text:
    LOUISVILLE GAS & ELECTRIC COMPANY, a Kentucky Corporation, Appellant, v. John M. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.

      Donan & Vick, Greenville, for appellant.
    T. O. Jones, Greenville, for appellees.
   CULLEN, Commissioner.

In this action by Louisville Gas & Electric Company to quiet title to the coal under a certain tract of land the court entered judgment at the close of the plaintiff’s evidence dismissing the claim. L. G. & E. has appealed.

The claim of L. G. & E. rested entirely on constructive adverse possession of the coal by virtue of alleged adverse possession of the surface by the person who sold the coal rights to L. G. & E., and by his successor in title.

We doubt that even under the ordinarily applicable rules of adverse possession the claim of L. G. & E. could prevail because:

1. Admittedly, prior to 1923, there was no actual adverse possession of the surface. The mere continuance in existence, after the conveyance of the. legal title in 1883, of a fence that previously had enclosed the conveyed tract with other land of the grantor, could not be considered to be an act of adverse possession.
2. Such acts of actual adverse possession as were done after 1923 were spasmodic and intermittent, and not continuous. Furthermore, the person who performed those acts did not claim anything but the surface, and it is doubtful whether his possession could inure to the benefit of a person to whom his grantor (who had no valid title) previously had purported to sell the coal rights.
3. The adverse claimants could not claim title by constructive adverse possession, since the situation here was an overlap or interference situation in which actual entry upon and possession of the overlap or interference are required. Stepp v. Stepp, 216 Ky. 243, 287 S.W. 707.

Even if it should be considered that L. G. & E.’s claim might prevail under the ordinary rules of adverse possession, L. G. & E. is faced here with a special rule which unquestionably bars its claim. The alleged adverse claimants by whose acts L. G. & E. claims title was wrested from the record owners consisted of the grantor who originally deeded the title to the record owners, and the heirs of that grantor. Under the special rule applicable as between grantor and grantee the grantor and his heirs could not obtain title by adverse possession as against the grantee and his successors in title without giving notice by way of an express disclaimer and making a notorious assertion of title. See Williams v. Thomas, 285 Ky. 776, 149 S.W.2d 525; Hoagland v. Fish, Ky., 238 S.W.2d 133, 135. The acts of the claimants in this case did not make any semblance of meeting the requirements of the rule.

The judgment is affirmed.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. T. C. GISBORNE et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.

      Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, for appellant.
    Paul Lewis, Hatcher & Lewis, David D. Jarrett, Elizabethtown, J. Luke Querter-mous, Princeton, for appellees.
   STEWART, Judge.

The Commonwealth of Kentucky, Department of Highways, purchased from T. C. Gisborne and Dorothea Gisborne, his wife, a small amount of their farm in Hardin County for widening to four lanes U. S. Highway 31-W. Paul Young, the Department’s resident engineer, staked off the property supposedly obtained by the Department under a deed.

It developed that Young was mistaken about the amount of land embraced in the conveyance from the Gisbornes to the Department. A portion of their property, approximately 300 feet long and from ten to thirty feet in width, which was erroneously believed by Young to have been included as a temporary easement in the deed, was also taken and utilized. The subcontractor, Tom Ferguson Contracting Company, herein called “Ferguson,” in the course of performing the construction work, proceeded to tear down the fences, clear off the trees and shrubbery and do some grading on the unacquired strip, using the stakes set out by Young as a guide for the acts done.

The Gisbornes sued Ferguson for damages who in turn filed a third-party complaint against Young and the Department. The Gisbornes by amended complaint then made Young and the Department parties defendant, alleging they had wrongfully taken, injured and destroyed their property. At a pretrial hearing the trial court dismissed as to Ferguson and Young. Before a jury the Gisbornes later recovered $1050 from the Department.

The Department has appealed, urging as a basis for reversal: That, as the action was premised upon the negligence of the Department and its employees, the suit of the Gisbornes should have been adjudicated before the Court of Claims, pursuant to KRS 44.070 et seq.; and that, assuming arguendo there was what amounted to a taking, the Department upon payment of the award was entitled to be conveyed the land involved.

The Gisbornes have cross-appealed, contending the trial court erroneously dismissed the action as to the contractor, Ferguson.

Was there an unconstitutional taking of the property in controversy, as the Gisbornes argue, or merely a trespass, as the Department contends? Actually, it makes no difference whether property is condemned and appropriated for a public use, or is “injured or destroyed” for a public purpose, the owner of the property when any of these conditions occur must be justly compensated. See Section 13 and Section 242 of the Constitution of Kentucky. See also Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161. It does not matter whether the taking or injuring was permanent or temporary. See Mercer County v. Ballinger, 238 Ky. 120, 36 S.W.2d 856.

Therefore, since we conclude this was a condemnation proceeding in essence, or the acts of the Department constituted what is sometimes called a condemnation in reverse, the proper forum for court action was in the county where the land lay, namely, in Hardin County. See KRS 177.-082.

The next contention is that the Department should have received a deed to the property affected by this litigation. As the sole issue involved was the amount of compensation, if any, to be paid for the use of or injury to the strip of land, the trial court did not err when it refused to order that the strip be conveyed to the Department. Admittedly there was no taking of the land itself; hence, there was no necessity for a deed. Cf. Keck v. Hafley, Ky., 237 S.W.2d 527.

In their cross-appeal, the Gisbornes take the position that the trial court committed error in not allowing the contractor, Ferguson, along with the Department, to be proceeded against as a defendant in this action. We have held a contractor building a road is liable for damages which result from his own negligence or from his unauthorized acts on property off the right of way. See Combs v. Codell Construction Company, 244 Ky. 772, 52 S.W.2d 719.

The trial court found that, although Ferguson in the performance of the contract trespassed on the land of the Gisbornes and damaged it, such acts were done pursuant to the plans furnished him by Young, the engineer in charge of the work for the Department. The latter admitted the temporary easement intended to be acquired was, through error, not included in the description of the deed the Department obtained from the Gisbornes. Thus the injury to the land was solely due to a “mistake” of the Department. Cf. Commonwealth, Department of Highways v. Thacker, Ky., 384 S.W.2d 79. It follows that any recovery from Ferguson could have been recouped from the Department.

The Gisbornes obtained relief from the one alone chargeable with the duty to give them full redress for the injury to their property.

Wherefore, the judgment is affirmed on the appeal and on the cross-appeal.


author: WALKER, Justice.

text:
    The AUSTIN PRESBYTERIAN THEOLOGICAL SEMINARY et al., Petitioners, v. Thomas D. MOORMAN, Administrator, et al., Respondents.
    No. A-10388.
    Supreme Court of Texas.
    May 19, 1965.
    Rehearing Denied July 7, 1965.

      Alvis & Carssow, Austin, Crawford C. Martin, Hillsboro, for Austin Presbyterian Theological Seminary and others.
    Powell, Rauhut, McGinnis & Lochridge, R. Harry Akin, Austin, with above firm, for Scottish Rite Educational Ass’n and others.
    Cofer, Cofer & Hearne, Austin, for respondents.
   WALKER, Justice.

The will of Hicklin P. Hunnicutt, deceased, gave Miss Helen Mar Hunnicutt an option to purchase 1,000 acres of land owned by the testator in Dimmit County for $8,~ 000.00 to be paid to the executor within one year after the probate of the will. It further directed that in the event she failed to exercise the option by reason of her death or some providential hindrance, the land should be sold by the executor and the proceeds divided among a number of schools, hospitals and other eleemosynary organizations as provided in the will. Miss Hunni-cutt died intestate about ten months after the will was admitted to probate. After her death but within the period during which the option might be exercised, the administrator of her estate tendered $8,000.00 to The Austin National Bank, Independent Executor of the estate of Hicklin P. Hunni-cutt, and requested a conveyance of the land. This suit was then instituted by the Bank to obtain a judgment construing the will and determining whether the option had been exercised either by Miss Hunni-cutt or by her personal representative.

All persons interested in the will or estate of Hicklin P. Hunnicutt were named as parties, but the proceeding developed into a controversy between the heirs and personal representative of Helen Mar Hun-nicutt, who are respondents here, and the various organizations which claim that the will entitles them to the proceeds of the land in the event the option was not exercised. The Austin Presbyterian Theological Seminary and other representatives of the latter group are our petitioners. The single special issue submitted to the jury inquired whether Miss Hunnicutt had elected to exercise the option. The issue was answered by the jury in the negative, and judgment was rendered on the verdict decreeing that the option was not exercised by Miss Hun-nicutt and could not be exercised by the administrator of her estate, and directing the Bank to sell the land and distribute the proceeds as provided in the will. The Court of Civil Appeals concluded that an exercise of the option by Miss Hunnicutt was established by the evidence as a matter of law. It reversed the judgment of the trial court and remanded the cause for further proceedings. Moorman v. Austin National Bank, 381 S.W.2d 408. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Helen Mar Hunnicutt lived for many years in the home of Hicklin P. Hunnicutt and his wife, Mrs. Bertha M. Hunnicutt. She was the niece of Mrs. Hunnicutt. Mr. Hunnicutt regarded her as his adopted daughter and so referred to her in his will. The land in question is part of a 2,000-acre ranch formerly owned by Mrs. Hunnicutt as her separate property. She died in 1943 leaving a will which devised the ranch to her husband and Helen Mar Hunnicutt in equal shares. It was partitioned by them in 1945, the north one-half being set apart to Hicklin P. Hunnicutt and the south one-half to Helen Mar Hunni-cutt. Mr. Hunnicutt’s will was written pri- or to the division and refers to his one-half Interest in the land, but the parties recognize that the option provisions apply to the north one-half of the property set apart to him in the partition.

Hicklin P. Hunnicutt died on April 16, 1953. He left a holographic will dated January 5, 1944, and a holographic codicil thereto dated March 15, 1948. These instruments were admitted to probate as his last will and testament on May 26, 1953. In Items 3 and 4 of the original will, the testator gave his half brother, Thomas B. Clark, a lot in Stamford, certain personal property, and $5,000.00 cash, or so much thereof as might be realized upon the surrender of seven bonds, and left Helen Mar Hunnicutt his interest in the home and contents, all capital stock of The Austin National Bank owned by him at the time of his death, and a $1,000 H.O.L.C. bond. Provision for the disposition of Dimmit County land and the distribution of the proceeds was made in Item 5, in a section entitled “Proviso to Item 5,” and in the codicil, all of which are quoted in the opinion of the Court of Civil Appeals. Item 6 was introduced by a statement that “the foregoing 5 items of this written will dispose of all of my estate except three small pieces of property which are not herein appropriated.” The three properties were then described, and the executor was directed to convert- the same into cash, use the proceeds to pay debts and. expenses, and divide the remainder equally between Thomas B. Clark and Helen Mar Hunni-cutt.

According to the inventory and appraisement of Mr. Hunnicutt’s estate, he owned at the time of his death 200 shares of common stock of The Austin National Bank worth $18,000.00. His interest in the home was appraised at $10,000.00, and his interest in the Dimmit County land was valued at $25,000.00. Aside from these three items, the estate consisted of bonds, cash and personal property of the aggregate value of approximately $4,000.00. The H.O.L.C. bond mentioned in the will is not listed in the inventory.

Any contention that the option could be exercised by the personal representative of Helen Mar Hunnicutt after her death was abandoned by respondents on appeal. The issue thus narrows to whether the testamentary offer was accepted by Miss Hunni-cutt during her lifetime. She did not ever communicate with the Bank in writing about the matter, but the case was tried on the theory that an oral acceptance by her would have given rise to an enforceable bilateral contract performable by the administrator of her estate. Mr. B. C. Turner, Trust Officer of the Bank, discussed the option with Miss Hunnicutt on several occasions and testified fully regarding his conversations with her. It does not appear that she ever mentioned the subject to anyone else connected with the Bank, and the only evidence tending to show whether or not the option was exercised is the testimony of Mr. Turner and the surrounding circumstances.

The material portions of Mr. Turner’s testimony are quoted at length in the opinion of the Court of Civil Appeals and will not be repeated here. Respondents say that the facts are undisputed, and that whether the option was exercised is a question of law for the court. We do not agree. The testimony given by Mr. Turner does not establish with certainty all that was said in his conversations with Miss Hunni-cutt, and he was impeached by proof of a prior inconsistent statement bearing directly upon the basic issue in the case. The jury was thus free to accept or reject all or any part of his testimony, and in these circumstances the question of what was said and done between the parties is one of fact. See Keesey v. Old, 82 Tex. 22, 17 S.W. 928; Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333.

When the evidence is viewed, as it must be, in the light most favorable to the verdict of the jury, it appears that Miss Hunnicutt never told Mr. Turner that she had decided to purchase the land, that she would take the property, or that she exercised her option to do so. She did say to him that “she wanted to take the property” and that “she wished to exercise the option,” but “each time it was discussed she stated that she did not have the available cash at that time to exercise the option.” It was Mr. Turner’s definite impression that she desired and intended to exercise the option within the twelve-months period and pay the money. Respondents say that this shows as a matter of law that Miss Hunni-cutt expressed to Mr. Turner her existing intention to exercise the option and pay the money within the time allowed by the will.

It has been said that “any act signified to the optioner which brings to his mind the present intention of the optionee to exercise the option privilege is sufficient.” See James on Option Contracts § 823. This refers, of course, to the expression of an intention to exercise the option then and there. The jury was entitled to conclude from all the evidence that Mr. Turner understood that Miss Hunnicutt intended to exercise the option in the future, and an expression of that intention would not be sufficient to create a bilateral contract of purchase and sale. The question is whether she accepted the testamentary offer and thereby bound herself to take the land and to pay the $8,000.00 within one year after the will was probated. See 1A Corbin on Contracts, 1963 ed., § 264.

The exercise of an option like the acceptance of any other offer must be positive and unequivocal. See Restatement of the Law of Contracts § 58; 91 C.J.S. Vendor and Purchaser § 10. “A valid acceptance * * * must be unequivocally expressive of an intent to create thereby, without more, a contract.” Minar v. Skoog, 235 Minn. 262, 50 N.W.2d 300. See also Asbury v. Hugh L. Bates Lodge, 62 Ohio App. 430, 24 N.E.2d 638; Havens v. American Fire Ins. Co., 11 Ind.App. 315, 39 N.E. 40. Professor Williston observes that this requirement is often treated as identical with the requirement that an acceptance must not change, add to or qualify the terms of an offer. He then points out that:

“ * * * even though no change in the offer is suggested in the reply of the offeree, it nevertheless may not so clearly indicate assent to the offer as to create a contract. Thus a reply to an offer to lease premises in the following terms was held not to make a binding contract: —T have decided on taking No. 22 Belgrave Road, and have spoken to my private agent * * * who will arrange matters with you.’ The same is true of a telegram to a bidder for public work. ‘You are low bidder. Come on morning train;’ also of the following reply to an offer to sell coal, ‘Telegram received. You can consider the coal sold. Will be in Cleveland and arrange particulars next week.’ Likewise a reply to an offer to sell land, ‘Have twice attempted the tender of the first payment of $500 upon the agreement made between us on the 7th of December last. I will meet you, etc., when I shall be ready to make tender of the money and execute the proper agreements thereupon,’ is insufficient.” I Williston on Contracts, 3rd ed. 1957, § 72.

This would be an entirely different case if Miss Hunnicutt had stated to Mr. Turner without qualification that she wished to exercise the option or wanted to take the property. The words “wish” and “want” can be and frequently are used, however, to express hope or desire unaccompanied by any expectation or intention of gratifying the wish or want immediately. It may fairly be inferred that they were used in that sense by Miss Hunnicutt, because each time the matter was discussed she told Mr. Turner that she did not have the available cash at that time to exercise the option. Although payment of the money may not have been essential to the creation of a binding bilateral contract, her statements indicate that she did not intend to obligate herself at the time but expected to exercise the option when she felt the $8,000.00 was available.

It is true that Miss Hunnicutt was financially able to pay the $8,000.00. At the time of her conversations with Mr. Turner, she owned the home place, her one-half of the ranch, government bonds worth approximately $10,000.00, some 25 shares of capital stock of The Austin National Bank, and probably had about $8,500.00 on deposit with the Bank. She was also entitled to the 200 shares of bank stock bequeathed to her by Hicklin P. Hunnicutt, although this stock was not distributed by the executor during her lifetime. Miss Hunni-cutt’s net worth was thus in excess of $80,000.00, but it was her opinion that she did not have the available cash to exercise the option.

On the basis of the valuation of the ranch as shown by the evidence and assuming that the property could have been readily sold at that figure, it clearly would have been to Miss Hunnicutt’s economic advantage to exercise the option. There is no evidence, however, that anyone was interested in buying the land or that a purchaser able and willing to pay its full value could have been easily found. In any event we are not concerned here with an outright devise or a devise subject to a charge, and our view as to what Miss Hunnicut should have done is not material to the present inquiry. She was given an option to buy the property, and her estate is now entitled to take the same for the stipulated price only if the offer ripened into a contract of purchase and sale during her lifetime.

The surrounding circumstances tend to support rather than to destroy the finding of the jury. Miss Hunnicutt was never married, and most of her adult life was spent in scholarly pursuits. A member of the original staff of the Texas College of Arts and Industries at Kingsville, she was employed at the time of her death as a Spanish translator in the Archives at The University of Texas. Several witnesses described her as a shy, quiet, reserved person who was very careful with her money. She died unexpectedly on March 13, 1954, while visiting a friend in Blanco County.

Since Miss Hunnicutt was an intelligent, educated person, it is reasonable to assume that she was capable of making it clear to Mr. Turner if she wished to obligate herself to take the land. Although she had owned a half interest in the ranch for some ten years, she did not know where it was located and was not certain that she found it on the one occasion she attempted to do so. Her investments in bank accounts, stocks and bonds were relatively stable in value and required little supervision. A person of her background and temperament may well have been reluctant to use the funds represented thereby to purchase a distant ranch with which she was not familiar, and certainly would have been inclined to defer making a final decision while there was still ample time to consider the matter. There is no evidence that she ever discussed with Mr. Turner any arrangements for paying the $8,000.00 or made any preparations for taking over management of the property, and it does not appear that she definitely expected to have the money “available” within the period prescribed by the will. We hold that acceptance of the testamentary offer has not been established as a matter of law.

Respondents contend that the Bank has no power to sell the land even if the option was not exercised. They say that the stipulation concerning the death of Helen Mar Hunnicutt in the “Proviso Relative to Item 5” refers to her death during the testator’s lifetime. Since she did not die prior to the death of Hicklin P. Hunnicutt, respondents insist that the contingency giving rise to the power of sale never occurred and that the land passed as part of the residuary estate under the provisions of Item 6. In support of this contention they cite the cases involving a devise of the fee with provision for a gift over in the event of the death of the first taker. References to death of the first taker in that situation are usually construed to mean death prior to that of the testator.

As pointed out in St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425, 132 Am.St.Rep. 886, the reasons for that rule of construction are variously stated. One reason is that since death is a certain event, a reference to the death of the first taker must he construed to mean death during the lifetime of the testator if it is to be a contingent event as the testator probably intended. “But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator.” Britton v. Thornton, 112 U.S. 526, 5 S.Ct. 291, 28 L.Ed. 816.

Here the testator was dealing with an event which might or might not ever take place, i. e. the failure of Helen Mar Hunnicutt to exercise the option “by reason of her death or some Providential hindrance.” Item 6 of the will does not purport to be a general residuary clause, and a reading of the entire instrument discloses that the testator contemplated that the land would either be purchased by Miss Hunni-cutt or be sold by the Bank. We are satisfied that he intended for the Bank to sell the property and divide the proceeds as set out in the Proviso if Miss Hunnicutt was prevented from exercising the option by her death subsequent to his.

Respondents’ remaining points of error in the Court of Civil Appeals have been considered and are overruled. They had no point there invoking the jurisdiction of the intermediate court to determine whether the finding of the jury is contrary to the overwhelming weight and preponderance of the evidence. The judgment of the Court of Civil Appeals is accordingly reversed, and that of the trial court is affirmed.

      . The phrase “elected to exercise” was defined in the charge as meaning “any statement or statements made by Helen Mar Hunnicutt to Bronson O. Turner, if any, which communicated to him her then existing intention, if any she had, and her then definite decision, if any she had made, to purchase the land in question and to pay the $8,000.00 in cash within one year from the probate of the will of Hicklin P. Hunnicutt.”


author: PER CURIAM.

text:
    Robert A. JONES, Petitioner, v. John B. CHESTER et al., Respondents.
    No. A-10682.
    Supreme Court of Texas.
    June 9, 1965.
    William P. Fonville, Dallas, for petitioner.
    Shank, Irwin, Chester & Conant, Brun-didge, Fountain, Elliott & Churchill, Dallas, for respondents.
   PER CURIAM.

It being made known by joint motion of the parties that this cause has been fully settled and compromised and is now moot, it is accordingly ordered that this cause be dismissed without reference to the merits of the appeal.


author: NORVELL, Justice. STEAKLEY, Justice

text:
    Richard GUNN, Petitioner, v. Calvin J. CAVANAUGH et al., Respondents.
    No. A-10596.
    Supreme Court of Texas.
    June 9, 1965.
    Rehearing Denied July 7, 1965.

      Paul Petty, Ballinger, for petitioner.
    Yates & Yates, Abilene, John W. Norman, Winters, for respondents.
   NORVELL, Justice.

On May 25, 1964, the three children of Richard Gunn, the petitioner, were adopted by respondents, Mr. and Mrs. Calvin J. Cavanaugh. Barbara Gunn, the mother of the children, consented to this adoption. The petition for adoption filed by respondents alleged that Richard Gunn had deserted his children. Gunn was not cited but the judge of the county court of the county where the children resided (Runnels County) consented to the adoption. Article 46a, § 6. It is well settled in this state that when a court order purports to declare that the parental rights to a child have terminated and the parent is not cited, such parent is entitled thereafter to a plenary hearing to determine whether or not such parental rights have in fact been-lost through neglect, mistreatment, abandonment or other antisocial conduct. Richard Gunn was not a named party to the adoption proceedings in the District Court and did not participate therein. However, within the time prescribed by Article 2255, he filed his petition for writ of error to have the case reviewed by the Court of Civil Appeals. Writ of error affords a review of the same scope as an appeal. Ward v. Scarborough, 236 S.W. 441 (Tex.Comm.App.1922); Burnett, “Writ of Error Jurisdiction of the Court of Civil Appeals”, Appellate Procedure in Texas, § 5.1. It is available to those who were parties to the trial court suit but did not participate in the actual trial of the case. The Court of Civil Appeals held that Gunn had “an interest in this proceeding”, that he had a remedy, but that it was not by way of writ of error. 385 S.W.2d 451.

We agree with the Court of Civil Appeals. Gunn’s proper remedy is by way of an equitable proceeding in the nature of a trial court bill of review. There is no constitutional question of due process now before us. If, upon the hearing of the bill, constitutional issues should arise they will be there decided. Due process is determined by considerations more fundamental than mere forms of action or methods of securing a modification or abrogation of a judgment. Article 2255 places a six months time limit upon the writ of error. Such remedy would be clearly unavailable to the father who knew nothing of a decree terminating his parental rights until after such six-month period had expired. He would, however, have his right to a bill. Surely there is no great constitutional consideration which requires that the parent, who acts within the six-month’s period, should have two remedies, while the parent who, for some reason, does not act within such period, is restricted to one remedy only.

The general rule is that the remedy by appeal in the usual form, or by writ of error, is available only to parties of record, Articles 2249, 2249a, 2250, 2251, 2255, Rules 352 to 363. Rule 352 speaks of “the party taking an appeal or suing out a writ of error.” Rule 359 uses the phrase, “The party desiring to sue out a writ of error.” In Wood v. Yarbrough, 41 Tex. 540 (1874) the Court dismissed a writ of error as being without precedent or “foundation either on principle or authority for its support” when it appeared that Wood, at whose instance the writ was prosecuted, was not a party to or the representative of either of the parties to the suit. The Court said:

“It was decided by this court, as long ago as the case of Smith v. Gerlach, 2 Tex., 424, and has never been since questioned, ‘that this writ can only issue at the instance of a party to the suit, or of one whose privity of estate, title or interest appears from the record of the cause in the court below, or who may be the legal representative of such party.’ The rule thus announced is, indeed, an elementary principle which has come down to us from the earliest days of the common law. (Townsend v. Davis, 1 Kelly, 495 [Ga.]; [Overseers of Poor of Town of] Clayton v. Beedle, 1 Barb., 11 [N.Y.]; Watson v. Willard, 9 Penn. St., 89; Green v. Watkins, 6 Wheat., 260 [5 L.Ed. 256]; Tidd’s Prac., 1134, et seq.; 3 Bac.Abr., 330.)
“If the facts alleged in the petition for the writ of error, upon which Wood relies to show his right to prosecute the writ, and to be relieved by the reversal of the judgment, entitle him to relief, most certainly he must seek his relief in a court of original jurisdiction. None of these facts are shown by the record, and none of them belong in any manner to it. They may be denied by the opposite parties. If so, they unquestionably would be entitled to a trial upon them before a jury.” (Italics supplied)

In Allied Drug Products Company v. Seale, 49 S.W.2d 704 (Tex.Comm.App.1932) it was pointed out that in Ferris v. Streeper, 59 Tex. 312 (1883) this Court held that, “As a general rule derivable from the various provisions of the statute regulating appeals, only parties to the record may exercise that right.” This rule seems to have been consistently followed by the Texas courts. McLean v. Morrow, 156 S.W.2d 1002 (Tex.Civ.App.1941, ref. w. o. m.), 3 Tex.Jur.2d 471, § 199. Compare, Southern Surety Company v. Arter, 44 S.W.2d 913 (Tex.Comm.App.1932). Probate appeals are distinguishable from the usual species of civil cases as pointed out in Allied Drug Products Company v. Seale, supra. See also, Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.1956, wr. ref. n. r. e.) A person who is a party under the doctrine of virtual representation (Rule No. 42) may also appeal, Robertson v. Blackwell Zinc Company, 390 S.W.2d 472 (Tex.Sup.1965), but that is not the case here. No one purported to represent the interests of the petitioner, Richard Gunn in the District Court of Runnels County where the adoption proceedings took place. While he may have been interested in the outcome of the case, he was neither a named party, a party by virtual representation nor a party by other device or theory known to the law. He was simply omitted as a party thereto upon the allegation that he had no rights in and to the children involved because he had deserted them. If in fact he had deserted or abandoned his children, his parental rights had ended and the adoption was legal and effective. If, on the other hand, he had not forfeited his parental rights, the adoption was wholly ineffective as to him and could not affect such rights. Of course, considerations of due process require that a judicial determination of whether or not Gunn had forfeited his rights be made, after due notice to him and with no shifting of burden of proof to him requiring that he assume the burden of showing that he did not desert, abandon or otherwise forfeit his parental rights to his children.

The procedure to be followed in a case such as this is clearly outlined in the case of DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944). This was a suit between J. O. Brooks and wife, the natural parents of a small child, and Fred J. DeWitt and wife, who had adopted the child subsequent to dependency proceedings of which the natural parents had no notice. This Court recognized that a parent may relinquish his parental rights to a child by agreement or forfeit them by abandonment or some other species of neglect or maltreatment. It was pointed out that the Court of Civil Appeals, 178 S.W.2d 718, had held that the burden was upon the DeWitts to establish that Mr. and Mrs. Brooks had abandoned the child. There is nothing in this Court’s opinion which suggests a disagreement with the lower court’s holding as to the burden of proof. The disagreement with the Court of Civil Appeals which resulted in a reversal related to the intermediate court’s holding that the DeWitts had failed to sustain the burden of proof cast upon them. The Supreme Court’s opinion indicated that it was in agreement with the view taken by the Court of Civil Appeals as to the burden of proof. The holding of the Court of Civil Appeals on the point is abundantly clear.

That Court stated that while a judgment of a court of competent jurisdiction relating to parental rights could not be regarded as a nullity because one or more of the parents were not made parties thereto, nevertheless such decree was not binding upon non-appearing and non-cited parents. The Court said:

“To summarize, then, — this is a suit by natural parents to recover custody of their child from those having actual custody of said child. The plaintiffs (Brooks) made out a prima facie case for recovery by proving, (a) their relationship to the child, State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, and (b) that they had not delayed an unreasonable length of time in instituting the suit. The burden then rested upon the defendants (DeWitts) to prove that plaintiffs had been guilty of neglect or other conduct condemned by statute which operated to terminate plaintiffs’ rights of dominion and control over the child involved. This fact could have been established by a decree entered in accordance with the provisions of Articles 2329-2338, had plaintiffs been parties thereto or had proper notice thereof, but as it affirmatively appears that plaintiffs had no notice of said proceedings, it follows that the decree entered is not binding upon them, and the recitations contained therein are not competent as evidence upon the issue of whether or not plaintiffs have been guilty of acts or omissions which would terminate their right of custody to their child. The burden therefore lay upon defendants to establish the fact of neglect or anti-social conduct by evidence extrinsic to the decree”.

It thus appears that the remedy afforded to the parent who was not cited and did not appear in the trial court is to institute a suit in the nature of a bill of review to abrogate the judgment which purports to divest him of his parental rights in accordance with the opinions rendered in the Brooks-DeWitt case. Cf. Pettit v. Engelking, 260 S.W.2d 613 (Tex.Civ.App.1953, ref. n. r. e.). This proceeding is not a typical bill of review but one particularly suited to the needs of the situation. A child cannot be likened to a chattel that may be stored in a warehouse for preservation and safekeeping. He is one of the most fragile and easily damaged of all living creatures. His requirements must be met with dispatch if he is to survive or escape serious damage and his needs may not be postponed pending search for a missing parent. Yet, the rights of the natural parent are of high importance and due process properly requires that the burden of proof to show forfeiture of parental rights rests upon him who asserts the affirmative of the proposition and not upon the allegedly negligent parent.

The Court of Civil Appeals was correct in holding that Richard Gunn was not without remedy. He may proceed in the District Court. There he has a plenary remedy as distinguished from a restricted one. Matters affecting the parent and the child and the respective rights of each should be determined so far as is consistent with orderly procedure without unnecessary involvement in procedural quirks, complications and limitations. The concept of the petitioner, who was not a party to the trial court proceedings making himself a party to the suit in an appellate court is an open invitation to complication. By way of example the petition in this case contains an allegation that the petitioner has deserted his children and a finding to that effect is recited in the decree of the trial court. The petitioner, by making himself a party to the suit after it has passed through the trial court stage, will be in no position on appeal to controvert evidence, if any there be, which tends to support the allegation mentioned and the trial court’s finding based thereon. Wood v. Yarborough, 41 Tex. 540 (1874). The decision of the Court of Civil Appeals in dismissing petitioner’s writ of error was correct, not only upon the basis of precedent but also from the standpoint of- policy considerations which favor uncomplicated procedures in arriving at the solution of vexing legal problems.

The judgment of the Court of Civil Appeals is affirmed.

SMITH, STEAKLEY and POPE, JJ., dissenting.

STEAKLEY, Justice

(dissenting).

This is an adoption proceeding in which the parental rights in three children of a non-consenting, non-notified and non-participating natural father have been taken away. The question is whether, if he so elects, he may appeal by writ of error to set aside the order of the district court which was entered without notice to him. I would hold, contrary to the majority view, that he is entitled to appeal and is not limited to the remedy of a suit in the nature of a bill of review.

The majority seems overly concerned with protecting a parent from supposed consequences of the appeal remedy and by what the majority describes as “'unnecessary involvement in procedural quirks, complications and limitations.” The majority is complicating what is actually a simple situation. Under and as the result of the invocation of either remedy the adoption order is set aside and rendered for naught; and for the same reason, namely, the parent was not given notice to which he was entitled as a matter of constitutional due process. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

The interest of a father in a proceeding instituted by third parties to adopt his children and extinguish his parental rights cannot be gainsaid. This interest is apparent on the face of the record of an adoption proceeding from the instant it is filed. This Court long ago recognized that the remedy of appeal by writ of error is available to a party to the suit or to one whose privity of estate, title or interest appears from the record of the cause. Smith and Jones v. Gerlach, 2 Tex. 424 (1847). In the context of the problem before us, I would not restrict the concept of privity to matters of property rights and would recognize the controlling fact that the interest of the natural father appeared on the face of the record from the beginning. Heretofore this Court has been liberal in recognizing the right of appeal. Cf. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941), and Security Trust Company of Houston v. Roberts, 208 S.W. 892 (Tex.Com.App.1919). It is well settled that the averment and showing of an interest not apparent on the record will from that point entitle a party to invoke the appeal remedy. Cf. Thomas v. Jones, 10 Tex. 52 (1853); Cochrane v. Day, 27 Tex. 385 (1864); Ferris v. Streeper, 59 Tex. 312 (1883); State National Bank of Dallas v. City of Dallas, 28 Tex.Civ.App. 299, 68 S.W. 334 (1902, writ ref.); Waurika Oil Association v. Ellis, 254 S.W. 1032 (Tex.Civ.App.1923, no writ hist.). The apparency of the father’s interest distinguishes cases such as Southern Surety Co. v. Arter, 44 S.W.2d 913 (Tex.Com.App.1932); and Allied Drug Products Co. v. Seale, 49 S.W.2d 704 (Tex.Com.App.1932).

A recent persuasive precedent of this Court is found in the refusal of the application for writ of error in Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.1956, writ ref. n. r. e.). David Specia was a major beneficiary of a will, the probate of which was denied in a contest proceeding in which David did not participate. David sought to appeal by writ of error. Charles Specia, the successful contestant, moved to dismiss the appeal because David was not a party to the proceeding. The Court of Civil Appeals sustained its jurisdiction to hear David’s writ of error on the proposition that “David, as one of the main beneficiaries in the will under contest, was a party within the contemplation of Rule 359 though not personally named as a party. * * * His substantial interests are involved in the appeal.” This Court refused Charles’ application for writ of error and by so doing necessarily expressed agreement with the jurisdictional holding of the Court of Civil Appeals that David could appeal by writ of error from the judgment of the district court.

In my view, the considerations upon which the majority rests its decision are not of sufficient moment to curtail the remedies available to a natural parent when his children have been awarded to third parties by an order admittedly not binding upon him because entered in a proceeding in which he was denied his constitutional right to notice.

I would reverse the judgment of the Court of Civil Appeals and remand the cause to that Court for consideration of Petitioner’s appeal.

SMITH and POPE, JJ., join in this opinion.

      . All article references are to Vernon’s Tex.Civ.Stats.

      . Rule references are to the Texas Rules of Civil Procedure.

      . The Supreme Court of the United States in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) construes the action of the Court of Civil Appeals in the Armstrong case (371 S.W.2d 407) in affirming the judgment of a trial court as holding that the burden of proof to show no forfeiture of parental rights rests upon the natural father. Regardless of how the Court of Civil Appeal’s opinion and judgment in Armstrong be construed, the thesis that the burden of proof shifts to the natural parent cannot be supported by DeWitt v. Brooks.

      . Rule 359, Texas Rules of Civil Procedure, reads as follows: “The party-desiring to sue out a writ of error shall file with the clerk of the court in which the judgment was rendered a written petition signed by him or by his attorney, and addressed to such clerk.”


author: MORRISON, Judge.

text:
    Ex parte Clarence Harley LEE.
    No. 38530.
    Court of Criminal Appeals of Texas.
    June 23, 1965.

      Clarence Henry Lee, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Texas Department of Corrections, made application to this Court for writ of habeas corpus alleging that he was not represented by counsel at the time of his trial for burglary in 1953, when he was found guilty and sentenced to life imprisonment as an habitual offender. He further alleges that he was without funds to hire counsel and that he requested that counsel be appointed to represent him, but that such request was by the court refused.

In 1957, petitioner made application to this Court for writ of habeas corpus alleging that he was indigent when he was tried in the District Court of Hunt County and that he was not represented by counsel at such trial. We denied the application relying on Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Since the denial of petitioner’s prior writ, the Supreme Court of the United States has overruled Betts v. Brady, supra, in the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

The Honorable Joe H. Chapman, Judge of the 8th Judicial District Court of Hunt County has certified to this Court that petitioner was without counsel at the time of his trial.

Under the holdings of the Supreme Court in Gideon v. Wainwright, supra, and the decisions of this Court in Ex Parte Hope, Tex.Cr.App., 374 S.W.2d 441, Ex Parte Parsons, Tex.Cr.App., 374 S.W.2d 442, Ex Parte Bushnell, Tex.Cr.App., 375 S.W.2d 720, and Ex Parte Hamilton, Tex.Cr.App., 376 S.W.2d 575, petitioner’s conviction is void.

Accordingly, it is ordered that petitioner be released from his present custody and that he be delivered to the custody of the Sheriff of Hunt County to stand trial on the original indictment in said cause No. 8538 in said Court.


text:
    Billy TEAGUE, Appellant, v. The STATE of Texas, Appellee.
    No. 38095.
    Court of Criminal Appeals of Texas.
    June 16, 1965.

      Theo Pat Henley, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway and Richard M. Casillas, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

San Antonio Vice Squad Detectives Hancock and Sanders testified that they were assigned to “stake out” a certain house outside the city limits on the night in question and that by using binoculars they were able to observe appellant and another person make at least two trips from the house in question to a Cadillac automobile which had been backed into a well lighted carport. On one of the trips from the house to the opened rear deck or turtle of the Cadillac, the officers were able to observe appellant carry and place in the turtle a sawed off shot gun. Soon thereafter, appellant and a female emerged from the house and got in the Cadillac and drove away, and they followed at a discreet distance. Some three miles later appellant turned the Cadillac around and parked it on the left shoulder of the highway; the officers drove up and observed steam coming from the motor. They stated that they approached the Cadillac and inquired about appellant’s trouble, at which time another policeman also approached the Cadillac and asked appellant’s permission to look in the turtle and that after securing appellant’s consent and by means of the keys voluntarily furnished him by appellant, he opened the turtle. In the turtle they found the sawed off shot gun, a loaded pistol and a Prince Albert tobacco can partially concealed under the floor mat in the turtle and a self rolled cigarette nearby. Since they were outside the city limits, they called the Bexar County Sheriff’s Department and Deputy Kates arrived and took the above named objects in his possession. Lt. Car-reon, also of the Sheriff’s Department, testified that when he arrived at the scene, Deputy Kates turned over to him the Prince Albert can which contained a quantity of dried weed and two cigarettes which appeared to be marihuana, together with the weapons. The chain of custody was shown, and Chemist Maupin testified that the “dried weed” and two cigarettes were marihuana.

Appellant, testifying in his own behalf, admitted owning the Cadillac in question and the sawed off shot gun, but denied any knowledge of the pistol or the tobacco can or the cigarettes and denied that he had given the officers consent to search the Cadillac. He also offered testimony to the effect that the turtle of the Cadillac could be opened without using a key.

The court in his charge submitted the contested issue of consent to search to the jury, and they resolved the issue adversely to appellant as did the jury in the recent case of Lyons v. State, 169 Tex.Cr.R. 39, 331 S.W.2d 329.

It matters not that the city officers were outside the corporate limits of the city. Day v. State, 157 Tex.Cr.R. 614, 252 S.W.2d 180.

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


text:
    William M. MANCIL, Appellant, v. The STATE of Texas, Appellee.
    No. 37838.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Joe H. Tonahill, Joe Bob Golden, Jasper, for appellant.
    Floyd W. Addington, Dist. Atty., Jasper, Bill A. Martin, County Atty., Newton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 30 years.

Our prior opinion affirming the conviction is withdrawn.

The State’s eye witness Hall on direct examination in describing the shooting testified as follows: “The oldest little boy got ahold of the gun and he (appellant) was wrestling to get the gun away from him. That’s the truth about it. And somehow or other when he taken the gun away from him, from the boy, well, he’s (appellant) one legged, he staggered and must have hung it against the back of the seat, the hammer (of the pistol).” At this juncture, the jury was retired and thereafter the State did not question Hall again about how the shooting had occurred in the presence of the jury. On cross examination in the absence of the jury, Hall stated repeatedly that the shooting was accidental and described fully his reasons for so believing.

The State thereafter did not disprove the accidental nature of the shooting.

In Stewart v. State, 126 Tex.Cr.R. 194, 70 S.W.2d 714, the State’s witness on direct examination testified that he had been shot by the accused accidentally; on cross examination he described fully facts which would demonstrate that it was in fact accidental. This Court, in reversing the conviction because of the insufficiency of the evidence said, “The testimony of the injured party for whom the state vouched was directly to the point that he received his injuries from the accidental discharge of the gun.” Stewart is here controlling and calls for a reversal of this conviction.

The disposition of this cause renders it unnecessary for this Court to decide whether a number of inconsistent statements made by appellant and witness Hall, all of which were exculpatory, were sufficient to support a conviction.

Because the State’s witness testified that the shooting was accidental and the State did not thereafter disprove such fact, the evidence is insufficient to sustain the conviction and calls for a reversal of this conviction.

Appellant’s motion for rehearing is granted; the judgment of affirmance is set aside and the cause is reversed and remanded.


text:
    Ex parte Curtis Gale DOBY.
    No. 38229.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Orville A. Harlan, John J. Browne, Houston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an original application for writ of habeas corpus. Our opinions affirming petitioner’s conviction appear in Doby v. State, 383 S.W.2d 418.

As we pointed out on motion for rehearing, the search warrant was exhibited to petitioner’s counsel, and after examination, counsel stated that he had no objection.

We held this application on our docket to await the action of the Supreme Court of the United States in Linkletter v. Walker, 85 S.Ct. 1731 (June 7, 1965) and Angelet v. Fay, 85 S.Ct. 1750 (June 7, 1965).

We have now concluded that even though petitioner was in the appellate process at the time the Supreme Court handed down Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, he may not avail himself in this collateral attack of the rule therein announced because of his failure to object to the introduction of the fruits of the search at the time of trial.

The writ of habeas corpus is denied.


author: WOODLEY, Judge.

text:
    James Charles ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38344.
    Court of Criminal Appeals of Texas.
    June 16, 1965.

      Paul W. Wisdom, Jr., Dallas (Court Appointed Attorney), for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Jim Zimmermann and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, life.

The indictment alleged that appellant voluntarily and with malice aforethought killed Tom Tolivar by cutting and stabbing him with a knife.

Police officers patrolling in the vicinity about 9 P.M. observed a colored man lying in the street in the 3700 block of Wendelkin Street in Dallas and a ’56 Buick with the door open.

“There was a reddish-brown substance to the right of the vehicle and upon the grass and on the sidewalk and up in the yard here and to the rear of the car on the pavement all the way around to on the east side of the car and there was a big pool of blood, correction, reddish-brown substance, where the body lay.
“Q. Was there any of the reddish-brown substance on the body?
“A. Yes, sir.”

The state’s evidence, consisting of the testimony of appellant’s three companions; his girl friend Pruidessi (or Pure Dessie) Greer who had borne a child by him, her mother Ozell Greer and Ozell’s boy friend James Mabry, reveals that on April 4, 1964, the four were together at Paulette’s Cafe. They went from there to the Paradise Inn operated by appellant’s brother, arriving sometime after dark. They got ready to leave and appellant arranged with the deceased to drive them for a fee.

The four got in the ’56 Buick automobile with the deceased and after traveling for a distance appellant instructed the deceased to turn and let him out. He did so and the four got out at the intersection of Colonial and Wendelkin.

There was some conversation in regard to payment for the ride. Appellant said he would take care of it.

As the car started to pull away appellant stabbed the deceased and got him out of the car. The deceased ran for a short distance and appellant continued his assault. After the deceased fell in the street appellant kicked him in the head.

All of the four that had been passengers in the deceased’s car then fled.

There was a trail of blood around the ’56 Buick and to where the body of the deceased was found.

Pathologist B. W. Henderson, who performed the autopsy, testified that there were seven stab wounds on the body of the deceased two of which could have been fatal, the wound which, in his opinion, caused death being “a stab wound of the chest and the penetration of the base of the aorta resulting in a strangulation of blood in the pericardial sac, the sac that surrounds the heart which is a lethal type of wound,” a wound which would cause death within a matter of minutes.

Appellant’s confession made to City Detective H. M. Moore on April 9, 1964 was introduced in evidence which reads, in part: “Last Saturday night, April 4, I was with my girl friend, Pure Dessie Greer, and her mama, Ozella Greer, and Ozella’s boy friend, James Mabry. We were at my brother’s place, The Paradise Inn. We got ready to leave, and a friend of mine got a man to take us home. I was to pay this man a dollar to take us. We went out and got in the man’s car, a black and white 56 or 57 Buick. This man was driving up Colonial Street. I told him to ‘turn here, man, and let me out’. He made a right turn on Metropolitan Street, and stopped at Wendelkin. We all got out of the car, and the man asked for the dollar, and said something. I told him I would not give him his dollar, if he was going to be so smart. He said he would get his dollar, and I started' around on the driver’s side. He pulled off and ran over my feet. I caught hold to the window and opened the door, and reached in and stabbed the man in the shoulder. My girl friend’s mama was trying to pull me off of the man. She was pulling on me, and I was pulling on the man. We drug him out of the car. The man got loose, and ran round to the driver’s side of the car. I caught him and stabbed him again. He ran back on the other side of the car. I caught him again and stabbed at him but I missed him. He caught hold of my arm. We fought over the knife. The people with me came up and grabbed me. The man got loose and ran up in front of the car and fell in the street. Pure Dessie and I ran down the street and asked a boy I know if he would take us to West Dallas. He said, ‘Yes’, but him and a woman was fussing. We ran on down the street, and Pure Dessie got a boy she knew to take us to my mama’s house.”

Prior to the confession being offered in evidence, upon motion of appellant alleging that it was not voluntarily made, hearing was had in the jury’s absence.

At such hearing appellant testified rnat Officer Moore told him that if he wanted to see Puridessi go home to sign the statement and that the reason he signed the statement was so that he would let Purides-si go home.

Officer Moore, being interrogated by the court, testified:

“Q. Now, Detective, the Defendant said when he took the stand here, he implied a threat by your saying this to him: ‘Did I want to see her go home,’ meaning Puridessi. Did you imply, did you threaten him in that manner saying or implying that if he didn’t sign the statement, that she couldn’t go home? ⅜ * ⅜ Did you tell him, the Defendant, this statement in talking to him to get him or induce him to sign this statement saying: ‘If you want to see her go home,’ meaning Puridessi, or whatever her name was.
“THE WITNESS: No sir, I didn’t.
“Q. Did you make that statement?
“A. No, sir, I did not.
“Q. You did not make that statement?
“A. I did not.
“Q. You didn’t say to him ‘Did I want to see her go home?’
“A. No, sir.”

Other testimony of Officer Moore at the hearing before the court showed that the warning required by statute was given and that the confession was voluntarily made, reduced to writing and signed after such warning.

At the conclusion of such hearing, the trial judge held that the statement was voluntarily and freely given in conformity with the statutes concerning confessions and that there were no threats or promises made to induce the defendant to make a confession or give or sign the same.

We overrule appellant’s contention that the evidence before the trial judge showed that the confession was not voluntarily made or that it was inadmissible as a matter of law, or that appellant was deprived of an adequate evidentiary hearing productive of reliable results concerning the voluntariness of the confession required in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

Appellant did not testify before the jury and no evidence was offered raising an issue before the jury that the confession was not voluntarily made, as Officer Moore testified, and no such issue was submitted to the jury.

We find no error in regard to the admission of the confession.

The remaining claim of error relates to the following.

The indictment having been read and the defendant having answered that James Charles Anderson was his name, the court asked:

“James Charles Anderson, what is your plea?
“MR. WISDOM: Not guilty, Your Honor.
“THE COURT: I have to hear it from him.
“THE DEFENDANT: Not guilty.”

It is contended that the court’s statement, “I have to hear it from him,” necessarily conveyed to the jury the impression that the plea of not guilty was a surprise to the court.

It is not clear whether the foregoing occurred upon an arraignment of the defendant (Art. 499, 450 C.C.P.) or upon his plea (Art. 520 C.C.P.)

Be this as it may, the claimed error was not preserved by objection or exception.

Under the provisions of Art. 847 Vernon’s Ann.C.C.P., unless it appear to the contrary by bill of exception, this Co’ürt must presume that the jury was properly impaneled and sworn; that the defendant was arraigned and that he pleaded to the indictment.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Ex parte Lonzo USENER.
    No. 38388.
    Court of Criminal Appeals of Texas.
    June 23, 1965.

      Petsch & Petsch, by Alfred Petsch, Fredericksburg, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order of the District Court of Gillespie County refusing to discharge appellant after hearing and remanding him to the custody of the Sheriff of Gillespie County, Texas.

The application for writ of habeas corpus alleged that appellant had been convicted under a complaint, the charging part thereof reading as follows: “Made an improper approach for a left turn in that he did not use that portion of the right half of the road nearest to the center line thereof to make the said approach * * * ”, had been fined in the sum of $75.00, and that appellant was being held under a capias pro fine.

The sole issue, which has not heretofore been presented for the determination of this Court, is the constitutionality and validity of Section 65(b) of Article 6701d, Vernon’s Ann.Civ.St., which states:

“Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.”

Appellant urges in his brief that this Court also determine the Constitutional validity of Section 65(d) of Article 6701d, V.A.C.S. The record before us does not reflect that Subsection (d) was involved in the offense charged. We have held that it is incumbent upon an accused to show that he was convicted or charged under that portion of the statute the constitutionality of which he questions. We do not write declaratory judgments. Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952.

We now discuss appellant’s contention that Subsection (b) is so general and indefinite as to fail to define the offense with which he is charged with the degree of definiteness required by the Constitution and Laws of the -State of Texas and the United States.

The statute sets a standard sufficiently definite so that an ordinary and interested person might ascertain therefrom what offense he might commit by failing to comply therewith relative to the proper approach for a left turn. Ex Parte Trafton, 160 Tex.Cr.R. 407, 271 S.W.2d 814.

We overrule the contention that the statute in question is invalid for indefiniteness.

The judgment remanding appellant to the custody of the Sheriff of Gillespie County is affirmed.


text:
    Ex parte Juan Ruiz MORENO.
    No. 37493.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    John J. Browne, Houston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner’s conviction was affirmed by this Court in Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455. Thereafter, this original application for writ of habeas corpus was filed by petitioner, an inmate of the Department of Corrections, in which he alleges that his conviction was void by virtue of the invalidity of the search warrant.

We held this case on our docket to await the action of the Supreme Court of the United States in Linkletter v. Walker, 85 S.Ct. 1731 (June 7, 1965) and Angelet v. Fay, 85 S.Ct. 1750 (June 7, 1965). It is apparent from the reasoning in both opinions that the validity of a search warrant may not be questioned where the decision in the state court conviction became final prior to the decision of the Supreme Court of the United States in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (June 15, 1964).

The writ of habeas corpus is denied.