author: CULVER, Justice.

text:
    GREAT NATIONAL LIFE INSURANCE CO., Petitioner, v. Jesus G. CHAPA, Respondent.
    No. A-9953.
    Supreme Court of Texas.
    April 1, 1964.
    Rehearing Denied April 29, 1964.

      Jones, Boyd, Westbrook & Lovelace, Waco, for petitioner.
    Richey, Sheehy, Teeling & Cureton, Sam Lanham, with above firm, Waco, Utter & Chase, Corpus Christi, for respondent.
   CULVER, Justice.

The trial court overruled the plea of privilege of Great National Life Insurance Company to be sued in Dallas County. The Court of Civil Appeals affirmed by a divided court, Tex.Civ.App., 373 S.W.2d 280, on the ground, as stated by that court, that the venue in a civil suit for conspiracy may be laid in any county in which an act in pursuance of the common design was performed by any one of the conspirators. We hold that the plea of privilege should be sustained.

The cause of action arose out of a collision with an automobile driven and owned by one of the defendants, Castillo, in which the plaintiff, Chapa, received injuries to his person. The suit was brought in McLennan County where the accident occurred, against Castillo and Great National Life Insurance Company. Castillo was acting as an agent of the Insurance Company and at the time of the collision was en route to an appointment with a prospect in an effort to sell a policy of insurance.

It is conceded that the Insurance Company would not he liable in this case for the negligence of Castillo if he had, at the time of the accident, been issued a license as an insurance agent by the Insurance Commissioner. But the plaintiff’s suit is predicated on the claim that Castillo and the Company had entered into an unlawful agreement and conspiracy to accomplish a lawful purpose, namely, that of selling- insurance by unlawful means and that at the time of the accident Castillo was “acting in pursuance of a common design in furtherance of the conspiracy.” The claimed “unlawful means” consisted in the fact that Castillo was engaged in selling insurance without a license in violation of law.

On March 23, 1961, Castillo and the Company entered into a contract whereby Castillo was employed to solicit and sell insurance for the Company as its agent. There was nothing unlawful in this contract. ■ On March 31st the Company mailed to the Insurance Commissioner an application for a license on behalf of Castillo. Article 21.-07-1, § 3 of the Insurance Code, V.A.T.S. provides that no person shall' act as a life insurance agent within this state until he shall have procured a license as required by law. Section 10 of that article provides that the Commissioner may issue a temporary license effective for 90 days and if the temporary license has not been received from the Commissioner within seven days from the date the application was forwarded it may be assumed that the temporary license will be issued and the applicant may proceed to act as agent. Accordingly Castillo would not have qualified until one week after the accident.

The only case relied upon either by the plaintiff-respondent or the Court of Civil Appeals is that of Berry v. Golden Light Coffee Co., 160 Tex. 128, 327 S.W.2d 436. In that case the contract entered into between the parties was for the deliberate purpose of circumventing the statute by making it appear that vehicles, actually owned by another and operated by him, were the property of Golden Light and driven by its employees in the transportation on state highways of commodities belonging to Golden Light, thus falsely representing that they were exempt from the provisions of Art. 911b, §§ 13 and 13a, Vernon’s Ann.Civ.St. Under this plan of operation one of the trucks so used was in a collision which resulted in the death of the driver of the other vehicle. The essence of the holding in that case is stated as follows :

“ * * * It visits no injustice upon a party seeking to circumvent the Act, to hold him to the responsibility attendant upon his assumed or purported legal position. For the purpose of securing the transportation of its coffee from Houston to Amarillo, Golden Light in effect represented that it was transporting its own goods, wares and merchandise. After a collision.and injury has resulted because of such transportation activities, no reason is apparent fo.r not taking the company at its word and settling upon it the liabilities of its assumed position.”

That case does not support the plaintiff’s position. Of course Golden Light would have been liable for the negligence of its driver while acting in the scope of his employment and it could not escape that liability when it fraudulently represents that its goods are being transported in its own truck and operated by its own employee in order to circumvent the law and to reduce its operating expense. The purpose of the conspiracy was to operate vehicles upon the highway under false colors.

The legislative intent in the adoption of the Texas Motor Carrier Act was in large part to minimize the dangers and hazards on public highways, the congestion of traffic and for the protection of the general public in the use of those highways. The intent of the Legislature in providing that insurance agents must be licensed was obviously for the protection of the public in respect to the purchase and sale of insurance policies. Nothing in the agency contract or in the license limited the agent in his choice of transportation facilities.

It would accomplish a rather queer result to say that the Insurance Company would not be liable if Castillo was its duly authorized representative but if he were not in fact authorized the company would be liable for his negligent acts.

An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. But an act done or a declaration made by one conspirator not in. pursuance of the common object is not evidence against his co-conspirators. Blum v. Jones, 86 Tex. 492, 25 S.W. 694-696.

' The common object of the agreement here between the parties was solely the sale of insurance. The distinction is exemplified in Arroyo-Colorado Navigation Dist. of Cameron and Willacy Counties v. State National Bank, 90 S.W.2d 881, Tex.Civ. App., 1936. In that case four banks including the Merchants National Bank of Brownsville were alleged to have conspired to bid collusively on the daily balances of the navigation district if selected as depository. The bid of Merchants National Bank, being the highest, was accepted. Later when that bank became insolvent the district sued the other banks alleging the conspiracy. Recovery was not allowed since there was no connection between the wrongful conspiracy and the insolvency of the bank.

A civil action for conspiracy will lie if the acts of the conspirators are not only malicious but without legal justification or excuse and are performed with the intent of injuring another or if the natural and necessary consequence of the acts is the oppression of an individual. Griffin v. Palatine Insurance Co., 235. S.W. 202, Comm. App., and Texas Public Utilities Corporation v. Edwards, 99 S.W.2d 420, Tex.Civ.App., dismissed.

Assuming, but not deciding, that the parties here were engaged in a conspiracy to operate by unlawful means, the purpose was to sell insurance and to hold out to prospective clients that Castillo was a regularly licensed representative of the Company and as such authorized to sell insurance and collect premiums. Naturally the Company would have been bound by Castillo’s acts in the furtherance of sale of insurance not necessarily by way of any conspiracy, but because the Company had authorized him.to act as its agent. But the conspiracy, if any, was in no manner directed at the plaintiff. There was no intent to injure him nor was his injury a natural or necessary consequence. The collision was entirely collateral and incidental to the agreement entered into by these parties. It was not the result of an act in pursuit of a common design.

We therefore reverse the judgments of the lower courts and remand the cause to the 74th District Court of McLennan County with instructions to sustain petitioner’s plea of privilege and transfer the cause to the District Court of Dallas County.

      . American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.23 370, 107 A.L.R.. 409; Kennedy v. American Nat. Ins. Co., 130 Tex. 155, 107 S.W.2J 364, 111 A.L.R. 916; Sartain v. Southern Nat. Life Ins. Co., CCA(N.R.E.), 364 S.W.2d 245.

      . Art. 911b, § 22b, Yernon’s Ann.Civ.Stat.

      . See State of Texas v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937); American Rio Grande Land & Irrigation Co. v. Barker, 268 S.W. 506 (Tex.Civ.App.1925); State v. Racine Sattley Co., 63 Tex.Civ.App. 663, 134 S.W. 400; Griffin v. Palatine Ins. Co., 238 S.W. 637 ( Comm.App.) ; Texas Public Utilities. Corp. v. Edwards, 99 S.W.2d 420 (Tex.Civ.App., 1936, error dism’d); Oliver v. Huckins, 244 S.W. 625 (Tex.Civ.App., 1922, error dism’d.)

      . Set aside on other grounds, 238 S.W. 637, Comm.App.


source: Caselaw Access Project

author: CULVER, Justice. GREENHILL

license: Public Domain

text:
    J. Alton MILLS, Petitioner, v. Robert Franklin BARTLETT et al., Respondents.
    No. A-10044.
    Supreme Court of Texas.
    April 8, 1964.
    W. Ernest West, Canton, for petitioner.
    Wynne & Wynne, Wills Point, Clyde Elliott, Jr., Canton, Enoch Fletcher, Grand Saline, for respondents.
   CULVER, Justice.

This suit is brought by petitioner, J. Alton Mills, himself a candidate for the office of County and Criminal District Attorney of Van Zandt County, praying for an injunction to restrain the Democratic Executive Committee of that county from placing the name of the respondent, Robert Franklin Bartlett, on the Democratic ballot as a candidate for County Attorney and Criminal District Attorney for Van Zandt County. He alleged that Bartlett does not meet the residential requirements of Art. 1.05 of the Election Code, as amended by the 58th Legislature, V.A.T.S., for a candidate for this office at the Democratic Primary May 2, 1964, namely, that to be eligible the candidate shall have resided in the county for six months next preceding the date of the Primary. The district court denied the injunction, impliedly holding that Bartlett did fulfill the statutory requirement. The Court of Civil Appeals affirmed by a divided court. 375 S.W.2d 940. We hold that there is probative evidence to sustain the implied finding of the trial court.

Bartlett is a single man 27 years of age and for the last few years has been a student in Baylor University at Waco. Prior thereto he resided with his parents in Marshall, Texas. He took the examination for admission to practice law early in October of 1963. About the 15th of that month he went to Canton in Van Zandt County and entered into an agreement with Mr. Grisham, the County Attorney, that they would form a partnership for the practice of civil law in Van Zandt County; that he would return to Canton as soon as he had gotten his law degree from Baylor University and at that time would also be appointed Assistant County Attorney. Bartlett declared then and there that it was his intention to become a resident of Van Zandt County. He spent the night in a nearby town outside of that county but the next day returned and again discussed these matters with Mr. Grisham. Back at Waco he told his roommates that he had chosen Van Zandt County as his place of residence. He then informed an attorney in Marshall, with whom he had contemplated associating himself in the practice, of his plans and that' Van Zandt County was now his place of residence. He received his degree from the law school in November and was sworn in as an attorney shortly thereafter. He then returned to Van Zandt County on December 16, 1963, was appointed Assistant County Attorney for Van Zandt County and entered into the practice.

Article 5.08 of the Election Code provides that the residence of a single man is where he usually sleeps at night but if he is a student at a college or university then, unless he has become a bona fide resident of the county in which he is a student, his residence shall be construed to be where his home was before he became a student.

It is not contended that Bartlett ever became a resident of Waco where he attended college. His residence, therefore, is either in Marshall, Harrison County, or Van Zandt County.

The term “residence” is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile. Owens v. Stovall, Tex.Civ.App., 64 S.W.2d 360, writ refused; Prince v. Inman, Tex.Civ.App., 280 S.W.2d 779, no writ history; In re Garneau, 7 Cir., 127 F. 677, 679.

Petitioner contends that one’s residence cannot be determined by intention alone. With this we agree, but Bartlett’s residence is not being determined solely by his intentions. He not only went to Van Zandt County but while there entered into a binding contract of law partnership as well as of employment with Mr. Grisham as Assistant County Attorney and to all intentions and purposes decided and declared that Van Zandt County would be the county of his residence from that time forward. Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined. There is no specific length of time for the bodily presence to continue. Here there was combined volition, intention and action. When Bartlett left Canton it was for a temporary absence with a fixed intention to return.

In Linger v. Balfour, Tex.Civ.App., 149 S.W. 795, no writ history, the question was raised as to whether Atkinson, a single man, had resided in Oldham County for the last preceding six months preceding the election so as to qualify him as a voter. He was a native of Milam County and a student. During vacation time he came to Vega and declared his intention of becoming a resident of that community. After a short stay he went to the University at Austin and was enrolled in the law department. At the time of the general election he returned to Vega for the purpose of voting. The Court of Civil Appeals went so far as to hold that even under those circumstances he was a resident of Oldham County and qualified to vote.

.On May 2nd next Bartlett will have been actually present and living- in Van Zandt County continuously for more than four and one-half months. Once the residence is established in Van Zandt County Bartlett’s temporary absence of a few weeks for the purpose of finishing his law course and obtaining his degree at Baylor would be immaterial.

The statutes make a similar requirement for the maintenance of a divorce action in that a petitioner shall have resided in the county for six months next preceding the filing of a suit. Art. 4631. But temporary absence from that county during the six months preceding will not affect the right to maintain the suit. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90. The Courts of Civil Appeals have almost unanimously so held. Gallagher v. Die, Tex.Civ.App., 260 S.W.2d 128; Black v. Black, Tex.Civ.App., 185 S.W.2d 476; Fox v. Fox, Tex.Civ.App., 179 S.W. 883; Snyder v. Snyder, Tex.Civ.App., 279 S.W. 897; Therwhanger v. Therwhanger, Tex.Civ.App., 175 S.W.2d 704; Meyer v. Meyer, Tex.Civ.App., 361 S.W.2d 935.

The facts are undisputed. Bartlett himself was the only witness. The trial court had the right to draw inferences from the undisputed facts. Commercial Standard Insurance Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1. We are unable to say as a matter of law that Bartlett did not become a resident in contemplation of the statute in Van Zandt County in October of 1963.

The judgment of the trial court and that of the Court of Civil Appeals are therefore affirmed.

CALVERT, C. J., and WALKER, NOR-VELL and GREENHILL, JJ., dissenting.

GREENHILL

(dissenting).

Whatever the word “resident” may mean under other circumstances, the litigants here do not question the power of the Legislature to define “resident” as it applies as a qualification for the office of county attorney. It has said in Article 332 that, as a qualification, the county attorney “shall reside” in the county. It has also prescribed in Article 1.05 of the Election Code that no person shall be eligible to be a candidate for, or elected to, the office of county attorney unless he “shall have resided” in the county for a period of six months next preceding the date of any primary or election.

In defining “residence” in Article 5.08 of the Election Code, the Legislature has stated that “The ‘residence’ of a single man is where he usually sleeps at night.” Robert Bartlett, the respondent, was an adult single man. He concedes that he never spent the night in Van Zandt County until some 41/2 months prior to the date of the primary.

Bartlett was also a student. Article 5.08 also establishes, in law, the residence of a student. It says that the residence of a student “shall be construed to be where his home was before he became” a student, “unless he has become a bona fide resident in the place where he * * * is such student >¡< * * a

Bartlett’s home before he became a student at Baylor was in Marshall, Texas. He says he did not become a bona fide resident of Waco, McLennan County, and that point is not questioned.

So under the plain provisions of the Election Code, Bartlett was not, while he was a student, a resident of Van Zandt County.

Notwithstanding the statute’s plain provision that a student’s residence “shall be construed to be” at one place, the majority of the Court has construed that it should be elsewhere.

The Legislature has allowed one exception: the statute has said a student’s residence may be at the place where the school or college is “if he has become a bona fide resident in [such] place.” If a bona fide residence is required at the location of the school or college, it would be consistent with legislative intent (assuming the Court can find residence for purposes of election at places other than prescribed by the statute) to hold that the student must have become a bona fide resident of some other community.

If we go outside the statute, certainly it was the intent of the Legislature that candidates for public office be members of the community in which they will hold office. If the residence requirement has any real meaning, it must be that the candidate shall have lived among the people and in the community and have become acquainted with their problems and their needs. And the Legislature has said that the candidate must have resided in the community for [at least] six months prior to the election.

So it is my view that to be eligible for the office, the candidate must have become a member of the community and remained so for six months. It is understandable that reasonable minds can and often will differ as to the minimum acts and conduct necessary to meet the legal requirements of becoming a resident or becoming a member of the community; and in many situations, this will be an issue of fact. But just going to a community for a few hours on two days and entering into what I regard as a tentative contract of employment is not as a matter of law enough.

The majority bolsters its opinion by pointing out that Bartlett actually lived in Van Zandt County [became a member of the community] for 4[4 months. The trouble is that the statute requires residence for six months. The question here is, when did he begin to reside in Van Zandt County? I would say when he moved to Van Zandt County, rented a room, and began the practice of law. He then became a member of the community he wished to serve. The majority says he began to live in Van Zandt County [became a resident] when he visited the city and made his tentative agreement of employment. If this is so, his residence for purposes of elections became fixed at that time; and under the logic of their view, he was eligible to go on the ticket at the election if he had never returned to Van Zandt, assuming he had not visited some other place during some other day and established his residence elsewhere. This, it is submitted, is not the legislative intent.

Again, the majority opinion says that Bartlett became a “resident” of Van Zandt when he visited there and entered into his tentative contract of employment. This became his permanent residence. That being so, he would continue to “reside” there until he legally changed his residence to some other place. Therefore, in addition to being able to go on the ticket without ever returning there, he could (under the opinion of the majority) serve as county attorney while actually living [but not residing] in El Paso or Brownsville. This interpretation of the words “reside” and “residence” absolutely thwarts the legislative purpose of Article 332 which says that the county attorney “shall reside” in the county. And this illustration makes it even clearer that the legislature meant for the candidate to be or to become a member of the community before he should be eligible to the office of county attorney.

There are a number of cases supporting the legal concepts expressed in this opinion. They are set out in the able dissenting opinion of the Court of Civil Appeals, 375 S.W.2d at 940, and need not be repeated here.

This opinion is not intended to cast any reflection on Mr. Bartlett. He is probably a fine person, and assuming his election, it is hoped that he will make an able County Attorney. But, in my opinion, he simply cannot have resided in Van Zandt County for six months next preceding the primary election on May 2nd, and hence he is not eligible to have his name placed on the ballot.

CALVERT, C. J., and WALKER and NORVELL, JJ., join in this dissent.

      . All references to statutes herein are to Vernon’s Annotated Civil Statutes.

      . The Statement of Facts does not disclose Row many hours Bartlett spent in Canton, Yan Zandt Comity. It would seem to be fair to say that he was there a few hours one evening and a few hours the following morning. In between time, he drove to Tyler, Smith County, some 37 miles distant [referred to as “a nearby town” in the majority opinion] to spend the night.


author: WOODLEY, Presiding Judge.

text:
    William Eugene BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 36636.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    Rehearing Denied April 29, 1964.
    John W. O’Dowd, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for felonies less than capital, life.

Reversal is sought upon this contention: “The trial court reversibly erred by permitting the prosecution to introduce into evidence a certain alleged judgment and sentence of an alleged prior conviction of this appellant in that such sentence is incomplete and therefore void for the purpose of enhancement of punishment.”

Such being the sole ground relied upon for reversal, a short summary of the evidence will suffice.

The state’s evidence shows that on the early morning of January 17, 1962, the appellant carried an RCA Victor Television set belonging to the Las Vegas Motor Hotel, in Houston, out of Room 606 of said hotel. The appellant put the television set in the trunk of an automobile and got in the back seat, and the car was driven away.

The television set was recovered by the police and returned to C. E. Howard, Jr., Manager of the hotel, who identified it as belonging to the hotel. He testified that it was of the value of more than $50 and had been taken without his permission.

The defense offered a witness whose testimony was to the effect that the value of a television set such as that taken from the hotel was under $50.

The issue was submitted to the jury and resolved against the appellant.

Records of the Texas Department of Corrections, including the judgments and sentences, properly certified, were introduced and the appellant was identified by fingerprint comparison as the defendant previously convicted as alleged in the indictment.

The sentence which is attacked as incomplete and therefore void was in Cause No. 4574—IH in Criminal District Court in Dallas County.

The judgment in said cause, on a plea of guilty, adjudged William Eugene Brooks guilty of the offense of “Theft of Corporeal Personal Property of the value of $50 or over” and fixed his punishment at 3 years. The quoted words were apparently inserted by the use of a rubber stamp.

The sentence reads, in part: “It is the order of the court, That the said Defendant, who has been adjudged to be guilty of - and whose punishment has been assessed by the Court at confinement in the penitentiary for 3 years, be delivered * *

While the space in which the offense is ordinarily stated is blank, the words above quoted from the judgment were stamped in the sentence but not at the proper place.

We overrule the contention that the sentence, otherwise regular in form, is void.

Art. 767 Vernon’s Ann.C.C.P. provides: “A ‘sentence’ is the order of the court, made in the presence of the defendant, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”

There is no fixed or inflexible form to be used for the sentence. The one mandatory provision is that which is found in Art. 767 Vernon’s Ann.C.C.P. Garbs v. State, 155 Tex.Cr.R. 290, 234 S.W.2d 869. Hill v. State, 149 Tex.Cr.App. 324, 194 S.W.2d 266, would appear to be in point here. In that case the sentence in a prior conviction stated the year as “19435.” We said that from the record it was apparent that the date was a typographical error, furthermore the question was one which could not be considered.

The evidence is sufficient to sustain the conviction and we find no error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ervin REED, Appellant, v. The STATE of Texas, Appellee.
    No. 36703.
    Court of Criminal Appeals of Texas.
    March 18, 1964.
    Rehearing Denied April 29, 1964.

      C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the. State.'
   DICE, Commissioner.

The conviction is for the subsequent offense of drunken driving, a felony; the punishment, one year in the penitentiary.

State high-way patrolman Kenneth Du-derstadt testified that on the day in question while on routine patrol and traveling south on U. S. Highway 281 in the vicinity of Hico in Hamilton County he was stopped by three occupants — a man and two wom-eh — of an oncoming automobile. While he wás talking to them appellant approached, driving a Chevrolet automobile on the wrong side of the highway. Afer being signalled by the patrolman, appellant drove onto the shoulder of the highway and stopped. Upon request to see his driver’s license, appellant produced an operator’s license issued to Ervin Webster Reed and being numbered 2293564. The license gave the height and weight of the licensee and listed his address as 690 North Belknap in Stephenville. Appellant informed the patrolman that he had moved from that address to his present address of 521 North Columbia. In a search of appellant’s automobile at the scene, the patrolman found two six packs of Falstaff 12-oz. “glass cans” of beer and-a four-fifths quart bottle of whisky one-fourth full. Officer Duder-stadt testified that at such time appellant had the smell of alcohol on his breath, that he talked with a thick, tongue, he was unsteady on his feet, and expressed his opinion that appellant was drunk.

The witness Errol Coker, who was ridjng with the highway patrolman on the occasion, gave' a similar description of appellant’s actions and appearance and expressed his opinion that he was intoxicated.

Sheriff Woody Young testified that he observed appellant when he was brought to the jail and, after describing appellant’s appearance, testified that in his opinion appellant was at such time intoxicated.

The witnesses Mary Hukel and Mary Nell Montgomery testified that they were the women riding in the automobile which stopped the patrolman and both described the manner of appellant’s driving from one side of the road to the other, prior to his apprehension by the patrolman.

A blood specimen taken from appellant with his consent, upon being analyzed at the state laboratory of the Department of Public Safety, was shown to contain .22% alcohol. Chemist Beardsley testified that in his opinion the individual from whom the blood was taken was intoxicated.

In proof of the prior alleged misdemean- or conviction for driving while intoxicated, the state offered in evidence as Exhibit No. 8 a judgment dated September 19, 1959, entered in Cause No. 10425, styled The State of Texas v. Erwin R. Reed, on the docket of the County Court of Erath County, wherein the defendant was convicted of driving while drunk and assessed punishment at three days in jail and a fine of $75.

Also introduced as State’s Exhibit No. 4 were certain drivers’ license records of the Department of Public Safety showing the issuance of Texas Operator’s License No. 2293564 to Ervin Webster Reed, with address listed 690 North Belknap, Stephen-ville, Texas, and his conviction on September 19, 1959, in Cause No. 10425, in the County Court of Erath County, of the offense of driving while intoxicated.

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

Appellant predicates his appeal upon two contentions.

He first contends that the court committed reversible error in refusing to declare a mistrial after highway patrolman Duderstadt testified on his direct examination in the presence of the jury that the man in the car which stopped him said: “This first car here is drunk.” Upon objection by appellant the court gave the following instruction:

“The objection will be sustained and the jurors will be instructed not to consider for any purpose what the driver of the vehicle told Mr. Duderstadt.”

On further examination of the witness the court again instructed the jury “not to consider for any purpose the testimony given by the witness as to what someone told him,” and only permitted the witness to state that he had received certain information which he acted on.

We cannot say that the complained-of remark was so prejudicial that the error, if any, could not be cured by the court’s instruction to disregard.

Appellant’s other contention is that the evidence is insufficient to sustain the conviction because the state did not prove the prior misdemeanor conviction for driving while intoxicated, as alleged in the indict-' ment.

In charging the prior conviction, the indictment alleged in part, as follows:

“ * * * he the said Ervin Reed under the name Erwin Reed was duly and legally tried on, to-wit, the 19th day of September, 1959, upon an information charging an offense of like character then and there legally pending against him in the County Court of Erath County, Texas * *

Appellant insists that since the state did not introduce the information in the prior case in evidence and the judgment introduced showed the conviction of “Erwin R. Reed,” the evidence failed to show that he was tried and convicted, upon an information, under the name of Erwin Reed, which was a descriptive averment in the indictment.

We do not agree with such contention, as the middle initial “R” used in alleging appellant’s name may be disregarded and treated as immaterial. See: 40 Tex. Jur.2d, Sec. 7, page 377. Nor do we agree that the allegation in the indictment that appellant was tried “upon an information” was a descriptive averment of the offense.

Appellant further contends that the evidence fails to support the allegation in the indictment that he had been previously convicted “of the offense of .driving a motor vehicle, upon a public highway within Erath County, Texas,” because the judgment introduced in evidence did not identify the offense.

Appellant concedes that the judgment introduced in evidence contained, after the style, number, and date, the recitation: “Charge — Driving While Drunk,” but insists that such does not show that the conviction was for driving while intoxicated upon a public highway in Erath County, as alleged.

It is argued by appellant that the recitation in the judgment could imply that the conviction was for the offense of driving a motor boat while intoxicated, as denounced by Art. 1333A, Vernon’s Ann.P.C. With reference to this argument it is observed that the fine of $75 and three days in jail assessed as punishment in the judgment was not a penalty which could be assessed under Art. 1333A, supra, for operating a motor boat while intoxicated.

The recitation in the judgment, together with the other evidence adduced by the state, was sufficient to show the prior conviction of appellant for driving while intoxicated upon a public highway, as alleged. See: Rice v. State, Tex.Cr.App., 292 S.W.2d 114; Richardson v. State, 171 Tex.Cr.R. 163, 346 S.W.2d 119.

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

Opinion approved by the Court


text:
    Andrew J. MAGHE, Appellant, v. The STATE of Texas, Appellee.
    No. 36765.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    H. B. Porter, Dumas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802b, Vernon’s Ann.P.C., for the felony offense of driving while intoxicated; the punishment, three years in the penitentiary.

The state’s evidence shows that on the night in question, a large trailer truck, operated by the state’s witness Clifford Knisley, became stalled on U. S. 87 near the town of Hartley in Hartley County. The driver immediately set out flares to the front and side of the truck and had the blinker lights on the vehicle operating. Around 12:15 a. m., while he was waiting for a tow truck and directing traffic with a flashlight, an automobile being driven by appellant at a high rate of speed approached on the highway and ran into the truck. Immediately after the collision, appellant was seated under the steering wheel, his wife was in the front seat on the passenger side, and his young child, who was killed in the accident, was on the back seat. Appellant had a strong odor of alcohol on his breath. Appellant and his wife and child were taken from the scene to a hospital in Dalhart. While in the hospital, appellant was very belligerent and constantly used profane language.

Highway patrolman Martin Exum testified that after going to the scene of the wreck he and his partner, patrolman Pat Rundel, went to the hospital, around 2:30 a. m., and, in talking to appellant, he asked him if he wanted a blood test. Appellant stated that he did, saying “ ‘Take all the blank blank stuff that you want.’ ” A specimen of blood was then taken from him by a nurse, placed in a vial, and, after being properly sealed and labeled, was mailed to the Department of Public Safety at Lubbock. Patrolman Exum expressed the opinion that appellant was at such time intoxicated.

Patrolmen Randel testified that he was present when Patrolman Exum asked appellant if he would submit to a blood test and that appellant’s response to the question was “ ‘Yes, you can take all the * * blood you want.’ ” He also expressed the opinion that appellant was under the influence of alcohol.

The witness E. B. Wadkins, the ambulance driver who took appellant from the scene of the wreck to the hospital, expressed his opinion that appellant was intoxicated.

The witness Jerry West, who assisted in carrying the injured parties to the hospital, also expressed his opinion that appellant was intoxicated.

Judy Brownson, the nurse who took the blood specimen from appellant in the hospital, testified that at such time appellant had the smell of alcohol on his breath, he was “cursing and thrashing about in the bed,” and she expressed her opinion that on such occasion he was intoxicated.

Another nurse, Sara Welling, expressed her opinion that appellant was intoxicated.

It was shown that the blood specimen taken from appellant upon being examined by chemist and toxicologist Eldon Straughn, of the Texas Department of Public Safety, was found to contain .21% alcohol. The chemist testified that in his opinion the person from whom the blood specimen was taken was intoxicated.

It was further shown that on the night in question, prior to the accident, appellant was in the Mint Bar in Dalhart, drinking beer and around ll.:30 p. m., the bartender “cut him off” because he had had enough to drink.

The witness Dick Mahoney testified that in his opinion appellant was intoxicated when he left the place shortly after midnight.

Proof was made by the state that on September 19, 1949, appellant had been finally convicted in the county court of Moore County of the misdemeanor offense of driving while intoxicated.

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

Appellant insists that the court erred in admitting the evidence showing the results of the blood test because the state did not prove that he consented to the test.

We find no merit in this contention, as the testimony of the two highway patrolmen shows that appellant orally consented to give the blood specimen. Their testimony was not controverted.. The consent of an accused to the taking of a blood test is not required to be in writing. Mora v. State, 159 Tex.Cr.R. 321, 263 S.W.2d 787. It is held that the confession statute, Art. 727a, Vernon’s Ann.C.C.P., has no application to obtaining consent to take a blood specimen for analysis. Heath v. State, 156 Tex.Cr.R. 563, 244 S.W.2d 815; Monett v. State, 168 Tex.Cr.R. 124, 323 S.W.2d 456.

Appellant further complains that the court erred in failing to submit to the jury an issue as to whether the blood sample was taken with his consent.

The testimony of the two highway patrolmen that appellant did consent to take the blood test was not disputed. The court did not err in refusing to submit such issue to the jury.

Nor did the court err, as contended by appellant, in refusing to charge the jury upon the law of circumstantial evidence because there was no direct evidence that he was the driver of the automobile. The truck driver, Knisley, gave direct testimony that appellant was the person driving the automobile. Further, appellant’s identity by the truck driver as the man who was seated under the steering wheel of the automobile immediately after the collision was sufficient to take the case out of the rule of circumstantial evidence. Pope v. State, 156 Tex.Cr.R. 597, 245 S.W.2d 245.

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

Opinion approved by the Court.


author: McDonald, judge.

text:
    Edgar Eugene HUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 36292.
    Court of Criminal Appeals of Texas.
    April 15, 1964.

      J. Q. Warnick, Jr., Lubbock (on appeal only), William J. Gillespie, Lubbock (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is engaging as a dealer in securities without being registered as a dealer; the punishment, two years in the state penitentiary and a $1,000.00 fine.

It appears from the transcript originally filed in this Court that the verdict and the charge of the court were filed March IS, 1962 and the judgment was filed “(issued)” May 6, 1963 but dated February IS, 1963; that the sentence was filed May 5, 1963, one day prior to the filing of the judgment, but dated February 15, 1963. Notice of appeal and recognizance are dated March 23, 1963. From the statement of facts it is observed that the trial was had on March IS, 1963.

To follow the filed dates on the judgment and sentence will require a dismissal of this cause as it is reflected that the sentence is not based on a valid judgment. If we follow the dates of February IS, 1963, on the judgment and sentence, a dismissal will again be necessary as the judgment and sentence would have been entered a month prior to the actual trial of this cause.

An attempt to correct said transcript originally filed, through an order nunc pro tunc, was ineffective. Until the appeal has become final, the trial court is without authority to correct the judgment and minutes of the court which form a part of the record on appeal. Parker v. State, Tex.Cr.App., 336 S.W.2d 431 and cases cited therein; 5 Tex.Jur.2d, p. 157 Sec. 96.

Thus the supplemental transcript will not be considered, and due to the discrepancies in the record this appeal is dismissed.


text:
    Lloyd HATFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 36864.
    Court of Criminal Appeals of Texas.
    April 15, 1964.

      Joseph A. Williams, Haskell, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of aggravated assault and his punishment assessed at a fine of $200.

The information charged commission of the offense by the infliction of serious bodily injury upon the injured party.

The evidence was undisputed that on June 26, 1963, the date alleged, appellant and the injured party were together drinking beer and on such occasion appellant committed an assault upon the injured party by striking him with his fists.

Among the contentions urged by appellant is that the evidence is insufficient to support the conviction because there is no proof of the infliction of serious bodily injury upon the injured party.

With reference to the assault and injuries inflicted, the injured party testified:

“ * * * Lloyd Hatfield stopped the .car and invited me out and started hitting me. He kept hitting me and wouldn’t quit when I asked him to. I had three teeth knocked out, my lip was cut, and I was bruised and scratched. Lloyd carried me to the Haskell County Hospital where I stayed about a week. My neck is still stiff and my back is still hurt and I have not been able to work. * * * Yes, I was able to leave the hospital under my own power about four or five days after the fight. And on the 4th day of July I got in touch with my brother E. L. Hatfield, and made a trip to Savannah, Georgia, and back. This trip took about seven days. I was able to make the trip and did not mention the fight to my brother * *

Dr. J. F. Cadenhead testified that he attended the injured party at the Haskell Clinic and, in describing his injuries, testified :

«* * * ]yjn Hatfield [the injured party] had had his lip cut and two teeth knocked out. He had bruises on his face and upper body and neck. As to whether he received serious bodily injuries, that depends on what you consider serious. If it had been me instead of him, I would have considered them serious bodily injuries. His neck seems to be stiff. He was pretty well beaten up. * * * ”

In his charge the court instructed the jury upon the law of self-defense and the right of appellant to defend himself against an unlawful attack.

The court further charged the jury that to constitute ‘serious bodily injury’ the injury must be grave, not trivial — such an injury as gives rise to apprehension of danger to life, health or limb.”

The court’s instruction was a proper and correct definition of the term “serious bodily injury.” See: 4 Branch’s Ann.P.C. 2d Ed., Sec. 1749, page 127. Jackson v. State, 168 Tex.Cr.R. 51, 323 S.W.2d 442.

The evidence, showing that in the assault the injured party received a cut lip and lost some teeth, that he was hospitalized for about a week and had a stiff neck and was unable to work, is sufficient to sustain the jury’s finding that serious bodily injury was inflicted upon him.

The contention is also made that the evidence is insufficient to sustain the verdict of the jury because the state did not prove beyond a reasonable doubt that the offense was committed in Haskell County, Texas, as alleged in the information. No issue as to venue was made at the trial. The contention that venue was not proved was raised by appellant for the first time, after verdict, in his motion for new trial. Under the provisions of Art. 847, Vernon’s Ann. C.C.P., this court will presume, in the absence of a bill of exception showing to the contrary, that venue was proved. Masters v. State, 165 Tex.Cr.R. 303, 306 S.W.2d 355; Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606; Doyle v. State, 329 S.W.2d 286; Carpenter v. State, Tex.Cr.App., 333 S.W.2d 391. It should be observed that venue need not be proved beyond a reasonable doubt but may be proved by circumstantial as well as direct evidence. King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501. It is also observed that the state’s proof was sufficient to sustain a finding by the jury that the offense was committed in Haskell County.

Appellant’s remaining contention of error relates to a certain question propounded to him on cross-examination. Such complaint is presented by a purported informal bill of exception in the statement of facts, which is in narrative form. An informal bill in narrative form is not authorized under the provisions of Art. 759a, V.A.C.C.P., and cannot be considered. Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946; Owen v. State, Tex.Cr.App., 350 S.W.2d 542.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Larry Orlan STROM, Appellant, v. The STATE of Texas, Appellee.
    No. 36550.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Rehearing Denied April 29, 1964.
    Bill W. Bailey, Dallas, Phil Burleson, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of marihuana; the punishment, 30 years.

Officer Carroll of the Special Services Bureau of the Dallas Police testified that an automobile which was proceeding ahead of his police car made a sudden stop and sharp left turn in the middle of the block without .-giving any signal of intention to turn as required by the City Ordinances introduced In evidence and by the State Statute, that 'he gave pursuit and followed the automobile around the back of an apartment house 'and thence into the street again where he signalled for it to halt. He stated that as he approached the automobile, appellant, who was the passenger, was chewing and attempting to swallow, and that he observed green particles on his lips, which his four and a half years experience with the Narcotic Bureau lead him to believe were marihuana. He testified that he secured from appellant’s mouth a plant substance which appeared to be marihuana, placed it in a cellophane bag, and placed appellant and his companion under arrest.

The chain of custody was shown, and Dr. Mason, a chemist and biochemist, testified that the cellophane bag contained marihuana. Lt. Alexander testified that he weighed the marihuana and that it weighed 2,289 grams or 30 grains. Officer Carroll testified that a normal marihuana cigarette contained two or three grains.

Appellant did not testify, but called his companion Darrell Williams, who stated that he had given a hand signal before turning. On cross examination he stated that while he did not see appellant put the marihuana in his mouth, he did see Officer Carroll get it out.

The sole question presented is the existence of probable cause for the arrest. Under the holdings of this Court in Watson v. State, 172 Tex.Cr.R. 274, 355 S.W.2d 333; Flores v. State, 167 Tex.Cr.R. 91, 318 S.W.2d 663; and Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715, the question is not before us for consideration because when the marihuana was offered in evidence through the witness Dr. Mason, appellant’s counsel stated, “No objection”. We decline appellant’s suggestion that we overrule such recent opinions. Further, appellant’s own witness Williams stated that he saw the officer get it from appellant’s mouth. 5 Tex.Jur.2nd 444-447, p. 697 et seq., and authorities there cited.

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


text:
    Ex parte Jimmy C. STANLEY.
    No. 36727.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied April 29, 1964.

      Plarkness & Friedman, by Harry Friedman, Texarkana, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the petitioner to custody to be extradited to the State of Louisiana.

At the hearing warrant issued by the Governor of Texas, upon the demand of the Governor of Louisiana, ordering the arrest of the petitioner and his delivery to the agent of the State of Louisiana, was introduced.

The Executive Warrant recites, and the demand and supporting documents and testimony of an Assistant District Attorney show that the petitioner stands charged by affidavit before proper authority in Louisiana with the crime of theft committed in that state.

Section 3 of Art. 1008a Vernon’s Ann. C.C.P. authorizes extradition upon the basis of a complaint and warrant issued thereon. Ex parte Fisher, 168 Tex.Cr.R. 336, 327 S.W.2d 579. It is not material that there was no evidence before the Governor that Louisiana could prosecute for a felony on an affidavit.

The affidavit of Fred Zimmerman, Jr., made April 19, 1963, avers that Jimmy C. Stanley on or about May 29, 1962, unlawfully and feloniously committed a theft of Fifty Dollars in money, the property of United Bilt Homes, Inc. Warrant of arrest was issued the same day.

The sufficiency of the affidavit is for the' Louisiana Courts.

We overrule the contention that no crime is alleged in the affidavit.

The judgment remanding the petitioner to custody for extradition to Louisiana is affirmed.


text:
    Edward BENITEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36667.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    Rehearing Denied April 29, 1964-

      Joe W. Christie of Woodard & Christie, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Mike J. Thompson and Oscar G. Galvan, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant and Alberto Escobar were jointly charged by indictment with the theft of one automobile of the alleged value of $2,300..

Upon the granting of a severance, appellant was separately tried and convicted and his punishment assessed at confinement in the penitentiary for five years.

The evidence presented by the state shows that on the night in question, around 8:S0 o’clock, city officers Bell and Chavez observed the appellant driving a new 1963 light-colored four-door Falcon automobile on Mesa Street in the city of El Paso. Riding in the automobile with appellant was his companion, Alberto Escobar. The officers, noting that appellant was exceeding the speed limit, gave pursuit in an effort to stop him. It was then observed that the automobile appellant was driving had no license plates. After appellant failed to stop and had ignored the red light and siren on the patrol car, the officers drove alongside his vehicle. At such time appellant veered the car he was driving, struck the patrol car, and turned on Interstate Highway No. 10, and proceeded to drive away. The two officers then radioed for assistance and pursued appellant into the State of New Mexico, where he was apprehended at approximately 9:45 p. m., after having collided with another automobile inside the city limits of Las Cruces. During the pursuit, appellant drove through two road blocks in New Mexico, set up by the state police, and maintained a speed of between ninety and ninety-five miles per hour most of the way.

Following his arrest, appellant was returned to El Paso, where, after being questioned by the officers, he made a written confession at 11:40 p. m., which was introduced in evidence by the state. In his confession, appellant stated that on the day in question he and his companion had been drinking and that they decided to steal a car and go to California. Appellant related that they went to the “Kemp Ford” car lot in El Paso, found a car with keys in it, and that they got in and “took off.” Appellant stated that he did the driving and that ■when the police got behind him he was scared and afraid to stop.

It was shown that the Falcon automobile which appellant was driving on the night in question had been stolen that same night from the Kemp Motor Company in El Paso and that it had a retail value in excess of $2,300.

Testifying as a witness in his own behalf, appellant stated that on the day in question he and his companion, Escobar, had been drinking and that he (appellant) was intoxicated; that they “got the idea” of borrowing a car and went to the Kemp Motor Company in El Paso and drove the car from the lot. Appellant stated that they had no intention to leave the county and were just driving around and were going to abandon the car when it ran out of gas. Appellant further testified that certain promises were made to him by the oificers prior to his signing the confession; that he was not warned by the officers; and that the reason he signed the statement was because he was tired and wanted to get some sleep.

The officer to whom the statement was •made swore that appellant was duly warned and denied any promise to or threats against him.

The court, in his charge, submitted to the jury under proper instructions the issue of whether appellant was duly warned and the voluntary nature of the confession.

Appellant predicates his appeal upon two formal bills of exception.

Bill #1 complains of the court’s action in admitting appellant’s written confession in evidence over the objection that it was obtained as the result of an illegal arrest. Appellant insists that his arrest by the Texas officers in New Mexico was unauthorized and that his confession, having been obtained in violation of law, should have been excluded under the provisions of Art. 727a, Vernon’s Ann.C.C.P.

While there is conflicting testimony 'in the record as to who arrested the appellant—whether the Texas officers or the officers in New Mexico—we need not pass upon the legality of the arrest in determining the question of the admissibility of the confession. It is the illegal detention and not an illegal arrest which, under certain circumstances, will vitiate a confession. Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419; Walker v. State, 162 Tex.Cr.R. 408, 286 S.W.2d 144; Smith v. State, Tex.Cr.App., 350 S.W.2d 344.

We are unable to say that appellant’s detention by the El Paso officers following his arrest in New Mexico, under the circumstances shown, was such as to vitiate the confession.

The disputed issues as to whether appellant was duly warned and the voluntary nature of the confession were submitted to the jury and, under the record, we would not be authorized to disturb their verdict.

Bill of exception #2 presents appellant’s objection to the court’s charge, on the ground that in defining the offense it did not instruct the jury that the taking of the property must be with the intent to permit-nently deprive the owner of the value of the same.

The court, in defining “theft” and the term “fraudulently take” in his charge, instructed the jury that the taking of the property must be with the intent to deprive the owner of the value of the same and to appropriate it to the use and benefit of the person taking. This instruction followed the provision of Art. 1410, Vernon’s Ann. P.C., defining the offense of theft, and was sufficient. Westerman v. State, 144 Tex.Cr.R. 101, 161 S.W.2d 95.

In submitting appellant’s defensive theory of a temporary taking, the court instructed the jury as follows:

“Testimony has been offered by the defendant to the effect that there was a mere temporary taking and use of the automobile in question and there was no

'intéht to deprive the owner óf the value of the sanie, and if' you so believe dr -' "have 'a reasonable doubt' thereof, you will find the defendant ‘Not Guilty.’ ”

The court’s instruction, in effect, submitted to 'the jury the question as to whether appellant intended to permanently appropriate' the automobile, and was sufficient to submit his affirmative defense' to them. Hernandez v. -State, 148 Tex.Cr.R. 566, 189 S.W.2d 876.

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

Opinion approved by the Court.


text:
    Jack REID, Appellant, v. The STATE of Texas, Appellee.
    No. 36862.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    O. H. Harris, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B.. Douglas, State’s Atty., Austin, for the: State.
   MORRISON, Judge.

The offense is driving while intoxicated;the punishment, 7 days in jail and a fine of $100.00.

Patrolman Jones of the Dallas Police testified that he was in his patrol car at approximately 7:30-p. m. on the night in question, when he observed a pickup truck ahead' of him which was weaving from one traffic-lane to another in front of other vehicles, causing them to come to a “screeching halt” in order to avoid a collision with the pickup. The officer stated that when he brought the pickup to a halt and asked the appellant, who was the driver, for his driver’s license, he “could smell a strong alcoholic beverage” about appellant’s person. Jones further testified that when appellant got out of the pickup, he fell to one knee, held on to the side of the vehicle, and staggered as he-walked to its rear. Jones also stated that-appellant had defecated and urinated in his. pants and expressed the opinion that he was. intoxicated. A search of the pickup revealed a case of beer in cans, an empty six pack case, and several cans littered on the floor. Appellant was taken to the jail where the lieutenant on duty talked to him, and appellant was charged with “Investigation of DWI”.

Appellant called his brother, Joe Reid, •who testified that he and appellant had worked together on the day in question, that no alcoholic beverages were consumed, and that when appellant left him at 6:00 p. m., appellant was sober. Billy Joe McAdams testified that he saw appellant between 6:30 and 7:00 p. m. on the night in question, and stated that appellant did not appear intoxicated to-him. Roger P. Benson testified that he saw appellant between 5 :00- and 6:00 p. m. on said date and expressed the opinion that he was sober. Appellant, testifying in his own behalf, stated that he got home from work on the day in question, and, as his wife and children were not at home, he .drove to a drive-in where he purchased a case of beer which he intended to take to a friend in an adjacent dry territory the following day, and while there consumed two cans of beer. He denied practically all of ■Officer Jones’ testimony except that he was .•arrested by him.

In rebuttal, the State called Lieutenant 'Lord, who testified that he was on duty as "the jail supervisor between 7:30 and 8:30 on -the night in question, and that his records reflected that appellant was placed in jail ■during such period of time upon a charge of “Inv. DWI”.

The facts will be more fully discussed in •connection with appellant’s contention advanced by brief and argument. He first ■contends that Officer Jones was permitted to relate certain statements, which were not in response to questions propounded to appellant by the officer, made by appellant between five and ten minutes after he had stopped the pickup, and while they were ■standing at the rear thereof. Jones testified -that appellant first claimed to have a broth•er on the police force, finally denied such .assertion, and stated that he did not consider himself too drunk to drive. It is appellant’s contention that these statements were not part of the res gestae and therefore, were not admissible.

The trial court carefully excluded all statements made by appellant which he did not deem to have been spontaneously made. We find no admission of guilt in the statements attributed to appellant, and are not inclined to agree with counsel that the variance in the statements might be construed by the jury as an indication of intoxication. In any event, the statements made by appellant were admissible as part of the res gestae under the authority of Howell v. State, 171 Tex.Cr.App. 545, 352 S.W.2d 110; Jones v. State, 170 Tex.Cr.App. 171, 339 S.W.2d 677; and Lamkin v. State, 136 Tex.Cr.R. 99, 123 S.W.2d 662.

Appellant’s next complaint is to the testimony of Lieutenant Lord and requires a more detailed discussion. The official records of the jail relating to appellant’s incarceration were introduced without objection, and bore Lieutenant Lord’s name. The following then transpired:

“Q Now, what does that indicate to you?
“A That I okayed his being placed in jail.
“MR. HARRIS : Now, Your Honor, this is what we’re objecting to. This man testified that he don’t remember Jack Reid and the mere fact that his name is on that record doesn’t indicate that he okayed it. That just means his name is on that record.
I ask that the testimony be stricken and you instruct the jury to disregard it.
“THE COURT: I’ll overrule that objection.
“MR. HARRIS: Note our exception.
“Q (By Mr. Reese) Now, what does it mean you passed on ?
“A It means that I personally interviewed the man, myself, and in my opinion he was intoxicated.”

There was no objection to the last question and answer, and we cannot bring ourselves to conclude that the first objection was sufficiently explicit to point out to the court that appellant was objecting to Lieutenant Lord’s opinion.

No reversible error appearing, the judgment is affirmed.


text:
    Frank L. ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 36702.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    Sam L. Darden, Bandera, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is sheep theft with two prior felony convictions less than capital alleged for enhancement purposes; the punishment, life imprisonment in the state penitentiary.

The State relied upon circumstantial evidence and the testimony of one Tommy M. Barnes, an accomplice witness. Appellant did not testify and urges that the evidence is not sufficient to sustain the jury’s verdict.

Bill Coffee testified that he was returning from a picnic with his family on the fourth of July when he saw a red truck in .Mr. Eddie Leibold’s pasture with a cloud of dust around it. The truck was not moving, and a bunch of goats were running from the area. The truck was a kind of delivery van with three or four lines of white lettering on it, but he (Coffee) did not know what the lettering said. Two men were visible, one in the pasture wearing Levis and the one by the truck wearing white. Coffee testified that he drove to a house and told two men that he, “had seen some men after Mr. Leibold’s goats * * The next day, the fifth of July, Coffee, in the company of Sheriff Miller and Special Ranger Jimmy DeLesderneir, went to appellant’s barbeque stand, saw appellant, and a truck which looked like the the truck Coffee had seen the previous day in Leibold’s pasture.

Tommy M. Barnes, accomplice witness, testified that he worked for appellant and was doing so the day in question. He and appellant went to put some signs up advertising the barbeque place and later appellant suggested that, “We get some sheep”. Appellant stopped the truck on the road and he (Barnes) went over the fence and chased and caught one of the sheep. The sheep was handed over the fence to appellant who asked Barnes to get some more, but Barnes was unable to do so. They later returned to appellant’s property and butchered the sheep, then put it on the pit and cooked it. Barnes further testified that he burned the hide; that the next day they were arrested and after the arrest were placed in jail. The next day Barnes was taken back to the appellant’s property and the sheep hide dug up. It was further shown that when Barnes told the Grand Jury about the theft, he did not know the sheep had been stolen from John Buchanan.

R. B. Miller, Sheriff of Bandera County, identified appellant in the courtroom and testified that he went to appellant’s barbeque place with a warrant for his arrest and arrested him. Miller told appellant that they had a warrant for his arrest and asked if they could look around, to which appellant replied, “Help yourself. You can look over the whole place if you want to”, and “I have nothing to hide”. A search of the property was made and bloody clothes and rope were found in his vehicle, appellant stating the clothes were his. The clothes were taken to Bandera and turned over to Special Ranger, DeLesderneir. On the sixth of July, he (Miller) went back to appellant’s property in the company of the Ranger and Barnes and the sheep hide was dug up. Sheriff Miller further testified that he knew the property under lease to Mr. Buchanan, known as the Thompson place, and that he had been there many times. He described the property in question and stated it was all in Bandera County; that he went to the property with the accomplice witness Barnes, Barnes stating that that was the property where he stole a sheep.

Deputy Sheriff Ed Johnson’s testimony reiterated the arrest of appellant and the search of his property. He also described Buchanan’s property and stated he had been there many times and recalled sink holes about 300 yards off the highway as described by accomplice witness Barnes.

Special Ranger Jimmy DeLesderneir’s testimony coincided with that of Sheriff Miller, and Deputy Johnson as to the arrest and search of appellant and his property.

C. W. Maupin, chemist for the Texas Department of Public Safety, testified that the shirt and pants taken from appellant’s truck at the time of his arrest contained either sheep or goat blood and that the trousers contained strands of wool but that he could not tell what sheep or goat the wool and blood had come from.

John Buchanan testified that he was the lessee of the property in question and identified the markings on the sheep hide as identical to his mark; that he had lost sheep and that he did not give appellant permission to come on his place and remove any sheep. On cross-examination Buchanan testified that he was not saying the hide in question was his, but only that it contained his mark. Through the custodians of the records in Real and Bandera Counties, it was shown that John Buchanan had not recorded the mark in question in either County.

Records of the District Clerk in Kimble and Bandera Counties were introduced and reflected that S. W. Dunnam had registered an identical mark as that on the sheep in question in Kimble County and that W. S. Marshall had the same mark registered in Bandera County.

Roselle Robinson, a ranch hand on property adjoining that of John Buchanan, testified that in the last eight months 75 goats and probably 50 sheep had been lost to coyotes and that John Buchanan had also been losing sheep to coyotes.

Rancher Eddie Leibold testified that he hardly ever knows how many goats he has.

It was further shown that W. S. Marshall did not own property in Bandera County at the time of the offense.

It is the well settled law in this state that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.

• The indictment alleges that the theft was from John W. Buchanan, and it is well settled in this state that where property is alleged to have been stolen from a certain named and designated person, the proof must show beyond a reasonable doubt that such property belonged to the person from whom it is alleged to have been stolen. Unless the proof meets this requirement, a conviction is not justified. Tex.Jur.2d p. 224, Sec. 177 and cases cited therein; see also Flores v. State, 142 Tex.Cr.R. 589, 155 S.W.2d 932.

After separating the chaff from the evidence presented, we find the only evidence which tends to connect appellant with the offense in question other than the testimony of the accomplice is the hide found on appellant’s property and Buchanan’s testimony that the hide bore his mark. On cross-examination when asked, “Well, can you positively say this is your hide?” Buchanan replied, “I certainly cannot. But it’s my mark.” And later when asked, “As I understand it, you’re not identifying this hide at all?” Buchanan replied, “No.”

In the light of other testimony showing other persons claiming and registering the mark in question, the ownership of the sheep has not been adequately proven.

■ The testimony concerning the clothes and sheep or goat’s blood does no't corroborate the testimony of accomplice witness Barries as it is entirely consistent with .the lawful operation of a barbeque business. It is pot contradicted that appellant was in that business.

Further, the testimony concerning the red truck seen on Leibold’s property does not aid the state’s case as appellant is not charged with the theft of a sheep from Leibold.

Thus, relying on Flores v. State, supra, and Nolley v. State, Tex.Cr.App., 352 S.W.2d 731, we conclude that the evidence is not sufficient to support the verdict of the jury.

The judgment of the trial court is reversed and the cause remanded.

WOODLEY, P. J., dissents.


author: BELCHER, Commissioner.

text:
    Amis L. WILLIAMSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36787.
    Court of Criminal Appeals of Texas.
    April 15, 1964.

      W. C. Wiebusch, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.

It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.

Officer Wolf testified that he saw appellant’s automobile weaving as he (appellant) drove along the highway; that it turned to the left side of the highway and continued across it into a ditch three feet deep; that he found a bottle of scotch whiskey on the floor board of the car; that he heard appellant talk and observed his walk, and smelled the odor of alcohol on his breath. The officer expressed the opinion that the appellant was intoxicated.

The appellant, testifying in his own behalf, denied that he was intoxicated but stated that he had had one or two beers during his evening meal; and later he had about four drinks at a club where he bought the bottle of whiskey; that he left the club early because he was tired and sleepy and his car ran into a ditch on the way to a motel; that he was not intoxicated and that any unusual physical condition was due to injuries he received when his car ran into the ditch.

The jury resolved the issue of intoxication against him, and the evidence is sufficient to support the conviction.

Appellant urges error because of a fatal variance between the surname WILLIAMSON in the complaint and WILLIAM SON in the information. The complaint charges AMIS L. WILLIAMSON, JR. with driving while intoxicated, while the information charges AMIS L. WILLIAM SON, Jr. with such offense. This claim of error was first made in the amended motion for new trial.

The allegation as to the name of the accused was not such a variance as would vitiate the information. Except for the information the name of Williamson, when necessary, is used throughout the record of this case. From the record it appears that WILLIAM SON in the information was intended -to be WILLIAMSON, hence it was a clerical error. In the absence of any showing of injury it does not warrant a reversal. Art. 412 Vernon’s Ann.C.C.P.

The appellant contends that County Criminal Court at Law No. 4 did not have jurisdiction of this cause in that it was transferred to that court from County Criminal Court at Law No. 2 of Harris County which had never acquired jurisdiction in the first place because of the want of express authority for the presentment and filing of causes in County Criminal Court at Law No. 2.

To sustain his contention, the appellant states that the jurisdiction of County Criminal Court at Law No. 2 is limited by Art. 1970-110b, Vernon’s Ann.Civ.St., which provides that its jurisdiction shall be the same as it is now or may hereafter be provided for county courts. He asserts that the County Court of Harris County has never had and does not now have criminal jurisdiction because of the provisions of the Constitution, Art. 5, Sec. 16, Vernon’s Ann.St, relating to the Criminal District Court of Harris County.

Art. 1970-110b, supra, created County Criminal Court at Law No. 2 in Harris County, and granted and expressly conferred upon it, not the same jurisdiction as that of the County Court of Harris County, but '‘the same jurisdiction over criminal matters that is now or may be vested in county courts having jurisdiction in criminal actions and proceedings under the Constitution and laws of Texas.” Appellant’s contention is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Mack MATHIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36837.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    No Attorney of Record on Appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft of property over the value of $50.00; the punishment, two years confinement in the state penitentiary.

The indictment alleges that appellant did fraudulently take one 18 h. p. Johnson Outboard Motor of the value of over $50.00, the same being the corporeal personal property of Ray Haddad, from the possession of the said Ray Haddad, without the consent of the said Ray Haddad, with the intent to deprive the said Ray Haddad of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Mack Mathis.

We shall not fully detail a statement of the testimony in view of our disposition of this case.

The state introduced the written statement of appellant to show the theft of the motor. The pertinent portion of the confession, after stating the name and address of appellant, is as follows:

“On or about August 6, 1962, I was at the River’s Cafe, in Uncertain, Texas. About an hour before this I had been with Tom Mathis, Jr., but he had left me and I did not know where he had gone until I saw him in a boat down at the Fly N Fish dock. He had an 18 horsepower red and white Johnson Motor over in the boat with him when I saw him. I asked him what he was going- to do with that motor, and he said he was going to keep it and give me some of the money he got for it. I helped him to carry the motor up to a car about 100 yards from the dock and load it into the trunk of the car that was parked next to my cabin. Tom Mathis, Jr. came back sometime during the night and got the motor and sold it for $30.00. Tom Mathis, Jr. gave me $5.00 out of the $30.00 that he received from this motor. This transaction took place about 11:30 P.M. on or about August 6, 1962, to the best of my knowledge.”
“All of the above happened in Harrison County, Texas, on or about the dates alleged above so far as I can remember and no one gave Tom Mathis, Jr., or me any permission to take any of these motors or to sell these motors and split proceeds between us.”

The state adduced no further testimony to connect appellant with the taking of the motor. It is stated in 41-A Tex.Jur. p. 52, Sec. 36:

“The taker must be connected with the original appropriation of the property to be guilty of theft. For this purpose, no connection with the property after the taking, whether in good or bad faith, honest or fraudulent, suffices. Thus a person not in any way connected with the original taking is not guilty of theft merely because he subsequently received, purchased or otherwise came into possession of the property, or because he aided the thief in carrying it away or disposing of it, and this is true even though he knew that the property had been stolen.”

We find the evidence insufficient to sustain the verdict of the jury.

The cause is reversed and remanded for another trial.


author: NYE, Justice.

text:
    Pablo ROSALES, Appellant, v. Josefina Aguilar ROSALES alias Ofelia Garza Rosales, Appellee.
    No. 2.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 19, 1964.

      Ramiro B. Martinez of Rankin, Kern, Martinez & de la Garza, McAllen, for appellant.
    R. A. Vidaurri, Edinburg, Alfonso A. Guerra, McAllen, for appellee.
   NYE, Justice.

Appellee Josefina Aguilar Rosales brought a suit for divorce against appellant Pablo Rosales, alleging that a common-law marriage was solemnized by the mutual agreement to be man and wife, followed by cohabitation and the holding out to the-public that they were each other’s respective spouses. The trial court, in a judgment granting the appellee a divorce from appellant, expressly found in its judgment and decree that a common-law marriage existed, decreed a division of the community property, and ordered the appellant to pay the attorney fees of the appellee.

The trial of the case was before the court without the intervention of a jury. The appellant in appealing from the judgment of the trial court, attacks the holding of a common-law marriage, in four points of error; three points to the effect that the appellee wife admitted that she never made any agreement to marry the defendant husband, and that this was a judicial ■admission, and further that she was living with him so that she could use his name.

It is our opinion that these points should be overruled.

There were no formal, separately ■stated, findings of fact or conclusions of law requested or filed. It is the duty of the Court of Civil Appeals upon appeal from judgment of the trial court to uphold such judgment provided that the implied findings which the judgment carries with it are supported by the evidence. In ■order to warrant a reversal in a non jury case where the record contains a statement of facts but no findings of fact or conclusions of law, as in this case, the appellant must show from the record that -under no theory to be gathered therefrom was the court authorized to render the judgment, and the judgment will be affirmed if the statement of facts supports it on any theory of the case. 3 Tex. Jur.2d, Appeal and Error-Civil, 689, § 438.

The appellee plead the necessary elements requisite to a common-law mar-Tiage and the statutory requirements for a divorce. There is no complaint concerning the proof of the divorce. In order to constitute a valid common-law marriage, it must be established that the parties: (1) ■entered into' an expressed or implied agreement to become husband and wife; (2) that such agreement was followed by cohabitation as man and wife; (3) that they held each other out professedly and publicly as husband and wife. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E (Sup.Ct.1913); Cain v. Caine, 314 S.W.2d 137 (Tex.Civ.App.1958).

The record reflects and there is evidence that the parties assumed the marriage status and lived together for some nine years beginning in 1953. The husband had three children of a previous marriage. This prior marriage terminated on the death of his first wife before he began cohabitating with the appellee. She had an illegitimate child but had never married prior to the cohabitation with the appellant. The parties, therefore, had no legal impediment and had the capacity to contract the present marriage. Although there were no children as issue of this marriage, the wife testified that she raised his three children and her child together in the same house. She testified that they agreed to live together as husband and wife and shortly thereafter purchased two lots and built a four-room house where she, the appellant and all of the children lived.

The wife was a Mexican citizen and testified through the aid and use of a court interpreter. The appellant urges this court to reverse the holding of the trial court because the wife judicially admitted on cross-examination that there was “no agreement” to be married and that she was using the husband’s name of “Rosales” as a “convenience” to her. A careful review of the testimony convinces us that these answers and admissions were imparted by the wife in response to cross-examination by appellant’s attorney concerning whether she agreed to a ceremonial marriage which had been suggested by the immigration authorities in order to clear up the requirements of obtaining a proper passport. These statements do not amount to a judicial admission. In the case of United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.1951, writ ref.), Justice Norvell has researched the necessary elements of a judicial admission and the binding effect of a party’s testimonial declaration. In order for one of the parties’ testimonial declaration to be binding upon her, it must he deliberate, clear, and unequivocal. If the statement merely contradicts some other portion of the party’s testimony, conclusive and binding effect cannot be given thereto, but a fact issue is presented for the determination of the judge sitting without a jury as in the case of an ordinary witness. Williams v. Williams, 336 S.W.2d 757 (Tex.Civ.App. 1960, writ dis.).

Even though the testimony was conflicting in many respects, the effect of all the testimony is left to the sound discretion of the trial court which encounters the parties and the witnesses, observes their demeanor and personalities, judges the credibility of the witnesses, interprets the truth and reality, and finally draws upon its storehouse of human living and experience before endeavoring to judicially decree its judgment. The agreement to be husband and wife may be implied and need not be an express agreement, and such an agreement may ordinarily be inferred from the evidence which establishes the other two constituent elements of a common-law marriage.

We hold that there was sufficient evidence from the testimony to uphold the trial court’s implied findings that the parties agreed to take each other as husband and wife.

The appellant husband, by his fourth point of error, contends that the wife failed to prove that he ever represented or held out to the public that the plaintiff was his wife. It is true that none of the witnesses could recall any occasion where the appellant husband had ever introduced the appellee to anyone as his wife. He testified that he had never introduced her as such. Without detailing or repeating all of the evidence concerning the holding out to the public, it is sufficient to note among other things, that the parties opened and held joint charge accounts in department stores, as Mr. and Mrs. Pablo Rosales, husband and wife, and that disinterested witnesses testified that the general reputation of the parties in the community was that they were married to each other.

In order to prove the validity of the common-law marriage, it is not necessary to offer evidence of husband and wife introductions to the general public. Proof of the holding out to the general public can be shown by other evidence, including the conduct and the actions of the parties, which sometimes speak louder than words of introduction.

In seeking to determine whether there is any evidence to support the judgment of the court’s implied findings of fact, that the parties held out to the public, it is proper to consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory to its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S. W.2d 609, 23 A.L.R.2d 1114 (Sup.Ct.1950). If there is any evidence from which the judgment can be upheld it is our duty to do so and every issue raised by the testimony will be resolved in favor of the judgment.

We therefore find that all of the elements constituting the necessary requirements to prove a common-law marriage have been established and there is sufficient evidence to uphold the trial court’s implied findings. In such case, where there is sufficient evidence to support such findings, it will be conclusively presumed that all fact issues were found by the trial court in such a way to support the judgment. Seydler v. Herder, 361 S.W.2d 411 (Tex.Civ.App.1962, ref. n. r. e.). Appellant’s fourth point is overruled.

Judgment of the trial court is affirmed.

SHARPE, J., concurs in the result.


author: COLEMAN, Justice.

text:
    Margaret Wells DOBBINS, a feme sole, Appellant, v. Herman L. GARDNER, Appellee.
    No. 14272.
    Court of Civil Appeals of Texas. Houston.
    March 19, 1964.
    Rehearing Denied April 16, 1964.

      Jim S. Phelps and Bill Kilgarlin, Houston, for appellant.
    Richard B. Miller and R. Gordon .Gooch, Houston; Baker, Botts, Shepherd '. & Coates, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is' a malpractice case in which a verdict was instructed for the defendant.

Appellant brought suit for certain damages which she alleged she suffered as a result of a gauze pack having been left in her body unknown to her, after an operation. She produced no medical witnesses to establish negligence on the part of the eminent physician who treated her, nor to establish that the claimed damage was proximately caused by negligent treatment.To establish her case she relied on hospital records, her own testimony and the testimony of the defendant.

Dr. Gardner testified that only one gauze pack was left in Miss Dobbins’ vagina after the operation on March 15; that the nurse was instructed to remove the pack the next morning at 6 o’clock; that this pack was so positioned that it could be removed without entering the body cavity; that if more than one pack had been used the nurse would not have been permitted to remove the interior pack;' that when he visited the patient on March 1(5' the nurse’s notes reflected that the pack had been removed; that he made no examination to check the accuracy of the nurse’s notes; that it is not customary to do so.

The doctor testified:

“Q Now no pack would have been left in there when she left the hospital?
“A You don’t ordinarily leave one in for many days after they leave, it was not my intention for any pack to be left in. It is the ordinary and usual custom that these packs be removed before they leave the hospital. I have known doctors to leave them in several days after the patient goes home.
“Q What .is your usual custom there in St. Luke’s?
“A. I have them removed before they go home.
"Q All packs should be removed before she goes home?
“A. Yes.”

He further testified positively -that the-pack, if if is left in the vagina,; will cause an odor.

The plaintiff testified that on March 16-she saw the nurse -remove a gauze pack. She testified that on March 31 Dr. Colwell removed another gauze pack after she had' returned • to Austin, and that neither she nor anyone else had placed such a pack in her vagina during the intervening period. She testified that a stench developed after a few days and that it was very bad for about a week while she was attending the-University of Texas Law School, a predominantly male institution. She tried to-minimize the odor, but was embarrassed and humiliated, and avoided people as much as it was possible for her to do while attending school.

In accordance with the doctrines governing cases of this nature, as settled in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1, we find that there is competent evidence from which a jury could find that a sponge was left in the vagina of the plaintiff after the operation of March IS; that under the circumstances this constituted negligence and was the proximate cause of embarrassment and humiliation to the plaintiff. We find that there was not sufficient medical testimony of causal relationship to permit the court to submit to the jury any of the other claimed elements of damage.

The fact that the plaintiff testified that she probably would not have brought the lawsuit had the odor been her only cause for complaint does not establish that the maxim of de minimis non curat lex applied. Humiliation and embarrassment are genuine elements of damage and, under the evidence in this case, cannot be held insignificant as a matter of law.

When appellant took the deposition of ap-pellee prior to trial, she learned that appel-lee had forwarded to Dr. Colwell a copy of .a letter which appellee had sent to the Claims Department of his insurance carrier. During the time intervening between the taking of the deposition and the trial of the case appellant made no attempt to require the production of the letter for examination. At the trial the court examined the letter and thereafter refused to permit appellant’s counsel to examine it or to introduce it into evidence. The trial court also refused to permit the letter to be incorporated into appellant’s bill of exceptions. Appellee testified that in this letter he described the facts of this case in considerable detail. These matters were incorporated in a bill of exception constituting a part of the record in this case. In his brief appellee states that no tender of evidence was ever made. The Bill of Exception No. 1 states that appellant attempted to offer the letter into evidence and that the court refused to let it be introduced. The letter was in the physical possession of appellee when he was being interrogated for the bill of exceptions.

The trial would not have been delayed had the court seen fit to admit the letter into evidence. No reason for refusing to admit the letter is suggested other than the contention that it was a privileged communication. Since the letter is not before us, we are unable to determine whether it would be inadmissible for other reasons. Under the provisions of Rules 176 and 177a, Texas Rules of Civil Procedure, appellant could have compelled the production of the letter in court by subpoena. While Rule 177a provides that the court may quash a subpoena if it is unreasonable and oppressive, a subpoena requiring the production of a single letter in the party’s possession in the court room ordinarily would not be oppressive or unreasonable. The subpoena may be issued at any time during the course of the trial. The person to whom it is directed is required to produce the document. Where an instrument is produced in court in response to a subpoena, the trial court may order that the document be made available to counsel for examination and for use in evidence. Rule 184, T.R.C.P.; Hollingsworth v. Sears, Roebuck & Co., 156 Tex. 176, 293 S.W.2d 639.

Since the document was in court in the possession of a party to the cause, there was no necessity for the issuance of a subpoena. The court had no less power to order the letter to be given to counsel for inspection or for use as evidence. Appellant insists that the power of the court is restricted to the procedures provided by Rules 167, 177a, 202, and 737, T.R.C.P. Where a document is in court and is shown to contain information both relevant and material to issues in the case, it would place undue emphasis on form to hold that the court had no authority to require one party to permit the other party to inspect the document or to introduce it into evidence merely because it was not in court in response to a subpoena or a pre-trial order.

Appellee objected solely on the ground that the instrument was a privileged communication between the doctor and,his insurance' carrier and was part of the preparation which he made in the defense of a claim against him. There is nothing in the record indicating that appellee requested, or that the nature of the communication required, an order of the court to protect ap-pellee from undue annoyance, or embarrassment as authorized by Rules 186b and 167, T.R.C.P.

The privilege asserted here presumably is based on that portion of Rule 167, T.R.C.P., reading: “ * * * the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence of transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.”

The letter to the insurance company was a communication made in connection with the defense of a claim and appellee could not have been required to produce it under the provisions of Rule 167. Perez v. San Antonio Transit Co., Tex.Civ.App., 342 S.W.2d 802, error ref. The question arises as to whether this privilege was waived by reason of the subsequent publication of its contents to Dr. Colwell.

No case has been cited to us where the question of waiver of the privilege granted by this rule was involved. While the question of waiver was not presented, in Dallas Railway & Terminal Company v. Oehler, 156 Tex. 488, 296 S.W.2d 757, the Supreme Court of Texas held that the failure of the trial court to require the attorney for a party to produce for introduction into evidence a list of passengers on a street car involved in a collision was not error. The Supreme Court expressly placed the decision on the ground that the record failed to show that the list of names was either relevant or material. The evidence in question in this case is clearly relevant. The detailed statement of the facts of this case contained in that letter would probably be material.

While we have been cited to no cases directly in point, it is well settled that the privileged nature of communications between the attorney and client may be waived by the client. McCormick and Ray, Texas Law of Evidence (2nd Ed.), § 490, p. 411.

“As the privilege operates to exclude testimony and obstruct the search for truth the tendency on the part of the courts is to construe it strictly, to contract rather than relax it. Since the purpose of the privilege will not be advanced by its extension to third persons, it is well settled that third persons who overhear communications may be required to testify concerning the same.” (McCormick and Ray, ibid, § 489, p. 410)

Since the privilege granted by Rule 167 operates to exclude testimony and obstruct the search for truth, it should be strictly construed also. When appellee voluntarily and intentionally disclosed the contents of the letter to a person not his agent or representative and not concerned with the defense of the claim against him, he has impliedly waived the privilege, and the trial court erred in failing to admit it into evidence.

There is some question as to whether under the facts in this case a privilege arises under the attorney-client relationship. Hurley v. McMillan, Tex.Civ.App., 268 S.W.2d 229. Where such a privilege arises and the privileged communication reaches a third person, that person may be required to testify concerning it. Clark v. State, 159 Tex.Cr.R. 187, 261 S.W.2d 339, cert. den. 346 U.S. 855, 74 S.Ct. 69, 98 L.Ed. 369, rehearing den. 346 U.S. 905, 74 S.Ct. 217, 98 L.Ed. 404. It would seem, therefore, that the intentional communication of a privileged document to a third person should have the effect of waiving its privileged nature to obviate the necessity of

calling such third person to testify as. to the contents of a document when the original is available in the hands of a party to the cause.

The trial court could have permitted the introduction of the document on the bill of exceptions in a sealed envelope, without permitting its examination by appellant, for use on the appeal, if such procedure was considered necessary to preserve the confidential nature of the information. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. However, this procedure does not appear to have been suggested to the trial court by either party. Appellant offered the document on her bill of exceptions. The failure of the trial court to admit it for that purpose was such an error as probably prevented appellant from making a proper presentation of the case to this Court, and constitutes reversible error. Rule 434, T. R.C.P.

The judgment of the trial court is reversed and the case is remanded to the trial court.