author: CLAY, Commissioner.

text:
    Martha HELTON et al., Appellants, v. Hewitt JONES, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Rehearing Denied June 3, 1966.

      Jackson White, Denney, Landrum, White & Patterson, Lexington, for appellants.
    Fritz Krueger, Somerset, for appellee.
   CLAY, Commissioner.

This is an appeal from a judgment recognizing the right of appellee to a passway easement over the lands of appellants, and enjoining them from interfering therewith. Appellants contend appellee’s use of this passway was permissive and not a matter of right; and that by reason of a written contract appellee had relinquished the easement.

The two tracts involved were once owned by Tom Noe. Across his land was a roadway approximately 125 feet in length connecting two highways paralleling each other. The use of one of the highways has long since been abandoned but the roadway in controversy has been continuously used for over fifty years as a means of access to the principal highway.

In 1929 the original owner died and his property was divided into two tracts. Since that date the owners and occupants of ap-pellee’s tract Rave continued to use this roadway over the other tract, now owned by appellants, up until the development of this litigation. Many years ago a gate was put up across it and was there in 1943 when appellants purchased the property. On several occasions this gate was padlocked by appellants but appellee was furnished a key to the .lock.

In 1964 appellants placed a new lock on the gate and did not give appellee a key. He thereupon obtained a warrant charging one of appellants with obstructing a public pass-way. After her arrest, prosecution on the warrant was abandoned upon the execution of a contract between the parties, which we will subsequently discuss.

Appellants’ contention is that the use of this passway (for a period of fifty years) has always been permissive and therefore the use of it never ripened into an easement. Appellee contends that when the lands were originally divided an easement was created, but in any event, the long-continued user matured into an absolute right.

The facts in this case are almost identical with those in Delong v. Cline, 302 Ky. 358, 194 S.W.2d 631. It was therein held that upon a division of a tract of land under the same circumstances we have here, an easement will pass by implication “as if he had a deed thereto” to the party who acquired the parcel whose enjoyment required the use of a pre-existing passway over another parcel.

This principle amply supports the Chancellor’s finding of the existence of an easement although his finding appears to have been based on his conclusion that ap-pellee had acquired his rights by prescription or adverse possession. Such alternate ground of the decision is also amply supported by the record. The circumstances would justify no other conclusion but that appellee had a permanent easement as a matter of right. The existence of the gate may have restricted the scope of the easement but certainly did not destroy it.

The next question involves a written contract entered into by the parties after appellee had obtained a warrant against one of the appellants for obstructing the pass-way. In this agreement appellants purported to grant appellee the right to use the road for a period of 120 days, and appellee agreed “to turn said roadway back to the first parties and to cease to use said road at the expiration” of that period. The Chancellor refused to give effect to this contract on the ground that since appellee had the right to use the roadway in perpetuity, there was no consideration for his agreement to relinquish that right at the end of 120 days.

We are inclined to agree with the Chancellor that appellee’s relinquishment of his easement rights was not supported by adequate consideration. The only quid pro quo which he received from appellants was the ostensible grant of an easement for a limited period which appellee had the right to enjoy in perpetuity. In effect appellee gave up something for nothing.

It is appellants’ contention that where there is a bona fide dispute concerning the respective rights of two parties, the settlement of that controversy must be upheld regardless of the particular merits of either claim. This is generally true. Under the peculiar circumstances of his case, however, we do not think there was a bona fide settlement of reciprocal meritorious claims under the principles set out in Hall v. Fuller, Ky., 352 S.W.2d 559. In our opinion, even if the agreement was supported by consideration, it would be unconscionable to enforce it against appellee.

This agreement grew out of an emergency situation which was brought on by appellants’ unlawful act in blocking appel-lee’s passway. Appellee’s dairy business was seriously threatened as he had no other means of egress from his land. In entering into this agreement, he was under duress and was acting without the advice of counsel, In view of the emergency situation confronting both parties, the nature of the immediate controversy, the fact that ap-pellee’s rights had long before been established without dispute, and the illusory nature of the right granted by appellants, we think equitable considerations entitled appellee to relief from the contract relinquishing his rights.

The judgment is affirmed..


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Lynn M. RAQUE, Appellant, v. CITY OF LOUISVILLE, Kentucky and Robert Matthews, Attorney General; Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    James B. Young, Louisville, for appellant.
    Eugene H. Alvey, Franklin P. Hays, Louisville, Robert Matthews, Atty. Gen., Henri L. Mangeot, Asst. Atty. Gen., for appellees.
   PALMORE, Judge.

By an ordinance duly enacted and approved on August 24, 1965, the City of Louisville directed an election to be held on the question of whether it should incur an indebtedness of $29,820,000 for a variety of specified municipal projects. KRS 66.050. The proposal received the assent of more than two-thirds of the voters, as required by Const. § 157, at the November 1965 election, and on December 30, 1965, the city enacted a further ordinance authorizing the issuance of bonds payable over a 30-year schedule and providing for the levy of “a tax sufficient to pay the interest on said bonds as the same falls due and also to constitute a sinking fund for the payment of the principal of said bonds as the same mature, which tax shall be levied and collected at the same time and in the same manner as other taxes of said City and shall be in addition to all other taxes authorized to be levied by said City.”

This suit was brought by the city against one of its resident citizens and ad valorem taxpayers, as a class representative, for a declaratory judgment determining the validity of and construing the ordinances. KRS 66.210; KRS 418.040. The Attorney General of the Commonwealth intervened, KRS 418.075, because the complaint raised certain questions with regard to the validity and applicability of the 1965 Special Session tax legislation, 1965 1st ex s, H 1.

On the basis of the pleadings, depositions and stipulated facts the trial court adjudged that the ordinances were valid, that the bonds hereafter issued in conformity with them will be enforceable obligations of the city so long as the 10% limitation of Const. § 158 is not exceeded, and that all property subject to ad valorem taxation by the city may be taxed at whatever rate should become necessary, after compliance with KRS 91.150 and 91.200, in order to pay the interest and provide a sinking fund for retirement of the bonds on schedule.

The first argument on appeal is that the ordinances violate Const. § 178 in specifying more than one “purpose” for which the money to be borrowed shall be used. It is frankly conceded that to reach that end would require us to overrule Burke v. City of Louisville, Ky., 275 S.W.2d 899 (1955), and the precedents on which it rests. We are satisfied, however, that the law as it now stands in that respect is sound and should not be disturbed.

The only other issue seriously pursued at this stage concerns House Bill l, which, broadly speaking and with exceptions not pertinent to this case, provides that local ad valorem tax rates for 1966 and thereafter may not exceed what is necessary to produce the same amount of tax revenue as in 1965. This maximum is called the “compensating tax rate.” KRS 132.010(6). It is expressly applied to cities by Section 14 of the Act, now KRS 132.027.

Appellant contends that the compensating tax rate limits any levy of taxes, including those which may become necessary in order to pay the interest and provide a sinking fund to retire the principal of these bonds on schedule. If so, the Act runs afoul of Const. § 159, which prescribes that whenever a local taxing authority is authorized to contract an indebtedness it must at the same time provide for the collection of an annual tax sufficient to pay the interest and create a sinking fund for the retirement of the principal within not more than 40 years.

Since City of Winchester v. Nelson, 175 Ky. 63, 193 S.W. 1040 (1917), it has been established and “is still recognized that an indebtedness authorized by a vote of the people permits a levy in excess of the maximum specified in Section 157” of the Constitution. Griffin v. Clay County, 304 Ky. 592, 201 S.W.2d 733, 735 (1947). To hold otherwise, reasoned the City of Winchester opinion, would have the probable effect of rendering nugatory the provision of Const. § 157 which authorizes a voted indebtedness in excess of current revenues, a result the court felt was not intended by the framers of the Constitution. For the same reason, and without reaching the question of whether any legislation effecting such a result would be constitutional, we have no difficulty in concluding that the General Assembly did not intend to limit the rate at which taxes must necessarily be levied to pay an indebtedness incurred either theretofore or thereafter by authority of a vote of the people under Const. § 157. Considering the background of the Act, it seems quite certain that it was designed to safeguard against unintended tax burdens, and not against those which are specifically intended and specially authorized.

The judgment is affirmed.

      . It was established by the evidence that an increase of $29,820,000 would not at present cause the net indebtedness to exceed tire limit.

      . KItS 91.200(6) provides that ad valorem taxes for the benefit of the sinking fund shall not be levied unless the income of the sinking fund is otherwise insufficient. The chancellor found as a fact that the income of Louisville’s sinking fund probably will be sufficient to pay the principal and interest on the $29,820,000 bond issue without additional ad valorem taxation.

      . Enacted in September of 1965 and effective December 16, 1965.

      . The same requirement is carried into the statutes by KRS 66.050(2).


author: CULLEN, Commissioner.

text:
    Elmer WITHERSPOON et al., Appellants, v. Evelyn Jaggers WITHERSPOON, Executrix, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    As Modified on Denial of Rehearing May 13, 1966.
    Terry L. Hatchett, Glasgow, for appellants.
    Davis Williams, Munfordville, for appel-lees.
   CULLEN, Commissioner.

In this action by the executrix of the will of Edd Witherspoon, deceased, against his children (creditors also were made parties), it was adjudged that a deed executed by Witherspoon many years before his death (and before his final marriage), purporting to convey certain land to his children, did not convey any present interest, was testamentary in character, and was void because not executed with the formalities required of a will. The judgment decreed that the land was part of the decedent’s estate and therefore was subject to dower rights of the widow (who had renounced the will) and to claims of creditors. The children have appealed.

The granting clause of the deed contained these words:

* * * it being fully understood and agreed by the parties hereto that title to said land shall not pass until the death of the party of the first part and that he, the said party of the first part, reserves full control thereof, the right to live upon same, to mortgage, sell and convey the same, during his life time, but in the event title is vested in the party of the first part at his death, then the title shall pass to the parties of the second part * * *.”

The habendum clause recited that the second parties were to have and to hold:

“ ⅜ * * upon the death of the party of the first part if he is in possession of same at said time; * *

At the outset we can eliminate any argument that the use of the terms “title * * * shall not pass until the death of the party of the first part,” or “at his death, then the title shall pass,” or “have and to hold * * * upon the death of the party of the first part,” necessarily makes the instrument testamentary. The quoted terms may be considered as showing the intent to postpone only possession and enjoyment rather than to postpone the passing of any property interest. See Barnett v. Barnett, 283 Ky. 710, 142 S.W.2d 975; Phillips v. Thomas Lumber Co., 94 Ky. 445, 22 S.W. 652. The grantor has not said that the instrument shall not become effective until his death, but only that “title” (that is, possession and enjoyment) shall not pass until then.

It is generally stated to be the law that if a deed presently passes an interest it is not testamentary. See Douglas v. Snow, 304 Ky. 805, 202 S.W.2d 629; Spicer v. Spicer, 314 Ky. 560, 236 S.W.2d 474; 23 Am.Jur.2d, Deeds, sec. 176, p. 221. However, as shall be shown, some of the rulings of the courts seem to have been predicated on the view (not forthrightly expressed) that the interest passing by the deed must be one of some certainty of realization — not one that merely is legally recognized as a transmissible interest.

It is well settled that a deed conveying title to the grantee, subject only to the reservation of a life estate in the grant- or, presently passes an interest. See Franklin Real Estate Co. v. Music, Ky., 392 S.W.2d 66; 23 Am.Jur.2d, Deeds, sec. 187, pp. 232, 233. The deed here in issue differs only in that it reserves to the grantor the power to dispose of the property to another by inter vivos sale and thus to wipe out the interest conveyed to the grantees. It would not seem that the mere existence of this reservation could, of itself, preclude the deed from having the effect of passing a present interest; rather, it would seem that the reservation is of the right, by a subsequent instrument of conveyance, to take away the interest that passed. But we are confronted with the opinion in Douglas v. Snow, 304 Ky. 805, 202 S.W.2d 629, holding that a deed reserving in the grantor a life estate plus the right to dispose of the full title by inter vivos sale does not presently pass an interest. A few decisions of other jurisdictions have taken a similar view. See 23 Am.Jur.2d, Deeds, sec. 188, pp. 234, 235; Annotations, 11 A.L.R. 23 @ 99; 76 A.L.R. 636 @ 653; 31 A.L.R.2d 532 @ 595.

We think that the foregoing decisions are incorrect. The grantor has divested himself of part of his ownership and the grantee has acquired an interest of which he can be deprived only by the execution of a subsequent instrument of conveyance by the grantor. Whether the grantee’s interest is denominated a contingent remainder or an executory interest in the nature of a springing use is we think immaterial. See American Law of Property, Vol. 1, sec. 4.56, pp. 501 to 503; The Law of Future Interests, Simes and Smith, sec. 223, pp. 250 to 255; Restatement of the Law of Property, sec. 46.

Clearly, the mere reservation of a power of sale, and probably the reservation even of a power of absolute revocation by deed or will, will not alone render a deed ineffective as such or require it to be regarded as a will. See Ricketts v. Louisville, St. L. & T. Ry. Co., 91 Ky. 221, 15 S.W. 182; 23 Am.Jur.2d, Deeds, sec. 188, pp. 234, 235; Annotations, 11 A.L.R. 23 @ 78; 76 A.L.R. 636 @ 648; 31 A.L.R.2d 579. We think that the correct view is that these reservations are to be considered only as part of the circumstances in undertaking to determine whether the grantor intended an interest to pass presently; they are merely features to consider and are not automatically determinative of the status of the instrument. See 23 Am.Jur.2d, Deeds, sec. 188, pp. 234, 235.

We think that Douglas v. Snow, 304 Ky. 805, 202 S.W.2d 629, although in terms saying that a deed reserving to the grantor a life estate plus power of inter vivos sale does not presently pass an interest, represents actually the feeling of the court at that time that future interests with such uncertainty of realization really should not count in applying the rule that a deed must presently pass an interest in order to be valid. We see no valid reason why a deed must pass an indefeasible interest in order to avoid being treated as testamentary.

Douglas v. Snow hereby is overruled.

Applying the “polar star” rule to the deed here in issue, we find clear indications of the intent presently to pass an interest. Th; trend of modern decisions is to uphold instruments of this kind as valid deeds. 23 Am.Jur.2d, Deeds, sec. 179, p. 224. We think the instrument here is valid as a deed.

The judgment is reversed with directions to enter judgment declaring valid the deed in issue.


author: MONTGOMERY, Judge.

text:
    Can Martin HALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 29, 1966.

      James D. Atkinson, Jr., Greenup, for appellant.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Can Martin Hall was convicted of contributing to the delinquency of a minor, one Geraldine Barrett, aged 17 years. KRS 208.020(3) (a). He was fined $50 and sentenced to serve twelve months in jail. On appeal he contends that the statute is unconstitutional; a conviction in an Ohio court is a bar to this prosecution; and the verdict was not unanimous.

Complaint is made that the statute does not contain a definition of “delinquency” and does not define what acts under the statute are criminal offenses with sufficient clarity to permit an adequate defense. This same objection was rejected in McDonald v. Commonwealth, Ky., 331 S.W.2d 716, in discussing KRS 199.320(1) which has been re-enacted as KRS 208.020 (3) (a). There is no need to elaborate on what was said there. However, there is yet another answer to this complaint. Nothing in the record indicates that appellant availed himself of a bill of particulars under RCr 6.22 in order to secure the necessary information as to the offense in order to understand and prepare his defense. Unless the motion for a bill of particulars has been denied or the bill of particulars is inadequate, a defendant will not be heard to complain that he does not know with what he is charged. See Brown v. Commonwealth, Ky., 378 S.W.2d 608.

The testimony introduced on the trial is not contained in this record. Appellant contends that his conviction on a charge of contributing to the delinquency of a minor in the Juvenile Court of Scioto County, Ohio, should be a bar to this conviction. This plea was made for the first time, according to the record, after the trial in the Greenup Circuit Court on September 30, 1965.

There are several reasons why the Ohio conviction, in the state of the record here, is not a bar. The plea was made too late. Barnett v. Commonwealth, Ky., 361 S.W.2d 284. The copy of the Ohio judgment does not in any way identify it as dealing with Geraldine Barrett and does not conform in any way with the requirements of the rule against double jeopardy as set forth in McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058. Further, on appeal in the absence of a transcript of the testimony it is presumed that the verdict was' supported by the evidence. Napier v. Commonwealth, Ky., 298 S.W.2d 690. Appellant’s argument that the delinquency was a continuing course of conduct culminating in the Ohio conviction overlooks the fact that such portion of the conduct occurring in Greenup County, Kentucky, and contributing to the delinquency of the minor could be prosecuted in Green-up County. There is no merit in this contention.

According to the affidavit filed in support of appellant’s motion for a new trial, two jurors said:

“ * * * that after the verdict was returned and read by the Judge, the jury was polled individually, and that when we were asked if it was our verdict, we each replied, in substance, that we had agreed to it against our better judgment.”

Appellant contends that such expression by the jurors indicates that the verdict was not unanimous. Reliance is placed on Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15, wherein the juror when polled said:

“ ‘It is not my verdict, I did agree to it, but I didn’t want to do it, it was against my will.’ And again the Court asket^ Is that your verdict now, and he said it\is, but it is against my will.”

Accepting the statement in appellant’s brief the jury first returned the verdict and “ordered” the jail sentence suspended. The trial judge advised the jury that they could recommend suspension but could not order it. The jury was sent back to the jury room and after a time they returned the verdict with a recommendation of suspension. When the jury was then polled the two jurors answered as has been indicated. The judge then advised the jury that their recommendation would not be accepted and he discharged the jury. Such a recommendation is surplusage and may properly be disregarded by the court. Winburn v. Commonwealth, 181 Ky. 183, 203 S.W. 1073; Hall v. Commonwealth, 283 Ky. 778, 143 S.W.2d 495.

Coomer v. Commonwealth, Ky., 238 S.W.2d 161, is also cited. An examination of that case shows that the juror “was forced” to sign the verdict. In each of the cases cited the juror agreed to the verdict involuntarily — “against my will” or “forced.” In the present case the two jurors merely said that they had agreed to the verdict against “our better judgment/’ This does not connote that it was involuntarily done. When the jury returned to the jury room they could have then returned a verdict of not guilty or any other verdict that they could agree on, or the two jurors could have declined to agree to any verdict. There is no suggestion here that either juror was deprived of an iota of freedom of action in agreeing to the verdict returned. The cases relied on are inapplicable.

The motion for an appeal is overruled and the judgment is affirmed.


author: MONTGOMERY,' Judge.

text:
    KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Monroe RITCHIE et al., Appellees.
    Court of Appeals of Kentucky.
    April 29, 1966.
    Richard D. Cooper, Reeves, Barret & Cooper, Hazard, for appellant.
    Cordell H. Martin, John Robert Morgan, Hindman, for appellees.
   MONTGOMERY,' Judge.

This workmen’s compensation proceeding was instituted by Monroe Ritchie against Kentucky West Virginia Gas Company to recover permanent and total disability benefits. The Board found that Ritchie failed to give appellant due and timely notice of his injury and that he had failed to sustain the burden of proving that he was suffering from an injury as a result of an accident during his employment by appellant. The circuit court, relying on Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 90S, remanded the case and directed the Board to award compensation in accord with the medical report of Dr. Allen F. Zoeller filed pursuant to KRS 342.121 (4). It also found that appellant had timely notice of Ritchie’s injury.. The gas company appeals and urges a failure to prove notice or injury.

The trial court held that the medical report of Dr. Zoeller was controlling and that the Board was bound to follow it. KRS 342.121(4) provides:

“The decision or award in the case shall conform to the findings and conclusions in such report in so far as restricted to medical questions; provided, however, that any such findings and conclusions may be set aside, reversed or modified, by the board’s award or decision, in case an application for review is made to the board within ten days after the report is filed with the board and the interested parties notified, subject, however, to the following special provisions; no such findings of the physician shall be subject to review unless specific objections thereto shall be filed with the board by a party in interest within the time limited in which to apply for review of such report.”

It is noted that the statute provides that the findings and conclusions of the physician appointed pursuant to KRS 342.121 are restricted to “medical questions.” It specifically provides that “any such findings and conclusions may be set aside, reversed or modified” by the Board in case an application for review with specific objections is made to the report.

The effect of filing or not filing such objections was determined in Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88, as follows:

“As we interpret this statute, if there are no exceptions timely filed to the Board-appointed physician’s report it is presumed that the parties accept the report which thereupon becomes conclusive of the medical questions involved. If exceptions are timely made the Board may modify or set aside the report under which circumstance it becomes analogous to a recommendation of the Board’s referee and is not controlling on the Board.”

This holding was approved in Roaring Fork Coal Company v. Wilder, Ky., 380 S.W.2d 271.

In the present case the appellant filed an application for review and specific objections to the report of Dr. Zoeller. In such instance the Board could consider Dr. Zoeller’s report with other testimony in the record and was not controlled or hound by Dr. Zoeller’s report. The trial court was in error. Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, was misconstrued.

Appellant urges that the Board’s finding, in effect, that Ritchie had failed to prove a compensable disability is sustained by substantive evidence and is conclusive. Ritchie claimed to have sustained an injury by twisting his back in the operation of a jackhammer on or about January 5, 1963, while employed by appellant. His foreman denied that Ritchie complained of the injury at that time. Ritchie testified that he continued in his employment until he was involved in another accident when again thrown by a jackhammer. His then foreman testified that Ritchie told him that he was not injured and that he wanted no report made of the accident. Ritchie admitted this. He continued to work until April 25, 1963, when he voluntarily quit. He later obtained employment in Indiana.

While in Indiana, Ritchie injured his back on May 3, 1963, and was hospitalized for 22 days. He made a claim for workmen’s compensation benefits from his employer, Cripp Equipment Company. On August 2, 1963, Ritchie wrote Cripp complaining of his failure to receive compensation benefits.

After Ritchie returned to Kentucky he sought benefits by this proceeding against appellant. There is a conflict in the medical testimony. Dr. Kearns R. Thompson, a specialist in orthopedic surgery, testified that when, he made a physical examination and an X-ray examination of Ritchie he found no evidence of back injury attributable to employment by appellant. Dr. John W. Williams, who had treated Ritchie for the claimed back injury in Indiana, testified that Ritchie did not complain of having received a traumatic injury to his back prior to his coming to the state of Indiana.

This medical testimony, coupled with the other testimony mentioned, was sufficient to sustain the Board’s finding that Ritchie suffered no compensable injury while in appellant’s employ. In such case the Board’s finding is conclusive. Hardaway Contracting Company v. Mershall, Ky., 362 S.W.2d 491; Horton v. United States Steel Corporation, Ky., 384 S.W.2d 73. When a claimant has failed to convince the Board as a fact-finder that he was disabled by an occupational injury and has failed to show any error as a matter of law, the circuit court and this court are bound by the Board’s finding based on substantial evidence. Jewell Ridge Coal Company v. McDowell, Ky., 392 S.W.2d 59.

It is unnecessary to discuss the question of timely notice.

The judgment is reversed with direction to approve the Board’s opinion and finding of no compensable injury or disability.


author: HILL, Judge.

text:
    Kenneth Lee BENOIT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Kenneth Lee Benoit, pro se.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This appeal from a judgment overruling without a hearing appellant’s motion to vacate judgment, on a charge of armed robbery under which he was given a life sentence, raises the following six points: (1) That the trial court failed to instruct on the whole law of the case; (2) that the indictment charged three separate offenses, and that he was being tried on only one, thus constituting the introduction of incompetent evidence; (3) that he was denied a preliminary hearing; (4) that he was denied the effective assistance of counsel at his trial; (5) that he was denied an appeal; and (6) that he was denied the effective assistance of counsel on appeal.

Grounds one and two are not available to appellant in a RCr 11.42 proceeding. Cf. King v. Commonwealth, Ky., 387 S.W.2d 582.

Ground three contends in one breath he was denied, a “preliminary hearing” and in the next breath points out he was injured and unable to attend a hearing. Furthermore, he does not show any prejudice as a result of the failure to conduct a preliminary hearing. Ground three was not sufficient to justify a hearing. Cf. Carson v. Commonwealth, Ky., 382 S.W.2d 85 (1964); and Yates v. Commonwealth, Ky., 386 S.W.2d 450 (1965).

Ground four charges his court-appointed counsel failed to represent him effectively at the trial in these words: “He did not preserve the record by filing a written motion for a new trial and thereby make known to the court his objections to the substantial errors, and secondly, his oral motion for a new trial appears to have been made only as a protective measure as to his position.”

In Ringo v. Commonwealth, Ky., 391 S.W.2d 392 (1965) this court outlined the precision with which a RCr 11.42 petitioner must allege the charge of ineffectiveness of counsel, which is as follows:

“ * * * a general allegation of incompetent representation is not enough to justify a hearing. Before directing a hearing the trial court is entitled to know exactly in what respects the prisoner claims counsel failed to give him effective assistance, so that it can be determined from the face of the motion whether the facts intended to be proved amount to a constitutional violation.”

Appellant’s motion does not measure up to the requirements of Ringo, supra, or Rice v. Davis, Ky., 366 S.W.2d 153 (1963). Ground four does not justify a hearing.

Grounds five and six raise serious constitutional violations. They contend he was denied the right to appeal and was thereby denied the effective assistance of counsel on appeal. He charges his attorney filed notice of appeal on October 30, 1964, and one hundred and twenty-four days later advised appellant the appeal would, in his judgment, be fruitless. Appellant nowhere alleges he asked his counsel to prosecute an appeal.

In Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966), it was decided the failure of court-appointed counsel to prosecute an appeal to the Court of Appeals from his client’s judgment of conviction, “after being requested to do so,” justified relief under RCr 11.42. Prior to Hammershoy, ■supra, this court held that a direct attack on the judgment of conviction could not be based upon counsel’s failure to prosecute an appeal. Cf. McIntosh v. Commonwealth, Ky., 368 S.W.2d 331 (1963); and Jones v. Commonwealth, Ky., 388 S.W.2d 601 (1965). The appellee herein makes a forceful and persuasive argument that the opinion in Hammershoy, supra, contains an “unwarranted extension” of the rights of the criminal-defendant and should be re-examined. It is unnecessary to re-examine Hammershoy in the present case for it was held in Hammershoy that a request for an appeal was necessary. In McIntosh, supra, this court said:

“ ‘Equal protection’ gives to the indigent defendant a right to counsel and to a transcript of the record on appeal if he requests it. In the absence of such a request it does not, in our opinion, oblige the court either to initiate an inquiry or to extend an invitation to appeal.” (Emphasis added.)

Appellant’s motion to vacate, not having shown a request that his court-appointed counsel proceed with his appeal, was insufficient to justify a hearing. The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Thomas BALLARD et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, L. A. Faurest, Tildón H. McMasters, Elizabeth-town, for appellant.
    John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellees.
   MOREMEN, Chief Justice.

Appellees Ballard owned a tract of land located about a mile east of Bardstown on U. S. Highway 150. The farm contained 260 acres. The Commonwealth condemned a right-of-way for the Central Kentucky Parkway across this land and took 20.83 acres from the southeast corner of the farm and landlocked 2.56 acres. A temporary easement across a portion of the land was used to detour traffic while the road was being constructed. The jury awarded the landowner $20,817 for the land taken and landlocked and $300 for the use of the temporary easement.

The sole contention made by the Commonwealth on this appeal is that the verdict is not supported by the evidence and is so palpably excessive as to shock the conscience at first blush.

A careful examination of the testimony has failed to create such a reaction in our minds or consciences; in fact, the quality of the evidence introduced in behalf of the landowners is such that we are of opinion that the jury was modest in fixing the amount of its verdict.

We believe that both parties had a fair trial and that the award reached and the judgment entered upon it were correct.

Judgment affirmed.


author: POPE, Justice.

text:
    Earnest S. BOREN, Petitioner, v. George S. BOREN et al., Respondent.
    No. A-11106.
    Supreme Court of Texas.
    April 13, 1966.
    Rehearing Denied June 8, 1966.
    A. R. Archer, Jr., Monahans, for petitioner.
    Murray J. Howze, Monahans, for respondent.
   POPE, Justice.

O. K. Boren, deceased, executed a typewritten document in June, 1959, which was admitted to probate as his last will. Deceased’s brother, Earnest S. Boren, filed this action to set aside the order of probate, because the document was not attested by two witnesses as required by Section 59, Probate Code, V.T.C.S. The courts below have upheld the validity of the document as a will. Tex.Civ.App., 394 S.W.2d 704. The question presented is, whether the self-proving provisions attached to the document may be treated as a part of the document for the purpose of supplying the necessary witnesses. We reverse the judgments of the courts below and render judgment that the probate of the document as a will be set aside.

O. K. Boren executed the document, which appears on its face to be testamentary in nature, and by it undertook to devise all of his property, share and share alike, to his sister and two of his brothers. Petitioner would receive nothing. The district court, on appeal, upheld the validity of the document as a will. The trial judge made these findings of fact: “The instrument purporting to be his last will and testament consisted of only one page and was signed only by O. K. Boren, deceased. The names of the purported witnesses were not subscribed thereto. Attached to the purported will was an affidavit with the names of the deceased and two witnesses subscribed thereto which stated, among other things, that the deceased and the witnesses had subscribed their names to the foregoing instrument which was purportedly the last will and testament of O. K. Boren, deceased.” It is undisputed that the self-proving provisions were as follows:

“Before me, the undersigned authority, on this day personally appeared O. KL. Boren and-- and-witnesses who are known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said O. K. Boren, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed for the purposes therein expressed; and the said witnesses, each on his oath stated to me, in the presence and hearing of said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he expressed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of said testator and at his request; that he was at that time nineteen years of age or over and was of sound mind; and that each of said witnesses was then at least fourteen years of age.
S/ O. K. Boren TESTATOR and
S/ J. L. Pinkerton S/ Flossie Bingham WITNESSES
“Subscribed and acknowledged before me by the said O. K. Boren, Testator, and subscribed and sworn to before me by the said J. L. Pinkerton and Flossie Bing-ham witnesses, this the 10th day of June A.D. 1959.
S/ T. H. Neel NOTARY PUBLIC, WARD COUNTY, TEXAS
“My commission expires: “6-1-61”

The self-proving provisions attached to the will are not a part of the will but concern the matter of its proof only. The only purpose served by such self-proving provisions is to admit a will to probate without the testimony of a subscribing witness. In re Price’s Estate, 375 S.W.2d 900, 903 (Tex.Sup.1964). The provision was introduced into the Texas Probate Code in 1955 as an alternative mode of proving a will. Acts 1955, 54th Leg., p. 88, ch. 55. It was not the purpose of the Legislature to amend or repeal the requirement that the will itself must meet the requirements of the law. Section 59 expressly states that a self-proved will, except for the manner of proof, shall be treated no differently than a will which is not self-proved. The execution of a valid will is a condition precedent to the usefulness of the self-proving provisions of Section 59. This Court approved the judgment and opinion in McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965, writ ref.), that a will was a nullity because the signatures of the testator and the witnesses appeared on the self-proving provisions, but not on the will itself.

A testamentary document to be self-proved, must first be a will. Many reasons support that rule as the true legislative purpose. In this case, the self-proving affidavit states that the witnesses’ “names are subscribed to the annexed or foregoing instrument * * * ” and that “each witness stated further that they did sign the same as witnesses. * * * ” In fact, the names of the witnesses are not so subscribed to the will. The affidavits identify as the will a document which is inconsistent with the one offered.

The judgments of the courts below are reversed and judgment is here rendered that the order admitting the document to probate he ánd the same is set aside and the probate of said document is vacated. It is further ordered that the judgment of this Court be certified to the County Court of Ward County for observance. Rule 311, Texas Rules of Civil Procedure.


author: WOODLEY, Judge. McDONALD, Presiding Judge MORRISON, Judge

text:
    Walter Bernard KORN, Appellant, v. The STATE of Texas, Appellee.
    No. 39156.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 25, 1966.
    See also, 400 S.W.2d 564.
    Jones, Minton & Burton, by Roy Q. Min-ton, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of marihuana; the punishment, 2 years.

The state’s evidence, admitted to the jury over objection that it was obtained as the result of an illegal arrest and search, shows that following his arrest for vagrancy appellant was taken to jail and during the booking procedure a marihuana cigarette was found in his shirt pocket.

The sole question presented is the legality of the arrest.

The evidence relating to the arrest heard by the court in the jury’s absence shows:

Appellant was arrested in the parking area of the Mi Gran Lounge, in the City of Austin, on January 30, 1965, at approximately 8:40 o’clock P.M., by Lieutenant George Phifer of the Austin Police Department.

Lt. Phifer had received information that there was a group of people known to have police records, including felony convictions, there and one of them (Overton) was supposed to be carrying a gun.

The police officers proceeded to the Lounge and while still outside Lt. Phifer saw appellant come from the Lounge and go to his car. Lt. Phifer knew that appellant had served time in the penitentiary and had been convicted for vagrancy. As recently as January 4,1965, he had been arrested by Lt. Phifer and charged with vagrancy.

In answer to Lt. Phifer’s questions, preceding and at the time of his arrest, appellant stated that he was not working and that there was nothing wrong with him that he could not work, and gave the same excuse he had given after his previous arrest on January 4, 1965, which was to the effect that he could not get a job that paid enough money to make it worth while.

There is no contention that the arrest of the appellant was on mere suspicion or that, from his knowledge and his conversation with appellant, the officer had no good reason to believe that appellant was able bodied; was without visible means of support and was unemployed, his only reason or excuse being that he could not get a job that paid enough money to make it worth while.

Art. 3, Section 46, of the Constitution of Texas, 1876, Vernon’s Ann.St., provides: “The Legislature shall, at its first session after the adoption of this Constitution, enact effective vagrant laws.”

Art. 607 Vernon’s Ann.P.C., Sections (2) and (3), provide that (2) “Persons leading an idle, immoral or profligate life, who have no property to support them, and who are able to work and do not work,” and (3) “[a]ll persons able to work, [who] have no property to support them, and who have no visible or known means of a fair, honest and reputable livelihood,” are and shall be punished as vagrants.

Statutes enacted before and after the adoption of the Constitution of 1876 have declared an' idle person who lives without any means of support and makes no exertion to obtain a livelihood by honest employment to be a vagrant.

Neither the present statutes nor any previous statute of this state have in terms provided that a vagrant may be arrested without a warrant.

On the other hand, both the state and appellant agree that no case has been found wherein this court has expressly held that vagrancy is not a breach of the peace or an “offense against the public peace,” or has expressly held that a person cannot be arrested for vagrancy without a warrant whether there is an ordinance pursuant to Art. 214 Vernon’s Ann. C.C.P. or not.

The state urges that the arrest of appellant for vagrancy was lawful under the Austin ordinance, authorized by Art. 214 V.A.C.C.P. under the holding of this court in Haller v. State, 72 Tex.Cr.R. 294, 162 S.W. 872.

Art. 214 V.A.C.C.P. provides:
“The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

At the hearing in the jury’s absence, the state introduced Section 1.10 of the Austin City Code, known as Suspicious Persons Ordinance, which reads:

“All policemen of the city are hereby authorized and empowered, in the exercise of a sound discretion, to arrest without a warrant therefor any person found in a suspicious place, or any person found under circumstances reasonably tending to show that such person has been guilty of some felony or breach of the peace, or violation of some municipal ordinance, or about to commit some offense against some state law or against some municipal ordinance.”

The state also contends that “vagrancy” is an “offense against the public peace” and the arrest was lawful under Art. 212 V.A.C. C.P., which provides:

“A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an ‘offense against the public peace.’ ”

Appellant contends:

(A) That there is no statutory authority for the arrest of a citizen without a warrant for the offense of vagrancy, Art. 212 C.C.P. not being applicable because vagrancy is not an offense against the public peace and does not constitute a breach of the peace.

(B) The ordinance of the City of Austin enacted pursuant to Art. 214 C.C.P. authorizes a police officer to arrest without a warrant upon the following circumstances only, none of which are present in a vagrancy case or are shown by this record:

When a person is found: (1) in a suspicious place; (2) under circumstances reasonably tending to show that he has been guilty of some felony; (3) under circumstances reasonably tending to show that he has been guilty of some breach of the peace; (4) under circumstances reasonably tending to show that he has violated some municipal ordinance; (5) under circumstances reasonably tending to show that he is about to commit some offense against some state law; or (6) under circumstances reasonably tending to show that he is about to commit some offense against some municipal ordinance.

Appellant would distinguish Haller v. State, 72 Tex.Cr.R. 294, 162 S.W. 872, cited by the state, upon the facts. In that case a woman was arrested “for vagrancy for being a prostitute” and the man found in bed with her, in a reputed house of ill fame, was arrested “for vagrancy for associating with a prostitute.” These arrests without warrant were held by this court to be lawful arrests authorized by a Dallas ordinance.

The writer’s views are that appellant’s arrest was authorized by Art. 999 Vernon’s Ann.Civ.St. and that we need not decide whether it was also authorized by Art. 212 V.A.C.C.P. or the Art. 214 V.A. C.C.P. ordinance.

Art. 998 V.C.S. relates to police officers of a city or town and provides in part that such officers shall have like powers, rights and authority as are vested in city marshals.

Art. 999 V.C.S. relates to the duties of the city marshal and provides in part:

“It shall he his duty to arrest, without warrant, all violators of the public peace, and all * * * who shall be guilty of any disorderly conduct or disturbance whatever * *

In Bennett v. State, 136 Tex.Cr.R. 192, 124 S.W.2d 359, the arrest was for drunkenness in a public place. “Drunkenness” was held to be “disorderly conduct,” defined by Webster’s International Dictionary to mean, among other things, "offensive to good morals and public decency, without law or order,” and this court held that the arrest without warrant by a city policeman for such offense was justified, not under Art. 212 C.C.P., hut under the broad powers given the city marshal and policemen under Arts. 998 and 999 V.C.S.

Insofar as it held that the arrest for drunkenness was not authorized by Art. 212 C.C.P., Bennett v. State, supra, was overruled in Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200.

The Supreme Court of Texas, in Pratt v. Brown, 80 Tex. 608, 16 S.W. 443 (1891) held, as this court later held in Bennett v. State, 136 Tex.Cr.R. 192, 124 S.W.2d 359, that the statute, now Art. 999 V.C.S., authorized a police officer of a city or town to arrest without warrant a person found drunk in a public place, though he was not otherwise creating a disturbance. In holding that drunkenness in a public place is per se “disorderly conduct” within the purview of the statute, the Supreme Court said:

“By his own voluntary acts he superin-duced the necessity, or at least the cause, of his arrest. ‘Disorderly’ does not only mean ‘confused,’ or out of order, but also ‘lawless,’ or contrary to law. Webster. There is good authority for holding that ‘any conduct which is contrary to law is within the definition of “disorderly conduct,” as given by standard lexicographers.’ State [ex rel. Tyrell] v. Jersey City, 25 N.J.Law [536], 541.”

Pratt v. Brown was cited by the Supreme Court of Washington in City of Seattle v. Franklin, 191 Wash. 297, 70 P.2d 1049.

Among other cases cited by the Supreme Court of Washington was Walsh v. City Council of City of Trenton, 117 N.J.Law 64, 186 A. 818, where construing the phrase “disorderly conduct” as used in the city charter the court said:

“We consider any act which violates the Criminal Code is certainly disorderly conduct and more * *

The Washington court pointed out the distinction between disorderly conduct and conduct tending to disturb the public peace, in the following language:

“There is a difference between disorderly conduct and conduct tending to disturb the public peace. Disorderly conduct is a broader term than breaching or disturbance of the peace, because a person who commits a breach of the peace is necessarily guilty of disorderly conduct, but all disorderly conduct is not necessarily a breach of the peace.”

The distinction between “an ‘offense against the public peace’ ” and “disorderly conduct” is important in the case before us but only upon the question of whether the arrest of appellant for vagrancy was authorized by Art. 212 C.C.P. as well as the Art. 214 city ordinance, (both applicable where the offense is an offense against the public peace or a breach of the peace) or was authorized only by Art. 999 V.C.S. which vests in police officers of a city or town authority to arrest without warrant all who shall be guilty of any disorderly conduct as well as all violators of the public peace.

The writer is aware of no authority holding that Art. 999 V.C.S. does not apply to vagrants. The reasoning that Art. 609 P.C., which makes it the duty of law enforcement officers to make complaints against all vagrants, precludes a lawful arrest of a vagrant without a warrant by a police officer of a city or town, is supported by no authority.

There is authority to support a holding that vagrancy is “disorderly conduct.”

“Except where the statutes manifest a contrary intention, vagrancy may ordinarily be considered disorderly conduct.” 27 C.J.S. Disorderly Conduct § 1(2), p. 510.

The writer, in his dissent in McCrady v. State, 166 Tex.Cr.R. 509, 316 S.W.2d 408, directed attention to Arts. 998 and 999 V.C.S. and said:

“Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200, and Bennett v. State, 136 Tex.Cr.R. 192, 124 S.W.2d 359, are deemed authority for holding that the arrest of the prostitute by the officer who witnessed her assignation was lawful. In the Bennett case ‘disorderly conduct’ was held to mean ‘offensive to good morals and public decency.’ ”

In Bennett v. State and in Pratt v. Brown, the attention of the legislature was directed to the fact that authority had been conferred (by Art. 999 V.C.S.) upon police officers of a city whereas like authority had not been granted sheriffs, constables or other elected and appointed officers.

We conclude that the trial court did not err in holding that appellant’s arrest was lawful and the evidence obtained as the result of the search incident to such arrest was admissible.

The judgment is affirmed.

McDONALD, Presiding Judge

(concurring).

I concur with Judge Woodley as to the disposition of this cause, in affirming the judgment of the trial court. However, I am not in accord with his reasoning in reaching the result.

I think this case should be affirmed under the provisions of Art. 212, V.A.C.C.P., wherein a peace officer is authorized to arrest without a warrant an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an “offense against the public peace.” Haller v. State, 72 Tex.Cr.R. 294, 162 S.W. 872; Hackett v. State, 172 Tex.Cr.R. 414, 357 S.W.2d 391.

I further feel that the provisions of the Ordinance of the City of Austin, derived from Art. 214, V.A.C.C.P., are adequate to justify an affirmance of this conviction.

The only real distinction between the two foregoing provisions that is, Art. 212, supra, and the Austin Ordinance, is that the statute says, “against the public peace”, and the Ordinance says “breach of the peace”.

Judge Woodley in effect says “disorderly conduct” is the reason for the arrest without a warrant. I cannot agree with the New Jersey decision cited in his opinion wherein the conclusion is reached that “all disorderly conduct is not necessarily a breach of the peace.”

While I adhere to the early decision of this Court and the pronouncement therein in the case of Ex parte Strittmatter, 58 Tex.Cr.R. 156, 124 S.W. 906, holding the vagrancy statute constitutional, I am not unmindful of the dissenting opinion of Mr. Justice Douglas as recently as February 28, 1966, in the case of Hicks, Petitioner v. District of Columbia, 86 S.Ct. 798, wherein Mr. Justice Douglas expressed his view that a statute defining “vagrant” was unconstitutional. I am content to follow the precedents announced by this Court until such time as the Supreme Court of the United States hands down an opinion to the contrary. I do not feel that the case of Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, is in point to the extent of successfully supporting an attack upon the constitutionality of our “vagrancy statute”, and declaring it unconstitutional.

I concur in the affirmance of the judgment of the trial court.

MORRISON, Judge

(dissenting).

Vagrancy statutes by their very nature place an awesome responsibility on the police officer patrolling a beat. Such statutes authorize the arrest of a man because of his status, as opposed to arrest for a singular overt act in violation of public order, and for this reason, these laws demand the utmost discretion in their application.

An affirmance of this conviction would authorize any police officer to arrest without a warrant and without probable cause any man who has had prior difficulty with the law. This far I refuse to go.

All that the officer observed prior to this arrest was that appellant walked from the front of a tavern to his automobile. There was no suggestion that appellant was intoxicated.

Article 609, V.A.P.C., provides that it shall be the duty of the law enforcement personnel named therein to make a complaint under oath to an officer empowered to issue criminal warrants, of all vagrants. Such article makes it a misdemeanor for an officer to fail to comply therewith.

Williams v. State, Tex.Cr.App., 394 S.W.2d 510, squarely supports the holding that the arrest in this case was unlawful.

I respectfully dissent.


author: WOODLEY, Judge. MORRISON, Judge

text:
    J. D. SANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 39274.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    Rehearing Denied May 25, 1966.
    James A. Moore, Clyde W. Woody, Fred H. Dailey, Jr., and John P. Farra, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, life.

The indictment alleged that appellant, on or about the 5th day of July, 1964, “did with malice aforethought kill James Mason by-shooting him with a gun.”

Appellant moved to quash the indictment because of the absence of an allegation that he “voluntarily” killed the deceased.

This Court held in Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119, that an averment that the killing was done “with malice aforethought” was sufficient, though the statute defining murder provides “whoever shall voluntarily kill any person within this state shall be guilty of murder.” See also Landers v. State, 114 Tex.Cr.R. 352, 25 S.W.2d 868; House v. State, 128 Tex.Cr.R. 404, 81 S.W.2d 708; Taylor v. State, 133 Tex.Cr.R. 56, 106 S.W.2d 681; and Sparacino v. State, 170 Tex.Cr.R. 278, 340 S.W.2d 47.

Consistent with such prior opinions, we hold that the trial court did not err in overruling appellant’s motion to quash the indictment.

The sufficiency of the evidence to sustain the jury’s verdict is not challenged.

The statement of facts reflects the followings

James Mason was shot to death by a .38 caliber revolver in the hand of J. D. (Vada) Sanders, the appellant. The shooting took place in front of the Redmen’s Club at 511 Main Street, in Baytown, Harris County, Texas, on July 5, 1964.

Four of the five bullets fired from the .38 caliber revolver struck the deceased. One entered the midline of the upper abdomen, one the right side, another the right upper chest and the other the face, penetrating the cheek and lodging in the spine.

Immediately after the shooting, appellant told somebody to call the police. He remained at the scene until Police Officer Herring arrived and, in answer to the officer’s question: “Can you tell me what happened?” appellant replied “Yes, I shot him,” and said that the gun was on the front seat of his car and the officer got the .38 caliber Smith and Wesson 5 Shot Airway revolver, a pistol which contained “5 spent rounds that had been fired.”

No weapon was found on or near the body of Mason and no witness testified that he was armed.

In March, 1964, Mason lost a considerable sum of money gambling with a man named O’Neill, at another Redmen’s Club in Baytown of which appellant was manager. Mason became convinced that he had been cheated by O’Neill and suspected that appellant had “set him up.”

Several witnesses testified that they heard Mason say that if he found out that appellant had something to do with O’Neill beating him out of his money he was going to kill him, or that he was going to get his money back or kill him. These threats were communicated to appellant.

Following a conversation by telephone between-the deceased and the appellant, and between appellant and his friend Louis B. Russell, on July 5, the deceased and Russell came out of the Redmen’s Club together to meet appellant. Appellant drove up and stopped on the other side of the street.

Witnesses for the state testified that the deceased and Russell started to walk across the street toward appellant’s automobile. As they did so, appellant said: “Mason, I tried to avoid this but you forced me on it,” and fired three shots while he was still sitting in the car and Mason fell to the ground.

Appellant then got out of his car and fired twice more as Mason, lying on the ground, raised his head.

Testifying in his own behalf, appellant told of the communicated threats and testified to threats and an assault he said Mason had made upon him which caused him to be “deathly afraid” of him.

Appellant’s version of the shooting was that Mason started across the street very rapidly and when he got to about the middle of the street he said “Vada, this is it” and reached toward his middle section, he thought for a gun, and in order to warn Mason that he had a gun in his car he (appellant) said “don’t force me,” and grabbed his gun, which was on the floor board, and started shooting.

The court, in his charge, instructed the jury upon the law of self-defense when one is unlawfully attacked or threatened with attack by another and there is created in the mind of the person so attacked or threatened with attack a reasonable expectation or fear of death or serious bodily injury, and instructed that “it is not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would have were the danger real * *

The court’s charge applying such law instructed the jury to acquit if they believed or had reasonable doubt that at the time the deceased was shot “the deceased had made or was about to make an unlawful assault on the defendant, and the defendant reasonably believed from the conduct or acts or words, or words coupled with acts or conduct of the deceased, if any, viewed from the defendant’s standpoint at the time, in the light of all the facts and circumstances within his knowledge, that the deceased was about to attack the defendant and kill him or inflict upon him serious bodily injury, and the defendant shot and thereby killed the deceased, acting under a reasonable apprehension or fear of death or serious bodily injury, then the defendant would be justified in so shooting and killing the deceased under such circumstances

The jury was also instructed as to the right to continue to shoot until the danger or apparent danger shall cease, and upon the law of threats as justification.

Among the 24 objections to the court’s charge appellant, in paragraph 21, objected to the “charge on self-defense set forth on pages 4 and 5 of the charge and says that such instructions are erroneous and too restrictive and operate to impose on him a burden more onerous than is imposed by law,” and for reason quoted the portion of the court’s charge on self-defense above italicized.

We agree with the state’s contention that the objection was not sufficiently definite under our holding in Hoover v. State, 109 Tex.Cr.R. 564, 5 S.W.2d 982, 986.

If before us, the contention that reversible error is shown in the overruling of such objection to the charge on self-defense is overruled.

Appellant’s third point relates to the following testimony of Baytown Police Officer D. L. Herring:

“Q. Mr. Herring, I will hand you the pistol which has been introduced — admitted into evidence that is, as State’s Exhibit No. 1, sir, and ask you if you have had occasion to pull the trigger on that pistol ?

“A. Yes sir, I have.

“Q. As a police officer and in your other life, have you had occasion to become familiar with firearms, especially revolvers and handarms as they call them?

“A. Yes sir, I have.

“Q. Describe as best you can the pull of that trigger to the jury as best you can find words.

MR. McMANUS: I object. This would call for sort of conclusion on the part of this witness.

THE COURT: Overruled.

“Q. And is it a heavy or light pull, Mr. Herring?

“A. It is a heavy pull.”

The admission of this testimony which related to the pistol introduced in evidence as the murder weapon, over the objection made, is not ground for reversal. Appellant admitted that he pulled the trigger and fired the fatal shots.

Appellant’s last point relates to the court’s refusal to allow appellant’s trial counsel to examine a transcript of the testimony of state’s witness Russell before the grand jury.

The state is not required to produce for inspection of the accused the testimony of witnesses before the grand jury. Hanes v. State, 341 S.W.2d 428, 170 Tex.Cr.R. 394; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. denied, 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 154; Bryant v. State, Tex.Cr.App., 397 S.W.2d 445.

Appellant’s counsel requested that the trial judge examine the transcript and make it a part of the record on appeal. This was done and the testimony of the witness Russell before the grand jury was made available to appellant’s counsel on appeal and is before us as an exhibit for appellant’s bill of exception.

During Russell’s examination before the grand jury, he testified that he saw the deceased make no move prior to being shot. On the trial he was not asked the question by either the prosecution or the defense. It follows that this appellant was not deprived of the right to show a discrepancy in the witness’ testimony.

The judgment is affirmed.

MORRISON, Judge

(concurring).

I concur with the result reached by the majority, but cannot agree with the blanket statement that “The state is not required to produce for inspection of the accused the testimony of witnesses before the grand jury.”

In the original opinion of the majority in Bryant, supra, the rule was accepted that where a witness had refreshed his memory from his testimony before the grand jury, the accused was entitled to examine such testimony for the purpose of impeachment.

In the relatively recent case of Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319, the Court, speaking through the author of the majority opinion herein, recognized that an accused had the right to lay a predicate to impeach a witness by proof that he had testified differently before the grand jury.

For this reason I concur in the affirmance of the conviction, but do not agree to the paragraph referred to in the majority opinion.


author: MORRISON, Judge.

text:
    Leslie William WAGONER, Appellant, v. The STATE of Texas, Appellee.
    No. 39645.
    Court of Criminal Appeals of Texas.
    May 11, 1966.

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

•The offense is driving while intoxicated; the punishment, a fine of $75.00 and five months in jail.

Officer Bass testified that while on patrol with Officer Jez on the day in question he observed a truck tractor, traveling in the east bound two lanes of Corinth Street in the City of Dallas, almost collide with the center post of a concrete underpass. He further testified that the vehicle then swerved into the right lane, then back to the left and continued weaving through a second underpass where the right outside rear view mirror struck a concrete pillar. The officer stated that the truck then turned onto Lamar Street where it jumped the curb and jack-knifed. He identified the appellant as the driver and stated that the appellant staggered as he got out of the truck and had trouble locating his driver’s license, that his eyes were bloodshot and watery and that his breath smelled strongly of the odor of alcohol. The officer then stated that in his opinion appellant was intoxicated.

Officer Jez, testifying to essentially the same facts as set out above, corroborated Officer Bass, and stated that in his opinion the appellant was intoxicated.

Appellant, testifying in his own behalf, admitted that he had consumed three beers at Juliet’s Lounge on Corinth Street and had just left there when the misadventure occurred, but contended that he was sober. He further testified to the effect that he collided with the concrete pillar while moving over to allow a car to pass him. He stated that he was covered with mud from an earlier mishap whereby his truck stuck in some mud, and he advanced as the reason for his unsteadiness, the fact that his shoes were slippery from such mud.

Two character witnesses were called by appellant.

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

There are no formal bills of exception.

Appellant complains of the trial court’s refusal to allow him to take Officer Bass on voir dire when the question was asked, “Now before you placed the defendant under arrest did he say anything about what he had had to drink, or did he say whether he had had anything to drink?” No reversible error is shown. The same testimony was admitted without an objection when Officer Jez testified that appellant told him during their conversation at the scene that he had had a couple of beers and some whiskey earlier in the evening and when the appellant admitted before the jury that he had consumed three beers at Juliet’s Lounge.

Appellant sought to raise by motion for new trial an objection to alleged improper jury argument of the prosecutor.

No statement of facts of the jury argument accompanying the record and formal bills having been filed, such contention is not before us for review.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Willie Lee FIELDS, Appellant, v. The STATE of Texas, Appellee.
    No. 39269.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 20, 1966.
    Second Motion for Rehearing Denied May 25, 1966.
    No attorney of record on appeal, for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The indictment under which appellant was tried was in two counts. The first count alleged an assault upon Ruby Lee Jackson with malice with the intent to kill her. The second count alleged an assault upon Ruby Lee Jackson with intent to ravish and have carnal knowledge of her without her consent.

At the conclusion of the evidence, the state elected to stand upon the first count.

The court, in his charge, submitted assault with intent to murder with and without malice, and the jury found appellant guilty of assault with intent to murder without malice and assessed his punishment at 3 years in the penitentiary.

Ruby Lee Jackson, the prosecuting witness, testified that she returned from her work as a waitress about 1:30 A.M. About 4:30 A.M. she was awakened by appellant who was standing over her pointing a pistol at her head. He said “All right, get up from there, woman. . . .You are going to give me some tonight. ... I have been wanting you for a long time. I will do you like I did that other woman if you don’t come on and do what I want done.”

Hoping that she could get help from her sister next door, Ruby Lee asked appellant to let her go to the bathroom, but he went with her. When they came out of the bathroom appellant said he was tired fooling with her and, after threatening to kill her 15 year old son who had awakened, if he started anything, appellant took Ruby Lee to another bedroom.

When they got to the bed the prosecuting witness said: “Willie, don’t point that gun at me” and appellant began shooting her.

One of the bullets from the .22 caliber pistol struck the prosecuting witness in the chest area and another near the chin.

The evidence further reflects that a window screen had been broken; that the doors were locked and that the pistol belonged to the prosecuting witness and had been removed from her handbag; that appellant fled after the shooting and that the pistol was never found.

Appellant did not testify and called no witnesses. However, his counsel elicited from state’s witness R. W. Pugh, Jr., a police officer, testimony to the effect that the prosecuting witness had told him at the hospital shortly after the shooting that appellant had gotten in bed with her and while they were in the bed she grabbed for the gun and that was when the shooting occurred.

Appellant appears to have received at the hands of the jury full benefit of this version of the shooting.

The evidence amply sustains the conviction for assault with intent to murder without malice.

Willie Jackson, Jr. corroborated his mother’s testimony and further testified that he also heard appellant say: “I ain’t got none since I came out of the penitentiary.”

Appellant’s objection to this testimony and his request that the jury be instructed to disregard it were overruled, to which exception was reserved.

The statement made by appellant during the commission of the offense was properly admitted as part of the transaction and as res gestae. Welch v. State, Tex.Cr.App., 373 S.W.2d 497; Babb v. State, 164 Tex.Cr.R. 45, 297 S.W.2d 132; Carrier v. State, 159 Tex.Cr.R. 421, 264 S.W.2d 728; Johnson v. State, 158 Tex.Cr.R. 233, 254 S.W.2d 131.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

ON MOTION FOR REHEARING

MORRISON, Judge.

On motion for rehearing the appellant contends that the trial court was in error in permitting the witness Tyler, the medical records clerk of Ben Taub Hospital, who was shown to have the care, custody and control of the official hospital records, to read from such records statements relating the injuries suffered by the complaining witness Ruby Lee Jackson. Appellant obj ected on the ground that proper predicate had not been laid.

It was shown by witness Tyler’s testimony that the records were made in the regular course of business and were made at or near the time the matters contained therein occurred. The foregoing would constitute sufficient predicate to authorize the introduction of the records into evidence. Art. 3737e, Sec. 1 and 2, Vernon’s Ann.Civ.St.

Although the records themselves may have been the best evidence, in the absence of such an objection, it was not reversible error to allow the medical records clerk to read therefrom the factual description of the injuries sustained by Ruby Lee Jackson.

Remaining convinced that our original opinion properly disposed of the case, appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Huah Lee JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39616.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Charles W. Tessmer,. Emmett Colvin, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom F. Reese, Jr., Charles L. Caperton and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is felony theft with a prior conviction for felony theft alleged for enhancement. The punishment was assessed at ten years.

Lizzie Jones testified that while sitting in White’s store during the installation of seat covers on her automobile, she saw two men enter the store together; that while one of the men talked with a salesman in the store the other man took a small television set and placed it under the coat he was wearing, left the store, and entered a car parked in front of the store and hurriedly drove away, and the other man remained in the store; that she told a salesman what had happened and the license number of the car driven away was obtained; and while testifying on the trial she identified the appellant as the man who took the television along with another article and left the store. The man with the appellant was still in the store when the officers arrived.

Noel Watts, manager of White’s store, testified that after a customer, Mrs. Jones, told him that a man had taken a small television from the store, that he took an inventory and found that a small television and a charger were missing from the store, that he had the care and control of the television and charger which were of over the value of fifty dollars and they were taken without his consent.

Proof was offered of the prior conviction for felony theft as alleged and of appellant’s identity as being the same person so convicted. This method of proof was made in accordance with that approved by the court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143. Kizer v. State, Tex.Cr.App., 400 S.W.2d 333.

The appellant did not testify but called several witnesses who testified that at the time of the commission of the primary offense in Dallas, the appellant was in Terrell and could not have committed the primary offense alleged.

The evidence is sufficient to support the conviction.

It is insisted that the trial court erred in permitting the reading of the allegations charging the prior conviction and making proof thereof before the jury trying the appellant for the primary offense, over his timely objections that it was prejudicial, deprived him of a fair trial and of due process of law.

This contention has been previously urged, considered, and rejected by this Court. Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393; Taylor v. State, Tex.Cr.App., 398 S.W.2d 559; and cases cited.

There was no offer to stipulate as to the prior conviction alleged for enhancement.

No error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge.

text:
    Donald Wayne CATHY, Appellant, v. The STATE of Texas, Appellee.
    No. 38951.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.

      Victor R. Blaine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Robert J. Musslewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving while license suspended; the punishment, enhanced by proof of a prior conviction, is 30 days confinement in jail and a fine of $300.00.

Officer Joe Dvorsky of the Texas Department of Public Safety testified that he had custody of appellant’s driver’s record, and that this record revealed that appellant had been issued a commercial operator’s license which bore an expiration date of September 23, 1960.

The record further reflects that his license was suspended effective November 17, 1959, after a corporation court of Dallas, Texas, held a hearing at which appellant was found to be an habitual violator of the traffic laws as defined in Section 22, Article 6687b, Vernon’s Ann.Tex.Civ.St.

On August 30, 1960, a Dallas corporation court found that appellant had committed an offense for which his license could be automatically suspended, and the Department of Public Safety entered an order suspending appellant’s license for an additional twelve-month period from November 17, 1960, until November 17, 1961.

Three subsequent automatic suspensions resulted from convictions for driving while license was suspended, as provided for by Section 24, Article 6687b, with the effect that appellant’s license was purportedly under suspension until November 17, 1964, at the time he was arrested for the present offense.

Appellant stipulated that he had driven a motor vehicle upon a public street in Harris County, Texas, on October 4, 1964, and further stipulated that he had been previously convicted of driving while his license was suspended on May 22, 1963.

Appellant’s one contention on appeal is that the evidence is insufficient to support his conviction. More specifically, the first two suspensions described above were ordered by the Department as a result of hearings held before the corporation court, and it is appellant’s position that he had no notice that either hearing was to be held, and further that he was not notified of the results of either hearing or of the action taken by the Department. He argues that the Department, in ordering the suspension of his license without notice of the hearings or orders, exceeded the authority granted by Section 22 of Article 6687b, and these suspensions are therefore void. Consequently his commercial operator’s license was not under suspension on September 23, 1960, when it expired. Appellant contends he has had no license since that date and that his conviction here, for driving while his license was suspended, is necessarily void, because on'e of the elements of proof — that the accused possess a license which was suspended — was not proven.

The facts necessary for determination of this 'issue are found in appellant’s driver’s record, which shows that notice of the first hearing held on November 17, 1959, was mailed to appellant by certified mail on November 3, 1959, and that this notice was returned to the Department undelivered and not receipted for. Following the hearing, the Department entered its order suspending appellant’s license for one year effective November 17, 1959, and notice of the action taken by the Department was sent by certified mail to appellant at the address stated on his license. This notice was also returned to the Department undelivered and not receipted for. It is undisputed that appellant was told by a Dallas police officer in July, 1960, that his license was suspended and advised that another hearing would be held concerning his driving status, but the record does not reflect that appellant had notice, actual or constructive, as to when the hearing would be held. Notice was mailed by certified mail that a hearing would be held August 30, 1960, but this notice was not received by appellant, according to his driver’s record, which also fails to show that notice of the suspension order was sent to appellant after this hearing.

From these facts, it is clear that service, as required by Section 22, Article 6687b, was not had upon appellant. Podany v. State, 172 Tex.Cr.R. 451, 358 S.W.2d 118. Article 6687b does not authorize suspension of a license without notice and hearing except as provided by Section 24, not applicable here. Texas Department of Public Safety v. Hamilton, 157 Tex. 616, 306 S.W.2d 712. The suspensions effective November 17, 1959, and November 17, 1960, are .therefore void. As appellant’s license was not under suspension on its date of expiration, it expired on September 23, 1960. The record shows that there was no renewal of appellant’s privilege to operate a motor vehicle, and there is no evidence that he was issued a new license. The state has failed to show that appellant had a license which was suspended on the date of the offense alleged, and the conviction cannot stand. Bryant v. State, 163 Tex.Cr.R. 544, 294 S.W.2d 819.

The state contends that appellant’s stipulation at his trial that on May 22, 1963, he was duly and legally convicted of driving while license was suspended was an admission that he had a license at that time and that the license was suspended, and that having admitted this, appellant is precluded from asserting that the 1959 and 1960 suspensions are void, because these suspensions were necessary to obtain the 1963 conviction.

Even if we assume that in successive criminal actions the judgment of the former action operates as an estoppel in the latter as to every point and question which was actually litigated and determined in the first action, there is no indication that the validity of the 1959 and 1960 suspensions has ever been challenged, and the 1963 conviction for driving while license was suspended cannot be considered conclusive on this issue. It is incumbent upon the state in every cause of action to prove the elements of the offense charged. One of the elements of the offense of driving while license is suspended is that the accused’s privilege to drive a motor vehicle must be suspended at the time of the alleged offense. Under this court’s interpretation of Article 6687b, this means that the state is required to prove that the accused had a license which was suspended at the time of the alleged offense, or that the accused’s privilege to drive was suspended at the time his license expired by its own terms, and that because of an unbroken chain of. successive suspensions, that privilege remained suspended from the expiration date to the time of the alleged offense. Preble v. State, Tex.Cr.App., 402 S.W.2d 902, opinion delivered February 9, 1966. The state has failed to prove this element of the offense. We overrule the state’s contention that appellant’s stipulation as to his prior conviction es-topped him from asserting his defense that he had no license which could be under suspension at the time of the alleged offense. See Lee v. State, 86 Tex.Cr.R. 146, 215 S.W. 326.

The judgment is reversed and the cause remanded.


text:
    Donald Wayne CATHEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39234.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied May 25, 1966.
    Victor R. Blaine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., James C. Brough and John Gilliland, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Appellant was found guilty of driving while his license was suspended, and his punishment was assessed at 270 days in jail and a fine of $750.00.

A discussion of the facts is not necessary. Suffice it to say that appellant was shown to have operated a motor vehicle on a public street on February 9, 1965. For proof that appellant’s privilege to drive was suspended on that date, the State relied upon the same chain of suspensions relied upon in the prosecution of this same appellant in Cathy v. State, Tex.Cr.App., 402 S.W.2d 743, opinion delivered this date. In that case, this Court found that appellant’s license to drive had expired on September 23, 1960, at a time when it was not validly suspended, and appellant had no license — either suspended or unencumbered —on the date of the alleged offense. Conviction in that cause was therefore reversed because the State had failed to prove one of the elements of the offense, i. e., that appellant’s privilege to drive was suspended at the time of the alleged offense.

Our decision in Cathy, supra, controls our disposition of this case. Appellant’s motion for rehearing is granted; our prior opinion affirming the conviction is withdrawn, and the judgment is reversed and the cause remanded.


author: DICE, Commissioner. WOODLEY, Judge.

text:
    James R. KING, Appellant, v. The STATE of Texas, Appellee.
    No. 39284.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 20, 1966.

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

The conviction is for unlawfully selling beer in a dry area; the punishment, fifteen days in jail and a fine of $400.

Inspector Quenton R. Vonner, of the State Liquor Control Board, testified that on the night of March 16, 1965, he went to the Club De Lisa in the city of Tyler and purchased a quart bottle of Falstaff beer from the appellant for the sum of $1. He fixed the time of the purchase at 10:30 p. m., and also identified the quart bottle of beer which was introduced in evidence as state’s exhibit #1. He further stated that he later returned to the Club De Lisa, on March 21, in company with Inspectors Whittenberg and Cosper, where Inspectors Whittenberg and Cosper contacted appellant and obtain his correct name and identification.

Inspectors Whittenberg and Cosper, upon being called as witnesses, testified that on March 21 they went to Club De Lisa in company with Inspector Vonner and on such occasion they made identification of appellant to Inspector Vonner by obtaining appellant’s name, age, physical description, and address.

It was stipulated that Smith County was a dry area.

Testifying as a witness in his own behalf, appellant denied selling the bottle of beer to Inspector Vonner on the night in question. Appellant swore that he was not at the Club De Lisa at the time the sale was alleged to have been made but that he was sanding floors at the home of Mrs. Oba Brown.

Mrs. Brown, upon being called as a witness, corroborated appellant’s alibi testimony and stated that on the night in question he was working at her home and did not leave until about 10:00 or 10:30.

Appellant’s defense of alibi was submitted to the jury by the court in his charge.

The jury by their verdict rejected such defense, and we find the evidence sufficient to sustain the judgment of conviction.

Appellant’s sole contention on appeal is that the court erred in permitting Inspectors Whittenberg and Cosper to testify that Officer Vonner identified him on March 21 as the person who sold him the beer. Error is urged under the recent ruling by this court in Lyons v. State, 388 S.W.2d 950, which gave application to the rule that prohibits other witnesses to bolster the unim-peached testimony of the victim of a crime by corroborating the fact that she had identified her assailant.

The record does not reflect that Inspectors Whittenberg and Cosper testified that Inspector Vonner identified the appellant on March 21 as the person who sold him the beer. Their testimony was, in substance, that they identified the appellant — not that Inspector Vonner identified him. Appellant’s objection to their testimony was on the ground that it was hearsay. Such objection was not well taken, as the testimony shows that appellant was present when the two inspectors were making the identification of him.

The contention is overruled.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant complains of the disposition •made of his informal bills of exception relating to the testimony of Inspectors Whit-tenberg and Cosper.

A re-examination of the record reveals that the only objection that was made and overruled in regard to Inspector Whitten-berg’s testimony as to what occurred on March 21 was to the question: “To whom was the identification made?” This question had been answered: “It was made to Mr. Vonner” before any objection was made and there was no motion to withdraw the question or the answer.

Inspector Cosper also gave an account of the events which occurred at the Club De Lisa on March 21, 1965. The question had been asked and answered before any objection was offered and no motion was made to have the jury disregard the evidence complained of.

The informal bills of exception present no -reversible error. Howard v. State, Tex.Cr.App., 387 S.W.2d 387; Meza v. State, 172 Tex.Cr.R. 544, 360 S.W.2d 403; Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218; James v. State, 169 Tex.Cr.R. 526, 335 S.W.2d 603; Pruitt v. State, 164 Tex.Cr.R. 340, 299 S.W.2d 148, and cases there cited.

Appellant’s motion for rehearing is overruled.