text:
    STATE of Missouri ex rel. Edvenia WILLIAMS, Relator, v. The Honorable Paul E. VARDEMAN, Judge of Division Three, Circuit Court, Jackson County, Missouri, at Kansas City, Respondent.
    No. 24663.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Phillip C. Ehli, Nolan J. Hepburn and R. C. Moore, Kansas City, for relator.
    John A. Borron, Jr., Kansas City, for respondent.
   CROSS, Judge.

This is an original proceeding to prohibit respondent, the Honorable Paul E. Varde-man, Judge of Division No. Three of the Circuit Court of Jackson County, from enforcing an order requiring relator Edvenia Williams to answer certain interrogatories propounded by a defendant she had sued for personal injury damages. Pursuant to relator’s petition, a preliminary rule in prohibition was issued by this court, to which respondent duly filed his return. Thereafter briefs were filed by the parties and the case was orally argued and submitted.

Relator’s personal injury suit is entitled “Edvenia Williams, Plaintiff, vs. David Kramer, Defendant.” As plaintiff in that action, relator Edvenia Williams alleged in her petition that while she was engaged in the performance of domestic duties at the home of defendant, as his employee, she was caused to slip and fall upon the basement floor by reason of defendant’s negligence in permitting the floor to become “slick and slippery”. As a result of her fall, relator alleged that she was caused to suffer “severe, progressive and permanent injuries” in that she received a fracture of her right wrist, which has greatly limited and impaired its functions and use; that she was caused to suffer “great physical pain, nervousness and restlessness and has been unable to enjoy her natural rest and sleep and her general health has been greatly affected and impaired” ; that her ability to work and labor has been lessened and impaired and that she has been caused to lose both past and future earnings; that she has incurred and in the future will incur obligations for expenses incident to medical treatment for her injuries. Relator’s prayer for damages is in the sum of $10,000.00.

Defendant propounded interrogatories to relator, fifteen in number. Only four of them are specific subjects of our discussion. They are quoted as follows:

* * * * ⅝ ⅜
“3. Have you or has anyone in your behalf, at the time of, or since the time of the occurrence described in plaintiff’s Petition for Damages, learned, received, obtained or procured from any source whatever, the names of any witnesses to said occurrence, or the names of any witnesses having any knowledge of relevant facts concerning said occurrence.”
* * * * * *
“5. (a) Please state the names and addresses of all doctors, physicians, surgeons, healers, or other practitioners of the medical arts, who have examined and/or treated you for the injuries alleged by you in your Petition for Damages.
(b) Please state the number of calls or visits by or to said practitioners and give the date of each visit or call.
(c) Please state the type and number of examinations or treatments you have taken from said practitioners and the date of each such examination and/or treatment.”
* * * * * *
“11. Except for the claim alleged in your petition for damages in this case, have you ever made a claim or filed any suit for damages of any kind or character, or made any Workmen’s Compensation claim at any time ?”
* * * * * *
“12. If the answer to any of the preceding interrogatory is in the affirmative, for each such claim or suit filed or made by you, please state the following:
(a) Date the claim was made and/or suit filed.
(b) Court, agency or organization with whom claim or suit was filed.
(c) The name and address of the defendant against whom each suit was filed or claim made.
(d) The description of the occurrence giving rise to such claim or suit and the date thereof.
(e) Injuries and damages you claimed in such claim or suit, the amount you received, if any, and the name and last known address of the person paying same.
(f) Name and address of attorney, representing you for such claim and/or suit.
(g) Names and addresses of doctors, physicians, or other practitioners of the medical arts and hospitals you may have been confined in, together with the dates of treatment or confinement.”
* * * * * *

Relator filed general objections to all fifteen interrogatories on the ground that “said interrogatories are submitted by the use of a printed form, and is not drawn up in proper language or designed to fit the particular circumstances of the case, so that every time these interrogatories are filed, objectionable questions are included therein, and this requires the opposing party to make objections thereto, and the Court to rule on these objections which constitutes a hardship and is burdensome and oppressive.” Specific objections were directed against Interrogatory No. 3 on the ground that it called for a conclusion of law in that it required plaintiff “to determine what is meant by the term ‘knowledge of relevant facts’”; against No. 5(c) on the ground that it required plaintiff to give “expert” medical opinions, and to reveal privileged doctor-patient information when there was no waiver of the privilege; and, against No. 11 on the ground that the question is “vague and all inclusive, and seeks evidence that is irrelevant and immaterial”, in that it inquires concerning claims that have no bearing on her lawsuit. Thereafter, by leave of court, defendant amended Interrogatory No. 3 by striking the language “or the names of any witnesses having any knowledge of relevant facts concerning said occurrence.” Respondent judge thereupon overruled relator’s objections, inclusive of the objection to Interrogatory No. 3 as amended. During pendency of a motion filed by defendant to compel answers to the interrogatories, relator instituted this action in prohibition.

The underlying issues framed by the pleadings in this proceeding are essentially the same as were presented to the trial court by relator’s objections to defendant’s interrogatories, above noted. Relator’s petition alleges in substance that respondent judge abused his discretion by overruling her general objections to the entire set of interrogatories on the ground they were “lengthy, burdensome, improper and oppressive interrogatories — propounded to her by the use of a printed form, — thereby compelling plaintiff to file objections thereto in order to avoid a waiver of her rights”, and by overruling her specific objections to Interrogatories numbered 3, 5(c) and 11. Respondent’s return generally traverses these allegations. It is noteworthy that the allegations of relator’s petition charging respondent with abuse of discretion in overruling her specific objections are limited solely to Interrogatories Nos. 3, 5(c) and 11, as in fact her specific objections in the trial court were so limited. Notwithstanding, relator now attempts to expand our inquiry by setting out in her brief and orally arguing new grounds of specific complaint against several interrogatories other than Nos. 3, 5(c) and 11, not heretofore presented to the trial court in the form of objections. Consequently these new questions are not properly before this Court for consideration or decision. To accept them now for those purposes would serve to nullify the provisions of Civil Rule 56.01 which limits to ten days the time within which a party may interpose objections to propounded interrogatories. Furthermore, it is our opinion that “an objection which is so general that it would require the court to particularly examine each question propounded to determine if the objection applies, is not good.”, as held in Stover v. Central Broadcasting Co., 247 Iowa 1325, 78 N.W.2d 1, on authority of numerous federal decisions therein cited. Also see Barron and Holtzoff, Federal Practice and Procedure, Section 775, “Objections to Interrogatories; Protective Orders” and cases there cited. In determining whether the trial court exceeded his judicial authority we will limit our consideration to the issues that were laid before him for decision.

The merits of relator’s complaints in this proceeding depend primarily upon whether the interrogatories in question come within the scope of permissible inquiry authorized by applicable rules of discovery here noted. In pertinent part Civil Rule 56.01 (a) V.A.M.R. provides that “interrogatories may relate to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party.” In defining the scope of depositional examination, Civil Rule 57.01(b) provides that “the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” As succinctly stated in State ex rel. Houser v. Goodman, Mo.App., 406 S.W.2d 121, “Discovery should provide a party with access to anything relevant to the proceedings and subject-matter of the case not protected by privilege.”

In ruling the issues we will also be mindful of the underlying principle that primarily the responsibility of administering discovery procedures is necessarily cast upon the trial court. As further stated in State ex rel. Houser v. Goodman, Mo.App., supra, “ ‘Whether questions are proper in form and substance is/ in the first instance, ‘for the determination of the trial court; and the court should keep in mind that if an objection is sustained the interrogator has the right to reframe and resubmit the question in proper form or to propound additional ones. “The number of interrogatories or of sets of interrogátories to be served is not limited except as justice requires to protect the party from annoyance, undue expense, embarrassment, or oppression. * * *” Civil Rule 56.01(a), V.A.M.R.’ State ex rel. Hof v. Cloyd, supra, Mo. (En Banc), 394 S.W.2d 408, 411-412.”

In arguing that her general objections should have been sustained, relator clarifies her position to some extent by agreeing with respondent that “There is nothing contained therein (in Rule 56) which prohibits or condemns the use of printed interrogatory forms * * * ”, and by stating that her general objections to the entire set of questions are not based alone on the fact they are on a printed form. These coincident views of the parties are also shared by this court. The interrogatories are not subject to our disapproval because they are presented in printed form (mimeograph). We find no rule or decision that condemns such practice. This is not to say that abuse and oppressive burden can not result from the use of printed interrogatory forms. That contingency must be tested by the applicability of the questions to the facts of each particular case.

Relator’s argument in support of her general objections amounts, in substance, to a charge that the use of printed form interrogatories has given rise to an abuse of discovery process generally practiced by “defense counsel” in the jurisdiction of Jackson County, where her damage suit is pending. She explains that she objects generally to the interrogatories because, as printed forms, they are “so broad, so general and so all inclusive”, and may be served in any case with such ease, that defense counsel have developed the “custom and practice” of repeatedly filing their form interrogatories in all personal injury lawsuits, thereby unnecessarily burdening plaintiffs with the necessity of filing objections or suffering waiver of their right to do so. Thus, says relator, frequently “the Defendants obtain an advantage by default or abdication by the plaintiffs’ responsibility because of time involved or for financial reasons.” Still outside the record, relator informs us that there is an excessive use of interrogatories in Jackson County; that defense counsel in that jurisdiction generally have delegated their professional responsibilities to their secretaries by giving them a standing order to attach a copy of the form interrogatories to the answer when it is filed; that defense counsel in general are retained on an hourly basis by insurance companies with unlimited resources (the implication being that defense counsel can well afford the time devoted to resolving questions relating to the propriety of interrogatories, which counsel for “the- indigent, crippled Plaintiff” could ill afford). Additionally, relator directs our attention to “Appendix A” of her brief, same being a summary of the 1965 “Smith Jury Verdict Service” for the area of Kansas City, showing that defendants won almost 40% of lawsuits involving rear-end accidents, suggesting that one of the main reasons for this result is the improper use of form interrogatories. There is no evidence whatsoever in the record to support these statements. Consequently they have no bearing on whether the trial court should have sustained her general objections.

For that matter, even if it were disclosed by the record that the general practice of which relator complains in fact existed, we would not be justified in condemning the interrogatories as a whole for that reason or on that basis. The validity of interrogatories is not dependent upon the method of their preparation, the mechanics of their reproduction, or the extent of their use “in other cases”. Those factors are not prescribed by any Missouri statute, civil rule, or court decision as criteria to be considered in ruling the propriety of questions propounded. The determining consideration is whether the inquiry is relevant to the subject matter involved in the pending action and appears “reasonably calculated to lead to the discovery of admissible evidence.” By overruling relator’s general objections, the respondent judge has in effect ruled that the subject interrogatories were not as a whole, or in any substantial part, outside the proper scope of legitimate discovery as it is so defined. Relator has not satisfied her burden to establish that such ruling was in excess of his judicial discretion.

Next we consider whether respondent judge was without jurisdiction to require that relator answer Interrogatory No. 3 in its amended form. As shown above, the interrogatory in original form not only requested “the names of any witnesses to said occurrence” but also inquired the names of any witnesses “having any knowledge of relevant facts concerning said occurrence.” Upon relator’s objections to the interrogatory the defendant confessed error in the latter quoted portion by amending the interrogatory, with leave of the court, to read, “Have you or has anyone in your behalf, at the time of, or since the time of the occurrence described in plaintiff’s Petition for Damages, learned, received, obtained or procured from any source whatever, the names of any witnesses to said occurrence.” Manifestly the interrogatory was improper in its original form, because it called for a conclusion and determination by the party as to what is relevant knowledge of relevant facts, State ex rel. Hof v. Cloyd, Mo.Sup., 394 S.W.2d 408, but was in proper form after it was amended. State ex rel. Hudson v. Ginn, Mo.Sup., 374 S.W.2d 34. The respondent judge did not exceed his jurisdiction or abuse his discretion by allowing the amendment and thereafter ordering relator to answer the question as amended. Civil Rule 56.01(a) provides that “the number of interrogatories or of sets of interrogatories to be served is not limited.” And, as said in State ex rel. Hof v. Cloyd, supra, “the (trial) court should keep in mind that if an objection is sustained the interrogator has the right to reframe and resubmit the question in proper form or to propound additional ones. * * * Certainly, if a party is thus privileged to reframe and resubmit an improper question after objection to it has been sustained, it must follow that a trial court has authority to allow the voluntary amendment of an improper question to obtain the same result, without prejudice to the interrogator’s right to receive an answer. Relator has suffered no oppression or injustice by respondent’s requirement that she answer Interrogatory No. 3 in its corrected form.

Relator next complains that she should not have been required to answer Interrogatory 5(c), the text of which is here repeated: “Please state the type and number of examinations or treatments (referring to injuries alleged in relator’s petition for damages) you have taken from said practitioners and the date of each such examination and/or treatment.” Her specific complaints against the interrogatory are that in requesting her to state the type of treatment she has received from physicians it calls for information that is privileged under Section 491.060; also that it requires a medical opinion and calls for a “legal-medical” conclusion. There is no merit in these submissions.

Section 491.060 V.A.M.S., in pertinent part, reads as follows: “The following persons shall be incompetent to testify: * * * (5) A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.” A “privilege” is thereby conferred upon the patient to suppress, as evidence, information acquired by a physician from a patient while attending him in a professional capacity, which the latter may waive. Davenport v. City of Hannibal, 108 Mo. 471, 18 S.W. 1122. Application of the statute has frequently perplexed our courts. As said by the Supreme Court in Green v. Terminal Railroad Ass’n, 211 Mo. 18, 109 S. W. 715, “It is obvious the language of the statute is of such sort that its interpretation and application are troublesome. * * * On the one hand, it might be so construed as to fritter away the provisions of the law. On the other hand, it might be so literally construed as to work great mischief in the administration of justice. * * * The application of such law must be with discrimination, so that it may have the legislative effect intended for it, and yet the investigation of truth be not unnecessarily thwarted.”

Granting that physicians and medical practitioners who have examined or treated relator may not be questioned in respect to those matters, unless or until the privilege extended by Section 491.060 has in some manner been waived, there is nothing contained in that statute that renders relator incompetent as a witness generally, that relieves her from complusion to testify as a witness subject to cross-examination by the adverse party as provided by Section 491.030 V.A.M.S., or that exempts her from the legal duty to answer interrogatories imposed upon her by Civil Rule 56.01(a). In her petition relator alleges that she suffered “severe, progressive and permanent injuries” which compelled her “to seek medical treatment and incur expense therefor.” She may not now draw the curtain of silence and refuse further communication on the very issues she has originated and would submit to judicial inquiry. The defendant from who she seeks damages is entitled to search her knowledge and her conscience on those questions. The interrogatory by which he undertakes to do so does not require her to consult her physicians in order to answer it or to disclose by indirect communication any information they may have acquired from her. Assuming that relator is a person of ordinary intelligence, it is not unreasonable to believe that by her own observation she may have acquired some knowledge and understanding of the general nature of the medical treatment she claims to have received. She should be able to recognize and identify at least some of the standard medical treatment procedures that are matters of common knowledge to laymen — for instance: the administration of medicine by mouth or hypodermic injection ; light or heat treatment; hydrotherapy; massage; X-ray therapy. Whatever relator may have learned in that manner about the treatments she may have received, it is now her duty, as a plaintiff-claimant, to disclose all information within her personally acquired knowledge that reasonably bears upon a determination of the nature and resulting effect of her alleged injuries, including any information as to the type, number and dates of treatments therefor. Interrogatory No. 5(c) is a legitimate inquiry and does not require a medical opinion or legal-medical opinion for its answer. Cases cited and relied upon by relator are not in point because they involve the question as to the competency of physicians to testify as witnesses — not their patients.

We additionally note that by answering Interrogatory No. 5(c) relator will suffer no waiver of the privilege extended by Section 491.060. It is well settled that in order to waive the confidential privilege in question, “the party’s admission must be voluntary, which is not the case when it is extorted under cross-examination.” Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481.

Relator next directs complaints against Interrogatory No. 11, which, for convenience, we re-quote: “Except for the claim alleged in your petition for damages in this case, have you ever made a claim or filed any suit for damages of any kind or character, or made any workmen’s compensation claim at any time?” Relator argues that the interrogatory is “too broad” and “all inclusive” in that it inquires whether she has made a claim or filed a suit for damages of any kind or character. She finds no fault with the interrogatory insofar as it pertains to claims and suits to recover on account of personal injuries. For that matter, it would have been an abuse of respondent’s discretion had he denied discovery so limited. State ex rel. Hudson v. Ginn, Mo.Sup., 374 S.W.2d 34. Relator insists that the question as framed improperly requires her to divulge, claims or suits for damages, other than for personal injuries which conceivably might extend to various categories of loss and damage having no relevance to the subject-matter of interrogation. We agree with relator that the scope of the question is too broad and that it should be restricted to claims and suits for personal injuries. In its present form and taken in its clearly expressed literal sense, the interrogatory requires relator to divulge all her prior claims or suits for damages of whatsoever nature, whether arising from breach of contract, the exercise of eminent domain, loss of or damage to property, trespass, libel, slander, assault, ravishment, invasion of privacy, fraud, abuse of process, or the various other causes for which damages are recoverable other than physical injury. In our opinion information relative to such claims and suits has no bearing on the issues to be tried in relator’s present suit and is not reasonably calculated to lead to the discovery of evidence admissible therein. The requirement imposed upon relator that she furnish such information would subject her to unnecessary burden, and could conceivably constitute an unwarranted invasion of her privacy.

Accordingly the effect of our judgment will be to relieve relator from the requirement that she answer Interrogatory No. 11. And, inasmuch as answers to Interrogatory No. 12 are called for only in the event Interrogatory No. 11 be answered in the affirmative, (which, under our present ruling will not be done), Interrogatory No. 12 has consequently become irrelevant. Anticipating that in due course of further proceedings in relator’s damage suit a new interrogatory may be propounded inquiring whether relator has made other claims or filed other lawsuits for damages resulting from personal injuries, accompanied by ancillary interrogation in the general nature of present Interrogatory No. 12, we deem it appropriate to recommend that counsel and the trial court give due consideration to (1) whether defendant is entitled to information concerning all prior claims or suits for personal injury damages without limitation as to time, or should be limited in such inquiry to some reasonable period of years prior to relator’s present lawsuit, and (2) whether the defendant is entitled to inquire the names and addresses of attorneys who may have represented her in any such claims or suits.

Our Supreme Court has recently drawn attention to “an inordinate and apparently unnecessary number of applications to regulate the use of interrogatories.” State ex rel. Hof v. Cloyd, Mo.Sup., 394 S.W.2d 408. Reminding counsel of their responsibility to formulate proper interrogatories and the trial court of its broad discretion to control their use, the same authority states: “Attorneys experienced in the taking of depositions or the oral examination of witnesses at a trial should have no difficulty in formulating or recognizing proper written interrogatories. Such interrogatories should call for specific relevant facts and not be repetitious. They should not call for opinions or the conclusions of the person interrogated or require him to resort to speculation or conjecture as to what is intended. Whether questions are proper in from and substance is for the determination of the trial court; and the court should keep in mind that if an objection is sustained the interrogator has the right to reframe and resubmit the question in proper form or to propound additional ones.” Being vested with the authority so provided, the trial court is not compelled to laboriously sift through a bulk of interrogatories containing improper questions in order to find those which are germane to the case. If, upon examination, a set of interrogatories appears to contain a substantial number of inappropriate questions, or is otherwise subject to meritorious objection, it is within the trial court’s discretion to strike the entire set from the files, subject to the interrogating party’s right to reframe and resubmit the questions. As previously noted. “The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, undue expense, embarrassment or oppression. * * * Civil Rule 56.01(a).

In accordance with our views herein-above expressed our preliminary rule in prohibition is made permanent as to Interrogatories Nos. 11 and 12, and in all other respects is quashed.

HOWARD, P. J., concurs.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.

      . The Civil Practice and Procedure Committee Reports of the Missouri Bar, 22 Mo.B.J. 510 (December, 1966) states: “8. Remedies for abuses in the use of interrogatories. A subcommittee has been considering several proposals for remedies in the use of interrogatories, i. e.: to limit the number of interrogatories which may be submitted, to prohibit mimeographed interrogatories, and to formulate ‘form’ interrogatories. The Civil Practice Committee considered a report of the subcommittee that the number of interrogatories permitted not exceed 20 and that mimeographed interrogatories be prohibited; these proposals were rejected. The subcommittee is studying further the possible use of ‘form’ interrogatories.”

      . The following comment contained in the official report of a seminar discussion by the appellate and circuit judges held during the 1967 session of the Missouri Judicial Conference on the subject of “Use and Abuse of Interrogatories” represents the consensus of the conference on the question of printed interrogatory forms: “The mechanics of reproducing legal forms should not be determinative of their propriety. Mimeographed interrogatories which are appropriate in number and scope are not ‘per se’ objectionable. However, if the mimeographed interrogatories are lengthy and some are inappropriate, neither the court, nor the opposing attorney should be required to-laboriously sift the wheat from the chaff. It was the consensus that the whole set should be aborted.”

      . In Goldman v. Ashkins, 266 Mass. 374, 165 N.E. 513, 515, the Supreme Court of Massachusetts ruled the precise question as follows: “The validity of interrogatories is not dependent upon the questions whether they were ‘prepared with particular reference’ to or necessitated ‘thought or labor’ touching the cases at bar. The method of preparation is of no consequence. The only .relevant point is whether they are reasonably' adapted to seek ‘discovery of facts or documents admissible in evidence at the trial of the case.’ Doubtless many questions might rightly be the same with respect to automobile accidents regardless of the special facts of a given case.
      “When interrogatories are filed it is wholly immaterial whether they are ‘stock forms’, whether they are ‘mimeographed’ or ‘written, dictated or typewritten,’ or ‘prepared in large quantities,’ so long as they are proper in substance and comply with Section 7 of the ‘General Rules to the Records of the Supreme Judicial and Superior Courts.’ Rules of Supreme Judicial Court (1926), p. 61. The only thing to be considered is whether the interrogatories are pertinent to the issues in the case.”


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    LOUISVILLE CREDIT MEN’S ASSOCIATION, Under an Assignment for the Benefit of Creditors of Charles Patrick, Inc., and Louisville Credit Men’s Association, Under an Assignment for the Benefit of Creditors of City Investment Company, Inc., Appellants, v. The LOUISVILLE TRUST COMPANY, Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    Rehearing Denied Jan. 26, 1968.
    Carl K. Helman, William B. Cohen, Herman E. Frick, Louisville, for appellants.
    Joseph E. Stopher and A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   CULLEN, Commissioner.

The Louisville Credit Men’s Association, assignee for the benefit of the creditors of Charles Patrick, Inc. (a corporation) sued The Louisville Trust Company (a bank) to recover $40,000 which had been paid out by the bank on a check drawn on the corporation’s account in the bank by one Charles Patrick, an officer of the Patrick corporation. The check, payable to “R. W. Simpson” and having such name endorsed on the back, was presented to the bank by Patrick. The bank cashed the check and at Patrick’s request issued to him a cashier’s check also payable to “R. W. Simpson.” Patrick subsequently endorsed this check with the Simpson name and diverted the proceeds to his own use, applying them in payment of a personal debt he owed to Motors Investment Company.

The theory of the complaint in the instant suit was that Patrick had forged the endorsement on the check, wherefore the bank was liable for cashing it. (Patrick had authority to sign checks for the Patrick corporation but had no authority to determine for what purposes checks would be issued.) The bank pleaded by way of defense that “R. W. Simpson” was a fictitious person and therefore, under the law of negotiable instruments, the check was in legal effect payable to bearer and could properly be cashed by the bank without regard to indorsement. The bank incorporated in its answer, by reference, the entire record in Louisville Credit Men’s Ass’n v. Motors Investment Co., Ky., 394 S.W.2d 760, a case involving this same check, in which the proof was that “R. W. Simpson” was a fictitious person and the holding of this court was that the check legally was payable to bearer.

The trial court in the instant action granted summary judgment in favor of the defendant bank. The plaintiff has appealed.

The transaction in question occurred in 1959, when the old Uniform Negotiable Instruments Law was in effect in Kentucky. Under the section of that law codified as KRS 356.009 it was provided that an instrument is payable to bearer when it is payable to the order of a “fictitious” or nonexisting person, and such fact was known to the person making it so payable. Every authority (and there are a great many) that has considered this section of the Negotiable Instruments Law has agreed that when the drawer of á check knowingly makes it payable to a fictitious person the endorsement of the name of the payee does not constitute a forgery; that the check, being a bearer instrument, does not require an endorsement and any endorsement is wholly superfluous and of no significance. See Mueller & Martin v. Liberty Insurance Bank, 187 Ky. 44, 218 S.W. 465; Uniform Laws Annotated, Vol. 5, Part 1, sec. 9, pp. 128 to 144; 11 Am.Jur.2d, Bills and Notes, sec. 128, pp. 167, 168. There are two obvious reasons why there can be no forgery in such a situation, one being that there is no true signature to be forged, and the other being that the fictitious name is in reality an assumed name of the drawer; he is the intended payee, and when he endorses the check he is signing his own assumed name.

The typical situation in which the statute was intended to and does apply is the very situation here involved; i. e., a faithless employe draws a check on his employer’s account, payable to a fictitious person, and then endorses the check and converts the proceeds. 11 Am.Jur.2d, Bills and Notes, sec. 128, p. 168.

The complaint in the instant action alleged that there was in fact a person named “R. W. Simpson” and that the Patrick corporation “issued the said check drawn on the plaintiff under the belief that the said check would be paid to R. W. Simpson, as a loan to finance bowling equipment and plaintiff intended that the said check should be paid to R. W. Simpson only, and to no other person.” This allegation on its face would take this case out of the “fictitious person” statute. However, on the motion for summary judgment this allegation was not controlling.

In the record of the Motors Investment case, which was pleaded by reference as an exhibit in the answer in the instant case, the proof was conclusive that “R. W. Simpson” was a fictitious person. Charles Patrick, who drew the check, testified that the name on the check was “just a name;” that he later had been told that there was a local golf professional named W. R. Simpson, but “that’s not the Simpson. He has nothing to do with it. It’s the wrong Simpson. The name on that check is just a name.” The law is clear that if the drawer of a check did not intend a real person to have any interest in the check as payee, the check will be considered as payable to a fictitious person, even if there happens to be in existence a person having the name used to designate the payee. See 11 Am.Jur.2d, Bills and Notes, sec. 128, pp. 167, 168; and Union Bank & Trust Company of Los Angeles v. Security-First National Bank, 8 Cal.2d 303, 65 P.2d 355 (cited with approval in Louisville Credit Men’s Association v. Motors Investment Company, Ky., 394 S.W.2d 760).

Of course, the record in the Motors Investment case is not conclusive in the instant case because the parties are not the same. However, the record in that case is so strongly indicative of the true facts that we think the plaintiff in the instant case, to avoid a summary judgment against him, should have made some suggestion to the court that proof would be available to show that the check was in fact intended to be payable to a real person. Patrick is no longer living, so he is not available to contradict his testimony in the other case. No possible source has been suggested from which evidence could be produced to support the allegations of the complaint.

This court has held that where the defendant, in support of his motion for summary judgment, files an affidavit controverting an allegation of the complaint, the plaintiff is required to make some showing that he will be able to produce proof on the trial in support of the allegation. Tarter v. Arnold, Ky., 343 S.W.2d 377. We think that rule is applicable here, where the allegations of the complaint were controverted by the record in the Motors Investment case, which had at least the same stature as an affidavit.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY and PALMORE, JJ., concur.

OSBORNE and STEINFELD, JJ., not sitting.


author: OSBORNE, Judge.

text:
    KENNY CONSTRUCTION COMPANY et al., Appellants, v. Maude GREEN, as Next of Kin, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Rehearing Denied Jan. 26, 1968.

      Earl R. Cooper, Marcus Mann, Salyers-ville, for appellants.
    Cordell Martin, Hindman, G. C. Perry III, Paintsville, Foster Collis, Jackson, Robert Matthews, Atty. Gen., Frankfort, for appellees.
   OSBORNE, Judge.

This is an action brought by Mrs. Maude Green for the desecration and destruction of the graves of five of her infant children. The children were buried in Ma-goffin County on the farm of Clyde Ar-nett. They were not buried in a recognized cemetery nor was the interment conducted by an undertaker. The only markers left at the graves were some natural field stone placed at the heads. The last of the children was buried in 1942. Appellee had not visited the site of the graves since 1956. She did not have a deed to the site where the children were buried but had permission from the owner thereof for their interment.

Appellant, Kenny Construction Company, constructed a part of the Mountain Parkway under contract with the Kentucky State Highway Department which had through condemnation and negotiation acquired the site where the children were buried. There is no question but what appellant was working on the right of way and in accordance with the plans and specifications furnished by the State Highway Department. Appellant filed a cross-claim against the Department of Highways alleging a right of indemnity from them on the grounds that if there was negligence it was committed by the Department in procuring the right of way which it secured to appellant.

There are several questions raised upon this appeal. However, since we have concluded that the judgment must be reversed we will not attempt to discuss them in detail. The first question presented is, can appellant be held liable for the destruction of graves upon the right of way in view of the fact that the Commonwealth took responsibility for securing the title to the right of way? In Codell Construction Company v. Miller, 304 Ky. 708, 202 S.W.2d 394, we discussed this question with a factual difference that in the Codell case the graves were located adjacent to but off of the right of way and the case seemed to turn on that point. In the opinion, we said:

“Appellant contends that its evidence shows its good faith in following out the plans and specifications of its contract with the Highway Department, and negatives the idea of any wanton or reckless acts. It relies on the case of Hunt-Forbes Construction Co. v. Robinson, 227 Ky. 138, 12 S.W.2d 303, in which we held, under a different set of facts, that a contractor in the absence of negligence is relieved of liability for injuries resulting from the construction of a highway where the work is done in strict conformity with plans and specifications of the Highway Department. This same defense was presented to us in Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496, wherein it was held that the rule laid down in the Hunt-Forbes case does not apply to this type of action, saying that the rule does not go so far as to hold that a contractor can knowingly destroy or injure property which was not included in the right of way for highway construction(Emphasis added)

In Johnson, et al. v. Kentucky-Virginia Stone Co., supra, we held that a contractor could not knowingly destroy or injure on the right of way property which was not included in the deed conveying the land for road purposes. But, if the contractor was without notice that the graves existed he would not be liable. The right of action for desecration of a grave seems to have historically been rested upon two separate theories. Some courts adhere to the theory that the gist of the action is the trespass upon the lot and the action may be maintained by the plaintiff where he has actual or constructive possession of the soil where the body is buried. Others subscribe to the theory that the act of desecration is the interference with the right of burial giving a cause of action in tort against the wrong doer. In one instance the gist of the action is the trespass to land and in the other it is a personal right regarding dead bodies. It probably is because of a confusion of these two theories that we have in this state several cases in which the contractor argues vehemently that by virtue of his superior title he has an absolute right to proceed upon the right of way while the surviving relative of the deceased argues just as vehemently that no person has a right to disturb the remains of the dead. Our cases have not made it exactly clear upon which of these theories we proceed and we do not deem it necessary to do so in this case except to point out that we have previously held that the parents of a deceased child have such an interest or right in the land occupied by the child’s grave as to. entitle them to maintain an action against one who disturbs that grave. Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 21 L.R.A. 96 and Johnson v. Kentucky-Virginia Stone Co., supra. However, even though the contractor may be held liable for disturbing the grave when upon the right of way it must be shown that his actions were done either maliciously by gross negligence or wantonly with a reckless disregard for the rights of others. Mere negligence is not sufficient. Codell Construction Co., v. Miller, supra. See also 172 A.L.R. 554. We have concluded that the proof in this action fails to show gross negligence or wanton disregard and for that reason the judgment should be reversed. The proof doesn’t disclose any public record from which appellant could gain information concerning the existence of the graves. There is no proof that they physically existed in such form as to be recognizable at the time appellant came upon the site. Without positive proof that appellant had knowledge of the graves it cannot he claimed that it maliciously or wantonly destroyed them. The testimony concerning a conversation had with appellant’s employee by Wiley Arnett does not constitute notice.

As the action of the trial court in dismissing a cross-complaint against the Highway Department is now rendered moot, we do not deem it necessary to pass upon that question.

The judgment is reversed.

All concur.


author: MORRISON, Judge.

text:
    Billy Jack BENNETT and Joe Bob Bennett, Appellants, v. The STATE of Texas, Appellee.
    No. 40828.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 17, 1968.
    McCown & Sheehan, Louis T. Dubuque, Dumas (on appeal only), for appellants.
    William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary; both appellants received an eight year sentence.

Their common ground of error No. 3 is that the court erred in admitting evidence of an extraneous offense.

Officer Hudson, when testifying about his investigation of the burglary of the cafe owned by the injured party named in the indictment, stated that he first went to a nearby filling station. Appellants immediately objected and asked that the jury be retired. This being done, Mr. Bynum, owner of the nearby filling station was called and testified that on the day of the cafe burglary, a tire tool and a screw driver were missing from his filling station. Appellants’ objection was overruled. In the jury’s presence he then testified to the same thing and volunteered that when the tire tool was returned to him he did not see on it any red paint that “Could (have) come off my coke box. * * * I think they (the perpetrators of the crime) used (the tire tool) to take $20.00 out of that coke box. * * * ” Though the court instructed the jury not to consider the volunteered testimony, the prosecutor immediately asked him if some machine in his place was damaged that day. Appellants’ objection was again sustained. It was further shown that tire tools similar to the one in question were offered for sale to the general public and that no identifying marks were placed on the tools by the manufacturer differentiating one from another.

In his argument to the jury, the prosecutor pointed out the fact that appellants’ possession of the tire tool allegedly taken from Mr. Bynum’s service station at the time they were arrested was evidence that they had committed the burglary charged in the indictment. There was no evidence that the tire tool found in appellants’ possession was the one taken from Mr. Bynum’s service station, and there was no evidence that the tire tool was used in the commission of the offense charged. The introduction of this testimony and the tire tool was evidence of an offense not shown to have been committed by the appellants and unrelated to the offense charged, and therefore was not available to show the commission of the offense charged. Hafti v. State, Tex.Cr.App., 416 S.W.2d 824.

The pertinent rule of law as stated in 10 Tex.Jur.2d, Sec. 100, p. 267, citing Hawkins v. State, 122 Tex.Cr.R. 84, 53 S.W.2d 780, is: “it is improper to show that certain articles in the defendant’s possession were fruits of former crimes, there being nothing to show that the fact has a bearing on the case being tried.”

In Miller v. State, 140 Tex.Cr.R. 479, 145 S.W.2d 870, another burglary case, it was held reversible error for the state to prove that other places of business in the town of Liberty Hill were burglarized on the night of the burglary charged in the indictment.

In Coston v. State, 160 Tex.Cr.R. 159, 268 S.W.2d 180, this Court held it reversible error for the state to prove by an accomplice witness that on the same night as that charged in the indictment, he and appellant had committed another burglary in the same city.

In Garcia v. State, 165 Tex.Cr.R. 134, 305 S.W.2d 605, this Court held it error to prove in development of the state’s case in chief, as was done in the case at bar, that the accused had engaged in shoplifting for some ten years prior to the occasion charged in the indictment.

Still later in Carroll v. State, Tex.Cr. App., 365 S.W.2d 786, this Court held it error for the State to prove another unrelated offense.

As in Haiti v. State, supra, the proof here clearly conveyed to the jury evidence that appellants had committed another unrelated offense and that such proof constituted reversible error.

Accordingly, the judgment is reversed, and the cause is remanded.


author: PER CURIAM. WOODLEY, Presiding Judge.

text:
    Sammy Lee POINTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40614.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1967.
    On Motion to Reinstate Appeal Nov. 22, 1967.

      Miller, Sanders, Baker & Miller, by Dee D. Miller, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Toby A. Priolo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

This purports to be an appeal from a conviction for robbery, with punishment assessed at ten years in the penitentiary.

The record contains no notice of appeal, as required by Art. 44.08, Vernon’s Ann. C.C.P.

The appeal is dismissed.

OPINION ON APPELLANT’S MOTION TO REINSTATE APPEAL

WOODLEY, Presiding Judge.

Supplemental transcript has been forwarded to this court which includes a certification by the trial judge that notice of appeal was given on February 7, 1967, after the verdict of the jury in said cause had been read and judgment entered.

The record reflects that sentence was pronounced on February 16, 1967.

Art. 44.08 Vernon’s Ann.C.C.P. requires that in cases such as this notice of appeal shall be given or filed within ten days after sentence is pronounced. Rosenbaum v. State, Tex.Cr.App., 409 S.W.2d 406; Herbort v. State, Tex.Cr.App., 422 S.W.2d 456 (motion to reinstate overruled October 11, 1967).

Sec. (e) of the same statute provides that for good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days.

In view of the fact that the record on appeal before us would be considered should the trial court permit notice of appeal to be given, and such record and the brief of appellant have been carefully examined; and that the indigent appellant is represented by court appointed counsel, we deem it proper to express the view that under the recent decisions of this court in Price v. State, Tex.Cr.App., 410 S.W.2d 778; Daniels v. State, Tex.Cr.App., 387 S.W.2d 886; and Henderson v. State, Tex.Cr.App., 422 S.W.2d 175 decided November 8, 1967, the one and only ground of error of which appellant desires to complain on appeal, namely:

“The Court erred in finding that the arrest of appellant without a warrant was justified and the subsequent search was legal.”

appears to be without merit.

Appellant’s motion to reinstate the appeal is overruled.


text:
    Artie SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40792.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.
    Rehearing Denied Jan. 17, 1968.

      Marion G. Holt, Nacogdoches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on May 20, 1963, appellant was found guilty of felony theft, and his punishment was assessed at a term of five years. The execution of the sentence was suspended, and probation was granted.

On November 28, 1966, motion to revoke probation was filed in which the District Attorney alleged that appellant committed a burglary on March 23, 1965. At the conclusion of the hearing, the court entered an order revoking probation in which he found that appellant had violated the terms of his probation in that he had on December 11, 1965, committed the offense of being drunk in a public place and had plead guilty to the complaint charging him with such offense. The order further recited that on March 23, 1965, appellant committed the offense of burglary upon a building occupied by Dolores Irene Stephens and further found that appellant had failed to report to the court, as required by the order granting probation on July 1 and January 1 of the years 1965 and 1966.

Appellant’s first and second contentions are that the record does not reflect that he was furnished with a copy of his terms of probation at the time the same was granted him, as was required by Article 781d, Vernon’s Ann.C.C.P., Section 6, in effect at the time he was granted probation. Appellant, testifying in his own behalf at the hearing on the motion to revoke, admitted that the court explained to him that he should not violate the law and should report.

His third contention is that because appellant plead guilty to the offense of drunkenness in the Corporation Court that this does not show that he violated a state law. No authority is cited in support of such contention, and we know of none.

His fourth contention is that the State has not shown a burglary because they failed to call the owner of the burglarized premises to show non-consent. Appellant in his own testimony testified that he did not have the consent of the owner when he stuck his head in a window and held a sack for his companion who was in the building. His testimony makes him a principal to the crime.

It is concluded that the trial court did not abuse his discretion in revoking the order granting probation.

The judgment is affirmed.


text:
    Ex parte Herman BEVERLY.
    No. 40926.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1967.
    Ramie H. Griffin, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Wendell Rad-ford, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Applicant, an inmate of the Department of Corrections, presented his application for writ of habeas corpus to the Honorable George D. Taylor, Judge of the Criminal District Court of Jefferson County, who held a hearing under the authority of Ex parte Young, 418 S.W.2d 824, and has certified the facts and his conclusion that the applicant is entitled to release.

Applicant was sentenced on June 17, 1964, in said court for a term of 99 years for the offense of burglary of a private residence at night, enhanced under Article 62, Vernon’s Ann.P.C., by a prior conviction of a felony of the same nature. A certificate from the Department of Corrections has been forwarded to this Court showing that applicant has credit for more than five years.

Under the holding of the majority of this Court in Ex parte Davis, 412 S.W.2d 46, at 52, applicant, having credit for more than five years, is entitled to be released.

It is so ordered.


text:
    Feliciano MORENO, Appellant, v. The STATE of Texas, Appellee.
    No. 40909.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Rehearing Denied Feb. 21, 1968.
    Marvin Foster, Corpus Christi, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery by assault; the punishment, ten years in the Department of Corrections.

Appellant was represented at the trial by court-appointed attorney. On appeal counsel of appellant’s choosing complains of the ineffectiveness of his court-appointed trial counsel and points to seven particular failures of trial counsel to take certain actions, such as, “did not cause the argument of counsel to be transcribed so that the record is silent as to any error that might have been committed during argument.” No question as to the sufficiency of the evidence or the admission or exclusion of evidence is raised.

This Court has recently discussed the rights of an indigent accused to the effective assistance of counsel in Caraway v. State, 417 S.W.2d 159, and the test set out in MacKenna v. Ellis, 5 Cir., 280 F.2d 592, was adopted:

“We interpret counsel to mean not error-less counsel, and not counsel judged to ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”

See also Williams v. Beto, 5 Cir., 354 F.2d 698, where it was said:

“As no two men can be exactly alike in the practice of the [legal] profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.”

We have examined the record, and while appellant’s present counsel might not agree with the manner in which appellant’s trial counsel handled the trial, there is nothing contained in the record which would indicate that the trial counsel was ineffective. See Ex parte Larkin, Tex.Cr.App., 420 S.W.2d 958, delivered November 29, 1967, for a partial listing of omissions by counsel which give rise to attacks on appeal on effectiveness of counsel. The contention that appellant was denied the effective assistance of counsel is not sustained by the record.

The judgment is affirmed.


author: DICE, Judge.

text:
    Alfred Tennyson YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 40896.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for unlawfully carrying a pistol; the punishment, a fine of .$100.

Appellant was represented at the trial and on this appeal by court-appointed counsel at county expense. A transcription of the court reporter’s notes has also been furnished appellant, upon his pauper’s affidavit, at the expense of the county.

Sgt. Jerry Collins, of the City of Little-field police department, testified that on the night in question he stopped the appellant after observing him drive his automobile upon a public street and highway and make a left turn without giving any signal for such turn. After being stopped, appellant got out on the right side of his car and Officer Collins instructed him to place his hands on top of the car. The officer testified that he then went to appellant’s automobile and observed some rifles on the back seat, one lying in plain sight and another being partially covered. A shotgun, completely covered, was also on the back seat. The officer stated that he then found a .30 calibre Mauser pistol under the front seat on the driver’s side. The pistol was loaded with nine shells.

Testifying in his own behalf, appellant stated that on the occasion in question he was taking the pistol to a repair shop to talk to the shop owner about having it repaired. Appellant also swore that he made a hand signal for a left turn before he was stopped by the officer.

The court in his charge instructed the jury to acquit the appellant if they found from the evidence or if they had a reasonable doubt thereof that on the occasion in question he was carrying the pistol while traveling or carrying it from his home to a shop or place of repair.

By their verdict, the jury chose to reject appellant’s defensive testimony.

We overrule appellant’s ground of error #6, which complains of the court’s refusal to grant an instructed verdict of not guilty.

In his grounds of error # 1, 2, 3, 4, and 5, appellant insists that the court erred in admitting the testimony pertaining to the search of his automobile and finding the pistol and other guns in the vehicle. He insists that such search without consent, warrant, or probable cause was illegal and in violation of his rights under Art. 1, Sec. 9, of our State Constitution, Vernon’s Ann. St., and the Fourteenth Amendment to the Constitution of the United States, and Art. 1.06 of the Vernon’s Ann.Texas Code of Criminal Procedure.

We need not pass upon the legality of the search, in view of appellant’s admission while testifying in his own behalf that the pistol was under the front seat of his automobile and that the other guns were on the back seat. Vogt v. State, 159 Tex.Cr.R. 11, 258 S.W.2d 795; Bernard v. State, 172 Tex.Cr.R. 52, 354 S.W.2d 157; and Boles v. State, Tex.Cr.App., 416 S.W.2d 431.

Appellant complains in his seventh and last ground of error that the court erred in overruling his objections to the court’s charge. He objected to the charge as a whole on the ground that the court did not properly charge the jury as to the offense of carrying a pistol; further: that paragraph 2 of the court’s charge as to guilt or innocence did not properly comply with the statute as to the offense charged; that the charge did not properly charge the jury and confused them as to what they could consider in arriving at the verdict, as set out in paragraph 8 of the court’s charge; and that paragraphs 5 and 6 of the court’s charge shifted the burden of proof and required the defendant to prove his innocence.

Such objections are too general to comply with Art. 36.14, C.C.P., and to present error for review. Gamez v. State, 171 Tex.Cr.R. 639, 352 S.W.2d 732; Washington v. State, 171 Tex.Cr.R. 284, 349 S.W.2d 724.

No error appears in the charge which was calculated to injure the rights of appellant or deny him a fair and impartial trial. Art. 36.19, C.C.P.

We observe that the court’s instruction to the jury, in paragraph 6, to disregard any evidence which they found was obtained in violation of any provisions of the Constitution and laws of this State or the United States was authorized by Art. 38.23 of our Code of Criminal Procedure.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Ex parte Barbara Delores HART. Ex parte Willard Lee JOBE.
    Nos. 41011-41014.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1967.
    Charles W. Tessmer, Frank S. Wright, Dallas, Donald R. Scoggins (On Appeal Only), Dallas, for appellants.
    Henry Wade, Dist. Atty., Malcolm Dade, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

These are appeals from an order in a habeas corpus proceeding refusing bail after indictment charging both appellants with murder and robbery.

Though heard together, each appellant was represented by different attorneys. No brief has been filed in behalf of appellant Jobe. We have concluded that the facts aré sufficient to support the trial court’s denial of bail as to him.

As to appellant Hart, a 34 year old housewife, another question is presented. The test in habeas copus proceedings refusing bail has been set out in our recent opinion in Ex parte Paul, 420 S.W.2d 956, delivered November 29, 1967, which is adopted in this case by reference.

As we said in Ex parte Paul, supra: “It must be remembered that to affirm an order denying bail this Court must find that the facts show a case of ‘proof evident’ including the fact that upon a trial of this case a dispassionate jury would not only convict but would assess the death penalty.”'

After careful consideration of the evidence in the light of the briefs and oral argument presented, we cannot so conclude. The judgment of the trial court denying bail to appellant Hart is reversed and bail is granted in the sum of $25,000.00.

It is so ordered.

DISSENTING OPINION IN NO. 41,011.

WOODLEY, Presiding Judge.

In this case appellant, referred to in the majority opinion as a 34 year old housewife, sought relief by habeas corpus from confinement and restraint by virtue of the indictment in Cause No. C-675155-K pending in Criminal District Court No. 4 of Dallas County, Texas.

This indictment alleged that appellant and 21 year old Willard Lee Jobe, acting together on or about November 3, 1967, did voluntarily and with malice aforethought kill Joe C. Williams by shooting him with a gun and the district attorney has given notice that the state will seek the death penalty.

After hearing the evidence the trial court overruled appellant’s contention that this was not a case where the proof of guilt was evident and the contention that a dispassionate jury would not assess capital punishment “because of the evidence with reference to the relationships of the parties involved.”

The evidence should be held sufficient to sustain the judgment of the trial court remanding appellant as well as her co-defendant to jail without bond to answer the indictment charging them with the offense of murder with malice.

BELCHER, J., joins in the above dissent.


author: BELCHER, Judge.

text:
    Ervin Leroy FOSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40796.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Rehearing Denied Jan. 17, 1968.
    Ney Wade, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kerry P. Fitz-Gerald, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for driving while intoxicated upon a plea of guilty before the court; and the punishment was assessed at three days in jail and a fine of $150.

The record reveals that the appellant was represented by counsel at the trial and on appeal.

No transcript of the evidence or formal bill of exceptions accompany the record.

In his brief, the appellant asserts that the trial judge should have warned him of his right to trial by jury and of the consequences of his plea of guilty.

Upon a plea of guilty in a misdemeanor case the defendant may demand a jury or if he does not, the punishment may be assesssed by the court, either upon or without evidence, at the discretion of the court. Carter v. State, Tex.Cr.App., 400 S.W.2d 571; Bruce v. State, Tex.Cr.App., 419 S.W.2d 646, dated October 25, 1967.

It is not necessary that the court admonish the accused of the consequences of his plea of guilty m a misdemeanor case. Townsel v. State, 162 Tex.Cr.R. 221, 283 S.W.2d 944.

The complaint, information, judgment and sentence all appear to be regular.

The judgment is affirmed.


text:
    Joe Curtis JACKSON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40788.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Harold Klein, Houston, for appellants.
    Ogden Bass, Dist. Atty., Wallace N. Shaw, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal by Horace G. Cook and Kathryn B. Cook as sureties upon the bail bond of Joe Curtis Jackson from a final judgment of the County Court of Brazoria County upon a forfeiture of said bond. The judgment final was rendered and entered on July 26, 1967.

Judgment nisi was entered May 15, 1967. Such a judgment on a bail bond is interlocutory and conditional. Said judgment provided that it would be made final unless good cause be shown why the appellant did not appear.

It is evident from the record that upon the hearing of the judgment final, the instanter bail bond in the sum of $300 and the judgment nisi marked Exhibit B which are included in the transcript; were introduced in evidence. They appear to be regular and valid and sufficiently establish the state’s case.

In answer to the judgment nisi, the sureties sought to prove that their principal had been charged and arrested for another criminal offense and was confined continuously in jail on such charges from May IS, until after July 27, 1967; and that such confinement prevented the appearance of the principal in court and exonerates them.

To show such confinement of the principal in jail, the appellants attached to their brief filed in this court on October 20, 1967, an affidavit to that effect signed by an employee of the sheriff’s office in Harris County. There is no probative evidence which can be considered in support of appellants’ position.

In the absence of proof showing that the principal was confined in jail at the time the judgment nisi was entered, appellants’ contention cannot be sustained.

No error appearing, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Thomas Joseph BRIDGES, Appellant, v. The STATE of Texas, Appellee.
    No. 40840.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 24, 1968.
    S. John Odom, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from a misdemeanor conviction for the offense of driving a motor vehicle upon a public highway while intoxicated.

Trial was before a jury on a plea of not guilty and the jury found appellant guilty and assessed his punishment at one year in jail and a fine of $200.

The case was tried on October 25, 1966. The record on appeal, approved by the trial judge on February 9, 1967, contains no transcript of the evidence and no formal bill of exception. It does contain a requested charge which the court refused.

The refusal of such requested charge is relied on in support of the ground of error which complains that “the trial court erred in refusing the appellant a bifurcated trial on a plea of not guilty to a jury in a misdemeanor case in accordance with Art. 37.07 C.C.P. and Art. 36.01 C.C.P.”

Art. 36.15 Yernon’s Ann.C.C.P. provides that the defendant may, by a special requested instruction, call the court’s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court’s charge shall be necessary to preserve any error “reflected by any special requested instruction which the trial court refuses.”

We find nothing in the requested charge which was not included in the charge which was read to the jury. Had it been incorporated in the court’s main charge pursuant to Art. 36.15, supra, it would have been but a repetition of a portion of the charge other than that relating to the assessment of punishment.

It is well settled that failure of the trial court to give instructions covered in the main charge is not error. Numerous cases so holding are listed under Art. 36.15, Notes 78 to 87 inclusive, V.A.C.C.P.

The special requested charge asked only that such charge be given. It did not in any way call the trial court’s attention to any error or omission in the charge originally drafted nor did it indicate appellant’s desire for a bifurcated trial. Further, it did not request that such charge be given in lieu of any portion of the court’s original charge. Even if it had been given, repetitious as it was, it would not have resulted in a bifurcated trial.

Art. 37.07, supra, has been amended since this case was tried. It was construed by this court in Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, and held not to apply where the plea of guilty was entered in an ordinary felony case or in capital cases where the plea was not guilty and the state was seeking the death penalty. Jones v. State, Tex.Cr.App., 416 S.W.2d 412; Williams v. State, Tex.Cr.App., 415 S.W.2d 917.

The Attorney General’s Opinion C-587, dated January 25, 1966, concluded that the terms and provisions of Art. 37.07 of the 1965 Code, relating to the retprn of a verdict and the assessment of punishment, applied to misdemeanor cases tried by a jury in the county courts.

Both the Attorney General’s Opinion and the opinions of this court in the cases above mentioned pointed out the difficulties and necessity of construing Art. 37.07, supra. All of these have now been removed by the 1967 amendment.

No injury by reason of a single trial and verdict is shown.

By motion filed in this court November 15, 1967, appellant seeks to have this court direct the district clerk to transmit the statement of facts which was not prepared, approved, or designated to be made a part of the record on appeal prior to the approval of such record by the trial judge on February 9, 1967.

Art. 40.09(2) V.A.C.C.P. expressly provides that failure of the clerk to include designated matter not requested within the time allowed is not ground for complaint on appeal.

The judgment is affirmed.


text:
    Wilbert Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 40881.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    See also Tex.Cr.App., 414 S.W.2d 183.

      Thomas K. Bamford, Dallas (Court appointed attorney), for appellant.
    Henry Wade, Dist. Atty., John Emmett and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery with firearms; the punishment, forty-five years.

Trial was to a jury upon appellant’s plea of guilty.

Appellant’s sole ground of error on appeal is that the proof offered by the state was insufficient to show his guilt, the principal contention being that there was a fatal variance between the pleading and the proof as to the middle name of the person alleged to have been robbed.

Recently, in Miller v. State, Tex. Cr.App., 412 S.W.2d 650, in passing upon a similar contention, we pointed out that it was the well-established rule that a plea of guilty admits the existence of all facts necessary to establish guilt, and in such cases the introduction of testimony by the state is for the jury’s benefit in fixing punishment. It was also pointed out that the requirement of Art. 1.15 of the Vernon’s Ann.Code of Criminal Procedure that evidence be offered by the state showing the guilt of a defendant is applicable only in those cases where the defendant, upon entering a plea of guilty in a felony case less than capital, waives his right to a trial by jury.

We observe, without passing upon appellant’s claim of variance as to the middle name of the injured party, that had there been a variance, as contended, such would have been immaterial. 30 Tex.Jur. 2d 650, Sec. 65; Scott v. State, Tex.Cr.App., 368 S.W.2d 216; Ex parte Mackerman, Tex.Cr.App., 376 S.W.2d 350.

The ground of error is overruled.

The judgment is affirmed.


author: ONION, Judge.

text:
    James M. BURNS, Appellant, v. The STATE of Texas, Appellee.
    No. 40835.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Rehearing Denied Jan. 17, 1968.

      No Attorney of record on appeal, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Sodomy; the punishment, seven (7) years confinement in the Texas Department of Corrections.

Trial commenced before a jury on May 1, 1967, with appellant being represented by employed counsel of his own choice. After a verdict of guilty, punishment was assessed by the court at the request of the appellant. Sentence was pronounced on May 15, 1967, and notice of appeal was given on that date, at which time appellant was represented by different counsel, but also one of his own choice. No question of indigency appears. The record shows that appellant has been enlarged on an appeal bond with sureties.

On August 9, 1967, the district clerk notified appellant’s counsel by certified mail of completion of the record. See Article 40.09, Sec. 7, Vernon’s Ann.C.C.P. On August 25, 1967, the trial court approved the record, noting that no objections had been offered thereto. Within thirty (30) days after the approval of the record by the court, the defendant failed to file his appellate brief in the trial court assigning his grounds of error. Nothing in the record indicates that the trial court granted an extension of time in which to file such a brief.

On October 9, 1967, the State filed its brief noting that the appellant had failed to file its brief in the trial court. A copy of such brief was personally delivered to appellant’s counsel.

Thereafter the trial court, noting that the appellant had failed to file a brief in the trial court, performed the duty required of him in accordance with Article 40.09, Sec. 12, V.A.C.C.P., and such record was transmitted to this Court.

Upon receipt of the record the Clerk of this Court notified appellant’s counsel of the date of submission of this cause and requested that he notify the Court if he desired oral argument. No response was received.

No brief having been filed by the appellant in the trial court and this Court having found no unassigned error in its examination of this 191 page record which in the interest of justice we would be called upon to review, the judgment is affirmed.


text:
    Ronald Dewayne BRATT, Appellant, v. The STATE of Texas, Appellee.
    No. 40723.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    Herbert Green, Jr., Dallas (on appeal), for appellant.
    Henry Wade, Dist. Atty., William S. Mason, Jr., and Michael M. Blend, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Judge.

The prior opinion is withdrawn.

On original submission the absence of a sentence in the record was overlooked.

In the absence of a sentence, this court is without jurisdiction to entertain the appeal. Marcom v. State, 387 S.W.2d 386.

The appellant’s motion for rehearing is granted, the opinion affirming the conviction is set aside, and the appeal is dismissed.


text:
    Jose Esquivel ESTRADA, Appellant, v. The STATE of Texas, Appellee.
    No. 40837.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.

      Howard Hunt, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, thirty years.

It is undisputed that only the appellant, his wife (the deceased), and her daughter, Roberta Gandara, and several small children who were asleep, were in the house when the deceased suffered the injuries resulting in her death.

The testimony of the state reveals that the appellant inflicted the injuries causing the death of the deceased by the use of an instrument referred to in the indictment and in the evidence as a spade fork.

Appellant’s testimony shows that the spade fork was in the kitchen during an argument and difficulty between him and his wife, and that the prongs of the spade fork stuck in her head when she fell to the floor, accidentally striking her head on its prongs.

The jury resolved the issues of fact against the appellant and it is concluded that the evidence is sufficient to support their verdict.

From the foregoing testimony, it is evident that the court’s refusal of appellant’s requested charge on circumstantial evidence was not error.

The court’s charge instructed the jury that no act done by accident is an offense against the law. Although, in charging on accident, the application of the law to the facts was not stated as preferred by the appellant, it sufficiently protected the rights of the appellant in light of the evidence and the requested charge. No error is presented.

A fatal variance between the allegations of the indictment and the proof is urged as a ground for reversal.

The indictment charged that the killing was with a “spade fork.”

The appellant insists that the testimony shows that the term “spade fork” is ambiguous and an impossibility and that no such instrument exists in fact; that the terms “spade” and “fork” are completely repugnant one to the other and completely different in their specific characteristics, and in the manner of their use.

Testimony was offered describing a “spade fork” and showing its ordinary and common usage.

The appellant testified on direct examination in part as follows:

“Q All right. When you got up what did you see?
“A Well, my wife was — had a spade fork.
“Q Where did she get it ?
“A She got it by the west side of the building.”

No motion was made to quash the indictment.

The instrument which caused the injuries resulting in the death of the deceased according to the state and the appellant was introduced in evidence and exhibited to the jury.

The court charged the jury that if they believed the killing was not committed with a spade fork as alleged, or, if they had a reasonable doubt thereof to acquit the appellant.

The evidence was sufficient to authorize the jury to conclude that the instrument before them was a spade fork.

Notwithstanding the testimony showing the technical and basic structure and the use of the instrument in question, it is concluded that there is no fatal variance between the allegations and the proof. No error is presented.

Error is urged on the ground that the testimony of Dr. Santos, Bexar County Medical Examiner, failed to identify the body of the deceased as that of the person alleged in the indictment.

The testimony of Dr. Santos in connection with the testimony of the appellant and Roberta Gandara, that of the officers who came to the scene and accompanied the deceased to the hospital, and that of Dr. Zorilla who first attended and operated on the deceased, and who was present for a brief time while Dr. Santos examined the body, sufficiently identifies the body of the deceased as that of the person alleged in the indictment.

Appellant urges error on the ground that the court commented on the weight of the evidence following the showing of a movie film of the draperies and doorways between Roberta’s room and the kitchen, when one juror informed the court that all he “saw was a policeman stepping aside, and it (film) went off,” and the court replied, “That was all that was shown.”

Following a re-showing of the film, the jury upon inquiry by the court indicated that they all saw it.

Further, at this time the court instructed the jury that “any remarks that the Court may have made in ruling on evidence or any objections made or conversations between the attorneys and the Court; they are not a part of the evidence and are not to be considered by you as such and you will entirely disregard the same in your deliberations for any purpose whatsoever.”

The film was offered on the fact issue of what could or could not be seen in the kitchen from Roberta’s room at the time in question.

From all the evidence and the fact that the film was again shown to the jury and the court’s instructions as above set out, no error is perceived.

The state’s argument to the jury is urged as a ground for reversal. In his brief, the appellant contends that state’s counsel testified in his argument that Dr. Zorilla was a dedicated man; that this was the most grisly and horrible murder case he had prosecuted during his ten years as a prosecuting attorney; and that the state’s attorney was derelict in his duty in waiving the death penalty.

From a careful consideration of the jury argument complained of, and in connection with all the argument in light of the evidence, it is concluded that no error is shown.

The judgment is affirmed.

ONION, J., not participating.


author: PER CURIAM. ONION, Judge. DICE, Judge.

text:
    Jerry Charles HERBORT, Appellant, v. The STATE of Texas, Appellee.
    No. 40536.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    On Motion to Reinstate Appeal Oct. 11, 1967.
    On Second Motion to Reinstate Appeal Nov. 29, 1967.
    Rehearing Denied Jan. 17, 1968.

      Sam L. Harrison, San Antonio, for appellant.
    Richard Hoerster, County Atty., Fred-ericksburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

This is a conviction of appellant for operating a motor vehicle while his license was suspended, with punishment assessed at a fine of $250.

The record on appeal does not include sentence pronounced by the trial court, as required by Art. 40.09-1, Vernon’s Ann.C.C.P.

The appeal is dismissed.

OPINION ON MOTION TO REINSTATE APPEAL

ONION, Judge.

On original submission this appeal was dismissed for lack of a sentence pronounced as required by Article 40.09, Sec. 1, Vernon’s Ann.C.C.P. See also Articles 42.02, 42.04, V.A.C.C.P.; Clemons v. State, Tex.Cr.App., 414 S.W.2d 940.

It now appears that sentence was pronounced on July 20, 1967. However, we do not find in the record any notice of appeal given or filed after the pronouncement of such sentence.

Article 44.08(c), V.A.C.C.P. provides that in all cases, except where the death penalty has been assessed or the imposition of the sentence suspended in probation cases, notice of appeal shall be given or filed within ten (10) days after sentence is pronounced.

It does appear that notice of appeal was given upon the entry of the judgment on November 22, 1966, but the giving of notice of appeal prior to the pronouncement of sentence is ineffective under the 1965 Code of Criminal Procedure. Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854.

We observe, however, that Article 44.08(e), V.A.C.C.P., provides that the trial court, for good cause shown, may permit the giving of notice of appeal after the expiration of such ten days mentioned in Article 44.08(c), supra. Upon a showing of good cause, the trial court in the case at bar may still permit the giving of notice of appeal, and in such event, proceedings may then be had in the trial court pursuant to Article 40.09, V.A.C.C.P.

The motion to reinstate the appeal is overruled.

OPINION ON SECOND MOTION TO REINSTATE APPEAL

DICE, Judge.

By supplemental transcript it is shown that notice of appeal has been given by appellant with permission of the court, under the authority of Art. 44.08(e), Vernon’s Ann.C.C.P., after the expiration of ten days from pronouncement of sentence.

Accordingly, the appeal is reinstated.

The record on appeal does not contain the transcription of a court reporter’s notes.

By his first ground of error, appellant complains of the court’s action in refusing his request to be furnished a court reporter in the case. Such action, appellant contends, constituted a denial of his statutory and constitutional rights.

No statute or constitutional provision is cited by appellant in support of his contention. We know of none.

Art. 2321, Vernon’s Ann.Civ.St, provides for the appointment of an official court reporter by each district and criminal district judge.

Art. 2327, V.C.S., provides:

“When either party to a civil case pending in the county court or county court at law applies therefor, the judge thereof shall appoint a competent stenographer, if one be present, to report the oral testimony given in such case * *

Art. 2327d, V.C.S., provides that the judges of the county courts of this state “may appoint an official shorthand reporter for such Court * *

We find no statutory or constitutional provision which requires that the judge of a county court, established under Art. V., Sec. 15, of our Constitution, Vernon’s Ann.St., appoint a court reporter in a criminal case. The ground of error is overruled.

In his second ground of error, appellant insists that the court should have granted his motion to quash the complaint and the information because the pleading “did not recite under which article the license was suspended.”

No motion to quash the complaint or the information is found in the record. We have, however, examined the same and find that each pleading alleged that “said operator’s license was duly and legally suspended pursuant to Section 22 of Article 6687b, Vernon’s Annotated Civil Statutes * * The ground of error is overruled.

Appellant’s remaining ground of error, #3, complains that the evidence is insufficient to sustain the conviction.

In the absence of the transcription of a court reporter’s notes constituting a statement of facts on appeal or an agreed statement of the facts as provided in Art. 40.09, C.C.P., this court cannot pass upon the question of sufficiency of the evidence. Castro v. State, Tex.Cr.App., 379 S.W.2d 906.

The judgment is affirmed.


text:
    Servando SANDOVAL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40767.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 24, 1968.

      F. B. Godinez, Jr., Pharr, Nago Alaniz, San Diego, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is a violation of Article 802c, Vernon’s Ann.P.C., charging that appellant, while intoxicated, drove his automobile into a parked wrecker, thereby severing the leg of the son of the driver of the wrecker. The punishment is three years.

Appellant’s first ground of error is that the State failed to prove that appellant was the driver of the automobile which caused the injury. Patrolman Zuniga, who arrived upon the scene of the collision shortly after it had occurred, testified that he walked up to appellant and asked him “what happened”, and appellant “said he was coming — He was driving that car and was coming south and he had a green light and those people got in front of him and he had the accident.”

It was abundantly established that it was not a green light, but rather a blinking red light, that appellant was intoxicated and was at the scene, and that the automobile which caused the injury was registered in appellant’s name and that no one else was with him in his automobile.

These facts authorize an affirmance of this cause under the authority of the holding of this Court in Thomas v. State, 162 Tex.Cr.R. 268, 283 S.W.2d 933, and Hughes v. State, 161 Tex.Cr.R. 300, 276 S.W.2d 813.

Appellant’s second ground of error seems to be that he was never taken before a magistrate. We fail to see the importance of such contention. He was clearly not under arrest at the time he made the statement quoted above, because Officer Zuniga asked him “what happened,” clearly indicating that he did not at that juncture know who was responsible for the accident.

Finding no reversible error, the judgment is affirmed.


text:
    Ex parte James Wesley TOPPINGS. Ex parte Wesley Eugene REYNOLDS.
    Nos. 41015, 41016.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.

      Howard B. Law, William C. Dever, Dallas, for petitioners.
    Henry Wade, Dist. Atty., Malcolm Dade, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

These appeals are from judgments entered in a habeas corpus proceeding.

The appellants contend that the court erred in requiring bond, and also erred in requiring excessive bail.

The appellants stand charged by separate indictments with the possession of burglary tools with two prior convictions for non-capital felonies alleged for enhancement.

At the conclusion of the joint hearing, the court fixed the bail for Toppings at $5,000 and for Reynolds at $3,000. From these orders the appellants gave notice of appeal.

The fact that appellants are under indictments for a felony is sufficient ground to require bail. Ex parte Mauck, 158 Tex.Cr.R. 200, 254 S.W.2d 128; Ex parte Oliver, Tex.Cr.App., 374 S.W.2d 894.

There is no evidence that an effort has been made by either of the appellants to furnish bail in the amounts fixed following the habeas corpus hearing. In the absence of such evidence, the complaint of excessive bail is not presented. 8 Tex.Jur. (2) 155, Sec. 33; Ex parte Gillmore, Tex.Cr.App., 369 S.W.2d 356; Ex parte Vernon, Tex.Cr.App., 397 S.W.2d 224.

The judgments are affirmed.