author: MILLIKEN, Judge.

text:
    Lon NEELEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Joe P. Tackett, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   MILLIKEN, Judge.

The appellant, Lon Neeley, was convicted upon a charge of possession of alcoholic beverages in dry territory, was fined fifty dollars and sentenced to thirty days in jail. Relying on Slone v. Commonwealth (Ky.1964) 377 S.W.2d 51, wherein we held that a trial commissioner’s duties are limited to the conduct of a trial and do not extend to such pretrial duties as issuing search warrants and warrants of arrest, the appellant contends the search warrant and warrant of arrest in the present appeal were illegally issued because they were issued by a county judge pro tem. or in his capacity as a trial commissioner. After our ruling in Slone v. Commonwealth the General Assembly amended KRS 25.280 authorizing trial commissioners to issue search warrants and warrants of arrest when such warrants are authorized by law. We conclude, consequently, that the issuing officer here had the legal power to issue the warrant whether he acted in his capacity as county judge pro tem. or as trial commissioner.

Since KRS 25.280, as amended in 1966, merely authorizes fiscal courts to permit the judge of the county court to appoint a trial commissioner or commissioners, we think it conforms to the requirements of Section 141 of the constitution to the effect that “ * '* * [t]he jurisdiction of the County Court shall be uniform throughout the State * * It applies uniformly to all counties and merely leaves it to each individual county’s fiscal court whether to use the power thus given and authorize the county judge to appoint a trial commissioner or commissioners. The appointment of a trial commissioner is not a matter of jurisdiction.

Without detailed discussion, we conclude that there was sufficient evidence to sustain the conviction.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Bennie CISSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    James G. Apple, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Bennie Cissell appeals from a judgment sentencing him to two years in the penitentiary pursuant to a jury verdict finding him guilty of storehouse breaking. KRS 433.-190. The only ground asserted in support of a reversal is that the evidence is not sufficient to justify a finding of guilt.

The indictment charged the appellant and Troy Belt with having broken into the dry-cleaning establishment of W. D. Adams in Paducah, Kentucky, on or about December 5, 1966. The evidence was substantially as follows:

On the morning of December 6, 1966, when Adams opened his place for business he discovered that a goodly quantity of clothing had been removed during the preceding night. Access to the building had been gained through a small window nine to ten feet above ground level. The window was opposite the back of a dwelling occupied by Bennie Cissell’s brother and sister-in-law, with whom Bennie made his home. The premises were so situated that one looking out this particular window of the drycleaning place would see the back porch of the Cissell house 60 to 75 feet away, with a fence separating the two properties. In the fence was a gate. It had rained during the night, and in the soft earth Adams observed two or more sets of footprints leading from his building to the Cissell residence through the gate.

Marie Dixon, a girl friend of Bennie Cis-sell, was staying at the Cissell place at the time in question. She testified that she was awakened when Bennie and Troy Belt came into the house at 2:30 or 3:00 A.M. In the morning, she says, she noticed that Troy was wearing a car coat she had never seen before, and she and Bennie were told by him “that there were clothes” in the house. After Troy had departed, taking the coat and a red sweater, she told Bennie to get the clothes out of the house or she would leave. At that time the clothes were in a closet, and Bennie moved them to a concealed place in the bathroom ceiling, saying he would leave them there “until the next night or until somebody came and got them.”

As it developed, Bennie did not remove the articles from their place of concealment over the bathroom until more than a week later, when the police evidently had put the finger on Troy Belt. Joan Wright, a young lady who professed a kindly interest in Belt, then went to see Bennie at his place of employment as a taxi driver and asked him to give her the stolen clothes so that she might return them, hoping thereby to obtain some degree of clemency for Belt. Bennie at first demurred, saying the police “didn’t know, or couldn’t prove that they stole them, without the evidence.” But Joan persisted, and Bennie agreed to get the clothes for her but she was not to tell where she got them. They went from the taxi office to the Cissell home where, after telling his sister-in-law “to go upstairs for a few minutes, that he had something to do,” Bennie got a hammer from the kitchen and proceeded to remove the hidden clothing from the bathroom ceiling. Joan drove Bennie back to the cab station and then turned the articles in question over to the police. Among them were numerous items identified during the trial as having been stolen from the dry-cleaning place during the night of December 5-6, 1966. At some time later Bennie told Joan he could prove he was somewhere else if she told on him.

Joan testified also that one night while she and another girl were in a car with Bennie and Troy Belt at the cab company Bennie “told Troy to keep his mouth shut, that the less people knew about it the better off he and Troy would be.”

Troy Belt testified that he had pleaded guilty to the storehouse breaking indictment and to an unrelated charge of forgery and had been sentenced to an aggregate of three years in prison. He claimed to have broken into the drycleaning place, taken the clothing, and concealed them in the Cissell house all by himself. He repudiated a written statement in which he had confessed to the police that he and Bennie had collaborated in the commission of the crime. His explanation for this reversal was that he had lied in the hope of receiving lighter punishment.

Bennie did not testify or produce other defensive evidence. He contends that the evidence against him is circumstantial, is not inconsistent with a reasonable hypothesis of innocence, and raises no more than a suspicion of guilt.

It has been said many times that a “conviction may be had upon circumstantial evidence, but the circumstances shown must be so unequivocal and incriminating in character as to exclude every reasonable hypothesis of the innocence of the accused.” Rose v. Commonwealth, Ky., 385 S.W.2d 202, 204 (1964), and cases therein cited. Another favorite expression is that “any evidence of substance which goes toward the establishment of guilt is sufficient to make a jury issue.” Wheeler v. Commonwealth, Ky., 395 S.W.2d 565, 569 (1965); Parsley v. Commonwealth, Ky., 273 S.W.2d 372, 373 (1954), and cases therein cited. These sonorous and seemingly inconsistent incantations can be reconciled only when viewed in the context of the particular facts of the cases in which they appear. A simpler and more felicitous statement, and one which probably achieves a closer approach to reality, is found in Mullins v. Commonwealth, 276 Ky. 555, 124 S.W.2d 788, 790 (1939), as follows:

When the evidence, even though it be circumstantial, affords fair and reasonable ground upon which the verdict of a jury might be rested, the case should go to the jury. It is only where the testimony in behalf of the commonwealth fails to incriminate the accused, or is wholly insufficient to show guilt, that an accused is entitled to a peremptory instruction.”

Tested by any of these criteria the evidence in this case was amply sufficient to satisfy reasonable minds of Bennie’s guilt. While it is possible that he could have said and done the things brought out in the evidence without having participated in the crime other than as an accessory after the fact, it seems extremely unlikely that he did. Without further explanation, his words and deeds were more consistent with guilt than innocence.

The contention is made that the evidence was not enough to convict Bennie as an accessory after the fact. An accessory after the fact is not an accomplice or principal, Reed v. Commonwealth, 270 Ky. 447, 109 S.W.2d 1198, 1199 (1937), and the crime is “a misdemeanor, an offense without degree, not dependent on the degree of the principal’s crime, but only on his guilt of felony.” Maddox v. Commonwealth, Ky., 349 S.W.2d 686, 689 (1961); KRS 431.170. Bennie was not indicted as an accessory after the fact and, accordingly, there was no instruction under which he could have been so convicted. He was indicted and convicted as a principal in the commission of the felony of storehouse breaking, and our review has been confined to the sufficiency of the evidence to sustain a conviction on that basis. We reiterate — it was sufficient.

The judgment is affirmed.

All concur.


text:
    J. Stewart HARRISON et al., Appellants, v. Herbert SHIPPEN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      J. Kennedy Helm, Jr., Stites, Peabody & Helm, Marshall P. Elderd, Brown & Elderd, Blakey Helm, Helm, Eddleman, Jay & Eubanks, Louisville, for appellants.
    Rucker Todd, John T. Bondurant, Brown, Ardery, Todd & Dudley, E. Preston Young, L. D. Deters, Samuel R. Wells, Marshall, Cochran, Heyburn & Wells, Patrick S. Greene, Louisville, for appellees.
   JAMES C. CARTER, Jr., Special Commissioner.

This declaratory judgment action was filed by Citizens Fidelity Bank and Trust Company, successor trustee under the will of Alice Stokes Harrison, deceased, seeking construction of that will. From a judgment of the Jefferson Circuit Court construing the will, this appeal was taken.

Alice Stokes Harrison executed her will in Louisville, Kentucky, on February 19, 1881, and executed a codicil on August 3, 1881. She died on September 19, 1881, a resident of Louisville. Thereafter her will and codicil were admitted to probate by the Jefferson County Court.

The portion of the will relevant in determining the question presented reads as follows:

“1st I give all the property of which I may be possessed or to which I may be entitled at the time of my death, wherever the same may be situated, and all money in my possession or due to me, unto J. W. E. Bayly and his successors in office in trust, for the equal benefit of my two daughters, Emma S. and Rosa Locke Harrison, for and during their lives, with remainder at the death of each to her descendants, if any, in fee simple.
"2nd Should either of my said daughters die without leaving issue, then her share of my estate shall go to the surviving sister or her issue, and should both die without issue, then the whole of my estate except my jewels and personal ornaments shall go in fee simple to my husband, John S. Harrison, if living, and if not, it shall revert to my heirs.
“3rd In the event of the death of both of my children without leaving issue, my jewels and personal ornaments shall be sold by the trustee and the proceeds devoted to the purchase of a monument for the graves of my said children. In the event of the marriage of either of my daughters her share of my estate shall be held for her sole and separate use, free from the control of her husband; the income thereof shall be paid to her in person or to her own order, and she shall in no wise sell or encumber the same or anticipate the income.
“4th The Trustee shall support and educate my children during their minority, and if the income of my estate shall not be sufficient for that purpose, he may use such portion of the principal as -he may deem proper, but no encroachment shall be made upon the principal after my daughters come of age or marry.”

When Alice Harrison died, she was survived by her husband, John S. Harrison, and by two children, Emma S. Harrison and Rosa Locke Harrison. She was also survived by a sister, Ellen S. Shippen, and by nieces and nephews who were descendants of two other sisters and a brother, all of whom had predeceased Alice Harrison. Subsequent to the death of Alice Harrison her husband remarried. Three children were born to this marriage.

John S. Harrison, the surviving husband of Alice Harrison, died in 1901. Emma S. Harrison, one of Alice Harrison’s two children, married William Edmunds who died in 1912. Emma Harrison Edmunds never remarried and died without issue surviving her on July 28, 1953, a resident of Jefferson County, Kentucky.

Rosa Locke Harrison, the other daughter of Alice Harrison, never married and died testate without issue surviving her on January 19, 1964, a resident of Lajolla, California.

Under the terms of the will of Alice Harrison, upon the death of both Emma and Rosa without issue, John S. Harrison having predeceased them, the entire estate (except jewels and personal ornaments) is to “revert to my (Alice Harrison’s) heirs.”

The principal question in this case is whether the “heirs” of Alice Harrison, to whom her estate is to “revert,” are to be ascertained as of the date of her death in September 1881, or as of the date of death of Rosa Locke Harrison, last surviving life tenant, on January 19, 1964.

A stipulation of facts and various motions for summary judgment were filed. The chancellor granted judgment in favor of the appellees, and this appeal followed.

The appellants, who are the descendants of John Harrison and his second wife and the residuary beneficiaries under the will of Rosa L. Harrison and none of whom has any blood relationship to Alice Harrison, contend that the heirs of Alice Harrison are those who stood in that relation as of the date of her death, September 19, 1881. If they are correct, the heirs were Rosa and Emma, Alice Harrison’s two daughters.

The appellees, who are the descendants of the brothers and sisters of Alice Harrison, contend that the heirs of Alice Harrison should be determined as of the date of death of Rosa L. Harrison, January 19, 1964. If they are correct, the heirs are the descendants of Alice Harrison’s brothers and sisters.

The chancellor found that Alice Harrison intended that if her husband should predecease her daughters and if her two daughters should die without issue, then the estate should pass to her brothers and sisters and their descendants. In order to give effect to the intention of the testatrix, the chancellor concluded that the heirs must be determined as of the date of death of Rosa Locke Harrison on January 19, 1964.

In deciding this case, we begin with the basic principle set out by this court in Penick v. Lewis, 194 Ky. 231, 238 S.W. 745, 747, (1922):

“It is trite to say that the universally established principle for the construction of a will is to ascertain the intention of the testator, and to give effect to that intention, unless it is contrary to the established law, or an accepted public policy.”

The appellants contend the chancellor erred in considering circumstantial evidence. This court has consistently held that improper wording of a will that leaves a doubt as to the intention of the testator justifies the introduction of circumstantial evidence to clarify the meaning of the words used. Hoge v. Street, 310 Ky. 370, 220 S.W.2d 830 (1949); Johnson v. Foley, 302 Ky. 848, 196 S.W.2d 733 (1946); Commonwealth v. Manuel, 183 Ky. 48, 208 S.W. 327 (1919).

This court said in Eichhorn v. Morat, 175 Ky. 80, 193 S.W. 1013, 1015 (1917), that:

“The cardinal rule which should always guide the courts in their investigations of controversies is to ascertain the facts and apply the law applicable thereto. The modern tendency is toward relaxing the ancient, strict technical rules with their hampering effects, and to lift the curtains of the courthouse so as to let in the light of truth as much so as is consonant with the prevention of fraud and its evil consequences. No rule should be inflexibly adhered to which has for its purpose a frowning influence upon such an enlightening departure * * *

Thus, in attempting to ascertain what Alice Harrison meant by the term “heirs,” the chancellor properly considered circumstantial evidence relating to Alice’s family and the nature of her property.

The will reveals that Alice Harrison was primarily concerned with the welfare of her two daughters. She made sure that if either daughter married, the husband would in no way control the income or corpus. Realizing that her daughters might have children, the testatrix provided for her grandchildren to have the trust corpus. Still controlling her estate, she channeled it into the hands of her husband only if her daughters died without issue and her husband outlived the daughters. It is unlikely the testatrix intended to control her estate up to this point and then turn it over to her daughters to pass on to strangers should they die without issue. In this regard she provided in the will that a daughter “shall in no wise sell or encumber (her share of the estate) or anticipate the income.”

It seems reasonable that when Alice Harrison was faced with the possibility that after her husband’s death her daughters might die without issue she thought: Who should be next in line to receive this property but her brothers and sisters and descendants? To Alice Harrison writing her will in 1881, these were surely the “heirs” to whom she wanted her estate to revert.

The chancellor properly concluded that in the circumstances of this case the testatrix intended her estate to pass to her brothers and sisters and their descendants.

The appellants, however, contend that the time of ascertainment of the heirs of Alice Harrison should be determined by the application of a rule of construction that a testator’s heirs are to be determined as of the date of the testator’s death. Pewitt v. Workman, 289 Ky. 459, 159 S.W.2d 21 (1942); Weil v. King, 31 Ky. Law Rep. 1010, 104 S.W. 380 (1907). But on numerous occasions this court has said that it will not be bound by this technical rule of construction when the intent of the testator would be frustrated.

Mitchell v. Dauphin Deposit Trust Co., 283 Ky. 532, 142 S.W.2d 181 (1940), involved the issue of whether the dispositive clause “my heirs at law as the same would descend from me” had reference to a class to be determined as of the date of the testator’s death or as of the date of death of the testator’s daughter. This court refused to be bound by any rule that a testator’s heirs must be ascertained as of the testator’s death; rather we concluded that the heirs should be determined at the date of the daughter’s death. In arriving at this conclusion we relied on the intent of the testator, reasoning:

“It would seem rather illogical to construe the will to mean that the testator intended to give his daugther the estate in fee if she survived him and then if the daughter died leaving no issue surviving her to divest her of it in order to give it back to her in fee under the designation of ‘heirs at law.’ ” (Mitchell v. Dauphin Deposit Trust Co., supra, at p. 186)

In Clark v. Payne, 288 Ky. 819, 157 S.W.2d 63 (1941), the testator had given certain land and slaves to his granddaughter for life, and if she left no surviving issue, the land and slaves were to “return to my estate.” After holding that the words “my estate” referred to heirs of the testator, the court turned to the question of when the heirs were to be determined. Once again we made it clear that we will not be shackled by any rule that a testator’s heirs must be determined as of the testator’s death. Holding that the heirs were to be ascertained at the death of the granddaughter, we said on page 67:

“Declining the guidance of precedents tainted with outworn concepts, we encounter no difficulty in giving effect to what it seems to us was the obvious intention of the testator, namely, to make certain, by use of the language employed, that no part of his estate * * * should pass to strangers to his blood.”

Finally, we turn to Copeland v. State Bank & Trust Co., 300 Ky. 432, 188 S.W.2d 1017 (1945). The will there provided that if the testator’s daughter died without leaving children her share of a trust “shall revert to my estate and be distributed by my trustee among my heirs at law * * There, as here, it was contended that the court should be controlled by a rule of construction that the heirs were to be determined as of the testator’s death. We refused, however, to employ any “artificial rules of construction” when we said:

“Many authorities are cited in support of each, contention, but we find it unnecessary to review them, since we are committed to the rule that the intention of the testator, as manifested by the language of the will as a whole, must control, regardless of rules of construction such as those referred to.”

The reasoning found in these three cases is controlling in the construction of Alice Harrison’s will. The chancellor has correctly determined the intent of the testatrix. Her intent should not be frustrated by the blind application of any rule of construction.

In their brief appellants have conceded that the time for ascertaining Alice Harrison’s heirs who take the Texas real estate is the same as ascertaining the heirs who would take the Kentucky personalty and that the Texas real estate will pass to the same persons as the trust corpus in Kentucky. We have so held, and accordingly no issue is presented to us for decision with respect to the Texas real estate.

We are of the opinion that the chancellor correctly determined that Alice Harrison’s will, properly construed in the light of attending circumstances, gives the remainder of Alice’s estate to her heirs determined as of the time of the death of Rosa, the survivor of Alice’s two daughters.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Mrs. Fred H. PATTERSON, Executrix of the Estate of Fred A. Patterson, Deceased, Appellant, v. APPALACHIAN REGIONAL HOSPITAL, INC. and Workmen’s Compensation Board, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    Watson & Watson, Middlesboro, for appellant.
    Grant F. Knuckles, Pineville, for ap-pellee.
   OSBORNE, Judge.

The appellant, Mrs. Fred A. Patterson, executrix of the estate of Fred A. Patterson, deceased, is appealing from an order of the Harlan Circuit Court affirming an order of the Workmens Compensation Board refusing to allow and award specific medical expenses pursuant to a general award of medical expenses.

In 1964 Fred A. Patterson was employed by the Appalachian Regional Hospitals as an air conditioning repairman for the various hospitals in the chain. He lived in Middlesboro and worked out of the Harlan hospital from where he started every Monday to make his rounds of maintenance and repair. On July 27, 1964 he was sent to the hospital at Wise, Virginia, some 65 miles from his home, to make some repairs. He finished the work that day, but had to check it the next day. He checked into a local motel, which was his usual practice. While there, he slipped and fell in the bathroom receiving a severe concussion. The following day he was taken to the hospital at Wise, Virginia, where he had been working. There he was examined and sent on to another of the hospitals belonging to the employer where he was treated by doctors from an affiliated clinic. Both the hospital and doctor apparently sent him bills. He filed a claim for compensation with the Workmen’s Compensation Board but died before his claim was ruled upon. His widow revived the claim as executrix. The Board awarded compensation and entered a general medical award. The compensation has been paid and is not disputed.

Subsequently, the attorney for the appellant moved the Board to set his fee equal to 20% of the compensation and medical expenses. Apparently toward this end, in the same motion he requested that the Board specifically award the medical bills which had been incurred. The Board refused to do this and subsequently awarded an attorney’s fee based upon the compensation alone.

Appellant’s only contention upon this appeal is that KRS 342.035 and 342.020 require that the Board pass upon the reasonableness of hospital and medical fees. The facts in the case show that the reasonableness of the medical fees was not questioned. Indeed it is hard to imagine how the appellee could argue that the fees were unreasonable as most of the charges are for their own service — and the rest for the services of an affiliated clinic.

In a situation such as this the general medical award becomes an order for the employer to pay the medical expenses so long as they do not exceed the maximum set in the award. Pioneer Coal Co. v. Sparks, Ky., 249 S.W.2d 725. It is within the circuit court’s power to determine whether or not given amounts have been paid. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800, 113 S.W.2d 436. Therefore, the circuit court could have enforced this order. If there were any question as to the reasonableness of the fees, the employer could have the Board pass upon that issue. In this case, such a determination was unnecessary, and could serve no legitimate purpose. The Board’s action in refusing to allow and order the payment of the specific amounts was proper.

The judgment is affirmed.

All concur.


author: EDWARD P. HILL, Judge. STEINFELD, Judge PALMORE, Judge OSBORNE, Judge

text:
    TRAILER CONVOYS, INC. and the Special Fund, Appellants, v. Louis HOLSCLAW, Individually, and on Behalf of Mary Louise Holsclaw, an Infant, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Stuart E. Alexander, Jr., Louisville, for appellants.
    Charles I. Sandmann, Allen Schmitt, Louisville, for appellee Holsclaw.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court affirming an award by the Workmen’s Compensation Board which allowed the deceased employee’s dependents to recover full benefits.

The decedent, Charles William Holsclaw, was under contract with Trailer Convoys to drive his truck from Louisville, Kentucky, to Oakland, California. Two days after he left Louisville, in Santa Rosa, New Mexico, Holsclaw was found slumped over the wheel of his truck, which was in a line of trucks waiting for traffic interviews conducted by the New Mexico Highway Department. He was taken to a hospital where he died of a cerebral hemorrhage that same day. The Board found that Holsclaw had suffered from hypertension and arteriosclerosis for several years but that it was a dormant and nondisabling diseased condition. Both the doctor who diagnosed Holsclaw’s death as a cerebral hemorrhage and the doctor who treated him for several years for hypertension testified that his death was caused by underlying arteriosclerosis and hypertension and that it was probably precipitated by the strain of driving 1200 miles in two days. The testimony of the two doctors is uncontradicted. The Board found that the contributing cause of decedent’s death was twenty-five percent from the strain and exertion of his work in driving the truck and seventy-five percent from the pre-exist-ing, dormant, nondisabling diseased condition.

The circuit court affirmed the Board’s award, and the appellant now brings the case before this court to decide the question of whether the strain of the driving done by Holsclaw was sufficient trauma to make his death compensable under the Workmen’s Compensation Act.

Appellant contends that because Hols-claw was found slumped over in the truck while it was not moving, the cerebral hemorrhage was not the natural and direct result of a traumatic injury by accident and is therefore not compensable under KRS 342.005(1). A review of previous cases will not support appellant’s position.

In Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961), this court held that a heart attack which occurred shortly after the decedent had been operating an air hammer was a compensable traumatic personal injury by accident. It should be noted that Grimes was resting, not working, at the time of the heart attack. Similarly, in Terry v. Associated Stone Co., Ky., 334 S.W.2d 926 (1960), this court allowed compensation where the Board found that the heart attack was caused in part by the strain of the work claimant was performing. The more recent case of Young v. Eastern Coal Corporation, Ky., 408 S.W.2d 464 (1966), allowed benefits to an employee who was totally disabled by a myocardial infarction resulting from the strain of his work. The claimant was supported by un-contradicted medical testimony that his disability was caused by both a pre-existing arteriosclerotic condition and the myocardial infarction. This court ordered the compensation apportioned between the employer and the special fund.

The case at bar falls within the cases cited above. There is uncontradicted medical testimony that Holsclaw suffered from a pre-existing but nondisabling condition which coupled with the strain of driving a truck 1200 miles in two days resulted in the cerebral hemorrhage. In Grimes, supra, the decedent was stricken while he was resting, and in Terry, supra, it was recognized that a strain may cause a disability or death when the person is resting or engaged in some routine activity. Therefore, the fact that Holsclaw was not actively engaged in driving should make no difference.

The Board has complied with that part of the Grimes decision which states 345 S.W.2d on page 51:

“[W]here a work-connected exertion precipitates or triggers a disability in which a pre-existing disease is the predominating cause the award should represent only the contribution of the injury to the disability.”

In their reply brief, appellants repeat the argument used in their first brief. They cite one new case, Hutchinson v. Skilton Construction Co., Ky., 417 S.W.2d 142 (1967), where the court refused to recognize claimant’s argument that “mere presence on the job, accompanied by the stress and strain that goes with construction employment, is sufficient to support an award where death is caused by myocardial infarction, commonly referred to as heart attack.”

The case at bar is easily distinguished from Hutchinson, supra,-in which the testimony was indefinite as to whether the deceased did any work on the morning of his fatal attack. Also appellant in Hutchinson failed to meet the burden or proof required by Grimes, supra, where medical testimony established that death was work-connected.

In the case at bar there is testimony by two physicians that decedent’s death was caused by underlying arteriosclerosis and hypertension but which was probably precipitated by the strain of his work.

The argument is made that this court has been wrong in its interpretation of trauma since Grimes, supra, in 1961. The rule of that case has now been followed for six years, during which time insurance rates have been adjusted and labor and management have learned to rely on it. The legal doctrine of stare decises provided certainty, stability, and predictability in the conduct of business. We believe that it now justifies the continued use of the present interpretation of trauma. Cf. Ballard County v. Kentucky County Debt Commission, 290 Ky. 770, 162 S.W.2d 771 (1942), and 20 Am.Jur.2d, Courts § 184.

The judgment is affirmed.

■ WILLIAMS, C. J., and MILLIKEN, PALMORE and STEINFELD, JJ., concur.

OSBORNE and MONTGOMERY, JJ., dissent.

STEINFELD, Judge

(concurring).

I concur in the decision only because of the law announced in Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961) and Terry v. Associated Stone, Ky., 334 S.W.2d 926 (1960), but for which I would hold that there is not even an inference from which we may assume that a “traumatic personal injury (was) sustained by the employee by accident”. KRS 342.005. The proof is not convincing that any event had occurred to or involved Holsclaw other than the customary and usual experience of a driver of a truck. Except in the cases of occupational diseases covered by the Workmen’s Compensation Act, I would hold that the Act is not intended to embrace injury or death unless there is sufficient evidence that it resulted from an unusual occurrence, as contrasted with the normal stresses and strains related to the job and the mundane routine activities connected with the work in which the employee is engaged.

PALMORE, Judge

(concurring).

It was explained at some length in Terry v. Associated Stone Company, Ky., 334 S.W.2d 926 (1960), and Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961), that long before the legislature in 1956 added “traumatic” to the words “personal injury” in KRS 342.005 the court had construed the statute in that manner anyway, and yet over a period of more than 30 years between 1926 and 1958 had recognized com-pensability of the following types of injury: (1) Brain hemorrhage following heavy strain, Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936 (1926); (2) Tular-aemia from handling rabbits, Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87 (1932); (3) Heat stroke from “artificial” heat, Wolfe v. American Rolling Mill Co., 277 Ky. 395, 126 S.W.2d 835 (1939); (4) Muscular strain from lifting heavy stone, resulting in pleurisy and subsequent pneumonia, Tafel Electric Co. v. Scherle, 295 Ky. 99, 173 S.W.2d 810 (1943); (5) Back strain from pushing heavy cart, aggravating a pre-existing but unknown arthritic condition, Wood-Mosaic Co. v. Shumate, 305 Ky. 368, 204 S.W.2d 331 (1947); (6) Sudden appearance of inguinal hernia during heavy work, Harlan-Wallins Coal Corp. v. Lawson, Ky., 242 S.W.2d 999 (1951); (7) Sudden aggravation of stomach and intestinal ulcers while lifting heavy timbers, resulting in internal hemorrhages, Totz Coal Co. v. Creech, Ky., 245 S.W.2d 924 (1951); (8) Herniated disc resulting from strain, United States Coal & Coke Co. v. Parsons, Ky., 245 S.W.2d 442 (1951); (9) Herniated disc developing from heavy work, Ironton Fire Brick Co. v. Madden, Ky., 285 S.W.2d 897 (1956); (10) Back strain from lifting heavy pump, aggravating a pre-existing spine condition, Parrott v. S. A. Healy Co., Ky., 290 S.W.2d 798 (1956); (11) Back strain from lifting 40-lb box, aggravating a congenital defect of the spine, Contractors Service & Supply Co. v. Chism, Ky., 316 S.W.2d 840 (1958).

So, whether or not the legislative amendment of 1956 was intended to overrule Adams v. Bryant, Ky., 274 S.W.2d 791 (1955), the court found it difficult to believe it was intended also to deny compensation in all of these many types of cases in which the physical effort of a man’s work precipitates an internal breakdown resulting in disablement. It seemed more reasonable to believe that the legislators would not intentionally have departed from the fundamental purpose of workmen’s compensation, which is to compensate the employe for disability earned by his work. And that is what a unanimous court decided in Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961).

That the court in times past had seen fit to define “traumatic” eight times proves only what was observed in Grimes, that it is indeed a slippery word. Presumably the dictionary remains open to the court of to*day as it did to the court of yesterday.

The majority opinion does not represent a hit-or-miss approach. It follows a consistent line of cases holding that if' there is substantial medical proof that the physical effort demanded by a man’s work was a probable factor in precipitating a disability, though a pre-existing disease may be the predominant cause, and the board so finds, or under the weight of the evidence has no reasonable basis for finding otherwise, he is entitled to compensation apportioned on the basis of the contribution of the work to the resulting disability.

OSBORNE, Judge

(dissenting).

The majority opinion herein is a classical example of the position that a court can reach when it refuses to follow any predetermined rule of law. We have reasoned from case to case in this field with disregard for the statutes and legal principles which should be controlling until now we find ourselves awarding compensation for the death of an employee because per chance he just happened to have a cerebral hemorrhage while on the job. To me the majority opinion gives the impression of being a studied effort in avoiding a serious legal discussion of the rule of law governing this type of case. I believe the time has come to stop and ascertain where we are. The majority should do this and not continue the practice of picking and choosing in these cases according to whim. Hard legal principles should be faced up to by courts, not avoided or evaded.

Charles William Holsclaw was a truck driver. Driving was his regular employment and had been for some time. On the date of his death, he was sitting at the wheel of his parked truck in Santa Rosa, New Mexico, waiting for a traffic check by the New Mexico highway patrol, when suddenly he slumped forward upon the steering wheel and died of a cerebral hemorrhage. The hemorrhage, according to medical testimony, was brought about by a chronic condition of hypertension and arteriosclerosis. In the two days just prior to his death he had driven 1200 miles, which averages 600 miles per day. This by no stretch of the imagination constitutes exertion or any type of heavy or unusual work for a truck driver. His widow instituted these proceedings to recover death benefits under KRS 342.005 et seq., the Workmn’s Compensation statutes. In defining the scope of the Act, KRS 342.005 provides the Act shall apply when the employee suffers “a traumatic personal injury sustained * * * by accident”.

It will be noted that the Act sets two requirements which must be met before the injury or death is compensable. 1. There must be a “traumatic personal injury” and 2. The injury must have been “sustained by the employee by accident”. The requirement that the injury must arise from trauma has had an interesting history in this state. As the Act was originally written it did not specifically require that an injury by accident be traumatic but did require that a disease in order to be covered by the Act be the “natural and direct result of traumatic injury by accident.”

This court in a line of cases and in accord with the highest court in most of the other states construed the Act to require a “traumatic” injury by accident. See Rusch v. Louisville Water Company, 193 Ky. 698, 237 S.W. 389 (1922). Here a valve in a steam boiler blew out. Allen Rusch, an employee of the company, in attempting to repair the blow-out became overexcited and overexerted. He fell dead. The Compensation Board found:

“1. The death of decedent was not the result of traumatic injury by accident, but was due to preexisting disease of the heart.
“2. Overexcitement and hurry at a critical moment, taken in connection with a diseased heart, caused the heart to fail.”

In affirming the Board, the court said:

“In this case the board found that the death of Rusch was not the result of traumatic injury by accident, but was due to pre-existing disease of the heart, and, further, that excitement and hurry at a critical moment, taken in connection with a diseased heart, caused the heart to fail. There is no question of the accuracy of these findings, nor is there any contrariety in the evidence by which they are shown to exist. The single inquiry then is as to their legal effect. * * * The finding was that the death was not the result of traumatic injury by accident, but was due to a pre-existing disease of the heart. The liability created by the statute for injury or death resulting from accident, arising out of and in the course of employment, is explicitly defined as excluding disease. * * * ”

This language was reaffirmed and quoted in Wallins Creek Collieries Co. v. Williams, 211 Ky. 200, 277 S.W. 234 (1925). Here the employee was helping shoe a recalcitrant mule. A rope was tied to the foot of a mule and held by the employee. He became quite warm, overexerted, nauseated and weak. He died that evening of a heart attack. The Board made an award to the widow which the circuit court affirmed. This court reversed, citing the Rusch case, supra, and stated:

“It is exceedingly doubtful if what happened to the employee, Williams, in this case could be classified as an accident, it being our opinion that it could not; but, without determining that question (it not being necessary), it was certainly not a traumatic accident so as to permit the apportioning of the compensation and allowing an award for whatever was produced by it.”

The law followed pretty much along these lines until 1955 in the case of Adams v. Bryant, Ky., 274 S.W.2d 791, where a mine employee became overexerted in an attempt to rescue fellow workmen who were trapped in a cave-in. Death was due to cardiac failure brought on by overexertion. This court overruled and distinguished all previous cases holding under the terms of the Act that “trauma” was unnecessary. In commenting on the Wallins Creek case, the court said:

“The language as to whether the accident was to any extent of a traumatic nature, by the Court’s own admission, is nothing more than loose dictum and cannot be binding upon us here. Other expressions by the Court seem far more helpful. We have generally defined the word ‘accident’ as something ‘unusual, unexpected, and undesigned * * * traceable to a definite time, place, and cause.’ Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87, 88. And we find our use of the word is in full accord with its generally accepted meaning in almost every other jurisdiction. See 4 Schneider, supra, pages 377 et seq.; Horovitz, supra, pages 84 et seq.; 58 Am.Jur., supra, section 96, page 705.”

This opinion was handed down in 1955. The legislature in 1956 as a direct result of this opinion amended the Act to its present form requiring all personal injuries to be “traumatic” in order to be compensable.

The first case to come before this court wherein the new Act applied was Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961). This was a cardiac stoppage case with no unusual stress. The term “traumatic” was read out of the statutes as being a “slippery word.”

“The simplest definitions of ‘trauma’ and ‘traumatic’ given in Webster’s International Dictionary (1955) are, respectively, ‘an injury or wound, or the resulting condition,’ and ‘caused by a wound, injury or shock.’ What is an injury? The same authority defines it as ‘damage or hurt done to or suffered by a person or thing,’ and says that ‘hurt’ is ‘injury; damage; detriment; harm; mischief.’ It would seem, therefore, merely on the strength of these common definitions, that once a condition is accepted as a personal ‘injury’ it is necessarily accepted as traumatic. * * * ”
“The parties seem to agree that the purpose of the 1956 amendment in adding the word ‘traumatic’ was to nullify the effect of the Adams case. But in view of the meaning of that slippery word as exemplified by the exertion and strain cases decided prior to the Adams case we are unable to say just what was the legislative intent of the 1956 amendment.”

This case is a classical example of reasoning from the ridiculous to the sublime. At the time the court went to the dictionary to define “traumatic” it had been defined no less than eight times in previous decisions.

In fact the court had made a previous journey to the dictionary for a definition of “traumatic” and defined it in the following terms:

“Obviously the construction of this phrase turns on the definition of the word ‘traumatic.’ The word ‘trauma’ is defined in Black’s Legal Dictionary as a ‘wound; any injury to the body caused by external violence.’ And ‘traumatic’ is defined as ‘caused by or resulting from a wound or any external injury.’ In Webster’s New International Dictionary, the word ‘trauma’ is defined as ‘a wound or injury;’ ‘traumatic’ as ‘pertaining to or due to wound or injury.’ The Century Dictionary defines ‘traumatic’ to be ‘an abnormal condition of the human body produced by external violence as distinguished from that produced by poisons, symotic infections, bad habits and other less evident causes.’ Webster’s Unabridged Dictionary defines ‘traumatism’ as ‘a wound or injury directly produced by causes external to the body; also violence producing a wound or injury, as rupture of the stomach by traumatism.” Jellico Coal Co. v. Adkins, supra.

Trauma needed no definition. It was probably the best defined word in American jurisprudence. It meant simply and plainly a personal injury resulting from an external force. It still means the same thing. There has been no change in the definition. There has only been a wilful and capricious judicial determination to defy the legislature and not to apply the plain and simple requirements of a statute. The right to decide cases not in accord with the law but on the basis of personal desire is a great temptation to all judges. It is the exercise of absolute power. A privilege that no man should ever have, but which seems to be increasingly encountered in today’s judicial opinions both from our federal and state courts.

We now come to the second requirement of the Act, viz., the injury must be “sustained by the employe by accident.” This court has defined accident as being “something unusual, unexpected and unde-signed.”

It is clear from these cases that there is not an accident unless there is an unexpected cause as distinguished from an unexpected result. There is no reason to make a futile and lengthy search within the facts of this case for an “accident.” It is crystal clear that there was none. Nothing unusual happened. There is no unusual activity, exertion or strain. The decedent fell as the result of a disease that had no relationship to his employment. The facts of the case speak far more eloquently to this point than anything this feeble person might write. This court has authority under the constitution to interpret acts of the legislature. Here we have perverted this authority into the right to abrogate a part of an act which is admittedly valid in all respects. A more glaring example of the abuse of judicial power can be found nowhere in the law of the state.

For the foregoing reasons, I respectfully dissent.

MONTGOMERY, J., joins in this dissent.

      . Cf. Rusch v. Louisville Water Co., 193 Ky. 698, 237 S.W. 389 (1922).

      . Terry v. Associated Stone Company, Ky., 334 S.W.2d 926 (1960).

      . Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); Johnson v. Stone, Ky., 357 S.W.2d 844 (1962); Young v. Eastern Coal Corp., Ky., 408 S.W.2d 464 (1966).

      . Conversely, if the strongest finding supported by the proof would be that the work was a possible factor, compensation has been denied. Kelly Contracting Co. v. Robinson, Ky., 377 S.W.2d 892 (1964); Dupriest v. Tecon Corp., Ky., 396 S.W.2d 778 (1965); Hutchinson v. Skilton Construction Co., Ky., 417 S.W. 2d 142 (1967).

      . The original Act read: “It shall affect the liability of the employers subject thereto to their employes for a personal injury sustained by the employe by accident arising out of and in the course of his employment, or for death resulting from such accidental injury. Personal injury by accident shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident, nor shall the injury include the results of a preexisting disease * * *J>

      . The Act was amended to read: “It shall affect the liability of the employers subject thereto to their employes for a traumatic personal injury sustained by the employe by accident, and for disability resulting from occupational diseases as defined in this chapter, arising out of and in the course of his employment, or for death resulting from such accidental injury or occupational disease; provided, however, that ‘traumatic personal injury by accident’ as herein defined shall not include diseases except where the disease is the natural and direct result of a traumatic injury * *

      . These cases are: Rusch v. Louisville Water Co., 193 Ky. 698, 237 S.W. 389 (1922); Jellico Coal Co. v. Adkins, 197 Ky. 684, 247 S.W. 972 (1923); Wallins Creek Collieries Co. v. Williams, 211 Ky. 200, 277 S.W. 234 (1926); Straight Creek Fuel Co. v. Hunt, 221 Ky. 265, 298 S.W. 686 (1927); Mills v. Columbia Gas Const. Co., 246 Ky. 464, 55 S.W.2d 394 (1932); Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87 (1932); T. M. Crutcher Dental Depot v. Miller, 251 Ky. 201, 64 S.W.2d 466 (1933); and Harlan Creek Collieries Co. v. Johnson, 308 Ky. 89, 212 S.W.2d 540 (1948).

      . See Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Totz Coal Co. v. Creech, Ky., 245 S.W.2d 924; Hillrich & Bradsby Co. v. Parker, Ky., 267 S.W.2d 746; Busch v. Louisville Water Co., supra; and Kentucky Stone Co. v. Phillips, 294 Ky. 576, 172 S.W.2d 216.


text:
    Joseph F. ROBARDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      Neville M. Tucker, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, Edwin A. Schroering, Louisville, for ap-pellee.
   PALMORE, Judge.

The appellant, Joseph F. Robards, was tried, convicted and sentenced to 10 years’ imprisonment pursuant to an indictment charging him with pointing a pistol or some other object intended by him to simulate a pistol at one Emmet E. Vanata with the intent to rob him, in violation of KRS 433.150. He asserts two grounds for reversal :

1. That the instructions were prejudi-cially erroneous in permitting a conviction if he committed the alleged assault in a manner different from that stated in the indictment; and

2. That he should have had a directed verdict of acquittal because the evidence was not sufficient to support a conviction.

The indictment alleged that on or about September 4, 1964, in Jefferson County, Kentucky, Robards “pointed a pistol, or some other object intended by him to simulate a pistol, at Emmet E. Vanata intending to rob him,” etc.

Robards did not produce any evidence in defense. According to testimony introduced by the Commonwealth, at about 9 o’clock one morning while Vanata, a 68-year-old retired bus driver, was returning from a local bank to his place of employment as a deliveryman carrying in his hands a bundle containing $3,000 in $10 bills, Robards appeared from behind a telephone booth, walked up to Vanata “with his hand in his right hand pocket * * * Just like that (indicating with hand in pocket)” and said, “I’ll take that money,” whereupon Vanata simply handed it to him. Robards was quickly seized and subdued by others present and was found to be unarmed. In explanation of why he had given the money to Robards, Vanata said, “Well, for one thing I had been knocked in the head once and robbed of $3,700 up there by the bank and I was thinkin’ about that and after that first one my head was sore for a long time.” He said also that he believed at the time that Robards was armed.

The instruction claimed to have been erroneous was as follows (with emphasis added to indicate the portion in controversy) :

“If the jury believe from the evidence in this case, beyond a reasonable doubt, that in this County on or about the 4th day of September, 1964, and before the finding of the indictment herein, the defendant, Joe Fredericks Robards, without effecting a robbery, did, with a pistol or some object intending to simulate a pistol, unlawfully and maliciously assault Emmet E. Vanata, or by menace, or in any forcible and violent manner demanded any money from said Emmet E. Vana-ta, with the felonious intent then and there to rob the said Emmet E. Vanata, and did demand of said Emmet E. Vana-ta property of value, then the jury should find the defendant guilty of armed assault with the intent to rob, and fix his punishment at confinement in the penitentiary for not less than 10 years or for life, or by death, in your discretion.
“The jury is further instructed that, within the meaning of these instructions, it makes no difference whether or not the defendant, in fact, had an offensive weapon if, at the time he intended to convince the said Emmet E. Vanata and did so convince him that he had an offensive weapon.”

The crime denounced by KRS 433.-150 can be committed in two different ways, (1) by an assault with an offensive weapon or instrument with intent to rob, and (2) by a demand of money or property in a forcible and violent manner with intent to rob. Roberts v. Commonwealth, Ky., 339 S.W.2d 640, 642 (1960), citing Little v. Commonwealth, 246 Ky. 805, 56 S.W.2d 526 (1933).

In the Roberts case it was observed that if the evidence will sustain a finding of guilt on one of these two theories but not the other, so much of the indictment as charges a commission of the crime in the other manner is surplusage, and an instruction embracing both theories “may be prejudicial if it invites the possibility of conviction on a theory not sustained by the evidence.” 339 S.W.2d at 642 (emphasis added).

In the Little case the court expressed doubt as to the sufficiency of an indictment which charged neither (a) the use of an offensive weapon nor (b) the act of demanding money or property. To simplify the subject further, one may commit the offense by assaulting another with an offensive weapon [or simulated weapon, cf. Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965)], without a demand for money or property, or by demanding money or property in a forcible manner without the use of a weapon, provided in either case that he does so with the intent to rob. Obviously, therefore, although the offense may be committed in either of two ways, it may be committed in both ways at one and the same time, by the combined use of a weapon or simulated weapon and a demand for money or property. That is the situation in this case.

We are of the opinion that the evidence justified the jury’s finding that Robards committed the offense in either or both manners and that the court did not err in overruling the motion for a directed verdict of acquittal. It follows, of course, that the instruction permitting a conviction on either basis was supported by the evidence and could have been erroneous only on the theory that it did not follow the allegations of the indictment.

Robards puts much reliance on Fox v. Commonwealth, 309 Ky. 204, 217 S.W.2d 215 (1949), in which the indictment charged, as was then proper, voluntary manslaughter “by the reckless and grossly careless use of a pistol” and instructions authorizing conviction on the basis of an intentional killing in sudden affray or in sudden heat of passion were held prejudicially erroneous. Cited in support was Burris v. Commonwealth, 308 Ky. 145, 213 S.W. 2d 1014, 1015 (1948), in which it had been held that “the evidence and the instructions should have been limited to the theory of the case set forth in the indictment.”

The strict principle exemplified by the Fox and Burris opinions has necessarily been modified by the letter and spirit of the Rules of Criminal Procedure (effective January 1, 1963), which place more emphasis on fair notice and fair trial than upon rigid technicality. For example, an indictment may now be amended to conform to the evidence “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” RCr 6.16. And, as always, any “error, defect, irregularity or variance which does not affect substantial rights” will be disregarded as non-prejudicial and therefore harmless. RCr 9.24.

The record discloses that Robards had an examining trial and heard the evidence that was later adduced against him at the trial. He was not misled, surprised or thrown off guard except insofar as he chose to shoot the gap in reliance upon a mere technical defect of which he was fully aware. The indictment could and should have been amended at the conclusion of the testimony, but it cannot reasonably be held that a failure in that respect affected the defendant’s substantial rights.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY and STEIN-FELD, JJ., concur.

OSBORNE, J., concurs in the result.

      . See Stanley’s Instructions, §§ 815, 859, setting forth instructions embracing both theories.

      . The crime of “voluntary” manslaughter by reckless and wanton conduct was abolished by tbe 1962 amendment of KBS 435.022 (1962 e. 90).


author: MONTGOMERY, Judge.

text:
    Donald Lynn RUDD et al., Appellants, v. Wanda Mills RUDD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    Jerry W. Nall, Nall & Stephens, Owens-boro, for appellants.
    J. Quentin Wesley, Wathen & Wesley, Morganfield, for appellees.
   MONTGOMERY, Judge.

Donald Lynn Rudd, the husband, and Chester Rudd, his father, appeal from the judgment in a divorce action in which Wanda Mills Rudd was awarded the custody of Del Lynn Rudd, an infant boy, and J. Quentin Wesley, an attorney, was allowed a fee. Appellants urge that the mother was not a suitable person to have custody of the child and that two attorney fees should not have been allowed.

The father and mother of the child were married on August 18, 1962. Del Lynn was born March 6, 1963. The married life of his parents was not tranquil. They were separated three or four times before the divorce action was filed. The evidence indicates that the chancellor’s choice in placing custody was between an emotionally unstable father who beat his wife severely and who had no suitable place for the child and a mother whose conduct left much to be desired. The chancellor found that the wife had established a ground for divorce but had asked only for divorce from bed and board. An absolute divorce was granted to the husband on the ground of cruel and inhuman treatment, the chancellor having concluded that “there should be a clean break.”

Throughout the prolonged and bitter litigation there was trouble over the custody of the child. At one time neither parent had a satisfactory place in which to keep the child, and temporary custody was awarded to Chester Rudd, a grandfather. The evidence is in conflict and shows that the chancellor’s choice was limited to the lesser of two evils. Detailing the facts would serve no useful purpose. Appellants have not demonstrated that the chancellor was clearly erroneous. CR 52.01. Ingram v. Ingram, Ky., 385 S.W.2d 69. Nor has it been shown that there was an abuse of discretion by the chancellor. Newby v. Newby, Ky., 275 S.W.2d 779; Sexton v. Sexton, Ky., 391 S.W.2d 380.

It is contended that fees were allowed to two attorneys in violation of the rule that only one fee can be allowed. Hall v. Hall, Ky., 380 S.W.2d 231. The judgment appealed from provides for a payment of “the plaintiff’s attorney fee in the sum of $400.00.”

Appellants do not show to whom or when any other attorney fee was allowed. There is no merit in this contention.

Judgment affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Morgan BROTHERS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Perry R. White, Jr., Ky. Highway Department, Frankfort, for appellant.
    H.M. Grigsby, Springfield, for appellees.
   MILLIKEN, Judge.

This is a condemnation case involving the property of Morgan Brothers and Lula Kate Brothers, his wife, for the construction of the Bluegrass Parkway through Washington County.

The property, as it existed before the new road, consisted of a twenty-acre farm located on a gravel road. The terrain of the land was gently rolling to very steep and most of the property was cleared land at the time of the taking. Also on the land was an eight room house, approximately twenty years old, a 30,000 cubic foot barn, a meat house, concrete block garage and a stripping room — all in good condition.

All buildings were deemed taken except the tobacco barn and stripping room which were not located on the 7.7 acres of land acquired. The acreage taken came from the middle of the farm leaving 5.89 acres on one side and 6.41 acres on the other which resulted in two severed tracts joined by a newly constructed blacktopped road which crossed the toll road by way of a new bridge that was part of the parkway project. The tobacco base of 1.26 acres remained the same except for routine reduction by the A. S. C. office. Three men appraised the property. Two of the appraisers were life-long residents of the area, familiar with local land values, who appraised it on behalf of the appellee and found a loss of $13,000.00. The third appraiser was a Highway Department employee who regularly does this kind of work for the Department and who determined that the loss was $7,000.00. The jury’s verdict of $11,000. in favor of the landowner exceeded by $4,000.00 what the State thought the recovery should have been.

The Department’s more persuasive contention is that the trial court erred in permitting the appellees to introduce testimony and argument to the effect that Morgan Brothers was in the hospital, “flat on his back with T. B.”; that the five young children sitting on the bench in front of the jury were Brothers’ children; and that because of this condemnation action, the landowner was a “displaced person”. In his argument counsel for appellees made much of the fact that because of the toll road displacement, Mrs. Brothers could no longer walk to the nearby community of Fairview and, because of her inability to drive an automobile, was thereby inconvenienced.

When appellees’ counsel elicited from Lula Brothers on the witness stand that her husband, Morgan, was a patient at Hazelwood Sanitarium suffering from tuberculosis, the Department moved that the swearing of the jury be set aside because the injection of such irrelevant testimony would prevent the Department from getting a fair trial. Appellees’ counsel justified his question on the ground that the jury was entitled to know why his client was not in court, promising, “I’m through with that line of questioning.” The trial court denied the motion to set aside the swearing of the jury saying, “I think the jury is entitled to know why the defendant is not here today.”

The Department contends that all of this had nothing to do with the main issue of the trial, which was to ascertain the fair market value of the property taken. It is also urged that the cumulative effect of this argument prevented a just verdict, that it prejudiced the minds of the jurors against the Department and that the trial court, by not sustaining the Department’s objections to such argument, led the jury to believe that it was proper to consider such facts in arriving at a verdict. It is the consensus of this court that the argument was prejudicial, because it was obvious that the testimony elicited from Lula Brothers, which perhaps justifiably explained the absence of her husband from the courtroom, was used in the argument for an entirely different purpose — to elicit a generous verdict from the jury. We appreciate counsel’s predicament in not having his principal client in court for consultation and his desire to compensate for that lack, but we nevertheless conclude that the impact on the jury by dwelling on that factor in the circumstances of this case was prejudicial.

The judgment is reversed.

WILLIAMS, C. J., and HILL, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., dissents.


text:
    Grace Rambo CARTWRIGHT, Appellant, v. Robert Louis CARTWRIGHT, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    William A. Young, Frankfort, for appellant.
    No appearance for appellee.
   OSBORNE, Judge.

This is an action for divorce wherein the only controversy is the amount of alimony. Appellant and appellee were married in 1946 and have more or less lived together since that time. Both parties have been employed. The judgment here appealed from granted appellant a divorce, restored each party to his individual property, awarded appellant an automobile, household furniture and alimony in a lump sum in the amount of $1500.

Appellee has not filed a brief with this court. RCA 1.260 provides, “for penalties where a party fails to file a brief.” In the case of the appellee the rule provides: The court may,

“1. Accept the appellant’s statement of the facts and issues as correct; or
“2. reverse the judgment if appellant’s brief reasonably appears to sustain such action; or
“3. regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

Appellant contends that the award of alimony as provided in the judgment is not adequate. We are of the opinion appellant’s brief reasonably appears to sustain her contention. Therefore, this action is remanded to the circuit court with directions to increase the alimony award by $2000.00, making a total of $3500.00.

The judgment is reversed.

All concur.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Delbert BURCHETT et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Perry R. White, Jr., Dept, of Highways, Frankfort, for appellant.
    John A. Keck, Grayson, John W. McKenzie, Ashland, H. R. Wilhoit, Jr., Gray-son, for appellees.
   DAVIS, Commissioner.

The Department of Highways of the Commonwealth of Kentucky sued appellees, Delbert Burchett and George Easterling, alleging that Burchett’s truck operated by Easterling collided with and substantially destroyed a bridge on Kentucky Highway No. 1 in- Carter County. At the conclusion of the evidence offered by the Department, the trial court directed a verdict for the appellee-defendants. This appeal challenges the propriety of the judgment entered pursuant to the directed verdict.

The evidence disclosed that a 1953 Chevrolet tandem truck, partially loaded with gravel, came into collision with the bridge in question, causing the bridge to collapse. The Department offered evidence that the damages amounted to more than $7,500.00.

The Department called as witnesses the appellees, Burchett and Easterling. East-erling testified that he was operating the truck at a reasonable speed when he entered upon the bridge, and that just after the vehicle got on to the bridge, a blowout occurred in the left front tire causing him to lose control of the truck. It was this unexpected incident which brought about the collision and consequent damage according to the evidence of Easterling. There was no substantial showing that Easterling or Burchett had made any inspection of the tires, and there was evidence reflecting that appellee Burchett usually equipped his vehicles with used tires. A state trooper who investigated the incident deposed that the right front tire was flat rather than the left one as related by Easterling. The trial occurred some five or more years after the accident, and the witnesses were not able to recall with certainty some of the details of the physical facts.

The Department contends that the doctrine of res ipsa loquitur is applicable and that the trial court erred in accepting the exculpatory version related by the ap-pellees.

Our opinions have dealt with the res ipsa loquitur doctrine and have achieved comparative unanimity insofar as recognizing the principles upon which the doctrine rests. There has not been unanimity in the results of the various cases in which the doctrine has been at issue, but the divergence is based upon different factual situations obtaining in the various cases.

In Thompson v. Kost, 298 Ky. 32, 181 S.W.2d 445, we dealt with the doctrine of res ipsa loquitur in a situation involving a blowout of a tire. In Thompson the trial court had directed a verdict for the plaintiffs who were passengers in the wrecked automobile. This was held to be error, and the case was remanded to the circuit court for submission to a jury, it being observed by the court that neither the plaintiffs nor the defendant should be awarded a directed verdict.

Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432, 16 A.L.R.2d 974, is a leading case discussing the res ipsa loquitur doctrine. In Lewis, as in many of the decisions, it is recognized that there are three essential elements for the invocation of the res ipsa loquitur doctrine:

“There are three essential elements: (1) the instrumentality must be under the control or management of the defendant, (2) the circumstances, according to common knowledge and experience, must create a clear inference that the accident would not have happened if the defendant had not been negligent, and (3) the plaintiff’s injury must have resulted from the accident.” Id. 228 S.W.2d 433-434.

In Lewis we discussed whether the explanation offered by the defendant was sufficient to destroy the “continuing force” of the presumption or inference of negligence created by the happening of the event. The problem was discussed in depth in Lewis, and it was there explained that in some instances the facts warrant a directed verdict for the defendant but that these are “exceptional cases”:

“It is true there are exceptional cases where the defendant’s evidence so clearly establishes the absence of negligence that a directed verdict in his favor may be proper. This rule is applicable when it is shown that an efficient, independent, intervening cause initiated the chain of events.” Id. 228 S.W.2d 435.

The same general conclusions were recognized in Crawford v. Alexander, Ky., 259 S.W.2d 476, in which we said of the quantum of proof required to entitle the defendant to a directed verdict:

“It is only when there is no evidence rebutting the justifiable inference of the fact of negligence or when that which is introduced is of such character and force as to completely overcome and leave no reasonable presumption or inference whatever. The evidence must be of a conclusive character, undisputed and uncontradicted or show physical circumstances which reduce the situation almost to a certitude.” Id. 259 S.W.2d 478.

In Cox v. Wilson, Ky., 267 S.W.2d 83, 44 A.L.R.2d 830, we upheld a directed verdict for the defendant in a tire blowout case. In Cox there was uncontradicted evidence of tire inspection and a complete absence of any factual background supporting an inference of negligence on the part of the defendant. In Cox we said that the “ * * * characteristics [of that case] are not those of a true res ipsa loquitur case, because it cannot accurately be said that ordinarily under similar conditions a tire will not blow out without negligence on the part of the operator of the car.” Id. 267 S.W.2d 85. The case at bar is distinguishable upon its facts from Cox v. Wilson, supra. Here we have no evidence of inspection, coupled with the use of second-hand tires. It was not conclusively demonstrated that a blowout occurred before the truck hit the bridge. The jury was not required to believe the explanation of Easterling, particularly in light of the contrariety of evidence as to which of the tires was flat.

A more recent discussion of the problem at hand insofar as it relates to rebuttal of an inference or presumption is found in Lee v. Tucker, Ky., 365 S.W.2d 849, in which we expressed the principle thus:

“Whether res ipsa loquitur amounts to a rebuttable presumption or merely a permissible inference is a classic example of the problem. But whichever it may be, if when all the evidence on both sides has been heard reasonable men may differ on the conclusion to be drawn, the question should be for the jury; otherwise, the clear conclusion is a matter of law, one way or the other.” Id. 365 S.W.2d 851.

It is our view that men may reasonably differ on the conclusion to be drawn from the evidence in the case at bar. It follows, therefore, that neither the appellant nor the appellees were entitled to a directed verdict, and the court erred in directing the verdict for the appellees.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: CLAY, Commissioner.

text:
    Ed ANDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      Francis D. Burke, Burke & Justice, Pike-ville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   CLAY, Commissioner.

Appellant was convicted of possessing alcoholic beverages in local option territory. The only contention on appeal is that the affidavit supporting the search warrant was insufficient.

In part the affidavit read:

“ * * * On Friday May 20, 1966, affiant was informed by Willie Oney that on Friday May 20th 1966 at 4 PM he, Willie Oney, purchased one half pint of Old Crow 90 proof whiskey for $2.50 at the above described premises from a white woman and that alcoholic beverages are now stored on said premises in violation of Pike County’s local option laws now in effect.”

It is contended that since the premises searched, a filling station, were of a public character, the purchase from a person on those premises did not furnish reasonable grounds to believe that alcoholic beverages were kept there. However this purchase, coupled with the additional information that alcoholic beverages were stored there, furnished probable cause for believing that evidence material to the prosecution of the offense might be obtained by searching those premises. See Commonwealth for Use and Benefit of City of Paintsville v. Melvin, Ky., 256 S.W.2d 513, and Noce v. Commonwealth, Ky., 405 S.W.2d 738. The affidavit was sufficient.

If it were assumed the affidavit was insufficient, it is apparent from the record that appellant consented to the search.

The judgment is affirmed.

All concur.


text:
    Norman ADAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      H. K. Spear, Somerset, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   MILLIKEN, Judge.

Appellant, Norman Adams, was convicted in the Pulaski Circuit Court of storehouse breaking and sentenced to one year in jail.

Appellant and each of his two co-defendants admitted that at 1:30 a.m., November 4, 1966, they took a farm tractor and trailer and stole a load of corn from Bascom New-berry’s crib. The only defense presented by appellant was that he and his co-defendants did not break into the corncrib on November 4, 1966, as charged in the indictment, because when they got there the crib was open and all they had to do was throw the corn out into the trailer attached to the back of their tractor. Appellant claimed that the door had already been pried open and all the boys had to do was load the corn.

Appellant and his partners testified that they had not been in the corncrib before and had not taken any corn out of it on any previous occasion. The defendants then produced a witness who testified that seven or eight days prior to November 4, 1966, he happened to be trapping not over fifty yards from the Newberry corncrib and had observed a man driving away from it with a truck about half full of corn. The witness stated that he went up to the crib and found the main planks pulled off the door and corn scattered about on the ground. After appellant had testified that he had never before been to this corncrib or broken into it on any occasion prior to November 4, 1966, and after the defendant’s witness had established by his testimony that, in fact, there had been a previous break-in, Bascom Newberry took the stand again and testified on re-direct that when the boys came to him and admitted the theft of the corn November 4, 1966, they also admitted stealing corn from the crib approximately one week prior to November 4, 1966. This testimony of Newberry’s concerning the crime prior to November 4, 1966, is what appellant objects to and bases his appeal upon.

Appellant argues that this testimony is incompetent and prejudicial because it is not evidence showing his guilt of the particular offense charged. He cites Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, as authority for the principle that a man can be tried for only one offense at a time and evidence that the defendant is guilty of the commission of other crimes at other times, even though they are of the same nature, is not admissible for the purpose of showing the commission of the particular crime charged.

The Commonwealth argues that in this situation, it was appropriate and permissible for it to recall the witness Newberry to testify that, as a matter of fact, the defendants had admitted to him that they were the ones who also carried out the first breaking into and theft from his corncrib. The Commonwealth relies for its authority on Moore v. Commonwealth, Ky., 346 S.W.2d 39 (1961), in which the defense contended that it was some other person who had shot the first man as well as the second and to contradict this the Commonwealth produced the first victim who testified that the defendant was the man who had shot him. This evidence was ruled admissible on the question of identity. We think this testimony of New-berry’s was clearly admissible to refute the testimony of appellants to the effect that they had never broken into the corncrib. No other point was raised by the appellant in seeking reversal of the judgment.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    E. E. MUSGRAVE and Ballard Newsome, Appellants, v. CITY OF JENKINS, a Municipal Corporation and City of the Fourth Class et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.

      F. Byrd Hogg, Hogg & Cornett, Whites-burg, Richard Cooper, Reeves, Barret, Cooper & Ward, Hazard, for appellants.
    Harry M. Caudill, Whitesburg, for ap-pellees.
   WADDILL, Commissioner.

Upon this appeal E. E. Musgrave and Ballard Newsome contend the circuit court erred in dismissing their primary election contest instituted pursuant to KRS 122.020 for failure to state a claim.

Musgrave and Newsome were among nine candidates seeking nomination for the six positions of councilmen in the City of Jenkins at the May 23, 1967, primary election. Musgrave and Virgil Chavis received the same number of votes, each finishing sixth, while Newsome finished last.

In addition to setting forth the results of the election the petition stated that: the Board of Election Commissioners failed to instruct the precinct election officials in the operation of the voting machines as required by KRS 125.100; the voting machines were not adjusted to prevent non-city residents from voting in the city election; 76 named persons who were nonresidents of Jenkins voted in the city election and it is impossible to ascertain for whom they voted prior to the filing of this action.

The issues raised on this appeal are whether: Musgrave is a proper party to bring this action since he is not a defeated candidate; the petition is defective in that it does not allege fraud, intimidation, bribery or violence; the petition is sufficiently specific under KRS 122.020 and the number of ineligible voters is large enough to justify a trial of the case.

An election contest is usually instituted by a defeated candidate and some of our cases properly refer to the contestant as a “defeated candidate.” See Sparks v. Boggs, Ky., 339 S.W.2d 480; Judd v. Polk, 267 Ky. 408, 102 S.W.2d 325. The applicable statute contains no such requirement. It does provide that “any candidate for nomination to office” may contest the right of a “successful” candidate to the nomination. KRS 122.020. We think that the pro tanto “success” and “defeat” that exist in the tie situation herein presented are sufficient to warrant the institution of the action.

Where the contest of a primary election is premised on the ineligibility of voters (as it is here) it is not necessary to include a claim of fraud, intimidation, bribery or violence. Gregory v. Stubblefield, Ky., 316 S.W.2d 689. In the absence of such allegation the question of whether the entire city election should be voided is not presented. Napier v. Noplis, Ky., 318 S.W. 2d 875.

We have held that, where the eligibility of voters in a primary election is challenged, the petition must name the specific voters challenged, the facts which rendered them ineligible and, if possible, for whom they voted. Napier v. Noplis, supra. In the instant case the names of 76 voters whose eligibility is challenged are set out in the petition along with the averment that it is impossible for the contestants to determine how they voted. These averments, along with those showing why these persons were ineligible to vote, satisfy the requirement to state specific grounds. KRS 122.020.

Musgrave is tied with Chavis so any change of votes could decide their race. Hence, the number of the allegedly ineligible voters is sufficient to alter the election results as to Musgrave. Newsome is 104 votes short of obtaining the nomination. If all 76 votes in question were deducted from the total number received by any of the other candidates, it would not cause Newsome to be nominated.

The circuit court properly dismissed Newsome’s contest; nevertheless Mus-grave’s petition is sufficient to contest the councilmanic race on. the ground that 76 named voters were ineligible to vote. The eligibility of only the voters named in the petition and for whom they voted will be determined upon the trial. Hodges v. Hodges, Ky., 314 S.W.2d 208; Glenn v. Gnau, 251 Ky. 3, 64 S.W.2d 168. The votes of ineligible voters will then be eliminated.

The judgment is affirmed as to Newsome and is reversed as to Musgrave with directions to overrule the motion to dismiss Mus-grave’s contest.

All concur.


author: BELCHER, Judge.

text:
    Wayne Lamar BRUCE, Appellant, v. The STATE of Texas, Appellee.
    No. 40626.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Frank S. Wright, Henry J. Novak, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles P. Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The appellant was charged by indictment with felony theft. On motion of the state, the offense was reduced to misdemeanor theft.

The appellant entered a plea of guilty and waived his right to trial by jury. The trial court found the appellant guilty of misdemeanor theft and assessed his punishment at one year in jail.

The record reveals that the appellant was represented by counsel at the trial; that said counsel signed the motion for new trial, and was present when it was heard and overruled and notice of appeal given.

The appellant raises for the first time in his brief filed in the trial court, the question of whether he knowingly and intelligently waived his constitutional right of trial by jury.

No transcript of evidence accompanies the record.

The judgment recites, among other things, that the appellant “appeared in person and his counsel also being present * * * announced ready for trial, and the Defendant in person and in writing in open Court having waived his right of trial by jury * * * was duly arraigned and in open Court pleaded guilty * * * was admonished by the Court of the consequences of the said plea * * * persisted in entering said plea, and it plainly appearing to the Court that the defendant is same and that he is uninfluenced in making said plea * * * said plea was accepted by the Court ⅜ ⅜ ⅝

The sentence recites in part that the appellant appeared, “ * * * his counsel also being present * * * and he answered nothing in bar” of pronouncement of sentence.

When the jurisdiction of a district court is invoked by the return of an indictment charging a felony offense which includes a misdemeanor, and upon motion of the state the charge is reduced to a misdemeanor, the defendant may elect to waive a jury and plead guilty before the court. The jurisdiction of the district court, having attached by reason of the felony charge, the district court retains jurisdiction of the case to its final determination. 1 Branch 2d 313, Sec. 274; Hughes v. State, 68 Tex.Cr.R. 584, 152 S.W. 912; Mock v. State, 164 Tex.Cr.R. 335, 298 S.W.2d 583.

Upon a plea of guilty in a misdemeanor case the defendant may demand a jury or if he does not, the punishment may be assessed by the court, either upon or without evidence, at the discretion of the court. Art. 27.14 Vernon’s Ann.C.C.P.; White v. State, 154 Tex.Cr.R. 498, 228 S.W.2d 183; Mock v. State, supra; Carter v. State, Tex.Cr.App., 400 S.W.2d 571.

While the district court judge was free to follow misdemeanor procedure and compliance with Art. 1.13 V.A.C.C.P. regarding the waiver of a jury was not required after the offense was reduced to a misdemeanor, the better practice would be to follow the procedure required in felony cases (Art. 1.13 et seq. V.A.C.C.P.).

In light of the record, the ground urged for reversal does not present error.

All of the proceedings appear to be regular.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Robert D. TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 40701.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.

      Winthrop Seley, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Dick Clark, Asst. Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, six months in jail and a fine of $250.00.

This is a direct appeal from the order of the Court finding appellant guilty stating that no final judgment would be rendered thereon and that appellant would be placed on probation. Among the conditions of probation were “(10) Pay the sum of $50 of the fine imposed herein as follows: on or before November 1, 1968. (11) Make restitution to Charles M. Seymour at 3501 North 29th Street, Waco, Texas in the amount of $1,000.00 payable in weekly installments of $10.00 each, the first installment shall be due and payable on November 26, 1966 and subsequent installments shall be due and payable on each successive Saturday thereafter until the entire sum of $1,000.00 has been paid.”

The sole ground of error on appeal is the contention that the Court was without authority to impose condition No. 11 set forth above in that such condition was divesting accused of property without due process of law. Reference is made to the facts adduced at the hearing in which appellant plead guilty, which show that a party suffered damages in excess of $1,000.00.

Section 5(b) (3) of Article 42.13, Vernon’s Ann.C.C.P., provides as follows:

“[P]ay his fine, if the court so orders and, if one be assessed, in one or several sums, make restitution or reparation in any sum that the court shall determine not to exceed One Thousand Dollars ($1,000)”.

At the hearing appellant stated that he had talked with the Adult Probation Officer who had explained the terms and conditions of probation to him and that he felt he could abide by the same if he was granted probation.

We overrule appellant’s ground of error.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Lester B. DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 40652.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Rehearing Denied Jan. 3, 1967.

      E. C. Grindstaff, Ballinger, for appellant.
    Royal Hart, Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is the unlawful possession of heroin; the .punishment, 15 years.

Six grounds of error are set forth by appellant in his brief filed in the trial court.

Ground No. 1 relates to the testimony of Kenneth Decker, State Narcotics Agent, who testified to appellant’s possession and sale to him of the heroin introduced in evidence, wherein he testified:

“Q. On that occasion, the initial visit in another city, who brought up the subject, if any one, of heroin?
“A. He did.
“Q. Do you recall what words he used when he brought it up?
“A. Well, yes, sir. Of course we visted and after we introduced ourselves, well, he said, ‘I think I have seen you before,’ and I told him, ‘I believe I have seen you once before too,’ and after we talked a few minutes we discussed back several years before that I had met him in Coleman in ’55 or ’56, not sure what year it was, it was along about that time; and that was the initial conversation and how it began; and he said, ‘well, when you knew me then I was doing a little bootlegging.’
“MR GRINDSTAFF: We object to that, Your Honor, doesn’t appear in this case; it is another county, and we object to it as highly prejudicial.
“COURT: Overruled.
“MR. GRINDSTAFF: Exception.
“Q. Proceed with the conversation giving only what he said or what you heard in his presence, and try to use the actual conversation as much as you can?
“A. He said, ‘of course, the business I was in then, bootlegging, selling whiskey, but it is getting hard to make a living.’ He said ‘I found more money. If you are interested in making more money we can make a deal.’ Up to that time wasn’t anything said what it was.”

The objection quoted above was without merit and the trial judge did not err in overruling it.

Ground of Error No. 2 relates to the testimony of the State’s Witness Decker wherein he testified that not even a doctor can prescribe heroin in Texas.

The testimony was admitted without objection and we see no error.

Ground of Error No. 3 complains of the admission of testimony and Exhibits offered by the state at the jury hearing on punishment as evidence as to the prior criminal record of appellant.

The evidence was admissible under the provisions of Art. 37.07 Vernon’s Ann.C.C. P. and the objection that such evidence was highly prejudicial in the minds of the jury is without merit.

Ground of Error No. 4 complains of the overruling of appellant’s motion for new trial to which was attached the affidavit of the foreman of the jury to the effect that each juror wrote down the number of years the defendant should receive and the average came to a few months less than 14 years and “The end result was that one member moved that they assess a sentence of 15 years. This was unanimously approved.”

The ground of error is without merit for several reasons:

First, the record does not reflect that any evidence was offered in support of the amended motion for new trial. The affidavit not introduced in evidence was only a part of the pleading. Parker v. State, Tex.Cr.App., 372 S.W.2d 320; Shelton v. State, 155 Tex.Cr. 187, 233 S.W.2d 148; 41 Tex.Jur.2d 389.

Second, assuming that hearing had been held and the facts shown by the foreman’s affidavit were established by undisputed evidence, there is no showing that the jurors agreed to be bound by the result of each writing down the number of years and dividing by 12. Lamb v. State, 74 Tex.Cr.R. 301, 169 S.W. 1158; Phillips v. State, Tex.Cr.App., 216 S.W.2d 211.

To the contrary, the foreman’s affidavit reflects that the punishment agreed upon was different from the quotient. Harris v. State, 114 Tex.Cr.R. 647, 26 S.W.2d 225.

Ground of Error No. 5 relates to argument of state’s counsel on the question of probation.

We do not find in the record the argument of counsel at the hearing on punishment, or any bill of exception showing that the complained of remarks were made.

While we find no motion for probation filed before the trial began, as required by Art. 42.12, Sec. 3a, V.A.C.C.P., the question of whether probation should be recommended was submitted to the jury at the hearing on punishment as provided by said Art. 42.-12, Sec. 3a, V.A.C.C.P.

We further note that appellant’s ground of error recites that no objection was made at the time the complained of remarks were made. We see no error.

The remaining ground of error raises the contention that the State Narcotics Agent, Decker, was an accomplice whose testimony was not corroborated.

This contention is predicated upon the testimony of Narcotics Agent Rick Stayton who testified that in keeping with their plan, he arrested Agent Decker as well as appellant and took from Decker’s pocket the package of heroin introduced in evidence. Officer Stayton testified that he knew Decker was a Narcotics Agent and had been with him on the plan whereby Decker acted as undercover agent, and that after arresting him for selling narcotics, he returned the package of heroin to Agent Decker.

The question of whether Agent Decker was an accomplice witness or the question of entrapment was not submitted to the jury, and there was no objection to the charge or request for such a charge.

Under the record, Agent Decker is not shown by the evidence to have been an accomplice witness as a matter of law. Sutton v. State, 343 S.W.2d 452; Huerta v. State, Tex.Cr.App., 390 S.W.2d 770.

The judgment is affirmed.