author: DAVIS, Commissioner. MONTGOMERY, Judge

text:
    Johnny S. BOYD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1956.

      George S. Clay, Clay & Clay, Henderson, for appellant.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Johnny Boyd was convicted of storehouse breaking and sentenced to imprisonment for one year. KRS 433.190. His appeal is based on the ground that the trial court erred in denying his motion for new trial based upon newly discovered evidence.

Shortly after 1:00 a. m. on June IS, 1964, a Morgantown police officer observed a suspicious circumstance at a concession stand. When the officer drove his police cruiser so that its lights played on the door of the stand he saw two young men hastily come from the shed. The officer testified that he recognized the two youths as Johnny Boyd, the appellant, and Joe Hutchinson. The pair fled and was not apprehended for several hours.

Hutchinson was a juvenile, and the prosecution as to him was had in the Juvenile Court. Hutchinson at first denied complicity m the crime, but after the County Judge had informed him of his decision to send Hutchinson to a detention center, the latter confessed that he had broken into the stand. However Hutchinson, maintained that his confederate had not been appellant Boyd, but Roger Hansbrough. Boyd steadfastly maintained his innocence. Hutchinson and Boyd are first cousins.

The indictment was returned against Boyd November 16, 1964; by court order of the same date the case was assigned for trial on February 23, 1965, at which time the trial was held. At the trial Hutchinson testified that Hansbrough, not Boyd, had been his companion in the crime. Boyd asserted an alibi and presented some evidence in support of that defense, although the jury did not elect to believe it. Hansbrough did not testify, nor was he subpoenaed. Boyd did not make any motion for continuance when the case was called for trial.

On February 26, 1965, appellant filed timely motion for new trial. RCr 10.02. One of the grounds advanced for new trial was newly discovered evidence. At that time no affidavit was filed in support of the motion for new trial. On April 19, 1965, appellant filed his own affidavit and the affidavit of Roger Hansbrough; the Commonwealth filed no affidavit countering those filed by appellant, nor was any objection made to the filing of the affidavits by appellant.

Appellant’s affidavit recited that he had made diligent effort to have Hansbrough testify as a witness in his behalf; that Hansbrough had admitted to appellant that he, Hansbrough, was the other person with Hutchinson. The affidavit related that Hansbrough had been beyond the jurisdiction of Kentucky, in parts unknown to appellant, at the time of the trial. It was shown in the evidence at the trial that Hansbrough had left town just after the incident, but that he had returned after two or three months and remained in and about the area until about two or three weeks before the trial.

Hansbrough’s affidavit flatly states that Hansbrough, not Boyd, was the accomplice of Hutchinson, and further states that * * * in the event a new trial should be granted to the said Johnny S. Boyd that this affiant will testify therein and give his evidence as above set out.”

The Commonwealth contends that since appellant made no motion for continuance when the trial was called, he cannot now be heard in the present motion. Generally, the position taken by the Commonwealth would prevail. In this case, however, we feel that the motion for new trial should have been granted, despite appellant’s failure to move for a continuance based on the absence of Hansbrough. It is normally true that a defendant is required to show the probable availability of an absent witness for a future trial before a continuance will be granted on account of the absence of the witness. In this case appellant could not make such a representation because Hansbrough was deliberately concealing himself. Even so, a litigant may make the affidavit as to what the absent witness would say, and thus obtain the benefit of his “testimony” in absentia. See Patton v. Commonwealth, 235 Ky. 845, 32 S.W.2d 405.

More important, we think, is the practical view of this situation. Had the appellant made motion for continuance at the February trial, based on Hansbrough’s absence, and incorporating the averment that Hansbrough would testify that Hansbrough had committed the felony the court could have permitted the affidavit to be read as was done in Patton, just cited. But we think it is unquestionable that in such a situation the effect of Hansbrough’s “testimony” would have been nil. Accordingly, we cannot say that appellant failed to show diligence as to obtaining Hansbrough’s testimony.

We are mindful of the host of authorities which enunciate the salutary rule that newly discovered evidence will not support a motion for a new trial unless it be of such decisive value or force that it would, with reasonable certainty, have changed the verdict, or that it probably would change the result if a new trial should be granted. Cf. Kinmon v. Commonwealth, Ky., 383 S.W.2d 338. Cf. 24 C.J.S. Criminal Law § 1484 a, pp. 281-284. It is our view that the testimony of Hans-brough, if given in open court by Hans-brough, is of that caliber.

The judgment is reversed with directions to grant appellant a new trial.

PALMORE, J., not sitting.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

I cannot agree with the majority opinion because the appellant failed to show an exercise of proper diligence in obtaining the testimony of Roger Hansbrough, and I think the trial judge exercised a proper discretion in denying the motion for a new trial.

The facts, as stated in the majority opinion, show an utter lack of diligence on the part of appellant. He had more than three months’ notice of the trial date. He did not avail himself of the use of a subpoena to secure Hansbrough’s presence at the trial. He made no motion for a continuance before trial because of the absence of Hans-brough. These things are matters of record which did not have to be shown by affidavit or otherwise. The question of newly discovered evidence was raised three days after the trial, but there is no showing that the evidence was newly discovered or that appellant had not known about it in time to have Hansbrough testify at the trial. The failure to show proper diligence has been held to be fatal. Chambers v. Commonwealth, Ky., 264 S.W.2d 61; Bales v. Commonwealth, 313 Ky. 272, 231 S.W.2d 61.

Further, I cannot agree that the claimed newly discovered evidence meets the standard required in Kinmon v. Commonwealth, Ky., 383 S.W.2d 338, and the cases cited therein.

The trial judge has a broad discretion in granting or denying a new trial. This Court should not interfere except when such discretion has been clearly abused. Combs v. Commonwealth, Ky., 356 S.W.2d 761; Commonwealth, etc. v. Shelton, Ky., 248 S.W.2d 895. I do not think that the trial judge abused his discretion here.

For these reasons I dissent.

STEWART, J., concurs.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Glenn SHORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.

      Glenn Short, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   HILL, Judge.

This is an appeal from an order denying relief after a hearing on appellant’s motion to vacate a criminal judgment under RCr 11.42.

Appellant was found guilty of armed robbery September 1963. He did not appeal. He filed application for writ of habeas corpus which was denied on the ground he had an adequate remedy under RCr 11.42.

Insufficiency of the evidence and' ineffective assistance of counsel are the grounds relied on in this motion. Hon. James B. Miniard was not court appointed but was chosen, employed by, and represented appellant on his trial in 1963.

The general contention of ineffective assistance of counsel is supported by three factual allegations in the motion to vacate, which are: (1) Counsel did not make the court aware of its duty to instruct the jury as to the necessity of corroboration of an accomplice, (2) counsel was prejudiced toward defendant because he would not plead guilty, and (3) counsel did not appeal from the conviction and life sentence as he had said he would do.

The contention counsel did not make the court aware of its duty to instruct on the necessity of corroboration of the evidence of an accomplice is unfounded in view of the record which shows the court gave such an instruction. The second claimed element of ineffective assistance of counsel based on claimed “prejudice toward defendant because he would not plead guilty” was a matter entirely between appellant and his employee, his counsel. If he was not satisfied with the conduct of his attorney, he could have discharged him and employed another if still able; or if unable, he had a right to ask the court to appoint another attorney. Not having done either he is in no position to complain at this late stage in his motion to vacate under RCr 11.42. The third and last element appellant says constitutes ineffective assistance of counsel was the promise of his counsel to appeal his conviction, and his failure to do so.

This Court held in Curry v. Commonwealth, Ky., 390 S.W.2d 891 (1965), that an allegation that court-appointed counsel refused to take an appeal requires a hearing under RCr 11.42. We do not apply the same rule to employed-counsel cases. It was noted in McIntosh v. Commonwealth, Ky., 368 S.W.2d 331, 336 (1963), that there is a difference between the right to counsel on appeal and the right to counsel in the early stages of criminal proceedings. In the McIntosh case the Court said:

“The right of counsel on appeal stands on a different footing, not only constitutionally but as a practical matter, from the right to counsel during earlier stages of a criminal proceeding. An appeal is not a prerequisite to the execution of a sentence, whereas the proceedings leading up to and including a judgment are. The right to a fair trial is primary and fundamental. A right of review is secondary, and exists only as an added safeguard against denial of the primary right. The obligation of the state to see that the defendant receives a fair trial is absolute; to provide him an appellate review is optional. That due process compels the court affirmatively to advise a defendant of his right to counsel at the trial stage does not lead to a conclusion that he must also be thus advised at the appellate stage. ‘Equal protection’ gives to the indigent defendant a right to counsel and to a transcript of the record on appeal if he requests it. In the absence of such a request it does not, in our opinion, oblige the court either to initiate an inquiry or to extend an invitation to appeal.
“As the record shows no proof to sustain a finding that appellant was denied the right of counsel to assist him in prosecuting an appeal from the judgment entered on November 4, 1958, he is not entitled to relief in this proceeding.”

The motion in the present case shows no complaint by appellant in the trial court of the conduct of his employed attorney or his failure to appeal. Nearly sixteen months passed between the time of his trial and the filing of this motion to vacate. Errors of judgment by employed counsel cannot be raised by RCr 11.42. See King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Finally, the first ground argued relative to the introduction of incompetent evidence must be resolved adversely to appellant on the authority of Tipton v. Commonwealth, Ky., 376 S.W.2d 290 (1963), wherein it is written:

“RCr 11.42 does not authorize relief from a judgment of conviction for mere errors of the trial court.”

The judgment is affirmed.


author: PALMORE, Judge. MONTGOMERY, Judge

text:
    A. G. BRUNER, Appellant, v. CITY OF DANVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.

      Cecil C. Sanders, Lancaster, for appellant.
    Donald Harkins, Danville, for appellee.
   PALMORE, Judge.

This proceeding originated as a mandamus suit in the Boyle Circuit Court. Its purpose was to secure for the appellant, Bruner, a license to conduct public dances in the City of Danville. The only defendants named in the complaint were the may- or and one member of the city’s common council. During the course of the litigation it was agreed that the city was the proper defendant, whereupon the city was substituted for the original defendants and its appearance was entered. After hearing the testimony of both sides concerning the manner in which Bruner’s application for the license had been considered and the reasons for its rejection, the trial court gave judgment in favor of the city. Bru-ner appeals.

The fundamental question in the case is whether a city of the third class — or, for that matter, any city — can reserve to its governing body the discretion to grant or deny a license to conduct public dances without prescribing any standard with which applicants must comply or by which the discretion of the governing body is to be controlled.

An action for mandamus must be brought against the individual member or members of the agency whose actions are sought to be controlled. Lewis v. Board of Councilmen of Frankfort, 305 Ky, 509, 204 S.W.2d 813 (1947); Turner v. Department of Parole and Probation, Ky., 394 S.W.2d 889 (decided October 15, 1965). Since the members of the common council of Danville are not parties, mandamus will not lie. However, the case has been practiced and was decided by the trial court on the merits, and in order to obviate useless circuity of action we have determined to avoid the procedural difficulty by treating it as an action for declaratory judgment rather than mandamus.

Danville’s occupational license tax ordinance lists 126 activities for which licenses are required as a prerequisite of doing business. Except for the two categories “Dance Halls” and “Dances,” for which it is provided without further qualification that the license is “to be issued only by the Common Council,” the city tax collector issues any and all licenses simply upon application and payment of the prescribed fee.

Bruner makes a business of promoting dances, some public and some private. He had conducted a number of such activities in Boyle County and had several public dances at the Danville Armory, within the city, before it was brought to his attention that a license was required. When at the instance of the acting chief of police he applied for a license the application was rejected by the common council. He made two subsequent applications and was given a full public hearing by the council but in each instance was again denied, following which he filed this suit. From the evidence heard in the trial court it appears that the main reason for the negative attitude of the members of the council is that there has been a good deal of drinking and sporadic episodes of disorderly conduct at various dances held in the Armory, and the local police force is not adequate to provide special protection at these events. Similar problems exist with regard to some of the private and semi-private dances (for which no municipal license or permit is required), but apparently not to the same degree as in the case of dances to which the general public is invited.

The second and perhaps pole star section of the Constitution of Kentucky proclaims that absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. Just what act or threatened act of government would amount to an arrogation of such power is inevitably a judicial question. So it is, therefore, that in a variety of instances this court has struck down municipal legislation under which the granting of a license or permit was left substantially to the unlimited discretion of some officer or agency of the city, including the legislative body itself. Cf. Schneider v. Wink, Ky., 350 S.W.2d 504 (1961); Turner v. Peters, Ky., 327 S.W.2d 958 (1959); Parkrite Auto Park v. Shea, Ky., 235 S.W.2d 986 (1951); City of Pineville v. Helton, 300 Ky. 170, 188 S.W.2d 101 (1945).

In Board of Trustees of Town of Bloomfield v. Bayne, 206 Ky. 68, 266 S.W. 885 (1924), an ordinance requiring a permit for the erection or alteration of a building was held invalid despite provision for certain standards to be observed by the board of trustees in passing on the application, because the criteria were too indefinite. In reaching this conclusion the court stated the dispositive principle as follows:

“It is the established rule in this state that a city ordinance requiring a permit for the erection or alteration of a building which prescribes no standard with which the citizens must comply, or by which the discretion of those invested with the power to grant or refuse the permit is to be controlled, is arbitrary and invalid * * * if the requirements are so vague and indefinite as to make the question of compliance a mere matter of opinion, varying with the personnel of those charged with the duty of issuing the permit, it is at once apparent that the ordinance admits of the exercise, or the opportunity for the exercise, of arbitrary discrimination between citizens who comply with its provisions, and is therefore invalid.”

But, says the city, those were “land use” cases, and they are different. Why? The freedom to engage in a lawful business is no less important, and indeed it would seem more essential to man’s sustenance, than the liberty to utilize property as he sees fit. Certainly Section 2 of the Constitution applies to both. No authority is cited for the suggested distinction in degree of protection between the two, and we are confident there is none.

It is further contended that Schneider v. Wink, Ky., 350 S.W.2d 504 (1961), “deals exclusively with delegated legislative powers, while in the present case there is no delegation at all. * * * Here the Council held the legislative discretion firm to itself, and did not delegate it at all.” We are unable to follow this argument, since in each of the two cases the ordinance purported to vest discretionary power to grant or refuse a license in the legislative body of the city. Be that as it may, the ready answer is that a legislative body can neither delegate nor exercise in its own right a power it does not have, to-wit, an arbitrary power.

Though it is not entirely clear from the evidence whether any license to conduct public dances ever has been issued to anyone under the existing ordinance, we assume not. And it seems obvious that the membership of the common council is disposed to maintain the status quo until such time as in its judgment the circumstances then prevailing are sufficiently favorable to justify the holding of public dances in Dan-ville. This amounts, of course, to a complete prohibition of public dances. The line of reasoning adopted by the trial court was that the city has the power of prohibition under KRS 85.150(5), which provides that the common council may by ordinance “license, tax, regulate, prohibit or suppress theatrical and other exhibitions, shows and amusements, within the city and within one mile of the city limits.”

We do not construe the statute as intending to authorize an absolute prohibition of any particular type of show or amusement that would be otherwise lawful, unless the circumstances are such that the restriction has a reasonable relation to the public safety, welfare or convenience. Cf. Marshall v. City of Louisville, Ky., 244 S.W.2d 755, 756 (1951). The reason for this construction is that the state cannot confer on a city any more authority in that respect than is embraced within its own police power. An exemplary statement of the principle appears in Tolliver v. Blizzard, 143 Ky. 773, 137 S.W. 509, 34 L.R.A.,N.S., 809 (1911), a case in which the City of Olive Hill attempted to limit the kinds of soft drinks that could be sold within its corporate limits:

“The rule is that, in order to sustain legislative interference with the business of the citizen, by virtue of the police power, the act or ordinance must have some reasonable relation to the subjects included in such power. * * * The state, for the purpose of public protection, may, in the proper exercise of the police power, impose restrictions and regulations; but the right to acquire and dispose of property is subject only to that power. The individual may pursue, without let or ings or pursuits as are innocent in hindrance from any one, all such call-themselves and not injurious to the public. These are fundamental rights of every person living under this government. The Legislature cannot by an enactment of its own interfere with such rights, nor can it authorize a municipal corporation to do so. * * * In proportion to the severity or extent of the police power must the strict observance of the constitutional limitations upon the police power be required. The test in every case is: Is the prohibition of a particular business or the sale of a particular article necessary to prevent the infliction of a public injury? It is not sufficient that the public sustains harm from a certain trade or employment as it is conducted by some engaged in it. Because many men engaged in the calling persist in so conducting the business that the public suffers, and their acts cannot otherwise be effectually controlled, is no justification for a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public. Therefore the power of prohibition may not be invoked as to certain harmless drinks, merely because certain persons, under the guise of selling such drinks, may sell intoxicating liquors. Where it is possible to conduct the business without harm to the public, all sorts of police regulation may be instituted, which will tend to suppress the evil. A rigid system of inspection may be provided; and it may be made a condition of the license that it shall be revoked in case the licensee violates the local option law. Thus the public may be protected from the acts of a violator of the law, while, at the same time, honest men may be protected in their right to pursue an innocent calling.”

It may be conceded that there have always been certain kinds of activity which, though not harmful or offensive per se, can be not only regulated under the police power but, because of their “potential evil consequences,” prohibited altogether. Thus in Arms v. Town of Vine Grove, 203 Ky. 213, 262 S.W. 11 (1924), and Botes v. City of Franklin, 203 Ky. 357, 262 S.W. 282 (1924), it was held that cities of the sixth and fourth classes respectively, could prohibit the operation of pool rooms. Public dance halls traditionally have been relegated to the same unenviable limbo, along with “traffic in intoxicating liquor, * * * pawnbroking, carnivals and shows.” Mc-Quillin, Municipal Corporations, §§ 2409, 2410 (Vol. 7, p. 32). See also annotations, Public regulation of dancing, dmce halls, dancing schools, etc., 60 A.L.R. 173 and 48 A.L.R. 144. But we are of the opinion that the time has come when a more realistic view must prevail. In a city of the size and importance of Danville, where private and semi-private dances are an established motif in the pattern of normal social life, to outlaw public dances completely would be unreasonable. They may be prohibited in certain areas, such as residential zones, and subjected to precautionary conditions, provided that such territorial and and other restrictions and requirements are reasonable and are set forth with substantial precision in the ordinance, but beyond that the police power becomes indistinguishable from the police state.

The common council’s refusal to exercise its authority to issue a license under the occupational license tax ordinance cannot be sustained on the ground that it has the still broader power of prohibiting the activity entirely, because section 2 of the Constitution denies it an absolute and arbitrary power of prohibition.

The cause is reversed with directions that a judgment be entered in conformity with this opinion.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

In the first three paragraphs of the majority opinion it is made clear that the action under consideration is one seeking mandamus against a city. The individual members of the city government are not parties to the action. In the majority opinion it is held that such action will not lie against the city and must be brought against the individual members of the body, citing the Turner case so holding, decided October IS, 1965, on the basis of Lewis v. Board of Councilmen of Frankfort, 305 Ky. 509, 204 S.W.2d 813. See authorities cited therein.

The Lewis case is on all fours with the present case. In that case plaintiff sued the Board of Councilmen of the city without suing the individual members of the Board. A judgment denying mandamus was affirmed. Such should be the holding here. This case should have been decided in favor of the City of Danville on this basis and affirmed, instead of having been decided against the City and reversed. The decision constitutes a perversion of justice.

In my opinion the stated reasons for treating this as a declaratory judgment action and reaching a different result are not justified in the face of the established line of cases referred to and the principles contained therein.

For these reasons I dissent.

      . The question evidently was not raised in City of Pineville v. Helton, 300 Ky. 170, 188 S.W.2d 101 (1945). For an excellent discussion, see State ex rel. Associated Holding Co. v. City of St. Joseph, 237 Mo.App. 399, 169 S.W.2d 419 (1943).

      . There was evidence also of illicit sales of liquor at public dances, though Bruner vigorously denied that this condition existed at any events conducted under his supervision. Danville and Boyle County are dry.

      . The city has power also to define and abate nuisances, KRS 85.180(1), but such power does not authorize a city “to declare that a nuisance which is not so in fact.” Cf. Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N.E. 677, 5 Am.St.Rep. 524 (1888).

      . Danville is the county seat of Boyle County and according to the evidence has a population of about 10,000. Centre College is located within the city.


author: CULLEN, Commissioner.

text:
    Robert GREGORY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Robert Gregory, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   CULLEN, Commissioner.

Robert Gregory, in prison under a three-year sentence for knowingly receiving stolen property, filed motion in the trial court, under RCr 11.42, to vacate the sentence. The motion was overruled without a hearing and Gregory has appealed.

The motion alleged (1) a defective indictment; (2) insufficient evidence; (3) illegal search and seizure; (4) improper argument by the Commonwealth’s attorney; (5) erroneous instructions; (6) the trial was “rushed through;” and (7) his paid counsel was inadequate because counsel did not make objections to improper proceedings on the trial and would not take any steps for a new trial or an appeal.

Under King v. Commonwealth, Ky., 387 S.W.2d 582, the allegations were insufficient to warrant a hearing.

The judgment is affirmed.


author: STEWART, Judge. PALMORE and WILLIAMS, JJ.,

text:
    Richard John PENCE, Appellant, v. Albert SPRINKLES, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Robert H. Measle, Fowler, Rouse, Measle & Bell, Lexington, George T. Ross, Richmond, for appellant.
    John M. Lyttle, Manchester, Julius Rather, Lexington, for appellee.
   STEWART, Judge.

This appeal is from a judgment of $40,000 rendered in favor of plaintiff-appellee, Albert Sprinkles, against defendant-appellant, Richard John Pence. The litigation leading up to the judgment grew out of the facts hereinafter stated.

The evidence in this case reveals that on September 1, 1962, about 6:15 in the afternoon, George Root, Jr., was driving his Chevrolet automobile southwardly on Kentucky Highway 11 toward Barbourville. After he rounded a curve he drew near the home of one H. C. Sprinkles, who lives on the west side of the highway and whose residence sits back about 200 feet from it.

According to the testimony of Root, he was traveling at approximately 55 miles per hour. Suddenly, he saw a man whom or four feet out on the blacktop, walking as he later learned was Dillard Trent, three if he intended to cross in front of him. He applied his brakes and cut his vehicle to his right in an effort to avoid striking the pedestrian; he then lost control of his car and, a short distance farther on, crashed into a Ford automobile facing him on his side of the highway. This car, Root stated, was owned by appellant, Pence, and was parked in front of the Sprinkles home with about two or three feet of its front extending onto the blacktop. The Root car continued with unabated speed across the highway and went over an embankment on the east side.

The Pence Ford was knocked onto a Pontiac parked about four feet behind it and facing the same direction. Appellee, Albert Sprinkles, who was visiting his father, H. C. Sprinkles, was the owner of the Pontiac. He was sitting on the left side near the front of his car, working on the starter, when Root’s Chevrolet struck the Ford, throwing it on top of appellee. The latter was severely injured, has been in and out of hospitals for almost a year, and is now unable to work.

Two other witnesses who testified in behalf of appellee were Shafter Sprinkles, his brother, and Ike Smith, a neighbor. Shaf-ter Sprinkles did not see the Root car run into the Pence car. He did, however, state that he knew the position of the Pence car prior to the accident, and that the “front part of it” extended out on the highway.

Ike Smith testified he was an eyewitness to the mishap. He lives “just across the river” from the Sprinkles home. His evidence does not tell us how far away he was from the scene of the collision. He stated he saw Dillard Trent “angle across the road” until he got to the center and Trent then “made a jump like he was going to run.” Root pulled over to “dodge him” and “hit the gravel about even with him.” Although his car, according to Root’s testimony, was traveling SS miles per hour and was at that time, Smith estimated, “about sixty feet” from the Pence Ford, with which it collided an instant later, Smith said Root was able to get his car back into his traffic lane before it struck the Pence car. Smith stated that the Pence Ford, before the two vehicles made contact, “looked” to him to be parked halfway on the blacktop.

There was no traffic coming toward Root. Bertha Sprinkles, the wife of appel-lee and a witness in his behalf, saw the accident. She was unable to say where the Pence Ford had been parked with reference to the blacktop. She stated that when she first observed Root’s automobile “it was sliding on the dirt.” This was “just before it hit the other car.” She testified that Root had the whole road in which “to straighten up,” and she “kept watching this car and hoping he would get it straightened up.” When she last saw Root he was still unable to control his car.

Appellant, when testifying, was positive his car was parked from three to four feet off the highway right of way. Dillard Trent, who was introduced as a witness for appellant, testified that on the occasion of the accident he was walking with his wife southwardly on Kentucky Highway 11. He stated when Root’s car passed that he, his wife and “a little girl that lives close to us” were proceeding “at the edge of the blacktop.” He first noticed Root’s automobile coming around a curve toward him “as fast as I ever seen a car go.” He said this car left the road on its right side, ran off the highway and then struck the Pence Ford. Both Trent and his wife, who^ gave a deposition that was read in this case, testified that Pence’s car was well off the blacktop when it was hit.

Two state troopers who investigated the accident, soon after its occurrence, testified that Root admitted he had been drinking intoxicating beverages on that occasion. They stated that Root told them he had drunk three or four beers before he started on this particular trip. . Another state trooper testified that Root’s car made skid marks 37 feet four inches long and that these skid marks ran off the highway.

It is appellee’s position that the manner in which the Pence Ford was parked created a traffic hazard which was the proximate cause of the accident. It is appellant’s contention that his automobile played no foreseeable part in the collision between it and the Root ear except that, because of mere chance, it happened to be where it was when Root ran into it. Appellant argues that, even if his automobile had not been located where it was at the time, the Root car would nevertheless have hit appellee and his car.

We are of the opinion that under the evidence presented, assuming the Pence Ford was partially on the highway when Root’s car ran into it, such a fact was not the proximate or a contributing cause of the collision. We are convinced the accident resulted from an intervening or superseding cause, namely, Root’s loss of control of his Chevrolet automobile at the time and place. Stated somewhat differently, there would have been no accident but for Root’s inability to direct the course of his automobile.

A case that we believe governs the disposition of the one under consideration is Hines v. Westerfield, Ky., 254 S.W.2d 728. There, because of snow and ice on the street, a woman, one Mrs. Hines, parked her car so that it extended onto the traveled portion of the street for a distance variously estimated from eighteen inches to three feet. Her car was left in this position three days and, at the end of that time, an additional eighteen-inch obstruction of snow was banked against the car’s side by a snowplow. Westerfield, just before the accident, was driving a truck in his traffic lane. When about one hundred feet from the car of Mrs. Hines, which was parked on his left, Westerfield observed an oncoming car whose driver was never identified. As the meeting vehicles reached a point approximately opposite the parked car, the car with the unidentified driver pulled to the left directly in front of Westerfield’s truck. Westerfield, in an effort to avoid impact with it, drove into a ditch on his right side and wrecked his truck.

Westerfield sued Mrs. Hines and her husband for his damages. Under the foregoing facts the trial court submitted the case to a jury which awarded damages of $950 for Westerfield against them. On an appeal to this Court, the judgment was reversed, with the result that the Hineses were relieved of liability.

This Court decided that the parked car was not the proximate cause of the accident, because its location on the street furnished only an occasion, a remote cause, for the accident that resulted to Westerfield. It was, the Court held, the intervening and unforeseeable act of the unidentified driver of the oncoming vehicle in turning his automobile onto Westerfield’s side of the street that forced the latter to leave the street to avoid a collision.

Other cases holding there was no liability as a matter of law under a somewhat analogous factual situation, involving a vehicle which was stopped or parked upon the main-traveled portion of a highway, are: Freeman v. W. T. Sistrunk, et al., 312 Ky. 438, 227 S.W.2d 979; Greenwell’s Administrator v. Burba, 298 Ky. 255, 182 S.W.2d 436; Turpin v. Scrivner, 297 Ky. 365, 178 S.W.2d 971.

Proximate cause becomes a question of law when, as in the case at bar, there is no dispute about the essential facts of causation, and but one conclusion may be reasonably drawn from the evidence. See Clardy v. Robinson, Ky., 284 S.W.2d 651.

Conceding the front of appellant’s Ford extended out on the blacktop, the fact that it was parked in front of the Sprinkles home and near the Pontiac where appellee was sitting was merely a remote event, because Root’s loss of control of his car was the intervening and unforeseeable act that directly caused the accident; this was the immediate event that actively produced the injury to appellee and his car. Furthermore, we believe Root’s automobile would have collided with appellee and' his vehicle, even if the Pence Ford had been absent from where it was located at the time and place of the accident.

It is our opinion appellant’s motion for a peremptory should have been sustained and, upon a return of this case, the trial court is directed to grant the motion for a judgment n.o.v. in behalf of appellant.

Wherefore, the judgment is reversed for consistent proceedings.

PALMORE and WILLIAMS, JJ.,

concur in the result, but on the ground that, if it be conceded appellant Pence was negligent in parking his automobile partially on the highway, appellee Sprinkles either assumed the risk or was contributorily negligent.


author: MOREMEN, Chief Justice.

text:
    Rex KILBURN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Maxwell P. Barret, Richard C. Ward, Reeves, Barret & Cooper, Hazard, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Rex Kilburn, was indicted for murder and convicted of manslaughter. His punishment was fixed at imprisonment for twenty-one years. He contends that the trial court erred (1) in refusing to sustain a motion to direct a verdict of acquittal for him, and (2) in giving an instruction which improperly qualified and limited the law concerning his right of self-defense.

Appellant’s whole defense was based upon the contention that he shot and killed Pearl Begley in the protection of himself and his foster son, Charles Caudill, and his own son who was about seven years of age.

The evidence introduced in behalf of the commonwealth disclosed that about 9:30 p. m. on July 4, 1964, Begley drove his car onto the premises of a gasoline station and restaurant operated by Delbert Baker. Beg-ley told Baker that Rex Kilburn’s boy (Charles Caudill) had thrown a pop bottle into his car, had hit him on the arm and had hurt him. He said he had shot at him and wished he had hit him right in the back of the head. An automatic pistol was on the seat beside Begley at the time. Begley then drove away. Appellant Kilburn was present and overheard Begley’s statement. Within a short time Caudill came to the service station, bought a soft drink and was consuming it outside the building not far from the gasoline pumps when Begley returned. He accused Caudill of hitting him with the bottle and they became involved in an angry argument. Begley was holding in his hand a gun which he raised and lowered from the sight of some of the spectators. He told Caudill that he would get even with him and Caudill replied that if Begley would let someone hold his gun he would go with him wherever he wanted to go, at which time several of the witnesses ran for cover. The door of the car was opened and appellant came toward the car crying “drop it” and then fired five shots into Begley’s body.

The .principal witness for the commonwealth, Delbert Baker, remained during the entire engagement and we will quote his testimony on this vital point:

“He said, ‘You are the dirty son-of-a bitch that throwed the pop bottle through my car,’ and the boy used the same words back and told him that he was the one that told him to get off the road, and Pearl said, ‘I would shoot a man’s brains out’ or ‘blow a man’s brains out that would throw a pop bottle through my car,’ and Pearl was real mad and Charles said, ‘You lay that gun down or leave it here with some of these fellows or Baker, and I will get in my car and go anywhere you want to and we will settle this,’ and Pearl came out with the same words again and said, ‘If you fool with me, we will settle it right here.’ Charles then gave him the same names back and told him to get out. The car door flew open and then Rex Kilburn jumped in behind the door, he threw the door open between me and Rex.”
“Q. Did Rex come from behind the car? A. Near the back of the car, the first I seen him, I was trying to get some stock in, and when I noticed Rex first, I suppose he had come from there because the view was blocked on this side, and the first time I saw him he was up near the door of the car and hollering two words, ‘drop it, drop it,’ and then the gun was fired.”

Another witness, Raymond Combs, testified:

“They called one another bad names, we was standing there talking to Rex when the door opened. I started walking toward the restaurant and when I got almost to the door I looked back and Rex went around the front end of the car and he told Pearl not to do that, twice, and before I went into the door I heard him ask Pearl to drop the pistol twice.
“Q. What were his exact words? A. He said ‘don’t do that’ the first time, and then I heard him say, ‘drop it, drop it 1’
“Q. How soon after that was it that he shot? A. I don’t know, I was in the door and I never looked around to see who done the shooting.”

Another witness for the commonwealth, Roy Turner, testified that he ran off when Begley “jerked the gun up in the window and laid it back down.” Another witness, Fred Sizemore, added nothing to the other testimony — in fact, he left the scene when the trouble first began. These were all the witnesses introduced by the commonwealth with the exception of the coroner and a state policeman, neither of whom was present at the time of the homicide.

We do not have under consideration at this point testimony introduced in behalf of the defendant. However, we state parenthetically that nothing in that evidence materially alters the description of the occurrence as related by the witnesses for the commonwealth; in fact, it emphasizes that Kilburn had acted in self-defense and that Begley was the aggressor during the entire time.

The facts in this case have many similarities to those presented in Adkins v. Commonwealth, 293 Ky. 329, 168 S.W.2d 1008, where one man killed in defense of another who had been viciously attacked by a third party. There, as here, the case was unusual in that there was no contradiction as to the substantial and essential facts. The Court said:

“The right to take a human life in one’s self-defense, or apparently necessary self-defense, extends to acting in defense of another under the same circumstances; so facts which will excuse a killing in defense of self likewise will excuse a killing in defense of another, for it is a general rule that whatever a person may lawfully do for himself he may lawfully do for another. The undisputed facts in this case show not only an apparent but real danger of Cooper suffering death or great bodily harm at the hands of Ward and that he had done nothing to provoke the vicious and unwarranted assault. It is seldom that a verdict of acquittal in a homicide case should be directed, especially where the defendant admits the killing or it is clearly proved that he did so because of the necessity of a defendant, as a practical matter, establishing a legal excuse or justification, although theoretically the burden of proving that the homicide was without such excuse or justification remains to the end on the prosecution. In this case all the witnesses for the Commonwealth sustained the contentions of the defendant and witnesses introduced in his behalf that the homicide was excusable. Under either view as to the burden, we
are of opinion that the court should have peremptorily instructed the jury to find the defendant not guilty. Privitt v. Commonwealth, 271 Ky. 665, 113 S.W.2d 49.”

A full discussion of situations involving a plea of self-defense and when the court should direct a verdict in behalf of the defendant may be found in Taul v. Commonwealth, Ky., 249 S.W.2d 45.

We are of opinion that the evidence introduced by the commonwealth sustains appellant’s contention that the homicide was excusable and that the judgment should be set aside and appellant granted a new trial. If, upon that trial, the evidence of guilt is no stronger than that adduced in the present one, the court should direct a verdict of not guilty.

We think the court also erred in giving the instruction which reads, “But if you believe from the evidence beyond a reasonable doubt, that the defendant, Rex Kilburn, or the said Charles Caudill, first began the difficulty by shooting Pearl Beg-ley or making a demonstration to shoot him at a time when neither of them was in any danger, real or apparent, at the hands of Pearl Begley, then you should not excuse the defendant on the ground of self-defense or apparent necessity therefor, or the defense of another or apparent necessity therefor as defined in instructions No. — and V,” because it was not justified by any of the facts produced at the trial.

Judgment reversed.


author: SELLERS, Justice.

text:
    DARR EQUIPMENT COMPANY, Appellant, v. GEORGE P. BANE, INC., Appellee.
    No. 166.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 21, 1965.
    W. Richard Davis, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    R. L. Whitehead, Longview, for appellee.
   SELLERS, Justice.

The plaintiff, George P. Bane, Incorporated, brought this suit to recover damages from Caterpillar Tractor Company and Darr Equipment Company, a Corporation. The nature of this plaintiff’s suit, as set out in paragraphs 1, 2, and 3 of its original petition, is as follows:

“The Plaintiff is a Texas corporation. The Darr Equipment Company is a corporation organized under the laws of the State of Texas or some other state unknown to the Plaintiff, but well known to the Defendant. The Caterpillar Tractor Company is an Illinois corporation. On or about May 31, 1963, the Plaintiff purchased through the Defendant, Darr Equipment Company, who are the agents and distributors for the Caterpillar Tractor Company, two (2) D8H Caterpillar Tractors for a total payment of approximately One hundred twenty thousand ($120,000) Dollars. This equipment was to be used for the purpose of removing trees and dirt on the McGee Bend job in Jasper and other counties in southeast Texas.
“The Defendants well —new the purpose for which the equipment was to be used and warranted said equipment to be suitable for the purpose for which it was intended. On or about June 1, 1963, the tractors commenced to overheat and from June 1 through December 1 the tractors were used approximately twenty eight hundred (2,800) hours and lost production during this period due to overheating was seven hundred fifty (750) hours to the Plaintiff’s damage in the sum of Twenty two thousand five hundred ($22,500) Dollars.
“Had said tractors been suitable for the purpose for which they were intended all work necessary to be done with them would have been completed by December 1, 1963 but due to the defective operation of the tractors the work was not completed until March 1, 1964 during which period the D8H tractors were in service approximately four hundred seventy five (475) hours resulting in a loss of wages to the corporation from the crew being idle because the weather would not permit everyday work to the Plaintiff’s damage in the sum of Fourteen thousand two hundred fifty ($14,250) Dollars.”

The defendant, Darr Equipment Company, filed its Plea of Privilege to be sued in Dallas County, Texas, county of its residence. The plaintiff filed its Controverting Plea to defendant Darr Equipment Company’s Plea of Privilege to be sued in Dallas County, Texas, in which plaintiff alleges as follows:

“Plaintiff denies and here avers to be untrue and false, the following allegation of Defendant contained in such plea of privilege: That no exception to exclusive venue in the county of one’s residence, provided by law, exists in said cause.
“Plaintiff was, and has been at all times germane to this suit, a resident of Longview, Gregg County, Texas. Defendant has had, at all times germane to this suit, an agent or representative in Gregg County, Texas.
“On or about the 31st day of May, 1963, Defendant, Darr Equipment Company, through its agent located in Gladewater, Texas, entered into a contract in Gladewater, Texas with the International Equipment Leasing Corporation. Said contract was for the purchase of two D-8 Caterpillar Tractors, to be leased by Plaintiff, George Bane, Incorporated. The caterpillar tractors were at the time of entering into the aforementioned contract, and are now unfit for the purpose for which they were intended, to Plaintiff’s damage in excess of One Hundred thousand ($100,000) Dollars.”

It will be observed that the Controverting Plea makes no reference to plaintiff’s original petition as being a part of the controverting plea; and for this reason, the original petition cannot be looked to in order to aid the allegations contained in the Controverting Plea. Leonard, Jr. v. Maxwell, Tex., 365 S.W.2d 340.

The Controverting Plea does not set out which section of Article 1995 the plaintiff relies on to retain venue in Gregg County, although in his brief he admits that he relies on Section 23 of said article.

This Court has held in an opinion by Chief Justice Dunagan, Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., Tex.Civ.App., 389 S.W.2d 694, that the burden under this section is upon the plaintiff to allege a cause of action against the defendant and that the defendant had an agent in the county where the venue is sought to be retained. The allegation that the defendant has an agent in Gregg County alone will not suffice. The plaintiff must go further and allege a cause of action by plaintiff against the defendant which, as we interpret the Controverting Plea standing alone, the plaintiff has wholly failed to do.

We take this statement from appellant’s brief, which points up the weakness of the allegations in the Controverting Plea:

“No contract between Appellant and Ap-pellee is pled; no breach of any contract between Appellee and Appellant is pled; no warranty between Appellant and Ap-pellee is pled; no allegations as to when or where a contract was made; no allegations as to where any contract was to be performed or by whom; no allegations that Appellant knew * * * the purpose for which they were intended * * ’; no allegations of warranty or representations whatever running between Appellant and Appellee.”

The judgment of the trial court is reversed and the cause ordered transferred to Dallas County.


author: CADENA, Justice.

text:
    Amando PENA et al., Appellants, v. James A. JEFFRIES et al., Appellees.
    No. 14430.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1965.

      Frank R. Nye, Jr., Emilio F. Gutierrez, Rio Grande City, for appellant.
    Hill, King & McKeithan, Mission, for appellee.
   CADENA, Justice.

Appellants, Amando Pena and others, complain of the refusal of the trial court to enjoin the consummation of the sale of $80,000.00 in general obligation bonds of the Roma Independent School District to Ranson & Company, Inc., and Rauscher-Pierce Company.

The bonds in question have been involved in litigation, instigated by appellants, since their issuance was authorized by an overwhelming vote at a bond election held on July 27, 1963. On August 7, 1963, the school district, without inviting other bids, negotiated a sale of the bonds to Ranson & Company, Inc. The persons who are appellants here then sued to enjoin such sale on the ground that it was made without competitive bidding. After the trial court had refused the injuction, this Court in an opinion delivered on November 18, 1964 (No. 14296, Pena et al. v. Jeffries et al.), held that the negotiated sale without competitive bidding was invalid. On December 30, 1964, such opinion was withdrawn and the cause was remanded to the trial court because an indispensable party, the purchaser of the bonds, had not been joined. Neither of these opinions was reported.

Subsequently, the school district and Ran-son & Company entered into an agreement rescinding the negotiated sale of August 7, 1963. On March 8, 1965, notice was mailed to sixty-four investment bankers in the State of Texas announcing that sealed bids for the bonds would be received by the school district until 8:00 p. m. Thursday, March 18, 1965. These sixty-four investment houses comprise all but one or two of the investment institutions which customarily deal in securities issued by Texas governmental units and which maintain offices in Texas. They include all resident members of the Municipal Advisory Council of Texas, an organization composed of firms which deal in governmental bonds.

A notice of the sale was also mailed to the Texas Bond Reporter, the official publication of the Municipal Advisory Council. An item concerning the sale of the bonds appeared in the issue of that publication which was dated Monday, March 5, 1965, but which was actually published and mailed to its subscribers on Friday, March 12. The only bid received by the school district was the combined bid of Ranson & Company, Inc., and Rauscher-Pierce Company, and it was accepted.

Appellants contend that the school district made no bona fide effort to invite competitive bidding. Art. 2786, Vernon’s Ann.Civ.Stats., recites that all school district bonds “shall be sold to the highest bidder for not less than par value and accrued interest.”

The statute contains no provision requiring advertisement or publication of the notice of sale. However, it provides that the bonds shall be sold to the “highest bidder.” From this language it can be inferred that the legislature contemplated that a good faith effort would be made by the issuing authority to secure competitive bidding. As stated above, invitations to bid were mailed to practically all persons or firms who might reasonably be expected to show interest in a relatively small amount of bonds issued by a relatively small school district. The uncon-tradicted testimony showed that the period intervening between the mailing of the notices and the date of sale was sufficient to permit any interested dealer to prepare and submit a bid. From this evidence, the trial judge was justified in finding that a good faith effort had been made to solicit proposals from a fair representation of persons or firms dealing in public securities. The fact that only two bond dealers showed an interest in the sale, and that they decided to submit a joint bid, does not establish as a matter of law that no bona fide effort was made to attract competitive bidding.

Appellants assert that the recital in the notice of sale that litigation was pend ing concerning the bonds was inserted for the purpose of discouraging bidders. The litigation referred to in this notice was the suit filed by appellants seeking to annul the negotiated sale of August 7, 1963. The notice stated that the district expected the litigation to be dismissed in time to permit delivery of the bonds on the date specified in the notice. Since the subject matter of the pending suit, the negotiated sale in 1963, had been rescinded, the school district had reasonable grounds to believe that the pending case had been rendered moot and would be dismissed. A motion to dismiss on the ground of mootness was actually filed before the date of sale. Under these circumstances, it cannot be said that the statements relating to litigation were made for the purpose of discouraging bidders. Fairness and candor required that prospective bidders be given such information. Further, the evidence showed that bond dealers in Texas were aware of the pending litigation.

Finally, appellants complain that no notice of the proposed sale was given to the patrons of the school district or published in any newspaper which circulated within the territorial limits of the district. As has already been noted, Art. 2786 does not require advertisement of the sale. No advertising is necessary where the applicable statute does not require it. Connelly v. Earl Frazier Special School Dist., 170 Ark. 135, 279 S.W. 13; Perkins v. City of Frankfort, Ky., 276 S.W.2d 449. Nor does the statute require that patrons of school districts be given notice of a bond sale.

The undisputed evidence showed that the sole bid received was not out of line with the prevailing state of the securities market at the time of the sale. It is not contended that the bonds were sold for less than par and accrued interest. There is no evidence indicating that additional bids would have been submitted had the district given notice for a longer period of time and advertised such notice locally.

Since the school district complied with the requirements of Art. 2786, and since the evidence supports the trial court’s finding that a bona fide effort was made to attract competitive bids, the judgment below must be affirmed.


author: WILSON, Justice.

text:
    Anna Dea McGLOTHING, Appellant, v. CACTUS PETROLEUM, INC., et al. Appellees.
    No. 4396.
    Court of Civil Appeals of Texas. Waco.
    Oct. 7, 1965.
    Rehearing Denied Oct. 28, 1965.

      Robert A. Rowland, Morgan Nesbitt, Austin, for appellant.
    Conde N. Anderson, Victoria, Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, J. P. Darrouzet, Austin, Linton S.Benge, Goliad, for appellees.
   WILSON, Justice.

Summary judgment for defendant-appel-lees was rendered in appellant’s bill of review proceeding seeking to vacate a 1961 judgment under which appellant was held to have no interest in production from wells on described lands under certain oil, gas and mineral leases. Appellant contends issues of material fact existed precluding summary judgment under Rule 166-A, Texas Rules of Civil Procedure. We affirm.

In 1959, Cactus Petroleum Corporation filed a bill of interpleader to determine ownership of oil production from two 40-acre tracts out of 406% acres. Appellant promptly answered by general denial through counsel, and six months later filed amended pleadings through other attorneys. Appellant also filed a cross-action against one of her interpleaded co-defendants, Dingle, seeking to cancel a contract and royalty deeds. Dingle’s plea of limitation to the cross-action was sustained, and no attack is made on that order.

In 1942 appellant owned the west 200 acres out of the 406% acres in fee. She owned a life estate in the east 206% acres, with remainder in her children. She executed an oil and gas lease to Brock, describing the entire 406% acres, without reference to the life estate-. This lease was assigned to Amerada Petroleum Corporation. In 1944 appellant executed two royalty deeds to Leveridge and Fairchild covering undivided % and % interests respectively in the west 200 acres. These deeds recited the sales were “subject to” the oil and gas leases which described the entire 406% acres, and recited the sale covered and included royalty “to be paid under the terms of” these leases. Thereafter appellant’s children conveyed to her their remainder interest. The wells in question were located on the east 206% acres.

After extended trial of the interpleader action the trial court concluded that by the rule in Hoffman v. Magnolia Petroleum Company, Tex.Com.App., 273 S.W. 828, appellees claiming under the royalty deeds were entitled to royalty from production on both the 200-acre west tract and the 206% acre east tract. Judgment was rendered November 22, 1961 awarding their proportionate part of the production payments to appellees, and declaring that appellant owned no interest in production from the wells.

November 8, 1963 appellant filed her bill of review. In January, 1965 her amended trial pleading was filed. It alleged that the pleadings in the interpleader action “constituted a fraud upon the court” because its allegations as to the contents or effect of specified leases and royalty deeds were not in accord with the true facts; that attorneys representing appellant’s co-defendants in that action defrauded the court by failing to introduce into evidence all recorded instruments affecting the title to the mineral estate after assuring the court they would do so; that they falsely represented production was under the Brock lease which covered the entire 406% acres, in effect concealing the fact that the 206% acres was a life-estate tract covered by a separate lease; that the form for judgment was sent to appellant November 20, 1961 and judgment was rendered two days later, giving appellant “no time to object” before it was entered; that the judgment disregarded a pooling unit, thereby making award to Dingle which would otherwise have gone to appellant. Other attacks on the judgment as it relates to Dingle will not be summarized, since his plea of limitation was sustained without complaint. It was asserted the judgment was void for various reasons which obviously do not result in invalidity.

Appellant also averred she was physically and mentally incapable of defending herself before and after trial; that she was worried by inability to retain an attorney; that she had consulted and sought to employ numerous attorneys; that she did not understand the trial was to be held when it was; that she was not represented by counsel at the trial, and answered that she was not ready for trial; that she sent to the district clerk a document containing arguments that the judgment rendered was erroneous, which the trial judge notified her would be considered as a motion in arrest of judgment ; that she was not negligent; that she had a meritorious defense because she owned only a life estate in the 206% acres when the royalty deeds were executed; that the court erroneously construed and applied the doctrine in the case of Hoffman v. Magnolia Petroleum Company; that appel-lees had signed a division order by which they disclaimed interest in the 206% acres. Other relief not material here was prayed for.

Appellee Dingle’s motion for summary judgment included an affidavit by the official court reporter who reported the inter-pleader proceeding, incorporating a certified transcription of the evidence and proceedings at the interpleader trial. Cactus Petroleum and other defendants adopted this motion and affidavit. Appellant’s affidavit related difficulty with her attorneys over fee arrangements, her efforts to obtain other counsel during the next 10 months, her inability to retain attorneys because they all desired a contingent royalty interest as a fee; that she informed the trial judge she had no counsel and “understood him to say” the case would not be tried as set, but that the limitation plea only would be heard; that after the trial she took her files to an Austin attorney; that in November, 1961 she received a copy of the judgment, having previously received a copy of the judge’s letter directing its preparation ; that she was unable to consult the Austin attorney because he was in the hospital, and his associate “told me to do nothing”; that she was ill during October and November, worrying about the lawsuit and illness of members of her family; that in December she was “too sick to think clearly,” and didn’t realize any action was necessary or that an appeal was required; that when the Brock lease was signed she did not own the fee to the 206% acres, but only a life estate. Appellant’s attorney made affidavit as to recorded instruments not offered in evidence at the interpleader trial. The motions for summary judgment of ap-pellees were granted.

Appellant contends issues of fact existed as to the fraud asserted, as to appellees’ counsel having prevented a fair submission of the issues to the court in the interpleader trial, as to her diligence and freedom from negligence “in failing to present her defense” and in failing to perfect appeal, as to whether she had a meritorious defense, as to whether she was misled, as to whether the judgment was rendered “by mistake caused by -the actions of the opposing parties,” and as to whether the judgment “should be voided as having divested appellant of an interest in land not pleaded for.”

The record presented to us includes a “transcript” which contains numerous pleadings, motions and orders in the original interpleader action. Neither sworn nor certified copies of these were attached to any of the motions for summary judgment. Appellant and appellees make frequent references to these. Even though constituting records of the same court, they could not be considered by the trial court, and may not be considered by us in connection with motions for summary judgment. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 275. We sustain appellant’s motion to tax cost of including these instruments in the transcript against appellees. The record is adequate, nevertheless, to enable us to pass on the propriety of the summary judgment as against appellant’s contentions.

Appellant’s position, in large measure, is that the court on the interpleader trial misconstrued and misapplied the Hoffman doctrine in determining what acreage was covered by the two royalty deeds, and that if the trial court had known there were two leases rather than one as she says was represented to the court, the judgment against her would not have been rendered. The lease introduced covered 406% acres. The second lease was from the remaindermen to the east 206% acres. The second lease could not have affected the result. Additional instruments, not introduced in the interpleader hearing would not have affected the propriety of that judgment.

A judicial error is not ground for vacating a judgment by equitable bill of review. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1042; Fischer v. Huffman, Tex.Civ.App., 254 S.W.2d 878; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 130 S.W.2d 332, 338, writ refused.

It is insisted that appellant was diligent and free from negligence in failing to present her defense to the court. The record shows the defense related to the fact that when she executed an instrument purporting to cover the entire 406% acres, appellant owned the fee to only the west 200 acres, having a life estate only in the other 206% acres, covered by another lease. She was not prevented from presenting this defense, but repeatedly and clearly urged it, and the court’s questions and comments at the trial establish that it was understood and -considered.

As to appellant’s diligence, the inter-pleader trial was concluded on October 23, 1961. The judge took the case under advisement until November 6, and notified appellant on November 7 that he was directing judgment to be prepared, in effect applying the Hoffman case doctrine, under which she would not be entitled to an interest in royalties. On November 21 she received a copy of the judgment. “She did not receive actual notice that the judge had signed this judgment, and did not have such knowledge until after the time for appeal had expired.” Judgment was signed November 22, and appellant alleged she “had no time to object.” On December 13 she sent a document to the clerk and the judge styled “Objections to the form of final judgment.” About December 22 the judge wrote her he “was treating her pleading as a motion in arrest of judgment.” She pleaded she “thought the judgment had been arrested.” Her bill of review was filed November 8, 1963 — two years, lacking 12 days, after judgment. Appellant’s activities concerning her attempted employment of counsel for over two years while the interpleader action was pending have already been narrated. The trial judge in the interpleader action cautioned appellant she needed an attorney, and offered to assist her in retaining counsel. His advice went unheeded and his offer was declined. In our opinion such reasonable diligence as is required for interposition of equity is shown not to exist, and laches precluded the relief sought. Ruland v. Ley, 135 Tex. 591, 144 S.W.2d 883; Johnson v. Potter, Tex.Civ.App., 384 S.W.2d 747. Appellant’s points are overruled. Affirmed.


author: WALKER, Justice. NORVELL, Justice

text:
    Fred SALMON, Petitioner, v. Raymond SALMON et al., Respondents.
    No. A-10403.
    Supreme Court of Texas.
    Oct. 13, 1965.
    Rehearing Denied Nov. 17, 1965.

      Paul Donald, T. B. Coffield, Bowie, Ernest May, Fort Worth, for petitioner.
    Earl C. Fitts, Nocona, Fillmore, Schaef-fer & Fillmore, Wichita Falls, for respondents.
   WALKER, Justice.

This is a probate proceeding to secure the allowance and payment of attorney’s fees out of the assets of an estate pursuant to the provisions of Section 243 of the Texas Probate Code, V.A.T.S. The attorneys were employed by one of the designated executors, who was also the principal beneficiary of the will, on a contingent fee basis, and the first question to be decided is whether the estate may be charged an amount that would constitute a reasonable contingent fee under the circumstances.

A claim for $25,000.00 filed by the attorneys was duly allowed by the executors and approved by the County Court. Upon appeal to the District Court by one of the beneficiaries of the will, the jury found that $19,200.00 is a reasonable fee for the services rendered by the attorneys, and judgment was entered on the verdict ordering payment of that amount. The Court of Civil Appeals concluded that the evidence does not support the amount found by the jury and suggested a remittitur of $2,200.-00. Upon the filing of such remittitur, the judgment of the trial court was reformed, and as reformed was affirmed. 381 S.W.2d 945.

Mrs. Maria Hoben, a widow with no children or other descendants, died testate on February 19, 1960. She was survived by three brothers, Raymond Salmon, Wilburn Salmon and Fred Salmon, by three sisters, and by the children of Harry Salmon, a fourth brother who died before the testatrix but after the execution of her will. Under the terms of the will, her entire estate was devised and bequeathed to the four brothers as follows: to Raymond Salmon $2,000.00 in money or bonds and the home place consisting of 342 acres of land; to Fred Salmon, Wilburn Salmon and Harry Salmon, each, $2,000.00 in money or bonds and any notes owing by them to the testatrix ,* and to the four brothers, in equal shares, S18 acres of land and any other property owned by the testatrix. It also provided that the share of any deceased brother would go to his children, and further stipulated, in effect, that the four brothers should be executors with “full power and authority to probate my will, pay my debts, to wind up my estate.” Nothing was left to the three sisters.

One of the sisters applied for letters of administration on Mrs. Hoben’s estate, alleging that all beneficiaries of the will had renounced their rights thereunder and had agreed that the will would not be probated and that all property owned by the decedent should pass to her heirs at law in accordance with the statutes of descent and distribution. Raymond Salmon was the only beneficiary of the will who disputed the alleged agreement. He employed attorneys and filed an application for probate of the will, which was contested by the two sisters on the basis of the alleged family settlement. After consolidation of the two proceedings, the will was admitted to probate and the application for letters of administration was denied. The two sisters appealed and the Court of Civil Appeals affirmed, but we remanded the cause for a new trial. Howard v. Salmon, Tex.Sup., 359 S.W.2d 882. At the conclusion of the second trial, the will was again admitted to probate. Raymond Salmon and Wilburn Salmon were appointed and qualified as executors, and no further appeal was taken in that proceeding. This brings us to the present controversy, which involves the payment by the estate of attorney’s fees for representing Raymond Salmon in the litigation leading to the probate of the will.

A number of lawyers testified regarding the value of the services rendered by Raymond Salmon’s attorneys in the former action. The highest figure suggested by any of these witnesses as a reasonable fee certain, i. e. a fee to be paid in cash without regard to the outcome of the litigation, was “somewhere around $15,000.00 to $17,-000.00.” As indicated above, Raymond Salmon had employed his attorneys on a contingent fee basis, and there is evidence that from $25,000.00 to $33,333.00 would be a reasonable contingent fee. The only witness who attempted to state the weight that might properly be given the contingency or certainty of the compensation in determining the amount of the fee expressed the opinion that a fee certain should be about half as large as a contingent fee.

Prior to the adoption of the Probate Code, there was no Texas statute expressly providing for the allowance of attorney’s fees and other expenses incurred by an executor in probating or defending the will. Article 3691, Tex.Rev.Civ.Stat.1925, merely authorized the payment of expenses incurred in the preservation, safe-keeping and management of the estate, and reasonable attorney’s fees necessarily incurred in the course of administration. Section 243 of the Probate Code is, however, simply a legislative declaration of the law as previously announced by our courts. See Lang v. Shell Petroleum Corp., 138 Tex. 399, 159 S.W.2d 478; Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327; Pendleton v. Hare, Com.App., 231 S.W. 334; Casseb v. Sweeney, Tex.Civ.App., 252 S.W.2d 209 (wr. ref. n. r. e.); Cheesborough v. Corbett, Tex.Civ.App., 155 S.W.2d 942 (wr. ref. w. m.) ; McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942 (wr. dis.).

Under the provisions of Section 243 and the decisions dealing with the same problem, a person named as executor in a will is deemed to be acting for the benefit of the estate when he, in good faith and with probable cause, employs attorneys to defend the will or prosecute an action to probate the same. In these circumstances and “whether successful or not” he may be allowed “reasonable attorney’s fees.” This means a reasonable fee certain for the services rendered, and the statute does not authorize the allowance of an amount that might be reasonable for a fee contingent ■upon successful prosecution of the litigation. We agree with the Court of Civil Appeals, therefore, that the jury’s finding is without support in the evidence.

Section 242 of the Probate Code contains somewhat different provisions and deals, among other things, with attorney’s fees incurred in collecting debts and recovering property claimed by the estate. We are not to- be understood as holding here that the estate may never be required to pay a reasonable contingent fee under the terms of this statute.

Over the objection of Fred Salmon, who is our petitioner, the trial court permitted Raymond Salmon to testify that the amount of the contingent fee he had agreed to pay his attorneys was $25,000.00. This evidence should have been excluded. Raymond Salmon had no power to bind the estate to a contingent fee contract, and it is the estate which is now to be charged a reasonable fee for the work done by the attorneys. In this respect the case is quite different from Bryant v. Browning, Tex.Civ.App., 48 S.W.2d 798 (wr. dis.), and the decisions there cited. The amount which Raymond Salmon, who was principal beneficiary of the will, might be willing to pay as a contingent fee could be of little assistance to the trier of fact in fixing a reasonable fee certain for prosecuting the former action. As pointed out in Rowe v. Dyess, Com.App., 213 S.W. 234, the amount is determined by the reasonable value of the services rendered for the benefit of the estate and not by any agreement on the part of the personal representative. Proof of the terms of the contract tended to lead the jury away from the real issue in the case, a risk which far outweighs the slight relevance of the evidence in question. From a review of the entire record, we are .persuaded that its admission was reasonably calculated to and probably did cause the jury to fix the fee in an amount larger than the evidence will support.

An error of this nature cannot be cured by filing a remittitur which simply reduces the judgment to the highest figure warranted’by the evidence. Since the cause must be remanded for a new trial, an expression of our views on two other contentions urged by petitioner may be of assistance to the trial court. Petitioner insists that the expenses incurred in resisting the alleged family settlement do not fall within the provisions of Section 243. He would allow the executors out of the assets of the estate a reasonable fee for an uncontested probate of the will and require the lawyers to look to Raymond Salmon individually for the remainder of their compensation. It is true that the will was not attacked upon any ground which would have rendered it ineffective as a testamentary disposition at the time of Mrs. Hoben’s death. The contestants in the former proceeding relied only upon the alleged family settlement, and all beneficiaries of the will other than Raymond Salmon were aligned with the contestants, in opposing the application to probate. Petitioner argues that under these circumstances the expenses of litigation incurred by Raymond Salmon should be paid by him individually, because he was acting -solely for his own advantage and benefit and in opposition to the other beneficiaries of the will.

Under our law a family settlement in which all of the heirs and beneficiaries agree that a purported will shall not be probated is valid and enforceable. The agreement is no less effective as a bar to an action by one of the contracting parties to probate the instrument than undue influence or testamentary incapacity. Franke v. Cheatham, 157 Tex. 397, 303 S.W.2d 355; Brown v. Burke, Tex.Civ.App., 26 S.W.2d 415 (no writ); Stringfellow v. Early, 15 Tex.Civ.App. 597, 40 S.W. 871 (no writ). See also Wade v. Wade, 140 Tex. 339, 167 S.W.2d 1008. Although there is considerable force in petitioner’s argument, we have concluded that Section 243 is applicable where, as here, an alleged family settlement is the only ground urged in opposition to the probate of the will.

Some courts take the position that a person named as executor is under no duty to engage in litigation for the purpose of establishing the will, and that a contest is ordinarily a controversy between the heirs on the one hand and the devisees and legatees on the other. In these jurisdictions the ultimate burden of attorney’s fees incurred by the executor in probating or defending the will is usually determined by the circumstances of the particular case, and an executor who also has a substantial interest in maintaining the will is often required to bear the expense of litigation on the theory that he was acting in his own behalf rather than for the benefit of the estate. See In re Nolan’s Estate, 56 Ariz. 366, 108 P.2d 391; In re Higgins’ Estate, 158 Cal. 355, 111 P. 8; In re Smith’s Estate, 165 Iowa 614, 146 N.W. 836; State ex rel. Stephens v. Wiseman, Ohio App., 42 N.E.2d 240; Annotations, 10 A.L.R. 783, 69 A.L.R. 1052, 128 A.L.R. 1002, 40 A.L.R. 2d 1407. Our approach to the problem is somewhat different, because the Texas statute and decisions are based on the premise that an executor who attempts in good faith and with just cause to uphold the will is acting for the benefit of the estate. Raymond Salmon’s right to an allowance of a reasonable attorney’s fee out of the assets of the estate is not affected by his interest in the outcome of the litigation or by the fact that he acted contrary to the wishes of the other beneficiaries.

Petitioner also contends that the charge should be apportioned to the several beneficiaries of the will in accordance with the amount each gained as a result of the litigation. He cites State v. Wiseman, supra, and In re Shepherd’s Estate, 152 Or. 15, 49 P.2d 444, 49 P.2d 448, in support of this proposition. See also Annotation, 20 A.L.R.2d 1226. Assuming without deciding that there are situations in which the cost of probating or defending the will should be apportioned to the devisees and legatees, it is our opinion that this is not such a case. As a general rule attorney’s fees incurred by the personal representative con-'stitute expenses of administration and usually are payable out of the residuary estate. Mrs. Hoben’s will directs payment of any debts she might owe, and further provides that in the event it was necessary to sell property for that purpose each brother should pay one-fourth of such debts. The evidence indicates that the residuary estate is more than sufficient to pay the charge now in issue, and the expense will thus fall one-fourth on each of the surviving brothers and one-fourth on the children of Harry Salmon, all of whom were bene-fitted from the probate of the will. Raymond Salmon gained more than the other beneficiaries as a result of the litigation, but it is not unfair for the latter to pay an equal share of the expense when they supported the contest which made the same necessary. We hold that under all the circumstances the attorney’s fee should be charged and paid in accordance with the general rules governing expenses of administration.

The judgments of the District Court and Court of Civil Appeals are reversed, and the cause is remanded to the District Court for a new trial.

NORVELL, Justice

(dissenting).

As I see it, the controlling question in this case is whether or not Raymond Salmon entered into a binding family agreement with the other beneficiaries named in the will of Mrs. Maria Hoben which provided that Mrs. Hoben’s will should not be probated. As stated in the Court’s opinion such an agreement is legal and enforceable in Texas. It is simply a time and expense saving device. Had the title to the deceased’s property passed to the beneficiaries under the will, they could have executed conveyances that would have vested title to such property in those who would take under the statutes of descent and distribution. Essentially then this is a contest between Raymond Salmon who says he did not accede to the family agreement and Fred Salmon who says that he did. This is a common species of litigation in which one party asserts the existence of a contract while the other party denies it. Under such circumstances, particularly in the absence of a claim for punitive damages, the general rule is that each party must pay his own attorney’s fees.

The Court construes Section 243 of the Probate Code as varying the general rule and says that such section is a “legislative declaration of the law as previously announced by our courts”. None of the cases cited in support of this statement involves a family agreement not to probate a will and I find no well considered authority prior to the adoption of the probate code which would support the allowance of attorney’s fees in a case like this, — which after all is essentially a dispute over whether a contract exists or not. It seems that any contention that Section 243 of the Probate Code provides for the recovery of attorney’s fees in the family agreement situation, must be predicated upon the proposition that such section constitutes new legislation giving rise to that right rather than being a restatement in code form of a rule of law heretofore announced by court decisions.

In my opinion, Section 243 is not new legislation and gives rise to no new rights. It is, as stated by the Court, simply a legislative declaration of the law as previously announced by our courts. I cannot however agree, in the absence of a controlling decision, that the law “-previously announced” would support a recovery in this case. I am in entire agreement with the doctrine which allows attorneys’ fees to a person named as executor in a will who in good faith, with probable cause and for the benefit of the estate prosecutes an action to probate a will. This, without regard for the outcome of the prosecution, because of a public policy against the suppression of wills. But, there is no public policy that militates against the family agreement which results in the non-probate of a will. Nothing is suppressed. If the agreement be valid, the beneficiaries are only doing what they have a legal right to do. Such agreements are neither illegal nor immoral. There is no sound reason in public policy why one who says there was no agreement should recover attorney’s fees regardless of success while one who asserts there was such an agreement could not recover attorney’s fees even if successful. There should be an equal balance of the scales. I would not allow attorney’s fees in cases like this until the time comes, if ever, when successful litigants in suits over contracts generally are allowed to recover attorney’s fees from their adversaries. Raymond Salmon is the only person who derives any benefit from this litigation. He, and not the Maria Hoben estate, should pay his attorney’s fees. Compare, In re Higgins’ Estate, 158 Cal. 355, 111 P. 8 (1910); In re Pryor’s Estate, 51 Cal.App.2d 735, 125 P.2d 511 (1942); In re Smith’s Estate, 165 Iowa 614, 146 N.W. 836 (1914). I would render judgment for the petitioner.

      . “§ 243. Allowance for Defending Will “When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.”


author: DICE, Commissioner.

text:
    Ramiro M. CABRERA, Appellant, v. The STATE of Texas, Appellee.
    No. 38473.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.

      M. Gabriel Nahas, Jr., King C. Haynie, Houston {on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Joe S. Maida, III, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted for the offense of unlawful possession of heroin and his punishment was assessed at confinement in the penitentiary for eight years.

At the trial, narcotics officer R. Y. Garcia, of the Houston police department, testified that on the night in question he observed the appellant, at approximately 8:25 p. m., driving his 1960 Pontiac automobile west on Quitman Street and that he proceeded to follow appellant and observe him get out of his car and place a small bottle by a highway marker. The officer stated that he then drove to the highway marker and picked up the bottle, which the proof showed contained heroin. He then followed appellant and stopped him as he was driving on Quitman at Cochran Street.

While Officer Garcia was testifying on direct examination, certain questions were propounded to him, and the following transpired :

“Q. What attracted your attention ' to this vehicle with the defendant in it ?
A. I had received information—
“Mr. Nahas: I object to it as being hearsay and ask that it be stricken and ask that the jury be instructed to disregard it.
“The Court: Overruled.
“Mr. Nahas: Note my exception.
“A. (By witness) I had received information from a reliable and credible person about 8H5 that the defendant would be in his automobile, a 1960 Pontiac, brown in color, License No. TC3660 and that he was on his way to deliver some heroin in the vicinity of Quitman at North Main.
“Mr. Nahas: Your Honor, I object to it again as hearsay and move that it be stricken.
“The Court: Overruled.
“Mr. Nahas: Note my exception.”

The testimony elicited from Officer Garcia, over appellant’s timely objection, as to the information he had received was dearly hearsay and should not have been admitted before the jury.

Such testimony was reasonably calculated to prejudice the rights of appellant, especially in view of his absolute denial— while testifying as a witness in his own behalf — that he had ever seen the bottle or placed it by the highway marker. The admission of such testimony presents reversible error. Sowers v. State, 160 Tex.Cr.R. 456, 272 S.W.2d 119; Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Beasley FIELDS, Appellant, v. The STATE of Texas, Appellee.
    No. 38505.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Robert B. Maloney, Sam N. Vilches, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Mike Everett and John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, ten years confinement in the state penitentiary.

The state adduced evidence from Mr. Adrian T. Willi, who testified that he owned a house located at 1818 Kraft Street in the County of Dallas, State of Texas. The house was a building and it had four walls, a roof and a floor, and it was capable of being locked. On November 29, 1964, Mr. Willi had occasion to visit his property at 1818 Kraft Street, which had been vacated by a tenant only the day before. Upon such occasion he secured the windows and doors in said house by nailing them shut and locking the doors. On Monday, November 30, 1964, he returned to the house and noticed that the back door was open and that the lock mechanism had been broken off. All of the copper fittings and pipes had been taken from the water heater, the commode and from the back drain of the tub. Mr. Willi estimated the cost of replacement at approximately $135.00. The record reflects that Mr. Willi had possession and control of the house and the things contained therein. The pipe fittings belonged to him. He did not give his consent to anyone, including Beasley Fields, to break and enter into the house and remove the property therefrom.

Tony Laman was called as a state witness. He testified that he was employed by the Empire Iron and Metal Company in Dallas, Texas, located at 1910 Singleton Boulevard. The company was in the scrap metal business. On or about Tuesday or Wednesday subsequent to November 30, 1964, he had occasion to purchase some copper tubing from an individual who gave his name as Cooks. He had done business with Cooks at least eight times and Beasley Fields was in fact the man known to him as Cooks. He related that he bought copper tubing and brass fittings from Cooks on said date and paid him approximately 300 a pound or around $3.00. The pieces of pipe were short and had been broken off their fittings. This witness testified that Detective Dees was present when this transaction occurred and as a result of a conversation between himself and Detective Dees, the latter went across the street and brought Beasley Fields back with him.

The state called E. D. Dees, who testified that he was a member of the Dallas Police Department in the burglary and theft division and that he had been with the Dallas Police Department 19 years. Detective Dees testified that on December 2, 1964, he saw Beasley Fields, a person known to him, at the Empire Iron and Metal Company. He had a conversation with Tom Laman and Mr. Laman told and showed him something that caught his attention and thereafter he went across the street and arrested Beasley Fields beside the Lacey Food Store. Thereafter, he went back to the office of the Empire Iron and Metal Company and subsequently proceeded to City Hall. He and Beasley Fields were the only occupants of his car, and he drove his automobile into the basement of City Hall and Beasley Fields was sitting in the passenger seat of the car. When the automobile stopped in the basement, appellant Fields jumped out of the car and ran up the ramp onto Commerce Street. Detective Dees hollered at him to stop and when he did not, Mr. Dees got back into his car and drove out onto Commerce Street in an attempt to find appellant. He located appellant walking East on Main Street and called to him, and appellant came over and got back in the car. He subsequently took appellant back to the burglary and theft office in City Hall. The time of arrest was approximately 3:00 in the afternoon, and they arrived at the office of burglary and theft at approximately 3:45 p. m. Upon reaching the office he talked with appellant for approximately 10 minutes, and at the end of that time he and appellant and Detective J. H. Jones got into a car and proceeded at the directions of appellant to 1818 Kraft Street. Upon reaching the location Detective Dees had a conversation with a lady who lived next door. Subsequently appellant, accompanied by the detectives, returned to City Hall where appellant was plaeed in jail. At this point, the jury was retired, and Detective Dees was taken on direct examination by state’s counsel. Outside the presence of the jury, Detective Dees testified that on December 3, 1964, at about 11:00 in the morning he had a conversation with Beasley Fields. He gave him the statutory warning and told him he had a right to talk to a lawyer before giving any statement. Appellant stated he did not want to get a lawyer at this time. He related that Beasley Fields gave a voluntary statement concerning this offense, which was reduced to typewriting and appellant was given a copy of the statement. The statement was then read to appellant in its entirety. Subsequently appellant signed the statement in the presence of a witness. The statement was given in the interrogation room of the burglary and theft bureau, and for the most part only Detective Dees and appellant were present during this interview. Subsequent to the examination by counsel, the court made a finding of fact that said statement was voluntarily given and was admissible into evidence. The jury was then returned to the jury box, and the state laid the predicate with the detective for the admission of the statement into evidence. The statement was marked as State’s Exhibit No. 1, and at the time it was offered into evidence appellant’s counsel announced “no objections”. Thereafter, said statement was received into evidence and read before the jury.

The statement of appellant relates that he went to a vacant house at 1818 Kraft where his sister had recently moved from. “I entered the house through the back door. I took all the copper tubing from the hot water heater and the bathroom. I sold this copper the next day at Empire Iron and Metal Company on Singleton Boulevard. I got about $3.00 for it.”

Appellant contends that the evidence is insufficient to sustain the verdict. We find it amply sufficient and overrule this contention.

During the jury’s deliberations the foreman sent a note to the trial judge, as follows: “Is an unlocked door which is closed considered breaking, if opened by an unauthorized person?” The Court replied: “In answer to the foregoing question the Court refers you to the third paragraph of the charge wherein it states: “The slightest force, however, is sufficient to constitute breaking.”

Appellant contends that such an instruction amounts to a comment upon the weight of the evidence by the trial court and that this emphasis by the Court of a portion of its charge bolstered the testimony of the .witness, Willi. Appellant cites us no authority m support of his contention. We know of none. The careful trial judge properly instructed the jury by answering their question specifically. They wanted to know what the law was, and the judge told them. We perceive of no error in the trial court’s action.

The only other contention advanced by appellant is by an informal bill wherein he complains of testimony adduced from the witness, Willi, who was the owner of the premises burglarized. Appellant contends that the property taken was realty, rather than corporeal personal property, since it had been permanently attached to the realty. It is elemental that property loses its character as realty when it is removed or severed. We find no merit in this contention.

Finding no reversible error, the judgment is affirmed.


author: MORRISON, Judge.

text:
    Marion Kenneth McCAFFERTY, Appellant, v. The STATE of Texas, Appellee.
    No. 38672.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.

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

The complaint and information charge appellant with the offense of aggravated assault upon a policeman while in the discharge of his duties. Upon a plea of guilty the Court found appellant guilty of the offense of driving while intoxicated.

The variance between the judgment and the information is fatal. Brown v. State, Tex.Cr.App., 391 S.W.2d 61, and Acosta v. State, Tex.Cr.App., 385 S.W.2d 394, and cases there cited.

The judgment is reversed and the cause is remanded.