text:
    T. S. SILER, Appellant, v. Harry BALL, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1961.
    Hubert F. White, Middlesboro, Clore & Swinford, Pineville, for appellant.
    James S. Wilson, Pineville, Glenn W. Denham, Middlesboro, for appellee.
   CULLEN, Commissioner.

In the May 1961 primary election in Bell County the election returns showed that T. S. Siler was the winner in the race for the Republican nomination for the office of sheriff. Harry Ball, who received the next highest number of votes brought a contest action charging Siler with having violated the Corrupt Practices Act. KRS Ch. 123. Siler filed a counterclaim asserting that Ball had himself violated the Act. The court found that Siler had violated the Act, and Ball had not, and entered judgment declaring that Ball was the lawful nominee. Siler has appealed.

The circuit court found that Siler had purchased votes in violation of KRS 123.-040, in the Noetown Precinct. Several men testified that Siler gave them $2 each at the voting place to “work for him,” and Siler admitted on the trial that he had done this. However, some of these men did not perform the work for which ostensibly they were hired, and others merely engaged in some perfunctory activity of an indefinite duration in handing out some cards to voters. One man, as he left the polling place after having voted, was given $2 by Siler, who said, “This pays you for your time,” and admittedly this man did not even make a pretense of performing any work for Siler. Two of the men had given affidavits before the trial that Siler had paid them to vote for him, and when cross-examined concerning these affidavits their attempts at explanation were feeble, one saying that he originally had understood that the money was paid to him for his vote “but I could have understood it wrong,” and the other saying that Siler’s statement to him, as related in his affidavit, that Siler “would fix him up” when he came out of the polls, meant that “it was for working.” At least one of the men who was paid money was a complete stranger to Siler.

The foregoing evidence, together with other testimony as to Siler’s activities around the Noetown Precinct on the day of election, such as his going a number of times behind the building in which the voting booths were located and handing money to various persons, some of whom then went in to vote, was in our opinion sufficient to sustain the trial judge’s finding that Siler had engaged in illegal vote buying. The judge was justified in concluding that the money was paid for votes under the mere guise or subterfuge of employment to perform work at the polls. See Carter v. Lambert, 288 Ky. 39, 155 S.W.2d 38.

In regard to the claim that Ball himself had violated the Act there was testimony of four witnesses that Ball had paid them money with the request that they vote for him. Ball categorically denied this, and produced some documentary evidence which tended to refute the story of one of these witnesses. Two of the witnesses were known workers for Siler and had Siler’s stickers on their cars at the time Ball was claimed to have approached them. Another was a registered Democrat who was not eligible to vote in the Republican primary. Aside from the features of implausibility in the testimony of these witnesses there is the fact that Ball flatly denied having paid them any money. There is no ground upon which we could say that the trial judge was required to accept the testimony of the accusing witnesses over that of Ball.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Robert F. MATTHEWS, Jr., Commissioner, Department of Finance, Appellant, v. Henry WARD, Commissioner, Department of Highways, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.

      John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellant.
    Paul E. Hunley, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is an agreed case prosecuted under KRS 418.020. The question concerns the validity of a contract between the Commonwealth (on behalf of the Department of Highways) and one of its employees in which the Commonwealth, in consideration of the employee’s transfer to a new work station in this state, agrees to pay him $300 as a monetary allowance in lieu of his moving expenses.

A preliminary procedural question is raised as to whether or not an appeal to this Court in an agreed case brought under KRS 418.020, where the amount in controversy is less than $2500, must be prosecuted by motion for appeal under the provisions of KRS 21.080 and RCA 1.180. The answer is affirmative. KRS 418.030; KRS 446.190; CR 73.02(3).

Turning to the merits, we are immediately confronted with a controlling statute which is determinative of the specific issue presented in the controversy. (This statute was not called to the attention of the Chancellor by the parties, and consequently was not passed uponfin his written opinion.)

The question submitted by the parties for adjudication is as follows:

“Is a contract valid which is entered into between the Commonwealth of Kentucky, Department of Highways and an employee thereof for the payment by the Department of a lump sum allowance in lieu of moving expenses in consideration of his transfer to a new work station and the assumption of duties at the new location? (Our emphasis.)

The agreed question, the regulation of the Department, and the particular contract involved (the latter two are filed as exhibits) all pertain to a lump sum monetary allowance in lieu of transportation expenses.

KRS 64.710 provides as follows:

“No public officer or employe shall receive or be allowed or paid any lump sum expense allowance, or contingent fund for personal or official expenses, except where such allowance or fund either is expressly provided for by statute or is specifically appropriated by the General Assembly.”

The contract calls for payment of a lump sum expense allowance. It is not expressly provided for by statute or specifically appropriated by the General Assembly. The contract purports to do what the statute specifically prohibits. It is therefore invalid. See Smith v. Campbell, Ky., 286 S.W.2d 532, and Funk v. Milliken, Ky., 317 S.W.2d 499.

The foregoing answer disposes of the question submitted for adjudication. The parties in their briefs debate the question of whether or not, as a general proposition, expenses of this character could properly be paid. It is not within the scope of our proper function to decide questions not in issue. Funk v. Milliken, Ky., 317 S.W.2d 499, 508. Our views concerning the general authority of the Department with respect to the payment of employees’ expenses would be no more than obiter dictum. The only real controversy (which KRS 418.020 requires) concerns a particular procedure painstakingly established by the Department.

The legal question presented for adjudication was very clear and specific (as it should be in an agreed case under KRS 418.020). The answer to that question is likewise clear and must be in the negative. The contract referred to in the question is invalid because it violates the prohibition of KRS 64.710.

The judgment is reversed for consistent proceedings.


author: PALMORE, Judge.

text:
    Beulah Mae COMBS, Appellant, v. Rader J. COMBS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    J. Douglas Graham, Campton, for appellant.
    Rose & Short, Beattyville, for appellee.
   PALMORE, Judge.

Beulah Mae and Rader Combs were married in 1949, when she was 17 and he was 30. After ten years together, during which time they had four children, he brought this action for an absolute divoyce on the ground of cruel and inhuman treatment, asking also for the restoration of certain real estate taken in their joint names and for custody of the children. She defended on the merits and by counterclaim demanded a divorce on similar grounds, together with alimony, custody of the children, an allowance for their maintenance, and a reasonable fee for counsel.

The circuit court made no findings of fact, but entered judgment awarding the husband a divorce, custody of the oldest three of the four children, and restoration of the wife’s half interest in the real property. The wife was given $25 per month for child support, $200 lump sum alimony, and $100 for her attorney’s fee. She appeals, contesting only so much of the judgment as relates to alimony, property settlement, and attorney fee.

At the time of the marriage Rader dealt in cattle and had an interest in a stockyard, which he later sold for $1,600. He says that he also owned a truck worth about $2,000 and had some $3,500 in cash. In 1950 he bought 2 acres of land for $1,500 and built a home on it, adding a store building 3½ years later. He now operates a furniture and appliance business on this property, which is the only real estate involved. The deed was made to husband and wife jointly.

When this action was tried Rader’s assets included his interest in the real estate, a stock of merchandise, a truck, and an automobile. He would not estimate the value of the real estate and merchandise, but said variously that he cleared about $200 per month from the business, that he grossed $31,000 in 1958, and that his profits ran from 10% on furniture to 40% on some of the other items. There was no testimony as to how much, if any, money he had on hand or in the bank, and very little as to household furnishings or other miscellaneous personal property. According to Ra-der, there were debts totalling several thousand dollars against the inventory of merchandise and the truck.

The only competent evidence of the value of the real estate was given by Geneva Williams, Beulah Mae’s aunt, who owned a hotel and restaurant in Jackson, was familiar with realty values in the community and with the property in question, and placed its fair market value at $25,000 to $30,000. As to Rader’s income, Beulah said he deposited some $13,000 from the business during the first six months of 1959, made a 50% profit (probably, however, confusing profit with mark-up), and earned better than $1,000 per month.

Whether and to what extent Beulah Mae worked in Rader’s business is largely in conflict, though it is clear that during the early years of the marriage she participated in the operation of a restaurant at the stockyard once a week. For a time while the furniture business was being established Rader hauled fruit from the south, and Beulah Mae claims to have run the fruit stand while he was away. She testified also that she worked in the furniture store when Rader was not there. Most of this he denied.

The evidence on the grounds for divorce was equally contradictory. His principal complaint was that she would leave home every evening and come in late at night, often drunk, neglecting him and the children. Other witnesses related having seen her in the company of another man, while she explained, on the other hand, that her only contact with this man was for the purpose of arranging a blood transfusion for her sick mother. Much of what her husband said she denied, put in a different light, or explained away. Three years before this action was commenced she had left him, sued for divorce, and then come back to him. It is a typical divorce case.

Though the testimony adduced in support of the husband’s case, taken at face value, suggests some degree of moral delinquency on the wife’s part, it is not such a clear and flagrant case as would justify denying her a fair and reasonable share of the estate accumulated by the husband during the marriage, while she was bearing his four children. In accordance with the principle stated in Heustis v. Heustis, Ky. 1961, 346 S.W.2d 778, 780, we are of the opinion that she is entitled to an award of alimony equivalent at least to one-third of the estate accumulated during the ten years of the marriage.

Since the evidence on the question of the husband’s financial status was so utterly unsatisfactory we are unwilling to require final disposition of the alimony question without further testimony. Therefore, the cause will be remanded for retrial on that question and the interrelated matter of property rights.

The $100 allowance for counsel fee in a contested divorce case is inadequate under any circumstances. For example, the minimum prescribed by the Minimum Fee Schedule of the Kentucky State Bar Association is $200. The trial court shall award a reasonable amount for this item after reconsidering and disposing of the alimony and property questions.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.


author: CULLEN, Commissioner.

text:
    Harry W. SCHNEIDER, as Mayor of the City of Covington, Kentucky, et al., Appellants, v. Wilbur WINK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    William B. O’Neal, Ralph P. Rich, Cov-ington, for appellants.
    Carl H. Ebert, Newport, Ky., for appel-lee.
   CULLEN, Commissioner.

The City of Covington has an ordinance providing for the licensing of automobile trailer parks. Wilbur Wink purchased a tract of land in the city and made application for a license for a trailer park. The board of commissioners of the city denied the application on the ground that the establishment of a trailer park at the location in question, “in consideration of physical installation, topography and density of population at said location, and for other good and sufficient considerations, would jeopardize the public health, safety, morals and welfare of the inhabitants of the City of Covington.”

Wink brought an action against the mayor and city commissioners alleging that the ordinance was unconstitutional and seeking an order of mandamus or a mandatory injunction directing that a license be issued to him. The court entered judgment holding the ordinance unconstitutional in part and ordering the issuance of a license. The city authorities have appealed.

The ordinance provides for the issuance of licenses by the board of commissioners, and with respect to the basis for determining whether a license shall be issued it states:

“ * * * it shall be the duty of the Board of Commissioners to consider the application and determine whether or not the granting of the license would jeopardize the public health, safety, morals and welfare of the inhabitants of the City of Coving-ton. And they shall further take into ■consideration the topography and density of the population of the location applicable in the particular case.”

It was the opinion of the trial court that the above quoted provisions of the ordinance did not prescribe sufficiently definite standards with which applicants must comply and by which the discretion of the board ■of commissioners would be controlled, with the result that the ordinance constituted an effort to vest absolute and arbitrary power in the board in violation of Section 2 of the Kentucky Constitution. The court relied •upon such cases as City of Monticello v. Bates, 169 Ky. 258, 183 S.W. 555; Commonwealth v. House, 177 Ky. 829, 198 S.W. 218; Slaughter v. Post, 214 Ky. 175, 282 S.W. 1091; City of Pineville v. Helton, 300 Ky. 170, 188 S.W.2d 101; and Turner v. Peters, Ky., 327 S.W.2d 958. It is our opinion that the trial court reached the correct decision under these cases.

The appellants maintain that the ordinance here in question, in mentioning the factors of “topography and density of the population of the location,” sets forth more definitive standards than the ordinances in the cases relied upon by the trial court and therefore should be upheld. However, in our opinion the mere direction that the board of commissioners shall “take into consideration” these factors supplies no actual standard at all, and adds nothing to the general direction that the board shall •determine what effect the granting of the license would have on public health, safety, morals and welfare, because the latter direction necessarily contemplates that the board will consider all factors that bear upon health, safety, morals and welfare. The ordinance does not suggest what weight shall be given to the factors of topography and density of population, or what features of topography or what extent of density of population shall be significant.

The appellants further contend that trailer parks by their nature require close regulation. However, it does not follow that the standards therefore may be loose. The cases relied upon by the appellants deal with the granting of administrative discretion as to details of regulation and they do not negative the proposition that reasonably definite standards are required as a framework upon which to rest the detailed regulations.

The appellants introduced evidence upon the trial with the design of showing that the location of a trailer park upon the property in question would create a fire hazard by reason of the lack of adequate streets leading to the property; that it would result in overcrowding the schools in the area; and would create an acute traffic congestion problem. They argue that this shows the trailer park would be a public nuisance, enjoinable by a court of equity; that the prayer by the appellee for an order of mandamus or a mandatory injunction was an appeal to the equity powers of the court; that the court should consider all of the equities of the case and not authorize in this action the carrying on of an activity that could be enjoined in another action; therefore the court should have made a finding as to whether the trailer park would be a nuisance and should have entered a judgment based upon that finding.

Without regard to the question of what may be the proper equity powers and duties of a court in this type of proceeding, the fact remains that there is no basis for a holding that inadequacy of streets leading to a particular parcel of property, or an overcrowding of schools by reason of the number of persons occupying the property can make the use of the property a public nuisance. There is nothing in the evidence in this case that would warrant a finding that the proposed trailer park would be a public nuisance within the established meaning of that term.

The judgment is affirmed.


author: HAMILTON, Justice.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Petitioner, v. E. L. CRUTCHFIELD et al., Respondents.
    No. A-7836.
    Supreme Court of Texas.
    Oct. 3, 1961.

      Walker, Day & Harris, Fort Worth, Joe Day, Jr., and Don E. Burdette, of above firm, Fort Worth, for petitioner.
    Whiteside & Baker, Ernest May, Fort Worth, for respondents.
   HAMILTON, Justice.

This is a suit on a fire insurance policy covering a three-room frame house located in Tarrant County, such policy having been issued by the petitioner, St. Paul Fire & Marine Insurance Company, to E. L. Crutchfield, one of the respondents, on November 25, 1954, in the amount of $4,000. Crutchfield and J. W. Selman, the other respondent, brought this suit against the petitioner alleging a total loss of the property in question and seeking to recover the full amount of the policy. The trial court rendered judgment non obstante veredicto that respondents E. L. Crutchfield and J. W. Sel-man take nothing. The Court of Civil Appeals reversed and rendered for respondents. 333 S.W.2d 203. We affirm the judgment of that court.

An understanding of the case necessitates setting forth the facts leading up to this suit in some detail. Because of the number of parties involved, they will hereafter be identified by name. E. L. Crutchfield acquired the property covered by the St. Paul policy and the premises on which it was located through a contract of sale entered into between him and a Mr. J. W. Bing on October 14, 1953. Prior to such date, Mr. Bing acquired the property from Mr. Sel-man, receiving a general warranty deed and executing a deed of trust to secure the balance of the indebtedness owed to Selman. This deed of trust specifically provided that Bing, as mortgagor, would keep the property fully insured. Evidently the purpose for which Bing acquired the property failed to materialize, for shortly after his purchase from Selman, Bing employed a Mr. J. A. Leddon, a local insurance and real estate businessman, as his agent to dispose of same. Through Leddon’s efforts the contract of sale between Bing and Crutch-field was consummated, with the contract providing for conveyance of the property by warranty deed “when total of $500.00 is paid on principal of purchase price.” Crutchfield also agreed to execute a second lien note “with deed of trust” for the difference in the sale price of approximately $680, which was to be paid to Bing at the rate of $10 per month beginning one year from the date of the contract. The record does not reflect that this note or deed of trust was ever executed by Crutchfield. Payments on the aforementioned obligations were made by Crutchfield in amounts of $30 and $40 per month to Leddon, who maintained a record thereof and distributed the payments to Bing and to Selman. It does not appear from the record that Led-don ever acted as Crutchfield’s agent.

The St. Paul Fire & Marine policy in question was obtained by Crutchfield on November 25, 1954, and Crutchfield was named therein as the principal insured. Selman was named as first mortgagee in the policy and Bing was named as second mortgagee, with a proviso that in case of loss payment was to be to all three “as their interests may appear at time of loss.” The term of the St. Paul policy was from November 25, 1954, to November 25, 1955.

On December 19,1953, without the knowledge of Crutchfield, Selman or Bing, Mr. Leddon had caused a policy of fire insurance, in the amount of $2,000 and covering the same three-room house, to be issued by the Service Fire Insurance Company for a three-year period ending December 19, 1956. The Service policy named Bing as the principal insured, with a loss payable clause protecting Selman’s interest. Attached to the policy is a sales contract clause stating the property is under contract of sale to Crutchfield and that any loss is payable to the parties as their interests may appear.

The St. Paul policy and the Service policy covered identical property, differing only in the amount of coverage. Both policies purported to be in force on January 14, 1955, the date of the fire. Both policies were on the Texas Standard Policy Form and contained the following provisions:

1. No other fire insurance is permitted unless the total amount, including this policy, * * * is inserted in [this policy]
2. This company shall not be liable for loss occurring: * * *
(e) While any stipulation or condition of this policy is being violated.

In each policy the total insurance shown to be in force on the property covered was the amount shown on the face of such policy.

The evidence in the record indicates that Crutchfield and Selman were unaware of the Service policy prior to the fire. Subsequent thereto they became aware of the Service policy, but refused to make any claim or join in any claim against the Service Insurance Company. Mr. Bing, however, insisted that the Service policy was the proper one to make claim under, and a dispute arose between Bing and Crutchfield over this issue, as well as over who owned title to the property and what contractual obligations remained for Crutchfield to establish his right to a deed. At this point, apparently agreeing that the loss was less than total, Mr. Bing filed a proof of loss with the Service Insurance Company and received $1,589.50, which was expended on repairs to the house.

The disagreement between Bing and Crutchfield eventually resulted in a trespass to try title suit, with joinder in the suit, of the action by Crutchfield and Sel-man against St. Paul Fire & Marine Insurance Company for total loss. In settlement of the trespass to try title action, it was agreed that Crutchfield and Selman would sever the house from the land and that Bing would move same to another tract as his personal property. In consideration therefor, Bing agreed to deed all his interest in the land to Crutchfield, which would leave title to the land in Crutchfield burdened only with Selman’s first lien. After this settlement was effected, the pleadings were altered so that all that remained was the present suit by Crutchfield and Selman against St. Paul for total loss.

On the trial of the case to a jury, St. Paul contended that only the Service policy issued by Mr. Leddon provided valid insurance on the house, in that the St. Paul policy never became effective due to the provision in such policy, made a condition thereof, that St. Paul would have no liability if there were other fire insurance on the identical property at the time of the fire. St. Paul also contended that the loss was less than total and that the Service policy had been ratified by Crutchfield and Selman. Neither Service Fire Insurance Company nor Mr. Bing was a party to this suit.

At the conclusion of the trial, a verdict was returned by the jury that the fire had resulted in a total loss; that as of the time of the loss neither Crutchfield nor Selman had any knowledge of “other insurance” on the property, nor had they authorized the purchase of “other insurance” or ratified a policy affording “other insurance” either before or after the time the loss occurred. Following this verdict a motion for judgment non obstante veredicto was made by St. Paul and granted by the trial court. Judgment was then entered that Crutchfield and Selman take nothing by their suit.

On appeal from that judgment, the action of the trial court was reversed and judgment was rendered by the Court of Civil Appeals against St. Paul in the amount of $3,400, with legal interest thereon from June 24,1955. The parties had conceded on appeal that Bing’s interest in the subject property on the date of the fire was $600 and that any recovery against St. Paul should be so reduced.

St. Paul contends there is no evidence to support the jury verdict that the loss was total. The statement of facts contains several pages of testimony devoted -to this subject. While the evidence may be conflicting, there was direct testimony by one or more witnesses who viewed the structure after the fire and who testified to the effect that the loss was total. The mere fact that some of the charred structure might have been used in new construction does not make the loss partial. Royal Insurance Company v. McIntyre, 90 Tex. 170, 37 S.W. 1068, 35 L.R.A. 672. We believe a jury issue on the question of total loss was properly raised, and, having been resolved against the petitioner, we find no reason to disturb the finding of the jury to that effect.

It is our holding that the Service policy obtained by Bing did not avoid the policy later obtained by Crutchfield in ignorance of the fact that he already had coverage. Automobile Ins. Co. v. Teague, Tex.Com.App., 37 S.W.2d 151; Baker v. Northern Assur. Co., Ltd., 214 Mich. 540, 183 N.W. 61. It was held in American Ins. Co. v. Kelley, Tex., 325 S.W.2d 370, that when each of two policies obtained by the insured_himself violates the concurrent insurance limitation contained in the other •contract, the second policy but not the first is unenforceable. Where, as here, the insured purchases insurance covering his interest without knowledge that he already has protection under a policy obtained by another who had no authority to act as his agent in that respect, it seems that the first policy rather than the second should be rendered unenforceable as to the interest of the insured. See Baker v. Northern Assur. Co., Ltd., supra. We hold that the Service policy is unenforceable as to Crutch-field, and that the St. Paul policy is unenforceable as to Bing.

Turning now to the question of Selman’s rights, St. Paul contends that he cannot recover on the St. Paul policy becarrse the Service policy was procured by Bing under a contractual arrangement with Selman. This contention does violence to the terms of the policy and the provisions of Article 6.15 of the Insurance Code, V.A. T.S. The statute provides that the interest of a mortgagee or trustee under any fire insurance contract shall not be invalidated by any act or neglect of the mortgagor or owner of the property. Each of the policies involved in this case contains a similar provision. The effect of such a stipulation is to create between the company and the mortgagee an independent contract which cannot be affected by any act of the mortgagor or owner of which the mortgagee is ignorant. The statute has no application, of course, where additional insurance is obtained by the mortgagor at the special instance and request of the mortgagee. Home Ins. Co. of New York v. Lake Dallas Gin Co., 127 Tex. 479, 93 S.W.2d 388. It is well settled, however, that the mortgagee’s right to recover on a policy issued for his benefit is not affected by the act of the mortgagor or subsequent purchaser in taking out a second policy without the knowledge or consent of the mortgagee. Camden Fire Ins. Ass’n v. Harold E. Clayton & Co., 117 Tex. 414, 6 S.W.2d 1029; Union Assur. Soc., Ltd. v. Equitable Trust Co., 127 Tex. 618, 94 S.W.2d 1151; British Amer. Assur. Co. v. Mid-Continent Life Ins. Co., Tex. Com.App., 37 S.W.2d 742. The courts of this and a majority of the other states agree, moreover, that the statute immunizes the mortgagee against the legal consequences of any act done by the mortgagor or owner either prior or subsequent to issuance of the policy in question. Georgia Home Ins. Co. v. Golden, 127 Tex. 93, 91 S.W.2d 695; Annotation, 97 A.L.R. 1165. Since Selman did not know that the Service policy had been purchased by Bing and has elected not to accept or adopt the same, we hold that the existence of such policy does not invalidate the contract between Selman and St. Paul.

Selman is, or at least was at the time of the fire, in the position of having two valid and enforceable contracts protecting his interest. Each policy provides that the company shall not be liable for a greater proportion of any loss than the amount thereby insured bears to the whole insurance covering the property. The next question to be considered then is whether petitioner is liable to Selman for the full amount unpaid on his encumbrance or only for its pro rata share thereof. In a case involving somewhat similar facts, the trial court held that the recovery in favor of the mortgagee should be apportioned between the two insurance companies in accordance with the policy provisions, and the Court of Civil Appeals affirmed. Union Assur. Soc., Ltd. v. Equitable Trust Co., Tex.Civ.App., 63 S.W.2d 869. Writ of error was granted by this court, but the apportionment question was not brought forward. The first insurer contended only that the entire loss should fall on the second. After pointing out that under the terms of the mortgage clause the rights of the mortgagees were not affected by the act of the owner in taking out a second policy, we said:

“It follows, therefore, that plaintiffs [mortgagees] were not required to look to the second policy, which was secured without their knowledge or consent, and which they did not elect to accept or adopt, even though it undertook to protect their interests, and they had a right to look to the Union Company for the payment of their loss. That Company, therefore, is in no position to complain of the judgment which-only held it liable for one half of the loss.” Union Assur. Soc., Ltd. v. Equitable Trust Co., 127 Tex. 618, 94 S.W.2d 1151, 1153.

The courts of other jurisdictions are not in agreement as to the effect of the apportionment clause on the rights of the mortgagee. See Annotations, 1 A.L.R. 498, 72 A.L.R. 278. Some have held that such provision is not part of the contract between the insurer and mortgagee and that the latter is not bound thereby. Duncan Building & Loan Ass’n v. Glens Falls Ins. Co., 11 N.J.Misc. 791, 168 A. 767; Reed v. St. Paul Fire & Marine Ins. Co., 67 Pa.Super. 110. Others have taken the position that proration is in order whenever two policies actually inure to the benefit of one party. Camden Fire Ins. Ass’n v. Sutherland, Tex. Com.App., 284 S.W. 927; Sun Ins. Office v. Varble, 103 Ky. 758, 46 S.W. 486, 41 L.R.A. 792; Lipsitz v. Union Ins. Soc., Ltd., 149 Mise. 809, 268 N.Y.S. 179; Federal Land Bank of Columbia v. Globe & Rutgers Fire Ins. Co., 187 N.C. 97, 121 S.E. 37; Goodman v. Quaker City Fire & Marine Ins. Co., 1 Cir., 254 F.2d 844; TriState Mut. Grain Dealers Fire Ins. Co. v. Morris, 9 Cir., 268 F.2d 956. Appleman feels that the decisions applying the apportionment rule reach an equitable result. Appleman, Insurance Law and Practice, Vol. 6, p. 289, Sec. 3909.

We have concluded that the mortgagee is not bound by the apportionment clause contained in the policy. Where a mortgagee is insured by two policies, and does not have actual knowledge of either of them until after the loss, he may recover on either one of the policies the full amount of his loss up to the policy limit. Selman, the mortgagee, having elected to sue on the St. Paul policy, is not required to look to the Service Company policy.

St. Paul contends that even though the Service policy was not “other insurance” as to Crutchfield and Selman at the time of the fire, that by selling the repaired house to Bing they had accepted benefits under the Service policy and by such conduct had ratified the Service policy, and that such ratification renders the Service policy “other insurance” as prohibited by the St. Paul policy.

St. Paul cites the case of Glens Falls Insurance Co. v. Jacobs, 227 Ky. 741, 13 S.W. 2d 1040, 76 A.L.R. 1170 (Annotation 76 A. L.R. 1170) and Continental Ins. Co. v. Riggs, 277 Ky. 361, 126 S.W.2d 853, 121 A.L.R. 1421 (Annotation 121 A.L.R. 1421). These cases recognize the rule that an insurance policy issued without the knowledge or consent of one asserting a claim under another policy prohibiting other insurance may be “other insurance” within the terms of the policy in suit if ratified by acceptance of benefits under such other policy. We do not disagree with this rule, but we are not satisfied that the action of Crutch-field and Selman in selling the house was such an acceptance of benefits under the Service policy as to amount to a ratification of the policy. It is true that Bing repaired the house and was paid for such repairs by the Service Fire Insurance Company, but the record reflects that such repairs were made over the protest of Crutch-field, and whatever Bing did to the house in the way of repairs was done as a mere volunteer in so far as Crutchfield was concerned. The act of selling said house does not amount to a ratification of the Service policy. At most it would amount to a conversion of the salvage to the insured’s own use and benefit. St. Paul is not here complaining about any loss of salvage. The Court of Civil Appeals, in its judgment, deducted from the face amount of the policy the amount for which Crutchfield sold the house, and none of the parties complain of such action.

The judgment of the Court of Civil Appeals is affirmed.


author: NORVELL, Justice.

text:
    MODERN WHOLESALE FLORIST, Petitioner, v. BRANIFF INTERNATIONAL AIRWAYS, INC., Respondent.
    No. A-8252.
    Supreme Court of Texas.
    Oct. 3, 1961.
    Rehearing Denied Nov. 1, 1961.

      Mayfield & Atkins, Fort Worth, for petitioner.
    Touchstone, Bernays & Johnston, Web-ber W. Beall, Jr., of above firm, Dallas, for respondent.
   NORVELL, Justice.

As stated by respondent “the actual question to be determined by this Court is whether airlines are subject to the common law presumption that damage to goods while in transit is presumed to have been caused by the terminal carrier.”

The existence of such common law presumption generally applicable to common carriers is not disputed. In Texas & Pacific Railway Co. v. Adams, 78 Tex. 372, 14 S.W. 666, 667, this Court said:

“When it is made to appear that freight transported by successive carriers has been damaged subsequent to its shipment, and the evidence fails to show on what particular line the injury occurred, there exists a presumption that it was through the fault of the last carrier.”

See also, Chicago & Northwestern Ry. Co. v. C. C. Whitnack, 1922, 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665; Conn v. Texas & New Orleans Ry Co., 1929, Tex.Com. App., 14 S.W.2d 1004, holdings approved by the Supreme Court; Brinthall v. Saratoga & Whitehall R. Co., 1860, 32 Vt. 665; Mitchell v. Carolina Central Ry. Co., 1899, 124 N.C. 236, 32 S.E. 671, 44 L.R.A. 515; Harper Furniture Co. v. Southern Express Co., 1907, 144 N.C. 639, 57 S.E. 458; Dietz v. Southern Pac. Ry. Co., 1930, 225 Mo.App. 39, 28 S.W.2d 395; Martin v. E. A. McCabe & Co., Fla.App. 1959, 113 So.2d 879; Loo-Mac Freight Lines, Inc. v. American Type Founders, Inc., 1959, 100 Ga.App. 203, 110 S.E.2d 566; 13 C.J.S. Carriers § 440c (3), p. 949; Annotation, 53 A.L.R. 1004. It should be noted that the presumption mentioned is a rebuttable one and is in no way dependent upon a statutory enactment.

It is the contention of the respondent that while the presumption recognized by Texas & Pacific Railway Co. v. Adams has application to most common carriers, it can in no way relate to air carriers because of tariff provisions adopted by respondent under the Federal Aviation Program. 49 U.S.C.A. § 1373(a).

The trial court and the Court of Civil Appeals were in accord with the respondent’s position. A summary judgment was rendered for the carrier which was affirmed by the Court of Civil Appeals. 342 S.W.2d 225.

These are the facts of the case. Two shipments of flowers were transported from California to Fort Worth, Texas. United Airways, Inc. (not a party hereto) carried the flowers from California to Denver, Colorado, and respondent, Braniff International Airways, Inc., transported the flowers from Denver to Fort Worth. It is undisputed that the flowers were delivered to United in good condition and properly packed. They were received in Fort Worth in poor condition — a 90% loss, and the owner, Modern Wholesale Florist, sued for damages. In response to a request for admissions under Rule 169, Texas Rules of Civil Procedure, the petitioner (plaintiff in the trial court) stated that it did not have within its knowledge sufficient information to ascertain at what time or place the damage to the shipment occurred.

The tariff relied upon by respondent was filed by Braniff with the Civil Aeronautics Board as provided for by the Federal Aviation Program (formerly Civil Aeronautics Act), 49 U.S.C.A. § 1373. It is designated as Airfreight Rules Tariff No. 1A, A.T.B. No. 9, C.A.B. No. 13, and the part here applicable is Rule No. 3.2, Exclusions from Liability, subd. (b) which reads as follows:

“The carrier shall not be liable for loss, damage, deterioration, destruction, theft, pilferage, delay, default, misdelivery, non-delivery, or any other result not caused by the actual negligence of itself, its agent, servant or representative, acting within the scope of their authority, or not occurring on its own line or in its own service, or for any act, default, negligence, failure or omission of any other carrier or any other transportation organization.”

We may for present purposes assume the validity of the tariff provision above quoted and accept such provision as a part of the contract of carriage between the parties. The question raised is whether or not this tariff provision abrogates or supersedes the common law presumption heretofore set forth.

The respondent basically relies upon Lichten v. Eastern Airlines, 2 Cir., 189 F.2d 939, 25 A.L.R.2d 1337. In that case it was held by the Court, with Judge Jerome Frank dissenting, that a tariff rule was valid which provided that the carrier should not be liable for the loss of jewelry included in a passenger’s baggage, but that the same would be carried only at the risk of the passenger. This holding was adopted over the argument that even in the absence of statutory provision (such as the Carmack Amendment of 1906) prohibiting such clauses, they were nevertheless invalid on the policy ground proscribing stipulations exempting the carrier from the results of its own negligence or that of its servants. See dissenting opinion by Frank, J., citing Hart v. Pennsylvania R. Co., 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717.

The Lichten case and those similar thereto, such as Mack v. Eastern Air Lines, Inc., D.C.Mass., 87 F.Supp. 113 and Killian v. Frontier Airlines, D.C.Wyo., 150 F.Supp. 17, do not reach the point which controls the disposition of this case.

In the authorities relied upon by respondent the question involved was whether a tariff provision adopted in accordance with federal statute controlled over a preexisting common law substantive doctrine of liability. An admitted conflict of rule was involved.

Here the question is whether there is a conflict between the tariff provision and the common law rule of adjective law which relates to the manner and method of proof,

We find no conflict. The tariff provision is that the carrier shall not be liable for loss or damage not occurring on its line nor caused by the negligence of its servant. There is no provision which controls the means or methods by which either the place of loss or the cause thereof may be established. Presumptions are not rendered unavailable. We would be loath to say that the presumption did not obtain in the absence of a clear and unequivocal statement to that effect contained in a tariff rule adopted in accordance with statutory authority. Presumptions abound in the law relating to carriers largely because of necessity. We must accept probabilities, unless they can be dispelled, because this is the best that can be done. In this case, the presumption consists of the statement of a probability, and once the probability be shown, there is no injustice in requiring the carrier to dispel it by going forward with the evidence. The fact that petitioner does not know where and how the damage occurred does not foreclose its demand for recovery. It is entitled to rely upon the presumption which is based upon a logical inference that the damage incurred was the fault of and occurred on the line of the terminal carrier, Texas & Pacific Ry. Co. v. Adams, 78 Tex. 372, 14 S.W. 666; Mitchell v. Stanton, Tex.Civ.App., 139 S.W. 1033, wr. ref., and authorities heretofore cited.

The contention that the trial court erred in refusing petitioner’s motion for summary judgment is not efficiently raised in this Court.

The judgments of the trial court and the Court of Civil Appeals are both reversed and this cause remanded to the district court for new trial.

On Motion for Rehearing.

We recognize the established doctrine that the rights and liabilities in respect to damage to goods moving in interstate commerce are controlled by Acts of Congress, agreements between the parties and common law principles accepted and enforced in the federal courts, but we have been cited to no federal case which holds that the common law presumption relating to terminal carriers has been abrogated by the adoption of the Federal Aviation Program, 49 U.S.C.A. § 1373. Such presumption is not a local Texas device but one that has general application throughout most common law jurisdictions. In the federal domain, it has been recognized and approved by the Supreme Court of the United States. In Chicago & Northwestern Ry. Co. v. C. C. Whitnack Produce Co., 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665, (cited in the original opinion), it was held that the terminal carrier presumption was not abrogated by the adoption of the Carmack amendment. We may paraphrase the language of that opinion and say that we find nothing in 49 U.S.C.A. § 1373 which indicates a legislative purpose to abrogate the accepted common law doctrine concerning the terminal carrier presumption.

The rationale of the presumption is stated in Hutchinson on Carriers § 1348 which was quoted with approval by the United States Supreme Court in the Whitnack case. It was said that:

“A connecting carrier, who has completed the transportation and delivered the goods to the consignee in a damaged condition or deficient in quantity, will be held liable in an action for the damage or deficiency, without proof that it was occasioned by his fault, unless he can show that he received them in the condition in which he has delivered them. The condition and quantity of the goods when they were delivered to the first of the connecting carriers, being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier completing the transportation and making the delivery to the consignee, and that the injury or loss occurred while they were in his possession.”

Respondent’s motion for rehearing is overruled.


author: McDonald, judge.

text:
    James Lee OWEN, Appellant, v. STATE of Texas, Appellee.
    No. 33821.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.

      Homero M. Lopez, Kingsville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the driving of a motor vehicle upon a public highway while intoxicated ; the punishment, a fine of $50 and 3 days in jail.

The state’s testimony reflects that appellant was driving an automobile approximately sixteen miles south of Falfurrias when a border patrolman, Andrew Wright, saw the car driven by appellant swerve to the right side of the line of traffic onto the shoulder and pull back into the line of traffic ; that he stopped appellant and he appeared unsteady on his feet; that, in his opinion, appellant was intoxicated. The state’s testimony further reflects that Glen Brothers, a highway patrolman, arrived some 45 minutes later; that appellant was asleep in his automobile and, upon being awakened, was unsteady on his feet and appeared to be intoxicated; that he agreed to take a blood test; that after such test a sample was properly traced to Roger Bickham, a chemist for the Texas Department of Public Safety.

Roger Bickham testified that he received the sample; that the analysis of the bloo.d specimen showed it contained .24% alcohol by weight; that a person having such a percent of alcohol in his blood would be, in his opinion, intoxicated; that the American Medical Association and the National Safety Council adopted the standard of .10% alcohol by weight as the percentage at which all individuals are intoxicated.

R. E. Haney, a witness called by appellant, testified that he had been with appellant from about 10 a. m. to 5 p.m.; that appellant left for Corpus Christi; that he was not intoxicated when he left.

Joe Reeves testified that he was a hunting companion of appellant in the Rio Grande Valley; that they left the hunting area around 5 p. m.; that appellant was not intoxicated or under the influence of intoxicating liquor.

Appellant testified that he and his companions hunted in the Rio Grande Valley; that he left around 5 p. m. for Corpus Christi; that he drank three or four bottles of beer on the day in question, but did not drink any beer after 5 p. m. He further testified that his car lights were getting dim and he was blinded and that such caused him to run ofif the shoulder of the road. He denied being intoxicated, and denied agreeing to the blood test.

The jury resolved the issue against appellant. We find the evidence sufficient to support the jury’s verdict.

All the contentions presented by appellant are attempted to be raised by informal bill of exception. The statement of facts is in narrative form. A bill in narrative form cannot be considered as an informal bill, under Sec. 2 of Art. 759a, Vernon’s Ann.C.C.P.; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712; Lee v. State, Tex.Cr.App. 334 S.W.2d 289; Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946.

Appellant presented a motion to quash the information. He also requested the court to submit certain affirmative defenses in his charge.

Neither the motion to quash nor the requested charges reflect that they were ever presented to the court or that the court acted on them, nor was any exception taken. Such cannot be considered as an informal bill under Art. 760e or Art. 759a, Vernon’s Ann.C.C.P.

We think the information substantially complies with the form set forth in Sec. 1111 of Willson’s Criminal Forms.

Finding no merit in any of the contentions advanced, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Ex parte Neal DANCER.
    Nos. 33578, 33595, 33596, 33607.
    Court of Criminal Appeals of Texas.
    June 21, 1961.
    Butler, Williams & Stone, by Roger Butler, Robstown, Coffee & Ritter, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

These original habeas corpus proceedings are consolidated and will be considered together. They embrace ten separate acts of direct contempt by the relator. It is unnecessary to relate the details other than to state that they occurred in the presence of the court during a jury trial of a criminal case in the district court in which the relator, an attorney, represented the accused, and at the time the court ordered a change of venue after a mistrial was declared.

The record in Cause No. 33,578 in this Court, shows that the relator, Saturday, May 13, 1961 was adjudged guilty of contempt of court and his punishment was assessed at a fine of $25. Relator refused to pay the fine, and upon adjournment of the court he was by the authority of a writ of commitment incarcerated in the jail in Bee County. Later that day relator was released from custody upon bail granted by this Court.

During the further progress of the trial, the relator was adjudged guilty of contempt for five separate acts on Monday, May 15 and for two separate acts on Tuesday, May 16 and his punishment was assessed at three days in jail and a fine of $100 for six of the acts and a fine of $100 for the other. By authority of seven writs of commitment issued May 16 on the seven foregoing adjudications of contempt, the relator was placed in jail Wednesday May 17, 1961. At this time there was no written order that the six jail terms be served consecutively.

Immediately before the relator was committed to jail on the seven writs, the court had declared a mistrial and dismissed the jury.

On Thursday, May 18, applications for release from the seven writs of commitment by writs of habeas corpus were presented to this Court by the relator. Two of said applications were set for hearing and bail set: one for an act which occurred Monday afternoon May IS, and shown by our cause No. 33,596 and the other act occurred Tuesday, May 16, which is shown by our cause No. 33,595. Afterward on May 18, the relator was released from custody. It is evident that at the time relator was released the officers were under the impression that bail had been allowed in all seven cases when in fact bail had been allowed in only two of the seven.

Following the order of mistrial, the court adjudged the relator guilty of contempt on two separate acts which occurred Wednesday, May 17 at the time the court on its own motion had ordered a change of venue in the case.

On Friday May 19, the court entered an order directing that the jail time imposed by the six judgments for acts which had occurred on Monday and Tuesday be served consecutively. Writs of commitment were then issued.

The writs of commitment issued May 19 were executed the same day by the arrest and incarceration of the relator in Nueces County. Shortly thereafter the relator was released on bail set by the written order of Judge Briggs in Nueces County setting hearing before this Court on Monday, May 22; and on that date this Court for the want of jurisdiction of Judge Briggs to make such order declined to hear it.

On Monday May 22, the court entered a judgment of contempt which was dated May 17 for acts occurring at the time of the change of venue. Commitment thereon was issued and executed by placing the relator in jail on Tuesday, May 23. He was released on bail later the same day by order of this Court upon this commitment and all others except those in Causes Nos. 33,578, 33,595, and 33,596. This shown by the record in our Cause No. 33,607.

Relator has paid all the fines assessed against him in the judgments, except the $25 assessed May 13, and one $100 fine on May 15 and another $100 fine assessed on May 16.

The seven judgments of conviction became final upon payment of the fines and precludes a review of those convictions. 5 Tex.Jur.2d 39, Sec. 19; Mayes v. State, 152 Tex.Cr.R. 430, 214 S.W.2d 791; Gates v. State, Tex.Cr.R.App., 332 S.W.2d 333.

The record sufficiently shows that the court was warranted in adjudging the relator guilty of contempt in the first three causes in which bail was granted by this Court. His confinement for the fines totaling $225 and costs in these cases was lawful. This amount is unsatisfied.

Relator insists that he has served all the jail time assessed as punishment in the judgments of contempt.

The court order of May 19, directing that the jail time imposed by the six judgments for acts occurring on Monday and Tuesday be served consecutively is ineffective. It is evident that the order came too late as the relator was serving the three day jail term assessed in each case when the order was entered.

By payment of the two $100 fines in the judgment for acts occurring after a mistrial was declared, said convictions became final. The two three day jail terms assessed were effectively cumulated. Thereafter relator was committed to jail and released later the same day by order of this Court. Therefore he has served one of the six days in jail as ordered by said judgment.

It is concluded that the judgment authorizes relator’s confinement in jail for 5 days and until the remaining $225 in fines and costs of court are satisfied.

The applications for the issuance of writs of habeas corpus in all of said causes are denied and the relator is remanded to custody.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Calvin PLACKER, Appellant, v. STATE of Texas, Appellee.
    No. 33606.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    No attorney on appeal for appellant.
    Charles J. Lieck, Jr., Dist. Atty., Harry A. Nass, Jr., and John G. Benavides, Asst.
    Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is indecent exposure to a minor child; the punishment, six years.

The state’s evidence was undisputed that, on the date alleged in the indictment, a man while seated in an automobile with the door open, near an elementary school in the city of San Antonio, exhibited his private parts and engaged in an act of masturbation in the view of three young girls who were seated some ten feet away.

Appellant was positively identified by the prosecuting witness, thirteen years of age, and by one of her companions, several days later at a police lineup and at the time of trial, as the man who had exposed his person to them. Upon being called as witnesses by the state, the prosecuting witness was also corroborated in her testimony, both as to her identification of appellant and his acts and conduct on the occasion in question, by a teacher at the school and three other girls including the two who were sitting with her.

Appellant, testifying as a witness in his own behalf, denied committing the acts and testified to a defense of alibi. Several character witnesses called by appellant testified that his general reputation for truth and veracity and for being a peaceable and law-abiding citizen was good.

The court submitted to the jury appellant’s defense of alibi, which was by them rejected. We find the evidence sufficient to sustain their verdict.

The record contains no formal bills or objections to the court’s charge and no brief has been filed on behalf of appellant.

We have examined the informal bills of exception and find no reversible error therein. Certain bills complain of the court’s action in refusing to permit appellant to show that he had been given a polygraph test and the results thereof. Under the holdings of this court, evidence of the results of a polygraph test is not admissible on behalf of either the state or the defendant. Peterson v. State, 157 Tex.Cr.R. 255, 247 S.W.2d 110, rehearing denied, 248 S.W.2d 130; Stockwell v. State, 164 Tex.Cr.R. 656, 301 S.W.2d 669, and Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ray Harvey HART, Appellant, v. STATE of Texas, Appellee.
    No. 33889.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the county court of Martin County for the offense of negligent homicide and his punishment was assessed at a fine of $1,500.

There is no statement of facts.

No notice of appeal was given at the term in which the motion for new trial was overruled by operation of law. Judgment was entered and the motion for new trial was filed on December 21, 1960 (that term of court expired on December 31, 1960). An amended motion for new trial was filed on January 9, 1961 (that term of court expired January 31, 1961). No notice of appeal was given until March 16, 1961.

The motion or amended motion for new trial must be determined within twenty days after filing, under Art. 755, C.C.P., Vernon’s Ann.C.C.P. art. 755; Brinkley v. State, Tex.Cr.App., 320 S.W.2d 855; Alter v. State, Tex.Cr.App., 344 S.W.2d 455.

No notice of appeal was given at the January term, 1961, of said court. Therefore the judgment became final upon the expiration of the January term. Notice of appeal during said term was requisite in order to confer jurisdiction of the appeal upon this court. Art. 827, Vernon’s Ann. C.C.P.; Woodard v. State, 163 Tex.Cr.R. 634, 295 S.W.2d 659.

The appeal is dismissed.


text:
    Michiel Nelson GOAD, Appellant, v. STATE of Texas, Appellee.
    No. 33742.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    Thomas C. Braly, Pampa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

The evidence was undisputed that on the night in question, the appellant, while operating his 1960 Ford pick-up upon a public highway, drove off the road and struck a tree. The accident occurred around 8:30 P.M., on what was referred to in the testimony as the Arnett-Canadian Highway. At the time of the collision, Jackson Wolfe, a sixteen-year-old boy, was riding with appellant and both parties were taken from the scene to the Hemphill County Hospital at Canadian. State Highway Patrolman Harvey De Harde testified that he observed and talked to appellant in the hospital after the accident; that at such time appellant talked incoherently, his eyes were dilated, his face flushed, and expressed his opinion that at such time appellant was under the influence of intoxicating beverages.

A blood specimen taken from appellant, with his consent, some three hours and forty-five minutes after the collision, upon being examined by Chemist Wayne Anderson, of the Texas Department of Public Safety, was shown to contain .13% alcohol by weight. Chemist Anderson testified that the Department of Public Safety uses the standards set up and adopted by the National Safety Council and the American Medical Association, in determining when a person is intoxicated by reason of a certain percentage of alcohol in his blood, and that such standards are divided into three zones. In the first zone, where the percent of alcohol in the blood is from 0 to .05, the person is not considered intoxicated. In the second zone, where the percent of alcohol is .05 to .10, the person may be intoxicated, and in the third zone, where the percent of alcohol is .10 or above, the person is considered intoxicated. Chemist Anderson further testified that the amount of alcohol in the blood stream of a person is reduced at the rate of .02% per hour and that a person who had not had a drink in four hours and whose blood tested .13%' alcohol, four hours earlier would have had an alcoholic concentration in the blood of .21%.

Appellant, testifying as a witness in his own behalf, admitted driving his pick-up truck upon the public highway on the night in question, admitted having drunk one beer, but denied that he was intoxicated.

We are unable to agree with appellant that the evidence is insufficient to support the conviction.

The evidence clearly shows that appellant drove his motor vehicle upon a public highway on the date alleged.

Appellant’s contention that venue was not proved was raised for the first time after verdict, and this court will presume that venue was proved. Art. 847, Vernon’s Ann. C.C.P., Masters v. State, 165 Tex.Cr.R. 303, 306 S.W.2d 355; Doyle v. State, Tex.Cr.App. 329 S.W.2d 286; and Carpenter v. State, Tex.Cr.App. 333 S.W.2d 391.

The evidence is also sufficient to show that on the occasion in question appellant was under the influence of intoxicating liquor. The facts in the instant case are different from those in Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, cited by appellant, where the only evidence of intoxication of the accused was the opinion of a highway patrolman who observed him in the hospital where he was being treated for injuries sustained in an accident.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Walker T. ANDERS, Appellant, v. STATE of Texas, Appellee.
    No. 33818.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.
    Raeburn Norris, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft by false pretext; the punishment, two years.

The indictment alleged the fraudulent taking of an automobile of a value in excess of $50, from the possession of the owner, without his consent, with the intent to deprive the owner of its value and to appropriate it to his own use and benefit.

The record contains no statement of facts.

The sole contention on appeal is that the indictment is fatally defective in that it attempts to allege theft by false pretext and fails to allege that the defendant did appropriate the automobile. We do not agree.

The indictment is in the ordinary form for charging felony theft, and alleged that the automobile was taken without the owner’s consent. It is well settled that a conviction for theft by false pretext can be had upon such an indictment. 41-A Tex. Jur. 149, Sec. 158; Branch’s Ann.P.C. 2d, Vol. 5, Sec. 2680, page 126; Gibbs v. State, 158 Tex.Cr.R. 145, 253 S.W.2d 1002; Redding v. State, 159 Tex.Cr.R. 535, 265 S.W. 2d 811; King v. State, 165 Tex.Cr.R. 432, 308 S.W.2d 40; Mount v. State, 167 Tex. Cr.R. 7, 317 S.W.2d 212; Richardson v. State, Tex.Cr.App., 332 S.W.2d 736; Dinsmore v. State, Tex.Cr.App., 335 S.W.2d 612.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Willie Auguster MEREDITH, Appellant, v. STATE of Texas, Appellee.
    No. 33674.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.
    Richard Grainger, Tyler, for appellant.
    Weldon Holcomb, Dist. Atty.,R. S. Bur-russ, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is indecent exposure to a child, as defined in Article 535c, Vernon’s Ann.P.C.; the punishment, five years.

Mrs. Patsy Sanford, mother of the female child named in the indictment, testified that she was hanging clothes out to dry at her home some 16 miles out in the country when appellant drove his automobile into her driveway, got out of the car and walked into her yard; that she came around to the front of the house with her two children, a boy aged two and Sandra Kay aged three, following her as they usually did when someone came to their house; that appellant asked her where some people lived whom she did not know, and that he then took out his private parts in view of the children and asked her where he could obtain sexual gratification. She stated that she told appellant to leave and threatened to go into the house and get a gun; that he told her if she did he would force her to commit an act of sodomy upon him; that she then ran past the children, who had observed appellant’s conduct and heard his remarks, and into the house; and that appellant jumped into his automobile and left the premises at a great rate of speed.

Mr. Houston Lowe testified that he lived some 100 yards away from the Sanford home and saw appellant on the day in question drive into the Sanford driveway and get out and talk with Mrs. Sanford. He stated that he continued his work of painting a table until he heard a woman scream and that he looked up and saw Mrs. Sanford leave the yard and go into her house jind saw appellant whirl around, get into his car and speed away.

The State introduced into evidence appellant’s confession made the day following the alleged act of indecent exposure which corroborated Mrs. Sanford’s testimony that appellant exposed himself to her and her two children.

Appellant, testifying in his own behalf, admitted that he conversed with Mrs. Sanford and asked her if she knew where some people lived, but he denied exposing himself to Mrs. Sanford and her children, denied making the obscene remarks, and contended that he did not voluntarily make the confession.

The jury resolved the disputed issues against appellant. We will discuss the contentions advanced by counsel in brief and argument.

He first contends that the evidence is insufficient to sustain a conviction under Article 535c, V.A.P.C., which reads as follows:

“It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years.”

in that appellant’s actions were directed toward Mrs. Sanford, and not Sandra Kay, a child under the age of sixteen years.

Mrs. Sanford’s testimony and the appellant’s confession reflect that Sandra Kay was present and observed appellant when he exposed himself and made the lewd statements, and this evidence is sufficient to show that appellant knowingly and intentionally exposed his genitals to Sandra Kay. Appellant’s lascivious intent can be inferred from his conduct of intentionally exposing his private parts to a 3-year-old female child and from his obscene and indecent remarks accompanying such conduct, and we find the evidence sufficient to support a conviction under Article 535c, supra.

Appellant next complains that the trial court erred in refusing his. motion for continuance because of the absence of a material witness.

The record shows that this cause was set for trial on January 23, 1961, at which time appellant announced ready for trial and filed his application for suspended sentence. The jury was selected, and the trial began on January 24, 1961, and it was not until this date that appellant filed his application for subpoena of the witness. These facts show that appellant did not use due diligence in procuring attendance of the absent witness, and the court was not in error in refusing his motion. Jones v. State, 115 Tex. Cr.R. 60, 29 S.W.2d 791, and Fino v. State, 137 Tex.Cr.R. 340, 129 S.W.2d 652.

We have examined all of appellant’s complaints with great care, and, no reversible error appearing, the judgment is affirmed.


text:
    Juan Cantu ARRISOLA, Appellant, v. STATE of Texas, Appellee.
    No. 33772.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the offense of indecent fondling a child’s sexual parts; the punishment, ten years.

The prosecutrix, ten years of age, lived with her mother and two younger brothers in the City of San Angelo.

She testified that on the night in question, she was at her home alone, and after studying her lessons, she went to bed and went to sleep; that later she awakened and discovered that the appellant was in bed with her; that at such time appellant was in his underwear and was taking off her clothes; that appellant proceeded to get on top of her and when she tried to get away, appellant admonished her not to try and told her not to “holler” because he was going to tie her mouth. She stated that appellant then put his hand between her legs, rubbed her privates and then put his finger in her private parts; that he got on top of her and with his privates exposed, hugged her. She testified that appellant then went to sleep and later when her mother came home, from work, she told her what had happened and the police were called.

The prosecutrix’s mother, upon being called as a witness, corroborated her testimony relative to her coming home, finding appellant asleep in the bed and upon being told by the prosecutrix what had happened, calling the police.

It was further shown that after the police came to the house and, finding appellant in the bed in his underwear, had placed him under arrest, the prosecutrix was taken to a hospital where she was examined by a' physician. The examination of her private parts revealed a laceration at the anterior portion of the vulva or external orifice.

Appellant, testifying as a witness in his own behalf, admitted going to the home of the prosecutrix on the night in question, entering the house, going to bed and to sleep, but denied seeing the prosecutrix or in any manner touching her. Appellant explained his presence in the home by testifying that for some time he had been going to the house and sleeping with the prosecutrix’s mother.

The jury chose to accept the testimony of the prosecuting witnesses and reject that of appellant and we find the evidence sufficient to sustain their verdict.

There are no formal bills of exception and no brief has been filed on behalf of appellant.

Appellant made certain objections to the court’s charge and presented to the court a special requested charge. The court, in response to the objections and requested charge, modified the main charge and no further objections or exceptions are shown to have been made by appellant. If appellant was not satisfied with the charge after it was amended, it was incumbent upon him to file further obj ections thereto. Having failed to do so, any objections, to the amended charge, were waived. Jennings v. State, 121 Tex.Cr.R. 384, 51 S.W.2d 341; Tucker v. State, 141 Tex.Cr.R. 428, 148 S.W.2d 1111; McCutcheon v. State, 158 Tex.Cr.R. 419, 252 S.W.2d 175.

We have examined the charge as given and find no fundamental error therein.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Rudy GONZALES, Appellant, v. STATE of Texas, Appellee.
    No. 33749.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    Wayne Basden, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 50 years.

The statement of facts reflects that Herman L. Curtis was killed when two .22 caliber rifle bullets were fired into his chest while he was operating a service station.

Appellant’s confession was introduced into evidence by the State which recites that on the date in question he drove his car to the home of Alfred and Ramon Gonzalez; that Alfred asked him to take them to a filling station and he replied that he would; that Alfred went into the house. and came out with a .22 caliber automatic rifle; that he asked what Alfred was going to do with the gun and Alfred said he did not need to know what he was going to do; that Alfred and Ramon got into the car and he drove them a block past the service station; that Ramon ran around the front of the station and Alfred, with the rifle in his hand, ran behind the station; that he heard two shots and then saw Ramon and Alfred running toward the car; that Alfred still had the .22 caliber rifle in his hand and said, “Let’s go”; that he took Alfred and Ramon to their house; that he asked Alfred why he shot the man and was told because the man would not give up his money; that when Alfred and Ramon got out of his car at the service station with the rifle he knew they were going to rob the service station; and that he expected to get his part of the money that Alfred and Ramon were going to get in the robbery.

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

Two questions are presented for review.

Appellant contends that the evidence is insufficient to sustain his conviction as a principal to the murder.

The evidence shows that appellant knew that his companions were going to rob the service station operator when they got out of his car, that he waited nearby to carry them to safety, and that he expected to share in the fruits of the robbery.

The deceased was murdered during the existence of and in the furtherance of the common design of appellant and his companions to commit robbery by using a loaded rifle, and the killing was a natural and probable consequence of such common plan and design. Appellant was present at the commission of the offense in the sense that “present” is used in Articles 66 and 69, Vernon’s Ann.P.C., and we find the evidence sufficient to sustain the conviction. Stubblefield v. State, Tex.Cr.App., 334 S.W. 2d 150; White v. State, 154 Tex.Cr.R. 489, 228 S.W.2d 165; and Hill v. State, 135 Tex.Cr.R. 567, 121 S.W.2d 996.

Appellant next contends that the confession contained exculpatory statements in that it shows that when Alfred and Ramon Gonzalez first entered appellant’s car he was told that he need not know what they were going to do and that the trial court erred in failing to instruct the jury that the confession must be taken as a whole and that the State must disprove the exculpatory matters.

Appellant’s confession also states that at the time Alfred and Ramon got out of his car near the service station he knew they intended to rob the station operator and he expected to get his share of the money; therefore the confession as a whole shows that there were no exculpatory statements which would demand appellant’s requested charge. Querner v. State, 127 Tex.Cr.R. 410, 76 S.W.2d 520, and Anderson v. State, 71 Tex.Cr.R. 27, 159 S.W. 847.

No reversible error appearing, the judgment is affirmed.


text:
    Robert McGEE, Appellant, v. STATE of Texas, Appellee.
    No. 33448.
    Court of Criminal Appeals of Texas.

      Oct. 2, 1961.
    Justice, Justice & Kugle, Athens, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $100.

The complaint and information were filed on September 7, 1960, and judgment was rendered upon appellant’s plea of guilty on December 12, 1960.

Appellant filed motion for new trial alleging that he was denied due process of law in that he was not given sufficient time to procure the services of counsel to represent him.

The overruling of the motion for new trial is the sole ground upon which reversal is sought.

In the absence of a bill of exception, the point relied upon does not appear to be before us for review. Gallien v. State, 164 Tex.Cr.R. 622, 301 S.W.2d 674.

The judgment is affirmed.


text:
    Walter Jesse SIDDALL, Appellant, v. STATE of Texas, Appellee.
    No. 33717.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.
    Joe Lee McLemore, Robert C. Benavides, Dallas (on appeal), for appellant.
    Henry Wade, Dist. Atty., George Milner, Jr., and Phil Burleson, Asst. Dist. Attys, Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of driving while intoxicated and his punishment assessed at ten days in jail and a fine of $200. Trial was had before the court on appellant’s plea of not guilty.

The state’s evidence shows that appellant, driving a truck, had an accident with a car; that when the investigating officer arrived at the scene, appellant had a “strong odor of alcohol and he swayed as he leaned up against the truck- — he had no support for his feet” and had “slurred speech” and “staggering walk” and a “red flushed face”; that, in the officer’s opinion, appellant was intoxicated; that he submitted to a blood test which showed an alcohol concentration of 0.192 per cent and that such would mean that appellant was intoxicated.

Appellant admitted the accident and driving the truck and that he had “taken two little drinks” before the accident but denied that he was intoxicated. He called two witnesses, who testified that he was not intoxicated prior to the accident.

■As trier of the facts, the trial judge resolved the conflict against appellant and found him guilty. The evidence is sufficient to support the trial court’s judgment.

Appellant’s sole complaint on appeal is that the trial court erred in taking into consideration his prior convictions, in as-, sessing punishment.

Appellant relies upon formal bill of exception # 1 to show this alleged error.

This bill of exception consists only of the facts leading up to the filing of the amended motion for new trial, and states as follows :

“Be It Further Remembered that at due and proper time the defendant filed his Amended Motion for a New Trial * * * >>

The amended motion is set out in full in the bill. The trial court overruled said motion and the bill was signed, without qualifications, by the trial judge.

It appears to be appellant’s position that the language in the amended motion for new trial, which is in the formal bill of exception, proves itself and is true.

The mere incorporation of the alleged grounds for new trial in the bill of exception, not verified as facts by the trial judge, presents no error. Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301; Mayse v. State, 156 Tex.Cr.R. 360, 242 S.W.2d 371; Cox v. State, 157 Tex.Cr.R. 51, 246 S.W.2d 474.

A bill of exception which merely states the grounds of objection to introduction of evidence concerning prior convictions, without any certificate from the court that the facts forming the b'asis of objection were true, presents no question for review on appeal. Cox v. State, supra; Ellithorpe v. State, Tex.Cr.App., 320 S.W.2d 350.

The allegation in motion for new trial is not any evidence of the facts therein charged. Baeza v. State, 151 Tex.Cr.R. 573, 210 S.W.2d 163; Cartwright v. State, 158 Tex.Cr.R. 344, 255 S.W.2d 878.

A bill of exception simply complaining of the overruling of appellant’s motion for new trial, without further showing error, calls for no consideration. Alexander v. State, 131 Tex.Cr.R. 568, 101 S.W.2d 568.

There is no showing in this record that the trial court did in fact base the penalty upon appellant’s record. To the contrary, the statement of facts filed herein shows that appellant’s own counsel brought out the fact that appellant had been charged heretofore with driving while intoxicated, and, on cross-examination without objection, that appellant had pleaded guilty to said offense on August 6, 1958, and further that he was not given a “test” for the “same offense” back in July (5), 1951. Therefore even if the trial court did in fact take into consideration appellant’s past record, he could have done so without committing error.

Finding no reversible error, the judgment is affirmed.


author: PER CURIAM.

text:
    Willie James COOPER, Appellant, v. STATE of Texas, Appellee.
    No. 31224.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1959.
    Kouri & Banner, by Philip S. Kouri, Wichita Falls, for appellant.
    Clyde Suddath, County Atty., Henrietta, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

This is an appeal from a conviction for certain misdemeanor offenses with punishment assessed at 36 months in jail and a fine of $200.

The record reflects that appellant’s trial was at the February term of the County Court which convened on February 2, 1959 and adjourned on April 5, 1959. Appellant’s motion in arrest of judgment was overruled on April 2, 1959, at which time he gave notice of appeal.

It appears from the transcript that the recognizance on appeal was entered into on April 8, 1959, which was after the term of court at which this cause was tried had expired.

A recognizance entered into after the expiration of the term at which the case was tried is insufficient to confer jurisdiction on this court.

The appeal is dismissed.


text:
    Jose AMAYA, Appellant, v. STATE of Texas, Appellee.
    No. 33569.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.

      George Rodriguez, El Paso, for appellant.
    William E. Clayton, Former Dist. Atty., Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, and Oscar G. Galvan, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marihuana; the punishment, two years.

The testimony of the state shows that about 7 p. m. four police officers observed the appellant and two companions leave a tavern and enter appellant’s car which he drove to his residence and entered. The officers continued their surveillance. After about 30 minutes, the appellant and his companions left the house and appellant drove his car without lights for about one block. Later, when appellant failed to observe a stop sign, two of the officers stopped him. The officers saw a tobacco can on the front seat of the car near where appellant had been seated which they seized. The two officers returned with the appellant to his house where the other two officers had remained. The officers then executed a search warrant which they had for appellant’s house. They found a sack under the seat of a kiddie tractor about 20 or 25 feet from appellant’s house in his back yard.

It was stipulated that the tobacco can contained 42 grams and the sack 189 grams of a plant substance; and that a chemist of the Department of Public Safety examined the substances and would testify that they were marihuána.

The written statement signed by the appellant was introduced in evidence. It recited that he liked to smoke marihuana and usually kept some at home; and that the marihuana found in his back yard belonged to him, but denied that the marihuana in the car was his.

Appellant called one of his companions as a witness and he testified that he was riding in appellant’s car when the officers apprehended them. He stated that he had never seen the tobacco can until one of the officers asked him about it after they had returned to appellant’s house; and that he first saw the sack when the officers weighed it. H§ further testified that appellant obeyed alj stop signs before the officers stopped them.

The wife of the appellant testified that he came home about 7 p. m. and soon left to take one of his companions home. She stated that shortly thereafter the officers came with a search warrant and searched the house and yard. She further stated that she had never seen the tobacco can pr the sack until the officers showed them to her.

The appellant, testifying in his own behalf, stated that he drove his car to his home to eat supper and then left to take his companion home; that the car lights were on at all times and that he obeyed all stop signs. He denied having any knowledge of the tobacco can or the sack under the tractor until the officers showed them to him. He admitted signing the statement but denied ever having anything to do with marihuana or knowing anything about the marihuana mentioned therein, and said he signed the statement because the officers threatened to put his wife in jail and place his children on “welfare”.

The voluntary character of the written statement was submitted to the jury.

The evidence is sufficient to sustain the conviction.

Appellant insists that the trial court erred in refusing to grant his motion for a mistrial on the ground that certain testimony left the impression with the jury that he had before been engaged in similar transactions.

The testimony complained of occurred during the examination of Officer Krieger by appellant’s counsel about the making of appellant’s written statement. The record shows the following:

“Q. During all that hour you heard nothing about his wife being mentioned? That wasn’t mentioned? A. No, the man brought up his past times he has been caught and—
“Appellant’s Counsel: Object to that, if the Court please, and ask for a mistrial at this time on that ground.
“The Court: All right. The objection will be sustained, but your motion will be overruled. Ladies and Gentlemen of the Jury, you will not consider that for any purpose whatsoever.
‘Appellant’s Counsel: Note my exception.
“Q. You were talking there for an hour isn’t that right? A. That’t what I am getting at. We talked continuously about things of his past.
“Appellant’s Counsel: That’s all.”

The objection, although too general, to Officer Krieger’s first reference to appellant’s past was sustained and the jury was instructed not to consider it for any purpose. Immediately following, Officer Krieger again referred to “things of his (appellant’s) past”, and no objecti'on was made thereto or a request that such references be excluded, or the jury instructed not to consider it. The minimum punishment was assessed. The refusal of the motion for a mistrial was not error.

It is contended that the admission in evidence of appellant’s written statement was error on the ground it was involuntarily made.

The testimony of Officer Nava, to whom the written statement was made, and of Officer Krieger, who was present when it was made and signed, that the appellant voluntarily made and signed it authorizes its admission in evidence. No error is presented. Knight v. State, 157 Tex.Cr.R. 619, 252 S.W.2d 170.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James DAVIS, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 33706.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.

      W. E. Martin, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, and Edward D. Michalek, Jr., Asst. Dist. Attys., Houston, and Leon
    B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is aggravated assault; the punishment, 270 days in jail and a fine of $500.

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

By Bill of Exception No. 1 it is certified that prior to announcing ready for trial, appellant filed a motion for severance, duly verified, praying that one C. L. Jones who then stood charged by information with an offense of aggravated assault growing out of the same transaction as that charged against appellant, be first tried. Said motion was by the Court overruled with an exception reserved by appellant.

The motion complied with the statutory prerequisites of Art. 651, Vernon’s Ann. C.C.P. and should have been by the Court sustained. See Nichols v. State, 149 Tex. Cr.R. 530, 196 S.W.2d 925 and Chapa v. State, 164 Tex.Cr.R. 554, 301 S.W.2d 127.

For the error in overruling the motion for severance, which error the State concedes in its brief, the judgment is reversed and the cause remanded.

Opinion approved by the court.


text:
    James GREEN, Appellant, v. STATE of Texas, Appellee.
    No. 33615.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    Peter P. Cheswick, Houston, for appellant.
    Frank Briscoe, Dist. Atty., and Carl E. F. Dally and Donald M. Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault on an officer; the punishment, 60 days in jail and a fine of $50.

The complaint and information alleged that appellant made an assault upon R. E. Brumbley, a police officer of the City of Houston, who was in the lawful discharge of the duties of his office, which fact was well known to appellant.

The evidence from the standpoint of the state shows that Officer Brumbley, of the Juvenile Division of the Houston Police, went to a dance hall and beer tavern shortly before midnight, with agents of the Texas Liquor Control Board and other officers. There had been a disturbance outside the tavern and they assisted two “auxiliary deputy constables”, who were employed at the tavern, in apprehending one of three men who had been involved in the disturbance.

There were some ISO people in the place, many of whom were young people. A number of those present were drinking and appeared to be intoxicated.'

An inspector for the Texas Liquor Control Board, through the public address system, identified himself and his companions as officers and asked that those present remain seated until they could check their identification.

After Officer Brumbley had taken into custody three persons, appellant walked by “in a staggering manner laughing loud and boisterous — .” Officer Brumbley approached him, identified himself as a police officer for the City of Houston and exhibited his identification certificate and asked appellant for his identification.

Appellant turned and walked off. Officer Brumbley approached him a second time and again asked appellant for his identification, and again told him he was a police officer.

Appellant again started to walk away and as he did so Officer Brumbley “caught hold of his right arm * * * he spun around and struck me on the left side, hit me with his left hand.”

A scuffle ensued in which the appellant grabbed the night stick away from the officer while they were “tussling and struggling with one another and he was grabbing my clothing — I was trying to get him in position so I could handcuff him.” With the assistance of other officers, the appellant was subdued and taken to the police station.

Appellant testified that he went outside when a fight was going on and did not hear the announcement over the public address system; that he entered the building and passed the officers. “I had taken three, four or five steps and the officer * * * hollered telling me to get back out and waving a club and a gun in on me * * * and hit me on the head.” He testified that he did not know the man was an officer— that he was only trying to get away; that he did not drink and was not under the influence of alcohol or of narcotics; that no officer “stopped me or showed me identification or nothing”; that he did not hit anybody.

There are no formal or informal bills of exception.

The jury resolved the fact issues in favor of the state, and the evidence is deemed sufficient to sustain the conviction.

Appellant cites and relies upon Crow v. State, 152 Tex. Cr.R. 586, 216 S.W.2d 201. He apparently overlooked the fact that the holding therein was overruled in Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200.

The judgment is affirmed.


text:
    Pat WALKER, Appellant, v. STATE of Texas, Appellee.
    No. 33736.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.

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

This is a prosecution originating in the County Court of San Jacinto County. The offense is drunkenness in a public place, as defined in Article 477, V.A.P.C.; the punishment, a fine of $100.

Lewis Woodruff, Sheriff of San Jacinto County, testified that he found appellant asleep in his automobile in the bar ditch along U. S. Highway 190; that apparently the car had gone off the edge of a culvert while appellant was attempting to make a right turn off the highway; that he found an opened beer can that had turned over in the car and spilled its contents on the floorboard; and that there were two unopened cans of beer in the automobile. He stated that he had known appellant for 18 years and was familiar with his normal speech and walk; that on this occasion appellant smelled of alcoholic beverages, spoke unusually loud, was very unsteady on his feet, and was, in his opinion, intoxicated.

Lee Walker testified that he was a constable in San Jacinto County; that he saw appellant asleep on the front seat of his automobile in the ditch on the highway; that he saw Sheriff Woodruff throw one beer can out of appellant’s car and take two unopened cans from the car; that he had known appellant for 30 years; that appellant was talking loudly and was, in his opinion, intoxicated.

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

Two questions are presented for review.

Appellant advances several grounds on which he alleges that the jury was illegally impaneled and contends that the trial court erred in overruling his motion to quash the jury panel.

Articles 641 and 608, V.A.C.C.P., provide that either party may challenge the array only on the ground that the officer summoning has wilfully summoned jurors with a view to securing a conviction or an acquittal ; all such challenges must be in writing and, when made by the defendant, must be supported by his affidavit or the affidavit of any credible person; and these articles are not applicable when the jurors have been selected by jury commissioners.

In this case, the motion to quash is not sworn to by appellant or any credible person; the jurors were selected by jury commissioners and appellant does not contend that the commissioners acted corruptly, thus no error is shown. Aaron v. State, 161 Tex.Cr.R. 156, 275 S.W.2d 693, and Jones v. State, Tex.Cr.App., 219 S.W.2d 463.

Appellant next contends that the evidence is insufficient to sustain a conviction under Article 477, V.A.P.C., in that the evidence shows that he was not in a public place.

This Court has held that public streets and highways are public places under Article 477, V.A.P.C., Byrom v. State, 126 Tex.Cr.R. 640, 73 S.W.2d 854, and Jones v. State, 60 Tex.Cr.R. 56, 130 S.W. 1001, and we find the evidence sufficient to sustain the conviction in this case.

No reversible error appearing, the judgment is affirmed.


text:
    Thomas Francis TRACEY, Appellant, v. STATE of Texas, Appellee.
    No. 33646.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    Leland D. Sutton, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The evidence from the standpoint of the State sustains the jury’s finding that appellant drove an automobile on Arnold Boulevard, inside Dyess Air Force Base, in Taylor County, Texas.

The question for our decision is whether said Boulevard was a public road, street or highway. If so, the judgment should be affirmed. If not, the conviction must be reversed for insufficient evidence.

The court instructed the jury that a public highway, as used in the court’s charge, “means a highway that was open on the date in question for use and traveled by the public.”

The evidence shows that Arnold Boulevard was open and was traveled by the public on the date appellant drove thereon while intoxicated, though the evidence further shows that Dyess Air Force Base was fenced; the Boulevard was built by the government; there were gates which at times were closed and the Base Commander and those under his command were responsible for the controlling of vehicular traffic on its roads and could and would, at times in their discretion, obstruct all entrances and bar admittance to anyone that wanted to enter.

In Nichols v. State, 120 Tex.Cr.R. 219, 49 S.W.2d 783, 784, we said: “it would be intolerable to think that when investigating the criminal liability of the drunken driver of an automobile on a roadway, more or greater proof would be required to establish the character of the road, than that it was or is open for the use, or used by the public for traffic,”

In Baisden v. State, 125 Tex.Cr.R. 480, 68 S.W.2d 1044, the collision occurred on a highway which was under construction, gates having been built across it. The gates had been opened by the construction company and the highway was being used by the public. Citing Nichols v. State, supra, it was held that the collision occurred on a public highway

In Thurman v. State, 167 Tex.Cr.R. 21, 317 S.W.2d 737, we held that a by-pass road under construction, closed to through traffic but being used by persons other than the contractor and the Highway Department, was a public road.

In Brown v. State, 163 Tex.Cr.R. 170, 289 S.W.2d 942, we held that the portion of the beach used for traffic was a public road under Art. 802, Vernon’s Ann.P.C.

In McCreary v. State, 165 Tex.Cr.R. 436, 307 S.W.2d 948, we held that an unfinished area of a freeway being used by the public in general, though not designated and opened by the city, was a public highway within the meaning of Art. 802, V.A.P.C. In Salazar v. State, 161 Tex.Cr.R. 98, 275 S.W.2d 112, we held that a toll bridge which was open to the use of and was being used by the public as a highway and thoroughfare was a public road within the statute prohibiting drunken driving.

O’Sullivan v. Brown, 5 Cir., 171 F.2d 199, cited by appellant, may be distinguished by the fact that to enter the premises there in question one of the general public must arrange for a pass from the building manager or the Army personnel in charge, and once inside the grounds, the visitor is under military escort.

In the recent case of United States v. Barner, D.C.Cal.1961, 195 F.Supp. 103, the roadways on McClellan Air Force Base in California were held to be highways under the State Statute defining drunken driving. 81 S.Ct. — No. 15, Judicial Highlights.

The judgment is affirmed.