author: GREENHILL, Justice. HAMILTON, Justice

text:
    PON LIP CHEW et al., Petitioners, v. Craig GILLILAND, Jr., Respondent.
    No. A-10402.
    Supreme Court of Texas.
    Nov. 17, 1965.
    Rehearing Denied Feb. 2, 1966.

      Fryer, Milstead & Luscombe, Wellington Y. Chew, El Paso, for Pon Lip Chew, one of petitioners.
    Harris, Ball & Davis, Arlington, for Rio Grande Produce Co., petitioner.
    Samuel K. Wasaff, Gerald B. Shifrin, El Paso, for respondent.
   GREENHILL, Justice.

Pon Lip Chew alleged that he was bodily thrown off the loading platform of the Rio Grande Produce Company in El Paso by Craig Gilliland, Jr., president and general manager of the company. He suffered bodily injury including the fracturing of two vertebrae in his back, and brought suit against Gilliland and the company. The jury answered the special issues submitted to it, and returned its verdict into court. The trial judge, upon inspecting the answers, considered that there was a conflict in some of the jury’s answers. So he instructed them to retire to further deliberate their verdict. The jury, upon retirement, changed its answers in certain respects. The result was a verdict and judgment for Pon Lip Chew for $35,824.90.

The El Paso Court of Civil Appeals was of the view that there was no irreconcilable conflict in the jury’s original answers and that the trial court erred in sending the jury back into the jury room. It reversed the trial court’s judgment; and instead of rendering judgment against Pon Lip Chew, it remanded the case for a new trial in the interest of justice. 381 S.W.2d 671.

To place the charge to the jury and the jury’s answers in context, we briefly review the evidence. Pon Lip Chew was a 63-year-old American citizen. He was born in China and received a few years of education there. He spoke little English and some Spanish in addition to Chinese. He earned his living peddling vegetables out of a truck. He had been a regular customer of the Rio Grande Produce Company for many years. He purchased produce from that company almost every day, sometimes more than once a day. While the company sold by wholesale to many large customers including the U. S. government at its various establishments and posts including Fort Bliss, it also sold to over a hundred small customers such as Chew.

The produce company opened for business early in the morning. Mr. Gilliland testified that it set out boxes of its various fruits and vegetables for its buyers to look at. These boxes were intended for display purposes. He preferred that the customers not disturb these boxes, though it was not uncommon for buyers to handle and inspect the merchandise. If the purchaser wanted to buy any of the items, other merchandise of a similar character would be taken from a storage room for sale. The produce in the display box would be sold later in the day by the company, after the morning buyers had made their selections.

Chew had apparently irritated Gilliland and the company’s salesmen by picking over the merchandise in the display boxes. They testified that they had repeatedly asked Chew not to put the contents of the boxes on the floor.

At about 6 a. m. on the day in question, Chew had backed his truck up to one of the loading platforms of the produce company. He and several other customers were inspecting and buying or preparing to buy. One of the display boxes set out was of asparagus. Chew knelt in front of the box and was sorting the asparagus bundles. He had two stacks of them on the floor, apparently intending to purchase one stack. Gilli-land, who was then 39 years of age and weighed about 240 pounds, upon thus seeing Chew, came up behind him and kicked him in the buttocks and told him to get off the platform. This large man seized the 63-year-old Chew, who weighed 135 pounds, by the back of his neck and the middle of his clothes and proceeded to march him off the platform.' There’was no testimony of previous ill-will between Chew and Gilliland. According to Gilliland and other employees of the company, Chew broke free and jumped off the platform. Gilliland admitted nudging Chew with his knee but denied throwing him off the platform. According to Chew and two other witnesses including the government purchaser for Fort Bliss, Gilliland threw Chew off the platform' which was some five feet off the ground. The government purchaser said Chew looked like a dog who had been struck by a car —he tried to get up but could not.

When Chew did get up, he hailed a passing police car. The policeman apparently could not understand Chew; so he went to talk to Gilliland. Gilliland told the officer to take Chew away, that he didn’t want to prefer any charges but that he did not want him around the place. He also wanted Chew’s truck moved. The officer said that Chew would not move his truck; so he took Chew “downtown” to talk to the lieutenant. No charges were filed against Chew. The “defense of property” relied upon by Gilli-land was his effort to stop Chew from disturbing or disrupting the produce display case of asparagus and' from getting the vegetables dirty on the floor.

After the incident Chew spent approximately two months in the hospital. His bill was over $1,500. There was medical evidence that he had been permanently disabled. Two vertebrae in his back were fractured. There was also medical testimony that Chew’s injuries were not so serious and were not permanent.

We now turn to the court’s charge and the answers of the jury to determine whether the trial court erred in causing the jury to re-examine its answers because of conflicting findings. Included in the charge were the definitions and instructions set out below. The important definition is that of assault and battery. The court’s charge read in part:

“To aid you in your consideration of the issues hereinafter submitted, the Court gives you the following explanations, instructions, and definitions.
“The use of any unlawful violence upon the person of another, with intent to injure, whatever be the means or degree of violence used, is an assault and battery. When an injury is caused by violence to the person, then intent to injure is presumed and it rests with the person inflicting the injury to show the accident or innocent intention.
“Violence used to the person of another does not amount to an assault or battery when made by one to protect property under his care and to prevent any intrusion upon the lawful possession of such property, provided in so doing no more force is used than necessary under the attending circumstances.” [Emphasis ours.]

Following these and other instructions were the following issues and answers thereto:

“1. Do you find * ⅜ * that * * * the Defendant, Craig Gilli-land, Jr., did commit an assault and battery upon the Plaintiff, Pon Lip Chew?” Answer: Yes.
“12. Do you find * ⅜ * that at the time and place in question the Defendant, Craig Gilliland, Jr., was acting in defense of the property of the Rio Grande Produce Company?” Answer: Yes.

Issue No. 13 was conditioned upon an affirmative answer to Issue No. 12. It read:

“13. Do you find * * * that ⅜ ⅜ * Craig Gilliland, Jr., did not use more force than reasonably appeared to him to be necessary under the circumstances in defense of the property of the Rio Grande Produce Company, if you have found that he acted in such defense of such property.” Answer: He did not use more force.

When the jury returned these answers, the trial court gave the jury these written instructions:

“Ladies & Gentlemen of the Jury:
“The Court cannot receive your verdict on account of a conflict of findings. Your answer to question No 1 conflicts with your answer to question No 12 & 13. You will therefore retire to the Jury room & deliberate further of your verdict.”

The jury did retire. Upon reconsideration it left the answer to Issue No. 1 “yes”; i. e., that Gilliland did commit an assault and battery on Chew. It changed its answer to Issue No. 12 to “no,” thus finding that Gilliland was not acting in defense of the property of Rio Grande Produce Company. Issue No. 13 was conditioned upon an affirmative answer to Issue No. 12; so the jury struck out its answer to No. 13 which had read: “He did not use more force [than was necessary to protect property].”

We are of the opinion that the answers as originally returned were in conflict and that the trial court did not err in sending the jury out to further deliberate upon its answers. Under the definition of assault and battery given to the jury, the jury was told that unlawful violence upon another would constitute an assault and battery. It was further told, however, that violence used upon the person of another does not amount to assault and battery when made by one to protect property under his care, provided no more force is used than necessary.

When the jury answered Issue No. 1 “yes,” it necessarily found under the above definition of assault and battery that Gilli-land did use unlawful violence upon Chew, and that Gilliland either (1) was not acting in defense of property, or (2) if he was defending property, he used more force than was necessary. Then in answers to No. 12 and No. 13, the jury found that Gilliland was acting in defense of property and did not use more force than was necessary. The answer to Issue No. 1 thus was in conflict with Issues No. 12 and No. 13.

The conflict in the verdict falls within the tests laid down by this Court in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). If Issue No. 1 is disregarded, and Issues No. 12 and No. 13 are considered [Gilliland was acting in defense of property and did not use excessive force], a judgment for defendant would be required. If Issues No. 12 and No. 13 are disregarded and Issue No. 1 considered [Gilliland committed an assault and battery upon Chew as that term was defined], a judgment would have been required for the plaintiff Chew.

Rule 295, Texas Rules of Civil Procedure, says in part: “If it [the verdict] contains conflicting findings, the court shall call the jury’s attention thereto in writing and send them back for further deliberation.” The trial court acted correctly under this Rule.

When the jury reconsidered its verdict, its answers were harmonious: Gilliland did commit an assault and battery upon Chew, and Gilliland was not acting in defense of property. With the questions thus answered, the intention of the jury was made clear.

The case most strongly relied upon by Gilliland (though not cited by the Court of Civil Appeals) is Howard v. Howard, 102 S.W.2d 473 (Tex.Civ.App.1937, writ refused). Assuming the soundness of that holding, it is not in conflict with this opinion. The issues in Howard do appear to be in conflict. The issues were: (1) the plaintiff did receive injuries [and these injuries were] as the result of an assault and battery committed by defendant, and (2) the defendant was acting in self-defense. The opinion of the Court of Civil Appeals in that case was not based on any lack of conflict in the issues but upon the duplicitous nature of Issue No. 1: that (1) plaintiff received injuries, and (2) the injuries were a result of an assault and battery. The court stated, “It [Issue No. 1] is, we think, manifestly duplicitous.” The court interpreted this issue to mean that the jury really found (or meant to find) that plaintiff did receive injuries. It disregarded the second part of the issue as being descriptive of the occasion on which the injuries were received in view of the finding that defendant was acting in self-defense. In so holding, the court stated: “ * * * where one finding Is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon.” It then concluded :

“Under these circumstances, therefore, we think the trial court was authorized to reasonably construe the answer to special issue No. 1 as being the jury’s conclusion that appellant had sustained injuries, which they were asked to find, and not as a finding that appellee was guilty of an unlawful assault and battery, of which latter issue they found him not guilty in the next question submitted to them. This construction reconciles the apparent conflict, and is, we think, a reasonable one.”

Special Issue No. 1 in the case at bar is not duplicitous. It simply asks: “Do you find from a preponderance of the evidence that on or about the 10th day of May, 1961, the Defendant, Craig Gilliland, Jr., did commit an assault and battery upon the Plaintiff, Pon Lip Chew?”

Since we have held that the Court of Civil Appeals erred on the ground on which it reversed the trial court, we look to the brief of the prevailing party in the Court of Civil Appeals (Gilliland) to see if there are other grounds on which the judgment of the Court of Civil Appeals may be affirmed. Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806 (1958).

Gilliland contends that he was entitled to an issue on whether the injuries, if any, to Chew were inflicted in whole or in part by the police officer or officers who put Chew into the police car and took him to the police station. Gilliland’s counsel requested such an issue, and it was refused by the trial court. Assuming without deciding that there was evidence to raise the issue, the point is not preserved. The requested special issue was one of a series of requested issues, all tied together. The request began with a long discussion or instruction to the jury dealing, among other things, with the right to eject trespassers. The record in this case does not raise an issue of trespass by Chew. Moreover this issue [called requested issue No. 6] is conditioned upon an affirmative finding of other special issues which were not given and which are not before us. The point is overruled. Isenhower v. Bell, 365 S.W.2d 354 (Tex.Sup.1963).

Gilliland contends that the trial court should have granted a mistrial because of the instruction which the court gave the jury in sending it back to reconsider its verdict. It is contended that the instructions informed the jury of the effect of their answers and constituted an improper comment. The court’s instruction, set out above in full, was that the court could not receive the verdict because the answer to Issue No. 1 conflicted with the answers to 12 and 13; and it was requested to retire and deliberate further. The trial court atted correctly under the circumstances. Dallas Ry. & Terminal Co. v. Starling, 130 Tex. 379, 110 S.W.2d 557 (1937); Meadolake Foods v. Estes, 218 S.W.2d 862, 870 (Tex.Civ.App.1948, writ refused, n. r. e., with per curiam opinion, 219 S.W.2d 441); Rule 295, Texas Rules of Civil Procedure.

Gilliland has several points of error contending that there was no evidence to support certain jury findings, that other matters were established as a matter of law, and that the trial court erred in not granting his motion for judgment notwithstanding the verdict. We have read the entire Statement of Facts and disagree with these contentions. The points are overruled.

We have examined Gilliland’s other points, and they, too, are overruled with the exception of the point discussed below.

Gilliland’s Point 15 in the Court of Civil Appeals was that the amount of the verdict was excessive. The particular items complained of are set out in the point. The point was raised in Gilliland’s motion for new trial and was properly before the Court of Civil Appeals. The question of whether the amount of damages awarded' in the trial court is excessive is a question of fact over which this Court has no jurisdiction. The Court of Civil Appeals did not rule upon this point in view of its disposition of the case on other grounds. The question of excessiveness is within the jurisdiction of the Court of Civil Appeals. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180 (1960); Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); James P. Hart, “The Appellate Jurisdiction of the Supreme Court,” Appellate Procedure in Texas (1964), page 20-4, § 20.2.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to the Court of Civil Appeals for the purpose of having that court pass upon the excessiveness of the verdict. If that court determines that the amount of the verdict is excessive, it shall enter judgment in accordance with the procedure set out in Rule 440, Texas Rules of Civil Procedure. If it determines that the amount of the verdict is not excessive, it shall render a judgment affirming the judgment of the trial court.

GRIFFIN and HAMILTON, JJ., dissent.

HAMILTON, Justice

(dissenting).

I respectfully dissent.

In reconciling the apparent conflict in the answer to question No. 1 with answers to Questions 12 and 13 the Court of Civil Appeals said:

“It seems readily conceivable that while the jury, by its answer to Special Issue No. 1, found that there was an assault and battery, in its generally accepted meaning, committed by Gilli-land upon Chew, it was not an actionable assault and battery because of the defensive elements found by the jury to have been existent by their answers to Special Issues 12 and 13.”

The effect of this holding is to say that even though the jury finds in answer to-the issue No. 1 that the acts of violence committed by Gilliland upon the person of Chew amounted to an assault and battery, an express and specific finding by the jury that Gilliland while committing those acts was acting in defense of property without the use of more force than was necessary does not present an irreconcilable conflict which would prevent a judgment being entered for Gilliland on the verdict. This holding of the Court of Civil Appeals is supported by the case of Howard v. Howard, 102 S.W.2d 473, by the Austin Court of Civil Appeals, (1937), which holding this Court approved by refusing the writ of error. The question involved in said case is very closely in point with the question involved in this case, as I here now point out.

Two issues involved in said case and the jury’s answers thereto were as follows:

1. “Do you find from a preponderance of the evidence that the plaintiff, Travis Howard, sustained an injury or injuries as the result of an assault and battery, if any, made upon him, the-said Travis Howard, by the defendant, Eugene Howard?
“To which the jury answered, ‘Yes.’ ”
2. “Do you find from a preponderance of the evidence that such injury or injuries, if any you have found, were inflicted by the defendant, Eugene Howard, upon the plaintiff, Travis Howard, while the said Eugene Howard was not acting in self-defense?
“To which the jury answered: ‘Defendant was acting in self-defense.’ ”

The court in its charge defined the terms assault, assault and battery, self-defense and other terms not material here. In holding that the answers to these two issues were not in conflict and that judgment was correctly entered for the defendant the court said:

“The jury apparently, in view of their answer to special issue No. 2, treated the term assault and battery as merely descriptive of the altercation involved, * * *. But issue No. 2, which submitted the element determinative of whether or not an assault and battery in violation of law had been committed, and the jury’s answer thereto, was an express and specific finding against the appellant on that issue which barred any recovery by him. That being true, we think the trial court properly reconciled these apparently inconsistent findings of the jury, and rendered a proper judgment on the clear, definite, and unambiguous finding in answer to issue No. 2.
******
“As stated, it was incumbent upon appellant to show that he sustained injuries as the result of his altercation with appellee; and, further, that such injuries were the result of an unlawful attack upon him. Both of these matters were included within special issue No. 1 [assault and battery issue]. In answer to the following issue No. 2 [the self-defense issue], the jury found that there was no assault and battery in legal contemplation. Under these circumstances, therefore, we think the trial court was authorized to reasonably construe the answer to special issue No. 1 as being the jury’s conclusion that appellant had sustained injuries, which they were asked to find, and not as a finding that appellee was guilty of an unlawful assault and battery, of which latter issue they found him not guilty in the next question submitted to them. * * * ”

It is apparent that the holding of the court is based on the premise that the issue on assault and battery is a general finding and in view of the subsequent finding of the jury in answer to the specific issue of self-defense, the jury was not passing upon the self-defense issue when it answered the issue on assault and battery. However, the Austin Court of Civil Appeals in making such a holding explicitly recognized the rule that where findings of the jury are in irreconcilable conflict they nullify each other and no judgment can be entered thereon. This court later specifically recognized the same rule in Little Rock Furniture Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

However, this court also recognizes the general rule that it is the duty of the courts to construe verdicts as not being irreconcilably conflicting when there is any reasonable explanation of the seeming conflict. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Texas & Pacific Railway Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

The question before us is controlled by-Howard v. Howard, supra. The only difference in that case and the instant case is that the defense in the Howard case was that of self-defense while here respondent’s defensive theory was his defense of property. Art. 1142 of the Vernon’s Ann.Texas Penal Code provides that violence used upon the person of another does not amount to an assault and battery when one . acts in defense of property or in defense of his own person without using more force than is reasonably necessary.

In harmony with the holding of the Howard case is the case of Redmon v. Caple, 159 S.W.2d 210, (Tex.Civ.App.), writ dismissed, w. o. m. There the jury found that the action of defendant in firing a shotgun constituted an assault upon the plaintiff which was'the proximate cause of plaintiff’s injury and further found that defendant fired to prevent or interrupt an intrusion upon lawful possession of defendant’s property. The Court of Civil Appeals held that judgment was properly entered upon the verdict for the defendant. See also Dixon v. Samartino, 163 S.W.2d 739, (Tex.Civ.App.), writ dismissed w. o. m.

In the case before us petitioner Chew alleged that respondent Gilliland committed certain violent acts against the petitioner’s person which amounted to an unwarranted and unreasonable assault and battery. Respondent Gilliland in his pleadings admitted such intentional use of violence on the person of Chew as would, standing alone, amount to assault and battery as a matter of law. The respondent further alleged and offered evidence in support thereof that in using such violence he did it in protection of the property of Rio Grande Produce Company and that in so acting he did not use more force than was necessary. The record reflects that in the trial of this case the principal controversy was not whether Gilliland committed acts which could constitute assault and battery upon the petitioner Chew, but was whether or not Gilliland in committing such acts of violence used more force than was necessary in protecting property of the Rio Grande Produce Company. I think it is a reasonable conclusion that the jury in answering issue No. 1 on assault and battery was not considering the defensive issues which were submitted as issues Nos. 12 and 13.

In distinguishing the Howard case from the instant case this court says that the opinion of the Court of Civil Appeals was not based on any lack of conflict in the issues but upon the duplicitous nature of issue No. 1 (which is set out above). Then the court quoted the said Court of Civil Appeals “ * * * where one finding is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon.” When the whole sentence from which this court quotes is considered it is found that it is not only when one finding is duplicitous and another is definite and specific, the specific controls over the duplicitous finding, but also where one finding is general and the other is specific, the specific finding controls over the general. The complete sentence is here quoted:

“But it is also a settled rule that where such apparent conflict can be reasonably reconciled; or where one finding is general and the other specific ; or even where one finding is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon.” (Emphasis added.)

It is true that issue No. 1 in the instant case is not duplicitous, but it is general. In view of the instructions and definitions given by the court, the jury in answering issue No. 1 on assault and battery in this case was required to answer five different issues: (1) Did Gilliland use force upon the person of Pon Lip Chew? (2) Was the force unlawful? (3) Was it used with intent to injure? (4) Was such force used in the defense of property? (5) Was more force used than was reasonably necessary under the circumstances? Strictly speaking, the whole lawsuit was tied up in this one general issue except as to damages. Whether or not this case is decided upon a reconciling of an apparent conflict or upon the basis that a specific finding controls over a general finding, the Howard case is authority for the holding of the Court of Civil Appeals in this case.

I would affirm the judgment of the Court of Civil Appeals remanding the cause.

GRIFFIN, J., joins in this dissent.


source: Caselaw Access Project

author: HAMILTON, Justice.

license: Public Domain

text:
    S. S. McCALL et al., Petitioners, v. Bob MARSHALL, d/b/a Bob Marshall Motors, Respondent.
    No. A-10604.
    Supreme Court of Texas.
    Dec. 31, 1965.
    Coleman Gay, Austin, for petitioners.
    E. B. Fuller, Mitchell & Gilbert, Brown, Sparks & Erwin, Will G. Barber, Austin, for respondent.
   HAMILTON, Justice.

Respondent Bob Marshall, an Austin automobile dealer, brought suit originally against the petitioners, S. S. McCall, George S. McCall, and H. T. Hibler, doing business as McCall and Hilber Company, an insurance agency. The basis of respondent’s cause of action is the alleged failure by the petitioner McCall and Hibler Company to properly handle Marshall’s insurance coverage concerning his business. Petitioner had sold Marshall a policy issued by the Hartford Fire Insurance Company. Respondent also sued Hartford, contending that the insurance company had issued him a fire insurance policy to which was added on January IS, 1963, an endorsement covering an additional location at 508 South Congress Avenue. A fire destroyed seven of respondent’s automobiles at this new location on January 15, 1963, at approximately 4:55 p. m.

The trial court granted Hartford’s motion for an instructed verdict and rendered judgment in its favor. Based upon the verdict of the jury, the trial court entered judgment that respondent Marshall take nothing against the petitioner McCall and Hibler Company.

The Court of Civil Appeals affirmed the trial court’s judgment in favor of the Hartford Fire Insurance Company but reversed and remanded the cause against the petitioner McCall and Hibler Company. 385 S.W.2d 467.

We affirm the judgment of the Court of Civil Appeals as to Hartford but reverse that Court’s judgment and affirm that of the trial court as to the petitioner McCall and Hibler Company.

We will first dispose of respondent Marshall’s alleged cause of action against the petitioner.

Briefly, the facts are that the respondent, doing business as Bob Marshall Motors, operated a used car business at the corner of West 5th and West Avenue in Austin. Automobiles of the insured on display or in storage at this location were covered by a policy issued by Hartford. The policy’s provisions in issue are as follows:

“2. LOCATIONS
“Named Locations — The insured represents that the specific locations named herein are all of the locations or spaces within locations owned, rented or controlled wholly or in part and used by the insured as places of display or storage of automobiles on the inception date of the policy. The company’s limit of liability for each such location shall be as stated herein.
“NAMED LOCATIONS
“Limit of Liability
Show Main Sales Location First
$35,000.00
at West 5 th and West Avenue
“UNNAMED LOCATIONS—
“(a) The insured shall report to the company any other location owned, rented or controlled wholly or in part by him which he commences to use as a place of display or storage of automobiles. Prior to receiving such report, the company shall not be liable for loss occurring after the first 45 days following the commencement of such use and the company’s limit of liability at any such location shall not exceed $5,000.00.
“(b) As respects automobiles at locations other than those named herein or in another policy affording the insured insurance against loss covered hereunder or described in paragraph (a) above, the company shall not be liable for loss occurring more than 7 days after liability could first attach as respects any one location and the company’s limit of liability at all such other locations shall not exceed $5,-000.00.”

On or about December 18, 1962, respondent opened up a new or additional location on South Congress Avenue to “make ready” or repair his automobiles for display or storage at his main location at West 5th and West Avenue.

The jury found that prior to January 15, 1963, respondent told Hibler of the location at 508 South Congress, but failed to find that the respondent requested Hibler to include the South Congress “make ready” shop in his insurance policy as an “additional named location.” The jury did not answer the special issue inquiring whether after such notice, Hibler’s failure to secure for the respondent, insurance covering his automobiles when at the new location, was negligence.

The record shows that the petitioner McCall and Hibler Company had handled respondent’s insurance needs for about seven years previously but that approximately one year before the fire, respondent had taken his insurance business to another agent for some six months. This apparently proved mutually unsatisfactory and at the end of the six-month period, respondent again let the petitioner write his insurance coverage. Respondent testified that generally he sought the advice of the petitioner on the types of coverage but that he alone decided as to the total dollar amounts of insurance that he wanted. On the same day after the fire, respondent talked to Hibler on the telephone and told him of his loss. Without being specifically requested to do so, Hibler voluntarily insured the damaged cars for $20,000 salvage value and respondent paid the premium.

The respondent’s assignments of error before the Court of Civil Appeals were to the effect that since Hibler had been notified of the new location, then the petitioner McCall and Hibler Company was negligent as a matter of law in failing to extend full coverage to that shop. In the alternative, respondent Marshall urged that the trial court erred in rendering judgment for petitioner because the jury verdict was incomplete since the jury did not answer the negligence issue and there was sufficient evidence of probative force so that the jury could find that the McCall and Hibler Company was negligent in failing to extend respondent’s insurance coverage to his new repair shop.

The Court of Civil Appeals upheld the alternative contention of respondent and reversed the judgment of the trial court. In so doing that court said there was more than a scintilla of evidence from which a jury could have found that the petitioner McCall and Hibler Company was under a duty to insure Marshall’s cars at the South Congress location. The effect of this holding was to say that the jury’s verdict was incomplete because the negligence issue was not answered.

The petitioner, maintains that under the undisputed evidence in this case there was no duty imposed upon it to provide additional coverage of insurance for Marshall at the South Congress location, and that therefore there could be no negligence in failing to provide such coverage. We agree with the petitioner on this point and hold that the facts of this case fail as a matter of law to impose a duty upon the petitioner to provide additional insurance coverage for the South Congress location and that therefore petitioner could not have been held negligent in failing to so provide. In the case of Dennison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540, 45 L.R.A.,N.S., 303, this court said:

“Negligence is constituted only through failure to discharge a duty. * * * On the contrary, if under such circumstances the law did not impose that duty upon it, its act did not amount to negligence, and no recovery can be predicated upon it.”

There are several cases which hold that certain fact situations impose a duty upon the agents to provide coverage for the customer, but we find that these cases can be distinguished on their facts. Here, no specific request by the insured for additional coverage occurred as in Burroughs v. Bunch, 210 S.W.2d 211 (Tex.Civ.App. 1948, error ref.). Nor had the insurance company with which the agent had placed the insured’s property become insolvent with the agent failing to replace the coverage with a solvent insurer. Diamond v. Duncan, 107 Tex. 256, 172 S.W. 1100 (1915), motion for rehearing overruled, 107 Tex. 256, 177 S.W. 955. Also, this is not a case in which the agent failed to renew the policy or to notify the insured that his policy had lapsed. Diamond v. Duncan, supra.

An insured’s expectation of the agent to either renew his policy or at least inform him of the impending lapse is different from an expectation for extended coverage. Even the fact that Hibler, voluntarily and on his own, insured the automobiles at their salvage value after the fire does not persuade us to hold under the circumstances of this case that the petitioner was under a legal duty to insure the new location without being requested to do so. We are to be understood as holding that no legal duty arises on the part of an insurance agent to extend the insurance protection of his customer merely because the agent has knowledge of the need for additional insurance of that customer, especially in the absence of evidence of prior dealings where the agent customarily has taken care of his customer’s needs without' consulting him.

In his application for writ of error, petitioner Marshall assigned as error the action of the Court of Civil Appeals in holding that there was no admissible evidence in this case that Hartford had admitted a liability of $5,000 to petitioner and that the testimony of the insurance adjuster of Hartford to this effect was properly excluded by the trial court.

The Court of Civil Appeals has set out in its opinion the relevant testimony and holds that “we do not believe that this testimony was so clearly an admission of liability as distinguished from an offer of compromise that the trial court was deprived of his discretion in determining its admissibility, and we sustain his ruling in this respect.” We agree and approve the holding of the Court of Civil Appeals as to this contention. International & G. N. R. Co. v. Ragsdale, 67 Tex. 24, 2 S.W. 515, 517 (1886).

Petitioner Marshall also urges that the Court of Civil Appeals erred in holding that he was limited by his pleading to a theory of recovery grounded only upon the endorsement and not upon the general coverage provisions of his insurance policy. Assuming without deciding that Marshall was not so limited in his pleadings, we hold that he did not bring himself within any of the provisions of the policy in question.

After this writ of error was granted, we wrote on the question of general coverage arising under a similar policy in Royal Indemnity Company v. Marshall, 388 S.W.2d 176, 177 (Tex.1965). There petitioner’s son was trying to recover damages to three of his own automobiles that were destroyed in the same fire at the South Congress location. Petitioner and his son, Bob Marshall, Jr., were in business together. The policy provisions in issue were the same as those in this case except that a different insurance company had written the coverage. We there held that under the terms of the policy, the only recovery available to the son was under the section entitled “Unnamed Locations (b)” which provided that his cars would be covered for a period of seven days at any unnamed location if they were not there for the purposes of display or storage. Since the testimony showed that the plaintiff had his automobiles at the unnamed location longer than seven days after that repair shop was first opened, we concluded that under the terms of the policy, there was no insurance protection available to the plaintiff under the provisions of the policy.

We have similar facts here and for the reasons mentioned in the Royal case, supra, we hold that the petitioner cannot recover under the provisions of the Hartford policy.

Because of this holding, we do not reach the issue of whether the petitioner submitted a substantially complete proof of loss form to the insurer Hartford.

We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court in favor of petitioner McCall and Hibler Company. We affirm the judgment of the Court of Civil Appeals in favor of the respondent Hartford Fire Insurance Company.


author: POPE, Justice. GREENHILL, Justice

text:
    MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, Petitioner, v. Mary Louise HUDMAN, Respondent.
    No. A-10594.
    Supreme Court of Texas.
    Dec. 31, 1965.

      Brundidge, Fountain, Elliott & Churchill, Bobby D. Dyess, Dallas, for petitioner.
    Hardeman, Smith & Foy, San Angelo, for respondent.
   POPE, Justice.

The question presented is whether Mary Louise Hudman, the beneficiary of an accident policy which limited coverage to death from accidental injury “independently of other causes,” may recover under the policy when the insured’s death resulted from the combined effects of the injury and a preexisting disease. She obtained a judgment in a case tried before the court without a jury and the intermediate court affirmed. 385 S.W.2d 509. We reverse those judgments and render judgment that the beneficiary take nothing.

Paul Hudman, a fifty-four year old pharmacist, was the insured under an accident policy issued by Mutual Benefit Health & Accident Association which limited recovery for accidental death by these two clauses:

“The applicable benefit amount shown below will be paid to the beneficiary named in the policy * * * if covered injuries result in your death, independently of other causes, within 90 days after the date of the accident.
“ ‘Covered injuries’ mean accidental bodily injuries which you receive while you are driving or riding in any private passenger automobile. * * * ”

Hudman worked on his farm outside of San Angelo during the afternoon of April 28, 1963. The evidence supports the trial court’s findings that he died in his pickup truck of ventricular fibrillation after he had worked hard on a hot day that was marked by extreme fluctuations in humidity. One of the medical witnesses testified that Hudman’s “continued exertion of driving the pickup, after the extremely hard labor of the day, contributed to the onset of fibrillation.” Prior to his death he was in apparently good health and had never had a diagnosis of or treatment for heart trouble. The trial court also found that arteriosclerosis df Hudman’s coronary artery was a predisposing condition and not a proximate cause of his death, and that of itself, the condition would not have caused Hudman’s death.

All of the evidence shows that Hudman died from the effects of two concurring causes. The cause of death was proved by three medical experts, one called by the plaintiff and two by the defendant. Their testimony is in agreement that death resulted from fibrillation of Hudman’s heart and the evidence shows that Hudman’s overexertion and his diseased heart concurrently caused the fibrillation. The Court of Civil Appeals found from the facts that “[tjhere is no question but that the diseased condition of Mr. Hudman’s heart contributed to his death.” We shall briefly summarize the testimony.

Dr. Lloyd R. Hershberger testified about an autopsy he performed in the presence of two other doctors and the attorneys for the parties. His report described the anterior descending branch of the left coronary. It stated that “2 cm. below its origin, it becomes quite narrow and is reduced to a slit-like opening. * * * I would estimate that the diameter of the channel is about one-eighth of that which is normal. This descending branch then returns to a more normal diameter as it is examined distal to this narrowing, but about 4 cm. distal to the origin, we again find a second area of extreme narrowing. This area shows eccentric thickening of the blood vessel wall with a very narrow lumen that I would again estimate at about one-eighth the normal diameter.” He testified that Hudman’s heart disease was very significant and a contributing cause of the death. He said that the primary cause of death was “a combination of pre-existing heart disease and the physical exercise performed the day of his death.” When questioned more specifically, he said that both causes were primary; neither was remote. He considered the two causes of death equal.

Dr. John L. Goforth was not present at the autopsy but testified as an expert about it. He said that a person with the kind of heart Hudman had, doing the heavy labor to which he was not accustomed and working on the hot humid day, overtaxed the function of his heart. He said that Hudman, in the absence of heart disease, probably would not have died by reason of the exertion. He expressed the opinion that one with the degree of Hudman’s arteriosclerosis is in imminently serious trouble and the disease was alone sufficient cause for sudden death.

Dr. P. O. B. Montgomery, who was present at the autopsy, testified: “In my opinion, his death was caused by ventricular fibrillation, and the cause of the ventricular fibrillation was the unusual amount of work that he did under the emotional pressure that he did it, on a day when the temperature was unseasonably hot, and the humidity showed an extraordinary variation. These factors, coupled with his coronary arteriosclerosis disease, caused his heart to fibrillate, and this was the immediate cause of his death.” He said that the decreased blood supply caused by the narrowing of the artery in and of itself would not have caused the death, but he also said that the decreased blood supply and the increased demand for blood by reason of the exertion “and the impinging of these two things caused his heart to fibrillate.” He said that the physical stress and the disease combined to cause Hudman’s death.

Plaintiff, Mary Louise Hudman, argues that there is evidence that heart disease did not cause the death because an immediate heart massage would have restored the rhythm of the heart, that twenty-five to thirty per cent of all males have equally advanced arteriosclerosis as that of Hudman •at his age, and the disease was dormant and only a predisposing condition. From this, she reasons that there was evidence to support the finding, that overexertion caused the fibrillation, which caused death. This, however, is not what the doctors unanimously testified. They said that it was overexertion and disease that caused fibrillation. It took two things to produce the fibrillating process which produced death. Overexertion or disease alone, they .said, did not produce the fibrillation.

Plaintiff, Mary Louise Hudman, failed to prove an accidental bodily injury, “independently of other causes.” This limitation upon the cause of death can not be ignored, because it was the basis of the agreement. Pan American Life Ins. Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787, 790 (1960); United American Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 164, 84 A.L.R.2d 367 (1960). Plaintiff’s argument is that the phrase means the same as mere proximate cause which can be a concurring cause. While it is true that the cause must be proximate rather than remote, the real question is whether the beneficiary must prove the accidental injury was a proximate cause or the sole proximate cause. “Independently” means “solely,” “only,” “standing alone.” North American Accident Ins. Co. v. Miller, 193 S.W. 750, 756 (Tex.Civ.App.1917, writ ref.) ; Western Indemnity Co. v. MacKechnie, 185 S.W. 615, 618, 619 (Tex.Civ.App.1916, no writ), 214 S.W. 456, 463 (Tex.Civ.App.1919, no writ); accord, Continental Casualty Co. v. Fountain, 257 S.W.2d 338, 344 (Tex.Civ.App.1953 writ ref.).

The logical meaning of the policy terms limits the coverage to accidental bodily injuries which are the sole cause of death. We are dealing with death under an accident policy. It obligated the insurer to pay “* * * if covered injuries (accidental bodily injuries) result in your death, independently of other causes. * * ” The coverage is for accidental bodily injuries. The term “other causes” would mean non-accidental causes. The policy does not purport to cover non-accidental bodily injuries such as Hudman’s heart disease. A reasonable construction of the accident policy is that it covered accident-caused injuries rather than non-accident-caused injuries. We reach the same result when we look at the whole phrase “independently of other causes.” The phrase does not mean that the insurer agreed to provide coverage for a death which results from accidental bodily injuries though “dependent upon other causes.” Logically this is what the beneficiary here argues. Her argument would compel the result that overexertion (the accidental bodily injury), though dependent upon heart disease (the other cause) was yet “independent of other causes.” The idea that one factor is independently a cause leaves no room for the idea that it yet may be dependently caused. An independent cause does not mean that it is a joint, contributing or concurring cause.

All of the evidence shows that two causes proximately concurred to produce death and the policy limited its coverage to one cause, accidental bodily injury. It solves nothing when applying a sole-cause test, to resort to a but-for test as the trial court did and as was done in Pyramid Life Ins. Co. v. Alexander, 337 S.W.2d 813 (Tex.Civ.App.1960, writ ref., n. r. e.). When we have two concurring factors which produce death, one within and the other without the policy coverage, results under such a test would depend upon the factor to which the test is applied. It is a true statement that Hudman’s death would not have occurred but for his overexertion, the bodily injury and accidental cause. It is also true that his death would not have occurred but for the pre-existing heart disease, the non-accidental cause. If we apply the but-for test to the accidental bodily injury, we can say that the death would not have occurred but for the overexertion and the plaintiff would win. When we apply the same test to the other concurring cause, the non-accidental heart disease, we get an opposite result. This is so because the death would not have occurred but for the non-accidental heart disease, and the plaintiff would lose. It took both causes to produce death and but for both, death would probably not have occurred. We conclude that by definition of the policy terms and by logic, the policy coverage was limited to accidental bodily injuries which must be the sole cause of death.

The decisional law of Texas is in accord with these principles. We must put aside as irrelevant those cases which construe policies which provide coverage upon proof of mere proximate cause. Those are cases which do not have a limiting clause such as “independently of other causes.” Home Ben. Ass’n of Paris, Tex. v. Smith, 16 S.W.2d 357, 359 (Tex.Civ.App.1929, writ ref.); Pledger v. Business Men’s Accident Ass’n, 228 S.W. 110, 113 (Tex.Com.App.1921). Nor are we concerned with precedents which discuss the other and different requirement found in many policies that the injury result from “external, violent and accidental means.” Pan American Life Ins. Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787 (1960).

Continental Casualty Co v. Fountain, 257 S.W.2d 338 (Tex.Civ.App.1953, writ ref.), discussed an accident policy which limited coverage to bodily injury “which is the sole cause of the loss which is effected solely through accidental means * * The word “sole” was not disregarded. The Court held that the plaintiff failed as a matter of law to discharge her burden that death resulted solely from accidental means and not from cancer. In Robinson v. Aetna Life Ins. Co., 276 S.W. 900 (Tex.Com.App.1925), the policy insured against loss “resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means.” Plaintiff contended that the insured died from a fall on his head but the defendant claimed that death resulted from apoplexy. In affirming the right of defendant to an issue inquiring whether apoplexy caused or contributed directly to the death, the Court held: “ * * the burden was upon the plaintiff to show that the death of Charles W. Robinson resulted directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means. If apoplexy caused or contributed directly to cause the death, the plaintiff could not recover, and a finding to that effect was therefore most material to the defense.” Substantially the same clause was present in North American Accident Ins. Co. v. Miller, 193 S.W. 750 (Tex.Civ.App.1917, writ ref.). Measured by the same rule, the Court upheld findings that death was solely caused by accidental injury, a blow to the heart, and not from arteriosclerosis caused by syphilis. Other authorities which construe similar limiting clauses hold that independent or sole cause excludes the idea that concurring causes suffice. Standard Life & Accident Ins. Co. v. Roberts, 318 S.W.2d 757 (Tex.Civ.App.1958, writ dism.); Combined American Ins. Co. v. Tunnell, 311 S.W.2d 76 (Tex.Civ.App.1958, no writ); Worley v. International Travelers Assur. Co., 110 S.W.2d 1202 (Tex.Civ.App.1937, writ dism.); Maryland Casualty Co. v. Glass, 29 Tex.Civ.App. 159, 67 S.W. 1062 (Tex.Civ.App.1902, no writ).

Most American courts are in accord with the views here expressed. The following authorities are representative and illustrative of these principles: White v. New York Life Ins. Co., 145 F.2d 504 (5th Cir.1944); Ryan v. Continental Casualty Co., 47 F.2d 472, 473 (5th Cir.1931); Commonwealth Life Ins. Co. v. Byck, 268 S.W.2d 922 (Ky.Ct.App.1954); Mutual of Omaha Ins. Co v. Deposit Guaranty B. & T. Co., 246 Miss. 640, 151 So.2d 816 (1963); Penn v. Standard Life Ins. Co., 160 N.C. 399, 76 S.E. 262, 42 L.R.A.,N.S., 597 (1912); Scharmer v. Occidental Life Ins. Co., 349 Mich. 421, 84 N.W.2d 866 (Mich.1957); Spangenburg v. Aetna Life Ins. Co., 306 P.2d 707 (Okl.1957); Britton v. Prudential Ins. Co. of America, 205 Tenn. 726, 330 S.W.2d 326, 82 A.L.R.2d 605 (1959); Evans v. Metropolitan Life Ins. Co., 26 Wash.2d 594, 174 P.2d 961 (1946); 131 A.LR. 240, 242. The rule is cogently summarized in 1A Appleman, Insurance Law and Practice, § 403:

“As a general rule, it has been stated that if there is a pre-existing disorder or illness at the time an injury is received, recovery may still be had if the injury was severe enough to have caused the entire damage or considerable damage, but not if the disease was the proximate cause or principal cause thereof. From this, it has been held that where a disease condition aggravates the result of the injury or is, itself, aggravated thereby, there can be no recovery, where the combined result is to cause the death or disability. This has been particularly supported where the death or disability would not have resulted from the external injury alone, but, with the combination of injury and disease, the loss is produced. * * * ”

The result we reach in this case is compelled by the terms of the policy and the evidence of all the physicians. We do not hold that every preexisting frailty or enfeeblement of the human body which coexists with an accidental injury will defeat recovery under such policies as Hudman’s. To do so would defeat recovery in most instances because mere senescence makes all flesh heir to infirmity and weakness. Policies are, to use Cordozo’s phrase, issued to those who are neither “an Apollo or Hercules.” Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930). Recovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury. Howe v. National Life Ins. Co., 321 Mass. 283, 72 N.E.2d 425, 170 A.L.R. 1254 (1947). In most cases, the competent evidence of qualified persons separates the real causes of death or injury from mere conditions or at least raises issues for the determination by the fact finder. 29A Am.Jur., Insurance, §§ 1211-1213; 82 A.L.R.2d 614, 623; 56 A.L.R.2d 806-808; 131 A.L.R. 266-269; 1A Appleman, Insurance Law & Practice, § 403, p. 88. This is not our case. All the medical experts agreed that the accidental injury concurred with a preexisting serious disease to cause the death.

Petitioner Hudman relies upon Tix v. Employers Casualty Co., 368 S.W.2d 105 (Tex.Civ.App.1963, no writ); Pyramid Life Ins. Co. v. Alexander, 337 S.W.2d 813 (Tex.Civ.App.1960, writ ref. n. r. e.); National Life and Accident Ins. Co. v. Brogdon, 322 S.W.2d 403 (Tex.Civ.App.1959, no writ); and McVeigh v. International Travelers Assurance Co., 101 S.W.2d 644 (Tex.Civ.App.1936, writ dism.) We disapprove the language in those cases which is inconsistent with this opinion.

It is our conclusion that the beneficiary failed to prove that death was the result solely of Hudman’s overexertion, because all of the evidence shows that preexisting serious heart disease and overexertion concurred to cause the fibrillation of Hudman’s heart and in turn, his death. Therefore, we reverse the judgments of the courts below and render judgment that the plaintiff take nothing.

GREENHILL, Justice

(concurring).

The insurance coverage purchased covered “accidental bodily injuries which you receive while you are driving or riding” in a car. So the insured person must receive some accidental injury in the automobile while driving. In my opinion there is no evidence of any accidental injury which the insured received while driving. The car was not struck. The car was being driven in an ordinary manner when the insured slumped over the wheel and died. His son grabbed the wheel and brought the car to a stop without incident. Certainly driving a car is not an accident. We do not drive down the highway, all the while having an accident as we drive. The overexertion in which the insured engaged took place on the farm, outside of the automobile. For these reasons, the Court correctly denied recovery on the policy.

It seems to me, therefore, that the Court goes to unnecessary length in saying that it must be proved that no other bodily conditions contributed to the death of the insured. Suppose, for example, that a man of middle age with a mild heart condition, known or unknown, is in an automobile accident, is thrown through the windshield, and breaks several bones. There is proof by autopsy that the insured had the imperfect heart and that a 100-percent healthy young person would have survived. But the older person with the heart condition died. Or suppose a person has hemophilia so that he bleeds more than other people. He is in a serious automobile accident, bleeds a lot, and dies soon thereafter. The proof is made, and it is established, that a well young person would not have died under the same conditions. To hold that there could be no recovery would be to say that accident victims must be in good health when they get accidently killed; i. e., if any physical defect or condition, known or unknown, contributed to the death of the victim, to whatever degree however small, the insured or his beneficiary could not recover. I am afraid this opinion would be a precedent for saying that there could be no recovery in such cases even though the insured actually died in, or immediately after, an automobile accident.

Many persons of middle or old age have something wrong with them. Accident insurance companies should have to take the people they insure as they find them unless there are some other more specific provisions as to good health in the policy, approved by the Board of Insurance.

The insurance contract speaks only in terms of “other causes.” It is unnecessary here to say that any contributing physical defect, however small, is a cause within the meaning of the policy. They might well be classified as conditions.

WALKER and STEAKLEY, JJ., joining.


author: DICE, Judge.

text:
    John Henry AUSTIN, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 38812.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 2, 1966.
    Carnahan & Fields, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Judge.

The offense is murder'; the punishment, five years.

The state’s evidence shows that the appellant and the deceased lived in an apartment at 614 West 3rd Street in the city of Amarillo.

Maybelle Perry, called as a witness by the state, testified that on the night in question she went to appellant’s apartment around 7 p. m. and after he had gone after some whisky the two started drinking. While they were drinking, someone knocked at the door and called “John L.,” which was the name of appellant’s son. When the person knocked, appellant went to the door, turned the light off, and told the witness to keep quiet and “say nothing, because there was the s.o.b. he was going to kill.” The knocking stopped and when it next started it sounded like it was at the back. Appellant told the witness “to hush, that he hadn’t gone, that he was still out there.” When the person knocked the third time, at the front, appellant, with a gun in his hand, came to the bed where the witness was sitting and then peeped out the window. The witness testified that she then went into the bathroom and got into the bathtub because she was scared. While in the bathtub she heard a shot and the breaking of glass. After the shot was fired appellant called to her to “ ‘come on out of there and clean up in here,’ ” and then told her to go tell his (appellant’s) wife, who lived in a house nearby, that “he got that nigger.”

Allie Tenner, called as a witness by the state, testified that, on the night of the shooting, appellant came to her house next door about midnight and told her he had shot a man and asked her to call the police. When the witness dialed the number, appellant talked and in the conversation stated that he had shot a man. The witness further testified that when she looked out she saw a man lying face down on his all fours, near appellant’s apartment.

It was shown that the person lying on the ground was Raymond O. Johnson, the deceased, who had been shot once in the left side of the neck. It was further shown that the cause of death was hemorrhage from the bullet wound and that a bullet was recovered from the body which appeared to be a .22 calibre.

A bullet hole was found through a window frame in appellant’s apartment and also what appeared to be powder burns on a curtain.

Testifying as a witness in his own behalf, appellant stated that the deceased lived with him in the apartment; that on the night of the shooting, the witness Maybelle Perry came to his apartment and was intoxicated; that after she left he went to bed and later heard something hit the wall; that he got up and “all at once the glass popped in the house” and went “all over the floor”; that he got up, grabbed his .22 rifle and “didn’t take no aim or nothing, just shot it over toward the window sill * * * just pulled it up and shot.” Appellant also stated that some seven or eight months before, his apartment had been broken into and burglarized.

Geneva Culberson, called as a witness by the state, in rebuttal, testified that, prior to the shooting, appellant had told her the deceased had a government check coming and that he was going to try to get it before someone else took it away from him after he had started dpnking. \

Allie Tenner, recalled as a witness by the state, in rebuttal, testified that appellant in a conversation with her had explained how to kill someone and get away with it. The witness related that appellant stated: “anyone coming in the house, don’t do it, ‘ji you want to do it, get them outside, shoot them, kill them. Just get outside and break the glass in and make it appear they are going to break in on you * * do that and there wont be nothing done to you.’ ”

Appellant again took the witness stand and denied having said that he was going to get the deceased’s government check and telling Allie Tenner how to kill a person and get away with it.

The evidence is sufficient to sustain the conviction.

The record presents no formal bills of exception and there are no informal bills of exception in the statement of facts.

There appear in the transcript certain purported objections to the court’s charge which were filed in the cause approximately one month after the case was tried.

The objections do not appear to have been made in writing before the court’s charge was read to the jury, as required by Arts. 658 and 659, Vernon’s Ann. C.C.P., and present nothing for review. Robbins v. State, 161 Tex.Cr.R. 96, 274 S.W.2d 691; Howell v. State, 171 Tex.Cr. R. 545, 352 S.W.2d 110.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Regino Juarez SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38795.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Feb. 2, 1966.

      Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder without malice (Art. 802c, Vernon’s Ann.P.C.); the punishment, five years.

The facts as shown by the state’s evidence reflect that on the night in question, the appellant, while driving his automobile upon state highway #17, betweeen Pecos and Balmorhea in Reeves County, around 8:30 p. m., collided with the rear of an automobile being driven by Ynes Luna. Riding in the automobile with Mr. Luna were his wife and several children, including the deceased, Ruben Luna, six years of age, who was killed in the collision. At the time of the collision the Luna automobile was being driven on its right-hand side of the highway, and it was struck at the left rear by the right front of appellant’s automobile.

Sheriff A. B. Nail and state highway patrolman Jack Dean, who observed appellant at the scene after the collision, testified that he was unsteady on his feet, that his speech was incoherent, and that he had the odor of alcoholic beverage on his breath. Each officer expressed the opinion that at such time appellant was intoxicated. Patrolman Dean further testified that when he arrived at the scene appellant approached him and stated that he was the driver of the automobile and was “speeding, running between ninety and ninety-five.”

After being placed under arrest, appellant executed a written consent to the giving of a blood specimen. The blood specimen obtained from him, upon being examined at the Department of Public Safety by chemist and toxicologist Wayne Merritt, was shown to contain 0.17% alcohol by weight. The chemist expressed the opinion that the person from whom the blood specimen was taken was intoxicated at the time.

A written statement was also made and signed by appellant on the night of his arrest after having been duly warned by Henry T. Barnett, the person to whom it was made. The statement was introduced in evidence by the state after the court, in a hearing held in the jury’s absence, found that the same was voluntarily made.

In the statement, appellant admitted that he was the driver of one of the automobiles involved in the collision and related, in part, as follows:

“I began drinking at noon today with one beer for lunch at Starr’s Drive-In in Odessa. Roy Gonzales and I bought two six-packs of beer at Everybody’s Food Store in Odessa. We began drinking on this beer as we drove to Pecos. When we got to Pecos, we went to Millie’s Bar and drank about three beers from five to seven P.M. After we left Pecos, we had about two or three beers left out of the six-packs. I began driving south on Texas 17 at seventy-five to eighty miles per hour. I came upon a car driving very slow¿ His tail lights were hard to see. When I did see them, I hit the brakes hard and tried to swerve to the left to avoid hitting him, but I was too close. I came to rest crossways of the left lane. I had several bottles of beer in the car and I threw it across the fence and irrigation ditch which bordered the highway.”

Testifying as a witness in his own behalf, appellant denied that he was intoxicated and swore that the cause of the collision was dim tail lights on the Luna car and also the fact that he was blinded by the headlights of an approaching automobile. Appellant stated that, because of the dim tail lights, he was within forty-five to sixty feet of the Luna car before seeing it; that it was traveling partially on the right shoulder; and that he tried to avoid the collision by driving between the two vehicles. Another reason given by appellant for the collision was that the left front tire on his automobile blew out. He also denied telling highway patrolman Dean that he was driving between ninety and ninety-five miles per hour and stated that he was driving between sixty-five and seventy-five miles per hour at the time.

Appellant, in support of his application for a suspended sentence, swore that he had never been convicted of a felony in this or any other state.

In rebuttal, the state called deputy sheriff Gary Ingram, of Reeves County, who testified on direct examination that he knew the reputation of appellant as a law-abiding citizen in the neighborhood in which he resided and that it was bad.

While the witness was testifying on direct examination, counsel for appellant stated:

“Your Honor please, Mr. Ingram resides in this county and the Defendant resides in Ector County.”

Then on cross-examination by appellant’s counsel, the witness was asked and testified as follows:

“By Mr. Howze:
“Q What record does he have, Gary? A He’s been arrested for drunk driving.
“Q All right. What else? A Child desertion.
“Q What else ? A Swindling with worthless checks. I think that concludes it.
“Q What’s your information on that? A I talked to the Deputies in Odessa.
“Q That’s hearsay from some Deputy Sheriff. What else?
⅝ ⅜ # # ⅜ *
“A Also from the F.B.L and DPS fingerprint returns.
⅝ * * ⅜
“Q (By Mr. Howze) All right. You’re willing to base it on that? You’re willing to testify that you are familiar with his reputation as a law-abiding citizen in the community in which he resides? A Yes, sir.
“Q Now, you did not know him until this came up, did you? A That’s correct.
“Q You had never heard of him. And all you know, you talked to some .Deputy .Sheriff and you passed that hearsay on to us and you have read the F.B.I. reports and the DPS reports? A Yes, sir.
“Q And on the basis of that, you tell the Jury that you are acquainted with his reputation in the community in which he resides with reference to being a peaceable and law-abiding citizen? A Yes, sir.
“Q And based on your information and the source of it, his reputation is bad? A Yes, sir.”

Appellant then moved to strike the witness’s testimony, stating:

“ * * * It’s perfectly obvious that he does not know, and that any information he has is based on rank hearsay and has no probative value. We ask that his testimony be stricken and the Jury instructed not to consider it for any purpose.”

In overruling the motion to strike the witness’s testimony, the court did not err. It is not necessary that a witness be personally acquainted with an accused in order to speak as to his general reputation which the witness knows. Cox v. State, Tex.Cr.App., 368 S.W.2d 600. The opinion as to one’s general reputation in a community is, by necessity, based upon hearsay.

It is insisted that the witness’s testimony is inadmissible under the holding in Guajardo, et al, v. State, Tex.Cr.R. 230, 257 S.W. 247. We note that in reversing the conviction in Guajardo the court stated:

“If the state had contented itself with the mere proof that the witness knew the general reputation of the appellants in the respect mentioned in the community in which they lived, and that it was bad, the record might have presented no error * *

In Henson v. State, 150 Tex.Cr.R. 344, 200 S.W.2d 1007, this court, in distinguishing the case from Guajardo, pointed out that where the appellant—as in the present case—in an effort to impair the witness’s testimony elicits the facts complained of as being hearsay, the objection goes more to the weight rather than to its admissibility. This is exactly what we have in the case at bar.

Under the record, the witness was shown to be qualified to express the opinion that appellant’s reputation as a law-abiding citizen was bad.

We overrule appellant’s contention that the evidence is insufficient to sustain the conviction because the state did not prove a causal connection between his intoxication and the death of the deceased. In cases of this nature, the existence or nonexistence of such causal connection is normally a question for the jury. Fletcher v. State, 166 Tex.Cr.R. 561, 317 S.W.2d 57. The jury was properly charged with reference to the necessity of a causal connection in the instant case.

The proof offered as to the manner and speed with which appellant operated his automobile before the collision was sufficient to support a finding by the jury of a causal connection between appellant’s intoxication and the death of the deceased.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Jerry HOLMES, Appellant, v. The STATE of Texas, Appellee.
    No. 38801.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Harkness, Friedman & Kusin, by Sherman A. Kusin, Texarkana, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 15 years.

Sentence was pronounced and notice of appeal given on May 8, 1965.

The sufficiency of the evidence is not challenged. The facts are summarized in the appellant’s brief as follows: “Witnesses for the State testified that the Defendant and the Deceased, Lewis Meadows, had been arguing and that Defendant had gone home and gotten his shotgun and returned to the place of the argument and shot the deceased. The defense based its case on self-defense, and that Mr. Meadows also had a gun.”

Meadows was dead when the officers arrived and it was stipulated that he died as a result of the gunshot wounds.

Appellant did not testify.

There were no exceptions relating to the court’s charge submitting murder with and without malice and the defense of self-defense. The jury resolved the issues against appellant and the evidence is sufficient to sustain the conviction.

There are no formal bills of exception.

The sole claim of reversible error relates to the closing argument of the district attorney.

Under the holding of this Court in Muro v. State, 387 S.W.2d 674, such claim of error is not before us by informal bill, the argument of the District Attorney not being brought forward in a separate statement of facts.

The only objection shown to have been made during the closing argument of the District Attorney, and the court’s response to such objection, was:

“MR. FRIEDMAN: Object to this line of argument, Your Honor. What the District Attorney has — believes is immaterial and irrelevant.
“THE COURT: Well, let’s just stay within the record, gentlemen.”

Assuming that the claimed error in the argument is before us and that the objection was sufficient, the remarks of the District Attorney which immediately preceded the objection were to the same effect as his remarks elsewhere in his argument to which there was no objection: “I need you. That man performed a cold-blooded killing. He ought to be sent to the penitentiary. * * * ■ I am asking you to let your own consciences tell you whether that man acted in self-defense. There is no way you will ever get me to believe it.”

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ronald Gene DIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 38803.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Feb. 2, 1966.
    Joseph E. Turner, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and James I. Smith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, seven years.

Upon a plea of guilty to the primary offense, the prior conviction for burglary which had been alleged in the indictment was dismissed. Appellant was adequately admonished and persisted in his plea. It was then stipulated, in which appellant personally joined, that if the injured party were present, he would testify that his automobile valued at $250.00 was stolen on the day alleged in the indictment, and that if Officer Schulte were present, he would testify that on the day following he apprehended appellant driving the automobile in question and that the same was later identified by the injured party as his missing automobile. Appellant was then sworn and testified that he was the defendant named in the indictment and was guilty of the offense set forth therein.

We do not agree with appellant’s counsel on appeal that Article 12, Vernon’s Ann. C.C.P. was not fully complied with in this case. Ex Parte Keener, 166 Tex.Cr.R. 326, 314 S.W.2d 93, and Russell v. State, Tex.Cr.App., 390 S.W.2d 1.

The judgment is affirmed.


author: MORRISON, Judge. McDONALD, Presiding Judge.

text:
    Ingram Chenault PACE, Appellant, v. The STATE of Texas, Appellee.
    No. 38475.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 19, 1966.
    Clyde W. Woody (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and John Gille-land, 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, 20 days in jail and a fine of $150.00.

In view of our disposition of this case a recitation of the facts is not deemed necessary other than to observe that appellant placed his reputation in issue and called several witnesses who testified that his reputation for being a peaceable and law abiding citizen was good.

On cross examination of such witnesses, the State was permitted over appellant’s objection to ask such witnesses if they had heard that appellant had been charged with speeding in several counties and with running a red light in still another. It was never the intention of this Court to include offenses of this nature when we announced the rule set forth in Vance v. State, 365 S.W.2d 182. We have been cited no authority to support the asking of such questions of a reputation witness, and know of none.

For the error of the Court in permitting the asking of such questions over the repeated objections, the judgment is reversed and the cause is remanded.

It is so ordered.

ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

We have carefully re-examined our position, set forth in our original opinion, in view of the able argument and scholarly brief submitted by the State.

We failed to set forth in our original opinion inquiries made by the State upon cross-examination of a character or reputation witness, when such questions as these were asked: “Have you heard that the defendant was charged with being A.W. O.L. from Camp Bowie, Texas, on January 27, 1944 ? ”, and “Have you heard that the defendant was charged by authorities at Camp Bowie, Texas, with impersonating an N.C.O. on January 27, 1944? ” We think that the violation of military regulations are acts of misconduct peculiar to the military authorities and such acts do not frequently amount to what we normally regard as acts of misconduct or violations of the civilian law. A serviceman might be charged with the offense of A.W.O.L. because he was one minute late in coming back to his company quarters on Saturday night, and the punishment meted out might be confinement to quarters for one hour by the company commander. If we extended the rule to allow such questions as these, we would no doubt make it possible for some enterprising young prosecutor to ask an appellant’s neighbor if he ever heard appellant being fussed at by his wife for coming home late. We think that these two improper questions were also highly prejudicial and tended to deprive appellant of the fair trial that he was entitled to under the Constitution and laws of this State and of the United States.

We remain convinced that a correct disposition was made of this case upon original submission and that the rule there announced was correct. For those reasons and the ones herein stated, the State’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Jose RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38742.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 19, 1966.

      Arthur L. Gallucci, James F. Parker, Jr., McAllen, for appellant.
    R. L. Lattimore, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for attempted burglary with the intent to commit theft, and his punishment was assessed at two years.

The manager of a drive-in grocery store testified that about 10:45 P.M., October 2, he closed the store building; that at closing time there were no marks on the single rear door and there was one or two old marks on the door casing, and that it was locked with four slide locks and two pad locks on the inside; that about 6:15 A.M., October 3, he opened and entered through the front door and then unlocked and opened the rear door; that there were pry marks on the rear door and the wood was broken on both the door and the door casing; and that he did not give anyone his consent to break and enter or to attempt to break and enter the store. He further testified that there was a large light at the rear of the store which lighted the whole area.

Josefa Castaneda testified that from her house almost a block distant from the drive-in grocery store she saw a man about 11:30 P.M., walking toward the rear door of the store from a white pickup which was parked on the street; and then the pickup, without lights, was driven away. After a short time at the rear of the store, the man walked around the store next to her house toward the front of the store. Then she saw another man come from the north and go to the rear of the store. At this time she went to a neighbor’s house and telephoned the police. On returning home, she saw the pickup coming from the north and park across the street in front of the store. Next, she saw a police car park at the rear of the store and an officer go to the rear of the store. The pickup which she first saw appeared to be the same as the one parked later in front of the store.

On responding to a telephone call, Officer Sanchez saw a white pickup parked across the street from the drive-in which was driven away as he approached. By police dispatch, Sanchez was asked to investigate the pickup that drove away, which he did after it had travelled about 100 yards. The appellant was the driver, and while Sanchez was getting the license number, another dispatch caused him to release appellant and his companion, and when he arrived at the store he learned that the men he had just released were those wanted, and he later that night saw them at the police station.

While Deputy Sheriff Garza was en route to the drive-in he saw the white pickup Officer Sanchez had stopped, and noticed that it had a “rocket” sign on the door. Shortly thereafter, Garza stopped a white pickup with a “rocket” sign on the door, and it bore the same license number as the pickup stopped by Sanchez.

Police Chief Castaneda testified that he found a screwdriver in the pickup in which the appellant was apprehended; that when he arrived at the drive-in about 1:30 A.M., he found some marks on the rear door which he determined were made by a screwdriver by fitting one into the marks. He further testified that later that night he found the heel print of a shoe track about 100 feet east of the rear door of the store; that he made a plaster cast of it; that he asked appellant’s companion for his shoe and he voluntarily said, “I will pull it off,” which he did and handed it to him; and he compared the shoe and the print and they matched.

The appellant did not testify or offer any evidence in his behalf.

The court submitted this case to the jury upon the law of principals and circumstantial evidence.

The evidence is sufficient to support the conviction.

Fundamental error is urged on the ground that evidence of burglary cannot support a conviction of attempted burglary as they are separate offenses; and that the evidence here shows that an actual breaking and entering occurred, whereas the indictment charges attempted burglary.

A small rest room which one must pass to enter the store from the rear, has a door about three and one-half feet on the outside from the rear door of the store. Its hasp and lock were pried off. It appears that appellant relies on these facts to show burglary. From the evidence, it is concluded that the state relied upon and the testimony reflects, that an attempt was made to break and enter the rear door of the store

Error is urged because of the answer of the state’s witness Castaneda on cross-examination when she was asked about the identity of the pickup. This matter arose as follows:

“Q Could it have been a different pickup ?
“A Well, the man that was driving the pickup that night, he admitted to mother that he was the one.
Mr. Leopold: We object to that as being hearsay.”

The objection was never ruled upon by the court. However, the answer of the witness does not appear to be hearsay. The source of her knowledge was not shown. No motion was made to exclude it or to instruct the jury not to consider it. No error is presented.

It is contended that the trial court erred in admitting the testimony of Officer Garza that at the time he apprehended appellant and his companion, Leonel Gonzales, that appellant denied talking with a policeman on North Conway and also denied that he had been in that vicinity, which the evidence shows was near the store in question. The conversation referred to was when Officer Sanchez investigated the pickup that was driven away from the store as Sanchez approached. Gonzales objected to such testimony on the ground he was under arrest when such statements were made. The appellant made no objection to such statements, or motion to have the statements withdrawn.

The appellant and Gonzales were co-defendants and were jointly on trial on the merits, but only the appellant is here on appeal. Each defendant was represented by different and independent counsel.

The objection of Gonzales was overruled and he reserved his exception. At this time the appellant stated, “Let the record also show the exception of the defendant, Jose Rodriguez.” The court made no statement or ruling following appellant’s statement. No grounds or reasons were given in connection with the exception and therefore, nothing was preserved for review.

On cross-examination the state’s witness Garza was further asked which one of the defendants at the time they were apprehended told you * * * did Gonzales tell you anything at that time? To which Garza answered: “Yes, sir. He said he had been sleeping in the pickup and he didn’t know what his partner had done.” This testimony was the basis of a defensive charge that if Gonzales was asleep in the pickup at the time of the alleged attempted burglary, to acquit him.

The failure of the appellant to object to the statements complained of, and the introduction on cross-examination of a state’s witness of other statements made at the same time, without objection, reveals no error, as it is a part of the same conversation. Art. 728 C.C.P.

It is contended that the trial court erred in admitting in evidence the plaster cast allegedly made of a heel print, and the testimony of the correspondence of the same with a shoe Gonzales was wearing when he and the appellant were apprehended.

The testimony of Chief Castaneda that on the night in question he found a heel print of a shoe track about 100 feet east of the rear door of the store and later made a cast of it, and then compared it with Gonzales’ shoe and they matched, is sufficient to authorize the admission of the testimony in evidence.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.


author: PER CURIAM. DICE, Judge.

text:
    Thomas Orval HARWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 38922.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 19, 1966.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is driving while intoxicated; the punishment, five days in jail and a fine of $100.00.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant urges as fundamental error that the court failed to give a proper charge to the jury with respect to the penalty for the offense of driving a motor vehicle upon a public highway while intoxicated, charged against him in the information.

The court, in his charge, instructed the jury that if they found appellant guilty they would “fix his punishment at confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than fifty dollars ($50.00) nor more than Five Hundred Dollars ($500.00).”

It is insisted that such instruction was fundamentally erroneous because it did not charge the jury that an additional penalty under the statute was the automatic suspension of appellant’s operator’s license for a period of not less than six (6) months. Art. 6687b, Sec. 24, Vernon’s Ann.Civ.St.

In support of his contention, reference is made by appellant to the recent amendment of Section 1 of Article 6687b by the 59th Legislature in 1965, which added subsection (r) that reads:

“ ‘The suspension or revocation of a license.’ Shall be considered as a penalty and subject to executive clemency as any other fine or punishment.”

It should first be pointed out that the amendment of Art. 6687b, supra, by the 59th Legislature did not become effective until ninety days after the date of adjournment, which was after the date of appellant’s trial and conviction in the county court.

It has been the holding of this court prior to the effective date of the above amendment that the matter of revocation or suspension of an accused’s operator’s license upon conviction for driving while intoxicated is not a part of the charge, verdict, or judgment and is therefore not a question for the jury’s consideration. Davison v. State, 166 Tex.Cr.R. 376, 313 S.W.2d 883; Taylor v. State, 151 Tex.Cr.R. 568, 209 S.W.2d 191; Beach v. State, 199 S.W.2d 1020; Walker v. State, 125 S.W.2d 571, 136 Tex.Cr.R. 368; McIntire v. State, 117 S.W.2d 1093, 135 Tex.Cr.R. 285; Schultz v. State, 134 Tex.Cr.R. 251, 115 S.W.2d 417.

The motion for rehearing is overruled.

Opinion approved by the Court.


text:
    Donald V. DUMONT, Appellant, v. The STATE of Texas, Appellee.
    No. 38659.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 2, 1966.
    James J. Shown, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F„ Dally and Frederick M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of heroin; the punishment, life.

Undercover Officer Tissue of the Narcotic Squad of the Houston Police Department testified that through the intervention of an informer, Charles Moore, he received a telephone call from a man who identified himself as Don, but whose voice the officer later identified as being appellant’s. The officer testified that in this conversation the appellant stated that he would soon receive several thousand dollars worth of heroin and that he (the officer) would be given a chance to see the stuff before buying it. This was followed during the ensuing three weeks by several telephone calls from appellant in which he explained that the delay in the delivery of the heroin was occasioned by a flood on the Rio Grande. On October 29, appellant reported to Tissue that the heroin had arrived and arrangements were made for appellant, Moore and Tissue to meet to effect delivery. The three drove to the point of delivery in two automobiles. Moore, the informer, rode with appellant a portion of the way and with Tissue the remainder. Finally appellant brought his automobile to a halt at a vacant house near a junk yard, and Tissue met appellant. According to Officer Tissue, after lengthy negotiations as to how the money was to be delivered and how the heroin was to be inspected, appellant got out of his automobile, went to an old tire leaning up against the vacant house and removed some packages which were delivered to Tissue at this juncture, Tissue, being satisfied that his fellow officers who had followed the two automobiles to the rendezvous point were in position to arrest appellant, drew his pistol, demanded the return of his money and gave appellant back the packages. At this moment, the other officers arrived, found the packages in appellant’s lap and on the seat where he was sitting and placed him under arrest.

It was shown by the testimony of an expert that the 32 packages contained 29.12 grams of heroin, enough to make approximately five thousand capsules.

Appellant, testifying in his own behalf, stated that Charles Moore had been talking to him for some time about making some money and had told him that if he could get some heroin, he knew where it could be sold. Appellant further stated that one Sorales told him that he knew a man who could get some heroin into this Country and asked Rim if he knew anyone who might purchase it, that appellant than got in touch with Moore, that Moore brought along Tissue, who was supposed to be Moore’s big time buyer, and that the three proceeded to the junk yard where appellant had been told the heroin was concealed. His version of the transaction was that he refused to handle the narcotics, but told Tissue where they were and that Tissue retrieved the packages from the tire.

The jury resolved this conflict in the evidence against the appellant, and we find the evidence sufficient to support the jury finding that appellant had the heroin in his possession and to sustain this conviction.

The Court charged on the defense of entrapment.

We overrule appellant’s contention that entrapment was shown as a matter of law. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462.

No reversible error appearing, the judgment is affirmed.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Isaac PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38451.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    Rehearing Denied Dec. 8, 1965.
    Second Motion for Rehearing Denied Jan. 19, 1966.

      Raeburn Norris, Houston, Nago L. Alaniz, San Diego, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is cattle theft; the punishment, two years.

The-indictment alleged the theft of three cattle from Roy Yaeger on March 21, 1964. Yaeger testified that he was away from home in the hospital on the night three calves were delivered to the auction barn at Alice by one Samuel Torres. Appellant was with Torres at the time, and they were traveling in appellant’s pickup. The primary question presented is the sufficiency of the evidence to show that the calves were the property of Yaeger. The calves were not marked or branded, and Yaeger did not remember seeing them prior to the theft and did not see them thereafter. Appellant relies upon our recent holding in Roberts v. State, Tex.Cr.App., 377 S.W.2d 656, wherein we said “⅜ * * it is well settled in this state that where property is alleged to have been stolen from a certain named and designated person, the proof must show beyond a reasonable doubt that such property belonged to the person from whom it is alleged to have been stolen.”

It is clear that the State failed to meet this burden until near the end of the case when on cross examination of appellant the following occurred:

“Q. But you well knew that these calves were stolen from Mr. Roy Yaeger’s ranch, did you not?
A. I know now.
* * * * * ⅜
“Q. Isaac, isn’t it the truth that Samuel Torres talked to you at Hino-josa’s Auto Parts down here, and that afternoon, on Saturday, he says, 'We can use my truck, go over and load the calves over at Mr. Roy Yaeger’s ranch. Mr. Roy Yaeger is not here. He’s out of town, and we can load them up and take them to the sale at Edinburg where no one will see us.’ Isn’t that what you agreed with Samuel Torres to do.”
A. Well, he wants to do it, and I told him, I said, ‘You can use my pick-up,’ and I agreed to go with him.”

While it is true that appellant denied that he received any of the proceeds of the sale, he did admit that Torres agreed to pay him $25.00 for the trip and that he and Torres made a trip with the calves to Edinburg, but later unloaded the calves at the auction barn in Alice. It is also true that appellant at one juncture in his testimony denied that he participated in the thefts, but the jury had the right to reject that part of his testimony and accept the quoted portion above. We are aware of no authority holding that the thieves must share equally in the fruits of the theft. When appellant agreed to accept $25.00 for the use of his pickup to be used in an unlawful venture, he became as much a principal as if this agreement were to share the proceeds equally.

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

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

In his motion for rehearing, appellant urges for the first time that the court erred in permitting the state to impeach its own witness, Inoe Perez, who was the appellant’s brother.

An examination of the record reflects that the witness, Inoe Perez, was called by the state and testified that during the early morning hours of Sunday, March 22, 1964, his brother, the appellant Isaac Perez, and Samuel Torres came to his house and told him that they had taken some calves to the auction and wanted him to go the following Tuesday afternoon and get the check; that he went to the auction on Tuesday and got the check, payable to Samuel Torres in the sum of $226. That night, appellant and Torres came to his home and the witness gave the check to Torres. The two left and soon returned, stating that they could not get the check cashed. Torres asked the witness to cash the check. The witness thereupon cashed the check by giving Torres two of his personal checks, one payable to the appellant’s brother in the sum of $100 and the other payable to Torres’s wife in the sum of $126.

While being questioned on direct examination, the witness testified that he did not know where the cattle came from and denied that appellant and Torres told him the cattle came from the Roy Yaeger ranch. The witness then was questioned, over appellant’s objection that the same was hearsay, with reference to making a statement to Mr. Gordon Lansford, and denied that he told Mr. Lansford: “ ‘They told me that they had taken three calves from the Roy Yaeger ranch and tried to sell them at a sale in Edinburg earlier that night, but they couldn’t because the auction place was closed.’ ” He also denied that he told Lansford he did not know where the cattle came from.

The statement made by the witness was not introduced in evidence.

Gordon Lansford was thereafter called as a witness by the state and testified, without objection, that in his investigation of the theft of the three head of cattle he obtained a statement from the witness Inoe Perez in which Perez stated that the appellant and Samuel Torres told him they “had taken three calves from the Roy Yaeger ranch and tried to sell them at a sale in Edinburg earlier that night, but they couldn’t because the auction place was closed.”

We perceive no reversible error.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.