author: DICE, Judge. WOODLEY, Presiding Judge

text:
    M. M. LINDSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34019.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.

      W. D. Brown, Quitman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Judge.

The conviction is for driving while intoxicated ; the punishment, 3 days in jail and a fine of $50.

The evidence was undisputed that appellant drove his automobile upon a public highway on the date in question and after having stopped on the highway, was arrested by Highway Patrolman Kenneth Wagner and taken to jail some twelve miles distant.

The issue of appellant’s intoxication was sharply contested.

By informal bill of exception, appellant complains of the court’s action in permitting Officer Wagner to relate to the jury a statement made to him by appellant after his arrest and while he was being taken to jail.

The record reflects that while Officer Wagner was being questioned by State’s counsel on his direct examination, the following transpired:

“Q. Now, then, after the defendant was placed under arrest I believe you stated you drove his automobile to town, is that correct ?

“A. That is correct.

“Q. Did you have any conversation with the defendant at any time?

“A. I did.

“MR. BROWN: Your Honor, we object to any conversation that they had after he was placed under arrest.

“THE COURT: We will sustain that objection.

“Q. (By Mr. Flynt) Mr. Wagner, I will ask you whether or not did the defendant make any voluntary statement to you after he was placed under arrest ? Just a minute, Mr. Brown is going to object.

“MR. BROWN: Yes, we object to any statement made by the defendant after he was placed under arrest.

“THE COURT: Overrule the objection.

“Q. (By Mr. Flynt) You may answer that question.

“A. He did. The way to town, first we talked of two main subjects.

“Q. Only thing you can testify to is any voluntary statement the defendant made.

“MR. BROWN: May our objection go to all this testimony, any statement made after the defendant was arrested out there on the highway, any statement made by the defendant, voluntary, involuntary or force or otherwise.

“A. He said he would like to have a drunk charge and he asked if I was going to file DWI and I said yes, and he said could I file a drunk charge, and I said no, and the other thing talked about was the gas mileage on his car * * * ”

Appellant insists that the oral statement which he made to Officer Wagner, following his arrest, was in the nature of a confession and should not have been admitted in evidence because it was not made in compliance with our confession statute, Art. 727, Vernon’s Ann.C.C.P.

The State insists that the statement was admissible in evidence as a part of the res gestae. It is further contended, that in the absence of a showing that the statement was not a part of the res gestae, no error is shown under the rule followed by this Court in Garland v. State, 157 Tex.Cr.R. 4, 246 S.W.2d 204.

We are unable to agree that the statement was shown to be a part of the res gestae. The record clearly reflects that the statement was made by appellant after his arrest, in conversation with the arresting officer while he was being taken to jail from the scene of the arrest. Under the record, it is shown that the statement was not a part of the res gestae.

In the recent case of Bates v. State, Tex.Cr.App., 321 S.W.2d 76, a statement made to the arresting officer, under similar circumstances, was held not to be res gestae and its admission in evidence constituted reversible error.

The admission in evidence of appellant’s oral statement to the arresting officer while under arrest, which was in the nature of a confession, was error and calls for a reversal of the conviction. See also Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140 and Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452.

The judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting)-

I am unable to agree that the statement of appellant to the officer was in the nature of a confession or that its admission in evidence is shown to be error.

In Baimbridge v. State, Tex.Cr.App., 350 S.W.2d 923 No. 33,737, decided November 15, 1961, we observed that the statement of the defendant: “I will kill you for this” was not in the nature of an oral confession.

In Bates v. State, cited in the majority opinion, the defendant stated that he knew he was drunk but wanted the officer to take him home. The only question in Bates v. State was whether the court erred in admitting the statement as res gestae. The reasons stated in my dissent would be applicable here if appellant’s statement was in the nature of a confession.

The opinion reversing the conviction is in conflict with Garland v. State, 157 Tex.Cr.R. 4, 246 S.W.2d 204. There bill of exception No. 2 complained that Knox, one of the arresting officers, was permitted to testify that he asked the defendant Garland if he had anything to drink, and Garland replied: “I have had a few social drinks.” We said: -“In the absence of a showing in the bill that the conversation was not part of the res gestae, no error is shown.” On rehearing it was urged that the statement of the defendant, was not a part of the res gestae. Judge Morrison disposed of this contention as follows:

“We have re-examined the bill and find the only grounds of objection set forth therein to be: ‘that the oral statements made by the defendant after he had been detained and stopped by the officers were made while under arrest and inadmissible.’ It follows that the question of whether the statements were or were not a part of the res gestae was not before the trial court and therefore cannot be raised here.”


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Bellvin J. ANTHIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34195.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 5 days in jail and a fine of $200.

The State’s evidence shows that on the day in question, two automobiles collided at the intersection of North 6th Street and Waco Drive West in the City of Waco. After the collision one of the automobiles remained at the intersection and the other, a Chevrolet panel truck, was driven from the scene to where it stopped after traveling several blocks. Appellant was identified by the witness, Tadlock, whose place of business was located near the scene of the collision, as the driver of the Chevrolet truck. When taken into custody, appellant stated to the arresting officer, that he was the driver of the truck at the time of the collision and admitted that he had had “a few beers.” Three police officers, who observed appellant after he was taken into custody, testified that he smelled strongly of alcohol; that he was thick “tongued”, his speech was incoherent; that he had difficulty in walking and expressed their opinion that at such time he was drunk. A blood specimen taken from appellant after the collision, with his consent, upon being examined by Chemist and Toxicologist Eldon Straughan of the Department of Public Safety, was shown to have an alcohol content of .26%. The Chemist testified that such an alcoholic concentration in a person’s blood was indicative of drunkenness and that in his opinion the person from whom the specimen was taken was at the time intoxicated.

As a witness in his own behalf, appellant testified that on the day in question he was passing through Waco, around noon, when he stopped to buy some medicine for a headache; that while in the drug store he met a man whom he had known, but did not remember his name; that he asked the man if he would drive appellant’s truck to Fort Worth and the man said he would; that, after lunch, they got in the truck and the man drove while appellant got in the back on a pallet. Appellant stated that he next remembered being awakened by the truck bumping on the street on a flat tire and when he got out of the truck the man who was driving was gone.

The jury by their verdict accepted the testimony of the State’s witnesses and rejected that of the appellant and we find the evidence sufficient to sustain their verdict.

The record contains no formal bills of exception and there are no objections to the court’s charge.

No brief has been filed on behalf of the appellant.

The statement of facts is in narrative form and appellant’s sole objection to testimony appearing therein may not be considered as an informal bill of exception under Art. 759a, Vernon’s Ann.C.C.P. Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712 and Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946.

The judgment is affirmed.

Opinion approved by the Court.


text:
    William C. SEKALY, Appellant, v. The STATE of Texas, Appellee.
    No. 34252.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted in the Criminal District Court of Jefferson County of the offense of bookmaking and his punishment assessed at confinement in the penitentiary for a term of two years.

Trial was at the July-October, 1961 term of the court upon appellant’s plea of guilty to the indictment and waiver of a trial by jury.

Judgment was entered on July 7, 1961. On such date imposition of sentence was suspended by the court and appellant was placed upon probation upon certain terms and conditions.

The appeal is from the judgment of conviction resulting in probation being granted, as authorized by Art. 781d, sec. 8, Vernon’s Ann.C.C.P.

At the trial, appellant testified as a witness in his own behalf and upon his direct examination testified that he was a bookkeeper at the Texas Club in the City of Beaumont and that on December 3, 1960, the date alleged in the indictment, he did take and place a bet in the sum of $2.00 for one F. L. Burleson on a football game.

The State, with the agreement of appellant, introduced in evidence certain testimony given by a witness, C. J. Auten, before the grand jury of Jefferson County and in an injunction proceeding against appellant and also the testimony of one Walter Sekaly which was given at the injunction hearing.

The testimony of the witness Auten reflects that he was an employee of the Department of Public Safety in the Intelligence Section and that during the months of October, November and December, 1960, while working undercover in Beaumont, he made various bets on horse races and football games at the Texas Club. At such time a man was present who had been identified to him as William Sekaly.

The witness Walter Sekaly, in his testimony given at the injunction hearing, testified that on numerous occasions, prior to December 3, 1960, he had seen William Sekaly accept bets on horse races and football games at the Texas Club in Beaumont.

The record contains no formal or informal bills of exception and no brief had been filed on behalf of appellant.

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

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Erby POLLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 34256.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of felony theft and assessed a term of 3 years. On August 30, 1958, sentence was pronounced and the execution thereof was suspended and probation was granted.

Among the conditions of probation was that appellant commit no offense against the laws of this or any other state or the United States.

On August 24, 1961, which was some 6 days before the term of probation expired, the district attorney filed an unsworn petition to revoke said probation.

The petition set out the above condition and alleged that the district attorney “has good reason to believe, and does believe and charge, that the said probationer has violated ,the conditions of his probation as set out above; that the said violations of the conditions of his probation as mentioned aforesaid, were committed while the said probation was in full force and efifect.”

The record is silent as to any order of the court for the arrest of appellant or the setting of a hearing.

Hearing was held, however, on September 2, 1961, which was after the term of probation had ended. The evidence adduced upon said hearing, which resulted in the revocation order from which this appeal is prosecuted, is before us.

The state relies upon Ex parte Fennel, 162 Tex.Cr.R. 286, 284 S.W.2d 727, wherein we held that where the violation occurs and warrant of arrest for the violation of probation issues prior to the expiration of the term of probation, and the hearing is not unduly delayed, the court has authority to revoke probation though the term has expired before the order is entered.

The fact that no warrant is shown to have issued during the term of probation distinguishes the case before us from Ex parte Fennel, supra.

McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748, sustains appellant’s contention and requires reversal.

We direct attention also to the general allegation of the unsworn petition for revocation. Under such allegation a probationer might be called upon to meet proof of any violation of law at any time during the three years he was on probation.

The order revoking probation is reversed and set aside.


author: MORRISON, Judge.

text:
    George G. REYES, Appellant, v. The STATE of Texas, Appellee.
    No. 34064.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    No attorney for appellant of record on appeal.
    Charles J. Lieck, Jr., Criminal Dist. Atty., John G. Benavides, Harry A. Nass, Jr., Assts. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is passing as true a forged instrument, with three prior convictions for felonies alleged for enhancement; the punishment, life.

The injured party Chapa testified that he ran a small grocery store; that appellant and a woman companion entered his store on the day in question, purchased some groceries, and gave him a check bearing the signature “Rudy A. Kirchner” in the sum of $48.00 payable to “Manuel G. Reyes,” and endorsed the same in his presence. Chapa did not have sufficient funds on hand at the time to pay appellant the full difference between the amount of the grocery bill and the face of the check but did pay him $20.00 and told him to come back later for his change. Chapa testified that on the following Sunday appellant did return, but when he was told that Chapa had determined the check was no good appellant fled with his (Chapa’s) son in pursuit.

Daniel Chapa testified that when appellant fled from his father’s store he and some of his companions gave chase; that when they approached appellant he reached in his shirt, as if to get a weapon; that they became frightened, returned to the store, secured a rifle and resumed the pursuit, finally capturing appellant.

Rudy A. Kirchner testified that he carried a personal account at the bank on which the check upon which this prosecution was based, as well as other checks introduced in evidence, were drawn; that he had ordered 200 personalized and numbered checks but that only 175 were delivered to him and that all the checks introduced in evidence, including the one passed to Chapa, bore numbers within the group of 25 checks which were not delivered to him. He testified that the signature on the Chapa check, as well as the others, was not his.

Frank May testified that his duties at the bank, on which all the checks were drawn, for the last 18 years had been to compare questioned signatures; that he had compared Kirchner’s signature card on file in the bank with the checks in evidence and expressed the expert opinion that the checks did not bear Kirchner’s genuine signature.

The prior convictions were established by fingerprint comparison and certified copies of records of the various penal institutions, such as we have approved in Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154, and the cases there cited.

Appellant did not testify in his own behalf, but offered evidence that one Raymond Gonzales was in jail on charges in nine forgery cases.

Other personalized checks, numbered within the missing group, drawn on Kirchner’s account about the same date as the Chapa check, were introduced in evidence, and the parties to whom they were passed identified appellant as the person who had passed the same to them. These transactions were clearly admissible as an exception to the general rule relating to extraneous offenses. See Harris v. State, Tex.Cr.App., 333 S.W.2d 142, and 25 Tex. Juris. 2d, Sec. 59, p. 576.

No brief has been filed on behalf of appellant and no formal bills of exception appear in the record. The informal bills fail to reflect error.

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


author: BELCHER, Commissioner.

text:
    Odis Odell PENNINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 34162.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    William Lawrence Scarborough, Corpus Christi, for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery by assault; the punishment, thirty years.

This case has been to this court twice before on appeal and is reported in Tex.Cr.App., 332 S.W.2d 569 and Tex.Cr.App., 345 S.W.2d 527.

The disposition of this appeal makes a summary of the facts unnecessary.

By appellant’s bystanders bill, he complains of a statement made by state’s counsel during his voir dire examination of the jury panel which was as follows: “I don’t want to have to try this case again. It has already cost the state ten thousand dollars ($10,000).” To this statement, the appellant objected on the ground that the state’s attorney went far afield and exceeded his rights and injected harmful facts into the record which were highly inflammatory and prejudicial. The objection was overruled and appellant reserved his exception.

In refusing the proposed formal bill, the trial judge noted thereon that state’s counsel made no harmful remarks on voir dire examination of the jury, but he did not find that the statement complained of was not made. The appellant did not accept the reason of the trial judge for refusing to approve the bill. He timely perfected and filed his bystanders bill. The state did not contest or controvert in any manner the bystanders bill.

At the outset of the trial and before the examination of the jury panel had begun, the appellant presented his written motion to the court requesting that the court reporter be instructed to record all of the voir dire examination of the jury panel, including all remarks of counsel to the panel. The motion was considered and refused.

The preservation of the voir dire examination of the jury panel and remarks of counsel would have made available all matters occurring during such time. If preserved, it could have greatly aided and made possible an accurate presentation of the complained of error on appeal.

We deem it appropriate to direct attention to the fact that in Torres v. State, Tex.Civ.App., 331 S.W.2d 929, the reporter took the voir dire examination and we were dealing only with the question of how much of his notes the reporter should be required to transcribe and furnish to the defendant who was unable to pay therefor. The Torres case is not to be construed as holding that the defendant is not entitled upon demand to have the court reporter take the voir dire examination of the jury panel as well as the arguments and other parts of the trial of a felony case.

The statement complained of in the bystanders bill injected injurious and prejudicial matter before the jury panel which was reasonably calculated to prevent a fair trial before an impartial jury. The overruling of the objection by the court left the statement before the jurors who later served on the jury and found him guilty and assessed his punishment at thirty years in the penitentiary. It cannot be reasonably said that the statement did not contribute to the jury’s verdict.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Ex Parte Jack MACKIN.
    No. 33974.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    Toby Goldsmith, Fort Worth, for appellant.
    Stanley Kacir, Dist. Atty., Belton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Our prior opinion is withdrawn, and this one is adopted in lieu thereof.

Relator Jack Mackin, upon being adjudged guilty of contempt of court by the Honorable James K. Evetts, Judge of the 27th Judicial District Court of Bell County, was committed to the custody of the sheriff of said county. Application was made to this Court by relator for the writ of habeas corpus. This Court granted leave to file the original application.

The judgment of contempt assessed relator’s punishment at a fine of $100.00 and imprisonment in jail for 72 hours.

The questions for determination by this Court are whether the facts show that the trial judge was justified in finding relator guilty of contempt and whether the order or judgment of contempt entered by the trial judge is a valid order and sufficient on its face to support the action of the trial judge.

The undisputed facts before us are as follows:

The relator was attorney of record for the defendant, Milton C. Kitchens, in in Cause No. 14,498, styled The State of Texas vs. Milton C. Kitchens, on the docket of the District Court of Bell County, Texas. The case was called for trial on August 29, 1961. After both the State and the defendant had announced ready for trial and a jury was selected, the relator, at 11:40 A.M., requested the court to give him time to confer with State’s counsel relative to a possible plea of guilty in the cause, prior to the defendant entering a plea at that time. The court granted relator’s request at 11:40 A.M. and recessed the cause until 1:15 P.M. Court resumed at 1:15 P.M., at which time the defendant failed to appear, and upon his name being called at the courthouse door by the sheriff the defendant did not answer. It was then reported to the court by the sheriff that defendant’s automobile was missing from the place where it was parked during the morning session of court. Judgment nisi was entered forfeiting the defendant’s appearance bond.

From these facts, the trial judge found in the judgment that the court was fraudulently misled and caused to recess on the request of relator and the relator fraudulently effected the absence of defendant in the cause and prevented the court, in the absence of a plea, from proceeding with the trial of the cause, as he might have done had the plea been entered prior to the time Kitchens voluntarily absented himself. Ballou v. State, 113 Tex.Cr.R. 493, 22 S.W.2d 666. The court further found that relator thus perpetrated a fraud upon the court “causing a mistrial of the cause, and the defendant Kitchens to absent himself prior to a plea to the indictment * *

Relator has filed with this Court his affidavit stating that it was not his intention to mislead the court in requesting a recess prior to the plea of the defendant in the cause, and further stating that he had no knowledge that the defendant Kitchens would not return to the courtroom after the noon recess.

The affidavit of Milton C. Kitchens, defendant in the cause, has also been filed in this Court in which he swears that he left the. courtroom at the noon recess and did not return, but that he did not discuss his action with his attorney, relator herein.

The recital of the judgment is to the effect that relator perpetrated a fraud upon the court by requesting- the recess, and the presumption is that such recital is true. Ex parte Brewer, 156 Tex.Cr.R. 369, 242 S.W.2d 430. In this collateral attack, the burden is upon relator to overcome such presumption, and, in the absence of any evidence, this Court must accord the judgment of the trial court full dignity and uphold it unless the alleged misconduct would not as a matter of law constitute a contempt, and unless the judgment entered by the trial court is lacking in some essential element, such as being too general in its terms, or too vague and indefinite in its terms to support a valid order or judgment of contempt. The only evidence in the entire record is that reflected by the two affidavits. It is true that the affidavits were made by interested parties. It is also true that a trial judge is, in one sense, an interested party in a contempt proceeding. As we view the matter, the only persons in actual possession of the knowledge and information as to the plan, purpose or design and intent of relator and the defendant were these parties themselves. At best, the trial judge made a presumption based upon actions and conduct, without any supporting facts. We think it incumbent upon us to accord verity to the two affidavits, in the absence of any showing of facts in the judgment of the trial court. It necessarily follows that the judgment is too vague and indefinite to support the order of contempt. We think it necessary for the judgment in a contempt case to be specific and definite and almost as certain in its terms as an information or an indictment, so that the relator will be fully apprised of his alleged act of misconduct. Ex parte Davis, No. 34,318, Tex.Cr.App., 353 S.W.2d 29. While we recognize the rule that judgments speak verity and all presumptions are indulged in to sustain the judgment, we feel that the judgment should contain some factual allegations to give support to these findings and conclusions of the trial court. When a judgment is devoid of definite and specific factual allegations, we must then turn to the record to look for facts sufficient to sustain the action of the trial court in entering the judgment. In the case at bar, we feel that the relator carried the burden of overcoming the presumption that the recitals in the judgment were not only true but sufficient to sustain the trial court’s action.

For the reasons stated, we hold the judgment of contempt void; the writ is issued and relator ordered discharged by the sheriff of Bell County.

WOODLEY, Presiding Judge

(dissenting)-

The trial court found, in his order holding the relator in contempt:

“The Court further finds that the Court was fraudulently misled and caused to recess the Court prior to the time for the usual recess on the direct application and request of the said defense attorney Jack Mackin, and that the Court was misled by the said Mackin to the extent that the said Kitchens had no intent to enter a plea of guilty, and no agreement having been made, as reported by counsel for the State and the defendant at 1:15 PM; and said defense attorney Jack Mackin having directly requested and insisted to the Court that the Court not cause the defendant to plead to the indictment prior to the conference between the said Jack Mackin and the District Attorney and the defendant, full knowing that the bondsmen of the defendant had at that time been stricken from the approved bond list of Tarrant County, Texas, due to large sums in other judgments nisi now pending against them, one of the said bondsmen being the partner of said Jack Mackin; and that the said Jack Mackin went to the office of the District Attorney at the time of recess and discussed for a matter of moments the possibility of a nominal sentence, and the defendant Kitchens never appeared for said conference, and repaired immediately to his automobile and drove away; That the said Jack Mackin at no time offered any explanation of the absence of the said Kitchens at the time of or immediately after the reconvening of the Court at 1:15 PM.

“That the insistence of the said Mackin that the Court recess at 11:40 AM, and immediately before the Court called for the reading of the indictment and entry of a plea, the Court having previously stated to the said Mackin and the State’s attorney that the Court would not recess for lunch until said indictment was read and a plea entered thereto, the said Mackin fraudulently effected the absence of the defendant Kitchens and prevented the Court in the absence of a plea from proc — ding with the trial of the cause; The Court finds that the said Mackin, knowingly and fraudulently, thus perpetrated a fraud upon the Court causing a mistrial of the cause, and the defendant Kitchens to absent himself prior to a plea to the indictment, and the said Jack Mackin is adjudged in contempt of the Court * *

I am unable to agree that the affidavits of the relator and his client Kitchens overcome the presumption that the recitals in the contempt order are true.


author: McDonald, judge.

text:
    Leroy SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 33876.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    W. E. Martin, Chas. F. Tucker, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Erwin G. Ernst, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder with malice, with punishment of life confinement in the penitentiary as a second offender.

When this case was previously before this Court, it was reversed for jury misconduct. It is reported in Tex.Cr.App., 333 S.W.2d 385.

Following the reversal of this case, the appellant was re-indicted, alleging in addition to the primary offense a prior conviction for murder in Louisiana.

No material benefit would be derived from summarizing the testimony of the witnesses individually. There is no dispute in the fact that at approximately 1:45 or 2:00 o’clock A.M. on the morning of February 22, 1959, just outside the Happy Day Tavern, the appellant shot and killed Johnny Rogers with a .32 caliber pistol, and the appellant admitted while testifying as a witness in his own behalf that he had been previously convicted of murder in the State of Louisiana, as alleged in the indictment.

Appellant’s defense was self-defense. An eye witness in behalf of the State testified the deceased was not armed and was attempting to persuade the appellant to go home from the tavern where the difficulty arose. The appellant and several witnesses appearing in his behalf stated that the deceased was attempting to cut the appellant with a knife or some shiny object at the time the appellant shot and killed the deceased. The trial court fully charged on the law of self-defense.

The jury, after observing the witnesses and hearing them testify, resolved this conflict in the evidence against the appellant. We find the evidence sufficient to support their verdict. Appellant in brief and argument urges us to hold that the facts establish that he acted in his own self-defense. In Pruneda v. State, Tex.Cr.App., 329 S.W.2d 886, 887, this Court said: “We have been cited no authority, nor, are we aware of any which holds that self defense is established as a matter of law.”

The record on appeal contains no formal bills of exception nor objection to the court’s charge.

Appellant makes two contentions upon which he relies for reversal. His first contention is that the State’s counsel injected error into the record when he was questioning the court reporter, who prepared the record at the former trial, and asked him if he prepared the record for this case, on appeal. It is noted that at various stages during the trial of this case, witnesses for both the State and appellant were sought to be impeached by use of the statement of facts as prepared by the court reporter at the previous trial. To prove up such statement of facts and to account for the absence of the death weapon, the court reporter on the previous trial was called as a witness by the State. After the court reporter finished his testimony, appellant’s counsel, having taken no objection to the testimony of the court reporter, then asked the court: “I would like to make a motion out of the presence of the jury.” The jury was retired, and appellant’s counsel made a motion out of the presence of the jury, asking for a mistrial, based upon the injection by the State into the record of the fact that another jury in another court had convicted the appellant, that he had already been convicted in this case. Appellant’s counsel stated that he had not made an objection for the reason that he did not want to emphasize it before the jury. Later, the court instructed the jury that they were not to consider the question about the statement of facts taken of the previous trial of this case when it was on appeal, nor the answer, for any purpose whatsoever.

Appellant contends that the asking of the question was in violation of Article 759, Vernon’s Ann.C.C.P., in that it proved to the jury that he had been previously convicted in this same case by another jury. Article 759, V.A.C.C.P., provides:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.”

The same contention was before this Court in Witty v. State, 75 Tex.Cr.R. 440, 171 S.W. 229, and upon a parallel fact situation. There, a court reporter was testifying for the State to prove for impeachment purposes that he had taken and transcribed the testimony on a former trial of the same case. The admission of his statement that the copy of the testimony identified by him was the one filed in the Court of Criminal Appeals, thus disclosing defendant’s former conviction, was cured by an instruction that such statement could not be considered for any purpose.

Appellant’s contention is overruled.

Appellant’s further complaints relate to the closing argument of the assistant district attorney. The closing argument for the State is brought forward, having been approved by counsel and the trial court. While brought forward by informal bill of exception, in view of the provisions of Section 2(c) of Article 759a, V.A.C.C.P., as amended, we have carefully examined the record. See Kinnebrew v. State, Tex.Cr.App., 324 S.W.2d 554. It is our opinion that the argument reflects no reversible error.

Finding no error, the judgment of the trial court is affirmed.


text:
    Jesse M. CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 33926.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $100.

The State’s evidence shows that on the night in question, Highway Patrolman Charles Skinner, in response to a call, drove to a point on U. S. Highway 385, approximately four miles north of the City of Hereford in Deaf Smith County, where a lake had covered the highway. When he arrived shortly after 11 P.M., he observed a 1959, two tone green and white Chevrolet automobile parked off of the pavement in a ditch in the lake. Appellant was seated alone in the automobile behind the steering wheel and at such time was attempting to drive the vehicle from the lake. A barricade on the highway had been torn apart and there were certain tire and skid marks leading from the barricade to the automobile in which appellant was seated. An examination of the automobile showed that it had been damaged both in the front and right rear. On the front of the car there were marks of a dark stain similar to the color of the barricade, and on one side of the car the paint was scraped and the chrome bent. It was further shown that between 10:30 and 11:00 P.M., on the night in question, a 1959, two tone Chevrolet automobile was involved in an accident on the highway in the vicinity of where the road was covered by the lake and after “side-swiping” another automobile had driven away. Highway Patrolman Skinner, in describing appellant’s actions and appearance on the night in question, testified that he “couldn’t walk”; that he could smell alcohol on appellant’s breath and expressed his opinion that at such time appellant was intoxicated. The witness J. D. Kirkland, who accompanied Patrolman Skinner to the lake, testified that at such time he could smell alcohol on appellant; that appellant couldn’t walk and expressed his opinion that appellant was intoxicated.

Appellant did not testify but called his wife as a witness who testified that he had a phobia of being alone and as a result did not drive his automobile out of town alone. Other witnesses were called who testified that they had accompanied appellant on trips because he would not drive his automobile by himself. Dr. C. N. Stapp, a chiropractor, testified that appellant had a nervous and mental condition described as a psychoneurosis. He further testified that appellant’s condition was such that he was afraid of space and of being alone, and if left alone in an open space appellant could become so nervous that he could not talk or walk.

By formal bill of exception No. 1, appellant insists that the court erred in overruling his motion for an instructed verdict on the ground that the State had failed to prove that he operated the automobile upon a public highway. The State’s evidence clearly shows that appellant was seated in the automobile alone, behind the steering wheel, attempting to drive it from the lake. Tire and skid marks led from the broken barricade on the highway to where the automobile was parked off the pavement in the ditch. Such evidence was sufficient to show that appellant drove the automobile upon the public highway as alleged. See Thomas v. State, 162 Tex.Cr.R. 268, 283 S.W.2d 933; Sandford v. State, Tex.Cr.App., 334 S.W.2d 184, and Harrison v. State, Tex.Cr.App., 350 S.W.2d 204. We find no error in the bill.

Formal bill of exception No. 2 presents appellant’s objections to the court’s charge. Appellant objected to the charge on the ground that it did not submit to the jury as appellant’s affirmative defense, the question raised by the evidence as to Ms physical and mental condition and his inability to be alone. The issue of appellant’s intoxication was properly submitted to the jury. The evidence of appellant’s physical and mental condition, if accepted by the jury, was not proof of such an independent fact, which if true, would entitle appellant to an acquittal. Under the record the court did not err in refusing to submit such issue to the jury. Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432, and Roescher v. State, 162 Tex.Cr.R. 335, 284 S.W.2d 908. We have carefully examined the court’s charge in light of appellant’s other obj ections and no reversible error appears.

Formal bill of exception No. 3 presents appellant’s contention that State’s counsel committed reversible error in his closing argument to the jury when he stated: “Gentlemen, there is behind each and every criminal statute a history of public suffering because of the intentional defaults of people * * * It is shown by the bill that appellant’s objection to the argument was sustained and his motion for mistrial overruled. The argument complained of violated no mandatory statute and was not obviously prejudicial to appellant. No reversible error is presented by the bill.

We have examined appellant’s informal bills of exception to the court’s rulings on the admission and rejection of evidence and find no reversible error.

The court did not err in permitting the Witness Kirkland to describe the condition of the highway in the vicinity of the lake where appellant was found seated in his automobile and permitting the Witness Rojek to testify with reference to a trafile accident on the highway in the vicinity of the lake in which a 1959, two tone Chevrolet automobile was involved, over appellant’s objection that his connection therewith was not shown. The State’s case was one of circumstantial evidence. Such evidence was properly offered by the State and admitted by the court to show that appellant operated his automobile upon a public highway. Nor did the court err in permitting the witness Kirkland to testify that appellant was intoxicated, over appellant’s objection that he was not shown to be qualified to express an opinion. The witness testified that he observed appellant at the scene and smelled alcohol on his breath. The witness, having observed appellant’s actions and appearance, was properly permitted to express his opinion as to intoxication. Mozley v. State, 163 Tex.Cr.R. 250, 290 S.W.2d 518.

We find no reversible error in the court’s action in permitting the Witness Kirkland to testify on his re-direct examination by State’s counsel that the call he received on the night in question was “ * * * that there had been a sideswiped car out on the road,” over appellant’s objection that the same was hearsay. On his cross-examination, appellant elicited from the witness that he went to the scene in response to a call. Appellant, having first gone into and elicited from the witness the fact that he went to the scene in response to a call, entitled the State to go further into the matter on re-direct examination and show the nature and substance of the call. Art. 728, Vernon’s Ann.C.C.P.; Trammell v. State, 145 Tex.Cr.R. 224, 167 S.W.2d 171; Jones v. State, 153 Tex.Cr.R. 345, 220 S.W.2d 156, and Johnson v. State, Tex.Cr.App., 341 S.W.2d 170. We further observe that in view of the other evidence admitted before the jury that an automobile had been “side-swiped” in the vicinity of the lake, the testimony elicited from the witness could not have been injurious to appellant.

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

Opinion approved by the Court.


text:
    Vladimir Louis BROSCH, Appellant, v. The STATE of Texas, Appellee.
    No. 34022.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Gauntt & Carswell by Thomas H. Cars-well, Georgetown, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated, as a second offender; the punishment, one year in jail and a fine of $500.00.

Richard James Newland testified that he and his fiancée were riding in a Studebaker automobile driven by Milton P. Keith, who was accompanied by his ex-wife; that they were just outside the city limits of Bartlett, traveling in a southerly direction at about 40 miles per hour; that they met a black Ford traveling in a northerly direction; that appellant was driving the Ford and was alone; that the Ford was on the wrong side of the highway; that Keith jerked the Studebaker toward the bar ditch on the right hand side of the highway but was unable to avoid a collision with the Ford; that the left side of the Studebaker was badly damaged; that Keith suffered a broken leg in the collision; that he talked with appellant after the collision and that appellant weaved when he walked, smelled of intoxicants, and was in his opinion intoxicated.

James Bailey testified that he operated a wrecker service in connection with his Chevrolet agency; that he was called to the scene of the accident on the date in question; that he observed appellant; that appellant had a scratch on his hand, but stated that he was not hurt, and that appellant had difficulty in keeping his balance, was hard to understand when he talked, and was in his opinion intoxicated.

Travis Thomas and Norman Autrey testified that they were highway patrolmen, that they talked with appellant at the scene of the accident, that appellant was loud and profane, that he was unsteady on his feet and smelled strongly of intoxicants, and was in their opinion intoxicated.

Appellant was identified as being the person convicted in the prior misdemeanor case.

Appellant did not testify or offer any evidence in his behalf, and we find the evidence sufficient to support the conviction. We will discuss the contentions advanced in the brief.

Appellant’s complaint that the court erred in refusing his motion to quash the venire is not raised by a formal bill of exception, and the transcript does not show that the motion to quash was ever presented to the trial judge; and if it was so presented, there is no exception to the overruling of the motion, which under Article 760e, Vernon’s Ann.C.C.P., is requisite to authorize this Court to consider the question without a bill of exception.

Appellant contends the court erred in overruling his motion to quash the indictment, his objection to the court’s charge, and his objection to the introduction of the previous misdemeanor conviction for driving while intoxicated on the ground that the judgment in such conviction was not approved or signed by the trial judge.

The judgment, which was introduced in evidence, bears the certification of the county clerk that it is a true and correct copy of the judgment in Cause No. 12,818, as it appears of record in Volume 8, page 372, of the Criminal Minutes of the Williamson County Court, and the separate statement of facts adduced on the motion to quash the indictment indicates that the above Criminal Minutes were approved and signed by the Williamson County Judge. Appellant’s contention is overruled.

Appellant further contends that the judgment in the misdemeanor cause was-insufficient under the provisions of Article 784, V.A.C.C.P., because it failed to commit the defendant to the sheriff to serve his jail sentence. We do not agree that this would prohibit the use of the judgment in a subsequent prosecution for a. felony offense.

Appellant contends that the court erred in overruling his motion for a mistrial when the following occurred while appellant’s counsel was cross-examining; patrolman Thomas:

“Q. When Mr. Brosch told you the other car had come over the center stripe and hit him, what did you say; what did you do?
“A. What did I say to him?
“Q. Yes.
“A. I don’t recall the entire conversation. I believe I went into something about his drinking, ask him if he was at it again.”

Patrolman Thomas’ answer was responsive-to the question asked by appellant’s counsel and was invited by such question, thus,, the court did not err in refusing to grant a mistrial. 5 Tex.Jur.2d 611, sec. 409, and' authorities cited thereunder. We observe-further, however, that appellant’s prior conviction for driving while intoxicated was-before the jury, and it is difficult to perceive how the above testimony was harmful to him.

All of appellant’s contentions have been* carefully considered, and, no reversible-error appearing, the judgment is affirmed..


text:
    James Lloyd WHEELER, Appellant, v. The STATE of Texas, Appellee.
    No. 34233.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Frank D. Wear, Paris, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

Our able State’s Attorney confesses error, and we agree. Motion to quash the information was made on the grounds that it was not based on a valid complaint. The complaint does not show that it was sworn to before an officer authorized to administer oaths.

A valid complaint is a prerequisite to a valid information. Carpenter v. State, Tex.Cr.App., 218 S.W.2d 207.

The judgment is reversed, and the prosecution is ordered dismissed.


text:
    Robert Bradley THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 34197.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.

      O’Connor & Brister, by Ed M. O’Con-nor III, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary of a private residence at night with intent to commit theft; the punishment, 99 years.

Mrs. Mittie Hughes, the State’s prosecuting witness, lived in her residence on 4th Street in the town of Lorenzo, Crosby County. She testified that on the night of August 26, 1960, she went to bed around 11:30 P.M.; that later in the night she was awakened and heard a scraping noise “kinda like on paper”; that a person then pushed the door to her room open, jumped in bed on top of her, put his hand on her mouth and choked her; that she tried to free herself and pulled his hair; that when a roomer in the house came to her rescue, the person got behind the door and, after hitting the roomer, fled from the house. Mrs. Hughes testified that on the night in question the front screen door of the house was closed, the back screen door was locked, and that the entry into her house was made without her authority or consent.

In the investigation which ensued, a quantity of hair was found by the officers in Mrs. Hughes’ bed, and some greasy spots were also found in the bed and on the wall of the living room.

It was shown that on the night in question appellant was seen, around midnight, seated in a Ford pickup truck parked near the residence of the prosecuting witness.

The following day, appellant was arrested and later, after being duly warned, made and signed two written statements in which he admitted having entered the house on the night in question for the purpose of obtaining money. Both statements were intro duced in evidence by the State.

In his two statements, appellant related in part as follows:

“On Friday night, 8-26-60, at about 9:00 or 9:30 P.M. I left Lorenzo, Texas in a 1960 Ford pickup that belongs to George Carter of Lorenzo who is my boss. Glennis Pinkert and another boy they call ‘Sandy’ who is the step-son of Bill Edwards (I do not know his last name) were with me. We came to Lubbock and went to 508 Elgin and visited with some girls. Around midnight, we left and went back to Lorenzo and let them out at the C & B Pump Co., where I work. I drove the pickup around the block, starting home and turned around and came back down by her house and parked diagonally across the Street from her house headed East, got out and walked across the street to the front of Mrs. Mittie Hughes house. I had roomed with her for one week in 1957 and knew her personally.
“I went to the front door, the door was open and the screen shut but not locked. I knocked lightly to see how sound they were sleeping in the house and- no one answered, so I went on in. I entered the house thru the living room. No lights were on in the house and it was dark and I couldn’t see very well. I felt along the wall trying to find her door and when I did find it, the door was shut, before I went into her room, she waked up and started screaming, I opened the door and went into her room and told her to ‘be quite’ and put my hands over her mouth to try to keep her from screaming and I heard a roomer coming and I stepped to one side of the door and I think I mostly pushed instead of hitting him, but he went down. Then I went on out the back door and went around the house on the East side to where the pickup was parked and got in my pickup and left and went home and put the pickup behind my house.
“I went to the house to look for money, that is the reason I parked diagonally across the street.
“No one gave me permission to enter Mrs. Hughes house in Lorenzo, Crosby County, Texas. I just needed money to go back to Lubbock to mess around.
“In 1946,1 served time for auto theft in Jasper, Georgia. I also served time in a chain gang camp at LaFayette, Ga. in 1949 for robbery. Later I served again on a chain gang in Dalton, Ga. for auto theft. * * * This last prison sentence was in 1955.”

It was further shown that a sample of hair taken from appellant, with his consent, and a sample of the hair found in the bed were delivered to Chemist and Toxicologist Wayne Anderson of the Department of Public Safety for examination. Chemist Anderson testified that he made a chemical and microscopic examination of the samples which disclosed that the two samples of hair were similar in size, texture, color and pattern.

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

The court submitted to the jury the issue of appellant’s guilt of the primary offense and also the issue as to whether he had been previously convicted of two felony offenses less than capital which were alleged in the indictment for the purpose of enhancing the punishment.

The jury by their verdict found appellant guilty only of the primary offense of burglary of a private residence at night and assessed his punishment at confinement in the penitentiary for a term of 99 years.

Appellant presents numerous complaints to that portion of the court’s charge which submitted to the jury the issue as to whether he had been previously convicted of the two prior felony offenses which were alleged for enhancement. Appellant’s complaints to this portion of the charge need not be considered since the jury did not enhance his punishment under the allegations of the indictment charging the prior convictions. Rodgers v. State, 137 Tex.Cr.R. 442, 131 S.W.2d 766, and Cameron v. State, 153 Tex.Cr.R. 29, 217 S.W.2d 23.

Appellant insists that the evidence is insufficient to sustain the conviction because the State failed to prove a “breaking” into the house under the allegations of the indictment which charged an entering by “force, threats and fraud, and at night.” Appellant also contends that the evidence is insufficient because it failed to show how entry into the house was made or the time or place of entry.

When nighttime burglary is alleged, evidence of an actual breaking is not essential to a conviction, and proof of an entry by means of force, threats or fraud is sufficient. Art. 1392, Vernon’s Ann.P.C.; 10 Tex.Jur. 2d, par. 29, pp. 185-186; Carr v. State, 19 Tex.App. 635, and Jones v. State, 60 Tex.Cr.R. 426, 132 S.W. 476.

The evidence in the present case is sufficient to show that appellant entered the house at night through the front door. While the proof shows that the door itself, was not closed, the evidence shows that the front screen door was closed. The prosecuting witness testified that at such time the screen door was closed. Appellant, in his confession, admitted that the screen was shut and that he entered the house to look for money.

Such entry, through the screen door which was closed, was entry into the house by force and sufficient to constitute burglary. Jones v. State, supra; Harris v. State, 119 Tex.Cr.R. 71, 44 S.W.2d 708, and Matelski v. State, 126 Tex.Cr.R. 217, 71 S.W.2d 272.

The evidence is sufficient to sustain the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Judge.

text:
    Nolen Henry LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34181.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    No attorney for appellant of record on appeal.
    Henry Wade, Asst. Dist. Atty., Jack Hampton, Phil Burleson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Judge.

The offense is murder; the punishment, 99 years.

The State’s evidence shows that appellant killed the deceased by shooting him with a pistol. The killing occurred at the apartment of the State’s witness, Emma Lynelle Anderson, with whom appellant had been having dates.

On the day in question, the deceased, an acquaintance of the State’s witness, came to her apartment in the afternoon. After the deceased arrived, appellant telephoned the prosecuting witness for a date and upon being refused told her that he was coming after his pistol and a radio. Soon thereafter, appellant came to the apartment and after having a difficulty with the State’s witness and her brother over the pistol, left with the pistol around 4:30 P.M. While at the apartment, appellant was introduced to the deceased and when he left the prosecuting witness told him not to come back. After appellant departed, the State’s witness and the deceased left the apartment and returned around 11:30 P.M. When they returned, the deceased went to bed and the prosecuting witness, after undressing, came into the room and sat down on the foot of the bed. While the two were talking, appellant forced his way into the apartment, through the front door, fired two shots and then fled. After the shots were fired the deceased ran out of the apartment and fell in the back yard with two bullet wounds in his body. Following his surrender to the sheriff, appellant accompanied the officers to an address where a .22 caliber pistol, with which he shot the deceased, was recovered. An autopsy performed upon the deceased’s body disclosed two bullet wounds, one in the neck and one in the left side of the back which passed through the aorta and was the cause of death.

It was further shown that several weeks before the killing, the State’s witness had quit dating appellant and at that time appellant stated that if he ever saw her with anyone he would kill them.

Testifying as a witness in his own behalf, appellant stated that he had been going with the State’s witness for some time and on occasions spent the night in her apartment. Appellant testified that on the day in question, he went to the apartment in the afternoon to get his radio and at such time he was introduced to the deceased. Appellant denied having any trouble over the gun. Appellant testified that on the night in question, he returned to the apartment around 12:30 A.M., and entered by “jimmying” the lock which he had done on prior occasions. Appellant stated that as he walked into the house he heard someone running and heard his girl friend say, "Nolen Darling” and a man’s voice ask, “where is the gun,” and he thereupon became “panicky” and started shooting. Appellant admitted firing the gun two times, but stated that he was frightened and did not take aim and did not intend to shoot or kill anyone.

Appellant further testified in support of his application for a suspended sentence that he had never been convicted of a felony and called certain character witnesses who attested to his good reputation.

The court instructed the jury in his charge on the law of both murder with and without malice and charged the jury on the appellant’s right of self defense against a deadly attack. The issue of suspended sentence was also submitted to the jury in the charge.

The jury by their verdict rejected the testimony of appellant and we find the evidence sufficient to sustain their verdict.

The record contains no formal bills of exception and there are no objections to the court’s charge.

No brief has been filed on behalf of appellant.

We have considered the informal bills of exception contained in the statement of facts and find no reversible error therein.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Flemin GASKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 33909.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Rehearing Denied Jan. 31, 1962.

      Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas. State’s Atty., Austin, for the State
   MORRISON, Judge.

The offense is possession of marijuana; the punishment, two years.

In view of our disposition of this case, a recitation of the facts will not be necessary other than to state that bill of exception No. 1 recites the following facts: Each of the arresting officers testified that contemporaneously with the arrest they had prepared a complete report of the transaction in question. The arrest was shown to have occurred some two years prior to the trial. The officers testified that before coming to court they had read the report and were in fact testifying from their refreshed memory. After each of the officers had testified, appellant made a request upon the prosecutor to produce such report for the purpose of cross-examining the officers. The prosecutor admitted that he had such report in his possession, but the court refused to order him to deliver the same to appellant’s counsel for the purpose stated, to which appellant objected.

Thereafter, at the hearing on the motion for new trial, appellant again made demand upon the prosecution for production of said report for the purpose of perfecting his bill of exception, but, even though it was stipulated that the prosecutor had said report in his possession, the court declined to order him to produce the same.

In the recent case of Moreno v. State, Tex.Cr.App., 341 S.W.2d 455, 457, in explaining our prior holding in Wiley v. State, Tex.Cr.App., 332 S.W.2d 725, we said:

“Our holding was that such statements should have been made available for the record for the purpose of showing injury, if there was injury.”

For the error of the court in failing to permit appellant to perfect his bill so that he might show injury, if any occurred, the judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

We disclaim any intent to adopt the Jencks decision (Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103) or the so-called Jencks Act (18 U.S.C.A. § 3500) as a rule of procedure in this state.

We are not here dealing with grand jury testimony, or with a confession of the defendant, but with a previous statement shown by the evidence to have been made by a witness who has testified for the state, which statement was available and inspection was requested for the purpose of cross-examination and possible use for impeachment purposes.

We agree with counsel for the state that under the decisions the defendant has an absolute right to have such a statement only where it has been used in some way before the jury by which its contents became an issue, such as used by the witness in testifying to refresh his memory, or exhibited or read from or used to question the witness in the jury’s presence. Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920, 22 L.R.A.,N.S., 706; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166; Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464.

We agree that the facts here do not bring the case before us within said rule, the witness having testified that he refreshed liis memory from it before he came to testify, and there being no evidence that he used it in testifying or that it was exhibited ■or used in the jury’s presence.

From the decisions, it appears that the rule we have applied is in effect the same as that in the Federal Court stated and applied in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, long before the Jencks case was tried, namely, the trial judge has a large discretion in allowing or denying the inspection of the witness’ prior statement.

The rule applies where demand is made after the witness has testified on direct examination and is for the purpose of cross-examination, and possibly impeachment purposes, whether the statement has been used by the witness before trial to refresh his memory or not.

In Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931, the statements of the witnesses, inspection of which was demanded, were before us and we concluded that no injury was shown.

In Funk v. State, 84 Tex.Cr.R. 402, 208 S.W. 509, decided in 1919, this Court said that Funk should have been accorded the privilege of inspecting previous statements of an accomplice witness, but under the record found no harmful error.

In Kilpatrick v. State, 80 Tex.Cr.R. 391, 189 S.W. 267, (1916) this Court in reversing a conviction for murder, stated that the trial court should have required the production of a telegram sent by two state witnesses which was “directly contradictory” of their testimony at the trial.

As pointed out in our original opinion herein, the refusal of counsel for the state to make available the statements or reports which appellant’s counsel was not permitted to inspect, has deprived appellant of the opportunity to show, if he could, that he was prejudiced by the court’s refusal to require the statements to be produced.

We have no doubt but that there are cases where the interests of justice require that the trial judge, even after trial, refuse to permit an inspection of instruments in the state’s files, nor do we doubt that the burden is upon the defendant to show that the demand for inspection of the statement was timely made and the refusal of the court to grant such demand was prejudicial and constituted an abuse of discretion.

The trial court may, however, in his discretion require production of a prior statement of a witness, and is not precluded from doing so by the absence of a statute or rule of procedure. If he refuses to so require, the statement should be made a part of the record on appeal, in order that the defendant will not be deprived of the opportunity to show, if he can, that the trial judge abused his discretion in refusing to grant the demand, and that the defendant was harmed by such ruling.

Appellant having been deprived of the opportunity to show that the trial court abused his discretion, to his prejudice, in this regard, reversal of the conviction appears to be in order.

The state’s motion for rehearing is overruled.


text:
    Robert Lee FIELDS, Appellant, v. The STATE of Texas, Appellee.
    No. 34008.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    John J. Browne (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston,, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder with malice; the-punishment, 25 years.

No statement of facts or bills of exception appear in the record.

Appellant’s attorney on appeal only-alleges that the judgment is void because it fails to recite that the punishment had" been determined by the jury. We do not agree. The judgment recited that he was. guilty of a felony “as found by the jury, and', that he be punished, as has been determined. * * * ”

All of appellant’s remaining complaints set forth in his brief relate to alleged errors in the court’s charge. In the absence of a statement of facts, errors in the charge-cannot be considered. Snyder v. State, Tex.Cr.App., 329 S.W.2d 292, and Conwell v. State, Tex.Cr.App., 258 S.W.2d 86.

Finding no reversible error, the judg- - ment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Walker GAINES, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 3675.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1961.
    Rehearing Denied Feb. 16, 1962.
    John H. Holloway, Houston, for appellant.
    Bracewell, Reynolds & Patterson, Houston, for appellee.
   GRISSOM, Chief Justice.

This is a workmen’s compensation case. Walker Gaines fell from the roof of a house owned by Mrs. Lewis while he was putting on roofing which had been sold to her by Sears, Roebuck and Company. Gaines was injured in the fall. He claimed he was an employee of Sears and sued Allstate Insurance Company, who was Sears’ workmen’s compensation insurance carrier. The insurance company contended that Gaines was not Sears’ employee, but the employee of Seawright and that Seawright was an independent contractor employed by Sears, as the agent of Mrs. Lewis, to install the roofing. The court sustained the insurance company’s motion for an instructed verdict apparently upon the conclusion that there was no evidence of probative force that Gaines was Sears’ employee. Judgment was rendered for Allstate. Gaines has appealed.

The contract between Sears and Mrs. Lewis recited that Sears had sold the roofing to Mrs. Lewis and that she had authorized Sears to arrange with a contractor to apply it in accord with “said specifications”; that it was understood Sears would not apply the roofing but would pay a contractor for installing it, the contractor’s charge being included in the price charged Mrs. Lewis by Sears. It recited that installation of the roofing would be covered by workmen’s compensation insurance carried by the contractor; that after completion of the job the rubbish would be removed by the contractor and that all excess material would remain the property of Sears. The substance of the “specifications” was to “reroof house and garage completely”, using a certain numbered and colored roofing material; to use metal eaves and double ridges and valleys; to repair all rotten wood; to replace wooden shingles where needed and haul off the trash when the job was completed. Neither Sears’ contract with Seawright nor any other writing added anything to said specifications or further directed how the roofing should be put on the house. Said contract shows a price of $686.00 for the roofing installed. Sears made a profit on both the materials and labor. For the stated price Sears simply agreed to furnish the material and labor to put a new roof on her house and garage.

Gaines contends the court erred in holding as a matter of law that he was not an employee of Sears because the evidence raised an issue of fact as to whether Gaines was Sears’ employee. He says the contracts show that Sears retained the right of control over the details of the work which was being performed by Gaines, that the evidence shows Sears exercised such control and that it was admitted that Sears sold Plaintiff’s labor. Gaines alleged that when he was injured he was an employee of Sears or, if he was not an employee because of the contract, that, nevertheless, he was entitled to recover compensation by virtue of Article 8307, Section 6, because Sears made the subcontract with Seawright with the purpose and intention of avoiding liability under the compensation law. Allstate answered by a general denial. The court apparently instructed a verdict for Allstate because of its conclusion that there was no evidence of probative force that Gaines was Sears’ employee.

The applicable test was stated by our Supreme Court in Elder v. Aetna Casualty & Surety Company, 149 Tex. 620, 236 S.W.2d 611, 613, as follows:

“Did the publishing company actually assume and exercise such detailed control over Elder’s physical conduct in the performance of the labor provided for in the contract as to make him a servant, even though the contract did not so provide?”

It was there also held that, the trial court having instructed a verdict, in applying the above stated test the court must look to the testimony most favorable to appellant’s contention and reject all testimony that tends to disprove it. The quoted test was again approved by our Supreme Court by refusal of a writ of error in Mid-Continent Freight Lines, Inc., v. Carter Publications, Inc., Tex.Civ.App., 336 S;W.2d 885, 889.

For the purpose of showing that the evidence raised an issue of fact as to whether Gaines was Sears’ employee, appellant calls attention to such matters as the following: Mr. Cooper, Sears’ building inspector who supervised installation of the roofing at the time in question and on other jobs where Sears sold and had roofing material installed, testified that he was authorized to stop work on any job because of work performance “or anything else”; that he told Gaines how many nails to put in each shingle and how much tar to put under them; that, if the method for putting on roofing was not covered by the specifications, (and it is evident that it was not), that, as Sears’ representative, he reserved the right to alter or change it as he saw fit; that if Sea-wright didn’t have enough men on the job he had the right to see that he put on more. Mr. Seawright whom appellee says was an independent contractor, testified that the work orders furnished him by Sears did not instruct him how to apply the roofing; that they just said to “apply” so many square feet of a certain kind of roofing to a certain roof; that when Cooper was at such a job site and told him to do anything he generally did what Cooper told him to do, regardless of what it was. Mr. Gaines testified that when he was employed he “understood” he was working for Sears; that on the morning he was injured he arrived at the job site first and carried material to the roof; that when Seawright arrived they concluded there was not enough roofing at the site; that Cooper was called and Cooper instructed them not to do anything further until he got there, that after he got there Cooper called a Sears’ salesman and, while they were waiting for him to arrive, Gaines told Cooper that he had another job which he wanted to return to and perform but that Cooper told him to stay where he was; that after Cooper, Seawright and Gaines had coffee and Sears’ salesman arrived and talked with Cooper, Mr. Cooper said to appellant: “All right, Walker. You can go back to work now. Get up there and let’s put that roof on.”; that Gaines then returned to work; that when Cooper came to Sears’ job sites he would tell Gaines to nail shingles down that were sticking up, to nail “all” of them down; that Seawright would sometimes tell Gaines not to pay any attention to what Cooper said; that Cooper would direct them to nail all the shingles down; that he took his orders from Cooper; that on some of Sears’ roofing jobs Cooper would tell Gaines and Seawright to nail “all” the shingles down; that Seawright would say to nail a “few” down; that it wasn’t necessary to nail all of them down, but that when Cooper ordered them to nail them all down they nailed them all down; that when Cooper instructed them to move a ladder, put a tarpaulin over something, cover the flowers and to take a ladder down from a gutter so they wouldn’t bend the gutter they obeyed Cooper’s instructions; that Cooper would come out on Sears’ roofing jobs and tell Gaines and Seawright to lap the shingles over more, let the shingles hang off more, put more cement around the chimney, and the like, and that they obeyed Cooper’s instructions. For example, Gaines testified:

“Q. In other words, the details of the work; you did what Mr. Cooper told you to do?
“A. Yes, sir.
“Q. All right, Now, for instance the overlapping or leaving a shingle hanging off the edge of an eave or house, if he tells you a particular distance that it has to hang off, was there any specifica-ations for that kind of work or was that something that just depended on what Sears wanted done?
“A. Now, that’s * * *. Well, the customers * * * he would say ‘The customers want more overhang.’ Mr. Cooper would, on different jobs, say something like that, and also up on the gable, you know. I believe some customers they would not want the shingles to hang over a quarter of an inch or half an inch.”

Gaines testified, in substance, that when Cooper would come on such job sites and give them instructions that Seawright would say he didn’t think that what Cooper wanted done was necessary; that, nevertheless, when Cooper told him to raise or drop the shingles, put more cement around the edges of the chimney, and Seawright said it wasn’t necessary, that he did as Cooper directed; that usually Cooper gave his orders directly to Gaines; that Sears’ salesmen came out to a job and told Gaines what to do; that they would tell him to build a little back porch, or a strip, or put a couple of shingles around the edge, and the like, and that when they did he obeyed their orders. Gaines testified that Seawright paid him in cash but he understood Seawright brought his money from Sears. It is admitted that Sears’ agreement with Seawright provided that if Sears’ customer was not satisfied with the workmanship, or performance, that Sears had the right to notify Seawright and Seawright would immediately withdraw his workmen from the job; that Sears’ agreement with Seawright, which was for three years, required him to accept all jobs tendered to him by Sears which he could satisfactorily perform and that the contract between Sears and the house owner, Sears’ customer, contained an agreement that installation of the roofing would be covered by workmen’s compensation insurance. Gaines testified that on roofing jobs where Sears had not sold the roofing material Seawright usually paid him by check. The contract between Sears and its alleged independent contractor, Seawright, provided that when Seawright determined that certain installation work could not be satisfactorily done he should then request further instructions from Sears. It provided that Seawright would do no extra work on any job not specified in writing by Sears and that Sears would pay Seawright a certain amount for each square of roofing applied; that Sea-wright had the duty to inspect materials furnished by Sears and advise Sears of any defects and that he was required to employ sufficient competent adult workmen to complete each job with utmost dispatch. The “contractor” agreed to carry workmen’s compensation insurance in companies and in amounts approved by Sears and it was also agreed that Sears, at its option, could procure such insurance and charge the contractor with the premiums; that Sears had the right to designate the form of insurance policies and that the “contractor” agreed to file the policies with Sears. Cooper testified that it was his supervisor’s duty to determine whether there was insurance coverage on each job and that when Seawright found a shortage of material he simply went to Sears and picked up the needed material without obtaining the consent of anyone. Cooper testified that Sears retained control over the hours Sea-wright worked to the extent that if he wasn’t getting along as fast as Cooper “wanted him to” Cooper could stop him on that job. Cooper testified that, as Sears’ representative, he had the right to alter or change the specifications to fit a particular roofing job and that on the job where Gaines was injured Sears had instructed Seawright as to the method he should use in applying the shingles; that Sears retained the right to tell Seawright how many nails should go into each shingle, to advise Sea-wright as to the details not covered by the specifications and that as to such details Sears reserved the right to alter or change them as it saw fit; that on this job the workmen were required to use Sears’ tools; that if Seawright was working on two of Sears’ jobs Sears retained the right to take him off one and put him on the other. Mr. Filmon, service manager in charge of Sears’ installation department, stated that he ran such department but that Cooper was the supervisor who directed the activities of the contractors and that he gave the contractors the specifications.

It is evident from the record that there were no detailed plans or specifications telling Seawright how to put on the roofing; that, looking only to the evidence favorable to the plaintiff and rejecting all that tends to disprove it, there is evidence from which it might reasonably be concluded that Sears did actually assume and exercise such detailed control over Gaines’ physical conduct in the performance of the labor provided for in the contract in question as to make Gaines an employee. We are forced to the conclusion that plaintiff’s testimony raised an issue of fact as to whether Gaines was Sears’ employee. See Associated Indemnity Corp. v. Insurers Indemnity, Tex.Civ.App., 153 S.W.2d 533, 537, (reversed on other grounds, 139 Tex. 286, 162 S.W.2d 666); Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677, 680; Standard Insurance Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362; Lloyds Guarantee Assurance v. Sheffield, Tex.Civ.App., 170 S.W.2d 327 (Writ Ref.); Consolidated Underwriters v. Lampkin, Tex.Civ.App., 323 S.W.2d 99, (Ref.N.R.E.); 23 Tex.Jur. 557. See also Graf v. Montgomery Ward & Company, 234 Minn. 485, 49 N.W.2d 797; Shaffer v. Brown, 32 N.J. Super. 413, 108 A.2d 476; Carlson v. Costello, (Sup.Ct.So.Dakota), 48 N.W.2d 825.

We have considered all other points. We think they are without merit and they are overruled. See United States Fidelity & Guaranty v. Hall, Tex.Civ.App., 224 S.W.2d 268, 271, (Writ Ref.). The judgment is reversed and the cause is remanded.


author: ARCHER, Chief Justice.

text:
    Ernest M. POENISCH, Jr., et al., Appellants, v. Mamie QUARNSTROM, Appellee.
    No. 10917.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1962.
    Rehearing Denied Feb. 7, 1962.

      Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, for appellants.
    E. T. Yates, Brownsville, for appellee.
   ARCHER, Chief Justice.

This was a trespass to try title suit brought to recover possession of certain properties located in the City of Brownsville and for an equitable partition of these properties. The defendant pleaded not guilty, the five and ten year statutes of limitations •and estoppel. This case was tried before the Court and judgment was rendered as follows:

(1) Plaintiff Ernest M. Poenisch, Jr.: One-half (½) of the front 55' of Lot 11.
(2) Defendant Mamie Quamstrom: One-half (½) of the front 55' of Lot 11, Lot 12 and the rear 65' of Lot 11.
(3) Plaintiffs Rose Marilyn Hall, Robert R. Hall, J. C. George, Jr., Lula George, a feme sole, Mary Helen Am-mann and husband, Robert Ammann, Katheryne B. Whitelaw, a feme sole, and Mary Katheryne Whitelaw, a minor, acting by and through Katheryne B. Whitelaw as next friend: Take nothing.
(4) Front 55 feet of Lot 11: Ordered sold and proceeds divided between its Owners.

The appeal is founded on four points assigned as error and are that the Court erred in rendering judgment for defendant; in holding that the agreed judgment of 1926 was invalid; in rendering judgment for defendant when there was no evidence or no sufficient evidence to support a finding of adverse possession; and the evidence was insufficient to prove adverse possession against defendant’s co-tenants.

This suit was instituted by plaintiffs against defendant as a trespass to try title suit seeking in addition to the adjudication of title the equitable partition of title among the various owners of the undivided interests in Lots 11 and 12, Block “T”, Brownsville, Cameron County, Texas. The defendant, Mamie Quarnstrom, answered by plea of not guilty and the five and ten year statutes of limitations.

Stipulation was made that subject to the validity and effect of a judgment dated April 10, 1926, and entered in Cause No. 1973 in the District Court of Cameron County, a Sheriff’s deed dated January 31, 1950 and a Redemption Certificate dated January 14, 1952,. were introduced and admitted into evidence showing a good record title to Lots 11 and 12, Block “T”, City of Brownsville, Texas, to be in the following named persons to the extent of the interest shown:

“(a) Plaintiff Ernest M. Poenisch, Jr. has shown good record title to an undivided eleven-sixteenths (^e) interest in the rear 65 feet of Lots 11 and 12, and to an undivided one-half (½) interest in the front 55 feet of Lot 11;
“(b) Plaintiff Rose Marilyn Hall has shown good record title to an undivided one-half (½) interest in the front 55 feet of Lots 11 and 12;
“(c) Plaintiffs Lula George, Mary Helen Ammann and J. C. George, Jr. have each shown good record title to an undivided one-ninety-sixth (⅛6) interest in the rear 65 feet of Lots 11 and 12; and
“(d) Plaintiff Mary Katheryne Whitelaw has shown good record title to an undivided one-thirty-second (⅞2) interest in the rear 65 feet of Lots 11 and 12; and
“(e) Defendant Mamie Quarnstrom has shown good record title to an undivided one-half (½) interest in the front 55 feet of Lots 11 and 12, and an undivided one-fourth (¼) interest in the rear 65 feet of Lots 11 and 12.”

The 1926 judgment dated April 10, 1926, recites and lists a number of plaintiffs and a number of defendants and appears to have been agreed to by the respective parties.

By the terms of the judgment the plaintiffs were awarded the north 65 feet of the lots and a recital that Joseph K. Wells had a 14⅛ interest therein, Mary Kingsbury Forto !4⅛ interest, John T. Lomax and G. G. Henson a ¼⅛ interest and the Houston & Brownsville Development Company a ¼⅛ interest.

The south 55 feet of the lots were awarded to the Ottman heirs, named them, and to W. H. Ward and Hortense Ward an undivided interest in the south part.

Since appellee asserts title under the five and ten year statutes of limitations claiming peaceable, adverse and continuous possession for more than ten years after plaintiff’s cause of action accrued and before the filing of this suit, we do not believe the question of the validity of the 1926 judgment is at issue.

The defendant testified and offered testimony to her use, possession and occupancy prior to 1942 and subsequently.

Appellee, Mamie Quarnstrom, called as an adverse witness by plaintiff, appellant herein, testified as to the occupancy of the property beginning in 1913 and as to the family history, her marriage and the death of her husband in 1926 and to the improvements and the relocation of improvements over a long period of time; that two rooms were added in 1942 to the old improvements and moved to a third location. The witness testified as to renting some of the ground for a parking lot at times after 1942 and that the land was black-topped in 1956 and some of the ground was used for clothes lines.

On direct examination the witness testified, repeating much that she had previously testified to, and in addition that her children played on the back lot and that none of the plaintiffs told her that they were claiming the lots within recent years; that many years ago someone did talk to her about claiming the lots but she did not know who-it was.

Kyle Bohannon, a resident of Brownsville for thirty years, testified that Mrs. Quarnstrom told him in 1948 that she was claiming the land; that he saw the improvements and was familiar with the lots since 1927 and that Mrs. Quarnstrom made a lease on the back part for a parking lot before 1950 and that that part was filled in and paved.

Luis F. Laulom, 70 years old, testified that he was acquainted with Mrs. Quarnstrom since about 1910 and had lived about two blocks from the lots in question and visited Mrs. Quarnstrom and heard her state that she owned the two lots.

Jack Todd, called by plaintiff, testified that he was in the real estate business in Brownsville and represented Mrs. Hall, one of the plaintiffs, and that he contacted Mrs. Quarnstrom to sell her the Hall interest in 1957 and that she asked him the price he was willing to pay for the interest and she was not interested in selling. On cross examination Mr. Todd testified that he rented parking space from Mrs. Quarnstrom and paid her and that he never paid Mrs. Hall anything.

The plaintiffs did not offer any testimony to rebut defendant’s evidence as to use and possession of the property and the Court heard all of the evidence and resolved the fact issues in favor of the defendant. We believe that the Court was justified in holding as it did.

There is no question but that appellee redeemed the property sold by the sheriff on January 3, 1950, such redemption certificate is dated January 12, 1952, within the statutory time. Mr. Poenisch received the money from the sheriff and kept it for about nine years before this suit was filed.

By counterpoint appellee assigns as error the part of the judgment awarding an undivided ½ of the front 55 by 50 feet of Lot No. 11 and contends that the sheriff’s deed to Ernest Poenisch, Jr. dated January 3, 1950 is valid. We overrule this point.

There was introduced the deed, the judgment in Cause No. 26,114, Brownsville Independent School District v. Mrs. Lucia Ottman et al. dated October 24, 1949 and reciting that Mamie Quarnstrom was a party to the suit, having been personally cited, the statement of facts in the cause, and the affidavit of publication of the notice of the sheriff’s sale. The property was never redeemed.

The judgment of the Trial Court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    Leroy SPARKS, Appellant, v. CHRYSLER CORPORATION, AIRTEMP DIVISION, Appellee.
    No. 6501.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 30, 1961.
    J. L. Smith, San Augustine, for appellant.
    Baker, Botts, Andrews & Shepherd, Ralph S. Carrigan, Houston, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court sustaining the plea of privilege of the appellee, Chrysler Corporation, Air-temp Division. Appellant, Leroy Sparks, filed suit against this appellee and Charles Cox, whose plea of privilege was stricken by the trial court, for damages caused by defective air conditioning equipment sold to appellant by Charles Cox. Charles Cox was the local dealer for appellee in San Augustine and handled the sale and the installation of the equipment. Appellant relied upon Subdivisions 7, 27 and 29a of Article 1995, R.C.S., to maintain suit in San Augustine County.

The fraud relied upon by appellant was the representation by Charles Cox that the equipment sold was new. Appellant offered evidence that the equipment was inspected after the damage was done, and found to be a bundle of rust and falling apart. Appellant sued for the damages caused when water leaked out of the equipment and damaged his house and furniture, and for exemplary damages. The contract here was between Cox and Sparks for the sale and purchase of the equipment. Appellant does not seek to rescind this contract, nor to recover the difference in the value of the equipment as represented as new and i>.s the equipment actually existed. In effect, this is an action for special damages as a result of a breach of contract to furnish equipment which was not in a defective condition. The representations of Cox were at most, fraud in inducement to secure the sale of the equipment. The law is well settled in this state that in a suit for damages for breach of contract, venue cannot be sustained in the county where fraud in inducing the execution of the contract is alleged to have occurred. Henson v. Henson, Tex.Civ.App., 181 S.W.2d 285; Lewis v. Evans, Tex.Civ.App., 332 S.W.2d 795. At most, appellant’s proof would sustain a finding of fraud on the part of Cox. There was no proof of agency between Cox and the appellee corporation, but only a dealership which was a contractual relationship.

It was stipulated that the appellee corporation was a foreign corporation, but under subsection 27 of Art. 1995, the appellant did not prove a cause of action against the appellee corporation. The evidence showed the equipment was sold by the ap-pellee corporation to Cox, and by Cox to appellant. There was no privity of contract between appellee corporation and appellant. The most recent case on this point is Gehl Bros. Mfg. Co. v. Price’s Producers, Inc., Tex.Civ.App., 319 S.W.2d 955. The general rule is a retailer or a wholesaler is not an agent or representative of a manufacturer so as to bind him contractually. Avery Co. of Texas v. Barker, Tex.Civ.App., 243 S.W. 695; Liggett & Myers Tobacco Co. v. Wallace, Tex.Civ.App., 69 S.W.2d 857. The circumstances in this present case do not bring it within the exception as defined in the case cited by appellant, United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, in which the corporation actually participated in securing the contract even though not a party to it.

The appellee corporation was not a necessary party in an action against Cox, and therefore venue could not be retained in San Augustine County under Sec. 29a of Article 1995. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900.

The judgment of the District Court is affirmed.