenth Amendment to the United States Constitution. Relator bases this argument upon the theory that the Constitutional amendment, if applied to all military personnel,, discriminates against those servicemen who were not residents of Texas at the time of entering the service. To illustrate this alleged discrimination, Relator argues that a serviceman such as himself, who enters the Armed Forces in another state, and thereafter establishes his residence in Texas, is deprived of the right to become a qualified voter in any election so long as he resides in Texas and remains a member of the Armed Forces. This is so because when he acquires a new residence in Texas, he loses his voting privilege at the place where he resided when he entered service, and he cannot meet the residence requirements of Texas. Therefore, he is left without a place to vote. On the other hand, Relator argues that the Constitutional provision in question does not so deprive a serviceman, who was a resident of Texas at the time he entered the Armed Forces, of his right to vote. According to Relator, a serviceman who resides in Harris County, Texas, at the time he enters the Armed Forces, and who thereafter changes his legal residence to El Paso County, Texas, can still remain a qualified voter in Harris County. Thus, Relator concludes the Constitutional provision unlawfully discriminates within the class of military personnel.

Respondents argue that the provision in Article VI, Section 2, of the Texas Constitution was intended to apply to persons who were not residents of Texas at the time of entering service, and to persons who were Texas residents. Respondents further contend that this provision does not violate the Fourteenth Amendment of the United States Constitution because regardless of where a serviceman resided at the time of entering service, if he changes his legal residence while in service in Texas, he relinquishes his right to vote anywhere.

A determination of this proceeding does not rest upon whether or not the Constitutional provision under attack unlawfully discriminates within the class of military personnel, as contended by Relator. Even assuming that it does not, as Respondents so argue, this still does not settle the ultimate constitutional problem as to whether a state may segregate alt persons in military service as a class, which class is to be treated differently from other persons in regard to the right to vote. Such a distinction is arbitrary and unreasonable, thereby violating the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

It is true that neither the Federal Constitution, nor any of its amendments, gives to a person the privilege to vote in any state. See Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. It is clear that the privilege to vote in a state is within the jurisdiction of the state itself, “to be exercised as the State may direct. * * * ” Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). In fact, the Federal Constitution makes voters’ qualifications rest on state law even in federal elections. Art. 1, § 2. However, in exercising its broad powers to determine the conditions under which the right of suffrage may be exercised, the state cannot impose standards which the United States Constitution condemns as discriminatory. See Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072.

It is elementary that “class legislation” is invalid where the classification is arbitrary and unreasonable. The classification must rest on real and substantial differences and must reasonably promote some proper object of public welfare or interest. Thus, without contravening any restriction that Congress has imposed, a state can determine that only those persons who are literate should vote since “[t]he ability to read and write * * has some relation to standards designed to promote intelligent use of the ballot.” Lassiter v. Northampton County Bd. of El., supra.

In the present case Respondents contend that the purpose of the Constitutional amendment in question is to prevent a concentration of military voting strength in areas where military bases are located because such concentration might lead to complete domination and control of local politics by military men to the prejudice of the civilian citizens of the community. In my opinion this is not a reasonable ground upon which the State can say that there exists a real and substantial difference between servicemen and other citizens, and thereby confer different voting rights on these classes.

With present day mobility and industrialization, large groups, other than servicemen, move into the various communities of this state for -limited stays, and establish voting residence. One need only look to the large shifts of civilian population to major construction areas as an illustration of this fact.

Wherein lies the reasonable basis for distinguishing between these groups ?

In the recent case of Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), our Supreme Court has said:

“ * * * there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State. * * * ” (Emphasis added.)
“ * * * Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications * * * ” (Emphasis added.)

In the present case, Relator has proven to the satisfaction of Respondents that he meets the basic qualifications of holding a valid poll tax receipt, and that he meets all of the age and residence requirements for a qualified elector in El Paso County, Texas. The Respondents do not contend that Relator is unqualified to vote because he is immature, or is of unsound mind, or is a criminal or a public charge. Instead, by Respondents’ own admission, Relator is unqualified solely because he is a member of the Armed Forces, who resides in Texas. Such a “distinction” does not fulfill the test of reasonableness of classification as required by the Fourteenth Amendment of the United States Constitution.

      . “Any member of the Armed Forces of the United States or component branches thereof, or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.” Articles 5.01 and 5.02 of the Texas Election Code, V.A.T.S., restate, in effect, the law as contained in the above amendment.


author: WOODLEY, Judge.

text:
    Kenneth Edward HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 37651.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Rehearing Denied May 26, 1965.
    Wm. Monroe K'err, L. Lloyd MacDonald, Midland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery by assault; the punishment, 12 years.

The indictment alleged that appellant made an assault upon Thomas B. White and that by said assault and violence to him and by putting him in fear of life and bodily injury, fraudulently took from his possession, without his consent, one pistol, the property of Thomas B. White, with intent to deprive Thomas B. White of the same and to appropriate the same to his own use.

Thomas B. White was a police officer of the City of Midland.

Appellant, under indictment for forgery, escaped from custody after being taken to the hospital for treatment of an ear infection. About 6:30 A.M. he loosened himself from the chains by which he was held to a hospital bed, went to the home of A. L. Barnes and stole some guns and ammunition and some clothes.

About 4:30 P.M. Thomas B. White and James Lee Lanigan, another police officer, responded to a report of a suspicious person at the Bellview Baptist Church in Midland.

While in the church they were confronted with a person who proved to be appellant pointing a cocked pistol at them, which proved to be the .22 caliber Smith & Wesson revolver stolen from A. L. Barnes.

Appellant told the officers not to move or he would kill them; that he intended to use them to get two boys out of jail. He ordered the officers to remove their guns with their left hands and hand them to him. He took Officer Lanigan’s gun first and cocked it, then placed the .22 caliber pistol in his belt. He then took Officer White’s pistol, cocked it and instructed him to handcuff Lanigan with his hands behind him.

With one pistol pointed at Lanigan’s back and the other at his head, the three went down the stairway, appellant saying “If you don’t do exactly as I say I will kill you, and I mean it,” and “Don’t try anything or I will kill this man.”

Upon reaching the door where they encountered the Midland Chief of Police Wallace, appellant ordered him to dispose of his gun, which he did.

Appellant demanded a car, required another police officer (Crews) to remove his gun and handcuff himself.

Still holding a gun at Officer Lanigan’s head, appellant caused Officer White to drive an unmarked police car, Officer Crews and Sgt. Conklin to get in the front seat, and the handcuffed Officer Lanigan to get in the back seat with him, and said “Let’s go.”

They had gone only about 100 feet when a sound like a shot was heard and appellant, at the suggestion of Sgt. Conklin, looked out the back of the car to see that nobody had moved. When appellant did so, Sgt. Conklin leaned over the back seat and shot appellant five times with a snub nose revolver he had obtained and concealed in his waistband. Appellant was still holding the cocked pistol in his hand when he was shot, after which the handcuffed Officer Crews took it from him.

Officer White testified that he gave his gun to appellant because he was afraid that appellant would kill him if he didn’t.

A. L. Barnes identified the .22 revolver appellant was carrying and the suit of clothes he was wearing as having been taken from his home without his consent.

The sufficiency of the evidence is challenged, the contention being that there is no evidence .that appellant intended to permanently appropriate the pistol taken from Officer White to his own use. He cites and relies upon Posey v. State, 162 Tex.Cr.R. 153, 283 S.W.2d 58.

Posey was charged with assault with intent to rob. He took hold of an officer’s pistol but did not get possession of it. We held that a more reasonable deduction from the evidence would be that he was resisting arrest and seeking to escape from custody rather than attempting to steal the pistol.

Appellant, on the other hand, took the pistol and other guns and pistols, his expressed purpose being to release prisoners that were in jail.

His purpose and intent was further indicated by a map which he had upon which a route was marked between Midland and Austin, with arrows pointing toward Rock-dale and toward Belton.

There is no suggestion in the record that appellant intended to flee leaving behind the pistol he took from Officer White, or that he intended to return it to the owner.

We find the evidence sufficient to sustain the jury’s finding that appellant took the pistol by means of an assault and by putting in fear, with intent to deprive Mr. White of it and to appropriate it to his own use as charged in the indictment.

Appellant next complains that Deputy Sheriff Gene Howell was permitted to testify that, in addition to the indictment for forgery to answer which he was in custody, there were a number of warrants and hold orders indicating that there were charges against appellant in other places, about which appellant had been informed.

It is appellant’s contention that the court erred in admitting such evidence and in refusing his request that the jury be instructed to disregard it.

The evidence appears to have been admissible for the same reason proof that he was in custody to answer an indictment for forgery and passing was admissible, which was to show a previously formed design which included the acquisition of pistols and guns to aid in the escape of prisoners from jail. Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869, and Stephens v. State, 147 Tex.Cr.R. 510, 182 S.W.2d 707, cited by the state, appear to support the admissibility of such evidence.

For like reason, we overrule appellant’s complaint which relates to the admission of the testimony of A. L. Barnes to the effect that appellant had burglarized his residence, had stolen his pistol and shotguns, his ammunition, bank checks, and other properties, including the clothes he was wearing when he accosted the officers.

In addition to the cases above cited, see Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393.

What we have said also applies to appellant’s contention that the court erred in admitting evidence showing that two bank checks that Mr. Barnes testified were forgeries were found in a pocket of the clothes appellant was wearing.

The remaining claim of error relates to the court’s charge.

The charge required the jury to find beyond a reasonable doubt, in order to convict, that appellant took the pistol with intent to appropriate it to his use or benefit and with intent to deprive Thomas B. White of the value of same.

In the absence of any evidence raising the issue of appropriation for temporary use only, the trial court’s charge was sufficient and no error is shown in the refusal of appellant’s requested charge to the effect that the state was bound to prove that the taking of the pistol was with the intent at the time to permanently deprive the owner of it.

The judgment is affirmed.


text:
    Antonio Joe GARAY, Appellant, v. The STATE of Texas, Appellee.
    No. 38211.
    Court of Criminal Appeals of Texas.
    May 12, 1965.

      Pete Perez (on appeal only), Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced under Art. 63, P.C., life.

The indictment alleged that appellant burglarized a house belonging to A. V. Hickingbotham on or about 18th day of August, 1964.

We find no merit in the complaint addressed to the court’s failure to grant a continuance.

The evidence shows without dispute that the place of business of A. V. Hickingbot-ham known as Bob’s Auto Supply was burglarized on the night of August 18, 1964, entry being effected by the breaking of glass.

A neighbor saw a man who was using a large rock to break a window of the building. Appellant answered the description of this man.

Police were notified and appellant was found in the building. He was seen behind the cash register and when one of the officers arrived and pointed a pistol at him though a window, he was bent over a tray of tools. Upon seeing the officer he proceeded to empty his pockets on a work bench, taking from his pockets some mechanics tools and “quite a bit of silver.”

Mr. Hickingbotham, who was notified and came to his place of business after appellant had been apprehended, testified that the building was closed; that he did not give appellant permission to enter the building after he had closed it for the day; that a large box had been filled with tools and the change that was in the cash register was laying on the bench in the back of the machine shop.

To secure an enhanced punishment the indictment alleged that appellant was convicted of burglary in Criminal District Court of Tarrant County in Cause No. 67552 on January 18, 1963; and was convicted for felony theft in the same court in Cause No. 62890 on February 10, 1960. Such convictions were proved by certified copies of the judgment and sentence in each of said causes and the records of the Texas Department of Corrections, including fingerprints which were shown by expert testimony to be identical with appellant’s prints taken by the fingerprint expert.

The indictment also contained the allegation necessary to obtain an enhanced punishment under Art. 63, P.C., that the conviction in Cause No. 62890, on February 10, 1960, occurred and the judgment became final prior to the commission of the burglary for which appellant was convicted in Cause No. 67552, and that both prior convictions were final prior to the commission of the burglary alleged in the indictment.

Evidence showing that the burglary for which appellant was on trial was committed on August 18, 1964, and the judgment and sentence in Cause No. 67552 was sufficient to sustain the allegation that such conviction occurred on January 18, 1963 and was final prior to the commission of the burglary charged in the indictment.

To invoke the provisions of Art. 63, P. C. there remained the state’s burden to prove the allegation of the indictment that the conviction in Cause No. 62890, for felony theft, occurred and the judgment became final prior to the commission of the offense for which appellant was convicted in Cause No. 67552.

The indictment in Cause No. 67552 was introduced in evidence after being identified by the Clerk. The file mark thereon shows that it was filed on December 28, 1962.

An indictment for burglary may be presented within five years and not afterward. Art. 179, C.C.P.

Construing Art. 396(6), Vernon’s Ann. C.C.P., this Court has held that the state is not bound by the date on or about which the offense is alleged to have been committed and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment which is within the period of limitations.

Under the indictment presented December 28, 1962, proof that the burglary therein alleged was committed long prior to February 10, 1960, the date of the conviction for felony theft in Cause No. 62890, would be sufficient.

It follows that the introduction in evidence of the indictment was not proof that the offense charged was committed after February 10, 1960, hence the evidence is insufficient to sustain a life sentence under Art. 63, P.C. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383, and authorities there cited; Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697, and authorities cited.

Attention is further directed to the majority holding in Urban v. State, Tex.Cr.App., 387 S.W.2d 396, wherein it was said:

“We have concluded the learned trial court fell into error in not sustaining appellant’s objection tó the admission of the indictment. The indictment was clearly hearsay. It constituted no proof. Hearsay evidence is not actually evidence at all. * * * the conclusion is inescapable that the indictment was offered into evidence by the state to show that limitation had not run on the offense charged.”

If the Urban case was correctly decided, the indictment in Cause No. 67552 introduced by the state herein, or the file mark thereon, “constituted no proof”.

Art. 62, P.C. provides:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

The state having alleged and proved a prior conviction for burglary, and the jury having found that appellant was so convicted, the provisions of Art. 62, P.C. were applicable.

Twelve years being the maximum punishment for the offense of burglary in ordinary cases, the judgment and sentence should have ordered appellant’s confinement in the Texas Department of Corrections for a definite term of twelve years.

The judgment and sentence are reformed to so provide.

As reformed, the judgment is affirmed.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Leonard DeHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 37626.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Rehearing Denied April 21, 1965.
    Second Motion for Rehearing Denied May 26, 1965.
    Baldwin & Goodwin, by Joe B. Goodwin (on appeal only), Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is theft by false pretext; the punishment, five years.

The witness Jacobs and his wife testified that they bought a used Ford from appellant, that it was repossessed on the day the first payment was due according to the contract, that they went to Attorney Carriker for advice, that he telephoned appellant and that pursuant to Carriker’s instructions they secured merchant money orders and took them to appellant who accepted the same, but refused to return the Ford stating that he had changed his mind and wanted them to refinance the loan with someone else.

The witness Carriker, an attorney, testified that the Jacobs came to him with their problem, that he called appellant, whom he knew, asked him what was required to effect the return of the Ford to the Jacobs, was informed that $90.00 was sufficient and that he so advised the Jacobs. He stated that shortly thereafter they returned to his office “minus their money and minus their automobile”. He further stated that he again called appellant and was informed that he had changed his mind but refused to return their $90.00 and that he then advised the Jacobs to go to the District Attorney’s office.

Appellant and his wife testified to substantially the same state of facts but stated that the sum of money which the Jacobs brought his wife was not all that was due him, and because of this he refused to return the Ford. Two transactions of almost identical nature with other parties were admitted and limited in the court’s charge as evidence of appellant’s intent and purpose. This is a brief summary of this 659 page record.

The jury rejected appellant’s defense, accepted the testimony of the Jacobs and Carriker, and we find the evidence sufficient to support the conviction.

We overrule appellant’s contention that the court erred in failing to instruct the jury that if they believed that he accepted the money orders in payment of a pre-existing debt that they should find him not guilty. Appellant denied that he personally received the money orders and it was his testimony that they were turned over to his wife. While it is true that appellant testified that the Jacobs were in arrears in their payments and had given him post dated checks, the fact remains that the Jacobs and Carriker testified that appellant represented he would return the Ford upon the payment of $90.00, and appellant denied that any such agreement was made. This was the only substantial issue in the case and was by the jury decided adversely to appellant.

Appellant’s testimony at most constituted no more than a denial of the truth of the testimony of the witnesses named and is not an affirmative defense under the holding in Kimbro v. State, 157 Tex.Cr.R. 438, 249 S.W.2d 919. The court in his charge instructed the jury to acquit if they found that appellant had no fraudulent intent at the time he took the money orders in question.

We overrule appellant’s contention that the indictment is fundamentally defective. It clearly describes the “money orders” which were acquired by means of the false pretext. We find no reversible error in the court’s charge.

No reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

We have again examined the record in the light of appellant’s motion for rehearing, and remain convinced that a proper disposition was made of the case in our opinion on original submission.

The contention, now urged for the first time in the motion, that the court erred in refusing to permit appellant to present testimony before the jury that when the Ford automobile was purchased from him the prosecuting witness made certain misrepresentations concerning a 1951 Dodge automobile is without merit. Any misrepresentations made by the prosecuting witness in the original transaction were immaterial and irrelevant to the subsequent theft by appellant of the two money orders ten days later.

Certain claimed errors in the court’s charge are also urged for the first time in the motion for rehearing.

It is insisted that the charge was erroneous in failing to submit as appellant’s affirmative defense his claim that he did not come info possession of the money orders and appropriate them to his own use and benefit. While, as pointed out in our original opinion, appellant’s denial that he received the money orders did not constitute an affirmative defense, in the charge the court specifically instructed the jury to acquit appellant if they believed from the evidence or had a reasonable doubt that he did not appropriate the money orders to his own use and benefit. No error is presented.

Error is also urged to the court’s instruction limiting the jury’s consideration of the testimony relative to appellant’s transactions with the two other parties to the question of intent and system on the ground that the jury was not required to find, before considering the testimony, that appellant actually committed the transactions in question. Curry v. State, 169 Tex.Cr.R. 195, 333 S.W.2d 375, is relied upon, where it was held that the jury should be so instructed in a charge limiting its consideration of evidence as to other transactions.

An examination of the record reflects that in his objections to the charge appellant did not specifically point out such omission in the instruction, as was done in Curry v. State, supra. Hence, no reversible error is presented.

The claim of error in the court’s definition of “theft” in the charge as a ground for reversal is overruled. While, in defining the term, the court instructed the jury that '“Theft is the fraudulent taking of corporeal property to another * * it is apparent that the use of the word “to” instead of the word “of” was a typographical error. The charge, as a whole, clearly defined “theft” and the error therein — by use of the word “to” instead of the word “of” — was not specifically pointed out by appellant.

The motion for rehearing is overruled.

Opinion approved by the court.


text:
    Ex parte Ollie NASH.
    No. 38296.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Ollie Nash, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is a habeas corpus proceeding originally instituted in this Court attacking petitioner s conviction and life sentence for swindling over $50 (Art. 63 P.C.) in Hardin County on January 11, 1938 as void for the reason that he was an indigent and had no counsel.

A similar petition complaining that he was not represented by counsel was denied on January 6, 1958, under authority of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and Parsons v. State, Tex.Cr.App., 218 S.W.2d 202.

Petitioner relies upon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, decided in 1963, which specifically overruled Betts v. Brady.

The undisputed facts showing that appellant, an indigent, was tried without counsel and without waiving his right to counsel, petitioner is entiled to relief under the Supreme Court’s holding in Gideon v. Wainwright, supra.

The writ is granted; petitioner is ordered released from further confinement under the life sentence in Cause No. 3775 in District Court of Hardin County and it is ordered that he be remanded to custody of the Sheriff of Hardin County to answer the indictment in said cause.


author: McDONALD, Presiding Judge.

text:
    Aubrey ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 38196.
    Court of Criminal Appeals of Texas.
    April 28, 1965.
    Rehearing Denied May 26, 1965.
    Lawrence Fischman, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is theft, with two prior convictions for felonies less than capital alleged for enhancement purposes; the punishment, under Art. 63, Vernon’s Ann. P. G, life imprisonment.

The sole question presented us by Bill of Exception No. 1. is that the 1956 Terry County conviction in Cause No. 971 is void on its face and therefore cannot be used for enhancement purposes. Appellant urged the trial court not to pronounce sentence and presented a Motion in Arrest of Judgment setting out this foregoing contention, which was by the trial court overruled.

The Terry County conviction found appellant guilty of “Theft over the Value of Fifty Dollars”. It is appellant’s contention that there is no such offense known to the laws of the State of Texas. A similar contention was made in Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182, wherein the sufficiency of an indictment alleging that appellant had been convicted of the “offense of theft over the value of fifty ($50.00) and no/100 dollars, a felony” was challenged. There we overruled appellant’s contention. In Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753, the judgment in one of the cases attacked by relator recited that he was found guilty of theft upon his plea of guilty before the court. The sentence recited that he was adjudged guilty of theft. We overruled the contention that the judgment was void for failure to further describe the offense. We here adhere to these prior holdings and overrule appellant’s contention.

Appellant does not challenge the sufficiency of the evidence.

The judgment of the trial court is affirmed.