author: WADDILL, Commissioner.

text:
    Ralph FORD et al., Appellants, v. T. O. GILBERT, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    David R. Reed, Reed & Hines, Paducah, for appellants.
    George E. Overbey, Overbey & Overbey, Murray, Sam Boyd Neely, Martin, Neely & Reed, Mayfield, for appellee.
   WADDILL, Commissioner.

We are asked on this appeal whether the trial judge erred in awarding appellee, T. O. Gilbert, $2,470.62 as the balance due for services rendered appellants and in not specifically ruling on a counterclaim.

Appellants, Ralph Ford, Reuben Ford and Lucien Holmes d/b/a Ford-Holman Construction Company, were the successful bidders on a state road contract. Subsequently appellants orally contracted with appellee for him to perform certain work on 1.66 miles of this road. This action was filed by appellee to recover $6,712.76 allegedly owed for certain work done under this contract and under supplemental agreements. Appellants denied that they owed appellee any money and by counterclaim sought to recover the reasonable rental value of equipment furnished appellee on this job, for their costs in completing the work he left undone and for over-payments they made to appellee, a total sum of $8,-387.60.

The trial court sitting without a jury found that the parties had contracted for certain work to be done by appellee, that no agreements were made for supplemental work or for rental of equipment, and that appellee completed the following work and was entitled to the following remunerations :

Pipe work $ 830.00
Clearing of 1.66 miles of right-of-way 6,175.30
Earthwork for 1.66 miles of road 1,948.90
Spreading of 2300 tons of gravel 1,840.00
Removal of pipe 21.00
Removal of concrete 47.50
$10,862.70

He further found that appellee had been paid $8,392.08, leaving a balance due of $2,470.62. Judgment was entered against appellants for this latter amount.

It is contended for reversal that (1) the agreed rate for earthwork was $3,000.00 per mile, not $3,750.00 as found by the judge, (2) the allowance for pipe work and for removal of pipe and concrete erroneously exceeds the amount sought by the pleadings, (3) only 1 mile of earthwork, not 1.66, was performed, and (4) appellants were entitled to $5,400.00 on their counterclaim as the reasonable rental value of the equipment furnished appellee.

We consider the contentions in the order presented. Appellee testified that he was told by appellants he would receive for the earthwork whatever their state contract called for, “but it was not to be less than $3,000.00 per mile.” Ralph Ford, one of the appellants, testified the state contract price,was $3,750.00. The trial judge’s finding that appellee was to receive the latter rate of compensation is supported by substantial evidence and will not be reversed.

The second contention is that appellee may not recover in excess of the amount sought by his pleadings. Appellee sought $855.00 for pipe work, $14.60 for removing pipe and $31.60 for removing concrete. The trial judge allowed (supra) appellee to recover more than was asked on these items.

The second sentence of Civil Rule 54.03 provides:

“ * * * Except as to a party against whom a judgment is entered by default for want of appearance, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

This rule is identical to Federal Rule 54 (c) which has often been interpreted to permit recovery of sums greater than sought by the pleadings. Duke v. Sun Oil Co., 320 F.2d 853, (5th Cir.); Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60, (2nd Cir.); Wendy v. McClean Trucking Co., 279 F.2d 958, (2nd Cir.); Neff v. Western Cooperative Hatcheries, 241 F.2d 357, (10th Cir.). Other state jurisdictions which have adopted this rule have likewise interpreted it so that the pleadings lose much of the restrictive force they formerly had. Bechtel v. Benson, 94 Ariz. 350, 385 P.2d 225; Wilson v. Interior Airways, Inc., Alaska, 384 P.2d 956; Magill v. Lewis, 74 Nev. 381, 333 P.2d 717.

The reason for adopting this rule and the necessity of its proper application as evinced in the above cited cases is succinctly set forth in 3 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.), Section 1194 at page 35 as follows:

“The second sentence of Rule 54(c) provides that in non-default cases the judgment is not limited in kind or amount by the demand for relief, but may include whatever relief the successful party is entitled to, regardless of the demand. This provision implements the general principle of Rule 15 (c), that in a contested case the judgment is to be based on what has been proved rather than what has been pleaded. It is a necessary rule in a merged system of law and equity; indeed the difficulties which some states have had in implementing the merger of law and equity stems from a failure to grasp and to apply this principle. Any rule other than that stated in the second sentence of Rule 54(c) would mean preservation of the distinctions between law and equity and of the various forms of action which these rules are intended to abolish.”

See also 6 Moore’s Fed.Prac. (2nd Ed.), Section 54.62 and Ferguson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395.

We conclude that where the evidence supports the award it is not error to allow recovery for more than sought in the pleadings, particularly where the parties have treated the issues as joined. See CR 15.02.

The parties agree that appellee was to receive % of appellants’ profit on the pipe and this record shows the amount received by appellee from the state. As a part of his deposition, Ralph Ford (one of the appellants) stated that he would file as an exhibit a schedule showing the cost of the pipe. However, after the record on appeal had been filed with this Court, it was discovered that the envelope supposedly containing this exhibit was empty. Appel-lee moved to correct the record and pursuant to CR 75.08 we directed the judge of the Carlisle Circuit Court to determine whether there was in fact any omission and to submit a supplemental transcript if justified. Pursuant to that order the deposition of the judge who heard this case has been filed. This deposition shows that the judge had the exhibit before him when he made his finding and that he relied upon it in determining appellee’s % of the profit. Where portions of a record which were relied upon by the judge have been omitted on appeal (as in this case), issues of fact as determined by the judge will be presumed to be supported by the omitted record as against the contention of an appellant who has the burden of establishing error of the judge. Pike County Board of Education v. Varney, Ky., 253 S.W.2d 253; Cadden v. Commonwealth, Ky., 242 S.W.2d 409, Cert. denied 72 S.Ct. 1071, 343 U.S. 976, 96 L.Ed. 1369. Without this exhibit we cannot reasonably conclude that the trial judge’s determination is erroneous, and therefore this finding will not be disturbed.

The third contention that the trial judge erred in finding 1.66 miles of earthwork completed is without merit. Appellee testified that he did all the earthwork except 70 feet which could not be completed because two bridges hadn’t been built. The evidence to the contrary is a schedule of the highway department showing only one mile of earthwork completed after appel-lee left the job site. At most this created an issue of fact which was resolved against the appellants.

Similarly there is no error in the trial judge’s denial of appellants’ counterclaim for rental of their equipment since it was found there was no agreement to pay for the use of this equipment. Appellee testified that as part of his contract with appellants they were to furnish any additional equipment he needed without charge. The trial judge accepted appellee’s testimony rather than appellants’ which he had a right to do. We find no reversible error.

The judgment is affirmed.

STEWART, J., dissenting.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Ralph Louis BARNES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Ralph Louis Barnes, pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

This is an appeal from an order overruling, without a hearing, appellant’s motion to vacate a judgment under RCr 11.42.

Appellant was convicted on several counts of armed robbery and sentenced to serve seven years on each count after a plea of guilty. The gist of his motion to vacate the judgment is that at the time the alleged crimes were committed and at the time of trial, appellant was insane and the attorney representing him knew the facts upon which such a claim and a defense could have been interposed. Documentary evidence which would tend to support this claim was filed with the motion. The charge is made that appellant was not adequately represented by counsel because he was unable to cooperate with counsel and his mental condition was not brought to the attention of the trial court.

We think petitioner’s allegations go beyond that of asserting his lawyer failed to represent him in the best possible manner. If actually insane at the time of his trial, he cannot be held responsible for his plea of guilty or for his counsel’s mistakes (if any). See Commonwealth v. Strickland, Ky., 375 S.W.2d 701.

Under the unusual circumstances set forth in appellant’s petition, we are convinced that he was entitled to a hearing under RCr 11.42. This of course does not reflect any opinion as to the merits of his claim.

The order overruling appellant’s motion to vacate the judgment of conviction is reversed with directions to the trial court to grant appellant a hearing and otherwise proceed as provided in RCr 11.42.


author: DAVIS, Commissioner.

text:
    James P. NAPIER et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    H. B. Noble, Hazard, for appellants.
    Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for appellee.
   DAVIS, Commissioner.

In this condemnation case the appellant property owners appeal from the judgment in the circuit court, asserting that the verdict is inadequate and unsupported by sufficient evidence of probative value; the trial court erred in rejecting proper evidence and admitting improper evidence, and statements in the closing argument of counsel for appellees were prejudicial.

The property taken was an unimproved lot in the Walkertown section of Hazard, with frontage of about 84 feet along the west side of Kentucky Highway No. 15; the lot had a depth of about 535 feet, extending back from Highway No. 15 to the center of North Fork of the Kentucky River. The entire lot was condemned in this proceeding.

The verdict and ensuing judgment for appellants was $9000. Three valuation witnesses for the appellees placed the total value of the lot at $6700. Evidence for appellants fixed the value of the property at $21,331 to $30,579. The witnesses for appellee deposed as to sales of comparable properties in support of their stated opinions of value, as did the witnesses for the appellants. The jury viewed the premises. We have carefully considered the record and are unable to say that the verdict is inadequate. CR 59.01 (4) provides that a new trial may be granted for excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. It is our view that there was abundant evidence of probative value to support the verdict, and there is nothing in the record warranting a conclusion that the verdict was rendered as the result of passion, prejudice, or disregard of the instructions or evidence.

Appellants assert that reversible error was committed by striking a portion of the evidence adduced by a valuation witness presented by appellant. The witness, a brother of appellant James P. Napier, formerly lived on the subject property, but had resided in another state for about 26 years before the trial. He related that he had examined the courthouse records pertaining to the sale of four properties to Standard Oil Company, and gave details as to the contents of those deeds, such as the amount of U. S. documentary stamps and the total consideration paid. Appellant presented the same comparables by other witnesses. However, the witness in question failed to testify to any knowledge of general market value in the community. He admitted that he did not know what improvements had been on the lots sold to the oil company; he was not engaged in the real estate business, nor did he profess any expertise as an appraiser. Over objection of appellee, the trial court permitted the witness to express his opinion that the market value of the taken property was $21,094.60, but subsequently sustained ap-pellee’s motion to strike so much of his testimony as fixed the market value. Nevertheless, the trial court specifically told the jury that it could consider the evidence of the witness as it pertained to the com-parables—he merely struck that part which expressed the opinion of market value. There was no error in doing so. As we have said, the witness was not an expert in appraisal matters, nor did he profess to know general market conditions in the area. His only basis for expressing an opinion rested on his inspection of the four com-parables. When he had told the jury about those he had exhausted his store of “value” knowledge in the case—then the jury was as able as he to make appropriate deductions and conclusions from the comparables. Moreover, the value opinion as expressed by the witness was the lowest one offered for appellants.

Appellants complain that improper evidence was admitted. What are characterized as “examples” of incompetent evidence are quoted in appellants’ brief as follows: (Appellee’s witness Wells)

“Q2 Are there any other instructions as to benefit of doubt, or any such stuff as that ?
PLAINTIFF OBJECTS TO THAT (Sic)
BY THE COURT: Let him answer that, overruled
A Always in favor of the property owner, if there’s any doubt. Its the property owner’s property that we are affecting and he is dual person in his property, it is his money we are spending.”

This is the only one of the so-called “examples” cited. We will not search the record for others—although our careful reading of the record has not disclosed to us any prejudicial evidence. Neither do we regard the cited example as an instance of prejudicial evidence against appellant. The jury is presumed to be cognizant of the fact that the public’s money is expended for public highways. We are not able to discern any prejudicial exploitation of that truth in this case.

The final charge of error relates to the closing argument of appellee’s counsel. The brief answer is that appellant made no objection to the argument and has not preserved the claimed error for appellate review. Moreover, the argument complained of was largely responsive to the prior argument of opposing counsel, and was not prejudicial anyway.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Margaret B. COOPER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Madisonville, Thomas L. Withers, .Henderson, for appellant.
    William L. Sullivan, Henderson, for ap-pellee.
   MOREMEN, Chief Justice.

This case involves the condemnation of land belonging to appellee, Margaret B. Cooper.

Appellee’s land is an unimproved rectangular lot 295 feet in depth and 324.5 feet fronting on U. S. Highway 41, near the city of Henderson. .The land taken is 71 feet in depth across the entire frontage and consists of twenty-four per cent of the entire lot. On this particular property an extra 10 feet was taken from the edge of the former right-of-way leaving the property retained by appellee 10 feet farther back from the edge of the right-of-way than the adjoining properties.

The commissioners in the county court awarded $20,000 for the taking and on appeal to the circuit court, the jury returned a verdict of $14,750. The commonwealth claims this sum is so excessive that it appears to have been given under the influence of passion and prejudice.

The two witnesses introduced by the commonwealth stated that in their opinion the difference between the before and after values was $4250 and $4608. The three witnesses for appellee gave the following estimates: $27,625; $21,125; and $22,750.

In Pierson v. Commonwealth, Ky., 350 S.W.2d 487, it was said:

“The legal criteria for determining whether an award in a condemnation proceeding is inadequate or excessive are similar to those that govern in common law actions. Where the amount is within the range of conflicting testimony, and thus has tangible eviden-tiary support, it will be sustained unless it is palpably inadequate or excessive. Nichols on Eminent Domain, Vol. 5, § 17.3. In such cases it is said that the jury’s assessment of damages will not be set aside if it is ‘supported by substantial evidence.’ Bailey v. Harlan County, 1939, 280 Ky. 247, 133 S.W.2d 58, 60; Lexington & E. Ry. Co. v. Sumner, 1922, 196 Ky. 788, 245 S.W. 849, 850.”

The commonwealth complains that the verdict is based upon “testimony that is so incredible and contrary to common knowledge as to be without evidentiary value” — but we do not find it so. The property owner, Mrs. Cooper, demonstrated that she had considerable knowledge of real estate values. A witness, Mr. Hunt, a realtor and a member of the National Realtors’ Association, had engaged in the real estate business in Henderson County for about sixteen years. Mr. Fryer had engaged in the real estate business as a licensed broker for approximately twenty years. It seems to us that these witnesses had more than common knowledge — they were in fact experts and their testimony was substantial and sufficient. It supports the jury’s verdict.

All the witnesses agreed that the highest and best use of the property was commercial. Appellant contends, however, that Mrs. Cooper should not have been permitted to testify over objections as to specific commercial uses of the property. When questioned as to a specific use she answered that before the taking it was suitable for the site of a high quality motel, and later expressed her opinion that it could not be used for that purpose after the taking. However, her estimation of its value was not based upon this consideration alone. She was familiar with the sale price of other property on U. S. Highway 41, in and around this property, and properly gave the fair market values of the property immediately before and after the taking.

It is proper for a witness to testify as to all uses for which property is suitable and adaptable so long as it is connected with the question of market value. Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302. We do not believe this reference to a specific use influenced the jury to any extent because the true value of the property was firmly established by other evidence.

Another witness also testified as to its adaptability for a motel site before the taking and explained that the loss of almost one-fourth of this lot affected the market value after the taking because of the loss of parking space. However, these expert witnesses arrived at their valuation of the property by using the comparative sales approach. On cross-examination, appellant brought out that this lot could be used for other purposes, such as for a filling station. We believe the jury was entitled to consider all these things. We do not accept the premise that the mere suggestion of a specific use as a motel site was sufficient to cause the jury to disregard all other evidence and base its verdict on fantasy. We certainly do not find that the opinions expressed by these witnesses were based solely and primarily on an improper factor. Commonwealth, Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161.

Appellant next contends that the witnesses for the landowner were unable to give sufficient bases for their opinions of values. We do not agree. The witnesses based their opinions in the main upon values established by comparative sales in the community, and if appellant had wanted more detailed information, the bases of the witnesses’ opinions should have been examined upon cross-examination.

Finally, it is stated that the court erred in giving an instruction which merely required a finding of the difference in the before and after values, but no finding as to the values used by the jury for before and after in making their computation. In Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302, decided March 12, 1965, when discussing this same question, we said:

“In view of the fact that the instruction as given in this case did submit the question of the difference in the ‘before’ and ‘after’ values, as prescribed by our decision in the Sherrod case, supra, we announce herein that from the effective date of this opinion the suggested form shall be used; but this opinion shall not be considered to affect the validity of instructions given in other form prior to the effective date thereof.”

The above opinion was rendered about two years after the trial of the case under consideration.

We believe this ease was fairly tried and a just result reached.

In Commonwealth, Dept. of Highways v. Vaughn, Ky., 390 S.W.2d 146, 147, we made a statement which should be repeated :

“In nearly all litigation errors occur which blemish the record and they did here, but they were not dwelt upon or pushed to the point where they obviously prejudiced or misled the jury. The reasonableness of the judgment is the dominant question, and not the tangential errors or miscues which may have occurred during the trial. Trial errors are persuasive only when they strongly indicate that the verdict is unreasonable or is based upon noncom-pensable factors.”

Judgment affirmed.


text:
    Thomas Bertram ARCIERO (Formerly Thomas Bertram Lively), Appellant, v. Janice Belle HAGER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.

      Davis Williams, Munfordville, for appellant.
    Richardson & Goodman, C. B. Dowling, Munfordville, for appellees.
   DAVIS, Commissioner.

This appeal presents the question whether appellant, who was adopted in New York in 1946 by his stepfather and his natural mother, may inherit from his great-uncle by blood on his paternal side. The great-uncle died intestate in Kentucky on November 4, 1959. The lower court adjudged that appellant could not inherit from the great-uncle, hence this appeal.

The parties recognize that but for the adoption the appellant would inherit from his great-uncle pursuant to KRS 391.030. It is further conceded that had there been no change in the adoption statutes of Kentucky since appellant’s adoption in New York, the appellant would have the right to inherit. The adoption statute of New York appears to preserve the right of the adopted child to inherit from its natural parents — and for purposes of this opinion we will assume, without deciding, that the New York adoption statute, both at the time of the adoption and at the time of the death of the great-uncle of appellant, permits the adopted person to inherit from his natural kindred by blood, despite the adoption.

In order to resolve the question before us we need to determine whether the law of New York or the law of Kentucky controls. If the Kentucky law controls, then we must ascertain which Kentucky law controls— the law as it was in 1946, when the adoption occurred, or the law as it was in 1959 when the great-uncle died.

It seems to be well settled that the status of the adopted person is determined by the law of the forum of the adoption proceedings, unless the status so created- or the rights flowing from the status are repugnant to the public policy of another state in which they are sought to be enforced. Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816; Pyle v. Fischer, 278 Ky. 287, 128 S.W.2d 726; Restatement, Conflict of Laws, § 142; 2 Am.Jur.2d Adoption, § 12. But the rights of inheritance of the adopted child are generally governed by the law of the state in which the property is situated, if real property, or the domicil of the decedent if personal. This principle is thus phrased in 2 Am.Jur.2d Adoption, § 12, p. 870:

“However, the extraterritorial effect of a foreign adoption decree is limited by the principle that the descent of real property is to be governed by the law of the situs of the property, and the descent of personal property by the law of the domicil of the decedent.”

The problem is dealt with in greater depth in 2 Am.Jur.2d Adoption, §§ 114, 1 IS. In the latter section the following expression appears:

“According .to the better view and weight of authority the rights of inheritance of the child as an adopted child, and the extent of such right of inheritance, will be determined, not by the law of the state where the adoption took place, but in the case of real property by the law of the state where the property is located, and in the distribution of personal property by the law of the domicil of the intestate owner, at the time of his death. This rule is applied regardless of whether the local law enlarges the rights of the adopted child as fixed by the law of the state where the adoption took place and confers rights of inheritance where none existed in the state of adoption or diminishes, such rights. The fact that an adopted child can inherit under the law of the state of his adoption will not enable the child to inherit property in another state under the laws of which a child, if adopted in that state, cannot inherit or can inherit only to a limited extent.” (Emphasis added.) 2 Am.Jur.2d Adoption, § 115, pp. 957, 958.

The same rule is enunciated in Restatement, Conflict of Laws, § 305, Comment b., in which it is thus put:

“ * * * If the law of the state of the decedent’s domicil does not allow an adopted child to take a distributive share, he cannot do so, although the law of the state of adoption or of the state where a chattel is would allow him to take.”

We regard the quoted principles as sound and adhere to them. It follows that Kentucky law governs in this case. It is conceded that at the time of the adoption (1946) the Kentucky law permitted an adopted child to inherit from its natural parents as well as from its adoptive parents. KRS 405.340 was then in force, and provided, in part:

“(9): Nothing in this section shall be so construed as to prevent the adopted child from inheriting under the general law in regard to descent and distribution from its natural parents.”

In 1956, KRS 199.520 was enacted. In pertinent part the cited statute reads:

“(2) From and after the date of the judgment the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it the same as if born of their bodies. Except where a natural parent is the spouse of an adoptive parent an adopted child from the time of adoption shall have no legal relationship to its birth parents in respect to either personal or property rights.”

We consider it plain that the quoted statute has the effect of excising the adopted child from its “blood” family tree. It is observed that the statute expressly provides that the adopted child shall have “no legal relationship to its birth parents in respect to either personal or property rights”— except where a natural parent is the spouse of an adoptive parent. We do not construe that exception (as urged by appellant) as having the effect of leaving the adopted child in its birth family tree for all purposes; rather, we regard that exception as making it clear that the adopted child shall not lose its inheritance rights with respect to its natural parent who is a spouse of the adoptive parent. But for that saving clause it might be that the statute would have had the effect of terminating the adopted child’s inheritance rights from its natural parent — even though that natural parent was the spouse of the adoptive parent.

It is said to be the general rule that the adopted child shall inherit from the natural parents unless the statute forecloses the right. Wailes v. Curators of Cent. College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326; 2 Am.Jur.2d Adoption, § 104. This court held in Villier v. Watson’s Adm’x, 168 Ky. 631, 182 S.W. 869, L.R.A. 1918A, 820, that the adopted child did not lose its right of inheritance from the natural parents, but that was under a different statute.

We have recognized the principle that the present adoption law envisions a “complete breaking off of old ties.” We have spoken of that approach as one demanded by public policy. Jouett v. Rhorer, Ky., 339 S.W.2d 865. In the just cited case the question had to do with visitation rights of a natural grandfather of the adopted child — that was spoken of as a “personal” tie that was severed. The opinion expressed the court’s view, however, that “ * * * the adoption of a child necessarily brings to an end all connections, legal and personal, with any natural parent.” We consider that view to be the sound one and apply it now as respects the “legal” connection of inheritance.

We have no difficulty with the question as to whether the law existing in 1946 (time of adoption) or the law existing in 1959 (death of the intestate) is to control. In our view the law fixing the rights at the time of the death of the great-uncle is controlling. Breckinridge v. Skillman’s Trustee, Ky., 330 S.W.2d 726. 2 Am.Jur.2d Adoption, § 109.

Appellant contends that the effect of the statute is to work attainder upon him in contravention of § 20, Ky. Constitution. We think the patent meaning of the constitution forecloses such an argument. § 20, Ky. Constitution, provides:

“No person shall be attained of treason or felony by the General Assembly, and no attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth.”

The constitutional reference to bills of attainder relates only to punishment for crime; the statute now under consideration simply does not fall within the purview of the attainder section of our Constitution. 16 Am.Jur.2d Constitutional Law, §§ 411, 412.

Appellant asserts that KRS 199.520 (2) is unconstitutional because enacted in violation of § 51, Kentucky Constitution. Appellant points to the heading of KRS 199.520 as the title of the Act. However, that is not the Act’s title, it is merely the caption as prepared by the statute reviser. KRS 446.140. Hence there is no merit in the contention as presented.

Neither is the legislation ex post facto within the meaning of § 19, Kentucky Constitution. Appellant had no fixed right to inherit under Kentucky law until the date of the death of the ancestor from whom inheritance is claimed. Obviously, no person has more than an expectancy or prospect of inheritance during the lifetime of the person from whom inheritance is claimed. It is fundamental that the legislature may modify the laws of descent without impairing the rights of persons who would have inherited under an earlier law, so long as that modification occurs before the actual date of the inheritance.

The judgment is affirmed.


author: HILL, Judge.

text:
    L. D. CAVITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    As Modified on Denial of Rehearing Dec. 17, 1965.
    David R. Reed, William E. Scent, Reed & Scent, Paducah, for appellant.
    Robert Matthews, Atty. Gen., David A. Schneider, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant seeks a reversal of his conviction and sentence for two years under KRS 435.170(1), shooting and wounding with intent to kill, on the grounds that (1) the indictment was defective; (2) the evidence was insufficient to support the verdict; (3) the instructions were defective; and (4) the Commonwealth Attorney was guilty of misconduct in the statement and argument of the case.

On April 11, 1962, Leonard T. Sasseen, the shooting victim, stopped at the Hall Motel in Mayfield, Kentucky, where his estranged wife and their two small girls had been living the four months since their separation. Sasseen says appellant met him at the front door and said: “Don’t you know what I’ll do to you if you don’t get away from the door.” Appellant denies this. Sasseen then went to the back door, did not get in, but observed his wife using the telephone. He correctly assumed she called the police. He returned to the street and intercepted the police who persuaded him to go with one of them to the police headquarters and get a warrant. He did not get a warrant. He returned, walking, to the motel where he had left his car. In the meantime, appellant returned to his home for ten to thirty minutes and called Mrs. Sasseen’s home telephone but no one answered. He got in his car and went looking for her, first at the home in which he had just recently been “visiting” and, finding no light on, then went to the home of the mother of Mrs. Sasseen. He did not locate her there and on his return he saw Sasseen crossing the street in his direction, holloing “Hey.” Appellant says he had his pistol with him during all these times; it was on the seat by him when he says Sasseen hailed him. He stopped the car, motor still running, and got the pistol. Sasseen “lunged” at appellant through the car window and appellant shot him in the head. They tussled some after the shooting in which appellant says he received an injury, but he knew not how. Appellant then “pushed” the wounded Sasseen out of the car. Sasseen went around the back of the car, left the scene, dodging from tree to tree like an addled chicken.

The indictment was returned June 20, 1962, which obviously preceded the effective date of the “new” Rules of Criminal Procedure on January 1, 1963.

Appellant first contends the indictment was defective under the “old” rules, Section 124(b), because the accusatory part of the indictment did not charge defendant committed the offense “wounding another with intent to kill.” The relevant part of the indictment is as follows:

“accuse L. D. Cavitt of the crime of wilfully and maliciously shooting at another committed in manner and form as follows, to-wit: The said defendant L. D. Cavitt in the said county of Graves, on the 18 day of June A.D. 1962, and before the finding of this indictment, did unlawfully, willfully, feloniously, and maliciously with a gun or other instrument loaded with leaden bullets or other hard substance shoot at Theodore Sasseen with the intent to kill him but so that he does not die from the wounds.” (Emphasis added.)

It is true, as contended by appellant, a number of early cases required all statutory elements of the offense to be stated both in the accusatory and descriptive parts of the indictment. Cf. Commonwealth v. Tupman, 30 S.W. 661, 17 Ky.Law Rep. 217 (1895), and Puckett v. Commonwealth, 264 Ky. 577, 95 S.W.2d 242 (1936). However, this rule was departed from in Rose v. Commonwealth, 294 Ky. 279, 171 S.W.2d 435 (1943), wherein this Court said:

“There are to be found a number of older cases holding that the accusatory part should be full and complete in naming the offense, and that a failure was fatal, even though the descriptive portion clearly set out essential description, but we have in later days held that the indictment must be read as a whole, and if when so read it fairly and reasonably apprises the accused of the offense, and is complete in describing the acts constituting the offense, the indictment, if it otherwise complies with Criminal Code of Practice § 124, is sufficient.”

The descriptive part of the indictment contains the charge that the shooting was done with “intent to kill” and “that he does not die from the wounds.” The indictment does not specifically charge Sas-seen was wounded; it is clearly inferred. Appellant was not misled or prejudiced. The indictment was sufficiently definite.

It is next urged that the evidence was insufficient, as a matter of law, to support the verdict. Appellant points out that Sasseen was an ex-college football player and some 40 pounds heavier than appellant, and that Sasseen stopped or hailed appellant. Apparently, this is all true. However, appellant went home, to a place of ostensible safety, away from the scene of conflict, and returned with his pistol “by his side.” It is reasonable to assume he knew Sasseen was jealous and angry. He certainly knew Sasseen was not bringing glad tidings. He could have driven on by. Instead, he joined issue and met the situation, voluntarily, head on. We conclude the evidence was amply sufficient to take the case to the jury and to sustain the conviction. Parsley v. Commonwealth, Ky., 273 S.W.2d 372 (1954).

Complaint is made that the instructions given did not define “aforethought” and “sudden affray.” Malice was defined. It was unnecessary to define “aforethought” and “sudden affray.” Cf. Ewers v. Commonwealth, 284 Ky. 780, 146 S.W.2d 1 (1940).

Appellant’s departing salvo at the verdict and judgment assails statements by the Commonwealth Attorney during the statement of the case and during his closing argument. The two following statements are especially emphasized as being prejudicial:

“Sasseen was doing a gentlemanly act in trying to protect the interests of those little girls.”
“He went to Sasseen’s home and made himself at home, with his children, still married.”

These comments pertained to facts and conclusions well known to the jury. They were a little below the belt, but we do not think it was shown they were so prejudicial to the substantial rights of the appellant as to justify a reversal.

The judgment is affirmed.


author: CULLEN, Commissioner. STEWART, Judge

text:
    George KISER, Appellant, v. BARTLEY MINING COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    April 23, 1965.
    Rehearing Denied and Dissenting Opinion Piled Dee. 17, 1965.

      Kelsey E. Friend, Friend & Mullins, Pike-ville, for appellant.
    John M. Stephens, Stephens, Combs & Page, Pikeville, for appellees.
   CULLEN, Commissioner.

In this workmen’s compensation case the employe was given an award for 50 percent permanent partial disability resulting from a silicotic condition. On appeal the circuit court set aside the award on the ground that the claim was barred under KRS 342.185.

The appellant employe was last employed as a coal miner in November 1957. In October 1960 he was informed by a doctor that he had contracted the disease of silicosis. In July 1961 he filed his claim for compensation.

At the time appellant’s employment ceased there were on the statute books two provisions of workmen’s compensation law fixing different limitation periods. KRS 342.316(3) provided in part as follows:

“The right to compensation under this chapter for disability resulting from an ocmpational disease shall be forever barred unless a claim is filed with the Workmen’s Compensation Board within one year after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur; * * (Our emphasis.)

KRS 342.185 provided in part:

“ * * '* In cases of the disease of silicosis, caused by the inhalation of silica dust, no application for compensation shall be considered unless notice is given and claim is made within three years after the last injurious exposure to silica dust.” (Our emphasis.)

It will be noted appellant’s claim was filed within time under the first above quoted statute, but it was too late under the last'quoted statute. It is appellant’s position that although KRS 342.185 continued to be carried on the statute books, actually it had been impliedly repealed in 1956 by an amendment of that year to KRS 342.316. It is contended that we so decided in Osborne Mining Company v. Davidson, Ky., 339 S.W.2d 626. That case did not involve the question we have here because the employe’s claim was timely filed under both statutes. Some rather casual language of the opinion, used in the discussion of the history of these statutes, cannot and should not be interpreted as an authoritative holding that KRS 342.185 was impliedly repealed by the 1956 amendment to KRS 342.316.

We find it unnecessary in this case to determine the question of whether KRS 342.-185 was impliedly repealed in 1956, because it is our opinion that the limitation imposed by that section against the instant appellant’s claim was effectively removed by a 1960 amendment to the section, effective June 16, 1960, which deleted the limiting language. That amendment became effective before the three-year limitation period had run against appellant’s claim.

Some jurisdictions hold that an amendment to a workmen’s compensation law extending the period of limitations on a claim should not be construed as being applicable to claims that arose before the amendment took effect. See Annotation, 79 A.L.R.2d 1109 to 1113. But the majority view is that such an amendment properly may be considered applicable to claims that arose before the amendment, where the previously existing limitation had not run on those claims at the time the amendment became effective. See Annotation, 79 A.L.R. 2d 1100 to 1104. We think the majority view is sound and we adopt it.

It is our conclusion that appellant’s claim should not have been held to be barred by KRS 342.185, since the limitation imposed by that statute was deleted before it had run.

In the circuit court, appellant attempted by “counterclaim” to assert error by the Workmen’s Compensation Board in awarding him compensation only for partial, rather than total disability. However, the counterclaim was not asserted within the 20-day period allowed by KRS 342.285 for taking an appeal, and therefore it was too late. Cf. Keeney v. Commonwealth Dept. of Highways, Ky., 345 S.W.2d 481; Scott v. Alaska Industrial Board, 123 F.Supp. 361, 15 Alaska 146; Associated Indemnity Corp. v. Marshall, 9 Cir., 71 F.2d 235.

The judgment is reversed with directions to enter judgment affirming the order of the Workmen’s Compensation Board.

STEWART, Judge

(dissenting).

I dissent from the opinion because it holds, erroneously I believe, that the three-year limitation period of KRS 342.185, applicable in 1957, was removed by KRS 342.-316(3), the amendment of 1960.

The opinion is to the effect that, as the amendment became effective before three years had run against appellant’s particular claim, the claim was not barred. The opinion states this is the “majority view” and, without giving any reason therefor, adopts it as a “sound” basis upon which to rest the opinion.

The annotation referred to in the opinion very carefully avoids classifying what appear at first to be conflicting views as “majority” and “minority.” Instead it is pointed out that the cases listed in one section (Sec. 11) of the annotation, “adhere to the view that statutes enlarging the limitation period are merely procedural and remedial in nature * * The cases appearing in a later section (Sec. 14) of the annotation (at 79 A.L.R.2d 1109 to 1113) reach a contrary result because in those jurisdictions such statutes are different, are more than procedural, are not ordinary statutes of limitations but are “considered as a limitation upon the rights as well as the remedy.”

Whatever may be the provisions of the workmen’s compensation laws in states that construe time limitations another way, in this state the time requirements are fixed by the statute that creates the liability. This principle is clearly declared in United States Fidelity & Guaranty Co. v. Tafel Electric Co., 262 Ky. 792, 91 S.W.2d 42, 44. That opinion said on this point:

“Where a statute creates a new legal liability, with a right to a suit for its enforcement, provided the suit is brought within a designated period, the time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. In such cases it is treated as a condition attached to the right to sue and will control no matter in what form the action is brought.”

See also 34 Am.Jur., Limitation of Actions, Sec. 7, pp. 16,17.

We have here then a statute of creation. Just as the amount of compensation appellant shall be paid is fixed ats of the date of the injury (See Osborne Mining Corporation v. Mallie Blackburn et al., Ky., 397 S.W.2d 144, this day decided), so the time within which he must file his claim is fixed, by the statute which gives him the claim and not some other, later, different law.

It would seem to be beyond question that the workmen’s compensation law “creates a new legal liability.” In Taylor-Couch Construction Co. v. Elmore, Ky., 264 S.W.2d 56, 59, it was said: “ * * * the purpose of workmen’s compensation statutes is to create liability and corresponding right irrespective of fault * *

Since appellant did not assert his claim within the time allowed by KRS 342.185, effective at the time liability would attach, the circuit court correctly adjudged that appellant’s application for compensation could not be considered or allowed.

I would affirm the judgment.

MONTGOMERY, J., joins me in this dissent.


text:
    Sam COPELAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.

      C. Terry Earle, Greenville, for appellant.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Sam Copeland appeals from an order overruling his motion under RCr 11.42 to vacate a 1946 judgment sentencing him to serve a life term for storehouse breaking and a violation of the habitual criminal act.

In his motion, appellant relied on the following three grounds for relief: (1) failure to give him an examination pursuant to KRS 203.340; (2) hastily forcing him into trial without allowing sufficient time to prepare his case; and (3) failure of the trial court to properly instruct the jury.

The lower court held as a matter of law that grounds one and three were legally insufficient on their face to entitle appellant to a hearing but ordered a hearing on ground two. In so doing, we think the lower court was correct.

Before progressing to ground two, it should be said in connection with ground one that KRS 203.340 is a part of Chapter 203 of KRS pertaining to “Custody, Support and Treatment of Incompetents.” This section provides for mental examination of persons upon being indicted for the third felony offense, but the statute is not mandatory. Subsection three provides that the Commissioner of Mental Health may decline to make the examination in the event he is short of psychiatrists. RCr 8.06 now controls the procedure in the event there is any question as to the mental capacity of the defendant in a felony case. There is no allegation in appellant’s motion that he suffered from insanity to any degree at the time of his trial and conviction.

Ground three contains a blanket complaint stating that the trial court did not give “the whole law of the case” and is likewise insufficient to entitle appellant to a hearing. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

We now consider ground two in which appellant charges his constitutional right to have effective assistance of counsel was violated, in that he was forced into trial “five minutes” after counsel was appointed for him, that he could not obtain witnesses in such a short period of time, and that his counsel could not prepare his defense.

Appellant was arraigned on Friday and was tried the following Tuesday. Counsel was not appointed until the day of his trial. Appellant testified during the hearing on his motion to vacate that his attorney had “five” or “ten” minutes in which to confer with him. There was no motion to continue, and appellant testified as follows on the question of continuance: “I asked Mr. Howard (court-appointed counsel) about getting my case put off until' the following Friday. I thought that Pryor (a joint defendant) had a good attorney and I would like to know what the results would be in his trial before I went into trial on mine. He informed me that it wouldn’t do any good to ask for a continuance, that I would have to be tried * * It is not clear whether his counsel meant it would be useless to ask for a continuance, or that a continuance would be of no avail to appellant. The fact that the court granted a continuance to the codefendant indicates that his attorney meant to advise appellant that a continuance would not improve his chances of acquittal. The codefendant was later convicted.

Campbell Howard, court-appointed attorney for appellant now deceased, was a qualified practicing attorney and member of the Kentucky Bar at the time of the trial. He was between fifty and sixty years of age. It is shown that he practiced criminal law extensively.

The attorney who prosecuted appellant in 1946 has also departed this life. We are, consequently, left with only the word of appellant as to what transpired between appellant and his court-appointed attorney. But, taking appellant’s own version, it is not sufficient to justify setting aside a verdict and judgment that have gone unchallenged for nearly twenty years, during which period the only voice that could contradict appellant has been stilled by death. We prefer to engage in the presumption expressed in United States ex rel. Feeley v. Ragen, 7 Cir., 166 F.2d 976, wherein it is said that when the court in good faith appoints a member of the bar in good standing to represent the defendant, the presumption is that such counsel is competent and diligent. Otherwise, he would not be in good standing at the bar or appointed by the court in the first place.

Appellant made no objection to the manner in which his defense was conducted. In fact, appellant did not testify in his own behalf. He prosecuted no appeal from his conviction. The other participants in his trial are gone. At this late hour his feeble cry of inadequacy of counsel will not be heard. Cf. Rice v. Davis, Ky., 366 S.W.2d 153 (1963); Tompsett v. State of Ohio, 6 Cir., 146 F.2d 95; Uwaniwich v. Commonwealth, Ky., 390 S.W.2d 658 (1965).

The judgment is affirmed.


text:
    Samuel M. PINSLY, Appellant, v. W. H. THOMPSON, Appellee. Samuel M. PINSLY, Appellant, v. Virgil ATHA, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.

      Ben B. Fowler, Dailey & Fowler, Frankfort, for appellant.
    Edward F. Prichard, Jr., Marion Rider, Frankfort, for appellees.
   CLAY, Commissioner.

Defendant appellant, Samuel M. Pinsly, appeals from two judgments of the Franklin Circuit Court requiring him to arbitrate appellees’ rights under a protective order of the Interstate Commerce Commission, which approved the transfer of the Frankfort and Cincinnati Railroad from the then stockholders to the said Pinsly.

At the time of this transfer appellees were employed by or were officers of the company (their exact status is in issue), but in June 1961, their services were terminated. They applied to appellant for arbitration concerning dismissal allowances provided in the ICC order. Appellant refused to arbitrate on the ground the discharges in no way resulted from the transfer. Each of the appellees then brought an action in the Franklin Circuit Court for a judgment declaring their right to arbitration. The trial court adjudged defendant was required to form a committee to arbitrate the question of dismissal allowances allegedly due appellees.

It is required by a provision of the Interstate Commerce Act, 49 U.S.C.A., Section 5(2) (f), that the Commission, in any proceeding for the acquisition of control over a carrier, make a “fair and equitable arrangement to protect the interests of the railroad employees affected”. The ICC order in the instant case incorporated the conditions of Oklahoma Railway Company Trustee Abandonment, 257 I.C.C. 177, for the protection of employees displaced by the sale of the railroad. Under the terms of Section 5 of the Oklahoma conditions, an employee dismissed as a result of the transaction approved by the ICC order is due a dismissal allowance. Under Section 8 of same, if any dispute arises as to the protection afforded by these conditions, it may be referred by either party to an arbitration committee. In New Orleans and Northeastern Railroad Company v. Bozeman, 5 Cir., 312 F.2d 264, employees of a railroad who were dismissed after a transfer sought protection under the Oklahoma conditions, which were incorporated in the provisions of the ICC order approving the transfer just as in the instant case. It was held that Section 8 of the conditions gave either party the absolute right to arbitration to settle the dispute.

We are faced with an abundance of difficult problems and a paucity of law. The issues, though not in the order presented in the briefs on appeal, are as follows:

1. Were appellees officers or employees ?
2. Did the trial court err in refusing to determine if appellees’ termination of employment was the result of the transfer?
3. Must appellees have exhausted their administrative remedy, if any exists, before seeking a judicial remedy?
4. If there is a judicial remedy, do the federal courts have exclusive jurisdiction ?

1. Section 5(2) (f) of the Interstate Commerce Act and the ICC order provide protection for “employees”. Nowhere in the Act is the term “employee” defined. Appellant argues that appellees were officers, not employees. A federal district court has held a vice-president and general manager of a railroad is not an employee. McDow v. Louisiana Southern Railway Company, 5 Cir., 219 F.2d 650. Appellees were not named as officers in the company’s Articles of Incorporation. But the appellant presents other factors and tests as determinative. Appellees rebut with factors and tests of their own. The trial court, in considering the totality of the facts, drew the line between officer and employee so as to include the appellees as employees. Its finding that the appellees are employees within the meaning of the Interstate Commerce Act and the ICC protective order is not clearly erroneous and we will not disturb it.

2. By answer appellant interposed the defense that appellees may not avail themselves of the protection outlined above since their dismissal was for the purpose of increasing the efficiency of the operation of the railroad and was unrelated to appellant’s acquisition of control. The trial court, in granting appellees’ motion to strike this defense, held the matter should be determined by arbitration.

Appellant insists that he is entitled to a judicial determination that appellees are not entitled to dismissal allowances because such dismissals were not occasioned by the transfer of ownership. This, however, appears to be one of the very questions which the protective order contemplates could become a matter of arbitration. For example, Section 6 of the order refers to an employee “affected by the transaction” (transfer of ownership). Section 8 provides “in the event any dispute or controversy arises with respect to the protection afforded” by condition 6, etc., which the parties cannot settle, either party may refer the matter to arbitration. We certainly have here such a dispute or controversy. That the subject matter of this dispute must be arbitrated, and not decided by a court, was the basis of the decision in New Orleans and Northeastern Railroad Company v. Bozeman, 312 F.2d 264 (above cited).

The judicial question in this case is whether appellees have a right to invoke arbitration procedure. It is not whether they win or lose. If the court undertook to determine such question, it would bypass the arbitration rights of the parties and thereby effectively destroy those rights.

From a practical as well as a legal standpoint, this issue lies within the province of arbitration because it can better be decided by those more closely related in the railroad business to the problem involved. Also from the practical standpoint, if such an issue as this were decided by a court, there would seem to be nothing significant left to arbitrate.

3. Appellant contends that appellees could seek no judicial remedy until they had exhausted their administrative remedy. The argument is based on the assumption that some prescribed and/or adequate remedy exists before the Interstate Commerce Commission.

Appellant has failed to point out any prescribed administrative remedy and we have been unable to find one. The whole doctrine of exhaustion of administrative remedies is based upon the existence of a specific remedy provided by statute. See 2 Am.Jur.2d, Administrative Law, section 595 (page 426). In the principal case relied upon by appellant, Macauley v. Waterman S. S. Corp., 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839, the court simply recognized that a party could not invoke a judicial remedy (by injunction) and thereby bypass specific administrative procedures which had been prescribed for settlement of the controversy involved. Other cases cited by appellant do not support his contention that an administrative remedy exists to settle the present controversy. While appellant claims the parties seek clarification of an administrative order, what is actually sought is the enforcement of the order.

Precisely the same character of dispute we have here was involved in the Bozeman case, heretofore cited. The employer applied to the Interstate Commerce Commission for “clarification” of this arbitration provision (Section 8). The Commission declined to entertain the proceeding on the ground that the application of protective order conditions should be settled as provided in those conditions or by the courts. Neither the Commission, nor the court in that case, would recognize the existence of an administrative remedy with respect to a controversy of the kind we have before us. As far as we can discover, none exists.

4. The final contention of appellant is that the state court does not have jurisdiction of this controversy because the Interstate Commerce Act confers exclusive jurisdiction on the federal courts. This argument is based upon Sections 8 and 9 of the Act. (49 U.S.C.A. Sections 8 and 9) Section 8 provides:

“In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” (Our emphasis)

Section 9 provides in part:

“Any person or persons claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction; * * (Our emphasis)

It is said that since this proceeding constitutes an attempt to enforce an order issued by the Interstate Commerce Commission under the Act, it is a proceeding of which the United States district courts have exclusive jurisdiction under Section 9 quoted above. Appellees counter with the proposition that they acquired under the protective order a common law contract right which was enforceable in the state court under Section 22 of the Interstate Commerce Act (49 U.S.C.A., Section 22) which provides:

“ * * * nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions are in addition to such remedies.”

We believe there is a more realistic solution to the problem. It simply requires recognition of the fact that this proceeding is not a suit for damages within the scope of Sections 8 and 9 above quoted.

In the first place, if we assume this was in the nature of a suit for damages, they do not arise from a violation of any provision of the Interstate Commerce Act. In Arnold v. Louisville and Nashville Railroad Company, D.C., 180 F.Supp. 429, 434, it is stated, with authorities in support:

“To sustain a recovery under these sections, (Sections 8 and 9) it must appear that damages arise from the violation of some provision of the act itself.” (Our emphasis.)

Appellant is not charged with violating any provision of the Act.

Secondly, even if failure to comply with the ICC order constituted a violation of the Interstate Commerce Act itself, appellees’ right to damages could not accrue until a determination that they were entitled to dismissal allowances under the ICC order. This, we have determined, must be left to arbitration. Until, as the result of arbitration, appellees have established that they are entitled to dismissal allowances under the ICC order, they have no right of recovery which would entitle them to damages for violation of the order or the Act.

Finally, this lawsuit cannot be entertained as one seeking the recovery of damages. Even though appellees asked by way of alternative relief for dismissal allowances (which may or may not constitute “damages”), it is clear from what has been said above that they do not have a right to such relief until arbitration is completed in their favor and this Court could not grant such relief at this time. Therefore, the suit resolves itself into a claim for a declaration of rights, and the remedial provisions of Section 9 do not apply. Consequently, our state court had jurisdiction under the provisions of KRS 418.045.

The judgment is affirmed.

        . In appellees’ brief it is stated that appellees did seek relief from the Commission which was unavailing.


text:
    Hassie Cane MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Opinion Supplemented on Denial of Rehearing Dee. 17, 1965.

      John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

This is an appeal from an action instituted in the Fayette Circuit Court, pursuant to RCr 11.42, in which appellant, Hassie Martin, sought to have .set aside a judgment of that court by which he was convicted of murder on February 3, 1961, and was sentenced to death.

The original judgment of conviction was appealed to this Court and affirmed in Martin v. Commonwealth, Ky., 361 S.W.2d 654. The United States Supreme Court denied certiorari on January 21, 1963, and a petition for rehearing was overruled on February 22, 1963.

Afterwards Martin filed a habeas corpus petition in the United States District Court for the Western District of Kentucky in which he raised substantially the same issues as are presented by this RCr 11.42 proceeding. The petition was denied and an opinion was filed in which the issues were discussed in detail. This opinion by Judge Roy M. Shelbourne may be found in 221 F.Supp. 112. In turn the case was appealed to the United States Court of Appeals for the 6th Circuit where the District Court judgment was affirmed, 331 F.2d 603, and later the United States Supreme Court denied certiorari, 379 U.S. 925, 85 S.Ct. 280, 13 L.Ed.2d 338.

Thereafter the present action was instituted. The commonwealth filed a response in which was delineated the history of the case. It stated that no new and different grounds were stated in the motion that the courts had not already thoroughly and fully reviewed. Upon submission the trial court adjudged the response to be sufficient and overruled the motion to vacate the original judgment.

On this appeal this Court has examined the questions presented in a brief for appellant, has compared them with the questions heretofore decided by this Court and by the federal courts and has found the questions presented to be substantially the same as those heretofore decided. We have again reviewed the law in connection with the issues raised and have determined that no error was committed in the original trial prejudicial to the substantial rights of the appellant, and are of opinion that appellant has not been deprived of his constitutional rights under Section 11 of the Kentucky Constitution and the 6th and 14th Amendments to the Constitution of the United States. Furthermore, we do not find the 1965 U. S. Supreme Court’s decision in Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed. 934, and Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, applicable because none of Mr. Downing’s testimony in chambers was presented to the jury. Mr. Downing did not appear as a witness before the jury, so that the right of confrontation and cross-examination under the Sixth Amendment was not involved.

Judgment affirmed.


author: MORRISON, Judge.

text:
    Francis S. BEAUDOIN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38532.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 5, 1966.
    Ochsner, Nobles & Baughman, by Frank J. Baughman, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, ten years.

Appellant’s co-principal testified for the State that on the night in question he and the appellant robbed the attendant at a filling station on Amarillo Boulevard in that city, that appellant exhibited a pistol and that he exhibited a knife when each of them announced that “this is a stickup”.

Appellant’s confession recites practically the same facts.

The witness MeCurry testified that he operated a filling station on Amarillo Boulevard, that he left the station at six o’clock in the care of Douglas Colbert whose duty it was to manage the station until 10:00 p. m., their normal closing hour. He stated that on the 10 o’clock news he learned that his station had been robbed and that when he arrived at the station two policemen were there with Douglas Colbert and that a check of his cash register slip showed that $99.50 was missing. He stated further that Douglas Colbert had left his employment by the time of the trial and that he did not know where he might be located.

Appellant testified before the Court at the hearing on the issue of the voluntary nature of the confession and before the jury on the merits. He admitted that he was at the filling station on the night in question with his co-principal and that he took money out of the cash register, but stated that he signed tthe confession because the officers promised to recommend a suspended sentence to the prosecutor if he confessed. Both officers named in appellant’s testimony denied that they had made any such representation to appellant. Both the Court and the jury chose to accept the officer’s version of the facts concerning the taking of the confession.

Appellant’s first contention is that since Douglas Colbert was not called as a witness the Court should have granted his motion for instructed verdict. Reliance is had upon Sparks v. State, 77 Tex.Cr.R. 154, 177 S.W. 968, 969. In that case the indictment charged that John Noles had been robbed. The injured party did not testify, and there was no showing that the person the witness McDaniels saw being robbed was in fact John Noles. Such is not the case at bar. The indictment charged that Douglas Colbert was robbed and McCurry said that Colbert was in charge of his station and was there at the station with the police when he discovered that the money was missing from his register. In the relatively recent case of Harrell v. State, 172 Tex.Cr.R. 418, 358 S.W.2d 126, we stated that the rule in this Court has been well established that the testimony of an accomplice witness together with the confession of the accused is sufficient to establish corpus delicti.

Appellant’s next contention is that the Court erred in permitting the prosecutor to question appellant about a prior confession which he had made in an earlier case in which he had been given probation, but was no longer under probation due to an order of the Court. His contention is that Section 7 of Article 781d Vernon’s Ann. C.C.P. should be construed to read that the earlier conviction should be made known to “the Court” and not the jury. We find it unnecessary to pass upon such a question because when appellant testified that he had been tricked into signing the confession by the officers in this case, it then became proper to question him as to any other confession he may have made and as to whether or not he had been tricked into making it. Appellant cites no authority, and we are aware of none which would hold such a question reversible error.

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


author: McDONALD, Presiding Judge.

text:
    Luther Almager HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38817.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      No attorney of record on appeal for appellant.
    George H. Hansard, Lamesa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder; the punishment, 99 years confinement in the Texas Department of Corrections.

The statement of facts in narrative form reflects that appellant left Seminole, in Gaines County, Texas, on December 12, 1964, for Hobbs, New Mexico. He had asked two boys, Freddy Olguin and Sammy Almager to accompany him, which they did, in appellant’s pick-up truck. The three went to Hobbs, New Mexico, appellant driving the truck. While in Hobbs appellant saw Pete Garza and Frank Robledo in an automobile. These two men had also traveled from Seminole, Texas, to Hobbs, New Mexico, on that day to get some beer. Appellant was mad at Pete Garza and wanted to kill him because Pete had cut appellant’s brother some time before this date. Appellant starting chasing Pete Garza and Frank Robledo, but lost them in the traffic in Hobbs, New Mexico.

Thereafter, on the same day, appellant and his two companions were stopped at a tavern on U. S. Highway 180, which runs between Seminole, Texas, and Hobbs, New Mexico, when appellant saw Pete Garza and Frank Robledo pass the tavern in an automobile traveling on U. S. Highway 180 in an easterly direction, returning from Hobbs, New Mexico, to Seminole, Texas. Appellant immediately told his two companions to get in his pick-up, which they did, and appellant got in also and drove after Robledo and Garza. Appellant told his two companions he was going to get Pete Garza for cutting his brother. Frank Robledo was driving the automobile in which he and Pete Garza were traveling down the highway. Garza was seated beside him on the right hand side of the front seat. Appellant was driving his pick-up truck. Sammy Almager was seated beside him in the middle of the seat and Freddy Olguin was seated on the right hand side next to the door. The two companions did not know that the appellant intended to kill Garza. They thought he was trying to scare both Garza and them. Appellant ran his pick-up truck into the rear of the automobile occupied by Frank Ro-bledo and Pete Garza and tried to force the automobile off the road. This occurred a number of times while the two vehicles were traveling at a high rate of speed over a period of some nine or ten miles on U. S. Highway 180, in Gaines County, Texas. The appellant asked Sammy Almager to hold the steering wheel and appellant reached under the seat and pulled out a rifle into which he began to put some bullets. Then appellant took back over at the steering wheel and ran up on the left side of the automobile being driven by the deceased, Frank Robledo, and caused his pickup to ram into the side of the automobile in an attempt to force the automobile off the highway. The automobile did not stop and finally appellant pulled up on the right hand side of it and fired three or four shots from his rifle into the automobile. Three bullets struck the automobile one of which penetrated into the automobile and struck the deceased, Frank Robledo, in the back of the head. The deceased slumped over the steering wheel and the automobile veered across U. S. Highway 180 and into the bar ditch on the left hand side of the highway. Appellant did not stop, but kept driving his pickup on into Seminole, Texas, a distance of some eight or nine miles. The bullet which struck the deceased in the back of the head caused his death.

The appellant admitted wanting to kill Pete Garza and shooting to kill him at the time of the shooting on the highway.

We find the evidence sufficient to sustain the jury’s verdict.

There are no formal bills of exception, and, of course, the statement of facts in narrative form does not reflect any informal bills. Appellant has not favored us with a brief. We have carefully reviewed the Motion for Continuance and the Motion for New Trial filed by appellant. No evidence was adduced in support of either motion. We find no error in the action of the trial court in overruling them.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Harlan G. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38553.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Rehearing Denied Jan. 5, 1966.
    Orville A. Harlan, Jack W. Knight, Houston, for appellant.

      Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, life imprisonment.

The state’s evidence shows that the deceased and her seventeen-year-old son lived in a duplex at 714 East 8(4 Street in the city of Houston. The appellant and his family occupied the other side of the duplex at No. 716.

On the night of the killing, the deceased and a companion, Alfred Schade, left her apartment and went to a lounge where they drank some beer. When they returned to the apartment around 1:45 a. m., they observed some paint on the wall next to the door. The deceased went to appellant’s apartment, knocked on the door, and asked appellant if he knew anything about the paint. Appellant replied by cursing and calling her vile names. The deceased then went to a pay station and called the police. In some twenty minutes, Officers Frank and Davis came and talked to the deceased and her companion on the porch. At the conclusion of their conversation the officers left in their patrol car, the witness Schade walked to his car to leave, and the deceased went inside her apartment.

Schade testified that before he got in his car he heard the deceased holler that she was going with him. He waited at the car and then saw the deceased on the porch and appellant standing by her with a gun. As the deceased was walking toward the steps, appellant fired the gun and the deceased fell. Schade then started to get in his car to leave and appellant shot at him. Some of the pellets entered his body. It was further shown that Officers Frank and Davis, who had just left, heard the report from a block and half away and returned to the scene. They proceeded to appellant’s apartment, where he was standing in the living room. When Officer Davis asked him where the gun was, appellant pointed toward a couch. A .410-gauge single barrel shotgun was recovered from the couch. At such time, the gun contained one expended shell in the chamber and the barrel was warm. Appellant was then taken outside by the officers and as they passed the deceased’s body appellant said “you bitch, you whore,” and then called to his wife “to get Percy Foreman, that he was the only one that could help.”

An autopsy performed upon the deceased showed that the cause of death was a shotgun wound in the neck, with a severance of the spinal cord.

Testifying as a witness in his own behalf, appellant related that on the night in question he was at home watching television in the living room; that the deceased came to the door and asked why he threw paint on her door, to which question he replied that he knew nothing about it. Later, the deceased’s companion, Schade, came to his apartment and entered the living room, saying “you s. o. b., I will fix you.” Schade then hit appellant between the eyes, breaking his glasses. Appellant related that he then got the .410-gauge shotgun and Schade retreated to the door and out on the porch. Appellant followed, and after they were on the porch Schade grabbed the gun. It went off and the deceased fell. Appellant stated that he fired the second shot in the general direction of Schade’s automobile as a warning shot. He further swore that it was Schade who pulled the trigger which fired the shot that killed the deceased and that he (appellant) did not kill her. He further denied cursing the deceased after the shooting as he passed by her body and denied that he told his wife to call Percy Foreman. He also denied having previously cursed the deceased, as testified to by her son.

The court in his charge fully instructed the jury on the law of self-defense and of accident and, in applying the law to the facts, told the jury to acquit the appellant if they believed that he accidentally shot and killed the deceased while defending himself against an unlawful attack by the said Alfred Schade.

By their verdict, the jury rejected appellant’s defenses and we find the evidence sufficient to sustain the judgment of conviction.

By formal bill of exception #1, appellant insists that the court erred in overruling his “‘Plea To The Venire’” and forcing him to select a jury from a panel of jurors summoned for the week, under the provisions of Art. 2101, Vernon’s Ann.Texas Civil Statutes. It is appellant’s contention that this was error because of the provision in Art. 2101, supra, which reads: “The ‘Interchangeable Jury Law’ shall not apply to a selection of jurors in lunacy cases or in capital cases.”

The bill of exception was refused by the trial judge, with his reasons stated thereon. Appellant agreed to the reasons assigned by the trial judge for refusing the bill, which reasons were as follows: (1) that Harris County comes within and operates under the provisions of Article 601-A of the Vernon’s Ann.Code of Criminal Procedure and that more than one hundred jurors were summoned and present for jury service as jurors for the week the case was tried; (2) appellant did not request a special venire; and (3) no objection or complaint was made to Judge E. B. Duggan, who was the judge who organized and empaneled the general criminal panel for the week.

We are unable to agree that because of the provision in Art. 2101, supra, that the “Interchangeable Jury Law” shall not apply to the selection of jurors in capital cases the jury in the present case was selected contrary to law and was disqualified.

Subsequent to the- passage of Art. 2101, supra, in 1917, Art. 601-A, V.A.C.C.P., was enacted in 1937 by the legislature, providing that in certain counties operating under the jury wheel law where more than one hundred jurors were summoned for regular jury service for the week, the judge could, at his discretion, refuse to grant a motion for special venire in a capital case and require the case to be tried by the regular jurors summoned for the week.

In 1957, the statute was amended by the enactment of Art. 601-A, V.A.C.C.P., which provides that in all counties operating under the jury wheel law where as many as one hundred jurors have been summoned for the week in which a capital case has been set for trial, the judge shall grant or refuse a motion for special venire and, upon refusal, require the case to be tried by regular jurors summoned for regular jury service for the week.

These statutes are clearly applicable to counties, such as Harris, operating under the jury wheel law and provide that a capital case may, at the judge’s discretion, be tried by a jury selected from the regular jurors summoned for the week. Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720.

Complaint is made to the court’s action in permitting Officer Davis to testify, when called as a witness in rebuttal, that as he took appellant past the corpse of the deceased in the yard “he called to his wife to get Percy Foreman, that he was the only one that could help,” over appellant’s objection that he was under arrest; that no predicate had been laid to show that he was given any legal warning; that such alleged statement was not res gestae and was made without legal counsel, in deprivation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States.

The record reflects that such statement was made by appellant within five minutes after the shooting. Under such record the statement of appellant was properly admitted as res gestae, even though made while under arrest and subject to the construction of a confession of guilt. Dowling v. State, 167 Tex.Cr.R. 43, 317 S.W.2d 533; Heath v. State, Tex.Cr.App., 375 S.W.2d 909. We perceive no error or violation of appellant’s constitutional rights.

In this connection, complaint is made to a statement made by assistant district attorney Tom Dunn in his closing argument to the jury when he said:

“It doesn’t matter to me what Mr. Knight thought about Percy Foreman. We are merely going to show you his state of mind. Who in this community has the reputation of getting people off? Why certainly, Percy Foreman.”

The record reflects that appellant moved for a mistrial on the ground that counsel was giving unsworn prejudicial testimony.

Mr. Dunn then said:

“I will withdraw it, Your Honor. I offered it on general knowledge.”

Thereupon, appellant’s counsel again moved for a mistrial, which the court overruled. Counsel then requested the court to instruct the jury to disregard the statement, and the court so instructed. While this argument should not have been made, it was not so obviously prejudicial that its harmful effect, if any, upon the jury could not be removed by the action of state’s counsel in withdrawing it and the court’s instruction not to consider it. The refusal to grant a mistrial does not present reversible error.

Complaint is also made to another portion of the closing argument of assistant district attorney Dunn, when he said:

“Now, the police are there talking on the porch in normal tones and this defendant is just a few feet away and he knew — even though he told the biggest fib in the world — he said he didn’t know what the police were doing there. He says he wasn’t curious. He didn’t hear anything they said. Do you believe that? Then if you believe that, then believe the rest of his testimony because it is purely incredible, purely ridiculous, purely hog wash. He heard every word but he denies it because the only way we could have gotten into evidence what Oralie Uilkie [the deceased] said would be if he heard it. You see, on the law of evidence hearsay is not admissible. Oralie Uilkie could have talked to everybody out there and told this man about this — told them about this man as a neighbor but that is not admissible. He is not going to let any testimony in there along that line. Counsel has it there and he has continuously read the offense reports of the Police Department. If Counsel does not object, I am perfectly willing for the jury to take the offense report into the jury room with them and read it so they will have the full benefit of it.”

Thereupon, counsel for appellant objected and moved for a mistrial on the ground that state’s counsel was challenging appellant to “take an extraneous, hearsay, argumentative, incompetent document and put it before this jury.” Such objection was by the court overruled.

Appellant then requested the court to instruct the jury to disregard the state’s challenge to the defense to put the document in evidence. In response thereto, the court so instructed.

Appellant insists that the challenge made by state’s counsel was so prejudicial that it could not be cured by the court’s instruction to disregard the same.

With such contention we do not agree.

The record reflects that, early in the trial, appellant’s counsel (Mr. Knight) was furnished a copy of the offense report.

During his cross-examination of the officers, counsel referred to the report and, in his cross-examination of Officer Frank, he referred to the fact that certain matters testified to by him were not in the report.

In his argument to the jury, counsel referred to the fact that the officers did not put in the report that appellant said “you bitch, you whore,” when he passed the deceased’s body.

The jury was well aware of the existence of the offense report by virtue of counsel’s use of same in cross-examination and in his jury argument.

It is apparent that the offer of state’s counsel was in response to the actions of appellant’s counsel during the trial. Under such facts he was warranted in making the offer. Renfro v. State, 156 Tex.Cr.R. 400, 242 S.W.2d 772.

Howard v. State, 147 Tex.Cr.R. 88, 178 S.W.2d 691, is not here controlling, because in that case the offer to call a witness was tantamount to the prosecutor saying that the witness would affirm a certain fact, while in the case at bar state’s counsel did not state what was in the offense report but merely offered that the jury have it to read.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Ex parte Charles Harlan YOUNG.
    No. 38646.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 5, 1966.
    Richard Thornton, Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Galveston, and 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 appellant to custody for extradition to the State of California to answer a charge “by complaint and supporting papers” of the crime of “Grand Theft and violation of Section 10851 of the California Vehicle Code.”

The Executive Warrant issued by the Governor of Texas and the supporting papers were offered in evidence and appellant admitted his identity as the person named therein.

Reversal is sought upon the ground that the California offenses are felonies and no proof was offered that prosecution thereon could be had in that state upon complaint.

A similar contention was overruled by this Court in the recent case of Ex parte Stanley, Tex.Cr.App., 377 S.W.2d 650. See also Ex parte Powers, Tex.Cr.App., 391 S.W.2d 413; Ex parte Powers, Tex.Cr.App., 391 S.W.2d 414.

The judgment remanding appellant to custody for extradition under the Executive Warrant is affirmed.


text:
    Hipolito Alfaro RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38601.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Marcos Zertuche, San Antonio (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, five years.

Our prior opinions are withdrawn.

It was established that the Gordon home in San Antonio was burglarized sometime between 7:00 a. m. and 2:40 p. m. on September 1, and from the house and attached garage were taken a man’s and a woman’s wrist watch, a television set and an electric saw.

At approximately 2:00 p. m. on that day Officer Trinidad of the San Antonio Police observed one Richard Garcia, to whom he had given a ticket for not having an operator’s license the previous day, seated under the wheel of an automobile at a stop sign. For this reason his attention was focused on the automobile. The passenger in the Garcia automobile “ducked down as he spotted the patrol car”, and as Garcia started off at “a very unusual speed,” Trinidad gave pursuit. Some three blocks from their point of contact, Garcia brought his automobile to a halt. At this time Trinidad’s patrol car was some fifty feet behind the Garcia automobile. As it stopped, appellant, who was the passenger, alighted and threw some objects approximately four feet from the car. Trinidad kept his eyes on the objects as he brought his partol car to a halt and approached the Garcia automobile from the rear. He then retrieved the objects which he discovered to be three wrist watches and some coins in a plastic bag.

Both appellant and Garcia were placed under arrest. Garcia handed Trinidad the keys to his automobile and from the trunk Trinidad recovered the television set and the electric saw. All four items were identified as having been taken from the Gordon house.

Appellant did not testify in his own behalf, but offered a witness, who testified as to the value of one of the watches, and Identification Officer Rice, who testified that in preparation for testifying in this case he had made a search and could find no latent fingerprints which he could identify as belonging to appellant.

The sole question presented for review is the legality of the search of Garcia’s automobile. An ordinance of the City of San Antonio authorized by Article 214, Vernon’s Ann.C.C.P. was introduced in evidence. The following sequence of events should be reemphasized. Trinidad’s attention was directed to the Garcia automobile because of the traffic violation which he had detected on the day preceding. When the occupant saw the patrol car he ducked, and the Garcia automobile was driven away at a very unusual speed. Prior to reaching the Garcia automobile, Trinidad saw appellant throw some objects out of his possession. When he arrived at the automobile Trinidad could determine that the objects were watches and coins. These facts alone authorized appellant’s arrest and the incident search of the automobile in which he was riding. Anderson v. State, Tex.Cr.App., 391 S.W.2d 54.

The contraband thrown by appellant was not found as a result of the arrest and incident search of appellant’s person and was therefore admissible. Lopez v. State, 171 Tex.Cr.R. 672, 352 S.W.2d 747.

No issue is raised as to the voluntary surrender of his keys to the officer by the owner of the automobile. Therefore, no question of the legality of the search of the trunk is raised.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the appellant’s motion for rehearing is overruled and the judgment is affirmed.


text:
    Frank LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38511.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 5, 1966.

      William C. McDonald, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

Officers Bal entine and McClellan testified that they had a certain alley in the city under surveillance on the night in question, that they observed appellant and two companions drive past the alley twice and on the third time they stopped and appellant and one of his companions walked up to a telephone pole in the alley where they retrieved an object and hurriedly walked back to their automobile. At this juncture, the officers “closed in” on the suspect automobile, at which time they observed appellant, who was seated on the passenger side of the front seat, open the right front door and throw a red colored object away. A search of the area where the object had landed revealed a Prince Albert tobacco can which was shown by the testimony of an expert to contain sufficient marihuana to make 100 cigarettes.

Appellant admitted being at the scene with the companions whom the officers had named, but denied that he had picked up or thrown away the Prince Albert can. In this he was supported by the testimony of one of his companions.

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

Appellant’s sole contention on appeal is that he should have been allowed to question the officers as to the name of the informant who had caused them to place the alley under surveillance. Citing Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, appellant contends that he has been denied the Sixth Amendment right of confrontation with the witness against him as it applies through the Fourteenth Amendment by the Court’s failure to allow disclosure of the informant’s identity.

We disagree. Pointer was a case which involved the introduction as evidence at the trial of a transcript of testimony of an absent complaining witness taken at an examining trial when the defendant was without counsel to exercise his right of cross examination.

The instant case does not involve the introduction in evidence at the trial of any testimony of the informant. It is the judgment of this Court that Pointer has not changed the informer rule formerly announced by this Court in Arredondo v. State, 168 Tex.Cr.R. 110, 324 S.W.2d 217, and followed in McCown v. State, 170 Tex.Cr.R. 142, 338 S.W.2d 732. The rule in Artell v. State, Tex.Cr.App., 372 S.W.2d 944, and Thayer v. State, Tex.Cr.App., 397 S.W.2d 236, this day decided, is that since there was no showing that the informant took any material part in bringing about the offense or that he was present when the offense was committed and could have been a material witness as to whether or not appellant committed the crime, any inquiry concerning him would not he permitted. In Artell, supra, we relied upon the cases which appear in the Annotation in 76 A.L.R.2d 262, Sec. 20, p. 307.

Appellant has cited us no opinion of the Supreme Court of the United States which-would lead us to believe that we were in error in Artell.

Having so concluded, the judgment is affirmed.


text:
    Elishah HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 38690.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 5, 1966.
    No Attorney of Record on Appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is simple assault; the punishment, $25 fine.

The record on appeal contains no statement of facts or bills of exception. The exceptions to the court’s charge are not such as may be appraised in the absence of a statement of facts. Nothing is presented for review.

The judgment recites that appellant was guilty of the offense of “aggravated assault with a deadly weapon.” The judgment is reformed to comply with the verdict of the jury finding appellant guilty of simple assault.

As reformed, the judgment is affirmed.