author: SPERRY, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William Birch HUNT, Defendant-Appellant.
    No. 23423.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.
    See, also, 335 S.W.2d 506.

      Warren D. Welliver, Columbia, for appellant.
    Scott O. Wright, Brown, Wright & Will-brand, Columbia, for respondent.
   SPERRY, Commissioner.

This is the second appeal in this cause. State v. Hunt, Mo.App., 335 S.W.2d 506.

Defendant is charged with the commission of a misdemeanor, in that he operated his automobile along and over a highway at an excessive speed. Trial to a jury resulted in conviction and the assessment of a fine of $75.00.

The alleged offense took place at about 8:30 p. m., January 19, 1958, on highway 40, at a point one half mile west of the city limits of Columbia, Missouri. Defendant lives some four miles west of Columbia and had returned to his home a few minutes prior to this event. He has a drug store in Columbia and, learning that a salesman was there to see him on business, he started to drive there. As he was driving out of his driveway Mr. Davis, another salesman, drove in to see him. He told Davis to meet him at his store, and proceeded to the highway, thence east toward Columbia. Mr. Davis testified that he followed defendant, at a distance of one half block, keeping his automobile in his headlights.

The highway, some distance west of Gruber’s filling station, runs down grade to a level strip where the station is located, then up grade some 1200 feet or more to a level “shelf”. The highway, at that time, did not have four lanes.

State highway patrol officers had stationed an automobile at Gruber’s station, equipped with radar, by which means it was sought to ascertain the speed of passing-vehicles. Trooper Burgess was in charge of the radar car. On the “shelf”, headed west, on the north shoulder, Trooper Gra-zier posted his patrol car, equipped with red lights. In that car was also an off-duty Columbia policeman, Mr. Smith, who, at the time of the trial, was a patrolman.

Mr. Davis and defendant testified to the effect that, as they travelled eastward, down the incline toward Gruber’s, an automobile, which they could not describe, passed them going east. Defendant stated that he was proceeding at a speed of 60-65 miles per hour at all times. Davis said that he was driving at about that speed and stayed behind plaintiff a uniform distance until defendant’s car was stopped by Trooper Grazier.

Burgess qualified as an experienced and trained radar man. He testified to the effect that a brown station wagon passed his station at about 8:30 p. m., headed east, at a speed of 76 miles per hour as was indicated by the radar device; that he radioed to Grazier those facts, including the fact that the vehicle carried a license plate, the first three numbers of which were “211—”. (Which corresponded to defendant’s plate.) To this testimony there was no objection.

Smith testified that the message came at a time when he was inside the patrol car and ■Grazier was out on the shoulder checking a Cadillac car that had just been stopped and which was parked on the south shoulder of the highway; that he shouted the message to Grazier, who signaled defendant to stop. •Grazier stated that, as defendant’s car approached, he watched it; that its speed was ■more than 70 miles per hour; that defendant parked on the south shoulder, in front of the Cadillac; and that he gave defendant a summons.

Defendant’s first contention is that the court erred in not quashing the information and in holding that there was sufficient ■competent evidence to sustain the verdict. No reason is advanced for quashing the information and that point will not be here ■discussed. However, it is urged that an officer, in Missouri, has no legal right to arrest without a warrant for the commission ■of a misdemeanor, on the request or upon information of another, or merely because he believes that a misdemeanor was committed. 6 C.J.S. Arrest § 6; State v. Peters (Mo.Sup.), 242 S.W. 894, 896.

While defendant does not seriously challenge the propriety of the proper use of radar in evidence in this kind of case (24 Mo.Law Rev. 196, 210; 49 A.L.R. 476), he does not concede that it was admissible here. It is not necessary to decide that question here, because Trooper Grazier stated that he saw defendant operating his automobile at a speed in excess of 70 miles per hour, which was a misdemeanor. The jury was the judge of the weight and credibility to be given to Grazier’s testimony. The fact that his attention had been directed to defendant’s automobile by Burgess is of no consequence since the offense continued in his presence. State v. Peters, supra.

It is next urged that the court erred in admitting evidence of defendant’s prior conviction of an offense occurring subsequently to the one for which he was then being tried. The point is without merit. Section 491.050 RSMo 1949, V.A.M.S.; State v. Cox (Mo.Sup.), 333 S.W.2d 25, 29.

Defendant further urges error in that the court refused to grant a mistrial based on the following: defendant had previously admitted that, at the time he was arrested on this latter occasion, there was a young woman-employee of his in the car, going to attend an examination to be conducted by the pharmacy board of which defendant was a member. He was asked by his counsel if he pleaded guilty and defendant answered in the affirmative. Then, his counsel asked, why ? Defendant answered. “Because I was guilty”.

Thereupon, the prosecutor asked if the fact that this young lady was in the car with him at the time had anything to do with his pleading guilty.

Defendant moved for a mistrial, which was refused. He now urges the point as error. In State v. Beishir (Mo.Sup.), 332 S.W.2d 898, 901, it is said that Section 546.-260, RSMo 1949, V.A.M.S., subjects every defendant who elects to take the witness stand in his own behalf to cross-examination “ ‘as to any matter referred to in his examination in chief’ * * Defendant referred, in chief, to why he plead guilty. We cannot say that error was committed in respect to this matter.

This case was not prosecuted by the regularly qualified and acting prosecuting attorney, or by any assistant of his, but by a special prosecutor. Defendant complains that such procedure was illegal and he orally moved, before commencement of this trial, that “no further proceedings be held to be handled by the special prosecutor”. The reasons given in support of the motion were that the prosecutor and assistant were qualified and that, under the provisions of Section 550.010, V.A.M.S.1949, defendant, if convicted, was required to pay the fees of the special prosecutor which would work an unwarranted hardship on defendant. Error is urged because the court overruled the motion.

Section 56.110, V.A.M.S.1949, authorizes the appointment by the Court, under specified conditions, of “some other attorney to prosecute or defend the cause”. Defendant cites the two above-mentioned sections of the statute as authority in support of the motion. A special prosecutor had apparently been duly appointed, in compliance with Section 56.110, supra. The validity of the court’s action in that regard is not here challenged. The point is ruled against defendant.

In his opening statement the special prosecutor stated that two others were arrested for speeding on the night defendant was arrested, and that they pleaded guilty. Defendant objected to the statement and asked that the jury be instructed to disregard the statement. The court sustained the objection and so instructed the jury. Defendant then moved for a mistrial, which' motion was overruled. Defendant cites 48-A.L.R.2d Series, 1004, in support of his contention of prejudicial error. There it'is said that such a statement by the prosecutor may be held to be prejudicial error where, upon objection, the court fails to sustain the objection and properly instruct the jury on the matter. However, in the case at bar, the court did all that could be done to remove the prejudice, short of granting a mistrial. The prosecutor’s statement was-improper but, in view of the court’s action, taken at the time, we cannot say that defendant’s cause was prejudiced on the merits. We cannot say that the court abused its discretion in the matter.

Defendant assigns error in not directing a verdict for him. Under all of the evidence, a submissible case was made and this point is ruled adversely to defendant.

He complains of the refusal of the Court to give his offered instructions: D-B, which was on the burden of proof, and D-C, which was on the presumption of innocence. Both were abstract declarations of the law. The Court gave instruction S-2, which properly declared the law on both of those issues. There was no error in refusing to give further instruction thereon.

What we have said covers all points specified in defendant’s brief. We find that no prejudicial error was committed in respect to any of such points.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


source: Caselaw Access Project

author:
MILLIKEN, Judge.
      WILLIAMS, Judge

license: Public Domain

text:
    CAVE HILL CEMETERY COMPANY et al., Appellants, v. William E. SCENT, Commissioner of Revenue et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1961.
    As Modified on Denial of Rehearing Dec. 15, 1961.
    James W. Stites, Carl L. Wedekind, Jr., Charles W. Milner, Louisville, Ky., for appellants.
    John B. Breckinridge, Atty. Gen., William S. Riley, Hunter B. Whitesell, Hal O. Williams, Dept, of Revenue, Frankfort, for appellees.
   MILLIKEN, Judge.

This case presents to the Court the question of whether securities held by the Cave Hill Cemetery Company and the Cave Hill Investment Company are subject to ad valorem tax assessments by the Commonwealth of Kentucky. The case turns on whether Cave Hill is a public institution using its property for public purpose and thus exempt from taxation under Section 170 of the Constitution of Kentucky.

There are two funds involved, the “Preservation Fund” and the “Endowment Fund.” The trial court held that the “Preservation Fund” was exempt from taxation, and to this part of the court’s judgment the Commonwealth has appealed. The trial court further held that the “Endowment Fund” was not exempt from taxation, and to this ruling Cave Hill has appealed. The case originated as a declaratory judgment action brought by Cave Hill.

Cave Hill Cemetery Company was incorporated by a special act of the General Assembly approved February 5, 1848. Cave Hill Investment Company was incorporated by a special act of the General Assembly approved February 11, 1882.

Cave Hill Cemetery originated as a city cemetery, with lands provided by the City of Louisville from the old Cave Hill farm (Sec. 2, Act of 1848), and the managers of the Cemetery elected and controlled by the Mayor and the Council of Louisville (Sec. 3, Act of 1848). Under this charter the elected treasurer of the Cemetery Company was required periodically to report a statement of his accounts to the City authorities (Sec. 4, Act of 1848), and the proceeds from the sale of lots, over and, above that necessary for immediate expenses, were turned over to the City Treasurer, who set up a permanent fund and applied the interest as it accumulated to the maintenance and preservation of the Cave Hill property (Sec. 5, Act of 1848).

As Cave Hill was developed and additional lands acquired, the burden of overseeing the operation of the Cemetery and administering the funds derived from the sale of lots was removed from the City of Louisville, in the interest of efficiency, and placed in the hands of the managers of the Company, with proper safeguards to insure that the management of the funds would continue in the same manner as it had under the direct control of the City of Louisville. (An Act to Amend the Charter of Cave Hill Cemetery, approved February 9, 1864.) As set forth in this amendatory act, the City of Louisville and Cave Hill Cemetery Company had, by contract dated March 24, 1859, specified that Cave Hill would set apart one-fifth of the proceeds of the sale of lots to be invested, with the income used exclusively for the preservation of the grounds.

When the Cave Hill Investment Company was formed in 1882, the Legislature, at the same time, amended the charter of the Cemetery Company once again, requiring that the payments that originally had to be made to the City (and subsequently by contract were set aside by the managers) were now to be paid over to the Investment Company (Chapter 177, approved February 11, 1882). This fund, which now receives 50% of the monies obtained from the sale of burial rights, is known as the “Preservation Fund.” An additional fund, the “Endowment Fund,” is made up of special contributions from owners of burial rights or others for maintenance service beyond the bare necessities provided by the other fund. The Investment Company simply performs the function formerly done by the City Treasurer.

Most of the assets of the Cave Hill Investment Company were invested in government or City of Louisville bonds, but, due to the drop in interest rates in the period involved, the income from these sources almost dried up and was not sufficient to maintain the necessary expenses of operating and caring for the Cemetery. The directors of the Company, in an effort to secure enough income for maintenance, without asking for tax assistance, invested in a few non-exempt stocks and bonds rather than go to the City for tax money to supplement their fading income (Sec. 5, Act of 1882). It is these securities upon which the Department of Revenue is here seeking- to collect an ad valorem tax. We will now examine more closely the legislative history.

The special legislative Act of 1848 creating Cave Hill Cemetery Company as “a body politic and corporate” was more than a mere charter and incorporation of the Cave Hill Cemetery Company; it was, in effect, a legislative ratification of the efforts of the City of Louisville to establish a public cemetery, for it authorized the City to “set apart, donate and convey to the Cave Hill Cemetery Company any part of the Cave Hill farm, not more than SO acres, to be perpetually held and used for the purpose of a Rural Cemetery,” (Cave Hill farm being at that time outside of the City), and the Legislature in turn authorized the Cave Hill Cemetery Company to take and hold any other land by devise and purchase, not exceeding 100 acres, and to “take and hold by gift or devise money and personal estate not exceeding $100,000 in value.” Provision also was made for the Cave Hill Cemetery Company to refund to the City the cost of the land out of proceeds of the sale of lots, and the treasurer of the Company was required to execute bond and give full accounting to the City once a year. Furthermore, the managers of the Cave Hill Cemetery Company were empowered to make “rules and regulations in relation to the duties, management, and appointment of officers and agents, and their pay, and to make all other necessary rules and regulations * * * for the government of lot holders and visitors of said Cemetery,” and the City was “required to pass all necessary ordinances with adequate penalties to protect said Cemetery and everything pertaining thereto from injury or damages.”

The use of the words “body politic and corporate” in the 1848 legislative Act was undoubtedly intended to constitute Cave Hill Cemetery Company a public or municipal (in a broad sense) corporation as distinguished from a private corporation, 37 Am.Jur., Mun.Corp., Sec. 3, thus retaining in the state control of the relationship between the City, as an arm of the state, and Cave Hill Cemetery Company, as an arm of the state, and to retain legislative control of the Cemetery Company itself. On amendment to the charter of the Cemetery Company in 1864, a duty was imposed on the Cemetery Company to set aside “one-fifth of the proceeds of the sale of lots, and invest the same as often as may be convenient, so as to create a perpetual fund for the preservation of the Cemetery grounds after a sufficient revenue shall cease to be derived for that purpose from the sale of lots; and the principal of said fund, so invested, shall never be used.” The imposition of such trust duties upon the Cemetery Company as a public corporation by the legislature implies its power to change the arrangement if it sees fit to do so. “It is surely not competent for a mere municipal organization which is made trustee * * * to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require.” City of Philadelphia v. Fox (1870), 64 Pa. 169, 182. The power of the Legislature to make such changes arises from the desirability of placing no obstacle in the way of an organ of the government. Bogert, Trusts & Trustees, Sec. 521; 2 McQuillin on Mun.Corp., Sec. 420. As a public or municipal type corporation, as an arm of the state, the property of the Company necessarily is public property and, if used for a public purpose, is exempt from taxation under the provisions of Section 170 of the Constitution.

In keeping with the control thus retained by it, the Legislature created Cave Hill Investment Company in 1882 for the purpose of transferring management of the funds of Cave Hill Cemetery Company, apparently to create a private body to solicit contributions, Bogert, Trust & Trustees, Sec. 130. It was required that the president of Cave Hill Cemetery Company be one of the directors “and the other four shall be elected by the Board of Managers of Cave Hill Cemetery Company” from among owners of burial rights in the Cemetery. The Investment Company was given the power to invest in United States, State of Kentucky and City of Louisville bonds, but it could not invest in other securities until “the President and all of the Directors of said Company shall consent thereto in writing before said investment is made, and the Managers of Cave Hill Cemetery Company also consent in writing before said investment is made.” The Investment Company was authorized to accumulate a fund the income from which was to be paid over to the Cemetery Company to be used exclusively for the “protection, preservation and ornamentation of the grounds of the Cave Hill Cemetery Company, but no part of the principal fund shall ever be used.” The Investment Company was authorized to secure gifts, donations, bequests, and devises and (use) the same as directed by the donors.” The Investment Company had to report its financial status twice annually to the Cemetery Company and the latter had the right at all times to examine the books and papers of the Investment Company.

The nonprofit Cemetery Company and the Investment Company are so integrated that the latter is essentially a trustee of the invested funds of the former. Had the Cemetery Company continued to hold and manage its funds, solely for the preservation and maintenance of the Cemetery, it seems to us there would be little question that they were public funds being used for a public purpose. In the light of the close connection between the Cemetery Company and the Investment Company, whose sole purpose for existence is to serve the former, we believe it reasonable to conclude that the funds held by it and obtained by it, whether principally for the maintenance of favored lots or not, clearly serve the overall public purpose of preserving, beautifying and maintaining the Cemetery.

In creating Cave Hill Cemetery Company as a “body politic,” the Legislature recognized the public nature of the Cemetery, recognized its public purpose, authorized its maintenance and development by the financial means mentioned, and retained unto itself the legislative power to alter or modify the legal structure as the public interest may require, even to the point of authorizing the levy of taxes for its preservation and maintenance in case the presently established methods of financing the Cemetery prove inadequate. In the peculiar factual situation before us for consideration, it seems to us that permitting the collection of an ad valorem tax by the Department of Revenue on any of the funds involved would tend to thwart the obvious purpose of the Legislature — to make this public cemetery self-sustaining, and thus avoid the need of granting it support from public taxation. For these reasons we conclude that the funds involved are public property used for a public purpose within the meaning of Section 170 of the Constitution, and therefore exempt from taxation.

The unappealed judgments of former years are not determinative of the present litigation. The doctrine of res judicata ordinarily has little application to tax litigation (51 Am.Jur., Taxation, Sec. 1251, p. 1065 et seq.), for “the taxes for a subsequent year constitute a new cause of action.” City of Newport v. Commonwealth, 106 Ky. 434, 50 S.W. 845, 849, 51 S.W. 433, 45 L.R.A. 518. See, also, Louisville Garage Corporation v. City of Louisville, 303 Ky. 553, 198 S.W.2d 40; German Gymnastic Association of Louisville v. City of Louisville, 306 Ky. 810, 209 S.W.2d 75.

We conclude that both the Preservation Fund and the Endowment Fund are exempt from ad valorem taxation as being public property used for a public purpose within the exemption from taxation provision of the State Constitution. Sec. 170.

The judgment accordingly is affirmed on the appeal of the Commonwealth and reversed on the appeal of Cave Hill.

BIRD, C. J., and WILLIAMS and PALMORE, JJ., dissent.

WILLIAMS, Judge

(dissenting).

When Cave Hill Cemetery Company was incorporated by the Legislature in 1848 the City of Louisville was given the power to convey 50 acres to the Cemetery Company for the purpose of a rural cemetery. The mayor and city council were authorized to fill vacancies on the Board of Managers. A portion of the proceeds of the sale of lots was to be used to refund moneys advanced by the City of Louisville for improvement of grounds and the surplus when otherwise not appropriated was to be paid into the city treasury as a permanent improvement fund. In 1882, the Legislature amended the charter of Cave Hill Cemetery Company providing that the managers be elected by the lot owners and vacancies filled by the Board of Managers. Also the requirement that the surplus of the sale of lots be paid into the city treasury was repealed. By separate Act that same year the Legislature incorporated Cave Hill Investment Company and gave it authority to receive any income or other funds for the Cemetery Company. The funds received were to be invested and held for the improvement of the cemetery. Thus beginning in 1882 Cave Hill Cemetery Company ceased to have any connection with the City of Louisville and became by legislative act simply a non-stock, non-profit corporation.

The majority opinion stresses the fact that the legislative Act of 1848 created the Cemetery Company as “a body politic and corporate,” and, consequently, the corporation is said to be a public corporation as distinguished from a private corporation. That question was decided many years ago to the contrary in Commonwealth v. Lexington Cemetery Company, 114 Ky. 165, 70 S.W. 280, 281. The Lexington Cemetery Company was incorporated by the Legislature in 1848, the same year Cave Hill Cemetery Company was incorporated. The Act incorporating Lexington Cemetery Company also specifically stated that it was made “a body politic and corporate.” This Court said in the above-cited case:

* * * Whilst we fully appreciate and approve the well-nigh universal sentiment that the graves of the dead should be decently and tenderly cared for, there can be no escape from the conclusion that appellee is not an institution of purely public charity, as contemplated by the constitution and statute. And whilst their place of burial is expressly exempted, we are of the opinion that the money and notes held and owned by them are liable to taxation.”

Section 170 of the Kentucky Constitution provides certain specific exemptions from taxation. Places of burial not held for private or corporate profit are exempt. Thus Cave Hill Cemetery Company grounds are not taxed. The two funds in question here should be taxable under authority of the Lexington Cemetery case. The only way in which they might be exempt is to declare them to be “public property used for public purposes,” which is exempt under the Constitution, section 170. The Cave Hill Cemetery Company is not a public corporation. It is controlled and managed by those individuals who have purchased lots. Furthermore, the sale of lots and maintenance of cemetery grounds is not a public purpose per se. The funds are neither public property nor are they used for public purposes. Most especially is this true of the Endowment Fund, which is derived from donations of individuals for the purpose of maintaining and beautifying specific lots. It is well settled that tax exemptions are strictly construed against the one claiming the exemption. The majority opinion has the effect of construing this tax exemption most favorably to the one claiming it.

For the above reasons I respectfully dissent from the majority opinion. Chief Justice BIRD and Judge PALMORE join me in this dissent.


author: STEWART, Judge.

text:
    Bill TURPIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    Eugene Goss, Harlan, for appellant. .
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   STEWART, Judge.

Appellant, Bill Turpin, was convicted in the Harlan Circuit Court of the offense of maliciously shooting at and wounding an-_ other with intent to kill. See KRS 435.170 (1). He was sentenced to five years’ imprisonment. On appeal he urges as grounds for reversal that the lower court erred (a) in not discharging the jury and continuing the case because of prejudicial statements made in the presence of the jury during an adjournment; and (b) in refusing to admit in evidence a photograph of the scene of the crime.

As shown by the record, the trial of this case began on March 16, 1961, and after the Commonwealth had introduced two witnesses who testified in chief, court was adjourned until 9:00 a. m. the following day. When court reconvéned at the appointed time, the trial judge, while the jury which had been empaneled was seated in the courtroom, proceeded to call the docket set for that day, which included two other indictments returned against this same appellant. One of these was for carrying a concealed deadly weapon; and in connection with this charge the Commonwealth’s attorney rose and made a motion for a peace bond, stating as the reason for such a request that certain persons interested in that particular indictment were “afraid of the defendant” because he always kept a pistol on or about him. The motion was set to be heard at a future date. Appellant then moved to discharge the jury and to continue the case but his motion was overruled, to which he excepted.

Appellant argues that, since he was being tried for a crime which involved an act of violence and the use of a firearm, to announce an indictment that charged the carrying of a concealed deadly weapon and to tell the court, in support of the motion for a peace bond, that certain persons were in fear of him because he kept a pistol in his possession, was highly prejudicial to his case. The Commonwealth maintains that the mention of the pending indictment took place during the transaction of routine court business and was not injected into the case deliberately or for any extraneous purpose. Furthermore, it asserts that, as appellant had admitted in the case at bar he had taken a loaded gun with him on a friendly visit to a man he later was accused of shooting, such evidence pictured him as a man any reasonably cautious person would fear, so that a motion to place him under a peace bond could not have had an aggravating effect.

This Court has frequently held it is reversible error to call to the attention of the jury information that tends to show another crime has been committed which is independent of, and unconnected with, the one for which the accused is on trial. See Acres v. Commonwealth, Ky., 259 S.W.2d 38; Swanger v. Commonwealth, Ky., 255 S.W.2d 38; Peck v. Commonwealth, 286 Ky. 347, 150 S.W.2d 919; Howard v. Commonwealth, 110 Ky. 356, 61 S.W. 756. In practically every instance where we have considered the point, this type of inadmissible evidence was elicited from one who was testifying.

However, if bringing out other unrelated criminal transactions through a witness is prejudicial error, then certainly any conduct of the trial judge or of the Commonwealth’s attorney which, within the hearing of the jury, reveals subject matter that stands condemned when disclosed by testimony, would constitute a sufficient reason for reversing the judgment of conviction. Although the acts complained of did not transpire during the trial, those on the jury were fully exposed to them in such a way that it is impossible to believe they might not have been influenced to the detriment of appellant when they rendered their verdict. In the interest of justice we conclude appellant should be given a new trial free from damaging statements as to the commission of other offenses of which he may be accused.

It is next contended a photograph of the scene of the crime was improperly excluded. We are left in the dark as to what appellant had in mind to establish by this picture, because, first, he gives us no explanation in this respect and, secondly, the photograph is not before us so that we might form our own conclusion as to its relevance. The trial judge rejected it because he thought it was too remote in point of time from the date of the incident.

The time at which a photograph offered in evidence was taken is important only with reference to the question of whether there has been a change in the condition of the person or object portrayed. The mere fact that a photograph was taken at a time different from the date of the incident in question does not render it inadmissible if it can be established as a substantial representation of the conditions as they then existed. See 20 Am.Jur., Evidence, sec. 731, p. 611.

With the foregoing test in mind we believe the trial judge will be able to satisfactorily determine the admissibility of the photograph, if there be another trial.

Wherefore, the judgment is reversed.


author: WADDILL, Commissioner.

text:
    Ernest CROWE, Appellant, v. Elizabeth CROWE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    G. D. Milliken, Jr., Bowling Green, for appellant.
    Francis & Potter, Bowling Green, for appellee.
   WADDILL, Commissioner.

In this action both parties sought a divorce on the ground of cruel and inhuman treatment. The Chancellor granted Mrs. Crowe a divorce, awarded her alimony in the sum of $5,000 payable in semiannual installments of $500 and directed her to restore to Mr. Crowe certain property she obtained by virtue of the marriage. The judgment further directed Mr. Crowe to» pay the costs of action including a fee of $500 to Mrs. Crowe’s attorney. On the appeal Mr. Crowe urges that the sums awarded Mrs. Crowe and her counsel are excessive,, while on the cross-appeal Mrs. Crowe contends that the allowance to her is not adequate.

At the time of their marriage in 1931, Mr. Crowe was a tenant farmer and neither he nor his wife had accumulated any money or property. During the following year, and immediately prior to the birth of their only child, they had their first serious disagreement. While their differences were temporarily resolved, through the ensuing years they became involved in other serious quarrels, some of which caused their temporary separation. Mrs. Crowe testified that her husband had physically assaulted her on several occasions, and Mr. Crowe stated that the principal reason for their trouble was his wife’s domineering attitude and violent temper. He acknowledged that he had struck his wife on one occasion and that he had ordered her to leave his home during a wrangle that resulted in their final separation. They both seem to agree that the main cause of their disharmony stems from Mrs. Crowe’s failure to adjust herself to Mr. Crowe’s relatives and their intrusion into her personal affairs. Consequently, it is apparent from the record that Mrs. Crowe was not “blameless” as the Chancellor so aptly expressed it.

At the time this action was filed they had accumulated property which Mrs. Crowe valued at approximately $20,000. According to Mr. Crowe the net worth of his property is only about $8,500, although he frankly concedes that if he could sell his farm for the price he seeks for it his net worth would be increased by approximately $5,500.

Mrs. Crowe, who is now past 50 years old and has spent the most productive part of her life in rearing her daughter and in aiding her husband in the accumulation of a valuable farm and farming equipment, is entitled to an adequate sum as alimony. Mr. Crowe has also reached the age where his capacity to labor is somewhat limited. These and other pertinent factors were obviously given careful consideration by the Chancellor. See Heustis v. Heustis, Ky., 346 S.W.2d 778; Alexander v. Alexander, Ky., 317 S.W.2d 494; Lockard v. Lockard, 305 Ky. 656, 205 S.W.2d 317.

The judgment reflects that the Chancellor fully considered all aspects of the case and awarded Mrs. Crowe an amount which appears to be fair and just to both parties. Also, the allowance of $500 as an attorney fee was proper and reasonable. Therefore, we find no abuse of discretion.

The judgment is affirmed on the direct appeal and on the cross-appeal.


author: MILLIKEN, Judge.

text:
    Lue Ella MILLER, Individually and as Administratrix of the Estate of Edward Charles Miller, Appellant, v. Leona Miller TAYLOR et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    Stoll, Keenon & Park, Lexington, for appellant.
    Thomas R. Underwood, Jr., Lexington, for appellees.
   MILLIKEN, Judge.

This is an appeal from a judgment upholding a county court judgment removing an administratrix upon the ground that she procured her appointment by fraud upon the court. The record consists of the pleadings, motions, judgments and a series of affidavits.

Edward Charles Miller, twenty-one years of age, was killed in an automobile-truck collision in Scott County July 22, 1958, when a passenger in the automobile. . His uncle, Charles Miller, visited the scene of the accident, viewed skid marks on the highway which indicated the automobilei was on the wrong side of the road, and concluded — apparently without advice of counsel — that no recovery could be had for the heirs of the deceased. Subsequently, the appellant, Lue Ella Miller, grandmother of the deceased and with whom he had lived in Lexington for most of his life, qualified as administratrix of his estate and accepted a settlement of $748, the amount of the funeral bill, from the truck owner’s insurance carrier. The appellee, Leona Miller Taylor, the nonresident widowed mother of the deceased and his heir at law, moved the county court to remove the grandmother as administratrix upon the ground that her appointment was fraudulently procured which motion was granted by the county court in September, 1958, without written notice to the grandmother, resulting in the appellee Security Trust Company being appointed successor-administrator. In 1959 the new administrator, Security Trust Company, . filed an action in the Scott Circuit Court against the truck owner claiming $113,590 damages.

After removal of the grandmother as administrator without written notice in September, 1958, counsel for the grandmother moved the county court to set aside its order because of the failure of notice, and, after a hearing, the details of which are not before us, the county court, on November 1, 1958, adjudged that “orders previously entered in the case voiding the appointment of Lue Ella Miller as adminis-tratrix of the estate of Edward Charles Miller and appointing Security Trust Company, administrator of the estate of Edward Charles Miller be continued in effe.ct, and the motion of counsel for Lue Ella Miller to revoke said orders is denied.” After reviewing the record in the county court, the Circuit Court affirmed the judgment.

Conceding arguendo that the grandmother was not notified and was not heard at the time of the original order removing her, it is our conclusion that the subsequent hearing in the county court sufficiently rectified these omissions, and that the peculiar wording of the subsequent order continuing the original removal order in effect does not preclude -its acceptance as a removal after notice and hearing as of November 1, 1958. Since we are not favored with whatever testimony was offered at the hearing in the county court, it is impossible for us to pass upon the question of whether that testimony sustained the charge of fraud in procuring the appointment. The affidavits filed in the Circuit Court on motions for summary judgment do not cure this defect in the record to our satisfaction. As a consequence, we conclude, as did the Circuit Court, that the county court’s judgment removing the administratrix is correct. We do not pass on the effect of the ruling upon the $768 ' settlement.

The judgment is affirmed.


text:
    Jo M. FERGUSON (Formerly, V. E. Barnes), Commissioner of Economic Security, etc., Appellant, v. James GARLAND, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.

      Paul E. Tierney, Forest Smith, Clarence E. Powell, Kentucky Unemployment Insurance Commission, Frankfort, for appellant.
    Earl L. Cole, Cole & Cole, Barbourville, for appellee.
   WADDILL, Commissioner.

The Commissioner of Economic Security of Kentucky has appealed from a judgment which directed the Division of Public Assistance to grant appellee, James Garland, public assistance.

Garland, a resident of Knox County, filed an application seeking public assistance in the form of aid for his dependent, needy child and grandchild under the provisions of KRS, Chapter 205. Applicant claimed that he was physically incapacitated to the extent that he could not provide for his dependents a subsistence compatible with decency and health.

The Division of Public Assistance found that Garland was not incapacitated and rejected his claim. An appeal was taken, and after a hearing a referee of the Division decided that Garland was not entitled to public assistance. Thereupon he filed a “petition for review” in the Knox Circuit Court asking a reversal of the “decision”, a copy of which was filed as an exhibit with the petition for review.

The Division moved for dismissal on the ground that Garland had failed to exhaust the administrative remedies provided by KRS, Chapter 205 before filing his petition for review in the circuit court. The court overruled the motion because counsel representing the Division had failed to take timely depositions in support of its motion for which leave had been granted by the court pursuant to the Division’s request. Since we have concluded that the court should have sustained the Division’s motion to dismiss, it is unnecessary to relate the further proceedings in the circuit court.

The petition for review indicates that Garland sought a review in the circuit court, not from the decision of the appeal board, but from the decision of a referee of the Division. This is made certain by the exhibit which was annexed to the petition. Foshee v. Daoust Construction Co., C.A. 7, (1950) 185 F.2d 23.

An applicant who is dissatisfied with the decision on his application for public assistance is provided with an appeal to the appeal board by KRS 205.230(2). An appeal to the circuit court from the decision of the appeal board is provided by KRS 205.230(3). Since the appeal was not perfected pursuant to the latter statute, the Knox Circuit Court was without jurisdiction, and therefore erred in failing to sustain appellant’s motion to dismiss Garland’s petition for review. See Roberts v. Watts, Ky., 258 S.W.2d 513.

The judgment is reversed, with directions to set it aside and to enter an ordér dismissing the petition.


author: CLAY, Commissioner.

text:
    HI HAT ELKHORN MINING COMPANY, Appellant, v. Ted NEWMAN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.

      Joe Hobson, Prestonsburg, R. D. Davis, Ashland, for appellant.
    Paul E. Hayes, Frankfort, C. Kilmer Coombs and Combs & Combs, Prestonsburg, for appellee.
   CLAY, Commissioner.

This is a suit for damages brought by the appellee owner of the surface of land against the appellant owner of the coal mining rights thereunder. The cause of the complaint was the dumping of refuse on the surface incident to the washing and otherwise processing of coal mined on both ap-pellee’s property and other tracts. The jury was instructed appellant had no right to injure the surface by discharging refuse from coal brought in from other lands, and it awarded appellee $2500.

Appellant’s principal contention is that under a standard mineral deed it could legally process coal and dump refuse on appel-lee’s land regardless of the source of the coal. The right to do so, if it exists, arises from a provision of the mineral deed which permits appellant to use the surface of ap-pellee’s land “for the removal over and through said land, (of) the products taken out of any other land owned or hereafter acquired” by appellant. That such a provision does not give the right contended for was decided in Pike-Floyd Coal Co. v. Nunnery, 232 Ky. 805, 24 S.W.2d 614. While dumping refuse may be an integral part of the mining operation on a particular tract, it is not an authorized incident of removing coal from other tracts.

The case relied on by appellant, Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394, did not involve the appropriation of the surface of plaintiff’s land but concerned the right of a mine operator to maintain a nuisance created by normal mining operations on adjacent property.

Complaint is made of the instructions, which we find properly presented the only issue in the case and the correct measure of damages. The testimony complained of was either competent or, if incompetent, was not material or prejudicial.

Appellant’s final contention is that the damages were excessive. While there was adequate evidence of a difference in the reasonable market value of appellee’s farm as a result of appellant’s processing operations, such proof was not limited to the damages caused within the last five years by that part of the operation which was wrongful. We recognize the difficulty of proving damages in a case of this sort, but it appears the proof and the verdict included damages for which appellant was not liable. Without proper proof to support it, we find the verdict was excessive. For this reason the judgment must be reversed.

The judgment is reversed with directions to grant a new trial on the sole issue of damages caused the plaintiff by the dumping of refuse from coal mined on lands other than those of the plaintiff.


author: WALKER, Justice.

text:
    Lee G. BREWER, Petitioner, v. CENTRAL GREENHOUSE CORPORATION, d/b/a Greenwood Greenhouses, Respondent.
    No. A-8374.
    Supreme Court of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 3, 1962.
    Bagby & Atkins, Arlington, Jacob L Karro, Deputy Asst. Sol., U. S. Dept, of Labor, Washington, D. C., for petitioner.
    Walker, Day & Harris, Fort Worth, for respondent.
   WALKER, Justice.

This suit was brought by Lee G. Brewer* petitioner, against Central Greenhouse Cor-, poration, respondent, to recover minimum wages under the provisions of the Fair Labor Standards Act of 1938. 29 U.S.C.A. §201 et seq. The trial court granted respondent’s motion for summary judgment on the ground that petitioner was an agricultural employee, and the Court of Civil Appeals affirmed. 344 S.W.2d 518.

Anyone employed in agriculture is expressly excepted from the minimum wage provisions of the Fair Labor Standards Act. 29 U.S.C.A. § 213(a) (6). “‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities * * * and any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” 29 U.S.C.A. § 203(f).

The definition of agriculture in the Act comprises two distinct meanings. The primary meaning is farming in all its branches and includes certain specific practices such as the production, cultivation, growing and harvesting of agricultural and horticultural commodities. The second and broader meaning covers other activities, whether or not they would ordinarily be regarded as farming practices, provided the same are performed by a farmer or on a farm as an incident to, or in conjunction with, such farming operations. See Farmers Reservoir and Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672.

Throughout the period involved in this action, petitioner worked in and around respondent’s greenhouse in Ft. Worth. Growing plants of various kinds purchased by respondent from others were delivered there by truck. Many of them were in pots when received, but some were bare-rooted. The latter were placed in pots by respondent’s other employees. Some of the plants were delivered to respondent’s customers shortly after they were received at the greenhouse. The remainder were kept in pots standing in shallow beds of sand until sold. About ninety-five per cent of petitioner’s time was spent in unloading trucks and transferring potted plants to and between the beds. He also built the beds and filled them with sand, made repairs to the greenhouse, assisted in pruning, and occasionally prepared plants for shipment. All watering, fertilizing and potting was done by other employees.

Petitioner had little to do with the actual care of the plants, and we think the employment clearly is not covered by the first part of the definition quoted above. His activities fall within the scope of the secondary meaning only if they pertained to farming operations conducted by respondent. Practices which are not in themselves farming are not exempt if the same relate only to farming operations conducted by persons other than the employer. Thus individuals working in an establishment where plants and flowers are distributed at wholesale and retail are employed in agriculture if substantially all of the products sold are grown by their employer in greenhouses and gardens at another location. Walling v. Rocklin, 8th Cir., 132 F.2d 3. But the exemption has no application to employees engaged in handling and selling rosebushes grown by persons other than their employer even though the latter is also engaged in the production of horticultural commodities. Mitchell v. Huntsville Wholesale Nurseries, Inc., 5th Cir., 267 F. 2d 286.

It is necessary, therefore, to distinguish an agricultural or horticultural enterprise from an operation in which cultivation and care of growing things is merely incidental to wholesale or retail distribution. Potted plants continue to grow while displayed for sale in a department store, but this does not make the store a farm or its owner a farmer. In many cases the real nature of the activity cannot be determined until the facts have been fully developed.

Petitioner’s affidavit states that most of the plants with which he dealt were not produced, cultivated or grown by respondent. His deposition indicates that he may have meant only that respondent did not place the seed in the ground and then grow the plant to maturity. The definition of agriculture is not to be so narrowly construed. Damutz v. William Pinchbeck, Inc., 2nd Cir., 158 F.2d 882, 170 A.L.R. 1246. On the other hand, the affidavit filed by respondent in support of its motion for summary judgment states that the plants were cared for, thrived and grew after being transferred to the beds. This affidavit does not disclose how long the plants remained in the greenhouse, and the affiant may have been referring only to the growth which continued during a rather brief period while they were being held for resale.

Viewing the affidavits and deposition testimony in the light most favorable to petitioner, it appears that respondent grew some plants from cuttings. The remaining products it sold were purchased from others, and many of these were in a substantial state of maturity when received. Some of the plants so acquired were held by respondent for only a short time, occasionally less than twenty-four hours. Others remained and grew in the greenhouse for varying periods until they were sold. The record is not clear as to whether those in the last category were held by respondent for the purpose of cultivation and growth, and there is nothing to indicate what proportion of its receipts were from products sold shortly after being purchased from other growers. Petitioner’s employment may have been in conjunction with an agricultural operation conducted by respondent, but this cannot be determined without additional facts showing the extent to which he was involved in the wholesale or retail distribution of plants grown by others. The affidavits and depositions do not establish conclusively that his activities were so related to the production, cultivation and growth of horticultural products by respondent as to bring him within the terms of the statutory exception.

The judgments of the courts below are reversed, and the cause is remanded to the district court for trial.


author: DICE, Commissioner. MORRISON, Judge.

text:
    R. L. ROBINSON, Appellant, v. STATE of Texas, Appellee.
    No. 33149.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1961.
    Rehearing Denied Nov. 22, 1961.

      Marion G. Holt, A. L. Lowery, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is arson; the punishment, two. years in the penitentiary.

The sole question presented for review is the sufficiency of the evidence to support the conviction.

Appellant and his family lived in the 'City of Nacogdoches in a four-room frame house which he rented from one J. M. Ammó'ns. On the night of July 20, 1960, the house burned, resulting in a loss of approximately $600 to Ammons, the owner, who had no insurance.

In the investigation which ensued it was determined that the fire originated inside the house in the bathroom. The electrical fuses in the fuse box on the house had been bridged, which placed a direct current into the house without the safety factor of .a fuse. Both fuses were burned. One of the fuses had a penny welded into the socket and the residue of some material was found in the other fuse socket. Wiring taken from the house showed the effect of a tremendous heat passing through it. Fire Marshal E. C. Feazell testified that in his opinion the cause of the fire was electricity which came through the fuse box. He further testified that on the night of the fire appellant stated to him at the scene that he had no insurance.

- It was shown by the state’s testimony that on the date of the fire appellant had in force fire insurance in the total sum of $1,700 on his household goods and clothing in the house. One policy in the amount of $500 had been issued to him two days before the fire.

On August 1, 1960, appellant made a written statement to the officers in which he admitted burning the house to collect the insurance. In the statement which was introduced in evidence by the state over appellant’s objection, appellant in describing his actions on the night in question stated in part, as follows:

"We came on over to my house at Looneyville Road or rather at I. D. Taylor’s which is pretty close to my house and me and my wife went on over to my house and the lights was off. I had trouble with the lights once before and they caught the house on fire and I put the fire out because I didn’t have any insurance but a short time later which was on July 18, 1960 — two days before the fire I bought a policy on the furniture and my clothes which covered $500.00 worth. I also had another policy with a Mr. Pitts for $1000 which gave me $1500.00 all told me and my sister-in-law had been paying on the insurance policy. After I went in the house I lit a candle and took 3 wires in the bathroom and tied them together and wrapped them with some friction tape and laid them down side the wall near some of my clothes and then I went to the kitchen and got some Kaiser Aluminum foil that was wrapped around some meat — this foil is real heavy and is sometimes used for cooking. I tore a piece and made a heavy cap and went to the fuse box and put it in the box and turned the lights on — I then went back in the room where I had tied the wires together and they were smoking — I then went back to the front room and my wife said that something is burning and I told her to leis go because I have got insurance on it and we left out of the house and went on down to my sister- in-lazvs and went to bed. I could have stopped the fire than by screwing the fuse out but I wanted to collect my insurance. We went to sleep and in a short time I. D. Taylor came to the house and tole me that my house had burned up. I wasn’t surprosed a bit because I knew what was going to hep-pen when I put the aluminum foil in the fuse block.”

Testifying as a witness in his own behalf, appellant repudiated his written statement made to the officers and testified that he did not freely and voluntarily make the same, but made the statement through fear because of brutality exercised upon him by the officers. The charge of brutality was denied by the officers. Appellant further stated that he was not at his home at the time of the fire, denied that he burned the house, and contended that the fire was caused from defective wiring.

The court submitted to the jury in his charge the question as to the voluntary nature of the confession and also charged the jury with reference to the corroboration necessary to convict appellant upon his written confession.

Appellant insists that the state wholly failed to prove the corpus delicti by showing that he wilfully burned the house. Appellant further contends that his conviction. cannot be sustained upon his confession, because such confession was not corroborated.

In the recent case of Fruechte v. State, 166 Tex.Cr.R. 496, 316 S.W.2d 418, 419, the rule announced in the early case of Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989, 996, with reference to the sufficiency of the evidence to corroborate a confession, in establishing the corpus delicti, was stated as follows:

“ ‘A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection-with the confession, produce conviction of the defendant’s guilt in the minds of a jury beyond a reasonable doubt.’ ”
“ ‘Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. “Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.” 3 Am. & Eng.Enc.Law, p. 447. We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti, and in aid thereto use [the] confession of the appellant.’ ”

A careful review of the facts and circumstances shown, surrounding the burning of the house in question, the place of origin of the fire in the house, the condition of the fuses, the fuse sockets, and all the other facts and circumstances, lead us to the conclusion that such evidence is — under the rule stated — sufficient to corroborate appellant’s written confession and, when taken in connection therewith, is sufficient to sustain the jury’s verdict finding him guilty as charged in the indictment.

The judgment is affirmed.

Opinion approved by the -Court.

On Motion for Rehearing.

MORRISON, Judge.

Appellant contends that there was no proof of the corpus delicti of the offense-outside of the confession. With this contention, we do not agree. According to this: record, in order for combustion to occur, it was necessary that the fuse box be-bridged and two wires come in contact somewhere inside the house.

The confession recites that he bridged the fuse box and tied three wires together in the bathroom. There was testimony from other witnesses which would authorize the jury to conclude that the fuse box had been bridged and that the fire originated in the bathroom. This we deem sufficient.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Andres LOPEZ, Appellant, v. STATE of Texas, Appellee.
    No. 33622.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.

      John B. Luscombe, Jr., and Grover L. Stephens, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment 25 years.

The indictment was returned September 6, 1960, and trial was had on February 13, 1961.

It is undisputed that the appellant was 15 years of age on the date of the killing on November 20, 1958. The court in the charge to the jury gave effect to the provisions of Article 31, P.C.

The evidence shows that Miguel Ramos, the deceased, was a farm worker on the Guerra ranch which was located alongside the Rio Grande River in Hudspeth County, but that he lived on the Mexican side of the river and commuted by donkey, using a wooden handmade saddle with gunny sacks for padding.

Before and on November 20, 1958, the appellant was also a laborer on the Guerra ranch where he lived with his father and mother. He knew the deceased, where he lived, and the way and manner he traveled to work. It was generally known that the deceased was thrifty and carried money on his person.

The deceased was last seen alive about sunset on Thursday, November 20, leaving the Guerra ranch by himself in the direction of the river. Two persons going to work on the Guerra ranch, Sunday, November 23, after crossing the river, saw deceased’s saddle, which they recognized, and some bloody gunny sacks in the brush. They noticed a “trail dragging” and tracks which led them beyond a freshly cut fence to a place where the deceased’s body was later discovered to be buried. The officers were immediately notified, and they went to the scene where they saw a saddle, “drag marks”, and a freshly cut fence. They disinterred a body which had the clothing pulled over the head which was identified as that of Miguel Ramos.

An autopsy on the body of Ramos showed that he had been shot in the back with a small caliber gun and a short time later shot in the back of the head. The physician also testified to marks on the body which were indicative of the dragging of ' the body.

The testimony shows that, while accompanied by the officers, the appellant identified the .22 rifle he used to shoot the deceased, the pliers with which he cut the fence, the grave in which he placed deceased’s body, and the shovel used to dig it. He also pointed out the place he had hidden the money that he removed from the body, which was the same place his mother testified that she found it.

The written statement of the appellant, witnessed by his brother and sister-in-law, was introduced in evidence by the State, in which he describes in detail the facts and circumstances surrounding the killing. In it, he admits killing the deceased , by shooting him twice with a .22 rifle, then removing about $200 from the body before burying it.

The appellant did not testify but showed by the records of the Texas Youth Council that on March 24, 1959, the State filed a petition alleging him to he a delinquent child; that he was so adjudged March 30, and was received by the Council at Gates-ville on April 28. He also offered proof that he was given lie detector tests at the El Paso Police Department on March 6 and March 9 and their record was marked “held for murder”; and on April 13, it shows “hold for Gatesville”. The County Attorney of Hudspeth County testified that he filed the petition; that the appellant was not tried for murder and there was no evidence introduced showing murder on the trial at which he was adjudged a delinquent child.

The petition filed in the Juvenile Court alleged that appellant was “an incorrigible child, * * * did habitually run away from home, and habitually pursued an unlawful course of conduct, * * *.” (Article . 5143a, Vernon’s Ann.Civ.St.) There was no evidence introduced of the murder of. Miguel Ramos on the hearing of the petition. The judgment of conviction, fpllowed the pleadings and tlie evidence, in adjudging him to be a juvenile delinquent

'‘‘Appellant insists that the trial court was without jurisdiction because of his previous conviction for the same offense under the Juvenile Delinquency Act; that such conviction is a bar to this prosecution on the ground of double jeopardy or under the , due" process clause of the United States Constitution. U.S.Const. Amends. 5, 14.

Similar contentions were presented, fully discussed and overruled in the recent holdings‘of this Court in Wood v. State, Tex.Cr.App., 349 S.W.2d 605, and Hultin v. State, Tex.Cr.App., 351 S.W.2d 248. ThéSé cases are here controlling and the aboVe 'cdntentions are overruled.

Appellant contends that the court erred in permitting the State, upon pleading surprise, to impeach its own witness, Marcella Lope2, the mother of appellant^ by asking her if in the written statement she made to officers she said: “After I had found the money, I began to wonder if maybe Andres ("appellant) had killed Miguel Ramos.” To Which appellant also objected on the ground "that it was a conclusion and a conjecture.

. While testifying for the State, Marcella ; Lopez admitted that she signed a statement by‘making a mark in the presence of her son, Domacio Lopez, and his wife, in which • she stated that shortly after Christmas, in 1958, she found some money in the roof of an outside toilet after she had seen the appellant go to the outside toilet, but she denied saying that she saw him take anything from his pocket and hide it on the roof of the toilet. She further denied saying that “After I had found the money, I began to wonder if maybe Andres (appellant) had killed Miguel Ramos.” The statement referred to during the examination of Marcella Lopez was never introduced in evidence.

To constitute the impeachment of which the appellant complains, it would be necessary for the State to support the predicate laid, either by the introduction of the written statement or by an affirmative .showing that the written statement contained such matter. In the absence of such proof, her denial of making such statement was not contradicted. Therefore, the ’matter of her impeachment is not presented. Bailey v. State, 37 Tex.Cr.R. 579, 40 S.W. 281; Robbins v. State, 162 Tex.Cr.R. 107, 282 S.W.2d 711. For the same reason, the objection that such statement is a conclusion or conjecture is not presented.

It is insisted that the trial court erred in admitting the oral statements pertaining to the killing made by the appellant to the officers on their trips to the bosque near the river, on the ground that the appellant was under arrest.

The testimony shows that the officers did not know the identity of the particular instruments used in connection with the killing until the appellant pointed out and identified the shovel with which he dug the grave, and, the .22 rifle he used to kill him. This testimony, under the provisions of Article 727, C.C.P., authorized the admission in evidence of the oral statements. Smith v. State, 157 Tex.Cr.R. 637, 253 S.W.2d 665.

■ Appellant strenuously insists that his written statement introduced by the State was inadmissible as a matter of law on the ground that it was illegally obtained.

The issue of the involuntary character of the written statement was submitted by the court in its charge to the jury.

The appellant did not testify, but he offered the following evidence in support of his contention that the written statement was illegally obtained from him. After the killing of the deceased on November 20, 1958, the appellant was arrested without a warrant about 10 P.M., March 3, 1959, and placed in jail at Sierra Blanca. On March 6, appellant was taken to the El Paso Police Department and given a lie detector test, and then placed in the El Paso County Detention Home. He was given another lie detector test on March 9, and returned to the Detention Home. The records of the Detention Home show that he was there from March 6 to March 30, although one. witness thought that he was returned to Sierra Blanca on March 10. The El Paso Officers, Ranger Nance, and the officers of Hudspeth County talked frequently with the appellant, mostly at night and usually for an hour or an hour and one-half. On March 24, 1959, a petition was filed to declare appellant a juvenile delinquent. From March 3, the appellant was not taken before any magistrate or judge of any court until he appeared before a juvenile judge on March 30, and was declared to be a delinquent child. He made no request for an attorney, and first conferred with one when the court appointed counsel to represent him after the indictment was returned in this cause. It was shown that appellant had only a meager education.

About 9 P.M., March 30, Ranger Nance and Deputy Sheriff Calmenero left with the appellant, going to the scene of the killing which was about 35 miles from Sierra Blanca. They arrived about 10 P.M. at the scene of the grave pointed out by the appellant, which was in a bosque — a salt water thicket. While there, he showed the officers a shovel with which he said he dug the grave, and a photograph was taken of the appellant in or at the edge of the grave. They returned appellant to jail about 1 A.M. The next morning, March 31, Officers Nance and Calmenero, with the appellant, returned to the scene of the killing. On this trip, the appellant obtained and identified a .22 rifle he said he used to kill the deceased. He was returned to jail. Thereafter, on April 7, he made and signed a written statement in which he admitted killing the deceased, and it was witnessed by his brother and sister-in-law.

The proof shows that the appellant, while in custody, was not abused, mistreated, threatened, or questioned continuously or in relays, or was made any promises which induced the making and signing of the statement. The members of his family were permitted and did visit with him. There is no evidence that any person requested and was denied any privilege of visitation or of communication.

There must be a showing of a causal connection between the failure to secure a warrant and the taking of the accused forthwith before a magistrate, and the making and signing of a confession before it will be held inadmissible. The failure to take appellant forthwith before a magistrate when he was arrested without a warrant does not of itself vitiate his confession. Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119, certiorari denied, 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659; Sampson v. State, 160 Tex.Cr.R. 302, 268 S.W.2d 661; Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, and Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Webb v. State, 163 Tex.Cr.R. 391, 291 S.W.2d 331, and Stickney v. State, Tex.Cr.App., 336 S.W.2d 133.

It is concluded that the writtén statement was not illegally obtained from the appellant in violation of Articles 726, 727 and 727a of Vernon’s Ann.C.C.P., or of the due process clauses of our State and Federal Constitutions, and that said statement was not inadmissible in evidence as a matter of law.

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    S. H. HOWELL, Appellant, v. STATE of Texas, Appellee.
    No. 33796.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Lawrence H. Warburton, Jr., Perkins, Floyd, Davis & Oden, Alice, for appellant.

      John C. Mullen, County Atty., Alice, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

The evidence was undisputed that on the night in question, the appellant, while driving his automobile upon a public street in the city of Alice, drove into and collided with a panel truck parked at the curb on the right side of the road.

Witnesses called by the state, including the investigating officers, who observed appellant after the accident, testified that he was “unsteady on his feet” and that he ■“staggered”; that he talked “very belligerent,” and with a “thick tongue”; and that his breath smelled of “alcoholic beverages.” The witnesses expressed their opinions that at such time appellant was intoxicated.

As a witness in his own behalf, appellant testified that he had consumed no alcoholic beverages on the day in question; denied that he was intoxicated; and called witnesses who testified that they had been with him prior to the collision, during which time he had nothing to drink.

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

Appellant insists that his conviction should be reversed because the jury panel in the case was selected by a jury commission rather than from a jury wheel as provided by law. No motion to quash the jury panel was filed by appellant and it was not until after the jury’s verdict that appellant, in his amended motion, for new trial, questioned the method used in selecting the jury panel in the case. Appellant’s objection to the jury panel came too late when made for the first time in his amended motion for new trial. 26 Tex.Jur., pars. 73, 74, pages 638 and 639; Resendez v. State, 151 Tex.Cr.R. 332, 207 S.W.2d 91; Waller v. Summers (Tex.Civ.App.), 299 S.W.2d 752, Reh. Den. err. ref. N. R. E.; Ramsour v. State, 165 Tex.Cr.R. 481, 308 S.W.2d 56.

Appellant next insists that the court erred during the examination of the jury panel in refusing to re-draw the same when the juror Cook reported late in the court and in arbitrarily placing his name last on the jury panel list. . Appellant further insists that the court erred in overruling his motion to postpone the proceedings until two of the jurors, summoned on the panel, were present. Appellant’s complaint to the court’s ruling is not presented by a formal bill of exception and the purported informal bill of exception appearing in the statement of facts does not certify to sufficient facts upon'which we may properly appraise the court’s ruling. We observe, however, that the record does not show that as a result of the court’s ruling any objectionable juror was forced upon appellant and that he was injured thereby. In the absence of such showing, no reversible error appears. 26 Tex.Jur,, par. 76, p. 640.; Lair v. State, Tex.Cr.App., 333 S.W.2d 389.

Complaint is made tó the court’s ac-’ tion in overruling appellant’s challenge for cause of the juror Edwards. While the record reflects that on his voir dire the juror stated that from hearsay or otherwise he had arrived at a conclusion as to the guilt or innocence of appellant, he further stated that he could lay aside anything that he had heard and judge the case solely upon the evidence heard from the witness stand. Under such facts the court did not abuse his discretion in holding the juror qualified. Art. 616, sec. 13, Vernon’s Ann.C.C.P.; Burkhalter v. State, 93 Tex.Cr.R. 504, 247 S.W. 539.

Complaint is made to the court’s action in admitting in evidence an oral statement made by appellant to the arresting officer after his arrest.

The record reflects that when Officer Roensch first arrived at the scene of the accident appellant was seated in his automobile. At the officer’s request, appellant got out of the car, produced his driver’s license, and then got back in the car. While the officer was questioning the owner of the panel truck, appellant left the scene on foot. Officer Roensch then got in his car and drove away in an effort to apprehend appellant. Upon being unable to find him, the officer returned to the scene, where he saw appellant lying down in some grass in a vacant lot. Officer Roensch testified that when he went to appellant and asked him to get up appellant “giggled” and said, “You know I’m pretty drunk.”

Appellant objected to the evidence of such statement on the ground that he was then under arrest and requested that the same be stricken. The objection and request were by the court overruled.

We think the statement made by appellant at the scene of the accident was admissible as part of the res gestae, under the rule announced in Lamkin v. State, 136 Tex.Cr.R. 99, 123 S.W.2d 662. See, also, Ward v. State, 148 Tex.Cr.R. 186, 185 S.W.2d 577, and Fowler v. State, 162 Tex.Cr.R. 513, 287 S.W.2d 665.

The case of Bates v. State, 167 Tex.Cr.R. 414, 321 S.W.2d 76, cited by appellant is not here controlling because in that case the statement made by the accused was given after he had been placed under arrest and had been taken from the scene and was en-' route to the sheriff’s office.

Appellant’s remaining complaint is to the court’s charge. The charge was submitted to the jury and filed in the cause on May 16, 1961. Certain objections and requested charges appear in the record and are shown to have been filed on June 14, 1961. The defendant is required to present his objections to the charge in writing before it is read to the jury. The same is required of requested instructions. Arts. 658 and 659, Vernon’s Ann.C.C.P. Having failed to do so, appellant’s complaint to the charge is not before us for review. Robbins v. State, 161 Tex.Cr.R. 96, 274 S.W.2d 691.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Thomas Earl GARRETT, Appellant, v. STATE of Texas, Appellee.
    No. 33792.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1961.
    Appellant represented himself.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, six months in jail.

Officer Salazar of the Brownwood police testified that he arrived upon the scene of an automobile collision on the night in question and there observed appellant staggering around in the street looking for his shoes, that he smelled beer on his breath, and expressed the opinion that he was intoxicated. He testified that after their arrival at the jail he discovered a broken vodka bottle in appellant’s hip pocket.

Santiago Gonzales testified that he, his wife and baby were traveling on the streets of Brownwood on the occasion in question when an automobile driven by appellant ran into the side of his automobile, that later as he rode in the police car with appellant he smelled beer on his breath,' and expressed the opinion that he was intoxicated.

Officer Thompson testified that he arrived at the scene of the collision and found appellant with one shoe on and one off, that he detected the odor of alcohol on^ his breath, observed him stumbling around trying to put on a shoe, found a broken half-pint vodka bottle in his hip pocket, and expressed the opinion that appellant was “very drunk.”

Chief of Police Calder testified that he was at the police station on the night in question when appellant was brought in with the help of the policemen and that he staggered, expressed the opinion that he was intoxicated, and identified appellant as being the person convicted in the prior misdemeanor case alleged.

Appellant called the witness Davis, who testified that he was at a certain house in Brownwood on the night in question, that appellant came there but upon preparing to depart was unable to get his automobile to start and borrowed one belonging to Raymond Cox. He expressed the opinion that appellant was not intoxicated.

The witness Fendley testified that he was visiting at a home in Brownwood drinking beer, that appellant came to the house but had nothing to drink.

Appellant and his mother testified that appellant had been at the Veterans’ Hospital for some time prior to the occasion in question suffering from a bad stomach and that he had nothing to drink on the night in question. Appellant admitted driving the automobile which was involved in the collision.

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

The bills of exception found in the transcript bear merely the notation “Filed July 20, 1961,” which was more than 90 days after the giving of notice of appeal, and, as provided by Article 760d, Vernon’s Ann.C.C.P., if properly presented, were filed too late to authorize their consideration by this Court.

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


text:
    James Nolan LACOUME, Appellant, v. STATE of Texas, Appellee.
    No. 33837.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.

      No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Jack Peve-house, George Milner, Jr., and Phil Burle-son, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $300.

The evidence was undisputed that, on the night - in question, the appellant was stopped and arrested by Motorcycle Officer L. E. Gray while driving his motor vehicle upon a public street and highway in the ‘City of Dallas. Officer Gray testified that he stopped appellant because the automobile. he was driving fit the description of an automobile he was looking for after having received a radio dispatch. The officer in describing appellant’s actions and appearance, after he was taken into custody, testified that appellant was “unsteady on his feet”; that his speech was “slurred” and his face in a “flushed condition,” “reddish pink”; and that he had a strong odor of “alcoholic bevérage” on his breath.' The officer expressed his opinion that, at such time, appellant was “very intoxicated.”

Officer W. R. Jordan, who was dispatched to the scene and took appellant to jail, corroborated Officer Gray in his description of appellant and - expressed his opinion that appellant was intoxicated.

The state’s witness, L. E. Rogers, who was with Officer Gray on the night in question, also expressed his opinion that appellant was intoxicated.

Appellant, testifying as a witness in his own behalf, admitted driving his automobile on the night in question and having consumed three beers, but denied that he was intoxicated.

The jury resolved the disputed issue of intoxication against the appellant and we find the evidence sufficient to sustain their verdict.

There are no formal bills of exception or objections to the court’s charge. No brief has been filed on behalf of appellant.

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

The judgment is affirmed.

Opinion approved by the Court.


text:
    Donald Ray WILSON, Appellant, v. STATE of Texas, Appellee.
    No. 33657.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.

      George McManus, Fort Worth, Robert Kilpatrick, Cleburne, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Murder is the offense; the punishment, death.

The state’s proof shows that the deceased, James Edward Layland, seventy-eight years of age, lived alone on a small farm located approximately three miles northeast of the city of Cleburne on what was known as the old Mansfield Road. On the afternoon of November 29, 1960, appellant and a companion, John Leonard Watson, appeared in the neighborhood, on foot, seeking assistance in moving appellant’s automobile from a road where it had struck a rock. They first came to the house of Claude Campbell, which was across the road from the deceased’s home, and then went to the home of the deceased where the deceased and a neighbor, C. W. Williams, were watching television. Efforts to move the automobile culminated in Campbell towing the automobile from the road into his pasture with a tractor. The automobile was moved around the middle of the afternoon, after which appellant and his companion left, walking in the direction of the deceased’s home.

At 5 p. m., the deceased’s neighbor, Williams, who had returned to his home, observed two men running from the deceased’s barn across a field. At 5:20 p. m., Williams went to the home of the deceased where his attention was attracted to a dog barking at the barn. He then proceeded to the barn, where he observed the deceased’s dead body lying inside that portion of the building used for a chicken house. When found, the body of the deceased was lying on its back, covered with blood, and it appeared to have been dragged inside the barn.

In the investigation which ensued, it was discovered that the deceased’s house had been pilfered, a desk drawer had been torn open and the contents thrown on the floor and certain articles had been taken from the closets and a chest of drawers and thrown on the floor.

An autopsy performed upon the deceased’s body by Dr. Tolbert F. Yater revealed multiple bruises, cuts, and lacerations about the head and neck and other cuts and stab wounds on the body. Dr. Yater testified that in his 'opinion the cause of death of the deceased was a stab wound in the back.

Appellant and his companion were arrested and taken into custody by Deputy Sheriff Bobby Pollard around 7 p. m. on the evening in question when they drove up in a wrecker, with its owner, to where appellant’s automobile had been left in the pasture. When taken into custody, appellant was wearing a blue suit, which did not fit him, and a khaki shirt which had the name “Ed Layland” in the collar. A khaki shirt was found in the wrecker cab, on the floor, which was also labeled with the same name.

Upon being questioned by the officers, appellant admitted that he killed the deceased and accompanied them to a location on a fence row, approximately three-quarters of a mile from the deceased’s home, where he pointed out and recovered a knife and scabbard, which knife he admitted he used in the killing. Some bloody clothing was also found on the fence row, which appellant stated he was wearing at the time he killed the deceased.

Appellant’s written confession, made to State Ranger George M. Roach, was introduced in evidence without objection.

The confession, omitting the formal portions, reads in part as follows :

“ * * * on Tuesday, November 29, 1960, Leonard Watson and I left Dallas in my car, a 1949 Ford, about noon and we got to Cleburne about 3 :00 P.M. on the same day. We turned off of highway 67 just after we passed Keene. We turned north off the highway, and xxxDRW I lost control of the car and ran off in a bar ditch near Mr. Campbell’s house, which I believe is called the Mansfield -Road. It is about four miles northeast of Cleburne in Johnson County, Texas. I went up to Mr. Campbell’s and asked about his sons, Dan and Charles, but neither of them was there. We then went to Uncle Ed’s house on the Mansfield Road. My granddad, C. W. xxxDRW Williams was there and he tried to pull my car out of the ditch with his car, but he could not pull it out. Then we went back to Campbell’s house and Mr. Campbell took his tractor and pulledwy car out of the ditch and took it to his house. Then Leonard and I went back to Uncle Ed’s house. The man I call “Uncle Ed” is not actually my uncle, but everyone in the neighborhood called him by that name. I believe his name is Ed Lay land. We watched television for a while. We talked a while. I read the funnies in the Sunday paper, which was still in the house. Then we went to the chicken house. Leonard, wncle Ed and I went out there and wncle Ed fed the chickens. Leonard went outside. While Mncle Ed and I were in the chicken house I thought he had some money and I decided to kill him. I had been thinking about it all the time we were there. I started choking him and got him down on the ground, and then I hit him with a rock two or three times. The rock is a little bigger than my hand and it has a sharp point on it. After I hit him with the rock I let him up and he started to holler for help, and I hit him with my fist and knocked him down, and he started to get up and tried to hit me or choke me and then I hit him in the gut with my knife. Then Leonard and I went back to «ncle Ed’s house where I changed clothes.
“Donald Ray Wilson
“I put on some of uncle. Ed’s clothes. I put my clothes in a paper sack. I got wncle Ed’s billfold out of his pocket after I stabbed him. Leonard and I divided the money equally. I threw the billfold down beside the road, but when the officers took me back out to look for it, we could not find it. I hid my clothes and my knife in a fence row, and I took the officers and showed them where the clothes and the knife were hidden. I got some clothes and some change out of the house after I stabbed wncle Ed. Leonard Watson and I went through the house to see what we could find * * *.”

The state’s proof further shows that a set of fingerprints, photographed on a glass top of the desk in the deceased’s home, were identical with fingerprints taken from appellant. A blood specimen taken from the deceased’s body, upon being examined in the crime laboratory of the State Department of Public Safety, was shown to be type “O”. An examination of blood stains on the clothing which appellant was wearing at the time of the killing revealed that the same was human blood and of type “O.”. An examination of blood stains on •the knife which appellant admitted he used in killing the deceased and those on a rock -a little larger than a man’s hand and having a sharp point, which was found near the •chicken house door, revealed that it was human blood but the chemist was unable to •determine the type.

Appellant, testifying as a witness in his •own behalf, stated that on the day in question he and his companion, Watson, came .frqm Fort Worth to Cleburne to go fishing and he recounted how he struck the rock in the road and his efforts in getting ■the car removed. Appellant stated that he had consumed practically a half-pint of ■whisky that morning; that he and his com■panion hád purchased two six-packs of beer • and also two cases of beer; and that they Rad consumed fifty-three cans of beer. Appellant stated that in addition to drinking •the whisky and beer he had taken three “red bird” or “yellow jacket” pills. He .stated that he remembered going to the de•ceased’s home, remembered going to the •chicken house with the deceased and that his mind them went blank and he next remembered walking down the road with his •companion, who told him that he (appellant) had stabbed the deceased. Appellant stated that he did not remember stabbing ■the deceased and that what he stated to ■the officers was what his companion told ‘him had happened.

Appellant called his father as a witness, who testified that he had seen appellant ;drink and on one occasion saw him take two '“yell.ow bird or yellow jacket” pills. Appellant also called as witnesses his mother ■jind aunt, whose testimony was in substance that a grandfather and great-grandfather •of appellant had died in the Terrell State .Hospital for mental patients and that his .•sister had been an inmate of the Austin State School for mentally retarded children.

The court, in his charge, gave application to the provisions of Art. 36, Vernon’s Ann.P.C., and instructed the jury that in the event they found appellant guilty but Relieved that at the time of commission of the offense he was laboring under temporary insanity, produced by the recent use of ardent spirits, intoxicating liquor or narcotics or a combination thereof, they might take such temporary insanity into consideration in mitigation of the penalty attached to the offense.

Appellant predicates his appeal upon two contentions.

It is first contended that the court erred in overruling his amended motion for new trial based upon jury misconduct.

The motion, which was not verified by appellant or his counsel, alleged that “the jury, in reaching its verdict, considered and were influenced by unsworn testimony in direct violation of this court’s directions and instructions.” Attached to the motion was an affidavit of the juror, J. P. Stafford, taken before appellant’s counsel, in which he swore that during the jury’s deliberation “there was discussion to the effect that if he (appellant) received anything less than death he might get out in a few years or at some time in the future and get in more trouble.”

The unverified motion and juror’s affidavit, taken before appellant’s counsel, were insufficient to require a hearing thereon, hence the court’s action in overruling the motion is not before us. Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 988; Ferguson v. State, 159 Tex.Cr.R. 169, 261 S.W.2d 721.

The careful trial judge, however, did proceed to hear testimony in support of the motion and if his action in overruling the same was before us we would be unable to agree with appellant that the statement and discussion in the jury room constituted such misconduct as to call for-a reversal of the conviction.

At the hearing, the juror Stafford testified that during the jury’s deliberation, when they stood nine for punishment at death and three for life imprisonment, someone said that if they gave, appellant life he “might get out in seven, eight, or ten years.” The juror further testified that when such statement was made the foreman stated, “Now we must not discuss matters outside of the charge or the evidence,” and that the discussion was then “hushed up.” He further testified that the person who made the statement was not telling the jury appellant would get out, if assessed life imprisonment, and nothing was mentioned about the law with reference to when a person could or would get out of the penitentiary.

It is clear that the statement made was that appellant might get out, not that he would get out, in a certain number of years if given a life sentence. The statement was not an assertion of fact, as in Smith v. State, Tex.Cr.App., 333 S.W.2d 385, and Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13, which, being erroneous, was held to constitute reversible error. Furthermore, the statement, although erroneous, appears to have been casually made and the discussion was promptly halted by the foreman. Such would not call for a new trial. Greenwood v. State, 157 Tex.Cr.R. 58, 246 S.W.2d 191; Tellez v. State, 162 Tex.Cr.R. 456, 286 S.W.2d 154.

Appellant’s remaining contention is that the court erred in overruling his motion for mistrial on the ground that the court permitted the state to recall Jewel Brady, the deceased’s daughter, as a witness, to identify certain clothing of the deceased which had been previously identified and, while testifying, the witness became hysterical and created a commotion which was calculated to and did inflame the minds of the jury. While the record reflects that the witness, while testifying, was crying, there is nothing in the record which supports the allegation in appellant’s motion that she became hysterical and so conducted herself as to inflame the minds of the jury. The court did not err in permitting the state to recall the witness for the purpose of identifying the clothing as belonging to the deceased. The clothing had only been identified as clothing worn by the appellant and had not been positively identified as clothing belonging to the deceased. The contention is overruled.

The evidence shows an unprovoked murder of the deceased and amply supports the jury’s verdict. Appellant has received a fair trial and no reversible error is perceived.

Appellant’s court-appointed counsel are to be commended upon their representation of him in the trial court and in this court on appeal.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Guy E. LARUE, Appellant, v. STATE of Texas, Appellee.
    No. 33799.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.

      Wm. Andress, Jr., Steve G. Condos, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Jack Pevehouse, George Milner, Jr., Pat McDowell, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is for the offense of driving while intoxicated; the punishment, confinement in jail for 90 days and a fine of $100.

The evidence was undisputed that on the evening of January 9, 1960, about 7:30 p. m., appellant, while operating his 1958 Chevrolet pickup truck on a public street in the city of Dallas, drove into the rear of another automobile.

Officer E. K. Shetler, an accident investigator for the Dallas police department, who observed appellant at the scene of the collision, testified that appellant was walking “staggery,” and his “balance was wobbly and unsteady”; that appellant stated he was not injured and that he had had a few drinks; that his talk was confused and incoherent and his speech “slurred”; that his eyes were bloodshot and dilated; and that he detected a strong odor of alcohol on appellant’s breath. Based upon his observation of him, the officer expressed his opinion that appellant was intoxicated. The officer administered an intoximeter test to appellant, with his consent. Over appellant’s objection, the officer testified that the results of the color change portion of the test showed that appellant was intoxicated. The witness further testified that he had received training in the use and operation of the intoximeter and that he had conducted approximately one hundred such tests.

Bobby Lyle testified that she first observed appellant at the scene of the collision as he was getting out of his pickup, and he was holding on to the truck and walked “staggering”; that she later observed appellant in the police squad car for approximately ten minutes, at which time his speech was “slurry” and his eyes looked glassy; that she could not remember smelling his breath as it was so long ago. Based upon her observation of appellant at the scene, the witness expressed her opinion that he.was intoxicated.

Testifying in his own behalf, appellant stated that he was not a drinking man; that he did not have anything to drink on the day of the collision. He admitted that he was driving upon a public street but denied that he was intoxicated.

Dr. E. R. Miller, who had previously treated appellant for a nervous condition, testified that appellant’s actions on the night in question could have possibly been the result of his nervous condition. He further testified that he had no personal knowledge of any drinking problem of appellant.

Several other witnesses who were called by appellant testified that they observed him on the night in question and did not detect any odor of alcohol on his breath.

The jury chose to resolve the disputed issue of intoxication against appellant and we find the evidence sufficient to sustain its verdict.

Appellant complains of the admission of the testimony of Officer Shetler pertaining to the results of the intoximeter test, because, he said, the test failed to meet the requirements formulated by this court in Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93, for such scientific test.

This court’s holding in Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499, authorizes the testimony of Officer Shetler as to the results of the visual preliminary color change test administered to appellant.

Appellant next complains that the nonexpert opinion of the witness Lyle as to his intoxication was improperly admitted. The record reflects that the witness had sufficient knowledge of facts upon which to base her opinion. Mixon v. State, 162 Tex.Cr.R. 311, 284 S.W.2d 720.

Finding no reversible error, the judgment is affirmed