author: GREEN, Chief Justice.

text:
    Stanley R. BROWN, Appellant, v. Susie COATES, Appellee.
    No. 345.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 19, 1967.
    Rehearing Denied Nov. 9, 1967.
    Joe J. Alsup, of Alsup & Alsup, Corpus Christi, for appellant.
    W. T. McNeil, of Vance, Vance & McNeil, Edna, for appellee.
   OPINION

GREEN, Chief Justice.

Susie Coates and three other persons owned a 998.56 acre tract of land in Jackson County, Texas. By written agreement styled “Lease Contract” signed December 23, 1965, such owners as “Lessors” “rented and leased” said property to E. B. Wagner, “Lessee” for a period of five calendar years from January 1, 1966.

Plaintiff Stanley R. Brown sued Susie Coates and E. B. Wagner on an oral contract between Brown and Wagner for services rendered by Brown in clearing for cultivation approximately 300 acres of the land included in the lease. Plaintiff’s claim of liability of Coates was based on the theory of a partnership between Coates and Wagner allegedly created as a matter of law by their written agreement. After a trial before the court without a jury, judgment was rendered favorable to plaintiff against defendant Wagner, but against plaintiff on his contentions of partnership, and recovery against Coates was denied. Brown has appealed from the take-nothing judgment as to defendant Coates. Wagner is not a party to this appeal. No findings of fact were requested or filed. We affirm.

An abbreviated statement of facts has been filed, Rules 377(b), and 377a, Texas Rules of Civil Procedure, and due to the scarcity of- evidence in the record concerning the circumstances of the execution of the lease contract, and to the fact presumptions favoring the trial court’s judgment, the issue on appeal is strictly one of law: whether the contract between the owners of the land, styled Lessors, and E. B. Wagner, Lessee, created as a matter of law the relationship of partners between lessors and lessee. If it did, appellant contends and appellee does not deny that ap-pellee was jointly and severally liable for the debt sued on. The liability of partners is joint and several, and one partner may be sued without the necessity of joining the others. Sheffield v. Nobles, Tex.Civ.App., 378 S.W.2d 391, wr. ref.

By the terms of the contract, Wagner was to pay lessors $3.00 per acre annual rent for all of the land not being farmed; and agreed to cultivate not less than 100 acres in maize in 1966, and not less than 200 acres in maize in 1967 and subsequent crop years. Lessee would furnish seed and all labor and expense in clearing, root plowing, and preparing lands, and growing and harvesting the crops; and for their rental on the cultivated land lessors acquired a one-third interest in the maize and the proceeds thereof after deducting one-third of the actual costs of fertilizer and cutting and transporting the crop.

It is well established law in Texas that payment of a fixed proportion of the proceeds of a crop as rent for the use and occupancy of the land is consistent with the relationship of landlord and tenant, and raises no presumption of partnership. 35 Tex.Jur.2d, pp. 487-488, Landlord and Tenant, § 3; McCullough Hardware Co. v. Call, Tex.Civ.App., 155 S.W. 718, n. w. h.; Texas Produce Exchange v. Sorrell, Tex.Civ.App., 168 S.W. 74, n. w. h.; Huth v. Curry, Tex.Civ.App., 13 S.W.2d 733, n. w. h.; Art. 6132b, V.A.T.S. (Texas Uniform Partnership Act effective January 1, 1962) Art. 6132b, Sec. 7(4) (b).

While appellant concedes this rule of law, he argues that due to the combination of the crop-sharing provision with other portions of the contract, the landowners retained such control over Wagner’s use of the property, and were so obligated to share in certain expenses and received such other benefits from the terms of the contract as to constitute them partners with Wagner in the farming operations. Appellant says, and appellee agrees, that in order for this land to be made suitable for cultivation, the part to be planted in maize had first to be cleared. To this end, the contract provided that lessee could keep one-half of lessors’ rental portion of the maize until such time as lessee recovered $25.00 per acre on the land farmed in maize; that if appellee cultivated in maize more than the minimum acreage requirements of the contract, the term of the contract should be extended one year for each 100 acres cultivated in maize over such minimum requirements; and that if at any time during the existence of the lease lessors sold any of the cultivated lands, which sale would not be effective as to lessee until after the crops had been gathered, lessors should reimburse lessee for that portion of $25.00 per acre remaining to be recovered from crop rentals as above stated.

Appellant states that the foregoing terms of the contract establish that it was the intention of the parties thereto to enter into a partnership arrangement beneficial to all concerned for the purpose of getting this land cleared for agricultural purposes, and that lessors agreed to share mutually with lessee in the expenses and benefits to be gained. We overrule such contentions. The contract contains no provisions by which lessors agreed to share or become personally liable for any expenses or losses of the farming operations; the $25.00 for each acre to be cleared for cultivation was to come only out of lessors’ rentals (except in the event of sale, as stated above). There is nothing inconsistent with the landlord and tenant relationship in the agreement of lessors to accept a smaller share of the crop as rental in order to have more land placed in cultivation, or to partially reimburse lessee in event of a sale by lessors. Such agreement evidences no intention of the parties to create a partnership between landlord and lessee. Art 6132b, Sec. 6(1), Sec. 7(4) (b).

Appellant also points to a provision of the contract whereby lessors agreed to share a portion of the expense of erecting a certain fence. Lessee was using for grazing purposes another tract of 978.1 acres owned by others which adjoined lessor’s tract on the north, and there was no fence separating the two. The provision in question left it entirely to the discretion of lessee as to whether a boundary fence would be erected, and the willingness of lessors to contribute to the expense should lessee decide to build it could not, in our judgment, be a factor in determining the existence of a partnership in the farming operations between the parties as claimed by appellant.

It is urged that lessors’ reservation of certain power of control as to lessee’s rights under the contract, such as in determining that a certain number of acres should be devoted to maize, the matter of the fences, egress and ingress on certain roads, keeping certain hunting rights, etc., are consistent only with the partnership relation. We disagree. We have given the contract considerable study, and find no provisions therein which are inconsistent with the relation of landlord and tenant, or which require a determination of a partnership as a matter of law.

Davis v. Gilmore, Tex.Civ.App., 1951, 244 S.W.2d 671, wr. ref., relied on by appellant, is not controlling here because of the difference in the fact situation. As stated by Judge Pope in that case, “No single fact may be stated as a complete and final test of partnership. Each case must rest upon its own particular facts and the presence or absence of the usual attributes of a partnership relation.” The relationship of landlord and tenant, or lessor and lessee, was not involved in Davis, nor was the fact of a percentage of the crop proceeds being received in payment of rent to a landlord. Sec. 7(4) (b), Art. 6132b, supra. A comparison of the contract in Davis with the one executed by appellee and Wagner and a careful reading of Judge Pope’s opinion will readily demonstrate the differences in the fact situations.

The record before us does not disclose any error in the finding by the trial court that the contract in question did not create, as a matter of law, the relation of partnership between appellee and Wagner, and in rendering judgment favorable to appellee.

Judgment affirmed.

       We do not wish to suggest that had the contract required lessee to build the fence with lessors to share the expense, a presumption of partnership would follow. We pass on appellant’s contentions as applicable to the existing situation only.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Ex parte C. D. WILLIAMS.
    No. 40892.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.
    Julian Weisler, Brenham, for petitioner.
    A. W. Hodde, Jr., County Atty., Bren-ham, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is a habeas corpus proceeding by an inmate of the Texas Department of Corrections attacking the validity of the life sentence under which he is now confined. Petitioner (also applicant) filed his pro se application for writ of habeas corpus in the 21st District Court of Washington County under the provisions of Article 11.07, Vernon’s Ann.C.C.P., as amended (Acts 1967, 60th Leg., Ch. 659, pp. 1732, 1734, 1735). See also Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

In said application petitioner alleged that he is now confined by virtue of a judgment and sentence entered in Cause 6198 on March 20, 1939, in the District Court of Washington County for the offense of Passing as True a Forged Instrument with punishment assessed at life as a habitual criminal. Petitioner further alleges that at the time of such trial he was indigent; that he did not have counsel and that he did not waive his right to counsel. In support of his contention he cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

The petitioner was granted a hearing on his application, and on October 23, 1967, such hearing was conducted before the Honorable Max M. Rogers. At the conclusion of such hearing Judge Rogers found that at his 1939 trial petitioner was too poor to employ counsel, did not have counsel nor did he waive such right. The writ was made returnable to this Court and Judge Rogers has forwarded the record, including: his findings.

Gideon v. Wainwright, supra, established the federal constitutional right of a destitute defendant to counsel in all felony-cases where he has not intelligently waived! the same. Such decision has been held to have retroactive application by the United! States Supreme Court, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Arthur v. Colorado, 380 U.S. 250, 85 S.Ct. 943, 13 L.Ed.2d 818; Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (November 13, 1967); Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and by the Fifth Circuit Court of Appeals, Williams v. State of Alabama, 341 F.2d 777; Davis v. Holman, 354 F.2d 773, cert. den. 384 U.S. 907, 86 S.Ct. 1343, 16 L.Ed.2d 359, as well as by this Court, Ex parte Greer, 408 S.W.2d 711; Ex parte Hammonds, 407 S.W.2d 779.

The application for writ of habeas corpus is granted, the petitioner ordered released from custody under his conviction in said Cause 6198, and remanded to the Sheriff of Washington County to answer the indictment pending against him in said cause.

It is so ordered.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Ex parte John J. BREEN
    No. 40884.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.

      Grady Hight, Arlington, for relator.
    Frank Coffey, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The petition for writ of habeas corpus was filed October 27, 1967, and set for submission.

The facts set out in support or the allegation that he is unlawfully restrained of his liberty by the Texas Department of Corrections and upon which he requests that, after hearing, this court order his release from his present confinement are:

“Petitioner is incarcerated as a result of a 1954 robbery conviction in the Criminal District Court of Tarrant County, Texas. Petitioner was an indigent defendant at the time and had made this fact known to the Court. After sentencing, petitioner gave notice of appeal to The Court of Criminal Appeals and did not waive the appointment of an attorney. No attorney was appointed for ■petitioner and no statement or facts was prepared for petitioner’s appeal.”

The petition has not been presented to the judge of the trial court and does not reflect a compliance with Art. 11.07 of the 1965 Code of Criminal Procedure as amended, which this court construed in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

A petition was presented to this court prior to the enactment of Art. 11.07 Vernon’s Ann.C.C.P. attacking the 1954 life sentence for robbery by assault under which petitioner is confined, upon similar grounds, which has been misplaced. Said petition resulted in a hearing before the present judge of the convicting court on August 30, 1967, at which petitioner was represented by court appointed counsel.

The facts ascertained by this court from prior petitions attacking the life sentence; court records; the evidence adduced at the hearing and the findings and conclusions of Judge Byron Matthews, who conducted the hearing, reflect the following:

Petitioner was convicted of felony theft in Tarrant County on September 19, 1939, and for forgery in Dallas County on May 8,1948. He was indicted in Tarrant County on November 2, 1954, for the offense of robbery and the prior convictions for felony theft and for forgery were alleged for enhancement.

On November 16, 1954, petitioner’s affidavit that he was without counsel and wholly destitute of means to provide counsel, and praying that counsel be appointed to represent him, was filed.

Although Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, had not been written and there was no Texas Statute requiring appointment of counsel for an indigent other than in capital cases at the time, the able District Judge Willis McGregor, now deceased, appointed Hon. Joe Shannon of the Fort Worth Bar to represent petitioner and the case was called for trial on December 1, 1954.

It is apparent that petitioner not only asserted in the trial court his constitutional right to counsel, but also asserted his constitutional right to refuse counsel and to represent himself. He refused to permit his court appointed counsel Joe Shannon to conduct the case, ask the questions or make the oral argument before the jury. Mr. Shannon obtained process for his witnesses and was allowed to remain at his side in the courtroom during the trial of the case on its merits, but petitioner “told him what I wanted to challenge in this trial,” and petitioner examined the witnesses and argued his case before the jury.

The jury having returned its verdict and judgment having been pronounced thereon, a motion for new trial was filed. Hon. John E. McLean, of the Fort Worth Bar, acted as counsel for petitioner at the time the motion for new trial was overruled and notice of appeal was given.

Petitioner testified at the hearing before Judge Matthews, in part, as follows:

“Q. In any event, Mr. Shannon was there with you during the entire course of that trial, was he not?
“A. During the trial. Yes.
“Q. He was there the date you were sentenced, was he not?
“A. I am not positive whether he was there or not. Personally I don’t think he was at the sentencing.
“Q. Was Mr. McLean present at the time you were sentenced?
“A. Mr. McLean was there.
“Q. At that time you gave notice of appeal ?
“A. Mr. McLean gave notice of appeal.
“Q. The attorney. How did Mr. McLean get into this lawsuit?
“A. To be honest, I don’t know. I never spoke to him before the hearing, during the hearing or after the hearing.
“Q. As a matter of fact, hadn’t your sister employed Mr. McLean to represent you at that time?
“A. That, I don’t know.
,* * * * * *
“Q. And a written Motion for New Trial was filed?
“A. I have no way of knowing that; only the oral notice.
“Q‘. You were there when the Court overruled it and Mr. McLean gave notice of appeal at that time?
“A. Yes, sir.
“Q. At that time when Mr. McLean appeared into that lawsuit did you request or make any request of the Court that an attorney be appointed on the appeal?
“A. I don’t recall. I am not sure.”

Mr. McLean testified that he had no recollection of representing petitioner but his signature was on the motion for new trial and on the affidavit signed by Mrs. May Vaughn on December 30, 1954, that he (Breen) was of unsound mind. He further testified: “Q. Do you recall whether the court appointed or directed you to do any work on the appeal ? A. No, sir, but in answer to that question I can say if I had been appointed, I would have perfected the appeal.”

Judge Matthews, who conducted the hearing directed by this court, found “That at the time of the appeal from said conviction the record shows that John E. McLean was not appointed by the court but acted as counsel for the petitioner at the time the petitioner was present when his motion for new trial was overruled and notice of appeal was given * * and concluded that Mr. McLean “appeared at the request of someone other than petitioner or the court * * * and determined that the record did not contain sufficient error upon which to appeal.”

Paul F. Burris, official court reporter since 1951 for the court in which petitioner was tried and the hearing was had, testified at the hearing that he certainly did recall reporting the trial in December 1954 and that he knew for a fact that no one requested a statement of facts on that trial. He further testified that it had always been his practice, when notice of appeal was given and a transcript was not ordered at the time, to contact the attorney or litigant either personally or by telephone to determine if he wanted a statement of facts, and that in this case he was not requested and did not prepare a statement of facts and it would be impossible to do so now.

The fact that the notice of appeal was given by counsel for petitioner who was not court appointed disposes of any contention that he was denied any constitutional right by the failure of the trial court to appoint counsel to represent him on appeal. The failure of petitioner or his counsel to request that a statement of facts be prepared while the court reporter’s notes were available forecloses a delayed consideration of the appeal and any valid claim as to the denial of appellant’s rights to a record on appeal.

In the recent case of Evans v. State, 401 S.W.2d 602, we held that the state was not bound to prove that the attorney who entered a plea of guilty for the defendant in a misdemeanor case was authorized by his client to do so.

Applying the same rule and reasoning, the burden was on petitioner and not the state to prove that Mr. McLean, who was not court appointed, who presented his motion for new trial and gave notice of appeal for him, was not authorized by petitioner to do so.

Competent counsel was appointed by the court to represent petitioner at his trial and competent counsel who was not court appointed represented him in presenting his motion for new trial and gave notice of appeal for him. This counsel not being court appointed, any incompetency or lack of effective assistance on the part of such counsel cannot be imputed to the state. Howard v. Beto, 375 F.2d 441 (5th Circuit); Breedlove v. Beto (U.S. District Court Southern District of Texas), 276 F.Supp. 635, decided August 30, 1967.

The Supreme Court held, in Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, that a state may avoid the obligation of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, where, without fault of the state, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time, and that where transcripts are no longer available Illinois might rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.

A much stronger case is made here than in Norvell v. State of Illinois, supra. Nor-vell’s petition was denied though he and his counsel attempted to obtain a transcript and to appeal but were unable to do so because of the death of the court reporter, whereas neither petitioner nor his counsel requested that a statement of facts be prepared and the state did nothing to hinder.

Judge Taylor’s opinion in Turman v. Beto, 271 F.Supp. 808, dated August 2, 1967 (U.S. District Court for Northern District of Texas) construing Norvell v. State of Illinois, supra, supports our conclusion that the state was not at fault in regard to the failure of petitioner or his counsel who gave notice of appeal to obtain a statement of facts.

There are other facts which sustain the conclusion that petitioner was not denied effective aid of counsel or a review of his claim of error on appeal.

The life sentence under attack is the same that was before this court in Ex parte Breen, 171 Tex.Cr.R. 669, 353 S.W.2d 233, cert. denied, 375 U.S. 841, 84 S.Ct. 89, 11 L.Ed.2d 69; before the United States District Court for the Southern District of Texas in In re Breen’s Petition, 237 F.Supp. 575; and before the 5th Circuit Court of Appeals in Breen v. Beto, 341 F.2d 96, in each of which petitioner presented his petition pro se, though his testimony at the hearing before Judge Matthews was to the effect that he petitioned each of said courts and the United States Supreme Court for an attorney (but not the trial court) and “a volunteer lawyer” took his case from the 5th Circuit to the Supreme Court where certiorari was denied, 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798.

The conviction for robbery was affirmed by this court in Breen v. State, 280 S.W.2d 752. The opinion reflects that there was no attorney on appeal and no statement of facts.

We set out in the Order of the Court of Criminal Appeals pursuant to which Judge Matthews conducted the hearing:

“From a document filed by petitioner in this Court in December 1966, and the opinion in In Re Breen’s Petition, 237 Fed.Sup. 575, it is shown that petitioner stated that he was convicted and sentenced to life as an habitual offender, after entering a plea of not guilty and asserting his right to defend himself, the document filed in this Court stating as his reasons:
“ ‘Lawyers refuse to challenge the practice because it makes their work easier and because to do so would put the court in disrepute,’ and ‘Because Lawyers refuse to challenge the practice; I elected to try to defend myself at my trial also because I was without funds to hire a lawyer even if he would.’ ”

The significance of these facts is that they not only show that petitioner chose not to rely upon counsel, but that the matter about which he desired to complain was such that no statement of facts was necessary for appellate review.

It should be remembered that prior to the effective date of the 1965 Code of Criminal Procedure there was no requirement that the ground of error of which a defendant desired to complain on appeal be assigned or set forth in a brief.

It is significant to note, also, that the grounds which petitioner stated lawyers refused to assert were those he advanced in attacking his conviction by habeas corpus. These grounds have been considered and decided against petitioner in the cases above cited, by this court and the Federal Courts, without a hearing and without a statement of facts.

The petition for writ of habeas corpus is denied.

DISSENTING OPINION

ONION, Judge.

Our brethren deny petitioner’s application for habeas corpus. Judge Morrison and this writer have concluded that the recent decisions of the Supreme Court of the United States require that we vigorously dissent to such action.

The record reflects that the petitioner was convicted of the offense of Robbery and assessed a punishment of life imprisonment as a habitual criminal in the Criminal District Court of Tarrant County on December 31, 1954. This conviction was affirmed on appeal. 280 S.W.2d 752. The appellate record before this Court contained no statement of facts, bills of exception or appellate briefs. No attorney appeared of record.

On June 26, 1967, prior to the effective date of the 1967 amendment of Article 11.07, V.A.C.C.P. and the decision of this Court in Ex parte Young, 418 S.W.2d 824 (Sept. 14, 1967), this Court ordered .the Honorable Byron Matthews, present Judge of the Criminal District Court of Tarrant County, to conduct a hearing upon the petition for habeas corpus in which the petitioner alleged that at the time of his appeal he was indigent, not represented by appellate counsel and that he did not waive the same. In ordering the hearing, we specifically called the trial court’s attention to Douglas and Meyes v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Entsminger v. State of Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501.

At such hearing, the petitioner was present and represented by appointed counsel, Hon. Grady Hight, and Judge Matthews has now transmitted the facts developed together with his findings of fact.

At the conclusion of the hearing, Judge Matthews found that the petitioner was indigent (the pauper’s oath on file was not brought forward in the original appellate record); that he was represented by court appointed trial counsel, Hon. Joe Shannon, Sr., but desired to represent himself with appointed counsel remaining at his side during the trial.

It further appears from the record that another attorney, Hon. John E. McLean, who was not present during the trial, signed the motion for new trial (merely stating, “verdict contrary to the law and evidence.”), with said court appointed counsel; that McLean and Shannon were both present at the hearing on motion for new trial, the sentencing, and when notice of appeal was given. Judge Matthews toncluded that McLean’s appearance was at the request of some undetermined person other than the petitioner or the court, though the memory of all was hazy on this issue.

Douglas and Meyes v. People of State of California, supra, established the right of an indigent appellant to counsel on his first appeal, and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, holds that it is a violation of the Fourteenth Amendment to deprive a person because of his indigency of any rights of appeal afforded all other convicted defendants, including a free transcript or record.

While the record does not reflect that the indigent petitioner requested court appointed appellate counsel, neither does it reflect an affirmative waiver by him. Petitioner’s actions at the trial indicating a desire to represent himself with appointed counsel at his side would not constitute a waiver of his right to counsel on appeal. See Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Further, there is no indication that he evidenced any wish to represent himself on appeal.

In Swenson v. Bosler, supra, the United States Supreme Court said:

“It is now settled ‘that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend upon a request.’ Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”

It appears from the record that at the time of the sentence, court appointed counsel considered an appeal in the case to be “a very frivolous thing.” Attorney McLean also reached the same conclusion. It appears to have been the practice and custom in Tarrant County at the time for appointed counsel not to take the case beyond sentencing without further orders of the court. In all fairness to the appointed counsel and the trial judge then presiding, there was at the time no requirement that appointed counsel follow the case on appeal. Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315; Spalding v. State, 137 Tex.Cr.R. 329, 127 S.W.2d 457.

Such practice, however, flies into the teeth of the recent holding in Anders v. State of California, supra, where the Supreme Court stated:

“Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court— not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.”

It should be re-emphasized that in the petitioner’s appeal from his 1954 conviction, no statement of facts, bills of exception, or briefs were filed. It appears no effort was made by either attorney to obtain a statement of facts or to discuss the matter of appeal with petitioner. The petitioner was confined in jail and was transferred 2 or 3 days after sentence to the Dallas County Jail during the period prescribed by law in which to request a statement of facts.

“Such procedure automatically deprived him of a full record, briefs, and arguments on the bare election of his appointed counsel, without providing any notice to him or to the reviewing court that he had chosen not to file the complete record in the case.”

Entsminger v. State of Iowa, supra.

This Court affirmed petitioner’s life sentence after having seen only what the Supreme Court denominates as a “clerk’s transcript” in Entsminger. There is no showing on the original appeal or at the writ hearing that this is all that petitioner desired to have forwarded on appeal. And at such time it clearly was the general rule, that in absence of a statement of facts, only fundamental errors will be revised and every presumption will be in favor of the regularity of the conviction, the charge of the court, and of the sufficiency of the evidence. 1 Branch’s Anno.P.C.2d Ed., Sec. 622, p. 598.

We simply cannot conclude from the record before us that petitioner should be denied an adequate and effective review of his conviction on his first appeal on the ground that some attorney in addition to his court appointed counsel appeared at the hearing on the motion for new trial and at the sentencing either as an amicus curiae or at the request of some undetermined person. This is particularly true under the circumstances here presented where neither attorney McLean or court appointed trial counsel or petitioner could recall the nature of McLean’s connection with the case, and there is no showing that petitioner accepted him as his counsel. In fact it is petitioner’s undisputed testimony that he never talked to McLean or his court appointed counsel before, during or after the hearing on motion for new trial.

The majority assumes that attorney McLean was not court appointed. Judge Matthews found that McLean appeared at the request of some undetermined person other than the petitioner or the court, but he did add that the memory of all was hazy on this issue. The record appears to us to be just as consistent with the fact that attorney McLean was court appointed as with the conclusion that he was not. Nevertheless, the majority seeks to equate McLean’s status with that of employed counsel of appellant’s own choice. The record does not support such equation. Regardless of McLean’s status, we observe that court appointed counsel did not withdraw, or attempt to withdraw, and was still representing the indigent petitioner at the time of sentence and notice of appeal.

Further, we cannot agree that the result reached in Evans v. State, Tex.Cr.App., 401 S.W.2d 602, without citation of authority or reasoning, should be extended and applied in the case at bar. To do so would cast the burden upon this indigent petitioner and others like him to show, while still represented by court appointed counsel, that any other lawyer who injects himself into the case without request, is not counsel of his own choice. In Evans it was undisputed that the appellant had employed the attorney following her arrest for prostitution, and the only question involved was his authority thereafter to have entered a plea of guilty for her to such misdemeanor charge without her being present.

Still further we cannot agree that the fact that this indigent petitioner while confined in the Texas Department of Corrections filed his applications for writs of habeas corpus, pro se, in Federal Court constitutes an adequate substitute for his right to counsel on appeal or constitutes a waiver thereof. There can be no waiver of a right which can no longer be exercised. Crawford v. Beto, 385 F.2d 156 (5th Cir., October 9, 1967). Cf. Williams v. State of Alabama, 5th Cir., 1965, 341 F.2d 777.

Applying the relevant considerations which were decisive in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and Pate v. Holman, 5th Cir., 341 F.2d 764, there can be little question but what Anders, Swenson and Entsminger are to be applied retroactively just as Gideon v. Wainwright, supra, Douglas and Meyes v. People of State of California, supra, and Griffin v. People of State of Illinois, supra, have been.

To recapitulate, it is undisputed that the petitioner (1) was indigent at the time of his appeal, (2) that he manifested his desire to appeal, (3) that his appeal was without benefit of counsel, statement of facts or appellate briefs. We cannot find anything in the record to constitute an intelligent waiver of an effective review of his conviction on appeal. Certainly the appearance “out of the blue” of an attorney not requested by the petitioner, who does not discuss the case with him, is of the opinion that an appeal would be frivolous and who takes no further action after notice of appeal is given cannot constitute a waiver by the appellant.

The case at bar represents a much stronger case than Crawford v. Beto, supra. Crawford, a state prisoner, based his petition for habeas corpus on the fact that he sought to appeal his state court conviction but was without the aid of counsel. He was represented by retained counsel at his trial and through a motion for new trial. He requested the trial judge to appoint appellate counsel but his request was denied. Crawford appealed his own case, preparing the appellate brief with the aid of a fellow jail inmate. His conviction was affirmed on appeal. Crawford v. State, 162 Tex.Cr.R. 95, 282 S.W.2d 222. Crawford’s family then borrowed money to employ an attorney to file a motion for re-hearing in this Court! The motion was denied. In Crawford, the 5th Circuit Court of Appeals said:

“We hold that appellant was denied his constitutional right to counsel on appeal. We further hold that the employment of counsel to prepare and file the motion for rehearing was not an adequate substitute for his right- to counsel on appeal. There can be no waiver of a right which can no longer be exercised. Cf. Williams v. State of Alabama, 5 Cir., 1965, 341 F.2d 777.”

It is interesting to note that the Court does not discuss the question of indigency, but apparently assumes such fact from the record before it.

In the case at bar we would hold that petitioner was denied his constitutional right to counsel on appeal. He is entitled to an out of time appeal. Crawford v. Beto, supra; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417; Mixon v. State, Tex.Cr.App., 401 S.W.2d 806.

We are not unmindful of the reporter’s testimony at the writ hearing that the shorthand notes of petitioner’s trial were misplaced in 1964 in the move from one courthouse building to another. It may well be that these notes may have now been located, or that in an out of time appeal the parties will be able to agree upon a statement of facts.

We need not decide until the perfection of the out of time appeal whether the petitioner is entitled to a new trial.

We respectfully dissent.

MORRISON, J., concurs.

      . The abandonment by a court appointed attorney of an indigent defendant’s appeal may well deprive a convicted defendant of his constitutional rights. Swenson v. Bosler, supra; Loper v. Beto, 383 F.2d 400 (5 Cir., 1967); United States ex rel. Maselli v. Beincke, 383 F.2d 129 (2 Cir., 1967); Wainwright v. Simpson, 360 F.2d 307 (5 Cir., 1966); Edge v. Wainwright, 347 F.2d 190 (6 Cir., 1965); Pate v. Holman, 341 F.2d 764 (5 Cir., 1965).

      . Compare present Article 40.09, Sec. 1, V.A.C.C.P. as to matters that the clerk must include in record on appeal, whether designated or not.


author: MORRISON, Judge.

text:
    C. L. DENNIS, Appellant, v. The STATE of Texas, Appellee.
    No. 40597.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 29, 1967.

      Donald J. Metcalfe (on appeal only), Emmett Colvin, Jr. (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., William Mason, Darrell Jordan and Kerry P. FitzGer-ald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is theft by false pretext; the punishment, 120 days in jail and a fine of $500.00.

Appellant approached the witness Takats with the introduction that he was an insurance salesman and proceeded to explain in detail the coverage provided by the policy he was offering Mr. Takats. He did not produce the policy, but explained that it would be sent Mr. Takats upon payment of $75.50, the cost for two years coverage. Appellant did produce an application for membership in the International Motorists Association with the explanation that membership provided extra benefits for policy holders and which Mr. Takats signed, upon the representation that he was purchasing the “extra benefits” and the insurance coverage. Upon discovery by Mr. Takats that he had no more than a membership in I.M.A., a complaint was filed.

Appellant’s first ground of error is that the evidence is insufficient to support a conviction for theft by false pretext, because to support such conviction it must appear that the false pretext was the inducing cause which moved the injured party to surrender the property in question and that “if the injured party knows or by the exercise of ordinary prudence in using the means at hand to know at the time he parts with the possession of his property, that the pretext is in fact false, he cannot rely thereon and the offense of theft by false pretext cannot arise.” Appellant cites Nickson v. State, 147 Tex.Cr.R. 316, 180 S.W.2d 161, Thornton v. State, 171 Tex.Cr.R. 565, 352 S.W.2d 742, and Deitle v. State, Tex.Cr.App., 363 S.W.2d 939, in support of his contention.

In Nickson, supra, the injured party accepted a check with a patent ambiguity in that the figures on the check indicated its value to be $87.50 in return for merchandise and $56.44 in money, although the words employed thereon indicated its value to be “Two and no/100 Dollars”.

In Thornton v. State, supra, appellant sold a house to Spencer, which he represented was free of all liens. It was shown that Spencer, in making his payment, relied not upon appellant’s representation, but upon his own investigation which corroborated appellant’s representation.

In Deitle, supra, although appellant had no money on deposit subject to withdrawal, a teller for the First State Bank of Aransas Pass gave appellant $750 upon delivery of a check signed by him and drawn on that bank.

In the case at bar appellant represented to Takats that he was an auto liability insurance salesman and that, as Takats testified, “they picked out certain people that had a good driving record — reasonably good, that it was reasonable, and he went on to tell me about it and he told me then that I would get all these extra benefits.” Appellant represented to Takats that the policy would not be sent to him until the final payment had been made, but that a card would be immediately sent to Takats as proof of -coverage in case of accident. As the extra benefits, appellant showing Takats the International Motorists Association Membership application receipt, which appellant contends, put Takats on notice that he was not getting an insurance policy. However, appellant never represented to Takats that the membership application was an insurance policy or that any liability coverage would result from the application, but that the application was for “extra benefits” afforded Takats because of his good driving record. It is not unreasonable that a man with a sixth grade education (as Takats was shown to have) would believe appellant’s assertion that the liability policy would be sent upon final payment of the total amount.

We find these facts sufficient to distinguish appellant’s case from those cited in his brief and set out above.

Appellant’s second ground of error is that the court erred in failing to charge the jury that if the injured party, at the time he parted with the money, had the means at hand of detecting that such representations so made by appellant were false, he should be acquitted. He cites as authority Nickson v. State, supra, and Roe v. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104. We have examined the record in each case and have ascertained that in neither case was such a charge given. Nickson was reversed on the insufficiency of the evidence under a charge similar to that given in the case at bar, and what we have said under appellant’s first ground of error distinguishes this case from Nickson. Roe was reversed because of a defect in the charge other than the one claimed here by appellant. The charge as given in this case is substantially in the same terms as the charge which is recommended in Willson’s Criminal Forms, Seventh Edition, Section 3559. Without further authority we would not be inclined to require the giving of additional charges for the jury’s guidance.

Appellant’s third ground of error relates to testimony of the state’s witnesses that appellant had represented to them that he sold auto liability insurance. Such testimony was elicited in rebuttal after the appellant, testifying in his own behalf, denied having represented to Takats that he was selling liability insurance. Appellant contends that the testimony by the state’s witnesses constitutes impeachment on a collateral matter and is therefore inadmissible. The appellant was charged with theft by false pretext, and in order for the state to prove its case, it had to show that the appellant represented to Takats that he was selling liability insurance. Appellant’s denial of having so represented himself raised the issue and permitted the admission of testimony as to other such representations. McClanahan v. State, Tex.Cr.App., 394 S.W.2d 499, 503; Bergman v. State, Tex.Cr.App., 370 S.W.2d 895, 897; and cases there cited; Hill v. State, Tex.Cr.App., 364 S.W.2d 381; and Hutchins v. State, 172 Tex.Cr.R. 525, 360 S.W.2d 534-536.

It is observed that the record contains no charge limiting the evidence of the extraneous matters, but appellant’s failure to object to the charge and request proper instructions prevents such omission from constituting grounds for reversal.

Finding no reversible error, the judgment is affirmed.


text:
    Delfina CHAPA, Appellant, v. The STATE of Texas, Appellee.
    No. 40807.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.

      Gillespie & McClendon, by William J. Gillespie, Lubbock, for appellant.
    Fred E. West, County Atty., Jack Lane, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is passing as true a worthless check; the punishment, a fine of $50.00.

In appellant’s first ground of error, she contends that the complaint and information are fatally defective because they do not contain allegations that the check was presented and dishonored by the drawee, that the complaint is based on the complaining witness’ knowledge or belief, and that the person defrauded by appellant’s acts is not named.

Presentment and dishonor are not essential elements of the offense as set forth in Article 567b, Sec. 1, Vernon’s Ann. P.C., and need only be alleged where reliance is had on the statutory presumption created in Sec. 2 of such Article. Royal v. State, Tex.Cr.App., 391 S.W.2d 410-411; Watson v. State, 154 Tex.Cr.R. 016, 229 S.W.2d 621. Since the State did not rely upon the statutory presumption, failure to allege presentment and dishonor was not error.

Article 15.05, Vernon’s Ann.C.C. P. provides that all complaints will be sufficient, without regard to form, if it meets the substantial requisites set forth therein. The purpose of the complaint is to apprise the accused of the facts surrounding the offense with which he is charged in order to permit him to prepare a defense to such charge. Appellant, from reading the complaint, could ascertain with reasonable certainty with what she was being charged so as to properly prepare a defense. Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113.

Appellant cites Barnes v. State of Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, and Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in support of her contention that the complaint in the case before us does not measure up to the standards required by the Supreme Court. Barnes and Aguilar established standards for complaints upon which search warrants are issued, and those standards have no application to complaints which serve only as the basis for criminal prosecutions. Cisco v. State, Tex.Cr.App., 411 S.W.2d 547; Vallejo v. State, supra, and Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.

Appellant next contends that the failure to allege an intent to defraud a specific person renders the complaint void. The pertinent language of the complaint tracks with the language of Article 567b, V.A.P.C., and the form set out in Section 741, Willson’s Criminal Forms, Seventh Edition. This Court has held in cases such as this that where a complaint and information are couched in the language of the statute creating the offense charged therein, they would not be void for failure to allege or charge an offense. Jones v. State, 154 Tex.Cr.R. 241, 226 S.W.2d 437; Ex parte Stewart, 160 Tex.Cr.R. 483, 271 S.W.2d 945; and Kuykendall v. State, 160 S.W.2d 525.

Putting aside the question of whether the evidence showed a presentment and dishonor, the evidence did show that the bank had closed appellant’s account prior to the time the check was passed, thereby rendering unnecessary proof of presentment and dishonor. Royal v. State, supra, and Watson v. State, supra.

The statute, Article 567b, V.A.P.C., does not require the State to prove that value was received for the check in order to make out an offense of passing a worthless check, and even if such burden was on the State, we feel the burden was discharged by the following testimony of Officer J. T. Wilbanks, an employee of the injured party, Clark’s Discount Center:

“Q. (By Mr. Layne, Assistant County Attorney): All right. Then it was within your personal knowledge that this check was exchanged for personal goods * * *
A. Yes, sir.”

Norman v. State, 170 Tex.Cr.R. 25, 338 S.W.2d 714, on which appellant relies, is distinguishable both on its facts and on the requirements of the statute defining the offense in effect at the time of the trial. Prior to August 1963, the effective date of the present Article 567b, V.A.P.C., passing a worthless check required allegation and proof that there was an intent to defraud to procure any article or thing of value, etc. In the 1963 enactment of Article 567b, the Legislature omitted this requirement, retaining only the requirement of pleading and proving intent to defraud. Norman was a pre-1963 case, and is not controlling here, the case at bar coming under the 1963 enactment of Article 567b.

Appellant’s final grounds of error relate to the failure of the injured party to give notice, as required in Sec. 2 of Article 567b, and of the failure of the State to show that such notice was given. As stated before, Sec. 2 of Article 567b establishes the requisites of a prima facie case and creates a statutory presumption for the State. Notice to the accused that the check was returned to the payee by the drawee is an essential element of the presumption. However, since the State did not rely on the statutory presumption but established its case by direct evidence, failure to comply with the requirements set out in Sec. 2, Art. 567b, does not vitiate the complaint or the conviction. Watson v. State, supra, and Royal v. State, supra.

The bank’s records of appellant’s account, copies of which were sent to the appellant, clearly show that appellant was on notice at the time she passed the check that her account was closed by the bank due to an existing overdraft.

Finding no reversible error, the judgment is affirmed.


author: ONION, Judge. WOODLEY, Presiding Judge.

text:
    Andrew Otis TERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 40078.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.

      Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald D. Koons, Tom F. Reese and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, thirty (30) years confinement in the Texas Department of Corrections.

The appellant was tried on October 6, 1965, and gave notice of appeal on October 29, 1965, prior to the effective date of the 1965 Code of Criminal Procedure. On November 14, 1966, appellant attempted to file an affidavit that he was a pauper and asked the trial court to appoint him an attorney on appeal and further requested “that I be accorded all rights and privileges pertaining to such appeal by an indigent.” On this date the trial judge entered an order denying “the relief sought herein by defendant” on the ground that the affidavit was untimely filed. The transcript was received by this Court on December 9, 1966. The cause was subsequently removed from the submission list at the personal request of the appellant. On March 2, 1967, this appellant, now being represented by counsel on appeal, filed a motion in this Court to require the trial court to order a statement of facts. Said motion asserted that appellant had been represented by court appointed trial counsel, though the record indicates that the question of indigency was presented to the trial court for the first time on November 14, 1966. On April 26, 1967, in view of the record before us, this Court entered an order suspending the appeal pending receipt of a transcription of the court reporter’s notes or a finding of the trial court of facts showing that appellant waived or was not denied his right to such transcript or to effective aid of counsel in regard thereto.

The transcription of the court reporter’s notes is now before us, and we shall consider the appeal on its merits.

Appellant’s brief complains solely of the admission into evidence of an oral statement made by appellant while under arrest without any warning being given which appellant contends was not a part of the res gestae.

Christine Canipe testified that at approximately 9 p. m. on July 28, 1965, she was assaulted and robbed by appellant in the City of Dallas. She related that appellant took from her at the time her purse or Choo-Choo bag which contained, among other things, a billfold, a $10.00 bill and a sales slip from Sears and Roebuck in her former name of Christine Horton.

Approximately one hour and ten minutes later appellant was arrested by city police officers at a bus station in downtown Dallas. After questioning appellant for “a minute to a minute and a half” at the scene of the arrest, police officers placed him in a squad car and took him to the basement of the City Hall, which trip consumed “two or three minutes.” Officer Kennedy, who had discovered Mrs. Canipe’s billfold and the Sears and Roebuck sales slip on appellant’s person at the time of his arrest, testified that “when we entered the ramp going into the (City Hall) basement” he inquired of the appellant who Christine Horton was and that the appellant stated that she was his sister. It is this statement the admissibility of which appellant questions. The State made no effort to show that the appellant did not in fact have a sister named Christine Horton.

The record reflects little or no evidence with regard to spontaneity of appellant’s statement in response to the officer’s question, but we need not determine whether it was a part of the res gestae.

“A confession is defined as a voluntary declaration by one person to another that the declarant has committed a crime.” 24 Tex.Jur.2d, Sec. 646, p. 240. It is this type of statement which is prohibited by Article 727 (now Article 38.22), V.A.C.C.P., unless its requirements are met. The article has been held to relate solely to “confessions” and does not include exculpatory statements. See Article 38.22, Note 1, supra. We do not view appellant’s declaration to be in the nature of a confession. It was neither a direct acknowledgment of responsibility for a crime or an admission of incriminating facts. Robinson v. State, 142 Tex.Cr.R. 636, 155 S.W.2d 811.

We conclude therefore that the trial court did not err in the admission of such testimony under the law in effect at the time of appellant’s trial (October 6, 1965).

We call attention however to the recent holding of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which holding is applicable to all trials commencing after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

In Miranda, the Court, concerned with statements stemming from custodial interrogation, said:

“No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.”

In discussing such holding Professor B. James George, Jr., in his book on “Constitutional Limitations on Evidence in Criminal Cases” said:

“It has not been clear under earlier Supreme Court decisions, or in state appellate cases, whether the constitutional protection extended only to ‘confessions,’ in the sense of a complete revelation of criminality, and not to ‘admissions,’ defined as isolated statements which do not themselves delineate a criminal act but which later prove useful to the state in proving its case. There was an assumption collateral to this that if the suspect’s statement was ‘exculpatory’ in nature, intended to explain away the allegations made by police against him, but later proved to have statements in it useful to the prosecution, the statement could be used against him.
“The Miranda decision sweeps away both bases of distinction. There is no ■difference between confessions and admissions : * * *.
“Nor does the purpose of the suspect in ■explaining away the charges make his statement admissible if the Miranda code has not been complied with. If they prove by the time of trial to be incriminating, and were obtained without warning and waiver, they are inadmissible for any purpose, including, apparently, impeaching the defendant’s testimony if he desires to testify at his trial, p. 193. The warning to law enforcement officials is clear: before soliciting any statement, no matter how brief or self-serving its contents, comply fully with the Miranda code or tear up the resulting statement.”

It should be observed, however, that recently in Hill v. State, 420 S.W.2d 408 (November 8, 1967) this Court said:

“Further, we do not interpret the rule laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as excluding res gestae statements such as the one made under the circumstances here described.”

Finding no reversible error, the judgment is affirmed.

CONCURRING OPINION

WOODLEY, Presiding Judge.

To the portion of the majority opinion which holds that the statement of the ap-pellant that Christine Horton was his sister was admissible, I concur. I do not, however, agree with that portion which quotes from Miranda v. State of Arizona and from the writings of Professor George construing Miranda and suggests, if it does not by dicta hold, that said statement of appellant would not have been admissible had the trial commenced after June 13, 1966, by reason of Miranda v. State of Arizona.

      . The “affidavit” does not appear to have been sworn to before a person authorized by law to take oaths. Appellant’s signature on the “affidavit” is followed by “Sworn to and subscribed before me by Jack Dunn on this the 14 day of Nov., 1966.” No other signature or seal follows such sentence in the “affidavit.”

      . In Miranda, the Court said:
      “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." In Footnote 4 the Court added, “This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” Cf. Gaudio v. State, 1 Md. App. 455, 230 A.2d 700.

      . Institute of Continuing Legal Education, Ann Arbor, Mich., 1966, pp. 121, 122.

      . The 1967 amendment to Article 38.22, V.A.O.O.P. (Acts 1967, 60th Leg., Oh. 659, pp. 1732, 1740, 1741) provides in part as follows:
      (f) Nothing contained herein shall preclude the admissibility of any statement made by the defendant in open court at his trial or at his examining trial in compliance with Articles 16.03 and 16.04 or of any statement that is res gestae of the arrest or of the offense. (Emphasis Supplied)


author: WOODLEY, Presiding Judge.

text:
    Johnnie POTTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40800.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.

      No attorney on appeal for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from an order revoking probation granted in a conviction for possession of a narcotic drug, with punishment assessed at 5 years.

Sentence was pronounced May 20, 1964, and execution thereof was suspended.

One of the conditions of probation was that appellant commit no offense against the laws of this or any other state.

The motion for revocation of such probation alleged that appellant violated said condition in that on or about November 16, 1966, he committed the offense of shoplifting.

At the hearing on said motion, at which appellant was represented by counsel, it was stipulated and appellant confessed and also testified that he committed the offense of shoplifting as alleged.

Evidence was offered in appellant’s behalf in the hope of obtaining a reduction of the sentence and, it being shown that the violation occurred more than two years after probation was granted, the trial judge ordered that the term assessed as punishment be reduced to three and a half years and ordered that appellant be confined in the Texas Department of Corrections for not less than two nor more than three and a half years.

No abuse of discretion on the part of the trial judge is shown.

The judgment is affirmed.


author: BELCHER, Judge. MORRISON, Judge.

text:
    Manuel Vargas GUADIAN and Alfredo Hernandez, Appellants, v. The STATE of Texas, Appellee.
    No. 40606.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Rehearing Denied Nov. 29, 1967.

      Joseph A. Calamia, El Paso, for appellants.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

Upon a joint trial, the appellants waived a jury, and entered pleas of not guilty to an indictment charging them with the possession of marihuana. They were found guilty by the trial court and the punishment for each was assessed at two years.

The search of the automobile the appellant Hernandez was driving and the appellant Guadian, who was riding in the front seat, and the seizure of twelve marihuana cigarettes found in the glove compartment and one marihuana cigarette found in a pocket of the trousers the appellant Guadian was wearing are the bases of this conviction.

For reversal it is contended that the admission of the testimony showing the results of the search of the automobile and the appellant Guadian was error on the ground that the search was illegal. This ground for reversal was first urged on motion to suppress, which was heard and overruled, and then on the trial on the merits.

At the time of the reading into evidence that the chemist, if present, would testify that the cigarettes contained marihuana, appellant’s counsel stated that, “I have no objection.” This was followed by the stipulation by appellant’s counsel that it was “the same marihuana that was obtained from the defendants.” In light of this evidence, the appellant is in no position to complain of the search. Love v. State, Tex.Cr.App., 373 S.W.2d 242; Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199.

However, in view of the contention that the search was illegal on the grounds that it was not reasonable and without probable cause, the facts and circumstances preceding and at the time of the search will be discussed.

Deputy Sheriff O’Donnell, who lived in Fabens, Texas, testified that about 2 a.m., July 7, 1966, he was told by an informer in person in Fabens that he had seen the appellant Hernandez and Porfirio Martinez earlier that night, which was July 6, in Caseta, Mexico, across the river from Fabens, with marihuana cigarettes in their possession, and he saw some of the marihuana, and they would be in Fabens and leaving there about 5 a.m. — early that morning for Van Horn, and showed him the car that would be used which was then parked in the yard at the residence of Hernandez in Fabens; that he had successfully used this informer in burglary and theft cases but in narcotic cases the information had not been sufficient; that he notified U. S. Customs agents Posio and Morgan in El Paso and they arrived in Fabens about 3 a.m., July 7, when he gave them the information he had about Hernandez and Martinez which had come from a mutual informer, that is, one they had used before, and he then showed them Hernandez’ car parked at his residence, and left on another assignment; that Posio already knew Hernandez, and “was working on a case relating to these particular subjects (Hernandez and Martinez).”

U. S. Customs agent Posio testified that Deputy Sheriff O’Donnell telephoned him about 2 a.m., July 7, telling him that he had confidential information that Hernandez and Martinez had been seen with marihuana cigarettes in Mexico and would be leaving Fabens early in the morning; that he knew O’Donnell’s informer, had used him before and knew he was reliable; that he had had previous information connecting Hernandez and Guadian with narcotics; that he and Morgan kept Hernandez and his car under surveillance until he drove alone to a service station where another person entered the car and they drove to a tavern, and upon parking, Posio and Morgan, in separate cars, parked on opposite sides of Hernandez’ car; that the man who had entered the car at the service station and riding in the front seat was the appellant, Manuel Vargas Guadian; that he told them they were Customs officers and wanted to make a customs search of the car, which they did, finding a package containing twelve marihuana cigarettes in the glove compartment and later found one marihuana cigarette in Guadian’s trousers pocket; and that after informing them again of their constitutional “warnings,” “they made statements that they were their cigarettes and had purchased them in Pecos”; that the tavern was located about one mile straight across and about three miles by road from the Mexico border; and that Fabens was within the district officially assigned to him as a Customs officer.

The testimony of Customs agent Morgan was substantially the same as that of Customs agent Posio.

The Customs agents had neither an arrest warrant nor a search warrant.

The United States Customs officers have express authority under Title 19, U.S.Code, Section 482, to stop and search any vehicle or person suspected of carrying merchandise subject to duty, or which has been introduced into the United States in any manner contrary to law. The right of border search does not depend on probable cause and is in a separate category from searches generally. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Mansfield v. United States, 308 F.2d 221, 222 (5th Cir.1965). The test is the existence of “a reasonable cause to suspect” that there is merchandise “which * * * shall have been introduced into the United States in a[ny] manner contrary to law.” Valadez v. United States, 358 F.2d 721, 722 (5th Cir.1966). The right of Customs officers to search vehicles and persons does not necessarily stop at the border itself. Marsh v. United States, 344 F.2d 317 (5th Cir.1965). Searches occurring at some distance inland have been upheld where Customs agents had reason to believe the vehicle or person was carrying contraband. Romero v. United States, 318 F.2d 530 (5th Cir.1963); Ramirez v. United States, 263 F.2d 385 (5th Cir.1959); Haerr v. United States, 240 F.2d 533 (5th Cir.); Alexander v. United States, 362 F.2d 379 (9th Cir.1966); Willis v. United States, 370 F.2d 604 (5th Cir.1966); Thomas v. United States, 372 F.2d 252 (5th Cir.1967).

The evidence is sufficient to authorize the conclusion that the search and seizure were reasonable, and that the same were lawful.

Further, it is concluded that the evidence is sufficient to show probable cause and authorize the search and seizure under the state law. Weeks v. State, Tex.Cr.App., 417 S.W.2d 716.

Error is also urged on the ground that the evidence is insufficient to support the conviction of the appellant Guadian in that the one marihuana cigarette taken from him was illegally obtained, and there was no evidence connecting him with the marihuana found in the glove compartment.

The evidence discloses a search of the car in which the appellant Guadian had been riding at the tavern along with a cursory search of the appellants and a search at headquarters a short time later during which the one marihuana cigarette was found in Guadian’s pocket. Further, Posio testified that after giving them their constitutional “warnings” the second time “they made statements that they were their cigarettes and had purchased them in Pecos.” To the admissions of this testimony there was no objection. No error is presented.

The failure of the trial court to make findings of fact and conclusions of law as the appellants requested was not error. Such procedure is not provided for in the Texas Code of Criminal Procedure.

The judgment is affirmed.

OPINION ON APPELLANTS’ MOTION FOR REHEARING

MORRISON, Judge.

Appellants strenuously object to that portion of our original opinion in which the Court found that the evidence was admitted without objection. A further review of the record reveals that appellants, though agreeing to certain stipulations, did so with the specific understanding that their objections that the evidence was the fruit of an illegal search were not waived.

This, however, does not affect our disposition of the case, because this was clearly a border search for marihuana predicated upon information that the two male occupants of the automobile in question would have marihuana in their possession, and that they were headed toward a point inland, away from the border.

The cases cited in our original opinion authorize this border search. See also King v. United States, 5 Cir., 258 F.2d 754, and United States v. Yee Ngee How, D.C., 105 F.Supp. 517.

The motion for rehearing is overruled.


text:
    William T. ZANE, Appellant, v. The STATE of Texas, Appellee.
    No. 40839.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    McMahon, Smart, Sprain, Wilson & Camp, by William H. Berry, Jr., Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking misdemeanor probation.

One of the conditions of probation was that probationer not violate the law. The motion to revoke alleged that the probationer had violated the law in that he passed some checks which were returned marked “account closed.” At the hearing on the motion to revoke, the person to whom the two checks described in the motion to revoke was unable to identify probationer as the person who presented the checks to him for payment.

The court then asked the prosecutor if he wanted to recall the probation officer, and the prosecutor replied, “I don’t know whether he can help us, Judge.” This was a logical answer because when he was first on the stand, the probation officer testified that he knew nothing about the alleged violation of probation. The court then called the officer as his own witness and began to propound questions to him. When the court requested a certain check from the county attorney, appellant’s counsel objected, and was reprimanded by the court. The court then asked to see all the checks, and then stated, “Let the record show that the Court has examined certain checks.” The learned trial judge does not favor this Court with any conclusions he may have reached from such examination. The checks were not introduced in evidence, and are not before this Court.

It is apparent from what has been said that this record does not show that this appellant violated the terms of his probation, because the record is silent as to his connection with the passing of the checks which were alleged as grounds for revocation. The burden is upon the State to prove the violations alleged for revocation. Upon the State’s failure to meet this burden, the court was without authority to enter the order revoking probation.

Because the trial court abused his discretion in revoking probation, the order revoking probation is reversed. See Wicker v. State, Tex.Cr.App., 378 S.W.2d 332.


author: DICE, Judge.

text:
    George Earl ZYBURA, Appellant, v. The STATE of Texas, Appellee.
    No. 40808.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    James F. Moore, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 802b, P.C., for the subsequent offense of drunk driving; the punishment, three months in jail and a fine of $750.

Probation was granted appellant and imposition of sentence was suspended upon certain terms and conditions.

This is an appeal by appellant under the authority of Art. 42.12, Sec. 8, of the 1965 Code of Criminal Procedure, at the time he was placed on probation.

In charging the offense, the indictment alleged a prior conviction of appellant on June 1, 1964, in Cause No. 2591, in the County Court of Hale County, for the misdemeanor offense of driving while intoxicated.

The state, in making proof thereof, offered in evidence as state’s exhibit #3 certified copies of the complaint, information, and judgment in said Cause No. 2591, which showed that on March 1, 1965, the defendant was convicted in said court of the misdemeanor offense of driving while intoxicated.

Appellant duly objected to the exhibit on the ground of a variance between the allegations of the indictment and the proof as to the date of the prior misdemeanor conviction.

Such objection was by the court overruled.

In such ruling the court erred.

We sustain appellant’s first ground of error, which is that the evidence is insufficient to sustain the conviction because of the material variance between the pleading and the proof as to the date of the prior misdemeanor conviction. See: Goodale v. State, 146 Tex.Cr.R. 568, 177 S.W.2d 211; Green v. State, Tex.Cr.App., 219 S.W.2d 687; Colvin v. State, 172 Tex.Cr.R. 310, 357 S.W.2d 390; and Clopton v. State, Tex.Cr.App., 408 S.W.2d 112.

In the event of another trial the court should, in submitting the state’s case and applying the law to the facts, present the converse thereof and give application to the law of reasonable doubt. McCracken v. State, 168 Tex.Cr.R. 565, 330 S.W.2d 613.

The judgment is reversed and the cause is remanded.


text:
    Ex parte James A. EILAND.
    No. 40860.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    James A. Eiland, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding, the applicant being confined under sentence of 5 to 20 years under the conviction affirmed by this Court in Eiland v. State, Tex.Cr.App., 365 S.W.2d 12.

The petition presented to this court and ordered filed does not comply with Art. 11.07 of the 1965 Code of Criminal Procedure as amended by the 60th Legislature in that it is sworn to be true only to the best of applicant’s belief, and fails to comply with the requirements laid down in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, construing Art. 11.07 as amended, in that it is not shown that said petition or one containing like allegations of fact has been presented to and denied by the judge of the 175th District Court of Bexar County, where the conviction occurred.

The petition will be denied without prejudice to applicant’s right to obtain a hearing in the 175th District Court by petition meeting the requirements of Art. 11.07 as amended and the opinion in Ex parte Young, supra, under which opinion the District Judge conducting the hearing may, in the event he finds that the applicant has been denied his constitutional right to counsel on appeal, appoint counsel to represent him in a delayed appeal from said conviction. Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417; Crawford v. Beto, 383 F.2d 604 (5th Cir., Oct. 9,1967).

The petition is denied without prejudice.

ONION, J., not participating.


text:
    Ex parte Charles E. PAUL.
    No. 40941.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Ben D. Sudderth, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order in a ha-beas corpus proceeding refusing appellant bail after indictment for murder with malice of his mother-in-law.

A previous appeal from a denial of bail before indictment was dismissed when such appeal was rendered moot by the return of the indictment. See Ex parte Paul, 419 S.W.2d 867 (October 25, 1967).

At the habeas corpus hearing it was stipulated by the defense and the State that in reaching a decision the court would consider the evidence adduced at the previous habeas corpus proceeding held on September 16, 1967.

The Constitution of this State provides that all prisoners are entitled to bail except in capital cases, when the “proof is evident.” Article I, Section 11.

The term “proof is evident” means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty. Ex parte Collins, 168 Tex.Cr.R. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877.

In Ex parte Thrash, supra, this Court said:

“The burden is upon the State to establish that the ‘proof is evident’ in order to defeat bail. Ex parte Donohoe, 112 Tex.Cr.R. 124, 14 S.W.2d 848; Ex parte Readhimer, 123 Tex.Cr.R. 635, 60 S.W.2d 788; and Ex parte Coward, 145 Tex.Cr.R. 593, 170 S.W.2d 754. The trial court has by denial of bail to this appellant construed the facts presented as showing a case of ‘proof evident.’ It is the duty of this Court to determine if the trial court was authorized to reach that conclusion.”

In performing this duty it has long been the policy of this Court in proceedings of this nature to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show the defendant’s guilt. The purpose of such policy is that the trial should proceed without pre-judgment by this Court. This policy was departed from in Ex parte Krueger, Tex.Cr.App., 391 S.W.2d 737, but is here reaffirmed.

At the outset appellant’s counsel readily concedes that the evidence is sufficient to show that an offense was committed and that appellant is the guilty party, but contends that the evidence does not indicate that appellant would probably be punished capitally if the law is administered.

He points to evidence showing that appellant and his wife had experienced marital difficulties; that she had left their home in Matagorda County taking all the children except their son Don and had moved to DeLeon in Comanche County where her mother and father resided; that a divorce suit was instituted; that appellant was ill the night before he left for DeLeon where the killing took place; that as a result of such illness he had been given a prescription by a doctor in Matagorda County; that he had taken Haldrone pills for arthritis for some time; that he was under mental stress as a result of the separation; that on his trip to DeLeon to see his wife and children he made a wrong turn and had gone 40 or 50 miles out of his way; that when he inquired of his mother-in-law as to the whereabouts of his wife and children, the deceased was heard to say, “It’s none of your business”; that following the shooting his eleven-year-old son Don drove him 16 miles to a hospital where he arrived in an unconscious or semiconscious state and was treated for cyanosis (blue skin due to lack of oxygen) ; that the hospital stay resulted from an overdose of drugs.

It must be remembered that to affirm an order denying bail this Court must find that the facts show a case of “proof evident” including the fact that upon a trial of this case a dispassionate jury would not only convict but would assess the death penalty.

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


text:
    Ex parte L. D. LARKIN.
    No. 40886.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Houston McMurry, Henrietta, for petitioner.
    Crawford Martin, Atty. Gen. of Texas, Monroe Clayton, Asst. Atty. Gen., Austin, and Frank Douthitt, County Atty., Henrietta, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Petitioner’s conviction as a third offender with punishment for life was affirmed by this Court in Larkin v. State, 134 Tex.Cr.R. 44, 113 S.W.2d 553.

On September 5, 1967, petitioner applied to the District Court of Clay County for a writ of habeas corpus alleging among other things that he was not represented by competent counsel at the time of his original conviction. A hearing was had with petitioner and his court appointed counsel present, at the conclusion of which the Judge filed his findings of fact and conclusions of law as required by Article 11.07, Vernon’s-Ann.C.C.P. as amended in 1967 SB 145, Acts 60th Legislature, p. 1732 (at p. 1734)' as follows:

(1) That petitioner was indigent and was-represented at the time of his conviction by court appointed attorney.
(2) Though a licensed attorney, his court appointed lawyer (naming him) had during the ten years prior to petitioner’s conviction appeared only two times under court appointment and had not appeared as attorney for the plaintiff or defendant in any other case.
{3) That court appointed attorney issued no process for witnesses, though petitioner requested that he do so, that he made no argument to the jury and did not cross examine any witness or make any objections to any of the State’s testimony or any objections to the court’s charge.
(4) That court appointed attorney never at any time maintained a law office, was never a member of any law firm, never held himself out to the public as a practicing lawyer and never at any time relied upon the practice of law for a livelihood.
(5) That court appointed attorney was not a competent attorney and was not capable of adequately defending the rights of a defendant upon the trial of a case.

It appearing that petitioner was denied the effective aid of counsel at his trial, the writ of habeas corpus is granted, and he is ordered released from custody under his 1937 conviction in Cause No. 3197 in the District Court of Clay County and delivered to the Sheriff of Clay County to answer to the indictment pending against him in said cause.

It is so ordered.


text:
    Cindy Parker McQUEEN, by her guardian, Maxine Parker Wiley, Appellant, v. James W. HUMPHREY, M.D., and Robert W. Kieber, M.D., Respondents.
    No. 52722.
    Supreme Court of Missouri, Division No. 2.
    Nov. 16, 1967.
    J. William Blackford, Blackford & Wil-helmsen, Kansas City, for appellant.
    Lynn K. Ballew, Strop, Watkins, Roberts & Hale, R. A. Brown, Jr., Brown, Douglas & Brown, St. Joseph, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

On May 17, 1965, plaintiff, a minor, by her guardian, filed a petition in the Circuit Court of Buchanan County against defendants, both doctors, to recover $35,000 as damages alleged to have been caused through negligent treatment of plaintiff’s broken arm.

The defendants filed a motion asking for a summary judgment, alleging that in a prior action plaintiff had received full satisfaction for her injuries.

The trial court held a hearing on the motion and entered a judgment in favor of the defendants. Plaintiff appealed.

In the .brief under “Points and Authorities” plaintiff states that:

“I. The Court erred in granting defendants’ motion for summary judgment on plaintiff’s cause of action, on the defendants’ allegation that the plaintiff has had a full and complete satisfaction for all her injuries alleged in this cause.
“Accord and satisfaction is an affirmative defense and must be pleaded.
“Summary judgment by reason of accord and satisfaction is not a matter authorized by the rules of civil procedure to be presented by a motion.
“II. The affirmative defense of accord and satisfaction presents an issue of fact which should be determined upon a trial.”

The evidence introduced on the motion shows the following:

On May 25, 1963, plaintiff was a passenger in a car owned by Wylie B. Kinney and being driven by John Kinney. While on state highway No. Ill in Holt County, Missouri, the car left the roadway and ran into a ditch. Plaintiff sustained a broken left arm. She was treated by Drs. Humphrey and Kieber. Plaintiff, by her next friend, Maxine Wiley, filed a suit against Wylie and John Kinney asking for $25,000 damages. Dr. Humphrey and Dr. Kieber were not named as defendants in that case. Further, plaintiff, on September 15, 1964, filed a petition for authority to settle and compromise her case for $7,000 and for $1,745 to her mother for medical expenses.

The trial court held a hearing on the matter and plaintiff introduced evidence to prove her injuries. The trial court entered a judgment for plaintiff for $7,000 and for $1,745 to pay for the medical expense. The request for the settlement was approved. The judgment entered reads in part as follows:

“Upon hearing the evidence and being fully advised in the premises, the court finds as per Petition for Authority to Settle herein filed that the Next Friend has made and proposes to enter into a contract with the Defendants and those who might be liable on their behalf to settle the cause of action or claim of the Plaintiff in full and forever for the sum and consideration of Seven Thousand Dollars ($7,000.00), with the claim or cause of action for medical expenses, loss of services etc. by the parents of said minor being settled on a separate Release with said parents. The court further finds that considering the issues involved, the injuries sustained by the Plaintiff, and the terms of the proposed settlement, that said settlement is fair and just and would be to the best interests of the minor Plaintiff, and that said settlement should be sustained and approved.”

The record shows that the judgment was paid in full to the guardian appointed by the probate court for plaintiff. The record also shows that neither of the doctors, defendants in the case before us, treated plaintiff subsequent to the original trial or for months prior thereto.

Further, the evidence was that plaintiff’s condition with reference to her injuries sustained on May 25, 1963, had not changed since the hearing when she obtained a judgment against Wylie and John Kinney.

Note plaintiff’s evidence.

“Q Is the condition of your arm now the same as it was on September the 15th, 1964, when this lawsuit was settled in the Circuit Court of Buchanan County, Missouri?
“A Yes. It looks the same physically. It hasn’t gotten any bigger or smaller. It’s stayed the same. But it doesn’t really get any better. Like, I think, from day to day. the weather will make it so it will heal.
“Q It just hasn’t gotten any better?
“A It hasn’t gotten any better.
“Q So, you would say the condition is just the same ? It just hasn’t improved ?
“A It hásn’t improved, no, at all.”

There is nothing in the record to indicate that plaintiff did not consider the settlement as complete satisfaction for her injuries, or that she intended to make any claim against anyone except Wylie and John Kinney. Plaintiff, at the hearing before the trial court in the present case, offered no evidence to refute any of the record or the evidence of the defendants.

It is evident that the first point made by plaintiff, that the trial court erred in finding “that the plaintiff has had a full and complete satisfaction for all her injuries,” must be ruled against plaintiff.

The second point, that accord and satisfaction is an affirmative defense and must be pleaded, is a correct statement of the law. It was pleaded in no uncertain terms in this case.

Next plaintiff says that summary judgment may not be invoked in cases of accord and satisfaction. Plaintiff cited as authority Rules of Civil' Procedure Nos. 55.10 and 55.43, V.A.M.R. and the case of Agnew v. Union Construction Co., Mo., 291 S.W.2d 106. In the Agnew case the trial court had dismissed plaintiff’s case by sustaining a motion to dismiss without a hearing. This court held that to be error, and stated that there should have been a hearing. The court did not rule that a plea of accord and satisfaction could not be presented by a motion. We find nothing in the Rules of Civil Procedure that prohibits a plea of accord and satisfaction being presented by a motion for summary judgment. The provisions of Rule 74.04 governing summary judgment are not repugnant to the procedure invoked by the defendants in this case. Farmer v. Arnold, Mo., 371 S.W.2d 265, l.c. 269, 270[4, 5].

The last point made is that the plea of accord and satisfaction presents an issue of fact which should be determined upon a trial. That is an abstract statement of law. If plaintiff had in mind in making that statement that there was no trial in this case, she is mistaken. The trial court held a hearing. Defendants introduced evidence. Plaintiff offered no evidence. The question before the court was a question of law. Plaintiff cited the case of Kroger Co. v. Roy Crosby Co., Mo.App., 393 S.W.2d 843. In that case Kroger had paid one John Murphy $8,500 to settle a claim for injuries sustained while working on a building. Kroger filed suit to recover the amount from the Roy Crosby Co., the owner of the building, claiming that the landlord was responsible for the injury. It is apparent that the case is not in point. The court there held that the trial court was in error in entering a summary judgment for the defendant. The court stated that it could not be determined as a matter of law that the landlord was not liable. In the case before us the defendant doctors may or may not have been liable to plaintiff depending upon the evidence. That the doctors were not made defendants in the first case filed by plaintiff is not material. What is material is that plaintiff has received full satisfaction in that first case. That bars any further action for the same injury. Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756, 50 A.L.R. 1106; Hanson v. Norton, 340 Mo., 1012, 103 S.W.2d 1, l.c. 6[4][5].

The judgment of the trial court was for the right party and should be and is hereby affirmed.

PER CURIAM:

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court. All concur.