author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Ex Parte Austin MUCKELROY.
    No. 34317.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    ■George S. McCarthy, Amarillo, C. S. Farmer, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking the validity of a 5 to 25 year sentence for rape now being served by the petitioner. The application for habeas corpus was granted by Hon. Max Boyer, Judge of the 84th Judicial District, and made returnable before this Court under the provisions of Art. 119, Vernon’s Ann.C.C.P.

The contention is that the conviction is void because the petitioner was not admonished of the consequences of his plea of guilty. Reliance is had upon the absence of any showing in the statement of facts upon the trial that the petitioner was admonished or advised by the court as to the punishment which the law provides may be assessed by the jury on a trial for the offense of rape.

The recent case of Henage v. State, No. 33,658, Tex.Cr.App., 352 S.W.2d 122, is controlling. There we said “There is no certification that all the court said in admonishing the defendant appears in the statement of facts herein.”

In the case before us, in addition to the statement of facts, we have the arraignment of the defendant entered of record, which contains the statement that the defendant answered that he was guilty and “was admonished by the court of the consequences of said plea”; the charge to the jury which stated that the defendant pleaded guilty “and has persisted in entering such plea, notwithstanding the court, as required by law, admonished him of the consequences of such plea”; and the judgment which recites that the defendant pleaded guilty and “thereupon the said defendant was admonished by the court of the consequences of said plea.”

The relief prayed for is denied.

MORRISON, Judge

(dissenting).

While I concurred in the disposition of Henage v. State, supra, I did so on the grounds that the admonition as to possible punishment was sufficient. I did not agree to the overruling of Braggs v. State, Tex.Cr.App., 334 S.W.2d 793, and do not now so agree. Braggs is authority for the granting of this writ.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Vernice G. HOBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 34080.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Wells Stewart, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is felony theft; the punishment, enhanced under Article 63, Vernon’s Ann.P.C., by three prior convictions for felonies less than capital, life imprisonment.

The State has confessed error in this case. We agree that the cause must be reversed.

In the absence of any evidence to support the allegation that each succeeding offense was committed after the judgment of conviction had become final in each prior conviction alleged for enhancement, the evidence is insufficient to sustain this conviction. Rogers v. State, Tex.Cr.App., 333 S.W.2d 383; Guilliams v. State, 159 Tex.Cr.R. 81, 261 S.W.2d 598; also see (first Rogers case) Rogers v. State, Tex.Cr.App., 325 S.W.2d 697.

The judgment is reversed and the cause remanded.


author: PER CURIAM. WOODLEY, Presiding Judge.

text:
    William Ray BENNETT, Appellant, v. The STATE of Texas, Appellee.
    No. 33577.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1961.
    Rehearing Denied Jan. 10, 1962.
    George T. Thomas, Big Springs, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

Defrauding with worthless check is the offense; the punishment, 40 days in jail.

The record is before us without a statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.

On Appellant’s Motion for Rehearing

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing complains that an affirmance is not proper because of certain errors in the transcript.

A corrected transcript has been filed which clearly shows that the case was tried during the term of court which began on December 5, 1960 and terminated on January 31, 1961, hence the date “January 5, i960”, appearing at the head of the judgment, was intended for “January 5, 1961”, the true date.

If this Court is bound to accept January 5, 1960 as the date the judgment was rendered, it would avail the appellant nothing. In such event the appeal would have to be dismissed because notice of appeal was not given in time. The motion for new trial was filed “at 4:50 o’clock P. M. January 5, 1961” and notice of appeal was not given until such motion was overruled on April 24, 1961.

Appellant’s motion for rehearing is overruled.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Richard FOWLER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34012.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    C. Anthony Friloux, Jr., Ben L. Adams, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Paul Filer, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is aggravated assault with a motor vehicle; the punishment, a fine of $500.00 and 60 days confinement in jail.

In view of our disposition of this case, we shall not relate the facts in detail. The front of appellant’s car struck Robert Lee Phillips, breaking his leg and thumb.

The'record contains four purported formal bills of exception which were filed on August 18, 1961, some 92 days after notice of appeal was given on May 18, 1961. They cannot be considered by this Court as they were filed after the 90 days provided in Article 760d, Vernon’s Ann.C.C.P. Segoria v. State, No. 33,841, Tex.Cr.App., 350 S.W.2d 652, decided October 25, 1961 (not yet reported) ; Green v. State, Tex.Cr.App., 343 S.W.2d 458; Mendoza v. State, Tex.Cr.App., 332 S.W.2d 335; and Anthony v. State, 166 Tex.Cr.R. 60, 310 S.W.2d 742. We think it not amiss to here point out that while the trial judge may extend the time for filing a statement of facts (Article 760d, supra), there is no statutory provision authorizing him to extend the time for filing bills of exception.

Appellant also complains of certain jury argument. There being no formal bills of exception or statement of facts containing the argument complained of, this matter is not before us for review.

Appellant presents as error an informal bill of exception, which, in our judgment, controls the disposition of this case. After the State had proven by the witness Dr. A. P. Cullen, Jr., that the injured party, Robert Lee Phillips, had among his injuries a broken leg, the following occurred:

“Q. Dr. Cullen, in your opinion will Bobby Phillips suffer disability as a result of that broken leg ?
“Mr. Friloux: Your Honor, I don’t think that is a proper question.
“The Court: Gentlemen, in this case the injuries were less than death. That is all you have to prove.
“Mr. Filer: Your Honor, I think it is material. I think the State has a right to explain what the injuries were.
“The Court: He said he had a broken leg.
“Mr. Filer: Well, Your Honor, I think the State can show what the outcome of the broken leg is.
“Mr. Friloux: Your Honor, I can’t see the relevancy of this. He’s proved without any question as to whether or not the boy was hurt by a motor vehicle. We will stipulate that he had a broken leg.
“The Court: What is the next question?
“Mr. Filer: What is that disability is the next question. My first question was in his opinion did this boy suffer disabilities as a result of this broken leg.
“Mr. Friloux: Your Honor, I would like to enter an objection here for the record. I don’t think this man would be qualified to answer that question. He’s not a specialist and would not be qualified.
“The Court: Overruled.
“Mr. Friloux: Note my exception.
“A. I think the boy would have some disability.
“Q. What kind of disability?
“A. He may have some shortening of the leg and probably will have a limp.
“Mr. Filer: No further questions. Pass the witness.”

In the State’s brief, we are cited Massey v. State, Tex.Cr.App., 340 S.W.2d 291, and Massoletti v. State, 165 Tex.Cr.R. 120, 303 S.W.2d 412, and cases there cited, as authority for making admissible in the trial of a criminal case growing out of an automobile accident evidence of resulting injuries. The State contends that under the authority of these cases, and the very general objections made by appellant, no error is shown.

We have carefully examined all of the authorities cited by both the State in its brief and also all of the numerous cases cited in Massoletti, supra. All of these cases hold it admissible to prove "injuries to occupants of automobiles 'involved in a collision.” Nearly all of these cases emanated from appeals of “driving while intoxicated” convictions. The cases in general hold this type of evidence admissible as part of the res gestae and as tending to shed light on the force of the collision, the speed at which the accused’s automobile was moving, and the manner of its operation.

The earliest, and the leading, case on this question is Allen v. State, 149 Tex.Cr.App. 612, 197 S.W.2d 1013, opinion by Judge Hawkins. The opinion carefully points out that:

“It is provable that one accused of drunken driving had a collision on the highway with an automobile driven by another person, on the ground that the manner in which accused handled his car might throw light upon whether accused was intoxicated at the time. * * * Also, it seems reasonable and pertinent to show the effect of such collision upon the car collided with as shedding light upon the speed and manner of driving accused’s car, in determining the question whether he was intoxicated. If proof that the collision caused injury to the occupants of the car collided with tends to shed light upon the force of the collision, and the speed at which accused’s car was moving and the manner of its operation, then such evidence would seem pertinent in aiding the jury in determining the condition of accused as to drunkenness or otherwise.”

Allen’s case further holds:

“We have been unable to see in what way the details of the injuries sustained by Mrs. Ripley and the resulting pain and suffering and probable continuance thereof shed any light upon the question of whether appellant was intoxicated, and if objection thereto had segregated this part from the evidence which was admissible a most serious question would have been presented.”

Another driving while intoxicated case is Atkinson v. State, 157 Tex.Cr.R. 556, 251 S.W.2d 401, wherein complaint is made of the receipt in evidence of the proof showing the collision of the automobiles and the resultant injuries to some of the occupants thereof. The Court stated:

“The admissibility of like testimony was upheld by this court in Allen v. State, 149 Tex.Cr.R. 612, 197 S.W.2d 1013, upon the theory tliM proof thereof was pertinent upon the issue of intoxication.”

Judge Morrison referred to Atkinson in his opinion in Massoletti:

“In the relatively recent case of Atkinson v. State, 157 Tex.Cr.R. 556, 251 S.W.2d 401, we held admissible proof that a passenger in one of the automobiles was not expected to live following the accident. In that case, however, we discussed the Allen case and pointed out the danger of proving unnecessary ‘gory details.’ ”

Massoletti’s case was one involving a charge similar to the case at bar. The punishment was the same as imposed in this case. In Massoletti, the evidence reflected that whiskey and vodka were found in the appellant’s automobile.

Massey, supra, was a case of “murder without malice under Article 802c, Vernon’s Ann.P.C.” The evidence reflects that the appellant was intoxicated at the time of the offense. Both Allen and Atkinson are cited in the opinion. Judge Morrison stated: “We have concluded that the case at bar is controlled by Allen and that the offer to stipulate does not take it out of the rule there expressed.”

We do not feel that the testimony of the doctor solved any issue in the case. The prognosis and the doctor’s opinion as to disability and the testimony as to shortening of the leg and a limp border closely on being a part of pain and suffering. This testimony was no doubt prejudicial and inflammatory to the rights of the appellant before the jury, and it probably resulted in the imposition of a heavier penalty than would have been imposed absent this testimony. While the appellant’s counsel might not have made a specific objection to the testimony, the general rule being that an objection should be specific, naming a particular rule of evidence which will be violated by the admission of the evidence, the purpose of such a requirement is two-fold: (1) It enables the judge to understand the precise question and to make an intelligent ruling, and (2) It affords the offering party an opportunity to remedy the defect if possible. McCormick & Ray, Texas Law of Evidence, page 23, section 24. We here think that the trial judge fully understood the question, but that he later fell into error in admitting the testimony after he had stated: “Gentlemen, in this case the injuries were less than death. That is all you have to prove.” We believe that while the objection of counsel might not have been specific, this is the type of case where any form of objection is sufficient. We hold that the evidence was obviously not admissible for any purpose. See 42 Tex. Jur., p. 118, sec. 86; 9 Tex.Jur. Ten Year Suppl., p. 410; James v. State, 139 Tex.Cr.R. 153, 139 S.W.2d 273; Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256.

“Where it clearly appears on the face of the evidence that evidence is not admissible for any purpose, the general objection will be deemed sufficient.” McCormick & Ray, supra, pp. 24 & 25, sec. 25.

For the error stated, the cause is reversed and remanded.

WOODLEY, Presiding Judge

(dissenting).

The testimony of Dr. Cullen was clearly admissible. Root v. State, Tex.Cr.App., 334 S.W.2d 154; Boyle v. State, 158 Tex.Cr.R. 468, 256 S.W.2d 574 ; 6 Tex.Jur.2d 318, Sec. 87.

Whether the victim of the assault was a pedestrian or an occupant of a vehicle would not alter the rule that evidence as to the nature and extent of the injuries inflicted on the assaulted person is admissible regardless of the nature of the charge of aggravated assault contained in the indictment.

Where the state relies upon negligence, the extent of the injuries is admissible under the above rule and also as tending to shed light on the force of the collision, the speed of the automobile the accused was driving, and the manner of its operation.


author: DICE, Commissioner. BELCHER, Commissioner.

text:
    Clarence COLLINS, Appellant, v. STATE of Texas, Appellee.
    No. 33514.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    Rehearing Denied Jan. 10, 1962.
    See also 339 S.W.2d 67.

      William F. Walsh, of Foreman & Walsh, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Charles C. Castles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, 99 years.

This is a companion case to Morgan v. State, Tex.Cr.App., 346 S.W.2d 116, wherein appellant’s coindictee, Maggie Morgan, was convicted for the murder of Mrs. Wilma B. Selby, deceased, and assessed punishment at death.

The evidence adduced by the state in the two cases, with exception of appellant’s written confession, is substantially the same, and, as fully set forth and found sufficient in the opinion of this court affirming the death penalty conviction, shows that on the night of November 16, 19S9, the deceased was killed by two shots fired from a .22 caliber pistol after she entered her home in the city of Houston. The state’s proof reflects that it was appellant who fired the fatal shots in executing his part of a conspiracy entered into between the deceased’s husband Joseph Selby, Patra Mae Bounds, Maggie Morgan, and appellant, whereby Selby agreed to pay and did pay a sum of money for the killing of his wife.

Appellant’s written confession, made to the officers following his arrest, was introduced in evidence by the state over appellant’s objection, in which confession he described in detail his participation in the conspiracy to kill the deceased and the firing of the two shots which killed her on the night in question.

Appellant did not testify but offered evidence in support of his contention that the confession was illegally obtained from him and in support of his defense of alibi.

The court, in his charge, submitted to the jury the issue as to the voluntary nature of the confession and appellant’s defense of alibi.

Appellant’s contention on appeal is that the conviction must be reversed because the confession used by the state was inadmissible as a matter of law. Appellant insists that under the facts presented the confession is shown to have been obtained in violation of Articles 726, 727 and 727a, Vernon’s Ann.C.C.P., and the due process of law clauses of Art. 1, sec. 19, of Vernon’s Ann.Texas Constitution, Vernon’s Ann.St., and the 14th Amendment to the Constitution of the United States.

A summary of the facts and circumstances surrounding the making of the confession reflects the following:

On December 12, 1959, at approximately 9 :30 p. m., the appellant, a colored man 23 years of age, was first taken into custody by certain officers at the home of Maggie Morgan in the city of Houston. No warrant had been issued for his arrest. Appellant was then taken to the police station and, after being questioned for a very short time, placed in jail. There is no evidence that appellant was questioned in any manner the next day. The following day, December 14th, he was questioned for twenty or thirty minutes and made a statement in the form of an affidavit. After being given a polygraph examination appellant was released around 6 p. m., without any charges being filed against him.

On January 19, 1960, appellant was again taken into custody at his home in the city of Houston around 8 p. m., without a warrant having been issued for his arrest. From his home he was taken to the Ranger headquarters in the city where he remained until approximately midnight. There was no actual questioning of appellant at such time.

Around midnight appellant was taken by the officers from Ranger headquarters to Humble, Texas, some 10 or 12 miles away, where he was placed in jail after being charged by complaint before a justice of the peace under the name of Joe Smith for the offense of vagrancy.

The following afternoon (January 20) three colored officers went to the Humble jail and returned appellant to the Ranger headquarters in Houston, arriving at approximately 5 p. m. Appellant had been given coffee and doughnuts for breakfast and upon being returned to Ranger headquarters declined the offer of food, stating that he had just eaten two hamburgers.

After being returned to Ranger headquarters appellant was questioned by several officers, starting at 6:30 p. m. Around 9 p. m., Officer Baker (the person to whom the statement introduced in evidence was made) talked to appellant for 30 to 45 minutes. Appellant then made a statement which was reduced to writing over a period of two hours, which was completed around midnight. At 1:25 a. m., appellant was given a polygraph examination lasting six to eight minutes. Another examination was given at 2:05 a. m., lasting the same length of time. At approximately 3:15 a. m., Officer Baker again talked to appellant, at which time appellant confessed to the crime. The statement was reduced to writing, beginning at 4:30 a. m. and completed at 7 a. m., at which time appellant signed the same. This statement was introduced in evidence, over appellant’s objection, as state’s exhibit #22.

After appellant confessed to the crime, charges were filed against him and a warrant issued for his arrest at 4:30 a. m. At 9 a. m., appellant was taken before a magistrate.

The evidence shows that no promises were made by the officers to appellant during their questioning of him and there was no physical violence inflicted upon him or threats of same during such questioning.

Medical experts called by appellant testified that he was of low intelligence but not so low as to be classed as mentally defective. They further described him as being weak in character, like that found in children between the ages of three to six, and having an abnormally low tolerance for stress.

The fact that appellant was arrested without a warrant and was not taken forthwith before a magistrate does not, standing alone, vitiate the confession. Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119, certiorari denied, 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659; Sampson v. State, 160 Tex.Cr.R. 302, 268 S.W.2d 661; Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, and Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872. Before a confession will be held inadmissible for such a reason a causal connection must be shown between the failure to secure a warrant and take the accused forthwith before a magistrate and the securing of the confession. There is no such showing in the present case.

In Gallegos v. State of Nebraska, supra, the accused, a Mexican farm hand, was arrested in El Paso, Texas, at the request of the United States Immigration and Naturalization Service and booked on a charge or vagrancy. Four days later, while in custody of the officers in Texas, he confessed to a murder committed in the State of Nebraska. After eight days’ custody in Texas, he was taken by the officers to the State of Nebraska, where, upon further questioning, he made and signed a second confession to the crime. The accused was not taken before a magistrate either in Texas or Nebraska prior to making the confessions and it was not until fifteen days after he was returned to Nebraska that he was brought before a magistrate. Upon his trial for the crime in the State of Nebraska, both confessions were introduced in evidence. The Supreme Court of the United States, in upholding the conviction for manslaughter, held that under the facts and circumstances the failure to take the accused before a magistrate prior to the time he made the confessions did not constitute a denial of due process.

The fact that appellant was carried to the jail at Humble and incarcerated under an assumed name would not within itself vitiate the confession. There is an entire absence of any proof that appellant was aware of the fact that he was confined in jail under such a name. While we do not condone the practice of having the suspect placed in an out-of-city jail under a name other than his own, since he was not interrogated while under such confinement, we do not view the totality of the facts in this case as a deprivation of due process. Nor does the fact that appellant was questioned at the Ranger headquarters in Houston, rather than at the courthouse or police headquarters, vitiate, within itself, the confession. Such action was explained by the officers in stating that the reason they took appellant to Ranger headquarters was that they wanted their investigation kept secret from the other suspects in the case.

The fact that appellant was given a lie detector test prior to making the confession did not render the same inadmissible. Gasway v. State, 157 Tex.Cr.R. 647, 248 S.W.2d 942, and Webb v. State, 163 Tex.Cr.R. 391, 291 S.W.2d 331.

The evidence does not show that appellant is an illiterate. He stated in his confession that he went to the low twelfth grade in school. His brother testified that he went to the low fifth grade. Both doctors called by appellant stated that he was not mentally defective.

It is held that “mere questioning of .a subject while under arrest or in custody is not prohibited by either the common law ■or due process.” Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119, 123. We are unable to agree that appellant was •questioned an unreasonable length of time.

Appellant was not denied the right of ■consultation with an attorney or any member of his family, as there is no evidence whatsoever that he made any request to ■see or to consult with anyone. Nor is there any evidence that anyone requested and was •denied the privilege of seeing him.

We have considered the decisions by the Supreme Court of the United States cited by appellant, in which confessions were Reid to have been illegally obtained in violation of the due process clause of the 14th Amendment to the Federal Constitution. If this court is convinced that a confession is inadmissible as a matter of law under •the holdings of the Supreme Court of the United States, we do not hesitate to so hold. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133.

None of the cases cited have facts and •circumstances on all fours with those in the present case and, in our opinion, they are not here controlling.

In Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801, the confession was obtained from the accused after an unrelenting interrogation by the officers, in relays, for five nights, with the accused accorded no opportunity for sleep and no decent allowance for food. No such facts are presented in the present case.

In Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, the accused was questioned for eight hours, during which time deception was practiced upon him by virtue of certain false representations made by an officer. Also, his request to see an attorney was denied.

The confession in Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, was made by the accused following an all-night session after continued questioning over a period of five days.

In Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, the accused was removed to another county 100 miles away and for three days was driven from county to county, during which time he was continually questioned by the officers and told of threats of mob violence.

In Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, the accused was a young boy fifteen years of age.

In Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, the accused, 19 years of age, confessed to the crime after being questioned six or seven hours a day for four days, during which time he was without adequate food and became ill on the night before he confessed. The father of the accused was also denied the right to see him.

In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, the accused was in custody four nights and the substantial portion of five days before he confessed. He was mentally defective. While being questioned he stated that he wanted to see a lawyer but the officers made no attempt to give him the help he needed to get one. During such period he was confronted by his wife, who, by pre-arrangement with the officers, asked him to tell the truth. She was accompanied by two of the accused’s children, and the scene with his family caused him to be upset.

Under the record presented, we are unable to agree that the confession is shown to have’been illegally obtained from appellant in violation of the due process clauses of our State and Federal Constitutions, and that the same was inadmissible in evidence as a matter of law.

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

Opinion approved by the Court.

On Motion for Rehearing

BELCHER, Commissioner.

Appellant now contends for the first time on appeal that the trial court erred in refusing to give his specially requested charge or to respond to his objections for its failure to instruct the jury that, in determining whether his written statement was voluntary, they must also decide whether the statement was made without persuasion.

The court also refused to give appellant’s requested instruction which was as follows:

“You are instructed that the word ‘persuasion’ as used in this charge, has its ordinary meaning of influencing the mind by means of arguments and reasons.”

For reversal, the appellant relies on the holding in Odis v. State, Tex.Cr.App., 345 S.W.2d 529. An examination of the Odis case shows that he testified in his own behalf, and his testimony raised the issue of whether his written statement was made without compulsion or persuasion. Therefore, the refusal of the court to instruct the jury that they could not consider the written statement unless they found that it was made without compulsion or persuasion was prejudicial to his rights and called for a reversal.

The appellant did not testify in this case. A reexamination of the record does not show that the issue of persuasion was raised by the evidence except that appellant was told to “tell the truth”. This admonition is not the type of inducement which would require a rejection of a confession. Smith v. State, 91 Tex.Cr.R. 15, 237 S.W. 265.

The court, in charging the jury on. the voluntary nature of appellant’s written, confession, included certain legal standards, for determining its admissibility and consideration, and such charge reads in part as. follows:

“If you believe from the evidence or if you have a reasonable doubt thereof that the said purported statement was. not freely and voluntarily made and signed by the defendant, or that same was made as a result of coercion, compulsion or force either physical or mental, then you will not consider said' statement for any purpose whatsoever.”

The refusal of the requested charge, in. the absence of any evidence raising the issue that the written statement was obtained from the appellant by persuasion, presents no error. McCraw v. State, 150 Tex.Cr.R. 492, 202 S.W.2d 240.

In the original opinion, it was not intended to infer, as construed by appellant,. that appellant was not interrogated while in. custody under a name other than his own. It is true that appellant was interrogated at Ranger Headquarters after he had been placed in jail in Humble under such name, but as stated in the original opinion, he was. not interrogated while under confinement in the Humble jail. It is again concluded that the officers’ action in placing appellant in. jail under a name other than his own does not, in view of the totality of the facts, constitute a deprivation of due process.

Appellant attacks the holding in-the original opinion that there was no evidence of causal connection “between the failure to secure a warrant and take the accused forthwith before a magistrate and' the securing of the confession.”

A review of the evidence sustains the conclusion that there was no showing of causal connection between the arrest and failure to take appellant before a magistrate and the making of the written statement.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Don Reece MOSLEY, Appellant, v. STATE of Texas, Appellee.
    No. 33718.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1961.
    Rehearing Denied Jan. 3, 1962.
    John Benn, Clyde W. Woody (On appeal), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for oral sodomy; the punishment, 10 years.

The prosecutrix, age 15, testified that about 6 P.M. on December 23, at appellant’s request she accompanied him in an automobile to help him purchase a Christmas gift. He stopped at a drive-in, drank “a beer” and she drank a coke; then he bought some whiskey, and they went to his friend’s house where they all drank some. After about an hour they left, and when she asked if they were going home he said “yes”, but “let’s go ride the ferry”, and instead drove to a public park. Upon getting out of the car, he fell, causing his face to bleed. When no cloth could be found to use, she removed and gave him her half-slip. When they re-entered the car, he told her to get in the back seat which she did thinking perhaps it would prevent blood from getting on her clothing. After travelling a short distance, he stopped, got in the back seat and began feeling of her privates. He told her that he would knock her out if she didn’t remove her hands so that he could lift her skirt, and during this period he did strike her twice in the face. He then removed her panties and had intercourse with her. She further testified that she screamed and did all she could to prevent him from having inter course with her, and that he threatened to again injure her and she was scared. While they were out of the car, he pushed her to the ground and tried to put his penis in her rectum, which caused her pain; and then made her take his penis into her mouth for about ten minutes. Then she escaped because she was scared, ran and hid for a short time, and located a telephone by which she notified the officers who soon came to her.

On cross-examination, the prosecutrix, when asked if she consented to the act of intercourse, answered: “I guess if you want to put it that way”. On re-direct examination, she testified that she didn’t understand the question about her consenting to the act, and then said that she did not agree to the act.

An examination of the prosecutrix the next morning by a physician showed a break in the outermost layer of the skin around the rectum.

At the trial, she identified a pair of hose with the foot portion worn out and a half slip with blood on it as those she was wearing on the night of the attack.

Two officers testified that when they saw the prosecutrix in response to her telephone call, she was hysterical, cold and shivering, with her feet and legs scratched, wet, and muddy, and that the foot portion of her hose was worn out. The half-slip was found that night in appellant’s car which was stuck in the mud on the back way out of the park.

Appellant did not testify but offered testimony that he' had never been convicted of a felony.

Appellant complains of the court’s action in sustaining the objection of the state to a question propounded by the appellant to one of his witnesses. There is no showing of what the answer of the witness would have been, hence no error is shown. 5 Tex.Juris.2d 336, Sec. 202; Soloman v. State, 162 Tex.Cr.R. 374, 285 S.W.2d 755; Richards v. State, 165 Tex.Cr.R. 176, 305 S.W.2d 375.

The requested charge which was refused does not show that an exception was reserved to the ruling of the trial court, therefore the claimed error is not before us for review. Perkinson v. State, Tex.Cr.App., 339 S.W.2d 897; Kogan v. State, Tex.Cr.App., 341 S.W.2d 925; and Stone v. State, Tex.Cr.App., 346 S.W.2d 323.

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

Opinion approved by the Court.

On Motion for Rehearing

MORRISON, Judge.

Appellant strenuously takes issue with that portion of our original opinion in which we held that the question of the refusal of the requested charge as to the pros-ecutrix being an accomplice was not before this Court for review. We have reexamined the record and the authorities relied upon and have concluded that this case-comes within the rule announced in Press v. State, Tex.Cr.App., 322 S.W.2d 525, and that the question of her being an accomplice was not raised by the evidence. Even if we were to assume that the prosecutrix willingly participated in the act of intercourse, it does not follow by any means that she-became an accomplice to the act of oral sodomy which followed.

Since the evidence does not raise the-issue, the court did not err in declining to-submit the same.

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


author: RENFRO, Justice.

text:
    Max O. COULSON et al., D/B/A Brickstone of Fort Worth, Appellants, v. ALVIS AUTO RENTALS, INC., Appellee
    No. 16271.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 22, 1961.
    Rehearing Denied Jan. 26, 1962.
    John Whiteside, Fort Worth, for appellants.
    DeVore, Ashworth & McGahey, and Philip C. McGahey, Jr., Arlington, for appellee.
   RENFRO, Justice.

The plaintiff Alvis Auto Rentals, Inc., sued Max O. Coulson and Henry Potter, d/b/a Brickstone of Fort Worth, in the nature of a verified account for the sum of $2,054.30 due for lease money upon two automobiles.

Judgment was entered for plaintiff on said account. The court found that a lease contract was made between the parties. The defendants were to pay $100 per month per car. The plaintiff kept the account in the regular course of business and the account cards reflected the business dealings between the parties. The automobiles were used by the defendant partners in the course of their business, Brickstone of Fort Worth. At the time of termination of the leases, the defendants owed plaintiff $1,436.30 on one car and $618.00 on the other. The court concluded the amount sued for was a liquidated amount, based upon a written contract, upon which a systematic record was kept.

In points seven and eight, defendants contend there is no evidence to support the finding of partnership and no evidence showing that any act by Coulson was in the scope of any partnership business. As to the latter point, the evidence is ample to support the court’s findings. As to point seven, the plaintiff alleged the defendants were partners. Neither defendant filed a sworn denial of partnership. When the fact of partnership is alleged and is not denied under oath, it stands as admitted. 32 Tex. Jur. 262, § 28; Rule 93(f), Texas Rules of Civil Procedure; Petty v. First National Bank of Quitman, Tex.Civ.App., 278 S.W.2d 361. The points are overruled.

In points three through six, defendants contend plaintiff’s exhibits 1 to 5 were improperly admitted, same being hearsay.

In the introduction of the exhibits plaintiff met all the requirements of Art. 3737e, Vernon’s Tex.Civ.St. Hence, the exhibits were properly admitted. Moreover, defendants did not deny the justness of the claim. As a witness, defendant Coulson admitted the contract was made, and did not deny the amount sued for was due. Defendant Potter did not testify. The points are overruled.

Our holding on the above points necessarily rejects defendants’ contention No. 10 that there was no evidence or insufficient evidence to support the judgment.

In their second point of error, defendants contend the plaintiff was not entitled to attorney’s fees.

In Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, wherein plaintiff sought attorney’s fees in a suit in the nature of a sworn account for the balance due upon a lease contract, the Supreme Court said: “Respondent contends that the above language of Article 2226 (* * * or suits founded upon a sworn account or accounts * * * may also recover * * * a reasonable amount as attorney’s fees) means that an attorney’s fee is recoverable if suit is upon a sworn account as defined by Rule 185, Texas Rules of Civil Procedure. This rule is not a rule of substantive law but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery or defense, and is not the basis for any cause or causes of action. * * * It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract. * * * ”

In Guay v. Schneider, Bernet & Hickman, Inc., Tex.Civ.App., 341 S.W.2d 461, the Court of Civil Appeals followed Meaders v. Biskamp, supra, and added: “Under Rule 185, however, summary judgment was proper as to the verified account. That rule does not deal with attorney’s fees. It is a rule of evidence, as the Biskamp case points out, and not one of substantive law.”

In Guay v. Schneider, Bernet & Hickman, Inc., 344 S.W.2d 429, the Supreme Court expressly approved the holding of the Court of Civil Appeals.

In Langdeau v. Bouknight, Tex., 344 S.W.2d 435, 441, a case wherein Langdeau, receiver, sued Bouknight for recovery of premiums and unearned commissions, the Supreme Court held: “The Court of Civil Appeals correctly held that under the heading ‘sworn account’ a recovery of attorney’s fees could not be had in a suit ‘resting upon special contracts’. Recovery of attorney’s fees under some of the other classifications set out in Art. 2226 might be had under a contract between the parties covering such situation, but not under the part dealing with ‘sworn account.’ ”

In the instant case, plaintiff’s claim for attorney’s fees is based upon the sworn account provision of Rule 185. It is undisputed that title to personal property did not pass. It is undisputed that the automobiles were taken by defendants under lease contracts and that title to neither ever passed to the defendants or either of them. Hence, the transaction “rests in special contract” and lacks the element of sale and purchase whereby “title to personal property passes from one to the other.”

Under the above authorities, we conclude that plaintiff was not entitled to recover attorney’s fees.

All points of error, except the point pertaining to attorney’s fees, are overruled.

Judgment in favor of plaintiff for the debt sued upon is affirmed; that part of the judgment of the trial court allowing attorney’s fees to the plaintiff is reversed and judgment here rendered that plaintiff recover nothing as attorney’s fees.

Affirmed in part and reversed in part.


author: TIREY, Justice.

text:
    FIRST NATIONAL BANK OF MEXIA, Texas, Appellant, v. K. A. ANDERSON, dba K-Way Builders Supply Company, et al., Appellee.
    No. 3952.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1961.
    Rehearing Denied Jan. 4, 1962.
    Bradley & Geren, Groesbeck, for appellants.
    Hugh D. Reed, Jr., Fairfield, Bowlen Bond and Glynn Nance, Teague, O. F. Watkins, Mexia, for appellee.
   TIREY, Justice.

This action involves the Negotiable Instruments Act, particularly Article 5934, Sections 30 and 49, and was tried without the aid of a jury. It does not yield to a simple statement, but since the Court, on request, filed findings of fact and conclusions of law, we will state the pertinent parts of these findings. On April 4, 1960, K. A. Anderson, dba K-Way Builders Supply Company, entered into a written contract with Bill Moore (and accepted by Mrs. Opal Richardson, a feme sole) for the building and construction of a house (contract price $7180.50) on certain property belonging to Mrs. Richardson, fully described in the contract. Anderson, under the contract, furnished the material to the owner in the amount of $5600.02 of material and labor; that construction was begun under a written contract and the house was completed with extras at the reasonable cost of $300.00, and at the time of the trial Mrs. Richardson had paid Moore, the builder, the sum of $4916.50, on the contract price, no part of which was paid to Anderson. On May 3, 1960, Mrs. Richardson gave to Moore a Mechanic’s and Material-man’s Lien Contract covering certain lands and premises in Freestone County, Texas, including the property on which the house was being built and this instrument was signed by Moore and Mrs. Richardson and acknowledged on May 5, 1960, and the instrument was filed with the Clerk of Freestone County, Texas, and recorded in Vol. 9, Page 503, in the records of said county. The lien was given to secure a note in the sum of $7100.50, payable to Moore, or order, and it was secured by a Mechanic’s and Ma-terialman’s Lien. This lien of May 3, 1960, was given for the building of the same house to be constructed for Mrs. Richardson, which was evidenced by contract of April 4, 1960. This note and contract was delivered to Moore by Richardson, and at the time Mrs. Richardson signed the note and contract, she knew what she was signing and the nature and consequence of her acts in the signing.

“Moore, sometime after May 5, 1960, and prior to July 30, 1960, left said note for $7100.50 and the lien securing it, with defendant Bank as collateral security; and at which time, Moore executed to said Bank a new note for the sum of $5500.00. When this note and lien were left with Bank as collateral security for indebtedness then owing said Bank by Moore, and for new note of $5500.00, Moore neither transferred nor assigned said note and lien, or either of them, to said Bank, but merely left same with said Bank as collateral security.
“About five days prior to July 30, I960, Hugh D. Reed, Jr., an attorney of Fairfield, Texas was employed by Anderson to collect the money due him under said contract of April 4, 1960, being the sum of $5600.02; that on July 30, 1960, and between the hours of eight o’clock A.M., and nine o’clock A.M. at approximately 8:30 A.M., Reed called Bank seeking to locate note and lien of date May 3, 1960, he having discovered same of record, and having been informed by Moore that the Bank had said instruments, at this time, Reed informed Bank that he was employed by Anderson to collect his money; that Richardson had already paid Moore, at least, $4300.00 on the contract, and that Anderson had furnished material and supplies for the building of said house to the extent of $5500.00, for which he had been paid nothing. After Bank received this call from Reed, it began trying to locate Moore, and did locate him — and at some time between 12:30 P.M., and 1:05 P.M., approximately 1 o’clock P.M., of said July 30, 1960, Moore came to the Bank and transferred said note to said Bank by written transfer on the back thereof, and transferred said note and lien to said Bank by written transfer, which transfer and assignment was filed for record with the County Clerk of Freestone County, Texas, on August 1, 1960, at eight o’clock A.M. Anderson filed this suit in the 87th District Court of Freestone County, Texas, on August 1, 1960.”
“CONCLUSIONS OF LAW:
“I conclude as a matter of law that said Bank was not a holder in due course of said note and lien left with it by Moore as collateral security, but took said note and lien subject to whatever equities then existed against its transferror Moore. The note being payable to Moore, or order, is negotiated only by the endorsement of Moore and the delivery thereof. Moore did not endorse this note until about 10 o’clock P.M., on July 30, 1960, at -which time the Bank had been given notice by Reed of the outstanding ■equities existing against Moore in connection therewith. Moore having been paid for all services rendered by him in the building of said house by Richardson, he had no further claim against her; and Anderson having been paid nothing for material and supplies furnished, was entitled to any unpaid balance due by Richardson, which was found to be $2664.00. (See Article 5934 VACS, sections 30 and 49. First State Bank of Three Rivers v. Petrucha [Tex.Civ.App.], 38 S.W.2d 138. Gibbs v. Wheeler [Tex.Civ.App.], 306 S.W.2d 929; 6 Texas Jurisprudence, page 670, section 67.)”

The court decreed that Anderson recover of defendants, Bill Moore and Mrs. Richardson, jointly and severally, $2664.00, being the unpaid balance on the original contract for the sum of $7180.50 for the construction of the residence built upon the land and premises of Mrs. Richardson, together with interest at the rate of 6% per annum from date. It further decreed that Anderson have judgment against defendant, Moore, individually, for the further sum of $2936.02, being the amount due Anderson •over and above the sum of $2664.00 on the •contract executed by Anderson and defend.ant, Bill Moore, and accepted by Mrs. Richardson, with interest at the rate of 6% •per annum from date until paid. The court ■decreed that the First National Bank of Mexia be denied any recovery against Mrs. Richardson for any sum and denied a foreclosure of any asserted mechanic’s and ma-terialman’s lien against Mrs. Richardson. The court further awarded judgment in favor of the First National Bank of Mexia against Bill Moore for the sum of $7100.50 for its debt and for the further sum of -$710.00 attorney’s fees, together with interest at 6% per annum from date of this judgment. The court further decreed that the mechanic’s and materialman’s lien con-tract executed by defendant, Mrs. Richard--son, to defendant Bill Moore, dated May 3, 1960, recorded in Vol. 9, Page 503 of the mechanic’s and materialman’s lien records of Freestone County, Texas, be cancelled and held for naught and that the cloud cast on Mrs. Richardson’s title be removed. The judgment sets out a detailed description of the land involved. The judgment assessed all the costs against Mrs. Richardson and Bill Moore jointly and severally. The First National Bank of Mexia duly excepted to the judgment and gave notice of appeal to this court and has seasonably perfected its appeal (none of the other parties appealed).

The bank assails the decree on what it designates as 5 Points. Points 1, 2 and 3 are to the effect that under the undisputed factual situation here before the court, the bank was the holder of the note of Mrs. Richardson in due course. Point 4, that the court erred in holding that Mrs. Richardson was entitled to credit for payments made to Moore when the bank held the note, because she made no investigation to find out where the note was and did not see that credits were made on said note when she made the payments to Moore. Point 5, the court erred in overruling the plea in abatement and motion for continuance filed by the bank when it was shown that the bank was not served with citation on the cross-action filed by Mrs. Richardson, and that the bank was only furnished a copy of the cross-action within 7 days prior to trial, and because the bank was never furnished with a copy of the answer of Mrs. Richardson which was filed after the hearing on the application for temporary injunction.

As we understand the position of the bank it is to the effect that under this factual situation disclosed by the findings of fact of the trial court and the record, that the bank is an innocent purchaser for value of the note and the mechanic’s lien before maturity, and that such note and lien were assigned and pledged to it by Moore, the original holder before maturity, and that the bank is entitled to foreclosure on the land and improvements for the sum of $7100.50, and for judgment against Mrs. Richardson and Moore for such sum with interest and attorney’s fees, and the bank relies on the opinion of our Supreme Court in Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928, and the decisions there cited. We do not think the decision in the foregoing case is applicable and controlling to the undisputed factual situation here. In the Continental Bank case the Court said:

“The note was payable October 21, 1945 to Womack’s order and, together with the contract, was endorsed and delivered by him to the bank on October 15, 1945, or six days before maturity, against an advance to him on that date of $1000. A further advance, amounting to $400, was made on November 10, 1945, or some 21 days after maturity of the pledged note, which meanwhile had evidently remained in the bank’s possession as security for the first advance.”

In the case at bar the court found substantially that Moore sometime after May 5, 1960, and prior to July 30, 1960, left the note for $7100.50 and the lien securing it with defendant bank as collateral security, and at that time Moore executed to the bank a new note for the sum of $5500.00; that this note and lien were left with the bank as collateral security for the indebtedness then owing the bank by Moore and for the new note of $5500.00 aforesaid; that Moore neither transferred nor assigned the $7100.50 note and lien, or either of them, to the bank, but merely left the foregoing note with the bank as collateral security. We think this undisputed factual situation distinguishes the case at bar from the Continental Bank case and brings this pertinent factual situation under Art. 5934, sections 30 and 49. Section 30 provides:

“An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery.”

Section 49 is:

“Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the in-dorsement is actually made, (emphasis added).”

In the case at bar we think the evidence is without dispute that the negotiation or in-dorsement by Moore of the $7100.50 note took place after the bank had actual notice of the rights of Anderson and Mrs. Richardson, which information the bank obtained through Anderson’s lawyer as fully detailed in the court’s findings of fact. We think such factual situation brings this case within the rule stated by Tyree v. Cox, Tex.Civ.App., 267 S.W.2d 233 (w. ref.). The opinion of Justice Norvell has not been overturned by our Supreme Court, and that opinion is binding upon us. See also the opinion of First State Bank of Three Rivers v. Petrucha, Tex.Civ.App., 38 S.W.2d 138 (writ dis.); Gibbs v. Wheeler, 306 S.W.2d 929 (n. r. e.), 6 Tex.Jur. 670, Sec. 67. See also Art. 5935, R.C.S., Sec. 52, and Sec. 54. Our view is that under the undisputed factual situation, and under the authorities cited, the bank is not a holder in due course, and Points 1, 2, 3 and 4 are each overruled.

Going back to appellant’s Point 5,. we are of the view that the court did not err in overruling the bank’s plea in abatement and its motion for continuance. The-transcript shows that the bank, on January 6, 1961, filed its cross-action against plain- - tiff Anderson, and defendants Mrs. Rich- - ardson and Bill Moore, and in this cross- - action set out in detail the facts and circumstances relating to the execution and delivery of the note of $7100.50, as well as the execution and delivery of the mechanic’s and materialman’s lien and prayed for judgment on its cross-action for the full amount of the note with interest, attorney’s fees and for foreclosure of the materialman’s and mechanic’s lien. On February 20, 1961, Mrs. Richardson filed her cross-action against the bank, and in her cross-action she set up for the first time that at the time she executed these instruments that she was ill and in the hospital and was under the influence of heavy sedatives, and that she was in such a mental state that she did not know the consequence of her acts, and that her signature to the note and mechanic’s lien was obtained through fraud and misrepresentation, and that by reason thereof the note and lien was procured by fraud and she asked that each be cancelled. The cause went to trial on February 27, 1961, and on the same day the bank filed its exceptions to the cross-action and setup that it was not served with citation and that it had not waived service, and that it had not been furnished with a copy of the cross-action within the 7 day period required by Rule 63 of the Texas Rules of Civil Procedure, and prayed that the suit be abated until it could have an opportunity to investigate the facts set out in the cross-action of Mrs. Richardson. The court had a hearing on this plea in abatement and/or motion for continuance and after hearing the same overruled the bank’s contentions, to which the bank duly excepted. Thereafter, on the same date, the bank filed its original answer to Mrs. Richardson’s cross-action and denied each and every allegation thereof. The court, in its findings of fact pertinent to this matter, specifically found: “This note and contract were delivered to Moore by Richardson; and at the time Richardson signed said note and contract, she knew what she was signing, and the nature and consequence of her acts in signing.” The court in its decree denied Mrs. Richardson any relief against the bank and taxed all costs of this suit against Mrs. Richardson' and defendant Moore. So, if there was any error in overruling the banks’ plea in abatement and motion for continuance, it became harmless and passed out of the case under the provisions of‘ Rules -434 and 503, T.R.C.P. It follows that we are of the view that the bank’s Point 5 is without merit and it is overruled. Finding no error the judgment of the trial court is in all things affirmed.


author: WERLEIN, Justice.

text:
    Thomas M. MOHLER, Appellant, v. V. R. OWENS et al., Appellees.
    No. 13786.
    Court of Civil Appeals of Texas. Houston.
    Jan. 4, 1962.

      John H. Holloway, Houston, for appellant.
    Talbert, Giessel, Cutherell & Barnett, Scott Talbert, Houston, for appellee, V. R. Owens.
    R. Wayne Amos, Houston, for appellee, Robert C. Cooper.
    Richard H. Powell, Paul A. Tucker, Houston, for appellee, Joe A. Massey.
   WERLEIN, Justice.

Appellant, Thomas M. Mohler, appeals from a judgment based on a jury verdict in his favor for $500.00 against appellee, Robert C. Cooper, for personal injuries resulting from an unlawful assault on his person by said appellee. Appellant undertook to prove that Cooper and defendant Joe A. Massey were at the time of the assault in the process of repossessing a 1940 Chevrolet at the request of appellee, V. R. Owens, who was engaged in the used-car and finance business under several names. The minor defendants, Kenneth Penn Owens and Richard C. Owens, were dismissed from the suit by appellant and the court instructed a verdict for defendant Massey.

Appellant asserts that the trial court erred in denying him a new trial because of prejudicial, material and uncontrovert-ed jury misconduct in determining the ■damage issue by a majority vote. Only two jurors were called to testify as to the amount of actual damages awarded. The jury did not award exemplary damages.

Juror Thomas G. Hill testified in substance that the amount of damages was a contested issue among the jurors and they were split on it; that a couple of jurors ■didn’t want to give anything but most of them wanted to give some amount, and they had a long discussion about it; that he thought the highest figure any juror wanted to award appellant was approximately $1,000.00; that at the time the jurors voted on $500.00 they were not unanimous, and in that connection the jurors agreed to be bound by the majority vote of the jurors; that they first took the sum of $500.00, and there were two ■against it and ten for it, to the best of his recollection, so they left the amount ■at $500.00 with two against it and ten for it, and reported that figure; that there were no further votes taken on the issue, and that prior to that time they had agreed to be bound by the majority vote.

To questions asked by the court, Juror Hill testified that in spite of the court’s instructions he made an agreement with the rest of the jurors to be bound by what the majority said; that if he remembered correctly two of the jurors wanted to give a lesser amount, but he himself voted for the amount of $500.00 without any agreement, thinking it was a proper amount under the evidence.

Juror A. D. Cobb testified in substance that the jurors were hotly contesting as to the amount to be awarded the plaintiff; that the jurors agreed in a way that they would be bound by a majority vote; that there was a majority vote taken, and from that majority vote the other jurors changed their votes, making it unanimous, “but they went by the majority vote”; that he wanted to give $1,000.00, and in advance of the majority vote, he agreed to be bound by whatever figure was voted. To questions asked by the court he testified that there was an agreement made by the jurors, including himself, before they voted on the damage issue, to be bound by whatever the majority said; that there was an agreement made by all twelve jurors to vote by whatever the majority said, regardless of what they said; and he entered into the agreement with the .rest of the jurors to be bound by the majority regardless of what they thought about it themselves.

We are aware of the rule that the evidence must be viewed most favorably to the court’s order overruling the motion for new trial and that the trial court has great latitude in passing upon the credibility of the witnesses and in weighing the testimony. State Teachers’ Mutual Life Ins. Co. v. Mims, Tex.Civ.App.1934, 74 S.W.2d 549, writ ref.; St. Louis B. & M. R. Co. v. Cole, Tex.Com.App.1929, 14 S.W.2d 1024.

In the instant case, however, the testimony of Jurors Hill and Cobb is un-controverted and clearly evidences an agreement entered into by all the jurors, prior to voting on the amount of $500.00, to be bound by the majority vote on the damage issue regardless of what the individual jurors considered the proper amount of damages. The testimony further shows that such agreement was carried out in answering the issue on damages. We think the uncontroverted testimony of said jurors, which is not contradictory in any material aspect, clearly shows as a matter of law jury misconduct. Tian v. Warren, Tex.Civ.App.1954, 271 S.W.2d 453, writ ref., n. r. e.; McDonald’s Texas Civil Practice, Vol. 3, Sec. 14.13; Rule 291, Texas Rules of Civil Procedure. In Kindy v. Willingham, 146 Tex. 548, 209 S.W.2d 585, 1948, our Supreme Court said:

“The law is well settled in this and other jurisdictions that the action of jurors in binding themselves in advance to abide by the decision of the majority upon issues submitted to them vitiates the verdict so reached. This rule is not affected by the fact that after the majority expresses its will, all of the jurors assent thereto either in the jury room or thereafter in open court. Casstevens v. Texas & P. Ry. Co., 119 Tex. 456, 32 S.W.2d 637, 73 A.L.R. 89; Boddeker v. Olschewske, 127 Tex. 598, 94 S.W.2d 730.”

The next question is whether or not such misconduct probably resulted in prejudice to appellant. Rule 327, Texas Rules of Civil Procedure. The evidence shows that the jury had not been able to decide on the amount of damages to be awarded appellant, and that pursuant to the agreement entered into by them to be bound by the majority vote of the jurors, they did finally award the amount of $500.-00 which the majority of the jurors voted to give appellant as compensation. The evidence also shows that at least one juror because of the agreement lowered the amount he wanted to allow appellant from $1,000.00 to $500.00. Even if only one juror was influenced by the misconduct, that is enough to vitiate the verdict. Texas Electric Ry. Co. v. Wooten, Tex.Civ.App.1943, 173 S.W.2d 463, writ ref. w. m. We have concluded that the misconduct in question was material and that it reasonably appears from the evidence, both on the hearing of the motion for new trial and the trial of the case and from the record as a whole, injury probably resulted to appellant.

We think the amount of $500.00 actual damages found by the jury would ordinarily be considered grossly inadequate compensation for the severe injuries sustained by appellant. The evidence shows that both ja\,s of appellant were fractured, with one fracture displaced; that appliances had to be placed in appellant’s mouth and wired to his teeth in order to hold his jaws together, and that such appliances remained in his mouth for approximately six weeks; that appellant had a large amount of swelling on the right side of his face, and that the fractures were very painful, and that the pain was severe in nature while the dislocated fragment of the jaw was being pulled back into position; and that a charge for medical services of $250.00 would be reasonable although no bill was rendered by Jefferson Davis Hospital, which is a charity hospital, or by appellant’s doctor. There is also testimony that appellant lost wages of between $60.00 and $80.00 a week for at least twelve weeks, or a minimum loss of $720.00. Laney v. Hardy, Tex.Civ.App.1954, 265 S.W.2d 609.

We cannot say, however, that the amount of damages awarded is grossly inadequate under the circumstances of this case or that it indicates, as a matter of law, that the jury was actuated by passion or prejudice, in view of the fact that in connection with the damage issue the jury was properly instructed by the court with respect to the elements of damage to be considered and was also instructed in regard to mitigation of damages as follows:

“You are instructed that in determining the amount of damages to be awarded the Plaintiff, either actual or exemplary, you may take into consideration the manner and conduct of the Plaintiff toward the Defendant at the time of the altercation, and if the manner and conduct of the Plaintiff were such as, in you opinion, amounted to a provocation on his part in bringing about the difficulty, then his damages, actual or exemplary, or both, should be reduced to such sum as in your opinion might seem proper.”

There is evidence that before the fight started appellant had cursed appellee Cooper, and at the time of the assault he got out of his car and said to Cooper that he was going to kill him. The jury-may well have concluded that appellant’s words and conduct, while not a justification for the assault by Cooper, amounted to provocation on the part of appellant bringing about the fight, and that appellant’s damages should be reduced accordingly. Indeed, the jury found in answer to Special Issue No. 8 that appellant provoked the difficulty by reason of his having, prior thereto, cursed appellee Cooper. The law appears to be well settled in this State that verbal provocation, independent of inflicting injury, although it does not justify an assault, may be shown in mitigation of both actual and exemplary damages and.that the jury should be charged accordingly. Richards v. Westmoreland, Tex.Civ.App.1933, 63 S.W.2d 715; Daniels v. Starnes, Tex.Civ.App.1933, 61 S.W.2d 548, writ dism.; Fred Harvey, Inc. v. Comegys, Tex.Civ.App.1921, 233 S.W. 601; Walker v. Kellar, Tex.Civ.App.1920, 226 S.W. 796, writ ref.; Hall v. Hayter, Tex.Civ.App., 209 S.W. 436 ; 6 C.J.S. Assault and Battery § 17, p. 807; 6 Tex.Jur.2d p. 389, § 153.

We have concluded in light of the entire record and in view of the law with respect to mitigation of damages because of provocation, that we cannot say the judgment of the court based upon the jury verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant complains that the trial court erred in submitting the issue as to ratification of the assault, conditionally on affirmative answers that the assault was committed by defendant Cooper in the scope of his employment for the defendant Owens.

We have carefully examined the record and fail to find that appellant objected or excepted to the court’s charge and the submission of the issues as given. In support of the court’s judgment it will, therefore, be presumed that no obj ections were timely made by appellant to the court’s conditional submission of the issue on ratification. By failing to object to such conditional submission of said issue, appellant waived his right to jury trial of the unanswered issue on ratification. He waived not only the manner of submission but also the benefits, if any, which he might have received from a favorable answer to such issue. Colls v. Price’s Creameries, Tex.Civ.App. 1952, 244 S.W.2d 900, writ ref., n. r. e.; Pacific Employers Ins. Co. v. Brasher, Tex.Civ.App.1951, 234 S.W.2d 698, writ ref., n. r. e.; Whiteside v. Tackett, Tex.Civ.App.1950, 229 S.W.2d 908; Burns v. Lamb, Tex.Civ.App.1958, 312 S.W.2d 730, ref., n. r. e.; Rule 274, Texas Rules of Civil Procedure.

In view of our holding with respect to the conditional submission of the issue on ratification, it is unnecessary to discuss appellee Owens’ counter-points or the jury’s findings on the other issues in favor of said appellee. Suffice it to say that the jury found that appellee Cooper was not acting at the time of the assault within the scope and course of his employment for Owens; that the assault was not committed with the intention of repossessing the automobile; and that at the time appellant executed the release introduced in evidence whereby he released appellee Owens from every claim he might have for personal injuries resulting from the assault, appellant had the mental capacity to read and understand such release. The trial court properly rendered judgment on the jury verdict that appellant take nothing against appellee Owens.

The jury misconduct occurred only in connection with the issue on damages after liability issues had been answered favorably to appellee Owens. Therefore such misconduct in no way affected the jury’s exoneration of appellee Owens, and is immaterial as concerns appellant’s claim against Owens. Under the jury’s answers to the liability issues, appellant could not recover any damages against Owens regardless of any finding of damages. Hence the jury’s misconduct did not in any way result in prejudice or injury to appellant in connection with his claim against Owens. Rule 327, Texas Rules of Civil Procedure. The cause of action against Owens is entirely severable from that against Cooper. The issues with respect to Cooper’s liability and damages can be fairly tried without Owens as a party to the suit. Cantu v. Casas, Tex.Civ.App. 1953, 265 S.W.2d 175, writ ref., n. r. e.; Lowery v. Berry, 1954, 153 Tex. 411, 269 S.W.2d 795; Rule 434, T.R.C.P. There appears to be no reason why the judgment should not be affirmed as to appellee Owens.

The judgment of the trial court is affirmed as to all parties except Cooper, and as to him the judgment is reversed and the cause remanded.

Affirmed in part and in part reversed and remanded.


author: POPE, Justice.

text:
    Louis F. LABBE et al., Appellants, v. F. Wm. CARR, Appellee.
    No. 13935.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1961.
    Rehearing Denied Jan. 3, 1962.
    Sidney P. Chandler, Corpus Christi, for' appellants.
    Head & Lyle, Gerald D. James, Corpus-Christi, for appellee.
   POPE, Justice.

Plaintiff, F. Wm. Carr, obtained a temporary injunction which enjoined members-of the Labbe Family from interfering with-his possession. The Labbe Family, as leasing agents for the State, in 1945 executed an oil and gas lease to a tract of land in Duval County. Carr drilled a producing well on the land, and he received his oil runs until July 20, 1961. In 1953 Carr employed Emil C. Labbe as his pumper and gauger. Labbe lives on the land and tended to the well daily. Carr paid Labbe monthly. In April and May, 1961, Labbe received his-pay checks from Carr, hut in June Labbe returned his check. This was the first indication to Carr that Labbe was no longer his-employee. Carr then employed a well servicing company to tend to the well. On July 20, 1961, Carr learned that Emil Labbe, his employee, had requested the Railroad Commission, back in April, 1961, to change the name of the operator of the lease from Carr to Labbe. On August 6, 1961, Emil Labbe and Adolph Labbe warned Carr’s employee not to come back on the premises, and this suit was filed within a few days. Upon this state of facts, the Labbe Family claims that their prior possession was the status quo to be preserved, but the trial court rejected the claim.

On final trial, there may be issues about Carr’s abandonment of the oil lease. As the case is here presented, however, the claim by the Labbe Family is that Carr lost possession because his employee, Emil Lab-be, without advising his employer had ceased to work for him. There is evidence which supports the judgment. Carr was in possession of the premises through Emil Labbe, his employee, until June 1, 1961, and thereafter through the well servicing company. It was not until August that the Lab-be Family contested the possession. The last peaceable status was that of Carr in possession operating the well, and the trial court correctly maintained that status.

Affirmed.


author: WALTER, Justice.

text:
    NEWPORT OIL COMPANY, Appellant, v. Theo LAMB et al., Appellees.
    No. 3686.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 5, 1962.
    Rehearing Denied Jan. 26, 1962.
    King, Willoughby & Vletas, Abilene, for appellant.
    Sentell & Rosser, Snyder, for appellees.
   WALTER, Justice.

Theo Lamb and Roger B. Mize filed suit against Newport Oil Company and others for a declaratory judgment to construe a reservation of an overriding royalty in an oil and gas lease dated May 5, 1959, from Newport Oil Company to Delta Oil Company.

In a non-jury trial, the court found that, by reason of the proportionate reduction clause, the overriding royalty of ⅛⅛ of %ths was reduced in proportion to the Ysth interest actually owned by Newport at the time of executing such lease.

Newport has appealed, contending the court erred in holding (1) Lamb and Mize were innocent purchasers from Delta (2) that Lamb and Mize were innocent purchasers from Delta under a quitclaim assignment (3) that a typewritten rider did not take precedence over the printed matter in the lease and (4) in failing to reform the oil and gas lease for Newport.

Newport owned an undivided ⅛⅛ of the oil, gas and other minerals under the Goldsmith “B” lease. The Delta Oil Company owned the oil and gas leasehold on the remaining ^ths interest. On May 5, 1959, Newport executed to Delta an oil, gas and mineral lease on its ⅛⅛. interest reserving an overriding royalty interest as follows :

“Lessor hereunder hereby .reserves unto itself, its successors and assigns an additional one-eighth (¡4) of seven-eighths (⅝) overriding royalty of all of the oil, gas and other minerals produced on the above described property. Said one-eighth (⅛) of seven-eighths (⅞) of the oil and/or gas to be payable to lessor in like manner and terms as the usual land owner’s one-eighth (⅛) .royalty.”

This was in addition to the royalty of 14th created by the lease. The proportionate reduction clause provided that if Newport owned a less interest in the property than the entire and undivided fee simple estate, the royalty should be paid only in the proportion which Newport’s interest bears to the whole. The pipe line company issued its division order granting Newport a full 14th of j4ths overriding royalty without reduction. This division order was approved by Newport and Delta. The pipe line company continued to pay for the oil on this basis for approximately a year.

No findings of fact or conclusions of law were requested or filed. It is elementary that when the appellant contests the trial court’s judgment, without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law. The City of Abilene et al. v. Meek et al., Tex.Civ.App., 311 S.W.2d 654, (Writ Ref.). We hold the court was warranted in holding that the printed proportionate reduction clause in the lease was applicable to the typewritten overriding royalty provision. Newport contends the printed proportionate reduction clause is not applicable to the typewritten overriding royalty provision. In support of its contention Newport cites McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341. The Supreme Court was called upon in the McMahon case to construe an oil and gas lease with a printed proportionate reduction clause and a typewritten rider, reading as follows:

“The lessors herein reserved unto themselves their heirs and assigns, without reduction, as an overriding royalty, a net ⅜2nd of %ths of all oil or gas produced and saved from the above described premises, free of cost or expense to the credit of the lessors into the storage tank or tanks or into the pipeline to which the well or wells on said land may be connected.” (Emphasis Ours.)

It will be noted that the overriding royalty provision in the McMahon case uses the words “without reduction” and “net”, which we do not have in the overriding royalty provision in the case at bar. Judge Calvert, speaking for the Supreme Court in the McMahon case, said:

“If the clause providing for the %2nd overriding royalty did not provide that the reserved royalty was ‘without reduction’ the problem of construing the lease would present no great difficulty. The overriding royalty is, withal, ‘royalty’, State National Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757, and Griffith v. Taylor, [156] Tex. [1], 291 S.W.2d 673, and in the absence of the words ‘without reduction’ the proportionate reduction clause would require its reduction to a Jio2nd of production.”

Apparently Newport and Delta were mutually mistaken as to the legal effect of the overriding royalty provision of the oil and gas lease. As pointed out by our Supreme Court in Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, by Justice Walker, “Equity will grant relief by way of reformation if the circumstances otherwise warrant an exercise of its power. * * * Respondent is not entitled to equitable relief against a bona fide purchaser, however, and he has the burden of showing that petitioner does not enjoy that status.”

Mize testified he had no figures showing the interest of Newport but that he was purchasing Delta’s entire interest under the Goldsmith lease; that before entering into this contract, he had no specific knowledge as to what override Newport was claiming; that he presumed Delta’s representative furnished the abstracts and he had them examined and received a statement from his attorney as to the interest owned by Delta; that he relied on such statement in purchasing such property.

J. Mark McLaughlin, an attorney, testified he found nothing in the abstracts which led him to believe that Newport was claiming anything other than the interest set out in its lease to Delta.

Newport filed an alternate plea and cross-action wherein it alleged:

“That it was the intention of the Newport Oil Company and Delta Oil Company at the time said lease was made that said reservation should have read as follows, to-wit:
‘Lessor hereunder hereby reserves unto itself without reduction or regard to the proportionate reduction clause in this lease an additional ⅛ of ⅞ overriding royalty of oil, gas and other minerals.’ ”

Delta’s offer to sell the Goldsmith “B” lease was made by telegram. No statement was made in the telegram about a mutual mistake that it and Newport had made in preparing the lease by leaving out the words, “without reduction or regard to the proportionate reduction clause” in the overriding royalty provision.

On May 23, 1960, Delta assigned its interest in the Goldsmith “B” lease to Lamb and Mize. This assignment from Delta to Lamb and Mize recites a consideration of $10.00 and other good and valuable considerations. The Goldsmith “B” lease is one of the five leases Delta offered for sale for a total consideration of Four Hundred & Ten Thousand Dollars. This offer was accepted. The Goldsmith “B” lease was assigned to Lamb and Mize and the other leases were assigned to their associates. The assignment also states that Delta “does hereby bargain, sell, assign, transfer and convey unto Theo Lamb and Roger B. Mize” . . . “all of its right, title and interest in and to the following described oil and gas leases.” “Delta Oil Company, its successors and assigns, does hereby covenant with Theo Lamb and Roger B. Mize, their heirs and assigns, that the said Delta Oil Company is the lawful owner of and has good title to the interests hereby conveyed; and that the leases above described and hereby conveyed, (Emphasis Ours) are valid, subsisting and in full force and effect; that the interest hereby conveyed are free and clear of all liens, encumbrances and adverse claims; that all severance taxes, production taxes, ad valorem taxes, royalties and overriding royalties have been paid as required ; that all conditions necessary to keep said leases in full force and effect have been duly performed; and that the said Delta Oil Company, its successors and assigns, will warrant and forever defend the title to the interests hereby conveyed and assigned against the lawful claims and demands of all persons whomsoever.”

Newport contends this assignment is a mere quitclaim. Our Supreme Court in Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, at page 68, speaking through Justice Walker, said: “But it is well settled that in determining whether a deed is a conveyance of the land or a quitclaim, the intention of the parties must be ascertained from a consideration of the entire instrument. /The presence of words usually found in a quitclaim deed is not controlling if the instrument as a whole reveals an intention to convey the land rather than a mere chance of title.”

“The character of an instrument as constituting a deed or merely a quitclaim is to be determined according to whether it assumes to convey the property described, and upon its face has that effect, or merely professes to assign the grantor’s title. If, according to the face of the instrument, its operation is to convey the property, it is a deed. On the other hand, if it purports to transfer no more than the title of the grantor, it is only a quitclaim.” Lange Texas Practice — Land Titles, Sec. 481 page 360.

After examining and considering the assignment in its entirety we are forced to the conclusion that Delta intended to convey the property itself and not merely assign its chance of title.

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    Cecile Morris PRICE et vir, Appellants, v. Robert M. JOHNSTON et al., and the Estate of Rose Morris, Deceased, Appellees.
    No. 13842.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 17, 1962.
    Bernard A. Golding, Houston, for appellants.
    Houchins, Anderson, Smith & Null, Victoria, for appellees.
   POPE, Justice.

Appeal from Victoria County.

This is a contest of the will of Mrs. Rose Morris. The court without a jury trial, upheld the will. Contestants are Cecile Morris Price and her husband. She is a daughter of the testatrix. Another daughter is now deceased, and she was survived by three children, who are the contestees. Contestants claim that the testatrix lacked testamentary capacity and that she was the victim of undue influence. They urge that the implied findings of the court are so against the great weight of the evidence as to be manifestly wrong.

The grounds for both attacks upon the will are that the testatrix was eighty-four years of age and was ill when she executed her will. The evidence does not suggest who, if anyone, worked the undue influence, when it was done, or in what manner. The evidence shows that the testatrix, of her own free will, went to the office of the attorney who had counseled her and her husband, then deceased, for more than twenty years. She discussed her property and her will at length, with the attorney, and later returned to execute the formal will. By her will, testatrix left one-half of her property to contestant in trust, and the other half to contestees in trust. These transactions were without the knowledge of any of the beneficiaries. Her testamentary capacity was proved by the unshaken testimony of five witnesses.

Contestants have done no more than prove that the testatrix was old and sick. These bare facts defeat neither the testatrix’s capacity nor her freedom to act. Hospital records which are in evidence show that the testatrix was in the hospital twelve times between 1953 and 1959, and that she was treated for asthma. Once she was in the hospital for a strained hip, and again for a broken foot. In 1957, according to the record of one visit, she suffered from asthma, expansion of the thoracic cage, and acute anxiety. A medical witness explained that the anxiety was probably occasioned by her shortness of breath. The hospital records show that she received narcotics during her periods of hospitalization as treatment to relieve her difficulty in breathing. Her physicians testified that the effects of such treatment were dissipated in a few hours. There is no evidence which suggests that testatrix’s mind was weakened by or that she was under any disabling influence of medicine and drugs on, before, or after May 21, 1957, the day she executed the will.

Mrs. Morris’ advanced age, without more, proves neither incapacity nor the fact of undue influence. 1 Page on Wills, (Bowe-Parker Revision), § 12.27. Mr. Justice Fly, in Salinas v. Garcia, Tex.Civ.App., 135 S.W. 588, upheld the capacity of a testator ninety years of age. Accord, Lehmann v. Krahl, 155 Tex. 270, 285 S.W.2d 179; Davidson v. Gray, Tex.Civ.App., 97 S.W.2d 488; McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942; Bell v. Bell, Tex.Civ.App., 237 S.W.2d 688; In re Lincoln, 185 Okl. 464, 94 P.2d 227; In re Bose, 136 Neb. 156, 285 N.W. 319. At eighty, Verdi wrote Falstaff, Goethe wrote Faust, and Cato began the study of Greek. At eighty-one, Franklin counseled the Constitutional Convention, and still later urged its adoption by the colonies. At eighty-six, Shaw was producing plays, Churchill was writing his History of the English Speaking People, Russell finished Human Knowledge, and Sweitzer continues to pour out literature and philosophy, while practicing missionary medicine. Hobbes translated the Odyssey at eighty-seven, and the following year the Illiad. Roscoe Pound, at eighty-nine, published his five-volume work on Jurisprudence. Michelangelo died at the threshold of ninety and, to the last, was active in his artistic decoration of St. Peter’s Basilica. At ninety, Titian painted “The Battle of Lepante.” Mr. Justice Holmes was writing opinions at ninety, and yearned to be a young man of seventy. At ninety-two, he read Plato in the Greek, as he said, “to improve my mind.” Grandma Moses painted more than a thousand pictures after she began painting at the age of seventy-seven. She left unfinished her “Beautiful World” which she began at the age of one hundred and one. Her pictures hang in the galleries of Europe and America. The law does not render persons incompetent upon proof merely of advanced age. See Gambill’s Administrator v. Gambill, 236 Ky. 491, 33 S.W.2d 325.

The proof by contestants falls far short of that needed to set aside the implied finding's of competency and freedom from undue influence. We affirm the judgment.