author: NORVELL, Justice. STEAKLEY, Justice

text:
    UNITED SERVICES LIFE INSURANCE COMPANY, Petitioner, v. Joan Flores DELANEY, Respondent.
    No. A-10671.
    Supreme Court of Texas.
    Dec. 1, 1965.

      Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for petitioner.
    Horace P. Shelton, Jr., San Antonio, for respondent.
   NORVELL, Justice.

This is a suit for a declaratory judgment brought under the provisions of the Uniform Declaratory Judgments Act (Article 2524 — 1, Vernon’s Ann.Tex.Stats.) by United Services Life Insurance Company against Joan Flores Delaney, the beneficiary named in an insurance policy issued by United Services covering the life of her deceased husband, Robert H. Delaney. The trial court dismissed the suit for want of jurisdiction. The Court of Civil Appeals affirmed, holding that under the facts and circumstances of this case, the suit was one instituted for the purpose of procuring an advisory opinion and hence was a proceeding over which the judicial branch of government had no jurisdiction. 386 S.W.2d 648. We affirm the judgments of the lower courts.

History of the Litigation

The litigation of which the present suit is a phase is highly involved, but a recitation of the circumstances that brought about the filing of the present proceedings is essential to an understanding of the jurisdictional problem presented.

The insurance policy which is the subject matter of This suit was issued by petitioner United Services on October 1, 1957. On May 8, 1959, the insured, Lieutenant Robert H. Delaney, died of injuries received as the pilot and only occupant of an aircraft owned and operated by the United States government. The policy contained the following clause:

“Limitation Due to Aviation Hazard” “If this policy shall become a claim by death of the insured due to any service, training, travel, flight, ascent or descent in, on, or froth any species of aircraft at anytime, except death resulting from travel as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a scheduled passenger air service regularly offered between specified airports, the liability of the company under this policy shall be limited to the premiums paid hereunder or to the then net reserve at time of death, if greater; any provision in this policy to the contrary notwithstanding.”

The company asserted that this limitation was applicable to the case and denied liability. Mrs. Delaney thereupon filed suit in the United States District Court for the Western District of Texas. On December 27, 1961, the judge of said court handed, down his opinion supporting the proposition that Lieutenant Delaney’s death was covered by the policy. 201 F.Supp. 25. Judgment was rendered awarding Mrs. Delaney a recovery.

In the course of his opinion the District Judge said:

“The plaintiff claims that she is entitled to judgment, because when the insured was killed, he was a ‘passenger’ in an aircraft owned and operated by the United States government; therefore, his death was clearly within one of the exceptions to the aviation rider. The case of Continental Casualty Co. v. Warren (1953), 152 Tex. 164, 254 S.W.2d 762, 764, decided by the Supreme Court of Texas, is cited in support of that position. There, the Court, in holding that the pilot was covered by a policy indemnifying the insured for loss resulting from injury sustained in consequence of ‘riding as a passenger’ in a specified airplane owned by the insured and piloted by an authorized person, said that the words ‘as a passenger’ could be construed to mean ‘as an occupant,’ and concluded that the special rule of construction governing insurance cases requires that exceptions and words of limitations be strictly construed against the insurer, and favors a solution that would include rather than exclude the pilot. There is no language in the aviation rider involved herein which would compel a different conclusion, and ‘the intent of the policy to exclude the pilot is not so certain as to make it wholly unreasonable to say that he was included.’ ”

Upon appeal to the Fifth Circuit Court of Appeals, the case was referred to a panel of three judges and the judgment of the District Court was affirmed by a vote of two to one. 308 F.2d 484 (1962). The majority agreed with the District Court and held that, “After a close study of that case [Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, 1953] we conclude that the principles of law established by it control the decision of this case and we affirm the judgment of the court below.” The dissenting judge was of the opinion that the Delaney case could be distinguished from Warren. It is evident, however, that he did not consider that Warren was a sound decision. He said:

“I would hold the parties to the plain meaning of everyday words used in their ordinary sense in an unambiguous contract. I decline to aid and abet in the verbocide of the good word ‘passenger’ ”.

Upon rehearing, this case was considered by the Court of Appeals en banc, along with the case of Paul Revere Life Insurance Company v. First National Bank, Administrator, 5 Cir., 328 F.2d 483. By a vote of five to four, the Court, relying upon Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058, invoked the so-called “abstention doctrine”. In concluding its opinion the Court said:

“[E]ach of the appellants can, and should, promptly initiate a proceeding in a Texas court seeking a declaratory judgment for the determining of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.
“An order will be entered in each of the appeals staying further proceedings in this Court until the courts of Texas shall have been afforded an opportunity to determine the issues to be submitted. This Court will retain jurisdiction for the purpose of taking such further action as may be required.”

In the Paul Revere Life Insurance Company case, the Supreme Court of the United States denied a petition for certiorari, 377 U.S. 935, 84 S.Ct. 1335, 12 L.Ed.2d 798. Mr. Justice Douglas was in favor of granting the writ.

The minority took the position that, “The mandate from Congress that we decide diversity cases, Title 28 U.S.C.A., § 1332; Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, makes plain our duty to decide these matters,” and pointed out that Texas, unlike Florida, has made no provisions for the certification by federal courts of doubtful questions to its Supreme Court for resolution. Judge John R. Brown filed a special concurring opinion in answer to the dissent in which he expressed the opinion that the Uniform Declaratory Judgments Act, Art. 2524-1, provides a Texas solution for the problem of allowing a state court to decide a question of Texas law involved in a case pending in the federal Court of Appeals.

Opinion

The question of whether or not the federal court should stay its hand in diversity cases pending state action is a federal question which was settled insofar as this case is concerned by the action of the Supreme Court of the United States in denying the petition for certiorari in the Paul Revere Life Insurance case.

There are serious difficulties on the state side of the question. The Uniform Declaratory Judgments Act (Article 2524-1) provides a plenary remedy. A court having jurisdiction to render a declaratory judgment has power to determine issues of fact, issues of state law and issues of federal law if such questions be involved in the particular case. It was not intended to provide for the piecemeal trial of a lawsuit. It is the obvious purpose of the federal Court of Appeals to secure a decision upon an issue of state law so that it may thereafter render a final judgment between the parties. See, East Coast Lumber Terminal, Inc. v. Town of Babylon, 2 Cir., 174 F.2d 106, 8 A.L.R.2d 1219 (1949), 73 Harvard L.Rev. 1358, l. c. 1360. We have a situation therefore in which a cause or at least portions thereof are pending in two courts, one of which (the state court) is not empowered to render a final enforceable judgment. The Declaratory Judgment procedure is ill adapted to accomplish the objective sought by the federal appellate court.

From a state standpoint, a fatal impediment to the Texas court’s assuming jurisdiction of this litigation in the present posture of the case arises from constitutional considerations. In Douglas Oil Co. v. State (Whiteside case), 81 S.W.2d 1064 (Tex.Civ.App.1935), Chief Justice McClen-don writing for the Austin Court of Civil Appeals, discussed at some length the nature and history of advisory opinions. He pointed out that in a few states advisory opinions have been given by judicial tribunals in the absence of constitutional authority and that in a small number of states advisory opinions have been given without either supporting constitutional or statutory authorization. However, the opinion stated that;

“The giving of advisory opinions is generally recognized as a nonjudicial function; and except as noted above has not been practiced in any of the American states. An authorizing provision was proposed in the Federal Constitutional Convention, but was defeated ; and the Supreme Court of the United States has always declined to recognize it as within its constituent authority. This view, held also by the state courts except as noted, is a necessary conclusion from the constitutional separation of the powers of government into the three departments, executive, legislative, and judicial, and the essentially implicit deduction that, absent express constitutional authorization, none of these departments may exercise any of the powers inherently pertaining to another.”

There are numerous Texas authorities which hold that the giving of advisory opinions is not a judicial function. In Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958), this Court said, “It is well settled that [Texas] courts will not give advisory opinions.” See also, California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, affirming Puretex Lemon Juice, Inc. v. California Products, Inc., 324 S.W.2d 449 (Tex.Civ.App.1959); Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955); Orange Independent School District v. West Orange Independent School District, 390 S.W.2d 81 (Tex.Civ.App.1965, ref. n. r. e.).

The present suit was originally filed in the district court but it is readily apparent from the order of the Circuit Court that the purpose of its directive is to obtain a decision by this Court upon a point of Texas law so that under the doctrine of Erie Railway Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the federal court may render a judgment in accordance therewith.

We have no doubt that, in keeping with the Erie decision, the federal court would render a judgment in keeping with our interpretation of Texas law in this case, but the question is not one of comity, nor of federal policy. It is a question of the power, authority and jurisdiction of the state courts under the Texas Constitution. In Board of Water Engineers v. City of San Antonio, supra, we pointed out that as a prerequisite to the declaratory judgment process, “(a) there shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.” (Italics supplied.) If the state court is to entertain a suit for declaratory relief, it must have the power and jurisdiction to settle the controversy by entry of a final judgment. This is not a case in which a federal suit has been stayed in order that some other and different lawsuit pending in the state courts may be determined. Here, in effect, the same suit is pending in both the state and federal courts by reason of a directive which contemplates that the final judgment will be rendered by a federal court. The Circuit Court’s reservation of jurisdiction to render final judgment renders these proceedings advisory in nature.

The leading case upon the point is Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), opinion by Chief Justice Cure-ton. The 43rd Legislature adopted two acts. One related to a judicial stay of foreclosure of liens. Acts 1933, 43rd Leg., Ch. 102, p. 225, Article 2218b, Vernon’s Ann. Tex.Stats. The other related to the certification of constitutional questions by the district and county courts to the Courts of Civil Appeals. Acts 1933, 43rd Leg., Ch. 71, p. 147, Article 1851a, Vernon’s Ann. Tex.Stats.

Acting under the provisions of the latter act, the judge of one of the district courts of Tarrant County certified to the Fort Worth Court of Civil Appeals the question of whether or not the act providing for a judicial stay order (Art. 2218b) was constitutional. In turn, the Court of Civil Appeals certified the question to this Court. The certificate was dismissed for want of jurisdiction. This Court held the 1933 Act of the Legislature was unconstitutional in that it sought to vest the Courts of Civil. Appeals with a non-judicial function contrary to the Texas Constitution.

The certification act which was held invalid provided that any district or county court should be empowered to certify to the Court of Civil Appeals any question or questions of the constitutionality of “any law or any order, rule or regulation of any officer, board or other State Commission.” The act also provided that the Court of Civil Appeals could in its discretion “forthwith certify said question or questions immediately to the Supreme Court * * Section 4 of the act provided that, “The trial court may hold the trial of said cause in abeyance until its questions have been certified and answered. * * * ”

This Court said:

“It is obvious that the purpose of this act is to obtain before judgment in the trial court the advice of the Court of Civil Appeals and the Supreme Court as to "the constitutionality of any law or any order, rule or regulation of any officer, board, or other State Commission,’ which may be involved in any case pending but undetermined in a trial court.” (Emphasis is that of Chief Justice Cureton.)

It was held that before a power could be classified as judicial under our constitution, the trial tribunal must have the authority to hear the facts, to decide the issues of fact made by the pleadings, to decide the questions of law involved, and possess the power to enter a judgment on the facts found in accordance with the law as determined by the court. It follows that a tribunal which is not empowered to render a final judgment is not functioning in a judicial capacity. Since the federal court will enter the final decree, any decision we may make in this case will be advisory in nature.

As to the Texas appellate courts, it was directly held in Morrow that the constitutional provisions relating to this Court and the Courts of Civil Appeals do not authorize said courts to render advisory opinions. It was said:

“We think the plain reading of the Constitution concludes the question that the Supreme Court and the Courts of Civil Appeals may exercise only these two classes of jurisdiction. Yett v. Cook, 115 Tex. 175, 180, 268 S.W. 715, 281 S.W. 843. Neither is given any advisory power by the organic law and since not given, under the rule expressio unius est exclusio al-terius it is denied and can not be conferred by the Legislature. 15 Corpus Juris, p. 785, § 79; Madison’s Journal of the Const.Conv. (Scott’s Ed.) pp. 558, 559; Marshall’s Life of Washington, chap. 6; Spark’s Life of Washington, vol. 10, pp. 359, 542; Thayer’s Mem. Advisory Opinions, 13; Story on the Const. (5th Ed.) § 1571; State [ex rel. Mille Lacs County Treasurer] v. Dike, 20 Minn. 363 (Gil. 314); Rice v. Austin, 19 Minn. 103 (Gil. 74), 18 Am.Rep. 330; In re Senate of State, 10 Minn. 78 (Gil. 56); State v. Baughman, 38 Ohio St. 455; Rogers v. Kennard, 54 Tex. 30; State v. Moore, 57 Tex. 307; Arnold v. Leonard, 114 Tex. 535, 540, 273 S.W. 799; 4 Michie’s Digest, p. 395, § 10.”

We are aware of the fact that the Supreme Court of Louisiana in Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961) in effect rendered an advisory opinion in the form of a declaratory judgment pursuant to a directive of the United States Supreme Court. The majority opinion frankly acknowledged that an advisory opinion was called for. It was said that:

“To us it is evident that in this action, instituted pursuant to the directive of the United States Supreme Court under the Louisiana Declaratory Judgments Act, we are called upon to render only an advisory opinion. * * This case is unusual, however, in that the highest court in the land deems it ‘advisable’ for us to render such an opinion. Therefore, out of respect for, and as a courtesy to, that court, we proceed to do so, in the hope that our opinion will be of some assistance to the United States Supreme Court in its solution of the fundamental question raised in the litigation pending in the federal courts.”

The majority opinion also recognized that the case was pending in two courts of different jurisdictions at the same time. It is said:

“We are mindful, however, that the interpretation of this reservation is for the United States courts, and not for us in this proceeding, even though Leiter’s petition in this suit, after praying for an interpretation of Act 315 of 1940 as outlined in the opinion of the Supreme Court, asks the court to declare that Act 315 of 1940 applies to the mineral reservation in the deed to the government. * * * The interpretation of the contract is for the United States courts.”

Because of this circumstance, the Louisiana opinion is highly tentative in nature. For example, it is said:

“If the United States Supreme Court construes the reservation as one establishing a servitude for a certain time or of specific duration * * * then Act 315 of 1940 is not applicable and if applied would be unconstitutional. * * *
“If the United States Supreme Court concludes * * * that the reservation does not establish a servitude for a certain time or of .specific duration but establishes one of uncertain and indefinite duration, and that it was the intention of the parties to fix by contract the period of liberative prescription, then Act 315 of 1940 is applicable and constitutional.”

Perhaps the Leiter case presents a more usual litigable situation than does the present case. In Leiter it was conceded that there were questions for federal court decision and perhaps, depending upon the federal action taken, there might be questions involving interpretation of state law. Here, the parties seemingly treat the case as involving a question of state law only, such question being whether or not the decision of this Court in Continental Casualty Company v. Warren, 152 Tex. 164, 254 S.W.2d 762, should be followed. However, the circumstance that there seems to be no disputed fact issue or question of federal law involved should not obscure the controlling factors in the case. Should we here answer the question which is propounded to us upon the theory that we have a declaratory judgment case before us, we would be compelled, as a logical proposition, to take the same position as that taken by the majority of the Louisiana court. That position recognizes that a tribunal of the judicial branch of government may constitutionally render an advisory opinion and, consequently, in the usual case (i. e. one involving fact issues), we would trim the plenary remedy of declaratory judgment to something less than the rendition of a final judgment in a lawsuit by eliminating all decisions involving fact issues and questions of federal law. We believe it axiomatic that in diversity cases, no federal court can constitutionally cede to a state court, jurisdiction to decide fact issues or questions of federal law. What the Louisiana court did in Leiter was to adopt an advisory opinion practice. The Louisiana majority opinion' contains no discussion of constitutional questions and we must necessarily assume that under the Louisiana decisions, no constitutional inhibition against the advisory opinion is recognized. We have a contrary situation existing in this state. In Douglas Oil Co. v. State (Whiteside case), 124 Tex. 232, 76 S.W.2d 1043 (1934), this Court dismissed a certified question from a Court of Civil Appeals because, “The certificate calls upon the Supreme Court to give an advisory opinion, which is not permitted. Morrow v. Corbin, 122 Tex. 553, 62 S.W.(2d) 641.”

Since the rendition of advisory opinions by courts is unauthorized by our constitution, it is undoubtedly sound law to say that the directive of a federal court could no more operate to vest this Court with jurisdiction to render an advisory opinion than it could empower this Court to try and determine a criminal case contrary to the peculiar provisions of the Texas Constitution which vest that jurisdiction in the Court of Criminal Appeals. Under our judicial set-up, some matters are settled by constitutional provision, others are determined by statute, while still others are controlled by court decisions or court promulgated rules. We are here confronted with a constitutional lack of power.

Any action we might take in this proceeding could not operate as res judicata in the federal court. It is a rule of general application that the pend-ency of an in personam action in a state court is not a ground for abatement or injunctive relief against the prosecution of the same suit in a federal court. This, because, “Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case.” Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077 (1922). Obviously, any answer which we should give as to the bindingness of our holding in Continental Casualty Company v. Warren would not control federal court action under the doctrine of res judicata. Actually what we are called upon to do is to answer a question and not render a judgment. As above stated, this case is now pending in two separate courts at one and the same time with the power vested in one court only (the Circuit Court of Appeals) to render a final judgment. The rule of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938) is involved, but that doctrine is essentially one of precedent or stare decisis and wholly unrelated to res judicata.

While in a one point case involving a matter of state law, some apparent plausibility may be marshalled to support an argument along lines suggested by the rule of res judicata, such argument wholly fails when applied to a case involving fact issues or questions of federal law. This, for the reason that the state court cannot under a procedure such as adopted in this case render a conclusive judgment as to such issues. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

Seemingly both litigating parties are agreed that some form of effective communication should exist between the state and federal courts relating to cases involving questions of state law which come within the ambit of the Erie doctrine. However, the declaratory judgment procedure, necessitating as it does, the filing of a suit in a trial court and the prosecution of an appeal to an intermediate appellate court and thence to this Court, is highly cumbersome, expensive and time consuming. The process is rather like burning a house to roast a pig. A certified question practice, which in the light of the Texas experience, might be expected to present some attendant and vexatious problems, seems more advisable. The federal courts are only interested in decisions of this Court relating to questions of Texas law. As a practical matter, the question should come directly to this Court from either the Supreme Court of the United States or one of the Circuit Courts of Appeals. Because of the Texas Constitution and the' decisions of this Court construing some of its provisions, it would be necessary to amend our fundamental law in order to accomplish the ends desired. However, if reform be advisable and the need for change be substantial, the legislative power is generally responsive even though constitutional amendment may be involved.'

Conclusion

For the reasons above stated, we hold that the trial court properly refused to assume jurisdiction of this case and the Court of Civil Appeals correctly affirmed its decision. The judgments of both courts below are affirmed.

CALVERT, C. J., and HAMILTON and STEAKLEY, JJ., dissenting.

POPE, J., not sitting.

STEAKLEY, Justice

(dissenting).

Whether or not we agree in principle, the Federal Court of Appeals, while retaining jurisdiction “for the purpose of taking such further action as may be required,” is standing by in a diversity case, in which no federal question is to be decided and no fact question is to be resolved, while the parties obtain an adjudication under our declaratory judgment procedure of a question of local law. I would test the question of whether the judgment of our courts would be advisory only, and hence whether or not we have jurisdiction, by two considerations: First, whether our courts in the declaratory judgment proceeding can enter final judgment granting the relief sought, and, second, whether the judgment of our courts will conclusively settle and terminate the controversy between the parties.

As to the first, this is simply a proceeding to obtain a declaration under local law of the legal rights of an insurance company and the beneficiary of a policy issued by the company. There is no impediment to state jurisdiction in the fact that a suit involving the same subject matter is pending in a federal court. It was held in Kline v. Burke Construction Co., 260 U.S. 226, 232, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922):

“Where a suit is strictly in personam, in which nothing more than a personal judgment is sought, there Is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined; and this because it neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law.”

This was reaffirmed in McNeese v. Board of Education, etc., 373 U.S. 668, 673-674 n. 5, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622 (1963):

“And we held in Kline v. Burke Constr. Co. * * * a suit in per-sonam based on diversity of citizenship could continue in the federal court even though a suit on the same cause of action had been started in the state court: ‘Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res ad judicata by the court in which the action is still pending * * ”

For an explication of the above rule, see Hart & Wechsler, The Federal Courts and the Federal System 1073-74 (1953); Gowen & Izler, Abstentation in Diversity Cases, 43 Tex.L.Rev. 194, 207 (1964).

Contrary, then, to the disparagement in the majority opinion, it is not a directive of a federal court which vests our courts with jurisdiction to decláre the rights of the parties in this proceeding but, to the contrary, that which does so is the filing of a suit invoking the provisions of the Texas Declaratory Judgments Act, Article 2524-1, Vernon’s Annotated Civil Statutes. The Act has been upheld by this Court and has been given a liberal construction to accomplish its purposes. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837 (1945); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97 (1955). Apparently the majority in its reliance upon Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), is of the view that the giving of consequential relief is essential to an exercise of the judicial function and prerequisite to the existence of jurisdiction in a court to enter a declaratory judgment. It is probably true that the later-enacted Texas Declaratory Judgments Act will not stand a literal application of the conditions to jurisdiction enumerated in Morrow in deciding the problem there presented. But the Texas Act is written in express contemplation of utilization of its procedures in situations where consequential relief cannot be given.

Bórchard in his work on Declaratory Judgments 25 (2d ed. 1941), speaks of a declaratory judgment action as differing “in form in no essential respect from any other action, except that the prayer for relief does not seek execution or performance from the defendant or opposing party.” The Supreme Court of Indiana speaks in terms of a declaratory judgment being “none the less an exercise of judicial power even though it does not carry with it, by force of the judgment itself, consequential relief.” Rauh v. Fletcher Savings and Trust Co., 207 Ind. 638, 194 N.E. 334, 336 (1935).

This Court delineated the true advisory opinion situation in California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), as one where an actual and real dispute was not before the court and a concrete case was not present; as a consequence, a judgment by the court would settle nothing and be binding on no one. But the situation before us here is as expressed by the Supreme Court of Michigan: “When an actual controversy exists between parties, [and] is submitted in formal proceedings to a court, the decision of the court is binding upon the parties and their privies and is res ad-judicata of the issue in any other proceeding in court in which it may be involved, what else can the decision be but the exercise of judicial power?” Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 620, 68 A.L.R. 105 (1930).

The second of the conditions to jurisdiction which I pose is also present. Under the circumstances of this case — no federal or fact questions — the final judgment of our courts will be conclusive and further action in the federal courts may be only in accordance therewith. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938); West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Clay v. Sun Insurance Office, Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960). The last word on a question of local law is the state forum. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). This is res judicata in principle if not in the conventional sense. Indeed, the Fifth Circuit Court of Appeals in its subsequent opinion in Clay [Sun Insurance Office, Ltd. v. Clay, 319 F.2d 505 (1963)], in reasoning to another problem, stated the view that an adjudication of the state court “in litigation inter parties during a federal court abstention” would constitute “a binding determination which became the law of the case and res judicata.” A decision in the state court even on a federal question is res judicata where the litigant, though going to the state court involuntarily, does not reserve his right to return to the federal forum for a final adjudication. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949). The right of a litigant in a diversity case to a federal determination of federal or of fact questions may, in the abstention situation, be protected either by a reservation of jurisdiction by the federal court or by a reservation of such right by the litigant. But even in such circumstances neither the federal court nor a litigant can prevent the binding force of a decision of a state court on a question of local law. It was said in Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, 2086, 160 A.L.R. 1231 (1945):

“Here we are dealing with a right to recover derived not from the United States but from one of the States. When, because the plaintiff happens to be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic. But since a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.”

Policy considerations seem to have fathered the majoi'ty holding. The declaratory judgment procedure is described as “highly cumbersome, expensive and time consuming”; a certified question practice is said to be “more advisable” and “the question should come directly to this Court from either the Supreme Court of the United States or one of the Circuit Courts of Appeals.” These are policy considerations, as is the question of whether this proceeding represents a sensible accommodation between the federal and state judicial systems. But I fail to see the relevance of these matters to the problem of jurisdiction. Nor do I feel that our decision here should be influenced by jurisdiction or policy problems which may be presented in the abstention case involving federal or fact questions where our courts will have only a fragment of a case pending in the federal courts. This is the “one point case involving a matter of state law” which gives the majority some pause [majority opinion page 864]. What is decided by our courts will terminate the controversy between the parties and in my view will be res judicata as to the entire case. Clearly, the judgment will be a decision made in adversary litigation in our courts and will leave nothing for the federal courts to decide.

CALVERT, C. J., and HAMILTON, J., join in this dissent.

      . As to abstention in diversity eases, Mr. Justice Douglas stated his position in a dissenting opinion delivered in Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170, as follows:
      “The situations where a federal court might await decision in a state court or even remand the parties to it should he the exception not the rule. * * * Some litigants have long purses. Many, however, can hardly afford one lawsuit, let alone two. Shuttling the parties between state and federal tribunals is a sure way of defeating the ends of justice. The pursuit of justice is not an academic exercise. There are no foundations to finance the resolution of nice state law questions involved in federal court litigation. The parties are entitled — absent unique and rare situations — to adjudication of their rights in the tribunals which Congress has empowered to act.”

      . Mrs. Delaney is a resident of Bexar County, Texas. United Services Life Insurance Company is incorporated under the laws of the District of Columbia.

      . The wisdom and practicability of the “abstention doctrine” particularly in diversify cases is a much mooted question as is evidenced by the opinions filed by the members of the Court of Appeals in this case. There exists a considerable literature concerning the doctrine. For example, see, Consequences of Abstention by a Federal Court, 73 Harvard L.Rev. 1358 (1960); The Abstention Doctrine Reconsidered, 37 Texas L.Rev. 815 (Charles A. Wright, 1959); Federal Procedural Reform and States’ Rights to a More Perfect Union, 40 Texas L.Rev. 211 (Charles E. Clark, late Circuit Judge, 2d Cir. 1961); Abstention — Certified Questions — Justiciability—Federal Proceedings Postponed Until State Court Determines Uncertain State Law, 40 Texas L.Rev. 1041 (Gurney R. Miller, Jr., 1962, Case Note; Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845, 1961; Sun Ins. Office, Ltd. v. Clay, Fla., 133 So.2d 735, 1961); Federal Court Abstention in Diversity of Citizenship Litigation, 43 Texas L.Rev. 194 (Charles L. Gowen and William H. Izlar, 1964) ; Study of the Division of Jurisdiction Between State and Federal Courts, Tentative Draft No. 3, American Law Institute, Commentary, § 1371 (1965).

      . In Pickens v. Hidalgo County Water Control and Improvement District No. 16, 284 S.W.2d 784 (Tex.Civ.App.1955, no wr. hist.) it was said:
      “A court will not grant a declaratory judgment if the same issues between the same parties were involved in another cause pending at the time of the filing of the declaratory proceedings.”
      See also, California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Smith v. Garrison, 303 S.W.2d 506 (Tex.Civ.App.1957, no wr. hist.); Southern Traffic Bureau v. Thompson, 232 S.W.2d 742 (Tex.Civ.App.1950, ref. n. r. e.); Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ.App.1945, ref. w. o. m.); 19 Tex.Jur.2d 152, Declaratory Relief, § 13.

      . The Whiteside case is one of three causes relating to the proper method of constructing block 194, G. C. & S. F., in Pecos County, Texas. The other two cases aFe generally referred to as the California case [Douglas Oil Co. v. State, 122 Tex. 377, 61 S.W.2d 807] and the Smith-Turner case [Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792]. The judgment of the Court of Civil Appeals in the White-side case (81 S.W.2d 1064) was reversed by the Supreme Court under the name and style of Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936). However, much of the opinion of the Court of Civil Appeals was adopted as the opinion of the Supreme Court. In the course of the litigation, a legal snarl developed with reference to certified question practice. The Supreme Court opinion (128 Tex. 324, 98 S.W.2d 993) contains citations to numerous opinions rendered in the course of this litigation. One certified question was dismissed because it called for an advisory opinion. See, Douglas Oil Co. v. State (Whiteside case) 124 Tex. 232, 76 S.W.2d 1043 (1934).

      . Chief Justice Cureton discussed at some length the old certified question -practice involving the Courts of Civil Appeals and the Supreme Court. This practice was largely rendered obsolete by the Legislature in 1953. See, Articles 1728 and 1821, Vernon’s Ann.Tex.Stats., as amended in 1953, New Legislation, Norvell and Peace, 16 Texas Bar Journal 581 (1953), Appellate Procedure in Texas, §§ 23.1 to 23.3, inch, Certification of Questions. In discussing the dissenting opinion of Chief Justice Stayton in Darnell v. Lyon, 85 Tex. 455, 22 S.W. 304, 960, Chief Justice Cureton described it as being “perhaps the strongest opinion he ever wrote, in which he held the certification statutes void” and further said, “Suffice it to say that we think the opinion was and is unanswerable; that the majority of the court at that time did not attempt its refutation, nor has any subsequent court endeavored to answer it.” In Morrow v. Corbin, the Court in effect assumed that the practice had a constitutional basis, — “The question being one of practice in which the power has been consistently exercised for a long period of time, with no substantive right of the citizen involved, we will presume that there existed then and that there exists now a constitutional basis for the law, although elusive to us, and sustain the statute.” As relating to the history of the certified question practice, see opinion on rehearing in Akers v. Epperson, 172 S.W.2d 512, l. c. 517 (Tex.Civ.App.1942), certified question answered 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028. Since Morrow v. Corbin, the old certified question cases afford no support for the practice suggested in this case.

      . In the American Law Institute’s Study of the Division of Jurisdiction between State and Federal Courts, Tentative Draft No. 3 (April 15,1965) Commentary, § 1361, it is saids
      “The Leiter -Minerals litigation remains unresolved, Leiter Minerals, Inc. v. United States, 329 F.2d 85 (5th Cir.1964), mere than eleven years after it was commenced and seven years after abstention was ordered. Leiter Minerals, Inc. v. United States, 352 U.S. 220 [77 S.Ct. 287, 1 L.Ed.2d 267] (1957).”
      Mr. Gurney R. Miller, Jr., in his case note relating to Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845, contained in 40 Texas L.Rev. 1041, regards the action of the Louisiana Court as being an assumption of jurisdiction even though the court recognized that no justiciable controversy existed. He contends that the effect of the use of the abstention doctrine and the modified and curtailed declaratory judgment procedure adopted in Leiter is to “place the state courts in the role of an advisory committee (and that) this role should not be accepted.”

      . In his dissenting opinion in Darnell v. Lyon, 85 Tex. 455, 22 S.W. 304 (1893), which was approved in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), Chief Justice Stayton in speaking of concurrent jurisdiction of appellate courts under the Texas Constitution said:
      “A court is said to have jurisdiction concurrent or co-ordinate with that possessed by another, when each has power, under the same facts and conditions, to determine and enforce the right of a litigant, and the general rule, when such jurisdiction is possessed by two or more courts, is for the one first acquiring jurisdiction of a particular cause to retain it; but there is no instance, under the constitution of this state, in which two courts can exercise concurrent or co-ordinate appellate jurisdiction.”
      See also, comments of Chief Justice McClendon relating to Morrow v. Corbin and Darnell v. Lyon contained in Douglas Oil Co. v. State (Whiteside case), 81 S.W.2d 1064 (Tex.Civ.App.).

      . Akers v. Epperson, 172 S.W.2d 512, 517 (Tex.Civ.App.1942). Also, see the White-side case mentioned in Footnote 5, supra.

      . The State of Florida has devised a statutory system embracing the certified question device. Evidently the Florida Constitution authorizes such action by its Legislature. See, Sun Ins. Office, Ltd. v. Clay, Fla., 133 So.2d 735 (1961); Consequences of Absention by a Federal Court, 73 Harvard L.Rev. 1358, lc. 1368.

      . In Propper the Supreme Court of the United States said that although the federal district court could compel parties before it to litigate in an appropriate state court some narrow issue of state law, “ * * * as the state court could reasonably require complete adjudication of the controversy, [if the state court did so] the District Court would perhaps be compelled to stay proceedings in the state court to protect its own jurisdiction. 28 U.S.C.1948 ed. § 2283. Otherwise in sending a fragment of the litigation to a state court, the federal court might find itself blocked by res judicata with the result that the entire federal controversy would be ousted from' the federal courts where it was placed by Congress.” See the concurring opinion in England.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Rogers L. VISER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38667.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Otis Scruggs, Jr., Houston, for appellant.
    . Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gene Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is under Art. 802c Vernon’s Ann.P.C., for the offense of murder without malice; the punishment, two years in the penitentiary.

The testimony of the state reveals that while the appellant, about 12:35 A.M., was driving a Chevrolet automobile south on Goliad Street, his automobile struck an Oldsmobile going west on Crockett Street, the impact occurring in the intersection of said streets. As a result of this impact, the Oldsmobile struck a Mercury, causing both cars to be turned upside down. There were stop signs on Goliad at the Crockett Street intersection. A search by the investigating officers failed to reveal any skid marks on the street immediately before the stop sign on Goliad at said intersection.

Officers Fain and Tilghman testified that they observed the appellant at the scene immediately after the collision and from his actions and conduct including the odor of alcohol on his body, they expressed the opinion that he was intoxicated. From a blood specimen voluntarily given by the appellant at the hospital, an analysis was made which showed an alcoholic content of 0.11 per cent. Chemist McDonald testified that in his opinion any person whose blood contained that per cent of alcohol would at the time the blood specimen was taken be intoxicated.

The appellant’s written statement made to officer Chebret in accordance with the provisions of Art. 727 C.C.P., was introduced in evidence and it .recites in part that he had been drinking beer before the collision, and that he was driving between 35 and 40 miles per hour * * * “as I approached the intersection of Goliad and Crockett I didn’t see the stop sign until I was right upon it * * * and then I felt a terrific impact.”

The deceased was driving the Oldsmobile which turned upside down crushing his skull and causing his death.

In the absence of the jury the court held a hearing on the voluntary nature of appellant’s written statement. After the hearing the court made an independent finding in which he concluded that such statement was voluntarily made.

Testifying in his own behalf, the appellant admitted he was driving his car and had’ been drinking some beer but that he was not intoxicated; that he saw and stopped for the stop sign at the intersection of Goliad and Crockett, that he looked both to the right and left and not seeing cars drove forward, and then he first saw a car coming from his left at 50 or 60 miles per hour, that he stopped and was hit by the oncoming car, and was unconscious for a while. He further testified that at the hospital they told him to sign some papers which he did and they gave him a blood test, and later the officers wrote a statement which he signed at their direction but he did not understand it.

The jury resolved the issues of fact against the appellant and we conclude that the evidence is sufficient to support the conviction.

Error is urged in permitting Dr. Bucklin to testify from the reports and records of the autopsy performed on the body of the deceased for the reason that he had no personal knowledge of the autopsy and such testimony was hearsay.

Dr. Bucklin testified that Dr. Jachim-czyk was the Medical Examiner of Harris County, and he was the Associate Medical Examiner of Harris County, and among his duties he was the custodian of the records of the office of the Medical Examiner of Harris County, which included the reports filed and the records of autopsies performed; that he had obtained the records of the autopsy filed in the office of the Harris County Medical Examiner in the courthouse showing the autopsy performed on Anthony Arsizo Munguia, and had such records in his hand.

Over the objection that the report was hearsay because the autopsy was performed by Dr. Jachimczyk and the report was also made and signed by Dr. Jachim-czyk, the report was admitted in evidence, but with the instruction that it was not to be exhibited before the jury.

The witness Bucklin read before the jury from the report only the findings of Dr. Jachimczyk, as shown by said record, that the cause of the death of the deceased, Anthony Arsizo Munguia was a crushed skull; and also the findings describing the tattoo marks on the body.

The records of the Medical Examiner were made public records by Art. 989a, C.C.P. The original records pertaining to the autopsy in question were here before the court in the possession of the witness, Dr. Bucklin. The portion of said record read to the jury by Dr. Bucklin was relevant and admissible in evidence.

It is contended that the body found at the scene of the accident was never established by competent evidence to be that of the deceased, Anthony A. Munguia, as alleged in the indictment.

Officer Chebret testified that he was at the scene within a few minutes after the accident; that a wrecker removed the Oldsmobile off the body; that he saw Deputy Medical Examiner Ismonde search the pockets of the deceased; that Ismonde found a wallet containing a driver’s license and other identification cards which bore the name of Anthony A. Munguia, which he showed to him (Chebret).

Thomas Munguia testified that on July 13, he learned of the accident that had happened to his brother, Anthony A. Munguia, and later attended his funeral service; and that his brother had several tattoos on his arms.

The autopsy report showed the same type and number of tattoo marks at the same locations on the arms of the deceased as described by deceased’s brother.

The appellant testified that he learned that the name of the man killed in the Oldsmobile was Anthony A. Munguia.

The facts and circumstances are sufficient to warrant the court’s submission of the name of the deceased as Anthony A. Munguia, to the jury. Clark v. State, 29 Tex.App. 357, 16 S.W. 187.

It is insisted that the written statement of the appellant was not voluntarily made.

The appellant admitted signing the statement introduced in evidence but says the officer read the statement to him which he did not understand, and after asking him some questions, wrote out the statement and told him to sign it which he did; that he was then sick and hurting because of the accident; and that some of the statement was true but that part about the stop sign, the speed and that he saw the Oldsmobile overturned was incorrect.

The voluntary nature of appellant’s written statement was properly submitted and resolved against him by the jury.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Senovio PEREZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 38757.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.

      Kelley, Looney, McLean & Littleton, by D. F. Martinak, Edinburg, for appellant.
    R. L. Lattimore, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is burglary; the punishment, four years.

The state’s proof shows that on the night of January 21, 1965, a building occupied by Scogin’s grocery in San Juan was broken into and burglarized. In the burglary, a safe weighing between six and seven hundred pounds was taken from the building. Other items of personal property were also taken, including $1,300 in cash, between thirty-five and forty cartons of Pall Mall, Camel, and Winston cigarettes, some razor blades and flashlight batteries, and a carton of cigarette lighters which was on a checking stand. The carton was shown by the evidence to be a board with ten cigarette lighters thereon.

On the night of January 23, 1965, while deputy sheriff Truett Jordan was traveling on a road south of Pharr, he observed an automobile being driven “pretty fast.” He proceeded to follow the car and when he saw that it had no tail light over the license plate, he brought it to a halt. He then went to the car. Appellant was sitting on the passenger side in the front seat and Fernando Santa Maria was sitting on the driver’s side. When asked what they were doing there, appellant and his companion replied, “Drinking beer.” After telling appellant, who had a bottle of beer in his hand, that he was not old enough to drink, Officer Jordan shined his flashlight in the back and saw a pasteboard box on the back seat. He also observed some cartons of cigarettes and a board of cigarette lighters in the box. Officer Jordan took the box out of the car and found that it contained some razor blades, flashlight batteries, nineteen cartons of cigarettes of different brands, and the board containing ten cigarette lighters. One Pall Mall carton of cigarettes in the box had been opened and four packages were missing therefrom.

A search of appellant revealed that he had on his person $126 in cash and one Pall Mall cigarette package in his shirt pocket with one cigarette in it. Appellant, when asked if he had any money, stated that he had $80 which he won in a crap game. A check of the numbers on the packages of cigarettes showed that the tax license number on the cigarette package in appellant’s pocket corresponded with and was the same as the number stamped on the opened Pall Mall carton found in the box. It was further shown that the tax license number on the packages of cigarettes in the box was the number used by the Sweeney wholesale grocery company in McAllen from which the owner of the burglarized store purchased cigarettes.

The safe taken in the burglary was found, the day after appellant’s arrest, at the city “dump,” which was some three-fourths mile from where he and his companion were apprehended.

Don Scogin, the owner of the store which was burglarized, testified that he recognized the pasteboard box found on the back seat of the automobile as one used by Picard Egg Company, from which he purchased eggs in the Valley. The witness positively identified the carton of cigarette lighters, by markings thereon, as that taken from his store. He further stated that the razor blades and flashlight batteries found in the box looked like some that were stolen from the store.

Testifying as a witness in his own behalf, appellant denied having committed the burglary and, in support of his defense of alibi, stated that on the night of the burglary he attended a dance in Pharr and then returned to his home and retired. Witnesses were also called who testified in support of his defense of alibi.

In describing his activities on the night of January 23rd, when he was arrested, appellant stated he met his companion, Santa Maria, at a pool hall in Pharr and that, from there, they went to a Seven-Eleven store and bought two quarts of beer. He stated that because he was not old enough to drink beer they drove out on a road toward a dump ground. While parked in the car, he saw a box and got out and went to see what it was. After he looked inside he called Santa Maria to help him put the box in the car. Santa Maria got out and they put the box in the car, which box was on the back seat when they were stopped by the officer. Appellant stated that the cigarette package found in his poeket with one cigarette in it was a package he took out of the box and that while driving toward Pharr he opened the package and threw all the cigarettes away but two. He also stated that the $126 he had on his person when arrested was money he had won in a crap game with some wetbacks.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence. Appellant’s defense of alibi was also submitted under appropriate instructions.

We first overrule appellant’s contention that the evidence is insufficient to support the conviction.

The evidence shows a burglary of the store building. The carton of cigarette lighters in appellant’s possession was positively identified by the store owner, Scogin, as the one taken from his building. Appellant’s possession was unexplained at the time he was arrested. His explanation made at the time of the trial is not controlling. Morin v. State, 171 Tex.Cr.R. 138, 346 S.W.2d 327.

The proof of appellant’s unexplained possession of the recently stolen property is sufficient to sustain his conviction for burglary. Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747; Adame v. State, Tex.Cr.App., 372 S.W.2d 545.

Appellant, having admitted in his testimony his possession of the property found in the car and on his person, is in no position to object to the search on the ground that it was illegal. Soble v. State, 153 Tex.Cr.R. 629, 218 S.W.2d 195; Salinas v. State, 159 Tex.Cr.R. 619, 266 S.W.2d 388; Clough v. State, 161 Tex.Cr.R. 454, 278 S.W.2d 847; Benavidez v. State, 164 Tex.Cr.R. 82, 296 S.W.2d 774.

Error is urged to the court’s refusal to grant a new trial because of certain alleged jury misconduct and improper jury argument by state’s counsel.

Bill of exception #1 by which appellant complains of the court’s refusal to grant a new trial because of alleged jury argument was by the court refused, with reasons noted in the court’s bill of exception filed in lieu thereof. No action was taken by appellant after the court refused to approve the bill.

The bill cannot be considered. Holley v. State, Tex.Cr.App., 366 S.W.2d 570; Lacy v. State, Tex.Cr.App., 374 S.W.2d 244.

Bill of exception #2 to the court’s action in refusing to grant a new trial for alleged jury misconduct was also refused by the court, with reasons stated in the court’s bill filed in lieu thereof, and no further action was taken by appellant in regard to the bill.

This bill, also, cannot be considered.

The record contains no separate statement of facts of any evidence adduced upon the hearing of appellant's motion fer new trial. In the absence of such a separate statement of facts, appellant’s complaint to the court’s refusal to grant a new trial on the ground of jury misconduct is not presented by an informal bill of exception, under the provisions of Art. 760e, Vernon’s Ann.C.C.P.

The affidavits of the two jurors attached to the motion for new trial do not prove themselves and cannot be substituted for a bill of exception. Flores v. State, 172 Tex.Cr.R. 73, 353 S.W.2d 852.

The two bills of exception filed by the court, in lieu of appellant’s bills, stating his reasons for refusing the same do not reflect error. In the court’s bill of exception #1, the court refuses to certify that the argument complained of was made and further certifies that if it was made, appellant’s complaint thereto was presented for the first time in his motion for new trial. In the court’s bill of- exception #2, it is certified that no evidence was adduced upon the hearing of appellant’s motion for new trial to substantiate the alleged jury misconduct.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Guy Roger HART, Appellant, v. The STATE of Texas, Appellee.
    No. 38791.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    J. W. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was charged in County Court by complaint and information with an offense in this language: “unlawfully possess a dangerous drug.” Upon a plea of nolo contendere before the Court without a jury, appellant was found guilty and his punishment was assessed at a fine of $100.00.

Appellant urged in his Motion for New Trial that the information in this cause is insufficient under the law to charge an offense against him. Additionally, he brings forward as Formal Bill of Exception No. 1 this same contention. He here urges that the complaint and information are fundamentally defective for the reason that they do not specify therein the name of the drug. The prosecution is brought under the provisions of Art. 726d, Sec. 2, Vernon’s AnruP.C. Under this article many drugs are enumerated by definition as being dangerous drugs.

We note that no exception was taken to this information prior to the verdict being rendered, and no motion to quash was made by appellant. We do, however, consider appellant’s contention for the reason that it is his position that the information does not charge an offense. Such a contention does present a question of fundamental error.

This Court, speaking through Judge Graves, held in Harrison v. State, 151 Tex.Cr.R. 606, 210 S.W.2d 591: “The.defect in the indictment being one of substance, same can be taken advantage of for the first time on appeal.” The judgment was there reversed and the prosecution ordered dismissed because of the failure of the indictment to allege that the truck in question was a motor vehicle as required by law. This was a conviction of failing to stop and render aid after a collision.

We held in Garza v. State, 171 Tex.Cr.R. 420, 351 S.W.2d 248, that the complaint and information did not allege the statutory requisite as to the value of the automobile operated without the owner’s consent. “Even though no objection has been urged, we regard the above error as fundamental; accordingly, the cause is reversed and the prosecution ordered dismissed.”

This Court earlier held in both cases of Baker v. State, 123 Tex.Cr.R. 209, 58 S.W.2d 534 and 123 Tex.Cr.R. 212, 58 S.W.2d 535, where no objection was taken nor motion to quash made in the trial court, nor on motion for new trial, in either case, that an indictment upon which convictions were obtained for possessing a narcotic drug, and for selling a narcotic drug, that the indictments were insufficient without naming the particular drug possessed or sold. The statute under which those two prosecutions were brought defined the term “narcotic drug” to include many drugs specifically named, so that the term “narcotic drug” is a generic term. Presiding Judge Morrow stated in the first Baker case, supra:

“It is apparently manifest that an indictment in which the offense is described as unlawfully possessing a narcotic, in order to comply with the Constitution, should name the substance that is intended. In the absence of such an averment, one charged, as in the present case, with the possession of a ‘narcotic,’ would be without information in the indictment relating to the evidence that the state intended to prove. Under such an indictment, he would be put on trial ignorant, so far as the information is contained in the indictment, of the act upon which his conviction was sought.”

Judge Lattimore stated in the second Baker case, supra:

“The indictment in the instant case should have added to the averment that a narcotic drug was possessed, a further allegation such as, to wit, morphine — or whatever drug was involved. The indictment being insufficient, the judgment is reversed and the cause dismissed.”

The first Baker case, supra, was cited with approval in Roach v. State, 159 Tex.Cr.R. 157, 261 S.W.2d 847, and quoted:

“ ‘It is the intent of the Constitution that the accused in the particular case be given information upon which he may prepare his defense. This information must come from the face of the indictment.’ ”

We think the cited cases are here controlling and that the learned trial judge fell into error in overruling the motion for a new trial.

The judgment is reversed and the prosecution ordered dismissed.

WOODLEY, Judge

(dissenting).

In the absence of any exception to or motion to quash the information and of any question raised prior to the verdict, I would overrule the contention that the indictment is insufficient to support the conviction.


author: McDONALD, Presiding Judge.

text:
    Medford BENNETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38721.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Cox & Hurt by Joe L. Cox, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is selling beer in a dry area; the punishment, a fine of $500.00.

The state does not seek an affirmance of this case because the trial court failed to charge the jury on the law relative to presumption of innocence and reasonable doubt. A proper objection and exception was taken to the court’s ruling. For a discussion of the principle controlling the charge of the court on the presumption of innocence, see Johnson v. State, 27 Tex.App. 163, 11 S.W. 106; Gallaher v. State, 28 Tex.App. 247, 12 S.W. 1087; Johnson v. State, 29 Tex.App. 150, 15 S.W. 647; Hurley v. State, 30 Tex.App. 333, 17 S.W. 455. We held in Harris v. State, 150 Tex.Cr.R. 36, 198 S.W.2d 1020, that failure to give requested instruction that every defendant in a criminal case is presumed to be innocent until his guilt is established beyond a reasonable doubt was error. “The presumption of innocence is the most valuable of the defendant’s rights, and it seems that a charge upon this subject is essential in every criminal case.” Sessums v. State, 155 Tex.Cr.R. 563, 237 S.W.2d 629. Also see Walker v. State, 146 Tex.Cr.R. 321, 174 S.W.2d 974.

Upon another trial, a proper charge on the subject should be given.

For the errors herein pointed out, the judgment of the trial court is reversed and the cause remanded.


text:
    J. D. BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 38855.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving a motor vehicle upon a public road while intoxicated; the punishment, a fine of $100.00 and confinement in jail for five (5) days.

In view of our disposition of this case, we shall pretermit a discussion of the facts.

The trial court failed to charge the jury on the law relative to presumption of innocence, after a requested instruction had been sought. Proper objection and exception was taken to the court’s ruling. By its failure, the trial court fell into error.

For a discussion of the principle controlling the charge of the court on the presumption of innocence, see Bennett v. State, Tex.Cr.App., 396 S.W.2d 875, opinion delivered November 24, 1965, and cases there cited. We held in Harris v. State, 150 Tex.Cr.R. 36, 198 S.W.2d 1020, that failure to give requested instruction that every defendant in a criminal case is presumed to be innocent until his guilt is established beyond a reasonable doubt was error.

Upon another trial, a proper charge on the subject should be given.

For the error pointed out, the judgment of the trial court is reversed and the cause remanded.


author: MORRISON, Judge. WOODLEY, Judge.

text:
    Lee Bradford SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38508.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dee. 15, 1965.

      Herschel B. Cashin, Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Thomas L. Douvry, Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is an unlawful sale of heroin with a prior conviction of possession of narcotics alleged for enhancement; the punishment, life.

In view of our disposition of this case a recitation of the facts is not deemed necessary other than that which follows. Federal Narcotic Agent Merriweather testified that he had worked in the Houston area for some two years prior to the transaction in question as an undercover agent buying narcotics and that seven dollars a capsule would be a normal price to pay for a capsule of heroin in that area. He further testified that appellant sold him heroin capsules, charging him seven dollars per capsule on the day charged in the indictment. The District Attorney, testifying in the absence of the jury, said that the appellant had been to visit the “people” in the District Attorney’s office on several occasions and was obviously a “friend” of theirs.

Appellant, testifying in his own behalf, stated that Merriweather identified himself as a narcotic agent and asked him to make a “buy” from one Clark in order to make a case against Clark. He stated that Merri-weather exhibited his credentials and told him that Sheriff Kline had said that appellant would help him make out some narcotics cases. Appellant further stated “when I saw him with George Reyna I knew he was the law,” and that he bought the narcotics from Clark paying him $7.00 for each capsule and received no profit from either Clark or Merriweather.

In the face of this testimony the Court declined to grant the following requested charge to which refusal appellant excepted:

“If the defendant was in no way interested in behalf of the seller but acted only as agent of Ronald B. Merriweather in procuring heroin from another, or if you have reasonable doubt thereof, you must find the defendant ‘not guilty’, and so slate in your verdict.”

This question has been before this Court many times, the latest being Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737, and Townsel v. State, 162 Tex.Cr.R. 433, 286 S.W.2d 162. The rule there expressed is that “If an accused is in no way interested in behalf of the seller but acts only as an agent of the prosecutor he is not guilty of making a sale.” The jury should have been given the requested charge or one of like import, and the Court’s failure to grant his request constitutes reversible error.

For the error assigned, the judgment is reversed and the cause is remanded.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Judge.

By brief and oral argument counsel for the state urges that, in view of the definition of “sale” in Section 1 (10) of the Uniform Narcotic Drugs Act (art. 725b Vernon’s Ann.P.C.) the Durham decision is unsound and should be overruled, the definition being: “ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”

The state cites the case of People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578, 579, wherein the Supreme Court of Illinois expressed the opinion that such definition “shows a legislative intent that the act of a person whether as agent, either for the seller or the purchaser, or as a go-between in such a transaction constitutes a sale.”

People v. Shannon has been cited with approval in other Illinois cases and by the New Jersey Supreme Court in State v. Weissman, 73 N.J.Super. 274, 179 A.2d 748, 93 A.L.R.2d 1001.

On the other hand, the holding of this Court in Durham v. State is supported by the following decisions of the courts of the State of New York:

People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427, affirmed 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492; People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535; People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437; and the recent case of People v. Fortes, 24 A.D.2d 428, 260 N.Y.S.2d 716 (June 1965) where it was held that it was error not to charge as requested and submit to the jury as an issue of fact whether defendant sold the heroin to the complaining witness or was acting at her request and solely as her agent in acquiring the heroin.

The New York cases cited hold that one who acts solely as agent of the buyer cannot be convicted of crime of selling narcotics, and where it clearly appeared that the defendant in the purchase of narcotics acted as agent for a police officer who had disguised his identity: is in no way associated with the seller in a common scheme or plan, and received no financial profit from the single sale, he is not guilty of the offense of selling narcotic drugs.

All the cases above cited are from courts of states that have adopted the Uniform Narcotic Drugs Act which contains the above quoted definition of “sale”.

Though the Illinois Courts have expressed such view, we have found no case where an agent of the purchasing officer who was in no way connected with the seller, and received ■ no profit, has been finally convicted of the offense of sale of a narcotic drug to said officer.

We think that the New York cases and the Durham case are correct and reject the view that one who acts only as an agent, servant or employee of a law enforcement officer in the purchase of narcotic drugs for evidence purposes, and who is in no way connected or associated with the seller and receives no financial profit from the single sale, can be guilty of selling the narcotic drugs when the law enforcement officer is not.

See United States v. Sawyer, 3 Cir., 210 F.2d 169; United States v. Moses, 3 Cir., 220 F.2d 166.

Cases from Sth Circuit Court are to the effect that in the Federal Courts the question is “whether the accused acted as a participant in the sale on behalf of the buyer or on behalf of the seller.” Jackson v. United States, 5 Cir., 311 F.2d 686; Henderson v. United States, 5 Cir., 261 F.2d 909; Coronado v. United States, 5 Cir., 266 F.2d 719.

We are unable to distinguish this case from Durham v. State, supra.

People v. Fortes, supra, is further authority for our holding on original submission that the trial court erred in failing to submit to the jury the defense raised by appellant’s testimony.

The state’s motion for rehearing is overruled.


author: WOODLEY, Judge.

text:
    William Frank BALL, Appellant, v. The STATE of Texas, Appellee.
    No. 39004.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The conviction is for the felony offense of drunk driving, the jury having assessed the punishment at two years in the penitentiary.

No statement of facts accompanies the record and there are no bills of exception.

The sentence appearing in the transcript orders appellant’s confinement in the penitentiary for a term of “not less than 10 days years nor more than Two (2) years.”

There being no minimum term provided for the offense charged, the sentence is reformed so as to provide that appellant be confined in the penitentiary for not less than one day nor more than two years.

As reformed, the judgment is affirmed.


text:
    Kenneth Albert HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38793.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1965.
    Minor Pounds, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $100.

The record affirmatively reflects that the judgment of conviction which recites that the defendant appeared and, after being duly admonished by the court as to the consequences thereof, pleaded guilty to the charge and waived a jury, is incorrect, because in fact the defendant did not appear before the court and plead to the charge.

Art. 580 C.C.P. provides in part that the defendant must be personally present at the trial in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail.

The judgment having been entered without authority of law, the motion for new trial should have been granted. Cooper v. State, 151 Tex.Cr.R. 174, 206 S.W.2d 835, and cases cited; Deen v. State, 149 Tex.Cr.R. 402, 194 S.W.2d 1007, and cases cited.

The judgment is reversed and the cause remanded.


author: MORRISON, Judge.

text:
    Henry Lee GORDON, Appellant, v. The STATE of Texas, Appellee.
    No. 38723.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Weldon H. Berry, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault on a peace officer; the punishment, nine months in jail and a fine of $1,000.

We are met at the outset with the question of the sufficiency of the evidence to show that an assault was made. There is no question that the injured party, a Texas Highway Patrolman, was an officer and was in the performance of the duties of his office of routine patrol. He observed a Pontiac automobile pass another automobile in a no-passing zone. He gave chase and brought it to a halt. A station wagon which he had observed to have one defective tail light passed the spot where he had stopped the Pontiac, and he motioned it to stop. He spoke to the driver of the Pontiac, who it later developed was appellant’s wife, and told her that he would be with her in a minute, and then proceeded to the station wagon where he instructed the driver to step to the rear of the station wagon.

Appellant, who was a passenger in the Pontiac, as well as the other occupants thereof, came to where the officer was writing a ticket for the driver of the station wagon and were instructed by him to go back to their automobile and be seated. With this order they complied except that appellant protested verbally and continued to protest verbally after he had taken his seat.

Appellant’s explanation of this is that he owned the station wagon and wanted to know the nature of the charges against the driver. Be this as it may, the officer became disturbed at appellant’s verbal protests, abandoned his ticket writing, walked past the Pontiac and instructed appellant to get out and come to his patrol car. Appellant complied with this order.

The officer stated that when appellant reached a certain point, he ordered him to stop, but that appellant continued to walk toward him. It was this continued walking plus a “wild look about his eyes” upon which the State must rely for a conviction, because at this juncture, according to the officer, he hit appellant with his left hand and at almost the same moment, also hit appellant across the head with a five cell flashlight which he had in his right hand. All that appellant did after this moment was to grab the officer around the waist to prevent any further assaults upon him.

We have examined this record with care and have concluded that the facts as set forth above do not show an assault. Crow v. State, Tex.Cr.App., 216 S.W.2d 201, supports the conclusion we have reached in this case.

For the reasons stated, the judgment is reversed and the cause is remanded.


text:
    Alfred Eugene STONE, Appellant, v. The STATE of Texas, Appellee.
    No. 38684.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Gerald T. Bissett, Victoria, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the offense of attempt to commit burglary with the punishment assessed at two years.

The appellant challenges the sufficiency of the evidence to support the conviction.

J. S. Shafer was the manager of a store located on the southeast corner of the intersection of Broadway and Front Streets, with a 75 foot width along the east side of Broadway which runs north and south, and 90 feet along the south side of Front Street. The main entrance was on Broadway with a rear door a few feet south of its northeast corner. The north side of the building is situated about one foot from the sidewalk. The rear door was a standard wooden door with a glass top. This door was used in opening the store each morning, and which the manager used about 7 A.M., November 19. Shafer further testified that on opening the door he noticed two freshly made marks on the door below the lock, and he also testified, when asked if any instruments were found near the door, as follows:

“Q Now then, did you make any report of this at that time, or that day? Without stating any conversation that you had, did you have any conversation that day with any officer or anyone with the law enforcement pertaining to that door, the 19th day of November, the day you found this ?
“A I, personally, did not.
“A Well, I couldn’t state it a moment ago, about the tire tool, the print is indelible on the door, of the top of the tool at the bottom of the — ”

No consent was given to break or to attempt to break and enter the building which contained a large quantity of merchandise. Three 150 watt regular bulbs lighted the area across the rear of the building. A parking lot about 30 feet wide adjoins the rear of the building.

Officer Elrod testified that shortly after midnight while he and officer Longino were on patrol in an automobile going west about 60 to 70 feet east of the store on Front Street, he first saw the appellant as he was walking away from the northeast corner with his back to the parking lot and going in a northwesterly direction; that appellant started across the street and turned back to the sidewalk, and then he went west to Broadway where he turned south and as he walked along Broadway the officers stopped him south of the front door of the store. The appellant told them his name was Alfred Stone, but he had no means of identification with him. He also told them he was a minister, that he had been in Tyler two days and was unemployed, and he was on his way home. Elrod testified that appellant had the odor of alcohol about him and he arrested him for vagrancy, but he never filed any charge against him. In searching the appellant, they found in his pockets a screwdriver, a piece of stocking and a pair of cloth gloves. On returning to the store about forty minutes after appellant’s arrest, the officers found one set of marks, that is, a fresh mark on the door facing and a slight mark on the door. The officers placed the screwdriver found on the appellant in the mark on the door facing and it fit perfectly.

The testimony of officer Longino corroborates that of officer Elrod except, Longino testified that when he first saw the appellant from a block away he looked as if he was standing straight up and facing the rear door and then he turned and began walking; and that he never saw anything in his hands.

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

There was no flight by the appellant at any time, nothing was ever seen in his hands or that he placed anything in his pockets. The area was well lighted and he was not seen doing anything except walking until the officers stopped him, and he gave them the same name as it appears in this case. There is no evidence that the screwdriver made any marks different from an ordinary one of its size and kind. The manager of the store testified that there was an indelible print of a tire tool on the door. Both officers testified that the marks on the door were above the lock while the manager of the store testified that they were below the lock.

In testing the evidence by the requirements that in order to warrant a conviction on circumstantial evidence, there must be proof, to a degree of certainty greater than a mere probability or strong suspicion, tending to establish that the party charged was the person who committed the offense, and excludes every other reasonable hypothesis except that of the guilt of the accused, it is concluded that from all the facts and circumstances of this case, that the evidence is not sufficient to warrant the conclusion that the appellant and no other committed the offense here charged. 4 Branch (2) 889, Sec. 2556.

Because of the insufficiency of the evidence, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Thomas W. PETTY, Appellant, v. The STATE of Texas, Appellee.
    No. 38856.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving a motor vehicle on a public road while intoxicated; the punishment, a fine of $50.00 and confinement in jail for three (3) days.

The statement of facts reflects that James Troy Kennedy, a student at Howard Payne College, while driving home about 11:00 o’clock at night, saw a pick-up truck coming toward him in his lane; that he had just stopped and the pickup collided with him; that the pickup was driven by the appellant ; that he staggered and smelled strongly of alcohol; that in his opinion he was intoxicated; that he could hardly stand up.

Joe Robbins testified that he was the Juvenile Officer for the City of Brown-wood ; that he saw the pickup truck driven by appellant on the wrong side of the road collide with the automobile driven by Kennedy; that appellant seemed unable to get out and that he staggered badly; had a thick tongue and had the smell of alcohol on his breath; that in his opinion appellant was intoxicated.

Appellant testified that he was 54 years of age; that he worked for the City of Brownwood; that he intended to turn left and he blacked out; that he had no recollection of striking the other car; that he had been under treatment for several years for high blood pressure and had been taking pills for the trouble; that he had been at a friend’s house, and they drank a six-pack of beer around 5:30 or 6:30; that he went home and ate and went to bed; that he was not in any degree drunk; that he was awakened around 10:45 or 11:00 o’clock for a call to fix a broken pipe for a water customer.

Pryor Martin testified that he was street superintendent .for the City of Brownwood; that appellant had worked for the city under his supervision for 15 years; that he knew him to be dependable and truthful and had never seen him drunk in his life.

The jury rejected appellant’s version of the transaction and adopted that of the state. We find the evidence sufficient to sustain their verdict.

Appellant urges as reversible error the action of the trial court in refusing his requested charge on the presumption of innocence. The trial court’s action reflects that this requested charge was not made to the court until after the court had read its charge and the County Attorney was presenting his opening argument to the jury. The requested charge was not timely made. It should have been made prior to the court reading his charge to the jury. Arts. 658, 659, Vernon’s Ann.C.C.P. Rager v. State, Tex.Cr.App., 363 S.W.2d 942, and Wishnow v. State, 166 Tex.Cr.R. 538, 316 S.W.2d 412.

We perceive no reversible error in the action of the trial court.

The judgment is affirmed


text:
    Roberto FERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38404.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1965.
    Marvin Foster (on appeal only), Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with two prior felony convictions alleged for enhancement; the punishment, life.

The sole question presented for review is the sufficiency of the evidence to corroborate the testimony of the witnesses Sendejo and Mendoza, who were both under indictment for the offense in question, and who the Court instructed the jury were accomplice witnesses. Their testimony was that the offense occurred in the afternoon. One set the time at 3:00 and the other at 3:30. The witness Diaz testified that he arrived at the scene and saw a man walking away from the tavern carrying a case of beer which he put down when the witness called to him. He was unable to identify appellant as being the man in question. He testified that he remained at the tavern some 30 minutes until he was able to get word to the tavern operator, Nava, and that thereafter Nava and the police arrived. Nava testified that he was notified about the burglary at 3:00 p. m.

Other than the accomplices, the only witness who placed appellant anywhere near the tavern was the beer salesman, Cadriel, who stated that he saw appellant and accomplice Sendejo outside the tavern at 10:30 a. m. on the day in question.

The State was able to corroborate the accomplices as to several of their other activities during the day, but was unable to corroborate their testimony so as to put appellant at the scene at the time all the State’s witnesses testified that the tavern was burglarized, and the case of beer taken.

Under the rule announced in Alexander v. State, 160 Tex.Cr.R. 460, 274 S.W.2d 81, and Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576, we find the evidence insufficient to corroborate the accomplice witnesses.

We do not agree with the State that appellant’s attempt to get two witnesses to testify that they had seen him at a certain location on the day in question constitutes a declaration sufficient to corroborate the testimony of the accomplice witnesses and which tends to connect the appellant with the offense committed.

The judgment is reversed and the cause is remanded.


text:
    Allen CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 38734.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Arthur O’Connor, Belton (on appeal only), Ross Tarrant, Temple, for appellant.
    Stanley Kacir, Dist. Atty., Dennis C. Hollé, Asst. Dist. Atty., Belton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary of a private residence at night.

The indictment alleged a prior conviction for burglary. The jury found appellant guilty of the primary offense and further found that the allegations of the indictment as to the prior conviction were true.

Upon the jury’s verdict, the trial judge entered judgment ordering appellant’s confinement in the penitentiary for not less than 99 years nor more than 99 years. The appeal is from such conviction.

The statute fixes the punishment for burglary of a private residence at night at “any term not less than five years.” Art. 1391 P.C.

The enhancement statute (Art. 62 P.C.) provides that the punishment on a second or subsequent conviction for an offense of like character “shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

Art. 693 C.C.P. provides in part that if the plea is not guilty the jury “must find that the defendant is either ‘guilty’ or ‘not guilty,’ and they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” (It is interesting to note that the above italicized portion of Art. 693 C.C.P. was omitted from the New Code. Art. 37.07.)

The majority opinions of this Court in Joseph v. State, 367 S.W.2d 330, and Madeley v. State, 388 S.W.2d 187, support the trial court’s judgment ordering appellant’s confinement in the penitentiary for 99 years.

The writer’s views are expressed in his dissents in these cases. See also Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842.

The distinction between a term of 99 years or any other term of years and a life sentence is significant in the appeal now before us.

While his appeal was pending appellant escaped from the Bell County Jail and did not voluntarily return to the custody of the sheriff. He was captured two days later in Waco, McLennan County.

Art. 824 Vernon’s Ann.C.C.P. provides:

“If the defendant, pending an appeal in a felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury is death or confinement in the penitentiary for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape.”

The punishment of appellant was not “inflicted by the jury” and was not for life, but was for 99 years. Such being the punishment assessed, this Court is without jurisdiction to enter any order other than to dismiss the appeal and has no discretion to re-instate it.

The appeal is dismissed.


text:
    Leroy SYKES, Appellant, v. The STATE of Texas, Appellee.
    No. 38743.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.

      Philip Juarez, Donald J. Hobson, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Robert J. Kuhn, Asst. Dist. Atty. and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, five years in the penitentiary.

The evidence shows that when R. L. Haines, manager of Derrick Lumber Company, opened that establishment on the morning of December 11, 1964, he discovered that a number of tools and gloves were missing from the hardware department. He testified that upon further investigation he discovered that a window screen had been removed and “the window had been sprung in order to release the latch.” A calendar normally hanging over the window blind had been knocked to the floor. Upon determining that the store had been burglarized, he then called the owner of the lumber company, M. H. Derrick, and also notified the Travis County Sheriff’s Department.

Mr. Derrick testified that he found several screwdrivers on the outside of the store between the store and the fence enclosing his property, and that he could see where the burglar or burglars went through the fence. He stated that he did not give appellant permission to enter his building or to take any tools from the lumber company.

Officer Vorwerk of the Austin Police Department testified that tools identified as belonging to the Derrick Lumber Company were seized in a search of a residence at 113 Franklin Street in Austin, under a warrant.

W. R. Webb, deputy sheriff in Travis County, stated that he and other officers arrested appellant at 113 Franklin Street: on January 5, 1965, and that a statement was taken from appellant on January 15, 1965. In the statement, which was read, to the jury, appellant admitted that on December 11, 1964, he and a companion crawled over the cyclone fence of the Derrick Lumber Company, broke into the store building by prying open a rear window, and took a large number of tools.

Appellant attacks the admissibility of this confession on the grounds that it was not voluntarily given. At the time the statement was sought to be introduced, appellant objected, and the trial judge, at appellant’s request, granted a hearing out of the presence of the jury to determine the voluntariness of the confession. The careful trial judge found and embodied in a separate order, that the confession was freely and voluntarily given after the proper statutory warnings had been given appellant, and that at no time did appellant request to consult with counsel, nor was he denied consultation with an attorney. We find no merit in either of appellant’s contentions. The action of the trial court does not reflect error. The evidence showing that a burglary was committed, together with appellant’s confession, was sufficient to sustain his conviction for burglary. Dyches v. State, Tex.Cr.App., 382 S.W.2d 928; Webster v. State, Tex.Cr.App., 369 S.W.2d 355, and cases cited therein.

Appellant’s brief and most of his oral argument before this court were devoted to his contention that evidence adduced at his trial was inadmissible because such evidence was the fruit of an illegal search. He contends that the affidavit and search warrant were invalid and even if these documents were properly executed, that the search warrant was not authorization for the seizure of the particular evidence used against him at this trial. Neither instrument appears in the record before us. Their sufficiency cannot be appraised; therefore, the question of the legality of the search is not presented for review.

While appellant’s counsel did attach to his brief as Appendix A, a copy of an affidavit and search warrant, we held in Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144, that where the record reflected an affidavit and search warrant only in a motion to suppress evidence, and the affidavit and search warrant were not authenticated or certified by the trial court, they constituted nothing more than a pleading and could not be considered.

Appellant’s position in the case at bar is not as firm as the appellant’s in Bailey, supra. Quoting Bailey further, we held:

“The sustaining of a search warrant by the trial court is conclusive where the bill of exception does not set out the warrant.”

Further, on rehearing in Bailey, a supplemental transcript was filed which set out that a search warrant had been issued and returned and filed, but it gave no indication that it was the one complained of or that it was exhibited before the trial judge. This Court held same to be insufficient to cure the defect in the bill of exceptions, and the motion for rehearing was overruled. Edwards v. State, 171 Tex.Cr.R. 487, 351 S.W.2d 230; Montgomery v. State, 166 Tex.Cr.R. 486, 316 S.W.2d 751, and cases there cited.

No reversible error appearing, the judgment is affirmed.