author: WILLIAMS, Judge. MONTGOMERY, Judge PALMORE, Judge

text:
    Willard TERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Concurring Opinion May 20, 1963.
    As Modified on Denial of Rehearing Oct. 18, 1963.

      Claude Asbury, W. G. Wheeler, Catletts-burg, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Willard Terry, was tried in the Boyd Circuit Court and was convicted of the murder of his son. His punishment was fixed at death. Although no bill of exceptions was filed, we have reviewed the entire record in this case on the basis of the principles discussed in Anderson v. Commonwealth, 302 Ky. 275, 194 S.W.2d 530.

The facts are uncontradicted. Appellant operated a small store in Boyd County and lived on the premises alone after his wife divorced him, which was about two years prior to the prosecution of this case. He had frequently used liquor to excess during a period extending over many years. There was testimony that he became violently irrational sometimes when drunk, but it does not appear that wild irrationality necessarily accompanied his drinking.

On the Sunday of the fatal event, appellant had been drinking. There is no evidence to indicate how much. He appeared in a belligerent mood at the residence of his ex-wife and their children. After chasing her with a knife, he departed only to soon return and attempt to gain entrance to the house. She had locked the door and when he finally gave up, he vowed to kill her on his return. Sometime later appellant came back with a gun and, accosting his ex-wife, he told her to start praying as he was going to kill her. She was unarmed and appears to have done nothing to provoke or excite him. When appellant shot his ex-wife in the abdomen one of their sons, John Terry, entered the house screaming in alarm. Appellant fired on his son two or three times, immediately killing him. Another son witnessed the tragedy.

Appellant was tried by jury twice. He was found guilty and sentenced to death each time. The first verdict was set aside by the trial court. The judgment rendered on the second verdict is here on appeal.

As the appellant’s defense was not guilty by reason of insanity, the initial question is whether the trial court erred in refusing him a sanity hearing as per Section 287, Criminal Code of Practice. We held in Denny v. Commonwealth, 274 Ky. 419, 118 S.W.2d 778, as well as in other cases, that no appeal lies from the trial court’s refusal to grant a lunacy hearing. The wording of Section 287 indicates a discretionary power and, especially in view of the trial court’s appointment of a psychiatrist to examine the appellant and testify at the trial, we find no abuse of discretion.

Appellant objects to the trial court’s failure to instruct the jury that if they should find the appellant not guilty by reason of insanity, they should so state in their verdict. As we said in Phelps v. Commonwealth, 32 S.W. 470, 17 Ky.Law Rep. 706, Section 268 of the Criminal Code of Practice is only discretionary and the omission of such instruction is not prejudicial to appellant’s rights. Particularly is this true where, as here, the only defense is insanity.

Appellant claims double jeopardy on the ground there were two indictments returned before the first trial. As he was never brought to trial on the first indictment there can be no question of double jeopardy on the two indictments. Appellant was tried and convicted on the second indictment and subsequently a motion for a new trial was granted. As recently as Foster v. Commonwealth, Ky., 348 S.W.2d 759, we have held that, since the granting of a new trial puts the parties in the same position as if there had been no trial, the accused is not thereby twice put in jeopardy.

The trial court instructed the jury on (1) murder; (2) voluntary manslaughter; (3) reasonable doubt; and (4) insanity. The instructions as given were in accord with the interpretation and concept of the law then in vogue. However, in the first paragraph of the dissenting opinion in Newsome v. Commonwealth, Ky., 366 S.W.2d 174, Judge Palmore issued the following warning:

"Conceding that a combination of the M’Naghten and irresistible impulse tests is still fundamentally the most practical approach to the defense of ‘insanity,’ it can and should be put in a clearer and better form than is stated in our standard instruction, taken from Abbott v. Com., 1900, 107 Ky. 624, 21 K.L.R. 1372, 55 S.W. 196. See Stanley’s Instructions, § 901.”

The rule stated in section 4.01 of the Model Penal Code, approved by the American Law Institute in 1962, provides that the defendant has a defense if at the time he committed the act he did not have substantial capacity either to appreciate the criminality of his conduct, or if he did understand it to .resist his impulse to violate the law. But, in either case, his conduct must have been the result of mental disease or defect. Mental disease or defect is defined as “not including an abnormality manifested only by repeated criminal or otherwise anti-social conduct.” We believe this rule properly reflects the law.

The trial court instructed the jury in the second paragraph of Instruction No. 4 as follows:

“The law presumes every man sane until the contrary is shown by the evidence and before the defendant can be excused on the ground of insanity, the jury must believe from the evidence that the defendant, Willard Terry, was, at the time of the killing, without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as the result of mental unsoundness he had not then sufficient will power to govern his actions by reason of some insane impulse which he could not resist or control.”

Recognizing full well that the Instruction was given according to the law as interpreted at that time, nevertheless we must declare it erroneous. The confusion which results from the language of that instruction must be avoided now and in the future.

In reaching this conclusion we are not concerned so much with what the bare words of the insanity instruction might mean to a jury as we are with the recognized fact that the traditional phraseology heretofore employed, by appearing to define the law in terms of moral right and wrong instead of legal criminality, materially impairs the capacity of medical witnesses to lend real assistance to the court and jury in determining the defendant’s mental state. Dr. Winfred Overholser, in his article “Criminal Responsibility: A Psychiatrist’s Viewpoint,” published in American Bar Association Journal, June 1962, said:

“ * * * The problem of causation of conduct is within the psychiatrist’s province, whereas the M’Naghten rule and the frame of reference in which the questions under that rule are asked pose a moral query which is not within the competence of the psychiatrist.”

Upon a new trial the court will instruct the jury as follows:

“The law presumes every man sane until the contrary is shown by the evidence. Before the defendant can be excused on the ground of insanity the jury must believe from the evidence that at the time of the killing, the defendant, as a result of mental disease or defect, (a) was substantially unable to understand that he was violating the law, or, (b) if he did understand it, was nevertheless substantially unable to resist his impulse to commit the illegal act.”

The instructions given did not adequately state the appellant’s defense.

The judgment is reversed, with directions that appellant be granted a new trial.

STEWART, C. J., and MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

The very point on which the judgment here is reversed was thoroughly considered by this Court and decided the other way less than thirty days ago. See Newsome v. Commonwealth, Ky., 366 S.W.2d 174. The question was considered by the entire Court in the Newsome case before an opinion affirming was rendered on December 14, 1962. The question was again considered in a most thorough manner on petition for rehearing. It was ably presented by counsel on original brief and in the petition. The petition for rehearing was overruled on April 19, 1963.

The present majority opinion does not honor the decision in the Newsome case by distinguishing it or overruling it. It simply ignores it except to. refer to the dissenting opinion therein.

The merits of the M’Naughten rule as embodied in Kentucky criminal law for more than sixty-three years are set forth in the Newsome opinion. Further discussion would appear to be useless. The instruction in its present form has been found to do justice for a long time. 3 Stanley’s Instructions, Sections 901, 906, pages 214, 220; Abbott v. Commonwealth, 107 Ky. 624, 21 Ky.Law Rep. 1372, 55 S.W. 196; Banks v. Commonwealth, 145 Ky. 800, 141 S.W. 380; Lindsay v. Commonwealth, 230 Ky. 718, 20 S.W.2d 738. The difference between the old and the new forms is technical or, as stated by Judge Palmore in his dissent in the Newsome case (quoted in the present majority opinion), the new form is “clearer and better.” A jury could not detect the technical difference and would doubtless .reach the same verdict under either form. This is certainly true under the facts of the present case.

At any rate, this is not such a case as calls for a holding that for all these past years the convictions where there was an insanity instruction were erroneous. In this case, the plea of insanity is not even justified by the evidence because, as stated in the majority opinion, the appellant “had been drinking” and “appeared in a belligerent mood.” The mere fact that the appellant was drunk does not entitle him to an insanity instruction. To authorize an insanity instruction there must be evidence of a diseased mind or something more than a violent uncontrollable desire to kill. Golden v. Commonwealth, 275 Ky. 208, 121 S.W.2d 21. Possibly an instruction under Arnold v. Commonwealth, 194 Ky. 421, 240 S.W. 87, may have been justified.

In this case, the facts are that the appellant was drunk and drunk only. Whether he got himself in such condition as a substitute for courage was a question for the jury. At any rate, he wounded his wife and killed his son without provocation. He has been twice tried and given the death sentence. To reverse the judgment in this case for the reasons given is a gross miscarriage of justice.

However, there is a further serious problem that arises by reason of the majority opinion that should be of great concern to the bench and bar alike. The able judge who tried this case gave the accepted instruction of long standing. Since the New-some opinion has been printed, and presumably has been read by the trial judge, the opinion in this case will come as a shock since no error was found in his trying of the case. This Court has merely changed a technical rule by judicial fiat.

The consternation of the trial judge at such a sudden unjustifiable change in the law will be shared by others of the profession. Rules of law of long standing should not be cast aside lightly but only upon a sound and meritorious basis. Such rules are not flapjacks and should not be tossed about as such. I cannot subscribe to an extension of the theory that has been ascribed to a former member of this Court that the law is what this Court says it is— this week. Such change destroys all of the stability and orderliness that are characteristic of the law. If such is to be the case, to paraphrase the writing of the late Judge Sims, maybe one should merely consider it one of the vicissitudes of life and go on his way rejoicing, comforted by the thought that this week’s erroneous decision may be corrected next week. Jackson v. Commonwealth, Ky., 247 S.W.2d 52.

For these reasons I respectfully dissent.

STEWART, C. J., joins me in this dissent.

PALMORE, Judge

(concurring).

I do not give to the bar and bench so little credit as to believe that today’s majority opinion will be the occasion of “consternation.” This wee step forward in the wake of the giant strides made by the medical profession over the past 63 years in approaching an understanding of the human mind will be greeted by the enlightened as some assurance that the common law is not an ostrich. Certainly the medical witness, on whose testimony life and death may hang in the balance, will recognize that the improvement in terminology is far more than “technical.”

The dissenting opinion’s discussion of the recent Newsome case would leave the impression that the court had resolved and settled the question. The fact is that five members of the court were then dissatisfied with the old instruction and would not have affirmed in that case had it involved a death sentence. The Terry case was under submission at the time, and it was clearly understood that the old instruction would not survive it.

That the appellant was not insane, but merely drunk, is accepted by the dissenting opinion as a foregone conclusion. The majority of us are not gifted with such clairvoyance. We are not sure. If indeed it is true, we have no fear that another jury will not be able to say so. It must not be forgotten that the law exists for those whose rights are on trial, not for the courts. The inconvenience that may result from a retrial of this case — even the dubious “consternation” that may be felt in some quarters — could hardly outweigh the interest of the man whose life is on trial. To hustle him off to the electric chair when we are not altogether sure would be nothing short of reprehensible.

What the dissenting opinion terms “judicial fiat” is the substance of the common law. Who created the old instruction in the first place? The court. Whose responsibility is it, then, that the instruction be kept applicable to the facts of life as they are known to exist? The same court’s. If this process had not been recognized throughout the development of the common law over the past 800 years we would still be trying cases by battle-axe. Only the axe-maker can have sensed any “consternation” at being put out of business.

The reference to a remark by one of our departed members to the effect that the law is what the courts say it is does the injustice of appearing not to understand it. It was not, of course, an original or a humorous comment. Holmes, for example, voiced the thought that law can be nothing more than a prophecy of what the courts will do in a given case. This is not to be taken as meaning, and was not intended by Judge Cam-mack to imply, that the rule of law is by court whim. It means merely that in a real and practical sense the decision of the courts is the final test and best evidence of what the law is in any given case. No student of jurisprudence in the world of Anglo-American law would dispute that proposition.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Ben WILFORD, Jr., Appellant, v. Electa WILFORD, Appellee.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.

      Henry Jack Wilson, Mayfield, for appellant.
    Harry H. Boaz, Mayfield, for appellee.
   PALMORE, Judge.

Appellant’s principal contention, that because the 1956 order reducing child support payments to $30.00 per month was based on a contract between the parties it cannot be reopened on the ground of changed conditions, is not well taken. The responsibility of a father to support his minor children “cannot be diminished by contract * * * And this matter of maintenance continues within the jurisdiction and control of the court, subject to modification as circumstances and conditions may demand, for there can be no final judgment as to infant children.” Pegram v. Pegram, 310 Ky. 86, 219 S.W.2d 772 (1949); Elkins v. Elkins, Ky., 359 S.W.2d 620 (1962).

Both Elkins v. Elkins, supra, and Wilson v. Wilson, 271 Ky. 631, 112 S.W.2d 980 (1938), involved situations in which, through property settlements, the husband actually had made substantial contributions toward the support of the children in advance. In such a case the wife is thereafter in the position of having already received from the father a fund that is to be devoted, at least in part, to the maintenance of the children. To this extent, and this extent only, as between her and the father she is primarily, and he secondarily, responsible for the support of the children. That situation does not exist in the instant case. As a matter of fact, the evidence shows that the original judgment, entered in 1954, also was based on a contract between Mr. and Mrs. Wilford. That judgment fixed the support payments at $65 per month, the same amount that has now been reinstated by the order from which this appeal is taken. If appellant’s contention were correct, he would not have been able to secure the reduction to $30 in 1956.

The cases of Boehmer v. Boehmer, 259 Ky. 69, 82 S.W.2d 199 (1935), and Smith v. Smith, 295 Ky. 50, 173 S.W.2d 813 (1943), do not hold that a contract or agreed judgment is a bar to future adjustment of child maintenance payments upon a change in conditions. The Boehmer opinion says that with certain exceptions permanent alimony cannot be revised. The Smith case involved the validity, vel non, of a postnuptial contract entered incident to the settlement of certain litigation, including a divorce suit, and no question was presented with respect to child support payments.

Stone v. Stone, Ky., 275 S.W.2d 910 (1955), also cited by appellant, is applicable but on a different point, which is that the chancellor’s judgment in this kind of proceeding will not be disturbed unless it is clearly erroneous. We cannot say that the order in this case was in error.

■ The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Edward W. BASTON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Patrick J. Dixon, Elizabethtown, for appellant.
    L. M. Ackman, Williamstown, E. D. Weldon, Georgetown, William F. Threl-keld, Williamstown, for appellees.
   PALMORE, Judge.

In the acquisition of right-of-way for an interstate highway (1-75) the appellant Highway Department condemned 25.18 acres through the center of a 102-acre dairy farm owned by the appellees Edward Bastón and wife, leaving 37 acres and all the improvements on one side of the new highway and 39 acres without improvements on the other. A county court judgment reflecting a commissioners’ award of $10,072 for the land taken and $14,448 for damage to the remainder, totalling $24,520, was appealed to the Grant Circuit Court by both sides. A jury verdict in circuit court awarding $8,841 for the taking and $15,000 as damage to the remainder, total-ling $23,841, was set aside following motions for new trial by both sides. A second jury trial resulted in a verdict of $12,500 for the land taken and $10,000 for damage to the remainder, totalling $22,500. Motions for new trial having been overruled, both parties now appeal to. this court.

Two valuation witnesses for the Department estimated the initial market value of the whole farm (including improvements) at $200 and $220 per acre, respectively. Testimony in the same respect by six witnesses for the owners ranged from $480 to $550 per acre. The qualifications of the owners’ witnesses to give opinion testimony are not questioned. Indeed, by experience, knowledge of local land values in general, and familiarity with the particular land in question they appear to have been very well qualified. However, none of them were able to substantiate these figures by any other sales of comparable property at such prices. It is therefore contended by the Department that their testimony lacked probative value and that the trial court erred in overruling successive motions to strike it.

The case of Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 477-478 (1963), decided since this case was briefed, settles this issue to the contrary. See also Commonwealth Dept. of Highways v. Citizens Ice & Fuel Co., Ky., 365 S.W.2d 113 (1963). The probative weight of valuation evidence that is otherwise well qualified is not destroyed, nor, in fact, is it necessarily reduced to a mere scintilla, by the inability of the witness to cite an instance in which comparable property actually has sold at a price that would support his opinion. The net weight of the testimony is for the jury to determine.

The witness Ramsey, appearing for the owners, testified that in his opinion the whole farm initially had a market value of $500 per acre and that the market value after the taking was $10,000 for the 37 acres and improvements and $4,000 for the 39 acres left without improvements, making a difference of $36,000 (sic). He refused to estimate separately the value of the 25 acres taken and the damage to the remainder, and the Department urges that its motion to strike his testimony should have been sustained for that reason. However, in Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 852-854 (1963), also decided since this case was hriefed, we held that placing separate price tags on the land taken and damage to the remainder always has been an artificial, unsound and misleading technique for arriving at the correct measure of compensation, which is simply to deduct the market value of what the landowner has left from what he had before. The approach used by this witness was entirely proper.

Another complaint of the Department is that the estimates of several of the witnesses for the owners reflected duplication and reduplication of the same elements of damage, and that their testimony should have been stricken. Perhaps the following example will serve to illustrate:

The witness says the farm before the taking was worth $500 per acre, which includes $200 per acre for the improvements. Then he says the 25 acres taken, which has no improvements, was worth $500 per acre (the apparent effect of which is to include 25 x $200 for damages to improvements left on the remainder tracts). Then he says the “after value” of the 37 acres is $200 per acre and of the 39 acres is $100 per acre. As the average value of the land exclusive of improvements was $300 per acre, and inclusive of the improvements was $500 per acre, the argument is that each of these reductions necessarily includes damage to the improvements.

In this particular case there is no doubt that the improvements, though left intact, were substantially diminished in value by the destruction of the farm for dairy purposes. So was the land itself, by reason of the separation and reduction in size of the two remaining parcels. Even assuming that each and every acre of the bare land was of equal quality and value, it is impossible to tell from the “per acre” figures how much of the estimated damages represented the land and how much the improvements ; hence it is impossible to say whether and to what extent there were “duplications.” Properly computed, spreading the reduction in value of the improvements over the three component elements represented by the value of the tract taken and the resulting damage to the two tracts remaining would not involve duplication. Moreover, each of the witnesses in question ultimately reduced his opinion to simple “before and after” terms, which had the effect of resolving any confusion as to his computations. The court did not err in declining to strike the testimony.

Again, as we have had occasion to remark in other recent opinions, the problem just discussed illustrates the reason for our decision in Commonwealth Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), to condemn the separate assessment of “taking” damages and “resulting” damages.

On the cross-appeal of the owners, we find nothing to suggest that the verdict was inadequate.

The judgment is affirmed on appeal and cross-appeal.


author: CULLEN, Commissioner.

text:
    James B. STEPHENSON, Appellant, v. T. M. RIDDLE, Clerk Pike County Court, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 25, 1963.
    William A. Johnson, Paintsville, F. Dale Burke, Pikeville, for appellant.
    E. Lawson King, George E. Barker, Lexington, for appellees.
   CULLEN, Commissioner.

At this year’s primary election in Pike County, James B. Stephenson received the Democratic nomination for the office of Circuit Judge of Pike County, Division No. 1, and B. B. Followay received the Republican nomination for that office. F. Pierce Keesee had sought the Democratic nomination for Circuit Judge, Division No. 2, but was defeated. Some time after the primary Followay withdrew as a candidate. Thereupon the county committee of the Republican party, under purported authority of KRS 119.020(3), designated Keesee as the Republican nominee for Circuit Judge, Division No. 1. Stephenson then brought this action seeking to enjoin the county clerk from placing Keesee’s name on the ballot. The trial court entered judgment dismissing the complaint, from which judgment Stephenson has appealed.

We think the controlling question is whether KRS 119.020(3) authorized the designation of Keesee to fill the vacancy in the Republican nomination. The statute says:

“If a vacancy occurs in a nomination made by primary, after the primary and before the ballots are printed for the regular election, the governing authority of the party may provide for filling the vacancy. * * *”

The statute does not, in terms, exclude anyone, by reason of lack of party membership or otherwise, from being named to fill a vacancy in a nomination. However, in Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753, it was held that this statute must be construed in the light of the basic purposes and objects of the primary election law, and as so construed the statute did not permit a vacancy in a nomination to be filled by a person who had been a candidate at the primary for a nomination by the other party.

Keesee maintains that the reasoning of the Sturgill case is not applicable to a judicial office, because under KRS 119.070 a person may seek and receive a party nomination without his being a member or adherent of that party, and even though he is an avowed supporter of the other party. In our opinion, however, there is more reason to apply the Sturgill reasoning to a judicial office. The plain purpose of the nonpartisan (or bipartisan) judicial nomination statute, KRS 119.070, is to minimise partisan political influences in judicial elections. To permit a defeated candidate for one party’s nomination to be picked up and nominated by the other party to fill a vacancy .in its nomination would magnify the partisan political influences. It would permit a party to use the nomination for a judicial office as a divisive stratagem in the races for other offices, by creating an internecine struggle in the ranks of the other party.

As said in the Sturgill case, 174 S.W. 756, 757, the method here employed of making a nomination “is not consonant with good faith or fair dealing” and to approve it “would utterly defeat the object designed in the enactment of the primary election law and make of it a farce.”

It is our conclusion that Keesee’s nomination under the circumstances of this case was not within the authority of KRS 119.-020(3).

The right of Stephenson to maintain this action is sustained by Smith v. Corum, 308 Ky. 397, 214 S.W.2d 599, and Burke v. Stephenson, Ky., 305 S.W.2d 926.

The judgment is reversed with directions to enter judgment enjoining the county court clerk from placing Keesee’s name on the ballot as a candidate of the Republican Party for the office of circuit judge.

MONTGOMERY, J., dissenting,

BIRD, J., not sitting.


author: GREENHILL, Justice.

text:
    Clyde DUNCAN, Petitioner, v. Eunice DUNCAN, Respondent.
    No. A-9586.
    Supreme Court of Texas.
    July 31, 1963.
    R. E. Murphey, Coleman, Mark Calla-way, Brownwood, for petitioner.
    O’Neal Dendy, San Angelo, for respondent.
   GREENHILL, Justice.

This is a divorce case. Our jurisdiction rests upon a conflict of opinions of the Courts of Civil Appeals.

A proper construction of Rule 386, Texas Rules of Civil Procedure, is the question presented by this appeal. That rule requires an appellant to file “the transcript and statement of facts” with the Court of Civil Appeals within 60 days from the trial court final judgment. The rule also permits a motion for extension of time for filing the above instruments upon a showing of good cause, provided such motion is filed within 15 days from the expiration of the 60-day period.

The facts here are these: Relative to his appeal in the Court of Civil Appeals, Clyde Duncan filed a motion for extension of time to file the transcript and statement of facts. The Court of Civil Appeals first granted the motion, but then set aside its order, and affirmed the trial court’s judgment on certificate. The Court of Civil Appeals ordered that its opinion be not published under our Rule 452.

The Court of Civil Appeals stated that for purposes of its opinion, the motion for extension was assumed to have been timely filed within the 15-day period. The court then held that “good cause” was not shown since the transcript was completed and in Clyde Duncan’s possession before the end of the 60-day period. Even though the statement of facts had not yet been prepared by the court reporter, the Court of Civil Appeals concluded that Rule 386 nevertheless required a showing of why the transcript, by itself, could not have been filed within the 60 days. Petitioner Duncan complains that this holding is in direct conflict with the opinion of the San Antonio Court of Civil Appeals, under identical circumstances, in Anzaldua v. Richardson, 279 S.W.2d 169, (1955). No application for writ of error was made in that case. The issue was clearly drawn in that opinion in which the Chief Justice of that Court of Civil Appeals dissented. We agree that the two opinions and decisions are in conflict.

This Court approves the Anzaldua interpretation of Rule 386. As pointed out by Justice Pope in the Anzaldua decision, it is physically impossible to file the transcript and statement of facts, as required by the express language of the rule, when there is no statement of facts yet in existence.

The argument is further made by Respondent Eunice Duncan that regardless of the existence of good cause, the motion for extension was not timely filed within the 15-day period allowed by Rule 386. The motion was stamped, showing the filing date as December 26, 1962, which would appear to be the 77th day from the date of final judgment on October 10. The deadline for filing appears to have been December 24.

There are, however, several pencilled notations next to the clerk’s stamp which indicate that the motion may have been timely deposited in the mail in accordance with Rule 5. One notation says “Timely filed Dec. 25 holiday and 75th day.” Another says “Letter dated Dec. 20 Thurs. Filed Dec. 26.” As stated, the stamped file mark on the motion shows that the instrument was filed Dec. 26, 1962; but the 6 in the date “26” is in pencil. The original date ■of the stamp had been erased and is not legible. The mailing jacket, which would ordinarily show a mailing date, is not in the record sent us.

Since the Court of Civil Appeals assumed, without deciding, that the motion for extension was timely filed, and since the facts relating to this particular requisite of jurisdiction are not sufficiently developed for decision by this Court, the cause is remanded to the Court of Civil Appeals for determination thereof under Rule 406. Gist v. Holt, Tex.Civ.App., 173 S.W.2d 216, 1943, writ refused w. o. m.; Leuer v. Smith, 335 S.W.2d 775, Tex.Civ.App., 1960, no writ.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that Court to determine whether motion was timely filed; and if timely filed, whether “good cause” existed in the light of this opinion.


author: SMITH, Justice.

text:
    Jesse A. GEORGE et al., Petitioners, v. W. T. HALL et al., Respondents.
    No. A-9358.
    Supreme Court of Texas.
    Nov. 6, 1963.

      John E. Taylor, C. L. Ray, Jr., Marshall, for petitioners.
    Smith, Hall & Huffman, Marshall, for respondents.
   SMITH, Justice.

Petitioner’s motion for rehearing is granted; the Court’s opinion delivered on July 24, 1963, is withdrawn and the following is substituted therefor.

On October 7, 1960, the respondents, W» T. Hall, Jr., and W. T. Hall, III d/b/a, W. T. Hall, contractor and builder, brought this suit against Jesse A. George and Mona George, husband and wife, petitioners, and the Marshall Savings & Loan Association, Marshall, Texas, a corporation. The petitioners shall hereinafter be referred to as the Georges, the respondents as Hall and the Loan Association as the Association.

Hall alleged that he agreed to construct for the Georges a one-story brick veneer-dwelling on premises owned by the Georges, according to certain plans and specifications signed by Hall and the Georges for a total consideration of $24,900.00; that the Georges paid the sum of $5,900.00 in cash and executed a promissory note for $19,000.00; that Hall and the Georges, thereafter, on September 17, 1959, executed a mechanic’s and materialmen’s lien contract to secure said note; that on the date of its execution Hall assigned and conveyed the note together with the mechanic’s and material-men’s lien to the Association, and that at the time of the filing of this suit there remained unpaid the sum of $9,052.00.

Hall alleged that he complied with the terms of the contract and that the Georges approved the work and accepted the premises by taking possession thereof on or about September 7, 1960; that having accepted the premises, the Georges are bound by the terms of the mechanic’s and materialmen’s lien contract wherein it was stipulated and agreed that:

“ * * * the taking of possession * * * of the improvements * * * either before or after same has been completed shall constitute a full and complete acceptance of same * * * and the lien herein created shall he a valid and enforceable lien for the full amount of the * * * note, and the parties of the first part [the Georges] by taking such possession shall waive all defenses, offsets, and counterclaims to such indebtedness and the lien securing same, and the same shall become valid and enforceable

Answers were filed by the Georges asserting that Hall was not entitled to any of the funds remaining unpaid for the reason that Hall had failed to perform in accordance with the terms of the contract. The Georges also filed a plea in abatement to Hall’s suit, alleging that Hall was not entitled to a money judgment against them. This plea was sustained and the Georges were dismissed as defendants. However, the Georges filed a cross action alleging that Hall had failed to construct the residence in accordance with the terms of the contract, and that they were entitled to the remaining funds in the hands of the Association to be used towards the completion of the building.

Thereafter, Hall filed a motion for summary judgment against the Georges. This motion, so far as the Georges were concerned, contained the same allegations relative to the building contract as the allegations contained in Hall’s petition, and the Georges’ affidavits in opposition to the motion contained the same allegations as those contained in their cross action against Hall.

Hall filed amended pleadings wherein it was alleged that he had contracted with certain sub-contractors and such subcontractors had furnished material and services in the construction of the building and that such sub-contractors should receive out of the funds in the hands of the Association the sum actually due each of them, and that the remainder should be paid to Hall. The materialmen and contractors, hereinafter named, intervened claiming they had furnished material and services under their agreement with Hall, and that certain sums were due for material furnished and labor performed in connection with the construction of the George residence. However, these contractors did not file a motion for summary judgment. Clearly the claims of the sub-contractors affected Hall and not the Georges. There existed no privity of contract between these claimants and the Georges.

On October 28, 1960, Hall, the Georges and the Association entered into a stipulation wherein it was agreed that the sum of $9,052.00 was the subject matter of this litigation ; that such sum was the balance due on the Hall-George contract; that the Georges and Hall had made demand for the money, and that such demands were stated in the pleadings of the parties; that the Association had no interest in the subject of the litigation, other than to pay the sum of money in its hands to the parties found by the court to be entitled thereto. It was stipulated that the Association “ * * * shall keep and retain the said funds pending the final termination of this litigation affecting the said sum and will pay the said funds to the parties hereto according to the terms of the final judgment entered in this cause provided, however, no cost shall be assessed against the Association.”

The trial court, without the aid of a jury, sustained the Georges’ plea in abatement and dismissed them as parties defendant. The judgment of the court recites a finding to the effect that the Georges accepted the premises by taking possession thereof on September 7, 1960, and that, therefore, there was no genuine issue of fact as between Hall and the Georges, and that Hall was entitled to judgment as a matter of law. The judgment further relieved Marshall Federal of all liability and established the validity of its lien on the property, denied all relief not expressly granted, and taxed all costs against the Georges.

The judgment awarded the Association the sum of $500.00 as its reasonable attorney’s fees, and ordered the clerk to pay such sum to the Association. In addition thereto the judgment ordered the remaining funds distributed as follows: “D. L. War-britton, $1529.24; W. A. Jeter, $1032.00; W. A. George, $2331.50; Martex Glass Company, $239.69; W. D. Myrick, $300.00; Logan & Whaley Hardware Co., $420.39; Marshall Hardware & Supply Co., $24.50 .and C. M. Pennington, the sum of $325.00, .aggregating the sum of $6,702.32. The •court ordered that the remaining $2,349.68 he paid to W. T. Hall, Jr., and W. T. Hall, III, after the clerk had paid all other sums •above mentioned.” Since, quite clearly, the •Georges and the Halls, by consent, and the trial court, by its action, converted this suit from one by Hall against the Georges and Association to recover the sum of $9,052.00 remaining in the hands of the Association to one for a proper disposition of the funds .accordingly as the issues in the case were ■determined by final judgment, we approach a solution of the question before us just as though the trial court had entered judgment •in favor of Hall for $9,052.00 rather than .the sum of $2,349.68.

Only the Georges appealed from the judgment of the trial court. In the Court of Civil Appeals the Georges attacked that ■part of the trial court’s judgment which •denied them relief on their cross action and .awarded a recovery to Hall and the subcontractors. The Court of Civil Appeals in an unpublished opinion, severed the •cross action, and as to the cause of action there asserted reversed the judgment of •.the trial court and remanded for a trial on the merits. The Court held that the record ■disclosed material fact issues with respect -to the cause of action asserted in the cross .action against Hall. The Court affirmed •the trial court’s judgment in all other respects, including the award to Hall of the :sum of $2,349.68.

Hall did not file an application for writ of error in this court, and, therefore, ■cannot and does not attack the judgment of the Court of Civil Appeals severing and remanding the cross action for a trial on the merits. By their application for writ of error the Georges complain of affirmance of the trial court’s judgment awarding a recovery of the $9,052.00. Thus, as the case reaches us, Hall is not in position to say that the record does not raise material fact issues as to the right of the Georges to recover on their cross action. Therefore, ■ we are concerned only with the question of whether the Court of Civil Appeals erred in not also reversing the trial court’s judgment as to its award of the sum of $9,052.00, and in not remanding Hall’s cause of action to that extent for trial on the merits.

The issues between the parties are disclosed in their pleadings. Hall was asserting that he had completed the dwelling according to the terms of his contract and was entitled to the balance of his money from the Association. The Georges were asserting that Hall had not completed the dwelling according to his contract, that the house had not been accepted, and that the money should be held and used to complete the dwelling according to the contract. Hall was answering that the Georges had gone into possession of the house and under the express terms of the mechanic’s lien contract had accepted the work as completed according to the contract. The Georges were answering, in turn, that Hall had abandoned the work for a period of more than ten days and they had a right under the express terms of the contract to go into possession for the purpose of completing the work; and, moreover, that there were latent defects not discoverable before taking possession. Association was asserting that it could not safely pay the money to Hall because of the controversy between Hall and the Georges as to whether the .house had been accepted, and because of outstanding and unpaid claims for labor and materials.

It was in the context of this impasse that the three parties entered into the stipulation, filed among the papers of the case, recognizing that both Hall and the Georges were making demands on Association, and agreeing that the funds should be held by the Association until final termination of the litigation “affecting said sum” and then be paid “according to the terms of the final judgment. * * * ” In implementation of the agreement, the court authorized Association to file a bill of interpleader, and to pay the funds into the registry of the court. This was done. ’ Those with claims for labor and materials were brought in to establish their rights in the fund. Pleadings were amended, and Hall’s motion for summary judgment and the Georges’ answer thereto were filed. The Georges had filed a plea in abatement of Hall’s suit against them, and the plea was sustained by the court. The Georges thus went out of the case as defendants, but were permitted to remain in as cross-plaintiffs. Having gone out of the case as defendants, they would have had no standing to remain as plaintiffs upon the cause of action asserted by them except in recognition of the agreement that as between them and Hall the fund remaining would be awarded to Hall unless the Georges established a cause of action for damages for breach of contract, in which event the fund remaining would first be applied to satisfaction of any damages awarded the Georges.

The trial court’s judgment reflects that the court regarded a determination of the issues raised by the cross action as necessary before the fund remaining should be awarded to Hall. After sustaining the plea in abatement, the judgment recites that the court then considered Hall’s motion for summary’ judgment, “and finds that Jesse A. George and wife, Mona D. George, took possession of the premises on or about September 7, 1960, and by taking possession of said premises that same constitutes a complete acceptance of the property. * * * ” Based on that finding, the Georges were denied the relief they sought to subject the fund remaining to their claim, and it followed as a matter of course that the fund was awarded to Hall.

The controversy between Hall and the Georges over proper disposition of the sum of $9,052.00 thus became, by consent and acquiescence, a severable cause from the other issues in the case. But it was an indivisible cause. This sum of money cannot be disposed of accordingly as the issues between Hall and the Georges may be finally resolved unless it remains in the registry of the court until that time.

It is the duty of this court to render the judgment that the Court of Civil Appeals should have rendered. Rule 505, Texas Rules of Civil Procedure. Since the Court of Civil Appeals found, without complaint from Hall, that there were material fact issues raised with respect to the cause by the Georges’ cross action, the Court should have reversed the judgment awarding the sum of $9,052.00 and denying a recovery thereof to the Georges, and remanded the entire cause to the trial court for trial on the merits. Accordingly, the judgments of the trial court and the Court of Civil Appeals are reversed and the cause is remanded to the trial court for a new trial in accordance with this opinion.


author: HAMILTON, Justice.

text:
    HARRY ELDRIDGE CO., Inc., Petitioner, v. T. S. LANKFORD & SONS, INC., et al., Respondents.
    No. A-9238.
    Supreme Court of Texas.
    July 24, 1963.

      Strong, Baker & Heyburn, Houston, McClain & Harrell, Conroe, for petitioner.
    Jack Sayles, Abilene, Fountain, Cox & Gaines, Houston, and Joe G. Roady, Houston, for respondents.
   HAMILTON, Justice.

Upon plenary consideration, we have decided that this court is without jurisdiction of this cause. The Court of Civil Appeals reversed the trial court’s order overruling a plea of privilege with one of the justices dissenting. 359 S.W.2d 663. We granted writ of error in reliance upon Article 1728, § 1, Vernon’s Ann.Tex.Stats., which provides that this court shall have appellate jurisdiction over questions of law arising in those cases "in which the judges of the Courts of Civil Appeals may disagree upon .any question of law material to the decision.”

Obviously the purpose of this provision was to afford this court an opportunity to decide points of dissent. Prior to the 1953 amendment to the jurisdictional statutes of this court and the Courts of Civil Appeals, Acts 1953, 53rd Leg., Ch. 424, p. 1026, Articles 1728 and 1821, Vernon’s Ann.Tex.Stats., this court’s authority over points of dissent in plea of privilege cases could only be exercised by certified questions sometimes implemented by the writ of mandamus and was confined to the point of dissent. See Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978. Under the writ of error practice, it is generally held that when our jurisdiction is properly invoked as to one point set forth in the application for writ of error, we acquire jurisdiction of the entire case. In the present case, however, it appears that petitioner’s application does not invoke our jurisdiction as to the point of dissent by a proper assignment. Further, we do not regard as fundamental the error, if any, pointed out in the dissent.

As our jurisdiction to decide the point of dissent has not been effectively invoked, we are without jurisdiction of the cause. The order granting the writ of error is set aside and the application is dismissed.

      . Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210; North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Moore v. Davis; Tex.Comm.App., 27 S.W.2d 153.


author: MORRISON, Judge.

text:
    Robert VAN BIBBER, Appellant, v. The STATE of Texas, Appellee.
    No. 36039.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    James J. Shown, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Joe C. Shaffer and Don Weitinger, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; ' the punishment, a fine of $300.00 and 45 days in jail.

Witness Sauceda testified that his automobile was slightly damaged when struck in the rear by another automobile driven by appellant. According to Sauceda, a discussion arose about payment for the damage during which appellant said he would locate a friend who did body work and get an estimate on the costs of repair. -Sau-ceda followed appellant on a long drive across town until he became suspicious and, on sighting a police car at an intersection, told the officers what had transpired. Sau-ceda further testified that he observed the appellant’s walk and speech and smelled alcohol on his breath, and that in his opinion, the appellant was intoxicated. His testimony was corroborated by that of his wife.

Officer C. E. Butler testified that on hearing Sauceda’s account of what had occurred, he approached the appellant, who had stopped for a traffic light/and had him pull to the side of the street. He further testified that he observed appellant walk in an unbalanced, stumbling manner, noticed a strong odor of alcohol on his breath, and found two empty beer bottles in his automobile. The opinion of the officer was that the appellant was intoxicated. Appellant’s companion in the automobile was charged with and plead guilty to the offense of being intoxicated.

The evidence is sufficient to sustain a conviction for driving while intoxicated.

Prior to the calling of the first witness, appellant made a motion for a mistrial on the grounds that the witness and a juror had conversed in the elevator. In answer to questions by the court, the juror stated that the conversation was not about the case. “Article 671, Vernon’s Ann.C.C.P., does not prohibit another person in a misdemeanor case from conversing with a juror without the consent of the court after such juror has been impaneled but permitted to separate so long as the matters discussed do not relate to the case on trial.” Sillins v. State, 167 Tex.Cr.R. 347, 320 S.W. 2d 16, 17.

Appellant contends that the prosecutor asked the witness Sauceda his opinion on the intoxication of the appellant without laying a proper predicate, and the court erroneously overruled his objection. A reading of the statement of facts reveals that on two occasions prior to the asking of such question, the witness had stated that the appellant was drunk, and no objection was made. No reversible error is presented. Moseley v. State, 158 Tex.Cr.R. 578, 258 S.W.2d 331; Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735; Wright v. State, 165 Tex.Cr.R. 520, 309 S.W.2d 67.

Appellant may not complain of the so called Alcoholic Tolerance Test given him as the matter was first raised and developed by appellant himself. There was no showing of the results of the test, nor was any attempt made by the State to do so. Dossey v. State, 165 Tex.Cr.R. 652, 310 S. W.2d 321; Hamlett v. State, Tex.Cr.App., 243 S.W.2d 166.

In what is purported to be a formal bill of exceptions, appellant seeks to show reversible error in the jury argument of the prosecutor. As there is no showing that a proper objection was made at the-time of the argument, under the authority of Kirk v. State, Tex.Cr.App., 360 S.W.2d 150 and Merryman v. State, 153 Tex.Cr.R. 593, 223 S.W.2d 630, any error was waived.

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


text:
    Louis BARRERA, Appellant, v. The STATE of Texas, Appellee.
    No. 35983.
    Court of Criminal Appeals of Texas.
    Oct 9, 1963.
    Rehearing Denied Nov. 20, 1963.
    See also Tex.Cr.App., 361 S.W.2d 718.

      Merle H. Dooley, Farmer, Maddin & Eichelberger, by C. S. Farmer, on appeal only, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, life.

The prosecutrix, a 68-year-old widow who resided alone in the City of Hearne, testified that she was awakened on the night in question and observed a man standing-in the doorway of her bedroom; that he stated he wanted to have intercourse with her and threatened to kill her if she made an alarm; that she felt something sharp in her back and the man told her it was a knife. She stated that he tore a portion of her sheet into a blindfold and placed the same over her eyes, ripped off her nightgown, and during the next several hours had approximately six acts of intercourse with her but was never able to reach a climax.

She did not attempt to identify appellant and only stated that from his accent she was able to determine that her attacker was a Latin-American.

• After smoking a cigarette while seated on the side of her bed, her assailant left and she ran in the nude to one of her neighbors, where she was met at the door and a man’s overcoat placed around her, and the police were called. They arrived, found prosecu-trix clothed in an overcoat, and proceeded with their investigation. Within a matter of an hour or two, they presented themselves at the door of the rented room occupied by appellant and asked permission to enter; this was granted, and appellant agreed to accompany them to the police station for questioning.

During the course of their questioning, which covered a' period of not more than an hour, one of the officers noticed a long gray hair intertwined in appellant’s hair; and within a few minutes after being confronted with such evidence, appellant confessed, and the same man then reduced same to writing.

In prosecutrix’s bed, they found certain particles of broken glass. After appellant’s arrest at the police station, his pockets were searched and certain other pieces of broken glass were found. The first group consisted of five pieces, and the second of four. These were submitted to the Department of Public Safety, and an expert from that department testified that they fit together so as to indicate that they had all been parts of a broken sunglass.

Appellant did not testify, and the only evidence as to the voluntary nature of the confession, other than the officers, was that of a woman living in the room adjacent to appellant’s who testified that the officers used profanity toward appellant when they came to his room. Appellant called witnesses who testified that he was intoxicated on the night in question and who sought to discredit the officers’ testimony on collateral matters.

We do not agree with appellant’s contention that the evidence does not comport with human experience because appellant failed to reach a climax in half a dozen efforts to do so with this 68-year-old woman.

Under the holding of this Court' in Stevenson v. State, Tex.Cr.App., 334 S.W.2d 814, this is not a circumstantial evidence case, and therefore this Court will not treat the failure of the State to call certain witnesses as raising a question of reasonable doubt as to the sufficiency of the evidence to support the conviction under the rule announced in Vasquez v. State, 145 Tex.Cr. R. 376, 167 S.W.2d 1030.

We have heretofore in Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419, held that in the absence of an objection it is not reversible error for the court to instruct the jury that the maximum punishment for the offense of rape is life imprisonment instead of death.

The motion to quash the jury panel does not prove itself, and there is no separate statement of facts and no proof in the record to support the allegations contained in the motion.

We are unable to agree with appellant that the confession was rendered inadmissible because the officer who took the same admitted that he “might have told him (appellant) it would be better to tell the truth, that is all.” Humphries v. State, 163 Tex.Cr.R. 601, 295 S.W.2d 218.

We find no error in the action of the court in failing to grant a new trial because of alleged jury misconduct which, of necessity, would have occurred within the jury room because no affidavit of a juror is attached to such motion. Brown v. State, 160 Tex.Cr.R. 150, 267 S.W.2d 819, and Clifton v. State, Tex.Cr.App., 339 S.W.2d 902.

The same is true as to the alleged newly discovered evidence. Wofford v. State, 159 Tex.Cr.R. 506, 265 S.W.2d 110.

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


text:
    James Ray JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 36072.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    E. Colley Sullivan, Charles E. Tobin (On Appeal Only), Phil Burleson, (On Appeal" Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Louis Francis,. Mark Troy, Jr., and A. D. Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is carrying on or about his person a pistol; the punishment, one year.

Acting upon information which they had received, two policemen of the City of Dallas brought an automobile occupied by six colored males to a halt. The policemen testified that the appellant was the driver of the automobile and got out on the left hand side, while some of the other occupants emerged on the right hand side.

The pistol, which forms the basis of this prosecution, was discovered on the ground on the right hand side of the automobile. Another weapon was found on the ground on the right hand side of the automobile and still others under the back seat. Ammunition of the same caliber as the pistol was found in the automobile, but was not shown to have been near where appellant was seated or within his view.

We have concluded that the facts are not sufficient to support the conviction here alleged. Appellant was never shown to have exercised any control over the weapon or to have known of its presence or the presence of the ammunition in the automobile.

The State relies upon Hill v. State, 161 Tex.Cr.R. 540, 278 S.W.2d 842, which involved the possession of a bomb which was discovered on the front floorboard of the automobile driven by the appellant, and which was clearly within his view. In the case at bar, as in Summerville v. State, 164 Tex.Cr.R. 591, 301 S.W.2d 913, there were other occupants of the automobile, and the pistol was not shown to be in the custody or view of the accused, and it was not shown that he was aware of its presence therein.

Because the evidence is insufficient to support the conviction, the judgment is reversed and the cause remanded.


text:
    James HERRING, Appellant, v. The STATE of Texas, Appellee.
    No. 36071.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State,
   MORRISON, Judge.

The offense is carrying a pistol; the punishment, a fine of $500.00.

Officers Griffith and Waynick of the Dallas police testified that they came upon an automobile parked on the side of the road, that appellant, who was the sole occupant, was slumped over in the front seat, that they were unable to arouse him, noticed that he smelled of intoxicants and carried him to the police sub-station where they turned him over to Officer Stephenson after charging him with being intoxicated. They testified that as they were leaving the station Officer Stephenson called to them to return and they noticed a .38 caliber, partially loaded pistol in Stephenson’s hand.

Stephenson testified that as he searched appellant prior to placing him in jail, he discovered a .38 caliber pistol in his left front pocket and called for the arresting officers to return.

Appellant, testifying in his own behalf, denied that he was intoxicated and stated that his purpose in having the pistol in question at the time of his arrest was that he was carrying it to the home of a friend to trade it for another pistol.

The jury resolved what conflict there was in the evidence against the appellant and we find the same sufficient to support the conviction.

No formal bills of exception accompany the record, and no briefs have been filed.

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


author: PER CURIAM. MORRISON, Judge.

text:
    Jack Wesley LAVANDERA, Appellant, v. The STATE of Texas, Appellee.
    No. 35937.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Rehearing Denied Oct. 16,1963.
    Second Rehearing Denied Nov. 20, 1963.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

Operating a motor vehicle upon a public highway while under the influence of a drug is the offense; the punishment, a fine of $100 and ninety days in jail.

The record contains no statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.

MORRISON, Judge.

ON MOTION FOR REHEARING

On motion for rehearing appellant contends there is a fatal variance in the transcript as the caption shows the offense as “Unlawfully, while intoxicated, drive and operate a motor vehicle upon a public highway”, while the judgment states that appellant was actually convicted of the offense of “IJnlawfully drive and operate a motor vehicle upon a public highway while under the influence of a drug.”

Since the rendition of our original opinion, a supplemental transcript correcting this variance has been received from the County Criminal Court at Law No. 1 of Harris County.

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


author: McDonald, judge.

text:
    Robert Douglas GOODGION, Appellant, v. The STATE of Texas, Appellee.
    No. 36034.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., John C. Rogers, Frank Watts and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft of an automobile of the value of over $50.00, with a like offense alleged for enhancement purposes pursuant to Article 62, Vernon’s Ann.P.C.; the punishment, confinement in the penitentiary for ten years.

The State’s proof reflected' that in the early morning hours of November 29, 1962, a 1951 model Chevrolet automobile was taken' from the driveway of Miss Iva Goldman, in Dallas County, without her consent. Bobby Daniel, a fifteen-year-old boy, testified that he was with the appellant at such time and that appellant did drive the vehicle in question away from the home of Miss Goldman, after he and appellant pushed the automobile out of the driveway. The witness further testified that they were approached by a policeman from the City of Carrollton on Highway 77, who, after communicating to determine whether the car was stolen or not, took him and appellant to the police station at Carrollton. Daniel testified that he admitted his guilt to the juvenile authorities and was released to the custody of his father. He identified appellant in court as the driver of the stolen vehicle at the time in question. B. A. Foster, Carrollton Police Officer, testified that he observed the 1951 Chevrolet appellant was driving, on the side of the road, and he approached it to determine if appellant, whom he identified as the driver in court, was having difficulty. He stated that the appellant advised him he was having trouble getting the automobile in gear, but further advised the officer that he did not need assistance. At that point, according to the testimony of Foster, he, Foster, drove away, but in the process, he noticed through his rear view mirror that the automobile appellant was driving did not have a rear license plate light; so he turned around with the intention of going back to advise the appellant of this condition. At that point, appellant drove off in a hurry and the officer gave pursuit. Appellant was stopped, advised of the light being out, and upon further questioning, the officer’s suspicions were aroused to the point that he made a motor vehicle registration check to determine if the car was stolen. At the officer’s request, appellant and Daniel followed the officer down to the police station in Carroll-ton, Texas. Officer Foster turned appellant and Daniel over to the custody of the Chief of Police, W. J. Cooper, of Carrollton, Texas. Miss Iva Goldman testified she recovered her automobile on November 29, 1962, from the Carrollton Police Department. The State adduced testimony establishing the fair market value of the vehicle as being over $50.00. The prior conviction alleged in the indictment was proven through the testimony and records of Jeannettee Hooker, Clerk of Criminal District Court of Dallas County. C. E. Oliver identified the appellant as the person who plead guilty to the prior charge.

According to the defensive testimony, the appellant admitted taking the automobile in question, as well as another automobile shortly prior thereto, but contended that he intended to return the Goldman automobile after he was able to get his own automobile, in which he had a fiat tire and ran out of gasoline the day before, in running condition.

The record contains no formal bills of exception. No brief has been filed by appellant.

We have examined with care the various informal bills of exception and find no error reflected by any of them.

We find the evidence sufficient to sustain the conviction. No reversible error appearing, the judgment is affirmed.


text:
    Daniel L. REAGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36000.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1963.
    Rehearing Denied Nov. 20,1963.
    Dooley & Hoerster, Fredericksburg, for appellant.
    Robert R. Barton, County Atty., Kerr-ville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving a motor vehicle upon a public highway while the appellant’s operator’s license was suspended; the punishment, a fine of $200.00.

No statement of facts accompanies the record. Only one question is presented by brief for review. The cause of the suspension of appellant’s operator’s license was his conviction for the offense of driving while intoxicated which occurred in the County Court at Law # 3 of Bexar County on November 8, 1962, at a term of Court which the State concedes did not expire until after December 2, 1962, the date on which the offense in question is alleged to have been committed. Appellant’s contention that the driving while intoxicated conviction was not a final conviction for this reason cannot be sustained. In Woolsey v. State, 166 Tex.Cr.R. 447, 314 S.W.2d 298, we had practically the same situation except that only one day elapsed between the two convictions. There we held that since no notice of appeal appeared to hav.e been given in the first case, such conviction might be utilized for the purpose of enhancement.

The judgment in the Bexar County driving while intoxicated case contains no notation as to a notice of appeal having been given and Woolsey and the cases there cited are controlling.

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Maurico MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 36050.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963
    No attorney on appeal for appellant.
    ' Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brouch, and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on May 24, 1960, the appellant was found guilty of burglary and his punishment was assessed at a term of three years. Sentence was pronounced and probation granted.

Among the conditions of his probation was that he commit no offense against the laws of this State.

On March S, 1963, the attorney for the State in Harris County filed an amended motion to revoke probation alleging that on or about July 30, 1962, the appellant committed the offense of felony theft and two offenses of burglary.

On the hearing of the motion, the evidence of the State reveals that in response to a burglary call, the officers apprehended the appellant and another person seated in an automobile parked beside the burglarized buildings. In the automobile the officers found a television set, cigarettes, and a coin box containing some money which were shown to have been stolen from the buildings. The proof shows that the television set had a value of more than fifty dollars.

Testifying in his own behalf, the appellant admitted the prior conviction and' his probation as alleged, and also that he was seated in the car when the officers-arrived. He denied any knowledge of the burglaries or of the stolen property in the car. He further testified that he had’ taken the other person who was the owner of the car for a walk because he was drunk, and they had just returned to the car when apprehended.

From a consideration of the evidence introduced on the hearing, it is concluded that the trial court did not abuse its discretion in revoking the order granting the appellant probation. Soliz v. State, Tex.Cr.App., 350 S.W.2d 566; Erwin v. State, Tex.Cr.App., 355 S.W.2d 524.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Walter Lee FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35987.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Musslewhite & Musslewhite by Benton Musslewhite, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

No authenticated statement of facts accompanies the record. The proposed statement of facts contained in the record has been approved only by appellant’s attorney.

Appellant contends that he has been deprived of a statement of facts without any fault or negligence on his part.

By affidavit filed in this cause in the trial court on August 15, 1963, and brought forward by supplemental transcript to this Court the attorney for appellant seeks to show that he has been deprived of a statement of facts.

The affidavit recites that the court reporter delivered the statement of facts to the attorney for the appellant on August 5, 1963; that after approving it he presented the statement of facts to the county attorney and the county judge on August 5, and requested them to approve it but they refused to do so.

The record is silent on the position of the county attorney and the trial judge regarding their refusal to approve the statement of facts.

When the county attorney would not agree to the statement of facts by refusing to approve it, it became incumbent on the trial judge to approve the statement of facts as presented or to prepare, certify, and file a statement of facts. Art. 759a, Vernon’s Ann.C.C.P.; Seamster v. State, 162 Tex.Cr.R. 172, 283 S.W.2d 243.

It appears from the record that the appellant has been deprived of a statement of facts without fault on his part, and under such circumstances he is entitled to a reversal of his case.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Frank E. ROCH, Appellant, v. The STATE of Texas, Appellee.
    No. 36097.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant was jointly indicted with one Stinson for burglary of a house occupied and controlled by J. B. Hutchens. Stinson applied for severance and the appellant pleaded guilty before a jury and was assessed a term of 4 years in the penitentiary. He appeals from such conviction.

The evidence introduced by the state showed that J. B. Hutchens was manager of the Golf Shop at the Hermann Park Golf Course; that about 2:30 A.M. on January 12, 1961, the appellant and Stin-son were found in the shop which had been broken into by jimmying or forcing open an outside door of the building and the entrance door to the Golf Shop.

Mr. Hutchens testified that he was not acquainted with appellant or with Stinson and did not give either of them permission to break into the Golf Shop.

The only issue for the jury was that of punishment.

No evidence was offered which manifested or raised an issue as to the innocence of the appellant. On the other hand, the evidence supported appellant’s plea of guilty and showed his guilt as charged, and the court properly instructed the jury to find him guilty. Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83, and authorities cited; and Gillies v. State, Tex.Cr.App., 346 S.W.2d 612, 88 A.L.R.2d 693.

No brief has been filed in appellant’s behalf.

No reversible error appearing, the judgment is affirmed.


text:
    Delmar Dee MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36116.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Sam Pater-nostro, Tom Reese and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

The proof of the state shows and the appellant while testifying admitted that he was driving a pickup at an excessive rate of speed on a public street about 12:25 a. m. on the date alleged.

Two officers testified that they saw the appellant immediately after he had stopped his pickup, heard him talk, saw him walk, smelled the odor of alcohol on him, and from appellant’s manner of driving the pickup, they expressed the opinion that the appellant was intoxicated.

Appellant, testifying in his own behalf, denied that he was intoxicated but stated he had drunk one and one-half bottles of beer from one to two hours before his arrest. Appellant’s wife and son testified to substantially the same facts as the appellant and stated he was not intoxicated.

No formal bills of exception appear in the record; and the informal bills have been considered and they do not show error.

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

Opinion approved by the Court.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Odis N. TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 35926.
    Court of Criminal Appeals of Texas.
    June 26, 1963.
    Rehearing Denied Oct. 23,1963.
    Second Rehearing Denied Nov. 20, 1963.

      James L. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, Neal English, Frank Wright and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

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

Officers Owens and Foster of the Dallas; Police Department testified that about 11:30s p. m., they saw the appellant driving an automobile in an erratic manner upon a. public street, including his driving almost one block in the wrong direction on a one-way street, and then turn into a parking area and stop; that they immediately approached the appellant, smelled a strong odor of alcohol on his breath, observed that his speech was slurred and his eyes bloodshot, that he was unsteady while walking and that he told them he had had several highballs. They expressed the opinion that the appellant was intoxicated.

Testifying in his own behalf, the appellant stated that after he closed his place of business about 9 p. m., he went to a lounge-where he drank one beer and visited untill 10:30 p. m., and left, going to a restaurant. When he drove into the parking area near the restaurant the officers drove in behind' him and stopped. The appellant stated that he told the officers he was stopping there to eat, but they arrested him and took him to the police station. He denied that he was intoxicated, or drove in an erratic manner, or had any difficulty in walking or talking, or that his eyes were red or his-face flushed. He called one witness who-testified that appellant had only one beer at the lounge about 10:30 p. m., and that he-was not intoxicated at the time.

Appellant urges error because of a statement volunteered by Officer Owens while-testifying before the jury. In answer to-the state’s question: “What did you do at the Jail office?” Officer Owens said: “Sir, we explained to the lieutenant the circumstances and the charge that we felt was-necessary, and he agreed with us.” Then the following transpired:

“MR. MITCHELL: Now, Your Hon- or, I object to the voluntary remark of this officer, and I submit to this Court that the Officer knows better than that and I submit that it is a direct violation of the Court’s ruling.
“THE COURT: I sustain the objection about the lieutenant agreeing. It was voluntary.
“MR. MITCHELL: And ask the Court to instruct the jury that that was an improper remark, hearsay; and should not be considered.
“THE COURT: I’ll instruct the jury to disregard the remark by the officer about what the lieutenant did, and you will totally disregard it; all right.”

The objection was sustained as to the agreement, but no motion was made to strike or have the statement of the officer withdrawn, or that the court declare a mistrial.

When the court had instructed the jury to totally disregard the remarks of the officer, it appears that appellant was satisfied, because he never asked the court for any further relief. No reversible error is presented. 5 Tex.Jur.2d 61, Sec. 39; Bearden v. State, Tex.Cr.App., 334 S.W.2d 447.

It is contended that the prosecuting attorney committed error when he offered in evidence a copy of the work sheet from which Officer Foster had previously refreshed his memory.

The appellant objected to the work sheet on the ground that the state had deliberately offered it for the purpose of prejudicing the appellant before the jury by forcing him to object, thereby creating the impression with tile jury that he was trying to keep something from them. Appellant further objected that this offer, coupled with Officer Owens’ previously volunteered statement of the lieutenant’s agreement, prevented him from getting a fair trial, and requested a mistrial, which was refused.

When the offer was made, the jury was immediately retired and the objection to the work sheet, which was sustained, was not made in the presence of the jury. Before this complaint arose, Officer Foster had been cross-examined about the work sheet and its use by him, and the prosecuting attorney had stated twice that appellant’s counsel could have it if he would let the jury see it. To this no objection was made. In the light of the record, no error is presented.

Appellant insists that the trial court erred in overruling his motion for a mistrial when Officer Owens testified that he was offered an intoximeter test and refused it.

During the appellant’s cross-examination of Officer Owens the above matter arose in the following manner:

“Q. I understood you to testify, Officer, that it was against Police regulations and would be a violation of regulations for you to take a person charged with DWI to a substation. Did I understand you correct? Did you say that, is all I want to know.
“A. In the case in question, yes.
“Q. Did you say that, did you testify that?
“A. The case in question, yes, it would have been a violation of policy.
“Q. Why?
“A. Because we offered the man an intoximeter test and he refused it, and he has to go before a doctor.
“MR. MITCHELL: Now, may it please the Court, that was unresponsive and we would at this time move for a mistrial. This officer volunteered some information that was not in response to the question. It was not elicited by any question, and it was made voluntarily. It is highly improper and highly prejudicial, and we at this time, move the Court for a mistrial.
"THE COURT: I think in view of your question, you asked him why he did something, that gives him leeway to state his reasons and for that reason I’ll overrule your motion for mistrial. However, I’m going to instruct the jury to disregard the answer of the witness.”

It is evident that the appellant brought out on cross-examination the testimony of which he complains. Therefore no error is shown. Hopkins v. State, 162 Tex.Cr.R. 103, 282 S.W.2d 232; Lowery v. State, 163 Tex.Cr.R. 241, 290 S.W.2d 532.

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

Opinion approved by the Court.

ON MOTION FOR REHEARING

MORRISON, Judge.

In our original opinion we held that the trial court did not err in overruling defendant’s motion for a mistrial made when the State offered the work sheet as evidence. Appellant urges that holding is incorrect. This Court has held that the mere offer of inadmissible evidence by the State is not reversible error where the objection is sustained and the evidence is not gotten before the jury. Parkman v. State, 149 Tex.Cr.App. 101, 191 S.W.2d 743, 747; Lovelady v. State, 150 Tex.Cr.R. 50, 198 S.W.2d 570, 572.

Appellant further contends that we were in error in holding that the trial court correctly overruled his motion for mistrial made when the State’s witness, Officer Owens, stated that the defendant had been offered an intoximeter test and had refused to take it. An attempt is made to distinguish the cases cited in our original opinion on the basis that here the testimony was not brought out on cross examination, but was received instead as an unresponsive answer. Appellant’s attention is directed to the case of Avant v. State, 168 Tex.Cr.R. 6, 323 S.W.2d 464, where on cross examination the appellant’s attorney was questioning an officer about an argument he had with appellant’s sister and brother-in-law. There appellant’s attorney determined that there was an argument and then asked “What about?”. The response was, “I offered the man a blood test”. This was held to be in reply to the question, and in view of the court’s instructions to the jury to disregard the answer, no reversible error was shown.

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


author: GRISSOM, Chief Justice.

text:
    C. W. NEWSOM v. Mrs. Minnie L. NEWSOM.
    No. 3828.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 20, 1963.
    Rehearing Denied Nov. 8,1963.

      Woodruff & Woodruff, Darrell R. Shelton, Brownwood, for appellant.
    Holloway & Slagle, Brownwood, for appellee.
   GRISSOM, Chief Justice.

S. Y. and Eula Newsom acquired, as community property, the J. J. Cox survey. Eula Newsom died intestate in October, 1918. C. W. Newsom was the only child of S. Y. and Eula Newsom and the sole heir at law of Eula Newsom. He inherited from his mother an undivided one-half interest in the Cox survey. In 1920, S. Y. Newsom, the father of C. W. Newsom, married Minnie Newsom. They lived on the Cox survey until S. Y. Newsom’s death in May, 1958. In July 1959, Mrs. Minnie Newsom bought a house in Brownwood and moved into said house and off the Cox survey. In April 1958, S. Y. and Minnie Newsom executed a deed to C. W. Newsom. They thereby conveyed to C. W. Newsom several small tracts of land aggregating 205 acres. That land is not here in controversy. They also conveyed to C. W. Newsom another tract described therein as “All of the J. J. Cox Survey No. 38, Abstract No. 216, patented to W. C. Dunn, assignee of J. J. Cox, by Patent No. 105, Vol. 7, now owned by grantors.” (Emphasis ours.). The grantors reserved possession of “the above described land and premises” and the rents, revenues and profits thereof during the natural life of grantors and the right to lease “said land above described” for oil and gas development. The consideration recited was love and affection for C. W. Newsom and for the purpose of partitioning “our” real estate among our three children. Neither of the grantors owned any part of the one-half interest in the Cox survey which C. W. Newsom had inherited from his mother in 1918. It was not their real estate. This was understood by all parties to the deed.

Mrs. Minnie Newsom sued C. W. New-som for (1) possession of said land, including all of the Cox survey, one-half of which had been inherited by C. W. Newsom in 1918. Mrs. Newsom alleged execution and delivery of said deed and that by virtue of the reservation therein she was entitled to exclusive possession of all the Cox survey. Mrs. Newsom also sued C. W. New-som for $1400.00 rent on the Cox survey. She alleged that in July, 1959, by a parol contract, she rented said Cox survey to C. W. Newsom for $350.00 per year and that he owed her $1400.00 for four years rent.

On December 20, 1962, in a trial to the court, judgment was rendered awarding Mrs. Newsom possession of all the Cox survey for life, but the court held that the parol contract leasing the land violated the statute of frauds and was not enforceable, and denied her a recovery of rent. C. W. Newsom appealed from the part of the judgment awarding his stepmother exclusive possession of all the Cox survey. Mrs. Minnie Newsom appealed from that portion of the judgment refusing her a judgment for rent.

We will first consider the contention of C. W. Newsom that the court erred in giving his stepmother exclusive possession of all the Cox survey during her life time because he is entitled to possession as the owner of an undivided one-half interest therein by virtue of inheritance of such interest from his mother. Mrs. Minnie Newsom contends that she is entitled to exclusive possession of all the Cox survey, despite C. W. Newsom’s ownership of a one-half undivided interest therein, because she reserved a life estate in all the Cox survey, including C. W. Newsom’s said interest, when she and S. Y. Newsom executed said deed to C. W. Newsom. The court found that, in April, 1958, S. Y. and Minnie Newsom conveyed to C. W. New-som all of the Cox survey, reserving the possession and benefit thereof during the life of the grantors; that C. W. Newsom accepted delivery of said deed and recorded it; that by accepting the deed “purporting to convey the whole” of the Cox survey, notwithstanding his ownership of a one-half interest therein, C. W. Newsom was estopped to claim possession of any part of the Cox survey during the life of Minnie Newsom. We think this was error. C. W. Newsom could not be estopped to assert a right to possession of part of the Cox survey by accepting delivery and recording said deed because it did not purport to convey all the Cox survey. It did not include C. W. Newsom’s interest. On the contrary it conveyed only “all of the J. J. Cox survey * * * now owned by grantors.” The grantors only owned a one-half interest and C. W. Newsom owned the other half. Such ownership had been known to, recognized by and acquiesced in by all of said parties for many years. C. W. New-som’s claim to the right of possession of part of the Cox survey was not in any way inconsistent with his acceptance of delivery and recording of a deed that conveyed only the interest then owned by the grantors, and then reserved a life estate in what was conveyed. See 31 C.J.S. Estoppel § 45, p. 225; 28 Tex.Jur.2d 617. The judgment is wrong insofar as it awards to Minnie New-som exclusive possession of all the Cox survey for life. She acquired by said deed no interest in that which C. W. Newsom already owned.

Mrs. Minnie Newsom contends the judgment should be reversed insofar as it denies her recovery of rent on the Cox survey. The court found that Mrs. New-som orally leased the Cox survey to C. W. Newsom for a term longer than one year.. We agree with the court’s holding that this parol agreement was unenforceable under the statute of frauds. Article 3995, Section 4; 26 Tex.Jur.2d 238; Hill v. Hunter, Tex.Civ.App., 157 S.W. 247, (Writ Ref.); Urban v. Crawley, Tex.Civ.App., 206 S.W.2d 158, (Ref. N.R.E.), and Walker Avenue Realty Co., Inc. v. Alaskan Fur Co., Inc., Tex.Civ.App., 131 S.W.2d 196, (Writ Ref.). The court correctly denied Mrs. Newsom a judgment for rent on the Cox survey.

The judgment is modified so as to deny Minnie Newsom exclusive possession of the Cox survey. In all other respects the judgment is affirmed.


author: WILSON, Justice.

text:
    M. W. FRUIT COMPANY, Appellant, v. C. T. SISSELL, Appellee.
    No. 4183.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1963.
    Rehearing Denied Nov. 7, 1963.

      Kelley, Looney, McLean & Littleton, Edinburg, for appellant.
    Strickland, Wilkins, Hall & Mills, Mission, for appellee.
   WILSON, Justice.

Plaintiff, owner of a grapefruit grove, sued defendant, a citrus fruit dealer under Art. 118b, Vernon’s Ann.Tex.Stats., as purchaser, for damages resulting from failure to pick the fruit before a freeze. He alleged the failure was a breach of the purchase contract. The trial court concluded the contract was unambiguous, and its interpretation was a matter of law not dependent on any disputed issue of fact. The only issue submitted or found by the jury related to damages. No complaint is made of the issue or verdict. Judgment for plaintiff was rendered on the damage finding.

The printed form contract was dated October 20, 1961. By its terms plaintiff sold to defendant all his grapefruit of merchantable quality at the time of picking for $35 per ton. The printed form provided that “all fruit hereby contracted for shall be picked by buyer approximately on or before Date -”, the blank being filled with the date, January 1, 1962.

Immediately after the contract was made the purchaser picked 67 tons of fruit, leaving on the trees what the jury found amounted, in January, 1962, to 45 tons of merchantable quality fruit. A freeze which the evidence shows occurred some time between January 8th and January 12th, 1962 destroyed the fruit remaining. Appellant says the freeze which caused most of the damage occurred January 11th or 12th.

Appellant does not assert the court erred in failing to submit to the jury any fact issue relating to the intention of the parties. On the contrary it insists it desires to make it clear that it is “not contending that the construction” of the contract “was not properly one for the court, rather than for the jury”; and that there is no contention that the agreement is ambiguous, or that its language had any special meaning by usage or custom. Appellant’s point is that, as a matter of law, it did not delay picking the fruit beyond a time which was “approximately on or before January 1, 1962”; that destruction by freezing occurred before that time expired; and the court erred in concluding that failure to pick before the freeze was a breach of the contract.

Having excluded consideration of any question concerning propriety of interpretation by the court as a question of law, appellant’s position requires us to determine only whether the trial court’s construction is erroneous as a matter of law.

The unqualified words, “on or before” would clearly require that the purchaser pick the fruit not later than January 1st. Lovenberg v. Henry, 104 Tex. 550, 140 S.W. 1079, 1080. Considered most favorably to appellant, and ignoring the words “or before,” the contract says the fruit should be picked “approximately” on January 1st.

The word “approximately” means, literally, “coming near” or “approaching closely”. Webster’s New International Dictionary (1959); I Century Dictionary 280. It is to be construed 'with reference and in relation to the subject matter. It has been variously defined as “very nearly”, “with only negligible variations from entire accuracy”, “a little more or less”, “close”, “nearly exact”, “about”, “without substantial variance”. 3A Words & Phrases p. 517; 6 C.J.S. 131; Black’s Law Dictionary (3rd ed.) 132.

We are of the opinion that where the time of delay after January 1 constituted from l/9th to l/6th of the total contract period of 72 days elapsing from its date to January 1st, the purchaser did not pick the fruit “approximately” on January 1st; and we cannot say that the trial court erred in concluding that appellant’s delay until the freeze destroyed the crop constituted a breach of the contract.

Appellant urges a further contract provision that the buyer should not be liable for damages caused by frost or freeze affecting the fruit prior to picking, absolves it of liability. The exculpatory clause became operative here as an excuse after the time for performance had passed, and subsequent to breach. Impossibility of performance by destruction of the subject matter of a contract of sale which supervenes after purchaser’s breach is not an excuse for nonperformance. 6 Williston, Contracts (Rev. ed.) Sec. 1967A. In our opinion the provision ceased to be effective as a defense when the time for performance had expired. Affirmed.


author: BARROW, Justice.

text:
    Billie Virginia SPENCER, Appellant, v. Edwin T. SPENCER, Appellee.
    No. 14158.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1963.

      J. Hubert Lee, Austin, John Romberg, Gonzales, for appellant.
    Denver E. Perkins, Gonzales, for appel-lee.
   BARROW, Justice.

This is an appeal by Billie Virginia Spencer from an order of the 25th District Court of Gonzales County, sustaining the plea of privilege of Edwin T. Spencer to be sued in Matagorda County, the county of his residence. The question presented is whether the petition filed by appellant is one for the enforcement of the child custody provision of the original divorce decree, rendered in Gonzales County, or is for change of custody.

Appellant and appellee were divorced in Gonzales County on January 15, 1955, and the custody of their two minor children was awarded to appellant, subject to appellee’s right to visit the children at reasonable times. In July, 1961, appellant suffered a nervous breakdown and went to the Austin State Hospital for treatment. Her father delivered the two minor children to appellee and they have remained in his custody since that time. Appellant was in the hospital for two months during the summer of 1961 and for two months the first part of 1962. She was discharged on April 12, 1962, under the authority of Sec. 80 of the Mental Code, Art. 5547, Vernon’s Ann.Civ.Stats. This section authorizes the head of a mental hospital to discharge a patient if he determines that the patient no longer requires hospitalization. On December 27, 1962, appellant filed this petition under the original cause number. She alleged that she was a resident of Travis County and that appellee was a resident of Matagorda County, Texas. After a hearing before the court, appellee’s plea of privilege was sustained and the cause ordered transferred to Matagorda County.

It is well settled that a court rendering judgment has exclusive jurisdiction for the purpose of enforcing its prior decree. Ex parte Gonzalez, 111 Tex 399, 238 S.W. 635; Taylor v. Taylor, Tex.Civ.App., 348 S.W.2d 226; Johnson v. Galloway, Tex.Civ.App., 277 S.W.2d 127. It is equally well settled that venue in actions for change of custody is in the county of the residence of the defendant. Spell v. Green, 144 Tex. 535, 192 S.W.2d 260; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Yeagle v. Bull, Tex.Civ.App., 235 S.W.2d 226. Therefore, we must determine the nature of this proceeding to ascertain the proper venue.

It is our opinion, from an examination of the petition filed herein by appellant, as well as her testimony on the plea of privilege hearing, that the true nature of this proceeding is one for alteration or change of custody of the children. Venue there fore lies in the county of appellee’s residence.

The divorce decree of 1955 placed custody in appellant. She became incapacitated in July, 1961. During her incapacity, she could not and did not exercise her legal custody of the children. When her incapacity occurred, her father delivered the actual custody of the children to appellee. Appellant remained in the hospital for two months and did not disturb this actual custody upon her release. She reentered the hospital in the first part of 1962, and was released the second time in April, 1962. This petition was not filed until some eight months later. Hence, for a period of eighteen months, she either was unable to exercise her legal custody or voluntarily surrendered the actual custody to appellee. His possession was prima facie lawful. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Stinson v. Rasco, Tex.Civ.App., 316 S.W.2d 900.

In Thomas v. Thomas, Tex.Civ.App., 228 S.W.2d 548, it was held that when the legal custodian was adjudged of unsound mind, the other parent of the child automatically became the legal custodian. See also Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. This is a wholesome rule in that it does not leave the custody of the children unsettled pending a hearing, as required under the contrary rule. Cf. Aberlin v. Zisman, 1 Cir., 244 F.2d 620. When appellant felt she was again able to care for the children, she was entitled to bring her petition to change or modify appellee’s custody of them. The venue for this petition is in Matagorda County. Thomas v. Thomas, supra.

Moreover, the petition filed herein by appellant recognized that the custody of the children was with appellee. She did not bring this suit to enforce the original decree, nor for a contempt action. On the contrary, it is seen that it would be necessary to alter the original divorce decree in order to grant appellant the relief she seeks. Her petition is styled: “Defendant’s Application to Alter Judgment Providing Child Support Payments by Plaintiff and for Temporary Restraining Order and Temporary Injunction.” It is clear, however, that the purpose of this petition was not to reduce the amount of child support paid her. She did allege that appellee was now required to support five children, including the two involved herein, and that his child support payment to her should be reduced from $100.00 per month to $25.00. Appel-lee made no such request and appellant has not briefed any point in connection with the child support.

Appellant alleged and testified that ap-pellee had refused to permit her to visit the children during either the Thanksgiving or Christmas holidays of 1962. She asked for an injunction ordering him to desist from interfering with her taking the children from his home to visit with her during the 1962 Christmas holidays. She further alleged that it was in the best interest of the children that they remain with ap-pellee until school was out in June, 1963, but asked for an injunction to prevent ap-pellee from interfering with her visiting the children on week-ends. The relief sought by appellant would require the court to alter the custody of the children at least to this extent. This issue would involve more than the enforcement of the original divorce decree. Leonard v. Leonard, Tex.Civ.App., 358 S.W.2d 721; Bezner v. Sawyer, Tex.Civ.App., 217 S.W.2d 858.

The judgment is affirmed.