author: WILLIAMS, Judge. MILLIKEN, Judge

text:
    Francis WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Rehearing Denied July 1, 1966.
    See, also, Ky., 403 S.W.2d 710.

      Leland H. Logan, J. David Francis, John David Cole, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellant Francis Wilson was convicted of storehouse breaking as a third offender and given a sentence of life imprisonment. He appeals from the judgment of the Monroe Circuit Court.

The basic facts are as follows: O. E. Comer, the operator of a general store located about nine miles from Tompkinsville, in Monroe County, testified that on June 6, 1964, around midnight, the burglar alarm went off and two men were seen running from the store carrying a satchel. Tomp-kinsville city policeman Joe Petitt and city police judge Elmer Turner and state trooper Robert Stivers were called to the store and they proceeded to make a search. A car was found about a quarter of a mile from the store on a dead-end gravel road. After removing the coil on the motor, Petitt and Turner waited in the weeds near the car and Stivers left to check the ownership of the car. After they had waited almost an hour, one man walked by the car. About 15 minutes later appellant approached the car, opened the trunk, put on a Warren County license plate, took off a Webster County plate and threw it into the weeds. He then tried to start the car. Petitt arrested him, and Turner searched him and allegedly found a pistol on him which had been removed from the store.

The pistol was the only evidence which linked appellant with the storehouse breaking. He testified that Petitt did not make the arrest until Turner had searched him. No search warrant was obtained. The satchel was later found about 200 yards from the car. No fingerprints were introduced to link appellant with the pistol, satchel, or the store itself.

Appellant testified that he had sold whiskey to a man from Tennessee and the exchange had been made on this dead-end road. Testimony was given by a liquor salesman in Bowling Green that appellant had purchased $569.20 worth of whiskey at 8:30 p. m. on June 5, 1964, and a large amount of money was found on appellant after his arrest. Appellant contended that the bootlegging was the reason for his suspicious activities. However, he did not produce as a witness the man who had allegedly bought the whiskey.

Appellant was taken into custody and was not allowed to consult an attorney until the next day. During the period of detention no evidence which was used at the trial was elicited from him except his fingerprints. They were used to prove he was the same man who had previously been convicted in the Warren Circuit Court in order to establish the case under the habitual criminal act.

Appellant elected to take the stand, and on cross-examination the following questions and answers were made:

“67 Did you ever know Elmer Turner before ?
A Yeah I have heard of him.
68 Did you ever see him?
BY MR. HOLLINGSWORTH: (defense attorney) TELL IT, TELL IT.
A Yes, I have knowed Elmer Turner quite a few years. He killed two of my wives own cousins.
69 Did what ?
A He killed two of my wives own cousins.
70 That before you killed this man or afterwards ?
A What do you mean, which one did I kill?
71 Didn’t you kill a man a few years ago?
A I shore did. He robbed a place, and I caught him on the road. I shot him. I didn’t aim to, I tell you that, I sure didn’t aim to.
72 Did you kill him to keep him from talking ?
BY MR. HOLLINGSWORTH: YOUR HONOR, PLEASE I OBJECT.
BY THE COURT: OBJECTION SUSTAINED. I think you both have gone far afield.
BY PAUL CARTER: HE
BROUGHT THAT IN FIRST.”

Appellant made a motion for a mistrial which was overruled. However, the trial judge did admonish the jury to disregard the testimony with reference to any killing.

Appellant now argues that this line of questioning which called to the jury’s attention information which tended to show appellant had committed another crime, which was independent of and unrelated to the one for which he was on trial, was reversible error. He relies on Turpin v. Commonwealth, Ky., 352 S.W.2d 66 (1961), and Scamahorne v. Commonwealth, Ky., 357 S.W.2d 30 (1962). Appellee counters that this general rule does not apply in a case where the defense counsel precipitated the questions on the part of the Commonwealth and also failed to make a timely objection thereto.

Defense counsel made his objection about as soon as could be expected in the heat of the trial. This Court is not prepared to hold that an objection made two questions late is not timely and will not be considered. It can likewise hardly be contended that the defense counsel’s action in stating “Tell it, tell it,” precipitated the question about appellant killing a man “to keep him from talking.”

The introduction of this testimony was undoubtedly erroneous, but the real question is whether it constituted reversible error or was merely harmless error upon consideration of the entire case. RCr 9.24, 9.26. The answer, in our judgment, is that the admonition of the court cured the error which was not of such gravity as to have been a cause for reversal.

Appellant next contends that the arrest was unlawful and therefore the evidence (the small gun which was the only evidence which linked appellant with the storehouse breaking) obtained incident to this arrest was not lawfully introduced. KRS 431.005 reads as follows:

“(1) A peace officer may make an arrest in obedience to a warrant, or without a warrant when a felony or misdemeanor is committed in his presence or when he has reasonable grounds to believe that the person being arrested has committed a felony.
“(2) A private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it.”

Appellee seems to concede that Turner and Petitt should be treated as private persons since they were outside the territorial limits of the city. Brittain v. United States Fidelity & Guaranty Co., 219 Ky. 465, 293 S.W. 956 (1927).

Here, a felony had in fact been committed, and the only issue is whether, after reviewing all the pertinent facts, Petitt or Turner had reasonable grounds to believe that appellant had committed the felony. Probable cause or reasonable grounds is defined in 5 Am.Jur.2d, Arrest, section 48, where it is stated:

“The existence of ‘probable cause,’ justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.
“Probable cause does not depend on the actual state of the case in point of fact, as it may turn out upon legal investigation, but on knowledge of facts and circumstances that would be sufficient to induce a reasonable belief in the truth of the accusation. It depends on the facts known, at the time of the arrest, to the person by whom the arrest is made, from which it follows that an arrest cannot be justified by what a subsequent search discloses. On the other hand, if probable cause existed at the time of the arrest, the fact that investigation proves the person arrested to be innocent does not make the arrest unjustifiable.
“In determining probable cause, all the information in the officer’s possession, fair inferences therefrom, and observations made by him, are generally pertinent; and facts may be taken into consideration that would not be admissible on the issue of guilt. * * * ”

The facts which support the reasonable grounds are as follows: (1) The out-of-county car parked about a quarter of a mile from the scene of the break-in on a dead-end road; (2) the time of day (1:30 or 2:00 a. m.) ; (3) the switching of license plates; (4) the car’s being equipped as a police car (appellant was a constable in Warren County); (S) the fact that a man had approached the car 15 minutes earlier.

Appellant contends that preliminary facts on which the admissibility of the evidence depends are in dispute and therefore the matter should have been submitted to a jury. This contention is erroneous since there is no dispute as to the pertinent facts within Petitt’s knowledge when he made the arrest. Therefore, the rule concerning submitting conflicting issues to the jury announced in Parrott v. Commonwealth, Ky., 287 S.W.2d 440 (1956), is not controlling, and the issue is properly a question of law for the Court. We conclude, after a thorough examination of all the facts, that there were -reasonable grounds to make a lawful arrest, and, therefore, the evidence obtained incident to that arrest was admissible.

Appellant contends that the denial of his three requests to consult his attorney immediately after his arrest violated his right to counsel under the Sixth Amendment of the Constitution of the United States. There is absolutely no merit in this argument. Appellant had counsel at his arraignment in the circuit court and at his trial, and no incriminating statements or items of evidence were elicited from him during the period of detention. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), stands for the proposition that no incriminating statement elicited by the police during the interrogation may be used against the accused at his trial unless the accused was advised of his right to remain silent and, if he requests it, he must be allowed to consult counsel. In the instant case no incriminating statements were elicited; therefore, appellant’s constitutional rights were not infringed in this regard.

Appellant finally contends that he was denied due process of law because two former convictions were introduced to the jury for joint consideration with the issue of the specific crime alleged. This action was taken by the Commonwealth’s Attorney pursuant to our habitual criminal act, KRS 431.190. It is argued that the Sixth Amendment guarantees an accused the right to trial by jury and this implies a trial by an impartial jury. (Although the Constitution does not demand the use of jury trials in a state’s criminal procedure where a jury trial is provided, it must be a fair trial. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 1043 (1947). And it is further argued that, if the jury hears evidence of two former convictions for crimes of the same nature as the crime for which the defendant is being presently tried, the jury is no longer impartial. Appellant cites several cases which have held that a reading to the jury of that part of the indictment which relates to a defendant’s prior convictions, destroys the impartiality of the jury and denies him due process. Cf. Lane v. Warden, Maryland Penitentiary, 320 F.2d 179 (4th Cir. 1963). He also relies on a recent Tennessee decision which held that the introduction of the former convictions denies the defendant the fundamental fairness which is due him. Harrison v. State of Tennessee, 394 S.W.2d 713 (Tenn.1965). In State v. Ferrone, 96 Conn. 160, 113 A. 452, 457 (1921), the Court stated:

“ * * * It cannot be believed that an accused man would ever have a fair trial, resulting in a verdict not affected by prejudice or by considerations by which the jury should not be influenced, if during that trial allegations that he has twice before been convicted of state prison crimes have been read to the jury, and evidence of his former convictions has been placed before them. * * *”

The Connecticut Court adopted a procedure in which the indictment is divided into two parts, each on a separate page. The first part sets forth the present offense with which accused is charged and the second part alleges the necessary information required to enhance the penalty upon conviction under the first part. In the absence of the jury the entire indictment is read to the defendant and his plea to each part taken. The next steps will depend on the pleas entered by the defendant. If, as in the case at bar, the defendant enters a not guilty plea to each count of the indictment, then the prosecutor reads to the jury the first count of the indictment, containing the charge of the present crime, and a full trial is held with the issues confined to the guilt or innocence of the defendant under this count. If the jury returns a not guilty verdict under this first count, the matter is ended. If the verdict of the jury is guilty, under the first count, then this same jury is read the second count and a trial held thereon confined to the issues raised by the second count.

Idaho has recently adopted this procedure by judicial decision. State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963). However, it should be noted that at least two courts have refused to adopt the holding of the above cited cases. Breen v. Beto, 341 F.2d 96 (5th Cir. 1965); Edwards v. State (Texas), 388 S.W.2d 427 (Cr.App.1965). And at least one court has adopted the Ferrone procedure only prospectively. Harris v. State (Okl.Cr.), 369 P.2d 187 (1962).

In a very recent decision by this Court the majority decided not to alter the existing procedure relating to the habitual criminal act. Jones v. Commonwealth, Ky., 401 S.W.2d 68, decided March 25, 1966. The majority is still of that opinion.

The judgment is affirmed.

MILLIKEN, J., dissenting.

MILLIKEN, Judge

(dissenting).

I dissent from the majority opinion because I think the prevailing practice in the trial of recidivist cases in this state violates procedural due process, but I agree that the Court’s opinion correctly reflects the established procedure in this state in criminal trials of persons who have been convicted of other offenses.

I believe a much fairer trial is afforded by limiting the use of the defendant’s past convictions to the issue of his punishment and not to the issue of his guilt, and so I would not let the jury know of the defendant’s criminal record (where the defendant does not take the witness stand) until the jury has made its finding as to whether the defendant is guilty of the crime for which he is being tried. If he is found guilty, his past criminal record is very pertinent to the extent he should he punished. If the defendant testifies in his own defense then, of course, his past criminal record is pertinent to whether he should be believed, but in trials where the defendant does not take the witness stand, for whatever reason, it seems to me that it would be much fairer procedure to require a jury to find him guilty or not guilty on the same procedural basis accorded a defendant who had no criminal record to haunt him.

I do not believe there can be any serious doubt about the tendency of human beings serving on juries being like the rest of us —more ready to believe a person who has been convicted of a crime is more likely to commit another crime than is one who has no criminal record, but guilt should not be determined by jury’s tendencies but by proof. In the Court’s opinion, Judge Williams has quoted the Connecticut Supreme Court’s opinion descriptive of the practice I believe Kentucky should adopt in the trial of recidivist cases. Tennessee recently did. Harrison v. State (1965), Tenn., 394 S.W.2d 713, and also see Miller v. State (1965), Ark., 394 S.W.2d 601.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Francis WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Rehearing Denied July 1, 1966.

      J. David Francis, John David Cole, Leland H. Logan, Francis, Potter & English, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

This is an appeal from an order of the Warren Circuit Court denying jurisdiction to entertain the appellant’s motion under RCr 11.42 to void a 1933 conviction of dwelling house breaking. Appellant duly served this sentence. In 1935 he was again convicted of dwelling house breaking in the Warren Circuit Court. This sentence was likewise served. Appellant is currently confined under a sentence to life imprisonment as an habitual criminal. That sentence was imposed incident to a 1964 conviction in the Monroe Circuit Court for storehouse breaking. See the companion case, Wilson v. Commonwealth of Kentucky, Ky., 403 S.W.2d 705, this day decided.

Appellant’s motion, filed September 3, 1964, alleges that his 1933 Warren Circuit Court conviction is void on two grounds: First, his plea of guilt was made without the assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; second, the Warren Circuit Court was without jurisdiction to try appellant in 1933, when the Warren County Juvenile Court had not accepted jurisdiction over him and waived his juvenile rights, pursuant to then Kentucky Statutes, section 331e-2.

RCr 11.42 reads as follows:

“(1) A prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court which imposed the sentence to vacate, set aside or correct it.”

The question before this Court is whether the remedy provided by RCr 11.42 is available to set aside a completely executed 1933 sentence when the prior conviction which invoked that sentence is the basis for a life sentence under a 1964 conviction pursuant to KRS 431.190 (Habitual Criminal Statute).

In Sipple v. Commonwealth, Ky., 384 S.W.2d 332 (1964), this Court defined the limits of RCr 11.42 by stating:

“* * * However, RCr 11.42 does not provide, expressly or by implication, for the review of any judgment other than the one or ones pursuant to which the movant is being held in custody.”

Appellee relies on several federal cases which construe the application of 28 U.S. C.A. § 2255, which is comparable to our RCr 11.42. See United States v. Lavelle, 194 F.2d 202 (2d Cir. 1951); United States v. Bradford, 194 F.2d 197 (2d Cir. 1952); Lopez v. United States, 186 F.2d 707 (9th Cir. 1950); Crow v. United States, 186 F.2d 704 (9th Cir. 1950). In Crow v. United States, supra, the Court, in affirming the dismissal of appellant’s motion under section 2255, noted that the service of the sentence which the appellant attacked in the proceeding had not begun, and said:

“If appellant’s position were sustained, the proceeding under the section could be invoked to set aside sentences served as well as sentences to be served in the future. Since the motion under Section 2255 was designed to provide a direct attack in place of collateral attack under habeas corpus, it is logical to conclude that the intent of Congress was to limit the scope of relief under it to that on habeas corpus. Relief under habeas corpus is limited to release from present detention. It is not available to test the legality of threatened detention. It does not lie to secure a judicial decision which, even if determined in the prisoner’s favor, would not result in his immediate release.”

RCr 11.42 is a procedural remedy designed to give a convicted prisoner a direct right to attack the conviction under which he is being held. It is supplemental to the right of habeas corpus, and we must accept the plain meaning of the language of the rule. Appellant is not in custody by virtue of the 1933 Warren Circuit Court conviction, nor has he shown or claimed a right to be released from custody of that sentence. He is seeking to use a remedy in a manner which was never intended by the Court in drafting RCr 11.-42. This Court is not prepared to extend the relief provided by RCr 11.42 to a case of this type.

Since appellant may not invoke RCr 11.42, his available remedy, if he has one at all, must be under CR 60.02, which replaced the writ of coram nobis. Coram nobis has been relied upon in our federal courts to grant relief in similar case situations. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); United States v. Nickerson, 124 F.Supp. 35 (D.C.Mass.1954). RCr 11.42 is not a bar to a motion under CR 60.02, but actually supplements CR 60.02. Although RCr 11.42 does not lie here, the appellant is still subject to the adverse results of the conviction and is entitled to have it set aside in a proceeding in the nature of coram nobis if the circumstances demand such relief. United States v. Nickerson, supra.

However, CR 60.02 is an extraordinary remedy and is available only when a substantial miscarriage of justice will result from the effect of the final judgment. In both United States v. Morgan, supra, and United States v. Nickerson, supra, the Court found that the defendant was without counsel as a matter of fact and therefore granted coram nobis pursuant to this finding on the ground that substantial injustice would result if the conviction were allowed to stand. In the instant case, there is no such clear showing of lack of counsel. The only testimony of anyone in the courtroom that appellant had no counsel comes from the appellant himself. The name “Stagner” (a practicing attorney in Bowling Green, in 1932) appears on the top of the indictment, and an examination of indictments of the Warren Circuit Court reveals the practice of the judge in placing the name of the defense attorney at the top of the indictment. The jury’s verdict was written on the indictment and signed by the foreman. “It is presumed the proceedings were correct and the burden rests on the accused to show otherwise.” United States v. Morgan, supra, 346 U.S. at p. 512, 74 S.Ct. at p. 253.

Concerning appellant’s argument that the Warren Circuit Court was without jurisdiction to try him in 1933, we note that the statute then existing (Kentucky Statutes, sec. 331e-2) provided that the county court had jurisdiction of all juvenile cases. The county court was directed to keep a special record book to be known as “the juvenile record,” and the calendar of the court upon which should appear the juvenile cases was to be known as “the juvenile docket.” The record does not show whether either of the documents was kept. It was stipulated that an order book of the juvenile session of the Warren County Court was kept and for the year in question seven orders were entered, each being a judgment of conviction to the reformatory or to the Kentucky Children’s Home. It was further stipulated that there were no orders in which the juvenile session of the Warren County Court waived its jurisdiction on any defendant to the circuit court, nor was there any order relating to this appellant.

The record does disclose an order of the Warren Quarterly Court showing the appellant waived examining trial and was held to the grand jury. The same man serves as County Court Judge, as Quarterly Court Judge, and as Juvenile Court Judge. The order of the quarterly court is certain evidence that the juvenile judge knew that appellant had been arrested and charged with a crime. Consequently, it is evident that the juvenile court did waive jurisdiction over appellant despite the fact no juvenile record was kept in which to record the event.

A portion of the opinion of the Warren Circuit Court reads as follows:

“The presumption of law is that the proceedings were regular. The proceedings occurred more than 31 years ago. The Courthouse has been renovated, old records scattered, removed from the Courthouse, and difficult to locate. Judge R. C. P. Thomas, the County Judge, is dead; Judge N. Porter Sims, the Circuit Judge, is dead; Frank Goad, the Commonwealth Attorney, is dead; Joe S. Kirby, the foreman of the jury, is dead. Human memory is faulty. Judge Thomas and Judge Sims were careful and painstaking Judges. * * * The record indicates a plea of guilty was entered and the penalty assessed by the Jury. The sentence was executed and served.”

There is an absence of proof that substantial injustice will result; consequently, the appeal must fail.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Tommy TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Rehearing Denied July 1, 1966.

      Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee,
   DAVIS, Commissioner.

A jury found Tommy Taylor guilty of violating KRS 433.190, in that he broke and entered a tobacco barn with intent to steal tobacco belonging to Commodore Dykes from the barn. This appeal is from the judgment imposing sentence of imprisonment for two years pursuant to the jury’s verdict.

The three questions on appeal, as stated by appellant in his brief, are:

“1. Whether a search made by officers who were on the appellant’s premises wrongfully and without any warrant was illegal ?
“2. Whether the trial Court participated — by its questions and comments on rulings — in the prosecution to an extent and in a manner that prejudiced the rights of the appellant to a fair trial?
“3. Whether the trial Court erroneously overruled the appellant’s motion' for a peremptory instruction ? ”

The alleged theft occurred during the night of December 4, or early morning hours of December 5, 1964. Dykes said that about “eleven dozen” hands of tobacco had been stolen from the barn in which he had his tobacco housed. Dykes, in company with Pulaski County Sheriff Phelps and State Detective King, examined the crime scene on December 5. They discovered three sets of footprints in the soft earth in the barn area; also observed by them were some hands of tobacco and crumblings of tobacco which appeared to have fallen off other hands of tobacco taken from the barn.

Dykes and the officers related that they were able to follow the trail of footprints and tobacco particles from the barn to the home of appellant. The footprints were described as indicating that an adult man and a boy and girl (or two boys) had made them.

The appellant was not at home when Dykes and the officers arrived there. After some conversation with appellant’s wife, Dykes went into a small shed situated on a hill back of appellant’s dwelling. Dykes testified that he found some of his tobacco in the shed, concealed beneath some other tobacco. The officers said that they did not enter the shed until after appellant had come on the scene, although they said they could see tobacco in the shed, merely by viewing it from the outside.

Dykes and the officers had not been on appellant’s premises long until appellant arrived there. Appellant disclaimed any knowledge of the presence of any tobacco on his place, and told the officers he had no objection to their making a search about the premises. Then the officers entered the shed and uncovered the Dykes tobacco which had been hidden from view by other tobacco piled on it. A hand of the Dykes tobacco found in the shed was exhibited to the jury along with a hand of Dykes’ tobacco which had not been stolen. Similarities of the “tie” on these hands was spoken of in the evidence (and was visually before the jury via the physical presentation of the hands of tobacco).

Appellant continued to disclaim all knowledge of the tobacco, or how it came to be in his shed. He offered to give Dykes $30.-00, plus the “non-Dykes” tobacco in the shed to let the matter drop. Dykes declined the offer.

A witness testified to having been aroused by the barking of his dogs at or about the time of the theft. The witness saw two people, apparently with tobacco, but he could not positively identify them, although he said positively that appellant was not one of the persons he saw. The appellant offered no evidence in his behalf, but made a timely motion for a directed verdict of acquittal, which the trial court overruled.

It will be observed that appellant’s attack on the legality of the search relates to the “search made by officers.” No complaint is made respecting the search made by Dykes, victim of the theft, and a private citizen. The simple answer to appellant’s assertion of error about the search is that the officers testified that appellant consented to it. Their testimony in this regard is entirely unimpeached. This case is not governed by Johns v. Commonwealth, Ky., 394 S.W.2d 890. In Johns the purported consent was reluctantly given after Johns had been placed under arrest; additionally, the search there had no reasonable relationship to the purpose of the arrest. In the present case the officers informed appellant that their purpose was to locate tobacco stolen from Dykes — appellant, purportedly for the purpose of demonstrating his own innocence, knew what the object of the search was and consented to it. There is no showing that any coercion was employed to obtain the consent.

It should be further noted that Dykes had discovered the stolen tobacco anyway, and no objection was made to the legality of the search by him; neither is there any presentation on this appeal of any claim that the search by Dykes was improper. Therefore, the evidence of the officers as to what was revealed by the search was simply cumulative of the unchallenged testimony from Dykes, and had it been erroneous, it may be doubted whether it could be considered prejudicial. RCr 9.24. Accordingly, we conclude that there is no merit in the claimed error respecting the search by the officers.

As to the claimed error relating to improper participation by the trial judge, we need say only that we have reviewed fully the transcript and are not persuaded that the court’s participation in the trial warrants the view that it was prejudicial to the appellant. In any event, the record discloses that appellant made no objection to the court’s conduct, nor did he request any affirmative or curative relief during the trial regarding the matters of which he now complains. In these circumstances the alleged error, if any, is waived. Young v. Commonwealth, Ky., 335 S.W.2d 949.

Finally, it is contended that the evidence did not warrant submission of the case to the jury, and that a peremptory instruction for acquittal should have been given. We view that contention as untenable in light of the record. Without undertaking a detailed itemization of the circumstances pointing to appellant’s guilt of the offense, we note the following factors which we deem sufficient to sustain the verdict: Appellant knew of the tobacco’s being housed’ in the barn, and made inquiry as to whether it had been hauled away on the very day of the offense; the tracks and trail of tobacco particles led to appellant’s premises, the stolen property was found on appellant’s premises, suspiciously concealed, and in face of appellant’s contention that he had no tobacco on the place. Appellant made an offer of compromise despite his assertion of innocence. This offer, of course, was not conclusive, but it affords substantial basis for an inference of guilt. The witness who testified that he did not see appellant at the crime scene when aroused by the barking dogs did say that the two persons he saw, he believed to be appellant’s children. The tracks indicated that three persons were participants, and one set of tracks clearly supported the inference that they were made by an adult. The negative testimony of the witness that he did not see appellant can hardly support the conclusion, as a matter of law, that appellant was not present. See Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, and cases therein cited, for the views of the court as to sufficiency of circumstantial evidence to sustain a conviction. It is our view that the evidence here is quite substantial and adequate to sustain the verdict.

The judgment is affirmed.

      . The alleged misconduct of the trial judge here did not approach the “palpable error” status so as to obviate the necessity for objection. See Collins v. Sparks, Ky., 310 S.W.2d 45; Barnett v. Commonwealth, Ky., 403 S.W.2d 40 (Dec. May 20, 1966); 5 Am.Jur.2d, Appeal and Error, Section 622.


author: WILLIAMS, Judge. MILLIKEN, Judge HILL, Judge

text:
    W. C. GATEWOOD, Individually and for and on Behalf of All Residents, Voters and Taxpayers of the Commonwealth of Kentucky, Appellants, v. Robert MATTHEWS, Attorney General of the Commonwealth of Kentucky, and Thelma L. Stovall, Secretary of State of the Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    May 31, 1966.

      William E. Johnson, Johnson & Burton, Frankfort, for appellants.
    Robert C. Carter, Louisville, amicus curiae.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, Morton Holbrook, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   WILLIAMS, Judge.

W. C. Gatewood, individually and for all residents, voters and' taxpayers of the Commonwealth of Kentucky, brought this suit in the Franklin Circuit Court demanding a declaration of rights and seeking to enjoin the Attorney General and the Secretary of State from certifying the question of adoption of a proposed Constitution. The Franklin Circuit Court delivered a well reasoned opinion defining the rights of the appellant and those he represents, and declined to issue an injunction. This appeal results.

By amendment to KRS 7.170, the 1964 General Assembly established the “Constitution Revision Assembly” to carry on a program of study, review, examination and exposition of the Constitution of Kentucky, to propose and publish drafts, amendments, or revisions thereof, and to report the result of its work to the General Assembly. Pursuant to that mandate, a Constitution Revision Assembly was appointed by majority vote of the Governor, Lieutenant Governor, Speaker of the House, and Chief Justice of the Court of Appeals. The Assembly was composed of all former living Governors, one delegate from each of the 38 Senatorial Districts, and five delegates from the State-at-large. The Assembly conducted detailed studies on each section of the Constitution. At the conclusion of its labors it recommended to the 1966 General Assembly a draft of a reformed Constitution.

In 1966, the General Assembly passed Senate Bill 161, which submits to the voters at the general election on November 8, 1966, adoption or rejection of the Constitution prepared by the Constitution Revision Assembly. S.B. 161 requires publication of the proposed Constitution in at least two newspapers of general circulation published in Kentucky, once not less than ninety days before and once not less than seven days before the date of the election. It further directs the Attorney General to cause “the proposed Constitution and schedule or summaries thereof to be further publicized by other communication media in order that the voters of the Commonwealth may have a reasonable opportunity to become informed on the issue to be decided by them.”

The primary question to be considered is whether by the terms of Sections 256 and 258 of the Constitution the people have imposed upon themselves exclusive modes of amending or of revising their Constitution.

Section 258 authorizes the General Assembly to enact a law at two successive sessions providing for taking the sense of the people as tc the necessity and expediency of calling a convention for the purpose of revising the Constitution. Section 256 provides for the proposal of amendments to the Constitution by the General Assembly.

It is the appellant’s contention that those sections do represent exclusive modes of reforming the Constitution. He points out that in each of the former constitutions of this Commonwealth there has been a section which established procedure for revision. (Article XI, 1792 Const.; Article IX, 1799 Const.; Article XII, 1850 Const.; and sections 256-263, 1891 Const.) It is his argument that whatever power the Constitution has conferred upon the legislature in reference to proposing amendments or other modes of revision must be strictly pursued.

This is the first time this Court has had before it the question of whether sections 256 and 258 provide exclusive modes for changing the Constitution. In several cases we have considered efforts to amend or revise the Constitution in compliance with one of those sections. In each case this Court has held that such effort must follow precisely the procedure established in that particular section. Harrod v. Hatcher, 281 Ky. 712, 137 S.W.2d 405 (1940); Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76 (1939); McCreary v. Speer, 156 Ky. 783, 162 S.W. 99 (1914). In no case have we held that sections 256 and 258 are the exclusive modes of changing the constitution.

Here the proposed procedure does not follow the dictates of section 256 or 258 of the Constitution. In fact, there is no section specifically setting out the mode of revision prescribed in S.B. 161. If there be authority for such action it must be derived from the sovereign power of the people as delineated in section 4 of the Bill of Rights:

“All power is inherent in the people, and. all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.”

These words were supposedly penned by Thomas Jefferson as section 2, Article XII, of the 1792 Constitution. In any event they express the historical experience of the people in securing a government in which they have freedom of action not permitted by “the Divine Right of Kings.” They simply and forcefully state the doctrine of popular sovereignty. The doctrine was recognized in Miller v. Johnson, 92 Ky. 589, 18 S.W. 522, 15 L.R.A. 524 (1892), where it was said:

“It is conceded by all that the people are the source of all governmental power; and, as the stream cannot rise above its source, so there is no power above them. Sovereignty resides with them, and they are the supreme law-making power. Indeed, it has been declared in each of the several constitutions of this state that ‘all power is inherent in the people;’ and this is true, from the very nature of our government. * * * ”

The Bill of Rights has always been recognized as the supreme law of the Commonwealth. That fact is emphasized by section 26 of the Constitution, which is carried over from the past constitutions:

“To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.”

It is inconceivable to assume the people might be divested of the power to reform their government by the procedures established in sections 256 and 258 of the Constitution. Nowhere is that power limited either expressly or by necessary implication. In fact, one portion of a resolu. tion offered at the 1890 Convention is as follows:

“Resolved, That the Constitution shall not be altered, amended or changed in any way except as provided in this article.”
Vol. I, Debates, Constitutional Conventions, 1890, p. 144.

It was not adopted. The power of the people to change the Constitution is plenary, and the existence of one mode for exercising that power does not preclude all others.

History shows there were popular ratifications of both the 1850 and 1891 Constitutions despite the lack of provision therefor. Miller v. Johnson, supra. The legislative limitation that a constitution adopted by a convention should not become effective until ratified by a vote of the people was upheld in Gaines v. O’Connell, 305 Ky. 397, 204 S.W.2d 425 (1947), where we said:

“The challenge of this limitation upon the Convention, if one should be held, is that the constitutional provisions with respect to this mode of revision deal with every phase of the calling, organization and duties of a convention, and contain no authority for the General Assembly to bind the members to submit their work to a vote of the people. Hence, it is argued, the framers of the present constitution did not intend to confer upon the Legislature the power to restrict or limit the action of the convention.”
“Since the constitution of Kentucky * * * contains no inhibition or restriction upon the General Assembly in this matter of initiating a call for a Constitutional Convention, it was at liberty to exercise its plenary power in attaching the condition to the submission of the question of calling a convention. When they vote upon it, they will do so with the assurance that the result of the deliberations of the Convention, if called, will be submitted to them for ratification or rejection. By this course, the people keep a firm hold upon their liberties and may obtain a charter of government wanted by the majority.” * * *

And in Chenault v. Carter, Ky., 332 S.W.2d 623 (1960), we held that the legislature was not prohibited from limiting a convention to consideration of only twelve subjects.

In a landmark opinion the Supreme Court of Rhode Island reversed a former opinion which applied the rule “expressio unius est exclusio alterius,” in holding the amendatory language of their constitution was the exclusive mode of revision. In Re Opinion To The Governor, 55 R.I. 56, 178 A. 433 (1935). Their constitution provided that the people had a right “to make and alter their constitutions of government” by any “explicit and authentic act of the whole people.” That Court approved an act of the General Assembly calling for a convention, although no such procedure was provided in the constitution. The Court said:

“The power granted to the General Assembly by article 13 can naturally and reasonably be viewed as an additional rather than an exclusive power, and the recognized rule is that if two constructions of a constitutional provision are reasonably possible, one of which would diminish or restrict a fundamental right of the people and the other of which would not do so, the latter must be adopted. * * * ”

The people of Georgia voted approval of a constitution submitted by their General Assembly in 1945. The Bill of Rights of the Constitution of Georgia, Article I, section 5, provided:

“The people of this State shall have the inherent, sole and exclusive right to regulating their internal government and the police thereof, and of altering and abolishing their Constitution whenever it may be necessary to their safety and happiness.”

The Supreme Court of Georgia, in Wheeler v. Board of Trustees, etc., 200 Ga. 323, 37 S.E.2d 322 (1946), held that the sections of the Georgia Constitution providing different modes of changing the Constitution did not limit the sovereign power of the people to approve the Constitution submitted to them by the General Assembly, and it further held that it is the vote of the people that gives life to the Constitution. The language used by that Court in upholding the doctrine reposing sovereign power in the people, is as follows:

“We now consider whether the instrument is valid as a new constitution. The constitution of 1877, article 13, section 1, paragraph 2 (Code, § 2-8602), provides as follows: ‘No Convention of the people shall be called by the General Assembly to revise, amend or change this constitution, unless by the concurrence of two-thirds of all the members of each house of the General Assembly. The representation in said convention shall be based on population as near as practicable.’ It is contended that this provision means that a completely revised or new constitution can be formulated by a convention, and in no other manner. We are now dealing with a written constitution — the original law by which our system of government was set up. It creates the government. By its provisions the three branches of our government— legislative, executive, and judicial — are created. The three branches of government must look to it for all their power and authority. Not so with the sovereign power, the people. Under our system of government all power and authority is vested in the sovereign people, subject only to such limitations as they have expressly imposed upon themselves by this organic law, the constitution. With this as the basis from which we reason, is it true that this provision of the constitution of 1877 limits the power of the sovereign people to a convention as the only means by which they can have a completely revised or new constitution ? The language does not say so. The section purports to do nothing more than to place limitations upon the legislative branch of government as to the manner in which a convention can be called by this branch of the government. If we should say that the sovereign people themselves can adopt a new constitution by the convention method only, we would by implication be writing into this clause of the constitution a limitation on the sovereign power of the people. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an unauthorized exercise of sovereign power by the court. * * * ”

In the ultimate sense, the legislature does nothing unless and until the people ratify and choose to give the revised constitution life by their own direct action. In this respect the legislature merely performs the role of messenger or conduit. The process is no more than corollary to the right of petition and address reserved to the people in section 1 of the Constitution.

We cannot accept the proposition that section 4 has been preserved throughout all these years as a mere relic, a museum piece without meaning or substance as a viable principle of free government. To the contrary, it seems clear to the majority of this Court that in each of our four constitutions the Bill of Rights has been purposefully set aside as supreme and inviolate because it represents those things that are basic and eternal, all other matters being transitory and subject to change. It follows that nothing else in the Constitution can be construed as a limitation, restriction or modification of any of these fundamental rights.

Each of the four constitutions of this state has provided a method or methods of amendment and revision. Significantly, in none of them have such specified procedures been declared exclusive. The reason is obvious. The right of each generation to choose for itself is inalienable, as it was recognized and said from the very beginning. Being thus inalienable, that right cannot be cut down or subjected to conditions any more than it could be completely denied by one generation to another. So long as the people have due and proper notice and opportunity to acquaint themselves with any revision, and make their choice directly by a free and popular election, their will is supreme, and it is to be done.

As a practical matter, the intent of the framers of the Constitution is more than satisfied by this proposed action. Section 258 directs that two sessions of the legislature provide for a vote by the people on calling a convention. Two sessions were apparently thought necessary adequately to inform the public of the impending election. Further, the fight to vote for delegates assured the people of a voice through their elected representatives. Here the procedure goes even further. News and information are disseminated faster and more efficiently today than was anticipated when the Constitution was drafted. But even more significant is the fact the people need not rely on a representative to speak for them. They participate directly and individually. Each person may cast his vote for or against the adoption of the proposed constitution knowing full well what it says. Another thing of significance is that until he casts his vote the document is as nothing. Only a majority vote of the people can give it force and effect.

The question to be submitted to the voters is set out in S.B. 161, as follows!

“Are you in favor of reforming the Constitution of the Commonwealth to cause same to be in the same form and language as finally submitted to the Governor and the General Assembly of Kentucky by the Constitution Revision Assembly and set forth in Senate Bill No. 161 enacted at the Regular Session of the General Assembly of Kentucky held in the year 1966 and as heretofore scheduled and published as required by law?”

Suffice it to say the question conforms to the requirement of the statute, KRS 118.-170(3), and affords an intelligible opportunity to the voters to express a clearly defined preference. Turner v. Board of Education of Scottsville Independent School Dist., Ky., 266 S.W.2d 321 (1954); Armstrong v. Fiscal Court of Carter County, 162 Ky. 564, 172 S.W. 972 (1915); Stone v. Gregory, 110 Ky. 492, 61 S.W. 1002 (1901).

S.B. 161 provides that the complete, text of the reformed Constitution shall be published in at least two newspapers of general circulation in the Commonwealth; once not less than ninety days before and again not less than seven days before the election. In addition, the Attorney General is directed to cause the proposed Constitution and schedule or summaries thereof to be publicized by other communication media. There is nothing vague or uncertain about the mandatory publication of the proposed Constitution, and the Attorney General’s honorable and full compliance with the legislative direction must be expected and is to be presumed. To anticipate otherwise would constitute an unwarranted excursion outside the scope of judicial authority both as an intrusion upon the executive function and an invasion of that shadowy area where no justiciable controversy resides. Combs v. Matthews, Ky., 364 S.W.2d 647 (1963).

The action taken by the legislature does not violate the form or the spirit of the Constitution of Kentucky or the Constitution of the United States. When the people vote on the proposed Constitution it will be an expression of the inalienable right of the ultimate sovereign to reform the government. That right is guaranteed by Section 4 of the Bill of Rights, and is not preempted by the inclusion in the Constitution of alternate modes of revision.

The judgment is affirmed.

HILL, J., dissented.

MILLIKEN, Judge

(concurring).

I concur wholeheartedly in the majority opinion and think that the dissenting opinion ignores history, and dangerously tethers the present generation in the exercise of its greatest freedom, the freedom to alter or reform its basic law any time it deems proper. Furthermore, the dissenting opinion erroneously goes on the assumption that “[t]he proponents of the Act [S.B. 161] apparently contend that the legislature is ‘the people.’ ” Nothing could be farther from the truth, for the majority opinion explicitly declares that the ultimate authority to make any change in the Constitution lies with the citizens of this Commonwealth, not the legislature.

It must not be forgotten that the language of the Bill of Rights is an attempt to express in words the specific achievements of the English and American peoples in their centuries-old struggle to establish the sovereignty of the people over the divine right of kings. The freedom they won was the freedom to participate in the affairs of their government and all that that implies, and in Kentucky they expressed that freedom in Section 4 of the Bill of Rights that “ * * * they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they deem proper.” It is the people who have that right, not the legislature; only the people have the final word. The legislature is one vehicle through which the people are given the chance to have that final word whether the submission of constitutional questions is done under the specific sections, 256 and 258, or under the Bill of Rights as here.

I view Sections 256 and 258 as means of effectuating the right of constitutional change the Bill of Rights assures, but I do not see those sections as limitations on the right of the people under Section 4 “ * * * to alter, reform or abolish their government in such manner as they may deem proper.” It is inconceivable to me that the generations which fought for and drafted the Bill of Rights celebrating their own freedom, would attempt to limit future generations in the means of maintaining and developing it.

The crucial problem for this Court is to protect at every stage the democratic process, the orderly and fair presentation to the people of any proposal pertaining to their basic law, and I think the method here employed is orderly, is in the open, and is as fair as any other method of presentation so far devised. This is an exercise in freedom and the majority opinion amply protects this generation of Kentuckians in the exercise of their freedom to change their basic law — to cope with the challenges of the present time. How the citizens exercise that freedom is entirely up to them.

HILL, Judge

(dissenting).

I am not so much disturbed by the immediate result of this decision as I am by the establishment of a constitutional principle which is both contrary to logic and legal precedent and destructive to six sections (258-263) of the present Constitution of the Commonwealth of Kentucky.

The authors of our Constitution outlined in section 258 definite and specific steps for its revision. This is the one and only mode of revision contained therein. Had the authors intended any other mode of revision, they would have said so. Had they intended its revision in “any manner as they (the people) may deem proper,” as is urged by appellees, section 258 would have been an indulgence in idle curiosity and speculation. I believe there is no reasonable-minded person in this Commonwealth who doubts that it was the intention of the authors of the Constitution to provide an exclusive plan for revision.

It appears to me that the only justification for the majority opinion is expediency. The net result of the opinion recognizes the right of the legislature to repeal the Constitution either in toto or by piecemeal. Nowhere in the Constitution is the legislature given the authority to formulate or submit to the people a new constitution. Here we are testing a legislative act and not a process of revision of the Constitution. The legislature either has or does not have the authority to legislate on this important question.

The only source of power which appellees are able to invoke is section 4 of the Constitution. This section provides as follows:

“All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.” (Emphasis added.)

On its face, this section is an expression of political philosophy.; It is a cocky boast of a sovereign people revelling in the enjoyment of new-won freedom and sovereignty. It is said this philosophy came from the pen of Jefferson. Appellant argues it only has historic value. I would not degrade it on that theory but would recognize that it may well leave in “the people” a residual power to accomplish ends not otherwise provided for in the Constitution. It should be recognized, however, that the practical application of this section is almost impossible. It provides no plan of implementation. Who are “the people?” Certainly, they are not the legislature. Under this section how do “they” (the people) act ? I point out these difficulties in section 4 simply to emphasize the general, broad, and vague nature of the reservation,of power contained therein and to further emphasize the utter dependence of section 4 upon section 258 for its implementation.

Without explaining just why section 4 empowers the legislature to pass the Act before us, the appellees rely upon section 26 of the Constitution. In doing so, they remove the trapdoor of their own scaffold. Section 26 is as follows:

“To guard against transgressions of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution shall be void.” (Emphasis added.)

Appellees cite this section to bolster their argument that section 4 of the Bill of Rights takes precedence over other sections. Ignoring the fact that this is contrary to settled principles of constitutional construction and contract law, the majority decision seems to overlook exactly what section 26 provides. Insofar as we are concerned in this case, it provides in effect that the power granted by section 4 “is excepted out of the general powers of government.” In other words, the power exercisable by the people cannot be exercised by the government.

It cannot be successfully argued that the legislature in passing the Act before us was not exercising the general powers of government. The legislature has undertaken to preempt the right of the people which is reserved to them by section 4. This is exactly what section 26 says the government, acting through its legislature, cannot do. The case for appellees completely falls. Section 4 gives the legislature no authority to do anything. The argument might well stop here.

The proponents of the Act apparently contend that the legislature is “the people.” I consider this argument untenable. But if the proponents are correct in this contention and the legislature is vested with the unrestricted power ostensibly bestowed by section 4, then the provisions of the Constitution pertaining to revision are completely meaningless and useless. On this theory, the legislature could from time to time alter or reform the Constitution in any manner it saw fit to suit the varying and unpredictable winds of political philosophy. What becomes of the sections on revision ? Has this court been usurping the power of the legislature for generations by declaring legislative acts unconstitutional?

The truth is, “the people” spoke when they enacted and adopted the Constitution of the Commonwealth of Kentucky. Until “they” speak again, the legislature exercising the general powers of government must conform to the plain mandates of that document.

Section 258 of the Constitution clearly recognizes that the legislature is not “the people.” It specifically provides for taking “the sense of the people” with respect to revising the Constitution. To accept the theory that the legislature is “the people” (with plenary power reserved by section 4) would lead to the most frightening results. If section 258, relating to revision, is not binding on the legislature, then certainly section 256, relating to amendments, is not. Section 256 is no more exclusive than section 258.

If the legislature is “the people,” then, of course, there is no necessity for having the vote of “the people” on any particular proposition. Those defending the Act seem to sense that somewhere, somehow the people should have a right to vote specifically on a constitutional revision or amendment, but their basic argument makes unnecessary any such vote. Nothing in section 4 requires any such vote. If the legislature had the authority to enact this law under section 4, then the vote of the people is mere surplusage.

In the argument, those defending this Act were forced to frankly concede that if a new Constitution could be adopted in this manner then the legislature itself could write the document. This is obviously true, and the majority of the court must accept this fact. This being so, the present safeguards for the revision or amendment of the Constitution are now obviously discarded and' obsolete.

Be it remembered for all time to come that the new Constitution contains specific provisions for the revision and amendment of that document (Article XIV). Under the majority decision these provisions are nothing more than suggested methods of accomplishing those ends. They can be ignored by the legislature. I wonder if “the people” who will vote on the new Constitution will realize that the solemn methods of revision and amendment therein contained are little more than camouflage and that the legislature is in no way bound by them.

There are other reasons why the majority decision violates principles of constitutional construction as well as contract law, such as the well-settled rule that specific will take precedence over general. It is said in 16 Am.Jur.2d, Constitutional Law, section 26, p. 198, that:

“ * * * the rule is that the constitutional mode of making amendments is mandatory and exclusive, and must be substantially followed, and that an amendment does not become effective as such unless it has been duly adopted in accordance with the provisions of the existing constitution. It follows that whatever power a constitution has conferred on the legislature in reference to proposing amendments, as well as to calling a convention, must be strictly pursued.”
“Any attempt to revise a constitution or adopt a new one in any manner other than that provided in the existing instrument is almost invariably treated as ex-traconstitutional and revolutionary. Thus, even if the vote of the people should be overwhelming in adopting a constitution formulated by a convention not legally called, it would be the duty of the executive and judiciary and all officers sworn to support the old constitution to resist to the utmost the installation of government under the new revolutionary constitution.”

On the question of rules of construction of constitutional language, this court in Grantz v. Grauman, Ky., 302 S.W.2d 364, 366 (1957), stated:

“A cardinal rule is that where the language of the Constitution leaves no doubt of the intended meaning of the section under consideration, courts may not employ rules of construction. * * * Another important rule is that in construing one section of a Constitution a court should not isolate it from other sections, but all the sections bearing on any particular subject should be brought into consideration and be so interpreted as to effectuate the whole purpose of the Constitution.”

Also in the early case of Varney v. Justice, 86 Ky. 596, 600, 6 S.W. 457, 459 (1888), in the same vein it is written:

“Wherever the language gives a direction as to the manner of exercising a power, it was intended that the power should be exercised in the manner directed and in no other manner. It is an instrument of words granting powers, restraining powers, and reserving rights. These words are fundamental words, meaning the thing itself; they breathe no spirit except the spirit to be found in them. To say that these words are directory merely, is to license a violation of the instrument every day and every hour. To preserve the instrument inviolate we must regard its words, except when expressly permissive, as mandatory, as breathing the spirit of command.”

Perhaps the most celebrated and quoted case on the constitutional question involved here is Miller v. Johnson, 92 Ky. 596, 18 S.W. 522 (1892). I quote from Miller:

“If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established.”
* * * * * *
“If it provides how it is to be done, then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid.”

Not only is the rule herein discussed firmly established in this jurisdiction, but in others, such as Indiana. See Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1. In Ellingham, supra, the factual situation, as well as the constitutional provisions, was peculiarly similar to our own. In that case, the Legislature of Indiana passed a bill termed “proposed new Constitution.” The Supreme Court of Indiana declared the bill unconstitutional, and the United States Supreme Court dismissed a writ of error. I am mindful of the Georgia case which furnishes strong support for appellees, but I consider the Georgia case, like the present one, a case of expediency.

The Constitutional rules of construction pertaining to this Act may not be understood by the layman. However, they are readily apparent to the trained legal mind. Those ardent supporters of a new constitution, and there is need for improvement, may become impatient and demand a short cut to a new constitution. But the Constitution of this Commonwealth should not be circumvented or a section or syllable masticated in the interest of expediency.

However unpopular my position, and irrespective of the loneliness of my dissent, I consider it my duty to speak out in support of the sacred and solemn Constitution of this Commonwealth and in support of the rights of “the people” who to this good hour have had no opportunity to be heard.


author: PER CURIAM.

text:
    ATOMIC FUEL EXTRACTION CORPORATION, Petitioner, v. ESTATE of Tom SLICK et al., Respondents.
    No. A-10653.
    Supreme Court of Texas.
    July 14, 1965.
    Rehearing Denied May 4, 1966.
    Sears & Burns, Houston, W. R. Smith, San Antonio, John H. Tippit, Denver, Colo., for petitioner.
    Carl Wright Johnson and Nat L. Hardy, Stahl & Sohn, Cox, Smith & Smith, San Antonio, for respondents.
   PER CURIAM.

We refuse the application for writ of error with the notation “no reversible error.” 386 S.W.2d 180. However, such action is not to be construed as approval of that part of the Court of Civil Appeals’ opinion which holds that only nominal damages may be recovered for the loss of sales of uranium concentrates.

POPE, J., not sitting.


author: NORVELL, Justice. STEAKLEY, Justice.

text:
    SIRTEX OIL INDUSTRIES, INC., Petitioner, v. Thelma ERIGAN et al., Respondents.
    No. A-11088.
    Supreme Court of Texas.
    June 1, 1966.

      Pepos S. Dounson, San Antonio, for petitioner.
    John A. Waller, Jr., and Ralph Graham, Corpus Christi, for respondents.
   NORVELL, Justice.

The respondents, Thelma Erigan, a widow, Armeen Norah Erigan Stone and husband, Charles C. Stone, brought suit against Sirtex Oil Industries, Inc. alleging that they were the owners of the West one-third of Lot No. 40 of the H. B. Sheppard Farm Lots subdivision of lands in Nueces County, Texas, and entitled to possession thereof. They alleged that N. Erigan and wife, Myrtle Erigan, had executed an oil and gas mining lease covering said West one-third of Lot No. 40 to Shasta Drilling Company on December 22, 1932, and thereafter on June 17, 1949, N. Erigan and Ar-meen Erigan executed a surface lease covering the premises to Renwar Oil Corporation. The legal controversy involved in this suit relates to this surface lease. The Eri-gan plaintiffs conceded that the oil and gas mining lease is in force and effect, but alleged that the surface lease had terminated and that Sirtex was in effect a trespasser upon plaintiffs’ lands. The trial court directed a verdict for Sirtex. The Court of Civil Appeals reversed this judgment and remanded the case for another trial. 393 S.W.2d 836. For the reasons hereinafter set out, we affirm the judgment of the Court of Civil Appeals.

In 1949, Renwar Oil Corporation acquired the ownership of the Shasta Drilling Company lease from which production had been obtained. Renwar desired to make a more extensive use of the surface of the land than was permitted by the oil and gas lease for the purpose of maintaining field offices, warehouses, pipe racks and supply yards for the storing of materials to be used on the Erigan, the Quiroz and perhaps other leases. Renwar thereupon secured the surface lease above mentioned. On August 6, 1962, petitioner Sirtex Oil Industries, Inc. secured an assignment of the Erigan oil and gas mining lease from Ten-neco Oil Company, the successor in interest of Renwar Oil Corporation. This assignment included a conveyance of all the assignor’s interest in all leasehold equipment and personal property situated on and belonging to the operation of the leasehold premises. Edgar P. Bates, the executive president of Sirtex, testified that on the date of the assignment from Tenneco, Sir-tex took over “all operations that were with the Erigan property”. It appears, however, that Sirtex was under the impression that the oil and gas lease covered Tenneco’s surface operations on the Erigan tract as Bates did not know of the 1949 surface lease until the receipt of a letter from the Erigan attorney dated January 22, 1963, in which it was stated that Sirtex had no right to use such property for a supply yard, a salt water disposal pit or as a location for compressor facilities. In effect, the position taken by the Erigan attorney was that the surface lease had expired and was no longer in existence.

The Erigan-Renwar surface lease provided that:

“It is expressly agreed that the term of this lease shall run concurrently and be coextensive with the life of said oil and gas mining lease, and this surface lease shall be deemed to have terminated when such oil and gas lease terminates under its own terms and limitations, unless Lessee herein elects to terminate this surface lease at an earlier date, which it is granted the express right to do. This lease is effective as of and from January 1, 1947. Contemporaneously with the execution of this lease Lessee has paid to us, the undersigned Lessors, the sum of $1,800.00 in cash, the receipt of which is hereby acknowledged, such payment in full consideration for this surface lease for the years of 1947, 1948 and 1949, the annual rental for this surface lease being the sum of $600.00 per year. Likewise, and on or before January 1, 1950, and on or before January 1st of each succeeding year which Lessee desires to keep this surface lease in full force and effect, Lessee shall pay to Lessors, jointly, the sum of $600.00 which will be full consideration for this lease for the ensuing year. * * * ”

The rent due under the surface lease was paid for the years 1949 to 1962, inclusive, but the rent for 1963 was not tendered on or before January 1 of that year. After January 22, a further tender would not have been necessary because of the Erigan position that the lease had expired.

As we see it, there was no “election” in this case. The lease states that the term thereof shall be coextensive with the life of the oil and gas mining lease, “unless Lessee herein elects to terminate this surface lease at an earlier date, which it is granted the express right to do”. This clause, except for an incidental reference to an election to abandon the premises in connection with the rental clause, is the only provision relating to an election. In the lease, the term “elect” is obviously used in its common ordinary sense. It is a synonym of “choose”. Webster’s Third New International Dictionary. See also, Funk and Wagnalls, Standard Handbook of Synonyms, p. 121. The term “election” carries with it the connotation of a voluntary choice between two available courses.

The lease does not say how the election to terminate shall be exercised. It does not say that the failure to pay rent promptly on or before January 1, shall be equivalent to an election to terminate. One would suppose from the brief wording of the lease contract that the election or choice to terminate the lease would be exercised by a simple notice to the lessor. No such notice was ever given by Sirtex, but on the contrary, if “election” be the same as a voluntary choice, then the evidence is conclusive that Sirtex never elected or chose to move its yards, pipe racks and other equipment and supplies off the Erigan property.

We do not construe the lease as providing for a series of yearly options hut as having a term of definite duration. The lease states that “the term of this lease shall run concurrently and be coextensive with the life of said (Shasta) oil and gas mining lease. . . . unless Lessee herein elects to terminate this surface lease at an earlier date, which he is granted the express right to do”. Sirtex did not elect or choose to terminate the lease, so if it is to he terminated at some date prior to expiration of the Shasta oil and gas mining lease, some clause other than that providing for an election must serve as a basis therefor. This brings us to a consideration of the rental clause contained in the lease which recites the payment of rentals for the years 1947, 1948 and 1949 and continues:

“Likewise, and on or before January 1, 1950, and on or before January 1st. of each succeeding year which Lessee desires to keep this surface lease in full force and effect, Lessee shall pay to Lessors, jointly the sum of $600.00 which will be full consideration for this lease for the ensuing year, but in the event Lessee should make one of such annual rental payments and thereafter elect to abandon the premises during the year for which it has paid rental, nevertheless Lessors shall not be obligated to make restitution of any part of such unearned annual rental.”

The Erigan respondents urge that the provision for the payment of rent on or before January 1 should be construed as a condition. They rely primarily upon the phrase, “each succeeding year which Lessee desires to keep the surface lease in full force and effect”. The issue thus presented is close. In our opinion, however, this phrase taken in connection with the balance of the instrument providing for a term of years limited only by the time of expiration of the Shasta oil and gas lease, does not require that a condition or limitation be acknowledged. In all probability, it was placed therein in recognition of the lessee’s undoubted right to terminate the lease by its voluntary choice and election. No voluntary choice to terminate the lease was exercised. The rental clause may well be construed as a covenant to pay rent and nothing more.

Because of their harshness in operation, conditions are not favorites of the law. In the early case of Johnson v. Gurley, 52 Tex. 222 (1879), this Court discussed the nature of covenants, conditions and conditional limitations and announced the rule:

“In case of doubt as to the true construction of a clause in a lease, it should be held to be a covenant, and not a condition or limitation, as the law does not favor forfeitures.”

The same view was expressed in Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (1949), wherein it was said:

“Since forfeitures are not favored, courts are inclined to construe the provisions in a contract as covenants rather than as conditions. If the terms of a contract are fairly susceptible of an interpretation which will prevent a forfeiture, they will be so construed.”

In Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948 (1958), this Court said:

“Conditions subsequent are not favored by the courts, and the promise or obligation of the grantee will be construed as a covenant unless an intention to create a conditional estate is cleárly and unequivocally revealed by the language of the instrument. In cases where the intention is doubtful, the stipulation is treated as a covenant rather than a condition subsequent with the right to defeat the conveyance.”

See also, 51 C.J.S. Landlord and Tenant, § 104, p. 680; 32 Am.Jur. 143, Landlord and Tenant, § 141, 13 Tex.Jur.2d 340, Contracts § 158. Annotation 70 A.L.R. 1218. Cf. Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564 (1945), Fox v. Thoreson, 398 S.W.2d 88 (Tex.Sup.1966).

It further seems established that a lease will be most strongly construed against the lessor. Pickrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.1927, wr. ref., 116 Tex. 567, 296 S.W. 1062), Walling v. Christie & Hobley, Inc., 54 S.W.2d 186 (Tex.Civ.App.1932, no writ hist.), Richker v. Georgandis, 323 S.W.2d 90 (Tex.Civ.App.1959, ref. n. r. e.).

The facts of the case well illustrate why the law abhors a forfeiture. In the fall of 1962, Sirtex came into an operation that had been in continuous existence for some fourteen years. It may have been remiss in not knowing that the installations on the Erigan tract were in excess of those which were permitted by the ordinary oil and gas lease and in not making inquiry of Ten-neco as to the extensive use of the surface of the Erigan tract. To overlook something, however, does not call for punitive treatment and yet we have a lessee in effect ejected from lands upon which it has valuable buildings and installations because of non-payment of rent that it did not know was due and owing and which at all times since notification has been ready, willing and able to pay. An operation of many years standing would have to be rebuilt at heavy expense and inconvenience to the lessee. Under such conditions, it seems that equity should afford relief even though a condition rather than a covenant be involved. In Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 131 S.W.2d 957 (1939), this Court quoted with approval from F. B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47, 27 A.L.R. 976, as follows:

‘ “In cases of mere neglect in fulfilling a condition precedent of a lease, which do not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” ’

The Court of Civil Appeals sustained respondents’ contention that the surface lease had terminated of its own force and hence it was unnecessary for it to pass upon the remaining points contained in respondents’ brief in that Court. We do not agree with the Court of Civil Appeal’s construction of the lease and it thereupon becomes our duty to examine the remaining points asserted by respondents in their brief in the Court of Civil Appeals and ascertain whether any of them will support the judgment rendered by the appellate court.

In our opinion, such points raise a fact issue as to the rights of Sirtex under the Erigan-Renwar surface lease. The judgment of the trial court was based upon a tender by Sirtex of $1,800.00 for the rent due for the years 1963, 1964 and 1965. The money was deposited in the registry of the court to be turned over to respondents upon request. We have here a landlord-tenant situation. Sirtex claims to be the tenant of the Erigans as an assignee of Tenneco. Undoubtedly the lease was assignable and considering the fact that Sirtex was in possession of the various surface installations erected by Renwar and Tenneco, the execution of a written instrument would not be essential to the right to make a tender, provided Sirtex had an equitable right to require that the surface lease be assigned to it. It cannot be said that Sirtex was entitled to make a tender of rent as a matter of law. No tender by Tenneco was shown and if it were the only entity entitled to make such tender, an abandonment by it of the surface lease could be inferred. The legal relationship between Tenneco and Sir-tex as to the surface lease is left indefinite and uncertain by the testimony of the Sir-tex president. He seems to have originally believed that the extensive surface operations of Tenneco which he says his company acquired, were conducted under the surface rights granted in the Shasta oil and gas mining lease. As heretofore mentioned, Edgar T. Bates testified that Sirtex “had purchased the oil, gas and mineral lease, all equipment, personal property, and all operations that were with the (Erigan) property. * * * jje ciaimed that “Sirtex (was) entitled to the surface lease because of the oil and gas operation” which was quite extensive, embracing eight miles of pipelines on the Erigan and adjoining Quiroz leases. However, it is evident from his testimony that at the time of the assignment of the Shasta oil and gas mining lease (August 6, 1962) by Tenneco to Sirtex, he did not know of the Erigan-Renwar surface lease and did not gain knowledge of such lease until January 22, 1963 when he received a letter from an attorney representing the respondents. He also stated that Tenneco had refused to execute and deliver a written assignment of the Erigan-Renwar surface lease.

We need not further review the evidence. It does not show as a matter of law that Sirtex was entitled to make the tender upon which the trial court’s judgment was based. Cf. Walthour-Flake Co. v. Brown, 228 Ark. 307, 307 S.W.2d 215 (1957), Annotation, 20 L.Ed. 547.

Accordingly, the judgment of the Court of Civil Appeals must be affirmed and the cause remanded for another trial. Upon such trial, the court will be governed by our holdings herein set forth.

The judgment of the Court of Civil Appeals is affirmed.

CONCURRING OPINION

STEAKLEY, Justice.

I agree with the affirmance of the reversal and remand judgment of the Court of Civil Appeals. But I am in further agreement with the Court of Civil Appeals in its construction of the surface lease contract. In my opinion the surface lease is not subject to doubt calling for or supportive of the construction reached by the majority here. See Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 131 S.W.2d 957. Notwithstanding the disfavor with which conditions may be viewed, one was expressly written into the surface lease and should be acknowledged and enforced.

The problem here is somewhat unique in that the surface lease bears direct relationship to the oil and gas lease and was designed to afford greater surface rights than those flowing from the oil and gas lease. It was quite clearly provided, and for obvious reasons, that the surface lease would concur with the oil and gas lease only so long as the surface lessee desired to and did comply with the stated condition under which, and only under which, the surface lease could be maintained “in full force and effect,” namely, by the payment of the “full consideration for which this lease for the ensuing year * * * on or before January 1st of each succeeding year. * * *” This was not done on or before January 1, 1963, whereupon the surface lease terminated under its own terms. It is something else, and beside the point to the foregoing, that the surface lessee was also expressly granted the right to terminate the surface lease before the termination of the oil and gas lease should he elect to do so.

CALVERT, C. J., and POPE, J., join in this opinion.

      . N. Erigan was deceased at the time of the trial. Thelma Erigan is his widow. Mrs. Armeen Norah Erigan Stone is a daughter of N. Erigan by Ms marriage with his first wife, Myrtle Erigan.

      . This rule does not apply to oil and gas leases. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 304 S.W.2d 267 (1957).

      . Sirtex attached to its brief filed in the Court of Civil Appeals a photostatic copy of a written instrument assigning the Erigan-Renwar surface lease from Tenneco to Sirtex. This assignment appears to have been executed by Roy Randerson, Jr., purporting to act as agent and attorney in fact for Tenneco Oil Company. It is recited that the assignment is made without warranty of title, either expressed or implied, and bears the date of March 3, 1965. This instrument was not introduced in evidence upon the trial of the cause. In fact, it was apparently executed after judgment was rendered by the trial court on February 19, 1963. It cannot be considered for any purpose on this appeal.


author: MORRISON, Judge. McDONALD, Presiding Judge.

text:
    R. C. JASPER, Appellant, v. The STATE of Texas, Appellee.
    No. 39482.
    Court of Criminal Appeals of Texas.
    May 4, 1966.
    On Motion to Reinstate Appeal June 15, 1966.
    Doss Hardin, Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is contributing to the delinquency of a minor; the punishment, a fine of $500.00 and three months in jail.

The record discloses neither a recognizance nor an appeal bond. The offense being a misdemeanor, this Court is without jurisdiction in the absence of a sufficient appeal bond or recognizance or a showing that appellant is in jail. Alexander v. State, Tex.Cr.App., 272 S.W.2d 100 and Griffin v. State, 160 Tex.Cr.R. 478, 272 S.W.2d 526.

The appeal is dismissed.

OPINION

ON APPELLANT’S MOTION TO REINSTATE APPEAL

McDONALD, Presiding Judge.

By supplemental transcript, it is shown that appellant is presently released on appeal bond. The record having been perfected, the appeal is reinstated.

Appellant contends that the complaint and information are insufficient to charge him with the commission of the offense of contributing to the delinquency of a minor.

The information charges that appellant “ * * * on or about the 27th day of March A.D., 1965, and before the filing of this information, in the County of Brown and State of Texas, did then and there unlawfully contribute to the delinquency of Joe Dellis, a male, then and there under the age of 17 years, by allowing the said minor to remain in a place where intoxicating liquors were kept, drunk, used or sold, * ⅝ *»

The charge must particularize the act which allegedly contributed to the minor’s delinquency. Reeves v. State, 144 Tex.Cr.R. 270, 162 S.W.2d 705. The only act set forth in this complaint and information is the omissive act of “allowing the said minor to remain in a place where intoxicating liquors were kept, drunk, used or sold.”

The sufficiency of this language to charge an offense has not heretofore been decided by this Court, although a similar contention was raised in Hartgraves v. State, 374 S.W.2d 888.

There are circumstances under which such a failure to eject the minor from such an establishment might be a criminal offense, as where the accused was the owner of the establishment or was in some other position by which he had a duty to prevent the minor from remaining there. Neither the complaint nor information alleges that any such relationship existed between appellant and the minor here involved.

If the act set out in the complaint and information was sufficient to constitute contribution to the delinquency of a minor, then, as appellant argues in his brief, the complaint could just as well have been filed against any adult in the place of business.

We conclude that the complaint and information are insufficient to charge appellant with contributing to the delinquency of a minor.

The complaint and information are fatally defective for the additional reason that the charges are made disjunctively, it being alleged that appellant allowed the minor to remain in a place where intoxicating liquors were kept, drunk, used or sold. Lenox v. State, 142 Tex.Cr.R. 194, 152 S.W.2d 342.

In holding that the complaint and information are insufficient to charge appellant with an offense in violation of Article 534, Vernon’s Ann.P.C., we do not reach the issue as to whether or not that statute constitutes a reasonable exercise of the police power by the legislature, and this decision should not be interpreted as upholding the constitutional validity of Article 534.

The judgment is reversed and the cause dismissed.


author: McDONALD, Presiding Judge.

text:
    Don Elden VANNERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39541.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied June 25, 1966.

      Tom Upchurch, Jr., Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is forgery; the punishment five years in the Texas Department of Corrections.

Texaco service station attendant Guy Hamilton testified that appellant purchased a set of automobile tires from the station where he was employed, and that, in payment for the tires, appellant presented a Texaco credit card issued to one D. H. Lundegreen and signed the credit card invoice, as purchaser, for the purchase price of $147.59. The name he signed on the invoice was that of D. H. Lundegreen.

A reading of the credit card invoice, entered in evidence by the state, shows that appellant’s act, if the signature had been valid, would have created a pecuniary obligation owed by D. H. Lundegreen to Texaco, Inc.

Attendant Leslie Lee also testified that he saw appellant sign the invoice as payment for the tires placed on the automobile he was driving on the day of the offense.

The Texaco credit card issued to D. H. Lundegreen was introduced into evidence, and witness Lundegreen identified his signature which was affixed to the credit card. He testified that the signature on the credit card invoice was not his signature and that he did not give appellant permission to sign his name on the invoice.

Mrs. Lundegreen testified that the Texaco credit card, along with others, was in her purse when it was stolen prior to the alleged offense, and that the signature on the invoice was not hers.

We find the evidence sufficient to support the jury’s verdict of guilty.

Appellant objected to the admission in evidence of State’s Exhibit No. 1, the credit card invoice bearing the forged signature, contending that the document was a carbon copy, and that the best evidence rule dictates that only the original document is admissible. State’s Exhibit No. 1 appears to be a duplicate of the agreement bearing the signature D. H. Lundegreen as purchaser. There is an agreement in the record, signed by the attorney for the state and the attorney for the appellant, to substitute a reproduced copy for the original State’s Exhibit No. 1. No error is presented for review.

Appellant objected to the admission in evidence of four credit cards purporting to have been issued to D. H. Lundegreen, because such evidence was obtained through an allegedly illegal search and seizure. The record reveals that an automobile driven by appellant was stopped by an officer of the Plainview Police Department and that appellant was issued tickets for speeding and following too closely. An incidental search of the vehicle produced a set of stolen license plates, whereupon appellant was arrested and the automobile impounded in a local wrecking yard. As the owner of that business was rolling up the windows of the automobile after taking it from the scene of appellant’s arrest to the wrecking yard, two credit cards fell out of the door panel. The wrecking yard attendant notified law enforcement authorities, who, by removing the door panel, recovered two additional credit cards. Appellant contends that the search of the automobile without a warrant, made after the car was impounded, was unlawful, and that the credit cards were therefore inadmissible as the fruits of an unlawful search.

The automobile was not shown to belong to appellant, nor is there evidence that he was ever in lawful possession of it. Evidence introduced by appellant and by the state tended to show that the automobile at various times bore license plates issued to persons other than appellant. Under such circumstances, appellant is in no position to complain about the search. White v. State, Tex.Cr.App., 362 S.W.2d 650; Holcomb v. State, 172 Tex.Cr.R. 292, 356 S.W.2d 669.

Appellant urges that error was committed when appellant was tried upon an indictment for forgery in violation of Article 979, Vernon’s Ann.P.C. He contends that Article 1555b, Vernon’s Ann.P.C., which is a specific statute controlling fraudulent acts concerning credit cards, precludes prosecution under the general forgery statute. He further urges that the jury should have been charged in accordance with Article 1555b.

There was no motion to quash the indictment, and appellant did not object to the court’s charge or proffer any requested instructions. We overrule appellant’s contention that fundamental error was committed by the trial court. The state can carve out of any transaction whatever crime the facts will support. Daugherty v. State, Tex.Cr.App., 394 S.W.2d 177; Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462.

Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100, relied upon by appellant, is not in point. In Sheffield, this Court was concerned with the rule of statutory construction that when two statutes cover the same subject matter, the one general and the other special, the special statute will control. There, it was concluded that where the offense was covered by Article 1007, Vernon’s Ann.P.C., a special statute which covered the same subject matter as did the general statute, Article 360, Vernon’s Ann. P.C., then the accused should be charged with violation of the special statute.

This rule is not applicable here. Article 1555b makes criminal the act of presenting a credit card (with or without a concomitant act of forgery) with the intent to defraud, to obtain or attempt to obtain something of value or to pay for something. Article 979 makes forgery an offense. These statutes do not cover the same subject matter. Appellant, on the facts presented by this record, could have been charged for his act of presenting the credit card with intent to defraud, or for his act of forgery.

We have examined appellant’s remaining informal bills of exception, and find no reversible error.

The judgment is affirmed.