author: STEAKLEY, Justice. WALKER, Justice STEAKLEY, Justice.

text:
    Minnie L. NEWSOM, Petitioner, v. C. W. NEWSOM, Respondent.
    No. A-9892.
    Supreme Court of Texas.
    April 15, 1964
    Rehearing Denied May 20, 1964.
    Holloway & Slagle, Brownwood, for petitioner.
    Darrell Shelton, E. P. Woodruff, Jr., Brownwood, for respondent.
   STEAKLEY, Justice.

The Petitioner is Minnie L. Newsom, Plaintiff below, who sued her stepson, C. W. Newsom, Respondent here, for possession of certain land, later described, for rent and, in the alternative, for partition. The trial court rendered judgment for Petitioner for possession but denied her suit for rent. The Court of Civil Appeals held that Petitioner was not entitled to exclusive possession of the land and modified the judgment of the trial court to this extent. C. W. Newsom v. Mrs. Minnie Newsom, Tex.Civ.App., 371 S.W.2d 894.

The principal problem of the case involves the construction of a deed dated April 23, 1958, to Respondent from his father and stepmother. The father died shortly after execution of the deed. The deed reads as follows, omitting the metes and bounds description of the tracts of land not here involved:

“That we, S. Y. Newsom and wife, Minnie L. Newsom, of the County of Brown, State of Texas, for and in consideration of the love and affection we have for our son, CHARLES WILLIS NEWSOM, and for the purpose of partitioning our real estate among our three children, subject to certain restrictions hereinafter set out, have GRANTED, SOLD AND CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto the said Charles Willis Newsom, of the County of Brown, State of Texas, subject to the restrictions below made, all those certain tracts and parcels of land lying and being situated in Brown County, Texas, and described as follows :
“FIRST TRACT:
“Being 60.58 acres of the M. R. Williams Survey No. 71, 12.63 acres of the William Patton Survey No. 25, 109.88 acres of the W. C. Anderson Survey No. 6, and 22 acres out of the William Guyman Survey.
>|s ij< j|c ‡ *
“SECOND TRACT:
“All of the J. J. Cox Survey No. 38, Abstract No. 216, patented to W. C. Dunn, assignee of J. J. Cox, by patent No. 105, Vol. 7, now owned by grantors.
“THIS conveyance is subject to an easement and right-of-way in favor of CHARLES EDWIN SPILLMAN across the M. R. Williams Survey No. 71 and a part of the William Patton Survey No. 25 more fully described in deed this day executed by grantors to Charles Edwin Spillman.
“TO HAVE AND TO HOLD the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging unto the said Charles Willis Newsom, his heirs and assigns, forever,- subject, however, to the reservations below made.
“And we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said Charles Willis Newsom, his heirs and assigns, subject to said reservations, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof, SAVE AND EXCEPT, however, that the grantors herein expressly reserve, and it is expressly agreed and understood, that they shall have for themselves and their assigns, the full possession, use, and benefit of the above described land and premises, as well as the rents, revenues, and profits thereof for and during the natural lives of, grantors, and grantors further reserve unto themselves, and their assigns, for and during the natural lives of grantors, the exclusive right to lease said land above described for oil, gas, and other minerals, and to receive and have for themselves all bonus money, rentals and royalties paid under the terms of any such lease or leases.”

The J. J. Cox Survey was' originally acquired as community property of Respondent’s mother and father. His mother died intestate in 1918. Respondent was the only child of this marriage and as such inherited an undivided one-half interest in the tract of land. S. Y. Newsom subsequently married the Petitioner. They lived on the Cox Survey. Petitioner had two children by a former marriage. No children were bora to S. Y. Newsom and Petitioner. As shown by its provisions, the deed was executed pursuant to a plan of partitioning the real estate interests of S. Y. Newsom and Petitioner between the three children.

The life estate reservations in the lands conveyed is clear. The question is whether this reservation as to the J. J. Cox Survey is limited to the one-half undivided interest owned by the grantors, or was intended to include all the Survey. If the latter, the life estate is enforceable against Respondent by virtue of his act of accepting the deed with its benefits to him. Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626. The deed represents a bilateral agreement to which Respondent as grantee is bound contractually; he is estopped by his acceptance of the deed to deny the provisions or reservations therein which may be adverse to him.

The problem of the proper construction of the deed is one of determining the intent of the parties. Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442; Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608. The reservation by the grantors of a life estate in the lands described in the conveyance clauses can be reduced to a one-half interest in the J. J. Cox Survey only by giving controlling effect to the words “now owned by grantors” by which the description in the deed of this particular tract is concluded. In our opinion, the more reasonable construction is that this phrase was no more than a descriptive limitation. The deed thereby purported to convey to Respondent only that which was owned by the grantors. But the life estate reservation contemplated a natural protection to the father and stepmother of Respondent, i. e., that they would have a life estate in all the properties conveyed, including the Cox Survey which they were occupying as their homestead. Otherwise, the grantors could lose their existing rights in the full tract upon the establishment of a homestead elsewhere, or, upon the death of Respondent’s father, his surviving wife would have homestead rights in only the one-half interest of her husband. It does not comport with human experience that the husband and wife grantors would partition their estate between the three children while living— in lieu of a testamentary disposition by wills ■ — without preserving their existing rights in the entire J. J. Cox Survey, and we would not hold that such was their intention in the absence of clear language to such effect. We construe the reference to “the above described land and premises” in the life estate reservation paragraph in the deed as a reference to the land itself- — the J. J. Cox Survey — and not to the actual one-half interest conveyed. Cf. Bumpass v. Bond, 131 Tex. 266, 114 S.W.2d 1172.

Accordingly, Petitioner is entitled to exclusive possession of the land, and the trial court correctly so decreed.

As before noted, however, the trial court denied petitioner’s suit for rent notwithstanding his findings of fact that “ * * * the plaintiff, Minnie L. Newsom, on or about July 1, 1959, orally agreed to lease the J. J. Cox Survey to defendant, C. W. Newson, for as long as he, the defendant, wanted it at a rental of $350.00 per annum”; “That the defendant, C. W. Newsom, went into possession of said J. J. Cox Survey sometime after July 1, 1959, and before August 1, 1959”; and that “After going into possession of the J. J. Cox Survey in July of 1959, the defendant, C. W. Newsom retained the entire use and possession of said land up to and including the date of the trial of this cause, and has refused to surrender possession of said land, and has failed and refused to pay any part of the agreed rental, to the plaintiff.”

One of the conclusions of law of the trial court, with which the Court of Civil Appeals agreed, was that “The plaintiff is not entitled to recover any monies from the defendant for rent for the reason that the lease agreement was an oral lease agreement for a period of more than one year, and the claim asserted by the plaintiff for rental is barred by the Statute of Frauds.”

The foregoing findings of fact were not challenged by Respondent before the Court of Civil Appeals and are not questioned here. Contrary to the views of the courts below, it is our opinion that under these findings a recovery of the unpaid stipulated rental not barred by the two-year statute of limitation was not precluded by the statute of frauds. The agreement was performed by Petitioner and Respondent accepted the benefits of possession of the land. Showalter v. Macdonnell, 83 Tex. 158, 18 S.W. 491 ; Robb v. San Antonio St. Ry. Co., 82 Tex. 392, 18 S.W. 707; Anderson v. Eliot, Tex.Civ.App., 333 S.W.2d 654, error ref.; Johnson v. Neeley, Tex.Civ.App., 36 S.W.2d 799, error dism.

Recognizing the application of the two-year statute of limitation, Petitioner asserts that she should recover the unpaid annual rental of $350.00 for the years ending August 1, 1960, 1961, 1962, and to the date of trial, December 20, 1962, on a proportionate basis. Respondent replies that Petitioner’s recovery for rent can in no event exceed $1050.00, i. e., if the rent was payable in advance, the first payment on August 1, 1959, is barred and only the annual rentals due on August 1,1960,1961, and 1962 are recoverable; or if the rentals were payable at the end of each year, only those due on August 1, 1960, 1961, and 1962 had matured at the time of trial. The solution of this problem requires a reversal of the judgments below and a remand of the case. The trial court made no finding of fact with reference to these matters and the evidence in these respects is inconclusive.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

WALKER, NORVELL and GREEN-HILL, JJ., dissenting.

WALKER, Justice

(dissenting).

In my opinion a purported reservation in a deed should not be held to vest in the grantor an interest in land previously owned by the grantee unless the language of the instrument is so plain as to admit no other construction. I would affirm the judgment of the Court of Civil Appeals as to the effect of the conveyance in this case, although I agree that petitioner is entitled ■to recover accrued rent for the years respondent occupied the property to the extent that her claim therefor is not barred by limitation.

NORVELL and GREENHILL, JJ., join in this dissent.

ON MOTION FOR REHEARING

STEAKLEY, Justice.

Petitioner has filed a Motion for Rehearing in which she offers to remit any claim for rent in excess of $1,050.00. Our remand of the case was for the purpose of determining if Petitioner is entitled to rent in excess of such sum. Accordingly, Petitioner’s Motion for Rehearing is granted and our judgment heretofore rendered is set aside with the following substituted therefor:

The judgment of the Court of Civil Appeals is reversed. The judgment of the trial court is modified so as to render judgment for Petitioner for rent in the sum of $1,050.00, and, as so modified, is affirmed.

Respondent’s Motion for Rehearing is overruled.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Manuel MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36863.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    Rehearing Denied June 3, 1964.

      Frank M. Teveni, A. L. Hernden, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Ted Are-valo and Joseph D. Valdez, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawfully and willfully refusing to provide for the support and maintenance of his two children. A prior misdemeanor offense of Child Desertion having been alleged for enhancement, the punishment; three (3) years confinement in the State Penitentiary.

Trial was to a jury upon a plea of not guilty. The State first adduced evidence from David Garcia, Clerk of the County Court at Law No. 2 of Bexar County, establishing the prior misdemeanor conviction on March 1, 1963. Mr. Garcia testified that appellant was placed in the Bexar County jail on March 1, 1963, and he was released on April 7, 1963. The identity of appellant was established by testimony from William J. Condon, an Assistant District Attorney of Bexar County, Texas.

Estella Martinez, the wife of appellant, then testified that she and appellant had married in 1958 and that as a result of the marriage they had two children, Manuel Martinez, Jr., 4 years of age, and Francis Amelia Martinez, 2 years of age. Upon inquiry by the state as to the amount received by Mrs. Martinez from appellant for support from March 1, 1963, to August 1, 1963, she replied that she had received $40.00 from him, and that there was one payment made in May, June and July, two of them being in the amount of $15.00 and one in the amount of $10.00. The trial was held October 29, 1963. The indictment filed September 18, 1963, alleged that appellant refused to provide for support and maintenance on or about the 1st day of August, 1963. Mrs. Martinez further related that appellant “works for his own relatives and they always say that he is not working”. She was then asked if she had seen him working during'the period of May 1, 1963, to August 1, 1963, and she stated that she had seen appellant taking some lumber from a freight train close to Ruiz Street and that it must have been about 4 months ago. She stated that she was managing to live on state welfare payments of $76.00 a month and from assistance given her by St. Vincent de Paul and that she worked as a carhop. She further related that in addition to seeing the appellant work about 4 months ago that “she had seen him working more than twice but that she hadn’t counted them”. She then testified that during September 1963 appellant was in jail; that she had not seen him working anytime during the month of August 1963 and that if she was not mistaken that was when he was put in jail and that in July she only saw him once when he got home from work, but that she thought that he was in jail in July on a drunk charge. Appellant’s wife further testified that she had never known her husband to have any illness or physical defect and that she did not know of his ever being in the hospital for an extended length of time and that so far as she knew he had been physically able to get about between March 1, 1963, and August 1, 1963. Ger-ónimo Contreras testified as a state’s witness and related that he worked for himself unloading freight and that sometimes he asked appellant to help him. The witness further testified that during the period March 1, 1963, to August 1, 1963, that he gave appellant some work, "sometimes one day or two days, sometimes there was no work at all”; that appellant earned during that time $8.00 a day; that appellant helped in the truck carrying and unloading. Mr. Contreras stated that appellant was the son of his son-in-law. Mr. Contreras testified upon cross-examination that appellant worked for him about 3 days total between March 1st and August 1st and that lie paid him $8.00 a day and that appellant would do “whatever comes up”. He further stated that everytime he had some work he gave appellant work. Jesus Contreras then testified that he loaded and unloaded lumber; that Gerónimo Contreras was his father, but that they worked independently of each other; that he had had ■occasion to have appellant as his helper different times in the year; that between March and August 1963 appellant helped him one day and that he paid appellant $8.50. Jesus Contreras testified that appellant worked 3 or 4 hours, not a complete •day, and then another day and a half, three times, estimating that he paid appellant about $24.00. He further testified that appellant had come around and asked him for work and that he had seen appellant helping his (Contreras) father once in a while .and that he had seen him working for his (Contreras) brother. The witness stated that there were five members of his family ■engaged in this type of work and that appellant had helped all five of them off and on once in a while and that he had never asked appellant to work and had appellant refuse to work. The witness further related that he called appellant when he had work for him and that appellant had asked him for work when there wasn’t any work.

Appellant testified that between the dates of March 1st and August 1st, he worked for Gerónimo Contreras 2 days a week for about 3 weeks, “I would say around six,” replying to a question that he might have worked about six days. He further testified that he worked for Mr. Contreras about 2 days; that he looked for work elsewhere by going to the Texas Employment Commission and asking for work; that he was doing painting at one time but that he had never done any type of skilled labor and that he had never refused to work anywhere between March 1st and August 1st; that he would send money to his wife for support once in a while when he worked and that he never refused to work when any work was offered; that between August and September he was in jail. Upon cross-examination he was asked if he could give the names of one or more companies where he asked for a job, and he replied that he had asked at H. E. B., on Brazos Street, Centano Super Market, and also made applications at Church’s Fried Chicken and several other places, and that he had been to the Texas Employment Commission once since March until the time of the trial in 1963. Appellant testified on re-direct examination that his wife told him that she would ' rather have the state helping her than him, and that she would love to send him to prison. He stated upon re-cross examination that he lived with his parents; that he gave his mother some money for food whenever he worked, but that he did not have a car and that his parents did not charge him for living with them and that he just helped them whenever he could and that they gave him no money. Appellant’s wife was recalled to the stand and testified that she and appellant had lived in Napoleon, Ohio, with appellant’s older sister and brother-in-law and that during this time appellant was employed as a painter

whenever there was no snow and that he used to get $50.00 and $60.00 a week and that they stayed in Ohio about a year and that appellant had another job helping out the owner of the house where they stayed and that he earned between $15.00 and $20.-00 a week on this job and that he would sometimes make $80.00 a week or $77.00; that since coming back to San Antonio appellant had never worked at any regular jobs, only with relatives, but she did not know how much he made; that she had no way of knowing how much appellant earned right now.

We think that the State s evidence fails to show appellant’s ability to contribute more than he actually did. This is an evidentiary requisite in order to show willful neglect. Adams v. State, Tex.Cr. App., 361 S.W.2d 877; Prock v. State, 92 Tex.Cr.R. 494, 244 S.W. 601 and Cardona v. State, 160 Tex.Cr.R. 541, 273 S.W.2d 73.

Because of the insufficiency of the evidence to support the judgment, the cause is reversed and remanded for another trial.


text:
    Geraldine PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 36944.
    Court of Criminal Appeals of Texas.
    May 20, 1964.
    No attorney of record on appeal for appellant.
    Jules Damiani, Jr., Dist. Atty., R. J. Bernsen, Sr., Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin,, for the State.
   McDonald, judge.

The offense is keeping a bawdy house; the penalty, a $200.00 fine and twenty days confinement in the County Jail.

The testimony of the state shows that Irma Jean Farrow, a 19 year old girl, was brought to Galveston, Texas, with the understanding that she would be employed in appellant’s cafe as a waitress. Upon arriving in Galveston, she (Miss Farrow) found that appellant did not in fact operate a cafe, but instead, appellant caused Miss. Farrow to engage in acts of prostitution. Miss Farrow received no money for her services as the men gave the money to appellant. Appellant did, however, furnish food and some clothing to Miss Farrow.

Miss Farrow further testified that appellant would invite the men into the house by calling out a window saying, “Hey, I’ve got a new girl in here,” and that other girls lived in the house during that time and also participated in acts of prostitution with appellant holding the money.

In corroboration of the foregoing testimony, the state introduced testimony from Calvin Tyler, a roomer, in the house in question. He testified that there were several girls in addition to Irma Jean Farrow who were prostitutes living at the address in question. He further testified that he saw appellant take money, hold it while the girls went to the rooms with men, then return money to the girls upon their return, and that appellant arranged for these dates. Mr. Tyler further testified that he remembered Irma Jean Farrow staying in the house during the period in question.

Through the testimony of Officers Price and Roach, of the Galveston Police Department, it was shown that the house in question had a reputation as a house of “ill repute” and a “House of prostitution.”

Appellant’s testimony in her own behalf, in short, denied entirely the testimony of the state’s witnesses.

The record contains no formal bills of exception nor do we have a brief in appellant’s behalf.

In appellant’s motion for new trial, the contention is made that Irma Jean Farrow was, as a matter of law, an accomplice witness and that her testimony was not corroborated as required by law.

If Miss Farrow was an accomplice witness, we feel her testimony was amply corroborated, and thus we will not pass on the question of her complicity.

The testimony of Calvin Tyler, to the effect that Miss Farrow was in fact present at the location in question; that he saw appellant accepting money from men coming to patronize the bawdy house and that appellant made arrangements for the girls, together with the officer’s testimony that the house had a reputation as a house of prostitution, is sufficient to corroborate Miss Farrow’s testimony. See Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116; Hampton v. State, 145 Tex.Cr.R. 599, 170 S.W.2d 748; Rountree v. State, 144 Tex.Cr.R. 576, 164 S.W.2d 847 and Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319 wherein the rule as to corroborating testimony is set out. Thus we overrule appellant’s contention that the evidence is insufficient to support the verdict.

Appellant also contended in her motion for new trial that the trial court fell into error in failing to charge the jury regarding accomplice testimony. The record contains no exceptions to the court’s charge as given and no requested charge, thus under the well settled law in this state, the trial court’s failure to so charge is not properly before this court for review. Morgan v. State, 170 Tex.Cr.R. 412, 341 S.W.2d 438; Art. 658 Vernon’s C.C.P.

Appellant’s further complaint that the evidence with reference to the reputation of the house in question was not properly admitted, is also without merit. It is well settled in this state that reputation evidence in a bawdy house prosecution may be shown. Branch’s Penal Code 2nd Ed., Vol. 2, Sec. 1114.

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


author: MORRISON, Judge.

text:
    Edward W. FINDLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36672.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    Rehearing Denied April 29, 1964.
    Second Motion for Rehearing Denied June 3, 1964.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with a prior conviction for burglary alleged for enhancement; the punishment, 12 years.

Appellant’s written confession, the voluntary nature of which was vouched for by Officer Hurst, as well as his oral confession made to Office Spivey, which resulted in the recovery of some of the stolen jewelry, reveal that on the night in question appellant, in company with his brother, David, and one Melvin Barnard, was driving around looking for a place to burglarize; that they stopped at the Rose Jewelry on Harrisburg, kicked out both show windows and each participant took some rings and watches and then fled. Appellant was arrested two days later, told the officers where they might recover his part of the stolen property, which they immediately proceeded to do, and then returned to the police station, where the written confession was made.

Appellant’s uncle, with whom he resided, testified that appellant and his brother returned home in the early morning following the night in question, that he noticed a ring and watch on appellant’s hand and arm, and that when he asked where he had gotten the same, appellant replied, “We kicked out a window * * *” at “ * * * a jewelry store.”

Rose, the owner of the store, testified that he was awakened during the night in question and that when he arrived at his store, he found that two display windows had been broken into and some jewelry was missing.

Melvin Barnard, upon being granted immunity, testified to substantially the same facts set forth in appellant’s confession.

Appellant, testifying in his own behalf, denied that he had made any confession at all, admitted that he had signed the instrument introduced in evidence, but said that he did so because the officers threatened to treat him as they had some years ago when he was apprehended for the burglary charged in the second paragraph of the indictment.

The prior conviction was established.

The voluntary nature of the confession was submitted to the jury in the court’s charge, and since it was clearly not inadmissible as a matter of law, we find the evidence sufficient to support the conviction.

Only two questions are raised on appeal. It is first contended that the court erred in receiving a verdict which appellant contends is vague and indefinite and unintelligible. The indictment in the first paragraph charged the commission of the offense of burglary alleged to have occurred on January 17, 1963. The second paragraph recited that prior to the commission of the aforesaid offense, appellant, in cause #91490 in a named court, was granted adult probation for the offense of burglary for a period of three years. It then lists the conditions of such probation, and this is followed by the recitation that appellant Subsequently violated the terms of his probation, and that on November 10, 1961, said probation was revoked and the sentence was put into effect, and said conviction was a final conviction.

The verdict was as follows:

“We, the Jury find the Defendant guilty of Burglary as charged and further find that he was formerly given adult probation for the burglary and that same was revoked and that same was a final conviction. Foreman M. E. Lesser.”

It is appellant’s contention that because of the inclusion of the word “the” before the word “burglary” the verdict could be construed to mean that the jury found that appellant had already been found guilty of the burglary set forth in the first paragraph, that he had been given probation, and that probation had been revoked, which would be tantamount to a finding of double jeopardy. Cooper v. State, 136 Tex.Cr.R. 498, 126 S.W.2d 974, and Alston v. State, 154 Tex.Cr.R. 148, 226 S.W.2d 443, upon which appellant relies, do not support such an interpretation, nor are they authority for his contention that the verdict is unintelligible. It is clear to us that the jury were referring to the burglary set forth in the second count. This is especially true because of appellant’s judicial admission that he had been convicted in the named court for the offense of burglary, had been granted probation, and that such probation had been revoked.

Appellant’s second contention that the court commented on the weight of the evidence in his charge where he stated that “Evidence of previous conviction must not be considered by the jury in deciding the guilt or innocence of the defendant of the offense for which he is being tried.” In view of the judicial admission, the failure of the court to insert the words “if any” after the word “conviction” was not error. Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Ellison v. State, 154 Tex.Cr.R. 406, 227 S.W.2d 545; and Pullen v. State, 129 Tex.Cr.R. 23, 84 S.W.2d 723.

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

ON APPELLANT’S MOTION FOR REHEARING

For the first time on rehearing appellant complains of the action of the court in refusing to charge that the witness Springer (referred to in the original opinion as appellant’s uncle) was an accomplice witness as a matter of law or in the alternative in failing to submit to the jury the question of whether or not he was an accomplice witness. This contention grows out of appellant’s assertion that Springer was an accessory to appellant in that he attempted to aid him in avoiding apprehension.

We shall discuss the facts more fully in connection with this contention. Appellant resided with Springer, however, he had another uncle, Marshall Findley, who resided somewhere in the vicinity. According to Springer, on the morning after the burglary Marshall told Springer that appellant and his companions had hidden some jewelry at his house and asked him to come and get the same because he was worried over the matter. Springer went and got certain items of jewelry from Marshall’s house and returned them to his own (where appellant resided). He stated that he complied with Marshall’s request because Marshall was ill and had seizures when he got excited, and because he did not want Marshall “to get in trouble about it.”

Sometime thereafter the officers inquired of Springer about the burglary, and he first told them that he knew nothing about it. This conduct would not make him an accessory. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 290, and Clark v. State, 261 S.W.2d 339, 159 Tex.Cr.R. 187. Subsequently the officers did find some of the jewelry in a coat pocket in the house where appellant and Springer resided. The record is not clear as to whether this was the result of Springer’s finally telling them the truth, or as the result of their own search.

We must now decide if this act of Springer in getting the jewelry from Marshall’s house and returning it to his own constituted an act which raised the issue of whether or not he was aiding appellant in avoiding apprehension, and thus an accessory to appellant and an accomplice witness. Had he taken the jewelry from where appellant lived and concealed it at Marshall’s house or at some other place, then another question would have been presented, but here he brought the stolen property from its place of hiding and placed it in the house where appellant resided, and where the officers eventually found' it. We have concluded that this does not constitute an effort to aid appellant in avoiding apprehension, and therefore, hold that there is no evidence to raise the issue that Springer was an accomplice witness.

Remaining convinced that we properly disposed of this appeal on original submission, appellant’s motion for rehearing is overruled.

      . “The Law of Principals, Accomplices and Accessories,” Vol. I, V.A.P.O., p. xiii.


author: DICE,. Commissioner.

text:
    Frank Cardenas GUAJARDO, Appellant, v. The STATE of Texas, Appellee.
    No. 36849.
    Court of Criminal Appeals of Texas.
    May 20, 1964.

      Evans & Egger, by Samuel L. Egger, San Antonio, on appeal only, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE,. Commissioner.

Unlawful possession of heroin is the offense ; the- punishment, fifteen years.

It was shown by the state’s evidence that on the night of May 4, 1960, as highway patrolmen Ray Curtis and Don Keller were traveling on U. S. Highway 81 near Gar-dendaje in LaSalle Cpunty they observed a Pontiac automobile parked on the highway with the lights off. Appellant was standing by the vehicle, waving his shirt. The patrolmen proceeded to pass, then made a U-turn and returned to the scene. When asked by the patrolmen what the trouble was, appellant replied that the generator was “out.” After the patrolmen pushed the car off the road into the borrow ditch, appellant was requested to produce his operator’s license and replied that he had lost it. Thereupon, he was placed under arrest and taken to Cotulla by the officers, where a complaint was filed in justice court against him for unlawfully parking on the road. After arriving at the office of the justice of the peace, the patrolmen searched appellant. While being searched, appellant took from his shoe three small packages of paper, each of which contained a white powder. Patrolman Curtis took possession of the three packages and mailed them to the chemist at the Department of Public Safety in Austin, together with a urine and blood sample taken from appellant, with his consent, on the night in question.

It was shown by the testimony of Chemist Charles Beardsley, of the Department of Public Safety, that tests made in the department’s laboratory, in Austin, of the contents of the three packages revealed that they each contained heroin, a narcotic drug. It was also shown that an analysis of the urine specimen taken from appellant revealed that it contained morphine, which, the chemist testified, is eliminated in the urine of a person who has taken heroin into the body.

After his arrest, appellant made a written confession to the officers which was introduced in evidence by the state, without obj ection.

- In his confession, appellant stated that on May 4, 1960, he left his home in San Antonio and drove to Laredo in a friend’s Pontiac automobile to purchase some heroin for .his own use and for the use of his friend. Appellant stated that after arriving in Laredo he purchased three grams of heroin, wrapped in small papers, for $60, and that he put the papers of heroin in his shoe and started back to San Antonio, when the generator of the car stopped working. He stated that he tried to flag “down” some cars and finally the highway patrolmen stopped and

“They then searched me, and found the 3 grams of Heroin in my shoe, that I had bought from Hector in Laredo, Texas.”

Appellant did not testify but recalled District Attorney J. Taylor Brite as a witness, who, upon questioning by appellant’s counsel, stated that he had been notified by an assistant district attorney of Bexar County that appellant was an informer for the narcotics bureau of the San Antonio police department.

Appellant insists that the court erred in admitting in evidence the three packages of heroin because they were obtained from his person as the result of an illegal arrest and search and were therefore inadmissible under Art. 727a, Vernon’s Ann.C.C.P. It is the state’s contention that the search of appellant’s person was incident to his lawful arrest by the patrolmen for violating Sec. 93(a) of Art. 6701d, Vernon’s Ann. Civ.St., which makes it a penal offense for one to stop, park, or leave standing any vehicle upon the main-traveled part of the highway outside a business or residential district when it is practical to stop, park, or leave the vehicle off such part of the highway. Sec. 153 of Art. 6701d, supra, which authorizes a péace officer to arrest without warrant any person found committing a violation of any provision of the act,, is "also cited by the state. Appellant insists that he was not violating Sec. 93(a) of the statute on the night in question because his automobile had become disabled, and refers to Sec. 93(b) of the statute, which provides:

“This Section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”

As to-the mechanical condition of appellant’s ■ automobile at the time the patrolmen observed it parked on the highway, Patrolman Curtis testified that at such, time appellant stated the' generator was “out.” The officer further stated that after they pushed the vehicle off the road he started the car and turned on the lights and they were dim. The fact that the officer was able to start the motor, in the face of appellant’s testimony that the generator. was “out,” clearly raised an issue as to.whether or not appellant could have driven his automobile the few feet necessary tq remove it from the main-traveled portion of the highway. No request was made by appellant that such issue be presented to the jury in connection with the question of the lawfulness of his arrest.

Under the record, the court did not err in admitting the three packages of heroin into evidence.

To show flight by the appellant as evidence of guilt, the state called Sheriff Frank Newman, who-testified that appellant was arrested upon the charge and placed in jail on May 4, I960; that he was later released upon execution, of an appearance bond in the sum of $3,500. Upon call-of the criminal docket after return of the indictment in September, 1960, appellant failed to appear, at which time judgment nisi'was taken upon the bond and á warrant issued for his arrest. .The sheriff testified that he proceeded to. search for appellant from September, 1960, until November, 1963, at which time he was apprehended in the Webb County.jail. .Over appellant’s objection that the same . were irrelevant, immaterial, and prejudicial,, the state was permitted to introduce in evidence as state’s exhibits Nos. 1, 2, and 3,-.- .a.' capias issued for appellant’s arrest after indictment, the judgment nisi dated September 6, I960, forfeiting appellant’s appparancé bond, and the affidavit of a surety on the bond; dated May 3, 1961, stating his desire .to .be released upon the undertaking and requesting that a warrant be issued for appellant’s arrest. • :

,. Appellant insists . that the admission in evidence of the judgment nisi' presents reversible error under the decision in Sorrell v. State, 74 Tex.Cr.R. 505, 169 S.W. 299, where it was stated by the court that a judgment nisi, being an ex parte proceeding against the accused, was inadmissible to show flight.

An examination, of the .opinion in the Sorrell case shows .that • the, principal' reason for reversing the judgment of.conviction was the failure of the court to grant a change of venue and the court’s statement with reference to the admissibility of the judgment nisi in evidence was for the benefit of another trial.

An examination of the cases cited in 1 Branch 2d 162, Sec. 158 at page 163, on the subject, will conclusively demonstrate that the Sorrell case has not been followed on this latter point.

The state had the right to prove flight by appellant as evidence of his guilt. Proof that he failed to appear for trial and that his bond was forfeited was admissible as evidence tending to show flight. See: Henderson v. State, 163 Tex.Cr.R. 153, 289 S.W.2d 274, and cases therein cited.

The contention is overruled.

Complaint is made to the introduction in evidence of the urine specimen taken from appellant and to the testimony of Chemist Beardsley that his analysis of the specimen revealed the presence of morphine, which would indicate that appellant had taken heroin into his body. Appellant objected to the evidence on the ground that it was irrelevant, immaterial, and prejudicial to him and insists that, since the charge against him was possession of heroin, the proof that he had taken heroin into his body constituted proof that he was under the influence of a narcotic drug, an extraneous offense.

The specimen having been taken with appellant’s consent, such evidence showing the presence of a narcotic drug in his body at the time of his arrest was admissible as a part of the res gestae. In Feather v. State, 169 Tex.Cr.R. 334, 333 S.W.2d 851, where the prosecution was for unlawful possession of heroin, it was held that an officer was properly permitted to testify that on the occasion of the defendant’s arrest and search of his bedroom he observed punctures on the defendant’s arm which would come from injecting needles in the arm.

Complaint is also made to the court’s action in permitting Chemist Beardsley to testify that heroin could be taken orally or injected into the arm and to testify as to the manner in which it is injected and that the amount of powder in one packet would make several doses, as generally used. Complaint is also made to the chemist’s testimony when he stated that if all of the powder in a package were taken in one dose it would be dangerous to a human being.

This testimony was offered by the state in proving the quantity of heroin which appellant had in his possession and to show that it amounted to more than a trace. Hence, no error is shown.

We are unable to agree with appellant that the chemist’s statement that a dosage of all of the powder in one of the packets would be dangerous to a human being violated the rule in Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276, against showing in an unlawful possession case the effect, generally, upon persons using a narcotic drug.

Appellant complains of a certain statement made by District Attorney J. Taylor Brite, upon being called as a witness by him, when the prosecutor stated in the jury’s presence the following:

“ * * * the only time in which we were very, very upset about and dissatisfied was when this Defendant failed to appear and we tried to collect a thirty-five hundred dollar bond from an attorney in San Antonio, and then the District Attorney’s office, trying to get the attorney off the hook on the thirty-five hundred dollar bond took a stand that we will never understand to this date * *

The record reflects that such statement was actually in response to- questioning by appellant’s counsel on direct examination. No reversible error appears.

Appellant’s remaining: contention is that the court erred in permitting him to be arraigned in the case, which was for a non-capital offense.

While Art. 491, V.A.C.C.P., provides that there shall be no arraignment of a •defendant except upon an indictment for a capital offense, no objection was made by .appellant to the proceedings. Hence, he is in no position to complain.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge..

text:
    Wendell Hollis OLER, Appellant, v. The STATE of Texas, Appellee.
    No. 36645.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    Rehearing Denied June 3, 1964.
    James E. Bock, Dallas, Phil Burleson, Dallas, (on appeal only), for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge..

The offense is the possession of morphine with two prior felony convictions alleged ■for enhancement under Article 63, Vernon’s Ann.P.C.; the punishment, life.

Officers Cavender and Green testified that on the day in question they were looking for appellant and observed him as he backed out of a parking lot, that he proceeded in a northerly direction for a short distance and then made a U-turn, that they continued in pursuit, and that appellant brought his automobile to a halt, got out on the passenger’s side, ran across a parking lot adjacent to a liquor store, and «into a vacant lot before they were able to apprehend him. They stated that just as one of them tackled appellant, some white pills and a small match box fell from his hand, and as they raised appellant to his feet and were in the process of placing' handcuffs upon'him, appellant attempted to stomp the white pills and the match box into the ground: They, along with Officer Maze, who was also present, retrieved the pills and in turn submitted them to the Criminal Investigation Laboratory. Dr. Mason testified that the pills contained morphine.

The prior convictions were established.

Appellant did not testify, but recalled the arresting officers and fully questioned them further concerning their original testimony.

Appellant’s attorney on appeal raised two contentions. His'first is that the court erred in permitting proof as to other prior convictions not alleged in: the indictment. Appellant’s trial counsel did not object on such grounds at the time such proof was made, and therefore, nothing is presented for. review in. this Court.

Appellant’s next contention is that he was denied due process when the State was permitted- to read to the jury the indictment .containing the recitation of ■ the two prior convictions and to establish .proof as to them before hearing evidence and determining appellant’s guilt as., to the primary offense. This question was first dismissed' by'this Court,-and'decided contrary ■to appellant’s contention, in Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, 815. Reddingffias been repeatedly followed .and cited as recently as February of this year in Carso v. State, Tex.Cr.App., 375 S.W.2d 297, where we pointed out that Article 642, V.A.C.C.P. requires the first order of proceeding after.a jury.has been selected to be the reading of the indictment.

Appellant relies upon the opinion of the United States Court of Appeals, Fourth Circuit, 'in Lane v. Warden, Md., 320 F.2d 179, in which it was held that reading to the jury, at the commencement of the trial, that part of the indictment relating to prior convictions destroyed the impartiality 'of -the jury and constituted a denial of due process. This holding, while certainly persuasive, is not-binding-upon this Court: In his brief appellant also cites the case of State v. Johnson, Idaho, 383 P.2d 326, in support of his contention. There the Idaho Supreme Court exercised the rule making power granted it by statute, and decided to follow a procedure under which that part of the indictment containing the recitation of the prior convictions would not be read to the jury until after the issue of guilt as to the primary offense had been decided.

This Court has not been granted rule making powers, and we have concluded that the radical changes in long established common law and statutory procedures which would be required, were appellant’s contention to be sustained, must therefore come from the Legislature and not this Court. While we agree that there is much merit in appellant’s contention, and undoubtedly the trend is in that direction, we must exercise judicial restraint and await the action of the legislative branch of our government.

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


text:
    Sylvester ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 36927.
    Court of Criminal Appeals of Texas.
    May 20, 1964.

      Harry A. Nass, Jr., San Antonio, on appeal only, for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides and Raymond A. Wietzel, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is passing as true a forged instrument; the punishment, four years.

Mr. Endrizzi, the manager of a liquor store testified that on August 24, 1963, appellant, who was accompanied by another man, asked him if he would cash a payroll check, and that after examining a driver’s license bearing the name Miller which appellant presented for identification and observing appellant endorse the name of the payee on the check, which was written on the Northside State Bank payable to Fred Miller and drawn on the San Antonio Jalousie Company by one C. A. Wilkerson, he cashed it. He stated that he identified appellant in a police line up on September 4.

C. A. Wilkerson testified that he was doing business under the name of San Antonio Jalousie Company and that on the night of August 23, his place of business was burglarized and among the items missing were a check writing machine and twelve numbered blank checks from a checkbook. He testified that he notified the bank to stop payment on the numbered checks which were missing. Upon being shown the check passed to Mr. Endrizzi as well as one passed the same day to a Mr. Wheeler in the presence of Mr. Vasquez, both employees of another liquor store in the same city, he stated that, though they were signed C. A. Wilkerson, neither bore his signature, that he had not authorized appellant or anyone else to sign his name to either check and that the signatures were forgeries. He stated that he did not know appellant.

Mr. Ybarbo, Assistant Cashier at the Northside State Bank, testified that C. A. Wilkerson had ordered him to stop payment on checks number 2801 through 2812, that he had not paid either the check given to Mr. Endrizzi or the one given to Mr. Wheeler because of this stop payment order, and because he had compared C. A. Wilkerson’s signature card on file at the bank with the signature on both checks and' determined that neither check bore Wilkerson’s genuine signature.

On the question of motive, intent and knowledge, the court permitted Mr. Vasquez to testify that appellant gave Mr. Wheeler the other check, mentioned earlier in this opinion, which was payable to and endorsed in the name of Otis Ross.

Appellant called John Dossie, an inmate of the Bexar County Jail, who identified appellant, but declined to testify further on the grounds that his testimony would incriminate him.

Appellant, testifying in his own behalf, admitted going to both liquor stores on the day in question in company with John Dos-sie, but insisted that it was Dossie and not he who passed the checks in question, and that Dossie paid him for his services in carrying him to the liquor stores. On cross examination when being asked if he knew that the checks were forged at the time he and Dossie passed them, he answered, “I’m telling the jury that I didn’t cash them; I didn’t write on them. Somebody else’s handwriting is on them. The handwriting expert should be able to prove it; that is what I am trying to say.”

The court instructed the jury on the law of principals, and we find the evidence sufficient to sustain the conviction.

Appellant in his brief in questioning the sufficiency of the evidence to sustain the conviction overlooks Wilkerson’s testimony not only that the checks were forged, but also that they did not bear his signature nor had he authorized appellant or anyone else to sign his name thereto. Turner v. State, 146 Tex.Cr.R. 474, 176 S.W.2d 327, upon which appellant relies can have no application here because it is a case of forgery and not passing, and because the person whose name was forged on the check failed to testify, as he did in this case, that he did not authorize anyone to sign his name. Attention is also directed to the fact that in Turner, the State introduced a statement made by appellant while under oath in which he denied that he had signed the check, and the Court there held that the testimony of the State’s witnesses on comparison of handwriting was not sufficient to disprove this exculpatory statement.

King v. State, 113 Tex.Cr.R. 130, 19 S.W.2d 52, will not support appellant’s contention that he did not know that the instruments were forged because he testified that he had known Dossie some time, knew that his name was neither Miller nor Ross and merely denied that he wrote the checks, but did not deny, as is shown above, that he knew that they were forged.

Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, also relied upon by appellant, will not support his position that the State failed to prove that the Otis Ross check passed to Mr. Vasquez was a forgery. The statement of the case hereinbefore set out shows conclusively that it was.

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


author: DICE, Commissioner.

text:
    Frances Pauline CHESNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36969.
    Court of Criminal Appeals of Texas.
    May 20, 1964.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., Don Wills, Mark Troy, and C. M. Turlington, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of the offense of driving while intoxicated and her punishment was assessed at ninety days in jail and a fine of $150.

Upon the trial, the state called as a witness Officer A. J. Scoggin, of the city of Dallas police department, who testified that on the date in question at approximately 6:20 p. m., while he and his partner, Officer L. D. Miller, were on routine patrol in the vicinity of the 3100 block of Knox Street, they observed a woman, identified as the appellant and who was having trouble with her walking, come out of a liquor store at the corner of Knox and Cole Streets; that there was heavy traffic and they drove past the intersection to turn around; and that just as they were able to turn, appellant got into a 1953 Chrysler automobile parked in front of the liquor store and drove down Knox Street; that they proceeded to follow her and observed that when she turned off Knox Street into McKinney she “over-controlled” her automobile and caused it to go into the wrong lane of traffic; that she then got back into the right traffic lane and, upon reaching the intersection at McKinney and Monticello, ran a stop sign. The officer stated that he and his partner then tried to stop appellant by blowing the horn and turning on the red light of the patrol car but that she continued driving and ran another stop sign and then turned into an alley and stopped in the driveway at a house. The witness testified that when he walked up to appellant she was trying to hide a brown paper sack, containing a bottle of liquor, between the seats. He further testified that when appellant got out of the automobile she had trouble standing, her speech was slurred, her eyes were bloodshot, her breath smelled of alcohol, and, based upon his observation, he expressed the opinion that at such time appellant was intoxicated.

Officer Miller, upon being called as a witness, gave testimony which corroborated that of the witness Scoggin and he, too, expressed his opinion that on such occasion appellant was intoxicated.

Testifying as a witness in her own behalf appellant admitted driving the automobile from the liquor store to her home on the afternoon in question but denied that she was drunk and that she had consumed any intoxicating liquors.

Witnesses were also called by appellant, including her husband, son, daughter-in-law, and a yard man, who testified that they had observed her at her home on the afternoon in question, some as late as 5 p. m., and that she had not consumed any alcoholic beverages and was sober.

The jury resolved the disputed issue of intoxication against appellant and we find the evidence sufficient to sustain their verdict.

The record contains no formal bills of exception and there were no objections to the court’s charge.

No brief has been filed on behalf of appellant.

We have carefully examined the informal bills of exception appearing in the statement of facts and find no reversible error therein.

The judgment is affirmed.

Opinion approved by the Court.


author: WERLEIN, Justice.

text:
    William J. LE COMPTE, Appellant, v. Virgil H. SANDERS et al., Appellees.
    No. 14286.
    Court of Civil Appeals of Texas. Houston.
    April 30, 1964.
    Rehearing Denied May 28, 1964.

      Leland B. Kee, Angleton, and James K. Nance, Houston, and Davis, Kee, Mason & Lee, Angleton, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Horace F. Brown and Gay C. Brinson, Jr., Houston, Law Offices of Horace F. Brown, Houston, Bob Owen, Alvin, and Talbert, Giessel, Cutherell & Barnett, Houston, of counsel, for appellees.
   WERLEIN, Justice.

This suit was brought by plaintiff, William J. Le Compte, to recover damages arising out of the death of his wife, Annette L. Le Compte, which occurred as a result of a collision at about 2 p. m. on November 6, 1959, between a Ford driven by Mrs. Le Compte and a Buiclc driven by defendant Sanders, and in which defendant Woods was riding as a passenger. Defendant Sanders, who will be referred to as cross-plaintiff herein, and Woods, who will also be referred to as cross-plaintiff, had each filed a suit against Le Compte. , Since plaintiff’s suit was prior in time, the suits of cross-plaintiffs were abated and they then filed cross-actions in the present suit. Based upon the jury verdict, which found all issues in favor of appellees, judgment was entered that plaintiff Le Compte take nothing from the defendants, and that said defendants and cross-plaintiff, Sanders and Woods, recover respectively $4,634.00 and $100,000.00 from cross-defendant Le Comp-te individually and as community survivor and independent executor of the estate of Annette Le Compte. From such judgment plaintiff and cross-defendant Le Compte has duly perfected his appeal.

There were only two living witnesses to the actual collision, namely Sanders and Woods, although one Robert Lozano had observed the Le Compte Ford and the Sanders Buick a few seconds before the impact. The testimony of appellees was to the effect that while Sanders was driving his 1950 Buick in a westerly direction toward Angleton along Farm Road 210, on his right side of the road, a 1956 Ford driven by Mrs. Le Compte in the opposite direction suddenly came over into their lane of traffic in such manner that the Buick struck the righthand side of the Ford. Both ap-pellees testified that they were in their proper lane of traffic at the time of the collision.

Robert Lozano, a witness who had been driving a truck some distance ahead of the Buick driven by appellee Sanders, testified that as the Le Compte Ford approached him the lady driving it looked like she was reaching for something. He further testified that as the car passed him he looked in his rear-view mirror and it looked like the Ford was getting off the road, and then a second later he heard the crash. It is undisputed that the Ford skidded approximately 58 feet before being struck by the Buick, and the evidence indicates that the point of impact between the two vehicles occurred in the north, or westbound, lane of the highway, being the lane traveled by appellees Sanders and Woods. The only evidence that the Buick was not in its proper lane on the correct side of the highway at the time of and before the collision was given by plaintiff’s expert witness, Ralph Snyder, who undertook to • reconstruct the accident.

Appellant’s first three Points, which are briefed together, complain of error on the part of the trial court in admitting into evidence, over timely objection, the opinion testimony of E. B. Hallmark, Jr., and Alvin Doyle, Jr., appellees’ expert witnesses, who undertook to reconstruct the accident, to the effect that immediately before the collision the brakes of the Buick were applied and the Buick’s right front wheel made a skid mark on its right edge of the pavement and in a parallel line to the highway, and also erred in admitting into evidence cross-plaintiffs’ Exhibit B, a sketch prepared by the witness Alvin Doyle, Jr., which showed the Le Compte Ford at an 82° angle and Sanders’ Buick entirely on its right side of the highway at the edge of the pavement and in a parallel position to the highway at the time of the collision, since the testimony of such witnesses took into consideration an erroneous assumption that the right front wheel of the Sanders Buick had made a brake tire mark at the north edge of, and in a parallel line to, the highway immediately before the collision; and because the undisputed factual testimony was that Sanders did not apply the brakes of his Buick on the occasion in question. Appellant also complains of the error of the court in failing to grant plaintiff’s motion to disregard and set aside the jury’s answer to Special Issue No. 17 to the effect that defendant Sanders did not fail to apply the brakes on his Buick, for the reason that the undisputed testimony shows that the brakes on the Buick were not applied immediately prior to the collision. The court’s error in such respects was calculated, appellant says, to influence the jury in their answering the ultimate issue of whether Sanders drove his Buick on his right side of the highway.

Appellant contends that the undisputed testimony shows that the brakes of the Buick were not applied immediately prior to the collision, and that cross-plaintiffs, through their counsel, introduced into evidence plaintiff’s Exhibit A, and in the admitted portions of such exhibit, cross-plaintiff Sanders stated unequivocally that he did not in fact apply the brakes on the Buick immediately before the collision.

It is appellant’s position that Sanders drove his Buick or some portion thereof on the wrong side of the road, and that Mrs. Le Compte, confronted with Sanders’ Buick on her side of the road, found herself in a position of imminent and apparent danger which threatened her life; and being so confronted she attempted to avoid the collision by applying her brakes and turning the Ford to her left side of the road, but at about the same time she took such action, Sanders’ Buick attempted to return from its wrong side to its right side of the road and the two automobiles came into collision. Appellant contends that at the moment of the collision Sanders’ Buick was at an angle to the highway and its rear was still occupying the wrong side of the road, which was a hard-topped road without a marked center stripe and only 18 feet 6 inches in width.

Appellant asserts that the crucial issue in this case was whether Sanders drove some portion of his Buick on his left side of the highway and was angling back toward his right side immediately before the collision, or whether at such time Sanders’ Buick was on its right side of the highway and parallel to the edge of the pavement. The witnesses Hallmark and Doyle testified over appellant’s objections that in their opinion the brakes on Sanders’ Buick were applied and made a brake tire mark or skid mark on his right edge of the pavement and in a parallel line to the highway. Such testimony supports Sanders’ and Woods’ testimony that the Buick was on its righthand side of the highway.

The evidence shows that Woods did not know whether or not Sanders applied his brakes. He testified: “I wouldn’t think he would have time.” At another time he answered: “I don’t know.” It is uncontro-verted that Woods didn’t know whether or not Sanders applied his brakes.

It is appellant’s contention that his Exhibit A constitutes a judicial admission on the part of cross-plaintiff Sanders to the effect that he did not apply his brakes, and that hence it was error on the part of the trial court to permit cross-plaintiffs’ experts, Hallmark and Doyle, to in effect controvert such judicial admission by testifying to the skid mark which they claimed the right front wheel of the Buick made on the right edge of the pavement parallel to the highway, and also erred in admitting cross-plaintiffs’ Exhibit B, a sketch prepared by the expert witness, Alvin Doyle, Jr.

In order to determine whether or not Exhibit A does or does not constitute a judicial admission on the part of appellee Sanders, which he may not controvert himself or by his witnesses, it is necessary to examine not only the contents of such exhibit but the testimony given at the trial by Sanders, and the facts and circumstances leading up to the admission in evidence of Exhibit A and the stipulation made by counsel representing Sanders at the trial.

Prior to the admission of Exhibit A Sanders had testified in person at the trial at length with respect to whether there had been an application of the brakes of his Buick. When asked whether he had attempted to apply his brakes before the collision, he testified: “Yes, I tried to, I don’t know whether they got on, or not, I did try to apply the brakes, yes, sir.” He also testified: “They may have held, I just don’t know.” He further testified: “I don’t know, I didn’t say I did, I just said I tried to, I don’t know if I got them on or not.” Sanders was being examined as an adverse witness by appellant’s counsel. After the above testimony, he was asked with respect to the former trial of the case, and testified: “I just got through telling you whether I got them on or not, just a few minutes ago.”

“Q Well, the question Mr. Sanders is ‘Then you may have tried to apply your brakes and did not get your brakes in application before the collision, is that right’ and your answer was ‘That’s right.’, is that a correct statement?
“A Sure.”

The testimony up to this point clearly shows that Sanders did not know whether or not he applied his brakes. He was under the impression that he tried to apply them but did not know whether or not he got the brakes in application before the collision.

Prior to the introduction in evidence of appellant’s (Plaintiff’s) Exhibit A, appellant’s attorney had interrogated Sanders with respect to statements made in such Exhibit, and had gotten before the jury a number of statements contained therein, including the following unresponsive statement made by Sanders: “I know Daddy said he thought I hit the brakes, but I didn’t. I didn’t have time. I was watching her and she was right on me. There wasn’t room to hit the brakes or anything, but just look and she turned sideways and went over.” Exhibit A is in the nature of an informal unsworn statement made on November 20, 1959 by Sanders, when interrogated before a shorthand reporter by appellant’s investigator. In the exhibit are statements made not only by Mr. Sanders, but also by his wife, Mrs. Sanders, who was present at the time. The court permitted counsel for appellant to interrogate Sanders with respect to such statements and to read the same to the jury. Appellant apparently concedes that up to this point the statements made by Sanders are quasi judicial and do not have the authority and effect of judicial admissions.

At the trial when examined by appellant’s counsel as to whether the answers made in plaintiff’s Exhibit A were true, Sanders testified that: “I don’t know, not necessarily truthful, but I did say it, I was trying to get rid of the men at the time they didn’t like it when I said I was on my side of the road, and they kept on hammering and I was trying to get rid of them.” Later Sanders testified that the statements were true and that the statement was correctly transcribed. Appellees’ attorney, Brown, after further interrogation of Sanders, made the following statement in open court:

“Your Honor, at this time, Mr. Nance has asked that this exhibit— the statement taken on November 20, 1959; he asked that be identified as Plaintiff’s Exhibit No. A. At this time we would like to also introduce this into evidence with the exception of three pages. The statement is 31 pages long and 32 taken into account, the last page; and, we will formally state here that this may be introduced in evidence and taken by the jury to the jury room. That we are in agreement with that, and stipulate to it, with the exception of three pages, 22 through 24, that has nothing to do with the testimony of Virgil Sanders. * * * So outside of page 22 through 24, we agree that this may he introduced in evidence and be glad for the entire statement, with the exception of those pages be read to the jury.”
“THE COURT: Do you all agree to that?
“Mr. Nance: No, sir.
“THE COURT: Well, I will read it then, * * * I am going to admit plaintiff’s Exhibit A with the exception of pages 22, 23 and 24, inclusive therein of which I will hold my ruling in abeyance, until a later time, at this trial, on those three pages, but the others admitted.”

As we view the matter, counsel for ap-pellees was not agreeing to the correctness or accuracy of every statement made in Exhibit A. Counsel stated: “That we are in agreement with that, and stipulate to it, with the exception of three pages * * In reading further the statement made by counsel for Sanders, it clearly appears that the agreement was as follows: “ * * * We agree that this may be introduced in evidence and be glad for the entire statement, with the exception of those pages, be read to the jury.”

It is our view that counsel for appellee Sanders was in effect withdrawing the numerous objections he had been making to the statement, and was permitting it to be introduced in evidence by appellant, with the exception of the three pages in question, as Plaintiff’s Exhibit A. The exhibit is marked as Plaintiff’s Exhibit — not Cross-Plaintiffs’ Exhibit. It was the exhibit that appellant was trying to get in evidence and which the attorney for Sanders finally agreed might be introduced in evidence, thereby waiving all his objections thereto.

In our opinion this interpretation of what occurred is also borne out later in the record, where the attorney for appellant was objecting to any reference to the application of the brakes on the Buick by ap-pellees’ expert witnesses on the ground that Sanders had already testified that the brakes were not applied. At such time, the court remarked: “As I recall the testimony by the driver, he didn’t know whether he did or whether he did not apply the brakes and I am going .to overrule your objection.” Thereupon appellant proceeded to make his bill of exceptions after the jury were retired. At this time attorney for appellees said: “They introduced it marked as their exhibit” and the court stated: “I remember all of this.”

We are of the opinion that Exhibit A, which appellant introduced in evidence, does not constitute a judicial admission of the statements made therein by Sanders, although counsel for appellees joined in introducing such exhibit in evidence and agreed that it might be admitted in evidence and read to the jury. We hold that the trial court did not err in permitting appellees’ expert witnesses, Hallmark and Doyle, to testify as to the skid mark which they claim was made by the right front tire of the Buick near the edge of the pavement and parallel thereto, on the Buick’s righthand side of the highway. Both of such expert witnesses, in reconstructing the occurrence in question and in locating the vehicles at the time of and immediately before the collision, testified unequivocally as to such skid mark, and wholly independently of the uncertain testimony of Sanders, who in fact repeatedly testified during the trial before the exhibit was admitted that he just didn’t know whether or not he applied his brakes.

It is our view that the exhibit in question, and especially under the circumstances attendant upon its admission in evidence, does not meet the requirements essential to the character and dignity of a judicial admission as established by our courts. Appellant relies largely upon Griffin v. Superior Insurance Co., 1960, 161 Tex. 195, 338 S.W.2d 415, in which our Supreme Court referred to the case of United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, writ ref., and sets out the five rules which must apply before a party’s testimony is conclusive against him. We shall undertake to determine whether Sanders’ isolated statement or testimony in appellant’s Exhibit A so meets the test laid down in such rules as to be conclusive against him.

First, the statement relied upon must be made during the course of a judicial proceeding. Appellees concede that Sanders’ affirmation of the correctness of his statement was made during the trial. Nevertheless, the statement at issue was made originally as a part of an unsworn ex parte statement, not in a judicial proceeding.

Second, the statement must be contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony. The application vel non of Sanders’ brakes was a fact not essential to a determination of his theory of recovery or defense. Basically, Sanders’ theory of recovery was that he was at all relevant times prior to and at the time of the collision in his right-hand lane of traffic. Both he and Woods so testified. Had Sanders admitted that he was in the lefthand lane of traffic, such admission would be contrary to a fact essential to his theory of recovery or defense. His statement with respect to the application of brakes is no more than testimony of an evidentiary, as distinguished from an ultimate, determinative fact.

Third, the statement must be deliberate, clear and unequivocal. If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury as in the case of an ordinary witness. The statement in question merely contradicts other portions of Sanders’ testimony previously given at the trial. It is in the nature of additional testimony by Sanders at variance with what he had previously testified.

Fourth, that giving of conclusive effect to the declaration will be consistent with public policy upon which the rule is based. In the Griffin case, supra, the plaintiff had a burden to discharge and introduced no evidence to discharge such burden, but to the contrary, introduced evidence on the point exactly opposite to his contention. In United States Fidelity & Guaranty Co. v. Carr, supra, the court, in considering the drastic nature of the consequences of a judicial admission, said: “It follows that the rule or doctrine should be applied with caution.” It is our view that the policy of the rule would be offended by undertaking to give conclusive effect to Sanders’ statement.

Fifth, the declaration must be one relating to a fact upon which a judgment in favor of the opposing party may be based. It seems apparent that a judgment for appellant could not be based upon a statement by Sanders that he did not get his brakes applied before the point of impact. The statement of Sanders on which appellant relies might be helpful to appellant as evidence, but it could not be the basis of recovery for appellant. The judicial admission of the party witness, in addition to the requirements of the other four rules, must be a basic ultimate fact itself destructive of the case of the party making the admission and capable in itself of forming the basis of a judgment for his adversary.

In the Carr case, supra, the court, in discussing the rule that a party may be precluded from recovery by his own testimony, pointed out that for the rule to apply it must appear, among other things, that the statement relied upon is clear and positive and that it is not merely a contradiction of some other portion of the party’s testimony. In the instant case there can be no doubt that the statement made by Sanders and relied upon by appellant is contradictory of other portions of Sanders’ testimony at the trial. See Stanolind Oil & Gas Company v. State, 1940, 136 Tex. 5, 145 S.W.2d 569; Tackett v. Stephenville State Bank, Tex.Civ.App., 282 S.W.2d 921, writ ref., n.r.e.; Hudson v. Hudson, Tex.Civ.App., 265 S.W.2d 137, writ ref., n.r.e.; McCormick and Ray, Vol. 1, Texas Law of Evidence, Sec. 636, p. 482; Ibid, Vol. 22, Sec. 1128, p. 26. It is evident that the trial court considered such statement as merely testimony in connection with the other testimony given by Sanders at the trial. It seems apparent also that the trial court must have concluded from all the evidence that Sanders simply did not know whether or not he applied his brakes in the second or split second preceding the collision, and that if he did do so the application was automatic and not deliberate.

In answer to a hypothetical question asked by counsel for appellees, their witness Doyle testified: “The right front wheel of the Buick automobile made this mark (indicating). This is the location of the front wheel of the Buick.” He was then asked upon what he based such conclusion. He then testified that his opinion was based on the line of the left front wheel, which is opposite, and that it was the proper distance apart for the wheel treads of the Buick automobile. Appellant’s counsel thereupon moved the court to strike the answer of the witness for the reason that there is nothing in the record that says that the left tire of the Buick was 6 feet from the north edge of the shoulder and no evidence upon which to base the assumed state of facts in the hypothetical question. Thereafter, the court said: “I believe there is evidence.” The court thereupon overruled appellant’s objection. Appellant excepted to the court’s statement as a comment on the evidence. The witness thereupon stated, “Well, in continuing, sir, I never indicated any distance.” He also testified, “The wheel tread distance of the Buick happens to be not 6 feet, it happens not to be even five feet. I never made any mention of distance.”

It will be noted that the court did not refer to the testimony of any witness and made no comment thereupon. The court’s remark was not directed as to whether or not there was evidence that the mark on the north edge of the road and parallel to the road was made by the right front tire of the Buick, but instead was directed to one of the reasons testified to by the witness, Alvin Doyle, for his conclusion. The court’s remark was in reply to repeated and repetitious objections by appellant’s counsel and merely explained the reason for the ruling.

It is our view that such statement did not constitute a comment on the weight of the evidence or the testimony of any of the witnesses. The present case is distinguishable from the cases relied upon by appellant, such as Cross v. Houston Bus & Terminal Ry. Co., Tex.Civ.App., 351 S.W.2d 84, writ ref., n.r.e., and Thompson v. Janes, Tex.Civ.App., 227 S.W.2d 330. In the latter case the court said: “I believe this witness would be better qualified to answer the question than anybody else, I know of, * * It is clear that such remark by the court was a comment on the weight of the testimony of such witness.

If we are mistaken in holding that the statement made by the court did not constitute a comment on the evidence, it is our view that such remark, more or less casually made by the court in explanation of his ruling, was not such as was calculated to cause and probably did cause an improper verdict by the jury, especially in view of the vast amount of testimony and the large number of photographic exhibits showing the place of the collision that were adduced in evidence. Rule 434, Texas Rules of Civil Procedure.

We aré of the opinion that there is no merit in appellant’s contention that there was no evidence or insufficient evidence to support the jury’s finding that Sanders did not fail to keep such lookout for vehicles approaching him from the opposite direction as would have been kept by an ordinarily prudent person under the same or similar circumstances. Appellant has picked out a few statements made by Sanders in support of his contention, but has wholly overlooked numerous statements made by Sanders clearly indicating that he did keep a proper lookout. It is our view that there is ample evidence in support of the jury’s finding to Special Issue No. 13, and that such finding is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, writ ref., n.r.e.; Continental Bus System v. Biggers, Tex.Civ.App., 322 S.W.2d 1, writ ref., n.r.e.

Appellant next complains that the trial court erred in failing to grant appellant’s motion to set aside and disregard the jury’s finding to Special Issue No. 37 since the amount of $17,000.00 found by the jury for future necessary medical expenses which will in reasonable probability be incurred by Paul V. Woods, was excessive and unreasonable and not supported by the evidence and against the great weight and preponderance of the evidence. We do not agree. The injuries sustained by appellee Woods were exceedingly grave and in part permanent. Appellant does not complain of the amount of $70,000.00 found by the jury for Woods’ loss of earning capacity or the $13,000.00 found by the jury for his past medical expenses.

There is ample evidence supporting the finding of the jury to Special Issue No. 37. Dr. R. E. Gray testified that he would like to see appellee Woods at least every two weeks, for the rest of his life; that there might be times when it will be necessary to hospitalize him, and necessary to see him every day; that the charge for an office call was $5.00, but if he had to leave his practice and his patients and go up to Woods’ residence, that he would have to charge a legitimate fee, which he would consider somewhere in the neighborhood of $30.00, because it would take him a quarter or a half a day to go up there. He further testified: “I will bet you he will spend more than 15 days every year in the hospital,” and that he would have to spend $100.00 a year for drugs, and maybe more.

It is true that Woods was, on the date of the collision, 56 years of age, and that his life expectancy was approximately 16 years at the time of the trial. However, the jury was not bound by the evidence introduced as to appellee Woods’ life expectancy, and might have believed that he would live well beyond the same. Chemical Express Co. v. Cole, Tex.Civ.App., 342 S.W.2d 773, writ ref., n.r.e.

From the testimony the jury could have concluded that the doctor’s charge in the event that he did have to go to Paul Woods’ home to treat him would amount to approximately $30.00 per call every two weeks, and that at that rate Woods would incur an indebtedness for medical expense of some $780.00 per year, or $12,480.00 in 16 years for such item alone. In Renegar v. Cramer, Tex.Civ.App., 354 S.W.2d 663, ref., n.r.e., the jury awarded plaintiff, who was a housewife and part time teacher, $25,000.00 to compensate her for the cost of future domestic help. The appellant complained that under the evidence domestic help was neither required nor contemplated except while she was teaching school, and there was no evidence as to how long she would teach. The court, among other things, stated: “The jury has great latitude in finding the present value of future damages.” See Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830, writ ref., n.r.e.

Appellant offered no evidence concerning the earning power of money and no instruction was requested by appellant in the court’s charge. In Missouri-Pacific R. R. Co. v. Kimbrell, 1960, 160 Tex. 542, 334 S.W.2d 283, our Supreme Court stated:

“It is a well-settled rule in this jurisdiction that the jury has the power to consider as proven any matter that is of common knowledge in the community. 1 McCormick & Ray, Texas Law of Evidence (2nd ed.), Sec. 156. In our practice, while the jury must assess damages to accrue in the future on the basis of their amount if paid now in cash, still no evidence of the earning power of money must be introduced.”

If we add to the sum of $12,480.00, fox-visits by the doctor, hospitalization for 15 or more days each year, which would probably amount to around $375.00 accord-ding to appellant’s figures, and drugs in the amount of $100.00 per year, we would have an additional amount of $7,600.00, which added to the $12,480.00 would make a total of $20,080.00, which is an amount in excess of what the jury allowed. We cannot say that the finding of the jury to such issue is not supported by ample evidence or that it is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant’s final Point is to the effect that the trial court erred in overruling plaintiff’s motion to disregard the jury answer to Special Issues Nos. 31, 32 and 33, on the ground that such answers are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust and unfair. Appellant also complains that the trial court erred in failing to grant his motion to set aside the entire jury verdict based upon the jury’s conduct in finding “no damages” in answer to said special issues, because the evidence conclusively established as a matter of law that appellant did sustain damages.

The special issues in question had to do with the sum of money that would reasonably compensate appellant Le Compte for pecuniary loss sustained by him as a direct and proximate result of the death of his wife, and the reasonable cost for the funeral of Mrs. Le Compte, and property damage suffered to his Ford automobile. To each of such issues, the jury answered, “None.”

In view of the answers of the jury to other issues submitted, the answers to these particular issues were immaterial and ir-revelant to the outcome of the case. In Southern Pine Lumber Co. v. Andrade, 1939, 132 Tex. 372, 124 S.W.2d 334, our Supreme Court held in effect that the findings of the jury supported and required the rendition of a judgment in favor of the plaintiff in error, regardless of the extent of the injuries suffered by the defendant in error. The Court said, among other things:

“ * * * and in view of these findings, it would have been the duty of the trial court to render the judgment that it did render, even if the jury had answered that defendant in error was damaged in a substantial amount or even if the jury had failed to answer the issue as to damages. That issue became immaterial when the jury found that defendant in error was guilty of contributory negligence that proximately caused the collision.
“There is nothing in the record suggesting that the jury was induced by prejudice or by some improper influence to answer as it did the issue as to damages, unless it is the bare fact that the answer is contrary to the undisputed evidence, which shows that defendant in error suffered severe physical injuries. The action of a jury in answering an issue directly contrary to the undisputed evidence may be cause for suspicion that the answer was induced by prejudice or by improper influence. But we would not be justified in assuming that prejudice or improper influence was responsible for the jury’s answers convicting defendant in error of contributory negligence when there is in the record substantial evidence supporting those answers and no evidence that prejudice or improper influence entered into or caused them.”

It is our view that the case of Southern Pine Lumber Co. v. Andrade is decisive of appellant’s Point of Error. A number of cases by our Courts of Civil Appeals have followed the reasoning of such case. In such cases the appellant contended that a finding of “none” to the damage issue was sufficient to cause a reversal of the case even though the liability issues were found against the appellant. In each of such cases the court held to the contrary under the authority of Southern Pine Lumber Co. v. Andrade, supra. See Doornbos v. Looney, Tex.Civ.App., 159 S.W.2d 155, ref., w. o. m.; Tumlinson v. San Antonio Brewing Ass’n, Tex.Civ.App., 170 S.W.2d 620, ref., w. o. m.; Hunter v. Texas Electric Ry. Co., Tex.Civ.App., 194 S.W.2d 281, writ ref., aff’d 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 402; Guerrero v. Wright, Tex. Civ.App., 225 S.W.2d 609, writ ref., n. r. e.

Judgment of the trial court is affirmed.