text:
    BEVERLY COAL CO., Inc., Appellant, v. Willie T. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Rehearing Denied Dec. 17, 1965.
    Baird & Hays, Pikeville, for appellant.
    Friend & Mullins, Pikeville, Stuart E. Alexander, Louisville, for appellees.
   PALMORE, Judge.

The Workmen’s Compensation Board found Willie Smith totally and permanently disabled from a bad back which two physicians say, on the assumption he did not have previous back trouble, probably was caused by an accident in the appellant’s coal mine. This appeal follows a judgment of the circuit court affirming the award.

Testifying for the defense, Dr. F. J. Burian, of Williamson, West Virginia, said Smith came to him for examination and treatment on January 22, 1963. Dr. Burian caused X-rays to be made. They did not show any bony injury or involvement, so he diagnosed Smith’s ailment as lumbo-sacral strain. The knot in the case is this: On cross-examination Smith had admitted Dr. Burian was his “family doctor” but denied having been treated by him at any time before the accident, which is alleged to have occurred on November 6,1962. Dr. Burian, however, says that he did see Smith on August 6, 8 and 9 of 1960, at which time Smith complained of back pain and Dr. Burian “thought it was kindly muscular spasm.” It was his opinion that the complaints in August 1960 and January 1963 “were just probably on the same category” and that Smith was no more disabled in 1963 than in 1960.

After Dr. Burian had testified, the Board sustained appellant’s motion that the Subsequent Claim Fund (now the Special Fund) be made a party defendant and, pursuant to KRS 342.121, appointed Dr. T. Rothrock Miller, of Lexington, to make physical and X-ray examinations of Smith and report his findings. Dr. Miller’s report recites among other things that on specific questioning Smith “denied any type of low back difficulty prior to this accident” and concludes as follows:

“I felt it was most likely that this man had a protruded lumbar disc and I feel that this would prevent his doing any type of physical labor. Inasmuch as he denied any previous injury of any significance and there was no significant evidence of any pre-existing diseased condition I must conclude that no sig-nificent disability existed prior to November 6, 1962, and that his entire disability at the present is on the basis of the accident which he describes.”

Appellant was then permitted to take Dr. Miller’s deposition, in which he reiterated his findings but made it clear that if Smith had previously suffered any significant low back disability his conclusion as to the accident’s having been the sole cause of the present condition might very well be different. In view of Dr. Burian’s testimony appellant moved to strike Dr. Miller’s report and deposition on the ground that Smith had withheld information that was necessary to a competent evaluation. The motion was overruled, the Special Fund dismissed, and compensation awarded on the basis of Dr. Miller’s findings.

Appellant’s position is that the case should be remanded to the Board for further consideration in which Dr. Miller’s re. port would be eliminated or. else he would be required to re-evaluate Smith’s condition and its causes in the light of Dr. Burian’s testimony, which he did not have before him in the first instance.

We do not suggest that Dr. Burian’s testimony was not true and correct. Nevertheless, it was in direct conflict with what Smith said, and it is unnecessary to cite authority for the proposition that it is the prerogative of the board alone to resolve such conflicts. Dr. Burian was of the opinion that Smith was in the same shape in 1963 as in 1960. From the other evidence there is little doubt that in 1963 he was substantially disabled. Dr. Miller says that if he was performing his usual and customary work up until the time of the accident “I must assume that he was not disabled.” Thus we have evidence of non-disability before and disability after the accident, as against Dr. Burian’s opinion to the effect that the condition before and after was the same. Appellant’s argument would require that Dr. Burian’s testimony be given a conclusive effect over substantial evidence to the contrary.

It is our conclusion that Dr. Burian’s testimony was not sufficient to require as a matter of law a finding that prior to the accident Smith either was “disabled” within the purview of KRS 342.120(1) (a) or had “a dormant non-disabling disease condition” within the scope of KRS 342.120(1) (b).

The judgment is affirmed.


source: Caselaw Access Project

author: CULLEN, Commissioner. MONTGOMERY, Judge

license: Public Domain

text:
    HARLAN COLLIERIES COMPANY, Appellant, v. Arthur G. SMITH and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Dec. 17, 1965.
    William A. Rice, Harlan, for appellant.
    G. E. Reams, Bert O. Howard, Harlan, for appellees.
   CULLEN, Commissioner.

Harlan Collieries Company, former employer of Arthur G. Smith, appeals from a judgment of the Circuit Court which affirmed an order of the Workmen’s Compensation Board awarding Smith compensation for total permanent disability from silicosis.

The appellant concedes that there was sufficient evidence that Smith has silicosis but maintains that the evidence does not show Smith to be disabled within the meaning of the workmen’s compensation law as interpreted by this Court.

Smith, age 61, had worked in the mines for 38 years. At the time he sought compensation he was not employed, having never returned to work after a cessation of employment resulting from a labor dispute. Dr. Cornish, who was appointed by the Workmen’s Compensation Board to examine Smith after the testimony of Smith’s doctors and the company’s doctors had proved to be in conflict on the question of whether Smith actually had silicosis, filed a report giving the opinion that Smith was totally disabled from silicosis. Subsequently, upon his deposition’s being taken, Dr. Cornish admitted that his examination did not disclose any present impairment of body functions such as would make Smith physically incapable of working, but the doctor stated that the examination indicated the existence of Category III silicosis (an advanced stage); that in his opinion “it would be probably suicidal for him to return to work in the mines,” and that he agreed with Smith’s statement that he was unable to work.

A reasonable interpretation of the testimony of Dr. Cornish is that Smith’s silicotic condition had reached such a stage that further exposure by work in the mines would precipitate the progress of the disease to an early fatal end.

The appellant argues that in the line of cases beginning with Mary Helen Coal Corporation v. Chitwood, Ky., 351 S. W.2d 167, the rule has been solidified that the mere having of the disease of silicosis is not enough to entitle the worker to compensation — there must also be an impairment of his capacity to perform his work. Under this rule, says the appellant, Smith does not qualify for compensation because all of the doctors except Dr. Cornish agree that he has the present physical capacity to perform his usual work, and Dr. Cornish does not point out any specific disabling condition.

Recognizing the rule to be as stated by the appellant, nevertheless we feel that the existence of a disease which, according to competent medical opinion, will be rapidly precipitated to death-dealing proportions by continuance of work may be classed as an impairment of capacity to perform work within the meaning of the rule, particularly when the claimant himself testified that he is unable to work. It may be true, as said in Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176, that the mere fact that the worker may suffer some aches and pains while working does not make him disabled, but surely it would strain reason to hold that a man whose work literally would “kill” him has no disability to work.

It is our opinion that the evidence was sufficient to sustain the finding of the Workmen’s Compensation Board that Smith is disabled.

The appellant maintains that the Workmen’s Compensation Board abused its discretion in appointing Dr. Cornish as a disinterested physician, and in basing its award solely on his testimony. The argument is that although Smith’s doctors testified that he had early-stage silicosis, they both said he did not have any present physical disability; therefore there was no conflict of proof on the essential issue of disability, such as would justify the appointment of a disinterested physician; on the contrary, there was a complete absence of proof of disability. We think a sufficient answer to this argument is found in the fact that Smith, himself, testified that he could not perform any work because of difficulty in breathing. In our opinion this testimony was enough to warrant further exploration by the board of the question of disability, through appointment of a disinterested physician. Cf. Cutshin Coal Company v. Begley, Ky., 385 S.W.2d 59.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I cannot concur in the majority opinion which admittedly flies in the face of a long line of cases beginning with Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167. As recently as June 25, 1965, in Davis v. Harlan Everglow Coal Company, Ky., 392 S.W.2d 62, this Court approved the holding in Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176, wherein it was held that an employee is not disabled within the meaning of KRS 342.316(2) “so long as a man is able to carry on his duties though he may suffer while doing it.” To the same effect see Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504; Brock v. International Harvester Company, Ky., 374 S.W.2d 507; Alva Coal Corporation v. Trosper, Ky., 375 S.W.2d 406; and Lovell v. Osborne Mining Corporation, Ky., 395 S.W.2d 596 (decided June 11, 1965).

The majority opinion says that the claimant ceased working because of a labor dispute. It does not say how long after he ceased working before he filed his claim. There is an abundance of medical testimony to the effect that the claimant could return to work and perform his duties. The evidence of disability is based largely on the lay testimony of the claimant. The record falls far short of establishing “disability” as defined in the Chitwood and Bethlehem line of cases. This appears to be another instance of a hard case making bad law.

The majority opinion adds further confusion to a bad situation that cries out for remedial legislative action. The cases referred to are left in limbo. What is their status now?

For these reasons I respectfully dissent.


author: STEWART, Judge.

text:
    Donald BIGGS and Robert Garland, Appellants, v. Ben MILLER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Dec. 17, 1965.

      Thomas B. Givhan, Shepherdsville, for appellants.
    T. C. Carroll, Shepherdsville, for appellee.
   STEWART, Judge.

This is an appeal from a judgment on a directed verdict entered by the Bullitt Circuit Court in favor of Ben Miller, defendant-appellee herein.

Each plaintiff in a joint complaint sought to recover from appellee $3000 as damages for injuries claimed to have been received. The car owner, named hereinafter, sought in addition $1250 as damages allegedly sustained by his automobile.

On the morning of July 10, 1963, plaintiff, Robert Garland, was driving his Oldsmobile automobile in a northwardly direction on Highway 61 in Bullitt County. Garland was accompanied by plaintiff, Donald Riggs, who was riding on his right in the front seat. Both plaintiffs are appellants herein. The Bernheim Road (herein referred to as “the Road”) meets Highway 61 at a “T” intersection, which is a stop intersection for vehicles turning either north or south from the Road. It was a clear day, both of these highways were dry, and at or near the intersection one had an unobstructed view southwardly for about a quarter of a mile.

Garland testified he was traveling fifty or fifty-five miles an hour. As he was passing the intersection of Highway 61 with the Road, a truck he later learned was operated by Ben Miller came off the Road without stopping and struck his car on the right side in front of the back wheels. He said the rear end of the Miller truck was still on the Road when the truck and car collided; and that he did not observe the truck until it was “right on” him.

Riggs testified that, as Garland drew near the intersection, he could see the Miller truck approaching the intersection on the Road. Then he started to turn on the car radio and, while looking down at it, heard the car’s horn blow and its tires scream. He glanced up just before the vehicles met. He stated that Garland was “trying to move over to keep the truck from hitting us and the truck hadn’t turned all the way out then.”

John J. Stewart, a witness for appellants, was going south on Highway 61 on the occasion of the accident. He testified he noticed the truck coming into the intersection, as he “was paying particular attention to it.” He said it appeared to him, if the truck did not stop, he might collide with it if it did not turn in such a manner that he could avoid it. Then it turned toward him, clearing his side of the highway, and he was able to pass it with safety. Almost at the same moment he saw the Garland car coming from the opposite direction on Highway 61. He said: “I just had this thought, ‘There’s going to be a wreck.’” He was unable to see the Garland car and the truck make contact, which happened an instant later.

Stewart also made this pertinent statement : “The only thing I can state is when I saw the truck turning this (Stewart’s) way, I looked up and saw the car and of course, I would say in my opinion the car wasn’t speeding. * * * it was almost there at the intersection and I never paid too much attention to it other than knowing * * * there would probably be an accident.”

Donald J. Carter, who was also a witness for appellants, was following the Stewart car in a southerly direction on Highway 61. He could not get a view of the Garland car, although he later knew it was then at the intersection. He stated that “this car skidded into the truck right in front of me.” He was asked if the truck had completed its turn out of the intersection at the time the collision occurred. He replied: “As well as I recollect, he was already around the corner. He was right at the intersection and whether he was all the way around it or not I’m not sure. It happened so fast, as well as I recollect, I think he was almost completely in the turn.”

Miller testified that as he approached this intersection on the Road from the east he slowed down to “something like three or four or maybe five miles an hour.” He stated further that he “looked toward Lebanon Junction (which is south on Highway 61) and did not see any cars coming”; he then “looked toward Louisville (which is north on Highway 61) and saw two coming.” Miller also stated that when he reached the intersection he “did not come to a perfect stop” but instead “rolled out on the road” in order to turn north toward Louisville. According to his testimony, he had proceeded on Highway 61 a distance between 80 and 85 feet when he was struck in the rear by Garland’s car. He said: “I heard a racket and I was just coasting along, fixing to shift gears, and I slapped the brakes and that is the first I seen the machine that hit me.”

Richard McHugh, a trooper with the Kentucky State Police, investigated the accident, and, called as a witness by appellants, testified that debris from the car was cast upon Highway 61 just north of the intersection. This debris was in the middle of the highway, “a little north of the impact,” and consisted of glass, dirt “and some chrome and parts of the car.” Based upon the location of the debris, he estimated the car and the truck ran together about 20 to 25 feet from the intersection. He also stated he measured the skid marks and they ran back 231 feet from the point where the vehicles collided. (Other witnesses of ap-pellee testified the skid marks of Garland’s automobile were between 250 and 260 feet in length.)

The trooper was also permitted to file as exhibits seven photographs that were taken by him, shortly after the accident, before the car and the truck had been moved. In viewing these photographs one gets the impression that the car’s right side sideswiped the left rear end and fender of the truck. One also can see the intersection sign in two of the photographs, and this sign appears to be located only a very short distance from the positions of the car and truck after the accident.

At the conclusion of all the evidence both appellants and appellee moved the court to direct the jury to render a verdict in their favor. The trial judge sustained appel-lee’s motion, holding that Garland’s negligence was the sole cause of the accident. The reasoning of the trial judge was that, because Garland skidded his car at least 231 feet before it made contact with the truck, this circumstance conclusively indicated he was either not keeping a lookout or was traveling at an excessive rate of speed.

Garland gave no- explanation for the skidding except to state that he applied his brakes after he saw the truck was “right on” him. Why he skidded 231 or more feet under the circumstances is a matter about which one must conjecture. Certainly, apart from other causative factors, we cannot hold as a matter of law that a vehicle which skids 231 feet must be presumed to have been driven negligently. Cf. Clark v. Rucker, Ky., 377 S.W.2d 65.

The theory that Garland was not maintaining a proper lookout is no doubt predicated upon Miller’s testimony that he had driven his truck off the Road and had traveled from 80 to 85 feet on Highway 61 when his vehicle was hit in the rear by Garland’s car. It is doubtful that even this distance of travel, under the facts presented, could be considered a proper yielding by Miller of the right of way to Garland. It is indeed true that a motorist should watch the road with alertness, but no duty is placed upon him to anticipate that another motorist might disregard a stop sign and run into him.

In our opinion the evidence in this case does not establish speeding upon the part of Garland. The latter’s statement that he was operating his car at a speed of between 50 and 55 miles per hour stands uncontradicted. This rate of travel was within the lawful limit allowed on Highway 61 at the time and place of the mishap. See KRS 189.390(1) (a). Besides there is the undisputed testimony of John J. Stewart, an impartial witness, that in his opinion Garland was not speeding.

It appears to us that appellee, without stopping, moved his truck out onto Highway 61 from the Road at a time when Garland’s car was “approaching so closely as to constitute an immediate hazard.” Thus he failed to observe a duty placed upon him by KRS 189.330(4). Nor was it sufficient that he should have stopped on this occasion; he should also have yielded the right of way to Garland by not proceeding into the intersection until he was able to do so with safety.

Garland could reasonably assume, under the circumstances, that appellee would comply with the applicable law, KRS 189.330(5), and stop and remain stationary until he was reasonably certain that Highway 61 was clear of traffic; and Garland was free to act upon that assumption in determining his own manner of using the highway. See Vaughn v. Jones, Ky., 257 S.W.2d 583, 584.

We find no evidence in the record that Garland was negligent. On the other hand, we must hold appellee solely to blame for the accident out of which this litigation grew. Therefore, upon the return of this case to circuit court, a jury shall determine the amount of damages to which each appellant is entitled, as the evidence introduced may show.

Wherefore, the judgment is reversed for further proceedings consistent with this opinion.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. Robert MATTHEWS, Attorney General, Appellant, v. Robert COATNEY and Vernon Craig, Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1965.
    Rehearing Denied Dec. 17, 1965.

      Ben B. Fowler and Dailey & Fowler, Frankfort, for appellant.
    John C. Anggelis, Lexington, for appel-lees,
   HILL, Judge.

Appellant, plaintiff below, filed this action seeking the ouster of appellees, members of the Nicholas County Board of Education, for violation of KRS 160.180. The lower court refused the relief sought and dismissed the action. This appeal followed.

We first discuss the situation as it relates to Vernon Craig. He entered into a contract with the Nicholas County Board of Education to transport students by bus during the 1962-63 school term for $231 per month. During September 1962 he became a candidate for election to the Board of Education of Nicholas County and was successful. He was sworn and qualified for the office January 7, 1963. Craig continued to drive his bus and perform the contract until November 30, 1962. He wrote a letter to the superintendent on November 29, 1962, advising that he was “ceasing the performance” effective the following day. He also testified that he requested three members of the board to release him.

Now, the case with regard to Robert Coatney. On May 3, 1963, the Board of Education of Nicholas County and the Car-lisle Independent Board of Education by the concurrent action of the two boards merged the two districts. One of the provisions of the merger was that all five members of the Carlisle independent board would serve on the Nicholas County board until their respective terms expired. Robert Coatney was a member of the Carlisle board and as such became a member of the Nicholas County board on May 3, 1963. Coatney was a part owner and operator of a grocery store in Carlisle known as Coat-ney’s I. G. A.

The home economics department of the Nicholas County High School made thirteen separate purchases totaling $55.06 from Coatney’s store after the merger date of May 3, 1963. At a meeting on June 25, 1963, of the merged boards, at which Coat-ney was present, this bill was paid. It was provided in the merger orders that the fiscal affairs of the two school districts be operated separately until June 30, 1963.

Appellant does not contend appellees were guilty of bad faith or failure to give proper value under the transactions in question. Appellant argues appellees simply violated the applicable provisions of KRS 160.180, which are as follow:

“(1) No person shall be eligible to membership on a board of education:
“(e) Who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery or any other property, materials, supplies, equipment or services for which school funds are expended;
“(2) If, after the election of any member of the board, he becomes interested in any contract with or claims against the board, of the kind mentioned in paragraph (e) of subsection (1) of this section, or becomes a candidate for nomination or election to any office or agency the holding and the discharging of the duties of which would have rendered him ineligible before election, or if he moves his residence from the district for which he was chosen, or if he does anything that would render him ineligible for re-election, his office shall without further action be vacant.”

Appellees counter with the argument that this proceeding was the outgrowth of ill will of the superintendent of schools toward appellees; and that the acts complained of were trivial, unintentional and do not violate either the wording or spirit of the statute in question. The record supports appellees’ contention of ill will of the superintendent toward appellees, and it may be true the transactions were trivial and that there was no intention to defraud or to violate the statute. The motive of one who initiates proceedings to enforce a salutary law should not and will not be questioned. It may be contended the above statute is a harsh one. Perhaps this is so in some instances, but it was enacted to eliminate possible conflicts of interest of board members at “the time of” their “election” as well as “after the election.” The language is comprehensive and emphatic. The Legislature clearly demonstrated its intention to enact a positive, firm and unqualified law by the use of such terms as: “No person shall,” and “his office shall without further action be vacant.”

This Court has consistently given this statute, as well as kindred legislative acts, a strict and literal construction as evidenced by the following quotation from Whittaker v. Commonwealth, 272 Ky. 794, 115 S.W.2d 355, 358 (1938), a similar factual situation:

“ * * * Therefore, we cannot escape the conclusion that it was intended that if the conditions named existed at the time of the election, the person affected thereby was disqualified to hold the office of school board member.
“ * * * But consideration of possibilities or probabilities, or of purpose, intent, or motive is for the lawmakers rather than the judiciary. The reasons for the passage of a law is for the General Assembly. We may inquire whether or not the particular act transcends any fundamental law. The Legislature, no doubt, considered the prohibition to be salutary. We cannot say that it is not so, nor that in the long run its observance may result in bringing the educational system, as applied in the common schools, to a higher level or standard, as the legislative endeavor seems to have been directed in later years.”

Also in the recent case of Commonwealth ex rel. Breckinridge v. Collins, Ky., 379 S.W.2d 436 (1964), this Court consistently followed its strict interpretation rule of KRS 160.180. In the Collins case, the member of the board held to be disqualified had no direct interest in the transaction with the board but was only a stockholder and officer of a corporation that did business with the board. In reversing the lower court this Court said, quoting from Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979, 981 (1931):

“These statutes were enacted as safeguards upon the spending of public funds and with the further view of throwing a wall of protection around the members of such bodies. Their duties as members could not thereby be influenced by selfish interests. The wisdom of such statutes is too apparent to need lengthy discussions.”
“Such statute has a salutary purpose and should be so construed. It is plain that appellee made such sales on behalf of a company in which he had a substantial interest and that he had such interest as was intended to be condemned by the statute. In making such sales he vacated the office of board member.”

Finally, we conclude appellees violated the letter and spirit of the statute and thereby automatically vacated their respective offices. The judgment is reversed with directions to enter a judgment to conform with this opinion.


text:
    Jimmy HARGROVE and Eddy Hargrove, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      Jimmy Hargrove and Eddy Hargrove, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellants seek a reversal of the judgment dismissing without a hearing their motion to vacate judgment pursuant to RCr 11.42.

The only question before this Court involves the sufficiency of appellants’ motion to vacate, and we shall be liberal with appellants in determining that question.

Their first ground simply states that they were not guilty of the charge for which they were convicted. This Court held in King v. Commonwealth, Ky., 387 S.W.2d 582 (1965), such a claim is ground for no relief whatsoever under RCr 11.42.

The second ground attempted to be assigned asserts they were not “advised of” the charge until “after put on trial.” Thrown in for good measure under (a) and (b) of the second ground, they allege they were not confronted by the witnesses with their counsel and were denied the right to examining trial. The Commonwealth was not required to read the indictment until the time that they were “put on trial.” Of course, they had a right to examine the indictment had they so desired. It was a public record. They were confronted by the witnesses at the time their counsel was present. This is admitted later in appellants’ brief. Neither were they entitled to an examining trial. King v. Commonwealth, supra.

It is next contended they were convicted on false evidence of Goldie Morris. This was a question for the jury and is not a ground for relief under RCr 11.42. King v. Commonwealth, supra.

The next and final ground relied on charges that counsel was appointed for them only five minutes before the trial, and that such late appointment did not give their attorney sufficient time to prepare their defense. There is no allegation a motion was made for continuance or for further time in which to prepare. In Jones v. Commonwealth, Ky., 388 S.W.2d 601, 603 (1965), this Court said:

“It is our opinion that the failure of counsel, even if appointed on the day of trial, to request a continuance at the defendant’s insistence, would not of itself support a motion to set aside the conviction on the ground of ineffective assistance of counsel.”

See also Uwaniwich v. Commonwealth, Ky., 390 S.W.2d 658 (1965).

The judgment is affirmed.


text:
    Densil MULLINS, Appellant, v. KENTUCKY POWER COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.

      Harold Garland Wells, Courtney C. Wells, Hazard, for appellant.
    Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellee.
   STEWART, Judge.

This action was brought by appellant, Densil Mullins, against appellee, Kentucky Power Company, to recover damages for injuries he allegedly received from a shock and burns when a television wire he was manipulating came in contact with an electrical wire owned by Kentucky Power Company.

At the close of all the evidence a motion for a directed verdict in favor of Kentucky Power Company was sustained. Mullins has appealed.

It is Mullins’ contention that the doctrine of res ipsa loquitur is available under the evidence presented. A summary of the pertinent facts follows.

On July S, 1963, around 5 p. m., Mullins, a resident on Acup Creek in Perry County, according to his testimony, was removing an old television line from his premises. This line ran from his house, which sits on a hill, thence over a creek and a road immediately below, across a field and up a hill; it traversed an estimated distance of 600 feet. It was attached to a post at the edge of a near-by cornfield and to a tree at the other side. In this fashion it was suspended across the cornfield and was above it about 12 feet.

Running lengthwise through this cornfield, and more or less at right angles to the course of the television line, was appellee’s 7200 volt three-phase power line. There were two live conductor wires strung between the crossarms of two poles 300 feet apart. These wires were 29^4 feet above the ground; and a neutral or dead conductor wire was about 30 inches below the two live conductor wires. Below appellee’s three-phase power line, approximately fourteen feet from the ground, was a telephone line. This line passed over the television line about two inches above it. The television line was located approximately midway of the two poles.

Mullins testified he went to the top of his residence, detached the television line and dropped it to the yard. He descended and picked up the line with one hand. He then started to pass the line around a bush to drop it into the creek below his house. Just as he reached around the bush, he received an electric shock, with the result that he was pitched up into the air and thrown down the hill, into the creek about 30 feet below. Mullins suffered non-disabling injuries.

Mullins’ wife and Carl Combs, a neighbor, saw the accident; they corroborated Mullins’ testimony as to how it occurred. They also stated that, when Mullins got his shock, they observed blue fire and smoke start up over the cornfield in the vicinity of appellee’s power line. Edward Burgett, who also testified in behalf of appellant, stated that after appellant was hurt he, Bur-gett, went to the cornfield and saw the television line and one of the wires of the power line lying upon the ground. Both were burned in two.

Charles Lovelace, an employee of the company which had strung the telephone wire on appellee’s poles, was introduced as a witness for appellee. Lovelace stated that on the occasion of the purported accident he was working on the telephone line, about 25 to 30 feet up on a pole, when he saw a person he could not identify “above the cornfield a little * * * wad up something, I could not make out what it was, and he threw it.” Next he heard a “sizzing” sound and noticed a man fall “off the bank down into the creek” at the Mullins house.

Morgan Ozee, a personnel supervisor for appellee and a witness for it, testified he went, four days after Mullins’ mishap, to the site where the television line and one of the wires of the power line were lying upon the ground in the cornfield. In the immediate vicinity he found a rock with a section of the television line tied or twisted around it. He took three pictures of the rock with the line attached to it, and these were filed as exhibits in this case. According to Ozee’s testimony, there were “about six or eight feet hanging onto it, and it was burned on the other end.”

A. R. Barber, appellee’s division manager, testifying in its behalf, stated that appellee’s power line was constructed and had been maintained in accordance with standards set by the National Electric Safety Code and in keeping with the regulations of public electric utility companies. Barber also testified, and his statement in this respect was never contradicted, that the wire of the severed power line, found lying upon the ground, was a neutral or dead conductor. Barber, in answer to a hypothetical question .propounded to him as an expert electrical engineer, as to how this neutral or dead conductor could communicate electricity, expressed the opinion that, by some means unknown to appellee, some one had caused the television line to unite with one of the live conductors of the power line. While the television line was thus energized it had made contact with and transmitted electricity through the neutral or dead conductor, which was strung below the two live conductors.

It was shown that appellee had acquired an easement for the construction and maintenance of its power line. It was also shown that appellant had run his television line across appellee’s easement and under its power line, without appellee’s knowledge or consent.

Appellant takes the position that, under the facts recited, the principle of res ipsa loquitur is applicable. In this connection, he relies upon this rule which is stated in 18 Am.Jur., Electricity, sec. 110, pp. 504, 505:

“ * * * The mere introduction of facts surrounding an injury from electricity showing that such injury resulted from contact with live electric wires or other appliances when out of proper condition or out of their proper place, may suffice under the doctrine of res ipsa loquitur to raise a prima facie presumption that the electrical company having such appliance in charge was negligent in the performance of its duty and to place upon the company the burden of overthrowing such presumption. * * * It is within the power of electric companies at all times to show whether they have exercised due care in the erection and subsequent supervision and maintenance of their wires and appliances, while in many cases it would be almost impossible for the person injured to prove an actionable failure of duty in these things.”

Appellant produced no evidence which in any wise tended to show that appellant’s injury stemmed from a violation of any duty appellee owed him. Specifically, he introduced no testimony that appellee’s facilities where the accident occurred were defective in any respect. Notwithstanding the absence of any proof of want of care upon its part, appellee established by the testimony of its division manager that its power line had been properly constructed and subsequently maintained in accordance with the highest standards applicable to public electric utility companies.

Furthermore, appellee introduced the testimony of one eyewitness whose statements the trial court no doubt believed pointed up the cause of appellant’s mishap. This was proof to the effect that appellant’s electrical shock was received while some unknown person was attempting to fling over the power line what turned out to be a rock with a length of the television line tied or twisted around or on to it. One could well believe appellant had hold of the other end of this television line. The evidence is clear that the neutral or dead conductor fell at about the time the television line made contact with it. According to the expert testimony introduced in this case, the neutral or dead conductor could not have become energized unless it was united by some agency with one of the two live conductors above it. The television line must have been the connection between the neutral and the live conductors, thereby becoming charged itself, because appellee received his electrical shock through this line.

We therefore believe appellee’s evidence revealed that the accident was due to the intervention of some cause with which it had nothing to do. It occurred from the attempted removal of the television line, which was owned, maintained and controlled by appellant. In addition, it appears it had been located on and across appellee’s easement by an act of trespass. Prosser in his work on the Law of Torts (2d Ed.), in pointing out the necessity in a res ipsa lo-quitur case of bringing an act of negligence home to the defendant in order to attach liability, makes this relevant statement on pages 204, 205:

“ * * * On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must instruct the jury that the plaintiff has not proved his case. The injury must be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident would be attributed. * * * ”

The conclusion we have reached makes it unnecessary to consider the contributory negligence contention advanced by appellee.

Wherefore, the judgment is affirmed.


author: STEAKLEY, Justice.

text:
    Leslie C. DuPUY, Jr., Petitioner, v. The CITY OF WACO, Respondent.
    No. A-10644.
    Supreme Court of Texas.
    Oct. 13, 1965.
    Rehearing Denied Dec. 15, 1965.

      Ñaman, Howell, Smith & Chase, Waco, for petitioner.
    Thomas R. Hunter, City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for respondent.
   STEAKLEY, Justice.

The City of Waco constructed a viaduct on South 17th Street in 1962 to improve the movement of vehicular traffic in the city. No property of Petitioner, Leslie C. DuPuy, was physically appropriated by the City but access to his property was impaired by the viaduct. The question we are called upon to decide in this suit by DuPuy against the City is whether damages for the diminishment in value of Petitioner’s property resulting from the impairment of access is recoverable under Article I, Sec. 17, of the Constitution of Texas, Vernon’s Ann.St, which provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * *

The trial court rendered judgment for the Petitioner upon the basis of favorable jury findings. The Court of Civil Appeals, as did the jury upon trial, found that the reasonable market value of the property has been substantially damaged for a public use. However, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the City upon the holding that the construction of the viaduct was a reasonable exercise of the police power, wherefore Petitioner had no cause of action since there was neither a physical taking nor a complete loss of access. City of Waco v. DuPuy, 386 S.W.2d 192.

The location of the property of Petitioner in relation to the viaduct and the surrounding streets is depicted on the accompanying schematic diagram. Prior to the construction of the viaduct, DuPuy fronted on South 17th Street and sided on an alley connecting with Franklin Avenue. The viaduct elevated 17th Street above the property of DuPuy and left him access to the front by a way under the viaduct between the supporting columns and dead-ending at DuPuy’s property.

It is the position of Respondent, City of Waco, by its counter points, and of the attorneys for other cities filing amicus curiae briefs, that the City is not liable for the limitation of access to Petitioner’s property by the construction of the viaduct because such was incidental to a reasonable exercise of the police power. The Attorney General of Texas, likewise by amicus curiae brief, asserts that without regard to any distinction between an exercise of the police power and the power of eminent domain, the damage of Petitioner is damnum absque injuria because there has been no invasion of any legal rights of Petitioner. The Attorney General argues that Petitioner has no damage because he still has complete access to the system of public roads and summarizes his position in saying that “The access is less convenient and the loss of traffic flow by the front door is apparent but it is settled that both the real elements of loss to commercial value are damnum absque injuria.”

The problem is a recurring one of great difficulty and there is much literature on the 'subject. The comment of this Court in City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958), is timely:

“The lack of uniformity among the authorities seems to be no less apparent now than it was in 1906 when it was observed in Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 690, 51 L. Ed. 1176, that:
‘ * * * The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all of the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy. * * ”

The demands of progress are inexorable and public improvements should not be discouraged; but just as compelling is the principle that private property rights are to be protected with all citizens sharing equally in the cost of progress. It was said in Brewster v. City of Forney, 223 S.W. 175 (Tex.Comm.App.1920):

“The Constitution of Texas and the decisions of her courts reveal a zealous regard for the rights of the individual citizen. Not only will they not permit his property to be ‘taken’ for a public use without compensation, but will not permit it to be damaged unless the citizen is compensated to the extent of such damage. To hold otherwise would be to put upon one citizen a burden which should rest upon the aggregate citizenship, as the direct beneficiary of the public work, the construction and operation of which has damaged the property of one citizen.”

It was recognized by this Court in Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control and Improvement District No. 1, 123 Tex. 432, 73 S.W.2d 55 (1934), that our Constitution and statutes have been construed generally to authorize the recovery of compensation not only for property actually taken under the power of eminent domain, but for property damaged as well; that compensation is not required to be paid in all cases of damage to property-occasioned by the exercise of the police power; and that our decisions permit recovery by the citizen for damages consequent upon changing street and highway grades.

This Court more recently upheld a recovery of damages under Article I, Sec. 17, of the Constitution in an inverse condemnation proceeding without attempting a distinction between the power of eminent domain and an exercise of the police power. Brazos River Authority v. City of Graham, 163 Tex. 167, 169, 354 S.W.2d 99 (1962). See in this connection San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963). As graphically expressed in Brazos River, our refusal to compartmentalize an exercise of sovereignty as either police power or eminent domain for the resolution of problems arising under Article I, Sec. 17, of the Constitution rests upon the manifest illusoriness of distinctions between them. And here, as in Brazos River, the property in question was not being used to the detriment of the public in any respect and has not been subjected to any type of regulation. One or the other of these elements is generally considered to be an essential characteristic of an exercise of the police power. City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958); Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934); Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387 (1921); Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.1940, writ ref.). Moreover, the viaduct was constructed for a public use, the necessary consequence of which was the causing of a property loss to Petitioner not common to the general public. These elements are generally considered to be supportive of special damages in law whether or not termed an exercise of the power of eminent domain. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Port Worth Improvement District No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994 (1913); Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885); Gulf, C. & S. F. R. R. Co. v. Eddins, 60 Tex. 656 (1884); Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) and City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 (1940).

It is settled that a direct physical invasion of property is not required under the present provisions of Article I, Sec. 17, of the Constitution of Texas to entitle an owner to compensation. McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A.,N.S., 662 (1911); Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885); Gulf, C. & S. F. R. R. Co. v. Eddins, 60 Tex. 656 (1884) It was the injustice of requiring an actual taking which explains the inclusion for the first time in the Constitution of 1876 of the requirement that compensation be paid for the damaging of property for public use. Judge Gaines wrote for this Court in Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 11 S.W. 145, 3 L.R.A. 565 (1889): “The insertion of the words ‘damaged or destroyed’ in the section quoted was doubtless intended to obviate this question, and to afford protection to the owner of property, by allowing him compensation, when by the construction of a public work his property was directly damaged or destroyed, although no part of it was actually appropriated.” See also State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), and Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298 (1890). In the exercise of the power to take or appropriate private property for public use, the state, counties and other subdivisions of this state, railroads and corporations to which the power of eminent domain has been delegated, are in the same position and are governed by the same rule. Hale, supra. The basic concept of Article I, Sec. 17, in its requirement for the payment of compensation was expressed by this Court in Hale in terms of private property being subjected to a perpetual servitude for the benefit of the public entitling the owner to compensation for his damage.

It is the settled rule in this state that an abutting property owner possesses an easement of access which is a property right; that this easement is not limited to a right of access to the system of public roads; and that diminishment in the value of property resulting from a loss of access constitutes damage. Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A.,N.S., 615 (1911); Eddins, supra; Fuller, supra; cf. American Const. Co. v. Seelig, 104 Tex. 16, 133 S.W. 429 (1911). This Court said in Powell:

“The ownership of the lot abutting upon the street carried with it as property the right of free and unimpaired access thereto and egress therefrom, and whatever impaired that right and caused a depreciation of the value of the lot constituted damage to the lot within the meaning of the Constitution.”

It was reasoned in Fuller that the word “property” as used in the Constitution “means not only the thing owned, but also every right which accompanies ownership and is its incident”; and that “by damages is meant ‘every loss or diminution of what is a man’s own, occasioned by the fault of another,’ whether this results directly to the thing owned, or be but an interference with the right which the owner has to the legal and proper use of his own.” Eddins says it in these words: “Where, as the result of the occupation of it by the railroad company, the use of the street by the adjoining owner is very greatly impaired, and the injury in this respect is one special in its character, and not one common to the entire community at large, an action to recover such special damage will lie.” To the same effect is Fort Worth Improvement District No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994 (1913), in which this Court held that if a public work is constructed which inflicts an injury peculiar to certain property not suffered in common with other property in the community or section, such property is damaged within the meaning of the Constitution, and the law will not permit the infliction of such injury without the allowance of just compensation. See also Hidalgo County Water Imp. Dist. v. Holderbaum, 11 S.W.2d 506 (Com.App.1928); Commissioners’ Court of Harris County v. Kaiser, 23 S.W.2d 840 (Tex.Civ.App. 1929, writ ref.); Southern Traction Co. v. Fears, 199 S.W. 856 (Tex.Civ.App.1918, writ ref.); City of Houston v. Kleinecke, 26 S.W. 250 (Tex.Civ.App.1894, no writ hist.).

It is obvious that the construction of a large public improvement will have a different effect upon ingress and egress to and from properties which are differently located. The determination in a given situation of whether or not there has occurred a compensable damaging under the Constitution is to be approached from the premise that an access right is an easement judicially recognized as appurtenant to tangible property to protect the benefits of private ownership. This should not be extended to recognize a compensable damaging where a property owner has reasonable access to his property after construction of the public improvement. The benefits of private ownership have been assured so long as there is reasonable access and an action for compensation under the Constitution will not lie where such is the case. This is illustrated by the case of Moorlane Company v. Highway Department, 384 S.W.2d 415 (Tex.Civ.App. 1964, writ ref. n. r. e.), upon which we acted contemporaneously with the granting of the application for writ of error in the instant case. Moorlane, et al., sued to recover compensation for an impairment of their property rights of access which resulted from the construction of a highway overpass. They claimed the right to compensation on the basis of the diminishment of access rights because construction of the overpass narrowed the street upon which they abutted. The Court of Civil Appeals rested its decision principally upon the holding that the Highway Department and City were acting under the police power in constructing the overpass, and there was not a complete taking of the right of access. However, the Court pointed out in its opinion that the property owners “still had access to their property and trucks could load and unload * * * although the large trucks could not use this street in its entirety as had been before the overpass was built. * * * ” It was our view that the property owners were left with reasonable access and the lesser impairment was dam-num absque injuria; the application for writ of error was therefore refused with the notation “no reversible error.” See Rule 483, Texas Rules of Civil Procedure.

Other cases by the Texas courts upon which the City principally relies are likewise distinguishable from the case at bar. Lysaght v. City of Fort Worth, 359 S.W.2d 128 (Tex.Civ.App.1962, writ ref.), and City of Forth Worth v. Southwest Magazine, 358 S.W.2d 139 (Tex.Civ.App.1962, writ ref. n. r. e.), were suits for compensation for the removal of facilities of the property owner constructed in a city street. Holbrook v. State, 355 S.W.2d 235 (Tex.Civ.App.1962, writ ref. n. r. e.); Pennysavers Oil Co. v. State, 334 S.W.2d 546 (Tex.Civ.App.1960, writ ref.); and State Highway Commission v. Humphreys, 58 S.W.2d 144 (Tex.Civ.App.1933, writ ref.), were highway rerouting cases and stand principally for the propositions that an abutting property owner does not have a vested interest in the traffic that passes in front of his property; that he cannot recover for loss of trade resulting from a highway relocation; and that he is not entitled to damages because of the construction of controlled access highways in such manner as to deny direct access to the new major highway. It is also to be noted that the case of City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958), involved a mandamus action to compel the issuance of a permit for a curb cut, i. e., a regulation in the exercise of the police power.

The facts here go substantially beyond Moorlane. The initial and primary question is whether DuPuy’s access rights have been impaired to an extent which constitutes a damage to property for a public use under Article I, Sec. 17, of the Constitution of Texas. In our view this is a question of law and we hold that such has been shown here. Cf. Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940), 130 A.L.R. 1053, in which this Court held that the question of what is a public use under Article I, Sec. 17, of the Constitution is a question of law for determination by the courts. Prior to the construction of the viaduct the property of DuPuy fronted on South 17th Street with full access thereto; now, South 17th street is fourteen feet above the property and a concrete support forms a solid barrier to the immediate right of DuPuy’s building. As a result, the building is left . fronting on a cul-de-sac under the viaduct. It is generally held under analogous circumstances that a property owner left in a cul-de-sac is entitled to damages. Lee v. City of Stratford, 125 Tex. 179, 81 S.W.2d 1003 (1935), cites with approval the case of In re Hull, 163 Minn. 439, 204 N.W. 534, 205 N.W. 613, 49 A.L.R. 320 (1925), which states the rule as follows: “The owner of property abutting on a public highway has a special interest in the highway different from that of the general public. To recover damages for the obstruction or vacation of the highway, it is not essential that access to his property has been entirely cut off, but he cannot recover if his only complaint is that he is compelled to travel farther or over a poorer road in going to and from his property. * * * If, by the discontinuance of a highway running across, along or to the land in question, it is left abutting upon a cul-de-sac, the owner is deemed to have suffered an injury not common to the public.” See also 25 Am. Jur., Highways, § 318; 49 A.L.R. 330, 351; 93 A.L.R. 639, 642; 2 Nichols, Eminent Domain, § 6.32(2) (3d ed. 1963); II Mc-Quillin, Municipal Corporations, § 30.193 (3d ed. 1964); II American Law of Property, § 9.55 (1952). It is not enough that DuPuy can get to the system of public roads and the traveling public can get to his building. We are clear in the view that the construction of the viaduct has deprived Du-Puy of reasonable access which entitles him to invoke the provision of the Constitution requiring the payment of compensation when property is damaged for a public use. Cf. City of Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638 (1888); Breidert v. Southern Pacific Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719 (1964); People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1944); Bacich v. Board of Control, etc., 23 Cal.2d 343, 144 P.2d 818 (1943); Rose v. State, 19 Cal.2d 713, 123 P.2d 505 (1942); Minnequa Lumber Co. v. City and County of Denver, Colorado, 67 Colo. 472, 186 P. 539 (1919); City of Chicago v. Burcky, 158 Ill. 103, 42 N.E. 178, 29 L.R.A. 568 (1895); Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165 (1964); Illinois Central R. R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916). See also II McQuillin, Municipal Corporations, § 30.192 (3d rev. ed. 1964); 28 Tex.Jur.2d Highways and Streets, § 196; 39 C.J.S. Highways § 143b.

The trial court submitted two issues to the jury for the purpose of determining the amount of damages to which DuPuy was entitled. These issues required the jury to find the reasonable market value of the property immediately before and immediately after the construction of the viaduct. The respective findings of the jury were $15,500.00 and $7,000.00. The City as Appellant presented a point of error to the Court of Civil Appeals urging the proposition that the trial court erred in its charge because the jury was not limited to “compensable items of damage” in determining the before and after market value of DuPuy’s property. The support therefor was an objection to the charge on the ground that it did not limit consideration of the jury to compensable items of damage. It was argued generally by the City before the Court of Civil Appeals that the jury was allowed “to consider circuity of travel, loss of view insofar as it affected highest and best use, loss of light and air and anything that they might pick up from the evidence or the exhibits.” The record at bar reflects that the problem of an impairment of light, air and view is not involved. The trial court sustained special exceptions to the allegations in DuPuy’s original petition concerning light, air and view and during the trial sustained objections of the City to testimony regarding these elements as being irrelevant and immaterial to any issue in the case and as not supported by the pleadings. However, there was included in the charge to the jury a special instruction which recited that evidence had been admitted relating to the possible effect the construction of the viaduct may have had on the view from Du-Puy's property and which limited consideration of such evidence to determination of the highest and best use for the property. The City did not specifically object to this instruction and we are at a loss to understand the reason for its inclusion since the trial court had sustained the objection of the City to the proffered evidence relating to the elements of light, air and view. But in any event we do not consider that harmful error was presented to the Court of Cvil Appeals in these respects. This Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (1936), recognized that the rule applicable to the determination of damages when there has been a permanent injury to land by reason of the construction of a public improvement requires an ascertainment of the difference between the market value of the land immediately before and immediately after the construction. The reasoning of the Court in resolving the question there presented is equally applicable to the problem here presented, i. e., it is not proper to instruct the jury as to certain items or elements of damages which may or may not be taken into consideration in ascertaining depreciation in market value; the Court there said: “It appears to us that in most if not in all cases the whole matter of what may be considered by the jury and what may not be considered will be best determined by the trial court in the admission and exclusion of testimony rather than by instructions to the jury.”

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN, J., dissenting.

      . See, e.g., Rayburn, Texas Law of Condemnation §§ 235-44 (1960); Cromwell, Loss of Access to Highways: Different Approaches to the Problem of Compensation, 48 Va.L.Rev. 538 (1962) ; Gibbes, The Control of Highway Access — Its Prospects and Problems, 12 S.C.L.Q. 377 (1960); Comment, Liability of Governmental Units for Damaging Private Property, 15 Baylor L.Rev. 403 (1963); Comment, Eminent Domain v. Police Power as Related to the Abutting Owner’s Right of Access, 14 Baylor L.Rev. 70 (1962); Comment, Eminent Domain—Damages— Recovery for Interference with the Right of Access, 18 So.Cal.L.Rev. 42 (1944); Note, 32 Calif.L.Rev. 95 (1944).

      . “If we differentiate eminent domain and police power as distinct powers of government, the difference lies neither in the form nor in the purpose of taking, but in the relation which the property affected bears to the danger or evil which is to bo provided against.” Freund, Police Power, § 511 (1904).

      . “The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest. The police power may be loosely described as the power of the sovereign to prevent persons under its jurisdiction from conducting themselves or using their property to the detriment of the general welfare. * * * However, it is universally conceded that when land or other property is actually taken from the owner and put to use by the public authorities, the constitutional obligation to make just compensation arises, however much the use to which the property is put may enhance the public health, morals or safety.” 1 Nichols, Eminent Domain §§ 1.42, 1.42(1) (3d 1964).

        “Eminent domain then, is the actual physical invasion, acquisition and taking of private property to further some lawfully declared public purpose grounded in public necessity and convenience, in furtherance of public policy for some public purpose authorized by the constitution and statutes of the sovereign entity. * * * The exercise of the police powers of the sovereign or its delegates is the lawful exercise of a restraint or regulation upon private property or private rights or even the impairment or destruction of those rights in the public interest or for the general welfare.” Rayburn, Texas Law of Condemnation, Sec. 4(1) (1960).

      . There is a contrariety of opinion at this point. The Supreme Court of California considers as one of law the question of whether there has been sufficient impairment of access to invoke a similar constitutional provision. People v. Ricciardi, infra. The Supreme Court of Minnesota treats the question as one of fact. Hendrickson v. State, infra.


author: STEAKLEY, Justice. GREENHILL, Justice

text:
    ARCHENHOLD AUTOMOBILE SUPPLY CO., Petitioner, v. The CITY OF WACO, Respondent.
    No. A-10642.
    Supreme Court of Texas.
    Oct. 13, 1966.
    Rehearing Denied Dec. 15, 1965.

      Bryan, Wilson Olson & Stem, Waco, for petitioner.
    Thomas R. Hunter, City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for respondent.
   STEAKLEY, Justice.

This is a companion case to DuPuy v. The City of Waco this day decided, Tex., 396 S.W.2d 103. It is likewise a suit against the City for damages under Article I, Sec. 17, of the Constitution of Texas, Vernon’s Ann.St. resulting from the construction by the City of the South 17th Street viaduct. As in DuPuy, there was no physical appropriation of Petitioner’s property and as the case reaches us it involves only the impairment of access rights. The Court of Civil Appeals reversed the judgment of the trial court for Petitioner, Archenhold Automobile Supply Company, based on the favorable jury verdict, and rendered judgment for the City; its holding was that “ * * * the construction of the viaduct by the City was a valid exercise of its police power, and since appellee has access to its property as herein stated, and has not been denied total access to its property, there is no taking, and the loss and inconvenience it may have sustained is noncompensable.” 386 S.W.2d 174, 180. We granted the application for writ of error in this case at the time of such action in DuPuy, and the cases were submitted together.

The physical facts pertaining to the property of Archenhold are depicted on the accompanying schematic diagram and are described in detail in the opinion of the Court of Civil Appeals. In relation to the property of DuPuy considered in the companion case, the property of Archenhold is located immediately across what was South 17th Street. The major difference is that the Archenhold property extends to and fronts on Franklin Avenue, whereas the DuPuy property fronted on and had access to South 17th Street only. It may also be mentioned that the location of Archenhold’s building and the viaduct leaves Archenhold with a twenty-five-foot open space which is used for parking motor vehicles.

The basic contentions of the parties, and of the Attorney General and the attorneys for other cities filing amicus curiae briefs, are the same as in DuPuy. As there said, the initial and primary question for determination by the Court in a given situation is whether access rights have been impaired to an extent which constitutes a damage to property for a public use within the purview of Article I, Sec. 17, of the Constitution of Texas which provides that “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * For the reasons expressed in DuPuy, such is not the case where a property owner is left with reasonable access, and this problem is to be resolved in the light of conditions affecting the particular property under review before and after construction of the public improvement. It is obvious that at both such times the property of Archenhold was more favorably circumstanced than the property of DuPuy. The latter was left abutting on a cul-de-sac on the street on which he fronted, and the only street to which he had access. Archenhold, on the other hand, continues to front on, and to have full access to, Franklin Avenue and quite clearly has been left with substantial access. The question of whether Archenhold retained reasonable access should not be fragmented, i. e., be made to turn on what happened on South 17th Street apart from the unimpeded frontage on Franklin Avenue. The better rule, in our opinion, is that of the courts of New York which hold that one of two public streets may be closed without compensation to an abutting landowner if the remaining street furnishes suitable means of access. Egerer v. New York Central & Hudson River R. R. Co., 130 N.Y. 108, 29 N.E. 95, 14 L.R.A. 381 (1891); Fearing v. Irwin, 55 N.Y. 486 (1874). We hold that Archenhold has not been deprived of reasonable access. This is not to say that Ar-chenhold has not suffered damages in the diminishment of his means of access with regard to South 17th Street. There has been damage and, indeed, special damage not suffered in common with the general public. But as we have held in DuPuy, this is not sufficient to invoke the compensation provision of the Constitution under review. The damages suffered by Archen-hold as a result of the changes which were wrought on South 17th Street are damnum absque injuria.

The judgment of the Court of Civil Appeals is affirmed.

SMITH, WALKER and GREENHILL, JJ., dissenting.

GREENHILL, Justice

(dissenting).

The Court has a very able opinion in the companion case hereto, DuPuy v. City of Waco. The reasons expressed in it are, in my opinion, a just basis for a recovery by Archenhold.

At the conclusion of its opinion in this case, the Court recognizes that Archenhold had been damaged and that “indeed [it has suffered] special damage not suffered in common with the general public.”

Beyond question the property rights of Archenhold were substantially damaged for the public use. Our Texas Constitution says that no person’s property shall be taken or damaged for public use without adequate compensation being made. Article I, Sec. 17.

It follows, at least to me, that Archenhold is entitled to compensation for the damage it has suffered for the public use.

SMITH and WALKER, JJ., join in this dissent.


author: DICE, Commissioner.

text:
    Lathern C. DORSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38683.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunken driving; the punishment, sixty days in jail and a fine of $100.

The state’s evidence shows that while driving his automobile at a high rate of speed on a public street in the city of Tyler, appellant overturned at an intersection and his vehicle came to rest upside down.

Officers Richardson and Beck proceeded to the location to investigate the wreck and observed appellant at the scene. In describing appellant’s actions and appearance at the time, Officer Richardson testified that he had the smell of alcohol on his breath, his eyes were glassy, his speech was slurred, and he staggered when he walked. The officer expressed his opinion that appellant was under the influence of intoxicating liquor at such time.

The officer also stated that after he took appellant to the hospital, a blood sample was taken from him, with his consent. The specimen was put in a vial, which was sealed and placed in a container. He testified that he then gave the container to the dispatcher to be mailed.

At the trial, Officer Richardson identified state’s exhibit #1 as a container, with his handwriting thereon, which held a vial containing a blood sample sent to the state laboratory in Dallas.

Chemist and toxicologist George Brown, of the Department of Public Safety, testified that he received a specimen of blood belonging to appellant from Officer Richardson, of the Tyler police department; that the specimen was in a vial in a sealed container; that he broke the seal on both the container and the vial and examined the blood specimen for its alcoholic content. He stated that the results of his analysis disclosed that the specimen contained 0.27% alcohol by weight and that in his opinion the person from whom the specimen was taken was intoxicated at the time.

Both the container and the vial were offered in evidence by the state as exhibits #1 and #1-A. No objection was made by appellant to the exhibits on the ground that the blood specimen had not been properly identified or traced, and appellant is in no position to now urge such an objection on appeal.

State’s exhibits #2, 3, and 4, being the complaint, information, and judgment in Cause No. 11,422, styled The State of Texas vs. Lathern Dorsett on the docket of the County Court of Smith County, were introduced in evidence and showed that on May 14, 1954, the defendant therein was convicted of the misdemeanor offense of driving while intoxicated. Proof was made that such judgment was final, the same having been appealed to this court and affirmed, as reformed, with the issuance of mandate on January 5, 1955.

Certain records of the Drivers’ License Division of the Department of Public Safety were introduced in evidence, showing' the issuance of a Texas operator’s license, #3396358, to Lathern Dorsett, on June 18, 1951, describing him as a “White male; blue eyes; blond hair; 165 pounds; 5’ 10"; born June 2, 1929,” and listing his address as 1307 West Cochran, Tyler, Texas.

The records introduced further showed that on May 14, 1954, Lathern Dorsett, the holder of such license, was convicted in the County Court of Smith County, in Cause No. 11,422, of the offense of driving while intoxicated.

Appellant did not testify, but called as a witness Officer Beck, the other investigating officer who went to the scene.

Officer Beck testified that in his opinion appellant’s “physical ability” at the time was normal, but on cross-examination he stated that he meant that appellant had no physical defects, and expressed the opinion that he was then intoxicated.

We overrule appellant’s contention that the evidence is insufficient to sustain the judgment of conviction because the driver’s license record introduced in evidence was insufficient to identify him as the person previously convicted of the misdemeanor offense of drunken driving.

Similar proof has been held sufficient where the jury has the opportunity to observe the accused and determine by comparison with the description in the record whether he is the same person previously convicted. See: Jean v. State, 172 Tex.Cr. R. 518, 360 S.W.2d 148, and cases there cited.

Hightower v. State, Tex.Cr.App., 389 S.W.2d 674, relied upon by appellant, is not here controlling, under the facts.

The judgment is affirmed.

Opinion approved by the Court.


author: PER CURIAM. BELCHER, Commissioner.

text:
    Thomas D. CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38439.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 27, 1965.
    Second Motion for Rehearing Denied Dec. 8, 1965.

      J. W. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The conviction, on a plea of nolo con-tendere before the court, is for driving while intoxicated; the punishment, 3 days in jail and a fine of $100.

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

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

The appellant now contends that under the record the complaint is fatally defective.

The jurat on the complaint shows that the oath was administered to the affiant in the name of James E. Jeffrey, Assistant County Attorney of Taylor County, Texas. The information shows that it was presented by James E. Jeffrey, County Attorney of Taylor County.

In the absence of proof that the name of the person appearing in said instruments as James E. Jeffrey is the same person, or that he occupied only one of said positions on the date shown, it will be presumed that the officials as designated acted in accordance with law. 47 T.J. (2), 153, Sec. 118; Billingslea v. State, 160 Tex.Cr.R. 244, 268 S.W.2d 668.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Arthur Gene RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38452.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 8, 1965.

      Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Vance, Tom Reese and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B, Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, twenty years.

The testimony reveals that John Henry Pruitt and Stene Burnley left the Cates Pharmacy after a brief visit, and that about one hour later Pruitt, Burnley and the appellant entered the pharmacy. While the appellant remained within about two feet of the front door, Pruitt and Burnley went to the Coca Cola box, and then Pruitt went to the rear of the store and Burnley asked a clerk about some cologne. When John Cates, the pharmacist who was behind the prescription counter at the rear of the store, looked up, Pruitt was pointing a sawed-off shotgun toward him. Pruitt told Cates that, “It’s a holdup,” that he wanted narcotics and for Cates not to look at him. Cates offered Pruitt some demoral and other narcotics which he took from a safe, but Pruitt said he wanted morphine and dilaudid. When Cates told Pruitt that the morphine was in the safe at the front of the store, Pruitt told him to go get it. After the clerk and Burnley arrived at the cologne counter, Burnley asked about two Timex watches, and then placed something against the clerk’s back and said, “Lady, go to the back. This is a holdup.” On arriving at the prescription counter, they saw Pruitt holding a gun against Cates. At the direction of Pruitt, Cates went to the front of the store where he saw a man standing at the front door, and Cates then opened the safe underneath the cash register and carried the “hard” narcotics, which were in a silver painted box, toward the rear and Burnley took the box and placed it in a large paper sack. The clerk, from the rear of the store, saw the appellant in front of the cash register. Later, an examination of the cash register revealed that a key letter which had never been used had been pushed in in an apparent effort to open it. The clerk and Cates, while testifying, identified a towel as appearing like the one used by Burnley in handling the telephone which was near the prescription counter. At this time Burnley, directing his voice to the front, called to the man at the front saying, “Come on, we’re going out the back,” and Burnley used the towel to open the door. When the man came from the front, the three men went out through the rear door of the pharmacy.

John Cates testified that he was in possession of all the property in the pharmacy and never gave anyone his consent to take any of it, and that he was in fear of his life and serious bodily injury at the time the property described was taken.

In a brief time after the robbery, two deputy sheriffs observed a car at a stop sign bearing the description given in a police radio dispatch. While pursuing this car they could only see two men, and saw an object thrown from the car, and due to the speed and manner of its operation travelled some distance before it stopped. On approaching the car they saw the appellant lying on the rear seat. Pruitt had been driving and Burnley was seated on the right front seat. On the front floorboard they found a large paper sack containing several vials and bottles, two empty watch cases were in the glove compartment, a towel was under the right side of the front seat, and a small wooden box was in the rear on the left side on the floorboard. Pruitt had a watch on each arm, and Burn-ley had one on his arm. A 12 gauge sawed-off shotgun was found by the officers at the place where they had seen an object thrown from the car.

Cates and the clerk identified both Pruitt and Burnley as two of the persons committing the robbery, and the clerk positively identified the appellant as the man who entered the pharmacy the second time Pruitt and Burnley entered, and then stood at the front door and left through the rear door after Burnley called to him that they were going out the rear door. The Timex watches returned by the officers were identified by Cates and the clerk as being in the store before the robbery and missing afterwards. Cates also identified the vials and bottles which were removed from the car as those taken from him during the robbery.

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

Appellant contends that the trial court erred in charging on the law of principals ; and again erred in failing to charge on the law applicable to circumstantial evidence.

The testimony reveals that the appellant entered the pharmacy at the same time that Pruitt and Burnley entered the second time, that he stood within two feet of the front door, except when he was seen in front of the cash register, until Burnley called to him from the rear of the store saying that they were going out through the rear door, and then appellant went to the rear and the three men left together. In a brief time the officers overtook the get-away car which was speeding and found the appellant lying down in the rear seat, and also found the robbery loot in the car. The two contentions as directed to the charge do not present error.

Error is urged in the prosecutor’s argument to the jury that “they wanted the ‘hard stuff,’ they wanted the ‘hard narcotics.’ And what do you do with them? You either use them or sell them,” on the ground that such argument was not supported by the evidence and injected a new and damaging fact before the jury. The objection thereto was sustained and the jury instructed not to consider such argument.

There is testimony that the robbers took vials and bottles containing “hard narcotics” which is a high classification of narcotics.

In view of the trial court’s ruling and instruction, and the evidence, the remarks do not constitute reversible error. Moreno v. State, 163 Tex.Cr.R. 477, 293 S.W.2d 665.

The appellant insists that the state’s attorney erred in arguing to the jury: ‘It has not been denied,’ or words to that effect, the exact words are not known to the defendant, but the same will appear in the record of the proceedings taken by the court reporter during the jury argument,” on the ground that such argument was a direct comment on the failure of the appellant to testify.

An examination of the separate statement of facts containing the jury argument approved by counsel for the appellant fails to reveal that the argument complained of was made. Therefore, this contention presents nothing for review.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Melvin Alexander PAYTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38713.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rex Emerson (Court appointed on appeal), Francis Williams, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen L. Stilley and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, death.

The proprietor of Carroll’s Cafe testified that appellant, the man who was later killed (hereinafter referred to as the deceased) and another man were engaged in a game of pool at his cafe on the night in question and that at the conclusion of the game, which he had won, the deceased put his pool stick on a table together with his hat and announced that he was going to the “bathroom”. Carroll testified that appellant shot at deceased twice as he was on his way to the rest room, that he caught hold of appellant from the rear and continued to struggle with him, but that he was unable to reach appellant’s pistol or to prevent appellant from pursuing deceased into the rest room, where appellant fired a final shot into deceased while deceased had his hands raised and was pleading with appellant not to shoot him. He stated that appellant instructed him to put down the telephone when he attempted to call for an ambulance and that appellant together with his wife left the cafe, commandeered an automobile from its owner at pistol point, and fled the scene. The witness got the license number and reported the same to the police.

The witness Spencer testified that he overheard appellant say to the third player that they would keep deceased from winning a game and would “break him”, to which deceased replied, “Man, leave me alone, let’s finish the game”, which they did, and that deceased laid his “cue stick” down and headed toward the bathroom, whereupon appellant drew a pistol and fired twice in deceased’s direction. He further stated that Carroll grabbed appellant and called to him for' help, that he responded by grabbing appellant’s left arm, but that when appellant pointed the pistol at him and told him to turn him loose, he did so. Spencer went to locate two policemen who normally walked that beat, but was unable to find them, and upon his return to the cafe he found deceased lying across the commode and saw appellant take a man’s automobile at gun point.

William Lewis testified that it was his brother, Elmer, who was engaged in the game of pool and that he witnessed the first two shots and then fled to his automobile, but was unable to escape because appellant took his automobile away from him at pistol point. Elmer Williams gave practically the same testimony as had the other witnesses called by the State.

Deputy Sheriff Weispape of Washington County testified that the morning following the homicide he spotted appellant driving the automobile about which he had been notified and gave chase, that appellant abandoned the automobile and fled on foot, but that he was able to apprehend him and that he was “present along with the defendant and Deputy Mickey Walker when a weapon was recovered.”

Deputy Walker testified that he arrived at the scene just as appellant had been apprehended, and that as a result of a conversation with appellant he found a pistol which appellant told him was the gun that was used in a murder in Houston. He identified the weapon introduced in evidence. At this juncture the jury was excused, and the Court heard further evidence from Walker and from appellant as to the recovery of the weapon and appellant’s oral confession and made his finding as a matter of fact and of law that the oral confession was admissible, whereupon the State rested.

Appellant, testifying in his own behalf, stated that deceased had lost his temper over the game of pool, had walked away from the table and had reached in his pocket, whereupon he fired shots, neither of which hit deceased, and that the third or fatal shot was fired accidentally as he was “wrestling” with Carroll over the pistol. He denied that he had pointed his pistol at Spencer or at William Lewis. In answer to his own counsel’s question, appellant stated that he told the arresting officer that he “used rifle bullets” in his pistol, but that it was unloaded at the time of his arrest, and that he told the officer that he “used the X on the bullets so that when I shoot targets you can square them off and that way you can tell at a distance just where you hit on a target.”

Appellant called his common law wife, who testified that just prior to the shooting deceased had refused to pay appellant the money which her husband had won on a pool game, but that she did not witness the shooting.

It was established by medical testimony that deceased died as the result of a gun shot wound in his chest.

At a hearing on appellant’s motion for new trial appellant’s attorneys testified that after the trial they learned from appellant’s mother that he had been treated for a mental condition at a Beaumont Hospital. At the hearing appellant’s mother testified that she did not make such fact known to anyone until after the jury’s verdict, even though she knew that her son had been charged with murder. The records of the Beaumont hospital revealed that some 13 years prior to this trial appellant made some four out-patient visits for nervousness and headaches and had an EEG performed upon him. The careful trial court twice recessed the hearing on the motion, one such recess being in order to permit appellant’s attorneys an opportunity to have a psychiatrist see appellant and to have the county consulting psychiatrist examine him.

Appellant’s attorneys did have a psychiatrist see the appellant, but offered no testimony from him. On the other hand, Dr. Sher, the county consulting psychiatrist, testified that he had examined appellant during one of the recesses on the hearing and found that appellant’s thinking was clear, concise and logical and gave no evidence of any thought disorder; he concluded that appellant was of sound mind at the time of trial and expressed the opinion that appellant was sane at the time of the homicide.

Appellant testified that he had been given a Section 208 discharge from the army because he had been caught committing a homosexual act with his first sergeant.

Appellant’s attorneys on appeal by brief and in argument contend that the officers’ version of what appellant told them at the time of his arrest was not admissible because it was not found to be true. We have pointed out that he gave his own counsel practically the same testimony. Be this as it may, the holding of this Court in Whitaker v. State, 160 Tex.Cr.R. 271, 268 S.W.2d 172, clearly makes admissible statements made by appellant which lead to discovery of the whereabouts of the weapon used in the homicide.

We overrule appellant’s contention that a new trial should be granted so that a jury might hear the testimony we have before us relating to appellant’s sanity.

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


author: WOODLEY, Judge.

text:
    Ex parte Charley Clay POE, Alias Charles William Alexander.
    No. 38813.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Brown & Brown by Wm. V. Brown, Jr., Texarkana, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding attacking the validity of appellant’s confinement under a warrant of arrest, the Justice of the Peace having fixed his bond in the sum of $5,000 on a charge of fondling, a felony, and the District Judge having set bond at $1500 and remanded appellant to custody until such bond was entered into and approved.

It is made to appear that subsequent to the order appealed from an indictment has been returned and appellant has made bond.

Appellant’s attack upon the legality of his confinement under the warrant issued by the magistrate is moot. Ex Parte Bowles, 166 Tex.Cr.R. 346, 314 S.W.2d 108; Ex Parte Lumpkin, 165 Tex.Cr.R. 628, 310 S.W.2d 333; Ex Parte Davis, Tex.Cr.App., 290 S.W.2d 669.

The appeal is dismissed.


text:
    Billie Sol ESTES, Appellant, v. The STATE of Texas, Appellee.
    No. 36086.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    J. Byron Saunders, Tyler, John P. Den-nison, Pecos, Cofer, Cofer & Hearne, Austin, for appellant.
    R. B. McGowen, Jr., Dist. Atty., H. Darrell Glover, County Atty., Pecos, Weldon Holcomb, Former Dist. Atty., Smith County, Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from a conviction for felony swindling, appellant having been found guilty by a jury and assessed a term of 8 years.

The conviction was affirmed by this Court. Howevér, the Supreme Court of the United States granted certiorari; reversed the judgment of the Court of Criminal Appeals with costs, and remanded the cause to this Court for further proceedings not inconsistent with its opinion. (Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543.)

The opinion of the Supreme Court requires that appellant’s motion to reverse and remand this cause be granted.

Our prior opinions are withdrawn and the judgment of the trial court is reversed and the cause remanded.


text:
    Ramiro GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 38337.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 8, 1965.

      Marvin Foster, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., W. De-Witt Alsup, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, life.

The testimony of the state reveals that the appellant arrived home about 7 P.M., and approximately fifteen minutes later, his wife, the deceased, walking with four or five of their children, arrived; that when the deceased turned into the driveway she suddenly stopped, saying, “No, Ramiro (appellant), no! ”, then she turned and ran. As she ran the appellant shot her with a rifle and she fell; then the appellant walked to the street, raised the rifle to his shoulder and shot the deceased the second time; and he next went to the deceased and from a distance of one or one and one-half feet shot her the third time. After the third shot, the appellant went to the body and moved it with his foot.

An examination of the body of the deceased revealed three gunshot wounds: one large wound in the front portion of the neck or throat, one in the buttocks, and another beginning in the right shoulder and continuing through the right side of the body and exiting into the right hand. It was determined that the wound in the neck was the cause of her death.

Testifying in his own behalf, the appellant stated that he did not remember shooting his wife; • and he called several witnesses who testified that he was drinking during the afternoon and was drunk a short time before the shooting.

On cross-examination the appellant remembered going to several taverns and drinking beer but did not recall anything after 1 P.M. He admitted that he had seen a certain named woman other than the deceased on a good many occasions in the previous year but just for a period of two to four hours.

It is insisted that the v.rial court erred in refusing appellant’s request to inspect the prior written statement of the witness Padilla for the purpose of cross-examination.

The evidence reveals that the state’s attorney never showed, read, exhibited to or discussed said statement with the witness Padilla after it was made and signed on July 23, 1964; and that the witness never saw or used the statement to refresh his memory after it was executed and before or during his appearance as a witness on the trial of this case which began October 29, 1964. Said statement openly appears as an exhibit in the statement of facts which is approved by the trial counsel of the appellant and the attorney for the state. The appellant fails to point out any fact in the statement that could have been of advantage to him on the examination of said witness, and we do not perceive any. The refusal of the request was not error. Sewell v. State, Tex.Cr.App., 367 S.W.2d 349.

It is contended that the trial court erred in defining “malice aforethought” as the jury could have under it found one of three ultimate facts in the definition as constituting malice aforethought, and from a general verdict it could not be determined on which alternative theory the jury based its findings.

The definition complained of appears to be the same as the one given in the charge set out in 4 Branch (2) 542, Sec. 2194.1. When the definition as given, which is one paragraph, is taken and considered as a whole, it fairly and adequately defines malice aforethought. No error is presented.

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

Opinion approved by the Court.


author: McDONALD, Presiding Judge.

text:
    Ex parte Alvin T. BRUNNER.
    No. 38464.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Andrew Patton, John W. Chandler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben Ellis, W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant, relator in the court below, was arrested and taken into custody by virtue of the executive warrant of the Governor of this State, issued upon the requisition of the Governor of the State of New Mexico, where appellant and others allegedly “did knowingly combine with each other for the purpose of committing a felony, to-wit, defrauding.”

Appellant challenged the legality of his arrest and subsequent restraint by writ of habeas corpus before the Judge of the Criminal District Court No. 4 of Dallas County who, after a hearing, denied relief and remanded appellant to the custody of the sheriff of Dallas County to be delivered to the proper receiving agents of the State of New Mexico. From that order appellant gave notice of appeal.

There is no felony in Texas known as “defrauding”, and there is no showing in this record that there is such an offense in New Mexico. The warrant therefore fails to charge appellant with a crime under the laws of that state as is required by Section 3 of Article 1008a, Vernon’s Ann.C.C.P.

The judgment is reversed and the cause remanded.


text:
    Ex parte Dale Gene BULLER.
    No. 38465.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Andrew Patton, John W. Chandler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben Ellis, W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant, relator in the court below, was arrested and taken into custody by virtue of the executive warrant of the Governor of this State, issued upon the requisition of the Governor of the State of New Mexico, where appellant and others allegedly “did knowingly combine with each other for the purpose of committing a felony, to-wit, defrauding.”

Appellant challenged the legality of his arrest and subsequent restraint by writ of habeas corpus before the Judge of the Criminal District Court No. 4 of Dallas County who, after a hearing, denied relief and remanded appellant to the custody of the sheriff of Dallas County to be delivered to the proper receiving agents of the State of New Mexico. From that order appellant gave notice of appeal.

Our disposition of this case is controlled by our decision this day handed down in Ex parte Brunner, 396 S.W.2d 125. We adopt herein the opinion in Brunner, supra, as our opinion in this case.

The judgment is reversed and the cause remanded.