author: SAM C. BLAIR, Special Judge.

text:
    Vester S. VOSS, (Plaintiff) Respondent, v. MERCHANTS DAIRY COMPANY and Standard Accident Insurance Company, (Defendants) Appellants.
    No. 31171.
    St. Louis Court of Appeals. Missouri.
    Dec. 17, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 16, 1964.
    J. D. Leritz, Joseph L. Leritz, and Leritz & Leritz, St. Louis, for appellants.
    Charles W. Medley, McClintock & Medley, Flat River, for respondent.
   SAM C. BLAIR, Special Judge.

This is an appeal from the judgment of the Circuit Court of St. Francois County, affirming an award of the Industrial Commission, in the amount of $4,147.70 in favor of Vester S. Voss, against the appellant Merchants Dairy Company. Standard Accident Insurance Company, the .other appellant, is Merchants Dairy Company’s insurer. Voss claims he sustained injuries on October 29, 1957, at the company’s plant while, “checking gauge on ammonia receiver tank and was caught by belt, causing him to be thrown into another machine, striking his head” and inflicting various other injuries.

Challenged first by appellants is the Commission’s finding that the claimant was an employee of Merchants Dairy Company within the meaning of Section 287.020(1), RSMo 1959, V.A.M.S., at the time of his injuries. This section defines “employee” as “ * * * every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election. * * * ” (Emphasis supplied.) Of course, it was claimant’s burden to establish that he was such an employee. Ott v. Consolidated Underwriters, Mo.App., 311 S.W.2d 52, 55; 29 A.Mo.D., Workmen’s Compensation, <®=31348.

Appellants contended before the Commission, as they do here, that the referee under the evidence was not justified in finding that claimant was an employee of Merchants Dairy Company. On the contrary, they contend that all of the evidence affirmatively established, and without any dispute, that claimant and Lee Oscar Stroup were the sole owners of the company and that claimant was the president and manager of the company, with neither superiors nor control over him, and was therefore not an employee under the Act. The only evidence before the referee and the Commission on this issue was the testimony presented by claimant:

“Question: Mr. Voss, in October of 1957, where were you employed ?
“Answer: Merchants Dairy.
“Question: And what was your position in Merchants Dairy?
“Answer: I was president and manager and half-owner with Mr. Stroup.
“Question: What were your duties as president of the company ?
“Answer: Well, as any manager of a small company — Well, I did whatever I thought I should do at the time. Pretty principally I had charge of promotion and sales, but if there was any work around the plant that needed doing day or night or holidays or Sunday I did it.
Sjt * * * * *
“Question: And how long had you been in the dairy business on your own?
“Answer: Well, now I can’t give you an exact date when Stroup and I bought out the other partners but we bought out the stockholders. We bought out three of them, I would say, approximately in 1939 and then another stockholder bought in with us and then in 1942, I think it was, we bought her out. That left the two of us (Voss and Stroup). I believe it was 1942. I wouldn’t say for sure. We have been the owners of it since then. The two of us.”

Stroup testified: “I was the plant manager and also I was treasurer of the company.” There was no contrary or other evidence presented on this issue.

At the start of the hearing, the referee put the following questions to the parties and received the following answers:

“REFEREE: Is it admitted that on or about the 29th day of October, 1957, that Vester S. Voss was an employee of Merchants Dairy Company, Inc., and was working under the provisions of the Missouri Workmen’s Compensation Law?
“MR. LERITZ: It is admitted that he was president of the corporation and was working under the Missouri Workmen’s Compensation Law.
“REFEREE: Is it admitted that on or about the 29th day of October, 1957, that Vester S. Voss sustained an injury by accident arising out of and in the course of his employment?
“MR. LERITZ: That is denied.”

Claimant contends that by reason of the above admission that he “was working under the provisions of the Missouri Workmen’s Compensation Law” he was perforce entitled to the beneficial coverage of the Act, and that the admission precludes this court from ruling that he was not an employee under the Act, notwithstanding the testimony he presented. Examining the admission we find that appellants not only did not admit that claimant was an employee, but that they asserted instead that he was “president of the corporation” and expressly denied that he “sustained an injury by accident arising out of and in the course of his employment.” Moreover we find that claimant did not rely on the admission that he “was working under the provisions of the Missouri Workmen’s Compensation Law.” On the contrary, he testified that he was president and manager of the corporation and one of the two owners. He did not testify that he was an employee or that he was subject to the control of anyone, even Stroup, and he did testify, “I did whatever I thought I should do at the time.” We think claimant’s evidence disproved his claim that he was an employee for reasons we will presently discuss with more particularity.

Therefore, our view is that claimant cannot now rely on the statement that he was working under the provisions of the Act. For, if that was an admission, as he argues, it was a conclusion of law and not an admission of fact. Stockton v. Tester, Mo.App., 273 S.W.2d 783, 786. “As was held in Crockett v. Morrison, 11 Mo. 3, ‘it is well settled that the admission of a party in relation to a question of law is no evidence.’ ” Wright v. Quattrochi, 330 Mo. 173, 49 S.W. 2d 3, 7. Furthermore, the purported admission clearly was not made by appellants to-deceive or to mislead claimant. There is nothing to indicate that he was misled or induced to do or omit to do anything he would have done or omitted if the purported admission had not been made. In his brief he makes no tangible suggestion that he did or omitted to do anything as a result of the admission, nor does he deny that he himself presented to the referee and to the Commission all facts he cared to present relevant to his connection with the Merchants Dairy Company. Under these circumstances the statement that he was working under the provisions of the Act was not binding on the referee, the Commission or appellants, for, in identical circumstances, this court, dealing with an identical admission in a workmen’s compensation case, said: “It is a well established principle of law that where a party does not rely upon a judicial admission of his adversary, but introduces- evidence which has the effect of disproving his case, the party making the admission is not bound by his admission. * * * ” Plemmons v. Pevely Dairy Co., Mo.App., 233 S.W.2d 426, 434. The ruling relied on by claimant, Probst v. St. Louis Basket & Box Co., 200 Mo.App. 568, 207 S.W. 891, 894, is of no relevance for it deals only with an admission of fact and not with one of law.

Accordingly we must disregard the admission and rely alone on the circumstances and testimony present in this record in analyzing the question whether claimant, and we think he did not, carried his burden to establish by sufficient competent evidence that he was an “employee” “in the service” of Merchants Dairy Company within the meaning of Section 287.020(1), 287.490, subd. 1(3) (4), RSMo 1959, V.A.M.S. Examining the record more particularly, we view the evidence in the light- most favorable to claimant, Smith v. American Car & Foundry Div., A.C.F. Ind. Inc., Mo.App., 368 S.W.2d 515, 516, but we are under strict obligation, as was the'Commission, to refuse to approve the finding that claimant was an "employee” if its only support is speculation, surmise, guesswork or conjecture. Muesenfechter v. St. Louis Car Co., Mo. App., 139 S.W.2d 1102, 1106.

Our courts define the term “employee” thus: “Our own statutory definition of employee is a ‘person in the service of any employer.’ In Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 912 [see also Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918], this court said that '‘the word service, as used, signified * * * •controllable service.’ This court also therein said that ‘the framers of the act had in mind the law of master and servant and the relationship, duties, rights, and limitations •arising out of the same’; and that ‘the relationship is bottomed upon services * * to he rendered by the servant — whether by that name or one synonymous, as workman •or employee * * *• — to the other, whether as master or employer, and is peculiarly •characterized by right of control vested in the latter.’ ” Soars et al. v. Soars-Lovelace, Inc., et al., 346 Mo. 710, 142 S.W.2d 866, :870; Gazzoli v. Star Novelty Company, Mo. App., 354 S.W.2d 296, 301. We must remember also that our courts have declared that, “ * * * our Compensation Act intended to add to the cost of producing goods, to be borne by consumers, only the charges •of compensating employees of industries for injuries, and not for compensation for injuries to the ozvners of industries * * Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 70 S.W.2d 884, 889.

We recognize the dual capacity ■doctrine that one who is an officer or stockholder of a corporation or both is not automatically denied the status of “employee,” if sufficient competent evidence establishes that status. Gazzoli v. Star Novelty Company, supra, 354 S.W.2d p. 300. But we are at loss to understand, viewing all of the record disclosures, how the Commission pronounced claimant to be an “employee” “in the service” of the corporation without resorting to speculation, surmise, guesswork and conjecture. Claimant and Stroup were each half-owners of the corporation. How the policies of the corporation were established or dictated we do not know. Claimant was president and manager. Stroup was plant manager and treasurer. Exact definition of Stroup’s contribution to the management of the plant cannot be gleaned from the record. As president and manager, claimant said he had charge of promotion and sales, “hut if there was any work around the plant that needed doing day or night or holidays or Sunday I did it.” Who decided what he, as president and manager, should do? Claimant said, “Well, I did whatever I thought I should do at the time.” There is absolutely no evidence from any source hearing on the question whether he was “in the service” of the corporation in the sense of the Act, no evidence of any relationship of master and servant, no evidence that he rendered any “controllable service,” or that Stroup, the other half-owner, or anyone else ever exercised any slightest control over anything he did. On the contrary, there is only his own evidence, uncontradicted by any circumstance or fact, that he did whatever he thought he should do, and that is the substance and sum of all relevant evidence on this issue. In the absence of contrary evidence, we can only assume that he was the sole judge of what he did and of when and how he would do it, controlled by no one.

For these reasons, we are convinced that any question whether claimant was an “employee” “in the service” of the corporation is plainly determined against him by the studied rulings in Chambers v. Macon Wholesale Grocer Co., supra, 70 S.W.2d p. 884; Soars, et al. v. Soars-Lovelace, Inc., et al., supra, 142 S.W.2d p. 866, and Gazzoli v. Star Novelty Company, supra, 354 S.W.2d p. 296. The first two of these rulings are landmarks and there is no need to enlarge this opinion by reanalyzing them. They are now proverbial in the field of workmen’s compensation law. We do not overlook that claimant was not a managing “partner,” as in Chambers, or a majority stockholder managing the corporation and holding virtually all of the stock, as in Soars and Gazzoli, and that for these reasons these rulings do not precisely correspond on the facts. Nonetheless, our analysis of their overall reasoning, despite whatever factual differences exist between them and this case, compels the conclusion that their fact differences are not of consequence here and that their rationale requires us to hold that claimant was not an “employee” “in the service” of the corporation and that the Commission’s award must be reversed.

In view of this holding, it is unnecessary for us to rule the other questions presented to us by this appeal.

Accordingly, the judgment appealed from is reversed and the cause is remanded to the circuit court with the direction that it reverse the Commission’s award.

ANDERSON, P. J., and PHIL H. COOK, Special Judge, concur.

RUDDY and WOLFE, JJ., not participating.


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. Eugene HILL and Julia Alice Hill, Respondents.
    No. 8195.
    Springfield Court of Appeals. Missouri.
    Dee. 23, 1963.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for relator-appellant.
    Richard M. Webster, Carthage, Moore, Pettit & Steinle, J. Hal Moore, Aurora, for respondents.
   HOGAN, Judge.

This is a condemnation case. It involves the acquisition of part of the condemnees’ farm as right-of-way for a limited access highway. A jury, by unanimous verdict, has awarded the sum of $9,300 as damages. The State Highway Commission has appealed. For convenience, we shall refer to the Commission as the relator and to the condemnees as the defendants.

The defendants’ farm is a 77-acre tract located about four and one-half miles west of Sarcoxie, Missouri. The defendants have lived on this farm for about ’eighteen years, and the evidence indicates they have substantially improved its condition during that time. There is a two-bedroom frame house on the farm equipped with modern heating and plumbing facilities, and the outbuildings are in good condition. About half the land is cultivated but the farm is operated primarily as a dairy farm. At trial time the defendants maintained a dairy herd of eighteen milch cows and ten head of “replacement stock,” and marketed the milk locally.

In order to understand the parties’ contentions and the defendants’ claim for damages, it is necessary to describe the tract of land involved, at least roughly. The farm consists of two (approximately) 40-acre tracts running north and south, and might be described as the West Half of the Southeast Quarter. For purposes of exposition, we may regard the tract as half a quarter section with the 1320-foot boundary running east and west and the half-mile boundary running north and south. The testimony, as we understand it, relates principally to the south half of the farm. The improvements on the farm — the house and outbuildings — lie in the southwest corner of the tract, between 450 feet and 650 feet north, and some 50 feet to 100 feet east of the southwest corner of the tract. Access to these improvements, and indeed the only access to the farm so far as the record shows, is gained by a road which is simply described as a “county road.” This appears to be an improved gravel road, approximately 35 feet wide. Beginning at the southwest corner of the defendants’ land, this road runs some 750 feet north along the west side of the defendants’ farm, where it ends, forming a cul-de-sac or “dead-end.” About one-half mile south of the defendants’ property line, this county road intersects a paved highway. The county road is used by the defendants to travel to Sarcoxie for supplies, their milk is picked up by a carrier which travels this road to their house, and their children ride to school on a bus which also uses this county road. -Their mailbox is located at the intersection of the .county road and the paved highway. In short, it. was the defendants’ position that this road was their link with, or access to, the outside world.

The relator has condemned a strip of ground some 123 feet wide off the entire south side of the defendants’ property, and this right-of-way will, of course, cross the county road at right angles. Since access to the new road will be limited and no access to the “thruway,” as it is called, will be provided at this point, the defendants’ direct access to the paved road lying to the south will be permanently blocked, although the relator is constructing a new road to run west from the southwest corner of the defendants’ property which will connect with other roads lying to the west. In addition, the relator has condemned a small plot of ground along the north side of the new right-of-way about 330 feet east of defendants’ west property line, for construction of a drainage ditch. In order to construct this ditch or “channel,” as it is referred to, the relator must remove a retaining wall or “dam” which the defendants had constructed to control the natural surface drainage at this point.

In substance, the defendants raised two issues on the trial of this case. First of all, they apparently believe that, although the relator is constructing a new road to provide them with another means of access to their property, the new route which they shall take is not only extremely circuitous but at times impassable, and therefore they are being denied reasonable access to the general system of highways. They also sought to show that the relator’s drainage channel would in some manner interfere with the natural surface drainage on the south part of their farm. The relator attempted to show that the only loss which the defendants would suffer would be that consequent upon the taking of the approximately four acres of right-of-way which it condemned. The relator maintained upon the trial, and vigorously asserts here, in several different ways, that the trial court erroneously allowed the jury to award the defendants compensation merely because the defendants must now travel a more circuitous route to reach points south of their property. We note that both parties filed exceptions to the original award of damages made by the commissioners appointed by the trial court; the relator maintained that the original award was excessive, the defendants that it was inadequate.

With some reluctance, we have reached the conclusion that we simply cannot decide this case on its merits. We are aware that we should finally dispose of a case before us on appeal, if possible. Rule 83.13(c), V.A.M.R.; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120 [5]; Axsom v. Thompson, 239 Mo.App. 732, 739, 197 S.W.2d 326, 331 [8-10], It is the duty of an appellate court to exercise its jurisdiction freely so as to provide a review upon the merits in every instance where it may properly do so. Weller v. Hayes Truck Lines, 355 Mo. 695, 699, 197 S.W.2d 657, 659. This, however, presupposes a record and evidence upon which a court can function “with some degree of confidence in the reasonableness, fairness and accuracy of its final conclusion.” Phelps v. Watson-Stillman Co., 365 Mo. 1124, 1132, 293 S.W.2d 429, 435. In this case, the record is so vague and ambiguous that we cannot, with any degree of confidence, ascertain what the facts are, nor determine what principles of law should be applied.

Although the record is obscure in several respects, most of the ambiguity in this case arises out of the parties’ use of a map or plat filed here as relator’s Exhibit 1. This exhibit is a scale drawing, which shows the outline of defendants’ property, and also shows in some detail the proposed right-of-way, the county road adjoining the farm, and the location of some of the buildings on the defendants’ property. It was prepared by the relator’s draftsmen and, as far as it goes, is admittedly a correct representation of the objects it purports to show. It does not, however, show any of the physical features of the tract in question, (except part of a creek) nor the location of any of the adjacent roadways, nor any segment of the route over which the defendants say they must now travel.

Mr. Hill himself testified at some length concerning the damage he had sustained because of the condemnation. A few examples of this testimony, with the observation that there is absolutely no mark nor identification of any kind indicating the direction or location of the objects or places about which he was testifying, will illustrate our difficulty. At one point, Mr. Hill was interrogated concerning the access he will have to his property after the county road is relocated. Obviously explaining his testimony, or attempting to do so, by means of the map or plat, he testified:

“Q. Is it a correct statement that the State of Missouri will build a road along here? A. Right in here?
“Q. Yes, to the west for one-half mile? A. Yes, that is right. I see what you mean now. * * *
“Q. Now, tell us from that point, how you can get to Sarcoxie? A. I can’t. That is a dead-end. It will be closed.
I will have to turn and go north here,, because this road will dead-end.
“Q. You are talking about this road' this road that runs along here? A. Yes, it will dead-end here, and I will! have to go north and then back east. * * *
“Q. Now, to get out to Highway 166, how do you go? A. Well, I am right here, and I guess I will go a half mile south from here.
“Q. All right. You may sit down now. * * *
“Q. Now, this road that runs parallel to the road you live on that you will hit when you go one-half mile west and then turn north — now, you go north, did you say, a mile and a half? A. Yes.
“Q. Now, in that one and a half miles, tell us about that road. * * * A. The road is narrow. You go east after you have gone north for a mile and a half, and there is three spillways.
“Q. Where, on the road you travel east on? A. Yes.
“Q. When you have gone north a mile and a half, then you turn to the east, and that is the road, you say, has three spillways on it? A. Yes, you have to cross three spillways there. They are little concrete spills in the road there. * He ^ f3

Being asked about the other routes he would have available to reach Sarcoxie and other points after construction of the new thruway, Mr. Hill testified as follows, again without marking or otherwise indicating the objects or places about which he was speaking:

“ * * * A. I can get right here. Say, I am on this road that runs along the north edge here and go a half mile this way and I hit this little road in here and go a mile and a half this way, and I can go to Joplin then — go two and a half miles west here to get access to this new freeway.
“Q. That route, you say, would put you on the freeway to Joplin? A. Yes, I live right in the middle of the free way, and I can go to Joplin that way, or I can go two miles, about two miles east here and get on the road to go into Sarcoxie. Then from right here, I can go south a mile and a half and hit 166. Hs H« H« fi

It was also the defendants’ position that the construction of the drainage easement had interfered with the natural surface drainage on their farm. Being asked about the location of the dam or rock wall with which he had formerly controlled the surface drainage, Mr. Hill testified in the following manner:

“Q. Where was this rock wall you have mentioned ? A. It ran one thousand feet west from this ditch here up to about here, and this hog wire fence went clear around this forty. * * *
“Q. * * * tell us about the terrain of your land, and particularly in the area looking from the front of the farm to the back of it? A. It sloped off right in here, and then this right here — this back here is level. It sloped off where this ditch is, but back here it is level.
“Q. You had a low area, and you had a ditch in here. It was high in here and high here? A. Yes.
“Q. Did you have trouble with that low area flooding? A. I never did when I had the rock dam.
“Q. Did you remove that rock dans or rock wall? A. No.
“Q. Has it been removed ? A. Yes.”

These examples illustrate the major difficulty presented by this record. Mr. Hilli was the only witness with any extensive-knowledge of the physical facts; yet, time after time, upon being interrogated as to those facts, he merely answered “here,”’ “there,” “from right here” to “over there,”’ or words of similar import, without in any way locating the place or thing about which he was testifying. Taking into consideration .the scale to which the map or plat was drawn, some of the physical facts concerning- which Mr. Hill testified, such as the relocated county road and the adjoining roads, could not have appeared on the map. As a consequence, the record does not show what in fact the examiner had elicited from the witness with reference to the exhibit which was being used, and we are left without any guide as to the meaning of the testimony. So, although the defendants seem to be making the broad claim that their farm is now substantially isolated from the main-traveled portions of the general highway system, and because of this they are entitled to compensation, we cannot actually determine why the defendants claim their present access is inadequate, since we cannot compare their present route of travel with that which formerly existed. The same is true of the defendants’ claim that construction of the thruway will somehow interfere with the natural surface drainage of their farm. The record is so vague in this respect that we cannot be at all sure whether the defendants’ claim is that relocation of the county road will cast additional surface water onto their land, or whether they merely maintain the proposed drainage channel will prevent their going from one part of the farm to another. We cannot decipher what part of their farm is the “front” or the “back,” nor do we know how their passage across the farm will be impaired, if indeed it will.

On the other hand, the relator concedes, and its proof shows that the defendants have sustained some damage. Even considering that the defendants’ appraisers may have considered a basically erroneous element of damage as the relator contends, there is a remarkable difference in the assessment of damages by the relator’s appraisers and the defendants’. The defendants’ appraisers estimated the damage at about $9,000, while the relator’s appraisers estimated it to be about $500. It is clear to us that valuable property rights belonging to the defendants have been condemned. But, on the record, we cannot tell what they are nor what just compensation would be.

We realize that the use of drawings, maps, plats and diagrams to illustrate or explain testimony is common. Anno., 9 A.L. R.2d 1046, 1047-48; McCormick, Evidence, § 180, pp. 386-87. We do not propose here to discuss the various uses to which such evidentiary devices may be put. So far as relator’s Exhibit 1 had a tendency to aid in explanation of the testimony and to assist the jury in understanding the facts, its use was undoubtedly proper. Grady v. Royar, Mo., 181 S.W. 428, 432 [6]; State ex rel. State Highway Commission v. Bailey, 234 MoApp. 168, 180-181, 115 S.W.2d 17, 24. We do not wish to discourage the practice of using such maps or plats where it appears they will be helpful. Rather, the problem with which we are dealing is the use of such exhibits without relating the testimony in any way to the exhibit. It has been suggested that the examiner should bear in mind that there may be a review of the case, and should correlate the statements of the witness with the exhibit as carefully as possible by means of some mark or symbol, or other identification, on the exhibit, Sund v. Keating, 43 Wash.2d 36, 259 P.2d 1113, 1119 [14]; Round v. Burns, 77 R.I. 135, 74 A.2d 861, 864 [4], 20 A.L.R.2d 1048, and we think that is the proper practice. And, though we find no case which has been reversed solely for that reason, it appears that on occasion courts have commented on the “worthless nature” of testimony given with reference to an exhibit such as relator’s Exhibit 1, where there is no identification in the record indicating what the witness is referring to. Lynch v. Aguiar, 81 R.I. 481, 104 A.2d 554, 556 [2]; Round v. Burns, supra, 74 A.2d at 864; Bradley v. City of Niagara Falls, 6 A.D.2d 769, 174 N.Y.S.2d 145, 146. We know, of course, that the ordinary witness does not appreciate the importance of definitely locating the place or object about which he is testifying, unless counsel insist that he do so. We also appreciate that counsel, at the time of trial, are preoccupied with their burden of persuading the jury; cases are usually not, in the first instance, tried with appellate review in mind. We do not wish to be hypercritical, but the fact remains that most of the testimony in this case was explained by use of relator’s Exhibit 1, and none of the witness’ statements are correlated with the exhibit. Consequently, as to the important fact issues upon which the merits of this case turn, this record on appeal is the dumbest of oracles, and we are left completely uninformed.

We find no Missouri case dealing directly with this situation. We think it is a fair general statement to say, however, that when the record is so obscure and ambiguous that an appellate court cannot ascertain what final judgment would be just because it cannot determine what principles of law are applicable, then the cause should be remanded for an appropriate presentation of the facts. A similar rule has been applied in various situations by our own courts. In this case, we simply could not render an opinion on the merits without resorting to speculation and conjecture as to what the facts and applicable principles of law are. Therefore, the judgment is reversed and the the cause remanded for a new trial.

RUARK, P. J., and STONE, J., concur.

      . Villa v. Van Schaick, 299 U.S. 152, 155-156, 57 S.Ct. 128, 129, 81 L.Ed. 91, 93; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558, 559 [7]; Harrington v. Interstate Business Men’s Acc. Ass’n. of Des Moines, Iowa, 210 Mich. 327,178 N.W. 19, 21 [3, 4]; Drivdahl v. International Harvester Co. of America, 43 N.D. 284, 174 N.W. 817, 819; Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 46 [6, 7], 173 A.L.R. 968, 973; Taylor v. McMillan Hospital Co., 117 W.Va. 190, 184 S.E. 852; 5 Am.Jur.2d, Appeal and Error, § 962, p. 389.

      . Yaffee v. American Fixture, Inc., Mo., 345 S.W.2d 195, 201 [7, 8]; Phelps v. Watson-Stillman Co., supra, 293 S.W.2d at 435; Leggett v. Mutual Commerce Cas. Co., Mo., 250 S.W.2d 995, 998-99; Journey v. Miler, 363 Mo. 163, 167, 250 S.W. 2d 164, 166; State ex rel. Winn v. Banks, 346 Mo. 1177, 1183, 145 S.W.2d 362, 365 [6, 7]; Barnhart v. Bipka, Mo.App., 297 S.W.2d 787, 792 [10-11]. Cf. First Nat’l. Bank of West Plains v. Bung, Mo., 363 S.W.2d 590, 597-98 [6, 7].


author: MORRISON, Judge.

text:
    Bobby Dean GRAY and Richard D. Smith, Appellants, v. The STATE of Texas, Appellee.
    No. 36241.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Rehearing Denied Jan. 15,1804.
    Jack D. Bodiford, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; appellants were tried jointly, and the punishment in each case was assessed at 45 years.

Annie Jacks on, a maid in the employ of Mr. and Mrs. C. P. Kegans, testified that she was alone at their home on the afternoon when Appellant Smith came to the back door and inquired if it was Mrs. Kegans’ residence; when she replied in the affirmative, Appellant Gray came into view and, armed with a pistol, ordered her not to make an outcry, and directed her into a closet, where she remained as Appellant Gray roamed around the house. She testified that after they left, she called both her employers and the police to report the incident. She identified both the appellants.

Mr. Kegans testified that he received a call from Annie at the time mentioned in her testimony and that when he reached his house, discovered that certain guns which had been in his house were missing and identified the guns recovered by the police as being his.

Sol Platt testified that appellants entered his pawnshop on the afternoon of the day in question and Appellant Gray attempted to pawn him a .22 caliber J. C. Higgins rifle, that he refused to accept the same in pawn and appellants left together, at which time he noted the license number of their automobile and alerted the police.

John T. Franklin, the owner of a repair shop, testified that Appellant SmitV left a rifle with him on the day in question and that Officer Mackey, in company with Smith, returned later and took possession thereof.

Officer Mackey testified that he interrogated Appellant Smith on the day following the incident and as a result of that, he recovered a .22 caliber J. C. Higgins rifle from Mr. Franklin and a .12 gauge shotgun from the home of Otis McGowan, following which he secured from Smith a written confession which was introduced in evidence and in which he recited the taking of the weapons at gun point from a colored maid, the disposing of the rifle to Mr. Franklin while Gray disposed of the shot gun and the splitting of the combined proceeds. He further testified that on the next day he arrested Appellant Gray, who was armed with a pistol, and secured from him a confession which is substantially the same as the one secured from Smith and in which Gray recites that Smith disposed of the rifle and he disposed of the shotgun.

Both appellants testified in their own behalf and admitted getting the guns in question and disposing of the same, but denied the truth of that portion of their confessions which recites that they took the same from Annie Jackson at gun point. Smith stated that his wife had formerly worked for the Kegans as a maid and that Annie Jackson voluntarily delivered the guns to Gray and that she had instructed Gray to sell or pawn the guns and return with her half of the money. Gray testified that he had been going with Annie Jackson for some time, that she had told him that her employer had given her some guns which she might sell and keep the proceeds, and that she proposed to split the profits from such sale with Gray for selling the same. Both testified that they were not given the statutory warning before the confessions were made. Neither appellant stated that Annie Jackson ever got any of the money in question.

Annie Jackson was recalled and denied that she had ever known either of the appellants or that she voluntarily surrendered the guns to them. Officer Mackey testified that he gave each appellant the proper statutory warning both before the statements were made and before they were signed.

The jury resolved the disputed issue of fact against the appellants; we find the evidence sufficient to sustain the convictions and shall discuss the questions raised on appeal.

They first contend that the court erred in permitting Officer Mackey to read to the jury the printed warning which appeared at the beginning of the confessions prior to their introduction in evidence. No formal bills of exception appear in the record. If the record may be construed to show that the warnings were read to the jury prior to the introduction of the instruments, then the sole purpose in so doing was to show that the confessions were admissible. Each entire statement including the warning was ultimately read to the jury. We perceive no error in the above.

The next question is more serious. Officer Mackey was asked where he had first seen the Appellant Smith during the course of his investigation of the crime. He replied, “I myself got him out of the Jail Division on the fifth floor of the Police Station, where he had been arrested in another case.” The court on his own motion instructed the jury to disregard the answer, but declined to grant a mistrial. No matter how reprehensible such an answer may have been, coming from an experienced police officer, we must determine if it constitutes reversible error in the case at bar. Appellants called as a witness in their own behalf one Walter Ricks, who testified that Annie Jackson was his girl friend. He was then asked if he knew the appellants and replied without objection that he had known them by being in jail with them. As to when he was in jail with them is not shown. Also, Appellant Gray volunteered the information that he had spent the period from June until September in jail.

In view of this testimony from one appellant and a witness called in behalf of each of them, we have concluded that reversible error is not reflected by the unresponsive answer of the officer. Moseley v. State, 158 Tex.Cr.R. 578, 258 S.W.2d 331; Monasco v. State, 172 Tex.Cr.R. 528, 361 S.W.2d 208; Ramsey v. State, 165 Tex.Cr.R. 409, 308 S.W.2d 26.

Finding no reversible error, the judgment is affirmed.


author:
DICE, Commissioner. MORRISON, Judge WOODLEY, Presiding Judge McDonald, judge. MORRISON, Judge
      WOODLEY, Presiding Judge

text:
    Clem McCLELLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 35837.
    Court of Criminal Appeals of Texas.
    June 29, 1963.
    On Rehearing Dec. 11, 1963.
    Second Rehearing Denied Jan. 15, 1964.

      J. Edwin Smith, Jack Rawitscher, Smith & Lehmann, Houston, Skelton, Bowmer & Courtney, Byron Skelton, Jim D. Bowmer and Bob Burleson, Temple, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Samuel H. Robertson, Jr., Carl E. F. Dally and Gus Zgourides, Asst. Dist. At-tys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1538, Vernon’s Ann.P.C., for conversion of an estate; the punishment, ten years.

Trial was in the 27th Judicial District Court of Bell County upon a change of venue from Harris County.

The indictment returned into Criminal District Court No. 5 of Harris County, omitting the formal parts, charged that:

“ * * * on or about the 19th day of December, A.D. 1960, in said County and State, RICHARD H. PUTNEY was the administrator of the estate of Clara L. Currie, deceased, and as such had in his charge the estate, real, personal and mixed, of the said Clara L. Currie, and the said RICHARD H. PUTNEY and CLEM MCCLEL-LAND, acting together as principals, did then and there unlawfully and with intent to defraud the heirs and dis-tributees interested in such estate (the said heirs and distributees being to the Grand Jurors unknown), convert to their own use a part of the property of said estate, to-wit: ten thousand dollars in money, the same being then and there of the value of ten thousand dollars.”

Upon the granting of a severance, appellant, Clem McClelland, was, by order of the court, tried first.

The state’s proof shows that appellant was the duly elected, qualified, and acting Judge of the Probate Court of Harris County, Texas.

On September 10, 1960, Mrs. Clara L. Currie died intestate, in Harris County, leaving an estate consisting of both real and personal property of the appraised value of approximately $160,000.

On September 16, 1960, Richard H. Put-ney, appellant’s co-indictee and a practicing attorney in the city of Houston, was appointed temporary administrator of Mrs. Currie’s estate. His bond in the sum of $25,000 was approved by appellant.

On October 11, 1960, the administration was by appellant’s order made permanent and the administrator’s bond fixed at $5,-000. On October 17, the said Richard H. Putney qualified as administrator of the estate by taking the oath and executing a bond that was approved by appellant in his official capacity.

Upon the trial, Putney was called as a witness by the state.

He testified that on December 19, 1960, he went to appellant’s office and presented to him an application and order which he had prepared for a fee to be paid to him as administrator of the estate. Appellant, at such time, according to the witness, acted upon the application by inserting in the space left blank in the order for the amount of the fee the figure $10,000, stating that it was an unusual case and he (Putney) would need assistance with it. He further testified that appellant stated to him that the fee would he divided between them, “an even split,” and instructed him to deposit his share to the account of Tierra Grande, Inc., in the Citizens State Bank, of Houston. The witness stated that he proceeded directly from appellant’s office to the Citizens State Bank, where he drew a check on the Currie estate for $10,000, of which he deposited $9,500 to his personal account and retained $500 in cash. He related that he then wrote a check for $5,-000 on his personal account, which he deposited in the bank to the account of Tierra Grande, Inc., and that he took a duplicate deposit slip for the $5,000 deposit to appellant’s office, at which time he did not see him but left the deposit slip on his (appellant’s) desk. The witness stated that he furnished appellant with a copy of the application and order for the attorney’s fee and that the last time he saw the papers they were on appellant’s desk. He also stated that he had no intention of investing in Tierra Grande, Inc., at the time of making the $5,000 deposit and that months later, in June, 1962, he received two stock certificates for 2,500 shares, each, in the corporation, from a man by the name of Bryson Martin. He further stated that at the time appellant instructed him to deposit his share in the Citizens State Bank he wrote on a slip of paper: “Tierra Grande, Iric., Citizens State Bank.” The slip of paper was introduced in evidence and shown by a handwriting expert to be in appellant’s handwriting.

Other evidence and testimony were offered by the state to corroborate the testimony of the accomplice witness Putney.

Appellant did not testify or call any witnesses in his behalf.

Appellant insists that if the evidence be sufficient to corroborate the accomplice, it is insufficient to sustain his conviction as a principal, but, viewed from the state’s standpoint, shows him to have been an accomplice to the crime.

With this contention, we agree.

Articles 65-69, V.A.P.C., define who are principals in the commission of an offense.

Article 65, supra, provides that

“All persons are principals who are guilty of acting together in the commission of an offense.”

The succeeding Articles 66-69, supra, prescribe the manner in which one may become a principal in the commission of a crime.

The six definitions prescribed by these articles have been set out by this court in the case of Middleton v. State, 86 Tex. Cr.R. 307, 217 S.W. 1046, as follows:

“(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
“(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.
“(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
“(4) When A. actually commits the offense, but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.
“(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
“(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.”

Of the six ways in which one may be a principal to a crime, two require his presence at the time the crime is committed, and four make him a principal, though physically absent.

Under the statutory definitions of a principal, whether the person be present or not when a crime is committed he must be actually doing something which associates him with the execution of the unlawful act at the very time it is done, to make him a principal. Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174.

An accomplice is defined in Art. 70 of our Penal Code, as follows:

“An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or
“Who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or,
“Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or,
“Who prepares arms or aid of any kind, prior to the commission of an offense for the purpose of assisting the principal in the execution of the same.”

In the early case of Cook v. State, 14 Tex.App. 96, this court, in setting out the distinction between an accomplice and a principal, said:

“The acts constituting an accomplice are auxiliaries only, all of which may be and are performed by him anterior and as an inducement to the crime about to be committed (Penal Code, Arts. 79 to 85 inclusive); whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime, but when it is actually committed is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not.”

In 2 Branch’s Ann. P.C. 2d Ed., Sec. 710, at page 8, it is stated:

“If the defendant on trial was not present when the offense was committed and was doing nothing in aid of the common design when the offense was committed, he would not be a principal although the facts support the theory that he was both an accomplice and accessory, or a receiver of stolen property, or either.”

In Hankamer v. State, 142 Tex.Cr.R. 23, 150 S.W.2d 794, it was held, in a prosecution under Art. 1538, supra, that the conversion of funds of cm estate w&s complete the moment the administrator formed the intent to use the money for his private personal use and did so use it.

The facts in the instant case do not show that appellant was present when Putney withdrew the funds from the estate at the bank. Nor is there any proof that at the time Putney withdrew the funds appellant was doing any act in furtherance of their agreement to take the money from the estate.

Under the facts, appellant was not shown to be a principal to the crime of conversion of the estate but was shown to be merely an accomplice thereto.

In this state, an accomplice cannot legally be convicted of a felony as a principal. See: 2 Branch’s P.C., Sec. 710, pages 7-9, and cases there cited.

Parnell v. State, 170 Tex.Cr.R., 30, 339 S.W.2d 49, relied upon by the state, is not here controlling, because, as shown in the opinion in the case, the accused was present at the time of the conversion of funds from the corporation.

Middleton v. State, supra, also relied upon by the state, is not here controlling, because in that case the accused was present at the time of the homicide and doing certain acts in furtherance of the conspiracy to kill the deceased.

By formal Bills of Exception Nos. 9, 10, and 11, appellant complains of the court’s refusal, prior to ordering change of venue of the cause, to hear evidence in support of three motions filed by him to quash the indictment or to permit him to perfect his bills of exception, by which he alleged that the indictment returned ■ by the grand jury was in violation of Art. 1, Sec. 10, of the Constitution of Texas, and of the Fifth and Fourteenth Amendments to the Constitution of the United States.

By such refusal, the trial court has deprived this court and the Supreme Court of the United States of the opportunity to; review appellant’s constitutional claim. ' In refusing to permit appellant to submit proof in support of the motions, the court erred. Rothschild v. State, 7 Tex.App. 519, and Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091.

Upon another trial, the state should not be permitted to prove that two of the original incorporators of Tierra Grande, Inc., did not appear before the notary public when they signed and acknowledged the articles of incorporation, as such acts were extraneous transactions ■which had no bearing upon the issues in the case. For the same reason, evidence should not be admitted to show that appellant, as probate judge, had authorized Putney to make certain loans from the estate to third parties and also authorized Putney to execute a check in the amount of $15,-000 to Southwest Equities Corporation. That portion of the administrator’s final account showing certain old coins belonging to the estate as being in appellant’s possession should not, upon timely and proper objection, be admitted in evidence before the jury. The court should also limit in his charge the jury’s consideration of any evidence of extraneous offenses or transactions to the purpose for which it was admitted.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.

MORRISON, Judge

(concurring).

It has been suggested that the offense in question was committed when the order allowing the fee was allegedly signed by the judge. This position cannot be sustained because the alleged order does not appear to have been entered in the records of the Probate Court and there is an entire absence of any testimony that it was necessary or that it was ever used to effect the withdrawal of the monies in question; therefore, we cannot base an opinion upon it. Nor can the position be maintained that the money was not appropriated until it found its way into the possession of appellant because this statute could not be violated by appellant who was not a member of a class capable of committing this crime.

While the opinion of this Court may not meet with popular approval, the writer, at least, should not be subject to criticism because I pointed out as early as 1952, in an article which appears in Volume 1 of the Penal Code, that, as I saw it, the Legislature should abolish the distinction between accomplices and principals. More than ten years have passed since such article was published, and the Legislature has not seen fit to change the law.

Holt v. State, 144 Tex.Cr.R. 62, 160 S.W.2d 944, can have no application here because the accused in that case was actively participating in the offense at the time it occurred, just as was Parnell, and neither case involved conversion of the funds of an estate as we have here and as we had in Hankamer v. State, supra.

Regardless of the charge, the fact remains that in all cases affirmed by this Court holding the accused to be a principal he was actually doing something at the time of the commission of the offense in the furtherance of its commission.

Whether or not the writer is sound in the above conclusions, three other reversible errors appear in this record, as pointed out in Judge Dice’s opinion, with which I concur entirely.

WOODLEY, Presiding Judge

(dissenting).

The offense charged was not one which the appellant, acting alone, could commit. He stands convicted for having acted together with Putney who was alleged and shown to be the Administrator of the Currie Estate. There was no allegation in the indictment to this effect but the evidence shows that the appellant was the Judge of the Probate Court who appointed Putney as administrator. As Probate Judge he was charged with the responsibility of seeing that Putney performed his duties, and shared with Putney the duty of preserving the property of the estate, that it might be delivered to those lawfully entitled to receive it and to no one else.

The indictment alleged that Putney and the appellant acting together as principals converted to their own use $10,000 in money which was part of the property of the Currie Estate. The court’s charge properly instructed the jury to the.effect that proof of conversion of $50 or more of the money would be sufficient.

The theory upon which the conclusion is reached that the Judge of the Probate Court was an accomplice rather than a principal to the conversion of a part of the property of the Currie Estate is that the offense was committed at the bank and was complete when the administrator “formed the intent to use the money for his private personal use and did so use it.”

As to the $5000 belonging to the estate which, pursuant to the conspiracy, finally was appropriated to the use of the Probate Judge, there is no evidence or suggestion that the administrator at any time had the intent to use any part of this $5000 for his private personal use, or that he did so use it.

The contention that the appellant was not a principal in the commission of the offense is quite similar to that we overruled in Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49.

This is not a simple case where thieves break in and steal property that is in the possession of its owner. Here the door was open by reason of the positions of trust occupied by the conspirators and, in violation of such trust and of the statute, property of others entrusted to their care and custody was converted to their own use and benefit.

As in Parnell v. State, supra, the offense was not committed by a single act.

The money belonging to the Currie Estate was under the control of the administrator and was in his possession. He had the power to use or convert it, but no lawful right to do so without an order of the Judge of the Probate Court.

The administrator retained possession of the $5000 that was appropriated to the personal use of the appellant until it was so converted and appropriated as the appellant and the administrator had agreed.

There was evidence to the effect that the money deposited in the Tierra Grande Inc. account was withdrawn under the appellant’s directions beginning the next day for his personal use or benefit.

The intent that the funds of the estate be converted to their own use was complete when the judge signed an order and the administrator accepted and acted upon it, the agreement being that $5000 of the amount would go to the judge. The check by which the $10,000 was withdrawn from the checking account of the estate and deposited to the personal checking account of the administrator shows on its face that the court’s order was its basis. It bore the notation “One-half attorney’s fees, one-half expenses of estate as per court order December 19, 1960.”

The appellant made the fraudulent order which authorized the withdrawal under the unlawful conspiracy, and it was accepted. He directed the administrator where his $5000 was to be placed. He was present as that term is used in reference to the law of principals when the offense was committed.

Suppose that the administrator had had the $10,000 belonging to the estate in cash in his pocket and, having obtained the order, had left half of it at a hiding place designated by the judge where he later found it!

Could it be said that the judge was not a principal because he was not present at the hiding place when the money was left there for him?

Stripped of the devious means used to cast an air of legitimacy upon the transaction and to conceal their crime and avoid its consequences, the supposed case is in essence the case before us.

Suppose that having drawn the $10,000 check, the administrator had obtained in cash the part which it was agreed would go to the appellant and had carried it to the appellant. Would this Court reverse because the appellant was not with the administrator when the $10,000 check was drawn ?

As we said in Parnell v. State, supra:
“There is no settled mode in which appropriation of money or property of the principal by the officer authorized to receive and handle it must take place. It may occur in numberless ways, and the appropriation consummated in any manner capable of effecting it.
“In many classes of cases the question as to what acts are sufficient to show an appropriation is one of great difficulty.
“So long as the person entrusted with the money or property of another acts in accordance with the terms of his trust in reference thereto he is not guilty of embezzlement. He may deposit the money of his in the bank in his own name without being guilty of appropriating it. But a withdrawal by him for purposes of his own constitutes appropriation, 16 Tex.Jur. 70; or constitutes evidence of conversion. 16 Tex.Jur. 38, 39.”

Holt v. State, 144 Tex.Cr.R. 62, 160 S.W.2d 944, is a case where a conviction for theft by false pretext from one Goolsbee was affirmed, Holt having been present and participated when false representations were made to Goolsbee at Warren, in Tyler County, but was not present when his co-conspirator thereafter extracted $20,000 in money from Goolsbee at Beaumont, in Jefferson County.

This Court declined to follow the view that would narrow the commission of the crime to the very minute the money was delivered and said:

“We think the correct view is that the time of the crime of theft by false pretext extended from the beginning of the transactions when appellant first visited the Goolsbees until their loot was divided and that the place was in Warren, Tyler County, as well as near the hotel in Beaumont, Jefferson County.”

Had the appellant’s order been legally proper and genuine, the drawing and cashing of the $10,000 check would not have constituted conversion of property of the estate, or any other offense. It was, however, a fraudulent and unlawful order. Half of the money was to be and was converted to the use of the appellant. There remained the securing of the safety of the conspirators from detection by proper entry in the records of the order of the appellant as probate judge authorizing the pretended attorney’s fees without disclosing that the money was to be shared equally with him, and the approval of the administrator’s account.

It is true that the probate judge could not commit the offense alone. It is equally true that without the judge’s participation the administrator could not have committed it with any degree of hope that he could escape detection and punishment, and would not have shared the money converted with the judge.

The parties acted together as principals, as did the parties in Parnell v. State. If the appellant was not present as that term is used in applying the law of principals, Parnell was not present when the conversion for which he was convicted as a principal occurred.

If the majority is correct in holding that the appellant was an accomplice to the conversion and not a principal, Parnell was not a principal though he was convicted as such and the conviction was affirmed.

For cases where the defendant whose conviction as a principal was affirmed, though he was not at the time in position to have committed the offense himself and was doing nothing at the time the offense was committed by his co-conspirator other than waiting some distance away to carry out his part in the conspiracy, see White v. State, 154 Tex.Cr.R. 489, 228 S.W.2d 165; Gonzales v. State, Tex.Cr.App., 350 S.W.2d 553; Hill v. State, 135 Tex.Cr.R. 567, 121 S.W.2d 996; Stubblefield v. State, Tex.Cr. App., 334 S.W.2d 150.

The holding of the majority that the appellant was not a principal to the conversion will preclude another trial upon the indictment, hence there is no occasion to consider other claims of error.

I respectfully dissent.

ON STATE’S MOTION FOR REHEARING

McDonald, judge.

Most of the opinion reversing this cause on original submission was devoted to the distinction between a principal and an accomplice. The majority opinion held that the appellant was not a principal; that the evidence was insufficient to sustain his conviction as such and viewed from the state’s standpoint shows him to have been an accomplice to the crime.

The writer approved the opinion written by Judge Dice on original submission and wrote no opinion thereon. Judge Morrison concurred and Presiding Judge Woodley dissented. I now recede from my original position so far as the appellant being a principal is concerned.

I think that appellant was a principal, rather than an accomplice. I do not agree with Presiding Judge Woodley that Parnell’s case, 170 Tex.Cr.R. 30, 339 S.W.2d 49, cited in his dissenting opinion is in point with the case at bar. I say this for the reason that Parnell was present during the course of the conversion. He was present at the Executive Committee Meeting on June 8th, and at the stockholders meeting on August 15th.

I also disclaim Hankamer’s case, 142 Tex. Cr.R. 23, 150 S.W.2d 794, cited in our original opinion as authority to support my views therein expressed. Hankamer was an administrator “converting on his own”, without any assistance from the county or probate judge. The portion excerpted from his case and cited in the original opinion follows a discussion in his case of the time of various conversions to refute a claim advanced by Hankamer that limitation had run on his offenses, if any. This Court said:

“He had unquestionably converted the $66.55 to his own use and benefit before he ever made any payment of the premium on the bonds. The conversion was complete the moment he formed the intent to use the money for his private personal use and did so use it.”

No other person was present, nor was any action on the part of any other person required for Hankamer to complete the conversion in his case. He was unlike Putney, the co-principal and administrator in this cause. He was acting on his own. Putney was acting with the appellant, or the appellant with him, they were acting together, as I shall hereinafter set forth. The writer has carefully reviewed all of the cases cited by the State and the appellant, along with numerous other cases dealing with the law of principals and accomplices. Holt v. State, 144 Tex.Cr.R. 62, 160 S.W.2d 944, cited by Presiding Judge Woodley in his dissenting opinion, supports the view that I now entertain. The writer desires to direct attention to Judge Graves’ concurring opinion in Holt, supra, in which he cites numerous cases, among them being: Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 and Mason v. State, 31 Tex.Cr.R. 306, 20 S.W. 564, which Judge Graves refers to as being “the true doctrine that should be followed” so far as the law of principals is concerned. Judge Simkins wrote the unanimous opinion in Mason’s case. I shall not here lengthen this opinion by quoting from either case, but I do feel that both cases support my position. Whether Put-ney needed the Order from appellant, allowing the $10,000.00 attorney’s fee, isn’t clear. Appellant did not exercise his statutory duty to conserve and preserve the funds of the estate, he passively sat by and allowed Putney to withdraw the money. The appellant set Putney in motion to perpetrate the offense just as effectively as Middleton did Osment in the murder case, Middleton, supra. It is true that Middleton struck no blow with the hammer, nor did appellant even touch the pen when Putney cashed the check at the bank, and yet, the two cases are parallel.

Cochrain v. State, 93 Tex.Cr.R. 483, 248 S.W. 43, involved an appellant whose part in the transaction was “to pretend to be dead”, which he did. In this case Southwestern Life Insurance Company paid out $5,000.00 to Cochrain’s wife, based upon a a conspiracy that he had died. He, of course, was not present when the money was paid to his wife. He played “dead” and the appellant herein played like Putney was an honest administrator, and he sat back and silently allowed Putney to convert at least $5,000.00 from the Currie estate and place it on deposit for the use of appellant, or in a bank account controlled by appellant. It is quite coincidental that Cochrain’s case is even identical to the case at bar as to the sum of money involved, as well as being authority for my position.

The writer feels that we were in error in holding in our original opinion that the trial Court erred in refusing to allow appellant, prior to ordering a change of venue of the cause, to adduce evidence in support of three motions filed by him to quash the indictment or to permit him to perfect his bills of exception, by which he alleged that the indictment returned by the grand jury was in violation of Art. 1, Sec. 10, of the Constitution of Texas, Vernon’s Ann.St., and of the Fifth and Fourteenth Amendments to the Constitution of the United States, which complained of errors appellant has brought forward by formal Bills of Exception Nos. 9, 10, and 11. Art. 1, Sec. 10, Constitution of Texas protects the rights of an accused in all criminal prosecutions. It does not encompass grand jury action. Rothschild v. State, 7 Tex. App. 519, cited in our original opinion was a case involving an allegation that an unauthorized person was present during the deliberations of the grand jury. The case was reversed because the trial court refused to permit proof by the appellant on this issue. The record in the instant case discloses that appellant was permitted to make proof herein on his allegation that unauthorized persons were present at the time the grand jury deliberated. The trial court met the requirement of Rothschild, and that case does not support our original view, from which I now retreat. In Juarez v. State, 102 Tex. Cr.R. 297, 277 S.W. 1091, the trial court refused to permit appellant to make proof that he had been purposely discriminated against in the selection of the grand jury which returned the indictments against him. Appellant herein makes no such claim. (The trial court here did refuse to permit appellant to make an inquiry into what evidence the grand jury considered at the time of the return of the indictment.) It has long been the law that the character of testimony or the quantum of proof had before the grand jury cannot be inquired into on a motion to quash the indictment. Article 506, Vernon’s Ann.C.C.P., Note 6, citing numerous cases. The foregoing article of our Code of Criminal Procedure does not provide for quashing an indictment against a Negro because it was found by a grand jury from which all persons of the African race had been excluded because of their race or color. Yet such a procedure to quash has been held to be a timely mode of presenting the objection, under the Constitution and laws of the United States, as set forth by appellant’s able attorneys. However, I do not think these racial discriminatory cases cited by appellant are in point here.

The case of Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, cited by appellant, is not in point as it is bottomed on the refusal of the trial court to grant a change of venue. We have no such question before us in the case at bar. The trial court changed the venue of appellant’s case. He was tried in Belton, Texas, approximately 200 miles from Houston, Texas, where appellant alleges the complained of publicity took place.

I shall now direct my attention to what I regard as the reversible errors in this case. My views and my position are that the State’s Motion for Rehearing should be denied. In this court’s original opinion by the majority, Judge Dice, speaking for the court, said, “Upon another trial, the state should not be permitted to prove that two of the original incorporators of Tierra Grande, Inc., did not appear before the notary public when they signed and acknowledged the articles of incorporation, as such acts were extraneous transactions which had no bearing upon the issues in the case. For the same reason, evidence should not be admitted to show that appellant, as probate judge, had authorized Putney to make certain loans from the estate to third parties and also authorized Putney to execute a check in the amount of $15,000 to Southwest Equities Corporation. That portion of the administrator’s final account showing certain old coins belonging to the estate as being in appellant’s possession should not, upon timely and proper objection, be admitted in evidence before the jury. The court should also limit in his charge the jury’s consideration of any evidence of extraneous offenses or transactions to the purpose for which it was admitted.”

Further elaboration as to these matters was not deemed necessary due to the court’s disposition of this cause. I feel it will be desirable to elaborate and clarify my position through a more labored discussion of the law applicable and direct attention to the errors I regard as reversible.

The indictment returned on June 20, 1962, alleges that the appellant on or about December 19, 1960, did unlawfully, with intent to defraud, convert to his own use $10,000 in money from and belonging to the Estate of Clara L. Currie.

It is undisputed that the state relies for a conviction upon the withdrawal of $10,-000 by Putney’s check dated December 19, 1960, drawn on and paid out of the Currie Estate as authorized by the appellant, and the unlawful conversion thereof of any sum of money of over fifty dollars. The state adopted this view in briefing this case.

To support the allegations of the indictment the state called the witness, Putney, who testified on direct examination, that he presented an application to appellant, as Probate Judge, for an order approving attorney’s fees in the sum of $10,000; that appellant signed the order approving the application but said instruments were left on the desk of the Judge (appellant) and they were never produced at the trial. The bank records reveal that on presentation by Putney of the $10,000 check, he received $500 in money, deposited $9,500 to his personal account, and then drew a $5,000 check on his personal account which he deposited to the account of Tierra Grande, Inc., shown to be controlled by appellant, and that this money was withdrawn for the benefit of appellant.

On cross-examination, by the appellant of Putney, he testified that he had made approximately 50 odd withdrawals of money from the Currie Estate- without a court order from the appellant, aggregating in excess of $25,000, which he had converted to his own. use and had shared none of the proceeds with the appellant.

The state on re-direct examination, over appellant’s objection, introduced evidence of another withdrawal by Putney, pursuant to appellant’s oral instruction, of $15,000 on January 24, 1961, for the purchase of stock in the Southwest Equities Corporation.

For the admission in evidence of the said $15,000 stock purchase the District Attorney of Harris County argued to the trial Judge that:

“We think it is in response to the cross-examination with reference to the defendant’s knowledge of withdrawals from the estate without a written order. This is such a transaction. My position is that it is admissible to rebut — that all of the withdrawals that were made without an order were made unknown to the defendant”.

Thus, it was the theory of the state that it should be allowed to offer evidence in rebuttal, showing that Putney acted in other transactions upon an oral court order by appellant, other than the single order approving the attorney’s fee of $10,000. Over timely and proper objection, the evidence was admitted.

In addition to the $15,000 stock purchase, the state proffered the testimony of Putney about a prospectus and the notation appellant had made on it. In the absence of the jury the testimony shows that Putney had seen a prospectus of the Southwest Equities Corporation, and that appellant had written on this prospectus: “Mrs. Currie subscribed for 1,000 shares.” After objection had been made, the Court then stated that he would not admit the prospectus, but he would permit the notation “which is ascribed to the defendant, that Mrs. Currie subscribed to 1,000 shares.” The Court stated: “The Court understands that the purpose of the State here is to show that the witness had purported oral authority in other transactions other than the one involved”. The Harris County District Attorney then stated: “Yes, and that such withdrawals were made to the knowledge of the defendant, without proper order of the Court.” Then, in the presence of the jury, the witness, Put-ney, was asked to identify an exhibit, which he stated was a prospectus of Southwest Equities Corporation, that he had seen it in Judge McClelland’s office, that McClelland instructed him to buy the stock and that Mc-Clelland made the notation on the prospectus: "Mrs. Currie subscribed to 1,000 shares”; that Putney then withdrew the $15,000.00 from the Currie estate and invested it in stock of the Southwest Equities Corporation, pursuant to McClelland’s oral instructions. The Court then admitted the portion of the prospectus bearing the above-quoted notation.

Following the withdrawal of the $15,000 from the Currie Estate for the purchase of stock on January 24, 1961, proof was made by the State that there were two substantial withdrawals of money totaling over $100,000 from the Currie Estate in connection with two loans made by Putney. One, in the sum of $40,000.00 to Bayou Production Company on March 28, 1961, and tue other in the amount of $61,000.00 to C. W. Calhoun, Trustee, on June 16, 1961, both transactions clearly showing no conversion on the part of the appellant, but they gave a strong inference of wrongdoing on his part and no doubt aroused suspicion on the part of the jury, as the District Attorney asked the question: “Does the Probate Code specifically provide for loans to be made from the estates of decedents?”, which, although unanswered, no doubt caused appellant material harm by leaving an inference that the appellant had violated the law under the Probate Code. These were loans to third parties. However, I observe that the state had previously on direct examination, adduced from the witness, Putney, that following the events that he described December 19, 1960, that he subsequently made various withdrawals from the account of Clara L. Cur-rie on many occasions without a court order or without permission of the court and that he approximated to the best of his recollection that these withdrawals amounted to $25,800.00 and some odd cents.

I do not think that the evidence was admissible. The State was actually attempting to bolster or to impeach their own witness. Had they been correctly desirous of introducing this testimony to rebut, then they were rebutting their own witness, which amounts to nothing more than impeaching one’s own witness. They did not show surprise nor hostility on the part of the witness, Putney, and I think this evidence was clearly inadmissible. Neither do I think that this testimony was admissible to bolster the state’s witness. The state saw fit to adduce upon direct examination testimony which they later regarded as unfavorable to them, and yet they wanted to bolster their own witness with some transactions highly prejudicial to the appellant. The state also was not only getting before the jury evidence which it contended would rebut, but also “that such withdrawals were made to the knozvledge of the defendant, without proper order of the Court.” If I correctly interpret the view of the state, it was their position that the stock purchased from Southwest Equities Corporation and the two loans, all having been made with an order from the Probate Judge (the appellant), and he having knowledge of such transactions, for he ordered them made, would also refute Put-ney’s testimony that he converted over $25,000.00 to his own use, sharing none of it with appellant. It would in effect charge appellant with knowledge of Putney’s misapplications or conversions on 50 odd different occasions. In the face of Putney’s testimony about his various independent acts of conversion, I see no similarity in these three transactions, but I do see appellant being greatly prejudiced by this testimony. Here is an estate shown by the record to be worth approximately $160,-000.00 in its entirety. Testimony was then admitted showing three transactions, totaling $116,000.00 and the one transaction for $10,000.00 for which appellant was on trial. I think the testimony about these transactions no doubt caused the jury to feel that appellant was probably, along with Putney, out to steal the entire estate and that said testimony was highly prejudicial and inflammatory to appellant’s rights to a fair and impartial trial and that it caused the jury to render a verdict for a greater punishment than they would have rendered absent this prejudicial evidence. Viewing the three transactions totaling $116,000.00 in the suspicious light that the jury no doubt saw them, they probably decided that appellant was just a petty thief to only be taking $10,000.00 as charged; so the additional evidence of the one hundred thousand dollars plus transactions removed any doubt from their minds as to appellant’s guilt. The jury probably computed that here was a Probate Judge, with his co-principal, who stole $126,000.00 in four transactions, or about three-fourths of the entire estate of $160,000.00.

Assuming for the sake of argument that the evidence of these three transactions was admissible to prove either intent, system or identity, or in developing the res gestae, so as to bring it within one of the exceptions to the general rule of admissibility as to extraneous offenses or transactions, the trial court imposed no limitations upon his instructions to the jury as to these transactions, over appellant’s timely objection. For this error alone the cause should be reversed.

For the reasons stated, the State’s Motion for Rehearing is overruled.

MORRISON, Judge

(concurring).

Remaining convinced of the soundness of the original opinion holding the appellant to be an accomplice rather than a principal and my concurrence therewith, I would add only the following.

While I agree with the result, I cannot bring myself to agree with the assumption not supported by evidence that appellant’s proof as to the unconstitutionality of the grand jury’s action must necessarily have come from what occurred within the grand jury room and not from the holding of the highly publicized court of inquiry. We, as a Court, have no authority to make such an assumption against an accused, or to speculate as to the nature or quality of the proof which might have been adduced had the court permitted it. I further take issue with my brother McDonald in his statement that the constitutional guarantees do not encompass grand jury action.

I viewed Judge DICE’S discussion of the proof of extraneous offenses as grounds for reversal as will be seen from my original concurrence herein. I concur in the overruling of the State’s motion for rehearing.

WOODLEY, Presiding Judge

(dissenting)-

It is regrettable that the views of the Judges of this Court as to the controlling principles of law and their application are so divergent that the numerous and lengthy opinions herein will be of little value as legal precedent or as authority in any case other than that before the Court.

The majority opinion on original submission reversed this conviction upon the holding that the evidence showed appellant’s guilt as an accomplice, but not as a principal.

Judge McDONALD’s opinion on rehearing states his present view that such holding was wrong and that the evidence is sufficient to sustain the conviction of the appellant as a principal. Thus, the conclusion that the evidence is sufficient to sustain appellant’s conviction as a principal becomes the majority holding.

The writer concurs in the conclusion of Judge McDONALD that the court in Harris County did not err in refusing to hear testimony regarding what evidence the grand jury considered in returning the indictment against the appellant.

This holding of the majority leaves only the supposed errors on the trial in Bell County which were not relied upon in Judge DICE’S opinion as ground for reversal, but were the basis of the admonition to the trial court not to admit certain evidence and to limit certain evidence “upon another trial.”

On original submission there was no occasion for the Court to consider these claims of error because another trial upon the indictment had been precluded by the holding that the appellant was not a principal, as the indictment charged.

The evidence which Judge McDONALD holds inadmissible as showing extraneous offenses relates to property belonging to the Currie Estate and the actions of the appellant as County Judge, and of the administrator Putney in regard thereto. This evidence was admissible. If it showed or tended to show any offense it was not an extraneous offense but the offense charged in the indictment, namely the conversion of property belonging to the Currie Estate by the administrator, the appellant acting with him as a principal.

It is not controlling that the state elected to stand upon the conversion of $50 or more of the proceeds of the $10,000 check. The allegations of the indictment, not the case submitted to the jury, determines what evidence is admissible and what is extraneous.

It is incorrect to assume that the state was limited by the indictment to the proceeds of the $10,000 check drawn on the account of the Currie Estate. The court properly charged the jury that proof of conversion of $50 or more belonging to the estate would be sufficient. In the jury’s absence the trial judge stated, in ruling upon an objection: “Gentlemen, the indictment alleges the theft of $10,000 from the estate. It does not say what $10,000 was taken from the estate.”

The first reference to the Southwest Equities Corporation transaction was when Putney testified on cross-examination that he had been indicted “on the $15,000 Southwest Equities check.” Thereafter the state offered the prospectus and proof regarding the appellant’s connection with Southwest Equities Corporation, but the careful trial judge ruling in the absence of the jury admitted only the notation ascribed to the appellant, the check and the testimony of Putney that the appellant told him to issue it but no court order was obtained.

The first reference to a loan made from the Currie Estate was also on Putney’s cross-examination regarding a transfer of funds belonging to the estate from a Savings and Loan Association to a checking account when Putney testified: “That was at the time that we were making the loan for the estate.”

Also the final account of Putney was introduced as State’s Exhibit S-26 wherein the loans and Southwest Equities Corporation $15,000 investment are listed. Also Putney testified on cross-examination about the loans and interest thereon.

The complained of testimony went no further than to show that loans were authorized and made for the Currie Estate.

In view of the above, appellant has no ground to complain.

Much has been written about Putney’s testimony elicited by the defense as to withdrawals he made and converted to his own use which the appellant did not authorize and about which he was not advised.

To make this part of the evidence complete attention is directed to Putney’s explanation made and repeated that he drew the money in violation of the law, knowingly, in anticipation of fees and made false statements on the checks “simply to assure myself that I would not have to split any more fees * * * I did not intend to divide any more fees.”

Also, the record shows that evidence was elicited by the defense showing that Put-ney, with the knowledge of the appellant, sold $40,278.24 worth of Texaco Inc. stock belonging to the Currie Estate a month before he obtained a court order to do so. And on his cross-examination Putney testified that he sold U.S. Treasury Bonds belonging to the Currie Estate with the knowledge of the appellant but without obtaining a court order.

I see no error in the failure of the court to limit the evidence mentioned in his charge.

I respectfully dissent from the overruling of the State’s motion for rehearing.


author: DICE, Commissioner. MORRISON, Judge.

text:
    Ellis A. REED, Appellant, v. The STATE of Texas, Appellee.
    No. 36053.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    Rehearing Denied Dee. 18, 1963.
    Second Rehearing Denied Jan. 15, 1964.

      No attorney on appeal for appellant; Stone & Stone, by Wm. Emerson Stone, Jacksonville, on rehearing.
    Paul B. Cox, County Atty., Rusk, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 339, Vernon’s Ann.P.C., for unlawfully resisting arrest; the punishment, a fine of $250.

The statement of facts appearing in the record is not shown to have been filed with the clerk of the trial court as required by Art. 759a, Sec. 4, Vernon’s Ann.C.C.P., and therefore cannot be considered as a part of the record on appeal. Hughes v. State, 161 Tex.Cr.R. 300, 276 S.W.2d 813; Salyer v. State, 166 Tex.Cr.R. 532, 316 S.W.2d 420.

The complaint and information charged, in substance, that the appellant did unlawfully resist his arrest, which was being made for a criminal offense for which an arrest could be made without warrant; that such arrest was attempted by a duly qualified deputy sheriff who was legally authorized to arrest appellant and was attempting to arrest him in a lawful manner.

No exception or motion to quash the complaint and information was filed by appellant.

By motion in arrest of judgment, appellant urged that the information was insufficient to support a conviction because it did not allege in any respect what action or conduct on his part would give rise to the authority of the officer to arrest without a warrant.

As heretofore shown, the complaint and information alleged, in substance, that appellant resisted his arrest attempted by the officer without a warrant, who was legally authorized to arrest appellant and was attempting to arrest him in a lawful manner.

While the state’s pleadings should have alleged the facts showing that the attempted arrest without a warrant was authorized, the failure to so allege did not constitute such a substantial defect as would require the granting of appellant’s motion in arrest of judgment. Such defect should have been pointed out to the court before the announcement of ready, by an exception duly filed or motion to quash the complaint and information.

The record presents no formal bills of exception and no brief has been filed on behalf of appellant.

A purported bill of exception filed in the cause to the court’s action in rejecting certain testimony offered by appellant, under the certificate of the official court reporter, alone, cannot be considered.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

We have now been furnished with an affidavit of the County Clerk of Cherokee County in which it is certified that the statement of facts was in fact delivered to her office and filed within the time provided by the statute. It is in narrative form and will be considered.

It was developed by various State witnesses that appellant drove to the home of Maizie Jowers in a highly intoxicated condition and there cursed and abused her, that she called the officers and that when they arrived, appellant violently resisted their efforts to place him under arrest. Appellant testified that he had been drinking, but denied that he resisted arrest.

The jury chose to accept the testimony of the State’s witnesses and reject that of appellant, and we find the evidence sufficient to support the conviction.

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


author: BELCHER, Commissioner.

text:
    Ex parte Antonio Parra PINEDA.
    No. 36338.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Rehearing Denied Jan. 15, 1964.
    Joseph A. Calamia, Edward S. Marquez, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

By writ of habeas corpus the relator challenges the sentence he is serving which was pronounced against him in the 34th District Court of El Paso County and affirmed by this Court in Pineda v. State, Tex.Cr.App., 367 S.W.2d 862.

On July 10, 1963, the judge of the 34th District Court of El Paso County issued the writ, developed the facts at a hearing on July 15-16, and has certified the same to this Court in accordance with the provisions of Art. 119 V.A.C.C.P.

The grounds for relief are that the relator was denied the effective assistance of counsel in violation of due process of law in that he was an indigent person, unable to employ counsel, and that Woodrow Bean, the attorney representing him, had such unfavorable publicity caused by his failure to file income tax returns for which he was convicted in June 1962 and a petition filed in the 34th District Court in September, 1962, seeking his disbarment, that such prejudiced his rights with the jury which resulted in his conviction and an extremely severe penalty; and that said attorney failed to adequately protect his rights during the trial including the failure to present a defense of insanity and further, that he failed to represent him on appeal.

On July 12, 1962, the appellant was indicted for murder with malice allegedly committed May 13, 1962; and he has been in jail since May 13. The trial on the merits was had on October 8-9, 1962, resulting in a jury verdict of guilty with the punishment assessed at forty-three years

Sentence was pronounced on December 20, 1962. Notice of appeal was given on the same date.

Following the filing of appellant’s affidavit of inability to pay costs on appeal, the record was duly and timely perfected including the filing of the statement of facts on the main trial. No brief was filed or oral argument made in this Court on appeal.

Thereafter, the case was affirmed on May 8, 1963. The relator was allowed fifteen days within which to file a motion for rehearing after May 8.

At this point, the record reveals that Joseph A. Calamia, an attorney of the El Paso Bar, by letter dated May 21, 1963, addressed to the Clerk of this Court, advised that on May 20, 1963, Honorable R. E. Thomason, U. S. District Judge, and Judge Ward of the 34th District Court of El Paso County, had appointed him and Edward S. Marquez to represent the appellant Pineda. In said letter Calamia requested that a 15 day extension of time be granted for the filing of a motion for rehearing. The Clerk, by letter dated May 22, notified Calamia that the Court had instructed him not to issue the mandate in said cause for 15 days; and further advised him that he was not filing the letter as a motion for rehearing.

Although the fifteen days allowed for filing a motion for rehearing had not expired when Calamia and Marquez were appointed, they did not at any time file such a motion in behalf of relator. Further, the fifteen day extension of time was granted as Calamia requested.

Instead of filing a motion for rehearing, the relator sought relief by preparing a petition for a writ of habeas corpus alleging the grounds above set forth, which was sworn to and presented to Judge Ward as soon as the mandate of this Court issued.

On the hearing of the writ, relator testified that he was thirty-one years of age, and had an eighth grade education; that he had been in jail since May 13, 1962, and had no money to employ counsel at any time; that about thirty days before his trial on October 8, Woodrow Bean conferred with him about five minutes and told him he had been selected by the court to defend him, and that he next saw Bean for about five minutes three or four days before his trial. He further testified that he never requested the court to appoint another attorney and never made any objection to Bean representing him. Relator admitted that he had been convicted in Federal Court for transporting a stolen automobile in interstate commerce and his punishment was assessed at three years.

An assistant district attorney testified that about one month after relator was indicted, Woodrow Bean told him by telephone that he was available to represent any indigent defendants, and that he understood that Bean had been court appointed in this case. In this connection the trial judge from the bench stated, “The court will certify that he was told by Mr. Bean that he was representing the defendant.”

It was stipulated that Woodrow Bean was a duly licensed and practicing attorney at the time of the jury trial; and had tried as many as eight criminal cases. The evidence reveals that he had been a member of the State Legislature and also had served as County Judge.

To show prejudice by the jury against Bean, the relator relies on evidence revealing an extensive coverage by the local news media of Bean’s failure to file income tax returns and his indictment and conviction therefor and the petition filed seeking his disbarment from practicing law.

The state called the foreman of the trial jury who testified that to the best of his knowledge there was no discussion of Bean’s personal affairs during the deliberations of the jury.

There is an entire absence of any showing that the adverse publicity concerning Mr. Bean found its way into the jury box at appellant’s trial. Walker v. State, 124 Tex.Cr.R. 112, 60 S.W.2d 455; Outlaw v. State, 125 Tex.Cr.R. 636, 69 S.W.2d 120; Jones v. State, 156 Tex.Cr.R. 248, 240 S.W. 2d 771; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239.

The complaint of Bean’s failure to pro-, tect the rights of the relator must be reviewed in the light of the evidence. A witness at relator’s trial on the merits testified that she saw the relator beating the deceased with a car jack while he was lying on the ground, which the relator admitted in his confession introduced in evidence by the state; and he further stated therein, “I don’t know how bad he was hurt and I don’t care.”

None of the defensive issues now urged by relator were raised by the evidence at his trial. His appeal was considered and there is nothing in the record before us to show that had brief or motion for rehearing been filed and the bills of exception perfected a different result would have been reached in disposing of the appeal.

There is no showing of anything injurious to the rights of the appellant after Bean gave notice of appeal and prior to the appointment of present counsel.

From a consideration of the services rendered by Woodrow Bean in behalf of the relator on the main trial, the perfecting of the record on appeal, and the appointment of Attorneys Calamia and Marquez within time to file a motion for rehearing supported by brief or oral argument or both, it is concluded that the relator has not been deprived of his right to counsel.

The evidence is insufficient to show that the judgment is void.

The relief prayed for is denied.

Opinion approved by the Court.


author: RENFRO, Justice.

text:
    INSURANCE COMPANY OF ST. LOUIS, Appellant, v. G. B. BELLAH, Appellee.
    No. 16470.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1963.

      McCulloch, Ray, Trotti & Hemphill, Ronald D. ICrist and Ross H. Hemphill, Dallas, for appellant.
    Pettigrew & Vecchio and James S. Vecchio, Grand Prairie, for appellee.
   RENFRO, Justice.

G. B. Bellah sued the Insurance Company of St. Louis to recover for a lightning loss under a fire insurance policy issued by Insurance Company of St. Louis.

In answer to special issues the jury found: (1) that the damages to plaintiff’s home and air conditioner were caused by fire resulting from lightning, and (2) the plaintiff suffered $1,000 damages as result of the fire and lightning.

No other issues were submitted nor requested.

There were no objections or exceptions to the court’s charge.

The court in its judgment, after the usual recitations, stated: “The Court having considered the verdict and such other additional findings as authorized by law having been made and the Court being of the opinion that Judgment should be rendered as follows * * * ”, and decreed that plaintiff recover of the defendant the sum of $1,000.

The appellant appeals on the ground there was no evidence to warrant the jury’s finding of $1,000.

The appellant did not file a statement of facts.

It does contend, however, that “findings of fact and conclusions of law” filed by the trial court should be considered as a statement of facts.

The transcript does not show the request made by the appellant. The order of the court, however, granting the request made by appellant recites that the defendant requested the judge to state in writing the findings of fact found by him separately from the conclusions of law, and the “findings of fact and conclusions of law” filed by the court read: “In response to the request of Defendant in the above entitled and numbered cause, I make and file the following as my Findings of Fact and Conclusions of Law therein.” (Emphasis added.)

It is, therefore, apparent upon the face of the instrument filed by the court that it was filed under the provisions of Rule 296, Texas Rules of Civil Procedure, which provides for findings of fact and conclusions of law upon a trial by the court without a jury.

The trial court is required to file findings of fact and conclusions of law in a jury trial only where there are omitted supporting issues in the court’s charge to the jury. Quarles v. Traders and General Insurance Co., Tex.Civ.App., 340 S.W.2d. 54S.

The “findings” which the appellant now insists are a statement of facts do not purport to be, and are not, findings which support omitted supporting issues in the court’s •charge to the jury.

Findings of fact and conclusions of law are, as stated in Rule 296, “conclusions of fact” found by the trial court.

The statement of facts, on the other hand, should include the testimony of the witnesses, either narratively or in question and answer form, and exhibits and documentary evidence. None of the above were included in the findings of fact filed by the trial court.

We must conclude that the appeal is before us without a statement of facts.

The burden is upon defendant, appellant in this court, to show from the rec■ord as a whole that the error complained •of amounted to such a denial of its rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. Ligon v. Green, Tex.Civ.App., 206 S.W.2d 629; Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115; Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151; Rule 434, T. R. C. P.

Upon consideration of the record as a whole, and as presented to this court without a statement of facts, we are unable to say there is any reversible error shown. See City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860.

It is settled that in the absence of a statement of facts the appellate court will presume that the evidence is sufficient to support the verdict and judgment. Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208; Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363; Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549; Fenton v. Wade, Tex.Civ.App., 303 S.W.2d 816; Ollok v. United Heat Treating Co., Tex.Civ.App., 318 S.W.2d 785.

Since this was a jury case and the appeal is before us without a statement of facts, we affirm the judgment of the trial court.