text:
    William W. SMITH, Employee-Appellant, v. TERMINAL TRANSFER COMPANY, Employer-Respondent, and The Travelers Insurance Company, Insurer-Respondent.
    No. 23859.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Terrance W. Imes, Kansas City, for appellant.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   CROSS, Judge.

This case arose out of a claim for accidental injury benefits under the Workmen’s Compensation Law. William W. Smith, the claimant-employee, has appealed from a judgment of the circuit court reversing a final award in his favor in the sum of $4,-199.28 entered by the Industrial Commission of Missouri, subject to credit in the sum of $135.00 previously paid to him.

It is claimant’s contention that the circuit court should have affirmed the Commission’s award because it was supported by substantial competent evidence and was not against the overwhelming weight of the evidence. Instead, claimant complains, the circuit court erroneously disregarded the determinations of fact made by the Commission and reversed the award on its own “version of the facts”.

In deciding the appeal issues presented it is not the province of this court to weigh the evidence and substitute its judgment thereon for that of the Commission. Our review is limited to determining whether that administrative tribunal could reasonably have made its findings and reached its result upon the evidence before it. If there is competent and substantial evidence upon which to base the award and if such award is not clearly contrary to the law or the overwhelming weight of the credible evidence, we are bound to affirm it. This rule is so axiomatic that no recital of authority for it is necessary. “The mere statement of the rule necessarily carries the implication of deference to the commission in respect to its findings on disputed questions of fact.” Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773.

In resolving whether the Commission could reasonably have made its findings, this court upon its review of the whole record will look only to the evidence most favorable to the award, together with all reasonable inferences that tend to support it, and will disregard all opposing and unfavorable evidence, “ * * * even though the finding of the commission to the contrary would also have been supported by evidence”. Greer v. Missouri State Highway Department, supra, and cases therein • cited. In accordance with the foregoing rule, we here set out the facts pertinent to the issues to be decided.

In the year of 1956 claimant entered into employment by respondent Terminal Transfer Company as a truck driver. As a part of his duties he was required to load and unload various merchandise. The record does not reflect the happening of any incident, prior to the date of the alleged accident, bearing on the controversy arising from it. There is no history of any back injury or weakness suffered by claimant or any complaint by him thereof prior to October 3, 1961.

On the named date, in the course of his regular employment, claimant suffered an accidental injury to his back while he and a fellow employee, Tony Contorno, were engaged in the work of unloading sacks of sugar from a railroad car into a truck trailer. The two men were unloading the boxcar by first transferring the sacks of sugar, each of which weighed 60 pounds, onto a “two-wheeler” hand truck. They were stacking the sugar onto the two-wheeler seven sacks high. There is evidence that loose sugar had “trickled” out of the sacks onto the boxcar floor and that “it was slippery on the floor where the sugar was at”. Claimant testified, “Well, we were unloading the sugar by way of a two-wheeler into the trailer. We were stacking it seven high, and I had the sixth one on and was going to the seventh one when I raised the seventh one up and turned around with it and I slipped on the sugar on the floor and went down against the boxcar, and the sugar (sacks) was just right beside each other, and I fell to them and I had pain in my lower back. * * * I slipped on the floor on the sugar when I was turning around putting it up, the other sack high.” Contorno testified to the effect that claimant “twisted when he had that sack up in the air”; that he saw claimant fall up against the stack of sugar sacks, and that “I was standing right by him when he twisted”. Contorno also said, “and when he twisted I seen him let go of it back up in front of the other ones on top — about shoulder high”. Immediately after claimant slipped, twisted and fell he suffered severe pain in his lower back, which he described as “excruciating” and as “a tremendous amount of pain”, and told Contorno he had hurt his back. Claimant was unable to continue stacking the sugar sacks and did no more work that day. 'Contorno finished the job of unloading by himself and drove the truck to the employer’s garage where claimant reported to Ray Thompson that he had hurt his back while working in the sugar car. Thompson suggested that claimant see a doctor. Claimant thought maybe it might be a bad sprain and told Thompson he would rather wait and see what it did. He suffered further severe pain that night.

Claimant returned to work the next morning. His back was then hurting him “pretty bad” and he so informed John Bun-ton, the warehouse superintendent, who assigned him a job to pick up and deliver a load which was to be handled by fork lifts and which required no lifting. Upon delivering the load claimant backed his truck to a freight dock and undertook to place a “bridge” from the truck to the dock. He bent over, got hold of the bridge, and started to lift it, but was unable to do so because he felt a tremendous amount of pain in his back which he described as the same excruciating pain he had felt the day before and the night before also. He did no more work that day and either Ray Thompson or John Bunton, the warehouse superintendent, sent him to Dr. Johnson, the company physician.

Dr. Johnson treated claimant with heat for a week or two, but he got no better, kept having pain and couldn’t go back to work. With the consent of the insurance adjuster, claimant went to Dr. Hodge, who put him in the North Kansas City Hospital as an emergency patient and placed him in traction for about two weeks. While in the hospital claimant was examined and diagnosed by Dr. Workman, who testified on his behalf. After his release he still continued to suffer severe pain in the lower lumbar, region, but returned to work about November 26, 1961. Terminal discharged claimant on December 13, 1961. Although at the time of the hearing claimant was re-employed, he continued to have back and leg pain which caused him loss of time from work.

Claimant’s medical witness, Dr. Workman, examined and diagnosed claimant at the hospital on October 15, 1961, and subsequently at his office on October 27, 1961, March 17, 1962 and June 22, 1962, the latter date being four days before the referee’s hearing. Dr. Workman’s findings in respect to claimant’s condition of disability, as narrated in evidence, include: no pathology of the spine shown by X-rays; back and leg pain; limitation of motion in the lumbar spine; lumbar muscle spasm; positive straight leg raising test; atrophy of the right calf; decreased ankle jerk on the right; numbness of the right foot; tenderness in the lumbo-sacral area and pain on forward and lateral bending. In the opinion of Dr. Workman claimant has a herniation of a spinal disc at the 1^5, S-l level, with compression of the nerve root, and that condition is the cause of claimant’s disability. The doctor stated that a herniated disc is not shown by X-rays but that a myelogram is very helpful in confirming such condition. He recommends the performance of a myelogram and surgical operation on claimant in the nature of a spinal fusion if he is to continue to do heavy manual labor. Dr. Workman testified that in his opinion plaintiff’s present disability without treatment by surgery was approximately 30 per cent of his body as a whole.

The witness also stated it was his opinion that the accident which occurred on October 3, 1961, when claimant was loading sugar, could have caused the condition found in his back, and could have caused the herniated disc, and that the disc could be injured more by lifting something else later. On cross examination Dr. Workman also testified that the incident of October 4th which happened when claimant bent down to pick up the “bridge” could have caused the disc “to protrude (initially) or protrude further”, hut that he had no way of “dating” the disc injury except by what the patient told him.

Replying to questions as to the cause of a herniated disc injury, Dr. Workman testified in part as follows:

“A I actually don’t know what particular mechanisms are most likely to produce a herniated disc. Many patients give different stories about what precipitated it. One of my patients bent over to tie his shoe. So it doesn’t require severe force to produce a herniated disc. Any force at all might produce it”.
* * *
“A Well, we think that the mechanism of disc production is probably a force that is exerted to an abnormal disc in flexion, but you are asking me the effective twist danger imposed upon bending, and I don’t know the answer”.
* * *
“A There is lots we don’t know about the mechanism of the lumbar spine”.
* * *
“A I would hesitate to say that. (That bending forward and leaning over was the only producing cause of disc herniation). I don’t think anybody knows. What doctors get about the producing mechanism is simply what patients tell us. It is impossible to— there is no way to get a strain gauge in the disc space to analyze it”.

The employer also produced one medical witness, Dr. William H. Duncan, who diagnosed claimant’s condition as “a ligamentous and muscular sprain of the lower back area with symptoms and findings slightly suggestive of possible nerve root compression”. Although the witness expressed doubt that claimant had a herniated disc, he admitted the possibility of that condition, and testified that if claimant had a ruptured disc it would be impossible to say whether it was produced by the accident in the boxcar on October 3d, or by claimant’s effort to lift the bridge on October 4th, or by a combination of both occurrences. He admitted on cross examination the claimant “would have had it started by number one and completed by number two”. Dr. Duncan further testified that if claimant had a negative myelogram (indicating there was no herniated disc) he would rate claimant’s disability at between 10 and 15 per cent of the body as a whole.

The referee found from the evidence that claimant suffered an accident on October 3, 1961, resulting in injury to his back, that he was in Terminal’s employ at the time thereof and that it arose out of and in the course of his employment. The “exact” nature of the injury was stated by the referee as “Twenty-five per cent permanent partial disability of the back”. Additional specific findings of the referee are in part as follows: “(Employee) Was employed as a truck driver and while unloading sacks of sugar, was caused to be thrown in an unusual twist and strain, falling against side of boxcar, resulting in injuries to the back. * * * I find from all the credible evidence that the employee, William W. Smith, sustained an accident arising out of and in the course of his employment with Terminal Transfer Company on or about October 3, 1961, resulting in injuries to the lower back, which entitles said employee to compensation for permanent partial disability of the back to the extent of 25 per cent, or 100 weeks at $40.00 per week. * * * I further find that said employee sustained, as a result of said accident, temporary total disability from October 5, 1961, to November 26, 1961, inclusive, or a total of 7zh weeks, during which period he was unable to return to gainful employment * * '* ”,

Upon review, the Industrial Commission found that the referee’s award was supported by competent and substantial evidence, adopted his findings of fact, rulings and conclusions of law, and affirmed and adopted his award of compensation to claimant.

It is respondents’ position that the circuit court’s judgment setting aside the award of the Industrial Commission is correct because “claimant failed to satisfy the burden of proving that his disability was a result of his injury of October 3, 1961”. Therefore, respondents assert, “there was no competent or substantial evidence in the record to support the award of the Industrial Commission”.

In so contending, respondents rely .upon certain well established rules. • Citing appropriate authority, respondents remind us that in a workmen’s compensation case the claimant must prove a causal connection between the injury and the alleged accident; that “proof that something is merely possible is not evidence sufficient to establish the burden of proof”; and, that a finding ,or award of the Commission may not rest .alone on speculation, surmise or conjecture. It may be conceded that the foregoing statements of principle, as made by respond- • ents, are substantially correct and apply.in this case.

The gist of respondents’ argument that claimant failed to establish a causal connection between his injuries and the accident on October 3d, is summarized in their brief as follows: “(1) Claimant filed a claim for injuries allegedly resulting from an accidental injury of October 3, 1961. (2) Claimant testified to two separate occurrences, one on October 3, 1961, and one on October 4, 1961, both resulting in injury to his back. (3) No claim was asserted that the injuries received in the second occurrence were compensable. (4) There was no evidence that Claimant’s injuries were the result of the injury of October 3d. (5) There was no evidence as to how much of Claimant’s disability, if any, resulted from the incident of October 3, and how much, if any, resulted from the incident of October 4. (6) The medical evidence was presented solely in terms of possibilities, there being a possibility that Claimant’s injuries could have been the result of one incident or the other, or a combination of both”. Stated more simply, it is respondents’ contention that the medical evidence established only a possibility that claimant’s injuries and disability were caused by the October 3d accident and that there was no evidence otherwise from which the Commission could have found the existence of such causal relation.

The essential elements of a workmen’s compensation case are required to be proven in the same manner as essential elements are established in the ordinary action at law. A compensation claimant is not required to make stronger proof than would be required to establish liability under the common law. 100 C.J.S. Workmen’s Compensation § 542(1.), p. 577; Schaefer v. St. Louis Independent Packing Co., 225 Mo.App. 506, 38 S.W.2d 303. In workmen’s compensation proceedings the claimant’s burden of proof to establish, that the injury resulted from an accident is no greater than his burden to establish any other essential element of his claim. . While it is not sufficient to show that there is a “possibility” the injury was the result of the accident, the claimant’s burden of proof of causal relation is satisfied by showing with reasonable probability that his injuries resulted from the accident to which he attributes them. See McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950. “The finding of the commission need be based upon only a reasonable probability.” Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773, citing Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 218 S.W.2d 765; Lunsford v. St. John’s Hospital, Mo.App., 107 S.W.2d 163, 166; Gardner v. Ford Motor Co., Mo.App., 130 S.W.2d 201 (6); Leonard v. Fisher Body Co., St. Louis Division of General Motors Corporation, Mo.App., 137 S.W.2d 604, 610.

“In compensation cases, as in other cases,' to sustain the finding of an ultimate fact, it is not required that such fact be shown by direct and positive evidence, but it may be shown by circumstantial evidence. It is not essential that all doubt be removed. It is only essential that the finding be based upon a reasonable probability.” Zimmerman v. Goodfellow Lumber Co., Mo.App., 56 S.W.2d 608; Shrock v. Wolfe Auto Sales, Inc., Mo.Sup., 358 S.W.2d 812; Dunaway v. J. C. Penney Co., 240 Mo.App. 61, 209 S.W.2d 567.

In determining questions of fact the Industrial Commission has the right and the duty to draw such reasonable inferences as are warranted by the evidence taken as a whole and the circumstances disclosed by it. The findings and conclusions of the Commission based on such inferences are binding upon reviewing courts. O’Neil v. Fred Evens Motor Sales Co., Mo.App., 160 S.W.2d 775.

The Commission is authorized to base its findings and award solely on the testimony of a claimant. His testimony alone, if believed, constitutes substantial evidence to establish that he sustained an injury arising by accident, Powers v. Universal Atlas Cement Co., Mo.App., 261 S.W.2d 512, and, as stated by this court in Tuller v. Railway Express Agency, Inc., Mo.App., 235 S.W.2d 404, constitutes “substantial evidence of the nature, cause, and extent of his disability.”

In Garrison v. United States Cartridge Co., Mo.App., 197 S.W.2d 675, the court stated, “In view of the requirement of our act that for an injury to be compensable, it must have been sustained by accident, * * * the evidence must establish a causal connection between the injury and the accident. However, it is not imperative that such causal connection be shown by expert testimony, but it suffices if it appears from any competent evidence which supports such finding by the commission”. To like effect is this court’s ruling in Walker v. Pickwick Hotel, Mo.App., 211 S.W.2d 55. It must be acknowledged, however, that expert or medical testimony is necessary in some cases where there is a serious question resolvable only by skilled determination and which is not within the knowledge of lay witnesses or the fact finding tribunal— typically, cases involving scientific and technical questions relating to pathology and the etiology of disease arising subsequent to an injury. In Nick v. International Shoe Co., Mo.App., 200 S.W.2d 590, the court said, “An examination of the cases discloses that sometimes an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. But this is not so as to all injuries.”

In the late case, Smith v. American Car & Foundry Div., A.C.F. Ind., Inc., Mo.App., 368 S.W.2d 515, the court held as follows: “Under the factual situation presented by this case, a workmen’s compensation proceeding, the claimant’s own testimony that when the jackhammer went through and he was pulled down to the floor he hurt the left side of his back, that he felt pain in his back immediately upon arising, that he had never experienced back trouble before and evidence that his doctor diagnosed his complaint as ‘low back strain,’ constituted evidence from which the Industrial Commission might reasonably find or infer a causal connection between the accident and his injury. We cannot say that the failure of his medical expert to testify with a greater degree of certainty deprived all of this evidence of its character as substantial evidence from which the Industrial Commission could reasonably have reached its conclusion. Morrow v. Orscheln Bros. Truck Lines, supra (235 Mo.App. 1166, 151 S.W.2d 138). The point is ruled adversely to the employer.”

Since Larson in his treatise on Workmen’s Compensation Law recognizes the principles we have noted above, we deem it appropriate to quote here from that authority. The following preliminary statement is made in Sec. 79, p. 287:

“In line with the general tendency of administrative law to recognize the expertise of specialized tribunals, compensation boards may rely to a considerable extent on their own knowledge and experience in uncomplicated medical matters, and in such cases awards may be upheld without medical testimony or even in defiance of the only medical testimony”.

Continuing in Sections 79.50-79.54, pp. 299-303, Larson further states:

“In compensation law, the administrative-law-evidence problem of expert opinion and official notice finds its principal application in the handling of medical facts. The usual question is the extent to which findings of the existence, causation or consequences of various injuries or diseases can rest upon something other than direct medical testimony- — the claimant’s own description of his condition, for example, or the commission’s expert knowledge acquired not by formal medical education but by the practical schooling that comes with years of handling similar cases”.
* * *
“To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariable so”.
* * *
* * * (The) causal connection between an injury, such as a fracture of the back, and ensuing disability which had not existed before the injury, may be established without medical support”.
* * *
“Even more striking is the holding that, if the circumstances themselves are persuasive enough, a conclusion supported by no medical testimony may stand in defiance of medical testimony to the contrary. This was true of the case just mentioned, involving a back fracture, where the only medical testimony in the record negated the connection between the injury and disability”.
* * *
“In arriving at this rule, two underlying reasons may be discerned: the first is that lay testimony, including that of claimant himself, is of probative value in establishing such simple matters as the existence and location of pain, the sequence of events leading to the compensable condition, and the actual ability or inability of claimant to perform his work; the second is that industrial commissions generally become expert in analyzing certain uncomplicated kinds of medical facts, particularly those bearing on industrial causation, disability, malingering and the like”.

In Valente v. Bourne Mills, 77 R.I. 274, 75 A.2d 191, the Supreme Court of Rhode Island rejected the employer’s argument that an award should not stand because there was no medical testimony to support it. As to the necessity of medical diagnosis the court said:

“The first contention, as stated, if literally followed would turn a compensation case into a clinic where doctors seek to determine the ‘diagnosis’ of a patient’s ailment and the ‘pathological nature’ of that condition according to the more exacting norms of medical science. The application of so strict a rule to establish the required causal relationship in the field of law, where the ultimate objective is the attainment of substantial justice according to the remedial purposes and provisions of the act, would cast an unfair burden upon a person injured by accident.”
* * *
“We concede that in the great majority of cases such testimony ordinarily is necessary because of the seeming absence of connection between a particular accident and a claimed resulting injury. But in other cases involving Special and peculiar circumstances, medical evidence, although highly desirable, is not always essential for an injured employee to make out a prima facie case, especially if the testimony is adequate, undisputed and unimpeached. Thus where, as in the instant case, injury appears in a bodily member reasonably soon after an accident, at the very place where the force was applied and with symptoms observable to the ordinary person, there arises, in the absence of believed testimony to the contrary, a natural inference that the injury, whatever may be the medical name, was the result of the employment.”

Once more (and finally) we quote from Larson’s treatise on Workmen’s Compensation Law. Sec. 80.32, pp. 322-323 contains the following admonition that compensation awards should not stand or fall on “cautious” medical testimony:

“The distinction between probability and possibility should not follow too slavishly the witnesses’ choice of words, as sometimes happens in respect to medical testimony. A doctor’s use of such words as ‘might’, ‘could’, ‘likely’, ‘possible’ and ‘may have’, coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is sufficient to sustain an award. It is a common experience of compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualified are his statements on the witness stand. He will testify that the sledge-hammer blow on claimant’s head might have caused claimant’s headache, but hesitates to say positively that this was the only possible cause, and may concede on cross-examination that there could conceivably be other causes. The weight of such testimony, however, should not be too sharply discounted because of the disposition of the highly-trained scientific mind to refrain from unqualified statements or opinions on such matters as causation.
* * *
“ * * * It may indeed be questioned whether awards should stand or fall according to whether the medical witness happened to choose a phrase which meets a requirement based on such subtle gradations”.

The medical evidence in this case is a vivid example of caution on the part of testifying experts, as well as a disclosure of their inability to demonstrate with scientific accuracy the cause of claimant’s injury. It may be said in their behalf, however, that the prudence displayed by them in testifying is entirely justified in view of their forthright admission that they do not know what force or stress is the likely producing cause of a herniated disc. Their professed knowledge on that subject appears to be no greater than is possessed by laymen. One of the experts frankly confesses his inability to “date” the disc rupture except by what the patient tells him.

It is apparent that medical learning is of little aid to the triers of fact in this case, except to furnish scientific evidence of the possibility that claimant’s injuries resulted from the original accident. This does not mean that claimant must go hence from administrative and judicial tribunals without redress. The law providently affords him the right to establish the essential element of causation by probative evidence other than medical. “In accordance with the general rules, * * * a finding as to which of two or more accidents caused the disability cannot be upheld if based on mere conjecture, * * * but if there is evidence pointing to any logical theory of causation, indicating a logical sequence of cause and effect, the finder of fact is authorized to select that theory notwithstanding the existence of other plausible theories with or without support in evidence.” 100 C.J.S. Workmen’s Compensation § 555 (16). “Medical testimony of possibility may be sufficient to establish causation where corroborated by other and nonmedical evidence, as in the case of injuries so naturally and directly connected with the accident that proof of causality does not depend on expert evidence”. 100 C.J.S. Workmen’s Compensation § 555(5), p. 683.

In its final award of compensation the Industrial Commission made the specific finding that claimant sustained an accident on October 3, 1961, “resulting in injuries to the lower back”, but made no finding that the incident of October 4th either caused or contributed to claimant’s injuries or disability. The language employed in the finding above noted is plain and unambiguous. Consequently its effect will be declared in the light of its literal meaning. It is not necessary or appropriate that we search for any hidden or subtle meaning. We accept the finding in its natural and literal sense, and consider it to be a determination by the Commission that the proximate cause of claimant’s condition of injury and disability was the compensable accident which occurred on October 3d, and that the incident of October 4th was not an initiating or contributing cause. It is our opinion that there is ample support in the record for the finding of causation so made by the Commission.

We believe that the preponderately reasonable inference to be drawn from the closely related sequence of events occurring within a period of less than 24 hours is that of a causal connection between the compensable accident of October 3, 1961 and claimant’s disability as determined by the Commission. The results following that occurrence are so directly, immediately, naturally and probably attributable to it, that the finding of a casual connection between them does not depend upon the testimony of medical experts, but may properly be inferred by laymen.

It is an undisputed fact that claimant had no back injury, disability or pain prior to the accident. He has conclusively established that he suffered an accident on October 3d when he slipped on the car floor, “twisted” his body while holding a 60 pound sack of sugar, shoulder high, and sustained a fall while in that position. Since he suffered immediate pain in his back and was forthwith rendered unable to continue his work, it is reasonable to infer that torsional forces and stress had .so operated as to cause an injury of some nature to his back. He reported his accident and injury immediately to his employer. His pain endured through the night and persisted until he attempted to work the following day. The result of his effort to lift the bridge, his first attempt at bodily effort of that nature since the original injury, was a recurrence of the pain he had felt the day before and had suffered during the intervening night. and a confirmation of the existing fact that he had a hack injury and was unable to work.

As we view the evidence showing this sequence of events, we believe that the most probable inference to be drawn therefrom in respect to the “lifting' incident of October 4th is that the pain claimant suffered on that occasion was only a manifestation or an acute symptom of the back injury he sustained from the accident on the previous day, and, in the language of the Supreme Court in Hall v. Spot Martin, supra, that “the second alleged injury was merely the occasion for him to know that he had further trouble with his back.” The Commission was amply justified in rejecting the incident of October 4th as a cause of claimant’s injury and disability.

In reaching these conclusions we have duly considered authorities cited and relied Upon by respondents. We do not, however, regard those cases as persuasive on the question before us, because the fact situations therein presented are grossly dissimilar to the facts in this case. It is elementary that the question of causal connection is to be decided in the light of the particular facts and circumstances of each case.

Accordingly, we hold that the findings and award of the Commission are supported by competent and substantial evidence and are not contrary to the law or the overwhelming weight of the evidence.

The judgment is reversed and the cause is remanded to the circuit court with directions to enter its judgment affirming the award of the Industrial Commission.

All concur, including HIGGINS, Special Judge.

SPERRY, J., not sitting.

      . Citing Walker v. Pickwick Hotel, Mo.App., 211 S.W.2d 55.

      . Citing Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173, loc. cit. 1175; Meyers v. Wells, Mo.Sup., 273 S.W. 110, loc. cit. 116; Edmondson v. Hotels Statler Co., 306 Mo. 216, loc. cit. 236, 267 S.W. 612, loc. cit. 617; Kinder v. Hannibal Car Wheel & Foundry Co., Mo.App., 18 S.W.2d 91, loc. cit. 93; Klohr v. Edwards, Mo.App., 94 S.W.2d 99, loc. cit. 105.

      . Citing: Jarka Corp. v. Norton (D.C. Pa.), 56 F.2d 287.

      . Also see Autry v. General Motors BOP Assembly Plant, 85 Ga.App. 500, 69 S.E. 2d 697, wherein the court said: “The director was not bound by the testimony of the physicians on the ultimate issue of fact, that of causation”.

      . See Hall v. Spot Martin, Inc., Mo., 304 S.W.2d 844.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    T. C. YOUNG CONSTRUCTION COMPANY, Inc., et al., Appellants, v. Grant BROWN, Jr., Appellee.
    Court of Appeals of Kentucky.
    Nov. 15, 1963.

      William A. Rice, Harlan, J. C. Helton, Pineville, for appellants.
    John J. Tribell, William S. Tribell, Mid-dlesboro, for appellee.
   PALMORE, Judge.

At about daylight on the morning of August 22, 1960, a pickup truck being driven by Albert Monroe Hodge on the business of his employer, T. C. Young Construction Company, collided with an automobile driven by Grant “Junior” Brown. In the accident Brown re-injured a collar bone that had been fractured a little over three weeks before. Thereafter the injury failed to respond normally to conservative treatment, and his physician deemed it necessary to remove the acromioclavicular joint in order to immobilize the clavicle and thereby conduce to a healing of the fracture. This procedure was successful and the bone did proceed to heal, but according to his medical witnesses Brown will be completely disabled from the performance of hard work and 25% to 30% disabled for lighter work. His suit against Hodges and the construction company resulted in a unanimous verdict and judgment in the amount of $46,000, from which the defendants appeal.

The first contention is that the evidence was insufficient to sustain a case of negligence.

The collision occurred at a place on U. S. Highway 119 in Bell County, Kentucky, called Tan Yard Hill. Brown was going" up the hill, toward Pineville, and Hodge was coming down the hill in the opposite direction, toward Harlan. It was raining and the road was slick. As Brown rounded a curve to his left he saw the truck driven by Hodge approaching at a distance of some 200 to 2S0 feet. It was sliding and out of control. Brown pulled his car to the right against a guardrail and stopped, but the truck continued out of control and, in the wrong traffic lane, struck the left side of the automobile.

Hodge said he came over the crest of the hill and was on a straight stretch of the highway when the front end of his truck began sliding to the left. He cut his wheels as far to the right as possible, but to no avail. He testified that his speed was about 30 m. p. h. Brown, however, estimated it was 35 to 40 m. p. h., and another witness said Hodge told him at the hospital that he had been going “30 or 40” m. p. h. The truck was loaded.

There have been exceptional cases in which this court has held that the skidding of a vehicle into the wrong lane on a slippery road did not itself constitute enough evidence of negligence for submission to a jury. See Risen v. Consolidated Coach Corporation, 274 Ky. 342, 118 S.W.2d 712 (1938), and Atlantic Greyhound Corporation v. Franklin, 301 Ky. 867, 192 S.W.2d 753 (1946). Ordinarily, however, where a driver who is aware of the treacherous condition of the highway loses control of his vehicle there is at the very least a permissible inference of negligence sufficient to sustain a verdict to that effect. Rose v. Vasseur, Ky., 320 S.W.2d 608 (1958); Cain v. Wilkins, Ky., 314 S.W.2d 574 (1958) ; Clement Brothers Construction Co. v. Moore, Ky., 314 S.W.2d 526 (1958) ; Thurmond v. Chumbler’s Administratrix, Ky., 287 S.W.2d 908 (1956); Works v. Winkle, 314 Ky. 91, 234 S.W.2d 312 (1950); Perkins v. Peek, 309 Ky. 652, 218 S.W.2d 668 (1949).

We are of the opinion that there can be very little question as to the sufli-ciency of the evidence in this case to warrant a finding of negligence. Indeed, a closer question is raised by Brown's contention that the truck driver was negligent as a matter of law, but the verdict obviates a necessity to decide it.

It is next contended that the evidence relating to Brown’s injuries did not justify an award of $46,000. As we have indicated, the principal injury was the disturbance or aggravation of the preexistent fracture, resulting in complications leading to removal of the acromioclavicular joint. There were, however, other injuries of a non-permanent nature from which Brown claimed to be suffering pain and discomfort at the time of the trial more than a year after the accident. He was in the hospital from October 11, 1960, to January 5, 1961, for treatment of and surgery upon the shoulder. His medical expenses resulting from the second injury totalled over $5500. His medical witnesses fixed his permanent disability at a minimum of 25% to 30%, contingent on his adapting himself to a lighter occupation. A physical examination in August of 1961 elicited symptoms of nerve-root irritation in the shoulder presaging a “good possibility” of further symptoms in the future. Brown had been employed as a coal miner at some stage of his career but apparently had reached his highest earning power as a heavy equipment operator. In 1958 he earned $8559 working for a construction company, which went out of business shortly thereafter, and in 1959 his income dropped to $3800. He did not earn anything in 1960, having spent most of that year, prior to the accident, serving out a 300-day jail sentence for a liquor violation. He readily admitted having been convicted on several occasions of trafficking in alcoholic beverages.

The fair import of the medical testimony for Brown is that before the accident of August 22, 1960, the fracture sustained on July 30, 1960, was knitting satisfactorily and without incident, and that in the normal course of events and except for the re-injury it would have healed completely in another three weeks or so; but after the accident of August 22, 1960, X-ray films showed a definite disturbance, probably a re-fracture, and “we had nothing but trouble. * * * The fracture wasn’t healing.” On the basis of the most favorable conclusions the jury could reasonably have drawn from the testimony of Brown’s witnesses, all of his disability is attributable to the accident of August 22, I960. Cf. Louisville & Nashville Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155, 160 (1960). We are unable to agree with appellants’ contention that there was a failure of proof in this respect.

If the jury intended its verdict to cover the full amount of special damages, as seems likely, in round figures the award in this case for pain and suffering and loss of earning power was $40,000. Accepting the testimony of Brown’s physicians at face value, as the jury had the right to do, he is 100% disabled to perform the only legitimate kinds of work for which he is qualified, at one of which he was able to earn $8559 during 1958. A reduction in this percentage of disability to a minimum of 25% to 30% depends upon the uncertainty of his becoming proficient in another line of work. At the time of the trial Brown was 39 years old and had a life expectancy of about 33 years. Neither we, the jury nor anyone else can assess the damage in such a case with any degree of exactitude or satisfaction ; hence the familiar rule that a verdict will not be set aside for excessiveness unless it strikes the mind at first blush as having been given under the influence of passion or prejudice.

In a case arising in 1943 and involving much the same type of injury and disability, Francis v. Terminal R. Ass’n of St. Louis, 354 Mo. 1232, 193 S.W.2d 909 (1946), the Supreme Court of Missouri reduced from $40,000 to $25,000 an award to a 38-year old laborer (pipefitter’s helper) earning $40 to $45 per week. A reading of the opinion indicates that the injuries may have been more extensive than Brown’s, whereas Brown’s 1958 income and qualifications as a heavy equipment operator evince a greater earning power. Balancing these differences and allowing for the decline in purchasing power of the dollar since 1946, we think the award approved in that case is reasonably comparable with the amount of the verdict here. It is liberal, but not so grossly excessive as to shock the conscience. Therefore, we are bound to accept it.

During the course of the trial strenuous objections were raised against the admission of certain X-ray films and portions of the medical testimony based upon them. The first point is that there was a failure to authenticate each film through the particular technician who took it. All were made at the Pineville Community Hospital at the direction of Dr. R. B. Baird, Jr. Both he and three hospital technicians, the only persons who took X-ray pictures at the hospital, identified the films introduced in evidence as having been made there. The main complaint seems to be that the three technicians could not say which of the respective films were taken by each of them. However, the doctor testified that they were the ones he ordered, that they showed the person of Brown at the various times indicated, and that they were accurate. We are of the opinion that the authentication, though not perfect, was sufficient. The pictures could hardly have been phonies without the connivance of Dr. Baird, and there is no suggestion of that.

Dr. Baird testified also that he had gone over some or all of the X-rays from time to time with Dr. William L. Patterson, of Knoxville, Tennessee, an orthopedic surgeon who visits the Pineville hospital bi-weekly as a special consultant, and that on one occasion he packaged the films and delivered them to Dr. Patterson. Dr. Patterson testified by deposition and, at the time of so testifying, no longer had the films in possession, having returned them to Pine-ville. He said, however, that the X-rays he studied were made at the hospital in Pine-ville, that he had procured them there, and that he had been able to sort and arrange them as to date and sequence. Counsel objected to all of Dr. Patterson’s testimony based on the X-rays because their integrity had not been established and because they had not been on hand for purposes of cross-examination at the time the deposition was taken. Again, however, these are hut niggling technicalities. Lawsuits must not stand or fall on trick objections. There can be no real doubt that the X-rays examined by Dr. Patterson were the ones taken at the direction of Dr. Baird at Pineville; and at the time Dr. Patterson’s deposition was taken no point was made of the circumstance that the pictures were not immediately available. Had there been a serious desire for them the cross-examination could have been postponed until they could be procured. Certainly this particular objection was too late when first made during the reading of the deposition at the trial. CR 32.03(2).

The remaining assignments of error have to do with the closing arguments to the jury.

At some period between the accident on August 22, 1960, and his admission to the hospital on October 11, 1960, Brown apparently became dissatisfied with the progress of his recuperation and made 15 or 20 visits to an osteopath, Dr. Ausmus, who took several X-rays but was never called upon to testify in this proceeding. In his summation, counsel for the defending parties stated that although he did not know why the plaintiff had not produced Dr. Ausmus, he assumed it was because his testimony would not have helped the plaintiff’s case. The court sustained an objection, and counsel was not permitted to continue that line of comment. Appellants contend that this was fair and proper comment and that they were prejudiced by the ruling.

The rule that under some circumstances a party’s failure to produce a witness is a fit subject for fair comment does not apply when there is nothing to indicate that the witness has material information not otherwise proved. Chappel v. Doepel, 301 Ky. 622, 192 S.W.2d 809 (1946); Helton v. Prater’s Adm’r, 272 Ky. 574, 114 S.W.2d 1120 (1938). Two doctors testified for each side in this case, and insofar as the defense was concerned the reasons for Brown’s not using Dr. Ausmus were a matter of speculation pure and simple. For example, his evidence may have been cumulative and of too little additional value to justify the cost of having him appear or testify. Appellants cannot have been prejudiced by the exclusion of remarks expressing nothing more than conjecture.

Appellants were represented at the trial by Hon. William A. Rice and Hon. J. C. Helton. During the course of his closing address to the jury Hon. J. J. Tribell, counsel for Brown, made the remark that Mr. Helton had not to his knowledge been in the case until two days before the trial and that he (Tribell) had been negotiating with Mr. Rice for several months. The court sustained an objection and admonished the jury not to consider the statement, but overruled a motion to discharge the jury.

In support of their argument that the foregoing comment was so prejudicial that it could not be cured by admonition appellants cite Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570 (1940), and Elam v. Woolery, Ky., 258 S.W.2d 452 (1953). These cases hold that it is improper to inject into the trial offers or attempts to compromise. The word “negotiating” as used by counsel in this case certainly bore a connotation that falls within the proscription, and the remark was improper. However, we are not persuaded that it was prejudicial. Though often confounded by their decisions, we cannot assume that jurors are simpletons. It is common knowledge that efforts are made to settle practically all sizeable lawsuits. This does not make it a proper subject of discussion, but it does minimize the possibility of prejudice from its mere mention without disclosure of any harmful details. We do not believe that the statement was so damaging as not to be correctable by admonition.

Under cross-examination during the trial the appellant Hodge was pressed into admitting the accident must have been his fault. This, of course, was an opinion or conclusion on an issue that only the jury had the province to decide, but there was no objection to the question and, if any of the jurors still entertained a doubt in that respect, the effect of this answer can be well imagined. Apparently unable to restrain his exultation at the posture in which the appellants thereafter found themselves, in his closing address to the jury counsel for Brown drew upon his imagination to portray a scene in which he said that after Hodge admitted the accident was his fault the lawyers for the defense took him over to the county attorney’s office and told him he had “destroyed their lawsuit.” Again, the court sustained an objection and admonished the jury not to consider the statement, but overruled a motion to discharge the jury.

It seems remarkable that a lawyer coming down the home stretch of a trial in as comfortable a position as counsel enjoyed in this case would risk the chance of clowning himself out of it. The comment was, of course, improper. Nevertheless, as in the case of his reference to “negotiations,” we are of the opinion that it would be highly unrealistic to say under the surrounding circumstances that there was so substantial a likelihood of prejudicial effect that the admonition was inadequate to assuage it. The jury is bound to have realized that the appellants had no case on the issue of negligence anyhow.

The judgment is affirmed.

      . In Rose v. Vasseur the driver of a skidding vehicle on a highway wet from rain was held negligent as a matter of law. The same-result was reached in Perkins v. Peek, but on the tenuous ground that the driver had regained control before the collision.

      . Some of the items in this enumeration appear to be rather inflated, but they were not successfully impeached.

      . The jury was properly instructed to limit ] any recovery to the effects of the sec- '' ond injury.


author: McDonald, judge.

text:
    George PIZZITOLA, Appellant, v. The STATE of Texas, Appellee.
    No. 36108.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    See also Tex.Crim.App., 374 S.W.2d 446.
    William H. Scott, Sr., William H. Scott, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was charged by separate information and, by agreement, was tried before the court at one time on two misdemeanor charges. In Cause No. 36,108, the case under consideration at this time, he was convicted of threatening to take a life, and assessed the punishment of ninety days confinement in jail.

The prosecution and conviction are under Vernon’s Ann.P.C. Art. 1265 which provides that upon conviction of the offense denounced by said article the defendant shall be punished by a fine not less than one hundred nor more than two thousand dollars, and in addition thereto may be imprisoned in jail not exceeding one year.

The judgment assessing appellant’s punishment at 90 days confinement in jail, without the imposition of a fine, was unauthorized and calls for a reversal of the conviction. Persall v. State, 145 Tex.Cr.R. 476, 169 S.W.2d 488 and cases cited therein.

'Due to our disposition of this cause, a discussion of the other propositions of law asserted by appellant is not deemed necessary.

For the reasons stated, the judgment of the trial court is reversed and the cause is remanded.


author: MORRISON, Judge.

text:
    Johnny Clarence SPRIGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 36058.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied. Dec. 11, 1963.

      Howze & Howze, by Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of Marihuana; the punishment twenty-five years. This is a companion case to Dickerson v. State, this day decided.

Officers from Lea County, New Mexico, received information that a quantity of a substance which resembled Marihuána was hidden in the base of a wind-

mill just over the state line in Gaines County, Texas. The sheriff of said last named county inspected the windmill, found three bags of Marihuana hidden therein, took one, left two and set up a “stake out”. The packages were described by one witness as “medium size, like you get out of a grocery store”. Two days later Deputy Sheriff Welch, who was stationed one-fourth of a mile from the windmill and watching the same through field glasses, observed a red Chevrolet come to a stop at the windmill and two men approach the base thereof. After a time the Chevrolet drove away, and he intercepted it a short distance away. As the Chevrolet approached him, two packages were thrown from the right window of the auto. When he brought the automobile to a halt, Dickerson was driving and appellant was seated on the right. The two sacks were recovered from where they had been thrown and were submitted to the chemist for the Department of Public Safety at Midland for examination. He gave his professional opinion that the three large bags contained Marihuana. The dustings removed from the Chevrolet by means of a vacuum cleaner contained only negligible quantities of Marihuana. However, the Marihuana which had been thrown from the automobile was recovered. The facts distinguish this case from both opinions in Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, and the opinion in Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122.

While the chemist did not give the exact weight of each bag as in the usual case, we find the evidence sufficient to support the conviction.

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

The court charged on circumstantial evidence and we have concluded that the evidence excludes every other reasonable hypothesis other than appellant’s guilt. Any error which may have occurred in the admission of a statement of Dickerson made m appellant s absence was cured when the Court on his own motion instructed the jury not to consider the question or answer and appellant made no further complaint.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    James Albert DICKERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36057.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Dec. 11, 1963.
    Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

Appellant and Johnny Clarence Sprig-gins were jointly indicted for the offense, but were separately tried.

A judgment of conviction of the coin-dictee, Spriggins, was affirmed by this court in an opinion this day delivered in Cause No. 36,058, styled Johnny Clarence Sprig-gins, Appellant, vs. The State of Texas, Appellee, and not yet reported.

The evidence presented by the state in the two cases is very similar and shows that Sheriff Floyd Taylor, of Gaines County, with other officers, went to a windmill located in Gaines County, Texas, near the Texas-New Mexico state line and found three packages hidden in a “freeze box” which they thought might contain marihuana. The packages consisted of three paper sacks wrapped in cellophane, each of which was described in the testimony as being about “seven inches long” and “four inches deep.” Sheriff Taylor proceeded to take one of the packages from the freeze box, leave the other two, and set up a “stake-out” at the windmill. Two days later while Deputy Sheriff Welch was watching the windmill, with binoculars, from a point one-fourth mile away, he observed a Chevrolet automobile stop at the windmill, two men get out and go to the freeze box. In some six minutes the men returned to the automobile and drove away. As the Chevrolet approached, Deputy Welch observed a paper sack thrown from the right side. He proceeded to give chase and after pursuing the Chevrolet for some distance and attaining a speed of 100 miles per hour, brought the vehicle to a halt. At such time, appellant was driving the automobile, which was registered in his name, and his codefendant Sprig-gins was seated in front on the right. Two paper sacks wrapped in cellophane were then found by the officers on the shoulder of the road where Officer Welch had observed the sack thrown from the Chevrolet automobile. These two sacks, along with the other sack taken from the freeze box by the officers, were submitted to Chemist Wayne Merritt at the Department of Public Safety in Midland for examination. Also submitted to the chemist for examination were some dustings taken from the Chevrolet by the officers, with a vacuum cleaner, and certain particles picked up- from the floor of the automobile.

An examination by the chemist revealed that all of the exhibits submitted contained pure marihuana, a narcotic drug, except the particles picked up from the floor of the Chevrolet. Traces of marihuana were found in the vacuum cleaner sweepings. Chemist Merritt testified that the total amount of marihuana contained in the exhibits was 604 grams, being slightly less than a pound and a half, which amount would make up to 3,000 marihuana cigarettes.

As a witness in his own behalf, appellant testified that on the day in question, he and his codefendant, Spriggins, went to the vicinity of the windmill to hunt rabbits; that they stopped at the windmill to get his gun out of the turtle of the car and discovered that it was not there. Appellant denied any knowledge of the marihuana.

Certain character witnesses were called by appellant, who testified that his general reputation for being a peaceable and law-abiding citizen was good.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence.

Appellant’s sole contention on appeal is that the evidence is insufficient to support the conviction.

A similar contention was presented and overruled in the codefendant’s case, in our holding that the evidence did exclude every other reasonable hypothesis except the guilt of the accused.

We find the evidence sufficient to sustain the conviction in the instant case.

The judgment is affirmed.

Opinion approved by the court.


text:
    Vernon Burke CLIFFORD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36064.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    Rehearing Denied Dec. 11, 1963.

      James J. Shown, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brouch and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving upon a public highway while intoxicated; the punishment, a fine of $50.00 and 3 days in the county jail.

It is apparent from the statement of facts and the certificate of the court reporter that the statement of facts filed does not constitute and contain all of the testimony adduced on the trial, i. e., “Approximately five (5) minutes of testimony from the first witness in this case had been heard before the court reporter was called in to make a record by the defense attorney, therefore this is a complete record of all that transpired after the court reporter was called in by the defense attorney.”

The state’s attorney and attorney for the defendant however, signed the certificate stating that the statement of facts filed, “is a true and correct statement of all the facts adduced and admitted in evidence on the trial of the said above numbered and entitled cause.” Thus the statement of facts will be considered as though complete. The state is bound by the agreement entered by its District Attorney.

Allen Evonne Cryer testified that a pickup truck driving on a public street followed his Corvette into a service station driveway at the Richey and Sterling street intersection, the truck hitting his car’s rear end before the Corvette stopped and that the truck backed up and hit it again. Mr. Cryer also testified that the truck was driven by appellant.

Officer C. C. Burkhalter testified that appellant identified himself as driver of the pickup truck, before any arrest had been made. The officer also testified appellant had to be helped from his pickup truck to the patrol car, that appellant staggered, did not have proper control of his feet, couldn’t walk, and that when appellant talked his speech was slurred and indistinct. Officer Burkhalter also testified that he could smell intoxicating beverages on appellant’s breath, that his eyes were bloodshot, and his face flushed, eyes and face looking differently than they appeared in court at time of trial. Based upon the officer’s experience at seeing intoxicated persons, he formed and testified to the opinion that appellant was intoxicated at the time of collision.

Appellant’s contention that the testimony fails to show him to be the driver of the pickup is thus without merit.

We find the evidence sufficient to support the verdict.

Appellant insists that he was compelled to submit to tests involving walking and that this evidence is therefore inadmissible under the holdings in Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381, and Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706. These two cases were distinguished from cases such as the one at bar in Skaggs v. State, 167 Tex.Cr.R. 254, 319 S.W.2d 310, where Judge Dice wrote: “The cases of Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381, and Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706, cited by appellant are not here controlling because in both cases the accused was compelled by the officers to do certain acts while under arrest for the purpose of being identified or determining whether he was intoxicated. In the present case appellant was not requested by the officers to do any act or speak any words.”

In the case at bar the appellant was required to do no act for the purpose of determining whether or not he was intoxicated. The walking which was done was solely for the purpose of transporting appellant from his position, leaning against the fender of appellant’s pickup truck, to the police car. The officer testified not that he directed appellant to walk, but that he helped him to walk.

Thus the second contention of appellant is without merit.

No formal bills of exception which meet the requirements of Article 759a, Sec. 2(b), Sec. 760d, and Sec. 760e, have been filed.

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


author: WOODLEY, Presiding Judge.

text:
    William Royce NEWSOM, Appellant, v. The STATE of Texas, Appellee.
    No. 35895.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Dec. 11, 1963.

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

The appellant waived a jury and pleaded nolo contendere to the indictment charging him with driving a motor vehicle upon a public highway in Howard County while intoxicated, and alleging that he had been previously convicted of the misdemeanor offense of driving while intoxicated in County Court at Law No. 2 of Lubbock County. Punishment was assessed at a fine of $250.00.

State’s witness John R. Smith, State Highway Patrolman, testified that he stopped the appellant who was driving a pickup pulling a cattle trailer, partly on the road and partly off. He testified that he observed the appellant’s appearance, demeanor and the way he walked and talked and handled himself and formed the opinion that he was intoxicated.

The state offered in evidence the complaint, information and judgment in the misdemeanor conviction alleged in the indictment. The jurisdiction of County Court at Law No. 2 of' Lubbock County to try the case and enter the judgment of conviction is the controlling question on the appeal.

County Court at Law No. 2 of Lubbock County was created in 1957 by Act of the 55th Legislature, p. 227, ch. 109. This Act (Art. 1970-340.1 V.A.C.S.) refers to the existing County Court at Law as “County Court at Law No. 1 of Lubbock County”; provides that the two courts shall have concurrent jurisdiction, and that cases may be transferred by the respective judges from one court to the other.

The record shows that the prosecution 'began by the filing of a complaint and the presentment of an information in County " Court at Law of Lubbock County on October 2, 1958.

Any complaint of irregularity in the transfer of the case from the court where it was filed to County Court at Law No. 2, where it was tried, should have been entered before announcing for trial in said County Court at Law No. 2. Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; Bell v. State, 170 Tex.Cr.R. 508, 342 S.W.2d 444.

It is appellant’s contention that the County Court at Law of Lubbock County, where the complaint was filed, did not in law exist because the act creating it provided that the court “shall be known as the County Court of Lubbock County at Law,” and not the “County Court at Laiv of Lubbock County.”

An examination of the 1950 statute (Acts 51st Leg., 1st C.S.1950; p. 74, ch. 16, now Art. 1970-340 V.A.C.S.) reveals that the court created is referred to in the Caption and in various sections of the act other than Section 1 as the “County Court at Law of Lubbock County.” Section 9 provides for the election of a judge of the County Court at Law. Section 10 provides that the County Attorney of Lubbock County shall represent the State in all prosecutions in said County Court at Law of Lubbock County. Section 17 provides that the County Clerk of Lubbock County shall be the Clerk of the County Court at Law of Lubbock County, and that the seal of said court shall contain the words “County Court at Law of Lubbock County”.

If the 1950 act created any court it was necessarily the County Court at Law of Lubbock County mentioned in the caption and the various sections relating to the judge, the clerk and the jurisdiction of the court created.

The rule is that in construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed. Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309, and cases cited.

Also it is the rule that a statute susceptible of more than one construction will be so interpreted as to secure the benefit intended; will best effect the legislative intent and so that it will be constitutional and valid. Baldridge v. State, supra; 39 Tex.Jur. p. 205, 206.

We do not agree that the prior conviction for the misdemeanor offense was void or that the court in which it was first filed had no legal existence.

The judgment is affirmed.


text:
    James E. BUSH, Appellant, v. The STATE of Texas, Appellee.
    No. 33890.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Billy J. Moore, Ennis, Charles Alan Wright, Austin, for appellant.
    Bruce Allen, County Atty., Waxahachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This cause is pending before us on appeal. Our prior opinion affirming the conviction is reported in 353 S.W.2d 855. The Supreme Court of the United States vacated our judgment on writ of certiorari, 371 U.S. 859, 83 S.Ct. 123, 9 L.Ed.2d 98. The Supreme Court’s opinion states that “two days before argument here the State commendably filed a ‘Supplemental Brief for the Respondent’ calling to the Court’s attention the following ‘Diagnostic Summary,’ relating to the petitioner’s mental condition, prepared by the Psychiatric Resident of the Houston State Psychiatric Institute at Houston”. 372 U.S. 586, 83 S. Ct. 922, 9 L.Ed.2d 958. The psychiatric diagnostic, summary referred to by the Court was prepared by Adolf Hug, M.D., and it appears in full in the Court’s opinion. The Supreme Court stated: “At the time its decision was rendered, the Court of Criminal Appeals had available to it neither the above psychiatrist’s report nor the view of the Assistant Attorney General regarding disposition of the case”. (The opinion of the Supreme Court recites that during oral argument, when the Assistant Attorney General of Texas was asked the views of his office in the event the case should be vacated and remanded by this Court, the Assistant Attorney General of the State of Texas stated that his personal position would be that the man should be examined in this hospital and that evidence should be presented to the trial court. He further responded, to an inquiry made by the Chief Justice: “You would grant him a new trial?”, “Yes”.) The Supreme Court stated in its opinion: “Appropriate federal-state relations and proper regard for state processes require that Texas’ highest criminal court be afforded the opportunity to pass upon the case with these later developments before it. The judgment of the Texas Court of Criminal Appeals is therefore vacated, and the case is remanded for consideration in light of subsequent developments” and “in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court, as accord with right and justice, and the Constitution and laws of the United States, the said writ of cer-tiorari notwithstanding.”

Pursuant to the March 25, 1963, opinion of the Supreme Court of the United States, this Court entered an Order on April 24, 1963, outlining the statutory manner whereby appellant’s sanity may be judicially determined while an appeal from his conviction is pending in this Court and further stating that if the issue of sanity or insanity is determined by a jury the result of the trial should be certified to this Court. This Court’s Order further stated that final disposition of this appeal will await the filing of further motions, briefs and certification as to “subsequent developments” referred to in the Supreme Court’s opinion.

The District Court of Ellis County impaneled a jury pursuant to the above mentioned order of this Court. A trial was held on July 22, 1963, on the issue of the appellant’s sanity or insanity. Although the provisions of Sec. 3, Art. 932b, Vernon’s Ann.C.C.P., only provides a method for judicially determining an appellant’s sanity while an appeal from his conviction is pending, or if the question of sanity of the defendant is raised after his conviction and prior to the pronouncement of sentence, and does not provide for a judicial determination of sanity or insanity at the time of the commission of the offense charged, we observe from the transcript that the learned trial judge not only submitted the issue of present insanity (July 22, 1963) to the jury, but he also submitted an issue on whether or not the appellant was sane or insane on October 21, 1960, the date the offense was alleged to have been committed, and on April 25, 1961, the time of the main trial. The record reflects that four months elapsed from the time that the Supreme Court of the United States handed down its opinion until the preliminary trial on the sanity issue was held by the trial court. It is apparent from the record of this last proceeding that the appellant was transferred to the Rusk State Hospital, where he was admitted February 21, 1963, and was there confined and under psychiatric treatment for a period of 89 days until he was furloughed back to Ellis County around May 21, 1963. At the hearing held in the trial court on July 22, 1963, two psychiatrists, a general practitioner and several lay witnesses testified for the State. All testimony, without exception, reflecting the sanity of appellant on the three occasions herein mentioned. The appellant’s counsel neither cross-examined any of the State’s witnesses, nor did the appellant adduce any testimony. One of the psychiatrists, Dr. Charles W. Folsom, who testified, had observed appellant for the entire period of his 89 day stay in the Rusk State Hospital. The other psychiatric witness, Dr. John T. Holbrook, came from Dallas, Texas. He had made an examination of appellant. Each of these medical experts expressed the opinion that appellant was sane on the three different dates shown in the issues submitted to the jury. We think that the trial court by its action, accorded the appellant every legal right by making available to appellant adequate psychiatric evidence.

While it was not offered in evidence, an affidavit of Dr. Adolf Hug, who prepared the psychiatric diagnostic summary furnished the Supreme Court was offered at the sanity trial held July 22, 1963, which reads in part:

“I am sorry that I cannot answer your questions about Bush’s knowing right from wrong at the time of crime, trial or examination. As a psychiatrist I am concerned only with the patient’s welfare. I try to diagnose him to have a working hypothesis and on this working hypothesis I came to the conclusion you quoted in your letter. I cannot answer your question if Bush knew right from wrong, simply because I didn’t ask him this questions.”

Briefs were filed and oral argument made before this Court by both appellant and the State.

Appellant complains that the procedure set out in Article 932b, Section 3, Vernon's Ann.C.C.P. is wholly inadequate to provide the relief to which he is entitled. It is appellant’s position that he should be granted a new trial, and that upon said new trial he can properly adjudicate the issue of insanity at the time of the commission of the offense.

Counsel for appellant point out that at the hearing in July they were faced with a dilemma in that if they sought to prove the appellant was insane and were successful, he would have been committed as an insane person charged with a criminal offense and their effort to have him acquitted of the offense of which he was convicted and appealed would be thwarted.

The answer to this contention is found in Art. 932b Vernon’s Ann.C.C.P.,' Sec. 5r which provides:

“When a defendant is found to be insane and committed to a State Mental Hospital under this Chapter, all further proceedings in the case against him shall be suspended until he becomes sane, except that upon motion of a defendant’s counsel an appeal from a conviction may he prosecuted.”

Had the sanity trial while the appeal was pending in this Court resulted in a finding that appellant was insane prosecution of this appeal could have proceeded upon counsel’s motion and this appeal could have been considered in accordance with the instructions of the Supreme Court in the light of such finding.

Appellant filed various motions to postpone, to protest the sanity hearing, requested of the trial court a new trial and announced ready for trial thereto. As we view the case at bar, the main .trial was not before the trial court in July 1963, only the trial on the sanity or insanity issue after verdict. The main trial, had been held and the appeal therefrom was pending before this Court, pursuant to action of our Supreme Court. We find no merit in the various motions filed by appellant.

We proceed in compliance with the mandate of the Supreme Court to reconsider the question raised by-the appellant on his appeal from his conviction and do so having before us the subsequent developments referred to by the Supreme Court and the subsequent proceedings in the trial court which resulted in the finding that appeb lant was sane.

Appellant contends that the trial court erred in denying his request for adequate psychiatric evidence which he states that he is entitled to under the Fourteenth Amendment to the Constitution of the United States. Whether or not we were correct in our original disposition of this contention, it is apparent that appellant has now had ample psychiatric examination and has been adjudged to be sane.

Viewed in the light of subsequent proceedings, we find no deprivation of appellant’s rights under the Constitution and laws of this State, or the laws of the United States, the United States Constitutiqn or any amendments thereto.

Appellant contended on original submission before this Court and also before the United States Supreme Court that the trial court denied him adequate time for proper examination and diagnosis by a psychologist who appeared at the trial upon request of petitioner’s counsel. The psychologist appeared prior to the preliminary trial, from which no appeal lies to this Court, and though there was ample time for such examination and diagnosis prior to the trial on the merits, at which the defense of insanity was again raised, the witness was not called to testify.

While we would not have been impressed by nor even considered the Ex Parte “Diagnostic Summary of Dr. Hug, nor the personal view of the Assistant Attorney General of Texas” had same been brought before this Court by way of a supplemental brief and in oral argument not part of the record, yet it is evident that the Supreme Court found that a reasonable doubt existed as to the sanity of the appellant. In view of the proceedings had, we feel that any and all doubt has been removed.

The supplemental record brought before us in obedience to the decision of the Supreme Court demonstrates that all of the rights of appellant have been fully adjudicated and determined. Having before us all evidence adduced, we now dispose of this case as we originally did, and affirm the judgment of the trial court, adopting herein by reference our original opinion and our opinion on Motion for Rehearing, Bush, supra.


author: BELCHER, Commissioner.

text:
    Ex parte Asberry B. BUTLER, Jr.
    No. 36054.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    Bobby H. Caldwell, Houston, for petitioner.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, for respondent.
   BELCHER, Commissioner.

This is an original habeas corpus proceeding in which relator seeks release from custody under a judgment for contempt.

The record reveals- that the relator As-berry B. Butler, Jr., is a member of the State Bar of Texas and represented Howard Harris who was charged with a criminal offense pending in County Court at Law No. 3 of Harris County, which cause was set on the “call of the docket” for 9:00 a. m., June 18, 1963; and he also represented another person charged with an offense pending in County Court at Law No. 1, which was set on the “call of the docket” for the same time. Relator, accompanied by Harris, shortly before 9:00 a. m. entered the courtroom of County Court at Law No. 3. He advised Harris that if the Judge called his case before he returned to inform the Judge that he had gone to County Court at Law No. 1 where he had another call of the docket to answer at 9:00 a. m., and that he would soon return. These two courts were located in the same building. At 9:00 a. m., Harris’ case was called in County Court at Law No. 3, at which time Harris informed the Judge that he was represented by the relator. The relator returned to County Court at Law No. 3 between 9:10 and 9 :20 a. m., and was informed by the Judge that he had been held in contempt for being late.

We express serious doubt as to the sufficiency of the notice of the show cause order and the timely service of it on the relator.

The relator was representing two clients who had cases on the “call of the docket” in different courts of equal jurisdiction at the the same time. Therefore he could not answer both calls of the docket.

The state relics on the judgment of contempt entered following a hearing by the court. There was no evidence of the time used during the call of the docket in County Court at Law No. 3, or, that a setting of the Harris case was made when it was called. It appears that any setting for trial of the Harris case would not' have caused a postponement of the trial beyond 9:10-20 a. m., that is, a delay of ten to twenty minutes due to the absence of counsel.

These facts and circumstances do not reveal any reasonable ground for holding the relator in contempt. Richardson v. State, 162 Tex.Cr.R. 607, 288 S.W.2d 500.

' The application for the writ of habeas corpus is granted and the relator is ordered discharged.

Opinion approved by the Court.


text:
    José Roberto FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 35851.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Dec. 11, 1963.

      Albert Armendariz, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson and Sam W. Callan, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

. By supplemental transcript it is now shown that notice of appeal was given in open court and entered of record, as required by Art. 827, Vernon’s Ann.C.C.P.; therefore our opinion dismissing the appeal is withdrawn and the appeal is reinstated.

The appellant and four codefendants were jointly indicted for the murder of Francisco Puente, the indictment charging that the defendants did voluntarily and with malice aforethought kill the deceased by cutting and stabbing him with a knife.

A severance being granted, appellant was separately tried and convicted, and his punishment assessed by the jury at forty years’ confinement in the penitentiary.

A companion case, in which a judgment of conviction of one of the codefendants, Antonio Parra Pineda, was affirmed by this court, is found in Pineda v. State, Tex.Cr.App., 367 S.W.2d 862.

The facts in the two cases are substantially the same, with the exception that no confession was introduced in evidence in the instant case.

Briefly, the state’s testimony shows that on the day in question the state’s witness Elodia Ontiveras observed five men beating a man who was lying on the ground across the street from her home. She proceeded outside and across the street, where she observed the man on the ground covered with blood and the five men cursing and beating him. She testified that during the altercation one of the men had an automobile bumper jack handle in his hand and that she saw a jack and stick lying on the ground near the deceased. Mrs. Ontiveras identified the appellant as one of the men beating the deceased and testified that during the altercation she heard the appellant say: ‘“Show that you’re just as brave as you used to be; show you are brave as you used to be.’ ”

Ricardo Galaviz testified that he observed the five men beating the deceased; that one had a bumper jack, one a stick, and one had a knife. He further testified that he was present when the five men got in a car and left the scene.

Officer Rodney Craig testified that he and his partner, Officer O’Leal, stopped a car with five subjects in it, which fit a description given in a radio broadcast; that Raul Aguilera was driving the automobile and appellant was one of the occupants. The officer stated that at such time some of the men had bloody clothing but appellant had no blood on him. He further testified that on the back seat of the automobile he and his partner found two knives, a letter opener, and a car jack and that one of the knives had fresh blood on it.

It was shown that the deceased suffered more than twenty slashing and stab wounds to the body, some of the wounds penetrating vital organs in the abdomen, which was the cause of death. In addition to the body wounds there were two blunt wounds on the deceased’s hea'd.

Appellant did not testify or present any defensive testimony to the charge.

Appellant’s first contention is that the testimony of the state’s witness Elodia Ontiveras was not credible as a matter of law and that, for such reason, the court erred in refusing to grant his motion to strike her testimony and declare a mistrial. Appellant insists that the witness’s testimony was in material conflict with earlier testimony given by her, because she positively identified him in the present trial as one of the assailants and in another trial she identified by name two other assailants and for the further reason that when testifying in the instant trial she swore that five men were beating the deceased, whereas she stated to the police there were three men striking the deceased, and at the preliminary hearing she stated there were about five striking him.

An examination of the witness’s testimony discloses no such conflict. On her cross-examination the witness swore that appellant was one of the two men whom she identified at the former trial. She also swore that she did not remember telling the police that there were only three men striking the deceased but that if she did, such was wrong, as there were five men. She further stated that at the preliminary hearing she stated there were five men striking the deceased.

Under the provision of Art. 706, Vernon’s Ann.C.C.P., the jury were the exclusive judges of the facts proved, and of the weight to be given to the witness’s testimony. We find no merit in appellant’s contention.

Appellant complains of the admission in evidence of the letter opener and the two knives found in the automobile; of the stick which the state’s witness Elodia Ontiveras identified as the stick she saw lying on the ground by the deceased at the scene of the crime; and to the testimony with reference to the jack and jack handle. It is appellant’s contention that such exhibits and instruments were not shown to have been connected with the crime and were therefore beyond the scope of the indictment. With such contention we do not agree.

The rule is well settled that in prosecutions for homicide the weapon with which the crime was committed, or alleged to have been committed, is admissible in evidence. The lack of positive identification of the weapon affects its weight as evidence rather than its admissibility. Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597, and Gonzales v. State, Tex.Cr.App., 361 S.W.2d 393.

Under such rule, the letter opener and two knives found in the automobile were admissible.

In Vol. 2, McCormick and Ray, Texas Law of Evidence, Sec. 1456, at page 302, it is stated:

“In criminal cases the present principle permits the introduction of any article, object or substance which is shown to have been a part or incident of the criminal offense charged, or means of committing it.”

Under this principle, the stick found at the scene was properly admitted. The testimony relative to the bumper jack and handle was admissible under the provisions of Art. 1257a, Vernon’s Ann.P.C., which provides that:

“In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing * *

Appellant’s remaining complaint is to the court’s charge. Objection was made to the charge on the ground that the court did not instruct the jury on the law of individual impulse of one of the other participants in the transaction. We have searched the record and fail to find where such an issue was raised. Objection was also made on the ground that the court did not charge the jury on the law of circumstantial evidence. There being direct evidence that appellant and his codefendants struck and beat the deceased, inflicting wounds which were the cause of death, rendered unnecessary a charge on circumstantial evidence. Barnes v. State, 90 Tex.Cr.R. 51, 232 S.W. 312; Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404.

Appellant’s final complaint is to that portion of the court’s charge on principals, wherein the jury were, among other things, instructed that any person who advises or agrees to the commission of an offense and who is present when the same is committed, is a principal, whether he aided or not in the illegal act, and to the further instruction that mere presence at the time and place of the murder, if any was committed, does not constitute him a principal, and in order to constitute one a principal “it is necessary not only that he be present, but that he know the unlawful intent of the person perpetrating the offense, and he must also advise such person or agree to the commission of the offense by the person perpetrating it.’’ Appellant objected to the instruction on the ground that there was no evidence of any advice or agreement between the parties to commit the offense.

The proof of appellant’s presence at the scene and his active participation with the other parties in the attack upon the deceased authorized the submission of such theory of principals to the jury.

In Thacker v. State, 131 Tex.Cr.R. 664, 101 S.W.2d 247, cited by appellant, where the evidence was held insufficient to sustain a conviction of the accused under such theory of principals, the accused was merely present and did not participate with others who committed the offense. Such are not the facts here, where appellant was present and did, along with his other companions, strike and beat the deceased.

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

Opinion approved by the court.


text:
    Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
    No. 36128.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.

      Clyde W. Woody, Houston, (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., James H. Miller, George Milner, and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 20 years.

A prior judgment of conviction upon the indictment herein was reversed by this Court in Etchieson v. State, 172 Tex.Cr. R. 606, 361 S.W.2d 711.

Upon the second trial there was no evidence introduced on the question of whether the appellant was an occupant of or was in possession of the apartment, or was a guest or visitor.

The grounds for reversal of this conviction are directed to the validity of the search warrant and the admissibility of the marihuana and the evidence relating thereto.

The appellant relies upon a formal bill of exception which sets out his contention that the search warrant and affidavit therefor were illegal and void due to the fact that the same did not satisfy the requirements of the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States as construed in the 'case of Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.

The bill certifies that the trial court reached the conclusion that the search warrant in question and the search which resulted satisfies the requirements of the Fourth, Fifth and Fourteenth Amendments to the Constitution, to which appellant excepted.

The formal bill of exception does not attempt to set out the objections made when the evidence was offered, nor does it certify what objection was made.

Looking to the statement of facts and the informal bills relating to the evidence and to the validity of the search, we find that the only obj ections that were made related to the execution of the search warrant and not to its sufficiency or the sufficiency of the affidavit upon which it was issued. We further find that evidence was admitted without objection that a “grassy” looking substance in a plastic vial which the appellant was seen to place on the back of the commode was marihuana and that a similar substance was in the flushing commode in front of which the appellant was squatting down when the officers pursuing him broke into the bathroom.

We have examined each of the objections relating to the evidence and find none which states as ground that no probable cause was shown or that the affidavit for issuance of the search warrant was insufficient.

We agree with the state that the grounds upon which the search warrant and affidavit were attacked after verdict should have been urged by the appellant when the complained of evidence was offered. However, we need not rest our decision upon the appellant’s failure to timely and properly object or to show that he had standing to question the validity of the search warrant. We find no merit in appellant’s contention that the affidavit for issuance of the search warrant is insufficient under the Supreme Court’s holding in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.

The affidavit here under attack reads:

“(We), B. M. Newman and C. R. Groves do solemnly swear that heretofore, on or about the 5 day of January A.D., 1960, in said County and State one Virgil John Etchieson and person or persons unknown to affiants at this time did then and there unlawfully possess a narcotic drug, to-wit: Marijuana and I have cause to believe and do believe that said narcotic drugs are now concealed by Virgil John Etchieson and person or persons unknown to affiants at this time in a private residence situated in Dallas County, Texas, at 2002 Kirby Street Apartment # C in the City •of Dallas, Texas Dallas County, Texas which said Virgil John Etchieson and person or persons unknown to affiants at this time occupies, possesses, controls and has charge of.
“My belief as aforesaid is based on the following facts: “(A) I have been informed of the existence of the foregoing set out facts by reliable, credible .and trustworthy citizen of Dallas, Dallas County, Texas,
“(B) and further from a source that we do not wish to divulge
'“Wherefore, I (We) ask that a warrant to search for and seize the said narcotic drugs be forwith issued in accordance with the law in such cases provided.”

In Giordenello v. United States the conviction in Eederal District Court for unlawful purchase of narcotics was reversed upon the majority holding that the warrant of arrest issued under Rules 3 and 4 of the Federal Rules of Criminal Procedure was, under the evidence adduced at the motion to suppress, invalid. The affiant stated:

“The undersigned complainant (Finley) being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
“And the complainant further states that he believes that-are material witnesses in relation to this charge.”

The affiant in Giordenello v. United States swore only that the accused received and concealed a narcotic drug with knowledge of unlawful importation (which the Supreme Court treated as a conclusion only), whereas the affiants in the affidavit before us not only swore that Etchieson unlawfully possessed marihuana, a narcotic drug, and that they had cause to believe and did believe that such narcotic drugs were then concealed by Etchieson and others in the place that was to be searched, but also stated the facts upon which their belief was based, which were that they had been informed of the existence of such facts by a reliable, credible and trustworthy citizen of Dallas County, Texas. This, as we see it, was the same as swearing that they had been informed by credible and trustworthy citizens that the appellant possessed marihuana and had it concealed in the residence described.

The opinion of the Supreme Court in Giordenello states that the complaint “does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.”

The opinion also states: “[W]e need not decide whether a warrant may be issued solely on hearsay information * *.”

The Supreme Court did, however, decide such question in Draper v. United States 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, where arrest and search upon probable cause without a warrant was upheld.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Supreme Court said: “If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant.”

We hold that the affidavit was adequate to show probable cause and cite in support of such holding: Giacona v. State, Tex. Cr.App., 335 S.W.2d 837, and Davis v. State, 165 Tex.Cr.R. 2, 302 S.W.2d 419.

The judgment is affirmed.