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    Gladys Laverne REED, Plaintiff-Respondent, v. Alec Richard SHELLY, Defendant-Appellant.
    No. 8227.
    Springfield Court of Appeals Missouri.
    April 7, 1964.
    Modified on Court’s Own Motion, Motion for Rehearing or for Transfer to Supreme Court Denied May 12, 1964.

      Harold D. Jones, Bock & Jones, New Madrid, James F. Ford, Ford, Ford & Crow, Kennett, for defendant-appellant.
    William H. Billings, Flake L. McHaney, McHaney, Billings & Welman, Kennett, for plaintiff-respondent.
   HOGAN, Judge.

This action was brought by the plaintiff to recover damages for personal injuries sustained in an automobile collision. A jury found for the plaintiff and assessed her damages in the sum of $8,000. The defendant has appealed.

The collision occurred on Missouri Highway No. 84 about a mile and a half west of Hayti, Missouri, on July 15, 1959, at about 9:30 P.M. At the place in question, Highway 84 runs east and west and is a two-lane blacktop road, 24 feet wide, marked with a center line. Photographs of the scene received in evidence indicate that the highway is straight and level in that vicinity. On the south side of the highway, either at or very near the point of impact, the defendant’s driveway intersects the highway on the south. Beyond this driveway, to the west, there is a ditch about four feet deep on the south side of the road. At the time of the accident, it was fair and dark, and the road was dry.

The defendant, at the time of the accident, was driving west on Highway 84, “carrying [his daughter] home” from choir practice. Although the evidence is in sharp conflict as to the position of the defendant’s vehicle relative to the center line, it is apparent that he stopped about even with the east edge of the driveway, “fixing to turn in.” The plaintiff’s vehicle, being driven by her husband and in which she was riding as a passenger, was also approaching from the east on the same (north) side of the road. The collision occurred when the plaintiff’s driver attempted to pass the defendant on the left, or south, side of the highway. As a result of the collision, the plaintiff's car went into the ditch on the south side, traveled a considerable distance, and struck another driveway on the same side of the road. The plaintiff was thrown against the dashboard and sustained severe injuries.

The plaintiff, who was about 33 years old when she was injured, was on her way to visit members of her husband’s family at Kennett, Missouri, a short distance from the place in question. She remembered practically nothing about the collision itself. She testified that she remembered leaving the road, but she had no recollection of the movements of either vehicle just before they collided, as she had “put [her] head back and was dozing,” and remembered only “coming to * * * way down in the [front] seat, slumped over.”

The plaintiff’s husband, who was driving her vehicle on the occasion in question, was her principal witness to the facts of the accident. Mr. Reed was driving west on Highway 84, traveling at a moderate rate of speed, when he saw the Shelly vehicle some distance ahead (although the precise distance is not clear) with the “right light” apparently blinking. Reed then diminished his speed slightly and continued to approach the Shelly car, which, according to Reed, “swung right” so that the Shelly automobile “looked like he swung all the way off [the highway]” to the right. Reed was then 150 to 175 feet to the rear of Shelly. Reed then turned into the south lane, increased his speed to about 35 to 45 miles per hour, and started to pass the defendant on the left. Reed admittedly gave no signal of his intention to pass at any time and, after he began the passing maneuver, lost sight of the defendant completely until he had come within “about twelve feet” of the rear of the Shelly vehicle. According to Reed’s testimony, the defendant then began bearing to the left (south) into the passing lane, “and when I [Reed] seen him coming at me I swerved to the left, and he [defendant] kept coming, and I’d say the collision occurred from about three to four feet o ver in the passing lane, and I went off into the ditch.” Reed was emphatic in his testimony that he saw no oncoming traffic at any time.

The defendant’s testimony was sharply at variance with Reed’s in several particulars. According to Mr. Shelly, he drove west until his car was about even with the east edge of the driveway, and stopped completely, preparing to turn left into the driveway. Mr. Shelly had, as he recalled, turned his “left signal on” about 300 yards east of the driveway, and had come to a standstill with his car completely on the right side of the road. Approaching from the west was a trailer truck, some 250 to 350 feet to the west, going approximately 40 miles per hour. Mr. Shelly had seen Reed in his rear view mirror, but he was “pretty far back” “apparently a quarter of a mile back.” According to Shelly — at least as we understand his testimony — Reed attempted to pass from the rear almost at the same time the approaching truck was passing, “so he [Reed] kind of wedged between me and the truck, I don’t think he hit the truck, but he just tipped me a little bit, he didn’t hit me hard.” Mr. Shelly denied that he had ever turned to the right before commencing his left turn, and vigorously denied that he had moved any portion of his vehicle into the south (eastbound) lane before the collision; it was Shelly’s testimony that he had not begun the left turn because he “wasn’t going in [the driveway] because I could see him [Reed] back there, I could see that car in back of me, I didn’t make no effort to go in. * * * ” The defendant’s testimony was generally corroborated by his daughter, who had been a passenger in his vehicle at the time.

In rebuttal, the plaintiff introduced the evidence of a highway patrolman who testified that he had found dirt “apparently from the impact” on the south side of the highway, one to two feet across the center line, and she also introduced evidence of a statement made earlier by the defendant in which Shelly said that he had turned left, or had started to do so, in order to allow Reed to continue in the north lane, when the collision occurred. Other evidence will be noted as necessary in the course of the opinion.

Numerous assignments of error have been briefed and developed in argument here by the defendant. For the sake of a reasonably clear and succinct opinion, we are going to consider some of his contentions together. One of the defendant’s first points for consideration is his argument that Reed’s testimony is so “improbable and unbelievable” that it should not be considered as substantial evidence. This point need not detain us long. Our appellate courts have, on occasion, said that they can disregard testimony upon a material issue when the testimony is contrary to known physical laws or inherently impossible, but they have also qualified this statement by saying that they will do so only where the inherent impossibility is so obvious that reasonable minds could not differ. Steffen v. Ritter, Mo., 214 S.W.2d 28, 29 [1, 2]; Davis v. F. M. Stamper Co., 347 Mo. 761, 770, 148 S.W.2d 765, 769 [6-8]; Dempsey v. Horton, 337 Mo. 379, 384, 84 S.W.2d 621, 624 [5, 6], We believe there is no reason, apparent on this record, to reject Mr. Reed’s testimony as being inherently impossible or incredible. Rather, it appears to us to be entirely consonant with known physical laws and common experience. The credibility of the plaintiff’s evidence was simply a matter for the jury’s consideration.

The defendant further attacks the submissibility of plaintiff’s case by saying there is no substantial evidence that the defendant had notice of Reed’s intention to pass in time to avoid the collision. It is argued that Shelly had a right to turn left until he had actual or constructive notice of Reed’s impending attempt to pass, and that he had a right to assume that Reed would not pass without giving an audible signal. Therefore, the defendant maintains, since Reed began to pass when he was 150 feet to the rear of the Shelly vehicle, going about 35 miles per hour, and admittedly gave no warning of his approach, the defendant would have had only one or two seconds' notice of the impending collision, and this was insufficient to allow the defendant to take any action to avoid the casualty. It is not seriously contended that Mrs. Reed was guilty of contributory negligence as a matter of law, nor that there is any reason to impute the negligence of the driver to Mrs. Reed. The defendant’s argument is simply that, in the circumstances, Shelly was not negligent.

We believe the defendant’s argument applies the rules of the road to this situation in too positive and dogmatic a vein. These rules do not confer absolute rights, but rather impose reciprocal obligations which are qualified by the circumstances. Basically, it is the duty of the overtaking vehicle — in this case, Reed — to "sound [his] horn before starting to pass,” Section 304.016, par. 1, subpar. 1, and Shelly, in making his left turn, was governed by Section 304.019, which provides in part that: “No person shall * * * move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal * * Even though in this case the driver who was overtaking and passing admitted that he gave no warning of his intention to pass, we consider it somewhat misleading to define the duties of a motorist in terms of what he may take for granted. If, in this case, Shelly was aware of Reed’s presence on the highway behind him and had a duty to make some observation to the rear, we consider it inaccurate to say that he had a right to turn left. As we understand it, a motorist may not take for granted or assume that other vehicles will not be on the highway in violation of the rules of the road and thus dispense with his duty to maintain a careful watch for other vehicles or persons using the highway, provided there is any duty to keep a lookout in the first place. Pitts v. Garner, Mo., 321 S.W.2d 509, 517-518; Faught v. Washam, 365 Mo. 1021, 1028-1030, 291 S.W.2d 78, 82-83. In the case at hand, the question is whether Shelly was required to look first for overtaking vehicles, or could assume that none were behind until he heard a signal. The statute itself partially answers the question. Section 304.019 prohibits a left turn “ * * unless and until such movement can be made with reasonable safety * * There is also a partial answer in the case of Myers v. Searcy, Mo., 356 S.W.2d 59, upon which the respondent relies heavily. In the Myers case, the Supreme Court was considering the contributory negligence of a plaintiff turning left at an intersection when he was struck by the defendant who was passing on the left in violation of Section 304.016, par. 4, subpar. 2, which prohibits driving to the left within 100 feet of an intersection. The court held that it was Myers’ duty to keep a lookout for the vehicle attempting to pass on the left “under the circumstances here shown. * * * ”

Myers v. Searcy, supra, 356 S.W.2d at 62-63 [4-8]. We have concluded that even though the opening paragraph of Section 304.019 docs not mention a “lookout,” and Myers v. Searcy may be technically distinguishable from the case at bar, still a driver who intends to turn left must make a proper observation to the rear to ascertain whether another vehicle is approaching from the rear in such close proximity that a left turn cannot be made with reasonable safety. The language of the opening paragraph of Section 304.019 and cases construing similar statutes convince us that at least two duties are imposed upon a motorist who intends to turn left in the circumstances here presented. First, he must ascertain that such movement can he made with reasonable safety; then, he must give an appropriate signal of his intention to change direction. Giving a signal does not dispense with the necessity of determining that a left turn can be made with reasonable safety. Further, an integral part of the statutory obligation to ascertain that a left turn can be made with reasonable safety is the duty to make an appropriate observation to the rear for overtaking vehicles. Section 304.019 does not, in our view, prohibit a left turn unless the circumstances are absolutely free from danger, nor does it require the maintenance of a continuous observation to the rear prior to or during the making of a left turn. We do not believe the use of the word “lookout” in Instruction P-2 was sufficiently prejudicial to require reversal in this particular case, as the defendant maintains, for a lookout, in one sense, merely means a careful looking or watching for any object. Valdin v. Holteen, supra, n. 4, 260 P.2d at 513. We will plainly say, however, that we think the use of the phrase “keep a lookout” is misleading in defining the obligations imposed by the opening paragraph of Section 304.-019; the phrase “keep a lookout” implies or connotes the driver’s continuous statutory duty to maintain a vigilant lookout ahead and laterally in the direction he is traveling. What we say here is that the driver of a motor vehicle is required to exercise the highest degree of care at all times, Section 304.010, par. 1, and it follows that a driver must use the highest degree of care to ascertain that his turn can be made with reasonable safety. One of the things he must do in determining that the movement can be made with safety is to make such observation of overtaking traffic as comports with the highest degree of care. The duty of a motorist intending to turn left would be better defined in such terms, and not in terms of “keeping a lookout.”

Applying what we have said to the facts of this case, we believe the inference was permissible that Shelly was in fact negligent. Both parties agree that the plaintiff is entitled to the most favorable construction of the evidence in determining whether she made a submissible case, Le Neve v. Rankin, Mo.App., 341 S.W.2d 358, 362 [2], and, in this light, reasonable minds could have concluded: That as Reed was going west at a moderate rate of speed, 40 to 50 miles per hour, he saw Shelly ahead of him, some distance away, beginning a driving maneuver which would take him to the north or right, apparently entirely off the roadway. According to Reed, it appeared that “he swung all the way off * * * to the right. * * * ” Acting upon this appearance, Reed, then 100 to 150 feet to the rear (east) of Shelly’s car, turned into the south lane, accelerated his speed slightly “to between 35 and 45,” and temporarily lost sight of the vehicle ahead. When Reed had come within twelve feet of the Shelly vehicle, the defendant started turning left, and when Reed “noticed he was coming back towards me * * * ” Reed swerved to the left but was unable to avoid Shelly; the two vehicles collided three or four feet over in the passing lane. Of course, Reed’s statement that he lost sight of the vehicle indicates a certain inattentiveness on his part, but in considering Shelly’s negligence, or lack of it, the jury could reasonbly have found that he was not only aware of the overtaking vehicle but that he appreciated some possibility of danger, for the defendant did testify on one occasion that he watched Reed in the rear view mirror as the truck was coming by (according to Shelly, from the opposite direction) and that he “saw him [Reed] coming. * * * ” And, referring to the driveway on the south, Shelly testified that “I wasn’t going in because I could see him back there, I could see the car in back of me, I didn’t make no effort to go in. * * ” Put very bluntly, though Shelly was, in this situation, under no obligation to keep his eyes glued to the rear to determine that he could safely turn, neither had he the right to proceed obliviously into the passing lane upon the assumption that no one would be there. There is considerable force in the defendant’s argument that he had but a short time in which to appreciate Reed’s intention, but he was aware of the presence of the overtaking vehicle and a jury might have concluded that another glance in the mirror or to the rear was required to conform to the highest degree of care. It is our view that a jury could reasonably have concluded that Shelly negligently failed to ascertain that his left turn could be made with reasonable safety and that the plaintiff made a submissible case.

The defendant next makes ■ six specific assignments of error directed to Instruction P-2, which was the plaintiff’s verdict-directing instruction. Some of these assignments — for example, that there was no substantial evidence of any negligence upon which to base an instruction, that the instruction did not recognize the defendant’s right to turn left, and that the instruction' erroneously defined the defendant’s duty to the plaintiff' — have been disposed of by what we have already said. The instruction'complained of, in an opening paragraph, hypothesized the plaintiff’s presence on the highway in her husband’s vehicle, required a finding that Reed drove into the south lane and attempted to pass the defendant, that Shelly then turned left to go into a driveway and collided with Reed, and that as a direct result Mrs. Reed was injured. In the second paragraph, the instruction advised the jury that it was the defendant’s duty to keep a lookout to avoid turning into the path of other vehicles. The jury was then instructed that if they found that the defendant, by the exercise of the highest degree of care, could have seen the Reed automobile approaching and passing in time to have avoided the collision but that the defendant failed to do so, and if they found that the defendant negligently turned his automobile from a direct course to the left into Reed’s path when he knew, or in the highest degree of care should have known, that a collision was likely to occur, and that the defendant’s negligence caused or contributed to cause the collision and Mrs. Reed’s injuries, then their verdict would be for the plaintiff.

The defendant assigns error to the failure of this instruction to require a finding that Shelly could have determined that Reed intended to pass. This contention overlooks the clear inference from Shelly’s testimony, which we have noted, that he had some appreciation of possible danger from the overtaking vehicle. There was no requirement, at least in the peculiar circumstances of this case, that the defendant have any particular time in which to act or take some evasive action. All the defendant was required to do, to avert a collision, was to remain stationary. As to the defendant’s more detailed objections to Instruction P-2, we agree that it is clumsily constructed and, in the event of a retrial of this case, plaintiff’s counsel would be well advised to consider the defendant’s objections and redraft the instruction. At least for the reasons briefed and argued here, however, we do not believe that Instruction P-2 was so prejudicially erroneous as to require reversal. See Schmidt v. Windish, Mo., 304 S.W.2d 891, 895.

The defendant contends that plaintiff’s Instruction P-4 was prejudicially erroneous. This instruction first advised the jury-in substance that if plaintiff was a passenger in her husband’s vehicle and had nothing to do with the driving or control of the vehicle, then the negligence, if any, of the driver would not be imputable or chargeable to the plaintiff. The instruction then continued :

“You are further instructed that with reference to the charges of negligence against the defendant in this case, that if from the evidence and these instructions of the court you find the defendant was negligent as submitted in the other instructions, and the negligence, if any, of the defendant, no matter how great, and the negligence, if any, of Roy Reed, no matter how great, directly concurred, combined and contributed in any degree to cause plaintiff Gladys Reed to sustain injury, if so, and if you find that plaintiff was in the exercise of ordinary care for her own safety, then it would be your duty to return a verdict in favor of Gladys Reed and against defendant because if you find that the defendant was negligent as submitted to you in these instructions, and if his negligence directly contributed to cause injury, if any, to the plaintiff, then the defendant, even if less negligent than Roy Reed, could not make use of the concurring negligence of plaintiff’s husband to defeat the claim of the plaintiff against the defendant.” (Emphasis ours)

Defendant assails this instruction by saying that the first paragraph “comments on the evidence, exonerates plaintiff under facts not in issue, gives undue weight to plaintiff’s case, and lectures the jury on acts of plaintiff’s husband.” As to the second paragraph, the defendant maintains that it conflicts with his sole cause instruction and positively misdirects the jury on the question of proximate cause. The defendant cites the cases of Rothweiler v. St. Louis Pub. Serv. Co., 361 Mo. 259, 234 S.W.2d 552, and Danner v. Weinreich, Mo., 323 S.W.2d 746, as authority. We have given this assignment of error the most careful consideration and have concluded that there was prejudicial error in giving the instruction. We are aware that instructions similar to Instruction P-4 have provoked considerable controversy, and in order to state our conclusion explicitly, we must briefly place the parties’ factual theories in apposition.

By the plaintiff’s evidence, as Mr. Reed drove his vehicle west along the highway, he saw the defendant some distance ahead. During the course of his testimony, he said on several occasions that it was 200 feet ahead, and on several others that it was 200 yards ahead. Mr. Shelly appeared to be turning right, off the road. Mr. Reed slackened his speed, and then lost sight of the defendant — “didn’t see his car no more until [I] got up in about twelve feet of him.” Reed gave no signal before starting to pass; he neither blinked his lights nor sounded his horn at any time. Mr. Reed moved into the passing (south) lane when he was about 150 feet to Shelly’s rear, and when he came up to within twelve feet of the Shelly automobile, the defendant began to make a left turn; Reed still did not signal but “swerved to the left,” or “began to lead off to the left.” The defendant’s “left bumper” came in contact with Reed’s “right fender,” and Reed went into the’ditch oh the south side of the 'highway. Reed did not stop then, however. He “couldn’t find the brake * * * and kept hitting the accelerator, that’s what I figuréd, so I kept rolling for 500 to 600 feet- * * * and then I hit another embankment, and that’s when my car * * * stopped.” Precisely, it was shown that after the collision Reed traveled 525 feet west in the ditch and was stopped when he struck another driveway on the south side of the road. Mrs. Reed, the plaintiff, was asleep, did not see the accident, and seems not to have been fully awakened by the collision with the Shelly vehicle. As we read the record, it is fairly inferable that she sustained her injuries when the Reed vehicle struck the driveway some 525 feet on to. the west. It also could be fairly inferred, we think, that the impact itself was very slight. Photographs of the damaged vehicles were introduced in evidence, and while the Reed vehicle is the most extensively damaged, most of that damage was referable to its collision with the embankment, or driveway, which it struck after colliding with Shelly. Mr. Shelly’s automobile shows only very slight damage to the left front fender.

' The defendant’s evidence was that he had stopped, completely on the north side of the highway, preparatory to making a left turn. He had seen the Reed vehicle approaching from the rear, some 300 feet behind him when he stopped. There was a trailer truck coming from the west, and the defendant stopped “to let him by.” Just as the truck passed, according to Mr. Shelly, the Reed car passed from the rear, barely missing the truck, and “tipping” the Shelly automobile “a little bit,” and then “taken the ditch.” Mr. Shelly “might have moved a little” after the truck passed, but he denied that he was in the south lane when the collision occurred.

Now, even though Reed’s negligence, if any, could not be imputed to the plaintiff and plaintiff was guilty of no contributory negligence, the defendant was still entitled to have the jury consider the other side of the coin, so to speak, and absolve him of liability if plaintiff’s injuries were wholly and alone due to Reed’s negligent act — in other words, through a sole cause submission, if the evidence supported it. Gower v. Trumbo, Mo., 181 S.W.2d 653, 655 [1-4]; Semar v. Kelly, 352 Mo. 157, 162, 176 S.W.2d 289, 291 [2,3]; Vincent v. Raffety, Mo.App., 344 S.W.2d 293, 296 [4], By current authority, the sole cause submission “ * * * concedes that the injuries to plaintiff resulted from the negligence of someone, and * * * authorizes •a finding * * * for the defendant only :if [the jury] finds that the negligence of the plaintiff, or someone other than the defendant, was the sole proximate cause of the injuries * * Hall v. Rager, Mo., 357 S.W.2d 83, 88; Happy v. Blanton, Mo., 303 S.W.2d 633, 637 [3-6]. If we look to the evidence, and the reasonable inferences favorable to the defendant, Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 1160, 159 S.W.2d 254, 255 [1], we believe the evidence supported a sole cause submission. As we have indicated, there is considerable force in the defendant’s argument that he did not have sufficient indication of Reed’s impending pass to advise him that a left turn could not be made with reasonable safety, and a jury might reasonably have concluded that Shelly divided his attention between Reed and the oncoming truck as well as he could, and had, in this respect, exercised the highest degree of care, even if he was turning left at the time of collision. We are of the further opinion that Reed could have been considered negligent in failing to keep the automobile ahead in view, in failing to give any warning of his intention to pass, and in continuing to accelerate down the ditch for 525 feet after the collision occurred. Further, the evidence would justify the conclusion that the impact between the Reed and Shelly automobiles was so slight that it did not contribute substantially to the plaintiff’s injuries. We do not, of course, say that the evidence forced any such conclusions; we merely say that they are reasonable from the point of view of defendant’s evidence, and all reasonable inferences favorable to him.

The defendant did submit the issue of sole cause by his Instruction D-l, which in effect told the jury that if it found Reed failed to exercise the highest degree of care in certain specified respects, that such negligence was the sole cause of the collision, and that Shelly was not negligent as submitted in the other instructions, then its verdict would be for the defendant. We do not reach nor decide the sufficiency of the defendant’s hypothesis of facts in his sole cause instruction, but we note that it is no longer considered necessary for a sole cause instruction to inform the jury specifically in a guest case that the negligence of the driver cannot be imputed to the passenger, McGhee v. Jones, Mo., 336 S.W.2d 722, 726 [1, 2]; Clemons v. Becker, Mo., 283 S.W.2d 449, 452 [7]; and defendant’s required finding that Shelly “was not negligent as submitted to you in the other instructions” sufficiently negatived the possibility of concurring negligence on Shelly’s part. Happy v. Blanton, supra, 303 S.W.2d at 639 [11, 12]. Thus, Instruction P-4 was unnecessary for the jury’s guidance, and the jury would not have been misdirected had the plaintiff given no instruction on these sub j ects.

It is true that the defendant pleaded a joint venture or joint enterprise, but adduced no evidence tending to establish it; and since there was no evidence tending to establish it, and since there was no evidence that the plaintiff was a joint owner or otherwise exercised any right or control over the vehicle, her husband’s contributory negligence would not bar her recovery. Pence v. Kansas City Laundry Service Co., 332 Mo. 930, 939, 59 S.W.2d 633, 636 [8, 9]; Le Neve v. Rankin, supra, 341 S.W.2d at 363-64; Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d at 111, 115 [12]. The first paragraph' of Instruction P-4 possibly had a tendency to emphasize a matter which was not under consideration, but it did declare the law correctly as far as it went, and we can see nothing prejudicially erroneous in this first paragraph.

It is the second paragraph of the instruction which is,' in our view, erroneous. In the circumstances of this case, it simply constitutes an unnecessary argument to the jury and, as the defendant claims, actually nullifies his attempted sole cause submission. We cannot agree with the plaintiff that repeated use of the phrase “no matter how great,” and of the phrase “even if less negligent,” in comparing and contrasting the acts of Reed and Shelly has been “approved.” There are many cases which have held on an ad hoc basis that the use of such language was not prejudicial, but on broad principles negligence is not susceptible to division into degrees, 38 Am.Jur., Negligence, § 43, pp. 688-89; see 2 Harper & James, Torts, § 16.13, pp. 945-47, and the doctrine of comparative negligence has been rejected in this State. Howard v. Scarritt Estate Co., 267 Mo. 398, 402, 184 S.W. 1144, 1145 [2]. In the case of Rothweiler v. St. Louis Pub. Serv. Co., supra, 234 S.W.2d at 555, the Supreme Court “t[ook] occasion to say that no useful or fair purpose is served by the two references * * * to the negligence of defendant ‘no matter how great.’ * * * ” Instructions which recognize or submit comparison of degrees of negligence or causal connection are generally subject to criticism, State ex rel. Kansas City Public Serv. Co. v. Bland, 353 Mo. 1234, 1242-1243, 187 S.W.2d 211, 214-15 [7]; Kunz v. Munzlinger, Mo., 242 S.W.2d 536, 541; Anno., 87 A.L.R.2d 1391, 1395-97, and Instruction P-4, in our view, plainly implies that the jury should apply one standard of conduct to Shelly, and another, less onerous, standard to Reed. In this respect, the instruction is erroneous, and unfair to Shelly. The real vice of Instruction P-4 is, however, that it clouds and obscures the essential element and required finding of proximate cause, upon which a plaintiff’s verdict should have been predicated, by advising the jury that it was their duty to find for the plaintiff if Shelly’s negligence contributed “in any degree.” Waldrip v. American Buslines, Inc., Mo., 327 S.W.2d 211, 217; Danner v. Weinreich, supra, 323 S.W.2d at 750-752. We are aware that the Danner case deals specifically with contributory negligence, but even concurrent negligence must be an efficient producing cause of the injury, to be actionable, even though it need not be the sole proximate cause. Fawkes v. National Refining Co., 341 Mo. 630, 639-640, 108 S.W.2d 7, 11-12 [11-15]; King v. Rieth, 341 Mo. 467, 476-77, 108 S.W.2d 1, 5-6 [8-10]; Giles v. Moundridge Milling Co., 351 Mo. 568, 576-77, 173 S.W.2d 745, 750-751 [6-8]; 38 Am.Jur., Negligence, § 64, pp. 718-19. We neither adhere to nor advance the idea that giving Instruction P-4 would be abstractly erroneous in all conceivable circumstances. See Brooks v. Mock, Mo., 330 S.W.2d 759, 767-768 [12]. We are of the view, however, that no amount of gloss can obscure the fact that Instruction P-4 unfairly invited a comparison of the conduct of Reed and Shelly in terms of relative fault by classifying negligence according to degree, and prej-udicially favored the plaintiff by weakening or modifying the requirement that Shelly’s negligence be a direct and proximate cause of plaintiff’s injuries. For these reasons, the giving of Instruction P-4 was prejudicial error, upon the record presented. Danner v. Weinreich, supra, 323 S.W.2d at 751-52; Waldrip v. American Buslines, Inc., supra, 327 S.W.2d at 217 [5], See also Frank v. Stiegler, 250 Minn. 447, 84 N.W.2d 912, 918 [9].

The defendant has made numerous additional assignments of error. In some of these assignments, we think there may be some substantial merit, but since they concern matters which might not be involved in the event of retrial, we consider it inappropriate to deal with these additional claims of error. There is one final point which must be discussed, however.

As part of her case, presumably to show the nature and extent of her injuries, the plaintiff introduced a colored photograph of herself in evidence. The picture is 8 inches by 10 inches and shows the plaintiff reclining in a hospital bed, clad in an ordinary hospital gown. There are some bruised areas about her face, a small piece of adhesive tape across the bridge of her nose, and she appears to have two black eyes. There is no visible break in the skin, nor is there any expression of pain on her face.

Before this exhibit — Plaintiff’s Exhibit C —was admitted in evidence, the trial court conducted a preliminary inquiry to ascertain how and where the picture had been taken, and whether it accurately portrayed the plaintiff’s condition at the time it was taken. The evidence disclosed that the photograph had been taken by Mr. Billings, one of the attorneys for the plaintiff. Mr. Billings is an experienced photographer who was, for., several years prior to his entry into the legal profession, employed as a photographer by a local newspaper. During the course of his employment as a newspaper photographer, he took pictures, developed pictures, and processed and enlarged pictures. He has, on occasion, taken pictures for use by various national news services. Mr. Billings testified that he took the picture some four days after the plaintiff sustained her injuries, while she was a patient in the Hayti Memorial Hospital. Mr. Billings described in some detail the technique which he had used in making the picture. While the photograph may have been taken for use in litigation, it does not appear that it was specially posed so as to emphasize or exaggerate the plaintiff’s injuries, and there is no indication that the photograph has been retouched or tinted.

Exhibit C was shown to Dr. Leo Benson, a physician who was attending the plaintiff at the time the photograph was made. Dr. Benson testified that there was no distortion of any of the colors of the plaintiff’s face as it had appeared at the time, and stated that the colored photograph did not exaggerate the plaintiff’s-injuries. He was of the opinion that the picture was a “very accurate” representation of Mrs. Reed as she appeared at the time of his treatment. Upon this showing, the exhibit was admitted in evidence. The plaintiff also offered a black and white photograph for purposes of comparison. The defendant has vigorously objected to the admission of the colored photograph in evidence. Both in his brief and upon argument here, he maintains that the photograph was inflammatory and prejudicial. He cites Faught v. Washam, supra, 329 S.W.2d 588, as authority for his position.

We do not understand the Faught case to pronounce that colored photographs arc anathema in the Missouri courts. After carefully considering the exhibits themselves in that case, and reviewing much authority, the court pointed out that the indiscriminate and flamboyant use of colored photographs as “visual aids” in the presentation of a case may re-suit in prejudicial error, and went on to say that the appellate courts are not foreclosed by the exercise of the trial court’s discretion in admitting such evidence. Faught v. Washam, supra, 329 S.W.2d at 599-600 [19] [20-22], See also McCormick, Evidence, Sections 180-81, pp. 386-88. However, the Faught case also held that “there [was] no logical reason why colored photographs should not be used in evidence, subject to the same limitations and restrictions as black and white photographs,” Faught v. Washam, supra, 329 S.W.2d at 599, and indeed, colored photographs seem to be commonly used in both civil and criminal actions. Generally, it is said that colored photographs are admissible in evidence in personal injury actions to indicate the nature and extent of the injuries sustained, so long as they accurately portray and do not exaggerate the injuries. Faught v. Washam, supra, 329 S.W.2d at 599-600; Floen v. Sund, 255 Minn. 211, 96 N.W.2d 563, 568 [7]; Killary v. Burlington-Lake Champlain C. of C., Inc., 123 Vt. 256, 186 A.2d 170, 178 [12]. Before admitting a colored photograph in evidence, however, the court should ascertain by suitable preliminary inquiry that the photograph is sufficiently verified, that it reflects the situation fairly, and that it is likely to be of sufficient assistance to warrant its use, Horowitz v. Bokron, 337 Mass. 739, 151 N.E.2d 480, 483 [3-5]; Killary v. Burlington-Lake Champlain C. of C., Inc., supra, 186 A.2d at 178 [12], and so far as the admission or exclusion of a colored photograph is discretionary on the part of the trial court, the exercise of that discretion is subject to review. Faught v. Washam, supra, 329 S.W.2d at 600, and cases cited n. 20; Horowitz v. Bokron, supra, 151 N.E.2d at 483. ■

In this case, the photograph was taken by an experienced photographer, within three or four days of the accident. So far as we can judge, it is not gruesome, nor does it tend to exaggerate the plaintiff’s injuries. The colors of the photograph are reasonably subdued. Plaintiff’s attending physician testified that it was an accurate portrayal of the plaintiff’s condition at the time he saw her, and that it accurately reflected the color of the tissues of plaintiff’s face at that time.

We cannot agree with the defendant’s facile argument that any jury would readily understand the nature and extent of plaintiff’s injuries from the medical testimony. The medical evidence was that she had suffered “fractures of both maxillary bones * * * both zygomatic arches * * * the left nasal bone * * * and possibly the right. * * * ” There were apparently no gross external wounds, nor were any external incisions made to perform the two operations which plaintiff underwent. It is our view that the photograph communicates the nature and extent of plaintiff’s injuries much more directly than the description of her injuries given by the physician. We find at least three fairly recent cases in which colored photographs have been admitted in reasonably similar circumstances, and we conclude that there was no abuse of discretion in admitting plaintiff’s Exhibit C.

For the reasons indicated, the judgment is reversed and the cause remanded.

RUARK, P. J., and STONE, J., concur.

      . Garrison v. Ryno, Mo., 328 S.W.2d 557, 565-60; Nelms v. Bright, Mo., 299 S.W.2d 483, 490; McGuire v. Steel Transp. Co., Inc., 359 Mo. 1179, 1184, 225 S.W.2d 699, 702; Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, 528 [1-3].

      . All references to statutes and rules are to RSMo (1959), Y.A.M.S. and Y.A.M.R., unless otherwise noted.

      . Kudirka v. Fairman, M.D.Pa., 152 F.Supp. 120, 122-123 [3]; Kentucky Bus Lines v. Wilson, Ky., 258 S.W.2d 486, 488 [4]; Service Fire Ins. Co. of N. Y. v. Suezy, La.App., 77 So.2d 110, 112; Kruger v. Ervin Clark Constr. Co., 166 Neb. 252, 88 N.W.2d 778, 781-782; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431, 435-436 [9]; Smith v. Clark, 187 Va. 181, 46 S.E.2d 21, 24 [2],

      . Crouse v. United States, D.C.Del., 137 F.Supp. 47, 50 [7-9]; Clayton v. Mc-Ilrath, 241 Iowa 1162, 44 N.W.2d 741, 746 [12, 13] [14], 27 A.L.R.2d 307; Auekley v. Robbins, La.App., 45 So.2d 380, 381-82 [1]; Jacoby v. Schafsnitz, 270 Mich. 515, 259 N.W. 322 [1, 2]; Tart v. Register, 257 N.C. 161, 125 S.E. 2d 754, 759 [12, 13]; Valdin v. Holteen, 199 Or. 134, 260 P.2d 504, 513 [14] [15]; Kincaide v. Hardware Mut. Cas. Co., 15 Wis.2d 474, 113 N.W.2d 147, 149 [3, 4]; 1 Blashfield, Cyclopedia of Automobile Law and Practice, § 685, p. 580.

      . See Faught v. Washam, supra, 329 S.W.2d at 599, n. 18; Anno., 53 A.L.R.2d 1102; 2 A.L.R.2d Supp. Sv. 3292-93; 3 A.L.R.2d Supp. Sv. 1144; 4 A.L.R.2d Supp. Sv. 1201-02.

      . Horowitz v. Bokron, supra, 337 Mass. 739, 151 N.E.2d at 483 [3-5] ; plaintiff injured in automobile accident; colored slides of injuries to her face and neck properly admitted. Floen v. Sund, supra, 255 Minn. 211, 96 N.W.2d at 568 [7]; plaintiff injured in automobile accident; colored photograph of plaintiff in hospital bed, scar over his forehead; picture taken for use in litigation; held, properly admitted. Killary v. Burlington-Lake Champlain C. of C., Inc., supra, 123 Vt. 256, 186 A.2d at 178 [12]; plaintiff injured in boating accident; colored slides taken by plastic surgeon showing plaintiff’s progress in recovering from facial injuries; held, admissible.


source: Caselaw Access Project

author: STEAKLEY, Justice. SMITH, Justice

license: Public Domain

text:
    Sergeant Herbert N. CARRINGTON, Relator, v. Alan V. RASH et al., Respondents.
    No. A-10104.
    Supreme Court of Texas.
    April 29, 1964.
    Peticolas, Luscombe & Stephens, Wayne Windle, Jr., El Paso, with above firm, for relátor.
    Tad R. Smith, El Paso, Waggoner Carr, Atty. Gen., Mary Kate Parker Wall, Asst. Atty. Gen., Austin, for respondents.
   STEAKLEY, Justice.

This proceeding presents for decision the question of whether a nonresident at the time of entering the regular military service of the United States can acquire a voting residence in Texas so long as he is in the military service. We hold that he may not.

Relator, Herbert N. Carrington, is a sergeant in the United States Army. He entered the military service in 1946, at which time he was a resident of Alabama. He has been stationed at White Sands, New Mexico, and has resided in El Paso County, Texas, since February, 1962. He has purchased a home in El Paso, pays taxes in El Paso, registers his automobile in El Paso, and has purchased a poll tax in El Paso. He says that El Paso County is his legal residence, and we assume that such is the case.

Relator desires to vote in the Republican Party Primary Election to be held on May 2, 1964. Respondent, Alan V. Rash, is Chairman of the Republican Party Executive Committee of El Paso County and the Respondent, Margaret Hockenberry is the Presiding Judge of the precinct in which Relator would vote. These Respondents have informed Relator that he will not be permitted to vote because of the opinion of the Attorney General of Texas, dated November 6, 1963, holding that a former non-resident in the position of Relator may not vote in Texas.

Prior to 1954, and for over a hundred and twenty years, the Constitution of Texas disqualified members of the regular military establishments of the United States from voting in this state. This included both native residents and former nonresidents. Pursuant to proper legislative action, there was submitted in 1954, and adopted by a vote of the people, an amendment to Suffrage Article VI of the Constitution of Texas, Vernon’s Ann.St. As relevant here, this amendment for the first time enfranchised members of the regular military forces of the United States to the following extent:

“Any member of the Armed Forces of the United States or component branches thereof, or in the military services of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.”

The self-evident purpose of the amendment to the Constitution was to prevent a person entering military service as a resident citizen of a county in Texas from acquiring a different voting residence in-Texas during the period of his military service, and to prevent a person entering military service as a resident citizen of another state from acquiring a voting residence in Texas during the period of military service. Relator argues that the intent of the 1954 amendment was to enfranchise all members of the Armed Forces but to restrict only the voting residence of those individuals entering the military service from Texas to the county of their residence; in other words, says Relator, a former nonresident may choose and change his voting residence in Texas, a privilege denied to original residents of Texas. We do-not regard this as a reasonable or plausible construction of the amendment. To so narrowly construe the amendment would be inconsistent with the history of the provisions of the Texas Constitution with respect to the exercise of suffrage by persons in military service. As before mentioned, no member of the regular military establishments could vote in Texas prior to the 1954 amendment, and it is not reasonable to say that the Legislature in submitting the amendment, and the people in their favorable vote thereon, intended to free from all restrictions based on military service those persons who had entered such service as residents of another state, but to restrict those persons entering military service as residents of Texas to the right to vote in the county in which. they resided at such time. Such a construction would, in effect, create a discrimination against residents of the state. Moreover, the very purpose of the disfranchisement of military personnel for so long, and the obvious purpose of restricting the vote of a Texas resident to the county in which he resided at the time he entered the military service, was to prevent a concentration of military voting strength in areas where military bases are located. This basic purpose and policy would be frustrated if individuals in the military service who were former residents of another state could choose and change their voting residence while stationed in Texas.

Persons in military service are subject at all times to reassignment, and hence to a change in their actual residence. They are residents in a particular place for a particular period of time under compulsion of military orders; they do not elect to be where they are. Their reasons for being where they are, and their interest in the political life of where they are, cannot be the same as the permanent residents. This is not to say that military personnel are any less citizens; it is to say that military personnel in the nature of their sojourn at a particular place are not, and cannot be, a part of the local community in the same sense as its permanent residents. Denying to such personnel the right of suffrage in the place where they may be stationed— while in no sense denying the exercise of such right in their place of original residence — is not unreasonable and the classification established is nondiscriminatory. The voting restrictions operate alike upon all members of the class. Both the original resident and former nonresident lose the right to vote in Texas upon a change in their legal residence after entering the military service. The nonresident voluntarily gives up his right to vote in his original state of residence by changing his legal residence to Texas. The resident voluntarily gives up his right to vote by changing his legal residence to another county in T cxas.

This is not to say that the Texas Constitution purports to, or can, restrict the voting rights of persons in other states. Texas cannot, of course, extraterritorily regulate or limit the voting residence of a person entering the military service as a resident of another state so long as such person remains a citizen of the other state. The Texas Constitution can, however, declare the policy that the enfranchisement of a person in military service shall be limited to the exercise of suffrage in the county in which the person resided at the time of entering the service. The effect on former nonresidents is that they may not acquire a voting residence in Texas; the effect upon original residents is that they may not change their voting residence from one county to another.

This construction does not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in its provision that no state shall deny to any person within its jurisdiction the equal protection of the laws. Involved is the question of the reasonableness of the classification; or, to express it otherwise, there is involved the question of whether the 1954 amendment as so construed results in a discrimination which offends the Federal Constitution. The Supreme Court of the United States has long recognized that “the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution. * * * A State, so far as the Federal Constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote, as the Federal Constitution does not confer the right of suffrage upon any one, and the conditions under which that right is to be exercised are matters for the states alone to prescribe, subject to the conditions of the Federal Constitution, already stated * * (Italics are added) Pope v. Williams, 193 U.S. 621, 632, 633, 24 S.Ct. 573, 575, 48 L.Ed. 817. The case involved a Maryland statute which provided that a nonresident coming into the state to reside must have filed a declaration of intent so to do a year before he should have the right to be registered as a voter in the state. The statute was unsuccessfully attacked as violating a federal right of the new resident of Maryland.

Later, in 1959, The United States Su.preme Court reaffirmed the foregoing principles, saying:

“The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, * * * absent of course the discrimination which the Constitution condemns. * * * So while the right of suffrage is established and guaranteed by the Constitution * * * it is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress acting pursuant to its constitutional powers, has imposed. * * We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction.” Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072.

The Supreme Court in this case sustained a statute of North Carolina which required that prospective voters be able to read and write in the English language any section of the Constitution of the state.

In Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 [holding that the Georgia county unit system violated the equal protection clause of the Fourteenth Amendment] the Court reaffirmed the principle that “When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.”

We do not believe that a resident of another state upon entering the military service possesses a “federally protected right” to vote in Texas elections while in the military service in whatever county or district in Texas to which he may elect to change his voting residence. The provision of the Texas Constitution under review does not result in the loss of the right of the nonresident to retain his voting privileges under the laws of the state of his residence when he entered the service; its effect is only that a resident of another state entering military service cannot later give up his former residence, and with it the right to vote in such state, and thereupon, while in the military service, acquire a voting residence in Texas.

The petition for writ of mandamus is denied.

CALVERT, C. J., and SMITH, J., dissenting.

SMITH, Justice

(dissenting).

This is an original petition for writ of mandamus filed by Relator, Herbert N. Car-rington, to compel respondents to determine whether or not Relator is a qualified elector for the purpose of voting in the Republican party primary to be held on May 2, 1964, without taking into consideration the fact that he is a member of the United States Army and entered the military service while residing in Alabama. Respondents in this proceeding are Honorable Waggoner Carr, Attorney General of Texas; Honorable Alan V. Rash, Chairman of the Republican party Executive Committee of El Paso County, Texas, and Honorable Margaret Hockenberry, the “presiding judge” who will conduct the Republican party primary election in Precinct No. 16 of El Paso County, Texas.

Relator is a Sergeant in the United States Army. He entered the service in 1946, when he was a resident of Jefferson County, Alabama, and has been continuously in the military service since that time. It is undisputed that Relator is at present a resident of El Paso County, Texas, where he and his family have resided since February, 1962. He has designated El Paso, Texas, as his permanent home for all purposes on his military records, has paid ad valorem taxes and will pay such taxes in the future to the City of El Paso and to the County of El Paso, and has shown on his federal income tax return that he resides in El Paso, Texas.

On December 17, 1963, Relator paid the poll tax levied for the year 1963 to the County Tax Collector of El Paso County, Texas. Thereafter, on March 18, 1964, Relator wrote a letter to Respondent Rash, asking whether or not Relator would be allowed to vote in the Republican party primary election to be held on May 2, 1964. Respondent Rash, in his capacity as Chairman of the Republican party Executive Committee of El Paso County, and on behalf of Respondent Hockenberry, as “presiding judge” of Precinct No. 16, answered by letter that:

“Mrs. Margaret Hockenberry and I hereby refuse, and will continue to refuse to recognize Sergeant Carrington as a qualified voter. We have taken this position because he is in the United States Army and he resided outside the State of Texas at the time he entered military service.”

In 1954 the following amendment was added to Article VI, Section 2, Constitution of Texas:

“Any member of the Armed Forces of the United States or component branches thereof, or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.”

Articles 5.01 and 5.02 of the Texas Election Code, V.A.T.S., restate, in effect, the law as contained in the above amendment.

Prior to Relator’s correspondence with the Respondents, Rash and Hockenberry, the Respondent Attorney General, in an opinion, had interpreted the above amendment and its statutory counterparts. In interpreting these provisions, the Attorney General’s opinion stated in part:

“ * * * It goes without saying that the Texas Constitution cannot regulate voting rights of persons at any place other than within the State of Texas, and can not affect the voting rights of residents of other States while stationed in Texas. This provision relates only to residents of this State; but it does relate both to persons who were residents of Texas before entering service and to persons who became residents of Texas after entering service. If the only place at which a person may vote in this State is the County in which he resided at the time of entering service, and if at that time he did not reside in any County in Texas, it follows that he cannot vote in this State. Accordingly, it was said in an opinion S-148 that no person who entered service as a resident of another State may acquire a voting residence in Texas while he is in service.”

Based on this opinion, Respondents Rash and Hockenberry refused to recognize Relator as a qualified voter.

Relator first contends that the Attorney General’s interpretation of the above-quoted Constitutional provision is incorrect. It is Relator’s position that the provision was not intended to apply to members of the Armed Forces who were not residents of the State of Texas at the time they entered the military service, but who are now residents of Texas. Instead, Relator contends that the Constitutional amendment was intended to apply only to servicemen who resided in Texas when they entered the service.

Relator next argues that if the Constitutional amendment in question does apply to persons who resided in Texas and those who resided elsewhere at the time of entering service, then the amendment constitutes an unlawful discrimination within the class of military personnel; and, therefore, violates the equal protection clause of Section 1 of the Fourteenth Amendment to the United States Constitution. Relator bases this argument upon the theory that the Constitutional amendment, if applied to all military personnel, discriminates against those servicemen who were not residents of Texas at the time of entering the service. To illustrate this alleged discrimination, Relator argues that a serviceman such as himself, who enters the Armed Forces in another state, and thereafter establishes his residence in Texas, is deprived of the right to become a qualified voter in any election so long as he resides in Texas and remains a member of the Armed Forces. This is so because when he acquires a new residence in Texas, he loses his voting privilege at the place where he resided when he entered service, and he cannot meet the residence requirements of Texas. Therefore, he is left without a place to vote. On the other hand, Relator argues that the Constitutional provision in question does not so deprive a serviceman, who was a resident of Texas at the time he entered the Armed Forces, of his right to vote. According to Relator, a serviceman who resides in Harris County, Texas, at the time he enters the Armed Forces, and who thereafter changes his legal residence to El Paso County, Texas, ■can still remain a qualified voter in Harris ■County. Thus, Relator concludes the Constitutional provision unlawfully discriminates within the class of military personnel.

Respondents argue that the provision in Article VI, Section 2, of the Texas Constitution was intended to apply to persons who were not residents of Texas at the time of entering service, and to persons who were Texas residents. Respondents further contend that this provision does not violate the Fourteenth Amendment of the United States Constitution because regardless of where a serviceman resided at the time of entering service, if he changes his legal residence while in service in Texas, he relinquishes his right to vote anywhere.

In my opinion, a determination of this proceeding does not rest upon whether or not the Constitutional provision under attack unlawfully discriminates within the class of military personnel, as contended by Relator. Even assuming that it does not, as Respondents so argue, this still does not settle the ultimate constitutional problem as to whether a state may segregate all persons in military service as a class, which class is to be treated differently from other persons in regard to the right to vote. In my opinion, such a distinction is arbitrary and unreasonable, thereby violating the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

I fully recognize that the Federal Constitution, or any of its amendments, does not give to a person the privilege to vote in any state. See Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. It is clear that the privilege to vote in a state is within the jurisdiction of the state itself, “to be exercised as the state may direct * * Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). In fact, the Federal Constitution makes voters’ qualifications rest on state law even in federal elections. Art. 1, § 2. However, in exercising its broad powers to determine the conditions under which the right of suffrage may be exercised, the state cannot impose standards which the United States Constitution condemns as discriminatory. See Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072.

It is elementary that “class legislation” is invalid where the classification is arbitrary and unreasonable. The classification must rest on real and substantial differences and must reasonably promote some proper object of public welfare or interest. Thus, without contravening any restriction that Congress has imposed, a state can determine that only those persons who are literate should vote since “[t]he ability to read and write * * * has some relation to standards designed to promote intelligent use of the ballot.” Lassiter v. Northampton County Bd. of Elections, supra.

In the present case Respondents contend that the purpose of the Constitutional amendment in question is to prevent a concentration of military voting strength in areas where military bases are located because such concentration might lead to complete domination and control of local politics by military men to the prejudice of the civilian citizens of the community. In my opinion this is not a reasonable ground upon which the State can say that there exists a real and substantial difference between servicemen and other citizens, and thereby confer different voting rights on these classes.

With present day mobility and industrali-zation, large groups, other than servicemen, move into the various communities of this state for limited stays, and establish voting residence. One need only look to the large shifts of civilian population to major construction areas as an illustration of this fact.

Wherein lies the reasonable basis for distinguishing between these groups?

In the recent case of Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), our Supreme Court has said:

“ * * * there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within a State. * * * ” (Emphasis added.)
“ * * * Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. * * * ” (Emphasis added.)

In the present case, Relator has proven to the satisfaction of Respondent that he meets the basic qualifications of holding a valid poll tax receipt, and that he meets all of the age and residence requirements for a qualified elector in El Paso County, Texas. The Respondents do not contend that Relator is unqualified to vote because he is immature, or is of unsound mind, or is a criminal or a public charge. Instead, by Respondent’s own admission, Relator is unqualified solely because he is a member of the Armed Forces, who resides in Texas. Such a “distinction” does not fulfill the test of reasonableness of classification as required by the Fourteenth Amendment of the United States Constitution. Moreover, the considerations which are recited in the majority opinion as affording a sound basis for denying the right to vote to members of the Armed Forces apply only to local elections; but the effect of the majority opinion is to deny the right to vote in all elections, even in the election of a President of the United States.

Inasmuch as Article VI, Section 2 of the Texas Constitution violates the equal protection clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States, Relator’s petition for writ of mandamus should be granted.

CALVERT, C. J., joins in this dissent.


author: MORRISON, Judge.

text:
    Juan D. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36921.
    Court of Criminal Appeals of Texas.
    April 29, 1964.
    Frank Mabry, Houston, Rex Emerson, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice under Article 802c V.A.P.C. with two prior felony convictions alleged for enhancement; the punishment, life.

Three witnesses who were near the scene of the collision testified that an automobile driven by appellant veered from one traffic lane to another and hit a bicycle on which two boys were riding and that one of the boy’s body lay where it came to rest. They each expressed the opinion from appellant’s odor, appearance and demeanor that he was intoxicated. Three police officers who arrived upon the scene shortly after the collision expressed the same opinion. It was shown that appellant escaped from the officers’ custody when he was taken to a hospital for treatment of a cut on his leg. Pictures of the scene were introduced which showed the body of the boy in front of the automobile and beside the telephone pole.

The prior convictions were stipulated.

Appellant testifying in his own behalf stated that he had drunk only two and one-half bottles of beer prior, to the collision, but that he was not intoxicated, and that the collision was caused by the wheels of his automobile beginning to shimmy which caused him to lose control of his automobile and to run into the bicycle on which the boys were riding and thence into a telephone pole. He explained his escape from the hospital by saying, “I just panicked, that’s all.”

The witness Wright, a taxi driver, testified that he drove appellant later that night, and that appellant told him of the accident he had earlier in the day. Appellant and his brother testified that appellant was at home in bed at the time mentioned in Wright’s testimony.

Appellant asserts that there was no competent evidence to support the allegations in the indictment that the injuries sustained by the deceased caused his death. We shall discuss the non-stipulated testimony first. The witness Trujillo, a security officer at the Ben Taub General Hospital who witnessed the tragedy, testified that he went over to the boy, but saw that he was “beyond help”, and stated, “I know when I see a dead person. I took care of the morgue for two years at J. D. Hospital.” Darlene Robinson testified “I went to see if the boy was hurt bad”, and “I saw him dead. * * * ” Appellant himself testified, “I ran over to see if I could help the boy, but I couldn’t do anything for him.” The witness Wright testified that appellant told him he had run over a little boy on a bicycle and killed him.

We now come to the stipulation in which appellant personally joined. It was that if Dr. Coulter were present, he would testify that he performed a postmortem examination on the body of the deceased and from such concluded that deceased came to his death as the result of a broken neck, back and crushed chest sustained-in a collision between an automobile and a bicycle. Appellant’s reliance upon Braggs v. State, 169 Tex.Cr.R. 405, 334 S.W.2d 793, is not well founded because the opinion of the majority in that case was based upon Pitcock v. State, 168 Tex.Cr.R. 204, 324 S.W.2d 866, where we held that a stipulation as to hearsay was not sufficient. The stipulation in the case at bar is a parallel to Watson v. State, Tex.Cr.App., 363 S.W.2d 933 and cases there cited, and we hold the same to be sufficient. The constitutional right of confrontation may be waived. Field v. State, 155 Tex.Cr.R. 137, 232 S.W.2d 717 and authorities there cited.

We find no objection to the court’s charge and no requested charges. We have examined the charge and do not find fundamental error therein. No reversible error is presented for review. McMillon v. State, Tex.Cr.App., 367 S.W.2d 676.

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


author: WOODLEY, Presiding Judge.

text:
    Martha Elaine PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 36720.
    Court of Criminal Appeals of Texas.
    April 29, 1964.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful sale of whisky in a dry area; the punishment assessed by the jury, three months in jail and a fine of $500.00.

Conviction at a previous trial was reversed. See Price v. State, Tex.Cr.App., 366 S.W.2d 938.

No statement of facts accompanies the record, hence we are unable to appraise appellant’s formal bills relating to the admission of evidence and argument of counsel. Barnes v. State, 159 Tex.Cr.R. 78, 261 S.W.2d 597.

Formal Bill of Exception No. 1 was filed within the 90 days allowed by Art. 760d, Vernon’s Ann.C.C.P. It was refused by the trial judge but not within 100 days after notice of appeal allowed by said Art. 760d.

As we understand Bill No. 1 it complains that counsel’s oral argument and written request that the jury list be drawn according to the statute was ignored by the trial judge. He complains that the jurors were not drawn “at the proper time, prior to the examination of prospective jury panel, and at the proper place in the defendant’s presence.”

The written request referred to in the bill is not before us. From the bill it appears that appellant obtained no ruling on his request.

The bill does not state sufficient facts to show that error was committed or that the appellant was prejudiced. 5 Tex.Jur.2d 318-320.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    Edward Atwell FITCH, Appellant, v. The STATE of Texas, Appellee.
    No. 36697.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied April 29, 1964.

      Wm. J. Kershner, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying on and about the person a pistol.

Trial was before the court on a plea of guilty and judgment was rendered which recites: “The Court having heard the information read and evidence submitted, finds the defendant guilty of unlawfully carrying a pistol, a misdemeanor, and assesses the punishment at a fine of $175.00.”

The record contains no statement of facts and no bills of exception other than what is designated as “Bystanders Bill’ which was presented to the trial judge and ordered filed more than five months after notice of appeal was given.

The “Bystanders Bill” purports to set out the evidence of the state which showed that the appellant was found asleep in his automobile parked on the side of a road and a .45 caliber automatic pistol was found in a bag on the front right floor board of the car. It also purports to show testimony offered by the appellant and in his behalf which, appellant argued, showed that he was a traveler on a journey from Dickinson to San Leon, which exempted him from the Pistol Carrying statute, and that he was carrying the pistol for the purpose of target practicing on the offshore islands of Galveston Bay when the fishing became dull, which he contends was a defense.

There is nothing in the record to support the claim that the trial court did not have a court reporter present and available at the trial to report the testimony adduced, or to support the claim that the court refused to approve the defendant’s statement of facts.

In view of the foregoing and of appellant’s plea of guilty before the court, and his failure to withdraw or have the court change his plea of guilty to “not guilty”, we need not decide whether the Bystanders Bill may be considered as a substitute for a statement of facts. The evidence shown in the Bystanders Bill does not show as a matter of law that the appellant had the lawful right to carry the pistol.

No error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant, m addition to moving for a rehearing, has made application to this Court for a writ of certiorari directed to the trial court requiring him to forward to this Court a corrected transcript showing that appellant in fact entered a plea of not guilty instead of a guilty plea. The trial court is powerless to enter any such order while this case is on appeal in this Court, and hence, we would be without authority to grant the writ. Parker v. State, 169 Tex. Cr.R. 583, 336 S.W.2d 431.

Appellant’s motion for rehearing is overruled without prejudice to his right to secure, if he can, the entry of a judgment nunc pro tunc by the trial court from which he might again appeal to this Court. Parker v. State, 170 Tex.Cr.R. 570, 342 S.W.2d 764.


author: McDonald, judge. BELCHER, Commissioner.

text:
    Jackie Dan CASTLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36558.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Rehearing Denied April 29, 1964.

      Harris E. Lofthus, 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.
   McDonald, judge.

The offense is murder without malice. The indictment was drawn under Article 802c, Vernon’s Ann.P.C., charging appellant with drunken driving and through accident and mistake killing Tredwell Oyama Jonas by driving his automobile into him. The punishment is five years confinement in the state penitentiary.

The State’s evidence reflects that on the evening of December 31, 1962, shortly before midnight, Airman Tredwell Oyama Jonas and Airman Russell Schwager were walking in an easterly direction on Northeast Eighth Street (Highway 66) with Schwager to the right of Jonas and Jonas walking in the gutter. They were struck from the rear by some vehicle. Jonas received fatal injuries and expired in the Air Base hospital at 3:50 A.M. New Year’s morning.

Investigation at the scene by the Police and Sheriff’s Department resulted in the discovery of a piece of broken glass and a radio antenna. The following morning, January 1, 1963, a damaged Hillman auto was discovered parked at Pantex Village. It was determined the auto belonged to the appellant, Jackie Dan Castleman. The windshield was broken and the aerial wire broken off. Glass was removed from around the broken area and the butt plate of the aerial was removed and forwarded to the FBI for expert comparisons and examination, along with the glass and radio antenna recovered at the scene.

At Pantex Village, appellant Castleman made admissions that it was his Hillman auto; that he did not recall how the accident occurred; that he had driven the car the night of December 31, 1962; that he remembered leaving Brigg’s Nightclub, getting into his car and starting it; that he had been drinking quite heavily; that he was alone at the time; that no one else had used the car that he could recall. Appellant made a written confession which details that he was drunk, got into his car and started it between 11:00 and 11:30 P.M. on December 31, 1962. Appellant’s testimony places him in the car on the lot at Billy Briggs Nightclub. Appellant, on cross-examination, admitted that he got in the auto and started it up. His wife testified that when he came home on the evening in question he had been drinking.

On the evening of the accident Castleman was too intoxicated for his employer to continue to allow him to wait tables at his job at Billy Briggs Nightclub, according to witness Bartender Nay.

Another witness, Erlene Williams, described an auto being driven by a man in an apparent drunken condition at about 11:30 P.M., attempting to leave the Billy Briggs Nightclub parking lot and head back into town. The witness testified this could have been the defendant and his little Hillman.

The record reflects that the glass and broken radio antenna found on the highway at the scene were taken into custody by Officer Smith and taken by him to the Amarillo Police Department and booked into evidence. Lieutenant Joe Amerson of the Amarillo Police Department testified that he received these exhibits in his official capacity as officer in charge of identification and records, and placed them under lock and key.

The glass removed from the broken front windshield and the butt plate of the aerial removed from appellant’s car were also locked up in the evidence room at the Amarillo Police Department prior to its being sent to the FBI.

FBI agent Charles Killian testified that he received the exhibits in Washington by-mail from the Amarillo Police Department. Officer Amerson further testified that the FBI returned the package to him after performing their tests and that he again placed it under lock and key until it was brought over for the trial.

Thus we conclude that the chain of custody of the glass found on the highway at the scene and the glass and butt plate removed from appellant’s car was properly proven. We further find the testimony with reference thereto sufficient to support the admission of these various exhibits into evidence. Sanders v. State, 169 Tex.Cr.R. 463, 335 S.W.2d 601; Hilliard v. State, 170 Tex.Cr.R. 290, 340 S.W.2d 494.

Charles L. Killian further testified that he was a special agent for the FBI and that he worked in the laboratory in Washington, D. C. The witness related that he had been employed by the FBI for 15 years; that he conducted glass fractures, tool mark examinations and side arms examinations; that he had a Bachelor of Science degree in mechanical engineering from Purdue University; that he was 40 years old; that he had been a lab operator for three years; that he had studied and worked under different examiners in particular units; that he had taken chemical engineering courses at Purdue University. Witness Killian testified that he had put the pieces of glass together, and he further testified that the two pieces of metal and the pieces of glass were at one time joined and were one piece.

Dr. Young testified that he treated the deceased at the Air Base Hospital and that the decedent, Jonas, died at 3:50 A.M., January 1, 1963.

The trial court charged fully on the law of circumstantial evidence. No exceptions nor objections were taken to the court’s charge.

Appellant first levels his attack at the sufficiency of the evidence by contending that no proof was offered as to the identity of the vehicle which struck the deceased, nor was any proof adduced that appellant was the driver thereof. We overrule appellant’s contention. We find the evidence sufficient to sustain the jury’s verdict.

The record contains five formal bills of exception. Bill No. 1. relates to the admission into evidence of the glass and antenna whip found at the scene of the accident. It is appellant’s position that this evidence was inadmissible because the chain of custody was not properly shown and the items were not properly identified. From what we have said above, we think the evidence was admissible. We find appellant’s contention without merit. Bill No. 2. relates to the same type of evidence and is overruled. Bill No. 3. relates to the testimony of the expert witness, Charles L. Killian, the FBI agent. Appellant’s counsel first objected to the testimony of this witness for the reason that he was not an expert, until his qualifications are shown. He then took him on voir dire and much of the testimony previously stated by us was adduced. The trial court stated that he was satisfied with the witness’ qualifications. We agree that the witness was qualified. Appellant’s counsel then later objected, in effect, that the witness was not an expert and could not express a conclusion for the reason that the witness had testified that all he had done was to look at the glass and metal and that the witness was in no better position to express an opinion or conclusion than any of the jury. We overrule appellant’s contention and find no merit in Bill No. 3. Bill No. 4. relates further to the chain of custody and identity of the glass and metal and is without merit. Bill No. 5. is a motion for an instructed verdict. From what we have previously said, we find no merit in the motion and the action of the trial court in overruling it reflects no error.

Accordingly, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

BELCHER, Commissioner.

The appellant again strenuously challenges the sufficiency of the evidence to show that his automobile was in any way connected with the death of the deceased, or that he was driving his automobile upon the highway at the time and place alleged.

From a careful re-examination of the record, it is concluded that the evidence is sufficient to support the conviction, and that this cause was properly disposed of originally.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Clinton MIMS, Appellant, v. The STATE of Texas, Appellee.
    No. 36769.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied April 29, 1964.

      Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the sale of beer in a dry area; the punishment, 90 days in jail and a fine of $250.00.

Stephen Brown, who was fifteen years of age at the time charged in the information, testified that, in company with five other young people, he went in an automobile to the rear of a house out in the country from the city of Tyler in Smith County and inquired if “Sugar Boy” was there. He stated that at just that moment appellant drove up, that he purchased six quarts of beer from him, that one of the other boys put the beer in a box which was placed in the trunk of the automobile, and that they had driven some distance away from the house in question when they were stopped by the officers and the beer was discovered.

Liquor Control Board Inspector Cosper testified that he and two deputy sheriffs stopped the automobile in which there were six young people, one of them being Stephen Brown, and recovered from the trunk of the automobile a container in which he found six cold quart bottles of Old Milwaukee beer. Deputy Sheriff Nash, who was with Cosper, corroborated his testimony.

The dry status of Smith County was established. Appellant did not testify or offer any evidence in his own behalf.

Appellant complains of the introduction into evidence of the labels on the bottles which contained hearsay notations in violation of the rule announced by this Court in Powdrill v. State, 159 Tex.Cr.R. 618, 266 S.W.2d 879. The record reflects that the bottles were offered in evidence through the witness Cosper. During the course of Nash’s testimony, the exhibit was reoffered with the notations of the officers obliterated. Upon the statement of the prosecutor that the jury had not had an opportunity to read the notations on the bottles, the court permitted the State to make such reoffer of the evidencé.

At the motion for new trial, no witnesses were called and the attorneys were not sworn as witnesses. We are therefore not called upon to pass upon the conflict in their argument as to whether or not the jury ever saw the labels containing the hearsay notations of the officers. The allegations in the motion for new trial do not constitute proof nor do statements of counsel made to the court at the hearing when not under oath as witness. The formal bills of exception fail to contain any recitation that any member of the jury read the notations prior to their being obliterated. In the absence of any evidence that any member of the jury saw the notations, no reversible error is shown. It should be remembered that in Powdrill, the witness read the notations to the jury during his testimony.

By supplemental brief, appellant relies upon Zorn v. State, 167 Tex.Cr.R. 502, 321 S.W.2d 90, and states that in such case it was the State’s contention that there was no showing that the affidavit for the search warrant was ever read by or to the jury. We have reexamined the record in Zorn, and find that the State filed no brief in such case. We further find that the affidavit was introduced in evidence, and no effort was ever made to withdraw the same. Zorn is therefore not controlling here.

We find no error in the failure of the court to instruct the jury that the witness Brown was an accomplice. Subsection 8 of Article 666 — 23a Vernon’s Ann. P.C. provides that a conviction may be sustained upon the uncorroborated testimony of an accomplice. Under a similar statute we observed that the better practice would be to omit in the charge any question of the witness being an accomplice. Gross v. State, 159 Tex.Cr.R. 394, 263 S.W.2d 951.

We find no error in the State being permitted to reopen its case and introduce additional evidence.

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

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant re-urges his contention that the introduction in evidence of the six quart bottles of beer bearing labels which contained certain hearsay notations thereon constituted reversible error.

The record reflects that the notations on each of the bottles of beer of which appellant complains were placed thereon by Inspector Cosper after the bottles were removed from the trunk of the automobile. The notations were as follows:

“ '4/12/63 Clinton Mims
Buy made by Stephen Brown Paid $5.10
6-32 oz. Old Milwaukee Beer Shelton-Nash RLC’ ”

While such notations on the bottles, being hearsay and evidentiary in nature, were erroneously admitted in evidence, under the rule in Powdrill v. State, supra, we remain of the opinion that their admission in evidence does not call for a reversal of the conviction.

In addition to what we stated in our original opinion, it should be noted that if the jurors did see the notations on the bottles—of which there is no proof—they were instructed by the court to disregard the same when the exhibits were re-offered by the state, with the notations obliterated.

Furthermore, the testimony of the state’s witness Stephen Brown was undisputed that on April 12, 1963, he purchased the six quart bottles of beer from the appellant for $5.10. In view of his undisputed testimony, the admission in evidence of the labels containing similar information, although hearsay, would not call for a reversal. Chorn v. State, 107 Tex.Cr.R. 521, 298 S.W. 290; Ashcraft v. State, 155 Tex.Cr.R. 1, 229 S.W.2d 813; Williams v. State, 166 Tex.Cr.R. 617, 317 S.W.2d 537.

We overrule appellant’s contention that certain comments made by the court at the time he overruled appellant’s amended motion for new trial constituted reversible error under Art. 758, Vernon’s Ann.C.C.P., which provides that

“In granting or refusing a new trial, the judge shall not sum up, discuss or comment upon the evidence in the case, but shall simply grant or refuse the motion, without prejudice to either party.”

At the time he overruled the motion for new trial the court stated, in substance, that he did not know whether the jurors saw the notations on the bottles but that he wanted to present to this court the facts with reference to the opportunity of the jury to know what was on the labels. No additional facts have been presented to this court by the judge. If the court’s comments be construed as a violation of the statute, no injury to appellant is shown. In the absence of a showing of injury, the comments could not constitute reversible error. Williams v. State, 126 Tex.Cr.R. 42, 69 S.W.2d 759.

The motion for rehearing is overruled.

Opinion approved by the Court.


text:
    Weldon Lynn MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36694.
    Court of Criminal Appeals of Texas.
    April 29, 1964.
    Ronald R. Waldie, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and.Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 90 days in jail and a fine of $100.

Trial was before a jury during a term of County Criminal Court No. 3 of Dallas County which began on July 1, 1963, and adjourned on August 31, 1963.

Judgment was pronounced upon the jury’s verdict on July 9, 1963. The following day the appellant filed motion for new trial and on July 29, 1963, an amended motion for new trial was filed.

The amended motion for new trial was overruled by operation of law when not acted upon during the 20 days allowed by Art. 7SS, Vernon’s Ann.C.C.P. Brinkley v. State, 167 Tex.Cr.R. 472, 320 S.W.2d 855.

The conviction became final during the term of court which ended August 31, 1963. Brantley v. State, 167 Tex.Cr.R. 145, 320 S.W.2d 825; Brinkley v. State, 320 S.W.2d 855. No notice of appeal was given during said term as required by Art. 827, V.A.C.C.P.

The appellant relies upon an order dated December 27, 1963, entered by the trial judge nunc pro tunc as of August 19, 1963, extending the time for preparation of the statement of facts and reciting: “and the final presentation of amended motion for new trial will be September 27, 1963, at 10:00 A.M.”

We cannot agree that the order shows an extension of time for filing a second amended motion for new trial; an order which a trial court has authority to make under the provisions of Art. 755, V.A.C.C.P.

As we read the court’s order it, at best, extended the 20 days allowed by the statute for the presentation and determination of the amended motion for new trial filed July 29, 1963. This the trial court was not authorized to do. Mahan v. State, 163 Tex.Cr.R. 36, 288 S.W.2d 508; De Hay v. State, 163 Tex.Cr.R. 516, 294 S.W.2d 401.

The fact that no amended motion for new trial was filed with the leave of the court and timely heard after the court’s order would alone distinguish this case from Atkinson v. State, 164 Tex.Cr.R. 421, 299 S.W.2d 951.

No notice of appeal having been given during the term at which the amended motion for new trial was overruled by operation of law, this Court is without jurisdiction to enter any order other than to dismiss the appeal. Art. 827, V.A.C.C.P. and cases cited under Note 3.

The appeal is dismissed.


text:
    Ollie Lee ECKEBERGER, Appellant, v. The STATE of Texas, Appellee.
    No. 36920.
    Court of Criminal Appeals of Texas.
    May 6, 1964.

      No attorney of record on appeal.
    Henry Wade, Dist. Atty., W. John Allison, Jr., and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, three months in jail and a fine of $50.

No statement of facts accompanies the record and there are no bills of exception.

An amended motion for new trial alleging jury misconduct was filed and overruled. If any evidence was introduced in support of the motion for new trial, it is not brought forward and appellant’s claim of jury misconduct is not before us. Polk v. State, Tex.Cr.App., 355 S.W.2d 712.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    James William HOLT, Appellant, v. The STATE of Texas, Appellee.
    No. 36346.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    Rehearing Denied May 20, 1964.
    Joe Bob Golden, Jasper, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, ninety-nine years.

The state introduced in evidence a written statement of the appellant, over his objection that it was not made in compliance with the requirements of Art, 727, Vernon’s Ann.C.C.P.

Testifying in his own behalf, the appellant stated that after his arrest the officers talked with him before noon in a room in the jail, that he was not given any warning, and after asking him some questions they left. He further stated that in the afternoon the officers returned, and without giving him any warning, they handed him a typewritten statement which he read, that it contained no warning, and they told him to sign it, which he did, and that he also signed several copies but they never gave him one to keep.

In charging the jury as to the consideration of the written statement by them, the trial court instructed the jury in part as follows:

“You are further instructed that where a written statement obtained by the use of duress, coercion, fraud, persuasion or fear of violence, or where the defendant is not warned as herein-above set out, nevertheless, if you further find beyond a reasonable doubt that the facts and circumstances contained therein are true and which conduce to establish his guilt, such statement may be considered by you.
“Now, therefore, if you believe from the evidence beyond a reasonable doubt that even though such statement was procured from the defendant by the use of duress, coercion, fraud, persuasion or fear of violence to his person, or if you believe beyond a reasonable doubt that the defendant, James William Holt, was not warned as the law requires as hereinabove set out and if you find and believe beyond a reasonable doubt that the facts and circumstances contained in said statement are true .and conduce to establish his guilt, then you may consider such statement.”

The appellant duly and timely objected and excepted to the foregoing portion of the charge, quoting the two paragraphs in his objection, on ground that such instructions did not properly instruct the jury on the law, and he further objected because it did not sufficiently present the law in regard to the rights of the appellant in this case, and did not present an affirmative defensive issue.

Art 727, V.A.C.C.P., provides in part:

“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and sigpied by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; * *

The evidence raised the issue of whether the appellant was duly and legally warned before he made the statement. Whether the written statement of the appellant was made in compliance with the requirements of Art. 727, supra, was a question of fact to be decided by the jury. The appellant was entitled to a fair, adequate and distinct submission of whether he was duly warned in accordance with the provisions of Art. 727, supra.

It is apparent that the above quoted instructions did not correctly charge the statutory requirements that must be complied with before the jury would be authorized to consider the statement against the appellant. The instructions authorized the jury to consider the written statement if they found the facts contained in it to be true, regardless of whether he was warned as the law requires before it was made. Therefore, the instructions complained of were prejudicial to the rights of the appellant and call for a reversal. Cordes v. State, 158 Tex.Cr.R. 529, 257 S.W.2d 704; Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666; Odis v. State, Tex.Cr.App., 345 S.W.2d 529.

For the error pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.,


text:
    David Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36936.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Harryette Ber-cu and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving an automobile while the driver’s license was suspended; the punishment, a fine of $200 and 15 days in jail.

The testimony of the officer, who investigated a collision, sufficiently shows that the appellant was driving an automobile upon a public street, and that upon request he was unable to produce a Texas commercial operator’s license.

The records of the Department of Public Safety pertaining to the Texas commercial operator’s license of the appellant were introduced in evidence, without objection, and they reflect that such license had been and was suspended at the time alleged.

The appellant did not testify or offer any evidence in his behalf.

Finding the evidence sufficient to support the conviction, the judgment is affirmed.

Opinion approved by the Court.


text:
    Emmitt WILLIAMS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36751.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    Rehearing Denied May 20, 1964.

      Herschel B. Cashin, Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., R. J. Bernsen, Sr., Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

No-statement of facts accompanies the record and where, such is the case, bills of exception to the court’s charge cannot be considered. Fields v. State, Tex.Cr.App., 353 S.W.2d 470, and Snyder v. State; 168 Tex.Cr.R. 482, 329 S.W.2d 292.

Appellant’s bill of exception No. 2 was refused by the court, and he prepared his own bill of exception. Appellant refused to accept the court’s reason for refusing the same, but concedes that his bystanders bill of exception is not properly authenticated, and therefore cannot be considered. A review of the court’s bill reflects that a question was asked a certain witness; appellant objected to such question; his objection was sustained, and the question was not answered, but thereafter, appellant, on cross examination of the witness, inquired fully about the same matter. The bill therefore fails to reflect error.

Bill of exception No. 3 complains of a question asked a witness for the State on direct examination, and the action of the court in allowing such question to be answered over the objection of the appellant. In like manner, Bill No. 4 complains of a question asked appellant on cross examination and the action of the court in directing the appellant to answer over his objection.

In Fletcher v. State, 162 Tex.Cr.R. 100, 282 S.W.2d 230, the record did not contain a statement of facts, and appellant presented formal bills of exception for review, some of which related to the admission of testimony over his objection. We there held that in the absence of a statement of facts, this Court could not pass upon the matters presented by the bills.

Finding no reversible error, the judgment of the trial court is affirmed.