author: PALMORE, Judge.

text:
    Prince VINSON, Petitioner, v. Hon. Frederick M. WARREN, Judge, Campbell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    March 15, 1968.

      James L. Cobb, Jr., Covington, Eugene D. Smith, Cincinnati, Ohio, for petitioner.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for respondent.
   PALMORE, Judge.

In Vinson v. Commonwealth, Ky., 412 S.W.2d 565 (1967), this court reversed a judgment sentencing Prince Vinson to 10 years in prison following his conviction of involuntary manslaughter. KRS 435.022 (1). He had been tried on an indictment for murder and the case had been submitted to the jury under instructions covering murder, voluntary manslaughter, and involuntary manslaughter. The ground upon which the judgment was reversed was that the evidence did not justify an instruction on involuntary manslaughter. 412 S.W.2d at p. 568.

This is an original proceeding in this court by which Vinson now seeks to prohibit the respondent judge of the Campbell Circuit Court from conducting a new trial on the murder charge. He contends that under Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957), the conviction of involuntary manslaughter operated as an acquittal on the murder charge and the voluntary manslaughter charge embraced therein, and that a new trial will violate the Fifth Amendment proscription of double jeopardy.

We need not discuss whether the-principle of the Green case applies to-síate court proceedings. See, however, Blanton v. Commonwealth, Ky., 320 S.W.2d 626 (1959). The dispositive circumstance here is that in the event Vinson is convicted an appeal to this court will provide an adequate remedy. Prohibition will not lie. Hobson v. Curtis, Ky., 329 S.W.2d 565 (1959); Anderson v. Johnson, Ky., 314 S.W.2d 202 (1958).

Prohibition is denied.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, OSBORNE, and STEINFELD, JJ., concur.

HILL, J., dissents.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Rachel LAWSON et al., Appellees.
    Court of Appeals of Kentucky.
    March 15, 1968.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Ben D. Smith, Smith & Blackburn, Somerset, for appellant.
    Joe S. Feather, G. G. Teague, Jr., W. B. Early, Williamsburg, for appellees.
   DAVIS, Commissioner.

In this highway condemnation suit, the Department is acquiring 4.11 acres out of a tract originally containing 5.55 acres located within the city limits of Williams-burg. Prior to the taking, the property had frontage on Main Street for 550 feet and frontage on North 12th Street for 750 feet. Situated on the Main Street frontage, and undisturbed by the taking, are a frame dwelling and old store building. The house had been remodeled about thirty-seven years ago and was shown to be a 1½ story frame dwelling with brick foundation. The store building is of frame construction containing 1,360 square feet and in reasonably good condition, but it had not been used for about eight years prior to the date of trial.

The jury found a before market value of $35,000 and an after market value of $15,-000, which resulted in its verdict of $20,-000. The Department appeals from the judgment entered upon the verdict and asserts only that the verdict is excessive and “not sufficiently supported by evidence of probative value.”

Two appraisal witnesses for the Department fixed before values ranging from $25,000 to $25,500 and after values from $18,000 to $19,100. According to their evidence, the difference in before and after values ranged from $7,000 to $6,400. Three well-qualified witnesses for the landowners gave opinion evidence reflecting before values of $35,000 to $37,000 and after values of $15,000 to $15,500. The difference in before and after values according to these witnesses ranged from $20,000 to $22,-500.

Certain sales of other property which the witnesses considered to be comparable to the land involved here were referred to by witnesses for both sides. Particular significance was ascribed to a sale of a town lot two blocks from the land here being taken for $6,250. It was shown that the lot was unimproved and contained about 1.25 acres. There was evidence of a sale of another lot just across the street from the subject property for $6,000. That property was also unimproved and its dimensions were 150 by 158 feet. It is noted that the verdict allows about $4,866 per acre for the bare 4.11 acres being taken.

The sales just mentioned were of property lying more level than the property taken in this case. There are photographs in the record which depict the taken land as overgrown with timber and being quite hilly. The jury could have concluded that the property being acquired here, by reason of its topography, had substantially less value than the nearby lots to which the witnesses referred as comparable sales. The witnesses for the landowners undertook to refute the idea that the land being acquired was less valuable than that mentioned in the comparable sales by reason of its topography. The jury viewed the premises and heard all of the evidence. Although the verdict seems quite liberal, we are unable to say that it strikes the court at first blush as excessive, nor are we able to say that the evidence adduced by the landowners was so lacking in probative value as to fail to support the jury’s verdict. Upon the authority of Com., Dept. of Highways v. Parker, Ky., 388 S.W.2d 370, and Com., Dept. of Highways v. Burton, Ky., 398 S.W. 2d 689, the verdict is not regarded as palpably excessive.

The judgment is affirmed.

HILL, MILLIKEN, PALMORE and STEINFELD, JJ., concur.


author: CULLEN, Commissioner.

text:
    George SARVER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.
    Whyane C. Priest, Jr., Robert D. Simmons, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Morris Lowe, Commonwealth Atty., Bowling Green, for appellee.
   CULLEN, Commissioner.

George Sarver appeals from a judgment sentencing him to life imprisonment under the habitual criminal law, pursuant to a verdict finding him guilty of grand larceny and finding that he twice had been convicted previously of felonies. Some of his grounds of error relate to the trial of the immediate offense and some to the matter of previous convictions.

Sarver was charged with having stolen a truck load of beer. Upon information received from one Carl Arnold the police had searched a residence occupied by Sarver and one Priscilla Alexander and had found 99 cases of the beer. Sarver’s explanation was that Arnold had brought the beer to the residence in an automobile and had asked Sarver to keep the beer for him. However, Arnold testified on the trial that he and Sarver stole the beer.

Sarver’s first contention is that he was entitled to an instruction under RCr 9.62 on the necessity of corroboration of the testimony of the accomplice, Arnold. The contention is not valid because the presence of the stolen beer in Sarver’s possession was sufficient corroboration. Bowling v. Commonwealth, Ky., 286 S.W. 2d 889. The fact that Sarver denied participation in the theft did not destroy the corroborative weight of the inference of guilt arising from his possession of the beer.

Next, it is contended that evidence as to the beer found in Sarver’s place of residence should not have been admitted because the beer was discovered by an illegal search. Evidence taken on a hearing in chambers showed that Priscilla Alexander “paid the rent” on the residence and professed to have dominion over it, and that she freely consented to the search. Sarver testified on the hearing and did not claim control of the residence nor did. he deny that Priscilla had consented to the search. Under these facts the search with Priscilla’s consent was valid. 47 Am.Jur., Searches and Seizures, 1967 Supplement, pp. 85, 86; Annotation, 31 A.L.R.2d 1981; Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58. Furthermore, Sarver was arrested upon reasonable grounds (Arnold’s statement implicating Sarver) before the search was completed, which arrest authorized a search incident thereto. See Wilson v. Commonwealth, Ky., 258 S.W.2d 497; Annotation, 89 A.L.R.2d 780.

A third contention is that the trial court erred in overruling appellant’s request for an admonition that the jury was not a law-enforcement agency, which admonition was claimed to be necessary by reason of a statement by the prosecuting attorney, in his closing argument, that: “as you sleep there is little to protect your property except the law which is the jury and these good officers whose only interest is in protecting your property. They have done their part. It is now up to you.” In our opinion the statement was within the scope of proper argument and no admonition was required. See McGee v. Commonwealth, Ky., 395 S.W.2d 378; Breckinridge v. Commonwealth, 97 Ky. 267, 30 S. W.2d 634.

As his next point appellant argues that there was no proper proof of his prior convictions and therefore he should have had a directed verdict on the habitual criminal charge. He maintains that the record books showing the prior convictions had to be “introduced in evidence” in the form of exhibits, and that the mere reading of the records by the clerk, from the record books, was not sufficient. We think that the reading from the record books was a sufficient “introduction in evidence,” under the holdings in Helton v. Commonwealth, 274 Ky. 697, 120 S.W.2d 245, and Johnson v. Commonwealth, 298 Ky. 222, 182 S.W.2d 656.

Finally, it is contended that the trial court erred in not admonishing or instructing the jury that evidence of the prior convictions was not to be considered in determining guilt or innocence of the immediate offense being tried. It is a sufficient answer that appellant did not request such an admonition or instruction and did not raise the question in a motion for new trial (no motion for new trial was made). See Hartsock v. Commonwealth. Ky., 382 S.W.2d 861.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    NI-BE, INC., Appellant, v. Harold MOBERLY, Commissioner, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    William A. Young, Frankfort, for appellant.
    Frank M. Dailey, Dailey & Fowler, John D. Darnell, Chancellor & Darnell, Frankfort, for appellees.
   STEINFELD, Judge.

Ni-Be appealed to the Franklin Circuit Court from two final orders of the Alcoholic Beverage Control Board revoking licenses after finding Ni-Be guilty of violating a regulation and statutes regulating the sale of alcoholic beverages. The appeals were consolidated and after a hearing the circuit court affirmed the orders. It temporarily restrained the Board from enforcing the revocation pending this appeal. We affirm.

Appellant, Ni-Be, Inc., applied for a retail package liquor license, a retail drink liquor license, and a retail malt beverage license for the first floor of the premises located at Second and York Streets in Newport, Kentucky. KRS 243.030(6), (7) and 243.040. The Board, which we will refer to as ABC, demanded that Ni-Be lease the entire building instead of only the first floor. Ni-Be complied with this demand and the licenses were granted.

On February 15, 1965, Ni-Be entered into a contract with Richard Mattrella whereby the latter was employed as manager of the various businesses conducted on the licensed premises.

Renewals of all three licenses were applied for and these were mailed to Ni-Be on June 24, 1965. On that same day the ABC demanded the return of the licenses. Ni-Be refused to surrender the licenses and demanded that it be told the reason for being required to do so. On July 29, 1965, ABC cited Ni-Be to show cause why all of its licenses should not be suspended or revoked because KRS 243.100(4) was violated in that its manager, Mattrella, had been convicted of misdemeanors “directly * * * attributable to the use of - alcoholic beverages” and because ABC Regulation 3:10 had been violated in that there were stock transfers without application for new licenses. These matters were heard by the Board on August 27, 1965, and submitted for consideration. Before ruling ABC again cited Ni-Be to show cause why its licenses should not be revoked or suspended for violating KRS 244.120 in that it permitted the licensed premises to be disorderly. This matter was heard and on January 14, 1966, the ABC made findings of facts, reached conclusions of law, and adjudged Ni-Be guilty of all charges for which it had been cited. All three licenses were revoked and Ni-Be appealed to the Franklin Circuit Court. KRS 243.560. On January 21, 1966, the circuit court prohibited the ABC from revoking, cancelling, or suspending Ni-Be’s licenses or interfer-ring in any way with the privileges conferred by the licenses pending further orders of that court.

On February 16, 1966, a third citation was issued by the ABC directing Ni-Be to show cause why its licenses should not be revoked or suspended on the claims that it had hired an employee who had not been a resident of Kentucky for one year prior to his employment as required by KRS 244.090(1) (c) and because it had moved its retail package liquor store from the licensed part of the premises to another part of the building which was not licensed. After a hearing the ABC found Ni-Be guilty of both charges. It appealed to the Franklin Circuit Court and a second restraining order, similar to the first, was issued against ABC.

Subsequently, the circuit court sustained the ABC, dismissed the appeals and dissolved the restraining orders. On June 30, 1966, a special judge serving in the circuit court reinstated, pending this appeal, the injunctive relief previously granted.

Ni-Be contends that the record is “utterly and completely devoid of any evidence that Ni-Be, its agents, servants, and/or employees did on November 16, ,1965, permit and suffer (its) licensed premises to become disorderly” as forbidden by KRS 244.120. The alleged disorderly conduct was a fight on or near the licensed premises, involving a police officer and one Frank (Screw) Andrews. Police officers later went back to the premises and found another man, Julius Williams, standing on the entrance steps and blocking the path of the officers.

Ni-Be argues that the words of KRS 244.120, “permitting” and “suffering,” imply knowledge on its part. It also contends that “neither Andrews nor Williams were on the premises and that there is no testimony which places any of Ni-Be’s employees at or on the scene where these disturbances occurred or how such person might have participated in the disturbances by suffering, causing, or permitting them to occur.” Ni-Be cites cases which hold that there must be sufficient evidence to sustain a finding of guilty under KRS 244.120.

The Board counters by referring to evidence that Andrews was a caretaker of the premises at the time of these disturbances. The proof is not clear as to whether Andrews had some affiliation with the licensee or the owner of the premises. However, there was a contract between Ni-Be and its manager whereby the manager agreed not to permit Andrews to patronize, loiter or utilize the licensed premises. The manager in charge violated the terms of this contract and it was the behavior of Andrews which caused the premises to be disorderly.

The ABC found:

“FINDINGS OF FACT
“1. On November 16, 1965, the licensee did suffer and permit the licensed premises to become disorderly when one Frank (Screw) Andrews engaged in an altercation with two police officers of the City of Newport, Kentucky, on the licensed premises.
“2. On November 16, 1965, at approximately 3:10 A.M., officers of the Police Department of the City of Newport arrested one Julius Williams for obstructing an officer in carrying out his duties on the licensed premises.”

KRS 243.490 authorized ABC to revoke licenses for a violation of “ * * * any of the provisions of [KRS] Chapter 241, 243 or 244 * * *.” The licensee violated KRS 244.120.

In Webb v. Ky. Alcoholic Beverage Control Board, Ky., 291 S.W.2d 558 (1956), we said:

“Under KRS 243.570, the court in reviewing an order of the Board is limited to determining: (1) whether the Board acted without or in excess of its powers; (2) whether the order appealed from was procured by fraud; and (3) if questions of fact are in issue, whether or not any substantial evidence supports the order appealed from.”

There was sufficient evidence before the ABC to support its findings. “The usual rule that the factual finding of an administrative body is to be sustained if supported by substantial evidence” applies. Com., Dept. of Highways v. Cardwell, Ky., 409 S.W.2d 304 (1966). Affirming the orders of revocation and dismissing the appeal was proper. Webb v. Ky. Alcoholic Beverage Control Board, Ky., 291 S.W.2d 558 (1956).

It is unnecessary for us to consider the claims made by ABC of other violations or the defenses to those claims.

The judgment is affirmed; however, the restraining order shall not be dissolved until mandate issues.

All concur.


text:
    BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. C. C. ROYER et al., Appellees.
    Court of Appeals of Kentucky.
    March 8, 1968.

      John L. Dorsey, Jr., Frank N. King, Jr., Dorsey & Sullivan, Henderson, for appellant.
    Leonard T. Mitchell, Mitchell & Withers, Henderson, for appellees.
   STEINFELD, Judge.

An electric power company sought to condemn an easement for a transmission line. From a judgment based upon a jury verdict the power company appeals. We affirm.

C. C. Royer and Cleo Royer, his wife, are the owners of 152 acres of farm land in Henderson County. The farm fronts on U.S. Highway 60 and adjoins the University of Kentucky Community College property on its northeast side and runs right up to the Henderson city limits. It has frontage on U.S. Highway 60 of approximately 3,000 feet on its northwest side. The old Henderson-Corydon Road encircles the property on its south boundary. There are 4,410 feet of frontage on the old Henderson-Corydon or Wilson Station Road, all of which frontage is available for subdivision lots and highly desirable as such. The property is rolling land with only 12 acres in crop cultivation. There are improvements on the farm, in part consisting of a residence, barns and stables. It was purchased by Mr. Royer for the purpose of subdividing and plans have been made to subdivide the property.

At the time the Royers purchased the land, and at the time of condemnation, the Henderson-Union RECC owned an easement over the land for the construction and maintenance of an electrical power transmission line. That easement did not specify the exact width. Henderson-Union also had the right of reasonable ingress and egress and had the right to trim and remove trees, brush and other growth that might encumber the distribution line. That line had seven active poles and one stub pole. Henderson-Union also had the right to construct guy wires and other appurtenances in connection with these poles.

On September 30, 1965, Big Rivers Rural Electric Cooperative Corporation condemned an easement which was superimposed over almost all of the former easement held by Henderson-Union. The center line of the easement condemned is 3,390 feet in length and the easement is 100 feet in width except that it is reduced to 30 feet for a distance of approximately 112 feet in the area near the barns and stables. There are 12 single pole structures located on the right of way, there are four guy wires at one of the angles in the easement, there are three guy wires at the other end and there is another structure that is guyed with a single guy arm. Some of the guy wires have common anchors and there are approximately five anchors on the easement. The transmission line carries 69,000 volts. It will replace the existing distribution line and will be used for distribution as well as transmission of power. After the new transmission line was erected the poles in the old distribution line were removed and the distribution line was entirely rebuilt and strung on the transmission line poles under the new transmission lines.

Big Rivers also acquired the right to trim brush, remove trees and other structures that would be injurious to the lines and it acquired the right of ingress and egress so that it could have access to the transmission lines. Under the terms of the easement Big Rivers has the responsibility and liability to protect the landowners and is liable if any damage is done to animals, growing crops or to the landowners' property. The owners have the right to use their land for crops, pasture land, roadways or anything else that they want to put on the ground, except for trees, tall structures or anything that would interfere with the operation of the transmission lines.

The action was originally instituted in the Henderson County Court. KRS 416.-130; 416.230 to 416.310. The commissioners awarded the owners $5,500.00. All parties appealed, (KRS 416.060) and the jury in the circuit court awarded the owners $8,000.00. Judgment was entered on that verdict and Big Rivers has appealed. It claims that the verdict is excessive and should be set aside and that certain proffered photographs were erroneously excluded.

Mr. Melvin Hunt was the first valuation witness introduced by the owners. He had been in the real estate business for 20 years, was a realtor, had developed subdivisions and had appraised property. He explained the many factors which he had considered in estimating the before taking value and the after taking value. He said that he valued the property before the taking at $294,000.00 and thereafter at $256,000.00. The attorney for Big Rivers objected on three occasions when Mr. Hunt was testifying concerning what Hunt considered comparables. His objections were: “Object to that because of its size in relation to a 152 tract, ten acres”; “Object to that because of its size” and “Same objection there”. The court overruled the first objection, sustained the second objection and admonished the jury not to consider the sale being discussed and sustained the third objection. No other complaint, objection or motion was made by Big Rivers to the testimony of Mr. Hunt.

Mr. Hecht S. Lackey was the other appraiser who testified for the owners. He had been in the real estate business for approximately 35 years. He too described the property, explained what he considered its best use and based upon his experience in appraising, stated that the before taking value was $325,000.00. After relating the reasons for diminution in value he said that immediately after the taking the property as a whole would be worth $291,500.00 and that the difference was $33,500.00. There was no objection made nor should there have been because an experienced appraiser is not required to support his values by using comparable sales. Com., Dept. of Highways v. Sellers, Ky., 421 S.W.2d 581 (1967) ; Com., Dept. of Highways v. Blincoe, Ky., 418 S.W.2d 731 (1967) and Com., Dept. of Highways v. Reed, Ky., 414 S.W.2d 904 (1967).

On cross-examination, upon being asked what he took into account in fixing the sale price of the land, he explained that he had considered the same sales that Mr. Hunt had used and that he had considered “about all the land that’s been sold in that area.” He was interrogated as to various tracts that were sold. When he discussed one small tract counsel for Big Rivers moved “to exclude that sale as any indication of this because of its small size.” The objection was sustained and the jury was admonished not to consider that sale. Later that same attorney moved “to strike Mr. Lackey’s testimony because all of his comparable sales were not comparable and his testimony is without substantiation.” That motion was overruled. With the exception of one other objection which the court sustained and which related to the distribution easement, no other complaint was made regarding the testimony of Mr. Lackey.

In addition to claiming that the verdict was excessive, erroneous and not sustained by sufficient evidence the movant claimed that the court should grant the new trial because of its failure “to strike the exorbitant testimony of the witness, Lackey, when motion was made therefor by counsel for the plaintiffs”.

There was no motion to strike Mr. Hunt’s testimony so it must stand, and the motion to strike Lackey’s testimony was predicated upon the claim that the comparable sales he had used were not comparable and that “his testimony is without substantiation”. There is no merit in these claims, furthermore, counsel did not move that Lackey “be required to revise his estimates and base them only on the factors which properly could be considered. We announced the correct procedure in Com., Dept. of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967); Com., Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161 (1965); Com., Dept. of Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967).” Com., Dept. of Highways v. Stocker, Ky., 423 S.W.2d 510 (1968). In Stocker we said “For the reasons above stated and since counsel had failed to follow the procedure above referred to, the trial court did not abuse its discretion in refusing to sustain the motion for a new trial on the ground mentioned.” That same rationale applies in the case now before us.

The other contention for reversal is that the trial court erred in refusing to allow in evidence photographs offered by the condemnor which purported to show how subdivisions have been developed around transmission lines. Mr. Tom Laswell, a well qualified realtor, was testifying in chief for the condemnor and was discussing transmission lines when he was asked how they might “be integrated or designed into a subdivision.” Without objection he explained that this had been done in several subdivisions which he described but none were located in the area of the property being condemned. He was then asked if he had “any pictures which you have compiled of subdivision land after it has been developed with such lines through there ?” After replying that he had he was requested to “produce a few of them”. Objection to the photographs was promptly made and sustained. By an avowal, made out of the presence of the jury, he discussed what was revealed by these photographs taken of subdivisions in the state but located far distant from the Royer property.

To support this claim condemnor relies upon Com., Dept. of Highways v. Garland, Ky., 394 S.W.2d 450 (1965). We reversed there because of the refusal of the trial court to admit properly authenticated photographs which showed the improvements on the property being condemned. In Sloan v. Com., Dept. of Highways, Ky., 405 S.W.2d 294 (1966) we held that “ * * * trial courts are allowed a broad discretion in admitting or rejecting them. 20 Am.Jur., Evidence, Sec. 727 and Sec. 729.” The trial court in the case before us did not abuse its discretion in rejecting the photographs. It is our opinion that the testimony introduced that subdivisions have been developed around power lines was sufficient to enlighten the jury on that subject. We believe that these photographs of distant subdivisions had “no relevancy in establishing the fair market value of the appellee(s) land * * * Com., Dept. of Highways v. Quisenberry, Ky., 402 S.W.2d 427 (1966). See Craft v. Commonwealth, 312 Ky. 700, 229 S.W.2d 465 (1950); Frick v. Commonwealth, 313 Ky. 163, 230 S.W.2d 634 (1950); Loftin v. Howard, Fla., 82 So.2d 125, 57 A.L.R.2d 488; Levi v. Schwartz, 201 Md. 575, 95 A.2d 322, 36 A.L.R.2d 1241; 57 A.L.R.2d 1353; 73 A.L.R.2d 802; Potts v. People of State of Colorado, 114 Colo. 253, 158 P.2d 739, 159 A.L.R. 1410.

The judgment is affirmed.

HILL, MILLIKEN, OSBORNE and WILLIAMS, JJ., concur.

PALMORE, J., not sitting.


author: HILL, Judge.

text:
    Carroll Gene LYNCH, Appellant, v. John W. WINGO, Warden, etc., Appellee.
    Court of Appeals of Kentucky.
    March 8, 1968.
    Marshall P. Eldred, Jr., Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an appeal from a judgment overruling petitioner’s motion under CR 60.02 to prohibit his imprisonment after October 5, 1967, in a criminal conviction under which he was given a seven-year term in prison.

Appellant’s argument is contained in an able brief by appointed counsel, who did not represent him on his trial. The brief is divided into two parts: (A) That appellant is being held under a sentence which was fully satisfied on October 5, 1967; and (B) that the time appellant “served on parole” should be counted toward his period of maximum sentence.

Appellant was sentenced on September 27, 1960, to serve seven years in prison for possession of burglary tools.

In April 1963, appellant was released on parole. Shortly thereafter he was arrested and returned to prison for parole violation. In February 1965, after a hearing it was found he was not guilty of parole violation. He was thereupon again released from prison under the first order of parole.

On April 2, 1966, appellant was again imprisoned for a parole violation, and his parole was revoked.

It is the position of appellant that he is entitled to credit for the nineteen months elapsing between the date of his first parole and the date it was reinstated after the hearing in February 1965. With this contention appellee, through the office of the Attorney General, violently disagrees.

KRS 439.350 was in effect on the date of appellant’s conviction. This statute was repealed in 1962. It provided that:

“(1) The total time served in the prison and on parole shall not exceed the period of the maximum sentence, except:
* * * * * *
“(b) If a parolee is determined by the board to have violated the provisions of his parole the period of parole shall not be counted as a part of the period of the maximum sentence, if the board so determines.”

There was no “determination” by the board that there was a violation of his parole in April 1963.

The question is whether appellant acquired rights under KRS 439.350 which could not be taken away by the repeal of that statute and its replacement (also in 1962) by KRS 439.344. It is provided in KRS 439.344 that:

“The period of time spent on parole shall not count as a part of the prisoner’s maximum sentence except in determining parolee’s eligibility for a final discharge from parole as set out in KRS 439.354.”

Prior to the enactment of KRS 439.350 in 1956, the time of liberty on parole was not counted. Cf. Commonwealth v. Minor, 195 Ky. 103, 241 S.W. 856 (1922). Of course, during the life of this statute the term on parole was counted.

Appellant argues the proposition that he acquired rights under KRS 439.350 which he could not be deprived of by the enactment of KRS 439.344, for the reason that KRS 446.110 prohibits such an ex post facto law.

KRS 446.110 is quoted:

“No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.”

It should be noted that the statute last quoted refers to “offense committed * * * any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law.”

The grant of parole is not a right. It is a matter of grace or gift to persons deemed eligible for good behavior or for other reasons fixed by the parole board. Cf. Adams v. Ferguson, Ky., 386 S.W.2d 462. See also 41 Am.Jur., Prisons and Prisoners, § 44, p. 916, from which we quote: “Under the statutes which make an allowance for good conduct an act of grace, there is no question of infringement of constitutional rights by subsequent legislation restricting the granting of the favor.”

We do not think KRS 446.110 was intended to prevent the legislature from withdrawing a pure act of grace when it was under no obligation to grant such grace in the first place.

This question was not raised in the trial court.

Furthermore, KRS 439.358 clearly makes KRS 439.344 applicable to appellant by this language:

“The provisions of granting final discharges from parole, and the release from being again confined on the same sentence in the penitentiary following the granting of such discharge or following the restoration of the parolee’s civil rights, as set out in KRS 439.342 to 439.358, shall be followed in all cases of those persons confined or paroled before, on, or committed after June 14, 1962.”

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Charles Edward FREEMAN, and John Howard Tucker, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1967.
    As Modified on Denial of Rehearing March 29, 1968.

      Kenny Grantz, Louisville, for appellants.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for ap-pellee.
   OSBORNE, Judge.

Appellants are appealing from a judgment convicting them of the offense of dwelling house breaking. They received a sentence to the penitentiary. The facts from which the conviction arose are:

On April 21, 1966, the homes of Monroe Heuman and J. Carter Stewart were broken into and robbed. Mrs. Peter Ronald, a neighbor of J. Carter Stewart, shortly prior to the breaking and entering returned home from a shopping trip and observed a car backed into her garage. Appellant Freeman approached her from her garage and inquired if she wished to hire someone for yard work. She replied in the negative and Freeman got into the car in which there was another occupant and drove away in the direction of the Stewart home, which was on a dead-end street. Because of the suspicious actions of the appellant, Mrs. Ronald took the license number of the car which she subsequently furnished to the police. After the robbery was discovered, the police armed with the information furnished by Mrs. Ronald and a description of the property stolen, checked the registration of the automobile and found that it was owned by Maynard’s Auto. They proceeded to the address of this establishment at Sixth and Oak streets and upon arriving there observed the car in question being driven upon the lot. The officers approached the car which was occupied by appellants and observed in the back seat several articles which had been taken from the Stewart home. Appellants were then placed under arrest. Appellant Tucker and Freeman were charged with breaking and entering three dwelling houses. • In addition, appellant Tucker was charged with breaking and entering three more dwelling houses and a store. Three of the counts against Tucker and one of the counts against Freeman were reassigned and subsequently filed away. During the course of the trial the court directed a verdict of not guilty on two counts of dwelling house breaking against Tucker. Both appellants were found guilty on the two remaining counts of dwelling house breaking and Freeman was sentenced to five years on each to be served consecutively and Tucker to four years on each to be served consecutively, from which sentences they prosecute this appeal.

Appellants assigned six counts of error as follows:

1. The trial court should have suppressed the statements made by John H. Tucker before the trial.

2. The trial court should have discharged the jury because of improper statements made by the Commonwealth’s attorney in his opening statement.

3. The trial court should have directed a verdict of acquittal on the charge of breaking into the home of J. Carter Stewart because of insufficient evidence.

4. Error committed by the court in allowing property taken from the automobile to be introduced in evidence.

5. Improper closing argument of the Commonwealth’s attorney.

6. Failure to instruct in writing that the verdict must be unanimous.

We will discuss the foregoing contentions in their respective order.

Appellant contends that the trial court should have suppressed statements made by Tucker in the form of confessions before the trial because Tucker was not represented by counsel at the time these statements were made. The question of suppression of evidence prior to trial is a broad one. For those interested in pursuing the subject see SO A.L.R.2d 583. The federal courts first dealt with this matter in 1914 in the case of Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652. The holding of the Supreme Court in that case was later incorporated in the Federal Rules of Criminal Procedure 41(e) which now requires that a motion be made prior to trial to suppress improper evidence if the defendant has knowledge of the grounds on which to base the motion. Our Kentucky Rules of Criminal Procedure have no counterpart to 41(e). In Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303 (1920) the contention was made that the trial court should suppress evidence concerning liquor improperly seized, we held:

“In our practice the proper time, and the only time, in which objection can be made to the introduction of evidence * * * is when it is offered during the trial, * * *

The question next came before the court in 1922 in Commonwealth v. Meiner, 196 Ky. 840, 245 S.W. 890. This was a prosecution for possession and operation of slot machines. Before the evidence was introduced the accused moved the court to prohibit its introduction on the grounds that it was obtained by an unauthorized search and seizure and without a warrant. The court sustained the motion in chambers following which the Commonwealth stated in open court that it had no other evidence. The indictment was dismissed by the court and upon appeal we said:

“The action of the trial court in suppressing this evidence, whether it would or would not be competent on the trial, is unauthorized under the practice in this state. The competency of evidence unlawfully acquired, or procured in the execution of an unlawful search warrant cannot be drawn in question before it is offered on the trial. Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303; Dukes v. Commonwealth, 196 Ky. 60, 224 S.W. 74. The practice in the federal courts is different, but in this state it is ruled, in the decisions just referred to, that the competency of the evidence can only be challenged when offered on the trial.”

It doesn’t appear that the question was again raised until 1964 in Trevathan v. Commonwealth, Ky., 384 S.W.2d 500. At a preliminary hearing on the day of the trial, Trevathan’s counsel moved the court to suppress and exclude from evidence “any and all evidence pertaining to or alluding to a knife allegedly found in an outhouse on the defendant’s premises because the knife was discovered as a result of an illegal search and seizure.” The trial court sustained the motion ruling the knife itself could not be admitted in evidence. The motion was overruled to the extent that it allowed reference in the testimony to be made to the finding of the knife. This court reversed, citing Mapp v. Ohio, (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933. Although the court did not pass upon the timeliness of the objections it appears that we tolerated the motion to suppress. Even though we have no provision in our Kentucky Rules of Criminal Procedure comparable to Federal Rule 41(e) this fact should not preclude a trial court in a proper case from excluding incompetent evidence when at a pre-trial conference it is clearly apparent to the court that under no state of the facts would the evidence be competent. By so doing, the trial can in many instances be shortened and the issues simplified. In some cases it may eliminate the necessity of the trial altogether. RCr 8.16 seems to apply to this situation; it provides that “[a]ny defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.” However, the actions of a hasty judge could rule out evidence that if given a full-blown hearing might prove to be competent. This is a departure from the common law practice which required the objection to be made at the time the evidence is offered during the course of the trial.

For these reasons and in view of RCr 8.22 it seems the sounder practice today would be to leave the question of whether to suppress or not to suppress prior to trial to the discretion of the trial court reserving to this court the right to interfere only when that discretion is abused. We do not believe it was so abused in this case.

Appellant’s second contention of error is that the opening statement of the Commonwealth’s attorney was prejudicial in that he referred to a confession made by John H. Tucker. This statement was as follows: “As to the defendant Tucker on February 27th we will show by his own admission that he broke and entered the house of Venus Day and stole a T. V. set. And, on March the 18th, as to defendant Tucker, we will show by his own admission that he broke and entered the house of Alfred Williams and stole from that house.” It will be noted that nowhere in the statement of the Commonwealth’s attorney does he allude to any confessions taken or what was contained in the confession. It can be believed that this statement was made in good faith and that it referred only to what the Commonwealth expected to prove. Counsel has the right to direct the attention of the jury to all facts and circumstances that he in good faith believes will be allowed to develop in the evidence. Choate v. Commonwealth, 176 Ky. 427, 195 S.W. 1080, and Bynum v. Commonwealth, 248 Ky. 564, 59 S.W.2d 550. Appellants cite Bell v. Commonwealth, Ky., 404 S.W.2d 462 in support of their contention. The Bell case is distinguishable from the present situation. There the statement of the attorney referred to evidence of a previous crime which was clearly unrelated to the charge before the court.

Appellant next contends that the evidence was not sufficient to sustain the conviction. As has been pointed out many times before, it is well settled that circumstantial evidence is sufficient to sustain a conviction when the circumstances are so unequivocal and incriminating as to exclude every reasonable hypothesis of innocence. Here the web of circumstances pointed irrevocably to the guilt of appellants. Their presence near the scene at the approximate time of the burglary coupled with possession of the stolen goods makes a prima facie case of their guilt. The rule has long been that possession of stolen goods casts the burden upon him who possesses them to explain how and where they were obtained. Huskins v. Commonwealth, 299 Ky. 606, 186 S. W.2d 401 and Rains v. Commonwealth, 293 Ky. 429, 169 S.W.2d 41. The Commonwealth’s attorney aptly summarized this case in his closing argument when he advised the jury, “You have everything in this case except moving pictures of the crime itself.”

Appellants next contend that the evidence obtained at the time of their arrest was inadmissible. Here the police officers were advised that a felony had been committed and they had the description and license number of the automobile which had been seen under suspicious circumstances near the scene of the crime. They traced the registration of the automobile and upon locating it found the stolen articles clearly visible inside. Whereupon they made the arrest. There can be no serious contention that these facts do not constitute reasonable grounds to believe that the appellants had committed a felony. Thus the arrest being legal all evidence obtained incidental to it was properly admitted into evidence. Clark v. Commonwealth, Ky., 388 S.W.2d 622; Brewster v. Commonwealth, Ky., 278 S.W. 2d 63 and Foster v. Commonwealth, Ky., 415 S.W.2d 373.

Appellants’ next contention is that the Commonwealth’s attorney made unwarranted statements in his closing argument. The statement alluded to is as follows: “They jump out of the car, arrest these men right on the spot, promptly see all the stolen items and not one shred of evidence that these men didn’t commit this crime.” It is contended that this in effect was alluding to the failure of the appellants to take the witness stand and testify in their own behalf. We do not so interpret it. However, even if the prosecutor’s remarks be considered an indirect reference to the appellants’ failure to testify they were not so prejudicial as to authorize a reversal of the judgment. Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442. Likewise other statements complained of in appellants’ brief in our opinion were not prejudicial.

The last and final objection is made to the instructions. It is contended that they failed to require the verdict to be unanimous.

RCr 9.54 provides:

“It shall be the duty of the court to instruct the jury in writing on the law of the case. Objections to instructions shall not be necessary to preserve error. The instructions shall be read to the jury prior to the closing summations of counsel.”

RCr 9.82 provides:

“The verdict shall be unanimous. It shall be returned in open court.”

Examination of the record herein discloses that though the court did not give a written instruction on the required number to make up a verdict, it did at the conclusion of the written instructions state to the jury “you will select one among you as your foreman and it takes all 12 to reach a verdict. Otherwise, the jury is hung.”

We further find from the record that no request was made that the instruction be reduced to writing and that upon the return of the verdict no request was made for a poll of the jury. Under the circumstances, we believe it is now too late to raise this issue. Mulberry v. Commonwealth, Ky., 408 S.W. 2d 649.

The judgment is affirmed.

All concur.


author: GREENHILL, Justice.

text:
    F. J. P. MEYER, Petitioner, v. WESTERN FIRE INSURANCE COMPANY, Respondent.
    No. B-519.
    Supreme Court of Texas.
    March 13, 1968.
    John S. Wade, Austin, for petitioner.
    Brown, Sparks, Erwin, Maroney & Barber, Will Barber and Michael T. Johnson, Austin, for respondent.
   GREENHILL, Justice.

This is a workmen’s compensation case involving the statute dealing with the use of automobiles by employees. The plaintiff was injured in an automobile accident in Austin, Texas, and sought compensation. The question is whether the plaintiff was, under the statute, within the scope of his employment when he was injured. Reduced to its simplest terms, the problem is whether he was already working, or was simply on his way to work, at the time of the accident. The trial court entered a summary judgment for the defendant insurance company, holding that as a matter of law the plaintiff was not within the scope of his employment; i.e., he had not begun to work for his employer within the terms of the statute. The Court of Civil Appeals, by a divided court, affirmed. 418 S.W.2d 318. The plaintiff is here contending that there is an issue of fact as to whether he was acting in the scope of his employment.

The only proof presented on the motion for summary judgment was the deposition of plaintiff Meyer. He testified that he was employed as a service supervisor by a home builder. He worked irregular hours, partly at home, partly at his employer’s office, and partly in making service calls and inspections of the various homes built by his employer. He made simple repairs himself, but his usual job was to send out repairmen to correct problems after he had received complaints or made inspections. He was given discretion, except upon emergency calls from his employer’s office, to determine when and where to make service calls for his employer. He was supposed to exercise his own judgment in these matters. He furnished his own transportation, and his means of transportation was not paid for or controlled by his employer. His duties did not require him to report to the office daily or at any particular time. Although he “liked to get by” the office once a day to pick up messages, he did not always do so. He did not have a desk at his employer’s office, and he usually received complaints and did his required paper work at his home.

On the day of the automobile accident and resulting injury, Meyer began the working day at home by taking two business telephone calls from Fairview Addition homeowners and completing some paper work in preparation for a meeting at the office that afternoon. He testified in his deposition that he then left his home to make service calls in a subdivision in Northeast Austin. Although he was not required to report to his employer’s office that morning and had no duties to perform there, he decided to drive by the office on his way to the subdivision to determine whether there were any messages relating to service calls in Northeast Austin, so that he could perform all his work in that area at one time. The automobile collision occurred before he reached his employer’s office, and on the usual and customary route between Meyer’s home and the office.

Article 8309 § lb of our workmen’s compensation statute, quoted below, precludes recovery of compensation for injuries received in the course of transportation or travel, unless the conditions of that statute are met:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

Although the general rule is that injuries sustained by a worker while traveling on the public streets or highways are not incurred in the course of employment, an exception to this general rule is when an injury occurs when the worker is traveling on the public streets or highways pursuant to express or implied conditions of his employment contract. Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.Sup.1963); Smith v. Texas Employers’ Insurance Association, 129 Tex. 573, 105 S.W.2d 192 (1937).

In the Jecker case, cited above, we held that the adoption of Section lb of Article 8309 did not abolish this exception to the general rule. It was there stated:

“But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidently injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen’s Compensation Act.”

Since Meyer’s transportation was not furnished, paid for, or controlled by his employer, he can recover under Article ■8309 § lb only if he was “directed in his employment to proceed from one place to another place” within the meaning of that section. In Jecker we construed this provision to “include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment.” That case also established the following rule for injuries incurred by a worker during travel when his transportation was not furnished or controlled by the employer:

“There is evidence that he was in the course of employment if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in the performance of his duties and (2) that he would have made the trip had there been no personal or private affairs to be furthered and not have made it had there been no business of his employer to be furthered.” 369 S.W.2d at 779.

The application of these principles expressed in the Jecker case convinces us that the summary judgment entered for the insurance company was erroneous. Plaintiff Meyer’s duties as a service supervisor required him to travel from place to place in order to discharge the duties of his employment. Thus there is evidence that he was impliedly directed to travel to make his service calls on the morning of the accident, and injuries thus sustained while furthering his employer’s business by making such service calls would be compensable under Article 8309 § lb and the Jecker case.

The deposition supports the contention that Meyer was not on his way to begin work, or to be assigned work; but that he had already begun work and was traveling on the streets to make service calls pursuant to his usual duties, and merely deviated to his employer’s office to see if there were other duties to be performed in the neighborhood of his planned service calls. Assuming that the evidence upon trial on the merits were to establish that Meyer was not reporting to work or to be assigned work at his employer’s office, his deviation to his employer’s office while in the course of his usual service calls would not place him within the category of workers driving from home to work, as in Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745 (Tex.Sup.1965); Hackfeld v. Pacific Employers Insurance Co., 393 S.W.2d 720 (Tex.Civ.App. 1965, writ ref’d n.r.e.); and Maryland Casualty Co. v. Thomas, 367 S.W.2d 407 (Tex.Civ.App.1963, writ refused). Thus, it is not conclusively established that Meyer is barred from recovery by the “coming and going” rule which provides that injuries occurring on the public streets in going to and coming from work are noncompensable.

Furthermore, assuming Meyer’s deposition testimony is established as fact, he is not barred from recovery under the “dual purpose” test contained in the second part of Section lb, which reads :

“Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of the personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

If Meyer merely deviated to his employer’s office to determine whether there were any additional duties he could perform in the neighborhood of his planned service calls, the deviation would not be for personal reasons; the deviation would be in furtherance of the employer’s business and impliedly directed by the employer as the most efficient manner of performing Meyer’s duties as service supervisor. See Janak v. Texas Employers’ Insurance Ass’n, 381 S.W.2d 176 (Tex.Sup.1964).

Under these circumstances, the deposition of plaintiff Meyer created a fact issue as to whether he was injured in the course of employment, and therefore the summary judgment was erroneous. Respondent’s contention that the error was not preserved by Meyer’s motion for rehearing in the Court of Civil Appeals is overruled.

The judgments of the courts below are reversed and the cause is remanded to the district court for a trial on the merits.

      . Vernon's Texas Annotated Civil Statutes.


author: WOODLEY, Presiding Judge.

text:
    Ernest Leroy IVEY, Appellant, v. The STATE of Texas, Appellee.
    No. 41084.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 10, 1968.

      John W. O’Dowd, John Michael lile, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph W. Doucette and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is misdemeanor shoplifting, a prior conviction for a like offense being alleged; the punishment, two years in jail and a fine of $2,000 (Art. 1436e, Sec. 4, Vernon’s Ann.P.C.).

The information alleged that appellant was legally in a retail business establishment, to-wit, Rice Food Market, as an invitee and licensee and that he removed from its place in said establishment six cartons of cigarettes of the value of less than $50 which were being kept, stored and displayed for sale in said establishment, with the intent to fraudulently take said property and deprive Harold Carney, the owner thereof, of the value of the same and to appropriate the same to his own use and benefit.

Appellant’s motion to quash the information, on the ground that it did not point out with sufficient clarity the location of the store where he allegedly committed the offense of shoplifting, was properly overruled. Blankenship v. State, Tex.Cr.App., 390 S.W.2d 767.

The contention that the /value of each carton of cigarettes should have been alleged is without merit. The value of the six cartons was alleged to be under $50.00.

The portion of the information alleging a prior conviction of the offense of shoplifting, giving the offense, the date of the conviction, the number of the case and the court in which the conviction was had, was sufficient and the trial court did not err in refusing to quash the information.

In view of other grounds of error we deem it appropriate to summarize the state’s evidence.

Harold Carney testified that he was store manager of the Rice Food Market at 9223 Stella Link, located in Harris County, and was so employed and on duty on October 20, 1966; about 9:30 A.M. he observed appellant standing at the cigarette rack and saw him put six cartons of Camel Cigarettes in the shopping type basket he had. He next saw appellant as he was going through an unoccupied check-out stand with nothing in his hands. He and his butcher, Carl Cox, stopped appellant in the parking lot.

Carl Cox testified, that he saw appellant take six cartons of Camel Cigarettes out of his basket and put three cartons in each leg of his carpenter’s overalls; saw him go through the unattended check-out stand without paying for the cigarettes, leaving his basket in the aisle. He followed appellant outside the store and stopped him. Appellant was taken back into the store and the six cartons of Camel Cigarettes, still having the tags attached which would have been removed had the cigarettes been paid for, were recovered.

The clothing worn by appellant at the time was described as a pair of baggy carpenter’s overalls over a pair of regular Levi’s, the legs of the Levi’s and the overalls being sewed together a few inches from the bottom.

When asked: “Was the defendant in the store as a licensee and husinessee ?” the witness Cox answered “NO.” When asked: “Was he a customer?” he testified, “Yes, he was a customer.”

The witness Carney testified that appellant was a customer and not an employee; that, as manager of the store, he had the care, custody and control of not only the cigarettes but all of the items in his store and that he did not give appellant consent or permission to take any of the items from his store.

No error is reflected in the action of the court in allowing a state witness to make a drawing of appellant’s clothing on a blackboard. The drawing is not before us. The clothing which appellant was wearing at the time was described by the witness and there is nothing in the record to show that the blackboard drawing did more than to clarify the testimony of the witness.

The contention that venue was not proved is without merit. The witness Cox testified that the particular Rice Food Market was in Harris County, Texas. Officer Johnson, who found appellant in the storage room when he responded to the call and took him to the police station, testified that the Rice Food Market where he saw appellant was in Harris County, Texas.

In the absence of objections in writing, timely filed, as required by Art. 36.14 Vernon’s Ann.C.C.P., the grounds of error relating to the court’s charge are not before us.

Ground of error No. 6 complains that the state argued: “The items in the store are owned by the store. If it is a corporation, it is owned by the corporation.”

This remark was in the closing argument of counsel for the state, after appellant’s counsel had argued that the state had not proved that Harold Carney was the owner of “these particular cigarettes,” or that appellant was an invitee or licensee, but only that he was “a customer.”

Ground of error No. 7 is closely related in that following the overruling of appellant’s objection to the above quoted remark on the ground that it constituted unsworn testimony, counsel for the state requested a charge on “ownership” and the court announced that, in view of the argument of appellant’s counsel, he would add to the charge a charge on “ownership” and also a definition of “invitee” and “licensee,” which he did over appellant’s objection, allowing appellant’s counsel time to object and for further argument.

Appellant vigorously objects to the trial ■court’s statement that he would stop the trial and give the additional instructions as a comment upon the weight of the evidence, and to the giving of the “new charge.” He complains of the court’s remark in the presence of the jury as his ground of error No. 8.

Art. 36.16 V.A.C.C.P. provides in part:

“After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel * *

In the jury’s absence the court tendered the charge as amended to appellant’s counsel for his objections and allowed him an additional five minutes for argument to the jury and, in connection therewith, stated: “I thought the argument you were making to the jury was calculated to mislead them and that is why I amended the charge.”

No objections in writing were addressed to the charge as amended. We find no abuse of discretion on the part of the trial court in the matter.

The remaining grounds of error relate to the hearing before the jury on the issue of punishment at which hearing the portion of the information alleging a prior conviction for shoplifting was read and proof was offered to sustain such allegation and to show two prior felony convictions.

The prison records showing such felony convictions, properly certified, were admissible without further predicate. Young v. State, 170 Tex.Cr.R. 498, 341 S.W. 2d 911; Barfield v. State, 168 Tex.Cr.R. 7, 323 S.W.2d 455; Davis v. State, 167 Tex. Cr.R. 524, 321 S.W.2d 873; Stockwell v. State, 166 Tex.Cr.R. 577, 316 S.W.2d 742.

Fingerprints obtained from appellant in the absence of his counsel while he was in custody were admissible for comparison purposes. De La Rosa v. State, Tex.Cr. App., 414 S.W.2d 668; Platt v. State, Tex.Cr.App. 402 S.W.2d 898.

The judgment is affirmed.


author: ONION, Judge.

text:
    Robert Eauntan BUFFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 41099.
    Court of Criminal Appeals of Texas.
    March 6, 1968.
    Rehearing Denied April 10, 1968.
    David Candish, Dallas (by Court appointment), for appellant.
    Henry Wade, Dist. Atty., Joe Max Nend-ley, Kenneth E. Blassingame and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, 45 years confinement in the Texas Department of Corrections.

Appellant, in his sole ground of error, challenges the sufficiency of the evidence to sustain his conviction.

The record reflects that on a street in the city of Dallas during the early morning hours of Christmas Day, 1965, Geraldine Murrell, a woman with whom appellant had been living, suffered a gunshot wound from which she succumbed.

It appears that the appellant, also known as Pete, returned after 10 p. m. to the home of Roberta Rosebud on Christmas Eve following a round of beer drinking. At such time appellant was heard by a witness to inquire of the deceased, who was present, “why she wasn’t at home,” and “what was she doing there with her boy friend.” An argument ensued and appellant and the deceased retired to a back room. Shortly thereafter this same witness heard the deceased ask appellant, “why did he hit her,” to which the appellant was heard to respond, “Well, you hit me and I hit you,” though the witness did relate that when they returned to the main room of the house they had “stopped arguing and seemed to be okay.”

Corrine Morgan, the same State’s witness referred to above, further testified she left the Rosebud residence with the appellant and the deceased near midnight. She related that she was walking approximately 20 feet ahead of the others when she heard the deceased ask the appellant, “did he think that she is going to let him beat her because he is taking care of her,” and that then a shot was fired.

Upon hearing the shot, the witness Morgan related she turned and saw the deceased on the ground, and upon approaching- her observed a bullet wound in the deceased’s left side and heard her say, “Pete has shot me.”

Perry Goodall, a City of Dallas Police Officer, testified that shortly after midnight on December 25, 1965, he had observed the threesome described above walking on Merlin Street, and that soon thereafter he saw the same threesome in the 2900 block of Ash Lane, but this time the witness Morgan and the appellant appeared to be assisting the deceased.

In response to Officer Goodall’s inquiry if the woman had had too much to drink, appellant replied in the affirmative, but later told the officer she had been struck by a Mercury automobile. After walking to the end of the block with Officer Goodall, appellant pointed to an entirely different make of automobile parked in a nearby shopping center. At such time Goodall returned to the two women where he discovered the deceased had been shot, found a .22 caliber revolver on a coat lying on the ground nearby, and then observed that the appellant had fled the scene.

Responding to Officer Goodall’s call and description of the appellant, two other police officers arrested the appellant and returned him to the scene.

Dr. E. F. Rose, Dallas County Medical Examiner, testified Geraldine Murrell died of a gunshot wound of the liver, that the blood alcohol content in her body was 0.046 per cent, or “about two 12-ounce bottles of 4 per cent beer.”

Testifying in his own behalf appellant admitted he had a brief argument with the deceased at the Rosebud house, but contended that it had ended before they left for home. He related that he was attempting to change the .22 caliber revolver that he was carrying home for a friend from one of his pockets to another when it accidentally discharged, shooting the deceased. He denied that he had inquired about the deceased’s boyfriend or that the deceased made the statement attributed to her by the witness Morgan just prior to the fateful Yule time shooting.

He stated that he left the scene after the officer’s arrival because he was afraid, and because earlier in the evening the deceased had informed him that he was wanted by the police for failure to make child support payments. He admitted a previous conviction for assault to murder.

Willie Biggins, who had previously been convicted of five felonies, testified for the appellant and claimed ownership of the revolver in question. He related that when he and the appellant had left the Rosebud residence early on Christmas Eve night to go beer drinking that he had hidden the pistol so that it would not be on him in case of an arrest; that he had requested appellant to retrieve it from its hiding place and carry it home since they lived at the same address. He testified that some three weeks earlier that the revolver had accidentally discharged shooting him in the leg.

Another defense witness corroborated Biggins’ statement as to the earlier accidental discharge of the revolver.

Roberta Rosebud, a defense witness, stated that the deceased made a dying declaration in the ambulance on the way to Parkland Hospital to the effect, “Don’t let them do anything to Pete; he didn’t do anything to me.”

In rebuttal, the State offered the testimony of Lt. F. T. Alexander of the Dallas City Police, a firearm expert, who related that he had conducted multiple tests on the gun in question and had determined from some 30 tests that the average trigger pull on the revolver was 3-,½ pounds for each test, which was normal for a gun of that size; that a trigger pull of a pound or less is dangerous; that he had been unable to cause the revolver to accidentally discharge and he could find no other way to fire the weapon other than pulling the trigger.

The trial court charged the jury on the defensive theory of accident, and in viewing the evidence in the light most favorable to the State as we are required to do, we deem the evidence sufficient to support the jury verdict.

The judgment is affirmed.


text:
    James McCANDLESS, Appellant, v. The STATE of Texas, Appellee.
    No. 40917.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 10, 1968.

      Paul W. Anderson, Reagan Huffman, Marshall, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, life.

The indictment charged the appellant with the murder of his wife, Geraldine, on July 29, 1966, by drowning her in water (in a well).

At the outset appellant challenges the admissibility of both his oral and written confessions. It is his contention that neither confession meets the standards required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applicable since the trial commenced on February 14, 1967, long after the effective date of such decision (June 13, 1966). See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Evans v. United States, 37S F.2d 355 (8th Cir); Fendley v. United States, 384 F.2d 923 (5th Cir).

It will therefore be necessary for us to examine the facts at some length.

N. F. Shivers, a deputy sheriff of Harrison County, testified that on July 30, 1966, at 6:30 a. m. he received a call that the deceased was missing, and went immediatly to the home of Charlie Hayner, an 85-year-old invalid by whom Mrs. McCandless was employed as nurse-maid, and where she lived for six days each week. Upon arrival Shivers found Mr. Hayner’s daughters and the appellant (who did not live there) present. He discovered that the deceased’s bed was bloody and there were signs of a struggle; that her suitcase and other possessions were missing, with the exceptions of her glasses, Bible and one dress belt. While there he learned from Mrs. Wyatt Moore, one of Mr. Hayner’s daughters, that the appellant and the deceased had been having marital difficulties and that two weeks before appellant had tried to choke the deceased “to death.”

Appellant was then requested to meet Shivers at the courthouse in Marshall, whereupon they went to the District Attorney’s office. There appellant was informed that he was under investigation and his consent to take a polygraph test was obtained. Observing abrasions on the appellant’s ear and hand and what appeared to be dried blood on his fingernails, Shivers gave appellant a “pretty good manicure” following their return to the Sheriff’s office. At some time while the appellant was in the courthouse, Shivers made an inspection of the tires on appellant’s station wagon parked nearby. At approximately the time appellant left the courthouse, Deputy Sheriff Shivers related that he received a call that the body of a woman had been found in a water well of a church near Leigh, Texas.

The District Attorney, Shivers, and other officers went immediately to the scene where Shivers assisted in removing the body from the well. While there Shivers observed nearby tire tracks identical to those of appellant’s station wagon and took pictures thereof.

Thereafter it appears that the District Attorney radioed ahead to certain police officers. At approximately high noon a City of Marshall policeman arrived at appellant’s house and informed him that the District Attorney was on his way and that appellant was to “stay here.” The officer remained outside the house in his patrol car until the arrival of the District Attorney. Upon arrival the District Attorney walked through appellant’s house looking around and then he and a deputy sheriff carried appellant to the Sullivan’s Funeral Home where appellant identified the body of a woman taken from the well as his wife. Following such identification the District Attorney took appellant and an employee of the funeral home into an ante-room, where appellant, after being told again that he was under investigation, orally stated that he had killed his wife and had burned her belongings in another part of the county from where he had left her body in the well.

The District Attorney testified that thereafter he called officers from the courthouse who came to the funeral home and arrested appellant. At such time appellant then led the officers to an isolated spot where they recovered a burned portion of a suitcase, etc.

Appellant was booked into the county jail at 3:14 p.. m. on Saturday, July 30, 1966. It appears at 8:40 a. m. on Sunday, July 31, 1966, that the appellant was taken before J. G. Stauts, a Justice of the Reace in Harrison County. Thereafter it appears a written confession was obtained from the appellant by the District Attorney.

In answer to appellant’s claim that the oral confession was inadmissible it is the state’s theory that the appellant was not under arrest or subjected to custodial interrogation at the time of his oral statement, or if he was, the requirements of Article 38.22, Vernon’s Ann.C.C.P. as to oral confession have been satisfied.

We need not, however, decide the question for we observe that it was the appellant, not the state, who elicited evidence as to the oral confession in the presence of the jury. No error is perceived.

We now turn our attention to the admissibility of the written statement.

The warning portion of appellant’s rather lengthy statement dated July 31, 1966, in which he admitted placing his wife in the well after choking her, reads:

“I, James McCandless, after being duly warned by Charles A. Allen, the person to whom this statement is made, that I have a right to retain a lawyer, which I hereby waive, that I do not have to make any statement at all and that any statement made by me may be used in evidence against me on my trial for the offense concerning which the confession is made, do hereby make the following free and voluntary statement:
“On July 31, 1966, at 8:40 o’clock a. m. I was taken before J. G. Stauts, a magistrate, at Marshall, Harrison County, Texas. At that time, such magistrate informed me of the accusation against me together with all affidavits filed with such accusation; he also advised me of my right to retain counsel, of my right to request the appointment of counsel if I was unable to obtain counsel, of my right to an examining trial, and that I was not required to make any statement and that any statement made by me may be used against me on my trial for the offense concerning which the statement is made. The magistrate also allowed me a reasonable time and opportunity to consult counsel.”

In addition, the testimony offered supports the fact that prior to giving the confession the appellant was taken before Judge Stauts, who gave him the warning required by Article 15.17, V.A.C.C.P., and that thereafter the District Attorney, the person to whom the confession was given, gave appellant the warning required of such person by Article 38.22, V.A.C.C.P.

The majority of this Court held in Charles v. State, 424 S.W.2d 909, the warnings required by these two statutes in effect at the time of appellant’s arrest and trial were as “fully effective” as the warnings-required by Miranda v. State of Arizona, supra, and satisfied the holding of Miranda. See this writer’s dissent in Charles v. State, supra.

There is more in the case at bar however. The District Attorney testified that after the magistrate’s warning he also warned the appellant as to his right to either retained or appointed counsel as well as his privilege against self-incrimination. While the testimony relative to the right to counsel warning does not reflect the express statement that this meant counsel prior to interrogation, there is certainly no claim that it was limited to mean counsel after he got to court. See Fendley v. United States, 384 F.2d 923.

Being satisfied that the warnings given meet the requirements of Miranda, we must now consider the question of waiver as also required by that decision.

Miranda, of course, teaches that a heavy burden rests upon the prosecution to prove that a person in custody “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S.Ct. at 1628.

In United States v. Hayes, 385 F.2d 375, the Fourth Circuit Court of Appeals stated:

“In reiterating the strong presumption against waiver and the high standards of proof needed to overcome this presumption, the Court in Miranda relied upon Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in which the Court unequivocally stated:
“ 'The determination of whether here has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’
“Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023. Similarly, in a post-Miranda decision, the Fifth Circuit observed:
“ ‘ * * * the cases in which it is clear that the warnings have been given must be considered on their own facts in order to determine the question of waiver. The courts must do this on an ad hoc basis, since no per se rule has thus far been adopted dealing with this problem.’
“Narro v. United States, 5 Cir., 370 F.2d 329-330 (1966).”

While Miranda was not as explicit as it might have been regarding what constitutes an acceptable waiver, the majority opinion did say:

“An express statement that an individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

We turn now to an examination of the facts and circumstances of the case at bar to determine if they sufficiently demonstrate a “knowing and voluntary” waiver.

While it is difficult to determine from the record whether the District Attorney, who was the state’s principal and only witness as to the written confession, was testifying or making a statement to the court, he did state he was present when the magistrate gave his warnings and that thereafter in the magistrate’s presence the appellant waived his right to an attorney.

It is observed in the appellant’s written statement that he expressly waived his right to retained counsel and stated that after the warnings given he was making a free and voluntary statement.

Such statements in a confession are factors to be considered in determining if the accused affirmatively waived his rights, but it is not determinative thereof. See this writer’s concurring opinion in Torres v. State, Tex.Cr.App., 422 S.W.2d 741.

“Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government’s burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.” United States v. Hayer, 385 F.2d 375.

While there is no written waiver ás to the right to appointed counsel, we observe that at the time of his arrest it was shown that appellant was employed and owned a 1963 Chevrolet station wagon and no claim is made that appellant was indigent at that time, though some six months later the court did appoint him counsel. See Footnote 43, Miranda. In State v. Gray, 268 N.C. 69, 150 S.E.2d 1, it was held that inasmuch as there was nothing to show that the defendant was indigent at the time of his arrest and interrogation, the failure of the police officers to advise him of the 'right of an indigent to have counsel appointed did not violate the defendant’s constitutional rights against self-incrimination and would not render any statements he made to officers inadmissible. See also Commonwealth v. Wilbur, 2 Cr.L.R. 2271.

Likewise, it would logically follow that if an accused not shown to be indigent at the time, is fully warned as to his rights to the appointment of counsel if destitute, but informed as well of his right to appointed counsel if he “was unable to obtain counsel,” then the failure to show a waiver of his right to appointed counsel does not depiive him of his constitutional rights or render any statement made inadmissible.

At the time of the confession the appellant was a 55-year-old man with a high school education who had taken a business course by correspondence. While it appears he followed the construction trade as a carpenter most of his adult life, the record shows he also worked as a motel manager in various parts of the United States. It further appears that before appellant signed the statement in the presence of five witnesses, he made and initialed nineteen corrections on said statement. While appellant could not recall making the statement, it is noted that while testifying on the motion to suppress as to the corrections made on the written statement he pointed out to the District Attorney that he was a better speller than the prosecutor.

We find nothing in the record that would support a finding that this appellant was threatened, tricked, or cajoled into a waiver. There does not appear to be any question of physical or psychological coercion. While the exact length of the interrogation is not shown, the record supports the conclusion that it was concluded Sunday morning, July 31, 1966, following the double set of warnings. There is further no showing of incommunicado incarceration which would mitigate against the finding of a valid waiver.

While the “waiver” was not here demonstrated by the prosecution in the most effective or desirable manner, we feel when the “totality of the circumstances” are considered the evidence is sufficient to show that the state has discharged its burden and the appellant made a constitutionally permissible waiver as required by Miranda.

The trial judge overruled the motion to suppress and found the written confession voluntary. Thereafter the issues as to the voluntariness of both confessions were submitted to the jury in the court’s charge.

Appellant’s first ground of error is overruled.

Appellant’s ground of error as to the failure of the trial court to grant his special requested charges are not before this Court for review, for there is no showing that such charges were presented in writing to the court prior to the reading of the charge to the jury. See Article 36.15, V.A.C.C.P.

Attention is directed to the recent decision of this Court in Smith v. State, 415 S.W.2d 206, holding that Articles 36.14 and 36.15, V.A.C.C.P., control over the provisions of Article 40.09, Sec. 4, V.A.C.C.P., concerning the effect of the certification of a transcription of the court reporter’s notes as to objections, etc.

Appellant next complains that he was deprived of his federal constitutional right to a trial by a fair and impartial jury because the trial court failed to grant his motion to quash the jury after its selection on the ground that all twelve jurors bad no conscientious scruples against the infliction of the death penalty. No testimony was adduced on the motion, and the voir dire examination of the jury panel was not brought forward in the record. There is therefore no showing that the jurors selected were qualified on the death penalty. This ground of error is not before ns for review. Even if there had been a showing that the jurors were so qualified, no error would have been presented. Article 35.16(b), Sec. 1, V.A.C.C.P.; Ellison v. State, Tex.Cr.App., 419 S.W.2d 849; Crain v. State, Tex.Cr.App., 394 S.W.2d 165. See also Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915; cert. den. 352 U.S. 858, 77 S.Ct. 79, 1 L.Ed.2d 64; Enriquez v. State, Tex.Cr.App., — S.W.2d — (Feb. 14, 1968).

The judgment is affirmed.

      . The expedient, however, of giving the warning as to appointed counsel and obtaining an affirmative waiver is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.


text:
    Charles HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 41124.
    Court of Criminal Appeals of Texas.
    March 20, 1968.
    Joe Shannon, Fort Worth, on appeal only, for appellant.

      Frank Coffey, Dist. Atty., Gordon Gray and Rufus Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, 25 years.

Appellant’s able court appointed counsel on appeal, agreeing that the trial judge appears to have attempted to conduct a judicial trial and made a much admired attempt to speak and act in such manner as not to prejudice any of the rights of appellant, contends that “the Statement of Facts as a whole, shows that this was not done or could not have been done and that many of the actions and remarks, although they may have been prompted by the appellant’s attitude, actions and remarks, were of such a nature that the jury could not help but receive the impression that the Trial Court was prejudiced against the defendant, although at the same time, making an effort to see that he was accorded a fair and impartial trial.”

With this as background, four specific grounds of error are presented in appellant’s brief.

The first presents the contention that the court erred in overruling appellant’s alternative motion that he be allowed to represent himself, thereby depriving him of the rights granted him under Art. I, Sec. 10, of the Constitution of Texas, Vernon’s Ann.St., which provides “that the accused shall have the right of being heard by himself or by counsel or both.”

On February 13, 1967, appellant requested the court to appoint counsel for him, and the court having determined that he was too poor to employ counsel, appointed Harry N. Ward, Jr., a practicing attorney of the Tarrant County Bar, to defend appellant.

Mr. Ward filed motion for continuance the same day and on March 23 filed Exceptions to pre-trial hearing and Exceptions to the Indictment.

When the case was called for trial, on April 17, 1967, appellant pro se filed application for continuance, one of his allegations being that his court appointed counsel “is patently unfit, incapable and wholly incompetent” to legally represent him.

Also filed the same day was a motion signed and sworn to by appellant requesting that the court appoint another attorney, experienced in the trial of criminal cases, to represent him in view of the lack of experience of Harry N. Ward, Jr., in the trial of contested criminal cases.

Another motion filed by appellant pro se on the day the case was called for trial was styled “Motion to Strike Counsel of Record and Reassignment of Counsel Competent.”

In this motion appellant swore that his court appointed counsel (A) was without sufficient court room training to properly conduct defendant’s case; (B) Lacks a coherent plan of defense; (C) Lacks the time, initiative, imagination, memory and spirit to conceive or plan proper legal defense; (D) Lacks devotion to the legal interests of defendant and diligence in filing requested motions or interrogating defense witnesses.

Upon such averments appellant moved the court to “forthwith issue an order striking counsel of record and reassignment of counsel competent to defend him during every stage of the cause now pending against him,” and in the alternative, and only in the alternative, prayed leave to conduct pro se, every stage of his own legal defense.

After allowing appellant full opportunity to present evidence in support of his allegation that his court appointed counsel was incompetent, the trial judge overruled the motion stating that said counsel was a graduate from one of the better law schools of the State of Texas; had ten years actual practice, a year and a half of it in the District Attorney’s office; that he regularly represented people in the court; was recommended by the Ft. Worth-Tar-rant County Bar Association as competent to represent a case of this nature, and the court found “that the lawyer is competent and very competent.”

Appellant’s request for permission to conduct the examination of the jury panel was granted, as was his request to examine the witnesses.

That the court wisely declined to permit appellant’s court appointed counsel to withdraw and leave appellant without counsel is made manifest by the record, which reflects that because appellant, an experienced recidivist, was unable to comply with or refused to abide by the rulings of the court while attempting to conduct his own defense, it became necessary that the court require him to allow his court appointed counsel to assist him or to conduct his defense.

We are aware of no authority which requires or warrants reversal of a conviction for rulings of the trial court made necessary by the conduct of the defendant in the trial before the jury.

Ground of error No. 2 complains of the testimony of Rosyln Glenn, an eye witness to the shooting, to the effect that the victim told her “that she knew this was going to happen.”

The complained of testimony was elicited from the witness when she was recalled and examined by appellant himself.

“Q. (By the Defendant) Did you see who shot Mrs. Adams?
“A. I just saw a man and that was all. I don’t remember what he looked like or anything like that.
“Q. And you did not have any talk thereafter with Mrs. Adams?
“A. Oh, we went back, I went back out there and she told me she knew this was going to happen and that was all.
“THE DEFENDANT: If the Court please, we move to strike that particular testimony, that she knew it was going to happen.
“THE COURT: Obj ection overruled.”

The witness had testified on direct examination without obj ection that after the shots were fired and the man. left, the victim said: “I knew it was going to happen and that is all.”

Also, the testimony was admissible as a res gestae statement. Ground of error No. 2 is overruled.

Ground of error No. 3 complains of a comment of the court in the jury’s presence: “All right, bring in Mr. Engle. Now, Gentlemen, let’s try to bring out something additional. On that last witness we covered exactly the same ground that was covered yesterday. We will be here from now on if we call these same witnesses and go back over the same testimony, if we try to plow the same field over and over again. Let’s proceed.”

This admonition was made following the examination of the witness Glenn and other witnesses who had been recalled and examined by appellant -pro se, and again cross-examined by counsel for the state.

While the admonition should not have been given in the jury’s presence, it was not addressed to appellant alone and no objection was made at the time.

Ground of error No. 3 is overruled.

The fourth and last ground of error is that the court erred in refusing to allow appellant to recall Gladys Adams, the injured party, for the stated purpose of impeaching the testimony of the witness Williams.

Williams was a defense witness, called to testify by appellant against the advice of his counsel. Appellant’s announced purpose was to “lay the foundation to show that there were numerous motives here in the city as to why Mrs. Gladys Adams might he attacked or might be shot. We want the jury to have that information and the jurors to know about it.” This was followed by the court’s ruling: “Well, all right, I will overrule the objection.”

“THE COURT: Let’s hear the question.”

No further questions were propounded and after conference between appellant and his counsel the witness Williams was passed and excused.

Ground of error No. 4 is without merit.

The judgment is affirmed.


text:
    Ralph Dugan GOODEN, Appellant, v. The STATE of Texas, Appellee.
    No. 41121.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    Sam R. Wilson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Felony Theft; the punishment, ten (10) years confinement in the Texas Department of Corrections. The appellant waived trial by jury and entered his plea of guilty before the court. The evidence was stipulated in accordance with Article 1.15, Vernon’s Ann.C.C.P.

On appeal appellant complains that the lack of an examining trial deprived him of the effective assistance of counsel and vitiates his conviction. This ground of error is raised for the first time in the appellate brief filed in the trial court. There is nothing in the record to indicate that at any time appellant requested an examining trial and was denied the same.

The return of an indictment terminates the right to an examining trial. Article 16.01, V.A.C.C.P. See Bryant v. State, Tex., 423 S.W.2d 320.

Further, Trussell v. State, Tex., 414 S.W.2d 466; Ash v. State, Tex.Cr.App., 420 S.W.2d 703; Murphy v. State, Tex.Cr. App., 424 S.W.2d 231 (1968) are authority for the rule that the failure to grant an examining trial prior to the return of the indictment does not affect the validity of the indictment.

Appellant’s ground of error is overruled.

The judgment is affirmed.


text:
    Ralph D. GOODEN, Appellant, v. The STATE of Texas, Appellee.
    No. 41122.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    Sam R. Wilson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Felony Theft; the punishment, ten (10) years confinement in the Texas Department of Corrections. The appellant waived trial by jury and entered his plea of guilty before the court. The evidence was stipulated in accordance with Article 1.15, Vernon’s Ann.C.C.P.

Appellant raises the same ground of error as he did in Gooden v. State, Tex.Cr.App., 425 S.W.2d 645, this day decided, and for the reasons set forth in that opinion, his ground of error is overruled.

The judgment is affirmed. ..