text:
    John Edward FLETCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 35052.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.
    John Edward Fletcher, appellant, pro se.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and J. R. Musslewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is abortion; the punishment, 3 years.

The female named in the indictment testified that she was 26 years old and had four children; that she had been separated from her husband for more than a year. She contacted appellant on Thursday, around the 21st of October, 1961, for the purpose of obtaining an abortion.

Dr. James T. Ainsworth testified that he examined the prosecutrix on September 21, 1961, to determine whether she was pregnant, and found what in his opinion was a normal pregnancy of some eight weeks.

The prosecutrix testified that after she had been examined by Dr. Ainsworth; had tried during the first week after hearing that she was pregnant to abort the child herself by taking quinine and by sitting on a pan of water with turpentine; and after Dr. Van Zandt had fixed a fee of $600 for an abortion, she obtained a telephone number and the name Jack; that she called and made an appointment at her home; that appellant came and examined her at her home; that he made a pelvic examination and told her that she was pregnant, probably three or four months along.

On Saturday appellant picked her up when she got off from work and took her to an office in a “shabby little building on this lumber yard”. Upon entering the office she sat down and waited for him to prepare the tubing he got at a drug store on the way. She then removed the blue jeans she was wearing, laid down on a couch and appellant inserted the tubing or catheter into her female parts and taped it to hold it in place. After about an hour appellant took her to the home of a friend where she spent the night. He told her that if she had not already had a miscarriage he would take her the next morning “and go through other procedures to bring it on.”

The next day appellant picked her up at her friend’s house and took her to a cottage on the river where appellant went through the same procedure, using a larger tubing, and also pumped a liquid from a pan into her; then repeated the procedure after he had her take a walk.

She remained in the cottage during the night. Appellant was with her except for a short time. During the night she was having chills. She could, not remember when her labor pains began, but appellant was present the next day when the fetus was passed and told her it was a girl.

Appellant attempted to stop the excessive flow of blood and told her to keep using Tampax for that purpose, and took her home. She continued to have chills and fever until she went to the North Houston Hospital four days later.

She remained in this hospital nine days after which she was taken to Jefferson Davis Hospital, where she stayed for four and a half weeks.

In addition to the foregoing, the prosecu-trix testified that the abortion was performed on her by the appellant and the tube or catheter was inserted into her with her consent, and that appellant charged her $250.00 for his services.

She further testified, on cross-examination :

“Q. This fetus or embryo in your womb, do you know whether it was alive or not?
“A. I hadn’t felt life so I couldn’t tell. I had carried it all of that time so it must have been alive.
“Q. What makes you think it must have been alive?
“A. Well if it wasn’t, wouldn’t I have had a miss earlier?”
“Q. You really don’t know these things you did, you had done yourself prior to this time, had killed the embryo or not, do you ?
“A. I can’t tell because it would have been sooner — it would have been months sooner.”
“Q. So you don’t know really whether the child was alive or not?
“A. No, except I was gaining weight and was carrying it.”

Dr. Iglesia, who examined and attended the prosecutrix at the North Houston Hospital, testified that she was toxic and bleeding rather profusely; there was a bad odor; the blood was dark; the uterus or womb was open; the uterus was enlarged and soft; that he removed pieces of the placenta, and that her fever and infection in the womb was caused by the placenta tissue and that “it was an incomplete abortion”.

Dr. J. S. Conner, who examined the prosecutrix at Jefferson Davis Hospital, testified that she had a large pelvic abscess which caused infection which was localized “in both tubes and ovaries and also the uterus and also in the pelvis up to the level of the navel.”

Dr. Conner further testified that her condition was critical and that an operation was performed and the organs involved in the large abscess were removed, without which operation at the time, he felt almost certain, she would have died.

The appellant’s defense was that his association and contact with the prosecutrix were purely social; that he had dated her and had sexual relations with her. Appellant testified that it was about 9 o’clock Sunday night that the prosecutrix first informed him that she wanted to have an abortion and told him of her efforts in that regard. He denied that he did anything to her to bring about an abortion; denied that he inserted a catheter in her private parts. “The way she is telling it is no truth in it.”

No useful purpose would be served by setting out fully other evidence, such as the testimony of Arnie Williams that he saw the prosecutrix in appellant’s office, and the testimony relating to the hard feelings between Williams and appellant; Dr. Van Zandt’s testimony that he did not remember seeing the prosecutrix before, and did not tell her he would perform an abortion on her for five or six hundred dollars; appellant’s claim of police brutality and false accusations in regard to instruments suitable for abortions on a prior occasion; and appellant’s admission that he had served a term in the penitentiary for theft by bailee.

The jury resolved the issues of fact as to the performance of the abortion against appellant and the evidence is sufficient to sustain their verdict.

The record contains no formal bills of exception or exceptions relating to the charge of the court, and the only informal bill of exception is obviously without merit.

Appellant was represented by counsel at the trial, but his motion for new trial and his brief on appeal, signed by appellant, were obviously not prepared by a lawyer or by one versed in the law. In fact, in his brief appellant complains of his attorney and his preparation of his case for trial, and of other matters not before this Court for review.

We have written at length in setting out the facts to demonstrate the efforts of appellant’s counsel to show the absence of required proof that the fetus was alive at the time the tube was inserted by appellant, if it was. Parnell v. State, 166 Tex. Cr.R. 239, 312 S.W.2d 506, is authority for our holding that the evidence is sufficient in this regard.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner. DICE, Commissioner.

license: Public Domain

text:
    Leslie Douglas ASHLEY and Carolyn Lima, Appellants, v. The STATE of Texas, Appellee.
    No. 34351.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Rehearing Denied Oct. 31, 1962.
    Second Rehearing Denied Jan. 2, 1963.

      Jack W. Knight, Houston, Lloyd M. Lunsford, South Houston, of counsel, on appeal, Clyde W. Woody, Houston, on rehearing only, for appellants.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Neil McKay, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Leslie Douglas Ashley and Carolyn Lima were jointly tried and convicted for the offense of murder with malice; the punishment assessed by the jury for each appellant, death.

The state’s testimony shows that when officers of the City of Houston arrived at a vacant lot to extinguish a fire on the night of February 6, 1961, they discovered a burning, almost nude male body, later identified as that of the deceased. An autopsy revealed that gasoline had been poured on the body and ignited after the deceased had been killed as a result of being shot six times with a .22 caliber pistol.

Further testimony of the state revealed that the appellants were seen parking their old Packard auto and entering the deceased’s office on one side of a duplex about 5 P.M. on February 6, the day of the shooting. About 6:30 P.M., the occupant of the other side of the duplex, an employee of deceased, heard some noise and scuffling in the deceased’s office which sounded like a fight, and also an unusual noise like a shot. However, she did not become alarmed until the next morning when she arrived for work at the deceased’s office and found blood at the entrance and on the floor.

An investigation of the premises by the police revealed blood both in and outside of the office; tire tracks across the sidewalk leading to the door of the office; that the deceased’s portable television and Lincoln automobile were unexplainably missing. Further police investigation led to the recovery of various articles of the deceased’s clothing which had been discarded in scattered locations in the city, and the appellant’s old Packard was found parked without license tags at the home of Ashley’s parents.

The testimony of other witnesses established that the appellants had purchased a pistol two days prior to the shooting; that they had been seen firing it into a ditch; and that these slugs were recovered and established to have been fired from the same weapon that killed the deceased. It was further shown that at about 7:30 P.M., February 6, Lima had purchased gasoline in a five gallon can, which she did not return; that this was the same can which was found near the burning body; and that about 10:30 P.M. of the same night the appellants had filled the deceased’s Lincoln with gasoline, and put the Packard license plates on it.

The state then introduced testimony tracing the flight of the appellants from New Orleans, where they spent one night, to Maryland and finally to New York City where Lima and Ashley, who was dressed as a woman, were apprehended on February 26, 1961, by Federal Agents. The deceased’s Lincoln, to which Lima had the keys, was recovered and after obtaining the appellants’ consent, a search of their apartment revealed the missing television set, a box of .22 caliber cartridges, and the deceased’s wrist watch.

Appellant Lima, an admitted prostitute, and Appellant Ashley, an admitted homosexual, both testified and in open court admitted killing the deceased but contended that they did so in self defense and in defense of each other.

The appellants testified that they were living together in December of 1960 when Lima met the deceased and began having paid sexual relations with him about once a week. Ashley first met the deceased while disguised as a woman, but later was introduced as Lima’s brother. The deceased subsequently suggested that Ashley be a part of a perverted, three-way act of sexual deviation, and on February 6, the appellants went to deceased’s office to engage in these acts with him. While discussing these sordid matters, deceased lightly stuck both appellants with his “bayonet”, and when deceased proposed that he and Ashley engage in acts of sodomy he became very angry and cursed when Ashley refused. The deceased and Lima then partially disrobed and had been committing sodomy on each other when the deceased started “getting rough” and tearing at her private parts. When Lima began crying out Ashley intervened and deceased started hitting and choking him. During their struggle Ashley got the pistol out of Lima’s purse and fired one shot before dropping it. Deceased grabbed the “bayonet” and started swinging it at the appellants, but Lima managed to grab the pistol and fire the remaining five shots which felled the deceased.

After determining the deceased was dead, they became panicky but did manage to wipe the blood and fingerprints off of the “bayonet”. Then, when their Packard would not start, they backed deceased’s Lincoln to the front door of the office, loaded the body into the back seat, pushed off the Packard, and went to the home of Ashley’s parents. Ashley’s parents corroborated that Ashley was bruised and bleeding and that Lima had cuts and bruises on her thighs when they arrived, and that the appellants said that they had been in a fight when asked what had happened.

The appellants then related that they threw the deceased’s clothing in various parts of the city, dumped the body and set fire to it, put the Packard license plates on the Lincoln, and began their flight which ended with their arrest in New York City.

The appellants both testified that they were in fear of their lives during the struggle with the deceased in his office, and that they had gone to his office only for the perverted purposes but that when they realized how this would look to others they “panicked” and fled. They further testified that the various items of deceased’s property were taken only because they knew that they would need money for their flight, and that they did not know of the $115 in deceased’s billfold until they found it where it had fallen on the floor of the Lincoln. The appellants also testified that the pistol had been purchased because of trouble with teen-age boys with whom the appellants had been engaging in various sexual acts, and a policeman corroborated that he had been called to the appellants’ apartment about February 3, 1961, because of trouble there.

The appellants’ contention that they killed the deceased in self defense and in defense of each other was properly submitted to the jury, but rejected by them, and the evidence is sufficient to support their verdict.

The appellants urge error because of the admission of a portion of a telephone conversation between the deceased and his wife over their objection that it was hearsay and prejudicial.

That portion complained of occurred when the wife arrived home from work about 5 P.M., telephoned deceased at his office about two blocks away, and he told her “to figure on having dinner at 6 o’clock”.

The appellants testified that the deceased was using the telephone when they arrived at his office at 5 P.M., and Lima stated that they left about 6:30 P.M., ten minutes after the killing which they both admitted.

The statement objected to was not itself inculpatory and, as used, was not reasonably calculated to prejudice the rights of the appellants. No reversible error is shown.

By formal bill of exception, the appellants strenuously contend that the trial court erred in refusing to grant a mistrial following the outcry of deceased’s widow during the jury argument by appellants’ counsel.

The bill recites that while appellants’ counsel was presenting his argument the following occurred:

Appellant’s Counsel: “ * * * don’t you know that they would have had every member of the - (deceased’s) family to say, why certainly not, Daddy came home at 6:00 o’clock that evening and he had a cocktail and he put on his houseshoes and he watched television * * * ”
Deceased’s Widow (speaking from among the courtroom spectators) : “And he certainly did; he was with me at the Ben Milam Hotel.”
Appellant’s Counsel: “If it please the Court, we move for a mistrial on the basis of this outcry.”
The Court: “Overruled.”
Appellant’s Counsel: “And note our exception, please.”

The trial court, without request, immediately instructed the jury to disregard the statement and the incident for any purpose whatsoever, and the bailiff promptly escorted deceased’s widow from the courtroom. According to the bill, the spectator “spoke out in a voice which was barely audible”, and “the words used by her were not entirely discernible by the court”. The occurrence lasted only some thirty seconds and argument was resumed and concluded without further interruptions.

This Court held in Guse v. State, 97 Tex.Cr.R. 212, 260 S.W. 852, that probability of injury to the appellant is essential to vitiate the jury’s verdict because of the conduct of bystanders. In determining such probability, each case depends on its own environments. Long v. State, 59 Tex.Cr.R., 103, 127 S.W. 555; 1 Branch’s Ann.P.C.2d 423, Sec. 400.

The record in this case shows that the context of the widow’s statement did not contradict the appellant’s testimony relating to certain activities between them and the deceased at the time mentioned in the argument. Further, the trial court acted promptly and instructed the jury not to consider such matters. In view of these circumstances, there appears no reasonable probability of injury, and no reversible error is shown.

Appellants complain of the refusal by the trial court to admit the testimony of the witness Billingsley concerning the deceased’s reputation for chaste character.

There is no showing of what the answer of the witness Billingsley would have been had he been permitted to testify. Hence, no error is shown.

Appellants also complain of the trial court’s refusal to admit testimony relating to a specific act of sexual aggressiveness by the deceased.

There is no proof that the specific act inquired about was known to and influenced the appellants in killing the deceased. The refusal of its admission in evidence was not error.

It is insisted that the trial court erred in admitting the oral statements made by the appellant Lima to F.B.I. Agent Reuther, after her arrest in New York, that the trouble at deceased’s office was caused by either physical assault, blackmail, or insult. Appellants contend that no proper predicate was laid authorizing the admission of the oral statements because the officers already had the Lincoln automobile in their possession prior to Lima’s arrest.

From the record it is apparent that the oral statements were a part of the same conversation in which Lima told Agent Reuther about the keys to the Lincoln automobile and, for the reasons set forth below, became admissible.

Testifying at the trial, Lima stated that she had the keys to deceased’s Lincoln automobile in her purse when arrested and that later when her purse was emptied on a desk during an interview with Agent Reuther, she was asked to identify the objects on the desk. These objects consisted, among other things, of several keys, and she pointed out and identified certain keys, saying they were the keys to deceased’s Lincoln automobile.

The evidence shows that Agent Reuther first saw the keys when Lima’s purse was emptied on the desk after her arrest, and that he then had no knowledge to what automobile the keys belonged. These keys were subsequently found to fit the ignition of deceased’s Lincoln automobile. This evidence is sufficient to show that the Lincoln automobile had recently been under the control and in the possession of the appellants.

Art. 727 Vernon’s Ann.C.C.P. authorized the admission of such oral statements “when they are found to be true and conduce to establish the guilt of the accused”. This statute has been construed in Valtiero v. State, Tex.Cr.App., 219 S.W.2d 73, as authorizing the introduction of an oral confession of the accused as to the whereabouts of the hat of the deceased when the body of the deceased had already been found by the officers. There, this Court said, “The officers had no knowledge of its (the hat’s) whereabouts.” The officers in the case at bar had no knowledge concerning the keys. The opinion continues, “The facts here present demonstrate that facts and circumstances may be stated by an accused which unquestionably are incul-patory and conduce to establish his guilt, and yet neither lead to the recovery of stolen property, or the instruments with which the offense was committed.” See also Hamon v. State, 135 Tex.Cr.R. 347, 119 S.W.2d 1057; Mohler v. State, 98 Tex.Cr.R. 238, 265 S.W. 553; and Ortiz v. State, 68 Tex.Cr.R. 524, 151 S.W. 1056.

Under the facts and circumstances of this case, the oral statements complained ot were authorized to be admitted into evidence, and no error is reflected in their admission.

The judgments are affirmed.

Opinion approved by the Court.

On Appellants’ Motion for Rehearing

DICE, Commissioner.

Appellants insist that we were in error in our holding that the admission in evidence of that portion of the telephone conversation between the deceased and his wife at about 5 o’clock, p. m., on the day of the killing, in which the deceased told his wife “to figure on having dinner at 6 o’clock,” over the objection that the same was hearsay and prejudicial, did not constitute reversible error. Appellants insist that the admission of such evidence constituted reversible error because it presented to the jury statements made by the deceased which were unknown to appellants and which struck at the very heart of their defense that they went to the deceased’s office for the purpose of having a sexual date.

In support of their contention, appellants rely upon the early case of Brumley v. State, 21 Tex.App. 222, 17 S.W. 140, where it was held that proof of the deceased’s undisclosed reason or motive in being where he was, or in going to the scene of the homicide, is not admissible against an accused where it tends to affect his defensive theory. Reliance is also had by appellants upon the recent case of Marshall v. State, 168 Tex.Cr.R. 569, 330 S.W.2d 625, where similar proof was condemned by this court under the holding in Brumley, supra. In their brief, appellants concede that under an exception to the rule, proof of movements of the deceased not known to a defendant which is merely explanatory of his presence at the scene of the killing is admissible where such proof does not affect a defensive theory. See: Bazanno v. State, 60 Tex.Cr.R. 507, 132 S.W. 777.

While appellants’ objection to the telephone conversation as being hearsay was well taken, we remain convinced that, under the record presented, the admission of such evidence does not present reversible error. Proof that the deceased indicated in the telephone conversation with his wife at 5 o’clock, p. m., that he would be home around 6 o’clock, p. m., did not controvert appellants’ defensive theory that they went to the deceased’s office at 5 o’clock, p. m., to fulfill a prearranged sexual date. There is no proof that the sexual date would be of such duration that it could not have been completed and the deceased be at his home around 6 o’clock, p. m. Furthermore, the proof that the deceased indicated to his wife in the telephone conversation that he would be home around 6 o’clock, p. m., may have been beneficial to appellants and have supported their defensive theory that they went to his office to fulfill the prearranged sexual date, in that it could be construed as an effort on deceased’s part to keep his wife from coming to his office while the sexual date was being consummated.

Appellants further insist that we were in error in holding that, under the facts, no probability of injury was shown as a result of the outcry of the deceased’s widow, made during the argument of appellants’ counsel. As shown in our original opinion, while appellants’ counsel was arguing that if it were not true that on Saturday night before the killing on Monday the deceased was with appellants, the members of the Tones family would have said he came home at 6 o’clock that evening, she stated: “And he certainly did; he was with me at the Ben Milam Hotel.” Appellants especially take us to task for the statement in our opinion: “The record in this case shows that the context of the widow’s statement did not contradict the appellants’ testimony relating to certain activities between them and the deceased at the time mentioned in the argument.” Appellants further point to certain testimony in the record to the effect that on the Saturday night in question the deceased was with them and on such occasion did go to their apartment to have sexual relations with Carolyn Lima.

While such was the evidence adduced and the statement in our opinion is subject to correction, we remain convinced that the widow’s outcry, under the record, does not call for a reversal of the convictions. Whether the deceased was at the Ben Milam Hotel with his wife, or with the appellants on Saturday night before the killing, such had no direct bearing upon the actual killing and the issue of self-defense interposed by the appellants. Appellants admitted shooting the deceased and their only defense was that of self-defense. The widow’s outcry had no bearing upon such issue and, clearly, no probability of injury is shown.

We again overrule appellants’ remaining contention that the court erred in refusing to admit testimony offered by them relating to a specific act of sexual aggressiveness by the deceased. As stated in our original opinion, there was no proof that the specific act inquired about was known to or influenced the appellants in killing the deceased. The case of Newchurch v. State, 135 Tex.Cr.R. 619, 121 S.W.2d 998, supports the trial court’s action in excluding such testimony.

The authorities cited by appellant in support of their contention that such testimony was admissible to corroborate and support their theory and claim that the killing was because of the sexual aggressiveness of the deceased are not here controlling. In the cases cited it was shown that the accused either had knowledge of the prior similar act and was seeking to corroborate such knowledge, or there was a disputed issue as to whether the deceased committed the act or acts relied upon as a basis of the accused’s defense, at the time of the killing. Here, there was no proof that appellants had any knowledge of the prior act of sexual aggressiveness of the deceased and their testimony as to his sexual aggressiveness on the day of the killing was in no way disputed.

Remaining convinced that a proper disposition was made of the case in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Ex parte William B. DROPPLEMAN.
    No. 35235.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 2, 1963.

      Charles William Tessmer, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Texas Prison System, brings this application for writ of habeas corpus directly in this Court alleging that upon his plea of guilty in the Criminal District Court of Travis County to an indictment charging him with possessing a narcotic drug, to-wit, morphine, “the prosecution wholly failed to introduce any evidence of guilt as to the fact that your Petitioner possessed a narcotic drug * * * ” and, further, that such failure “constitutes fundamental error and renders the judgment of conviction and sentence thereon void and subject to collateral attack.” His application was ordered filed and set for submission on the question of whether the writ should issue.

The statement of facts adduced upon the hearing of the plea of guilty in the trial court accompanies the application, and we must determine from it if Article 12, Vernon’s Ann.C.C.P., has been complied with and if any evidence was introduced in support of such plea.

Lieutenant Gann, in charge of the narcotic detail of the Austin police department, with five years’ experience in this specialized field and 15 years’ experience in police work, testified that on the day in question, armed with a search warrant, he went to appellant’s home and upon entering found petitioner in a stupor; that they woke him up, informed him as to the search warrant, and we quote from his testimony as follows:

“A. After searching the place we found a quantity of drugs located on the drain board, a pharmaceutical bottle containing twenty-seven morphine tablets.
The bottle which the morphine tablets were in had a prescription on it, did they not? a
Yes, sir, they did. >
And did you check the prescription out? ¡O
Yes, sir. c
With the pharmacy. Was that bottle with that prescription for that morphine ? a
No. The bottle and prescription was for another party, and it was to contain a barbiturate.
Not the morphine? a
Not the morphine, no, sir. <
Did you find anything else there, sir? a
We found a hypodermic syringe and two needles, also a spoon with the handle bent in the usual manner for mixing narcotics.
Did you inspect the Defendant’s arm for any possible hypodermic marks ? a
Yes, sir, I did. <
Did you find any marks on his arm? a
Yes, sir. c
The narcotics, the morphine that was found, was that tested by you at the Austin Police Department? a
“A. After we returned to the Station, I tried a Marquis reagent test on it, a preliminary test to ascertain if it does have an opium derivative. It showed that it contained an alkali and—
“Q. These tests that you run, preliminary tests, at the Austin Police Department, are you trained in the procedure of running these tests, sir?
“A. It’s a color test, very simple to administer.
“Q. And are these tests approved by the chemists of the Department of Public Safety?
“A. Yes, sir, they are.
“Q. Was that morphine later submitted to the Department of Safety for confirmation of your test?
“A. Yes, sir, it was.”

This was followed by certain hearsay testimony, admitted without objection, concerning the results of the tests made at the Department of Public Safety, but which is not here set forth because not taken into consideration in reaching the conclusion we here express.

It should be noted that Lieutenant Gann was 'cross examined only as to the search warrant, no objections were interposed to any of his testimony, and petitioner called no witnesses in his own behalf.

We now test that which has been set forth above in the light of petitioner’s contention.

In II Wigmore (3rd Ed.), Evidence, Sec. 475, p. 516, we find the following:

“Some unknown person’s assertion may be worthless; but a specific person’s assertion, under certain conditions, acquires sufficient probative value to be at least considered * * *. The fact that an assertion is made by a person who is sane, of age, experienced in the subject matter, acquainted with the circumstances * * * is relevant to show the truth of the fact asserted.”

In McCormick & Ray, Texas Law of Evidence (2nd Ed.), Sec. 1396, p. 224, it is said:

“If it has been shown that the witness had an opportunity to observe and did observe, and if his testimony in opinion-form is of such value as to be admissible, the facts upon which his opinion is based are matters affecting its weight but seemingly should have nothing to do with admissibility.”

It would appear quite clear from the above that Lieutenant Gann was “experienced in the subject matter * * * had an opportunity to observe and did observe” and that “his testimony in opinion-form is of such value as to be admissible.” If this be true, then his plea of guilty is supported by admissible testimony showing that the tablets in fact contained morphine.

By amended petition, the judgment is attacked as void because it recites that the court found petitioner guilty of the offense of “Possession of a Narcotic Drug.” As stated, the indictment contained the additional averment “to wit, morphine.” The judgment recites that petitioner “entered his plea of ‘guilty’ to the charge contained in the indictment.” In Ex parte Stewart, 160 Tex.Cr.R. 483, 271 S.W.2d 945, a collateral attack upon a judgment on a plea of guilty, we held that the indictment might be looked to in construing the judgment and sentence. See also Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

The writ of habeas corpus is denied.


author: WOODLEY, Presiding Judge. BELCHER, Commissioner.

text:
    Lloyd Burnett COLE, Appellant, v. The STATE of Texas, Appellee.
    No. 34903.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    On Motion to Reinstate Appeal Dec. 5, 1962.
    Baker, Callahan & Brady by Andrew Z. Baker, Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., R. J. Bernse, Sr., Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

The transcript contains no bond or recognizance substantially in the form required by statute, and appellant not being-in jail, this Court is without jurisdiction to enter any order except to dismiss the-appeal. Arts. 830-831, Vernon’s Ann.. C.C.P.; Therrell v. State, 161 Tex.Cr.R.. 617, 279 S.W.2d 879; Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148 and cases there cited.

The appeal is dismissed.

On Motion to Reinstate Appeal

BELCHER, Commissioner.

The record having been perfected the motion to reinstate is granted.

No statement of facts accompanies the record.

Appellant presents only one formal bill of exception. He complains therein of the trial court permitting the arresting officer to testify in. rebuttal that he knew that the time of appellant’s arrest was 11:20 P.M. because he noted that time on the ticket, and that it was not around 9:45 to 10 P.M., as the appellant had previously testified. Error is urged on the ground that the witnesses had been placed under the rule, but the officer had sat in the court room while the appellant was testifying, although his services in connection with the court were not necessary; and that the ticket was hearsay evidence.

There is no certification in the bill that no other evidence was introduced upon the trial pertaining to the time and the ticket. Hence the bill cannot be appraised in the absence of a statement of facts. 5 Tex.Jur.2d 254, Sec. 161.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    E. L. PHARIS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34702.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 2, 1963.
    C. C. Divine, Houston, for appellants.
    Henry Wade, Dist. Atty. Emmett Col-vin, Jr., and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from a final judgment of bail bond forfeiture rendered in Criminal District Court No. 2 of Dallas County against E, L. Pharis, as defendant-principal, and C. C. Divine and Lee Williams, defendant-sureties.

In the criminal case pending against him, the defendant-principal had failed to appear for trial on May 12, 1961, and judgment nisi was rendered against him, the said E. L. Pharis, as principal, and against United Bonding Insurance Company, as surety, on a $1,000 appearance bail bond by virtue of which said accused, E. L. Pharis, was then at liberty.

Later, the said E. L. Pharis regained his liberty by filing a new bail bond on October 3, 1961, the bond having been made on September 21, 1961, in the principal amount of $2,000, properly executed by the appellants herein. On November 3, 1961, the criminal case against Pharis was called for trial, and said defendant not appearing, judgment nisi was properly rendered by the trial court against defendant and the sureties on said $2,000 bail bond.

A consolidated hearing was held for final judgments on the respective judgments nisi on the two distinct bail bonds. The trial court granted final judgment in favor of the defendant-principal and the United Bonding Insurance Company, defendant-surety, on the first bail bond in the sum of $1,000, and granted final judgment in favor of the State of Texas against E. L. Pharis, defendant-principal, and C. C. Divine and Lee Williams, defendant-sureties, on the second bail bond which was in the principal sum of $2,000, but remitted $1,500 of said principal sum and rendered final judgment in the amount of $500 and costs of suit.

Appellants contend that the bail bond, judgment nisi, and scire facias are insufficient and at a variance with the indictment for the reason that these instruments only set out that the defendant-principal was charged with a felony and the specific offense was not named.

Appellants further contend that since the bail bond required the defendant-principal to appear “Instanter” there is no evidence of notice being given as to what “Instanter” means as to a date, and that, without notice to appear, the failure to appear is excused. Appellants further urge that the scire facias petition is insufficient because it contains no allegation of notice of a trial setting and does not state that notice was given to appear instanter.

Art. 273, Vernon’s Ann.C.C.P., which prescribes the requisites of a bail bond, in section 3 states:

“If the defendant is charged with a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemeanor.”

We hold that the recitation made in the bail bond, judgment nisi, and scire facias that the defendant-principal was charged with a “felony” is a sufficient legal description of the offense. Callaghan v. State, 57 Tex.Cr.R. 314, 122 S.W. 879; Holley v. State, 70 Tex.Cr.R. 511, 157 S.W. 937.

We find no merit in appellants’ contention that the bail bond is insufficient because the date of appearance is stated “Instanter” and not “Instanter after notice.” Hines v. State, 168 Tex.Cr.R. 381, 327 S.W.2d 755; Rippey v. State, 132 Tex.Cr.R. 415, 104 S.W.2d 850.

We know of no provision of the statutes or any holdings of this court that make it requisite for a scire facias petition to contain allegations of notice of a trial setting and allegations that the notice was given to appear instanter.

Art. 427, Vernon’s Ann.C.C.P., Requisites of citation, section 4, states:

“It shall state the offense with which the principal is charged as set out in the bond or recognizance, and state the date of such obligation.” (Emphasis added.)

Finding no error, the judgment is affirmed.


text:
    Kelly Mack BOWNDS, Appellant, v. The STATE of Texas, Appellee.
    No. 35087.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.

      Brown & Shuman by Clifford W. Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., James R. Edwards, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is arson; the punishment, two years.

The primary question in this case is the voluntary nature of the appellant’s confession. On the issue of whether or not promises or inducements were offered him in order to get him to confess, it was shown, in the absence of the jury, that appellant and his co-principal, Wayne McCain, were suspected of having committed two separate offenses of arson. They were arrested at about the same time but interrogated separately. Shortly before he did confess, appellant, who was a high school student, was visited in the jail by his coach. Coach Boswell testified that he first talked to Chief of Police Martin, who told him that if appellant confessed, the two arson cases against him would be tried together as companion cases in one trial, that it was possible appellant could get probation, and that he would speak to the district attorney in appellant’s behalf and then asked him to talk to appellant and see if he would sign a confession. Boswell further testified that he did speak to appellant and told him what the Chief had said prior to the time appellant signed the confession.

On making out its case in chief, the State called appellant’s co-principal McCain. In the absence of the jury, on the issue of the voluntary nature of the confession, appellant adduced from McCain the testimony that Chief Martin, while questioning him prior to securing a confession from him (McCain), promised him that if he did confess, he (Martin) would file only one arson case against him and would help him get probation.

At the conclusion of McCain’s testimony, appellant attempted to offer the testimony of the witness in the presence of the jury. We have concluded that the court erred in declining to admit such evidence.

Articles 82, Vernon’s Ann.P.C., and 711, Vernon’s Ann.C.C.P., do not apply where the witness is called by the State and is then sought to be cross-examined by appellant.

McCain’s testimony was so strikingly similar to that of appellant (given in the absence of the jury) and that of Coach Boswell that it might well have led the jury to believe that the officer followed the practice in securing confessions of promising to dismiss or otherwise dispose of all but one case against an accused, thereby rendering him eligible for probation, and further promising to recommend probation in the case which remained. This, if true, would constitute such a forceful incentive to confess for one caught in the toils of the law as to render his confession involuntary.

In Dykes v. State, 135 Tex.Cr.R. 492, 121 S.W.2d 603, where accused testified that the officer who had him in custody threatened to whip him prior to the time he confessed, this Court held it error to exclude his testimony that other inmates of the jail “appeared to have been beaten up.”

In Floyd v. State, 93 Tex.Cr.R. 237, 246 S.W. 1040, this Court held it error to exclude testimony as to how other persons arrested at the same time as accused were treated by the officers who later secured a confession from accused. See also 1 Branch’s Ann.P.C., 2nd Ed., sec. 120, p. 136.

We have concluded that the general rule that all material and relevant testimony on the question of the voluntary nature of the confession should be admitted finds application here and calls for a reversal of this conviction.


author: PER CURIAM. DICE, Commissioner.

text:
    Salvador Morales TINAJERO, Appellant, v. The STATE of Texas, Appellee.
    No. 34780.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.
    Rehearing Denied Dee. 5, 1962.
    L. G. Mathews, Brownsville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is failure to stop and render-aid ; the punishment, 2 years and 6 months-in the penitentiary.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular and nothing is presented for review. The judgment: is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Since the per curiam opinion was delivered on October 17, 1962, affirming the-judgment of conviction against appellant, a statement of facts of the evidence adduced upon the trial has been transmitted', to and filed with the clerk of this court.

The statement of facts is shown to have-been agreed to by counsel for both parties, approved by the trial judge, and filed with-the clerk of the trial court on October 12, 1961, long before the case reached this-court on appeal. The statement of facts-will now be considered.

The evidence adduced by the state shows-that on the night of December 4, 1960, the deceased, a young Anglo-American man, was observed by Dr. Henry G. Stephenson around 10:15 o’clock, p. m., lying on a. sidewalk in a Sears & Roebuck parking lot located at the northwest corner of the intersection of “H” and West Tyler Streets in. the City of Harlingen. Dr. Stephenson, who at the time was traveling west on Tyler Street, got out of his automobile, went to where the deceased was lying, and observed that the deceased’s head was “mushy” from some severe blow and that he was having difficulty with his breathing. The doctor then accompanied the deceased to the hospital in an ambulance and remained with him until he expired the following morning at 7:40 o’clock.

An autopsy performed upon the deceased’s body by Dr. David Flory, a pathologist, revealed numerous lacerations of the scalp, abrasions on the face, the right and left wrists, the left knee, and lower part of the spine, a broken collar bone, a fractured pelvis, some vascular skull fractures, and a large amount of internal hemorrhage of blood about the brain, heart, lungs, kidneys, and abdomen. Dr. Flory expressed the opinion that the death of the deceased was caused by multiple traumatic injuries probably resulting from considerable force such as might be applied if the patient had been struck by a motor vehicle. His conclusion was corroborated by Dr. Stephenson, who expressed the opinion that the deceased died from hemorrhaging from fractures mainly in the lower portion of the body.

It was shown that when the deceased was found he was lying approximately ten feet from the curb on Tyler Street, fifty-one feet from the northwest corner of the intersection, and was in his sock feet. Two boots, which matched, were found at the scene, one being on the parking lot a hundred feet from the deceased and the other a lesser distance out in “H” Street. A pair of glasses was also found some seventy-five feet from the deceased. A tire track was also observed which came up on the curb at the northwest corner of the intersection where the curb was painted with yellow paint. Several pieces of glass from a seal beam headlight of an automobile were found in “H” Street, nine feet from the curb, at the intersection.

On Monday, December 5, 1960, appellant took his 1953 Ford station wagon to a repair shop in Harlingen and had the right front fender repaired where it had been dented and also had a seal beam put in the right front headlight, which was broken. In making the repairs, at appellant’s suggestion the broken chrome rim around the seal beam on the right headlight was replaced by one taken off the left light.

On Wednesday, December 7, 1960, appellant was stopped by Officer Esparza while driving his 1953 Ford station wagon on Adams Street in Harlingen. After Officer Esparza observed that the right front fender and headlight had been damaged and repaired, appellant was placed under arrest and carried to the police station. At such time, yellow paint was observed on the right front fender and half around the right front tire. Three pieces of hair were also found on the right front fender.

Following his arrest, appellant, after being duly warned by Assistant District Attorney Joel W. Ellis, made and signed a written statement which, omitting certain portions, was introduced in evidence by the state, without objection. Those portions of the confession which were not offered by the state were introduced in evidence by appellant.

In his statement, appellant related that on the day in question he came to Har-lingen from his home in La Feria, arriving after 2 o’clock p. m.; that during the afternoon he went to several places where he drank beer and then returned to his home that night, arriving around 10:3Q o’clock. In his statement appellant related that as he was returning home and traveling on Tyler Street he felt his car hit something which he thought was a dog he had seen run across the street and that he did not stop but kept going. Appellant stated that on such occasion he hit the curb; that his car jumped up on the curb; and that the right headlight went out. He further related that the next day he removed the broken glass from the right headlight and placed it in a trash box at a place where he was working in Harlingen and that. later he accompanied the officers to the location, where they recovered the pieces of glass.

The pieces of glass recovered from the trash box and the pieces of seal beam headlight found at the scene of the accident were delivered to Chemist C. W. Maupin, of the Department of Public Safety, for examination. The three hairs found on the right front fender of appellant’s auto-) mobile were also delivered to the chemist, along with some hair taken from the deceased’s head. Chemist Maupin testified that his examination of the glass disclosed that one of the pieces found at the scene matched one of the pieces which appellant removed from the headlight of his automobile, and he expressed the opinion that the two pieces came out of the same larger piece of glass. He further testified that a microscopic examination of the three hairs removed from the right front fender of appellant’s automobile and the hair taken from the deceased’s head disclosed that they had similar characteristics, and he expressed the opinion that all of the hairs came from the same head.

Testifying as a witness in his own behalf, appellant admitted driving his automobile on West Tyler Street on the night in question in the vicinity where the deceased was found but denied that he saw or hit a man. Appellant stated that on such occasion he saw a dog cross in front of his automobile and insisted that it was the dog which was struck by his vehicle. Appellant stated that after striking the object he stopped but did not see anything but the dog running away. He also repudiated certain portions of his confession, including the statement therein that he did not stop, and testified that when he gave the statement he was scared.

Appellant called certain character witnesses, who testified as to his good reputation for being a peaceable and law-abiding citizen and for truth and veracity.

The court in his charge, to which no objection was made, submitted to the jury each and every defensive issue raised by the evidence.

The jury resolved the disputed issues against appellant, and we find the evidence sufficient to sustain their verdict.

No brief has been filed on behalf of appellant.

We have examined the informal bills of exception appearing in the statement of facts and perceive no reversible error.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Earl FAIL, Appellant, v. The STATE of Texas, Appellee.
    No. 34929.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.

      Frank Sparks, Eastland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our prior opinion is withdrawn.

The record contains no statement of facts and no bills of exception.

The indictment was in two counts, the first alleging the offense of forgery. The second count alleged that appellant passed the forged instrument, knowing it to be forged, with intent to injure and defraud.

Appellant pleaded not guilty in a trial before a jury. The court in his charge withdrew the first count of the indictment, and submitted only the second count. The jury found appellant guilty as charged in the second count of the indictment and assessed the punishment at 2 years.

The judgment entered upon the verdict adjudged appellant guilty “of the offense of Forgery and Passing a forged instrument, as found by the jury.” The sentence recites that appellant “has been adjudged guilty of Forgery and Passing a forged instrument.”

The judgment and sentence are reformed so as to conform to the jury’s verdict and show that appellant was adjudged guilty and sentenced for the offense of passing as true a forged instrument in writing.

The reformation of the record complies with the prayer of appellant’s motion for rehearing, otherwise nothing is presented for review.

As reformed, the judgment is affirmed.


author: RENFRO, Justice.

text:
    C. J. LARSON, d/b/a Friendly Finance Company, Appellant, v. PEERLESS INSURANCE COMPANY, Appellee.
    No. 16370.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 30, 1962.
    Donald C. Gladden, Fort Worth, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellee.
   RENFRO, Justice.

Defendant Peerless Insurance Company issued to plaintiff Friendly Finance Company a fidelity bond effective April 27, 1960, covering plaintiff’s employee Jack L. M. Draper, Jr.

Paragraph VI thereof provided: “This bond shall terminate as to future acts of any Employee immediately upon discovery by the insured, or, if a corporation, by any director thereof or by any officer thereof not in collusion with such Employee, of any fraudulent or dishonest act on the part of such Employee, whether in the service of the Employer or otherwise.”

The parties stipulated:

“2. The bond in question was issued by Peerless Insurance Company and became ■effective April 27, 1960, for an indefinite period, and at the time of the discovery by Plaintiff of the shortage in question had not been cancelled unless, as is contended by Defendant, same was terminated as to Jack L. M. Draper, Jr. under the provision of Sec. A, paragraph VI, of such bond.
“3. On February 10, 1961, Plaintiff discharged Jack L. M. Draper, Jr. from its employ and on the following day found that said Draper was short in his accounts.
“4. Jack L. M. Draper, Jr. misappropriated $2441.50 from Plaintiff before February 10, 1961, while in the employ of Plaintiff and after April 27, 1960.
“5. In February, 1960, Plaintiff discovered that Jack L. M. Draper, Jr. had misappropriated for Plaintiff the sum of approximately $500.00, which such shortage is no part of the $2441.50 hereinabove recited but is a prior and different transaction, and such $500.00 shortage had been discovered by Plaintiff before the issuance by Peerless Insurance Company of the bond here in issue and before the shortage for which Plaintiff sues. Plaintiff had permitted Draper to remain in its employ on the agreement that Draper would reimburse Plaintiff the amount of such loss. Neither Plaintiff nor Draper advised Defendant of the prior $500 misappropriation by Draper before or at the time of the issuance of the bond in question. The $500.00 misappropriation by Draper was a fraudulent or dishonest act.”

Judgment was entered for the defendant.

The plaintiff by point of error contends the trial court erred in holding that the bond at the time of the loss was terminated and afforded no coverage with respect to Draper.

The employee misappropriated $500.00 before the bond was issued. Plaintiff knew that the employee had so misappropriated said money. The employee Draper was the only person named in said bond. Neither plaintiff nor Draper, either before or after the bond was executed, advised defendant of Draper’s prior “fraudulent or dishonest act”. As we construe paragraph VI of the bond, quoted above, future acts refer to acts of Draper occurring after plaintiff discovers fraudulent or dishonest acts. The misappropriation of the $2441.50 was a future act which occurred after plaintiff had notice of Draper’s misappropriation of the $500.00, and of which fact defendant had no notice.

In a case similar to the instant case, both as to facts and bond provision, the Supreme Court of Mississippi in McGee v. Maryland Casualty Co., 240 Miss. 447, 127 So.2d 656, held that the subsequent fraudulent and dishonest acts were expressly excluded by the terms of the bond.

We hold that the $2441.50 item was expressly excluded from coverage by the provisions of paragraph VI, and therefore affirm the judgment of the trial court.


author: RICHARDS, Justice.

text:
    Ruby S. NUNNERY, Appellant, v. TEXAS CASUALTY INSURANCE COMPANY, Appellee.
    No. 11004.
    Court of Civil Appeals of Texas. Austin.
    Nov. 21, 1962.
    Long, Maroney & Aronson, Austin, for appellant.
    Gay & Meyers, Austin, for appellee.
   RICHARDS, Justice.

Ruby S. Nunnery, appellant, individually and as next friend of her minor son, Douglas A. Nunnery, brought suit in the 53rd Judicial District Court of Travis County, Texas, against Texas Casualty Insurance Company, appellee, as an appeal from an order of the Industrial Accident Board denying death benefits under the Workman’s Compensation Law arising from the death of her husband, George Arthur Glen-don Nunnery. At the time of his death on October 31, 1959 Mr. Nunnery was employed by J. W. Lackey, who carried a policy of workman’s compensation insurance covering his employees and issued by appellee. Appellant did not file the claims for death benefits accruing to herself and her minor son under the policy with the Industrial Accident Board until July S, 1960, more than eight months after the death of her husband.

On the trial the jury found in answer to three special issues that there existed good cause for appellant’s failure to file the claim with the Industrial Accident Board within six months after the death of her husband as required by Sec. 4a, Art. 8307, Vernon’s Civil Statutes. Motion for judgment on the verdict was filed by appellant, individually and as next friend of the minor, Douglas A. Nunnery, which was granted as to the minor but refused as to appellant. Appellee filed motion for judgment non obstante veredicto, which was granted by the Court as to appellant and denied as to the minor, Douglas A. Nunnery. The Trial Court entered judgment for recovery by the minor, Douglas A. Nunnery and that appellant take nothing. Appellant having perfected this appeal only from that part of the judgment denying her a recovery, the sole question for decision is whether appellant had good cause for her failure to file claim for compensation within six months after her husband’s death.

According to appellant’s testimony, within a week after her husband’s death she was advised by her eldest son that her husband’s employer had told him that he had workman’s compensation insurance on her husband and to see if she had a claim. She then consulted an attorney in Georgetown and told him how everything had happened and asked him to investigate it for her. The attorney said he would investigate it and if appellant had a claim he would file it.

About January 19, 1960, the attorney wrote a letter to the employer of her late husband, which is in part as follows:

“I have carefully gone over the file with reference to the death of Mr. George Glendon Nunnery, who died, in my opinion, as the result of an accident while operating a motor vehicle in the line of his duty. I understand that you carry workman compensation. Therefore, consider this a demand for full payment under the terms of the compensation that you now carry. Please acknowledge receipt of this demand.
“I suggest that you take this matter up with your insurance carrier at once.”

Appellant stated that after she had received a copy of this letter she knew that the attorney was trying to collect workman’s compensation for herself and her son. During the succeeding months she was in communication with her attorney either through personal visits or by telephone on an average of once a month until the middle of May, 1960, at which time the attorney advised her that he had concluded that she did not have a compensable claim. She testified that until the attorney told her that she did not have a compen-sable claim she was relying on him to do whatever was necessary about the claim and that the reason she had not filed a claim within six months after her husband’s death is that she was waiting for the attorney to do what he was going to do.

The six months’ period within which a claim must be filed with the Industrial Accident Board under the provisions of Art. 8307, Sec. 4a, V.C.S., would have expired on May 1, 1960, since the period began to run on the date of the death, October 31, 1959, and not on any subsequent date. Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053. It therefore appears that the statutory period had elapsed prior to the middle of May, 1960, when the appellant was notified by her attorney that she did not have a compensa-ble claim.

In our opinion, appellant’s contention that there was evidence to support the jury’s finding of good cause for her delay in failing to file the claim with the Industrial Accident Board within six months from the date of her husband’s death is without merit. While it is true that the test for the existence of good cause is that of ordinary prudence, that is, whether the claimant prosecuted the claim with the degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances, which ordinarily is a question of fact to be determined by the jury or the trier of facts, nevertheless, it may be determined against the claimant as a matter of law when the evidence construed most favorably for the claimant admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372.

Construing the evidence as to the degree of diligence exercised by appellant in her favor, we must conclude that appellant has shown no good cause for the delay in filing her claim with the Industrial Accident Board as a matter of law. Under the rule stated by the Supreme Court of Texas in Texas Employers Ins. Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90, the relationship of attorney and client is one of agency and since the omissions as well as the commissions of an attorney are the acts of the client whom he .represents, the attorney’s negligence is equivalent to the negligence of the client.

Here, appellant employed an attorney to investigate her claim for death benefits under the Workman’s Compensation Law arising from the death of her husband while working for an employer covered by workman’s compensation insurance. Under appellant’s contract of employment with her attorney he was to investigate her claim and if in his opinion she had a com-pensable claim he would file it. There is no dispute that appellant relied upon her attorney to make an investigation of her claim, that he advised her during the succeeding months that he was engaged in such investigation and it was not until after the six months’ period for filing the claim with the Board had expired that he advised her that she did not have a compensable claim. As stated in Wermske, supra, the law of Texas is that an attorney employed to prosecute a claim for workman’s compensation is the agent of the client and his action or non-action within the scope of his employment or agency is attributable to the client.

Since the failure of appellant’s attorney to file her claim with the Industrial Accident Board within the six months’ period following the death of her husband must be attributed to appellant, no good cause was shown by appellant for her failure to have complied with the provisions of Art. 8307, Sec. 4a, V.C.S., and her claim is barred as a matter of law. The Trial Court did not err in granting appellee’s motion for judgment non obstante vere-dicto against appellant and her point of error is overruled.

By point of error on its appeal appellee contends that the Trial Court erred in granting the motion of Douglas A. Nunnery, a minor, acting by and through appellant as his next friend, for judgment on the verdict and in entering judgment against appellee for $6,038.68, together with interest at the rate of 4% per annum. This contention is based upon the theory that since appellant represented the minor son, Douglas A. Nunnery, as his next friend in investigating, preparing and finally filing claim for compensation, he is bound by her delay and there is no evidence raising the issue of good cause for the delay.

In Latcholia v. Texas Employers’ Ins. Ass’n, 140 Tex. 231, 167 S.W.2d 164, 168 and Associated Indemnity Corp. v. Billberg, Tex.Civ.App., 172 S.W.2d 157, 163 (N.W.H.), it was held that the period of disqualification of a minor begins to run from the date of the injury or death upon which the claim is based until the claim is filed by the guardian or next friend and that such disqualification will constitute good cause as a matter of law for not filing the claim during that period. Appellee’s cross-point of error is overruled.

The judgment of the Trial Court is in all things affirmed.

Affirmed.


author: BOYD, Justice.

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY, Appellant, v. W. L. MURRELL et ux., Appellees.
    No. 16368.
    Court of Civil Appeals of Texas. Port Worth.
    Nov. 16, 1962.
    Rehearing Denied Dee. 14, 1962.
    Thompson, Coe, Cousins & Irons, and R. B. Cousins, Dallas, for appellant.
    Coleman & Whitten, and Earl L. Coleman, Denton, for appellees.
   BOYD, Justice.

On January 26, 1959, The Millers Mutual Fire Insurance Company of Texas issued its Texas standard comprehensive dwelling policy thereby insuring the residence of W. L. Murrell and wife Evelyn Murrell for a period of 3 years. While the policy was in effect the house was damaged to a considerable extent. The Mur-rells made claim for payment under the terms of the policy, but the claim was not paid. The Murrells filed suit, which re-suited in a verdict and judgment for them in the amount of $15,100. From this judgment the insurance company has appealed.

Appellees alleged that the damage was caused by earth movement or landslide when the earth beneath the house swelled and expanded, causing the walls, floors, ceilings and foundation to buckle and partially collapse.

The jury found that there was an “earth movement” under the house during the year 1960, and that the earth movement was a proximate cause of the damage to the house. It was further found that the damage sustained to the house directly resulted in a “partial collapse” of the house.

The policy contained the following provisions: “This company agrees to insure against all risks of physical loss, EXCEPT AS HEREINAFTER EXCLUDED, to the dwelling(s), building(s) or structure(s) insured under Coverage Group A of the Schedule subject to all other conditions, limitations and exclusions contained in this policy.

* * * * * * *
“SPECIAL EXCLUSIONS APPLICABLE TO COVERAGE GROUP A-SPECIAL FORM * * * This policy does not insure against- * * * settling, shrinkage, or expansion in foundations, walls, floors, or ceilings; this Exclusion, however, shall not apply to loss by * * * landslide, total or partial collapse, water damage, and glass breakage, caused by perils excluded in this paragraph;
“Loss to retaining walls not constituting part of a building when such loss is caused by landslide, water pressure, or earth movement, unless such loss is caused by collapse of any other structure; * *.”

We have reached the conclusion that the loss involved is covered by the policy. The house was insured against all risks of physical loss except as excluded by the terms of the policy. We do not believe that damage resulting from earth movement was excluded. The only exclusion relevant to our inquiry was “settling, shrinkage, or expansion in foundations, walls, floors, or ceilings,” and this exclusion did not apply to loss by landslide, total or partial collapse, water damage and glass breakage, caused by the excluded perils. If the earth movement found by the jury amounted to a landslide, the damage resulting therefrom was expressly taken out of the exclusion; if the earth movement was not a landslide, it never was in the exclusion.

Our opinion is strengthened by a consideration of the other exclusion mentioned above, namely, loss to retaining walls not constituting part of a building “when such loss is caused by landslide, water pressure, or earth movement. * * * ” Having excluded loss caused by earth movement to retaining walls not part of a building, it can with reason be inferred that the parties agreed that loss to the building caused by earth movement was not excluded.

The effect of a “comprehensive” policy is generally to broaden the coverage. And the expression, “all risks of physical loss” except those excluded, covers an almost unlimited field. Policies of insurance are interpreted and construed liberally in favor of the insured and strictly against the insurer. Exceptions and words of limitation are construed against the insurer. And courts will not write a limitation of liability into a policy where none exists. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379.

Appellant contends that the earth movement which caused the damage was not a “risk” because it was not fortuitous but .inevitable, and that at least issues should have been submitted inquiring whether the loss was fortuitous or inevitable. It argues that it was certain from the day the house was built that this damage was going to happen, and that there was therefore no “risk” as that term is commonly understood. We cannot agreee. It is true that all the expert witnesses, who, after the damage, examined the underlying structures of the earth, noted the capacity of the soil to absorb water and saw evidences of earth movement, said that damage similar to that which occurred was inevitable. We are not told who, at the time the insurance contract was executed, had certain knowledge that this damage was inevitable. We perceive no error in the court’s refusal to hold, or ask the jury whether, the damage sued for was inevitable in the sense that the peril was not a risk but a certainty that could not be insured against.

The court defined “partial collapse” as “ * * * a partial cracking, bulging, shrinking, falling, or breaking in such a manner as to materially impair the basic structure or substantial integrity of a building.” Appellant contends that the definition was erroneous; that there was no evidence to sustain the finding of partial collapse; and that such finding was against the greater weight and preponderance of the evidence.

The objection to the definition of partial collapse was that the same “is not a proper and accurate definition, is confusing and does not include a necessary element in that it does not instruct the jury that there must be an abrupt or sudden occurrence such as cracking, bulging, etc.” Appellant tendered the following definition of collapse: “To fall or shrink together abruptly, as the sides of a hollow vessel; to cave in; to fall into a flattened, wrecked or distorted shape; a sudden and utter failure; a breakdown.”

We cannot agree with appellant’s construction of appellees’ petition as suing only for damage caused by partial collapse of the building. It is true that appellees pleaded that the damage caused by earth movement or landslide caused the walls, floors, ceilings, and foundation to buckle and partially collapse. We do not think we can hold appellees to a claim for damages caused by partial collapse. The partial collapse was alleged and found to be a result, and not the cause, of the damage occasioned by the earth movement.

While appellant says that there is no evidence, or the evidence is insufficient, to support the finding of partial collapse, there is no contention that the findings that there was an earth movement and that this was a proximate cause of the damage are not supported.

In view of the finding that earth movement caused the damage, we think it immaterial whether the damage resulted in partial collapse of the structure.

The judgment is affirmed.