author: MILLIKEN, Judge. BIRD, Judge

text:
    Robert F. MATTHEWS, Jr., Commissioner of Finance, Commonwealth of Kentucky, Appellant, v. Charles M. ALLEN, Circuit Judge, 30th Judicial District, et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Concurring Opinion July 17, 1962.
    As Modified on Denial of Rehearing Oct. 5, 1962.

      John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellant.
    James W. Stites, Sr., Louisville, Ben B. Fowler, Frankfort, for appellees.
   MILLIKEN, Judge.

This action brings before the Court the provisions of Section One of an Act of the 1962 General Assembly, known as House Bill No. 65, which is to become effective July 1, 1962, and which in all practical effect raises the salary of Circuit Judges from $8,-400 a year to $10,800, $2,400 over the dollar limit stated in Section 246 of the Constitution.

The provisions of Section One are simple. All Circuit Judges are constituted special commissioners of the Court of Appeals, and are directed to perform such duties as may be required of them by the Court of Appeals. These duties are to be performed at such times and places, coextensive with the Commonwealth, as may be required by this Court. As compensation for these additional services each such special commissioner is to be paid the sum of $2,400 per annum from the State Treasury, which is in addition to his salary as Circuit Judge. In the event any Judge fails to perform duties assigned to him as special commissioner, the Act directs the Court of Appeals to forthwith remove him from the office of special commissioner. The appellees are Circuit Judges who obtained judgment in a declaratory judgment action which directed the appellant, Robert F. Matthews, Jr., Commissioner of Finance, to issue necessary warrants for payment at the proper time of the additional salary authorized by the Act.

The Attorney General has conceded that there is no violation of Section 235 of the Constitution prohibiting an increase in salaries of public officers during their terms. His concession is based upon such cases as James v. Cammack (1910), 139 Ky. 223, 129 S.W. 582, and Coleman v. Hurst (1929), 226 Ky. 501, 11 S.W.2d 133, where added compensation within constitutional limits was allowed for the imposition of added duties. In Barker v. Barnes (1952), Ky., 248 S.W.2d 901, we concluded that the highest constitutional salary paid a public officer in a given year became the standard applicable to him for that year. (Commonwealth Attorney at $7,200 became a Circuit Judge at $8,400.) Together, these decisions were found by Special Judge, Hon. Allen Prewitt, to form an acceptable basis for freeing Circuit Judges from the $8,400 category of Section 246 by making them special commissioners of this Court with State-wide jurisdiction, thus elevating them to the $12,000 category for officers whose duties are coextensive with the State. However, it must be noted that none of these decisions is direct authority for the payment of compensation in excess of the constitutional limit for the principal office held. In fact, Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, and City of Louisville v. German, 286 Ky. 477, 150 S.W.2d 931, held that an officer’s salary could not exceed the constitutional limit regardless of the number of positions held by him. Regardless of this, candor compels the questions: Is this sort of indirect approach necessary in order to afford Circuit Judges an adequate salary under the Constitution? Is the salary limitation provision (Section 246) of our State Constitution a mere lifeless mathematical formula?

Counsel insist that substantial salary increases may be granted within the monetary limits of the present constitutional provision if the various limitations are treated as a scale of values rather than as nominal “dollar” limitations, a principle of interpretation which would permit adaption of the limitations to the changing values of the purchasing power of the “dollar” and the general cost of living, thus making the Constitution vital, not formal — not a mere mathematical formula. There is much to support this view as we shall see.

It may be well to note at this point that there are two constitutional provisions pertaining to the compensation of Circuit Judges:

Section 133 of the Constitution provides:
“The Judges of the Circuit Court shall, at stated times, receive for their services an adequate compensation to be fixed by law, which shall be equal and uniform throughout the State, so far as the same shall be paid out of the State Treasury.”

Section 246, as amended in 1949 and now operative, provides:

“No public officer * * * shall receive as compensation per annum for official services * * * any amount in excess of the following sums: Officers whose jurisdiction or duties are coextensive with the Commonwealth * * * and Judges and Commissioners of the Court of Appeals, Twelve Thousand Dollars ($12,-000); Circuit Judges, Eight Thousand Four Hundred Dollars ($8,400); and all other public officers, Seven Thousand Two Hundred Dollars ($7,-200). * * *”

It will be observed that Section 246 does not fix the compensation; it merely puts a limit on the “dollars” that can be paid without stating whether they are “dollars” of 1949 purchasing power or “dollars” of current value. It is also significant that the 1949 amendment to Section 246 does not modify the adequate pay provision of Section 133 in any way, and it thus creates the need of harmonizing the two provisions which can be accomplished, truthfully and practically, only by construing the specific monetary provisions as a scale of relative values. In other words, we must assume that $8,400 was an adequate salary for Circuit Judges at the time the amendment was adopted in 1949 and thus initially harmonize the two provisions. But when the nominal dollar salary becomes of such reduced purchasing power in relation to the cost of living that it no longer enables its recipient to maintain the standard of living afforded by the same salary in 1949, it is necessarily inadequate within the meaning of Section 133. The sections can be truthfully harmonized only through equating “dollars” with what they will do in the market place.

We should like to interpolate here that adequacy is not a normal standard governing the compensation of public officers who may receive either too much or too little for the services rendered. Ordinarily, public compensation is not paid on a quantum meruit basis. 43 Am.Jur., Sec. 362, p. 150. The standard of adequate compensation directed in Section 133 (and also Section 112) of the Constitution finds no counterpart in any other section of the Constitution which raises speculation whether the salaries of judges ever were intended to come within the scope of Section 246 (the $5,000 salary limitation) before its specific amendment in 1949 to include the Courts. In view of the separate adequate pay sections (112 and 133) covering the judiciary and the peculiar wording of original Section 246, we are inclined to wonder if the latter section was not intended to cover solely the Executive Department of the government.

Be that as it may, the inclusion of the Courts in the 1949 amendment to Section 246 was done in order to afford the Courts just or adequate compensation when it was thought the $5,000 limitation of original Section 246 precluded the payment of it. It is interesting to find that the national average compensation of trial judges in 1949 was $9,487 as compared to the $8,400 limit inserted in Section 246. Now the national average is $15,700. In the case of State Supreme Courts the national average in 1949 was $11,744 as compared to the $12,000 limit inserted in Section 246. (Now the national average for State Supreme Courts is $19,100.)

We call attention to this background because it indicates national averages were considered in setting the constitutional limits in 1949 and that it was not the intention of the founding fathers or the supporters of the 1949 amendment to Section 246 in 1949 to doom public officers to the strapped financial state a waning dollar value so easily can produce. With all circuit judgeships to be filled by the electorate in November, 1963, for full six year terms a practicable constitutional means for making the office more attractive financially had to be assured if capable trial judges were to be retained and new judicial talent to be attracted. It seems to us that it is becoming increasingly necessary to construe Section 246 in a way which will enable the General Assembly to keep the salaries of Circuit Judges, and for that matter all constitutional officers, currently geared to the purchasing power of the dollar as compared to its purchasing power in 1949. This is not a precise process in the case of the judiciary because of the adequate pay provisions of the Constitution, and in any case consideration of tax differentials and possibly other factors might prove necessary to maintain the general living standards made possible by the constitutional dollar income in 1949.

Since the Gold Clause case (Norman v. Baltimore & O. R. Co.), 294 U.S. 240 et seq., 55 S.Ct. 407, 79 L.Ed. 885, the value of the dollar in purchasing power has been a controlling criterion rather than its official gold content so far as payment of bonds and similar obligations, bearing provisions requiring payment in gold coin of the United States equal to the standard of weight and fineness as of the date of the loan, is concerned. And in the realm of damage law we have said, “In considering a previous award as a guide for determining the propriety of a present verdict, the amount for purposes of comparison, must be adjusted so as to compensate for intervening changes in the value of money. Recognition of the increased cost of living or the impaired purchase power of the dollar must of necessity be considered. The value of the sum awarded must be measured not by the number of dollars, but by its comparative use in obtaining the necessities of life.” J. C. Penney Company v. Livingston, Ky., 271 S.W.2d 906. The effects of two World Wars, a Korean War and a Cold War make many former conceptions of a dollar no longer pertinent in many fields of activity.

Let us see what the Legislature has done in the instant case as summarized in the brief of the appellees:

“The Consumers’ Price Index for March 1962, taking 1949 as the base figure of 100, stands at 128.9. In other words, it takes $128.90 to buy what could be bought for $100.00 in 1949. We come, therefore, to the ratio— 128.9 is to 100 as X is to 8400. In this situation X would equal 10,827.60. The .raise in salary provided by House Bill 65 (if it be considered simply as a raise in salary and not as the creation of a new job) is to $10,800.00. In other words, the legislature has interpreted ‘adequate compensation’ today at almost exactly the figure that would be arrived at if purchasing power and not depreciated currency is taken as the proper limit on salaries.”

This is a clear instance of legislative care and responsibility.

As the determiner of adequate compensation the Legislature has the power to balance the consistency of Section 133 with Section 246 and to reach the rational conclusion that “adequate compensation” requires a reconsideration of Section 246. Two special courts have done exactly this in construing the provisions of Sections 112 and 133 in the light of Section 235 (forbidding a change in compensation during a term). See, Stone v. Pryor, 103 Ky. 645, 45 S.W. 1053, 1136; Perkins v. Sims, Ky., 350 S.W.2d 715. And the same result was reached by the regular Court in Wright v. Oates, Ky., 314 S.W.2d 952. The legislative interpretation of Section 246 as related largely to purchasing power is not only a rational construction to put on the section, but is the only construction that accords with a “living” rather than a dead Constitution. Particularly as to Judges has the Constitution directed an “adequate compensation.” With this guide it is clear that Section 246 must be interpreted as a constitutional principle and not as a statute. As said by Judge (later Chief Justice) Vinson in Nueslin v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690: “* * * we must regard constitutional provisions as more generic and more organic than other law with which we deal.” And as said by this Court in Meredith v. Kauffman, 293 Ky. 395, 169 S.W.2d 37:

“The Constitution is concerned with substance and not with form and and its framers did not intend to forbid a common-sense application of its provisions.”

The net result of our consideration is that the salary provisions of Section 246 of the Constitution may be interpreted and periodically applied to all constitutional officers in terms which will equate current salaries with the purchasing power of the dollar in 1949 when Section 246 was adopted. Furthermore, in the instance of the judiciary other factors also may be considered in establishing the adequate compensation directed by Sections 112 and 133 of the Constitution.

This Court will require Circuit Judges to fulfill the added duties imposed upon them by the instant legislation, but we uphold the payment of the additional salary upon the basis herein discussed.

The judgment is affirmed.

MONTGOMERY, J., not sitting.

BIRD, Judge

(concurring).

The majority opinion holds that House Bill 65, making a Special Appellate Commissioner of each regular circuit judge, is valid. I agree with this conclusion but I cannot accept the reasoning of my colleagues in reaching the conclusion.

The majority opinion does all but eradicate the ink with which Section 246 of the Kentucky Constitution is written. I continue to adhere to my often expressed opinion that this is the prerogative of the people.

As I view House Bill 65, the General Assembly did three separate and distinct acts. First, it created at least sixty-five offices, to wit, Appellate Court Commissioners. Second, it filled each office with a regular circuit judge. Third, it set a uniform salary for the new commissioners.

As I construe the Act, each regular circuit judge is to hold two separate and distinct offices. The duties of one are strictly appellate for which the judge is to be paid $2400.00 per annum. The duties of the other office pertain to matters generally arising in a court of original jurisdiction for which he is to be paid not exceeding $8400.-00 per annum (Section 246 Kentucky Constitution) the payment of which is now authorized by KRS 64.498.

Under Section 235 of the Kentucky Constitution the salary of a public officer cannot be changed during his term of office. Here, however, there is a completely new office created by statute and the duties thereunto attached are by the statute made coextensive with the Commonwealth. The new duties are so unrelated to the regular and general duties of a circuit judge that it is unnecessary to try to escape the limitations provided by Section 235. The judge has no extra duties as circuit judge. He has been given another job wholly unrelated and for which he is to receive additional compensation. There is no constitutional restriction upon the Legislature to authorize it. See Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133; James v. Cammack, 139 Ky. 223, 129 S.W. 582. Whether as an officer whose duties are coextensive with the Commonwealth or as a Commissioner of the Court of Appeals, both of which are specifically mentioned in Section 246, the Legislature could properly fix the salary so that the aggregate amount would not exceed $12,000.00, the limit provided by Section 246. This was done by the Legislature and, without the majority opinion, the constitutional bars would not be torn asunder. There is no need in the matter before us to do violence to Section 246 with the adequate pay dissertation.

I have considered the question of compatibility. It is my conclusion that so long as the Special Commissioner is not assigned cases appealed from his own court the offices of Circuit Judge and Special Appellate Commissioner are not incompatible.

The wording of Section 246 makes it clear to me that in no event can the aggregate compensation of the Circuit Judge and Special Commissioner exceed $12,000.-00.

It is my conclusion that the act must be upheld but that the constitutional limitations should be preserved. The majority opinion does not respect the sanctity of the fundamental writ and for that reason I cannot agree. I do, however, concur in its basic conclusion.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Bobby HALL, d/b/a Hall’s Wrecker Service, et al., Appellants, v. Avanell CLARK, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Rehearing Denied Oct. 5, 1962.
    Harry C. Campbell, Pikeville, for appellants.
    Stratton & Ramsey, Pikeville, for appel-lee.
   MILLIKEN, Judge.

On the premise that no basic factual issue was developed by the recorded evidence before the Board, the trial court concluded that it was not bound by the refusal of the Workmen’s Compensation Board to grant an award to the dependents of Freddie Gene Clark for his death. Clark was killed by a pistol shot by a fellow employee, Howard West. The trial court adjudged that “Avanell Clark, widow, for the benefit of herself and her infant children * * * recover the maximum compensation” for the death of her husband and remanded the action to the Workmen’s Compensation Board for the entry of such an order. The Board had refused the award of compensation upon the ground that Clark was the aggressor in the fatal altercation.

The deceased was employed as a foreman by Bobby Hall, doing business as Hall’s Wrecker Service, and was in general charge of the business when the owner was absent. He held the position for approximately three years except for one six months’ period when he was engaged in other work. His employment had been ■continuous for approximately one year before his death. It was the custom for the ■employees, including Clark, to take turns staying on the premises until the night watchman, Howard West, came on duty at 7 p. m., and on the day of his death it was ■Clark’s turn to stay until West came.

West had been acting as night watchman •for about two months before the day of the killing, May 1, 1958. In 1957 bad feeling had developed on the job between West .and Clark and they apparently had no ■contact with each other except during the employment. At that time West worked under Clark’s supervision and the smolder^ ing irritation between them resulted in West’s leaving Hall’s employment shortly before Christmas, 1957. During the couple •of months of his subsequent employment as night watchman, West had little or no contact with Clark except at the times when it was Clark’s duty to stay on the premises until West came on duty at 7 p. m. -On the night of the killing West appeared .a little earlier in order to work on his own .automobile for which purpose he was permitted to use his employer’s tools. At that juncture Clark had gone to a scrap pile to obtain a usable gas tank for a customer and while he was on the way back with the gas tank West passed in his automobile and, intentionally or unintentionally, sloshed the contents of a lone mud puddle at Clark. Clark finished serving the customer, went over to West, and, according to a witness, struck West on the shoulder. The two men scuffled and were separated by their employer who pushed Clark in one direction and West in the other. Clark was bleeding from a cut on his head and, after the men had been separated, West drew his night watchman’s pistol and shot Clark in the left side, resulting in his death before medical attention could be obtained.

The record indicates that West and other employees had been careless in not putting away the employer’s tools and that West had been told by his employer that evening to be sure and put the tools away after he had finished with them. This admonition irritated West who had previously complained about Clark “ratting” on him on occasion. In any event, it is clear that whatever ill feeling existed between West and Clark had its origin and its nurture in their employment, and not in circles outside the place of their employment.

While society is reluctant to reward an aggressor ordinarily, just when the aggression begins is another question. In the instant case, did the aggression begin when West ran through the lone puddle in the road and sloshed its contents at Clark ? Or did it begin when Clark struck West? Or was it when West shot Clark after they had been separated ? Where the fight arises spontaneously after prolonged ill feeling on the job as it did here, it is difficult to conclude that the aggressor (assuming he can be ascertained) actually has so taken himself out of the scope of his employment as to justify denying his dependents compensation.

Where an employee had been denied compensation because he struck the first blow, the Supreme Court of Massachusetts reversed the Board in a well-reasoned opinion by Chief Justice Qua in Dillon’s Case (1949), 324 Mass. 102, 85 N.E.2d 69, saying:

“The striking of the first blow is not the sole and ultimate test as to whether the injury arose out of the employment. * * * We must constantly remind ourselves that in compensation cases fault is not a determining factor, whether it be that of the employee alone or that of the employee contributing with the fault of others, unless it amounts to the ‘serious and wilful misconduct’ of the employee which by § 27, as appearing in St.1935, c. 331, bars all relief to him. Apart from serious and wilful misconduct, the question is whether the injury occurred in the line of consequences resulting from the circumstances and conditions of the •employment, and not who was to blame for it. * * * So even where the employee himself strikes the first blow, that fact does not break the connection between the employment and -the injury, if it can be seen that the whole affair had its origin in the nature and conditions of the employment, so that the employment bore to it the relation of cause to effect. In the present case there was no evidence whatever of any friction between Dillon and Kenney except in connection with their work. It could reasonably be found that a smoldering enmity was engendered between these men by the carrying on of the employer’s work, the control which Dillon as gang leader had over Kenney, and the manner in which he exercised that control in his employer’s interest, and it could even be found that at the moment of the trouble Ken-ney was intentionally interfering with Dillon’s work by standing upon the ‘pallette’ which it was Dillon’s duty to raise. In such a case, when the accumulated strain finally breaks down resistance, it seems a narrow treatment of the problem to determine the granting or denying of compensation by the more or less fortuitous circumstance of who aimed the first blow.”

In the case at bar, there not only was no evidence of contacts between the two men outside of their employment, but in addition their employer knew of the ill feeling between them but, of course, could not have foreseen its tragic results.

We do not have a factual situation here such as was presented in City of Prestonsburg v. Gray (1960), Ky., 341 S.W.2d 257, where a former fire chief who had been discharged shot and killed his successor more than a year after he had lost his job. There had been no irritation between the men arising out of their employment and someone else had held the job a short period between the tenures of the killer and the deceased. When the Workmen’s Compensation Board found that the killing did not arise out of the employment, we affirmed. Our present case has more similarity to other cases such as Henry Vogt Machine Company v. Chamberlain (1955), Ky., 279 S.W.2d 224; York v. City of Hazard (1945), 301 Ky. 306, 191 S.W.2d 239; Kentucky Fluorspar Company v. Wolford, (1936), 263 Ky. 471, 92 S.W.2d 753; Hansen v. Frankfort Chair Company (1933) 249 Ky. 194, 60 S.W.2d 349.

In Henry Vogt Machine Company v. Chamberlain, 279 S.W.2d 224, the killer, a coemployee of two deceased employees, secured a shotgun and drove in a taxicab to the plant. During the course of the ride he stated that they were pushing him around and he was going out there to kill them. He entered the plant and shot Chamberlain and Wilson. Immediately afterwards he stated that they had been telling him how to run his fire. The Court of Appeals held the death of Chamberlain compensable, and stated:

“The rule in this jurisdiction is that compensation will be granted for injuries due to an assault by a fellow employee when they are fairly traceable to an incident of the employment, and will be denied where they are the result of personal grievances not connected in any way with the employment.”

The Vogt case answers rather well the issue raised by appellant that West was not on the job at the time of the killing. West had come to the employer’s premises to commence work and was staying until 7 p. m. In the Vogt case, the killer was apparently not even employed or not working on that day. The fact that they were not working simultaneously does not change their status as fellow employees.

In York v. City of Hazard, 301 Ky. 306, 191 S.W.2d 239, York and Eldridge were coemployees working on a street cleaning crew for the City. The two parties were riding on the truck that had stopped for the purpose of unloading, and witnesses saw Eldridge strike York on the head with a shovel. From this blow, York died. Apparently York had made some statement to Eldridge because Eldridge was heard to say, “You can’t talk to me that way,” immediately before he struck York. The Court, in concluding that the death of York was compensable, stated:

“Disagreements and fights arising between employees about their work which result in injuries or death may reasonably be termed incidental to the employment. * * *
“ 'Direct evidence that an employee came to his death in such a manner or by a cause entitling claimants to compensation does not have to be produced. It is sufficient if the evidence is such as will reasonably sustain an inference or raise a presumption to support it.’ ”

Apparently there had been some verbal provocation which may or may not have had anything to do with the employment. The Court of Appeals held that the death of York was compensable.

In Kentucky Fluorspar Company v. Wolford, 263 Ky. 471, 92 S.W.2d 753, an employee of the appellant was assaulted by a fellow workman and seriously injured. There had been previous trouble between the parties, and on the day in question the assailant believed that Wolford had made a complaint to the employer about his son and he attacked Wolford with a knife. The court, in holding the injury compensa-ble, among other things, said:

“Even if it be conceded that a state of ill feeling existed between appellee and his assailant for several months and that the result was a culmination of the various altercations, still it resulted from a controversy pertaining to the employment.”

As in the case at bar, the ill feeling between the parties had existed for a number of months and that ill feeling grew out of the employment.

In the early case of Hansen v. Frankfort Chair Company, 249 Ky. 194, 60 S.W.2d 349, the Court of Appeals decided the basic question at issue here. The injured party, Hansen, was a foreman, supervising work of convict labor in the factory of appellee. Proof indicated that Hansen, the foreman, had some small argument with an employee in the course of which he said, “I never saw a son of a b-that came out of the mountains that could learn any sense.” Whereupon Hansen was struck and knocked down, resulting in a skull fracture and the injuries complained of. The Court, reversing the decision of the Compensation Board, quoted the following from Inland Steel Company v. Flannery, 88 Ind.App. 347, 163 N.E. 841:

“When coemployees are working together, it is to be expected that disagreements will arise in connection with the work, and that there may be blows and fighting. Injury to an employee from such a source is one of the risks of the employment, within the meaning of those terms as they are used in the Compensation Act.”

In connection with this opinion, the Court of Appeals reviewed a number of authorities on the subject and noted that there was a conflict in the cases and that in the light of many authorities.the injury to Hansen would not be compensable, but said:

“ * * * The fundamental purpose of these statutes (Workmen’s Compensation) is to protect employees who accept its provisions, and the courts are inclined to give them a liberal construction where there is a causal relation between the employment and the injury.”

It is our conclusion that the death of Clark arose out of and in the course of his employment, and that his dependents consequently are entitled to compensation.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Harry STUART, Chief of Police of Campbell County, Appellant, v. Bert COMBS, Governor of the Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    As Modified on Denial of Rehearing Oct. 5, 1962.
    Joseph J. Leary, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, Harry Stuart, has been removed from the office of Chief of Police of Campbell County by an executive order of the Governor of Kentucky pursuant to the provisions of KRS 63.110. His removal was based upon a finding that he was guilty of neglect of duty as defined in KRS 63.090. Specifically, the Governor found that “[t]he evidence is overwhelming * * * that there was flagrant and notorious violation of the laws, especially the gambling laws, in the incorporated towns” of Campbell County. He further determined that Stuart, whose jurisdiction under KRS 70.-540 was coextensive with the county, knew or should have known of these violations.

In seeking to have the Governor’s order cancelled appellant relies upon an order of the Campbell County Court which reads:

“It is ordered that the Campbell County Patrol Headquarters be established at the Court House, at Alexandria. Kentucky, in quarters heretofore provided by the Fiscal Court and that said County Patrol regularly patrol the unincorporated area of the County insofar as personnel will permit.
“It is further ordered that said department shall assist the police departments of the incorporated areas whenever called upon by the chief of police of the incorporated areas, if personnel permits.”

Appellant argues that since he diligently executed this order his failure to enforce the law within the incorporated areas of Campbell County does not constitute neglect of duty.

We will assume that the Campbell County Court had authority to issue reasonable orders to obtain the most beneficial result from its patrol. However, such orders cannot relieve appellant of his statutory duty to enforce the law throughout all areas of Campbell County and, therefore, do not preclude the Governor from removing from office a peace officer whom the Governor has found to be guilty of neglect of his official duties. Hence, appellant’s contention to the contrary is without merit.

Appellant insists that KRS 63.090 (5) unconstitutionally enlarges the scope of the term “neglect of duty” as used in Section 227 of the Kentucky Constitution and he relies on Holliday v. Fields, 210 Ky. 179, 275 S.W. 642, which criticized the original statutory definitions of neglect of duty. However, we observe that the definition in KRS 63.090(5) is the one stated in the Holliday case to be constitutionally acceptable. Moreover, in Frederick v. Combs, Ky., 354 S.W.2d 506 and in Cornett v. Chandler, Ky., 307 S.W.2d 918 we affirmed orders of the Governor removing from office certain peace officers who failed to perform their statutory duties. We find no reason to depart from these decisions.

While we are not unsympathetic with respect to the appellant’s predicament, when he chose to obey an order of his superior which he construed as requiring him to neglect the duties imposed on him by the statutes he assumed the risk of the consequences. Any other conclusion would invite subterfuge and conduce to rule by men rather than by laws.

The order is affirmed.

BIRD, J., dissenting.


author: BELCHER, Commissioner.

text:
    Carroll Lee GLENN, Appellant, v. The STATE of Texas, Appellee.
    No. 34554.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    Rehearing Denied Oct. 3, 1962.
    Percy Foreman, Houston, Malcolm M. Guinn, Rusk, Luther E. Jones, Jr., Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, twenty-five years.

The appellant owned and operated a cafe and nearby service station. While the deceased was dancing the “twist” to the music of a juke box in the cafe, the appellant, who had been absent from the cafe, came to the front door and told him to quit dancing. When told that the appellant was the owner of the cafe, the deceased apologized and the appellant said he had caused no trouble but that dancing in a cafe was a violation of the law. Then the deceased quit dancing and took a seat at a table with Billy Joe Feidler and Ruth Baugh.

In about ten or fifteen minutes, the appellant came into the cafe, went to the telephone and called long distance for an officer. The deceased asked appellant if he was calling for the sheriff, and he replied that he was and for the deceased not to talk to him while he was using the telephone. The deceased said that he and Feidler were going to leave and the appellant said that they could not. While the deceased was standing still with his hands at his side, the appellant shot the deceased in the chest with a .22 pistol, from a distance of five or six feet, causing his death.

The testimony of the appellant and his witnesses is in effect that about 2:00 P.M., before the deceased was shot that night about 1:00 A.M., he was told that a group of men had threatened to come to see the “big buddy” (appellant) of Patricia, the wife of Lloyd Latham, one of the group. While traveling with Patricia, who at the time of the trial had gotten a divorce and married the appellant, a group, about 8:30 P.M. on the night of the shooting, made a strenuous effort to curb the appellant’s car. This experience caused the appellant to arm himself with a .22 pistol. When the appellant and Patricia arrived at the cafe after midnight, they saw the men who had tried to curb them. While outside the cafe, the appellant observed the deceased doing a vulgar dance in front of the juke box. He went to the front door, opened it, and, without going in, asked the deceased to stop the dance and leave. The deceased cursed the appellant and appellant withdrew. In a short time, the appellant entered the cafe, went directly to the telephone and called the sheriff’s office. While seated, the deceased asked appellant if he was calling the officers about him. When appellant replied that he was, the deceased and Feidler shoved their chairs back and began moving around the table, looking straight at him and frowning, and he thought they were coming to take the telephone from him and do him bodily injury, and that the men on the outside would help them. At this time appellant said, “Don’t come any closer,” and Feidler then moved south in the cafe but the deceased kept coming closer and he took his pistol out and told the deceased again not to come closer; then, as he kept coming, appellant told him again not to come any closer or he would shoot. The deceased grabbed appellant’s hand and jerked the pistol, saying, “I’m going to take this gun away from you,” the pistol fired and deceased grabbed his chest; and that he did not intentionally shoot the deceased.

Appellant contends that the trial court erred in refusing to charge the jury that they could in no event find the defendant guilty if they believed, or had a reasonable doubt, that he did not kill the deceased.

It is evident that this requested charge was based upon appellant’s testimony that the deceased grabbed and jerked the pistol causing it to discharge, thereby shooting and killing himself.

The court charged the jury that if the act of the deceased in striking or grabbing the pistol, if he did, caused it to be accidentally discharged, then to find the appellant not guilty. This instruction fairly and adequately presented the issue raised by the evidence and no error is shown.

Appellant contends that the trial court erred in refusing his requested charge that if at the time of the homicide it reasonably appeared to him, viewed from his standpoint, that the deceased and one or more other parties had formed a conspiracy to violently attack the appellant and wreck his place of business, and, from the acts and words of the deceased, either alone or acting with others in carrying out such conspiracy, it reasonably appeared to him that he was about to be killed or serious bodily injury inflicted upon him, to find him not guilty.

The evidence failed to raise the issues as submitted in the requested charge. However, the main charge adequately instructed the jury on the law of self defense, both as to real and apparent danger, and applied the law of reasonable doubt thereto. The refusal of the requested charge as submitted was not error.

It is insisted that the trial court erred in defining “malice aforethought” as “the voluntary and intentional doing of an unlawful act by one of sound memory and discretion, with the purpose, means and ability to accomplish the reasonable and probable consequences of the act.”

Appellant objected to this definition because it had “the effect of manditorily requiring a finding of malice aforethought in the event of the jury’s believing that death of deceased was caused by an unlawful act of defendant done voluntarily and intentionally with the purpose, means and ability to accomplish its reasonable and probable consequences.”

The court’s charge shows that said definition also included the further instruction: “It is a condition of the mind that shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.”

When the charge is taken and considered as a whole it shows that the definition includes all of the elements of malice aforethought, hence no reversible error is shown. Spencer v. State, 130 Tex.Cr.R. 644, 95 S.W.2d 445.

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

Opinion approved by the court


author: WOODLEY, Presiding Judge.

text:
      Morris S. JEAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34289.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied Oct. 10, 1962.
    Clay Coggins, Roby, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is operating a motor vehicle upon a public highway while intoxicated, after having been convicted of the misdemeanor offense of driving while intoxicated ; the punishment, 90 days in jail and a fine of $100.

Chief Deputy Sheriff Raymond Spra-berry testified, without objection, that he observed the appellant driving a pickup on a public highway in the City of Hamlin, in Jones County; that the pickup was weaving to one side and then the other; that he stopped appellant shortly after 10 o’clock P.M., observed him; talked with him and, from his conversation and actions, formed the opinion that appellant was under the influence of intoxicating liquor.

The arresting officer also testified that he found some 19 bottles of beer in the pickup driven by appellant, and from his breath and actions he assumed that appellant drank the 5 bottles of beer missing from the 24 bottles case.

A sample of blood taken from appellant at the hospital, shortly after his arrest, was shown to have been analyzed and found to have an alcohol content of 0.15 percent, and there was testimony that a person with that amount of alcohol in his blood is intoxicated.

Records of the Driver and Vehicle Division of the Texas Department of Public Safety showing the issuance of a license to “Morris Sheppard Jean who is described as a white male, gray eyes, brown hair, 175 pounds, 5 feet 11 inches tall, born on June 7, 1912, and whose address is listed as Route 3, Hamlin, Texas” were introduced without objection. The number of such license corresponds with the number of the license which the arresting officer found on appellant’s person.

The record of the Department of Public Safety introduced also shows that Morris Sheppard Jean was “convicted for driving while intoxicated in Cause No. 11658, County Court, Parker County, Texas, filed 1-8-57.”

The complaint, information and judgment in said numbered cause, in the County Court of Parker County, were introduced.

Appellant’s first ground for reversal relates to defects and irregularities in the county court judgment, one of which was that the judgment ordered that the defendant’s driver’s license be suspended for 12 months, whereas the statutes provide for an automatic suspension of 6 months. We do not deem the defects such as would render the judgment insufficient for use in charging a subsequent offense of driving while intoxicated.

The jury had the opportunity to observe appellant and determine by comparison with the description in the record whether he was the same Morris S. Jean as the person previously convicted. Valero v. State, Tex.Cr.App., 340 S.W.2d 492; Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654; Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114.

The appellant was known in the community where he was tried. He called witnesses who saw him on the night in question and testified that they saw no evidence of his being intoxicated.

The jury resolved the issue of appellant’s intoxication against him and found that he was the same person who was previously convicted as alleged in the indictment. We find the evidence sufficient to sustain the conviction.

The judgment is affirmed.


text:
    Ex parte Raymond Lee MUENCH.
    No. 34768.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    Rehearing Denied Oct. 10, 1962.

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

Relator is confined in the penitentiary under sentence of 2 to 30 years on his plea of guilty before the court in 1958, to an indictment alleging assault with intent to murder with malice by laying in wait.

The conviction was under Art. 1160 Vernon’s Ann.P.C. prior to the amendment in 1961 (Acts 1961, p. 706) which increased the maximum punishment for assault with intent to murder with malice to 25 years but limited the double penalty feature to murder without malice when made with a bowie knife or dagger, or in disguise, or by laying in wait, or by shooting into a private residence.

The statute as it existed prior to the 1961 amendment provided such double punishment for assault with intent to murder with malice.

The fact that the felony punishment has been reduced since the conviction is not ground for attacking the conviction by habeas corpus.

The judgment and sentence as recorded in the minutes show a conviction for assault with intent to murder. They do not disclose that the conviction was for assault with intent to murder with malice or that the offense was committed by laying m wait. This would not vitiate the judgment where the indictment so alleged and the conviction was upon a plea of guilty to the offense charged in the indictment.

The petition for habeas corpus is denied.


author: MORRISON, Judge.

text:
    Glen David KIRK, Appellant, v. The STATE of Texas, Appellee.
    No. 34694.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    Rehearing Denied Oct. 10, 1962.

      Bernard A. Golding, Houston, for appellant.
    Henry Wade, Criminal Dist. Atty., Frank Watts, John Rogers, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, 50 years.

The owner and an employee of a drive-in grocery in Dallas testified that on the night in question appellant and another man entered the store and at gun point robbed them of the contents of their wallets and the cash registers. Each of them positively identified appellant as one of the robbers and testified that they had picked the picture of appellant and his companion out of a group of pictures exhibited to them by the police shortly after the robbery. Appellant was arrested some two months later by the police who had been looking for him.

Appellant did not testify but called his father, his sister and his former sister-in-law, who testified that on the night charged in the indictment they had all engaged in an all night poker game in which appellant had been a participant.

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

The sole question presented by brief relates to argument. There has been transmitted to this Court a separate statement of facts which purports to contain a portion of the argument of the prosecutor. Such an instrument has not been approved by the trial court or by counsel for the State and appellant, and therefore cannot be considered under the terms of Article 759a, section 1, subd. E, Vernon’s Ann.C.C.P. Works v. State, Tex.Cr.App., 343 S.W.2d 706; Mendez v. State, Tex.Cr.App., 327 S.W.2d 454; and Donley v. State, 165 Tex.Cr.R. 650, 310 S.W.2d 567. The formal bill of exception which appears in the transcript sets forth two portions of the prosecutor’s argument, but nowhere therein is it shown that an objection was made thereto. By failing to incorporate such a showing in the bill, any error is said to be waived. We have, however, reviewed the bill and find that the first portion is a logical deduction from the record which is properly before us and the second is a legitimate plea for proper punishment and law enforcement in the community.

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


text:
    Ex parte Fleming NOLDEN, Jr.
    No. 34657.
    Court of Criminal Appeals of Texas.
    June 6, 1962.
    Rehearing Denied Oct. 10, 1962.

      Frank B. Kelley, Williams & Darden, San Antonio, for appellant.
    Charles J. Lieck, Jr., Crim. Dist. Atty., H. F. Garcia, First Asst. Crim. Dist. Atty., A. J. Hohman, Jr., John G. Benavides, Asst. Crim. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

The relator is confined in the penitentiary under a life sentence assessed by a jury on his plea of guilty in February 1938, for the offense of rape.

By writ of habeas corpus presented in accordance with Art. 119, Vernon’s Ann. C.C.P., he seeks his release on the ground that he was denied his constitutionally guaranteed right to due process of law.

Hearing was had before a District Judge at the conclusion of which the writ was granted and made returnable before this Court.

There are no undisputed facts which sustain the relator’s contention that the conviction is void. Under the holdings of this Court, the conviction may not be attacked as void on the sole ground that the defendant was under 17 years of age at the time of his trial. The right of an accused under 17 years of age to be tried as a juvenile may be waived. Ex parte White, 50 Tex.Cr.R. 473, 98 S.W. 850; Fifer v. State, 90 Tex.Cr.R. 282, 234 S.W. 409; Ex parte Munoz, Tex.Cr.App., 209 S.W.2d 767.

The relief prayed for is denied.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Isman GUIDRY, Appellant, v. The STATE of Texas, Appellee.
    No. 34568.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied Oct. 10, 1962.
    Lawrence Arnim, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Donald M. Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for misdemeanor theft; the punishment, sixty days in jail.

The state’s testimony shows that two officers observed the appellant pick up a sack of grain in a railroad yard and carry it some fifty or sixty feet. Appellant was carrying the sack in the direction of his automobile and when he saw the officers he dropped it and ran. The sack was recovered by the officers and was found to contain about one hundred twenty-five pounds of wheat.

It was stipulated that Harry Thompson, the alleged owner of the grain, was in fact the owner, that the grain had a value of $6.00, and that Thompson did not give his consent to the appellant or anyone else to

take the grain.

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

The evidence is sufficient to support the conviction.

Appellant’s sole contention on appeal is that the complaint and information did not sufficiently describe the property alleged to have been stolen.

The complaint and information charged that the appellant did fraudulently take and steal “one hundred twenty five pounds of grain of the value of six dollars.”

Art. 403, Vernon’s Ann.C.C.P., provides, in part, as follows:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient.”

In the recent case of Hendley v. State, Tex.Cr.App., 313 S.W.2d 296, the allegations “one tire of the value of ten dollars,” and “one wheel of the value of ten dollars” were held to sufficiently describe the stolen property.

The allegations “one pair of shoes,” Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69, “one suit of clothes,” Baldwin v. State, 76 Tex.Cr.R. 499, 175 S.W. 701, and “one camera,” Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430, have been held sufficient to describe the property.

In the instant case, the quantity of the property, “one hundred twenty five pounds,” is alleged and a general description of the kind of property is alleged by use of the generic term “grain.”

We hold such allegation sufficient to describe the property alleged to have been stolen by appellant.

In Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43, relied upon by appellant, where the allegation “seed of the value in excess of $50” was held to be an insufficient description of the property, there was no allegation — as in the case at bar — as to the quantity of the property charged to have been stolen.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Philip L. FLEMING, Appellant, v. The STATE of Texas, Appellee.
    No. 34636.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied Oct. 3, 1962.

      C. C. Castles, Ralph Chambers, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, ninety-nine years in the penitentiary.

The evidence shows that appellant and the deceased were husband and wife, having been married in August, 1958; that since their marriage a number of separations and reconciliations were experienced; that the deceased owned a rooming house located at 614 Avondale in the city of Houston on the date of her marriage to appellant; that shortly after their marriage a portion of' the house was reconstructed to provide for a private club where alcoholic beverages were served; that the club was damaged on several occasions by appellant after he had arguments with his wife; that a' short time prior to June 4, 1961, the alleged date of the offense, appellant and the deceased, while separated, mutually agreed to a divorce; that on June 3, 1961, appellant and a woman companion journeyed to Galveston Beach, returning to Houston around midnight; that after saying goodby to his companion appellant started home when he decided to stop at 614 Avondale; that he went into the yard and tried to see in various windows in order to view the happenings inside the house; that he looked through some French doors, saw his wife and, later through another window, observed three men with her; that appellant went to a bathroom window, removed his cowboy boots, climbed a tree, and gained entry into the house; that he passed through the club portion of the house, where he crawled past a man sleeping on a couch and retrieved a gun from the fireplace where he had hidden it before the last separation; that appellant entered the darkened bedroom of the deceased and ran up to the bed where she was lying and shot her in the head; that the police and an ambulance were called; that upon arriving at the scene at approximately 4 o’clock, a. m., a few minutes after the shooting, the police officers observed appellant going away from the house; that appellant was stopped and, in company with the officers, returned to the house, where the officers found the deceased lying in her bed, clad only in panties, and with blood coming from a wound in her head; that a search of appellant revealed a pistol loaded with five live rounds and one spent hull in his right front pocket, which was introduced in evidence — without objection — as State’s Exhibit #9.

Dr. W. W. Coulter, a licensed physician who performed work on bodies of deceased persons for the Harris County Medical-Legal Department, testified that he conducted an autopsy on the deceased’s body, which revealed “a gun shot wound on the right cheek, one inch lateral and one-half inch above the angle of the mouth on the right.” The doctor stated that in his opinion death was caused by “Gun shot wound lacerating the brain and cerebral hemorrhage.” He further testified that there were “powder burns three-eighths inch in diameter” around the edges of the wound and that an analysis of the deceased’s blood showed an alcoholic content of .225 per cent.

E. G. Knowles, a member of the Harris County sheriff’s office who worked in the field of identification and testing of firearms for ballistic purposes, testified that he test-fired State’s Exhibit #9 and found that in order to leave a powder burn three-eighths inch in diameter the pistol would have to be fired from a distance four to eight inches away and in his opinion the pistol would be closer to four than eight.

Other witnesses called by the state testified that the deceased drank occasionally but not to excess.

Appellant, testifying as a witness in his own behalf, admitted the matrimonial troubles with his wife, which he said were caused by her excessive drinking; that when he saw his wife with a man who had a gun in his hand he became frightened for her safety; that he entered the house through a bathroom window, got the gun which he had previously hidden, placed it in his left hand, reached over to turn on a light, and as he entered his wife’s bedroom a hunched figure jumped at him; that he fell down near the bed where his wife lay, causing his left hand to hit the bed; that he heard a “bang” and, after a short conversation with the man appellant had previously seen go in the bedroom, discovered that his wife had been shot. He further stated that the deceased had pointed a gun at him several times previously and that some of their problems were caused by the disciplining of his fourteen-year-old step-son. In his confession, which was admitted in evidence as Defendant’s Exhibit C, appellant stated: “I didn’t know that I had shot my wife until I saw the blood on her right cheek. Then I looked at the gun and I didn’t have my finger in the trigger slot. I called the police and I waited for them to come.” Appellant further testified that he loved his wife and did not intend to kill her but only entered the bedroom in order to protect her.

Several witnesses were called by appellant who testified that the deceased on prior occasions had pulled a gun on appellant and that she was a heavy drinker.

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

No objections to the court’s charge appear in the record but several formal and informal bills of exception are present.

Appellant has four formal bills of exception, each of which complains of certain questions asked by state’s counsel. We shall set forth the testimony pertinent to the bills and discuss them together as they concern related matters:

Bill #1: Redirect examination of state’s witness Drucker:

“Q. Do you know whether or not Philip L. Fleming is a homosexual ? A. No sir.”

Bill #2: Cross-examination of appellant:

“Q. One of Mr. Castles’ [defense counsel’s] first questions to you was what was your problem with your wife and you answered that her intoxication had quite a lot to do with it, her heavy drinking. A. Yes sir.
“Q. Isn’t it true that you are a homosexual and that had much to do with your problems and the fact that you built this lounge and entertained other homosexuals there?”

Bill #3: Cross-examination of appellant:

“Q. Do you recall the question being asked you what was your problem with your wife and my question to you now is wasn’t one of the greatest problems and the greatest difficulty between you and your wife the fact that you are a homosexual and you built this lounge and catered to homosexuals there?
“The Court: Break that down.
“Q. The fact that you are a homosexual ?”

Bill #4: Cross-examination of appellant:

“Q. Isn’t it further true that part of the difficulty for you and your wife and the reason you separated on this last occasion was the fact that you introduced Leslie Ashley and Carolyn Lima to the — to Tones over there, those people met in your lounge?”

From the record we find that appellant properly made objections to the questions contained in bills of exception # 1, 2, and 3, requested that the jury be instructed not to consider them, and made a motion for mistrial, all of which actions were by the court overruled, and that appellant excepted to the rulings. In bill of exception #4, the court sustained appellant’s objection and instructed the jury not to consider the question for any purpose, but denied the motion for a mistrial, to which action appellant duly excepted.

A further examination of the record shows that appellant’s counsel, during cross-examination of state’s witness Nelson, who was a roomer at 614 Avondale and was the person in the deceased’s bedroom on the alleged date of the offense, asked the following: “Had anyone told you that place was a bachelors quarters for queers?” Then upon cross-examination of state’s witness Drucker, also a roomer at the boarding house, the following was asked: “In that last two or three weeks before June 4th had that place accumulated one, two or more homosexuals ?,” to which the witness answered “No sir,” and was then asked: “Are you speaking for yourself?”

While the testimony adduced at the hearing on the motion for new trial reflects that the Lima-Ashley case was a highly publicized murder trial conducted between May IS and May 24, 1961, in which each defendant received the death penalty, we are unable to agree that the state’s questions propounded about the case and concerning appellant’s homosexuality injected such highly inflammatory and prejudicial matter into his trial that it denied him the right to a fair trial. The record affirmatively reflects that the questions were asked in good faith.

Under Art. 1257a, Vernon’s Ann.P. C., the state was justified in asking the questions in order to rebut appellant’s testimony that the trouble between him and the deceased was due to her heavy drinking, by showing that the trouble was actually a result of appellant’s homosexual tendencies. Mallory v. State, 133 Tex.Cr.R. 50, 106 S.W.2d 317.

Appellant was the first to go into the subject concerning whether or not the private club was a hang-out for homosexuals and as to the cause of the strained relationship between him and the deceased. Appellant cannot be heard to complain of the state’s action in further probing into this area which he had opened.

We have examined the rather lengthy statement of facts in light of appellant’s informal bills of exception and we perceive no reversible error therein.

The judgment is affirmed.


author: POPE, Justice.

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Juan M. PEREZ, Appellee.
    No. 13918.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 5, 1962.
    Rehearing Denied Sept. 26, 1962.

      Guittard & Henderson, Victoria, for appellant.
    Kelly, Hunt, Cullen & Mallette, Victoria, Utter & Chase, Corpus Christi, for appellee.
   POPE, Justice.

Juan M. Perez recovered judgment against Aetna Casualty and Surety Company for partial temporary incapacity for a period of 125 weeks. Aetna has appealed and claims that there was improper jury argument, jury misconduct, and insufficient evidence to support the period of disability found by the jury.

Aetna claims that plaintiff’s counsel made three improper arguments or comments in the presence of the jury, which were harmful. Only small portions of the arguments are before us by formal bills of exception. The first comments were made by plaintiff’s counsel while objecting to defendant’s argument. Defendant was arguing that Perez had gone to three different doctors but had not called them to testify about his claimed injury. Whether he suffered an injury was a disputed fact. Plaintiff objected to defendant’s argument and, in the hearing of the jury, stated that the doctors were just as available to the defendant as they were to him; that doctors charge a fee of three hundred dollars, that defendant can subpoena them, and “it is unfair and against the rules of evidence and unethical to argue that, when those men are available to them as they are to us.” The quoted part is the only portion about which defendant complains. The record does not show an objection or adverse ruling by the court. The comments by plaintiff were an improper criticism of opposing counsel, but in our opinion they were curable by an instruction which was not requested. Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197.

The next improper argument occurred during plaintiff’s closing argument. The situation which led up to the argument was that one of defendant’s witnesses had testified he did not remember the occasion of plaintiff’s injury. On cross-examination he denied that he had ever told plaintiff’s counsel that he remembered the incident. Counsel did not take the stand to dispute the witness, but in his closing argument he said: “And as far as me taking the witness stand and denying what Mr. Witt said, my personal ethics prevent me from doing that. Why should I take the stand and call a nice young fellow like Mr. Witt a liar. I am not going to do it.” Defendant made no objection to this argument. The prefacing phrase indicates that the argument was in response to something that defendant had said. Assuming it was uninvited, it was curable and would have been cured by an appropriate instruction. Defendant’s failure to object amounted to a waiver. Wade v. Texas Employers’ Ins. Ass’n, supra; Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264, 266; Texas General Indemnity Co. v. Bridwell, Tex.Civ.App., 304 S.W.2d 131, 133.

The third claimed improper argument also occurred during plaintiff’s closing argument. Defendant had contended during the trial that plaintiff had not suffered any injury, and urged that plaintiff was drawing his regular pay at the time plaintiff filed his claim, only twenty-two days after the date of the claimed injury. We do not have the full arguments but in his closing argument, plaintiff’s counsel stated that defendant “has made a big to do about these pleadings. I read them to you at the beginning of the trial, if you will recall. * * * Right in these pleadings we stated he filed his claim within thirty days of the date of his accidental injury which under the law he had to do.” Defendant objected and in the presence of the jury correctly stated that the argument was a misrepresentation of the law. Plaintiff’s counsel then promptly stated that it was the notice that had to be given within thirty days. Defendant’s counsel then said that notice was not the same thing as a claim. The court refused defendant’s motion for mistrial and overruled the objection. ’ From the colloquy it appears that defendant caught the plaintiff’s error, objected, and that plaintiff, in the presence of the jury, was forced to admit and did admit the correctness of defendant’s objection. We fail to see how this harmed the defendant. The error was not again repeated. To these three brief errors, only one objection was leveled. Upon objection, the errors were not again repeated. In context with the whole case, we conclude that they were harmless. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Jury misconduct is also claimed. One point is that a juror, J. F. Parlegreco, mentioned the fact that Perez’s employer “fired” him after he made the claim, whereas, another company would not have fired him. It was in evidence that Perez was discharged and that was a proper subject for discussion. Parlegreco stated that he told other jurors that in seven years no one had ever been fired for disability by his employer, Union Carbide. Two other jurors stated that they recalled the remark. The evidence also showed that Perez’s employer had employed him without giving him a pre-employment physical examination. Parlegreco testified that he told the other jurors that his employer, Union Carbide, always gave a pre-employment physical. The other jurors could not recall whether this statement was made.

There was no express finding about the fact of misconduct; therefore the implied findings of no misconduct support the trial court’s decision. Rosamond v. Keyes, Tex.Civ.App., 255 S.W.2d 399. The first of the claimed misconduct statements may be subject, however, to the rule that implied findings can not overcome the undisputed evidence to the contrary. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Texas Employers’ Ins. Ass’n v. Phillips, Tex.Civ.App., 255 S.W.2d 364, 366. In any event, there was no harm, for several reasons. The remark, according to the foreman, was rebuked. See, 12 Baylor Law Rev. 366-369. He said he instructed them that “we weren’t concerned about Union Carbide.” One juror stated that the foreman told Parlegreco, “That has nothing to do with it,” and that was the end of the matter. The comment was not discussed. The trial court was, no doubt, impressed with the peculiar attitude of Juror Parle-greco. It is suggested that the two remarks he made about his own employer were aimed at creating prejudice against Perez’s unfair and thoughtless employer, and that the verdict was the result of that sentiment. The record shows, however, that Parlegreco was the best friend Perez’s employer and the defendant had. He stood alone against the other eleven jurors on the issues until he brought them from a verdict of 300 weeks disability to 125 weeks. He said at the misconduct hearing that Perez "wasn’t necessarily due any compensation.” He said also, “anything I am going to say is going to be substantiating that thinking to a degree.” In other words, Parlegreco, during the jury deliberations resisted the employee, and yet at the misconduct hearing testified that he made misconduct statements which created sympathy for the employee. The trial court may have considered the juror as overly eager to wreck the whole verdict. Parlegreco’s statements in context with the whole record were harmless.

How the employer’s failure to give a pre-employment examination to Perez would create prejudice against the employer we fail to see. It would seem that Perez’s former employment upon less showing of physical condition than other employers require would work the other way. This is an entirely different situation from that in which the misconduct consists of statements that the employee, in the future must meet a pre-employment physical examination. Texas Employers’ Ins. Ass’n v. Phillips, supra.

Defendant also complains of an unlawful conversation between the bailiff and two jurors. Parlegreco testified, on misconduct hearing, that at one time while the jurors were still deliberating, and when the jury was leaving for the evening, the bailiff said to him: “If you guys are just a couple thousand dollars apart why don’t you settle it?” Juror Hoxworth stated that the bailiff, late in the deliberations, said to him when the jury was separated but before a verdict was returned: “What in the world is the matter with you in there; are you fighting over two or three thousand dollars ?” Neither of these jurors mentioned the comments to any other juror, nor did they mention them to each other. These two incidents of the over-talking bailiff occurred after the jury had been deliberating for a long time, though the times of the occurrences are not fixed. The jury in fact deliberated from July 20 to July 22.

The bailiff’s communications were improper. Perhaps in no other area of the law has the effect of the harmless error, Rules 434 and 503, Texas Rules of Civil Procedure, Vernon’s Ann.Civ.St., been more noticeable than in that of communications between jurors and other persons. From a rule of presumed harm which was often construed to mean conclusive harm, there was a marked change to a rule that the complainant must, as in other cases, prove harm. Ross v. Texas Employers’ Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541; Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977; Denbow v. Standard Accident Ins. Co., 143 Tex. 455, 186 S.W.2d 236; Brown v. Panhandle & Santa Fe Ry. Co., Tex.Civ.App., 294 S.W.2d 223; Whelan v. State, Tex.Civ.App., 271 S.W.2d 108, reversed on other grounds, 155 Tex. 14, 282 S.W.2d 378; Connor v. Heard & Heard, Tex.Civ.App., 242 S.W.2d 205; 41 A.L.R.2d 307. In Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, it was held that tampering with a jury by a party was misconduct of such frightful mien that proof of the act carried with it, at least prima facie, proof also of probable harm. This is the rule, and a good one, but its extension into new areas flirts with the re-adoption of the discarded rule of presumed harm in misconduct cases. In our opinion, the casual comment by the bailiff is not in the same class as that of a party who seeks out and asks a juror to help him win his case. Proof of probable harm by something more than proof of the misconduct itself, was therefore necessary in this case.

Measured by the degree of misconduct, there was no harm. “We judge by the degree of the vice, not merely the subject matter * * So spoke the Supreme Court in an argument case. Wade v. Texas Employers’ Ins. Ass’n, supra. We have here two brief comments which were not discussed or mentioned by either juror. The other ten jurors did not know about the remarks. The two jurors to whom the bailiff made the statements, apparently ignored them.

Measured by the time of the misconduct, there was no proof of harm. As stated in Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S.W.2d 646, and as is the case here, there was (1) no proof of the state of the deliberations when the offending misconduct statement was made, (2) there was no showing at what chronological point in the deliberation period it occurred, and (3) the statements were not related in point of time to the answer of any particular issue or issues. Other than the nature of the statements themselves, we have nothing as a basis for a conclusion of harm.

The trial court evaluated the two jurors to whom the statements were made. Both testified fully about the jury deliberations, but very briefly about the remark by the bailiff. The court, from their testimony and demeanor on the witness stand, as well as the whole record, reached the conclusion that they were probably not influenced and the verdict was not probably affected by the bailiff’s misconduct. See Robinson v. Ashner, Tex.Civ.App., 357 S.W.2d 611, 614.

There was conflicting evidence about a claimed design by the jurors to achieve a result. The trial court, on the basis of the statements and denials, decided that there was neither an express nor implied agreement to achieve a result. That is the province of the trial court.

We have examined the other points and are of the opinion that the judgment should be affirmed.


author: McNEILL, Justice.

text:
    Opal MUHLHAUSEN, Appellant, v. Dorothy Mae LEE, Guardian of the Persons and Estates of Mack Edward Lee, 111 and Marilyn Lee, Minors, Appellee.
    No. 6553.
    Court of Civil Appeals of Texas. Beaumont.
    June 28, 1962.
    Rehearing Denied Sept. 5, 1962.
    J. Q. Weatherly, Houston, for appellant.
    Stovall & O’Bryant, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   McNEILL, Justice.

Our former opinion filed June 7, 1962 is withdrawn and the following is filed in lieu thereof; to which present or amended motions for rehearing may be addressed.

This action was instituted by appellee as Guardian of the Estate of two minors, Mack Edward Lee, III, and Marilyn Lee, against appellant, Opal Muhlhausen, individually and executor of the Estate of William C. Muhlhausen, deceased, and the Houston Bank & Trust Company of Houston for a declaratory judgment construing the will of Florence Muhlhausen, deceased, and to de-dare the rights of these parties in property affected by said will.

The claims of the parties arise from the facts and circumstances set forth in the next two paragraphs.

Florence Muhlhausen was the first wife of William C. Muhlhausen, and a niece of Eugene L. Bender, who died in the year 1934, and under whose will she was left an undivided ½4⅛ of his estate. Florence Muhlhausen died April 27, 1946, and under her will, among other things, she provided as follows:

“After the above bequests are taken care of, then I give, devise and bequeath unto my husband, William C. Muhlhausen, all of my separate property for him to enjoy during his natural life; also the full and complete mineral and oil royalties, should there be any, granting to him also the privilege of selling or mortgaging any of the property; but upon the death of William C. Muhlhausen, any of my separate property that still remains with him I wish to pass to Mack Edward Lee, III and Marilyn Lee, share and share alike.”

During the year 1936, George Hannan & Chas. A. Bahr, Independent Executors and Trustees of the Estate of Eugene L. Bender, deceased, during the time said estate was operating as a unit, sold and conveyed to the City of Houston, lands forming a part of three surveys in Harris County, Texas, the quantity conveyed being based upon a certain contour for the height of a dam to form Lake Houston. After the dam was built and the lake made, its height was lowered, and sundry heirs of the Eugene L. Bender Estate petitioned the City to restore the excess lands so conveyed, which was done by appropriate City ordinances and deeds of conveyance. The Bender estate then no longer operating as a unit, the restoration was by deeds making conveyance to the respective owners and heirs instead of to the Eugene L. Bender Estate. In the deed representing the ½4⅛ interest given Florence Muhlhausen in the Eugene L. Bender will, the name of William C. Muhlhausen was used as grantee instead of the Estate of Florence Muhlhausen which was then in existence. William C. Muhlhausen paid $410.69 to the City for this conveyance. This sum represented the original price for the ½4⅛ interest paid by the City of Houston when the land was acquired by the City, plus 6 percent interest from said date.

In August, 1959, William C. Muhlhausen, the life tenant in Florence Muhlhausen’s will, acting individually and as executor of Florence Muhlhausen Estate, under the power granted him, conveyed a different tract, being a ½4⅛ undivided interest owned by the Estate of Florence Muhlhausen in the W. B. Adams Survey, unto George P. Kirkpatrick, for $50,000, of which $10,000 was paid in cash, and retained an express vendor’s lien to secure the $40,000 unpaid purchase money represented by a note for such sum, payable to order of William C. Muhlhausen at $8,000 per year, with interest at 5 percent per annum. William C. Muhl-hausen pledged and assigned this note and liens to Houston Bank & Trust Company to secure his two individual collateral notes of $9,000 and $3,500. Payments have been made upon such notes so that the unpaid balance at time of trial was $24,000 on said vendor’s lien note. William C. Muhlhausen died June 6, 1961, and his will was probated and by its terms, passed all his property to appellant, Opal Muhlhausen.

• Upon the above statement, the contentions of the parties, both in the trial court and in this court, may be summarized as follows: Appellee guardian asserts that the deed from the City of Houston made in December, 1957, to William C. Muhl-hausen for the ½4⅛ interest of the excess lands actually became, or should be held to have become, by such conveyance the property of the Florence Muhlhausen Estate. Appellant claims on the other hand that such property was paid for by William C. Muhl-hausen with the sum of $410.69, which was community property between him and his second wife, the appellant, and that the property, therefore, was their community property. Appellee asserts that since the title to the other tract, the ½-tth interest in the W. B. Adams survey sold to Kirkpatrick, belonged to the Florence Muhl-hausen Estate, the unpaid balance on the purchase property note was proceeds of the Florence Muhlhausen Estate property and consequently became vested in the two minor remaindermen in her will. Appellant, of course, asserts the contrary. The Bank was made a party since it holds this note as security for the notes of William C. Muhlhausen. It was stipulated between the parties that the Bank would have the right to retain the vendor’s lien note until the notes of William C. Muhlhausen were paid.

After trial of these issues before the court, judgment was rendered upholding ap-pellee’s contention that though the deed from the City of Houston named William C. Muhlhausen as grantee to the extent of the undivided interest in the excess property of the Bender Estate owned by Florence Muhlhausen as devisee, the object of the conveyance was to correct an excess quantity of land so originally acquired by the City, and such excess interest was therefore rightly the property of and became vested in the Estate of Florence Muhlhausen, subject to the terms of her will, and the equitable title to such interest never became vested in William C. Muhlhausen. The court, however, decreed thajt the amount of $410.69 so paid the City of Houston by William C. Muhlhausen, together with interest thereon at 6 percent from date of his payment, should be refunded to the William C. Muhlhausen Estate. The trial court further decreed that the Kirkpatrick note and lien securing it were proceeds of the sale of property of the Florence Muhl-hausen Estate and were therefore the property of said minors, subject to the rights of the Bank to secure repayment of its indebtedness against William C. Muhlhausen.

Appellant Opal Muhlhausen asserts that because the deed of the Eugene Bender Estate to the City of Houston made by its executors in the year 1946 passed title out of the Estate of Eugene Bender and cut off and destroyed the rights or expectancy of the Estate of Florence Bender Muhl-hausen therefrom, the re-purchase by William C. Muhlhausen in 1957 from the City of Houston was made to him and his second wife as their community property. Her argument on this point, however, is brief and without citation of authority. In deference to such assertion, though, we set forth additional facts which we believe led the trial court to reach his decision on this question. The ordinance of the City of Houston ordering deeds made of the excess land to be returned recited that the pertinent deed should be made “from the City of Houston to the heirs, assigns, transferees and successors of the Eugene L. Bender Estate.” However, without involving any person at interest in wrongdoing, through error the deed dated December 26, 1957, was made to William C. Muhlhausen.

At the time this deed was made Muhlhausen was the executor of the Florence Muhlhausen estate. As such he owed to this estate the most scrupulous fidelity. The land was returned by the City, not at a price commensurate with its then value, but at the price originally paid by it — to the heirs, assigns, transferees and successors of the Eugene L. Bender Estate. William C. Muhlhausen individually fell in neither of these categories. His duty was to have taken the title as executor of the Florence Muhlhausen estate. Though this is neither a legal nor an equitable proceeding, but one sui generis, Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837, it is thought that the familiar maxim that, “equity regards that as done which ought to have been done” is applicable here, as well as that equity imputes an intention upon Muhlhausen’s part to have fulfilled his duty to the estate which he represented. As said in Guilliams v. Koonsman, 154 Tex. 401, 407, 279 S.W.2d 579, 583, 57 A.L.R.2d 97, the Declaratory Judgments Act Vernon's Ann.Civ.St. art. 2524-1 should be liberally construed, “its scope should be kept wide and liberal and should not be hedged about by technicalities.” Legal principles and maxims of equity thus must necessarily be availed of in construing documents, the meaning of which are called in question by the present type of action. The trial court correctly held the property, the ½⅜⅛ interest described in the City’s deed to William C. Muhlhausen, belonged to the Florence Muhlhausen Estate.

Appellant argues at length that if the Kirkpátrick note and lien securing same are “proceeds” of the sale of property of Florence Muhlhausen estate, the balance of $24,000.00 owing on this note did not pass, upon William C. Muhlhausen’s death, under the Florence Muhlhausen will to the re-maindermen, but belonged to her, appellant, as the surviving widow and beneficiary under Muhlhausen’s will. She would place herself within the holding of McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412. But, as reflected in McMurray v. Stanley, the first taker under the will involved was given a fee in the property. Such a fee given to the first taker is a conditional or defeasible fee. Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876. The McMurray case holds that where a defeasible fee is given the first taker, the “proceeds” of a sale by the first taker, in the absence of language to the contrary in the will, would not pass to the remainderman. Norton v. Smith, by this court, Tex.Civ.App., 227 S.W. 542; McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671, and Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, were each cases where the first taker was given a fee and it was held that the proceeds would not go to the remainderman.

The Florence Muhlhausen will did not give her husband a fee but gave him a life estate in her property with power of sale. We, therefore, conclude that the trial court correctly determined that these proceeds passed under Florence Muhlhausen’s will to her nephew, Mack Edward Lee, III, and niece, Marilyn Lee. This conclusion is rested upon the holding of the Supreme Court in Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470. The will in that case granted the first taker a life estate. Judge Smedley, in the opinion for the court, discussed practically all of the cases cited by both parties in the instant case and explained and distinguished the authorities in able fashion. Nothing would be gained by repetition thereof. The opinion of the Court states there is a controlling distinction between the giving of a defeasi-ble fee with power of sale and the giving of a life estate with power of sale to the first taker. It was there further stated that in the McMurray case the first taker, N. G. Bagley, took the entire legal estate in the property and that as he had full power to sell, the proceeds of the sale or sales of parts of this property were but another form of the property in fee given him; and as the will did not show the intent of testatrix that the remaindermen should have a right to such proceeds, they could not recover them. We quote from the Edds v. Mitchell opinion (184 S.W.2d p. 825):

“ * * * when a life estate is expressly created by will and unlimited power of disposition given to the life tenant, with remainder over in whatever part of the estate remains undis-posed of at the time of the death of the life tenant, the proceeds of sales made by the life tenant, undisposed of at the time of his death, as well as the unsold part of the very property devised, pass to the remainderman, provided of course, the language of the will does not disclose an intention that the proceeds of sales shall not so pass.”

Appellant contends that this language is obiter dictum. We have carefully studied this opinion and cannot agree with her. The holding of the Court is upon two bases: The first is as we have set forth (pp. 825-827); and the second is that when the provisions of Items 4 and 6 of the will are construed together they clearly show it was testator’s intent that the proceeds of sales remaining in the hands of the life tenant at the time of her death should go to the remaindermen (pp. 827-828). The Supreme Court could have based its decision in this case alone upon this point. But it did not do so. The Court concluding this phase of the case said, page 828: “For the reasons given and on the authorities discussed and cited, we hold that the Court of Civil Appeals correctly construed O. D. Rhode’s will.” The basis for the decision first stated is not obiter dictum. Casparis v. Fidelity Union Casualty Co., Tex.Civ.App., 65 S.W.2d 404, (W.R.); Park v. South Bend, etc., Co., Tex.Civ.App., 199 S.W. 843; 21 C.J.S. Courts § 190, p. 315.

Judgment of the trial court is affirmed.