text:
    The STATE of Texas, Petitioner, v. ACEL DELIVERY SERVICE, INC., Respondent.
    No. A-10322.
    Supreme Court of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.

      Waggoner Carr, Atty. Gen., Austin, Sam Kelley, Asst. Atty. Gen., for petitioner.
    Phinney, Hallman & Pulley, Dallas, for respondent.
   NORVELL, Justice.

In the trial court it was stipulated that the defendant (respondent here) Acel Delivery Service, Inc., “had been operating between Dallas and incorporated cities and towns adjacent and contiguous to the City of Dallas and to each other, performing a strictly local service between such contiguous communities as well as what might be termed a local pick-up and delivery service, both picking up and delivering freight for hire. The communities in which it operates include the cities of Dallas, Grand Prairie, living, Mesquite, Garland, Farmers Branch, University Park, Highland Park, Richardson, all of which are incorporated municipalities whose boundaries are contiguous to Dallas, as well as Car-rollton, which is contiguous to Farmers Branch, and Arlington, which is contiguous to Grand Prairie, and Fort Worth, which is contiguous to Arlington”.

The controlling question in the case is whether or not the motor carrier law requires that Acel procure a certificate from the Railroad Commission. The State of Texas asserts that it does while Acel contends that it is exempt from Railroad Commission control because the definition of “motor carrier” as contained in Article 911b, § 1, subd. (g) does not comprehend its operations. Such definition is as follows:

“The term ‘motor carrier’ means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees appointed by any Court whatsoever owning, controlling, managing, operating or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed; provided, that the term ‘motor carrier’' as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns” (We have italicized those portions of subdivision (g) of Article 911b, § 1 upon which Acel places particular emphasis in its arguments.)

The State brought suit to enjoin' Acel’s operations and enforce statutory penalties, Article 1690b, (b), Vernon’s Ann.Pen.Code. The trial court rendered judgment for Acel which .was affirmed by the Court of Civil Appeals. 380 S.W.2d 825.

We reverse the judgments of the courts below and remand the cause to the district court for further proceedings consistent with this opinion.

The holdings of the Court of Civil Appeals were in accordance with the arguments which the respondent Acel presents here, namely: 1. The first portion of Article 911b, § 1(g) (above set out) refers to transportation upon a highway between two or more incorporated municipalities. The word “between” as used in the statute means and requires that there be an intervening space of unincorporated territory in order for the Act to have application. It follows that a motor carrier, such as Acel, which at all times operates within the corporate limits of municipalities and traverses no intervening space between municipalities is not comprehended by the Act. 2. The proviso of the subsection uses the plural form — “incorporated limits of cities and towns” and this circumstance reenforces the proposition that as long as a motor carrier operates within the incorporated limits of cities and towns it is not subject to Railroad Commission control.

The growth and development of towns in the Fort Worth-Dallas area is reflected by a stipulation of the parties from which we quote:

“Until about 1953, only the Cities of Highland Park and University Park were contiguous to the City of Dallas. In 1954, other towns began to grow until their boundaries were contiguous with those of the City of Dallas, so that at present the boundaries of Grand Prairie, Irving, Mesquite, Garland, Farmers Branch, University Park, Highland Park and Richardson, all of which are incorporated municipalities, are contiguous to Dallas, and the boundaries of the City of Car-rollton are contiguous to Farmers Branch, and the boundaries of the City of Arlington are contiguous to the City of Grand Prairie, Texas, and the boundaries of Fort Worth are contiguous to the City of Arlington.”

Under respondent’s theory of construction of the statutory provision here involved it would have been necessary for a motor carrier to procure a certificate or permit from the Railroad Commission in order to transport commodities from Dallas to Fort Worth prior to 1953, but at present it is no longer necessary to do so by reason of the creation, growth and expansion of the municipalities named in the stipulation, provided, of course, the carrier in operating its vehicles did not traverse some unincorporated area. It is undisputed that a motor vehicle may now travel from Dallas to Fort Worth and remain within incorporated areas for the entire distance.

It is difficult to believe that the Legislature, in 1931 when Article 911b, § 1, Subd. (g) was adopted in its present form, intended that it should have an effect such as this. If we assume that in 1950, for example, there were ten carriers operating between Dallas and Fort Worth under certificates or permits — immediately upon the city limits of Dallas, Fort Worth and the other municipalities in the area becoming contiguous one with the other, so that a vehicle could pass from Dallas to Fort Worth without going outside the limits of some municipality, such ten Railroad Commission regulated carriers would be subject to unlimited and perhaps ruinous competition. Innumerable trucks and conveyances could crowd the highways which would then be city streets and all Railroad Commission control and regulation would abruptly end, — not through any action of the Legislature, but simply by reason of the growth and development of the state and the consequent increase of population in urban areas. Such a result seems wholly out of keeping with the general declaration of policy contained in the Act itself which declares the operating of a motor carrier of property for hire to be a business affected with the public interest and specifically states that there is an imperative need that more stringent regulation be employed, to the end that the highways may be rendered safer for the use of the general public; * * * that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the. general public. Article 911b, § 22b.

The situation now existing in the Dallas-Fort Worth area may be duplicated in other sections of the state where contiguous municipalities are in existence or may come into existence and thus, through an increasing urban growth and the expansion of municipal boundaries, a carefully developed system of motor transportation could be destroyed. We would be hesitant to adopt the construction of the statute urged by respondent which would entail such results unless we are compelled to do so by the clear wording of the statute. It may be conceded that a more satisfactory choice of wording could have been made than that actually settled upon by the Legislature in drafting the 1931 amendment, but, nevertheless, it seems reasonably clear that the purpose of amending the Act was to provide for a more stringent regulation of the motor carrier industry.

In approaching the problem of statutory construction the statements of Mr. Justice Holmes (sitting as a Circuit Justice) in Johnson v. United States, 163 F. 30, 18 L.R.A.,N.S., 1194 (1 Cir. 1908) have application here. In rejecting a government contention that schedules in bankruptcy were not “pleadings, discovery or evidence” within the meaning of a statute prohibiting the introduction into evidence in a criminal case of certain pleadings, discovery or evidence obtained in another judicial inquiry, it was said that:

“The government argues that the schedules are not pleadings, discovery, or evidence, and that therefore the section does not apply; but we are not satisfied that the fagot can be taken to pieces and broken stick by stick in this manner so easily. We quite agree that vague arguments as to the spirit of a constitution or statute have little worth. We recognize that courts have been disinclined to extend statutes modifying the common law beyond the direct operation of the words used, and that at times this disinclination has been carried very far. But it seems to us that there may be statutes that need a different treatment. A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”

The Attorney General calls our attention to the history of the Act regulating “for hire” carriers of property. The original Act was House Bill 654, Acts 1929, 41st Leg., Ch. 314, p. 698, and Section 1(a) thereof contained the following definition;

“The term ‘motor carrier’ when used in this Act, denotes any person, firm, corporation, copartnership, association, joint stock association, receiver, trustee, or lessee who operated or causes to be operated any motor propelled vehicle (not usually operated on or over rails) over or along the highways or streets of this State for the purpose of carrying or transporting property for compensation or hire between two or more incorporated cities, towns, or villages.”

Under this definition, a motor carrier to be subject to the Act must transport property for compensation between two municipal corporations. We think it reasonably clear that the 1929 definition comprehended all movements of property and commodities for hire from one incorporated municipality to another, regardless of whether the two municipalities were contiguous or not. In other words, all intercity traffic was covered by the Act. The definition above quoted, however, rendered the Act patently defective as a regulatory measure in that it did not apply to a carrier transporting property for hire when either the origin or the terminal point of the shipment was situated outside an incorporated municipality. The 1931 amendment of the definition was obviously intended to remedy the defect. This accounts for the wording, “where in the course of such transportation a highway between two •or more incorporated cities, towns or villages is traversed.” The purpose of this provision was to include carriers whose shipments originated or terminated outside incorporated areas where, in the course •of such transportation, a highway between two or more incorporated cities, towns or villages is traversed. It was not the Legislative intention to increase the exemption of the 1929 Act so as to remove from Railroad Commission control those carriers transporting property for hire from one point within a municipality to a point within a contiguous city, town or village. See, Texas Turnpike Authority v. Shepperd, 154 Tex. 357, 279 S.W.2d 302 (1955). A similar situation exists as to the 1931 proviso relating to “motor vehicles operated exclusively within the incorporated limits of cities or towns.” The 1929 Act did not apply to a carrier operating exclusively within the boundaries of a single city or town. It was the purpose of the 1931 amendment to preserve this narrow exemption (effected by definition in the 1929 Act) and not to expand it. The use of the plural rather than the singular form in the proviso is hardly persuasive, unless we first tentatively assume the legality of an operation such as that conducted by the respondent here and seek express wording which would rebut or preclude the assumption. However, the basic premise or supposition runs contrary to the expressed purpose of the motor carrier Act which is to restrict and regulate rather than to expand or create exemptions from the operation of the Act. The legislative contemplation undoubtedly embraced numerous carriers and numerous municipalities, and the use of the plural form in the proviso may be reasonably construed so as to preserve but not expand the 1929 exemption.

We realize that good arguments may be presented in favor of exempting from Railroad Commission regulation those operations which take place wholly within the boundaries of a large city and its satellite towns of the island and enclave classification. However, this is a matter properly left to the Legislative power. We have stated what, in our opinion, is the Legislative intent of the pertinent enactments involved.

We anticipate no difficulty arising between city control of streets and Railroad Commission regulation of carriers because of our construction of the statute before us. Motor carriers must of necessity make use of streets and highways within incorporated cities and towns, but there is no question of a conflict of authority between the Railroad Commission and a municipality presented by the record in this case.

The judgments of the Court of Civil Appeals and the District Court are reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.

      . In Article 911b, § 1, Vernon’s Ann.Civ. Stats., the term “certificate” is defined as meaning a certificate of public convenience and necessity issued under the Motor Carrier Act. The term “permit” means the permit issued to contract carriers under the Act.

      . See, Acts 1931, 42nd Leg., Reg. Session, ch. 277, p. 480.

      . A city street may be a public highway. See, State v. City of El Paso, 135 Tex. 359, 143 S.W.2d 366 (1940).


source: Caselaw Access Project

author: McDONALD, Presiding Judge. WOODLEY, Judge

license: Public Domain

text:
    David Marvin JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38153.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Chappell & McFall, by John R. McFall, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is sodomy; the punishment, confinement in the state penitentiary for 15 years.

The state’s case consisted of testimony adduced from Don Lees, who was shown to be 15 years of age at the time of the commission of the offense. This witness testified that an act of oral sodomy was committed on him by the appellant at a private residence in Lubbock, Texas, about two weeks before school was out “last year”. The witness, Lees, was a student in junior high school at the time, and he was accompanied by the witness, Mike Hyman, to the home of appellant on the occasion when the act of sodomy was committed upon him. Lees’ testimony reflects that he and Hyman arrived at appellant’s house at approximately 11:00 A.M. and drank malt liquor from about 12:00 o’clock to 3:00 o’clock and that he then went into a bedroom “to- lay down, I was tired”. This witness further testified that appellant came into the room approximately five minutes later and that the witness Lees was lying on the bed and that appellant came over and sat down on the bed and that the two of them looked at some books which apparently were pornographic in nature,. The appellant thereafter fondled the sexual parts of Lees for approximately five minutes, and appellant then unzipped the pants of the witness, Lees. Lees testified that he tried to get up but that appellant pulled him back onto the bed and that the appellant, thereafter took off the pants and underclothes of Lees, but Lees himself then took off his shoes. Lees testified that appellant then committed an act of oral sodomy upon him and that after said act was committed that he and appellant lay on the bed for approximately five minutes and Lees then dressed by himself and left the room and appellant came out of the room sometime later. Lees’ testimony reflects that there was no force or threats exerted upon him either before, during or after the act of sodomy and that he had gone to appellant’s house voluntarily on the date that the act was committed and that he had thereafter gone back to appellant’s house some nine or ten times and had in fact on one occasion gone in a bedroom and retired while appellant was present in the house. Lees’ testimony further reflects that on the occasion of the alleged act of sodomy there were other people present in the house but that the witness Lees did not complain to or inform any of the people in the house as to what happened in the bedroom and that he did not call for help nor make an outcry during the act, nor did he struggle with appellant, and he further testified that he knew what he had done was wrong. He did not report the act to anyone until approximately July 14, 1964, approximately two months after the occurrence. Lees testified that on July 14, 1964, he signed a voluntary statement for the juvenile officer of Lubbock County, Jim T. Brown. This statement is in evidence as an exhibit, and it reflects, along with Lees’ testimony, that there is no mention of an act of sodomy having been committed upon Lees by appellant. Lees testified that he was drunk at the time the act was committed upon him. “I couldn’t have done too much struggling”, he related. He further stated that if he had wanted to get up he didn’t know whether he could or not, “I couldn’t say.” Lees testified that if he had not been drunk he would not have allowed appellant to do that to him. Lees further testified that he remained at appellant’s house around 1J4 or 2 hours longer after the act of sodomy had been committed, and that he drank some more malt liquor. He and Hyman left appellant’s house around 6:00 P.M.

The state also adduced testimony from Jeffrey Steven Turner and Mike Hyman, who testified to having been to appellant’s house and drinking malt liquor but neither of them corroborated the testimony of the witness, Lees, as to the commission of the act of sodomy as alleged.

Appellant’s able counsel urge that the trial court erred in not finding that the witness, Lees, was an accomplice witness as a matter of law. The state contends that under the facts of this case the witness, Lees, was not an accomplice as a matter of law, and the trial court properly left that fact issue for the jury’s determination. It is the state’s contention that the trial court properly' submitted the issue to the jury as to whether or not Lees was an accomplice, and the state says that the jury’s findings of guilt found that Lees was not an accomplice. Appellant relies upon Pipkin v. State, 154 Tex.Cr.R. 640, 230 S.W.2d 221; Gottschalk v. State, 157 Tex.Cr.R. 276, 248 S.W.2d 473; Hinson v. State, Tex.Cr.App., 211 S.W.2d 750; Gallager v. State, 131 Tex.Cr.R. 254, 97 S.W.2d 954 and Medis v. State, 27 Tex.App. 194, 11 S.W. 112, to sustain his position. The state relies upon Huggins v. State, 168 Tex.Cr.R. 302, 325 S.W.2d 144 in support of its contention, and also upon Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73. The state points out that Huggins, supra, was decided subsequent to Pip-kin, supra, and the state assumes the unique position that Huggins “implicitly overruled Pipkin.” The state also points out that the rule in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, might be relied upon to distinguish Huggins from the instant case.

Now that we have before us all of the authorities relied upon and cited us by both parties, we shall address ourselves to these various cases in order to reach a proper disposition of this case.

In Pipkin v. State, a sodomy case from El Paso, Schuster, the 14 year old boy and a junior in high school testified that he said ‘Scoot down’ and I scooted down” * * * The trial court there had the view that if Schuster did not consent to the act of sodomy he would not be an accomplice and a conviction could be had upon his uncorroborated testimony. The trial court instructed the jury if they believed Schuster consented to the act, they would acquit appellant. The state contended that the jury’s finding of guilt in the face of such an instruction constitutes an express finding that Schuster did not consent to the act. This Court reversed the case, holding Schuster to be an accomplice, whose testimony was not corroborated. The Court said, speaking through Judge Davidson: “It is not so much whether Schuster consented to the act as it is whether he objected thereto and was forced to submit to the act perpetrated upon him against his will.”

Gotisehalk was a fondling- case in which a 13 year old boy’s sex organ was fondled by the appellant. The boy did not object nor resist nor report the incident until some 30 days after the arrest of the appellant. The trial court did not instruct the jury on an accomplice’s testimony nor submit to them a fact issue to determine whether or not the boy was an accomplice. The case was reversed, it being apparent that the boy was an accomplice witness.

In Hinson’s case, the prosecuting witness, an 11 year old boy in the fifth grade at school, made no protest to the act of sodomy by the accused in using his mouth upon the boy’s sex organ. The boy made report of the incident to his mother and father upon arriving at home, but thereafter made contradictory statements to the policemen relative to the act of sodomy. Under such facts we held that the witness was an accomplice and that his testimony was therefore required to be corroborated.

In Gallager, which was a conviction for contributing to the delinquency of a minor child, the conviction was reversed because of the failure to corroborate the testimony of the child who was held to be an accomplice witness. The facts in that case reflect a fondling of the sex organ of a 14 year old boy, to which he registered no objection but willingly permitted.

In the early case of Medís, a case of sodomy alleged to have been committed by the accused upon another person, It was the holding of this Court that if the victim consented to the act of sodomy he was an accomplice witness.

In Huggins, a 46 year old man was charged with fondling a 13 year old girl by placing his hand upon her sex organ while she was driving his car. She told him to stop, to leave her alone. The evidence reflects that the girl was wearing blue jeans and they were not unzipped. The trial court submitted an instruction to the jury as to whether or not the girl was an accomplice, defining the term accomplice, and this court affirmed the judgment of the trial court.

In Windham, the prosecutrix was the 16 year old daughter of the appellant. She testified that her father made her have abnormal relations with him by placing his penis in her mouth and told her that he would kill her and her mother if she ever told that he did it. She had not reported this, or previous acts, because of his threats to kill her and her mother if she did. The trial court submitted the Issue of whether the prosecutrix was an accomplice witness to the jury. This Court did express some dicta in the Windham case to the effect that because of the daughter and father relationship and the parties lived in the same home, such relationship would naturally weaken her resistance to his advances more than if he was a stranger, it did not show that she consented or agreed to engage in such relations.

Although the state agrees that intoxication is mere mitigation and no defense, it urges in its brief that this Court should consider “the voluntary use of malt liquor by a IS year old boy”. The state then says in its brief that there is no doubt that he consented to the use of the malt liquor but that this consent does not imply consent to the act of sodomy but that if the drink lowered the complainant’s resistance to such a degree as to materially alter his state of mind at the time of the act, and he was in no position to give or refuse his consent, then he could no longer qualify as an accomplice as that term has been defined. While there might be some merit to this Court taking such a proposition into consideration in disposing of some cases and in applying a different rule to IS year old boys who have been drinking malt liquor on such occassions, we find it unnecessary to do so in this case. While we recited the facts sufficiently at the outset of this opinion, we did not set forth in detail some of the sordid facts adduced from the testimony of Don Lees. We do so here in order to alleviate any doubt as to Lees sobriety at the time of the commission of the act of sodomy. “Jackson started messing with me”. The question was asked: “Was he messing with your private parts?” “Yes, sir”. “Tell me what he did?” “He just gave me a blow job.” “He just put his mouth over my private parts”. “What happened after he put his mouth over your private parts?” “Well he just started going up and down”. “Don, did you reach a climax?” “Yes, sir”. “In his mouth?” “Yes, sir”. “And then what happened?” “And then he swallowed it.” We express the view that Lees’ clear and vivid recollection of the detailed events surrounding the commission of the offense and his testimony as to what transpired both during the act of sodomy and thereafter clearly convince us that he was not drunk nor under the influence of liquor at the time.

From the foregoing analysis of the various cases cited it is evident that the Huggins case stands alone so far as the facts are concerned. The act of fondling in that case took no time. The man just reached over and touched the vulva of the 13 year old girl. She had no time to remonstrate, other than as she did. The base sodomist apparently takes more time, at least he did in this case. We express the further view that a careful reading of the record in the Huggins case, viewing the entire testimony of the 13 year old prose-cutrix, which is not apparent from the opinion in that case, leads to the inescapable conclusion that Judge Woodley there followed the rule that he announced in Slusser, though he did not express it in the opinion.

We think that the witness, Lees, was an accomplice witness as a matter of law and that the learned trial court fell into error in not so holding. Being an accomplice witness, it was necessary for his testimony to be corroborated. The testimony not being corroborated, it is insufficient to sustain the judgment.

Accordingly, the judgment is reversed and the cause remanded.

WOODLEY, Judge

concurring.

I concur in the conclusion that the 15 year old boy was an accomplice witness and not merely a victim of the crime of sodomy upon him.


author:
MORRISON, Judge.
      WOODLEY, Judge

text:
    Ex parte Johnny H. COOPER.
    Mo. 38230.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Scott D. Moore, Fort Worth, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

In his writ of habeas corpus petitioner attacks the five year sentence he is presently serving which was pronounced against him in Cause No. 7087, in the 43rd Judicial District Court of Wise County, Texas, on the grounds that he was denied the ten days allowed for appointed counsel to prepare for trial under Article 494 Vernon’s Ann.C.C.P.

The facts are undisputed.

The Judge of the trial court, in a certificate signed by him and attached to petitioner’s writ, certified that on the same day that attorney Sewell was appointed by the court to represent defendant Cooper, the defendant entered a plea of guilty in Cause No. 7087, and the court proceeded to hear and decide the same. He further stated that neither attorney Sewell nor defendant Cooper executed a written waiver of the ten days allowed court appointed counsel to prepare for trial, but did state that a verbal waiver was made in open court.

Article 494, supra, which provides for the appointment of counsel, reads in part as follows:

“The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused.” (Emphasis added.)

The provisions of Article 494, supra, are mandatory, and a verbal waiver does not comply with the provisions of the statute and is insufficient to waive the ten days time allowed appointed counsel to prepare for trial. Bennett v. State, Tex.Cr.App., 382 S.W.2d 930, and Ex Parte Gudel, Tex.Cr.App., 368 S.W.2d 775.

Under these facts, the conviction cannot stand, and the writ is granted and it is ordered that the petitioner be released from his present custody and that he be delivered to the custody of the Sheriff of Wise County, Texas, to stand trial on the original indictment in Cause No. 7087.

WOODLEY, Judge

(dissenting).

Charged by indictment with cattle theft, appellant waived a jury and pleaded guilty before the court.

Art. 10a V.A.C.C.P. requires the court to appoint counsel before a defendant who has no attorney can agree to waive a jury.

I am unable to agree that the absence of a waiver in writing of the ten days allowed counsel appointed “to prepare for trial” vitiates the conviction where the defendant desires to plead guilty and requests and obtains consent of the attorney for the state, waives a jury and pleads guilty before the court. This is not such a trial as is contemplated in Art. 494 V.A. C.C.P. for which counsel shall have ten days to prepare for trial.

I respectfully dissent.


author: DICE, Commissioner.

text:
    Frank James DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38157.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Clyde Vinson, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of assault with intent to murder without malice and his punishment was assessed at confinement in the penitentiary for one year.

The state’s proof was undisputed that on the night in question the appellant shot the injured party, Coley Hudson, with a .38 calibre pistol, the bullet penetrating the scalp on the left side of the head. The shooting occurred around midnight, when the injured party, an airman stationed at Goodfellow Air Force Base, was seated in the back seat of an automobile parked in front of Perkins’ Cafe in the city of San Angelo.

At the trial, the injured party did not testify, and the state’s version of the shooting was given by the witness Claud Leon Thomas, Jr., also an airman, who was seated in the front seat of the automobile at the time of the shooting.

Thomas testified that on the night in question, while he and the injured party were seated in the automobile parked in front of the Perkins’ Cafe, the appellant came up and started talking to them. After the witness stopped talking, appellant and the injured party, both of whom were friendly with one another, continued talking and joking. As they continued to talk and laugh, the appellant produced the gun and started waving it around and joking with the injured party. When the injured party asked if it was loaded, appellant stepped back, opened the cylinder, and said that it was. The injured party said, ‘Well, if you unload the gun I’ll get out and kick your so and so,’ ” and started laughing. Appellant then reached in his pocket, “made a motion to the cylinder,” walked back, said a few words, and the gun “went off.” The witness stated that after the gun fire he jumped out of the car, walked around to the curb, and appellant then pointed the gun at him and told him to stop “half-stepping.”

It was shown that after the shot was fired, the injured party asked appellant why he shot him, and appellant made no reply.

The proof further shows that later in the night appellant was taken into custody at his home, around 3 a. m., and at that time he retrieved from under the floor of the house and delivered to the officers the .38 calibre pistol with which he had shot the injured party. One spent hull was in the cylinder of the pistol.

It was also shown that between thirty and forty minutes after his arrest appellant made and signed a written statement to the officers, portions of which were introduced in evidence by the state and one portion being introduced by appellant.

Before admitting the statement in evidence, a separate hearing was held by the court, in the absence of the jury, on the question of its admissibility. At such hearing, proof was offered by the state that before making the statement appellant was duly warned and that he freely and voluntarily made the statement. It was shown that appellant was not taken before a magistrate before signing the statement and that no attorney was present when he made the same. It was also shown that no request was made by appellant for an attorney.

At the conclusion of the hearing, the trial court made an independent finding, entered of record, that the statement was voluntarily made by appellant.

In admitting the confession in evidence over appellant’s objection that he was not taken before a magistrate and had no attorney present when the statement was made, the court did not err. The failure to take appellant before a magistrate at 3 o’clock in the morning would not vitiate the confession. No request was made by appellant to see or call an attorney, which fact distinguishes this case from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See: Miller v. State, Tex.Cr.App., 387 S.W.2d 401, opinion delivered February 3, 1965.

In the portion of the statement introduced in evidence by the state, appellant related that on the night in question he had been to Sarge’s Place, where he had some words with an airman called “Pig,” over a quarter; that he (appellant) asked Frank Drones to take him home so he could get his gun; that after they had gone to his home and he got the gun:

‘Then Frank Drones and I (Davis) went to Perkins’ Cafe in the 1000 block of North Randolph. When I got to Perkins’ Cafe— Malt (Claud Thomas, Jr.) and another boy named James and another boy in the back (Coley Hudson) [sic],
“ ‘One of the boys in the car (Plymouth station wagon) called me over to the car. I told them they were not going to do nothing to me. I (Davis) pulled a pistol from my pocket. I pointed the pistol (.38 revolver) in the air. I snapped it once. Then when the gun didn’t fire they started to laugh at me. I pulled the gun up again and pulled the trigger again. The gun went off this time. I started to run.’ ”

Appellant introduced a portion of the statement, in which he stated:

“ T pulled the gun up again and pulled the trigger again. The gun went off this time. I didn’t think the gun was loaded. I walked to the car and one of the boys was hit. I realized what had happened and I started to run.’ ”

Testifying as a witness in. his own behalf, appellant explained his possession of the pistol when he arrived at the Perkins’ Cafe on the night in question, by stating that he was bringing it to his uncle, who operated the place. Appellant testified that he took the pistol from his pocket while talking to the injured party, with whom he was friendly, but that he did not know it was loaded; that he snapped it twice and that it “went off” when he put it in his belt. Appellant denied any intention of firing the pistol.

The court, in submitting the issue of appellant’s guilt to the jury, in his charge fully charged the jury on the law of accident and also instructed the jury on appellant’s affirmative defense of no intention to shoot the injured party.

The jury by their verdict rejected appellant’s version of the shooting, and we find the evidence sufficient to sustain the judgment of conviction.

We do not agree with appellant’s contention that the evidence presented by the state showed that the shooting was accidental. While some of the testimony implied that the shooting was accidental, the evidence taken as a whole is sufficient to support a finding by the jury that appellant unlawfully and wilfully shot the injured party with the intent to kill, as charged in the indictment.

Nor do we agree with the contention that the evidence is insufficient to support the conviction, because the testimony elicited by the state from the witness Thomas that at the time and immediately before the shooting appellant and the injured party were laughing and joking was exculpatory and the state was bound thereby. The mere proof that just before the shooting the parties were laughing and joking would not, of itself, exculpate appellant of the crime. Furthermore, such testimony did not relate to statements of the appellant to which, if exculpatory, the state would be bound until disproved.

Complaint is made to the court’s action in permitting the state to show that, some hour or hour and a half before the shooting, appellant had the argument or discussion over a quarter with the airman “Pig” at Sarge’s cafe. The objection to the testimony was on the ground that it had no connection with the offense charged.

Appellant is in no position to complain of the admission of such evidence, as he testified to substantially the same thing, without objection, on his cross-examination and the incident was also related by him in his confession introduced in evidence by the state. Womble v. State, 165 Tex.Cr.R. 23, 301 S.W.2d 928; Vaughns v. State, 172 Tex.Cr.R. 465, 358 S.W.2d 133.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    William Reekes ADAIR, Appellant, v. The STATE of Texas, Appellee.
    No. 37887.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 28, 1965.
    James L. McNees, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard M. Berry, Kenneth E. Blassingame and John W. Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court without a jury, the appellant was convicted for driving while intoxicated; the punishment, 3 days in jail and a fine of $125.

The appellant challenges the sufficiency of the evidence to support the conviction.

Deputy Sheriff Crow testified that about 10:25 P.M., while he was wearing civilian clothes and in an “unmarked” automobile which was stopped facing a red traffic light at a street intersection, one of three persons in a car on his right asked him, “Are you a cop?”, and he replied that he was. While testifying, Crow identified the appellant as the driver of the car on his right, and further testified that as they waited for the traffic light to change the appellant placed a beer can to his mouth as if drinking from it; that the woman seated on the front seat with the appellant appeared to have a pint bottle of whiskey in her hand which was about one-half full; and there was a man seated on the left side of the rear seat. When the red traffic light changed, Officer Crow observed the appellant as he drove in an erratic manner for about 8 to 10 blocks, and reported it by radio to the dispatcher.

Deputy Sheriff Abner testified that after receiving a radio dispatch about 10:30 P.M., he observed the appellant driving an automobile along a public street for about one-half block before he (appellant) stopped. He further testified that appellant was unsteady while walking; that his speech was slurred; and that he had a strong odor of alcohol on his breath. The appellant told Abner that he and his companions had been drinking at home and had come to town to eat. Appellant’s wife had a pint bottle partially full of whiskey in her purse. Abner expressed the opinion that the appellant was intoxicated.

The appellant testified that he, his wife and a friend, each drank a can of beer at home about 6:15 P.M., and another can about 8 P.M. After drinking some beer from a third can about 10 P.M., appellant drank a half-jigger, and his wife and friend drank a jigger of whiskey, before they left home going to eat. Taking the third can of beer with him and his wife taking the bottle of whiskey, appellant drove the automobile to a grill. While waiting at a traffic light, the appellant talked with a man in another ear who said he was a policeman. During this time, appellant testified that he took a drink from the can of beer, and he also passed the bottle of whiskey to his friend in the rear seat, who, after drinking from it, handed it back and he gave it to his wife. After driving a short distance, the appellant stopped the car at a grill. At this time two officers approached the appellant, told him that they thought he had too much to drink and arrested him. Appellant denied that he was intoxicated when arrested or while he was driving the car from his home to the grill.

Upon a trial by the court after the waiver of a jury, the judge is authorized to accept or reject any or all of the testimony of any witness. He may look to all the evidence in the case, that offered by the state as well as that offered by the appellant, in determining the facts and issues in the case. Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674.

The court resolved the issue of intoxication against the appellant, and the evidence is sufficient to support the conviction. No error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Felix DAVILA, Appellant, v. The STATE of Texas, Appellee.
    No. 37842.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied April 28, 1965.

      Evans & Egger, by Samuel L. Egger, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

Service station attendant Estrada testified that he was on duty alone on the night in question, that two men, who he later learned were brothers, came to the station in a Buick automobile, that appellant and his brother got out and ordered some gasoline after which the Buick began to roll down the hill and that at his brother’s command appellant got in the Buick, applied the brakes and kept the motor running. At this juncture, appellant’s brother entered the station with Estrada and with his hand in his coat pocket told Estrada that he wanted the money and threatened to kill him. Estrada surrendered more than one hundred dollars, and appellant’s brother backed out of the station and ran to the waiting Buick, got under the steering wheel and drove away. Estrada called the sheriff, gave him the license' number of the Buick and later accompanied the officers in their pursuit of the pair. Shortly thereafter, the Buick was found abandoned in a field, and a blood hound tracked the pair a distance of approximately eight miles until they were apprehended. Estrada testified that appellant was intoxicated on the night in question and admitted that he had later made a written statement in which he said that appellant “was so drunk I didn’t think he knew what he was doing or where he was at”.

Sheriff Fuller testified that he received a call from Estrada and began to look for the Buick, that he saw the same traversing the streets of Floresville and gave pursuit, that what he later discovered to be a sum of money in excess of one hundred dollars was thrown from the right side of the Buick as was a coat which contained a pocketbook with identification papers belonging to appellant, and that he fired several warning shots in an effort to halt the Buick but was unable to do so. He later discovered the Buick abandoned in a field, secured the blood hound and finally apprehended appellant and his brother several miles further away as they were lying on the ground under a tree.

Appellant, testifying in his own behalf, admitted being with his brother on the night in question, but stated that he was so drunk that he did not remember or participate in the robbery and only remembered being shot at and later captured after fleeing on foot for several miles.

He also introduced other witnesses who testified to interviewing Estrada after the robbery and stated that Estrada had told them that appellant was so drunk when he was at the station that he did not appear to know what he was doing.

We overrule appellant’s contention that the evidence is insufficient to support his conviction. His presence at the scene with his brother who took the money and made the threat and his act of sitting under the steering wheel and keeping the motor running while the robbery was in progress are sufficient to make him a principal to the offense.

Appellant’s principal contention on appeal is that the court violated Article 638 Vernon’s Ann.C.C.P. during the course of the selection of the jury. After a number of jurors had been excused there remained 28 jurors on the panel. The appellant exercised ten peremptory challenges and the State eight; one juror was challenged by both the appellant and the State. This left eleven selected jurors. The State withdrew one of its peremptory challenges; a juror whom appellant had not challenged was selected, and the jury was complete. Instead of moving the court to call additional jurors as provided by Article 638, supra, appellant orally moved to quash the panel and for a mistrial. Under the above statute he was not entitled to such relief. In objection to any action of the court, counsel should make known to the court relief which he seeks and that which the law entitles him to secure. Curry v. State, 157 Tex.Cr.R. 237, 248 S.W.2d 166.

In the absence of a proper objection, the failure of the court to call additional jurors from which the twelfth juror should have been selected is deemed waived.

Finding no reversible error, the judgment is affirmed.


text:
    Richard Patrick DEE III, Appellant, v. The STATE of Texas, Appellee.
    No. 37969.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied April 28, 1965.
    M. Gabriel Nahas, Jr., King C. Haynie (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and John Gilleland, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated, misdemeanor; the punishment, 10 days in jail and a fine of $50.00.

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

Appellant, by Formal Bill of Exception, urges one contention as error. During the closing argument to the jury, counsel for the state made the following argument to the jury:

“If the defendant was not intoxicated, why did he not bring in character witnesses who would testify to his reputation as to sobriety?”

Appellant’s counsel timely objected on the ground that the defendant had not put his reputation for sobriety in issue. The Court sustained the objection and instructed the jury to disregard said argument. Counsel for appellant then made a motion for a mistrial, on the grounds that the instruction did not cure the error, which motion was overruled, to which ruling appellant’s counsel excepted. The bill further reflects that said argument was not made in answer to any argument of counsel for the appellant and that the argument was not a reasonable deduction based on any evidence in the case.

The state agrees in its brief that the evidence indicates that the reputation of appellant was not raised.

We think that the case of Harmon v. State, 119 Tex.Cr.R. 426, 45 S.W.2d 583, controls our disposition of this case. There we stated: “[Ujnless the character or reputation of the accused is put in evidence by him, either directly or indirectly, the law forbids such attack by the state, either by evidence or by argument.”

We doubt that the prejudicial effect of this statement could have been removed by the court’s instruction. As stated in McIntosh v. State, 85 Tex.Cr.R. 417, 213 S.W. 659: “Impressions made on the mind can no more be erased by such instructions than the memory of a curse or a blessing can be torn out and thrust away by the effort of the will.” The appellant here received more than triple the minimum jail sentence. We said in Carroll v. State, 139 Tex.Cr.R. 230, 139 S.W.2d 821: “If there is any doubt on the subject (of harm) it is the duty of the trial court to resolve that doubt in favor of the party on trial, and it is our duty to resolve it in favor of the appellant in this case.”

We are cited by the state to King v. State, 156 Tex.Cr.R. 508, 243 S.W.2d 846. An examination of this case reflects that at the time the argument was made appellant did not object nor did he request an instruction to the jury to disregard the same. We do not think King is m point, nor on a parallel basis with this case. We do observe, however, that the language used in the King case indicates certainly that this Court would hold an argument to be reversible error where the language complained of is manifestly improper, harmful and prejudicial.

The state also cites the case of Baker v. State, Tex.Cr.App., 368 S.W.2d 627, and says that the reasoning there applied should control under these circumstances. Baker, in effect, holds that the argument was not so obviously prejudicial that its harmful effect could not be removed by the court’s instruction. On motion for rehearing Judge Morrison pointed out that “the Court sustained the objection, instructed the jury not to consider the argument, and appeb lant asked for no further relief.” In other words, he did not make a motion for mistrial. He did not come before this Court from an adverse ruling of the trial court. Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447, held: “The court ruled favorably to the appellant on his objection. After his objection was sustained he appears to have been satisfied because he asked the court for no further relief.” We do not think Baker, supra, supports the state’s position.

For the error pointed out, the judgment is reversed and the cause remanded.

WOODLEY, Judge

(dissenting).

I am unable to agree that the complained of remarks of counsel for the state were so obviously prejudicial as to require the trial court to declare a mistrial. See Baker v. State, Tex.Cr.App., 368 S.W.2d 627, 631.


author: WOODLEY, Judge.

text:
    Jerry MATHEWS, Appellant, v. The STATE of Texas, Appellee.
    No. 37818.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied April 28, 1965.
    Houston McMurry, Henrietta, for appellant.
    Clyde Suddath, County Atty., Henrietta, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, 3 years.

The indictment returned September 20, 1962, alleged the burglary of a house belonging to Otto Wade on or about September 11, 1962.

On April 6, 1964, trial on the issue of insanity resulted in a finding that appellant was sane at the time of the alleged burglary and at the time of said trial.

The case came on for trial on the burglary charge on July 14, 1964. The issues of insanity were again raised and submitted to the jury.

Otto Wade testified that he was foreman and in charge of the Langford Ranch in Clay County on September 11, 1962; that about 1 P.M. that day he discovered that a granary on the ranch had been broken into and some 60 or 70 bushels of wheat was missing.

Sheriff Conner Fletcher was notified and made an investigation of the burglary which resulted in charges filed against appellant and Hershel Heavener and their return by the Sheriff from Oklahoma.

Appellant’s confession made to Sheriff Fletcher and reduced to writing by Chris Royer, secretary to the County Attorney, was introduced. In it he admitted the burglary and theft of the wheat which he said they loaded in his Pontiac Sedan and in his mother’s pickup; that he drove the pickup and Hershel drove the Pontiac and that he sold the wheat in Temple, Oklahoma and divided the money with Hershel.

Other witnesses for the state included Chris Royer, who typed the confession, and Glen McHale, Oklahoma Highway Patrolman who testified that on September 12, 1962, he stopped the appellant and Hershel Heavener and talked with them about the wheat in the back seat of the Pontiac and in the pickup covered with an old quilt, and that later in the day he learned of the burglary at the Langford ranch.

Much of the evidence at the trial related to the question of the sanity or insanity of the defendant. We deem it unnecessary to discuss this testimony. Suffice it to say that the evidence is sufficient to sustain the jury’s verdict.

Appellant correctly contends that without his confession the evidence introduced would not have been sufficient to connect him with the burglary.

We are unable to agree with his further contention that the trial court erred in admitting the confession in evidence.

The statement was offered in evidence after Sheriff Fletcher had identified it and had testified to facts showing that it was voluntarily made after the warning required by Art. 727 C.C.P., reduced to writing and signed by appellant. The jury was retired and the Sheriff was examined on voir dire.

The confession was admitted in evidence to the jury over two objections: First, appellant objected because the evidence showed that appellant could not read, and the confession was not witnessed by at least two persons who were not officers.

The evidence shows that appellant was able to sign his name and that he signed the confession.

Art. 727 C.C.P. requires a person other than a peace officer to witness and sign only when the defendant is unable to write his name and signs the statement by making his mark.

The second objection “is based on the recent ruling of the Supreme Court of the United States which is that no confession or statement is admissible in evidence unless the defendant had been given a right to call an attorney of his choice to be present at the time the statement was made, and the testimony of the Sheriff indicates that that did not happen.”

Sheriff Fletcher testified that he did not explain to appellant before he signed the statement that he was entitled to have an attorney present. He also testified: “ * * * He knew plenty about that. He told me what the law was. * * * If he wanted an attorney, he could have got one, because he had access to the telephone. He could have called anybody he wanted to.”

Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and other cases including Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, do not support appellant’s attack upon the admissibility of the confession.

Until such time as another judicial determination is made, the contention of appellant’s counsel that appellant is insane is foreclosed against him by the verdict of the jury and the judgment rendered thereon.

As to the burden of proof by reason of appellant having been committed in the State of Oklahoma, the effect, if any, of such former adjudication of insanity, if it was, was removed by the judgment rendered on the finding of the jury at the preliminary trial that appellant was sane.

No error appearing, the judgment is affirmed.


text:
    Neal Wood LYONS, Appellant, v. The STATE of Texas, Appellee.
    No. 37772.
    Court of Criminal Appeals of Texas.
    March 24, 1965.
    Rehearing Denied April 28, 1965.
    H. E. (Bill) Tarpley, Phil Burleson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, John Vance, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for indecent exposure to a child; the punishment, two years.

In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that upon the trial the eleven-year-old child named in the indictment identified the appellant as a man who had exposed his sexual parts to her on the date alleged. She further stated that after she had reported the incident to her parents she not only identified a picture of appellant but also identified the appellant, in person, at a police lineup as the man who had exposed himself to her.

Testifying in his own behalf, appellant denied that he was the man. He also testified to an alibi and was corroborated by other testimony in support of the defense.

Over appellant’s timely objection, the state was permitted to show by the testimony of Officers Bynum and Brumit that the minor child did identify appellant at the police lineup and also picked out his picture, from a number of pictures furnished her by the officers, as the man who had exposed himself to her.

Appellant objected to the testimony on the ground that it was an effort by the state to bolster the testimony of an un-impeached witness.

In permitting the testimony over such objection, the court erred. The child had positively identified appellant at the trial as the guilty party. True, she was fully cross-examined by appellant with reference to her identification but she was not impeached.

It is the rule that while a witness who has identified her assailant at the trial may testify that she also identified him while he was in custody of the police, others may not bolster her unimpeached testimony by corroborating the fact that she did identify him. See: Reddick v. State, 35 Tex.Cr.R. 463, 34 S.W. 274; Weaver v. State, 68 Tex.Cr.R. 214, 150 S.W. 785; Fortune v. State, 96 Tex.Cr.R. 569, 259 S.W. 573; Lucas v. State, 160 Tex.Cr.R. 443, 271 S.W.2d 821.

It cannot be said that the testimony presented by the state bolstering the prosecuting witness’s testimony was not injurious to appellant. Its admission calls for a reversal of the conviction.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    James Daniel HOOKER, Appellant, v. The STATE of Texas, Appellee.
    No. 38159.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Sam Pater-nostro, Neal English and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin for the State.
   BELCHER, Commissioner.

The conviction is for the subsequent offense of driving while intoxicated; the punishment, four years in the penitentiary.

Officer Corum testified that he observed the appellant as he drove an automobile in an erratic manner for several blocks along a public street and that the automobile was weaving and travelled from the right shoulder to the left side of the street before coming to a stop. He further testified that appellant had a strong odor of alcohol on his breath and stated to him that he had drunk two bottles of beer; that his eyes were bloodshot, his speech incoherent, and he staggered while walking. Corum expressed the opinion that appellant was intoxicated. The testimony of Officer Holt, who was with Corum, corroborates the latter’s testimony.

Testifying in his own behalf, the appellant stated that he had had nothing to drink and was not drunk. Any unusual appearance, he explained, was attributable to a bridge in his mouth, a broken foot, swimming which may have affected his eyes, and heart trouble.

The prior conviction, as alleged, was stipulated. Also, said conviction was admitted by the appellant, while testifying.

There are no bills of exception and no objections to the court’s charge.

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

Opinion approved by the Court.


text:
    Ex parte Mike BARCLAY.
    No. 38231.
    Court of Criminal Appeals of Texas.
    April 14, 1965.
    Sam Houston Clinton, Jr., Austin, for respondent.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is a habeas corpus proceeding originally presented to this Court seeking release from confinement under an order of a district judge adjudging the petitioner in contempt of court and ordering his confinement in jail for 24 hours and until a fine of $100 was paid.

After we set the case for hearing on the question of whether the writ should issue, the petitioner filed in this Court his affidavit to the effect that he had satisfied the judgment of contempt and requested that his petition for writ of habeas corpus be dismissed.

The question being moot, the request is granted and the petition for habeas corpus is dismissed.


author: BATEMAN, Justice.

text:
    Elinor H. HAUSLADEN, Appellant, v. Victor H. HAUSLADEN, Appellee.
    No. 16467.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 26, 1965.

      Crozier, Sweet & Freeman, William W. Sweet, Jr., Dallas, for appellant.
    Flannigan, Patterson & Biesel, Geo. E. Flannigan, Dallas, for appellee.
   BATEMAN, Justice.

A decree of divorce was granted to the appellee Victor H. Hausladen. The wife, Elinor H. Hausladen, appeals and prays that the decree be reversed and rendered in her favor.

Her first two points of error on appeal question appellee’s qualification to bring the suit. The trial court filed findings of fact, one of which was that appellee had been a resident of the State of Texas “for a period of one (1) year prior to exhibiting his petition herein.” Appellant’s position under her first point of error is that this finding was insufficient as a matter of law in that it is not a finding that such inhabi-tancy was for the twelve months next preceding the filing of the petition, as required by Art. 4631, Vernon’s Ann.Civ.St., citing Langford v. Langford, Tex.Civ.App., 337 S.W.2d 181. We overrule the first point for reasons which we shall now set forth in discussing the second.

The second point of error is that the evidence was insufficient to support the above finding. The evidence showed without dispute that the parties and their minor daughter lived together in their own home in Webster Groves, Missouri, a suburb of St. Louis, where appellee was employed as a traveling salesman. He was notified by his company that he would be transferred to the Dallas, Texas area effective January 1, 1963. He came to Dallas alone on January 6, 1963, spent that night in a motel, rented a small efficiency apartment the next day and lived in it until he purchased a home in Dallas County in April 1963. His wife and daughter remained in their home in Missouri until April 1963 when they all moved into the newly purchased Dallas County home. He left most of his personal possessions, including the family furniture and other effects, in Missouri until that time. He gave St. Louis as his residence on his 1962 income tax return filed in April 1963, and he told his wife he still considered his home and church membership to be in St. Louis. Nevertheless, it is clear from the testimony of both parties, taken as a whole, that when they learned in the fall of 1962 of his pending transfer to Dallas, they both formed the intention in good faith to make Dallas County their permanent place of abode, which intent they carried into effect as soon as could conveniently be done. The wife stayed in the Missouri home until a suitable home was purchased in Dallas County, when she placed the Missouri home on the market and sold it. In the meantime she and the daughter visited appellee for short periods in the Dallas apartment. Appellee was actually physically present in Dallas County from his arrival on January 6, 1963 until after this suit was filed on January 6, 1964, except for short, temporary absences made necessary by his work. We hold that this satisfied the requirements of Art. 4631, V.A.C.S. and accordingly overrule both of appellant’s first two points of error. Warfield v. Warfield, Tex.Civ.App., 161 S.W.2d 533.

Appellant’s third, fourth and fifth points of error complain: (3) that the evidence was insufficient to sustain the court’s finding of unkind, harsh and cruel treatment of appellee by appellant, (4) that any such alleged acts of cruel treatment were provoked by appellee’s conduct, and (5) that the alleged acts of cruelty were condoned by appellee. We think it might aid in an understanding of our discussion of these three points to quote the trial court’s Findings of Fact Nos. 2 and 3:

“(2) That the parties were duly and legally married on or about September 18, 1948 and continued to live as husband and wife until on or about November 19, 1963 at which time they separated.
“(3) That Plaintiff VICTOR H. HAUSLADEN was guilty of adultery, not involving abandonment of wife and family, at a time prior to December 31, 1962; that the Defendant ELINOR H. HAUSLADEN became apprised and aware of such prior adultery during the month of October or November, 1962; that following such apprísal, Plaintiff agreed to and did discontinue his adulterous relationship and Defendant, in reliance upon Plaintiff’s agreement to discontinue such adulterous relationship agreed to continue the marriage relationship between the parties and forgive Plaintiff prior adultery; that thereafter. Plaintiff and Defendant continued to live as husband and wife, cohabiting together, enjoying normal marital sexual relations and reinstating the marriage relationship as it existed prior to the adulterous activity of Plaintiff; that after Defendant became apprised and aware of Plaintiff’s adulterous relationship, the parties agreed to sell their home in St. Louis, Missouri where they had lived for several years, and move to Texas; that pursuant to this agreement, the parties purchased a home in Richardson, Texas which they occupied in May of 1963, and in which they continued to live and cohabit as husband and wife in a general spirit of forgiveness by Defendant of Plaintiff’s prior adulterous relationship; that pursuant to Plaintiff’s agreement of December, 1962 to discontinue the adulterous relationship, Plaintiff did in fact discontinue and continually refrain from any adulterous relationship and did seek by his general conduct, demeanor, and attitudes, to make amends for his prior adulterous conduct, treating the Defendant with kindness and affection; that the Defendant did, by reason of her forgiveness of Plaintiff’s prior adulterous conduct, her subsequent co-habitation and continuation of the marriage relationship and her agreement not to allow her knowledge of and the prior existence of Plaintiff’s adulterous conduct to interfere with the marriage relationship, forgive and condone Plaintiff’s prior adulterous conduct; after such condonation by Defendant of Plaintiff’s prior adulterous conduct, the Plaintiff was not guilty of any act or acts to provoke or justify the Defendant’s unkind, harsh and cruel treatment toward Plaintiff; notwithstanding the absence of such provication or justification, the Defendant was guilty of unkind, harsh and cruel treatment toward the Plaintiff which conduct by Defendant has rendered the further living together of the parties '■insupportable (sic)”

Our careful review of the statement of facts persuades us that the court’s Finding No. 2 and that part of No. 3 which relates to the adulterous conduct of appellee and the forgiveness and condonation thereof by appellant, are supported by the evidence. We shall now discuss the evidence with respect to the last few words of Finding No. 3, wherein the court found that appellant was guilty of unkind, harsh and cruel treatment toward appellee which rendered their further living together insupportable.

Appellee’s testimony in this respect is to the effect that his wife berated him, called him a louse, accused him of doing things he was not doing, telling him he wasn’t treating her right and wasn’t paying enough attention to her, that he had been out with other women, and threatened to call his parents and tell them what a lousy son they had. He further testified that these outbursts affected his work and his sales volume. The record of this testimony is unsatisfactory in that it is impossible for us to determine therefrom just when all of these things occurred. It is fairly clear, however, that the conduct of which appellee complains began after appellant learned of his previous adultery. This was in December 1962 before either of the parties moved to Dallas. It also appears from the record that appellee separated from his wife in July 1963 because of her many expressions of disapproval of him and his conduct, but that shortly thereafter they became reconciled and lived together as husband and wife until their final separation on or about November 19, 1963. Appellee testified that, although his wife had agreed in December 1962 that she would forgive and forget his offense of adultery, after their reconciliation following the July 1963 separation and until their separation in November 1963,, appellant would go into fits of anger, tirades and run him down in general; that in November 1963 she told him she was going to take their daughter out of school and go back to St. Louis and register in some hotel under a false name so that he could not find her. It was undisputed that during the period from July 1963 to November 19, 1963 the parties “cohabited together” at least once or twice, the last time being in the latter part of October 1963. Appellee testified that it would be impossible for him again to live with appellant as her husband.

Art. 4632, V.A.C.S., provides inter alia, that the decree of divorce shall be rendered “upon full and satisfactory evidence.” We hold that this evidence fell short of being “full and satisfactory” and was therefore insufficient to establish such cruel treatment as would constitute a statutory ground for divorce, and therefore sustain the third point of error.

The rule generally applicable in civil cases, that if there is any evidence to support findings of the trial court those findings are binding on the appellate court, does not apply in divorce cases because the statute authorizes divorce only when the evidence is “full and satisfactory,” and this limitation must be observed by both the trial and appellate courts. Our Supreme Court held many years ago that the discretion of the trial judge in a divorce case should “be subject to revision by the appellate court, in order that the dearest rights of society may not be jeopardized by the mistakes or errors of one man.” Jernigan v. Jernigan (1872) 37 Tex. 420, 421. See also Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709, 711, wherein it was held that the statute requires the evidence to be full and satisfactory, not only to the trial judge, but also to the appellate court “in order to permit a decree to stand.”

Where the evidence is conflicting, we have no authority to pass upon the credibility of witnesses, but it is our duty to “determine as to the quality of the evidence” to make certain that the evidence upon which a decree of divorce is granted is “full and satisfactory.” Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228. See also Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297, 304; Moon v. Moon, Tex.Civ.App., 186 S.W.2d 362; and McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129, 132, where we find this significant language:

“The rule in this state, as well as in others, is that parties cannot be divorced for incompatibility, or because they live unhappily together, or merely because they possess unruly tempers, or for marital wranglings.”

The fourth point is that it was error to grant the divorce because the alleged acts of cruel treatment were provoked by ap-pellee’s conduct. Appellee seems to have had no serious eomplaint of appellant’s conduct until after she learned of his adultery. Even though she agreed to forgive and forget the adultery, and evidenced such amnesty by resuming marital relations with appellee for several months, the record conveys the definite impression that the matter was not completely erased from her consciousness and that the memory of the grievous wound to her sensibilities caused her attitude toward her husband to become less than angelic. The question now before us, however, is not whether appellant breached her agreement, or whether there was impossibility of performance thereof, or whether there was any consideration for her promise, but whether appel-lee’s conduct provoked her acts of “cruelty”. It seems clear to us that it did.

We think the doctrine of recrimination is applicable here. “A mutuality of misconduct indulged in by both parties to a divorce action amounts to recrimination.” 20 Tex.Jur.2d, Divorce and Separation, p. 391, § 47, wherein it is also stated that recrimination generally is a bar to a suit for divorce, and that it is generally held that a person should not be allowed to recover for the wrongful act of another if his own guilt is attached thereto.

Recrimination constitutes a valid defense where the acts or conduct of the defendant for which the plaintiff seeks a divorce were induced by or in retaliation of the plaintiff’s own conduct. The plaintiff’s acts must have been such as are reasonably calculated to provoke the misconduct of the defendant that is the ground for divorce, though they are not required to be of exact degree with the defendant’s conduct.” 20 Tex. Jur.2d, Divorce and Separation, p. 393, § 48.

This doctrine of recrimination is given full recognition in Texas. Warfield v. War-field, Tex.Civ.App., 161 S.W.2d 533. We think these words of Chief Justice Fly of the San Antonio Court of Civil Appeals in Mansur v. Mansur, Tex.Civ.App., 37 S.W.2d 846, are applicable here:

“If under all these circumstances the wife at times forsook the sweet conversation and humble demeanor of a saint it cannot be a marvel. * * * If she has sinned, he is in no position to cast the stones of condemnation and destruction at her.”

The fourth point of error is sustained.

The fifth point is that the alleged acts of cruel treatment were condoned by appellee. While it could properly be said that those alleged acts of cruelty on the part of appellant which occurred prior to the separation and reconciliation in July 1963 were condoned by such reconciliation and cohabitation thereafter, still there is evidence of some further harassment after the reconciliation and up until the final separation on November 19, 1963, which we do not find was condoned by appellee. When a spouse is guilty of acts of cruel treatment toward the other, and such other agrees to a reconciliation and the parties cohabit together, there is a condonation of the prior wrongful acts; but if such wrongful acts continue as in the past the condoned wrongful acts are thereby revived and may be considered in determining whether a divorce should be granted. Oster v. Oster, Tex.Civ.App., 130 S.W. 265. The fifth point of error is overruled.

Appellant’s sixth and last point of error is that appellee’s admitted adultery was a complete defense to his suit for divorce, citing Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123 and Jones v. Jones, Tex.Civ.App., 176 S.W.2d 784. We hold that under the facts shown by the record in this case the point is well taken and is sustained.

For the reasons stated the decree of the court below is reversed and judgment here rendered that appellee be denied a divorce.

Reversed and rendered.


author: RENFRO, Justice.

text:
    Mack Henry BROOKS et ux., Appellants, v. Howard G. LARGE, Appellee.
    No. 16621.
    Court of Civil Appeals of Texas. Fort Worth.
    March 19, 1965.
    Rehearing Denied April 16, 1965.

      James E. Ferguson, Cleburne, for appellants.
    Timothy D. Eyssen, County Atty., Wichita Falls, for appellee.
   RENFRO, Justice.

Plaintiffs Mack and Margaret Brooks brought suit against Howard G. Large, Chief Officer of the Probation Department of Wichita County, for custody of the minor children, Sherry Lynn and Billy Jack Brooks. From a summary judgment for defendant, plaintiffs appealed.

On July 10, 1963, the Juvenile Court of Wichita County declared the above named minor children to be dependent and neglected children and placed their custody in the Probation Department of Wichita County. The father of the children was an inmate of the State penitentiary at Huntsville.

The mother of the children voluntarily appeared, testified she could not care for the children, and requested the court to declare them dependent and neglected.

At the hearing the paternal grandparents (plaintiffs in the instant suit), although not parties by intervention or otherwise, appeared with their counsel, denied the children were dependent and requested their custody be placed with them. They were given a full hearing. The court entered the judgment of dependency as heretofore stated. Neither parent appealed. The grandparents did appeal. The judgment of dependency was affirmed. Brooks et ux. v. Wichita County, Tex.Civ.App., 377 S.W.2d 771.

The plaintiffs were again denied custody of the children in another hearing on the 26th of August, 1964.

The instant suit was filed on August 18. 1964. Plaintiffs again attacked the dependency judgment and requested custody of the children.

Defendant filed a motion for summary judgment. The motion set out matters which, if conclusively proved, would entitle defendant to judgment.

The plaintiffs did not file a reply to the motion.

Judgment was entered for defendant.

The judgment recites that the court heard and considered the evidence.

No evidence was brought to this court by statement of facts or otherwise.

Formal issues framed in the pleadings are not controlling when extrinsic evidence demonstrates the absence of any true issue. McFarland v. Connally, 252 S.W.2d 486 (Fort Worth Civ.App., 1952, no writ hist.). Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with such reply as will clearly show the existence of disputed material facts. McDonald, Texas Civil Practice, Vol. 4, 1962 Cumulative Supplement, p. 47, § 17.26.3(a); Savoy v. Graham Memorial Auditorium Association, 329 S.W.2d 352 (Fort Worth Civ.App., 1959, no writ hist.).

Where there is no indication that evidence was introduced before and considered by the trial court which is not brought forward in the record, no presumptions are to be applied in favor of a summary judgment on the basis of the absence of a statement of facts. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

When, however, it affirmatively appears from the record that evidence was introduced and considered by the trial court, as in this case, it will be presumed, in the absence of such evidence in the record, that such evidence did not raise any genuine issue of material fact. Reese v. Davitte, 255 S.W.2d 1015 (Fort Worth Civ.App., 1953, dism.); McFarland v. Connally, supra; Maxwell v. Maxwell, 292 S.W.2d 368 (Fort Worth Civ.App., 1956, no writ hist.).

Affirmed.


author: WELBORN, Commissioner.

text:
    Martin HEMAN, Plaintiff-Appellant, v. Wayne Daryl PERRY, Defendant-Respondent.
    No. 50903.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 12, 1965.

      Taylor & Taylor, Independence, and Walter A. Raymond, Raymond, West & Coch-rane, Kansas City, for appellant.
    William A. Rundle, Jr., George M. Wells, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
   WELBORN, Commissioner.

This is an action for damages totaling $36,500 for personal injury and property damage, arising out of an automobile collision. The jury returned a unanimous verdict for the defendant. After his motion for new trial had been overruled, plaintiff appealed to this court. We have jurisdiction by reason of the amount sued for.

The collision out of which this litigation arose occurred at around 3:00 P.M. on November 4, 1961, a clear day with the roadways involved dry. The defendant, Wayne Daryl Perry, was driving his 1960 Ford sedan north on Supplemental State Route H in Jackson County. The plaintiff, Martin Heman, had driven his 1957 Pontiac sedan west on Stoner Road to its intersection with Route H. According to plaintiff, he, in response to a stop sign located some 36 feet east of the east edge of the 18' concrete pavement on Route H, and controlling westbound traffic on Stoner, stopped his car some 4 to 5 feet east of the Route H pavement. Plaintiff testified that he looked to the south after he stopped and saw no vehicle approaching from that direction on Route H within the 400' range of his vision. Beyond that distance, Route H sloped downward, obscuring the vision of a driver in plaintiff’s position at the intersection. Plaintiff stated that, after stopping and looking to the south and seeing no traffic in that direction, he started his vehicle slowly, turned to his right, intending to proceed northward on Route H, and had proceeded some 30 feet north on that route when his vehicle was, without prior warning, struck by defendant’s Ford.

The defendant testified that he was driving north on Route H at 65 to 70 miles per hour (on his deposition he placed his speed at 65 to 75 miles per hour) when he topped the rise some 350 to 400 feet below Stoner Road. At that time he saw plaintiff’s Pontiac moving slowly west on Stoner Road, past the stop sign and about 20 feet from the east edge of the concrete pavement on Route H. Defendant stated that immediately upon seeing plaintiff he felt that plaintiff was not going to stop so he sounded his horn and applied his brakes. His Ford skidded some 300 feet in a straight line to the point of collision in the northbound lane of Route H. According to defendant, plaintiff did stop his car with the front of it about 5 feet over the east edge of the H pavement, and, when defendant was about halfway to the intersection, he attempted to turn his auto to the left, but plaintiff started, as if to cross H and continue on Stoner Road, blocking both lanes of H, and defendant was unable to avoid the collision. A passenger in defendant’s car testified to substantially the same version of the collision. There was no other testimony of eyewitnesses.

Photographic evidence showed damage to plaintiff’s Pontiac on the left rear and to defendant’s Ford on the right front. Such evidence also showed skid marks, identified as having been made by defendant’s vehicle, terminating at a point where dirt and other debris appeared on the roadway. This point was at approximately the north edge of the Stoner Road blacktop roadway as it flared out to intersect Route H.

The case was submitted to the jury on defendant’s excessive speed as negligence. The defendant submitted plaintiff’s failure to yield the right-of-way as contributory negligence. The assignments of error here relate to defendant’s counsel’s argument to the jury on contributory negligence and the instruction by which such defense was submitted to the jury.

In the closing argument of defendant’s counsel the following occurred:

“MR. RUNFLE: * * * This business of 90 miles an hour, or more. From what would you draw the conclusion of 90 miles an hour, or 80 miles an hour? You have to follow the testimony in the lawsuit, and the only evidence is that he was going from 65 to 75 miles an hour. That is not the point. The point is at what speed could that car have been stopped under these circumstances ? I say to you that it is right there that plaintiff has not sustained the burden of proof in this lawsuit.
“Let’s assume that you can find some basis for saying that Wayne could have stopped his car and that he was negligent in not stopping. There is one more hurdle for them, and that is this matter about contributory negligence which they have to overcome.
“MR. RAYMOND: I object to that as a misstatement. The burden is on them. He says we have got to overcome it.
“THE COURT: Overruled.”

On this appeal plaintiff contends that the trial court erred in overruling his objection to the argument, stating that the court thereby in effect placed its 'approval upon an argument that plaintiff had the burden of proving his own freedom from contributory negligence.

Defendant acknowledges that the burden of proof on the issue of plaintiff’s contributory negligence was upon the defendant and the jury was so instructed. The argument objected to did not expressly refer to the matter of burden of proof of contributory negligence. The jury was told that the plaintiff had to “overcome” the matter of contributory negligence. In a sense that is true in any case where contributory negligence is pleaded. The plaintiff’s conduct is in issue and must be measured against the applicable standard of care. Failing to measure up to that standard in a respect having causal relationship to the injury for which he seeks redress, the plaintiff cannot recover. In our opinion the remarks of defendant’s counsel in this case, while not to be encouraged, should not be extended beyond their content to make them the equivalent of stating that the burden of proof was upon plaintiff to prove that he was free from contributory negligence. We, therefore, reject appellant’s contention that the court’s overruling of his objection constituted an oral instruction that the burden was upon plaintiff to prove his freedom from contributory negligence.

In his closing argument plaintiff’s counsel pointed out to the jury the court’s instruction on the issue of contributory negligence and read the instruction in its entirety to the jury. We fail to perceive how the statements of defendant’s counsel in his oral argument could have confused or misled the jury as to the effect and meaning of the positive and direct language of the court’s instruction on burden of proof. In our opinion the argument of defendant’s counsel was not prejudicially erroneous. Marquardt v. Kansas City Southern Ry. Co., Mo.Sup., 358 S.W.2d 49, 57(13).

Plaintiff cites cases involving positive misdirection by the court on matters of law, such as Lefkowitz v. Kansas City Public Service Co., Mo.Sup., 242 S.W.2d 530, and Schaefer v. Kansas City, Mo.App., 270 S.W.2d 84. That is not the situation of this case. Nor is this a case of conflicting instructions by the court, such as were involved in Jennings v. Cooper, Mo.App., 230 S.W. 325, cited by plaintiff. None of the other numerous cases relied upon by plaintiff involved a situation in any respect comparable to that here presented.

Plaintiff also alleges error in another portion of defendant’s counsel’s argument in which, plaintiff contends, counsel erroneously stated the measure of contributory negligence which would defeat plaintiff’s claim. However, no objection was made to this argument at the trial and, therefore, plaintiff may not now assert that error arose from it. Stanziale v. Musick, Mo.Sup., 370 S.W.2d 261, 269(13, 14); Fisher v. Williams, Mo.Sup., 327 S.W.2d 256, 261(4-6).

Defendant submitted plaintiff’s contributory negligence by the following instruction:

“The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence the defendant was driving an automobile in a northerly direction on Missouri County Road ‘H’, and that plaintiff was driving an automobile on Stoner Road in a westerly direction, and that Stoner Road intersected Missouri County Road ‘H’, and if you find that there was a stop sign erected at said intersection warning drivers approaching said Missouri County Road ‘H’ from the east on Stoner Road to come to a stop before proceeding on to said Missouri County Road ‘H’, and if you find plaintiff Martin Heman failed to keep and maintain a careful and vigilant lookout ahead and laterally for other vehicles upon said Missouri County Road ‘H’, including the vehicle which defendant Wayne Daryl Perry was driving, and if you further find Missouri County Road ‘H’ was a through highway, and that the said plaintiff Martin Heman failed to stop ‘said automobile but drove the same out on to the traveled portion of said Missouri County Road “H” without stopping at a time when the automobile which defendant Wayne Daryl Perry was driving was approaching so closely on Missouri County Road “H” as to constitute an immediate hazard, if you find it was, and if you further find that the said plaintiff Martin Heman failed to yield the right-of-way to the automobile driven by defendant Wayne Daryl Perry, and if you find that such failure, if any, on the part of plaintiff Martin Heman was negligence, as defined in these instructions, and that such negligence, if any, directly contributed to cause the collision and his injuries, if any, then your verdict must be in favor of defendant Wayne Daryl Perry and against the plaintiff.’ ”

Appellant attacks this instruction on the following grounds:

“(1) It has the erroneous and unlawful effect of telling the jury plaintiff was negligent as a matter of law just because a collision occurred.
“(2) It erroneously failed to require a finding that plaintiff knew, or should have known, defendant’s automobile was approaching so close under the circumstances as to constitute an immediate hazard but assumed such facts.
“(3) It erroneously charged plaintiff with the duty of taking protective measures upon the mere appearance of defendant’s automobile.
"(4) It erroneously deprived plaintiff of the benefit of the fact he was first in the intersection and had the right to assume defendant would approach at lawful speed and exercise the highest degree of care until he had notice to the contrary.
“(5) It charged plaintiff with the absolute duty of keeping a lookout, seeing everything and realizing there was danger of collision.”

Appellant’s objections to the instruction as authorizing a finding of negligence as a matter of law just because the collision occurred and as putting upon the plaintiff the absolute duty to see the defendant’s automobile, realize the danger and avoid the collision are based upon the extraction of portions of the instruction from its context. For example, as making the actual occurrence of the collision the test of whether plaintiff was negligent, plaintiff points to the following language: “ * * *, and that the said plaintiff Martin Heman failed to stop said automobile but drove the same out on to the traveled portion of said Missouri County Road ‘H’ without stopping at a time when the automobile which defendant Wayne Daryl Perry was driving was approaching so closely on Missouri County Road ‘H’ as to constitute an immediate hazard, if you find it was, * * *." However, the instruction must be read as a whole. Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557, 566. Read as a whole, it is clear that, whether the matters submitted of failure to keep a proper lookout, failure to stop and failure to yield the right-of-way, be considered as independent specifications of negligence (Garrison v. Ryno, supra) or as evidentiary facts in support of ultimate negligence submitted of failure to yield the right-of-way (Schaetty v. Kimberlin, Mo.Sup., 374 S.W.2d 70, 72-73), a verdict in favor of the defendant predicated upon a finding of these matters is authorized by the instruction only upon the further and ultimate finding that the conduct of the plaintiff in its totality constituted negligence.

Plaintiff in support of his charge that the instruction placed an absolute duty upon him to keep a lookout and discover the danger of defendant’s approaching vehicle relies on Welcome v. Braun, Mo.Sup., 319 S.W.2d 586 and Lay v. McGrane, Mo.Sup., 331 S.W.2d 592. The instructions found erroneous for such reason in those cases are not similar to that here involved. In those cases the difficulty with the instructions lay in the requirement that a driver do what he could do at a time when he could have seen the other vehicle and could have realized that there was danger of collision. Such language was held to have imposed an absolute duty rather than a duty to use the highest degree of care to do the hypothesized acts. The instruction here involved imposed no absolute duty but measured the plaintiff’s duty in terms of negligence, or failure to exercise the highest degree of care.

Likewise the instruction is wholly different from that involved in Slaughter v. Myers, Mo.Sup., 335 S.W.2d 50, relied upon by plaintiff. The instruction in that case specifically declared the failure to yield the right-of-way in the circumstances negligence as a matter of law. This instruction does not define any of the acts specified therein as negligence as a matter of law.

As to the failure of the instruction to require a finding that, at the time plaintiff entered Route H, he knew or in the exercise of the highest degree of care should have known that defendant’s vehicle was approaching so closely as to constitute a hazard, no case has been cited by the appellant in which it has been held that such a finding is essential to an instruction such as that here involved. Plaintiff points to language in Herr v. Ruprecht, Mo.Sup., 331 S.W.2d 642, 647, an intersection collision case, in which the court stated: “However, the fact that a collision occurred and the manner of its happening are evidentiary-facts which must be taken into consideration in determining the sufficiency of the evidence, especially in this type of case where the essential question is whether the plaintiff’s vehicle was ‘approaching so closely on the through highway as to constitute an immediate hazard’ and whether the defendant knew or should have known of such danger.” The question actually under consideration by the court in Herr was whether or not the plaintiff had made a submissible case of negligence of defendant’s failing to yield the right-of-way. The court did not use the language relied upon in passing upon the sufficiency of an instruction. A concurring opinion in Herr did suggest that whether scienter should be hypothesized be considered in redrafting of the right-of-way instruction. 331 S.W.2d 653. However, the question was not expressly decided.

In Snider v. King, Mo.App., 344 S.W.2d 265, the Springfield Court of Appeals held a right-of-way instruction bad because it failed to hypothesize sufficiently the facts from which the jury might have found that the driver on the intersecting highway by the exercise of the highest degree of care could have seen plaintiff’s vehicle on the through highway approaching the intersection so closely as to constitute an immediate hazard. The court pointed out that the evidence on that question was divergent and that the instruction on failing to hypothesize facts in such regard failed to hypothesize facts essential in law to support the verdict. 344 S.W.2d 280(14).

In neither Herr nor Snider was failure to yield the right-of-way coupled with a proper lookout instruction as was the case with the instruction here involved and also in Garrison v. Ryno, supra. It has been held that a proper lookout instruction is “equivalent to a requirement that the jury find that the * * * driver (charged with the obligation) could have seen the other vehicle if he had looked.” Harris v. Mound City Yellow Cab Co., Mo.App., 367 S.W.2d 43, 50. Here the appellant does not contend that the evidence did not support the lookout or any other portion of Instruction 8. Therefore, the coupling of the lookout charge with the charge of failure to yield necessarily required a finding that for both such failures appellant could' have seen respondent if he had looked.

In this case the defendant’s contributory negligence instruction was obviously based upon the defendant’s version of the collision. He, of course, had the right to submit his version of the occurrence. Watt v. St. Louis Public Service Co., Mo.Sup., 354 S.W.2d 889, 893(8-9). The defendant’s evidence would have supported a finding by the jury that the defendant’s automobile on Route H was in sight of plaintiff when the defendant was some 400 feet from the intersection and before the plaintiff had reached the actual point of intersection of Route H and Stoner Road. It would have supported a further finding that when the defendant was some 200 feet from the intersection the plaintiff drove his automobile through the intersection directly into the path of the defendant’s oncoming vehicle at a time when the defendant’s vehicle would have been clearly visible to the plaintiff had he looked to the left.

The essence of the plaintiff’s negligence in the circumstances of this case as shown by the defendant’s evidence would have been his entry at such time as a person in the exercise of the highest degree of care should have realized that a collision was likely to occur. If the jury had been called upon to find that the plaintiff did know or had reason to know that the defendant’s automobile was approaching so closely as to constitute an immediate hazard, there would have been no occasion for further requirement if the jury find that such conduct was negligence or it would have obviously done so.

Therefore, we conclude that in the application of this instruction the jury-must, if it found plaintiff guilty of contributory negligence, necessarily have found that the plaintiff either did or should have known at the time he entered the through highway that the defendant’s auto was approaching so closely as to constitute a hazard. Such finding being implicit in the matter being submitted, there was no necessity for its “specific hypothesization.” Witt v. Peterson, Mo., 310 S.W.2d 857, 861.

Cases cited by plaintiff (Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111; Rayburn v. Fricke, Mo.App., 243 S.W.2d 768; Nydegger v. Mason, Mo.Sup., 315 S.W.2d 816) in which instructions in intersection collisions have been held defective for imposing upon a driver a duty to take protective measures upon the mere appearance of another vehicle are not applicable here. In this case, the law (Sec. 304.021 (4), RSMo 1959, V.A.M.S.) imposed upon plaintiff a duty to stop and to yield the right-of-way to vehicles approaching on the through highway so closely as to constitute a hazard. The instruction properly stated plaintiff’s duty in terms of the statutory standard.

As for the contention that the instruction deprived plaintiff of the benefit of the fact that he was first in the intersection and that he had the right to assume the defendant would approach at a lawful speed and exercise the highest degree of care until he had notice to the contrary, the instruction was a proper statement of the law based upon defendant’s evidence. Had the plaintiff wished the jury to be instructed further in regard to the matters suggested, he should have offered an instruction to this effect. Gladden v. Missouri Public Service Co., Mo.Sup., 277 S.W.2d 510, 520 (14-19).

Finding no error in the matters complained of, the judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM: The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.