author: BARRETT, Commissioner. PER CURIAM.

text:
    INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent, v. STATE TAX COMMISSION of Missouri et al., Appellants.
    No. 49240.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dee. 11, 1962.

      Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Robert D. Kingsland, Asst. Attys. Gen., Jefferson City, for appellant.
    Fordyce, Mayne, Hartman, Renard & Stribling, Walter R. Mayne, Nelson W. Hartman, Thomas Rowe Schwarz, St. Louis, for respondent.
   BARRETT, Commissioner.

In reversing a finding of the State Tax Commission the circuit court has found that certain of International Business Machines. Corporation’s (IBM) transactions are not subject to the state sales tax and has therefore ordered a refund of $238,459.69 “with interest from date of payment at the rate of six per cent.” Thus upon this appeal by the commission the question for determination is whether certain rental or lease-transactions are subject to the two per cent sales tax. Specifically, the question is. whether those transactions under IBM’s. “Agreement for IBM Machine Service” are in fact sales at retail and therefore subject to the tax.

The briefs of the parties, at least in the citation of cases and statutes, have taken a wide range, but the cause was submitted' to the circuit court upon the agreed statement of facts presented to the tax commission and that submission has limited and', narrowed the issues involved. In view of the precisely limited question thus presented it is neither necessary nor desirable to-consider terms and definitions not involved in the appeal, as “gross receipts,” or other taxes not in issue, as the closely related’ and supplementary “use tax.” V.A.M.S. § 144.600 et seq. Southwestern Bell Tel. Co. v. Morris, (Mo.) 345 S.W.2d 62. And in this connection it should be carefully noted that actual or admitted retail sales, or other IBM transactions are not involved! upon this appeal because it was stipulated that “only amounts paid as sales tax by IBM on its rental charges to Missouri lessees can properly be involved in IBM’s refund claim.” As to the particular transactions actually involved IBM’s claim for a refund extends over a period of eight quarters beginning with the 4th quarter of 1957 and including the 3d quarter of 1959, two full years. And it was stipulated that “The issues presented for the decision of the Commission are whether or not the Sales Tax Law of the State of Missouri imposes a tax on the revenue produced by the rental of IBM business machines, * * and secondly, there being in this case no question as to some possible expenditure for service if no tax is imposed on this type of revenue, may IBM recover under the statutes for a period in excess of one year prior to the filing of the petition for refund.” It may be added that the third question is whether in its judgment the circuit court properly allowed 6% interest on the refunds from the dates of the payments of the tax.

The background of the controversy is this: Throughout the history of the sales tax act, since 1935, there had been a dispute as to whether it covered certain transactions, particularly transactions involving rentals or leases requiring some servicing of the leased machine or product. The controversy was resolved in 1946 when by letter the taxing authorities and IBM entered into an agreement “that 50% of all rental receipts were, in essence, charges for services and were not taxable under the Sales Tax Law, but taxes (meaning 2% sales tax) were paid on the balance.” That expedient or arrangement continued until July 30, 1959, when the Department of Revenue advised IBM that thereafter “no deduction for service will be allowed, other than actual and accurate charges for direct labor used in servicing or repairing rented machines.” IBM refused to make a separate billing and report of its rental and service transactions and took the position that no part of its rental or lease transactions was subject to tax under the act and, as indicated, filed with the department its tax adjustment affidavit for taxes paid under the 1946 arrangement beginning with the fourth quarter of 1957.

The transactions immediately involved are those made under IBM’s written contract form called “Agreement for IBM Machine Service,” and, as indicated, this appeal is not concerned with “Agreement (s) for Sale of IBM Machines” or any other IBM transaction. The court found, perhaps it was tacitly agreed by the parties, that the transactions involved “constitute bona fide payments * * * for the use or rental of its various office and business machines” and so there is no problem or question here of a tax evasion device. By this “Agreement for IBM Machine Service,” IBM “agrees to furnish to the Customer, * * * its IBM Machine Service comprising the use of the below listed machines and devices manufactured and to be kept in good working order by IBM." Following this printed provision is a space for the inserted description of the machine or device including a space for noting “Monthly Charge Each." On a second page or reverse side the printed agreement provides that it is effective and “shall remain in force * * * for one year from the date the first machine is installed * * and may be terminated by either party then, provided written notice is received three (3) months prior." And, “Thereafter it may be terminated * * * by either party at the end of any calendar month” on three months’ notice. There is a detailed provision with respect to the “monthly charges’’ and they provide for the use of the machines “by only one shift of clerks,” use by more than one daily shift calls for an additional charge. Also added to the specified charges are “any taxes, however designated, levied or based on such charges or on this Agreement or the machines or their use, including state and local privilege or excise taxes based on gross revenue * IBM agrees, however, to pay “personal property taxes assessed on the machines and taxes based on net income.” There are further provisions relating to additional machines, cards and tape, maintenance, alterations and attachments as well as provisions for the customer’s paying drayage charges. (Italics supplied in quoting from the agreement.)

The state does not contend, apparently, that IBM’s dealings under these agreements are not as a matter of fact rental or lease transactions. The sales tax act defines a “sale at retail,” as far as material here, as ■“any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration; * * (Italics supplied for emphasis.) V.A.M.S. § 144.010, subd. 1 (8). Without specific regard to the stipulated written agreement the state seizes up-en the italicized language and urges that “Respondent’s rental transactions are transfers of the ‘ownership of’ tangible personal property and as such are retail sales” within the meaning of the act. It is said that IBM’s “rental transactions grant the right to continuous possession or use of business machines and thus they transfer the ‘ownership of’ tangible personal property” as defined in a “sale at retail.” For these reasons it is urged therefore that there is a plain legislative intention “to tax these rental transactions.” In addition, in support of its argument, the state invokes certain auxiliary rules of statutory construction and what is said to have been the administrative interpretation of the act over the years.

To further precisely delimit the issues involved upon this appeal it is well at this juncture to note the contentions and concessions made by IBM. -In the first place, IBM insists that this appeal may not be decided upon the basis of generalities of either law or fact, that a mere advisory or abstract opinion is neither sought nor involved, and that the case “must be decided on the record and the facts in this case.” In the second place, IBM concedes, at least tacitly, that certain leases or rentals of certain types of property could be “continuous” or so transfer the “use” or “possession” for “consumption” as to thus in point of fact constitute a retail sale in the guise of a rental. It is urged, however, that “these agreements do not contain the factual elements which would justify their treatment as if they were (retail) sales” and therefore subject to the tax. IBM contends that in the stipulated circumstances the legislature “intended to tax retail sales which it equated to transfer of title or ownership” however accomplished, but that it recognized bona fide rental transactions and the fact that they are not subject to the sales tax. IBM likewise invokes the auxiliary rules of statutory construction and administrative interpretation over the years.

With the issues thus further and plainly delimited, it is not necessary to review and carefully distinguish the cited cases. Some of them illustrate the conceded principle that some rental transactions may in fact be “retail sales” or so transfer possession or use as to constitute sales at retail and some of the statutes specifically taxed rental transactions as sales. Ford Car Leasing Co. v. Oklahoma Tax Comm. (Okl.) 285 P.2d 436; Young Electric Sign Co. v. Utah State Tax. Comm., 4 Utah 2d 242, 291 P.2d 900, and Herbertson v. Cruse, 115 Colo. 274, 170 P.2d 531, the latter case annotated in 172 A.L.R. 1317, “What transactions constitute a ‘sale’ within operations of sales tax law provision defining a sale as including a transfer of possession, license to use, or words to that effect.” The precise delimitation of the issues involved virtually determine the essential merits of this case and it is only necessary to bear in mind certain generalities with respect to sales tax acts. Each state employs its own definitions, particularly of “sales at retail,” and in general these statutes enlarge upon both the dictionary and common acceptation of the term and thus may tax a variety of particular dealings and transactions. 47 Am.Jur. (Sales and Use Taxes), Secs. 22-25, pp. 227-229; annotation “What amounts to a sale at retail,” 139 A.L.R. 372, and the collection of leading articles in 9 Vanderbilt L.R. 121, 227.

As indicated, in the delimited circumstances of bona fide rental transactions and in view of the plain implication of unambiguous statutes, it is not necessary to resort to the auxiliary rules, some consideration of the statute alone is sufficient to resolve the problems of this appeal. In the first place, the statutes do not in terms define rental or lease transactions as “sales at retail.” In addition to defining a sale at retail the statute, V.A.M.S. § 144.010, subd. 1(8), specifically provides that the term “shall be construed to embrace” certain specified transactions, some or all of them in the nature of rental or lease transactions. These embraced transactions are all enumerated subdivisions of subsection (8) which defines “sale at retail.” V.A.M.S. § 144.010, subd. 1(8). For example, subdivision (8) (a) embraces “Sales of admission tickets, cash admissions, charges and fees to or in places of amusement, * * * games and athletic events.” And in (8) (c) the definition of retail sale includes “Sales of service to telephone subscribers * * * and the sale, rental or leasing of all equipment or services pertaining or incidental thereto.” In subdivision (8) (e) a retail sale embraces “charges for all rooms * * * furnished at any hotel, * * * dining car, tourist camp,” and (8) (f) embraces the sale of tickets for railroad and sleeping car seats and bus tickets for the transportation of persons. These definitions embrace rental transactions in some senses or meanings and of course as to telephone service a retail sale in express terms includes the “rental or leasing of all equipment or services” — an instance in which eventually the rental charges far exceed the value of the thing rented. In the following section, 144.-020, when the 2% sales tax is levied and imposed, the distinctions in these definitions is continued and followed. There is a 2% tax “for admission and seating accommodations,” a 2% tax on telephone service and “the sale, rental or leasing of all equipment or services pertaining or incidental thereto,” a tax on charges for hotel rooms and bus and railroad tickets. V.A.M.S. § 144.-020, subd. 1(2), (4), (6), (7).

In short, had the legislature desired or intended to impose a sales tax on any and all lease transactions it would have been a very simple matter to plainly manifest that purpose by express provision in the act. By carefully defining “sale at retail” and purposefully embracing in the definition and the tax certain rental-type transactions, it would appear that other rentals and leases were not embraced. In the strictly limited circumstances of this record and these particular rental transactions by IBM the statutes are unambiguous and do not either expressly or by plain implication subject these transactions to the 2% sales tax.

As to the second problem, the period of time for which a refund may be claimed, the auxiliary rules of statutory construction have some force. The sales tax act, since 1939 and through three amendments, has provided for refunds of taxes erroneously or illegally collected, provided however that “no such credit or refund shall be allowed unless duplicate copies of a claim for refund are filed within one year from the date of overpayment.” V.A.M.S. § 144.190(2). In 1951 the general laws governing the Division of Collection, State Revenue Department, were amended and a new provision added, Laws Mo. 1951, p. 866. The new provision also authorizes the director of revenue to credit and refund erroneous collections or payments “of any tax” from funds appropriated for that purpose, provided that “No refund shall be made by the director of revenue unless a claim for refund has been filed with him within two years from the date of payment.” V.A.M.S. § 136.035(3). The state, of course, relies on section 144.190(2) of the sales tax act and contends that any claim for sales tax payments not made within one year is barred. On the other hand, IBM relies on section 136.035(3) and insists that under the law relating to the director and all taxes collected by him it had two years in which to file a claim or as here make a claim for payments made over a two-year period.

IBM says that section 136.035 (3) is a general statute covering the same subject provided for in section 144.190, that 144.190 is a special statute and therefore there is an obvious legislative intent that the general statute displace the operation of the special statute. This particular rule and its applicability is illustrated by Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7, the case emphasizing, however, that where appropriate “the question being always one of intention.” The state relies upon the rule that “where there are two laws relating to the same subject they must be read together and the provisions of the one having a special application to a particular subject will be deemed to be a qualification of, or an exception to, the other act general in its terms.” Eagleton v. Murphy, 348 Mo. 949, 953, 156 S.W.2d 683, 685-686, 138 A.L.R. 749; Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7; State v. Chadeayne, (Mo.App.) 313 S.W.2d 757. But this rule too is one of statutory construction and necessarily “always one of legislative intention.” Fleming v. Moore Bros. Realty Co., 363 Mo. 305, 251 S.W.2d 8, 15. And in this connection both parties rely on Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, and Hern v. Carpenter, (Mo.), 312 S.W.2d 823, as indicating or holding that, despite section 136.035, section 144.190 provides the exclusive method of recovery of sales taxes. As to the latter decision IBM says, “There is no discussion or independent consideration of the question in the Hern case and it does not stand for the point which is not necessary to the Hern decision.”

It is not necessary to a disposition of this phase of the appeal to undertake an explanation of these cases or a reconciliation of these rules. The requirement that claims for refund or credit must be “filed within one (1) year from date of overpayment” (Laws Mo.1941, p. 708) is a part of the sales tax act and therefore specifically applicable to sales taxes. Section 136.035 applies to the director of revenue and “any tax which the state is authorized to collect.” This language is broad enough to embrace sales taxes, but in addition to sales taxes the director collects a large number of other taxes. Then too, supporting the view that by this general statute there was no legislative intention to repeal by implication only the special statute, is the obvious fact that the general law in its title or otherwise did not purport to amend or modify section 144.190, that section is not mentioned. Laws Mo.1951, p. 866. There may be many reasons, either practical or of policy, for specifically requiring that claims for refunds of sales taxes be filed within one year and at the same time permitting refunds of other taxes after two years. Supporting this view is another auxiliary rule of statutory construction that repeals by implication are not favored. Fleming v. Moore Bros. Realty Co., supra.

In addition there is the rather firmly fixed rule that “On grounds of public policy, the law discourages suits for the purpose of recovering back taxes alleged to be illegally levied and collected.” 51 Am.Jur. (Taxation), Sec. 1167, p. 1005. And it is for this .reason of policy that the remedy of a refund, including the time in which it must be filed is the exclusive remedy. 51 Am.Jur., Secs. 1168-1174, pp. 1006-1010 ; 84 C.J.S. Taxation § 633, p. 1269; annotation 163 A.L.R. 778. In part the reason for this rule of policy may be illustrated by this case. The parties have tried the case on the assumption if not the agreement that if these particular taxes for rental transactions were illegally or improperly collected that IBM has the right to maintain this proceeding to recover them. 51 Am.Jur., Sec. 1174-1175, p. 1010; 84 C.J.S. Taxation § 639d, p. 1300. It was stipulated by the parties (and there may be some reason for it unknown to the court) that “The records of the Department of Revenue indicate that IBM had paid Sales Tax to the State of Missouri on its machine .rental charges in accordance with the provisions of the 1946 agreement” and of course that agreement includes the two years involved here, 1957 to 1959. The fact may be as stipulated, that IBM paid these taxes, but if it has not, of course, any sum recovered in this proceeding would indeed be a windfall, unless IBM proposes to redistribute any sums collected to its customers. The sales tax act levies a 2% tax upon the retail sale and by express provision it is the duty of the purchaser to pay the tax to the seller (V.A.M.S. § 144.060) and it is the duty of the seller to collect the tax and account for it to the director of revenue. V.A.M.S. § 144.080. Furthermore, the stipulation and claim that IBM has in fact paid these taxes is contrary to the express provisions of its rental contract in which the lessee customer agrees to pay all taxes except personal property and income taxes which IBM agrees to pay. IBM pointed to this fact and to these provisions to establish that these transactions were not in fact retail sales. Nevertheless, for the purposes of the appeal the stipulation and theory upon which" the case was tried and submitted is accepted. But these reasons of policy plainly indicate that there are good and sufficient reasons for limiting the remedy, particularly the time in which claims for refunds of sales taxes must be made. For these reasons and in this view IBM is not entitled to a refund of any taxes not claimed “within one year from date of overpayment” as provided in the sales tax act. V.A.M.S. § 144.190(2).

In addition to the principal sum involved the court’s judgment directed that the sum refunded be paid “with interest from date of payment at the rate of six per cent.” In general it may be said that there are conflicting views as to the “Right to interest on tax refund.” Annotations 57 A.L.R. 357, 76 A.L.R. 1012, 112 A.L.R. 1183. But IBM has simplified this phase of the appeal by tacitly conceding, or not arguing with convincing seriousness, that in this jurisdiction interest is not allowable on tax refunds in the absence of specific statutory authorization. As the court said in a suit to recover a merchant’s license, “interest eo nomine is a creature of statute, to the terms of which we must look for authority for its imposition. This is peculiarly true in its application to liabilities of the state and its governmental agencies.” Simmons Hardware Co. v. City of St. Louis, (Mo.) 192 S.W. 394, 398. Admittedly, there is no provision in the sales tax act for the payment of interest on refunds. IBM points to a provision in the use tax law which provides for appeals and judicial review of decisions, findings and orders of the director of revenue. In that statute there is a provision that if judgment is entered for the plaintiff and there is a balance due after credits for taxes “interest shall be allowed at the rate of six per cent per annum upon the amount found to have been illegally collected.” V.A.M.S. § 144.685(2). But as with the merits of the claim it is neither desirable nor necessary to attempt an interpretation of any tax law other than the one involved here, the sales tax act. As to sales taxes improperly collected there is a provision for refund but there is no provision that refunds bear interest. As with the principal claim, there is a public policy against refunds for ■ taxes, “interest eo nomine is a creature of statute.” On the other hand, the state does not contest the allowance of interest under the general law on the judgment itself, “Interest shall be allowed on all money due upon any judgment or order of any court, from the day of rendering the same until satisfaction be made by payment * * V.A.M.S. § 408.040.

The judgment is reversed and the cause remanded to the end that a judgment consistent with this opinion may be entered.

BOHLING and STOCKARD, C.C., concur.

PER CURIAM.

The foregoing' opinion by BARRETT, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    In the Interest of R-, S- and T-, children under 17 years of age.
    No. 8015.
    Springfield Court of Appeals. Missouri.
    Nov. 28, 1962.
    Oliver & Oliver, Cape Girardeau, for father-appellant.
    Paul McGhee, Pros. Atty., Dexter, for the State.
    McHaney, Billings & Welman, Kennett, for Maternal Grandfather.
   STONE, Judge.

In this statutory proceeding under the Juvenile Act [Sections 211.011 to 211.431], the juvenile court on April 7, 1961, found and adjudged that three brothers, R-, S- and T-- (then of the age of 13 years 7 months, 11 years 8 months and 7 years 11 months, respectively), were within the applicable provisions of Section 211.031 (in that their mother was deceased and their father had “failed and refused to support” thepi and was “not in a position to properly care for, supervise and control” them), made them wards of the court, and committed them to, the custody of the division of welfare to be placed in . an approved home. Sections 211.181 and 210.120(1). (Except as is otherwise specifically stated, all statutory references are to RSMo 1-959, V.A.M.S.) The father seeks appellate re-, view. A motion by the prosecuting attorney, director of welfare and juvenile of--ficer (of the county in which the proceeding was instituted and the judgment was rendered) denies our appellate jurisdiction and prays dismissal of the appeal. The father, suggests that this motion to dismiss should not be considered by us because prior notice of the filing of said motion was not given to. the father or his counsel in strict accordance with V.A.M.R. Rules 83.12 and 83.02; but, regardless of that, it is as true in this proceeding as in other cases that we remain charged with the duty to inquire, sua sponte, into our jurisdiction and that, if in truth we do not have jurisdiction, a review upon the merits would be a work of intolerable superarrogance predicated upon interdicted usurpation of judicial authority. In re Juvenile Delinquency Appeal, Mo.App., 289 S.W.2d 436, 437(3). Before probing the question of jurisdiction, we appropriately emphasize thqt, from the institution of this proceeding through the filing of the notice of appeal, the sole attorney of record for -the father was a lawyer (hereinafter referred to as out-of-state counsel) who, although a member qf the Missouri Bar, resides and offices in a neighboring state, and that distinguished counsel appearing for the father in this court,, making the; best of an exceedingly difficult situation inherited by them, have presented a comprehensive and cogent brief and have pleaded their, client’s cause with candor and conviction.'

In the- logical p.urspit of our jurisdictional inquiry, we address ourselves to the first point in the motion to dismiss, to wit, that the notice of appeal was not timely filed. As in other cpses [e. g., DeMay v. Liberty Foundry Co., 327 Mo. 495, 519, 37 S.W.2d 640, 652(13); Franklin v. Franklin, Mo.App., 344 S.W.2d 282, 284(1);, State ex rel. Orscheln Bros. Truck Lines v. Public Service Com’n. of Missouri, 231 Mo.App. 293, 295, 98 S.W.2d 126, 127(3)], the right of appeal- in a proceeding under the Juvenile Act is . purely statutory and substantial compliance with the applicable statute is required. In re C-, Mo.App., 314 S.W.2d 756, 759(2); State v. Jahnke, 221 Mo.App. 366, 273 S.W. 155. And, the Juvenile Act being a complete law or code within itself dealing with minors under the age of seventeen years, Section 211,261 (quoted marginally) is the statute which grants the right of appeal in a proceeding such as this one, and with which substantial compliance must be shown.

In simple, plain and unambiguous language, Section 211.261 requires that “(n)o-tice of appeal shall be filed ^within thirty days after the final judgment, order or deT cree has been entered.” (All emphasis herein is ours.) .The final judgment, from which the father seeks to appeal, was entered on April 7, 1961. Exactly sixty days later, to wit, on June 6, 1961, notice of appeal was filed by out-of-state counsel. We observe that Section 211.410, RSMo 1949, permitted an appeal “from any final order or judgment” in a juvenile proceeding (in counties of the third and fourth classes) “within sixty days after the entry of said order.” However, in 1957 the 69th General Assembly repealed the old Juvenile Act (including Sec. 211.410, RSMo 1949) and enacted a new Juvenile Act including the statute (numbered as Sec. 211.260 in Laws of 1957, p. 654; now numbered as Sec. 211.261, RSMo 1959) in which the period for taking an appeal in a juvenile proceeding was shortened to “thirty days after the final judgment, order or decree has been entered.” No explanation or excuse for the tardy filing of the notice of appeal is offered by or on behalf of out-of-state counsel; but, whatever the reason (if any) for the delay, the inescapable legal truth is that the notice of appeal was not filed within the thirty-day period plainly provided and specifically limited by Section 211.261, the then applicable and controlling statute.

Although courts have discretionary power to extend the time for the doing of many acts, they cannot enlarge the period within which an appeal may be taken. Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(2) ; Bank of Thayer v. Kuebler, 240 Mo.App. 776, 781, 219 S.W.2d 297, 299. Our appellate courts have reiterated repeatedly that the timely filing of a notice of appeal is the vital step for perfecting an appeal and is an essential prerequisite to appellate jurisdiction, and the uniform and unyielding application of this rule has necessitated the dismissal of appeals in a wide variety of civil cases, in a number of criminal cases, and (as we particularly point out) in cases involving the custody of minor children. Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(4) ; Franklin v. Franklin, Mo.App., 344 S.W.2d 282. Our ear is attuned sympathetically to the stirring plea of the father’s present counsel that, although (as they frankly concede) “the wording and the timing of the appeal should have been different,” we should accept the father’s earlier reliance upon his out-of-state counsel as evidencing a bona fide attempt to appeal and should consider the appeal “as sufficiently filed.” But the negligence of an attorney is the negligence of his client, who usually must suffer the consequences thereof, as was settled at an early date and has been demonstrated in innumerable cases; and, with the record clearly establishing that the notice of appeal was not filed within the permitted time, we have no alternative' other than to dismiss the appeal, notwithstanding our disposition and desire (finding tangible manifestation in our opinions) to accord a liberal construction to statutes and rules pertaining to appellate procedure. E. g., In re C-, supra, 314 S.W.2d loe. cit. 759-760.

Although the foregoing is dispositive of the appeal, it may not be inappropriate to observe parenthetically that the untimely notice of appeal did not even indicate that the father was attempting to appeal. In simple and unambiguous language which left no room for argument as to its meaning or intent, the notice definitely stated that “(n)otice is hereby given that R-, S-, and T-, above named (in the caption), hereby appeal,” and it was signed by out-of-state counsel who specifically designated the capacity in which he then purported to act, to wit, as attorney for R-, S- and T-, the three boys. The governing statute [Section 211.-261] plainly provides in separate sentences for allowance of an appeal either (a) “to the child” or (b) “to a parent.” There is no pretense that the case is presented in this court as an appeal by or on behalf of the three boys. Quite to the contrary, the father clearly identifies himself by name as the appellant in the caption of his appellate brief and throughout the brief itself.

Since the appeal must be dismissed, we eschew the temptation to set forth the facts reflected by the voluminous transcript, for a factual review could serve no useful purpose but, in the striking and distinguishing circumstances of the case, would punch gaping and revealing holes in the protective curtain of anonymity with which we have sought to shield the three innocent boys. However, we would not close this case on a cold procedural note without underscoring our personal concern and anxiety for the welfare of these boys, without assuring all interested parties and counsel that we have carefully read the transcript in its entirety and thoughtfully considered all of the cited cases, and without recording our firm conviction that, if we had jurisdiction and were permitted to resolve the appeal on its merits, we could not say that the best interests of these boys were not served by the judgment nisi. This proceeding is but a single chapter in a continuing serial of stark family tragedy; and, regardless of the provocation offered by any of the human actors therein or the precise measure of fault or blame with which any of them should be charged, the father must realize that he has played a leading role in the tragedy and that, bitter as the judgment in this proceeding may be to him, his conduct has contributed to it.

The motion of the prosecuting attorney to dismiss the appeal is sustained, the motion of the maternal grandfather (not a party to the proceeding) to dismiss the appeal is stricken, and the father’s purported appeal is dismissed.

RUARK, P. J., concurs.

McDOWELL, J., concurs in result.

      . State v. Harold, 364 Mo. 1052, 1055, 271 S.W.2d 527, 529; State v. Heath, 352 Mo. 1147, 1151, 181 S.W.2d 517, 519(4); State ex rel. Shartel v. Trimble, 333 Mo. 888, 891, 63 S.W.2d 37, 38; In re C-, Mo.App., 314 S.W.2d 756, 759(3); State ex rel. White v. Swink, 241 Mo.App. 1048, 1055, 256 S.W.2d 825, 831.

      . “An appeal shall be allowed tó the' child from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 and may be taken on the part of the child by its parent, guardian, légal custodian, spouse, relative .or next friend. An appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 which adversely affects him. Notice of appeal shall be filed within thirty days after the final judgment, order or decree has been entered but neither the notice of appeal nor any motion filed subsequent to the final.judgment acts as a supersedeas unless the court so orders.”

      . Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201, 202(3); Heard v. Frye, Mo.App., 319 S.W.2d 685, 686(3); Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(3, 4); State ex rel. State Highway Com’n. v. Graeler, Mo.App., 303 S.W.2d 944, 947-948; Bradley v. Bradley, Mo.App., 295 S.W.2d 592, 595 (5); Byers v. Zuspann, Mo.App., 257 S.W.2d 384, 387 (1); Hynes v. Risch, Mo.App., 243 S.W.2d 116, 117(1, 2). See also Starr v. Mitchell, 361 Mo. 908, 237 S.W.2d 123, 125(3).

      . State v. Henderson, Mo., 344 S.W.2d 96; State v. Johnson, Mo., 331 S.W.2d 551; State v. Morrow, Mo., 316 S.W.2d 527; State v. Parker, Mo., 310 S.W.2d 923; State v. Robbins, Mo., 269 S.W.2d 27.

      . Field & Cathcart v. Matson, 8 Mo. 686; Kerby & Potter v. Chadwell, 10 Mo. 392; Gehrke v. Jod, 59 Mo. 522; Biebinger v. Taylor, 64 Mo. 63, 66(1); Fretwell v. Laffoon, 77 Mo. 26, 32-33(4); Parker v. Britton, 133 Mo.App. 270, 113 S.W. 259; Crutcher v. Kansas City Viaduct & Term. Ry. Co., 181 Mo.App. 368, 168 S.W. 826; Cavanaugh v. McColl, 187 Mo.App. 256, 173 S.W. 725; Munroe v. Dougherty, 196 Mo.App. 124, 190 S.W. 1022, 1025(5); Allen v. Allen, Mo.App., 14 S.W.2d 686, 691(4); O’Connell v. Dockery, Mo.App., 102 S.W.2d 748, 751(11); Culp v. Culp, Mo.App., 216 S.W.2d 551; State ex rel. Root Levee Dist. of Carroll County v. Root, Mo.App., 219 S.W.2d 398, 400(3, 4).

      . State v. Jahnke, 221 Mo.App. 366, 273 S.W. 155; State ex rel. Killoran v. Calhoun, 201 Mo.App. 374, 211 S.W. 109; Franklin v. Franklin, Mo.App., 344 S.W.2d 282. See also State v. Robbins, supra, 269 S.W.2d loe. cit. 29; Heard v. Frye, supra, 319 S.W.2d loe. cit. 686(4); Perr v. Perr, Mo.App., 227 S.W.2d 490, 492 (3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, 576(3).


author: PER CURIAM.

text:
    George CARTER, Petitioner, v. Mary Edith CARTER, Respondent.
    No. A-9196.
    Supreme Court of Texas.
    Oct. 17, 1962.
    - Gean B. Turner, James E. Ferguson, Cle-burne, for petitioner.
    R. A. Kilpatrick, John A. James, Jr., Cle-burne, for respondent.
   PER CURIAM.

The Court of Civil Appeals affirmed that portion of the trial court’s judgment which granted petitioner a divorce, but reversed such judgment in so far as it awarded custody of the child to petitioner and remanded that phase of the case for a new trial. 359 S.W.2d 184. Since this is a divorce action, the Supreme Court may exercise writ of error jurisdiction only if the case falls within the purview of either Subdivision 1 or Subdivision 2 of Article 1728. See Article 1821; Bishop v. Bishop, Tex.Civ.App., 359 S.W.2d 869; Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682; Longoria v. Longoria, 160 Tex. 134, 327 S.W.2d 453. Petitioner does not contend that we have jurisdiction under Subdivision 1. He asserts jurisdiction under Subdivision 2, but the holdings of the Court of Civil Appeals in this case are not so in conflict with the decisions cited in the application for writ of error as to authorize us to exercise jurisdiction under that Subdivision. The application for writ of error is accordingly dismissed for want of jurisdiction.

      . “1. Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision.
      “2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon any question of law material to a decision of the ease.”


author: McDonald, judge.

text:
    E. E. CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 34547.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Elbert R. Jandt, Seguin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The appeal in this cause was dismissed in a per curiam opinion delivered October 17, 1962, because the record did not reflect that a notice of appeal was entered of record during the term of court at which conviction was had. A supplemental transcript has been filed which contains the notice of appeal, shown to have been entered of record during the term. The cause is reinstated, and the opinion dismissing it is withdrawn.

Appellant was tried by a jury in the County Court of Kerr County, upon an information based upon a complaint filed February 2, 1960, charging the misdemeanor offense of wilfully deserting, neglecting, and refusing to provide for the support and maintenance of his wife, who was in necessitous circumstances, and of minor children under the age of eighteen years, which offense was alleged to have occurred on January IS, 1960. Punishment was assessed at confinement for two years in the county jail.

The statement of facts in narrative form, reflects that the appellant was divorced from his wife, Wanda Clark, in July of 1961; that on January 15⅛ 1960, there were four children under the age of eighteen years; that Wanda Clark worked, and had help from Kerr County and from relatives; that appellant left in January, 1960, and did not write or otherwise contact his family for a period of about one year and furnished no support of any kind from the first of January, 1960, until May of 1961 ; that Wanda Clark had seen appellant, from time to time during the period of his absence, hauling cedar posts, which was his usual occupation, followed for many years; and that prior to their separation he had •supported himself and his family that way. Mrs. Clark testified on cross-examination that appellant had injured his back, about the year 1940, and at times this injury prevented him from working; that she had not seen appellant personally load cedar posts on the truck but had only seen him and his truck in the cedar yard; that she did not know how much, if any, money the appellant was making but she knew that he was conducting his business.

The deputy county clerk, Weldon Neuen-dorf, testified that his records reflected that appellant had made two payments of sixty dollars each, in May, 1961, and June, 1961, and no others.

Freddy Crawford testified that he was the son-in-law of appellant and the complaining witness; that during the year 1960 he had taken appellant to a doctor several times and contributed to his support at times; that he had not observed him doing any physical labor; that appellant’s visits to the doctor were because of his back complaint. On cross-examination the witness Crawford testified that he had not seen the appellant at all times during the year 1960; that he did not know if the appellant earned any money or not; that appellant had sold the truck he used for hauling and that the truck, as well as a station wagon, were the property of one Evelyn Teague, whom the appellant married in September, 1961; that appellant did not drive the truck or physically load any cedar but was present when it was loaded and that appellant followed the truck to its destination in the station wagon.

Jack Stephens testified as a witness for appellant. Mr. Stephens related that he had been in the business of operating a cedar yard for twenty-five years and had done business with appellant for about twenty years; that appellant had had his “ ‘ups and downs’ ” but managed to make a living ; that for a period of about four months during 1960 he did not see appellant at all, but that otherwise during 1960 and 1961 appellant was buying and dealing in cedar posts out of his (Stephens’s) yard; that appellant came to the yard with a woman, that the woman physically loaded posts, and that he did not observe appellant loading any. Mr. Stephens testified on cross-examination that appellant selected and otherwise arranged for the purchase of posts and subsequently came back personally and paid for them.

Appellant contends that the evidence is not sufficient to support the verdict.

We find the evidence sufficient to sustain the jury’s finding that appellant had the ability to support his wife and children and did wilfully desert, neglect, and refuse to provide for their support, they being in necessitous circumstances. Palomo v. State, Tex.Cr.App., 352 S.W.2d 737; Article 605, V.A.P.C.

Appellant’s only formal bill of exception complains that reversible error was committed when the county attorney, in his opening argument, stated that “not one witnesses had come forward and testified that the defendant’s back injury now prevents him from working.” Appellant’s counsel objected that the statement was a comment on the fact that appellant did not testify.

The trial court sustained the objection and instructed the jury not to consider the same. Motion for mistrial was overruled.

We think that the careful trial judge acted out of an abundance of caution. We do not think that such argument was a direct reference to the failure of the accused to testify, nor do we think that Art. 710, V.A.C.C.P., was violated. The remark was a reasonable deduction from the evidence. For the argument to come within the mandatory prohibition of Art. 710, supra, it must be such as cannot be reasonably applied to the failure of the accused to produce other testimony than his own. Alford v. State, 158 Tex.Cr.R. 311, 255 S.W.2d 519. In Lewis v. State, 155 Tex.Cr.R. 514, 236 S.W.2d 812, this court held:

“For the argument to offend against the statute, Vernon’s Ann.C.C.P. art. 710, prohibiting allusion to or comment upon the failure of a defendant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant’s failure to testify must be a necessary one. It is not sufficient that such language might be construed as an implied or indirect allusion thereto.”

See cases there cited.

Appellant’s contention is without merit and is overruled.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ezra Columbus RAYBURN, Appellant, v. The STATE of Texas, Appellee.
    No. 35141.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    . No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Sodomy is the offense; the punishment, thirteen years in the penitentiary.

The prosecuting witness, a boy sixteen years of age, was the appellant’s stepson and had also been adopted by appellant. The witness testified that on the night in question he was at his home in Grand Prairie and while seated on a couch in a front room watching television and masturbating, the appellant came into the room; that appellant sat down on the couch and started masturbating himself and then began masturbating the witness; and that while in the act, appellant used his mouth on the witness’s sexual parts and continued to masturbate himself. The witness testified that appellant used his mouth on the sexual parts of the witness for about fifteen minutes, after which they both went into the bathroom and appellant washed out his mouth.

Appellant’s written confession, made following his arrest, was introduced in evidence by the state without objection, in which confession he admitted having committed the act of sodomy upon the prosecuting witness.

Appellant did not testify or offer any evidence in his behalf.

In his charge, the court instructed the jury that the prosecuting witness was an accomplice ; that they could not convict upon his testimony unless corroborated and fully instructed the jury as to the corroboration necessary to convict upon accomplice testimony.

Appellant’s written confession was sufficient to corroborate the accomplice’s testimony and we find the evidence sufficient to sustain the conviction. Benjamin v. State, 160 Tex.Cr.R. 624, 274 S.W.2d 402.

The record contains no objections to the court’s charge and there are no formal or informal bills of exception. No brief has been filed on behalf of appellant.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Lionel A. WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 34832.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Rehearing Denied Dec. 12, 1962.
    Louis A. Caso, Galveston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, seven years.

F. A. Marie testified that he owned and operated the Winnie Cash Grocery Store in Galveston; that during Hurricane Carla he locked the doors and boarded up the store on September 9, 1961; that when he returned to his store on September 12, it appeared that a crowbar or axe had been used to force open the door. He further testified that two adding machines, some butcher knives, and a large amount of groceries and meat in the store when he closed September 9, were gone and had been taken without his consent.

The state called Jessie Mae Mc-Gregor who testified that she, the appellant and two other persons, Broadnax and Coleman, lived in separate rooms upstairs in a rooming house in Galveston; that on September 11, she heard Broadnax tell the appellant that the grocery store was open, then appellant, Broadnax and Coleman got some sacks and left the rooming house, and soon each returned with a sack full of groceries. The three men again left with empty sacks and soon returned with more groceries and some butcher knives. Appellant told Jessie Mae that the groceries came from the Winnie Cash Grocery Store and gave her some of them. Shortly thereafter the appellant and Broadnax again left the house and returned and she saw the appellant remove an adding machine from a sack while he was in front of his room door and Broadnax also had an adding machine. At this time Jessie Mae heard appellant say they could sell the machines and get some money and then appellant told Broadnax to put them under the bathtub in the bathroom, which he did; and appellant told Jessie Mae that if anyone inquired about these things to tell them that she bought them, and threatened in-jury to her if she told where he got them. While testifying Jessie Mae identified the adding machines exhibited to her and also other articles as those the appellant, Broad-nax and Coleman had brought into the rooming house.

Two officers testified that the two adding machines exhibited to them were the same as those they found in the bathroom of the rooming house September 13, and that the knives were those found in appellant’s dresser drawer.

Proof was introduced that the two adding machines were of the market value of more than fifty dollars.

The evidence shows that the two. butcher,knives used in the. market .of the- Winnie; Cash Grocery were the same knives brought to the rooming house along with the groceries by the appellant on September 11,. that he placed them in a dresser drawer in his room, and they were found there by the officers on September 13.

The- appellant testifying in his own behalf stated that he got the groceries and the two knives out of a boat, gave Jessie Mae some of the articles and placed the two knives in the dresser drawer in his room. He denied going to the store but said he saw many people going in and out of the Winnie Cash Grocery; and he also denied knowing or being connected in any way with the adding machines at any time.

The evidence is sufficient to warrant the conviction for the theft of the two adding machines and groceries as charged.

Appellant urges that the trial court committed error in admitting testimony regarding the search of the other tenants’’ rooms or the common bathroom.

The appellant is not in a position to complain of the search of the other tenants’ rooms, since the right to object that a search was illegal, is a privilege to be exercised only by one in lawful possession of the premises searched. Paige v. State, 161 Tex.Cr.R. 571, 279 S.W.2d 344, Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829; Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242. The testimony as to the search of the bathroom used by all of the tenants was introduced without objection.

Appellant further complains that the court erred in granting the state’s motion to prevent appellant’s cross-examination of the witness Jessie Mae McGregor pertaining to her police record.

■ In the absence of a showing that such examination would have revealed facts which would have been admissible under the provisions of Art. 732a, Vernon’s Ann. C.C.P., no error is shown.

The other contentions presented have been considered and do not show error.

The judgment is affirmed.

Opinion approved by the Court.

ON MOTION FOR REHEARING

MORRISON, Judge.

My brethren overrule appellant’s motion for rehearing without written opinion.

In view of the recent opinion of the Supreme Court of the United States (June, 1962) in Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384, the writer deems it wise to observe that appellant was not present in the rooms of the other roomers at the time such rooms were searched and the officer testified that he secured the consent of such roomers before a search was conducted.


text:
    Cora Lee HINES, Appellant, v. The STATE of Texas, Appellee.
    No. 35092.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    James E. Faulkner, Coldsprings, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of whisky in a container to which no tax stamp showing payment of tax due the state was affixed; the punishment, a fine of $200.

Appellant operated a place of business known as the “Blue Goose” and was licensed to sell beer on the premises. .

Thomas E. Powell, an inspector for the Texas Liquor Control Board, testified that on the date in question he went to appellant’s place in company with two other officers for the purpose of checking- the license and making an inspection of the premises; that in conducting the inspection he discovered five half-pint bottles of whisky commonly called “moonshine”; that one-half pint was in a small cabinet next to a refrigerator, one was in a kindling box in the kitchen behind the bar, one in a water can, and one in a cabinet in the kitchen, and one was handed to him by appellant, who took it from her bosom. The witness further testified that all the bottles of whisky contained unstamped whisky, none having a tax stamp showing the tax paid to the state.

Officer Powell’s testimony relative to his going to the premises and finding the whis-ky was corroborated by that of Deputy Sheriff Jimmie Morrison, who accompanied him to the place on the occasion in question.

As a witness in her own behalf, appellant testified that the search by Inspector Powell was of her living quarters; that she asked him if he had a search warrant, to which inquiry he replied that he did not; and that she objected to the search. Appellant on her direct examination stated that she knew nothing about the liquor which was seized, but on cross-examination admitted that one of the bottles came out of her dress.

Appellant first contends that the officer’s search of the premises without a search warrant was unlawful.

Art. 666-20, Vernon’s Ann.P.C., of the Texas Liquor Control Act, which authorizes the issuance of search warrants for the purpose of seizing an alcoholic beverage possessed in violation of the act, provides:

“It is not intended by the provisions of this Section that a search warrant shall be required for any peace officer or any agent, representative, or inspector of the Board to search any premise covered by any permit or license under the provisions of this Act.”

The search of appellant’s place in the present case by Inspector Powell was of premises covered by her license to sell beer, and under the statute was authorized without a search warrant. Kelley v. State, 133 Tex.Cr.R. 180, 109 S.W.2d 482.

Appellant next insists that the evidence fails to show that the contents of the bottles seized by the officer constituted an alcoholic beverage containing more than one-half of one per cent of alcohol by volume, as alleged in the information.

The bottles seized on appellant’s premises were referred to throughout the testimony as containing whisky. Inspector Powell testified that he opened the bottles, smelled of their contents, and that they contained whis-ky commonly called “moonshine.”

This court may judicially know that whis-ky is an alcoholic beverage and contains in excess of one-half of one per cent of alcohol by volume. Art. 666-3a, V.A.P.C. ; Parrack v. State, 154 Tex.Cr.R. 532, 228 S.W.2d 859; and Dixon v. State, 159 Tex. Cr.R. 258, 262 S.W.2d 488.

We do not agree with appellant that, because the whisky was referred to as “moonshine” and “bootleg” whisky, judicial notice may not be taken of its alcoholic content. Regardless of how it was referred to by the witness, it was still, described as whisky. In reaching such conclusion we are not unmindful of our prior holdings that the courts will not take judicial knowledge that “home brew” beer is an intoxicating liquor, because, as pointed out in Bell v. State, 142 Tex.Cr.R. 390, 154 S.W.2d 650, such is not within the definition of beer in the Texas Liquor Control Act, Art. 667-1 (b), V.A. P.C., which states that the term “beer”:

“ * * * shall not be inclusive of any beverage designated by label or' otherwise by any other name than beer.”

No such provision is found in Art. 666-3a, supra, of the Texas Liquor Control Act, which defines “Alcoholic Beverage,” “Illicit Beverage,” “Distilled Spirits,” “Liquor,” etc.

We find no merit in appellant’s remaining contention that the court erred in failing to give application in his charge to the jury of the provisions of Art. 666-21, V.A.P.C., pertaining to taxes imposed on the first sale of liquor and affixing a tax stamp on each container.

Appellant was prosecuted under Art. 666-3a, supra, and Art. 666-17, V.A.P.C., for unlawfully possessing an alcoholic beverage in a container to which no tax stamp showing payment of the tax due the state was affixed, and the provisions of Art. 666-21 relative to a first sale had no application.

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

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Robert Dale PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 35109.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    W. L. McConnell, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The'offense is cattle theft; the punishment, 2 years.

The state relied upon circumstantial evidence.

The state’s evidence showed that appellant sold 10 head of calves at the Beaver Livestock Auction on. May 18, 1960. One of these calves was sold to Dick Yates. It was claimed by Mr. Fossett (or Fausset) as the calf o’f one of his two year old heifers that disappeared during the early morning hours' of May 10.

The calf was taken to the 3 acre pasture to .see if the Fossett .heifer would claim it. Several witnesses who were present, and who were experienced in -raising and handling cattle, testified that the cow claimed the calf.

The testimony was similar to that which we held admissible and sufficient in Corley v. State, 160 Tex.Cr.R. 504, 272 S.W.2d 354.

The appellant did not testify but called his wife as a witness. By her testimony attempt was made to account for all of the calves appellant took to the sale, including the calf claimed by Mr. Fossett. Two of the calves, according to her testimony, were bought by appellant when he went alone to an auction sale on May 12. Others, she testified, were purchased at another sale after dark and outside the auction ring. She testified that she could not identify the seller and that no effort had been made to find him.

In his argument to the jury the district attorney stated: “He could tell this jury — or she could tell this jury who they bought them from and where the check was to prove it.”

Formal Bill of Exception No. 4 certifies that such argument was made and that the defendant then and there excepted and objected on the ground that such remark alluded to the defendant’s failure to testify.

We are unable to agree with the state’s contention that the remarks were no more than a bare allusion to appellant’s failure to testify, promptly corrected. It seems clear that the district attorney’s remark necessarily referred to the failure of the defendant as well as his wife to tell the jury who they got the Fossett calf from.

The complained of remarks violated the mandate of the statute and require reversal of the conviction. Art. 710, Vernon’s Ann. C.C.P.; Lankford v. State, 156 Tex.Cr.R. 113, 239 S.W.2d 394; Friemel v. State, 148 Tex.Cr.R. 454, 188 S.W.2d 175.

The judgment is reversed and the cause remanded.


author: WERLEIN, Justice.

text:
    Johnnie CLARK, Appellant, v. A. C. CLARK, Appellee.
    No. 14005.
    Court of Civil Appeals of Texas. Houston.
    Nov. 29, 1962.

      Pat N. Fahey and Paul A. Taylor, Houston, for appellant.
    Cire & Jamail, George E. Cire and Joseph D. Jamail, Jr., Houston, for ap-pellee.
   WERLEIN, Justice.

In the trial of this divorce suit, the only contested issues were limited to the amount of child support and the disposition by the court of that certain cause of action for personal injuries sustained by appellee as set out in Cause No. 570,829, styled Alfred C. Clark v. Chet Whaley Well Servicing Company, Inc., pending in the District Court of Harris County. On this appeal appellant asserts that the trial court abused his discretion in decreeing to appellee said cause of action. The statement of facts is rather meager. It contains a stipulation between the parties to the effect that the automobile belonging to them was to be awarded to appellee, and that appellant was to receive the home place, the title thereto, and all household furniture and fixtures therein, and to have, subject to the approval of the court, custody of the minor child, Darlene Clark.

No findings of fact or conclusions of law were requested or filed. In his judgment the court decreed said cause of action to appellee and ordered that appellee pay to appellant through the Harris County Probation Department $80.00 per month child support until said minor reaches 21 years of age or marries. The court found that appellee was wholly unable to make such payments unless recovery was had in said cause of action for personal injuries, and for such reason the court ordered that one-half of any amount recovered be paid to said Probation Department and that any amount remaining after said child support payments had been made as decreed should go to appellee.

Appellant contends that since no valuation was placed upon the house or any of the property other than the automobile, which was valued at $600.00, and it was impossible for the court to place any value on said cause of action for personal injuries sustained by appellee, the court was not in a position to make any division of the community property between the parties, and that in awarding to appellee the entire amount that might be received from said cause of action the court abused his discretion.

The evidence shows that appellant had received, prior to the time the divorce suit was tried, one-half of the amount of Workmen’s Compensation paid because of ap-pellee’s injuries. It was recognized by all parties that the amount of compensation insurance paid by the insurance carrier would have to be reimbursed to such carrier out of any recovery in the personal injury suit against the third party, Chet Whaley Well Servicing Company, Inc.

The evidence further shows that while appellant was suffering from several physical ailments, including high blood pressure, a heart condition, anemia and arthritis, she was employed and capable of working. She testified that mostly she washed dishes at Mading’s Drug Store at night. She further testified that her husband had not worked since his injury; that-he had been hospitalized for some time and that he had been unable to work; that he was hurt and could not do any heavy work; and that he had no education and could not hold a job.

Appellee testified that he was injured on August 28, 1959 and had not worked since that time, and had been under the constant care of doctors; that he had no way of making a living other than by physical labor, had no trade to fall back on, no source of income of any kind, and had not been released to go back to work.

The trial court had the statutory duty to divide the community property as he deemed just and right. Article 4638, Vernon’s Annotated Texas Statutes. The judgment of the court cannot be disturbed unless it appears that the disposition made of the property is manifestly unjust and unfair. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21.

In the present case appellant received the home and all furniture and fixtures therein, and appellee received the automobile and the amount that might be recovered by judgment or settlement of his personal injury suit, subject, however, to the payment out of one-half thereof of $80.00 per month until the minor child, then 15 years of age, should attain the age of 21 years or marry. Appellant has failed in her burden to show that such division of the community was manifestly unfair and unjust.

It is true that it was impossible to determine the value of the personal injury suit, and that there is nothing in the record to show the value of the home place, furniture and fixtures. However, the parties personally appeared in court and testified, and the trial court had the opportunity of observing and hearing them and determining their relative chances of obtaining and retaining employment and earning money. It is probable that the court concluded that since the appellee was apparently permanently and totally disabled for work, it would be fair and just to award to him any recovery that might be had by judgment or settlement in his personal injury suit, especially in view of the fact that appellant was receiving the home and all of its contents with the exception of appellee’s personal effects.

The law is well settled that the court is not required to divide the community property equally, and that in making the division the court may consider the disparity in the earning power of the parties, their business opportunities, capacities and abilities. Stanley v. Stanley, 1956, Tex.Civ. App., 294 S.W.2d 132, writ ref., n. r. e.; Venezia v. Venezia, Tex.Civ.App., 227 S.W.2d 881, and authorities cited; Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681.

In the absence of any findings of fact and conclusions of law, we do not know what value the trial court might have placed upon the home place and its contents, or upon appellee’s cause of action for damages, or what balancing of equities he might have considered in arriving at his conclusion as to how the property should be justly and fairly divided. Viewing the evidence as a whole in the light most favorable to sustain the judgment, we cannot say that the division of the property was manifestly unjust and unfair, or that the court abused his sound discretion in so partitioning it. Hill v. Hill, Tex.Civ.App.1952, 249 S.W.2d 654; Sterrett v. Sterrett, Tex.Civ.App., 228 S.W.2d 341.

Furthermore, appellant has limited her appeal to the disposition made by the court of said cause of action. It seems evident that the court’s disposition of said cause of action was based at least in part on the stipulation of the parties that appellant would have the home and its contents. There could be no change in the decree that would result in giving appellant an interest in said cause of action without taking into account the other community property which appellant accepted and apparently desires to retain. Having voluntarily accepted the part of the community property consisting of the home and its contents, appellant may not now complain of the disposition of’ another single item of community property and limit her appeal, assignments of error, and prayer for relief thereto. We think the rule of law enunciated by our Supreme Court in Carle v. Carle, 1950, 149 Tex. 469, 234 S.W.2d 1002, is by .analogy applicable to this appeal. The Court stated in that case: “A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute .an appeal therefrom.’"

Judgment affirmed.


author: BARROW, Justice.

text:
    Ruby Lee MONTGOMERY, Appellant, v. Rex M. CAMPBELL, Appellee.
    No. 14005.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.
    Rehearing Denied Dec. 12, 1962.
    John J. Pichinson, Wm. Brode Mobley, Jr., Corpus Christi, for appellant.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.
   BARROW, Justice.

This is a suit for damages for personal injuries sustained in a one-car accident by appellant, Ruby Lee Montgomery, while riding as a gratuitous guest of appellee, Rex M. Campbell. The jury found that Campbell was grossly negligent in operating his vehicle at an excessive rate of speed and that Mrs. Montgomery was contributorily negligent in failing to protest this speed. Each party’s negligence was found to be a proximate cause. Both parties filed motion for judgment non obstante veredicto, and Campbell also sought judgment on the verdict. The trial court rendered judgment that Mrs. Montgomery take nothing by her suit.

Appellant asserts that there was sufficient evidence to support the jury’s finding of gross negligence, and that, as a matter of law, she was under no duty to protest Campbell’s driving in view of her testimony that she was asleep. The accident occurred on U. S. Highway No. 59, about nine miles west of Victoria, Texas, when the vehicle failed to negotiate a curve into a detour and hurdled out into a field adjoining the detour. Campbell did not testify, and Mrs. Montgomery testified that she dozed off when they left Victoria and did not awaken until immediately prior to the accident. The only other witness concerning the accident was the State highway patrolman who went to the scene about an hour after the accident. From the physical facts observed at the scene, the patrolman testified, without objection, that Campbell’s vehicle was travelling at a rate of speed in excess of seventy miles per hour at the time of the accident. Campbell and Mrs. Montgomery were on a date which began at her home in Sinton about 2:00 o’clock on the afternoon preceding the accident. They drove to Victoria and arrived there about 8:00 p. m. They spent the evening with friends in two establishments, and Mrs. Montgomery testified that each had three beers during the evening. The last establishment was located on Highway No. 59, at the west edge of Victoria. Mrs. Montgomery testified that upon leaving this place, she put her head back on the auto seat and dozed. There was no indication of any improper driving by Campbell. She was awakened by Campbell’s application of the brakes and his warning of the imminent wreck. The patrolman gave evidence from which the jury could have inferred that Mrs. Montgomery was not asleep. The nine miles travelled after leaving Victoria was under construction, and although portions of-, the highway were surfaced, there were three or four detours off the main highway, similar to the one where the accident occurred.

This suit was brought under the “Guest Statute” and there can be no liability upon Campbell “unless such accident shall have been intentional” on his part, “or caused by his heedlessness or his reckless disregard of the rights of others.” Art. 6701b, Vernon’s .Tex.Civ.Stats. This may be shown by a continued or persistent course of conduct evidencing an entire want of care resulting from a realization of danger to the rights of others and a conscious indifference to such rights, safety and welfare of the persons affected. Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571. It may also be established by evidence of an act of such quality or kind of conduct as to show that the driver was consciously indifferent to the rights or welfare of his passenger as well as others. Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820; Adams v. McHam, Tex.Civ.App., 310 S.W.2d 145, ref. n. r. e.

Mrs. Montgomery asserts that gross negligence is shown by the high speed on a road which was under construction. There was no evidence, however, that Campbell had driven at this speed for any length of time and, in fact, the evidence established the contrary. In the short period after leaving Victoria, Mrs. Montgomery dozed off and was not disturbed by any difficulty in negotiating the first three or four detours. The patrolman testified that these detours could not have been negotiated at a high rate of speed. We do not see in this case the quality of shocking conduct necessary to demonstrate gross negligence, by the lone act of failing to negotiate the curve of the detour. Campbell had negotiated all previous detours without difficulty, the visibility was good and the traffic very light. He tried to control his vehicle on seeing the warnings for the detour. These circumstances do not demonstrate conscious indifference. All the evidence established was an act of momentary thoughtlessness, inadvertence or error of judgment which would not constitute gross negligence under the above authorities, Mrs. Montgomery failed to meet her burden of establishing gross negligence and the trial court correctly entered judgment for Campbell.

The judgment is affirmed.


author: POPE, Justice.

text:
    RAINBO BAKING COMPANY OF SAN ANTONIO, Appellant, v. Arthur AIKEN et al., Appellees.
    No. 13995.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1962.
    Rehearing Denied Dee. 12, 1962.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Will Wilson, Atty. Gen., Pat Bailey, W. O. Schultz, Asst. Attys. Gen., Austin, for appellees.
   POPE, Justice.

This is a venue suit. The first question presented is whether this is essentially a suit against the State or merely against named individuals. The other question is whether Travis County or Bexar County is the proper venue. The trial court ordered the suit transferred from Bexar to Travis County.

Plaintiff, Rainbo Baking Company filed this suit in Bexar County against John C. White, Arthur Aiken, and Sam Barlow, as individuals. All the defendants filed a plea of privilege to be sued in Travis County. The primary and ultimate purpose of the suit is to enjoin those persons from interfering with the sale or distribution of “Old Fashion” bread, or from taking any action against Rainbo’s customers who purchase the bread, or from taking possession of the bread produced by Rainbo. From an exhibit in evidence, it appears that these persons, acting under the provisions of Article 1037, Vernon’s Ann.Penal Code, have taken steps to force this product off the market. Rainbo also seeks a declaratory judgment concerning the legality of the defendants’ conduct.

This is an action against the State of Texas. While the petition names individuals; the undisputed evidence produced at the venue hearing showed that John White is in fact the Commissioner of Agriculture of Texas, that Aiken and Barlow are inspectors for that Department, and that their acts were done upon orders and pursuant to instructions from the Commissioner. The State is the real party against which the relief is sought. Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W. 813. The injunc-five relief was sought “to prevent the action of the only officers who were authorized by law to act for the state in the prosecution of its suit. * * * This was, in fact, a proceeding against the state, * * Stephens v. Texas & P. Ry. Co., 100 Tex. 177, 97 S.W. 309; 81 C.J.S. States § 216.

Venue for an injunction suit is governed by Article 4656, Vernon’s Tex.Civ. Stats. The evidence showed that Barlow and Aiken reside in Bexar County, and that White, individually, resides in Travis County. It is our opinion, however, that the venue for an action against White, as the Commissioner of Agriculture, and his employees acting under orders, is in Travis County. Sims v. White, Commissioner of Agriculture, Tex.Civ.App., 292 S.W.2d 648; Sheppard v. Zapp, Tex.Civ.App., 120 S.W.2d 898.

The judgment is affirmed.


author: FANNING, Justice.

text:
    Clarence Edward LEE, Appellant, v. Lois Faye LEE, Appellee.
    No. 7455.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 23, 1962.
    George W. Eddy, Houston, for appellant.
    Beckwith Smith, Jr., Houston, for ap-pellee.
   FANNING, Justice.

Lois Faye Lee sued her husband Clarence Edward Lee for divorce, custody of their three minor children, temporary alimony, child support, for partition of their community property, and sought certain injunctive relief.

Citation was duly served upon defendant Clarence Edward Lee, but he did not file a written answer to plaintiff’s suit.

Defendant appeared in person without an attorney at a hearing on plaintiff’s application for temporary relief. On this hearing a temporary order was entered by the trial court restraining defendant from certain stated acts, requiring him to file a sworn inventory, setting aside the use of the homestead for the wife and minor children, and also ordering defendant to pay certain stated amounts at stated times for child support.

Plaintiff later filed a motion for contempt against defendant, alleging various acts of contempt on the part of defendant in violating the temporary order. Defendant was duly cited on the.contempt complaint, appeared in person without an attorney, and-was jailed for contempt by an order of the court after a hearing.

Later an order was entered by the trial court appointing an auditor to audit and state the account between plaintiff and defendant with respect to their interest in Combs Truck Line, Inc., the same being community, property of plaintiff and defendant.

Later, on January 19, 1962, the trial court entered a final judgment in the cause. The judgment recites that plaintiff appeared in person and by attorney, and that defendant had been duly cited by personal service of citation for the time and the manner prescribed by law. Defendant was not present at this hearing and did not learn of the judgment until a few days later when plaintiff told.him about it.

The final judgment granted plaintiff a divorce, custody of the three minor children with defendant having certain stated rights of visitation, defendant, was ordered to pay certain stated sums at stated times for child support, the community property of the parties was partitioned in the mannér stated in the judgment, the court found that the audit previously ordered had been made and found that a fee of $250.00 ’was reasonable for such audit, and assessed the costs of the audit against defendant, as well as all other costs incurred in the cause.

Defendant thereafter on January 29, 1962, filed a motion for new trial, and was then represented by an attorney.

The motion for new trial was heard by the trial court. On this hearing the defendant testified, was cross-examined by plaintiff’s counsel, and was also interrogated by the trial court. This was all of the evidence presented to the trial court on the hearing on motion for new trial and a statement of facts on the hearing on motion for new trial has been filed in this court. • The trial court overruled defendants motion :for new trial and defendant has appealed.

Appellant on appeal makes no complaint concerning the court’s judgment except as it. partitions the community property, and contends that the partition was manifestly unjust and unfair to the defendant and that the trial court.abused its discretion in partitioning the community property of plaintiff. and defendant.

No statement of facts in connection with the hearing held by the trial court on January 19, 1962, when a final judgment was-rendered in the cause, has been filed in this, court. No bills of exceptions are contained! in the transcript. . The audit of the court appointed auditor which apparently was before the trial court is not shown in either the transcript or any statement of facts.

Under the very meagre record presented' to us we can not say that the partition was. manifestly unjust and unfair to the defend-; ant, or that the trial court abused its discretion in partitioning the community property of plaintiff and defendant.

The judgment of the trial court is affirmed.


text:
    Clyde Albert BULL, Appellant, v. Donna WILSON et vir, Appellees.
    No. 14003.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.

      Pfeiffer & Gittinger, San Antonio, for appellant.
    David P. Carter, Sidney Callender, San Antonio, for appellees.
   POPE, Justice.

Clyde Albert Bull brought suit by habeas corpus to recover the custody of his son, Michael Wayne, now four years old. He relied upon an Illinois decree which awarded custody to him. The trial court denied the relief and the only point before this Court is whether the Texas court should give full faith and credit to the decree- of a sister state. We conclude that it should.

Clyde Albert Bull and his wife, now Mrs. Donna Wilson, were divorced by a valid Illinois decree in July, 1959. The decree gave the mother custody of the child. She exercised the custody until December, 1959, when she delivered the child to her former husband and his mother. She married her present husband in December of 1959, and they have resided in Texas since that time. In July of 1961 she returned to Illinois and asked for the privilege of visiting with her child for several days. When she obtained the child, she returned to Texas. In August of 1961, Clyde Albert Bull, the father, filed a petition for modification of the original decree with respect to custody and alleged changed conditions. At that time the mother, her husband and the child were, and since then have been, in Texas.

The Illinois Court, on December 13, 1961, entered a modified decree which expressly found “That the Court has full and complete jurisdiction of the parties hereto and the subject matter hereof, and that the equities of said cause are with the defendant (Clyde Bull), and that the material allegations of the said petition are true as therein alleged and set forth,” and also, “That due to the change in circumstances as herein set forth, petitioner requests that the decree heretofore entered be modified by awarding the care, custody, control and education of said minor child, Michael Wayne, to Clyde Albert Bull, petitioner.” The decree then awarded the custody to petitioner and ordered the mother to return the child to the petitioner in Springfield, Illinois. The father came to Texas and by habeas corpus sought to enforce the Illinois decree. He produced certified copies of the entire Illinois proceedings. They show that the mother and her new husband were served in Texas by non-resident notice and were furnished the petition for modification. The Illinois decree recites that the court entered an order requiring her to answer but that she made default. The mother’s contention is that the non-resident notice failed to give jurisdiction, though the decree recited that the court had full jurisdiction over the parties and subject matter.

The Texas trial court held that Illinois had no jurisdiction over Texas domiciliaries. In our opinion, Illinois had jurisdiction, and Texas should give full faith and credit to the decree. This subject was fully discussed in Dowden v. Fischer, Tex.Civ.App., 338 S.W.2d 534. The Illinois law was proved in the habeas corpus proceeding, and it shows that the Illinois court has continuing jurisdiction over child custody. The prevailing view, and that of Texas, is that a proceeding for modification of a custody award is permissible as a continuation of the original proceeding in which the award was rendered, with respect to a party over whom the court had personal jurisdiction in the original proceeding. This is so upon reasonable notice other than by personal service within the court’s jurisdiction, and even though the person notified is a non-resident at that time. Dowden v. Fischer, supra; Camp v. Newsom, Tex.Civ.App., 329 S.W.2d 347;. Burkhardt v. Bachrach, Tex.Civ.App., 225 S.W.2d 1022; 17-A Am.Jur., Divorce and-Separation, § 847; 70 A.L.R. 526. Accord,. Liddell v. Blevins, Tex.Civ.App., 244 S.W.2d 335; 62 A.L.R.2d 544.

Donna Wilson, joined by her husband, ini the trial below first attacked the Illinois decree as a nullity. When the trial court upheld that contention, it denied relief under the habeas corpus. However, Donna Wilson further pleaded that there are changed conditions subsequent to the entry of that Illinois decree. That matter was not reached. In view of our decision that the-Illinois decree was valid and should be given effect, the cause must now be remanded' for consideration of those matters which' the trial court did not reach. This was the-disposition of the appeal in Dowden v.. Fischer, supra.

Accordingly, the decree denying the father’s prayer for habeas corpus is reversed.. The cause is remanded for consideration of the mother’s prayer for relief by reason of changed conditions.

      . “When a divorce shall be decreed, the court niay make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. * * * The court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.’’ Chapter 40, Paragraph 19, Illinois Ann.Statutes.


author: STANLEY, Commissioner.

text:
    WEBSTER COUNTY, Kentucky, Appellant, v. R. T. NANCE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    Warren B. Miller, Dixon, Earle M. Nichols, Madisonville, for appellant.
    Damon A. Vaughn, Thomas L. Withers,. Dixon, for appellee.
   STANLEY, Commissioner.

This is an action by Webster County to recover of R. T. Nance sums collected by him as a justice of the peace during the years 1954 through 1957 in excess of $5,-000 per year.

The fiscal court had set a per diem fee of $15 for magistrates’ attendance upon each of its meetings, but did not place a limitation on their total compensation. The maximum compensation was, therefore, that which had been previously fixed before the term of office began, KRS 64.700, which was $5,000. Upton v. Whitley County, Ky., 256 S.W.2d 3; Funk v. Milliken, Ky., 317 S.W.2d 499. The plaintiff prayed judgment for four annual sums, averaging $9,221.50* and aggregating $36,986.35, and interest. Except a few hundred dollars for attendance upon meetings of the fiscal court, the rest came from fees from holding court in criminal cases. The appeal is from a judgment denying any recovery and dismissing the complaint.

The defendant, Nance, held court at Slaughters, a village on U. S. Highway No. 41, which is a heavily traveled north and south thoroughfare through the western part of the state. An average of 1,443 cases a year were disposed of by him. All of them were for alleged violations of traffic laws, principally speeding. All the defendants had pleaded guilty — most of them to amended charges of breach of the peace— and were fined $1 and costs. The costs were assessed as $20.50, which included $5 for the county attorney. The magistrate had told each defendant the amount of the fine and costs and that they would have to pay it or go to jail or make bond. Squire Nance collected the sums, gave the parties receipts therefor and filed periodic reports with the circuit clerk, as required by statute. KRS 25.660. His records had been destroyed by a fire in January, 1959. The reports filed with the circuit clerk afforded evidence of the transactions.

In the beginning of the period involved, the defendant collected $2 in each case for himself, but soon raised the amount to $4.50. This sum had been arbitrarily fixed by himself because he had heard that justices of the peace in an adjoining county were receiving that fee. The circuit court found that the magistrate was entitled to a fee of $2.60, taxable as costs, and that any sum in excess was an illegal exaction. The court was of opinion that the county could not recover the illegal fees and was limited to a recovery of legal fees only, which, with his per diem for attending sessions of fiscal court, did not exceed collections of $5,000 a year. The implication of the court’s opinion is that the many litigants who had been overcharged would have the right to recover the same individually.

All fees are collected by officers in their official capacity. The fees represent the charges which the state or county or municipal corporation, respectively, makes for services rendered through its officers and constitutes a fund subject to the control of the governmental unit, which, in this case, is the county. All of the fees, or portions thereof, may be given to the officer performing the service for the public. If part only is allotted the officer, the remainder is retained by the state or its subdivision. The officer is required to pay to the county the excess receipts over and above the amounts allowed for his maximum compensation and reimbursement of expenses of the office, if any. Shipp v. Bradley, 210 Ky. 51, 275 S.W. 1; Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651; Commonwealth v. Coleman, 245 Ky. 673, 54 S.W.2d 42; Funk v. Milliken, Ky., 317 S.W.2d 499. No officer is entitled to demand or receive for the performance of his public duties more than is authorized by the law. KRS 64.410(2) ; Smothers v. Washington County Fiscal Court, 294 Ky. 35, 170 S.W.2d 867.

The appellee points out that in the above cases the fees had been legally collected, whereas this case concerns fees illegally exacted and collected. The question here, therefore, is what becomes of such fees? We hold they go to the county.

It has been held in other jurisdictions that if a justice of the peace collects fees to which the law does not entitle him, the county may not demand them of him since its title to the money cannot be better than his. 51 C.J.S. Justices of the Peace § 16. But the cases cited to sustain the text seem to involve the collection of fees for services where there were no statutes authorizing any fees at all to be collected or requiring that same be reported. Bell v. Martin, 64 Or. 519, 130 P. 1126; Richardson v. Morrison, 101 Cal.App. 418, 281 P. 726.

The fees presently involved were not collected by the justice in his individual capacity but were collected under authority of a statute as an officer of the county and state while acting under color of his office. The fees did not belong to him Personally. There can be no doubt that each of the defendants whom Squire Nance overcharged could recover from him the amount of the excess. KRS 64.450. Garfeim v. Stiglitz, 260 Ky. 430, 86 S.W.2d 155; Commonwealth, for Use and Benefit of Bouteiller v. Ray, 275 Ky. 758, 122 S.W.2d 750.

It is an old truth that one will not be permitted to profit by his own wrong. These fees were extorted in the main from travelers who resided out of the state. They were collected in the name of the state and county. It is abhorrent to say the officer should be permitted to convert the money to his own use under the claim that he has a better title than the county.

It is said in 51 C.J.S. Justices of the Peace § 23, citing State v. Cansler, 75 N.C. 442, 444, that a justice of the peace may be liable criminally for taking or demanding illegal fees. That judicial holding is in accordance with our statute which authorizes the court in which such officer serves to impose a fine for each illegal item in a bill of costs. KRS 64.460(2), (3).

It is succinctly stated in 43 Am.Jur., Public Officers, § 325, “[Mjoneys collected under color of office without authority of law must usually be accounted for and paid to the public agency in whose name and by whose authority they were pretended to have been collected. This is the rule where an officer, under color of his office, has exacted fees in excess of those authorized by statute, * *

In Yuma County v. Wisener, 45 Ariz. 475, 46 P.2d 115, 99 A.L.R. 642, a clerk had exacted an extra fee of $2.50 from nonresident applicants for marriage licenses. When sued by the county to recover those sums, he relied on the same ground that the appellee, Nance, relies on. There, as here, no defense of the officer’s conduct was attempted. The Arizona court noted that, as in State v. Porter, 69 Neb. 203, 95 N.W. 769, the clerk, by his conduct, had compelled payment of the fees in the exercise of a power derived from the state and he would not be permitted to repudiate that fact in the action to recover the illegal exactions. The court, therefore, held the illegal fees were recoverable by Yuma Couny.

In several cases summarized in the Annotation, 99 A.L.R. 647, the question seems to have involved liability of sureties on official bonds, and they were relieved because of the illegality of the officers’ acts; but in the few cases where the question of personal right of the officer to retain illegal money was involved he was held liable to the state or county. See in addition Nueces County v. Currington, Tex.Com.App., 162 S.W.2d 687; Schuylkill County v. Wiest, 257 Pa. 425, 101 A. 761; State v. Jones, for Use and Benefit of Garland County, 193 Ark. 391, 100 S.W.2d 249; State, for Use and Benefit of Garland County v. Jones, 198 Ark. 756, 131 S.W.2d 612.

Our conclusion of the whole matter is that Webster County is entitled to recover all illegal fees collected by the appellee. Money erroneously collected but under color of office constitutes a public fund. “While it belongs to those who paid it, nevertheless the state, [county] in whose name and by whose authority it was pretended to have been collected, is the proper custodian of it.” 42 Am.Jur., Public Funds, § 2.

The complaint only claimed the excess over $5,000 in each year, and the court, after eliminating the illegal fees, found that the defendant had not received legal compensation in excess of the constitutional limit. Upon a return of the case, the county, if it so desires, will be permitted to amend its complaint to include all illegal fees.

The trial court declared what fees the magistrate was entitled to legally. There is yet a controversy as to whether those sums were too large or too small. We will not undertake an accounting, leaving that to the circuit court.

The judgment is reversed for proceedings not inconsistent with this opinion.

Judgment reversed.

PALMORE, J., not sitting.

      . The system of compensating: Justices of the Peace by fees for trying criminal cases was abolished in 1958. Oh. 81, Acts of 1958, KRS 64.255.


author: CULLEN, Commissioner.

text:
    Karl O. POTTS, Jr., et al., Appellants, v. Merrick KREY, An Infant by Harry E. Krey, His Next Friend, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    William E. Wehrman, R. Barry Wehr-man, Covington, for appellants.
    Rodney S. Bryson, Covington, Lindhorst & Dreidame, Cincinnati, Ohio, for appel-lees.
   CULLEN, Commissioner.

Karl O. Potts, Jr., a truck driver, and Continental Coffee Company, his employer, appeal from a judgment awarding damages in the amount of approximately $28,000 to Merrick Krey, an infant, and his parents for personal injuries and resulting expenses incurred as a result of Merrick’s being hit by a Continental truck operated by Potts. The primary contention of the appellants is that they were entitled to a directed verdict.

The accident occurred on a residential street at 5 :15 p. m. on a September afternoon. The boy, five and one-half years of age, was struck by the right front bumper of the truck. The boy did not testify on the trial and the only other witness to the actual collision was Potts. He testified that he did not see the boy until he “saw this flash from the right-hand front fender” and that he did not know that it was a boy he had struck until after he had brought the truck to a stop.

There were no vehicles parked on the street and there was nothing in the yards on the right side of the street for a distance of from 15 to 25 feet back from the street to obstruct the view of a motorist, except some telephone poles, 75 feet apart, standing two feet back from the curb. It is argued by the appellants that the boy might have come from behind a telephone pole, but the evidence as to where the truck came to a stop and as to the length of its skid marks tends strongly to indicate that the point where the boy was struck was at least 20 feet from the nearest telephone pole.

The situation thus presented is, that despite the absence of any view-obstructing obstacles for a distance of at least 15 feet back from the street, the truck driver did not see the boy until the moment of impact. While there was no direct evidence that the boy was in a position where he could have been seen, the circumstantial evidence indicates he must have been in such a position. In our opinion the circumstantial evidence warranted a finding that Potts negligently failed to keep a proper lookout, because the law requires not only that a person look when he should, but also that he see what he should see. Roberts v. Rogers, Ky., 265 S.W.2d 448; Tuggle v. Taylor, Ky., 282 S.W.2d 615. Also, as said in Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, and in Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897, a motorist who merely looks down a street in utter disregard of pedestrians on the side of the street will not be exonerated by the “sudden appearance” of a pedestrian because any appearance is sudden to such a motorist.

The situation here is different from that in Benton v. Parks’ Administrator, Ky., 272 S.W.2d 466, where the physical conditions along the side of the highway were such that it was just as likely that the child was concealed as it was that he was in a position where he should have been seen. The same is true as to Milburn v. Rager, Ky., 352 S.W.2d 198, when the accident occurred at night and there were conditions that could have concealed the pedestrian from view.

We have many cases such as Johnson v. Gaines, Ky., 313 S.W.2d 408, and Brothers v. Cash, Ky., 332 S.W.2d 653, exonerating the motorist where a child darted into the street from a concealed position or from behind a parked vehicle, but they are not applicable here because there was nothing here, close to the street, to conceal the child.

As concerns the matter of proximate cause, the question is whether the evidence would warrant a finding that the boy’s position and movements were such that had Potts been maintaining a proper lookout he could have avoided hitting the boy. The possibility most favorable to Potts would be that the boy ran into the highway from behind some concealing obstacle 15 feet back from the highway. This would mean that the boy would have run 15 feet to the curb and then a few more feet into the street, in full view of Potts. We think a jury would be entitled to conclude that during this time a motorist in Potts’ position, keeping a proper lookout, could have maneuvered his vehicle to avoid hitting the boy. Particularly is this so because Potts knew there were a number of small children living along this street, and he saw two children on the left of the street as he approached the point of the accident, which put him under the duty to be prepared for the possibility of a child’s running into the street. See Johnson v. Gaines, Ky., 313 S.W.2d 408.

The appellants maintain that the court erred in instructing on Potts’ general duties with respect to lookout, speed and control. For the reasons hereinbefore stated we think instructions on lookout and control were proper. As concerns speed, it is true that there was no evidence that Potts was exceeding the statutory maximum limit of 25 miles per hour, but there is a duty under the statute, KRS 189.390, without regard to fixed limits, not to drive at a greater speed than is reasonable and prudent, having regard for the condition and use of the highway. A motorist does not have an absolute right to travel at the maximum fixed limit. Fullenwider v. Brawner, 224 Ky. 274, 6 S.W.2d 264; Summers v. Spivey’s Adm’r, 241 Ky. 213, 43 S.W.2d 666. Potts knew that a number of small children lived on this street and he saw two of them playing in a yard on the left as he approached the point of the accident. Under those conditions we think a general instruction on speed was not improper. Furthermore, the duties of lookout, reasonable speed and reasonable control are so basic that their inclusion in the instructions covering a pedestrian case is almost standard. Baker v. Sizemore, Ky., 338 S.W.2d 386.

The appellants contend that there was a prejudicial contact between the injured boy’s mother (she was one of the plaintiffs) and a juror. During a recess, as one of the jurors was leaving the courtroom, Mrs. Krey beckoned to him to come over to the plaintiffs’ counsel table, where Mrs. Krey and her husband were seated. She requested the juror to ask her daughter, who was out in a hall with the injured boy, to bring the boy into the courtroom-The juror did so. In our opinion this-casual contact did not constitute prejudicial misconduct. See Bee’s Old Reliable Shows,. Inc. v. Maupin’s Adm’x, 311 Ky. 837, 226 S.W.2d 23; Whitcomb v. Whitcomb, Ky., 267 S.W.2d 400.

The final contention of the appellants is that plaintiffs’ counsel committed prejudicial error in asking Potts whether or not he had been warned about speeding by the local police. Objection was made but in the meantime Potts answered, “No.”' The court then admonished the jury not to consider the question and answer. In our opinion the asking of this question, though improper, was not so prejudicial' that it could not be cured by the admonition. See Louisville & N. R. Co. v. Rowland’s Adm’r, 227 Ky. 841, 14 S.W.2d 174; Leming’s Adm’r v. Leachman, 268 Ky. 781, 105 S.W.2d 1043.

The judgment is affirmed.