author: WALKER, Justice. NORVELL, Justice POPE, Justice

text:
    A. G. BARCLAY, Petitioner, v. C. C. PITTS SAND AND GRAVEL COMPANY, Respondent.
    No. A-10199.
    Supreme Court of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 17, 1965.

      Short & Smith, Wichita Falls, for petitioner.
    Jones, Fillmore, Robinson & Lambert, Wichita Falls, for respondent.
   WALKER, Justice.

This suit was brought by A. G. Barclay, petitioner, to recover the damages he sustained when his automobile ran into a truck owned by C. C. Pitts, respondent, who is engaged in business under the name of C. C. Pitts Sand and Gravel. Respondent’s employee, Joe Bollman, was the driver of the truck. The jury acquitted petitioner of contributory negligence and found that the collision was proximately caused by Boll-man’s failure to keep his truck under proper control. Judgment was rendered on the verdict in petitioner’s .favor, but the Court of Civil Appeals concluded-that the proper control issue was an improper general sub-; mission of negligence. The judgment, of the trial court was accordingly reversed and. the cause remanded for a new trial. 377 S.W.2d 750.

) We granted petitioner’s application for writ of error to consider the holding on which the Court of Civil Appeals based its judgment. Respondent had a number of points of error there which, if sustained, would have required that judgment be rendered in his favor. These points were overruled by the intermediate court, and the questions presented thereby were not brought here by application for writ of error.

The collision occurred at night on two-lane U. S. Highway No. 62 in the State of Oklahoma. Petitioner was driving north. Ahead of him and proceeding in the same direction were two loaded trucks owned’ and used by respondent in his business of hauling sand, gravel and crushed stone. It was raining and the asphalt pavement of the highway was wet and slick. The lead truck went out of control on a sharp and dangerous curve about 800 feet north of the crest of a hill. It jackknifed and came to a stop with the trailer in the east lane of the pavement and the tractor on the shoulder and in the ditch to the east.

Joe Bollman, who was driving the second truck, was some distance behind when this occurred. After passing the crest of the hill he saw the first truck blocking the highway ahead of him and attempted to “shut down” his own vehicle. The second truck then went out of control and jackknifed. It stopped at a point about 150 feet north of the crest of the hill with the trailer at right angles to and completely blocking the east traffic lane of the highway. The rear of the trailer was some two or three feet west of the center of the pavement, and the tractor was facing in a northwesterly direction. Before Bollman could get out of the truck, petitioner’s automobile topped the hill and started down the slope to the north. Petitioner applied his brakes when he saw the second truck, but was unable to stop and skidded into the side of the trailer. He was seriously injured and his automobile was damaged extensively in the collision.

Petitioner alleged that Bollman was negligent in driving at an excessive rate of speed, in failing to apply the brakes on his truck properly, in driving with defective brakes, in failing to keep the truck under proper control, and in turning sharply to the left shortly after he drove over the hill. The primary negligence issues submitted by the trial court, however, dealt only with excessive speed, defective brakes and proper control. No additional issues were requested by petitioner. The jury refused to find that Bollman operated the truck at excessive speed or with defective brakes,’ but found in response to Special Issue No. 7 that he “failed to keep the truck under proper control at the time and on the occasion in question.” Special Issue No. 8, which inquired whether such failure was a proximate cause of the collision, was also answered in the affirmative. The term “proper control” was defined in the charge as “such control that a person of ordinary prudence would have kept under the same or similar circumstances.” Respondent objected to Special Issue No. 7 on the ground that it constituted a general submission and combined several elements in a single issue. He also pointed out that in view of the specific issues concerning excessive speed and defective brakes, the proper control inquiry was a double submission of these two theories of negligence.

Special Issue No. 7 with its accompanying definition is a typical proper control submission. The issue is undoubtedly quite broad and embraces any and every act or omission on the part of a driver which affects his control of the vehicle he is operating. It has been held, for example, to include excessive speed, failure to apply brakes, defective brakes, failure to place automobile in neutral when it stalled, driving too slowly, and failure to turn to the right or left. See Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Choate v. Meredith, Tex.Civ.App., 330 S.W.2d 548 (writ ref. n. r. e.); Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877 (writ ref. n. r e.). See also Pope, Broad and Narrow Issues, 26 Texas Bar Jour. 921. When all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266. If it is given in that situation, moreover, the specific findings will control what would otherwise be a conflicting answer to the proper control issue. See Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369 (writ ref. n. r. e.).

Petitioner recognizes that the proper control inquiry is general in the sense that it encompasses a number of specific acts or omissions. He argues that it is sanctioned by long usage, and that there are fact situations such as the present case in which submission of the issue should be within the discretion of the trial court The facts here are somewhat unusual in one respect. Unlike most of the cases where proper control has been submitted, Boll-man’s truck actually went completely out of control and any want of care on his part was causally related to the collision only in so far as it contributed to his loss of control. These circumstances do not, however, make the proper control issue any less general. And while a vehicle may go out of control as the result of negligence on the part of the driver, loss of control is not in itself an act or omission that might properly be characterized as want of ordinary care.

When a case is submitted on special issues, the court is required to give “the controlling issues made by the written pleadings and the evidence.” Rule 279, Texas Rules of Civil Procedure. As pointed out in the article cited above, this Rule has been given one meaning in negligence actions and a somewhat different meaning in other types of cases. Reasonably broad issues embracing several distinct and essential elements of a cause of action or defense have been upheld in a number of non-negligence suits. Even in negligence cases there are a few more or less general inquiries which may be submitted without fragmentation into their factual compon-' ents. Examples are proper lookout, Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, Traywick v. Goodrich, Tex.Sup., 364 S.W.2d 190; attractive nuisance, Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587; and discovered peril, Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112. It is nevertheless well settled that as a general rule and when the question is properly raised, special issues relating to either primary or contributory negligence should be restricted to specific acts and omissions which have been raised by the pleadings and evidence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613.

Proper control issues have been submitted in many automobile negligence cases, but no decision has been found where the issue was attacked as a general submission encompassing several specific acts or omissions. While the effect of the issue when given without objection has been considered on a number of occasions, the issue itself has never been approved and upheld against such attack by any of our appellate courts. Professor Hodges takes the position that it should not be given if proper objection is made. Hodges, Special Issue Submission in Texas, § 39. We agree with this conclusion. The usual proper control issue is almost but not quite as broad as the submission in Kainer v. Walker, supra. In some but not all cases it encompasses every negligent act and omission raised by the evidence. Petitioner is undoubtedly correct when he says that its use would enable the trial court to eliminate many specific issues, but this end will be better served by resorting to an even more general submission. If one party wishes to submit negligence generally and the adverse party has no objec- • tion, the jury can be asked whether the latter failed to exercise ordinary care as was done in the Kainer case. This will not only make it unnecessary to submit any specific negligence issues but will also avoid the confusion that results from giving an issue which is neither truly specific nor altogether general and which frequently includes acts or omissions that are submitted specifically in the same case.

It is doubtful that a jury of laymen will always understand the scope and import of the proper control issue as it is usually submitted. The jurors may not realize for example, that it should be answered in the affirmative if they conclude that the vehicle was being operated at an excessive rate of speed or with defective brakes. And any attempt to define “proper control” in terms of the specific elements ■ raised by the evidence will probably lead to many reversals that would be unnecessary if negligence were submitted either specifically or globally. It is also clear that the jurors might return an affirmative answer to the proper control inquiry even though they were unable to agree that the driver in question was guilty of any particular act or omission. In the ordinary case moreover, a party who wished to attack such a finding as having no support in the evidence would be faced with an almost insurmountable burden in the appellate court. He should not be required to assume that burden unless he has consented to a general submission by his failure to object. In our opinion an inquiry concerning proper control simply has no place in the charge when appropriate objection is made by the party against whom it would otherwise be. given.

Petitioner also says that if Special Issue No. 7 is too general, the fault lies in the definition of “proper control.” He contends that respondent waived any right he may have had to complain of the issue on that ground when he did not object to the definition. There is no merit in this contention and the second point of error is overruled. The scope of the proper control issue was not broadened and could not reasonably be narrowed by the definition, which was included in the charge to avoid the necessity of giving a separate issue inquiring whether Bollman’s failure to keep the truck under proper control was negligence.

The judgment of the Court of Civil Appeals is affirmed.

NORVELL, Justice

(concurring).

In discussing ultimate fact issues we may easily drop into a confused metaphysical situation similar to that encountered when we attempt to distinguish between a fact and a conclusion. The rationale of the rule of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517 (1922) is not invariably followed even in the field of negligence law. The accepted method of submitting discovered peril is obviously inconsistent with the Fox concept of “specific acts of negligence alleged and proven,” and this is demonstrated by the issue inquiring if a locomotive engineer “failed to exercise ordinary care in the use of the means at hand consistent with the safety of himself and the train he was operating and the occupants thereof, to avoid the injury * * *

Similarly the issue of the failure to keep a vehicle under proper control is contrary to the argument of the Fox case, hut it need not necessarily he condemned for that reason. In Northeast Texas Motor Freight Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942) this Court held that the issue of whether a driver “on the occasion in question * * * failed to have his truck under proper control,” encompassed inquiries as to whether the driver was operating his vehicle “at such rate of speed as that he could not stop it within the range of vision,” and as to whether such driver “failed to reduce its speed upon meeting the blinding lights of an approaching automobile.” This Court said that “[t]he issue given (failure to have the track under proper control) and the two refused (above set forth) related alike to the manner in which (the driver) operated his truck immediately before” the collision and that “[t]he several inquiries under consideration were merely various phases and different shades of meaning of one ultimate * * * fact issue, that is, lack of proper control * * *.”

In Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951 (1944) this Court in effect held that the questions of whether the defendant failed to have the brakes of his automobile in good working order and whether he was negligent in causing his automobile to move to and upon his left-hand side of the highway were encompassed within the issue of whether the defendant failed to keep his automobile under proper control.

The cases of Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266 (1944) and Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143 (1946) hold that when the specific elements of lack of proper control are given it is not necessary to submit the broader issue. In Blaugrund, however, it is olearly intimated that excessive speed immediately before the collision is an element of lack of proper control. In the Triangle Cab Company case it was held that a submission of the “lack of proper control” issue was unnecessary as the Court had submitted (1) failure to keep a proper lookout (2) excessive speed (3) operating the motorcycle, too close to the rear of a taxicab and (4) a failure to turn the motorcycle to the left. The failure to keep a proper lookout is not an element of proper control and I do not understand the Triangle Cab case to so hold. The opinion simply lists the issues given and states that all the elements of proper control raised by the evidence were submitted by the specific issues given.

When the Blaugrund and Triangle Cab cases are read with Northeast Motor Freight Lines v. Hodges and Schumacher v. Holcomb, a rather definite concept of “lack of proper control” emerges. The critical time involved in the inquiry is that existing immediately before the collision. Lack of proper control at such time includes the following elements, (1) the driving of a motor vehicle in a defective condition which renders it difficult or impossible for a driver to properly control the car under the attendant circumstances, such as driving an automobile with defective brakes, (2) the driving of a motor vehicle at such speed as renders its proper control difficult or impossible, such as the driving of a vehicle at a rate of speed that would prevent the driver from stopping the car within the range of his vision, or by following too closely behind another vehicle, and (3) the failure of the driver to properly guide the course of the vehicle when collision became imminent, such as failure to drive the car either to the right or to the left.

I recognize that the “lack of proper control” issue is global in nature and that there is considerable force to the argument that this type of issue should not be used in a special issue practice. But we have good precedent for the use of broad and inclusive issues under certain circumstances and it is a desirable objective to restrict the number of issues to be given in negligence cases. I would not extend the scope of the lack of proper control issues beyond those elements which have heretofore been recognized by this Court and those which are fairly encompassed within such opinions. I would, however, hold it permissible to submit the “lack of proper control” issue provided it be restricted by proper definition to such of the elements above mentioned as are raised by the evidence.

So far as the judgment in this particular case is concerned I concur in the Court’s action in affirming the judgment of the Court of Civil Appeals which reverses the judgment of the trial court. This, for the reason that at least two important elements of the “lack of proper control” issue were specifically submitted, namely, driving the truck with improper brakes and a failure to properly steer such truck when collision was imminent. While, in my opinion, a party should be allowed to submit the broad “lack of proper control” issue, he should not also be permitted to submit specific issues inquiring as to the various elements encompassed within the concept of proper control. This would be obviously unfair. A party would have an opportunity to prevail upon the answers to specific issues and failing in this, contend that nevertheless he was entitled to prevail upon an unsub-mitted element of lack of proper control should he receive a favorable answer to •such broader issue. A litigant must either go global or specific. He cannot go both ways.

POPE, Justice

(concurring).

It is a solemn moment when we overturn a general practice that has been acceptable to the bench and bar for more than a quarter of a century. The failure to exercise proper control has been repudiated as an issue in personal injury litigation though it has become a substantial part of our trial practice. I have failed to find any previous judicial criticism of the issue. On the contrary it has been either expressly or tacitly sanctioned by many judges who have carefully considered it.

It is my judgment that we unduly confuse the bench and bar when we sweep aside a practice that has been approved or condoned in North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Gray v. Newberry, Tex.Civ.App., 380 S.W.2d 22, 23, ref. n. r. e.; Brown v. Vigeon, Tex.Civ.App., 367 S.W.2d 727, ref. n. r. e.; Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369, ref. n. r. e.; Martinez v. Welcome, Tex.Civ.App., 335 S.W.2d 254, ref. n. r. e.; Choate v. Meredith, Tex.Civ.App., 330 S.W.2d 548, ref. n. r. e.; Shifiett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220; Anderson v. Garza, Tex.Civ.App., 311 S.W.2d 910, ref. n. r. e.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, ref. n. r. e.; Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, ref. n. r. e.; Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, ref. n. r. e.; Serna v. Cochrum, Tex.Civ.App., 290 S.W.2d 383, ref. n. r. e.; Holly v. Bluebonnet Express Co., Tex.Civ.App., 275 S.W.2d 737, ref. n. r. e.; Fullingim v. Dunaway, Tex.Civ.App., 267 S.W.2d 483; Tripp v. Watson, Tex.Civ.App., 235 S.W.2d 677, ref. n. r. e.; Fisher v. Leach, Tex.Civ.App., 221 S.W.2d 384, ref. n. r. e.; Justiss v. Naquin, Tex.Civ.App., 137 S.W.2d 72, error dism. judg. cor.; Hampton Co. v. Joyce, Tex.Civ.App., 80 S.W.2d 1066.

The issue was viable by 1935, Hampton Co. v. Joyce, 80 S.W.2d 1066, and by 1942 it was deemed meritorious enough to receive the commendation of a unanimous court. Commissioner Brewster, in an opinion approved by the Supreme Court, said that an issue inquiring about proper control would excuse other lesser included elements. North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487. A request for the specific issues had been timely made and refused. The court wrote, “ * * * The several inquiries under consideration were merely various phases and different shades of meaning of one ultimate defensive fact issue, that is, lack of proper control of his truck by Hodges. Having given such issue once in the form of Special Issue No. 15-G, (control) * * * the trial court properly refused to repeat it twice in other language as carried in requested issues 7 (inability to stop within the range of vision) and 12.” (failure to reduce speed). The court then gave sound reasons for accepting and recommending the issue to the bench, bar, and public, saying, “It has never been the policy of the law to lengthen and complicate special issue charges by requiring trial courts to give issues that merely submit various phases or other shades of meaning of an issue already in the charge. It is required only that each controlling issue raised by the pleadings and the evidence be submitted once, fairly, simply and succinctly. Otherwise, such charge could be drawn out to interminable length confusing not alone to the jury but to court and counsel as well.” With one sentence the court could have condemned the issue, but instead, the court blessed it.

Fourteen months after the court considered Hodges, the Commission and Supreme Court again considered the issue in Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951. Commissioner Hickman wrote, “The finding that his (the plaintiff’s) failure to keep his automobile under proper control was not the sole proximate cause of the injuries includes the finding that his causing the automobile to move to and upon his left-hand side of the highway was not the sole proximate cause of the injuries. * * * In submitting the issue of whether loss of control was the sole proximate cause the charge did not confine the jury to a consideration of any particular cause of the loss of control, but the issue covered loss of control from any and all causes, which includes defective brakes.” Instead of destroying the issue, as it could have, the court said that a charge which included the control issue and left out other lesser included elements, “fairly submitted the controlling issues raised by the pleadings and evidence, as provided in Rule 279, Texas Rules of Civil Procedure.” Two weeks later, the Supreme Court, through Mr. Justice Critz in Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266, again discussed the same issue. The court held that the control issue should not be submitted when its elements are submitted. One submission is enough. Mr. Justice Slatton in 1946 in Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143, cited Blaugrund, but did not disapprove the control issue. With the Supreme Court’s several opinions before them, the bar began practicing law upon the principles announced in Hodges, Holcomb, Gish and Taylor. I would not disturb this practice.

The special issue system in Texas, for some time, has been troubled with the proliferation of issues in personal injury litigation. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, properly decided that an issue was too global when it asked whether a party was contributorily negligent, and this court, for good reasons stated in 1953 that it did not desire to depart from that settled practice. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99. In Roosth this court first noted that personal injury charges were anomalous, because in all other classes of litigation, fewer and broader issues have been consistently approved. It then expressed justifiable concern about a departure from existing practices, the Fox case in particular, because it “would in our judgment cause undue confusion.” It is that same judicial restraint that I would now exercise in this case.

The genius of the common law is its capacity to solve problems, and this body of law which we have today dispatched, is a classic example. The exercise of proper control, as an issue, admittedly eliminates many other issues. It is doing and can do what nothing and nobody else has been capable of doing. That issue, as Forsyth said of the jury system itself, arose, “silently and gradually out of the usages of a state of society.” It arose, not as a result of overruling Fox, new or amended rules, actions of joint committees or acts of the legislature. It has grown up in the shadow of Fox and until now has been able to gather up many issues and simplify the charge. It is another example of the capacity of the common law to develop and preserve the jury system itself. In this case it is corrective of the chief problem of civil jury trial in Texas, a surfeit of special issues.

The problems of the special issue charge are those of profusion, conflicting answers, and confusion to the jurors. Those problems did not arise from, nor are they aggravated by, the issue on exercise of proper control. Instead of causing profusion of issues, that issue eliminates lesser included elements. Instead of causing conflicts, it is curative of them. A reading of all the cases which have discussed the issue, shows that the issue has produced no reversals by reason of conflicts. On the contrary, it has salvaged many and harmed none. Unlike other conflicting issues, any claimed conflict arising out of the exercise of proper control issue is resolved by giving effect to the narrow findings over the broader ones. Instead of confusion, it simplifies charges to the jury by shortening them. It reduces the number so the advocates can better argue their cases. Whatever confusion is produced by the issue finds its origin in a trial court’s unnecessary submission of both the proper control issue and also the more specific elements included within it. The double submission should stop, and it will when this court tells trial judges that they can exercise their own judgments in giving the control issue without the specific issues; or the specific issues without the control issue, hut not both.

Every reason which one can give for the elimination of the issue inquiring about the exercise of proper control, can with equal logic be given against the discovered peril, the attractive nuisance and the damage issues, as well as the broad submission of issues in all other classes of cases except negligence cases. Fox v. Dallas Hotel Co. is not violated in any of those instances.

The opinion of the Court of Civil Appeals was right when it gave effect to the specific jury findings over the finding on proper control. That is settled law. When this court goes further and holds that an objection to the control issue kills it and takes all discretion from the trial judge so that he must refuse to submit it, we have closed the •door upon our best and last opportunity for the common law to reduce the number of issues and to simplify the charge.

With that part of the majority opinion that totally eliminates the proper control issue upon objection, I respectfully dis- . agree.

      . “A comparatively slight acquaintance with formal metaphysics is enough to assure us that the apparently simplest ‘fact’ is indeed a conclusion, involving in its affirmation an inference from certain impressions of the sense upon the assumption of a major premise, itself the creature of past experience.” Learned Hand, “Historical and Practical Considerations regarding Expert Testimony”, 15 Harvard Law Review, 40, 50.

      . See Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610, l.c. 613, (1950) in which the above language appears in an issue quoted in the opinion. The Court held, however, that another issue of the discovered peril group of issues was defective because it was too inclusive or global ia nature. It is sometimes far from dear whether an issue is global, ultimate or simply the result of a granulation of an ultimate issue. This difficulty is inherent in the special issue practice and henee precedent or what has been approved heretofore is important in this area. Such precedents should not he disturbed in the absence of demonstrated inadequacy or malfunction.

      . “ * * * It is usual that either the plaintiff or the defendant, or in many instances both, urge the court to submit a proper control issue * * Lambert, The Bugaboo of ‘Proper Control’, 27 Texas Bar Journal, 869.

      . Chief Justice Alexander, Chief Justice Hickman, Justices Brewster, Sharp, Harvey, Holley, Critz, Slatton, Simpson, Smedley, Taylor, Norvell, Culver, W. O. Murray, Edward Smith, D. Walker, O’Quiun, Combs, Graves, Monteith, Oody, Atwood McDonald, Hall, B. L. Murray, O. Walker, Hamblen, Pope, Hunter Barrow, Anderson, Hightower, Woodruff, Bell, Werlein, Gray, Archer, Hughes, Wilson, Frank McDonald, Tirey, Han-ning, Ohadick, Charles Barrow, Collings, Grissom, Walter, Stephenson, McNeill and Davis,

      . Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090, (domicile); Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978, (divorce); Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 34 Tex.L.Bev. 138, (wrongful shooting death); City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 14 A.L.R.2d 61, (fire hazard to life and property); Werner v. Brehm, Tex.Civ.App., 216 S.W.2d 991 (duress, ref. n.r.e.; Brown v. Brown, Tex.Civ.App., 256 S.W.2d 143, ref. n.r.e.; (common-law marriage) ; Viduarri v. Bruni, 179 S.W.2d 818, error ref.; Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 (adverse possession); Jones v. Rainey, Tex.Civ.App., 168 S.W.2d 507, error ref. (damages to livestock); See Hodges, Special Issue Submission in Texas, § 40. Even, within the field of personal injury litigation, a broad submission of issues has met with no opposition in many instances. What Judge Stayton called granulation of issues has not occurred with respect to the issues on discovered peril, Ford v. Panhandle & S. F. Ry., 151 Tex. 538, 252 S.W.2d 561; Texas & N. O. R. R. v. Krasoff, 144 Tex. 436, 191 S.W.2d 1; East Texas Theaters, Inc. v. Swink, 142 Tex. 268, 177 S.W.2d 195; Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112, attractive nuisance; Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587, and res ipsa loquitur; Thompson v. Brown, Tex.Civ.App., 222 S.W.2d 442; Rogers v. Coca Cola Bottling Co., Tex.Civ.App., 156 S.W.2d 325. Becently this court repulsed efforts to cut the lookout issue into several possible factual inquiries. Traywick v. Goodrich, Tex.Civ.App., 364 S.W.2d 190.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    Katheryn WHITFILL, Petitioner, v. Elmer Lee HUNT et al., Respondents.
    No. A-9994.
    Supreme Court of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 24, 1965.

      Crenshaw, Dupree & Milam, Cecil Kuhne and Max C. Addison, Lubbock, for petitioner.
    Sam Allred, Lubbock, Scarborough, Black, Tarpley & Scarborough, Abilene, for respondents.
   GRIFFIN, Justice.

Respondent Elmer Lee Hunt, as plaintiff, filed this suit in a District Court of Lubbock County, Texas, against Miss Katheryn Whitfill, petitioner herein, for damages resulting from injuries sustained by Hunt’s wife and minor daughter who were riding in Hunt’s car at the time of the collision, and also for damages to Hunt’s automobile.

After a trial before a jury and based on the jury’s answers to the special issues submitted to it, judgment was rendered for Hunt against Miss Whitfill for a total of $3,000.00. On appeal by the defendant, the Court of Civil Appeals affirmed the judgment. 374 S.W.2d 341.

The jury found that the defendant im- • mediately prior to the collision failed to keep a proper lookout, which was a proximate cause of the collision; that immediately prior to the collision defendant was driving at a high and dangerous rate of speed under the existing circumstances, which was negligence and a proximate cause.

As to the plaintiff, the jury found he did not fail to keep a proper lookout on the occasion in question; that he did not fail to yield the right of way; that he did not operate his automobile at an excessive rate of speed under the existing circumstances; and that the collision was not the result of an unavoidable accident. Damages were awarded.

Defendant assigns error to the failure of the trial court to give in its charge to the jury her separately requested special issues on (1) failure of plaintiff to sound his horn; (2) failure of the plaintiff to apply his brakes; and (3) failure to have his automobile under proper control.

Plaintiff urges that all three of these issues were only various shades of the issues on failure of plaintiff to keep a proper lookout; whether or not he failed to yield the right of way; and whether he operated his automobile at an excessive rate of speed. It is contended that since the jury found these last three issues in favor of plaintiff, there was no harm in the trial court’s failure to submit either or all of defendant’s requested special issues.

The right of the defendant to have affirmative defenses submitted must not be determined from the viewpoint of conditions as they appear after the verdict is returned, but from the viewpoint of what the jury might have found from the evidence if the issue had been submitted to them. Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633 (1935); Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326 (1936); Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948).

In the case at bar, there is evidence to the effect that plaintiff was operating his car at a faster rate of speed than defendant. Plaintiff says he was going 25 to 30 miles per hour; defendant says she was going 20 to 25 miles per hour. There is evidence the collision occurred just about the middle of the street; that defendant applied her brakes before the collision and it is undisputed that plaintiff did not apply his brakes; that the street on which defendant was traveling was wider than the street on which plaintiff was traveling, and therefore plaintiff had farther to travel to get to the middle of the intersection; that defendant’s car was to the right of plaintiff’s car as they approached the intersection; that plaintiff observed defendant when she was one-half to one block from the intersection; that after the collision plaintiff’s car spun around, hit the left-hand curb and before stopping slid across the street to the righthand curb of the street in the direction he was traveling and north of the curb line of the street on which defendant was traveling.

On the requested issues of failure of the plaintiff to sound his horn or his failure to apply his brakes, plaintiff testified that he did not sound his horn or apply his brakes even though he saw defendant coming down the street when she was some one-half to one block from the intersection and plaintiff was about one-half block from the intersection; that he was proceeding north and that he watched defendant coming until the collision occurred; that defendant was proceeding west along the street she was traveling, and that the collision was at approximately 5:30 p. m. on February 27th; that the sun was low and shining down the street and toward defendant; that plaintiff knew the intersection was a dangerous one, as he frequently traveled across same. Plaintiff further testified that although he saw defendant coming, he thought he could get across the intersection safely. Defendant testified she never saw plaintiff until just prior to the collision.

Under the facts of this case, if plaintiff had sounded his horn to attract defendant’s attention, the collision might well have been avoided. Sounding of the plaintiff’s horn on the occasion in question was no part of the issues given by the trial court on “lookout,” “excessive speed,” or “failure to yield the right of way.” The failure to sound his horn would support a jury finding of negligence and proximate cause of the collision.

Defendant filed an answer to plaintiff’s petition in which she alleged in general terms that plaintiff was guilty of negligent acts which were the proximate cause of the collision. Later defendant filed a cross-action against plaintiff for her damages suffered in the collision. In her cross-action defendant specifically pleaded that plaintiff was guilty of negligence in his failure to apply his brakes in time to avoid the collision.

The jury found that plaintiff did not fail to keep a proper lookout on the occasion and further found that he did not operate his automobile at an excessive rate of speed under the existing circumstances.

If the plaintiff did not fail to keep a proper lookout, he saw the defendant’s car coming, and he so testified. Seeing defendant’s car coming down the street while plaintiff was not operating his car at an excessive rate of speed, and not applying his brakes, the jury might have concluded that under all the facts and circumstances plaintiff was guilty of negligence in failing to apply his brakes, and that such negligence was a proximate cause of the collision. Failure to apply brakes is a separate issue from proper lookout, and it is also separate from the issue on excessive rate of speed. Rather, these issues and their answers could easily be found to be additional reasons why an application of brakes would have prevented the collision and its resulting damages.

Rule 277, Texas Rules of Civil Procedure, entitles the parties to submission of all ultimate issues. The evidence raised the issue of the failure of plaintiff to sound his horn and his failure to apply his brakes as negligence and proximate cause, and the court should have submitted issues accordingly.

We hold that it was not error for the trial court to refuse to give petitioner’s requested issue on proper control.

In view of our reversal and remanding for the reasons set out above, we do not find it necessary to decide petitioner’s objection to the failure to instruct the jury on the law of right of way.

. The judgments of both courts below are reversed, and this cause is remanded to the trial court for a new trial consistent with this opinion.


author: Walker, justice.

text:
    James W. MOSS, Petitioner, v. George D. HIPP, Respondent.
    No. A-10312.
    Supreme Court of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 24, 1965.
    Neal, Hazlewood & Wolfram, Amarillo, for petitioner.

      Clayton, Kolander, Moser & Templeton, Amarillo, for respondent.

      . Examination by counsel for respondent:
      “Q. About when did you buy this truck? A. In July of 1960.

        “Q. How did you acquire the money with which you purchased the truck? A. A loan, Mr. Hipp let me have the money.
      “Q. How muck did be let you bave? A. $3,500.”
      *****
      “Q. How much did you bave to pay for this truck? A. Paid $16,500.

        “Q. How did you pay the balance of it? A. By the month.
      “Q. Well, I mean how did you acquire the money to pay the balance for the truck? If you got $3,500 from Mr. Hipp, how did you pay the balance? A. Financed it at the bank.
      “Q. Which bank? A. The American National.
      “Q. And was there any agreement between you and Mr. Hipp regarding the mortgage that the bank had? A. Well, he was a signer on the note, and this other stood, it was all in on the deal.”
      * * * * *
      “Q. Now, what arrangements did you and Mr. Hipp make regarding paying that note? A. He made an arrangement for him to pay it off.
      “Q. Did you have any agreement regarding what he would have as security?
      A. Tes, the tractor — ”
      [Objection interposed and overruled.]
      “Q. At the time they went down, what agreement did you have with Mr. Hipp regarding what this chattel mortgage would secure? A. Well, when we agreed for him to pay it off, just like before, the tractor stood good for all I owed him.”
      *****
      “Q. And, in accordance with the agreement which you made with him, this chattel mortgage on the truck was to secure that total amount that you say that you owe him right now. A. That’s right.
      “Q. And, as far as you are concerned and he is concerned, in the agreement, he has got the chattel mortgage securing Mr. Hipp’s payment of the five thousand and some-odd dollars that you say you owe him right now? A. That is right.”
      *****
      “Q. And, under your agreement with Mr. Hipp, he is to have this chattel mortgage the bank had as security? A. That’s right.”

   Walker, justice.

The rights of the parties to this appeal turn upon the existence and relative priority of the liens they assert against a 1957 Mack track tractor owned by one A. D. Falls. Their claims, which fall into three categories, arose in the following manner:

(1) In July and October, 1960, Falls borrowed a total of $3,500.00 from or through George D. Hipp, respondent, and used the same for a down payment on the tractor and a trailer. Respondent was president of Star Grain Company, Inc., and the advances were made with checks drawn by him on the company’s bank account. No note, chattel mortgage or other lien instrument was executed by Falls at the time to evidence or secure this indebtedness, hereinafter referred to as the original loan, but respondent contends that it later became secured by the chattel mortgage mentioned below.

(2) Falls borrowed the remainder of the purchase price of the tractor from the American National Bank, and on August 22, 1961, executed to the bank his note for $5,471.28 secured by a chattel mortgage on the tractor. The chattel mortgage contained a so-called dragnet clause providing, in effect, that it would also secure any other indebtedness then or thereafter owing to the holder of the note. A certificate of title was duly issued on the tractor showing as liens the note for $5,471.28 to the bank “and all future advances.” Payment of the note was guaranteed by respondent in writing. Falls was unable to meet certain monthly installments on the note, and the same were paid by respondent. Finally on December 9, 1962, respondent paid the entire balance of the note to the bank and took an assignment of the note and chattel mortgage. The amount owing by Falls to respondent on the note, including principal, interest and attorneys fees, is referred to herein as the note balance.

(3)James W. Moss, petitioner, who is engaged in the garage business, repaired the tractor on several occasions during the period from October 10, 1961, to August 22, 1962. He was not paid for these services, and the balance unpaid on his claim for parts furnished and labor done, hereinafter referred to as the repair bill, is $1,-799.37.

Petitioner instituted suit against Falls to recover the repair bill and for foreclosure of his constitutional repairman’s lien on the tractor. See Texas Constitution, Article XVI, Section 37. Respondent intervened and alleged that the original loan and the note balance are secured by the chattel mortgage, and that the lien thereof is prior and superior to petitioner’s claim. He prayed for a recovery against Falls on both debts, for foreclosure of the chattel mortgage lien, and for judgment declaring that any right or interest owned by petitioner in the vehicle is subordinate and inferior to such lien.

Petitioner sought and was granted an interlocutory default judgment against Falls, who failed to answer although he did testify as a witness at the trial. The controversy between petitioner and respondent was then tried before the court, and final judgment was entered decreeing: (1) that petitioner and respondent recover the amounts of their respective claims from Falls; (2) that the note balance owing to to respondent is secured by the chattel mortgage; (3) that the original loan owing to respondent is unsecured; (4) that the repair bill owing to petitioner is secured by a constitutional repairman’s lien; (5) that the chattel mortgage lien securing the note balance is superior to petitioner’s constitutional lien; and (6) that the liens be foreclosed and the proceeds of the foreclosure sale distributed as set out in the judgment. The Court of Civil Appeals concluded that both the original loan and the note balance are secured by the chattel mortgage, and that petitioner’s lien is subordinate thereto. It modified the judgment of the trial court to provide that respondent’s entire claim is secured by a first and superior lien on the tractor. Tex.Civ.App., 380 S.W.2d 168.

There is a practice question which should be considered at the outset. Petitioner did not file an answer to respondent’s plea in intervention, and respondent contends that there are no pleadings to support the trial court’s judgment decreeing that the repairman’s lien claimed by petitioner is superior to the lien asserted by respondent. He relies on Shield Co. v. Cartwright, 142 Tex. 324, 177 S.W.2d 954, where the plaintiff was denied an offset against the judgment awarded an intervening trustee in bankruptcy because the issue was not raised by the pleadings or tried by consent. The present record discloses a somewhat different situation. Petitioner has asserted no cause of action against respondent personally, and does not rely upon any affirmative defense to the latter’s claim against the tractor. It is clear, moreover, that the parties knew, or were charged with knowledge, that the priority of their respective claims was in issue. The interlocutory default judgment against Falls expressly stated that the relative rights and priorities of petitioner and respondent would be determined by a subsequent and final judgment. In these circumstances petitioner’s failure to answer the plea in intervention is not fatal to the trial court’s judgment.

Turning now to the merits of the case, petitioner recognizes that the lien of the note balance is superior to his constitutional lien. The only dispute here is with reference to the original loan. Respondent contends that the original loan became secured by the chattel mortgage when he acquired the note described therein, and in support of this contention he relies on:

(1) the dragnet clause of the chattel mortgage, and (2) an oral agreement which he alleged was made with Falls at the time the balance of the note was paid to the bank. He says that since he became the owner of the note secured by the chattel mortgage, the trial court erred in failing to give effect to the stipulation in the mortgage that it would also secure any other indebtedness then or thereafter owing to the holder of such note. We do not agree. Provisions of this type apply only to indebtedness which was reasonably within the contemplation of the parties to the mortgage at the time it was made. See National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081 (writ dis.); Republic Nat. Bank of Dallas v. Zesmer, Tex.Civ.App., 187 S.W.2d 227 (no writ); 15 Am.Jur.2d Chattel Mortgages § 80; 14 C.J.S. Chattel Mortgages § 110. The trial court found as a fact that it was not within the contemplation of the parties to the note and chattel mortgage that the original loan would be secured by the mortgage, and the record does not show as a matter of law that the mortgage was intended to secure indebtedness of that nature. In view of the trial court’s finding, therefore, we hold that the mere acquisition by respondent of the note secured by the chattel mortgage did not give him a lien on the tractor to secure the original loan.

Respondent also says that in consideration of his paying the note to the bank, Falls orally agreed that the original loan would be secured by the chattel mortgage. The trial court found that the alleged agreement was not made, but the Court of Civil Appeals held that it was established by the evidence as a matter of law. The only evidence tending to show such an agreement is the testimony of Falls, the relevant portions of which are quoted in the margin. Respondent, the other party to the alleged agreement, did not testify. In considering the testimony given by Falls, it must he remembered that respondent claims no security for his original loan other than by virtue of the chattel mortgage. It should also be noted that Falls is a party to the suit, and that he and respondent apparently arfe on friendly terms. Falls did hauling for respondent’s company, and respondent took no steps to enforce the lien he now claims until the present suit was instituted by petitioner. After petitioner caused the tractor to be sequestered, respondent re-plevied and turned the same over to Falls, who continued using it pending the trial. It also appears that the tractor is worth less than the total amount owing by Falls to respondent. If respondent can establish that both of his debts are secured by liens which are superior to the repair bill, petitioner will realize nothing on his claim unless Falls is subject to execution.

We recognize that a fact may he established as a matter of law by the testimony of an interested witness provided his testimony is not contradicted by another witness or by attendant circumstances, is clear, direct and positive, and is free from contradiction, inaccuracies and circumstances tending to cast suspicion upon it. See Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904. It is our opinion, however, that the testimony of Falls concerning the alleged oral agreement does not meet all of these conditions. When the witness was first asked about an agreement between him and respondent regarding the mortgage held by the bank, he testified that respondent “was a signer on the note, and this other stood, it was all in on the deal.” This rather obscure reply evidently refers to his understanding with respondent at the time the mortgage was given to the bank. In response to the next inquiry with respect to an agreement concerning the chattel mortgage, he stated “we agreed for him to pay it off, just like before, the tractor stood good for all I owed him.” When the facts sought to be elicited were not recited in the question, he gave no answers which clearly and positively point to an agreement, made in consideration of respondent’s acquiring the note, that the original loan would be secured by the chattel mortgage. He did not even purport to say that there was such an agreement except by his affirmative replies to leading questions propounded by counsel for respondent. Although these answers were not contradicted by another witness, the testimony of Falls when considered as a whole is somewhat less than clear, direct and positive, and in our opinion the trial court was not required to accept the same as a matter of law.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

POPE, J., not sitting.


author: BELCHER, Commissioner. MORRISON, Judge. WOODLEY, Judge MORRISON, Judge.

text:
    Manuel LUNA and Ramon Luna, Appellants, v. The STATE of Texas, Appellee.
    No. 37195.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 6, 1965.
    On Second Motion for Rehearing Feb. 10, 1965.
    Rehearing Denied March 24, 1965.
    Daniel Sullivan, Andrews, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellants were convicted upon a joint trial for assault with intent to murder; and the punishment for each was assessed at seven years.

The statement of facts and an instrument which is referred to in appellant’s brief as an appendix to the statement of facts are contained in the record, but they were not filed with the clerk of the trial court as required by Art. 759a, Sec. 4, Vernon’s Ann.C.C.P. Therefore they cannot be considered. Salyer v. State, 166 Tex.Cr.R. 532, 316 S.W.2d 420.

No formal bills are contained in the record.

The judgment is affirmed.

Opinion approved by the Court-

On Appellants’ Motion for Rehearing

MORRISON, Judge.

Subsequent to the rendition of our original opinion herein the clerk of the trial court executed a certificate in which she states that an instrument entitled Oral Discussion Concerning Motion for Continuance was actually filed by her, though it in fact bears no such file mark.

Under the decision of this Court such certificate cannot be considered as it comes too late. Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37; Hill v. State, Tex.Cr.App., 375 S.W.2d 306; and Ex Parte Seffens, Tex.Cr.App., 376 S.W.2d 348.

Appellants’ motion for rehearing is overruled.

WOODLEY, Judge

(dissenting).

Appellants were jointly indicted and prosecuted. They requested a severance.

Art. 650 C.C.P. provides:

“Two or more defendants jointly prosecuted may sever in the trial upon the request of either.”

The request for severance was made orally before the jury was selected. The -trial court erred in refusing to grant the request.

Unlike Art. 651 C.C.P., the statute above quoted does not require a written motion or affidavit.

The majority refuse to consider the statement of facts which reflects the denial of appellants’ rights to be separately tried because, though timely approved and filed in the trial court, the clerk failed to place a file mark on the instrument and did not certify to such filing until after this appeal had been submitted and the judgment affirmed. Such holding is in direct conflict with the holding in Nolen v. State, 72 Tex.Cr.R. 450, 162 S.W. 869.

The statement of facts was filed when it was delivered into the possession of the •clerk of the trial court. Young v. State, 86 Tex.Cr.R. 621, 218 S.W. 754.

An official file mark on such an instrument is a mere memorandum that serves as evidence of the fact of filing. Ex parte Leifeste, 127 Tex.Cr.R. 445, 77 S.W.2d 675.

None of the cases cited in the majority opinion support its holding. Those pertinent relate to statements of facts or bills of exception approved or filed in the trial court after original submission of the appeal in this Court.

I respectfully dissent.

ON APPELLANTS’ SECOND MOTION FOR REHEARING

MORRISON, Judge.

In a forceful second motion for rehearing appellant has analysed the difference between Selvidge v. State, Cunningham v. State, Hill v. State, and Ex Parte Seffens, supra, and the case at bar. An examination of the records in such cases reveals that his analysis is correct because in each of such cases the instruments tendered for this Court’s consideration were filed in the trial court after the rendition of an original opinion by this Court. We will now consider the tendered motion. An examination thereof reveals that counsel for both appellants made an oral request for severance, but filed no affidavit as is required by Article 651 Vernon’s Ann.C.C.P., which request was by the trial court refused. We here note that appellants were both charged in the same indictment and the request of either of them falls within the terms of Article 650 V.A.C.C.P. The only case which we have been able to find which controls this exact situation is Ryan v. State, 64 Tex.Cr.R. 628, 142 S.W. 878. We quote therefrom as follows:

“The grand jury of Matagorda county indicted W. W. Lawrence and appellant jointly, charging them with murder. There was a severance, and appellant placed on trial first. Appellant, in his first bill of exceptions, complains that the court granted a severance when no affidavit had been filed, asking that a severance be granted. Article 706 of the Code of Criminal Procedure (now Article 650 V.A.C.C.P.) provides: When two or more defendants are jointly prosecuted they may sever in the trial upon the request of either.’ The bill of exceptions shows that Lawrence requested a severance and the court did not err in granting it.”

It therefore follows from the above that the court erred in overruling the appellants’ request for severance and such error calls for a reversal of this conviction. Ryan v. State, supra.

Appellants’ second motion for rehearing is granted, the judgment of affirmance is set aside and the judgment is now reversed and the cause remanded.


author: WOODLEY, Judge.

text:
    Ex parte Udell H. QUINN.
    No. 37663.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 24, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State. . .
   WOODLEY, Judge.

This is an appeal from an order entered in a Habeas Corpus proceeding remanding the appellant to custody for extradition to the State of Oklahoma to answer a charge by affidavit of neglecting to provide for the support of his 12 year old child.

The Executive Warrant issued by the Governor of Texas, the Demand of the Governor of Oklahoma and the supporting papers were introduced in evidence and no evidence was offered by appellant.

The evidence is sufficient to sustain the court’s order remanding appellant to custody for extradiction.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Hershel McKNIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 37954.
    Court of Criminal Appeals of Texas.
    March 10, 1965.

      Royce E. Ball, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, two years.

Our able State’s attorney does not seek an affirmance of this conviction, and we agree that this cause must be reversed. The indictment alleged that appellant and one James Elmer Firestone stole a number of mechanical items, but no value is attributed to them either singularly or collectively. It is essential in all cases of theft, except in theft from the person and theft of certain animals such as horses, mules, cattle, etc., to allege the value of the property so that the indictment may show upon its face that the court has jurisdiction of the offense. This identical question was before the Court in Steel v. State, Tex.Cr.App., 217 S.W.2d 857. See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47.

The indictment being fatally defective, the judgment of conviction is reversed and the prosecution is dismissed. -


author: McDONALD, Presiding Judge.

text:
    Brenda BARRY, Appellant, v. The STATE of Texas, Appellee.
    No. 37688.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Schulz & Hanna by Bob R. Hanna, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is unlawfully transporting whiskey in a dry area; the punishment, a fine of $250.00 and confinement in jail for 15 days.

There is no statement of facts.

Appellant contends that the complaint is insufficient because it does not set out that the affiant does believe that appellant committed the offense. She cites Art. 222, Vernon’s Ann.C.C.P. and Fowler v. State, 156 Tex.Cr.R. 267, 240 S.W.2d 780 in support of her contention.

The complaint in this case is sufficient, because the allegation positively states that she committed the offense and is sufficient under the first part of Section 2 of Art. 222, supra. It is not based upon the allegation as in the Fowler case that the affiant had reason to believe, which made the allegation of “does believe” necessary. Appellant’s contention is without merit.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Bobby NAJAR, Appellant, v. The STATE of Texas, Appellee.
    No. 37953.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is a conviction for the misdemeanor offense of false imprisonment; the punishment, six months in jail.

The record reflects that the appellant is at large on an appeal bond approved and filed during the term of court at which notice of appeal was given.

In the absence of a recognizance entered into in open court during the term at which he was tried, or an appeal bond properly approved after the term had expired, or a showing that the appellant is in custody, this court is without jurisdiction to enter any order other than to dismiss the appeal. Art. 830, Vernon’s Ann.C.C.P.; Braun v. State, 158 Tex.Cr.R. 394, 257 S.W.2d 708; Alexander v. State, Tex.Cr.App., 272 S.W.2d 99; Nee v. State, Tex.Cr.App., 274 S.W.2d 396; Bloss v. State, Tex.Cr.App., 372 S.W.2d 696.

The appeal is dismissed.

Opinion approved by the Court


author: DICE, Commissioner.

text:
    A. C. THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 37605.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 24, 1965.
    Murray J. Howze, Monahans, for appellant.
    Jack Tidwell, Dist. Atty., Mike Berry, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment — enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital — life imprisonment.

The prosecuting witness, Earnest Freeman, testified that he was the owner and operator of the Wigwam Bar in the city of Odessa and that on the night in question he closed the place of business at midnight; that the back door of the building was locked from the inside, the front door was padlocked, and all of the windows were locked. He further testified that after he closed the place someone broke into and entered the building, without his permission or consent, by knocking a lock off the door.

The witness Fred E. Johnson testified that on the night in question while working as a police officer for the city, he went to the Wigwam Bar in response to a call received at 12:25 a. m. When he arrived, Officer Fleming had two suspects, Clarence Thomas and Peter Blais, in custody in front of the bar. Johnson then checked the building and found that the place had been broken into. At the front door a padlock was on the ground and the hasp had been torn off. Upon entering the building it was discovered that the jukebox had been pried open and the money receptacle, which was a cloth bag, was missing from inside the box. Johnson testified that he then went outside and, while checking a 1959 Ford automobile parked some seventy-five feet from the building, a man whom he identified as the appellant came from around a corner and started walking toward the car. Officer Johnson observed that when appellant saw him, he (appellant) hesitated at a 55-gallon oil drum near a service station building and then proceeded to walk to the driver’s side of the car. Johnson then had appellant get in the back seat of the police car and while appellant was seated in the car the state’s witness Mrs. Mozell Long came up to the car, pointed to the appellant, and said: I just saw that man come out of the Wigwam.’ ” Thereupon, certain detectives arrived upon the scene and, in checking the oil drums near where appellant hesitated, found in one of the drums a money sack of the type used in jukeboxes, and under the sack a screwdriver and a pinch bar.

The witness Mozell Long testified that she operated a bar next door to the Wigwam Bar and that on the night in question she observed the appellant and two other men in her place who caused her to be suspicious; that later she called the police and after closing her place at midnight she got in her car and parked in front of a drive-in nearby. Mrs. Long stated that while in her car watching, she saw appellant come out of the front door of the Wigwam, which was closed, and that she then proceeded to follow him until he was taken into custody by the officer.

Peter Blais, one of the suspects taken into custody in front of the bar on the night in question and who had entered a plea of guilty and been convicted of the burglary and received a probated sentence, testified that he, in company with the appellant and appellant’s brother, had gone to the Wigwam Bar after closing hours, where appellant was to break in the building and the witness and appellant’s brother were “supposed to be lookouts.” The witness also identified the tools found by the officers in the oil drum as tools which had been in the appellant’s 1959 Ford automobile.

Proof was made by the state of the two prior alleged convictions in the manner which has been approved by this court.

Appellant did not testify or offer any evidence other than a stipulation that he was arrested at 12:45 a. m. on the night in question and .that Mrs. Long’s call was received by the police at 12:25 a. m.

We find the evidence- sufficient to support the conviction, and overrule the contention that the state’s proof fails to show the breaking and entry into a building-which was closed.

Error is urged to the court’s failure to-charge the jury on the law of circumstantial evidence and in refusing appellant’s-requested charge thereon.

The record contains no objection to-the court’s charge. A requested charge shown in the transcript appears to have-been refused by the court but no exception was reserved by appellant to the court’s action. In the absence of an exception to the court’s action appellant’s complaint to-the charge is not properly before us for review. Green v. State, Tex.Cr.App., 363 S.W.2d 461; Massiate v. State, Tex.Cr.App., 365 S.W.2d 802; Lewis v. State,. Tex.Cr.App., 367 S.W.2d 692.

We observe, however, that, under the evidence showing appellant’s exit from the building after the place had been closed, a charge on circumstantial evidence was-not required. Hall v. State, 161 Tex.Cr.R. 460, 278 S.W.2d 297.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Larry William FRY, Appellant, v. The STATE of Texas, Appellee.
    No. 37867.
    Court of Criminal Appeals of Texas.
    March 10, 1965.

      Jack P. Thompson, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., El Paso, James S. Kreimeyer and Donald S. Leslie, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is receiving and concealing stolen property of the value of $50 or over; the punishment, 3 years.

The indictment alleged that appellant fraudulently received from a person to the grand jurors unknown two rings of the value of $500 each and two rings of the value of $250 each, belonging to Edward J. Ettl, which had theretofore been acquired in such manner as that the acquisition comes within the meaning of the term ■“theft”, and that appellant did “fraudulently receive and conceal said property then and there well knowing the same to Lave been so acquired.”

Following the burglary of the office of Dr. Ettl, in which rings such as described in the indictment and other items were stolen, Sgt. Richard Barron, of the El Paso Police Department, assigned Detectives Moninghoff and Buchanan to investigate the burglary.

Jack Saulter, Assistant District Supervisor for the El Paso District of the United States Customs Service, received information from what he considered to be a reliable source that a person answering the description of the appellant had in his possession a quantity of stolen jewelry. He conveyed such information to Sgt. Barron and assigned Customs Agent Medford to act undercover and contact the suspect.

Medford, posing as a buyer of stolen articles, met appellant in an El Paso Bar and agreed to purchase the rings and other articles that appellant showed him.

Appellant showed Agent Medford a newspaper account of the burglary and told him that he had all of the items that were taken, some of which were in his hotel room in Juarez, Mexico. He did not tell Medford where he got the property.

Upon pre-arranged signal from Medford, appellant was arrested as he followed Med-ford out of the bar and the rings and other items which were identified as part of the property taken in the burglary of Dr. Ettl’s office were found in his pocket.

Following his arrest, appellant made a statement to Police Officer Moninghoff in which he confessed that he knew that the rings and other items found in his possession, and other items which were in his hotel room in Mexico, were stolen property; and that he received it in Juarez, Mexico and was attempting to sell it. In his confession he referred to the person from whom he received the stolen property as “Jack”.

One of appellant’s points of error is predicated upon the fact that the proof showed that he received the properly in Mexico, whereas the indictment alleged that he received it in El Paso County, Texas. We see no error.

The indictment further alleged that appellant concealed the property knowing it to have been acquired by theft and the evidence shows that he did so in El Paso County, Texas.

The principal and only serious question raised is whether the proof offered is sufficient to sustain the allegation of the indictment that appellant received the property from a person to the grand jurors unknown.

The allegation that appellant received the stolen property from a person to the grand jurors unknown was proper. Art. 401 C.C.P. No formal proof of such allegation was required as the evidence failed to show that the name of such person could have been ascertained. 5 Branch’s Ann.P.C.2d 77, Sec. 2631 and cases there cited.

Art. 401 C.C.P. provides:

“In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and, if it he the accused, a reasonably accurate description of him shall be given in the- indictment.”

An allegation that the property was received from “one Jack whose surname was unknown” may have been upheld as in Bradford v. State, 72 Tex.Cr.R. 76, 160 S.W. 1185. We note, however, that the opinion in that case points out that the statute, now Art. 401 C.C.P., requires no description when it is the name of the deceased that is alleged .to be unknown- to the grand- Jury and it was held that "it. could not and would not make any material difference” that the indictment which alleged' that Bradford killed “a certain Mexican man whose Christian and surname was to-the grand jury unknown,” named and called him “John” and in another count “Juan”.

George T. Chrysler, who acted as foreman of the grand jury, testified that no information was given to the grand jury as-to the identity of the person from whom the defendant received the property, and that no means were available at the time by which he or any other member of the grand jury could obtain such information. He also testified that no evidence was presented to the grand jury as to the person who burglarized Dr. Ettl’s office or had the proceeds of that burglary in his possession —that as he recollected, the statement was made that this was given to him by a person that has not been identified.

There was no evidence offered at the trial showing the surname of the person from whom appellant received the stolen property.

Appellant called Sgt. Wendell R. Barron, of the El Paso Police, as a witness and elicited from him the fact that appellant admitted that there were other articles in a Juarez hotel that were taken in the burglary of Dr. Ettl’s office and that he contacted Lt. Alfonso Hijar, their liaison officer, by phone for the purpose of recovering it, and that Lt-. Hijar called back in 20 -or 30 minutes and said they had recovered other articles. Sgt. Barron testified that appellant said that the articles were given to him by another subject hut did not identify him, and that he had no description that would enable him to find the person from whom appellant was alleged to have received the stolen property and that, without a description, he knew of no way he could attempt to find him.

Appellant testified in the jury’s absence that one of the persons named in his statement “was Jack or Jackie. I wasn’t positive of his name.”

We are aware of no authority which would hold sufficient the indictment had it alleged that stolen property was received from “Jack” without further allegation that his surname was unknown. Art. 401 C.C.P. appears to require that the surname be alleged, one or more of the initials of the Christian name and the surname being sufficient.

We conclude that the evidence is sufficient to sustain the allegations of the indictment.

The judgment is affirmed.


text:
    John Stanley SIWAKOWSKI, Appellant, v. The STATE of Texas, Appellee.
    No. 37608.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 24, 1965.
    Paul W. Wisdom, Jr., Dallas (Court Appointed on Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Robert Stinson, Don Wills, Mark Troy and W. John Allison, Jr., Asst Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, 99 years.

About 7:40 P.M., October 24, two white men, one tall and the other short, wearing white hoods with openings for their eyes, and with pistols in their hands ran into a grocery store and one of them fired several shots. The tall man ordered the two employees at the check stands to “sack up the money”, and the short man directed the assistant manager to open the safe. By putting the assistant manager, James Ward, who was in charge of the store, in fear of serious bodily injury and his life, and' without his consent, the two men took the money and several checks from his possession.

The assistant manager, James Ward, described the short- man as being about five feet and six inches in height, weighing 130 to 135 pounds, and wearing a dark colored shirt and dark trousers. He described the tall man as being slender and over six feet in height, and wearing a checkered shirt and dark trousers. He further testified that about 7:20 P.M., before the robbery about 7:40 P.M., two men came in the store and bought some grapes, that they were about the same height and were wearing the same type of clothing as the two men who robbed him twenty minutes later; and while testifying he identified the appellant as looking like one of the men who came in the store and bought the grapes.

The testimony of the two employees who were at check stands and from whose registers the tall man took their money was substantially the same as that of the assistant manager, Ward.

Mrs. James Ward, wife of the assistant manager of the grocery store testified: she parked her car on the north side of the store which fronted to' the west. About 7:20 P.M., a green Chevrolet was parked in the second space from her. Three men got out of the Chevrolet, stood in front of the car next to Mrs. Ward, then returned to the Chevrolet. Soon thereafter, two of the men, one tall and the other short, both wearing dark shirts and trousers, entered the store. At this time the third parking space south of the front door of the store became vacant and Mrs. Ward moved her car into it. After she parked in front of the store, a car which appeared to be the same green Chevrolet she had seen on the north side was driven parallel to the store in front and behind the cars. Two men got out of the car with hoods on their heads, dressed the same as the men she had seen on the north side, and with guns in their hands entered the store and then ed her car to a nearby service station and asked the attendant to notify the police. As she drove back to the store, she saw two hooded men run from the store. She followed them for about one block, where she saw them enter a green Chevrolet like the one she saw on the north side of the store. She got the license number of the Chevrolet, returned to the store, and after a brief time showed the police the location of the Chevrolet. Mrs. Ward described the short man as being about five feet and seven inches in height and weighing from 130 to 140 pounds.

Deputy Sheriff Brister testified that about 8:15 P.M., he saw a man run across a street into some bushes near a creek which was a short distance northeast of the grocery store, and he described this man as being five feet and six or seven inches in height and weighing about 140 pounds. While testifying, he identified the appellant as the person he saw in custody of Officer Mrs. Ward heard several shots. She back-Gregory in the creek bed a short time after he saw a man run across the street.

Officer Gregory testified that while searching the creek about 8:30 P.M., he saw a man lying on his stomach in the creek bed; that upon searching this man, who was wearing a dark checked shirt and dark trousers, he found a brown paper sack containing money in his right front pocket, and also found two paper sacks at the place where he was lying and a pistol nearby on the ground. One of the two sacks was empty and the other contained a twenty dollar bill and some change. Four live shells and one spent shell were in the pistol.

While testifying, Officer Franklin identified the appellant as the same person he saw in custody of Officer Gregory about 8:30 P.M. in the creek bed, and described appellant as being five feet and six or seven inches in height and weighing 140 to 150 pounds and wearing a black checked shirt and dark trousers. He further stated that Gregory delivered to him the pistol and the brown paper sack containing $416 in currency.

After talking with Mrs. Ward, Officer Railey found, a short distance from the store, a 1953 Chevrolet, with a warm hood, bearing the same license number as the car for which he was searching.

The testimony reveals that brown paper sacks in the store were used by the robbers to carry away the money and checks. Each sack bore the brand or trademark of Cargo. The brown paper sack containing $416 found in the right front pocket of the appellant was similar and bore the same brand as those used by the grocery store.

On the morning of October 26, a similar paper sack containing several checks was found near the place where the appellant was arrested and they were returned to the grocery store. One of these checks was identified by the assistant manager of the store as having been cashed by the store, endorsed by it for deposit, and taken during the robbery.

The appellant did not testify but called Officer Potts who testified that after the robbery he saw the appellant at the store and that he was wearing a flowered looking sport shirt and dark trousers. The proof further shows that the appellant was not given a paraffin test, and that the gun was never examined for fingerprints.

The facts and circumstances in evidence are sufficient to warrant the jury’s finding that the appellant is guilty of robbery as charged.

The appellant complains of that part of the opening argument to the jury by the state’s attorney which was as follows: “This is the job of a professional hijacker”. To this argument the appellant objected and moved for a mistrial on the ground that it was highly inflammatory and prejudicial. The Court sustained the objection, but overruled the motion for a mistrial.

It is evident that the robbery was previously planned, with a preview and immediate survey of the store by the robbers, followed by a fast moving and well executed plan by three men, each performing a certain job, and, to insure strict compliance with their commands, the robbery was accompanied by gunfire as the robbers ran into the store and hastily left with hoods over their heads and guns in their hands.

The jury argument was a reasonable deduction from all the evidence, and, it is concluded that no reversible error is presented. Sears v. State, 106 Tex.Cr.R. 219, 291 S.W. 547; Jones v. State, 171 Tex.Cr.R. 608, 352 S.W.2d 270; Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218.

The judgment is affirmed.

Opinion approved by the Court


text:
    Ex parte David PICKENPAUGH.
    No. 37983.
    Court of Criminal Appeals of Texas.
    March 10, 1965.

      Abraham & Chagra, by Lee A. Chagra, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Fant, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was charged by complaint in Justice Court No. One of El Paso County with the offense of rape by force. Bail was denied by the magistrate. This appeal is from an order entered in a habeas corpus proceeding, by District Judge William E. Ward, refusing to grant him bail.

At the hearing the prosecutrix, who worked for appellant in his home, testified to a most brutal assault and rape committed upon her by the appellant. She stated that on the night in question appellant came to her room, where she was in bed, and had a conversation with her. He then took her to his room and, after handcuffing her hands behind her and physically mistreating her, proceeded to have sexual intercourse with her without her consent. After the act of intercourse, appellant put her in a bath tub half filled with water and proceeded to sit on top of her. He then dragged her out of the tub by her hair and put her head down in a toilet bowl and turned on the water. In the assault which lasted approximately six hours and culminated in the prosecutrix losing consciousness, appellant struck prosecutrix with a belt, burnt her with matches, kicked her with his feet, and committed acts of sodomy upon her. At the conclusion of the assault the prosecutrix fled to a neighbor’s home, still handcuffed and totally undressed, and after reporting the attack she went to a hospital where she was confined for two weeks.

By the provisions of Art. 1, Sec. 11, of our State Constitution, Vernon’s Ann.St., all cases are bailable unless for capital offenses where the proof is evident. “Proof Evident” means that a dispassionate jury would, under the evidence, not only convict but assess the death penalty. Ex parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257.

Under the record here presented the conclusion is reached that the trial judge did not abuse his discretion in denying bail.

The rule stated in Ex parte Merrill, 150 Tex.Cr.R. 365, 201 S.W.2d 232, and relied upon by appellant, that in cases of rape by force where the prosecuti-ix is over fifteen years of age, a conviction will not be sustained upon the uncorroborated testimony of the prosecutrix who failed to make outcry or report the rape when opportunity to do so was reasonably afforded, is not here applicable where the prosecutrix did make prompt outcry.

The judgment of the trial court refusing bail is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge. MORRISON, Judge

text:
    Ismael MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37665.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Rehearing Denied March 24, 1965.
    Marvin Foster, Jr., Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Corpus Christi, Clifford L. Zarsky, 1st Asst. Dist. Atty., Corpus Christi, and Douglas Tinker, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

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

Witnesses for the state testified:

Appellant’s apartment was searched and a coffee can containing marihuana was discovered. One of the searching officers went to a nearby cafe where appellant was at work and brought him to the apartment where he identified the coffee can containing the marihuana as belonging to him, and placed his initials on the can.

Appellant’s written confession to the same effect was introduced in evidence.

The officers were permitted to testify regarding the search and the fruits thereof, and the can of marihuana was introduced in evidence over objection that such evidence was obtained as the result of an unlawful search.

The state concedes that under recent decisions of the U. S. Supreme Court and of this Court the search warrant and affidavit therefor do not meet the requirements of our Federal and State Constitutions, but seeks to invoke the rule that the erroneous admission of testimony is not cause for reversal if the same facts are proven by other proper testimony. The state cites Hughes v. State, 163 Tex.Cr.R. 224, 289 S.W.2d 768; Rao v. State, 160 Tex.Cr.R. 416, 271 S.W.2d 426; MacKenna v. State, 164 Tex.Cr.R. 623, 301 S.W.2d 657; Burns v. State, 123 Tex.Cr.R. 213, 57 S.W.2d 836. See also McCain v. State, Tex.Cr.App., 363 S.W.2d 257; Rodriguez v. State, 168 Tex.Cr.R. 481, 329 S.W.2d 282; Welch v. State, 143 Tex.Cr.R. 529, 154 S.W.2d 248; 23 Tex.Jur.2d, Sec. 149.

The “other proper testimony” pointed out by the state is the confession of the appellant when he was brought to the scene, after the marihuana had been found, and his written confession. Law v. State, 115 Tex.Cr.R. 47, 27 S.W.2d 174, cited by the state, sustains the state’s position.

We are cited to no other decision and know of none which holds that appellant’s confession alone renders harmless the introduction of evidence illegally obtained as the result of an unlawful search.

In Mireles v. State, 114 Tex.Cr.R. 6, 23 S.W.2d 727, cited and relied upon in Law v. State, supra, the same facts shown by the evidence claimed to have been unlawfully obtained were before the jury by evidence other than and in addition to the confession of the defendant.

A conviction cannot be had upon the uncorroborated confession of the accused. Marsh v. State, 170 Tex.Cr.R. 512, 342 S.W.2d 435; Board v. State, 167 Tex.Cr.R. 349, 320 S.W.2d 668; Jacks v. State, 133 Tex.Cr.R. 242, 109 S.W.2d 762; and other cases cited in Texas Digest, Criminal Law,

Law v. State, 115 Tex.Cr.R. 47, 27 S.W.2d 174, is overruled.

Without the illegally obtained evidence showing that marihuana was found in appellant’s home, there is no corroboration of appellant’s confession.

The judgment is reversed and the cause remanded.

MORRISON, Judge

(concurring).

The rule as summarized in 5 Tex.Jur.2d, Sec. 446, p. 708, is as follows: “* * * nor will a judgment be reversed because of the admission of testimony of officers respecting facts obtained on an illegal search where the same facts are testified to by other witnesses or by the accused himself.” I concur in the reversal of this conviction, but do so on the assumption that the phrase “other proper testimony” as used in the majority opinion is synonymous to the rule set forth above.


text:
    Aurelio MURO, Appellant, v. The STATE of Texas, Appellee.
    No. 37328.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 24, 1965.

      John Whiteside, Fort Worth, for appellant
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder; the punishment, five years.

The injured party Martinez testified that he went to the Cactus Bar on the night in question and was seated alone drinking a beer when appellant called out to him from the other end of the curved bar and asked why he was staring at him. He stated that he informed appellant, who was a stranger to him, that he was not staring at him. Sometime later, as Martinez was going to the rest room, the appellant called him over and made the same inquiry again and received the same reply. He testified that appellant later came to where he was seated, said “I thought I told you not to be staring at me” and grabbed him by the shoulder, that he pushed appellant away, that appellant fell to the floor, got up, pulled a pistol and shot him in the leg. Martinez stated that he was unarmed and made no threatening gestures toward appellant just prior to being shot, and that appellant fired several shots toward him, but that he was only hit once and that thereafter he ran from the bar and fell in the street.

It was shown by medical testimony that the wound was of a serious nature resulting in Martinez’ being hospitalized for protracted periods.

It was shown that appellant fled from the bar, but upon advice of counsel surrendered himself to the police the following day.

The barmaid Esther testified that she overheard appellant and Martinez talking but was unable to repeat what they said, that appellant later came to where Martinez was seated, put his hand on him, and that Martinez placed his hand on appellant following which appellant fell to the floor, got up and started shooting at Martinez who was standing silent and motionless.

Empty spent shells and bullet holes were found in the bar when the officers arrived moments later, but appellant was nowhere in sight.

Defense witness Flores, who left the bar prior to the shooting, testified as to the conversation between appellant and Martinez, stated that Martinez was angry, had his hand in his hip pocket, and would not accept appellant’s apology.

Appellant, testifying in his own behalf, stated that he armed himself and went to the Cactus Bar, called to Martinez, “Pete, come here,” thinking that he was someone he knew. He further testified that Martinez became angry and either pushed or hit him, caused him to fall to the floor, and that he fired at Martinez in a sitting position because Martinez had put his hand in his pocket earlier in their encounter and because “he could have pulled something or hit me in the head, or whatever he felt like doing” while he was down on the floor. Appellant admitted that he saw nothing in Martinez’ hand at the time he fired.

The jury resolved the conflict in the evidence against appellant and we find the evidence sufficient to support the conviction.

By brief and in argument appellant contends that the court erred in permitting the prosecutor to cross examine appellant as follows:

“Q. Mr. Muro you stated in answer to your lawyer’s questions * * * Did you carry a pistol often ? * * *. ‘No sir’ * * *
“A. Yes sir.
“Q. You have carried a pistol before?
“A. Yes sir.
“Q. For what reason?
“MR.' WHITESIDE: Your Hon- or, we object to that * * * It wouldn’t ne material to any issue
“THE COURT; I am going to overrule that.
“A. I don’t know of any reason.”

Appellant had testified earlier in answer to his counsel’s questions that he did not know why he took his pistol out of the glove compartment of his automobile and put it inside his belt prior to entering the bar and that he did not make a habit of carrying a gun with him.

Clearly there was no error shown.

Appellant’s witness Flores testified that he was employed by a vending company as a burglar alarm man and worked on them. On cross examination he was asked if he worked on burglar alarms during the daylight hours. Appellant’s objection was sustained and the prosecutor apologized to the court and stated that he was making a small joke. We have been cited no authority and know of none which would require that the above calls for a reversal.

By a document entitled “Supplemental Statement of Facts on Hearing on Motion for Extension of Time” appellant has attempted to bring before this Court excerpts from the argument of the prosecutor. It is only where the entire argument of the prosecutor is brought forward in a separate statement of facts that this Court will consider informal bills of exception brought forward thereby.

Appellant cannot claim newly discovered evidence where he knew of the existence of the missing witness and did not call him to testify. Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612.

The trial judge was not disqualified because he had been an assistant district attorney at the time of the offense, but had no recollection of working on the case, and was assigned to work only on capital-cases and to act as legal advisor to the Commissioners Court at the time the case was filed. Since this case did not come within the purview of his assignment as assistant criminal district attorney and since he had no recollection of the case, he was not disqualified to sit on the case as trial judge. Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412; Prince v. State, 158 Tex.Cr.R. 65, 252 S.W.2d 945; and Wood v. State, 166 Tex.Cr.R. 94, 311 S.W.2d 409.

Finding no reversible error appearing, the judgment is affirmed.


text:
    Charles Allen BUHL, Appellant, v. The STATE of Texas, Appellee.
    No. 37932.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Robert L. Penrice, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with two prior convictions alleged for enhancement; the punishment, life.

The witness McDaniel, a checker in a food store in Fort Worth, testified that on the afternoon of the day in question while checking out a customer, she heard an unusual noise, attempted to close her cash regr ister, was unable to do so, observed a hand being withdrawn from her check stand and then saw appellant who was in the alley-way of the next stand and who had money in his hand. When she accused appellant of taking her money, he denied that he had done so,. When the manager arrived at the check stand and heard McDaniel’s accusation and appellant’s denial, he stated that it would be necessary to check the register to determine if it was short and instructed appellant to remain until he had done so, but appellant ran out of the store.

Mrs. King, the checker in the stand adjacent to Mrs. McDaniel’s, corroborated her testimony and also identified appellant.

Manager O’Neal and Assistant Manager Miller testified that when they arrived at the check stand in answer to Mrs. King’s call and heard Mrs. McDaniel’s accusation, appellant was instructed to wait until the cash register could be checked, but that as they ' prepared to do so, appellant fled from the store, and they gave chase. During the ■chase appellant threw something onto a vacant lot. Within a block and through the assistance of a filling station attendant, appellant was captured and returned to the spot where he had thrown an object, and ■$60.00 was recovered. Upon their return to the store, a check of the cash register revealed that it was short $75.00.

. The prior convictions and appellant’s identity as being the person convicted in the prior cases were established in the manner approved by this Court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143, and the cases there cited.

Appellant did not testify in his own behalf, but called his mother, who stated that on the night before the day in question she had given the appellant $20.00 with instructions to purchase an item which cost $1.65, but that when she returned home appellant was gone and had not left any change.

. We find the evidence sufficient to support the conviction and will discuss the contentions advanced by brief and in argument.

He first contends that the court erred in permitting the State to prove the two prior convictions before the finding of guilt on the primary offense. Appellant did not offer to stipulate to the prior convictions in the absence of the jury as was discussed and approved by this Court in Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253, and we adhere to our holding in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392.

He next contends that the court erred in instructing counsel not to discuss the question of punishment with the jury. Such contention was by this Court decided adversely to appellant in Preble v. State, Tex.Cr.App., 374 S.W.2d 444, and the cases there cited.

He contends that the court erred in failing to sustain his motion to quash the indictment. Though not properly before us for review, since it was not shown to have been presented to the court prior to announcement, we do find that it does allege that this appellant was convicted in one of the prior convictions under the name of Charles Allen Bull.

He further contends that the indictment is fatally defective because the primary paragraph concluded with the statutory phrase “against the peace and dignity of the state.” While it is true that we observed in Hagler v. State, 161 Tex.Cr.R. 223, 276 S.W.2d 269, that making such recitation more than once in an indictment was nei-' ther necessary nor good pleading, we have been cited no case and are aware of none which holds that a dual recitation of such phrase would render the indictment fundamentally defective.

Finding no reversible error, the judgment is affirmed.


author: McDONALD, Presiding Judge. BELCHER, Commissioner.

text:
    Joe DeLUNA, Appellant, v. The STATE of Texas, Appellee.
    No. 37681.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Motion to Reinstate Appeal Denied March 10, 1965.

      No attorney of record on appeal; Richard T. Prigmore, Brownfield (on motion to reinstate appeal), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is possession of a narcotic drug, to-wit: marijuana; the punishment, 15 years confinement in the state penitentiary.

The record does not reflect that a sentence was imposed upon the appellant. A sentence is requisite to the appeal in ordinary felony cases and notice of appeal may be given either before or after sentence is pronounced. Art. 829, Vernon’s Ann.C.C.P., Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; Marrero v. State, 164 Tex.Cr., R. 626, 302 S.W.2d 134.

For the reasons stated, this Court-is without jurisdiction to entertain the appeal. The appeal is dismissed.

APPELLANT’S MOTION TO REINSTATE APPEAL

BELCHER, Commissioner.

It appears from the supplemental transcript that sentence in this cause was pronounced upon the appellant while the appeal was pending in this court.

Until such time as the mandate of this court has been received disposing of the appeal, the trial court is without authority to pronounce sentence in this cause. Arts. 828, 772, C.C.P.; Le Bove v. State, 146 Tex.Cr.R. 157, 172 S.W.2d 342; Hughes v. State, 160 Tex.Cr.R. 114, 267 S.W.2d 836.

The motion to reinstate the appeal is overruled.

Opinion approved by the Court.