author: CULVER, Justice. STEAKLEY, Justice

text:
    TARRY MOVING & STORAGE CO., Inc. et al., Petitioners, v. RAILROAD COMMISSION of Texas et al., Respondents.
    No. A-9210.
    Supreme Court of Texas.
    April 3, 1963.
    Rehearing Denied May 22, 1963.
    Christopher & Bailey, Fort Worth, for petitioners.
    Will Wilson, Atty. Gen., Austin (Wag-goner Carr, Austin), Marvin Sentell, Asst. Atty. Gen., Lanham & Hatched, Austin, for respondents.
   CULVER, Justice.

Originally the Railroad Commission granted four specialized motor carrier certificates authorizing the transport of certain goods to and from the following areas: (1) within a SO-mile radius of Olney; (2) within a 50-mile radius of Seymour; (3) within a 25-mile radius of Henrietta, and (4) within a 25-mile radius of Wichita Falls. The territories so allotted under these certificates overlap to a considerable degree.

In 1957 the Commission granted the application of James Jeter consolidating these four certificates. Some years later, after a hearing, the Commission granted Jeter’s application to divide the consolidated certificates as they existed before the consolidation so as to enable him to sell three certificates to three separate individuals, retaining for himself the territory within a 50-mile radius of Olney. The case here arises out of the latter order.

On appeal by Tarry Moving & Storage Company et al. the orders of the Commission were sustained by the district court and the Court of Civil Appeals. 359 S.W.2d 62.

We brought the case here to determine the principal point in controversy, to wit: does Section 5a(a) of Article 911b, authorizing the Commission’s disapproval of a sale if “not best for the public interest” when construed in the light of other provisions of the statute, impose the duty upon the Commission to consider the question of public convenience and necessity in passing upon the application to divide and sell the consolidated certificate or a part thereof under the facts above outlined? We now concur with the Court of Civil Appeals in answering that question in the negative.

This exact question had not heretofore been passed upon by our appellate courts nor does the statute itself expressly provide an answer.

Tarry Company contends that this transaction comes squarely within Section 5a(a) which provides that, before a specialized motor carrier certificate may be sold or transferred, an application therefor must be presented to the Commission and the Commission may disapprove if it determines that the sale is not (a) in good faith or (b) that the purchaser is unable to continue the operation so as to render the services demanded by public necessity and convenience or (c) that the sale is not best for the public interest. It further contends that since the Commission did not in its hearing require any showing that this transaction was “best for the public interest,” the orders of the Railroad Commission cannot stand and must be stricken. Tarry insists that when a certificate has been purchased and consolidated with another certificate, the two have been unified and merged into a single certificate; that the original certificate is dead and cannot be revived; that in fact and in law, the application here was for the issuance of three new certificates, and therefore it would require all the proof and procedure as outlined for a new certificate under the statute. Tarry argues that three additional carriers have been authorized by this order, which indicates necessity for the consideration of public interest.

On the other hand the Commission takes the position that since no service to the public has been eliminated nor any new service provided and the proposed new carriers possess the necessary qualifications to render the same service that was furnished by Jeter, the interest of the public is not in issue. The Commission says that this is a division order and controlled not by Section 5a(a) but by Section 4(a) which vests the Commission with the power and duty to prescribe rates and all rules and regulations necessary to govern motor carriers and for the safety of their operations, and to supervise and regulate motor carriers in all matters affecting the relationship between such carriers and the shipping public.

The Commission says that no new operating rights have been created and it is only until they are sought that the issue of public interest becomes an issue.

The Commission insists that the situation here no more affects the public interest than would be the case if the original four certificate holders had sought permission to sell their certificates to four other individuals. Convenience and necessity for the service had already been determined, and by the sale the service would not be altered where the Commission had found upon a hearing that the purchasers had bought in good faith and would continue the operation so as to render the service demanded by public interest and convenience.

In L. A. Norris Truck Line v. Railroad Commission, Tex.Civ.App., 245 S.W.2d 746, wr. ref., the application was to divide from the certificate and sell the right to transport oil-field equipment. The attack made on the Commission’s order granting the application was based on the fact that there had been offered no evidence of public convenience and necessity to support that order. The Court of Civil Appeals in upholding the order observed: "The question of necessity and convenience having been determined by the Commission at the time the original certificate was granted, there was no occasion to or authority for the reopening of such question upon the application for the sale and transfer of the divided portion of the certificate.” That holding is strongly persuasive in favor of the Commission’s contention here. If the public interest need not be expressly shown where the application is to divide the certificate as to commodities, then it would be logical to assume that the public interest would not be impaired where the application is to divide the territory. In each case an additional carrier will be created, but no change effected in the character of the service to be rendered. See also Roberdeau et al. v. Railroad Commission, Tex.Civ.App., 239 S.W.2d 889.

Tarry Company demonstrates the similarity between the Federal Interstate Commerce Act, Sec. 5(2) affecting unifications, mergers and acquisition of control, with 5a (a) of our act and cites certain federal decisions which lend support to its contention, among them being Southwest Transportation Company—Purchase—Johnson, 35 M.C.C. 437; McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544; and Pacific Intermountain Express Company—Control and Merger—Union Transfer Co., 12 F.C.C. 40724. These generally hold that operating rights may not be indefinitely removed from active use and preserved for subsequent transfer to an additional motor carrier when conditions may have materially changed in the territory both as to competition and traffic and to allow this practice would be inconsistent with the public interest.

We quite agree that the paramount consideration, in both State and Federal regulations controlling public transportation and common carriers, is that of the public interest. But whether in this case the old certificates lie dormant and thus are subject to sale with the Commission’s approval or new certificates issued to the purchasers is largely theoretical.

It makes no practical difference whether we say the old certificates were revitalized or that new certificates were issued; the result of the division and sale is the same, at least so far as the public is concerned.

Tarry Company also cites Houston & North Texas Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78, for the proposition that in order to authorize the division of an existing certificate into two parts and the sale of one of the parts, the Commission should find that the division and sale will not impair the service to the public. In that case the holding was, that before an application to divide and sell a portion of the certificate could be approved, it must be considered and acted upon at a regular or called meeting of the Commission. Since that procedure had not been followed we reversed and remanded. We did, however,! take occasion to point out in view of thel possibility of a later consideration of the matter, the Commission should take the matter of public interest into account. The application there sought to break up one through route into two connecting short routes, thus necessitating an interchange on commodities billed for shipment over the original through route, which in some instances might not serve the public as adequately as before the route was broken up. The application called for a change in the character of service rendered.

It may reasonably be said that since the Commission has found in this case that (1) the purchaser is financially able and capable of maintaining the service authorized; (2) the equipment proposed to be used by him meets all requirements; (3) he agrees to conduct operations in the same manner as theretofore authorized; (4) the application is made in good faith; and the further fact that the Commission found initially that “convenience and necessity” required this service, the public interest has been sufficiently considered.

There is substantial merit in Tarry’s contention. The question is a close one; however, the scales are weighted with the departmental construction consistently given over the past 25 years, namely, that “public convenience and necessity” is not involved in consolidations or divisions of specialized motor carrier certificates. The Director of the Motor Transportation Division, employed in that capacity since 1938, testified the Commission has allowed carriers to divide certificates since 1934 and that at the hearing on such an application no proof of convenience and necessity would be required. He further testified neither division nor consolidated orders change in any manner the authority which existed theretofore.

The Commission has acted under the Attorney General’s interpretation of the law as given in 1939 to the effect that the Commission has the discretionary authority to approve the transfer of the portion of the route covered by one certificate to another carrier where two separate certificates of convenience and necessity have come into common ownership and the owner has maintained the services required under each certificate.

The Commission on December 20, 1946, adopted Rule 21 of Procedure and Practice before the Motor Transportation Division which provides as follows:

“Applications for the approval by the Commission of the consolidation or division of common carrier motor carrier certificates, specialized motor carrier certificates, or motor bus certificates, shall be in the form of a written petition directed to the Commission, setting forth the numbers and exact authority authorized by the certificates sought to be consolidated, or divided, and shall contain a brief statement of facts, showing wherein no new operating rights will be created by said consolidation, or division. Each application to consolidate, or divide, shall be accompanied by a statutory filing fee of $25.00.”

Taking into consideration the Attorney General’s opinion, the construction placed upon the statute by the Commission, and the custom and practice adhered to over a period of many years, we are constrained to hold that in acting upon the application here considered, it is not necessary for the Commission to require evidence establishing convenience and necessity.

The judgments of the lower courts are therefore affirmed.

STEAKLEY, WALKER and NOR-VELL, JJ., dissent to this opinion.

STEAKLEY, Justice

(dissenting).

I respectfully dissent in the view that the orders of the Railroad Commission under attack do not comport with the statutory-duties and responsibilities of the Commission under Article 911b, Vernon’s Ann.Civ. St., the Texas Motor Carrier Act.

An analysis of the controlling provisions of Article 911b, and of the orders of the Railroad Commission shown in the record, together with their legal import, is required.

The public policy represented in the Texas Motor Carrier Act was declared by the Legislature in Section 22b of Article 911b, as follows:

“Declaration of Policy. The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public.”

The general duties of the Railroad Commission under Article 911b are strongly stated in Section 4(d):

“The Commission is further authorized and empowered, and it shall be its duty, to supervise and regulate motor carriers in all matters whether specifically mentioned herein or not so as to carefully preserve, foster and regulate transportation and to relieve the existing and all future undue burdens on the highways arising by reason of the use of the highways by motor carriers, adjusting and administering its regulations in the interests of the public.”

The certificates of convenience and necessity involved in this case authorize operations as Specialized Motor Carriers pursuant to Section Sa of Article 911b. Among other things, the Legislature emphatically declared the following in Section 5a (d):

“The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.”

Section 5a (a) authorizes the sale, lease, assignment or transfer of Specialized Motor Carrier certificates, subject to the approval of the Railroad Commission. It is specifically provided, as relevant here, that the Railroad Commission is authorized to disapprove a “proposed sale, assignment, lease, or transfer [which] is not best for the public interest.” The statutory duty of the Railroad Commission to disapprove a proposed sale and transfer of a certificate if not best for the public interest is clear; as a corollary, orders of the Commission approving proposed sales and transfers inconsistent with, and contrary to, the basic purposes and policies of the Motor Carrier Act should be held invalid.

At times prior to 1956, and pursuant to Section 5a of Article 911b, the Railroad Commission issued four certificates of public convenience and necessity authorizing the motor carrier services of four separate specialized motor carriers in transporting household goods, used office furniture and equipment, as follows:

Certificate No. 8848 authorizing the transportation of household goods and used office furniture and equipment from any point within a SO-mile radius of Olney, Texas, to all points in Texas, and vice versa;

Certificate No. 9233 authorizing the transportation of household goods and used office furniture and equipment from all points within a 25-mile radius of Wichita Falls, Texas, to all points and vice versa; excluding the transportation to or from Harris County, Texas;

Certificate No. 16472 authorizing the transportation of household goods, used office furniture and equipment from points within a 50-mile radius of Seymour, Texas, to all points in Texas, and vice versa; and

Certificate No. 16473 authorizing the transportation of household goods and used office furniture and equipment from all points within a 25-mile radius of Henrietta, Texas, to all points in Texas, and vice versa.

Each of these four certificates was issued after the filing of applications therefor, hearing by the Commission of public convenience and necessity, and findings by the Commission pursuant to the three requirements set forth in Section 5a (d), namely, (1) that the services and facilities of the existing carriers serving the territory or any part thereof were inadequate; (2) that there existed a public necessity for such services; and (3) that the public convenience would be promoted by the granting of the applications. Thereupon the public had available — and the Railroad Commission had found such to be needed and required by the public — four separate motor carrier services, the authorized operating territories of which overlapped in certain respects. The overlapping territories afforded the public a choice of multiple carriers subject to call for the specialized motor carrier service of transporting household goods and used office furniture and equipment. For example, a family residing in Wichita Falls moving to another point in Texas could call any one or all of four carriers to obtain the best available service from the standpoint of time and equipment; a family in Seymour could call either or both of two carriers; a family at Henrietta either or all of three carriers; a family at Throckmorton either or both of two carriers. Thus is illustrated the availability of services to the residents of all the cities and towns in the overlapping territories of the certificates. The important consideration at this point is that the Railroad Commission at the time of the issuance of these four certificates was required by the statute to determine and find that the public needed and required these multiple services; otherwise, the Commission was without statutory authority to authorize the services and issue the four certificates.

At various times in 1956 the respondent James H. Jeter, the owner of one of the certificates described above, entered into contracts with the owners of the other three certificates to purchase the operating rights represented thereby, subject to the approval of the Railroad Commission as required by Section 5a(a) of Article 911b. Jeter severally and at different times applied to the Railroad Commission for approval of his acquisition of the three certificates and the Commission did so by appropriate orders. The obvious result was that thereafter only one carrier was available to render the service to the public previously found by the Commission to require four separate carriers. Since the necessary legal effect of Section 5a (a) is to impose on the Commission the duty of disapproving certificate sales not “best for the public interest,” it would seem clear that the order of the Commission approving the acquisition by Jeter of the three certificates — with the resulting reduction in the services available to the public — constituted a finding by the Commission that the public convenience and necessity no longer required the previously authorized separately operating motor services.

There is, then, no question to be raised, and none is raised, of the validity of the action of the Railroad Commission in approving the acquisition by Jeter of the three separate operating rights and the performance thereafter by Jeter of the motor carrier services authorized by the four certificates involved. But the majority has overlooked the legal significance and import of the acts of the Commission in so doing.

We come now to the orders of the Commission under attack in this case. Following approval by the Commission of the acquisition by Jeter of the three certificates, and upon Jeter’s application, the Commission consolidated the four certificates in a master certificate numbered 9233, dated October 21, 1957. Thereafter, and until the events now to be reviewed, Jeter alone held himself out to render the motor carrier services authorized by the master certificate.

On March 28, 1960, Jeter filed an application with the Commission “to create a new certificate to be numbered 18421 which will contain the authority to transport household goods, used office furniture and equipment, from all points within a 25-mile radius of Wichita Falls, Texas, to all points and vice versa, excluding the transportation to or from Harris County, Texas.” Contemporaneously therewith, Jeter and his purchaser also filed application for approval by the Commission of the sale and transfer of the new certificate No. 18421 to the newly purchasing carrier, Alex J. Haffmeis-ter, d/b/a Moore Moving and Storage.

Similarly, on January 30, 1961, Jeter filed an application with the Commission “so as to create a new certificate to be numbered 19121 which will contain the authority to transport household goods, used office furniture and equipment from all points within a 25-mile radius of Henrietta, Texas, to all points in Texas and vice versa.” Contemporaneously therewith, Jeter and his purchaser filed an application for approval of the sale and transfer of the new certificate to the second new carrier, Wayne K. Horton, d/b/a Abbott Moving and Storage.

Similarly, on May 5, 1961, Jeter filed an application with the Commission “so as to create a new certificate to be numbered 19377 which will contain authority to transport household goods, used office furniture and equipment from points within a 50-mile radius of Seymour, Texas, to all points in Texas and vice versa,” and contemporaneously therewith he and his purchaser filed application for approval of the sale and transfer of the new certificate to the third new carrier, R. C. Albert, d/b/a Albert Van and Storage.

The Railroad Commission by several orders approved all of the foregoing applications without hearing evidence upon, or considering, or finding that the services and facilities of the existing carriers were inadequate, or that there existed a public necessity for the new services, or that the public convenience would be promoted by the new services. These are the orders of the Commission brought under attack in the case at bar.

It is my view that the orders are contrary to the express provisions and reasonable intendments of Article 911b, the Texas Motor Carrier Act, and are invalid. It is wholly inconsistent with the duties of the Commission to approve the elimination of previously authorized motor carrier services, with the necessary implied finding that the public convenience and necessity no longer required the separate services, and then, some three years later, permit the original purchasing carrier to establish three new motor carrier services by the sale of the new certificates. It was unquestionably the duty of the Commission to consider the adequacy of the existing motor carrier services at the time of the sale of the three certificates to new carriers, together with the question of whether or not the public convenience and necessity required the new services. It can certainly be said that Jeter, the original purchasing, and later selling, carrier, and not the Commission, has been permitted to control the nature and extent of the household goods and used office furniture and equipment specialized motor carrier services available to the public in the territories involved.

This Court is committed to the proposition that the Railroad Commission is required to consider the public convenience and necessity in Motor Carrier Certificate divisions and sales which change the character of the motor carrier service available to the public, departmental construction to the contrary notwithstanding. We said in Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266:

“The authorities seem to establish the proposition that when no ‘new service’ is established by the mere transfer of a permit, the issues before the Commission are those indicated by the Court of Civil Appeals, namely, good faith, adequate equipment, financial ability and willingness to abide with the law and the Commission’s regulations. However, when the transfer will result in establishment of a substantially different service from that theretofore existing, we think the principle of the Red Arrow re-routing cases is applicable and that an issue of public convenience and necessity arises for the initial determination by the Commission. Railroad Commission of Texas v. Red Arrow Freight Lines, Tex.Civ.App., 96 S.W.2d 735, 738.”

Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78, involved an originally issued common carrier certificate authorizing a through service from Dallas to Rising Star via Fort Worth. The owning carrier sought Commission approval of a division of the certificate so as to authorize two routes — one from Dallas to Fort Worth and one from Fort Worth to Rising Star so as to sell the route from Dallas to Fort Worth to another carrier. The controlling fact was that there would be a difference in the service available to the public resulting from the proposed: division and sale. The Commission originally found that the public convenience and-necessity required a one carrier through service between Dallas and Rising Star; as contemplated by the proposed division and sale, there would be two carriers with segments of the route involving, among other things, an interchange of freight at Fort Worth. In such situation, this Court recognized that the division of a certificate may present such a change in service to the public that the Railroad Commission is required to consider the question of the impairment of service to the public “in order to authorize the division of the existing certificate into two parts and the sale of one of the parts.”

The majority cites L. A. Norris Truck Line v. Railroad Commission, Tex.Civ.App., 245 S.W.2d 746, wr. ref., as strongly persuasive, which, together with departmental construction, is determinative. Norris is not in point. The case merely considered orders of the Commission authorizing the division and sale of that part of an existing specialized motor carrier certificate authorizing the transportation of oil field equipment. Prior to the division and sale there was one carrier authorized to transport oil field equipment, together with other unrelated commodities. After the division and sale there was one carrier transporting oil field equipment and one carrier transporting the remaining commodities. There was no duplication or increase in the service to the public or in the use of the highways. No additional carrier service was created as to any commodity. There was no overlapping of territories or commodities. There was no significant change in the character of the service offered the public.

We cannot say that the statutory authorization for disapproval of certificate sales by the Commission when not in the public interest is meaningless, and that the orders of the Railroad Commission are to be upheld in every instance of approval of certificate division and sales, regardless of the public interest. If we do not say this, then we must say that if certificate divisions and sales are contrary to the public interest, and to the reasonable intendments of the Motor Carrier Act, it is the duty of the Commission to disapprove. Here it appears that the Commission held no hearing and required no evidence upon, or considered, the effect of the certificate divisions and sales on the sales of the existing carriers, or whether the public convenience and necessity required the services authorized by the certificates created anew for purposes of sale.

The denial by the majority here of the application of the principles heretofore announced by this Court rests on the misconception that there was no change in the character of the motor carrier service available to the public when the operations of the one carrier, Jeter, under authority of the consolidated certificate, were converted into operations of four separate carriers under the orders of the Railroad Commission approving Jeter’s divisions and sales, which are the orders under attack here. The majority can reach this view only by disregarding the legal effect of the previous orders approving Jeter’s acquisition of all the certificates and the consolidation of the four certificates into one single service by Jeter, thereby looking to the original four certificates and the separate carrier services thereunder as if there had been no intervening orders of the Commission authorizing the change in the character of the original authorized services from four separate carriers to one. It is at this point that the majority view breaks down.

The majority does not hold that the action of the Commission approving the instant certificate divisions and sales is reasonably supported by the facts as not against the public interest. It holds that the Commission was under no duty to require evidence establishing public convenience and necessity which, under Article 911b, is the essence of the public interest. The fallacy of the majority is in the holding that although additional carriers are created there is “no change effected in the character of the service to be rendered.” This is the crucial point of difference. I maintain that there is a substantial difference in the service to the public between that of the one carrier Jeter from the time of his certificate acquisitions and the services to the public of the four carriers, authorized to operate in the overlapping territories as a result of the three new certificates and the sales of these certificates to the three new carriers. The validity of the approval orders of the Commission under attack should be determined in the light of this fact, and the doctrine of Jackson and Johnson is applicable.

I would reverse the judgments of the courts below and hold that the orders of the Railroad Commission under attack here are invalid.

WALKER and NORVELL, JJ., join in this dissent.

      . Original opinion reinstated in Tex.Civ.App., 244 S.W.2d 887, wr. ref. n. r. e.

      . See Attorney General’s opinion 0-1096 (1939).


source: Caselaw Access Project

author: DICE, Commissioner. WOODLEY, Presiding Judge

license: Public Domain

text:
    James Allen JOSEPH, Appellant, v. The STATE of Texas, Appellee.
    No. 35559.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Rehearing Denied May 15, 1963.

      Baldwin & Goodwin (on appeal only), Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Ken Parker and John R. DeWitt, Asst. Dist. Attys., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for nighttime burglary of a private residence, with a prior conviction of an offense of like character alleged for enhancement; the punishment, ninety-nine years in the penitentiary.

No statement of facts of the evidence adduced upon the trial accompanies the record.

Appellant’s sole contention on appeal is that the jury’s verdict is insufficient to support the judgment rendered thereon by the court.

The indictment charged, in separate paragraphs, that on or about the 24th day of January, 1962, appellant committed the primary offense of burglary of a private residence at night and that prior to the commission of the said offense he was finally convicted in the Criminal District Court of Jefferson County on the 20th day of December, 1957, of the offense of burglary with intent to commit theft, an offense of like character.

Both the issues as to appellant’s guilt of the primary offense of burglary and as to whether he had previously been convicted of the offense of like character were submitted to the jury.

Under the instructions given by the court in his charge, the jury returned the following verdict:

“We, the jury, find the defendant guilty of the offense of Nighttime Burglary of a Private Residence, and we further find that he has heretofore been convicted of a felony less than capital.”

Upon such verdict, judgment was rendered by the court, adjudging appellant guilty of the offense of nighttime burglary of a private residence and repetition and fixing his punishment at confinement in the penitentiary for ninety-nine (99) years. Sentence was pronounced upon appellant in accordance with such judgment.

Art. 1391, Vernon’s Ann.P.C., prescribes the punishment for burglary of a private .residence at night at confinement in the penitentiary “for any term not less than five years.”

Aft. 62, V.A.P.C., provides that upon a subsequent conviction for a felony less than capital the punishment shall be the highest affixed to the commission of such offense in ■ordinary cases.

Under this court’s decision in Brown v. State, 346 S.W.2d 842, the trial court was authorized to fix appellant’s punishment, upon the jury’s verdict, at confinement in the penitentiary for ninety-nine years.

We are unable to agree with appellant that the verdict was insufficient to support the judgment rendered thereon, under Art. 62, supra, because it did not find that appellant had been convicted of an offense of like character as required by the statute. The verdict, when read in connection with the indictment and court’s charge, clearly ■shows the jury’s intention to find appellant ■guilty of the primary offense and that he had been previously convicted of the offense iof like character alleged in the indictment.

The judgment is affirmed.

Opinion approved by the Court.

WOODLEY, Presiding Judge

(dissenting)-

Art. 693, C.C.P. provides that if the plea is not guilty, the jury must find that the defendant is either “guilty” or “not guilty”, “and they shall assess the punishment in all cases where the same is not absolutely fixed by lazv to some particular penalty.”

The appellant was found guilty of the offense of burglary of a private residence at night, the punishment for which is found in Art. 1391, P.C.: “One guilty of burglary of a private residence at night shall be confined in the penitentiary for any term not less than five years.”

The jury also found that the appellant had been previously-convicted of burglary, as charged in the indictment, but assessed no punishment. The trial court received the verdict and entered judgment ordering appellant’s confinement in the penitentiary for a term of 99 years.

The trial court’s action and the majority opinion affirming the 99 year term is supported by the opinion of this Court in Brown v. State, Tex.Cr.App., 346 S.W.2d 842, wherein a 99 year term for a second conviction of assault with intent to rape was affirmed, though the jury assessed no punishment.

As I see it, Brown v. State is clearly wrong and should be overruled rather than followed.

Art. 62, P.C. provides: “If it be shown on the trial' of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

What is the highest punishment affixed by the statute (Art. 1391, P.C.) for burglary of a private residence at night?

It is evident from a reading of the statute that the Legislature has not fixed a maximum term of years or a life term, or any other particular punishment which may be said to” be the highest particular penalty. They have provided simply that the person committing such offense shall be confined in the penitentiary “for any term not less than five years.”

It follows that a term of 99 years is not “absolutely fixed by law” as the “particular penalty” for burglary of a private residence enhanced by a prior conviction for burglary, nor is 99 years the highest punishment “which is affixed to the commission of such offenses [burglary of a private residence at night] in ordinary cases.”

The fallacy of the reasoning in Brown v. State, that a sentence of 99 years being in excess of the expected life span of any defendant, any greater number of years assessed would be without significance, may be demonstrated.

If 99 years is the maximum punishment, any greater number of years that a jury should assess would necessarily be excessive, and the defendant having served the minimum punishment provided for the offense, would be entitled to discharge. Ex parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex parte Lindsey, Tex.Cr.App., 331 S.W.2d 320.

The parole laws contain a provision relating to the parole of a convict who has served one-fourth of the maximum sentence.

The expected life span of a defendant can have no significance. If so, why not say the maximum punishment is 90 years, 80 years, 70 years, or even 60 years, rather than 99 years?

I would overrule Brown v. State, supra, and hold that Art. 62, P.C. does not apply where the statute fails to provide a maximum term or a life term as punishment for the primary offense.


author: MORRISON, Judge.

text:
    John E. TRUMBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 35757.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    Robert F. Salmon, Linden, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of equipment for the manufacture of illicit whiskey, with a prior offense of the same nature alleged for enhancement; the punishment, one year in jail and a fine of $200.00.

Liquor control inspector McVay testified that on the day in question, in company with alcohol tax agents Ehret and Daniels, he approached a spot where he had theretofore observed a whiskey still and saw a colored man whom he did not know and appellant whom he did recognize; that as soon as the two saw him and the other officers they both ran. The colored man was overtaken, arrested, and brought back to the still which was in operation, but appellant was not apprehended until later in the morning. Officer Ehret corroborated Mc-Vay’s testimony; however, he was unable to identify appellant as being one of the two men found at the still but testified that he chased Hardy White until he caught him.

Hardy White, who was also charged with the offense in question, testified that appellant approached him approximately a month prior to his arrest and inquired of him as to a good location in which to put up a whiskey still; that he pointed out the spot where he was later apprehended and helped appellant set up and put into operation the still which was later found by the officers, for which services he was paid by appellant; and that they had made three “runs” before they were arrested.

Appellant and his witnesses testified to an alibi, and he denied any knowledge of the still or White, but admitted the prior conviction.

The jury resolved the issue of alibi against appellant. The sole contention advanced in the brief is the sufficiency of the evidence to corroborate the testimony of the accomplice witness White. While McVay’s testimony placed appellant at the scene of a secluded operating still and showed that he fled upon the arrival of the officers, under the terms of Article 666-23a (8), V.A.P.C., this conviction might be sustained upon White’s testimony alone.

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


author: DICE, Commissioner.

text:
    Curtis DARTEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35745.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault with a motor vehicle; the punishment, two. months in jail and a fine of $300.

A statement of facts in narrative form appears in the record, which is only-approved by counsel for appellant. Not having been agreed to by counsel for both the appellant and the state or approved by-the trial court, as required by Sec. 1, subd. E, Art. 759a, Vernon’s Ann.C.C.P., the same-cannot be considered. Works v. State, Tex.Cr.App., 343 S.W.2d 706.

In the absence of a statement of facts which may be considered, we cannot pass upon the question of admissibility of evidence or the court’s refusal to give a certain requested charge. Freeman v. State, Tex.Cr.App., 352 S.W.2d 833; Hankins v. State, 163 Tex.Cr.R. 553, 294 S.W.2d 850. The record also reflects that no exception, was taken to the court’s refusal to give the requested charge.

All proceedings appear to be regular, and; nothing is presented for review.

The judgment is affirmed.

Opinion approved by the court.


text:
    Nick Peter SALEM, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35679.
    Court of Criminal Appeals of Texas.
    April 17, 1963.
    Rehearing Denied May 22, 1963.
    Howard M. Wayland, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James I. Smith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with a motor vehicle under Article 1149, Vernon’s Ann.P.C.; the punishment, a fine of $250.00.

John Caulkins testified that he and his wife were returning by automobile to their home on the night in question; that before making a left turn he saw an automobile approaching him approximately 500 feet away but that, during the course of his turn, his automobile was hit on its right hand side, causing great damage to it and injuries to his wife. Mrs. Caulkins testified to approximately the same facts, but she stated only that the oncoming automobile was “way off” and that it looked to her like they could make it across.

Accident investigator Quast of the Houston police testified that in more than two years in such capacity he had investigated “over a thousand” accidents involving automobiles; that when he arrived upon the scene he found two damaged automobiles, one a 1960 model Thunderbird and the other a 1961 Ford. The damage to the Thunderbird was “all the way across the front,” while the Ford was damaged on its right side. He testified that the skid marks made by the right front wheel of the Thunderbird measured 132 feet to the point of impact, while the rear wheel skid marks measured 92 feet, and that the accident occurred in a business and residential section of the city where the speed limit was 30 miles per hour. He identified appellant as the driver of the Thunderbird and described the distance each vehicle had traveled after the impact.

The injuries sustained by Mrs. Caulkins were established by medical testimony.

Appellant did not testify in his own behalf hut called Jack Laws, who was riding in the Thunderbird with him and who testified that he and appellant had just left the Top Hat Lounge some 400 yards away from the scene of the accident, that he leaned down to light a cigarette, heard appellant cry out “Don’t turn,” looked up and saw the lights of another automobile, and then the collision occurred.

Officer Quast was called in rebuttal and testified that appellant had told him at the scene that he and Jack Laws had been at LaMil Lounge, which was more than a quarter of a mile away, and that appellant had asked, “What happened?” and Jack replied, “I don’t know, you were driving.”

Appellant’s motion to quash the information because it alleged the operation of the automobile in excess of 30 miles per hour in the business and residential district was “unlawful, imprudent and unreasonable” instead of “greater rate of speed than reasonable and prudent under the conditions then existing” as suggested in Eaves v. State, Tex.Cr.App., 353 S.W.2d 231, is without merit.

Appellant’s principal contention is that the court erred in permitting Officer Quast to express his opinion from the nature and length of the skid marks, damages sustained by each automobile, and the distance each moved following the impact, that the Thunderbird driven by appellant was traveling at a rate which he “estimated” to be 70 miles per hour.

Reliance is had upon the holding of this Court in Wallace v. State, 143 Tex.Cr.R. 596, 160 S.W.2d 256. In Wallace, the witness was a member of the Highway Patrol “with three and one-half years experience in the enforcement of the traffic laws in particular and all kinds of criminal laws in general.” It is evident from the opinion in Wallace that the nature and length of the skid marks were not shown. The opinion in Wallace concludes with these observations :

“It is not intended hereby to indicate a condition which might exist or qualifications which might be given making admissible the conclusion which a witness may give as to the speed of an automobile. Circumstances are too varied and too many factors may present themselves for consideration. It is sufficient to say and we do not intend to go further than to hold herein that under the facts testified to by the witness, under all the circumstances of this case, he has not shown himself to be in position to reach a conclusion as to the speed of appellant’s car so definitely and to aid the jury beyond what the physical facts of the case, most of which appear to be without dispute, would do.”

We are not unmindful of the fact that this question has been discussed in many cases. Judge Norvell in Union Bus Lines v. Moulder (Tex.Civ.App.), 180 S.W.2d 509, wrote a comprehensive opinion which has recently been followed by the Third Court of Civil Appeals in Flores v. Barlow, 354 S.W.2d 173, but in each of these cases, as in Wallace, the nature and length of the skid marks were not present.

While it is true that Officer Quast did not in this case explain the “scientific methods” he employed in arriving at his estimate, as the witness Probst also failed to do in Moulder, we do have the fact that he had investigated more than a thousand automobile accidents and gave the exact length of the skid marks. These factors, we have concluded, distinguish this case from those discussed above, and the trial court did not err in holding Quast to be an expert having knowledge superior to that possessed by the ordinary juror whose opinion as to speed in the light of the facts available to him was admissible. His experience as outlined above made a prima facie showing that he was an expert, and appellant made no effort to rebut this showing. Rankin v. Joe D. Hughes, Inc. (Tex.Civ.App., error ref. want of merit), 161 S.W.2d 883, will support this conclusion.

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


text:
    Verna WADE, Appellant, v. The STATE of Texas, Appellee.
    No. 35441.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied May 15, 1963.
    Musslewhite & Hallmark, by R. C. Mus-slewhite, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is offering a bribe to a juror; the punishment, 2 years.

One Thelma Whitaker was a member of a jury in a civil suit being tried in the District Court of Nacogdoches County with the Honorable James H. Moore presiding. During the course of the trial, Judge Moore declared a mistrial “because certain jury tampering had been going on” and immediately questioned each member of the jury separately as to whether anyone had attempted to talk to them about the case. While discussing the matter with Mrs. Whitaker, he told her that it was her duty to tell him if anyone had contacted her about the case and that if such had occurred and she failed to tell him about it she .might be an accomplice. She answered at that time that no one had said anything to her about the case and that she had not been contacted about it. She later gave as her reason for telling the judge an untruth that “one of my best friends was involved and I was trying to protect her.”

Sometime lated that day, Mrs. Whitaker returned to the judge’s chambers and told him “that I hadn’t told him the truth the first time,” and the judge advised her that the grand jury would probably want to talk to her about the matter. When the grand jury convened, Mrs. Whitaker identified appellant as being the person who had offered her a bribe. On the same evening after Mrs. Whitaker was advised by the judge that a grand jury investigation would probably take place, she told appellant that she had reported the offer of the bribe to the judge but had not given him appellant’s name and would not do so “unless she had to.”

Suffice it to say that the State’s case is made to depend upon the testimony of Mrs. Whitaker, and we are met at the outset with the question of whether Mrs. Whitaker was an accomplice witness whose testimony must be corroborated. Over proper objection, the trial court refused to submit the question of whether Mrs. Whitaker was an accomplice witness.

In construing Article 718, Vernon’s Ann. C.C.P., which provides that a conviction may not be sustained upon the uncorroborated testimony of an accomplice, it has been said, “The point most often misunderstood by the bar is that the word ‘accomplice’ in the above statute has been held to mean ‘principal, accomplice or accessory.’ No matter what category the witness may fall into, the same degree of corroboration is required.”

Mere concealment of knowledge that, the crime has been committed does not make the person having such knowledge an accomplice witness. Steen v. State, 131 Tex.Cr.R. 532, 100 S.W.2d 109.

The mere fact that a witness denied knowledge of the crime does not make him ‘an accomplice witness. Tipton v. State, 126 Tex.Cr.R; 439, 72 S.W.2d 290; Cantu v. State, 141 Tex.Cr.R. 99, 135 S.W.2d 705; Alva v. State, 166 Tex.Cr.R. 450, 314 S.W.2d 843; Franks v. State, 130 Tex.Cr.R. 577, 95 S.W.2d 128.

In other words, as stated in 24 Tex.Jur. 2d, Sec. 690, p. 312, the witness is not to be deemed an accomplice simply because he knew of the crime but failed to disclose it or even concealed it.

The facts before us here may be summarized.

1. The witness Whitaker did more than fail to disclose or conceal the attempt to bribe her. She falsely stated to the judge who was investigating the matter that no one had said anything to her about the case and did so for the purpose of protecting appellant from apprehension and prosecution.

2. After it was made known to her that a grand jury investigation was imminent, she informed appellant of such fact and that she would not disclose appellant’s identity “unless she had to.”

Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853; McGoodwin v. State, 134 Tex.Cr.R. 231, 115 S.W.2d 634 and Martin v. State, 149 Tex.Cr.App. 226, 193 S.W.2d 219, support the conclusion that the above facts demonstrate that Mrs. Whitaker was an accomplice witness as a matter of law because of the aid which she gave appellant in avoiding apprehension even though such aid was effective for only a short period of time. Parrish v. State, 134 Tex.Cr.R. 187, 114 S.W.2d 559.

Because of the failure of the trial judge to instruct the jury that the witness Whitaker was an accomplice witness whose testimony required corroboration, the judgment is reversed and the cause remanded.

       “The Law of Principals, Accomplices and Accessories,” Vol. I, Y.A.P.C., p. xiii.


author: WOODLEY, Presiding Judge.

text:
    Bob G. POINTER, Appellant, v. The STATE of Texas, Appellee.
    No. 35514.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    Rehearing Denied May 15, 1963.
    Orville A. Harlan, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, 5 years.

The appellant was positively identified as one of two men who drove to the Tambo-rello Grocery Store; parked at the side, leaving the motor running; entered the store and robbed Joseph Tamborello of more than $300.

Tamborello and his wife testified that appellant held a pistol at Tamborello’s head and threatened repeatedly to kill him. R. E. Robertson testified that appellant was one of the two men he saw drive up, park and enter the store and later come out running, one with a sack in his hand, and drive away hurriedly.

Appellant’s confession was introduced in evidence following a hearing in the jury’s absence as to its admissibility.

The appellant testified in the jury’s absence, and later before the jury. He repudiated the confession and denied that it was voluntarily made and signed, as the state’s witnesses testified it was. The issue raised was submitted to the jury in a charge to which there were no objections.

Appellant’s testimony and that of his sister and mother raised the defense that he was at another and different place at the time and was not and could not have been present when the robbery was committed.

The court charged on the defense of alibi and instructed the jury to acquit if the evidence raised in their minds a reasonable doubt as to the presence of appellant at the place where the offense was committed at the time of the commission thereof.

No objection was offered to that part of the court’s charge.

It is evident that the jury resolved the issues against the appellant and the evidence sustains their findings.

Numerous informal bills of exception are found in the record, only one of which has sufficient merit to warrant discussion. It relates to the overruling of the motion of appellant’s employed counsel, John Cutler, filed three days before the date of the trial, requesting that the court relieve him as attorney of record in the cause.

The motion alleged that the appellant had not furnished him the names of witnesses he said could testify in his behalf, and also alleged that due to his recent experience with the appellant’s brother and family, in another case, he was of the opinion that the proper client-attorney relationship did not exist between himself and his client, and that he did not desire to be the cause of any obstruction of justice.

Hearing was had on the motion after the state had announced ready for trial and, the motion being denied, a motion for continuance was dictated “ * * * in order that the defendant might be represented by some other counsel of his choice rather than the attorney that has been representing him. * *- ⅜ ”

The record shows that Mr. Cutler had been employed to represent the appellant and had obtained a continuance when the case was called for trial in February 1961.

It is evident that the granting of Mr. Cutler’s motion in October 1961 would have resulted in a further continuance, and we gather from his testimony that such was the purpose of the appellant in agreeing that the motion should be sustained.

The record further shows that the appellant had used no diligence to secure other counsel or to prepare for trial before Mr. Cutler’s motion was filed.

The trial court did not abuse his discretion in denying Mr. Cutler’s motion to withdraw as counsel or in overruling appellant’s oral motion for continuance.

We observe further that the attorney named by appellant as one that he felt sure was going to represent him had not been consulted.

Also, the court extended the time for filing and ordered the court reporter to prepare the statement of facts, and appointed counsel to represent the appellant on appeal when he became indigent and was unable to obtain counsel. The statement of facts approved by the trial judge was filed in the trial court on January 18, 1963.

No error appearing, the judgment is affirmed.


text:
    John Anthony PATELLA, Appellant, v. The STATE of Texas, Appellee.
    No. 35630.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Rehearing Denied May 15, 1963.

      John Boyce, F. T. Gauen, Jr., Dallas, Robert C. Benavides, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Ed Davis, Sam Paternostro and Emmett Colbin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of amphetamine; the punishment, six months in jail and a fine of $500.00.

Appellant was a paraplegic in that he was paralyzed from the waist down and had been for 12 years. He was known to Officer Morgan. At 8:00 A.M. on the day in question, Morgan observed appellant’s automobile, which was equipped with special devices enabling him to operate it by hand, improperly parked at a curb in such a manner that it blocked traffic on one side of the street, and saw appellant slumped over the steering wheel. Morgan brought his police car to a halt and, in company with two other officers who arrived upon the scene, approached appellant’s automobile “to try to determine what was wrong.” By the time they got there, appellant was lying down in the front seat, and Morgan and his fellow officers shook him to arouse him but were unable to ascertain the cause of appellant’s condition because they received only mumbled and incoherent responses. The officers smelled no alcohol on appellant’s breath but observed that his eyes were glassy and the pupils in them were large, and in the opinion of the officers appellant was under the influence of drugs. As two of the officers lifted appellant out of his automobile, they saw a “bisquit” shaped tablet lying on the seat where appellant had been lying. After placing appellant in one of the squad cars, a search of appellant’s automobile revealed a number of bottles of tablets, some with prescriptions thereon and others without. This prosecution is based upon the finding of an unlabeled bottle under the driver’s seat containing 254 white tablets which were shown by the testimony of Dr. Mason to contain 9.49 milligrams of amphetamine per tablet.

Upon arrival at the jail, appellant “was swinging his arms around and waving at everybody,” and $830.00 was found on his person.

Appellant testified that he had secured several prescriptions for the amphetamine tablets from a Dr. Magee, removed the tablets from the pharmacists’ containers and put them all into one large unmarked bottle; that at one time he had had as many as 400 tablets in his possession and that he did this in order to be sure he would have a sufficient supply to provide for his needs during the course of a long trip. Dr. Magee was not called as a witness.

The jury resolved what conflict there was in the evidence against appellant, and we find it sufficient to support their verdict.

We shall discuss the questions raised in the brief prepared by appellant’s counsel on appeal.

His principal contention is that the search of appellant’s automobile was unlawful and points out that Officer Morgan had .received no information prior to approaching appellant’s automobile that he was violating any law. The objections to the search made by appellant’s trial attorney were scant and tardy, but we will discuss the question as if they had been properly made. We are not here dealing with the arrest of a person the officer suspects was committing a violation of the law, as was the situation in the cases cited by appellant,'but have a peculiar situation which, because of its nature, requires a different approach. Here, we have a man who had been partially paralyzed for 12 years, was known to the officer, who must of necessity have known of his physical impediment, slumped over the steering wheel of his automobile improperly parked at the curb. The officer approached appellant’s automobile “to try to determine what was wrong,” and during his efforts to communicate with appellant he observed several conditions which led him to conclude that appellant was under the influence of some form of “drugs.” Upon removing appellant from his automobile, the officer observed a peculiar tablet lying on the seat where appellant had been lying. These facts, we conclude, authorized the search of appellant’s automobile.

Appellant next contends that the court erred in failing to grant a mistrial when Officer Morgan, while being questioned concerning the different bottles containing different kinds of tablets (some bearing pharmacists’ labels and some not),, described one of the bottles as follows: "If I remember correctly, it was a white' bottle with a yellow or milk colored top;, it is a bottle similar to those used in pharmacies for the dispensing of narcotics.” Upon objection, Officer Morgan’s answer was promptly withdrawn from the jury’s-consideration.

The rule in McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987, relied upon by-appellant, can have no application here because in that case we were discussing cross-examination of reputation witnesses which, implied that accused had in fact been guilty-of another crime at another time. Suchi was also the situation in Priest v. State, 162 Tex.Cr.R. 66, 282 S.W.2d 390. In the-case at bar, we have one search which, if lawful, rendered the entire fruits of the-search admissible. Hemmeline v. State, 165 Tex.Cr.R. 583, 310 S.W.2d 97.

Appellant’s last complaint is of a., portion of the argument as follows:

“Under these facts, I don’t believe that you as reasonable people can find anything else except guilty in this case. This man is crippled, and I am going to recommend a punishment to you later in-which we think we have taken this into consideration. I don’t think a wheelchair should be a complete defense to-this drug law. What have you done if you make it like that? That is when, you get all the pushers on wheels.”

The unusual number of tablet’s found in appellant’s possession would refute his claim that he had them for his own use, but prosecutor did not in this argument imply that appellant was a “pusher” but merely told the jury the effect of a verdict of innocence in this case upon others in the community, .and prosecutor properly pointed out to the jury the effect of their verdict upon law •enforcement generally.

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


author: BELCHER, Commissioner.

text:
    Thomas Odell JENKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 35608.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Rehearing Denied May 15, 1963.
    G. C. Harris, Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

It is undisputed that the appellant was driving a truck upon a public highway at the time and place alleged.

Officer Duran testified that he saw the appellant immediately after he had stopped his truck, smelled the odor of alcohol on his breath, heard him talk and saw him walk, and from appellant’s manner of driving the automobile which he observed, he expressed the opinion that the appellant was intoxicated. He further testified that the appellant told him he had drunk two beers; and he had some whiskey, “but I don’t think that’s enough to make a man too drunk to drive”; and that under the seat of the truck he found a one-half pint bottle less than half-full of whiskey.

Testifying in his own behalf, the appellant denied that he was intoxicated but said he had bought one-half pint of whiskey from which he had taken one drink when the officer stopped him. He also denied staggering or telling the officer he had drunk two beers.

Error is urged because of the refusal of the court to grant a motion for mistrial and later to charge the jury not to consider as evidence the whiskey seized by Officer Duran which he had found under the seat of the truck, on the ground that he failed to give the appellant a receipt for it in accordance with the provisions of Art. 323, C.C.P. No objection was made when the whiskey was introduced in evidence, hence no error was shown. Wyatt v. State, 162 Tex.Cr.R. 134, 382 S.W.2d 392. However, the evidence shows a legal arrest and therefore the search of the truck incident thereto was valid. Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894. The whiskey being lawfully obtained, the failure of the officer obtaining it to issue a receipt therefor would not render such evidence unlawful or inadmissible. Garcia v. State, 164 Tex.Cr.R. 273, 298 S.W.2d 831; Jones v. State, 169 Tex.Cr.R. 175, 332 S.W.2d 560. Furthermore, the appellant cannot complain because he admitted possession of the whiskey by his own testimony. Hudson v. State, 170 Tex.Cr.R. 400, 341 S.W.2d 448.

Appellant complains that the following paragraph in the main charge, which reads:

“If you believe from the evidence or have a reasonable doubt thereof that the defendant Thomas Odell Jenkins, on the occasion in question was not under the influence of intoxicating liquor you will acquit him.”

over-emphasized the theory of the state’s case, shifted the burden of proof, and was a comment on the weight of the evidence.

This instruction not only applied the law of reasonable doubt but gave the converse of the state’s case as submitted in the main charge. No error is presented. Art. 705, Vernon’s Ann. C.C.P.; McCracken v. State, 168 Tex.Cr.R. 565, 330 S.W.2d 613.

It is contended that the trial court erred in permitting the state’s attorney, in his argument, to tell the jury that the appellant had violated the law by bringing whiskey from Oklahoma into Texas and was unlawfully transporting it, over his objection that it related to extraneous matters for which he was not on trial and was prejudicial.

The appellant testified that he bought the whiskey in Oklahoma and had it in his truck when the officer stopped him. If improper, the argument was not reversible error. The minimum penalty was assessed.

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

Opinion approved by the Court.


text:
    Ex parte David Charles FERGUSON.
    No. 34861.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Rehearing Denied May 15, 1963.
    Charles William Tessmer, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Phil Burle-son, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking as excessive the sentence in Cause C-5125-J pronounced in Criminal District Court No. 3 of Dallas County on November 13, 1958.

Disposition of the petition has been delayed at appellant’s request to await his appeal from a nunc pro tunc proceeding to correct the judgment. Such appeal was this day decided and the judgment was affirmed. Ferguson v. State, Tex.Cr.App., 367 S.W.2d 695.

The indictment in the case charged the offense of robbery by assault, and the trial judge has certified to this Court that the petitioner, upon his plea of guilty, was found guilty of that offense and that the recitation in the judgment and sentence showing the offense to be assault with intent to commit robbery was the result of clerical error.

The record in the nunc pro tunc proceeding confirms the court’s certification.

The sentence, under these facts, is not excessive or void. See Ex parte Sisk, 167 Tex.Cr.R. 18, 317 S.W.2d 750, certiorari denied 361 U.S. 844, 80 S.Ct. 95, 4 L.Ed.2d 82; Johnston v. State, 168 Tex.Cr.R. 79, 323 S.W.2d 449.

The relief prayed for is denied.


author: WOODLEY, Presiding Judge. McDonald, judge.

text:
    Clifford Arvin HART, Appellant, v. The STATE of Texas, Appellee.
    No. 35476.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied May 1, 1963.

      No attorney on appeal, George T. Thomas, Big Spring, on rehearing, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is operating a motor vehicle upon a public road while intoxicated; the punishment, 30 days in jail and a fine of $100.

No brief has been filed on appellant’s behalf.

The undisputed evidence, including the testimony of the appellant, shows that he was driving an automobile on Highway 80 in Hudspeth County at a high rate of speed and was stopped after he passed a Highway Patrol car.

Deputy Sheriff Stubbs, one of the arresting officers testified that appellant was unsteady on his feet; had the odor of alcohol on his breath and that “he didn’t talk normal as a person should.” He expressed the opinion that appellant was intoxicated.

Patrolman Dennis Palmer testified that when the appellant got out of the car “he was real unsteady on his feet, and he leaned against the car for support. * * * I could smell the odor of some alcoholic beverage on his breath, quite strong, and I formed the opinion that the man was intoxicated.”

Other evidence introduced by the state showed that a partially full fifth of whisky was found under the right hand seat of the car. It was also shown that a sample of urine taken from the appellant, and tested for alcohol content, contained .30% alcohol by weight and that any alcohol concentration above .125% in a urine specimen indicates intoxication.

The appellant testified that he poured out part of a bottle of coke and poured in whis-ky and “drank along on it”, and his companions in the car did likewise; that after he drank his he drank “a swallow or so” from someone else’s. He further testified that he had been drinking the night before.

It is apparent that the appellant believed that he was not intoxicated, despite his having consumed some whisky. When he was advised that he was to be charged with D.W.I. he volunteered to take a test to prove that he was not. Unfortunately the test showed intoxication, again demonstrating that the consumer of intoxicating liquor is apt to be a poor judge of his condition of sobriety.

Appellant filed motion for continuance because of the absence of Paul Horn, one of his companions at the time of his arrest. The witness was in the county when the appellant was released from jail, but was not served with a subpoena. He resides in the State of New Mexico and, according to the affidavit attached to appellant’s motion for new trial, his only reason for failing to appear at the trial was that he forgot.

The testimony which the witness averred he would have given follows closely the appellant’s version of his condition of sobriety and his consumption of whisky. The trial judge was warranted in concluding that, had a new trial been ordered and had the witness remembered to appear, as he says he promised, a different result would not likely have been reached.

We conclude that the record does not show an abuse of discretion on the part of the trial judge in overruling the appellant’s application for continuance and for new trial. Hoover v. State, 107 Tex.Cr.R. 600, 298 S.W. 438.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

While the appellant might not have been expected to follow the procedure suggested in our original opinion and to have had a subpoena issued for the witness Paul Horn at the time of his (appellant’s) release from jail, we do not think that appellant did all he could have done toward exercising necessary diligence in securing the attendance of the witness Horn. Appellant apparently failed to impress upon this witness the urgency and need for his testimony, since the witness forgot to appear.

In reviewing the record before us, we ob-sérve that the affidavit of the absent witness, Paul Horn, attached to appellant’s amended motion for new trial, states:

“On the 17th day of December, 1961, I was with Clifford A. Hart when he was arrested * * * near Sierra Blanca, Texas and charged with driving while intoxicated.
* ⅜ ⅜ ⅝ ?Jc *
“I worked until noon on the 17th of December, 1961, and when I got off ■Clifford Hart was waiting for me

The information, filed on December 13, 1961, charged and the evidence reflects that the offense was committed on December 9, 1961.

The discrepancy in the dates shown is perhaps an honest mistake of fact, or a clerical error, but yet it tends to create doubt and to further exemplify the forgetful nature of the witness Horn and, in our judgment, does bolster the conclusion of the trial judge in reaching the decision he did.

Remaining convinced that this cause was correctly disposed of upon original submission, the motion for rehearing is overruled.


text:
    Billy J. ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 35244.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    Rehearing Denied May 22, 1963.

      Billy J. Adams, in pro. per.
    Frank Briscoe, Dist. Atty., Gus J. Zgourides and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary, with three prior convictions for felonies less than capital alleged for enhancement; the punishment, life imprisonment under Art. 63, Vernon’s Ann.P.C.

The state’s proof shows that during the early morning hours of November 27, 1961, a building occupied by Laufman Jewelry Store, at 1138 Travis in the city of Houston, was broken into and burglarized. Entry into the building was gained by breaking a window. In the burglary, five men’s diamond rings and two pair of women’s earrings were taken.

On December 8, 1961, appellant was involved in a major automobile accident in the city of Houston and was arrested near the scene by accident-investigator R. A. Payne after the officer had determined that appellant was either under the influence of something intoxicating or under the influence of drugs. A search of appellant incident to his arrest by Officer Payne revealed that he had on his person some pills, a pistol, and a box containing a man’s gold diamond ring. On December 12, 1961, while being questioned by Officer Martin, who at the time had no knowledge of the burglary, relative to the ring found on his person, appellant orally confessed to the officer that he had burglarized the jewelry store. Appellant thereupon accompanied Officer Martin to the store and showed him how he had gained entry into the building and had taken some rings from a display window. In the conversation, appellant told the officer that he had disposed of two of the rings taken in the burglary by selling them to two named individuals. With1 this information, the officers went to the two persons named, and recovered the rings which appellant had delivered to them. The three rings recovered by the officers were identified by one of the jewelry store owners as rings taken from the store in the burglary.

The three prior convictions were stipulated.

Appellant did not testify or offer any evidence in his behalf.

The record presents no objections to the court’s charge, and there are no formal bills of exception.

We have examined the informal bills of exception appearing in the record and find no reversible error.

Appellant’s contention, urged in the trial court, that a fatal variance exists between the allegations in the indictment that the house burglarized was occupied and controlled by William Laufman and proof that the house was the partnership property of William Laufman and his father is without merit. By statute, Art. 402, Vernon’s Ann. C.C.P., when property is owned in common or jointly by two or more persons, either as general or special owners, ownership may be alleged to be in all or either of them. Such provision of the statute is applicable to partnership property. Davis v. State, 63 Tex.Cr.R. 453, 140 S.W. 349.

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

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Clyde W. SEWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35472.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Rehearing Denied April 24, 1963.
    Second Rehearing Denied May 22, 1963.

      No attorney on appeal, Orville A. Harlan, Houston (on rehearing only), for appellant.
    Frank Briscoe, Dist. Atty., Houston, Gus J. Zgourides and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary, with a prior conviction for felony theft alleged for enhancement ; the punishment, 12 years.

The witness Schafer, an employee of a detective agency, testified that, while on patrol at 4:00 A.M. on the night in question, he observed the rear door of a barber shop closing; that he brought his automobile to a halt and ordered whoever was in the barber shop to come out; that appellant and one Jack Broussard appeared with their hands up; and that he detained them at the shop until the police arrived in answer to his call.

Officer Walden testified that, when he arrived at the shop, he found a screwdriver which fit certain indentations made in the rear door where it had been forced open and that he took appellant and Broussard into custody.

His testimony was corroborated by that of the owner of the shop. The prior conviction was established.

Appellant did not testify but called W. L. Cole and B. W. Tilotta, both inmates of the Texas House of Corrections, who testified that they had burglarized the barber shop in question at 1:00 A.M. but had fled the scene when they thought they saw the police.

Appellant also called one Charlotte English, who testified that she had spent the evening in question with appellant and a man named Jack and that the lights on an automobile in which they were traveling went out near the barber shop in question. She stated that appellant and Jack went to look for a telephone but were apprehended by a man armed with a pistol and a flashlight, were conducted up an alley and later carried away in a patrol car.

Officer Walden was recalled in rebuttal and testified that following the arrest he drove the automobile parked near the scene, and to which he had been directed by appellant and Broussard, to the police station, that the lights worked perfectly and that he did not see Charlotte English in the vicinity.

The jury resolved what conflict there was in the testimony against appellant, and we find the evidence sufficient to sustain the conviction.

No brief has been filed on appellant’s behalf. No formal bills of exception appear in the record, and we perceive no error reflected by the informal bills.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

In his motion for rehearing appellant contends that we should reverse his conviction because the trial judge denied his request that the witness, Officer E. R. Thaler, he required to produce his offense report. Reliance is had upon Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467, and upon Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97.

Officer Thaler, having testified for the state, was asked on cross-examination whether he had refreshed his memory from his offense report, and he answered that he had. He was asked if he had the report with him and he said he did not, but that his partner probably had it out in the hall.

It was shown that the witness had not used the report in the courtroom, and that appellant’s request to see it “if he did refresh his memory before he came in here” was denied, and he excepted.

The trial court made the offense report requested a part of his qualification to appellant’s informal bill of exception.

Under the rule in Gaskin v. State, 353 S.W.2d 467 (which parallels the Jencks rule in Federal Court) failure to require the production of a prior statement of the witness is not necessarily a denial of due process. The error may he harmless. Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931; Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; Perdue v. State, 171 Tex.Cr.R. 332, 350 S.W.2d 203; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528; Hughes v. State, Tex.Cr.App., 358 S.W.2d 386; Rodriguez v. State, Tex.Cr.App., 360 S.W.2d 406; Aguillar v. State, Tex.Cr.App., 362 S.W.2d 111.

For similar holding under the Jencks Act, 18 U.S.C. § 3500, see Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304.

We find no such conflict between the testimony of the witness and his offense report, or such omission in the latter, as would warrant the conclusion that he was prejudiced in not having the report furnished him for cross examination.

Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97, does not support appellant’s claim for reversal. The rule found in that case applies only where the statement requested has been used by the witness while testifying.

The two rules should not be confused.

As has been stated, the failure to produce a prior statement of a witness which has not been used in some way before the jury by which its contents became an issue, will not result in reversal unless injury is shown or the defendant is deprived of the opportunity to show injury.

Reversal will result, however, without any showing of injury for denial of the defendant’s timely request or demand that he be permitted to inspect any document, instrument or statement which is used in some way before the jury by which its contents becomes an issue, such as used by the witness to refresh his memory (Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Green v. State, 53 Tex.Cr.R. 490, 110 S.W.2d 920, 22 L.R.A.,N.S., 706; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166); or exhibited or read from or used to question the witness in the jury’s presence (Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464; Bailey v. State, Tex.Cr.App., 365 S.W.2d 170 (photograph exhibited before the jury).

The appellant is not shown to have been denied the right to inspect a statement or document that was used before the jury, and has shown no harm or injury resulting from the denial of the prior statement of the witness for use on cross examination.

Appellant’s motion for rehearing is overruled.


author: CHADICK, Chief Justice.

text:
    The AKIN FOUNDATION, Appellant, v. The TRUSTEES FOR the PRESTON ROAD CHURCH OF CHRIST, Dallas, Texas, Appellee.
    No. 7477.
    Court of Civil Appeals of Texas. Texarkana.
    April 23, 1963.
    Rehearing Denied May 14, 1963.

      Paul M. Branch, Kilgore, R. L. Whitehead, Longview, for appellant.
    Roy C. Coffee, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a suit for declaratory judgment. The trial court entertained the action but denied the specific relief sought. The judgment is reversed and the case remanded with instructions.

The Akin Foundation, as plaintiff, sued the Trustees for the Preston Road Church of Christ, Dallas, Texas, as defendants, in a District Court of Gregg County under the provisions of the Uniform Declaratory Judgment Act, Title 46a, Art. 2524-1, V.A. T.S., to obtain a construction of paragraph 12 of the Will of John W. Akin, deceased. At the conclusion of a non-jury trial, judgment was entered denying the declaratory relief requested. The Akin Foundation gave appropriate notice and has perfected an appeal.

Paragraph I of The Akin Foundation’s trial pleading alleges that The Akin Foundation “is a corporation created and existing under and by virtue of the laws of the State of Texas for benevolent and charitable purposes,” etc. In paragraph III it alleges that the Will of John W. Akin contains the following provision:

“12. Among the items of community property belonging to the community property and estate of my wife, NELLIE AKIN, and me are the following undivided oil, gas and mineral interests in tracts or parcels of land situated in Gregg County, Texas, parts of the W. H. Castleberry survey, G. A. Thompson survey and W. G. Painter survey, under existing oil, gas and mineral leases in production as follows:
“(Description of the several tracts of land omitted as immaterial to the question to be discussed)
“The fractional interests above listed represent percentage of the 8/8ths production as royalty free of cost of production. My community interest in the above mentioned and described undivided oil, gas and mineral royalty interests (being exclusive of my wife’s community interest therein,) I give and bequeath unto The Akin Foundation, a corporation created and existing under and by virtue of the laws of the State of Texas for benevolent and charitable purposes, with office and place of business at Longview, Texas, for use thereof and the income and accruals therefrom, in accord with provisions of the charter and bylaws of said corporation, and with the additional stipulation that the same be disbursed, used and expended wholly within the State of Texas. This request is made subject to the further stipulation that in any event that The Akin Foundation cannot have the full possession and use of all of this bequest and all rights incident thereto, or in the event of any manner of termination or forfeiture on the part of The Akin Foundation in the future, then and in any of such events, I desire and direct that the duly appointed and acting trustees for The Preston Road Church of Christ, Dallas, Texas, and their successors in office, have and hold for the use and benefit of The Preston Road Church of Christ, Dallas, Texas, all right, title and interest in the property included in this bequest which does not pass to or is terminated or forfeited by The Akin Foundation, so that there will be no reversion or remainder to me, my heirs, executors, administrators or assigns. It is stipulated that in the event any one or more of said above mentioned leases for any reason become cancelled and forfeited, then and in that event a like undivided interest in and to the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall be owned by the said The Akin Foundation as its respective interests may appear; to have and to hold the same unto the said The Akin Foundation, its assigns, successors and/or legal representatives, forever.”

Paragraph IV alleges distribution of property described in Paragraph III by the executrix to The Akin Foundation. Then paragraph V is the following allegation:

“The Plaintiff alleges that the phraseology employed in the above quoted Paragraph 12 of the will of John W. Akin, deceased, has rendered questionable and cast a cloud upon Plaintiff’s title in that such language raises the question as to whether the bequest to Plaintiff is upon a condition subsequent, that is, whether the disbursements of income and accruals outside the State of Texas will operate as a forfeiture of Plaintiff’s right, title and interest in the property included in the bequest.”

The prayer is that The Akin Foundation have judgment construing paragraph 12 of the will, previously quoted, and removing the cloud from its title, etc. A description of the defendant’s answer and its nature is omitted because it becomes unimportant for reasons to be discussed.

The Akin Foundation’s pleadings, the gravamen of its action, and the relief sought places the suit squarely within the scope of Art. 4412a Added Acts 1959, 56th Leg. p. 203, Ch. 115. Among other things, Section 2 of the article makes the Attorney General of Texas a necessary party to an action to construe the provisions of any instrument, testamentary or otherwise, affecting a charitable trust. In Section 4, the article declares that a judgment rendered in a suit of this nature is void unless the Attorney General is a party to it. The act as a whole leaves no doubt of the Legislature’s intention to make the Attorney General an indispensable party to litigation within the ambit of Art. 4412a.

The judgment, and the judgment rolls, disclose the absence of the Attorney General as a party to this action. It follows that the judgment is a nullity, absolutely void because of the absence of an indispensable party, as well as being made so by positive Legislation enactment. Fundamental error of which this court must take notice is apparent. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979.

Such cases as Williams v. Steele, 101 Tex. 382, 108 S.W. 155; Jones v. Bass (Tex.Com.App.) 49 S.W.2d 723; Henn v. City of Amarillo, 157 Tex. 129, 301 S.W.2d 71 (Footnote 2); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, confirms the authority of this court to exercise appellate jurisdiction to the extent of declaring the invalidity of the judgment and setting it aside.

The implication of Mason v. Mason, Tex., 366 S.W.2d 552, 6 Sup.Ct.Journal 365 and consideration of Adams v. Bankers’ Life Co., Tex.Com.App., 36 S.W.2d 182 (op. appvd.) and Bonner v. City of Texarkana, Tex.Civ.App., 227 S.W. 505, N.W.H., indicate that the proper disposition of the appeal is reversal and remand, with direction that The Akin Foundation have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. It is so ordered.


author: MURRAY, Chief Justice.

text:
    EDINBURG THEATRES, INC., Appellant, v. C. A. RICHTER et al., Appellees.
    No. 14084.
    Court of Civil Appeals of Texas. San Antonio.
    April 17, 1963.
    Rehearing Denied May 15, 1963.
    L. A. Ashcroft, McAllen, A. B. Haston, San Antonio, for appellant.
    Henrichson & Bates, Edinburg, Jones & Flores, McAllen, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Edinburg Theatres, Inc., against C. A. Richter and Southwest Theatres, Inc., for the conversion of certain personal property located in three theatres in the City of Edinburg, Hidalgo County, Texas. The trial was to a jury and resulted in judgment that plaintiff take nothing. Edinburg Theatres, Inc., has prosecuted this appeal.

The record shows that one Noble Holt purchased three theatres, namely, the Citrus Theatre, the Juarez Theatre and the Aztec Theatre, from appellees on February 20, 1957, paying the sum of $25,000.00 in ■cash, and executing a vendor’s lien note for the sum of $100,000, together with a deed of trust to secure its payment. The deed, note and deed of trust described the land but made no mention of the personal property and fixtures. It is the contention of appellant that at the conference when the deal was closed, the cash paid, the deed, note and deed of trust passed, it was agreed that appellees would not have a lien or chattel mortgage on the personal property. Later, the personal property located in the three theatres was transferred by Noble Holt to Edinburg Theatres, Inc.

Default was made in the payment of the $100,000.00 note and the theatres were sold under the power of sale provided in the deed of trust, on March 3, 1959. The personal property in the theatres was included in the trustee’s deed, and appellees immediately took possession of the theatres and all of the personal property.

The case was submitted to a jury upon the following two special issues which were answered by the jury as indicated:

“SPECIAL ISSUE NO. 1:
“Do you find, from a preponderance of the evidence, that the Defendants, in Hidalgo County, Texas, on or about March 3, 1959, did take and convert to their own use and benefit any of Plaintiff’s property, which is described in Plaintiff’s petition?
“Answer ‘Yes’ or ‘No’.
“We, the Jury, answer: No.
“SPECIAL ISSUE NO. 2:
“Do you find, from a preponderance of the evidence, that the Plaintiff, Edinburg Theatres, Inc., its agents or employees, had notice of a claim to a lien if any by Southwest Theatres, Inc., on the personal property, if any, located within the Citrus, Aztec and Juarez Theatres, prior to December 18, 1958?
“Answer ‘Yes’ or ‘No’.
“We, the Jury, answer: Yes.”

Based upon these findings, the trial court entered a take-nothing judgment against appellant.

Appellant did not make a motion for judgment notwithstanding the verdict, but here contends that the evidence conclusively establishes the fact that the deed of trust did not cover the personal property located in the three theatres and therefore appellees had no title to such property by reason of the foreclosure under the power of sale provided in the deed of trust.

The issues submitted to the jury were general issues, and in effect resolved all of the conflicts in the evidence in favor of appellees.

The vendor’s lien and the deed of trust lien unquestionably covered the land, the theatre building and the fixtures in the building. The fixtures were a part of the realty and were therefore covered by the deed of trust. The evidence is sufficient to show that a large portion of the so-called personal property in the buildings were fixtures, such as the seats, fastened to the floor, the carpets on the floor and stairways, and the installed air conditioners and gas fixtures. On the other hand, there was other personal property that was not fixtures, such as chairs, pianos, adding machines, popcorn machines and typewriters.

When the deal was closed for the sale of the three theatres to Noble Holt by Southwest Theatres, Inc., represented by C. A. Richter, the owner of all the stock in the corporation, in the law office of E. G. Henrichson, located in Edinburg, Texas, the evidence clearly shows that the parties agreed that a chattel mortgage would not be executed on the personal property located in the theatres, but it is equally clearly shown that the Southwest Theatres, Inc., was to have a verbal lien upon this personal property to secure the balance due on the purchase money for the theatres. This is shown by the evidence of E. C. Henrichson, who testified as follows:

“It (the consideration) was $125,-000.00, and Noble Holt paid Dr. Richter $25,000.00. At the time, both of them were in there and we were drawing up the papers and I said, ‘You will have to get me a list of the personal property in the theatres so we can prepare a chattel mortgage,’ and Holt said, ‘No, we will leave it like it is. If he takes a chattel mortgage on the little items of equipment, I intend to spend $30,000.00 on those theatres and I will increase his security by that much and the property will be there, he has nothing to worry about, if he takes a chattel mortgage I will have to be running to him for a release every time I want to replace something, and that is the only reason I am paying $25,000.00 down, I want to use the other money to improve the theatres with.’ ”

The statement by Noble Holt to the effect that he intended to spend $30,-000.00 on the theatres and thus increase the security of Richter, and that he would have nothing to worry about, shows that the only thing Holt was objecting to was the execution of a written chattel mortgage which would require a release every time he replaced an old piece of personal property with a new one. It further shows that Holt understood that Richter was to have an oral lien. No issue as to the existence of a lien was requested or submitted to the jury, and therefore the trial court will be presumed to have found on this question in a manner to support its judgment. Rule 279, Texas Rules of Civil Procedure.

An oral lien is perfectly valid as between the parties to the agreement and their privies. It is only where rights of innocent third parties intervene that an oral lien becomes ineffective, and there are no innocent third parties involved here. 37A Tex.Jur. § 264, pp. 547 et seq. An oral lien need not be expressly given, it can be inferred from the statements and conduct of the parties. Here there can be no doubt that Holt intended that Richter should have an oral lien. It is true that Holt afterwards executed a bill of sale covering the personal property to appellant, but the jury found, based upon sufficient evidence, that appellant took this bill of sale with knowledge that Richter and the Southwest Theatres, Inc., were asserting a lien on the property, and therefore appellant was not an innocent purchaser.

Appellant contends that such personal property had not become fixtures in the theatres and was not covered by the deed of trust, and therefore could not have been sold under the power of sale in the deed of trust. This is quite true, but ap-pellees are now in possession of this property and have a valid lien on it. Appellant cannot recover the property or damages for its conversion so long as a part of the purchase money remains unpaid. Appellant has not tendered the balance due by it as purchase money, and cannot recover the property or the value thereof so long as the purchase money remains unpaid. Ap-pellees are mortgagees in possession and cannot be dispossessed so long as the purchase price remains unpaid. Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; Dyess v. West’s Estate, Tex.Civ.App., 257 S.W.2d 737; Hollums v. Hicks, Tex.Civ.App., 179 S.W.2d 824; Broussard v. American Nat. Ins. Co., Tex.Civ.App., 133 S.W.2d 814; City Nat. Bank of Houston v. Moody, Tex.Civ.App., 115 S.W.2d 745.

The judgment of the trial court is affirmed.