text:
    Gene FLYNN, Appellant, v. James SONGER and David L. Van Horn, Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.

      George M. Combs, Lexington, for appellant.
    David L. Van Horn, A. Gene Oliver, Lexington, for appellees.
    Robert B. Hensley, Elizabethtown, State Bar Ass’n, N. Mitchell Meade, Lexington, Fayette County Bar Ass’n, amici curiae.
   PALMORE, Judge.

Gene P. Flynn brought this suit against James Songer and David Van Horn for compensatory and punitive damages based on allegations of malicious prosecution and abuse of process. He appeals from a judgment of dismissal entered on a jury verdict in favor of the defendants.

In November and December of 1961, when the events of legal significance in the case took place, Flynn was employed by a corporation, General Tire Service, Inc., as its credit manager. Songer was a truck driver for Vogue Rattan Manufacturing Company, and Van Horn was a practicing lawyer in Lexington. Several years before that tittle Songer, while in the employment of a sewing machine company, had bought some tires on credit from General Tire Service, Inc., and in 1961 the sum of $34.53 remained unpaid on the account. Flynn contacted Songer in an effort to collect this balance, but Songer claimed it was owed by his former employer, the sewing machine company, for whom the tires had been purchased, and referred the matter to his friend and attorney, Van Horn. Flynn advised Van Horn that if the account was not paid he would be forced to attach Songer’s wages, and on two occasions Van Horn told Flynn “not to garnishee his wages.”

On November 24,1961, acting in the name and behalf of his employer, the tire company, Flynn instituted a garnishment proceeding against Songer in a justice of the peace court. We continue the narrative in Van Horn’s words:

“Then in late November Jim [Songer] came in to see me and said ‘my wages have been garnisheed.’ I then asked him who garnisheed his wages and he replied that General Tire Corporation through Gene Flynn; that his employer had notified him that his wages were attached and that he stood to be fired unless he got it straightened out.
“Pie asked me what he could do and I told him that he could do one of two things, or he could do both. I stated that he could fight the attachment in court, have a hearing, or he could get a warrant for Gene Flynn for practicing law without a license. I advised him that Flynn was representing the General Tire Corporation and that it was my understanding under the law that a person who is not an attorney cannot represent a corporation, and the law so states that one cannot represent anyone else unless — the person can represent himself but he cannot represent anyone else in court, and that is the general feeling. * * * I say I gave him the advice and Jim obtained the warrant for the arrest of Gene Flynn for practicing law without a license, which we believe he was doing and which we still believe he was doing.”

A warrant for Flynn’s arrest was issued on November 30, 1961, pursuant to Songer’s affidavit before the issuing magistrate that on November 24, 1961, Flynn had committed the offense of practicing law without a license in violation of KRS 30.010 (the statute number having been provided to Songer by Van Horn). According to Songer’s testimony, this action was precipitated as follows:

“I went to see Mr. Van Horn and told him I was garnisheed over the incident I had talked to him about over the phone, and I had a copy of the paper they served on me and I gave it to him and I asked him advice on what to do, and he told me I could do one of two things, or both, fight the gar-nisheement [sic] in court or have the man arrested for practicing law without a license.
Q. “And what did you decide to do ? Both?
A. “Both.”

Flynn was arrested by a county policeman at his employer’s place of business in the afternoon of the day on which the warrant was issued. Between the time the warrant was issued (or, as to Van Horn, after he knew it had been or was about to be issued) and the time of arrest both Songer and Van Horn communicated with Flynn. Songer went to see him personally and Van Horn called him on the telephone. Songer testified, “I went out there purposely to see if we couldn’t do away with this thing without any trouble. I didn’t want any trouble. * * * Trouble both of us getting into a hassle over this, and everything.” Songer further said that he visited Flynn against Van Horn’s advice to the contrary, and he insisted that he did not intend or attempt to use a dismissal of the warrant to bargain for or coerce a dismissal of the garnishment proceeding. Nevertheless, he did admit that his purpose in procuring the arrest warrant was twofold, bringing Flynn to justice for violating the law and “fighting the garnisheement too.” He did not deny that during the conversation with Flynn on November 30 he informed Flynn of the arrest warrant.

Van Horn’s explanation of the object of his call to Flynn was not entirely clear. The respective accounts of this conversation as related by Flynn and Van Horn were quite different. According to Van Horn, however, “I called Mr. Flynn on the attachment; that he had filed an attachment against him and that he should release it or he should work out something, and I wanted to know why he had filed it.” Like Songer, Van Horn denied any intention, attempt or offer to have the warrant dropped.

By reason of Songer’s inability to appear in court on the day the prosecution against Flynn was set for trial, and on a later date to which the proceeding was continued, the warrant was dismissed, and this litigation ensued.

Motions for a directed verdict by each side were overruled, and the case was submitted to the jury under instructions based on the theories of both malicious prosecution and abuse of process. As it is our opinion that Flynn was entitled to a directed verdict on the issue of abuse of process, discussion of the malicious prosecution question would be unnecessary but for the fact that he failed to follow up his motion for a directed verdict with a motion for judgment n. o. v., and moved only for a new trial. Hence a new trial is all he can be granted on this appeal. Clay’s Kentucky Practice, CR 50.02, Comment 6; Highway Transport Company v. Daniel Baker Company, Ky., 398 S.W.2d 501 (rehearing denied February 11, 1966).

The absence of probable cause is an essential element of a cause of action for malicious prosecution. Prosser on Torts (3d ed.), § 113, p. 853; Bruce v. Scully, 162 Ky. 296, 172 S.W. 530, 532 (1915). It was Van Horn’s opinion, and he so advised Songer, that by instituting a lawsuit in behalf of his corporate employer Flynn had engaged in the practice of law. Flynn’s principal contention in this respect was that this action did not constitute practice of law.

Evidently it was the custom of the justice of peace in whose court Flynn initiated the proceeding against Songer to entertain oral pleading (a procedure formerly authorized by § 70S of the Civil Code of Practice but not permissible under the Rules of Civil Procedure, which superseded the Civil Code on July 1, 1953). In this instance the justice provided and filled out a form affidavit (cf. KRS 425.195) and bond (KRS 425.205) and Flynn signed them as “General Tire Service, by Gene P. Flynn,” following which the attachment order was issued.

“Natural persons may appear in court, either by themselves or by their attorney. * * * A corporation * * * can appear only by attorney, while a natural person may appear for himself.” Marshall, C. J., in Osborn v. Bank of the United States, 9 Wheat. (U.S.) 738, 6 L.Ed. 204, 226 (1824). “A corporation cannot practice law and must have a licensed attorney representing it in court matters. Tuttle v. Hi-Land Dairyman’s Association, 10 Utah 2d 195, 350 P.2d 616, 617 (1960).

It is not necessary that we decide in this case whether Flynn, by instituting litigation for his corporate employer, actually engaged in the practice of law. In view of the respectable authority to the effect that a corporation can engage in litigation only through a licensed practitioner, it is clear at least that Van Horn had probable cause to believe that in undertaking this function for his employer Flynn had wrongfully invaded the field of law practice. Our conclusion, therefore, is that the evidence was not sufficient to authorize an instruction permitting recovery against Van Horn for malicious prosecution.

With respect to Songer also the evidence did not justify an instruction authorizing recovery for malicious prosecution, because it is beyond cavil that he had acted on the advice of counsel after full disclosure of the material facts. Cf. Mayes v. Watt, Ky., 387 S.W.2d 872 (1964).

Measured against the requisites of a cause of action for abuse of process, the sufficiency of the evidence presents another question. “Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. * * * The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” Prosser on Torts (3d ed.), § 115, pp. 876-877.

It is true that both Songer and Van Horn denied any intent or attempt at coercion upon Flynn, but at the same time each of them admitted having communicated with him, on the day the warrant for his arrest was issued, in an effort to obtain a release or settlement of the attachment Flynn had caused to be levied on Songer’s wages. Considering these actions in the light of Van Horn’s own testimony that when Songer had asked him what he could do about the attachment he advised Songer “he could fight the attachment in court, have a hearing, or he could get a warrant for Gene Flynn for practicing law without a license,” and Songer’s admission that his purpose in procuring the warrant included “fighting the garnisheement,” it would transcend the uttermost bounds of reasonable credulity to believe that Songer and Van Horn did not expect and intend the pressure of the criminal process to perform a catalytic agency in persuading Flynn to release the attachment. It makes no difference whether they did or did not intend to withdraw the criminal charge, provisionally or otherwise. The gist of the tort is that they attempted to use it as a means to secure a collateral advantage.

We have a very natural reluctance to say that the case should not have been submitted to the jury, but the facts are simply too plain to hold otherwise with a straight face. If upon a retrial the evidence is substantially the same, Flynn will be entitled to a directed verdict on proper motion.

Though advice of counsel is a defense in an action for malicious prosecution, it is not so with respect to abuse of process. That is because advice of counsel really is a form of probable cause, and probable cause is not a defense to an action on abuse of process. Cf. Prosser on Torts (3d ed.), § 113, pp. 860, 861. However, insofar as Songer is concerned, evidenc" of his reliance on Van Horn’s advice is admissible in mitigation of damages. 1 Am.Jur.2d 268 (Abuse of Process, § 23).

In the course of presenting his case Flynn sought to introduce proof of another instance in which Van Horn and a man named Cupps were alleged to have caused an arrest warrant to be issued against one William T. Lewis for practicing law without a license. According to Lewis’s testimony given by avowal, he was assistant manager of a finance company and had attached Cupps’s wages in the same justice’s court and in the same manner as Flynn had attached Songer’s wages in this case. He said that Van Horn called him on the telephone, advised him of the warrant, and told him that unless he dropped the suit against Cupps he would be arrested within half an hour. Also by avowal, the clerk of the Fayette Quarterly Court testified that in November of 1961 a warrant was issued for the arrest of William Lewis on the basis of an affidavit of Clifford Cupps charging him with practicing law without a license, and that the warrant was dismissed on November 24, 1961, at the request of the prosecuting witness. The evidence having been rejected, Van Horn of course did not have occasion or opportunity to give his version of the matter.

It is our opinion that the evidence should have been admitted with an admonition that it be considered only for such bearing it may have on the question of what Van Horn’s motive and intentions were in connection with Flynn’s claim against Songer. It is well settled that similar contemporaneous transactions are admissible for that purpose. Head v. Oglesby, 175 Ky. 613, 194 S.W. 793, 797 (1917); National Council of the Knights, etc. v. Rowell, 276 Ky. 335, 123 S.W.2d 1041, 1044 (1938).

Upon another trial, evidence of threats and hostilities between the lawyers subsequent to the legally operative events of this case should be excluded.

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


source: Caselaw Access Project

author: STEAKLEY, Justice. SMITH, Justice

license: Public Domain

text:
    Joseph J. BUKOVICH, Petitioner, v. Sally A. BUKOVICH, Respondent.
    No. A-10881.
    Supreme Court of Texas.
    Jan. 12, 1966.
    Rehearing Denied Feb. 23, 1966.
    Neal, Hazlewood & Wolfram, Amarillo, for petitioner.
    Clayton, Kolander, Moser & Templeton, Amarillo, for respondent.
   STEAKLEY, Justice.

This case presents questions for decision in the unfortunate situation when natural parents are involved in child custody. litigation. Petitioner, the father, and Respondent, the mother, were divorced in Porter County, Indiana, in June of 1962. At the time, Mark Lawrence Bukovich, their only child, was less than two years of age. The mother was awarded custody of Mark, with the provision that she not leave the state. Her custody rights appear to have been reaffirmed by the Indiana court on subsequent occasions. In a still later proceeding instituted by the father for a change of custody, the Indiana court entered an order dated December 2, 1963, reciting Respondent to -be in default, although duly notified, finding her in contempt of court, finding that she “is not a fit and proper person to have custody * * * ” and ordering that custody of the child be “changed and granted” to the father. The mother and child left Indiana before this decree could be executed and were later located by the father in Amarillo, Texas. The father under date of January 10, 1964, filed a petition in the 108th District Court of Potter County, Texas, for a writ of habeas corpus to obtain possession of the child pursuant to the Indiana decree. The case was transferred to the Court of Domestic Relations of Potter County. The mother answered and alleged there had been a change of conditions since December 2, 1963, of sufficient nature to warrant a reaward of custody to her. Trial was to a jury, with the mother assuming the burden of establishing a material change of conditions since the Indiana decree, and that an award of custody to her would be for the best interest of the child. The jury found that such a material change of conditions had occurred that the best interest of the child required a change of custody to the mother. The judgment of the trial court based thereon was affirmed by the Court of Civil Appeals. 391 S.W.2d 189. We granted Petitioner’s application for writ of error upon points of error asserting, in effect, that there was no evidence to support the jury finding of a change of conditions, and that the Court of Civil Appeals erred in not giving full faith and credit to the Indiana decree. We are of the view that a material change of conditions was not shown and therefore reverse the judgments below.

The courts of Texas will give full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of proof of a subsequent material change of conditions. Short v. Short, 163 Tex. 287, 354 S.W.2d 933; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293. However, proof of a material change of conditions since the decree of the sister state will support a change of custody if such would be for the best interest of the child. Cf. Short v. Short, supra; People of the State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1948); see Stumberg, Principles of Conflicts of Law, 3d ed., pp. 319-326 (1963). A change of conditions being shown, the question becomes whether or not a change of custody is warranted, and this is a question within the discretion of the trial court whose action will not be disturbed in the absence of an abuse of discretion. Cf. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. At the time it is entered, a custody judgment is res judicata of the question of the best interest of the child. Taylor v. Meek, supra. The fact that the technical legal domicile of the child may be in another state does not preclude child custody jurisdiction in our courts. Wicks v. Cox, supra; Campbell v. Stover, 101 Tex 82, 104 S.W. 1047.

The initial question, then, is whether a material change of conditions was shown to have occurred between December 2, 1963, the date of the Indiana decree, and the instant proceedings which were filed on January 10, 1964. The controlling considerations are those changes of conditions affecting the welfare of the child. The desires, acts and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child. See Goldsmith v. Salkey, supra; Shippen v. Bailey, 303 Ky. 10, 196 S.W.2d 425 (1946) ; McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396 (1945). All that is shown here in the nature of a change of conditions since the decree of the Indiana court relates to the prospective improvement in the circumstances of Respondent. The evidence offered by her was, in substance, that she would have an opportunity for employment in a bank in Oak Lawn, Illinois, and that she would be a guest in the home of responsible friends until arrangements could be made for her own living quarters. This evidence will not support the finding of a material change of conditions since the Indiana decree, from which it follows that the change of custody order of the trial court cannot stand. The Indiana court is open to Respondent if she desires to seek a review of the presently effective custody order. She testified that if she were awarded custody of the child by the Texas courts she would immediately proceed with the child to Oak Lawn, Illinois. We do not know if she has done this; but if so, Oak Lawn is across the boundary from the Indiana county of the court entering the custody decree here involved, and it is the order of that court which Respondent previously disobeyed in removing the child from its jurisdiction. Notwithstanding the views of the courts below that it would be better for the child to remain with his mother rather than be placed in the home of his paternal grandparents in the custody of his father, and even if such were our view, the Indiana court has decreed otherwise in what we must assume was competent litigation. The facts here shown do not make the exceptional case which is prerequisite to an exercise of jurisdiction by the courts of Texas to the extent of a new and independent determination of child custody rights.

The judgments of the trial court and of the Court of Civil Appeals are reversed and judgment is here rendered that custody of Mark Lawrence Bukovich be awarded to and vested in Joseph J. Bukovich in accordance with the decree of the Porter Circuit Court of the State of Indiana, dated December 2, 1963, in cause No. 18559, entitled Sally A. Bukovich v. Joseph J. Bukovich. It is further ordered that the Judge of the Court of Domestic Relations of Potter County, Texas, issue a warrant to the Sheriff of Potter County, Texas, to take and bring said child, Mark Lawrence Bu-kovich, should he be found within the state, before said Judge to be placed by his order in the custody of Petitioner.

ON MOTION FOR REHEARING

SMITH, Justice

(concurring).

I concur in the result. There is no evidence of change of conditions in the circumstances of the father, the custodian parent. Therefore, the custody should not be changed. Even though there is substantial evidence showing changed conditions for the better in the circumstances of the non-custodian parent, such changed conditions would not warrant a holding that it would be to the best interest of the child to change the custody, where, as here, the custodian parent is a suitable and proper person to have the care and custody of the child. The prospective improvement in the conditions of the non-custodian parent should have no material bearing on the question of custody unless it is made clear by the terms of the original judgment that custody was denied the non-custodian parent because of some temporary disability, and then only upon a showing that such disability no longer exists.


author: NORVELL, Justice. WALKER, Justice GREENHILL, Justice CALVERT, Justice

text:
    Mary A. WATKINS, Petitioner, v. SOUTHCREST BAPTIST CHURCH, Respondent.
    No. A-10633.
    Supreme Court of Texas.
    Jan. 5, 1966.
    Rehearing Denied March 9, 1966.

      A. W. Salyars, Lubbock, for petitioner.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for respondent.
   NORVELL, Justice.

Mary A. Watkins slipped and fell on the floor of the Southcrest Baptist Church of Lubbock, Texas. She brought suit for approximately $60,000 for her injuries, alleging that the church was negligent in permitting its floor to be in a slick and dangerous condition; or in failing to remove from the floor some slippery substance. The church filed a motion for summary judgment to which was attached a copy of its corporate charter. The charter shows that the church was incorporated for the support of public worship. It has no capital stock, and it is provided that no dividend should ever be paid. No answer was filed to the motion for summary judgment. Through a request for admissions, the plaintiff established that she did fall in the church, that the church building was operated by the church, and that she was among those invited to enter the church. It was stipulated that the church had a policy of liability insurance, but the amount of the coverage and the provisions of the policy are not shown. The stipulation contains a provision that the church took the position that the question of insurance coverage was immaterial and that the stipulation was made solely in connection with the motion for summary judgment. The trial court granted the church’s motion for summary judgment relying primarily upon Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749 (1943). See Tex.Civ. App., 385 S.W.2d 723.

The law of charitable immunity in Texas generally was set forth in the Clayton opinion as follows:

“It seems definitely established in this state that a charity corporation is liable to an employee for injuries proximately caused by the negligence of its officers, vice principals or agents. Armendarez v. Hotel Dieu, Tex.Civ.App., 145 S.W. 1030; Hotel Dieu v. Armendariz, Tex.Civ.App., 167 S.W. 181; Id., Tex.Com.App., 210 S.W. 518. On the other hand, it is equally well settled that it is not liable for such injuries to beneficiaries of the charity, provided it is not negligent in hiring or keeping the agent whose negligence proxi'mately causes the injuries. The principle has been applied in several cases where injuries were received by patients in charity hospitals because of the alleged negligence of nurses. See St. Paul’s Sanitarium v. Williamson, Tex.Civ.App., 164 S.W. 36, error refused; Barnes v. Providence Sanitarium, Tex.Civ.App., 229 S.W. 588, error dismissed; Baylor University v. Boyd, Tex.Civ.App., 18 S.W.2d 700; Enell et al. v. Baptist Hospital, Tex.Civ.App., 45 S.W.2d 395, error refused; Steele v. St. Joseph’s Hospital, Tex.Civ.App., 60 S.W.2d 1083, error refused.”

As to the rule relating specifically to invitees, this Court said:

“We must agree, therefore, with the holding of the Supreme Court of South Carolina in the Vermillion case, supra (Vermillion v. Woman’s College of Due West, 104 S.C. 197, 88 S.E. 649), that no liability exists. As said in that case, ‘This rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It is merely an exception to the rule of re-spondeat superior, which is itself based on reasons of public policy.’”

The allegations of negligent acts' or omissions are of a nature which cannot be attributed to the church itself or to a vice principal. Obviously, the failure to keep the floor clean and clear of substances which would render it slick and dangerous is an act or omission attributable to the servants and employees of the church. Under the rule of the Clayton case, the doctrine of respondeat superior is not applicable.

The primary thrust of petitioner’s argument here is that Southern Methodist University v. Clayton and other decisions of this Court of like import should be overruled. She relies primarily upon the landmark opinion rendered by Mr. Justice Rutledge in the Georgetown College case. See also, annotation, “Immunity of Nongovernmental Charity from Liability for Damages in Tort”, 25 A.L.R.2d 29. See also, Later Cases for 19-31 A.L.R.2d, Vol. 3, 1965.

In Clayton, the Georgetown College case was considered and said to contain an excellent review of the various holdings made by the courts of the American and English jurisdictions with regard to the question of charitable immunity. It is pointed out by the' Court of Civil Appeals in its opinion that while this Court took note of the Georgetown College opinion, it did not choose to follow it. In fact, the rule of charitable immunity may be said to have been extended by Clayton so as to embrace strangers to the charity as well as beneficiaries.

The principle of vicarious liability based upon the rule of respondeat superior is essentially a public policy doctrine. Me-chera, Outlines of Agency, § 351. Courts have applied the rule to certain factual situations and refused to apply it to others. When the application of the doctrine has been determined by court decisions, a change in application may be judicially effected. The situation is not the same as a judicial repeal of a statute for example. However, there is a case for a legislative rather than a judicial change of court created policy rules. Statutes effecting policy changes operate prospectively and are generally adopted following a period of deliberation accompanied by a sufficient and practical notice to all those who might be affected thereby. In fixing classifications of charitable institutions (for example) such as churches, hospitals, schools, etc. and prescribing limits of liability, the legislative power is much more flexible and amenable to particular needs and detailed require-merits than is the judicial process. It is unnecessary for us to repeat here the numerous arguments that have been advanced on both sides of the subject. Since the decision in the Clayton case, the courts of Texas have recognized the rule set forth therein as being the settled law of this State so far as charitable immunity is concerned. By way of example, the Galveston Court of Civil Appeals in 1944 followed the doctrine of charitable immunity laid down in the Clayton case in Scott v. Wm. M. Rice Institute, 178 S.W.2d 156, and this Court refused application for writ of error. Also, since the Clayton decision, this Court has refused applications for writ of error, n. r. e., in the following cases decided by the Courts of Civil Appeals of this State, all of which followed the Clayton case and its holding upon the question of charitable immunity : Baptist Memorial Hospital v. Marrable, 244 S.W.2d 567 (1951); Felan v. Lucey, 259 S.W.2d 302 (1953) ; Baptist Memorial Hospital v. McTighe, 303 S.W.2d 446 (1957); Penaloza v. Baptist Memorial Hospital, 304 S.W.2d 203 (1957) ; Sandone v. Dallas Osteopathic Hospital, 331 S.W.2d 476 (1960) ; Davidson v. Methodist Hospital of Dallas, 348 S.W.2d 400 (1961); and Goelz v. J. K. & Susie L. Wadley Research Institute and Blood Bank, 350 S.W.2d 573 (1962).

It would seem that Texas charities including churches, missions, hospitals, the Salvation Army and other similar organizations should be entitled to rely upon the decision of this Court in Southern Methodist University v. Clayton and the cases following such decision. Such institutions may have, with justification, made or refrained from making, plans in the light of the holdings herein mentioned. That group includes the governing board of the Baptist church here involved. We therefore hold that the church was not liable for petitioner’s injuries.

. Petitioner also urges that as the Southcrest Baptist Church had procured a policy of liability insurance, it had thereby waived its charitable immunity to the extent of the amount of damages provided for in the contract of insurance. As heretofore mentioned, the extent of the insurance coverage and provisions of the policy are not disclosed by the record. Apparently the policy was an indemnity contract written on a form prescribed by the State Board of Insurance. In Texas, as pointed out in the cases above referred to, while churches or other charitable institutions are not liable for the acts or omissions of their servants under the doctrine of respondeat superior, they are not absolutely immune from tort liability. The procuring of an indemnity insurance policy is not a mere empty gesture. On the record before us, we may as well-assume that the premium rates on indemnity policies issued to charitable institutions are based upon their limited tort liability as to presume the contrary. However, the all important factor is that the procuring of indemnity insurance cannot create liability where none exists in the absence of such insurance. We do not have a case here wherein an insurance company has contractually rendered itself directly liable to one who suffered injury, regardless of whether or not the charitable institution is liable for such injury under the law.

We note that most jurisdictions have refused to recognize an exception to the immunity doctrine based upon the existence of liability coverage. Annotation, 25 A.L.R. 29, at 139, § 37 (1952); 15 Am. Jur.2d 165, Charities § 154 (1964). This Court by refusal of a writ of error approved the holding that the purchase of insurance under legislative sanction by a state agency to protect state officers and employees from liability growing out of the use of vehicles did not constitute the waiver of governmental immunity. Texas Prison Board v. Cabeen, 159 S.W.2d 523 (Tex.Civ.App.1942). In Baptist Memorial Hospital v. McTighe, 303 S.W.2d 446 (Tex.Civ.App.1957, ref. n. r. e.), there was evidence that the hospital involved had a policy of indemnity insurance. The court held however that the case was nevertheless ruled by the Clayton decision. See Annotation, Municipal Immunity — Insurance, 68 A.L.R.2d 1437 (1959). We overrule petitioner’s contention that by procuring indemnity insurance the church waived its charitable immunity.

The judgments of the lower courts are affirmed.

WALKER, Justice

(concurring).

I concur in the judgment of affirmance in this case, but would announce now that the doctrine of charitable immunity will not be recognized in cases hereafter arising.

GREENHILL, Justice

(concurring).

The Court has correctly stated that in the past the law of this state has been that in the usual case, charitable institutions have enjoyed an immunity from tort liability. It has been also held that the presence or absence of indemnity insurance does not change the rule. Hence these institutions, with justification, have been entitled to rely upon these holdings, and they may or may not have protected themselves with insurance coverage. I therefore concur in the Court’s decision adhering to the precedent which has been set in the past. When problems regarding title to land or contracts, or the necessity for contracts, are involved, precedent is necessarily a highly important factor. Hardware Dealers Mut. Ins. Co. v. Berglund (Tex.Sup.1965), 393 S.W.2d 309 at 315. This is not to say that a precedent involving liability or contract should never be summarily overruled. But where the matter involved is of the great magnitude as is charitable immunity, it seems to me to be proper to give some warning that the precedent may be reconsidered.

I am impressed with the arguments made that the doctrine of charitable immunities may now be unsound in the light of current conditions, particularly as to some “charities” which now enjoy immunity. Some “charities” are now large business institutions which make substantial charges for their services. It is difficult, for example, to consider a person who pays $20 to $50 per day for a hospital room to be the object of charity and entitled to no protection from negligent acts of the employees of the hospital. Many forceful and persuasive opinions have been written to the effect that the entire doctrine is outmoded or should be modified, generally beginning with President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C., 123, 130 F.2d 810 (1942), by Justice Rutledge. Some twenty-four states have now rejected the doctrine of charitable tort immunity. The doctrine had its inception in early English cases which have long since been overruled.

So while I am of the opinion that the Court has correctly decided this case, I believe that the Court should declare that particularly in cases arising after this case becomes final, it would feel free to re-examine the doctrine. While I ordinarily honor without further question the holdings of the Court, it seems to me that this question is of such great importance that the question should he re-examined. So for whatever it may be worth, and so that people and institutions may be appraised of .the situation, this caveat is here noted.

This procedure was suggested by Cardozo in an address to the New York Bar Association in January 1932 as reported in Levy, Realistic Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1 at 13 (1960), and also by Robert E. Keeton, Creative Continuity in the Law of Torts, 75 Harv.L. Rev. 463 at 490 (1962). A similar caveat was used by the Supreme Court of Arkansas in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 at 977 (1952). This procedure does not go nearly so far as the “Sunburst” doctrine of adhering to precedent for the particular case but dogmatically announcing that the rule will be different hereafter, and stating what the new holding shall be. Great Northern Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), written by Cardozo. Several states including Illinois, Michigan and Wisconsin have rejected the immunity doctrine under the “Sunburst” doctrine. See Keeton, supra, at page 490 for a list of the cases. See also Note, Charitable Immunity — Contracts, Torts, Rule of Property and Prospective Overruling, 16 Ark.L.Rev. 289 (1962), and Note, 60 Harv.L.Rev. 437 (1947). In Spanel v. Mounds View School District, 264 Minn, 279, 118 N.W.2d 795 (1962), the Minnesota Supreme Court prospectively overrule the immunity of school districts, municipal corporations, and other subdivisions of government whose immunity had been conferred by judicial decision, effective after the adjournment of the next Minnesota legislature. The court in that case pointed out that it had, in a previous opinion, expressed dissatisfaction with the doctrine, had called the matter to the attention of the legislature, and the legislature had wholly ignored the problem. Thus the court, in its former opinion, had given a warning that it felt free to re-examine the doctrine of immunity to school districts and other governmental subdivisions. These cases are not cited as a precedent for what should or should not be ultimately held, but as a precedent for the procedure which should be followed here.

STEAKLEY, J., joined in the concurring opinion.

CALVERT, Justice

(dissenting).

The doctrine of charitable immunity is a court-made doctrine. I would abolish it outright, preferably instanter, without distinction as to the nature or character of the various charitable organizations. I would agree to abolish it prospectively so that liability would attach only in cases arising hereafter. Finally, if driven to it, I would abolish it effective upon adjournment of the Regular Session of the 60th Legislature in 1967, thus permitting the Legislature to act in the matter if it wished to do so.

Believing that the doctrine should be abolished here and now, I would reverse the judgments of the courts below and remand this cause to the trial court for trial on the merits.

Accordingly, I dissent.

SMITH, J., joins in this dissent.

      . President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (1942). While the reasoning set forth in the opinion has served as a basis for repudiating the charitable immunity doctrine in an number of jurisdictions which had therefore followed it, the opinion stated that the questions of charitable immunity was an open one in the District of Columbia.

      . There is an obvious distinction between a church on one hand and a hospital on the other. Churches are largely dependent upon volunteer help to carry on many of their functions. ■ Actually the church or its vice principals are not positioned to exercise an effective control over those who carry out the details incident to the major portion of the church’s works and ministry.

      . In a dissenting opinion filed in Richards v. Birmingham School District, 348 Mich. 490, 83 N.W.2d 643 (quoted in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1), it was said:
      “The clear-cut remedy to the problem of governmental immunity undoubtedly lies with State legislation of the nature and character of that adopted within recent years by the Federal government through congress. Court action to achieve the same goal by repudiation of this long-established common-law doctrine is hampered by unnumbered precedents and the doctrine of stare decisis. It cannot come as can legislative change after ample public discussion and with full warning to those bodies upon whom liability would be thrust to take such measures of an insurance nature as they might deem desirable.”

      .In Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961), the proposition that any change in the rule of governmental immunity (which in many respects is similar to the rule of charitable immunity) is a matter for the legislative branch of government, is strongly argued by Mr. Justice Carr (111 N.W.2d 1) while the opposite view is vigorously stated by Mr. Justice Edwards (now judge of the Sixth Circuit Court of Appeals) (111 N.W.2d 20). See also, Dalkowitz “Torts, Charitable Institutions, Liability of University for Negligence of Instructor”, 20 Texas L.Rev. 505; Uchiyama, “Corporations, Torts, Liability of Charitable Corporation for Torts of its Servants”, 22 Texas L.Rev. 500; Taylor, “Torts, Liability of a Charitable Organzation to a Paying Patient for Negligence of its Servants”, 32 Texas L.Rev. 476; McDonald, “Torts, Liability of Charitable Institutions”, 5 Baylor L.Rev. 199; Price “Tort Liability of Charitable Institutions — Proposed Legislation”, 7 Baylor L. Rev. 487; and Feather, “The Immunity of Charitable Institutions from Tort Liability”, 11 Baylor L.Rev. 86.

      . In addition to the cases mentioned above, the following Courts-of Civil Appeals’ decisions adhered to the rule of the Clayton case but no applications for writ of error to the Supreme Court were filed: J. Weingarten, Inc. v. Sanchez, 228 S.W.2d 303 (1950); Jones v. Baylor Hospital, 284 S.W.2d 929 (1955); and Yost v. Texas Christian University, 362 S.W.2d 338 (1962).
      An exception to the rule of charitable immunity was recognized in Medical and Surgical Memorial Hospital v. Cauthorn, 229 S.W.2d 932 (Tex.Civ.App.1950, n. r. e.). While the rule of the Clayton case was recognized, it was held that the negligence of the hospital in the selection and supplying of instrumentalities with which to treat its patients was of the same quality as negligence on the part of the hospital to exercise due care in the selection of its physicians, nurses and attendants. Similarly, in Sullivan v. City Sisters of St. Francis of Texas, 374 S.W.2d 294 (Tex.Civ.App.1963, no writ hist.), it was held that the charitable immunity doctrine does not protect a hospital from liability for injuries caused by administrative negligence on the part of the hospital as to its non-delegable duties. This was a case of a failure to select one properly qualified to perform the service of dispensing drugs.

      . The cases are collected and discussed in an annotation, 25 A.L.2d 29 (1952), and in Fisch, Charitable Liability for Tort, 10 Villanova L.Review 71 at 74 (1964). There are some later cases such as Flagiello v. Pennsylvania Hospital (1965), 417 Pa. 486, 208 A.2d 193, as to hospitals; and Adkins v. St. Francis Hospital of Charleston, W. Va. (W.Va.Sup.1965), 143 S.E.2d 154. The doctrine is widely criticized by writers. See, e.g., Prosser, Torts, 1019 et seq. (3d ed. 1964); and articles in 11 Baylor L.Rev. 86 (1959), 16 Southwestern L.J. 689 (1962), and 3 South Texas Law Journal 225 (1958). To the contrary, see Joachim, Why Abolish Stare Decisis?, 45 A.B.A.J. 822 (Aug.1959), discussing cases from states refusing to abrogate the doctrine.

      . Mersey Docks v. Gibbs, L.R. 1 H.L. 93 (1866); Foreman v. Mayor of Canterbury, 6 Q.B. 214 (1871); Gilbert v. Corp. of Trinity House, 17 Q.B. 795 (1886).


author: CALVERT, Chief Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Petitioner, v. John M. MORGAN, Respondent.
    No. A-10838.
    Supreme Court of Texas.
    Feb. 23, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, James S. Covington, Jr., Newton Gresham, Charles D. Boston, with above firm, Houston, for petitioner.
    Baggett, Kirk, Van Keuren & Baggett, Houston, for respondent.
   CALVERT, Chief Justice.

This is a Hurricane Carla case. Respondent, John M. Morgan, brought suit against petitioner, United States Fidelity & Guaranty Company, seeking a recovery on an insurance policy for damage to a cottage and to a warehouse and its contents. The trial court entered judgment for respondent upon a jury verdict and the Court of Civil Appeals has affirmed. 389 S.W.2d 516. We reform the judgments of the courts below and they are affirmed as reformed.

The insurance policy upon which suit was brought provided coverage for loss to the property directly resulting from windstorm or hurricane. However, Section III of the policy provided that the coverage was subject to the following condition:

“ * * * this Company shall not be liable * * * for loss caused by * * tidal wave, high water, or overflow, whether driven by wind or not; nor for any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable only for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such openings.”

The jury found in answer to special issues that the wind made openings in the walls and roofs of respondent’s cottage and warehouse before any water entered either, and that rain entering the buildings through the openings and the wind were the sole cause of the damage to the insured property. The parties stipulated that the damage sustained was $3,000.00 to the cottage, $2,250.00 to the warehouse and $1,250.00 to the contents of the warehouse.

Petitioner’s principal attack on the judgment is a “no evidence” attack. It is based on an assumption that the evidence establishes conclusively that some of the damage to the insured property was caused by high water and wave action. The thrust of the argument is that in this factual situation respondent had the burden, which he did not discharge, of segregating the damage caused by the insured perils from that caused by the uninsured or excluded perils.

If petitioner’s assumption has a sound evidentiary basis, petitioner is undoubtedly correct in asserting that the judgment must be reversed because of the absence of evidence to support the jury findings upon which it is based. See Hardware Dealers Mut. Ins. Co. v. Berglund, Tex.Sup., 393 S.W.2d 309 (1965); Paulson v. Fire Insurance Exchange, Tex.Sup., 393 S.W.2d 316 (1965) ; Coyle v. Palatine Ins. Co., Tex.Com.App., 222 S.W. 973 (1920). But in this case respondent has separate jury findings that the damage to each of the three items of insured property — the cottage, the warehouse and the contents of the warehouse — was solely caused by the insured perils; and since there is no suggestion that the damage was caused by a peril other than those insured or those excluded, the legal effect of the findings is that none of the damage to the three items of property was caused by the excluded perils. The question to be decided, then, is whether the evidence, viewed most favorably in support of the verdict, and the reasonable inferences therefrom, will support the jury’s findings that the damage to the three items of property was solely caused by the insured perils and that none of it was caused by the excluded perils of tidal wave, high water or overflow.

The insured property was situated on four acres of land owned by respondent and located approximately one-half mile northeast of the town of Channelview at Market Street Road and Old River Terrace. The warehouse was situated at the north edge of a body of water known as Old River, and the cottage was situated on much higher ground some one hundred feet north of the warehouse. The only damage of significance to either, according to the evidence, was structural; that is, there is no evidence of interior water damage to flooring, wallpaper or the like from rising water or from wind driven rain entering through openings in the roofs or walls made by the wind. With respect to the cottage and the warehouse, it is, therefore, only structural damage with which we are concerned, and we are concerned only with whether the damage was caused solely by the wind or in part by the force and wave action of the rising water.

The adverse and destructive weather conditions generated by Hurricane Carla along Texas coastal areas covered a period of four days, from September 9 through September 12, 1961. The wind as measured by the United States Weather Bureau at Galveston, the Bureau nearest the insured property, gradually increased in velocity from an early morning speed of IS miles per hour on the 9th to 80 miles per hour in mid-afternoon of the 11th, .gusting to 112 miles per hour on the 11th. It was from the northeast on the 9th and remained northeasterly until 10 o’clock p. m. on the 10th, by which time it had become easterly, and in its clockwise movement it became southeasterly in the late morning hours of the 11th. By 9 o’clock a. m. on the 10th it had reached a velocity of 47 miles per hour, gusting to 69 miles per hour. A meteorologist testified that a northeasterly wind would tend to counteract the tide and to pile it up in the west end of Old River or in San Jacinto Bay, away from the insured property. There is lay testimony indicating the presence of tornadoes in the general area, but there is no evidence of probative value that the damage to respondent’s property was caused by a tornado.

The ground level of respondent’s land is 33.5 feet above median sea level at its north boundary, 15.6 feet at the north wall of the cottage, 13.5 feet at the south wall of the cottage, and 3.2 feet at the water’s edge of Old River. The cottage was of frame construction with ordinary windows with wood frames, and with tongue and groove pine flooring. The flooring rested on 2x6 wood joists which rested on 4x4 sills, and the sills rested on stacked concrete blocks which rested, in turn, on 4 inch concrete bases. Because of the difference in ground level, the pier under the southwest corner of the cottage consisted of four stacked concrete blocks and the pier under the Southeast corner consisted of only three stacked blocks. There was no adhesive substance between the blocks. The floor level of the cottage was 17 feet above median sea level. The warehouse was constructed of corrugated sheet iron. It was 40 feet long, 8 feet high at the roof line and 13 feet high at the roof peak. The walls consisted of 8-foot strips of sheet iron nailed in vertical position to wood framework. It rested on piers which stood 11 feet above median sea level.

The maximum height of the water rising from Old River during the hurricane, as determined after the hurricane by the highest debris line, was 17.5 feet above median sea level, and thus was 6.5 feet above the top of the warehouse piers and .5 of a foot above the floor level of the cottage. It was 4 feet deep at the south wall of the cottage.

Respondent inspected his property on September 13th, the day after the hurricane ended. The warehouse was totally destroyed. Only one end of it remained at the site, lying against the piers. The rest of the metal was scattered over an adjoining area, some up to a distance of two or three hundred feet. The strips of corrugated iron had been stripped froom the nail heads, unbent. All but three of the piers under the cottage had fallen. Of the three standing, one was under the southwest comer, one was under the center and one was near the northeast corner. The southeast corner of the cottage, the corner nearest to the water, was down, and the northwest corner was raised up off the piers, “causing the structure to be arched over three piers across the center.” Water to a depth of four inches had entered the part of the house which was down, hut the rug in the north part was dry. The house was shoved against a cyclone fence and was “badly racked and warped”; the flooring was loose and part of it was gone; the west half of the south wall containing three windows and a door was completely gone, and the sash and the panes were out of three windows on the east half of the wall; the partitions were pulled loose from the floor joists and pushed out of place, and the center partition wall was pulled loose from the exterior wall. A tree only a few feet from the cottage was broken off about 8 or 9 feet above the ground, and other trees nearby were stripped of branches and foliage far above ground level.

Two witnesses testified that they visited the property adjoining respondent’s property at about 11 o’clock a. m. on the 10th. They saw that the rising water had at that time reached only to the top of the piers supporting the warehouse; that the roof was off the warehouse and was lying upside down on an adjoining lot; and that some of the sheet metal strips on the standing walls were loose and flapping in the wind.

We conclude that the evidence summarized furnishes a reasonable basis for the jury’s findings that the damage to the warehouse and cottage was solely caused by the wind. The evidence of that ultimate fact is largely circumstantial. It may be that a permissible inference that some of the damage was caused by the force and wave action of the rising water could have been drawn by the jury from the evidence, but we cannot say that the inference that all of the damage was caused by the wind was impermissible or was not the more reasonable. There is direct testimony that the warehouse was practically destroyed by wind before it was reached by rising water or wave action, and the jury could reasonably have concluded that the velocity of the wind alone completed the destruction from the fact that the strips of sheet iron were stripped from the nail heads, unbent. Most of the structural damage to the cottage was undoubtedly caused by its being toppled from its piers. The jury could not know from the evidence with certainty that it was toppled by the wind rather than by the pressure exerted against the piers by wave action of the rising water or by a combination of the two, and neither can we; but considering the extensive damage done by the wind far above the water level, the shallow depth of the water at the cottage site, the absence of any direct evidence of strong wave action against the piers, and the testimony of petitioner’s own witness that the pier under the southwest corner of the cottage, left standing, was more vulnerable to wave action than was the pier under the southeast corner, which was down, the jury was well within its province in concluding that it was toppled by the wind alone. One of .the photographs of the cottage indicates that a small amount of damage was done by the water to the paint on the lower strips of siding on the south side of the cottage, but we consider this damage as insignificant when considered in context with the entire damage.

The damage to the contents of the warehouse presents an entirely different problem. Heavy rain was falling on the contents after the roof of the warehouse was blown off by the wind. On the other hand, they were completely inundated by the rising waters. Some items were missing after the water subsided. Others were damaged by rust and corrosion. Whether the missing items wer.e blown away by the wind or were washed away by rising water is, of course, not shown. Neither is there evidence that the rust, corrosion and other damage to machinery, tools, electric appliances and other objects were caused by falling rain rather than by rising water or by a combination of the two. There is, therefore, no evidence of probative value in the record supporting the jury’s finding that the damage to the contents of the warehouse was solely caused by rain entering through the open top of the warehouse or by the wind. Under authority of the three decisions hereinabove cited, the judgment for damages to the contents of the warehouse cannot stand. Moreover, it is clear from the record that no good purpose would be served by severing this phase of the suit and remanding it to the trial court for a new trial.

Petitioner presents two other points of error which, if sustained, would require that the entire judgment be reversed and the cause be remanded to the trial court for retrial. One of the points asserts that the trial court erred in excluding evidence that respondent’s property suffered no significant damage from Hurricane Debra which occurred some two years before Hurricane Carla and which also produced strong winds but was not accompanied by flood water. The other asserts that the trial court erred in failing to submit requested issues inquiring separately as to each of the three items of property whether the jury found from a preponderance of the evidence (1) that “no damage * * * was caused by or resulted from tidal wave, high water, or overflow, whether driven by rain or not”; and, conditioned on an answer that damage was so caused, (2) the percentage of damage which was caused by or resulted from these excluded perils. The same points were presented to the Court of Civil Appeals and were overruled. We also overrule them, principally for the same reasons given by the Court of Civil Appeals.

The maximum coverages provided by the policy were $3,500.00 for loss or damage to the cottage, $2,500.00 for loss or damage to the warehouse, and $1,500.00 for loss or damage to the contents of the warehouse. As heretofore noted, the parties stipulated that the damage sustained was $3,000.00 to the cottage, $2,250.00 to the warehouse and $1,250.00 to the contents of the warehouse, all well within the maximum limits of the coverages and totalling $6,500.00. For some reason, unexplained in the record, the trial court’s judgment awarded a recovery by respondent of $6,300.00 with interest thereon from January 17, 1962, at the rate of 6% per annum. Respondent did not appeal from the judgment and has not complained of the amount of the damages awarded. The judgment must therefore be reformed by reducing the recovery awarded by $1,250.00 and awarding a recovery of $5,050.00. As thus reformed, the judgments of the trial court and the Court of Civil Appeals are affirmed.


author: WOODLEY, Judge.

text:
    Felix ROSALES, Appellant, v. The STATE of Texas, Appellee.
    No. 38411.
    Court of Criminal Appeals of Texas.
    March 2, 1966.

      M. N. Garcia, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Our prior opinion affirming the conviction is withdrawn.

The offense is the unlawful possession of marihuana; the punishment, S years.

At the request of appellant’s counsel, hearing was had before the court in the jury’s absence on the question of the legality of the arrest and the admissibility of the evidence obtained as a result thereof.

At the hearing, Lt. Gann testified that he received a telephone call around 7:00 P.M. from an informer that appellant was to deliver marihuana to a party across from Molly Dawson School, where a band was to be practicing; that this information came from a person he believed to be reliable; that he got Sgt. Moody on the telephone and met him at the police station; that the information received was that the appellant was to be in an old Buick, license No. AP 2390; that he went to Molly Dawson School and circled the block two or three times; that he heard music coming from 613 Peacock Lane; that he stopped behind an abandoned vehicle; that appellant arrived and parked with his left wheel to the curb, in violation of a city ordinance; that he saw him reach across to the right front to the glove compartment; that when he saw Gann, appellant jerked back in an excited manner and took off running; that he dropped an object that was later identified as a gun; that he was wrestled to the ground and a box containing marihuana was found and that the pistol was found.

The trial court correctly ruled that the evidence obtained by the officers was admissible and upon motion of appellant’s counsel instructed the district attorney not to ask any questions concerning any information that led to the officers’ going to the particular place.

Lt. Gann’s testimony before the jury was to the same-effect as his testimony at the hearing except for the fact that prior to his interrogation which concluded his direct examination there was no mention or reference to his having been informed that appellant would be bringing marihuana into the vicinity.

Lt. Gann was then asked, in violation of the court’s instruction: “Did you have information that night from an informer which you considered to be credible that this defendant would be bringing marihuana into this vicinity of Austin ?” and was asked and answered in the affirmative the question: “I will ask you then, Lt. Gann, if you had information from what you considered to be a credible informer *• * * that the defendant Felix Rosales would be in the vicinity in which you found him in possession of marihuana?”

The trial court overruled appellant’s obj ectíon to the asking of the question and admitted the evidence, but admonished the jury not to take the question or the answer for the truth of the matter stated, and overruled appellant’s motion for mistrial.

The record shows that the state offered the evidence “simply to show the basis of the Lieutenant’s actions that night,” and the court instructed that the evidence was submitted to the jury only for such basis.

Authorities are numerous which hold that prejudicial hearsay testimony such as called for by the question propounded should not be admitted to the jury where there is no issue of probable cause to be submitted to the jury. Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34; Wiley v. State, 169 Tex.Cr.R. 256, 332 S.W.2d 725; McCormick v. State, 166 Tex.Cr.R. 484, 316 S.W.2d 736; Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615; Richardson v. State, Tex.Cr.App., 216 S.W.2d 572; Hodge v. State, Tex.Cr.App., 214 S.W.2d 469; Sealey v. State, 120 Tex.Cr.R. 260, 47 S.W.2d 295; Starkey v. State, 115 Tex.Cr.R. 552, 27 S.W.2d 175.

Lt. Gann had testified fully before the court in the jury’s absence regarding the information he had received from a credible informer that appellant would be bringing marihuana into the vicinity where he found him in possession of marihuana; and the court had ruled that the evidence was admissible. Lt. Gann had been allowed to testify fully before the jury regarding the flight and capture of appellant and the finding of the match box containing marihuana under his (appellant’s) body; and the marihuana had been introduced in evidence.

There was no issue as to probable cause for the jury.

There can be no doubt that the hearsay evidence that appellant would be bringing marihuana into this vicinity of Austin was highly prejudicial or that the propounding of the question was in violation of the court’s ruling and destroyed the protection afforded appellant by a hearing before the court in the jury’s absence on the question of probable cause.

We conclude that the prejudicial effect of the hearsay information that appellant would be bringing marihuana was not removed by the limitation placed thereon by the trial court, and that the propounding of such improper question before the jury requires that appellant be granted another trial. McKnight v. State, 159 Tex.Cr.R. 401, 264 S.W.2d 441.

Appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Ex parte Robert CATTES, with aliases.
    No. 39086.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Michigan.

At the hearing, the state introduced in evidence the executive warrant issued by the governor of this state and certain papers supporting the requisition of the governor of the demanding state.

The executive warrant recites that it has been made known to the governor of this state by the governor of the State of Michigan that Robert Cattes, with aliases, stands charged by complaint and warrant before the proper authorities with the crime of obtaining money under false pretenses, committed in the State of Michigan, and that the said defendant has taken refuge in this state and demand is made for his arrest and return to that state.

The executive warrant, regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Emmons, 167 Tex.Cr.R. 544, 322 S.W.2d 534.

At the hearing, appellant by his own testimony, sought to show that there had been no crime committed in the State of Michigan. The state objected on the ground that appellant’s testimony went to the merits of the charge against him and to the question of his guilt or innocence and was therefore inadmissible.

The obj'ection was by the court sustained, but appellant was permitted to testify in support of his bill of exception. His testimony was, in substance, that he had committed no crime in the demanding state.

In such ruling the court was correct, as the merits of the charge against one held for extradition or the question of his guilt or innocence are not to be inquired into in a habeas corpus proceeding. Ex parte Terranova, 170 Tex.Cr.R. 445, 341 S.W.2d 660; Ex parte Garcia, 167 Tex.Cr.R. 159, 319 S.W.2d 328; Ex parte Cuttrell, 162 Tex.Cr.R. 639, 288 S.W.2d 773.

No brief has been filed on behalf of appellant. The proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Jimmy Delano FINCH, Appellant, v. The STATE of Texas, Appellee.
    No. 39119.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 16, 1966.

      King C. Haynie (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Edward B. McDonough, Jr., and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

The state’s evidence shows that the prosecuting witness, J. K. Witt, owned and operated a business known as the W. W. Sales Company, located at 4813 North Shepherd in the city of Houston. The witness Joe Goodner, who was employed by Witt at the business, lived in an apartment just across the street.

On the night in question, the witness Ronald Robert Sherman, a boy fifteen years of age, came to Goodner’s apartment around 9 o’clock and asked if his (the witness’s) aunt was there. When Goodner stated that he did not know her, Sherman left and went across the street to the vicinity of the Sales Company. After observing the boy walking around the building, Goodner went across the street to check the building and found everything intact. He then returned to his apartment and, some ten minutes later, observed a light-colored automobile “circling” the block and pass by the building four or five times. He returned to the building and when he went to the rear he observed that the back door to the building was open. He then went inside and found the boy, Sherman, inside the building. Soon thereafter, Officer McKinney arrived upon the scene and it was then observed that the latch to the back door had been pried off and a tire tool was lying on the ground near the door. A desk drawer in the building was discovered to be open and a .22 calibre pistol was missing. Several tools which had been in the building were found outside on the driveway.

While Officer McKinney and Goodner were checking the building, a white Dodge automobile was seen driving north on Shepherd and the officer’s attention was directed to the vehicle. He thereupon pursued the vehicle and brought it to a halt some five blocks from the building. Appellant was driving the automobile and was directed by the officer to return to the Sales Company building. After appellant returned to the scene, Officer McKinney proceeded to search the automobile and found a .22 calibre revolver on the front floorboard on the driver’s side of the vehicle.

The pistol was positively identified by the witnesses Witt and Goodner as the one missing from the desk drawer.

The young boy, Ronald Sherman, upon being called as a witness by the state, testified that he entered the building on the night in question at the instance and request of appellant. He stated that appellant asked him to go in the place and steal some money and that he gained entry into the building by knocking the lock off the door with a tire tool which came from appellant’s automobile. He related that he first went inside, got the pistol, and took it outside and gave it to appellant, who instructed him to go back and get some tools.

Proof was offered that neither Witt, the owner of the business, nor his employee, Goodner, gave appellant or his companion, Sherman, permission to enter the building and take any property therefrom.

The two prior convictions alleged for enhancement were stipulated.

Appellant did not testify or offer any evidence.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals. The jury was also instructed that the witness Sherman was an accomplice, and fully charged relative to the corroboration necessary to convict upon accomplice testimony.

The evidence is sufficient to sustain the judgment of conviction.

By bill of exception #1, appellant complains of the court’s refusal to grant his oral motion for a continuance to give him time to employ other counsel to represent him at the trial and to subpoena witnesses in his behalf. It is insisted that such action by the court required appellant to be represented by counsel not of his own choice and constituted a denial to him of due process of law.

The bill of exception and record show that appellant was represented at the trial by Honorable Jack Miles, a duly licensed attorney of this state who had been retained by appellant in the case. While the jury panel was being questioned on voir dire, appellant informed the court: “I would like to have the opportunity to change lawyers. I do not feel that this man in qualified, and I do not feel I am able to go all the way through the trial myself without some other lawyers.” Appellant further stated to the court that certain witnesses whom he had requested his attorney to “get” were not present. Attorney Miles then informed the court that no request had been made of him by appellant to obtain the witnesses and that in his opinion the witnesses who could be called were not material.

In denying appellant’s motion for a continuance and request that his attorney be discharged, the trial court certified appellant’s counsel “to be a competent attorney” who “represents people charged with serious crimes in this court.”

We perceive no reversible error in the bill.

The motion for continuance was not in writing and sworn to, as required by Article 540 and 545 of the Code of Criminal Procedure of 1925, at the time the case was tried. Crenshaw v. State, Tex.Cr.App., 389 S.W.2d 676.

There is no showing that appellant was represented by incompetent counsel but, to the contrary, the record shows that he was adequately represented.

We do not agree that the court’s refusal to grant appellant’s motion for continuance to obtain other counsel constituted a denial of due process.

In Lee v. United States, 98 U.S.App.D. C. 272, 235 F.2d 219, cited by appellant, the court, in reversing a conviction because of the error of the trial court in appointing counsel for an accused whom he had just discharged, pointed out that the accused’s “right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.”

MacKenna v. Ellis, 263 F.2d 35, 5th Cir., is not here applicable under the facts, as the conviction in that case was ultimately reversed because of a combination of circumstances, including the lack of effective assistance of court-appointed counsel. MacKenna v. Ellis, 280 F.2d 592, 5th Cir., modified in 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78.

McDonald v. Johnson, D.C., 62 F.Supp. 830, cited by appellant, was reversed in 9 Cir., 157 F.2d 275, cert. denied, 329 U.S. 795, 67 S.Ct. 480, 91 L.Ed. 680, and is not authority in support of his contention.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Walter Lee SIROS, Appellant, v. The STATE of Texas, Appellee.
    No. 38621.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 16, 1966.
    See also Tex.Cr., 367 S.W.2d 701.
    Luther E. Jones, Jr., Corpus Christi, Percy Foreman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape; the punishment, death.

The evidence of the state reveals that while the prosecutrix, twenty years of age and seven months pregnant, and her husband were on the way home after visiting in the home of her cousin, their automobile ran out of gasoline and they began walking. When near home about 12:30 A.M., the husband having preceded the prosecutrix across the street at an intersection, she was suddenly grabbed by a man from the sidewalk and shoved into an automobile driven by another man. On hearing her scream and call his name, her husband ran toward her as she was being dragged into a car, which sped away before he could reach her or overtake the car. However, he did get within ten feet of the automobile which he said was a 1962 Tempest with a red body and a white canvas top, bearing license number UE 833. He immediately notified the police and went with them to the place where the prosecutrix was abducted, and there recovered her purse and her glove (one). The husband next saw his wife, the prosecutrix, at the police station.

While testifying, the prosecutrix identified the appellant as the man driving the car at the time she was abducted, and when Ronald C. Rust momentarily appeared in the courtroom, she identified him as the man who grabbed her, lifted her from the street, and shoved her into the car. The appellant and Rust shoved her down between the front bucket seats and beat her, pulled her hair, and tore her clothes. When she asked to be released the appellant said, “You are the third one tonight. You are not going to get out of this alive, and you have no chance, so you lay there and you shut rip, or you are going to die now.” On telling them she was seven months pregnant and worried about her baby, she testified that she believed it was the appellant who said, “If you don’t shut up, if you don’t lie still, if you don’t quit talking, I am going to hit you so hard that I am going to mess up your insides so much they are going to be mush, and you are not going to be able to talk; you are not going to be able to live, and that baby is not going to live, either.” After travel-ling several miles and turning onto a dirt road they stopped and walked down a slope in a wooded area where the appellant said he was going to kill her, and they began pulling off her clothes. She removed the rest of her clothing, with the hope they • would spare her life, and then they knocked her down on the ground, and the appellant placed his private parts into her private parts without her consent. While he had intercourse with her as she lay nude on the ground, Rust was “using (her) breast” by “biting, pulling and sucking.” Then Rust had intercourse with her. They took her back to the car, leaving her panties and girdle at the scene. While Rust was driving, the appellant was getting into position to have intercourse with her again, at which time Rust became sick and appellant began driving. Soon after a tire blew out they stopped the car and shoved her down an embankment into a deep ravine and drove away. Shortly thereafter, she found help at a residence. The officers were notified and arrived about 2:30 A.M., and took her to a hospital.

In response to a police radio dispatch, Officers Kuehn and Sieckmann apprehended the appellant, about 2:30 A.M., as he was driving a 1962 red and white Tempest Pontiac convertible with license number UE 833 and accompanied by Ronald C. Rust. The car had a flat tire which was shredded and appeared to have been driven some distance. Officer Kuehn expressed the opinion that appellant was not intoxicated when apprehended.

Rust accompanied the officers to the scene of the crime where they recovered a pair of women’s panties and a girdle which were later identified by the pros-ecutrix as being hers.

Seminal stains were found on the undershorts worn by appellant at the time he was apprehended. Head hairs on appellant’s trousers were found to be identical with the head hair of the prosecutrix, fibers from the coat worn by the prose-cutrix were like those found on the shirt worn by appellant when apprehended, and the dirt on appellant’s shoes and trousers was identical to the dirt at the scene of the crime.

The evidence reflects that immediately after the prosecutrix was released she was crying and hysterical, there were bruises and abrasions on her back, shoulders, side, and knee, her leg was bleeding, and there was a knot on her head. Her lips, cheeks and eyes were swollen, and there were teeth marks on her left breast, and her clothing was bloodstained and muddy.

Testifying in his own behalf, the appellant stated that he was twenty-three years of age, six feet and one and one-half inches in height, and normally weighed 225 pounds; that he had been convicted of felony theft in 1958, and also convicted in 1960 for assault with a prohibited weapon, with punishment assessed at four years in the penitentiary.

The appellant further testified that while Rust was driving his 1962 Pontiac Tempest convertible they stopped and bought a quart of whiskey and arrived shortly after 10 P.M., at a lounge where they sat at a table and drank all the whiskey and also four or five bottles of beer by closing time at 12 o’clock midnight. After leaving the lounge, the appellant drove the car, following the directions of Rust. Appellant testified he was “dizzy and mixed-up and drunk.” A girl got in the car and Rust told him to drive on, after which they drove “a long ways.” Rust directed him to stop by a bridge which they did, and all got out and went down an embankment. The appellant testified that he never threatened, abused, or had intercourse with the girl; that Rust suggested he return to the car, which he did, and while on the way he heard the girl say, “Don’t tear my clothes, I will take them off,” and- that he never heard anyone cry or scream. In a short time, with Rust driving, they left. Appellant was feeling better but Rust soon became sick, and appellant began driving. They then had a flat tire but kept driving because they had no jack. After some distance they stopped and the girl got out and followed Rust. Appellant never heard her complain as she and Rust walked away. After a short time Rust returned and the appellant continued to drive the car until they were apprehended by the officers.

The appellant’s testimony is corroborated by several witnesses up to the time he and Rust left the lounge at midnight.

The appellant contends that, “The judgment of conviction is invalid under the Due Process Clause of the Fourteenth Amendment of the Federal Constitution:

A. The punishment of death inflicted by the judgment of conviction is, under the circumstances of this case, a cruel and unusual punishment.
B. The judgment of conviction violates the Due Process Clause of the Fourteenth Amendment because based on a verdict incapable of being shown not to rest on an inculpatory theory without support in the evidence.”

In support of his first position the appellant urges this court to invoke the reasoning in the dissenting opinion in Rudolph v. State of Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963). In that the appellant neither took nor endangered the life either of prosecutrix or of the baby she was carrying he insists that, “the punishment of death imposed by the judgment of conviction cannot properly be characterized as being other than cruel and unusual punishment prohibited by the provisions of the Eighth Amendment made applicable by the Due Process Clause of the Fourteenth Amendment of the Federal Constitution; and, accordingly, such judgment may not be permitted to stand consistently with those provisions.”

This court is not in accord with the reasoning in the dissent in the Rudolph case and declines to follow it.

In support of his second position the appellant contends that the court’s charge authorized his conviction upon anyone of six inculpatory theories, and that two of such theories are each without support in the evidence. A general verdict of guilty was returned by the jury.

Appellant urges this contention for the first .time in his brief and argument in this court.

In the absence of an exception to the court’s charge, the contention urged as error is not before us for review.

It is concluded that the conviction is not invalid under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, as the appellant contends.

It is insisted that the trial court erred in permitting Dr. Hundley to express his opinion before the jury that his findings were compatible with the prosecutrix having been raped, over appellant’s objection that it would be hearsay and was prejudicial, and that the prosecutrix had not at this time testified.

The evidence reveals that two physicians examined the prosecutrix: Dr. Wallace examined her at the hospital at 3 A.M., March IS, which was immediately after the alleged assault; and Dr. Hundley examined her at home on March 16.

Dr. Wallace did not appear and testify. To the state’s introduction of the hospital records of the physical examination and report made by Dr. Wallace of the pros-ecutrix, the appellant stated that, “We have no objection, Your Honor.” The report in part reads: swollen cheeks, lips puffy, knot on head, superficial lacerations on back and shoulders, abrasion and bleeding on left knee, teeth marks on left breast, and non-motile sperm. Impressions: (1) multiple abrasions and lacerations; (2) six to seven months pregnant, viable fetus; (3)signs of forcible entrance are evident.

In considering the objection to the opinion of Dr. Hundley that his findings were compatible with the prosecutrix having been raped, together with Dr. Wallace’s report, which was expressly admitted without objection, showing multiple abrasions and lacerations, teeth marks on breast, and that “signs of forcible entrance are evident.” it appears that Dr. Hundley’s opinion as complained of shows no reversible error.

Reversal is sought on the following objections to the court’s charge on temporary insanity produced by the voluntary recent use of intoxicating liquor:

“Defendant further objects and excepts to the charge of the Court in its charge on intoxication and particular to that part of the instruction relating to definition on Line 13 of said charge alleging ‘power to distinguish between right and wrong as to the particular act’. Defendant objects to phrase ‘right and wrong’ as not being proper definition.”

The objections are too general and do not distinctly specify and point out wherein the charge was defective as required by statute, therefore they present nothing for review.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Thomas Henry HOPKINS.
    No. 39500.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Thomas Henry Hopkins, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is a habeas corpus proceeding under Art. 119 C.C.P. by an inmate of the Texas Department of Corrections attacking as void his conviction in Cause No. 3781 in the District Court of Medina County, Texas, on March 30, 1959, with sentence of 2 to 10 years to begin at the expiration of a 12 year sentence from Nueces County, which has been served.

The facts relating to petitioner’s attack upon the Medina County conviction have been furnished to this Court by Honorable Ross E. Doughty, District Judge of the 38th Judicial District (which includes Medina County) and Honorable R. S. Crawford, Jr., District Attorney of said District.

The facts are that at the time petitioner was tried and convicted in District Court of Kerr County, Texas, Judge Doughty was the District Attorney and prosecuted the case as counsel for the state.

This Kerr County conviction was alleged in the indictment for burglary in the Medina County indictment for the purpose of enhancement of the punishment.

Judge Doughty presided at the trial in Medina County and prior to trial entered the order sustaining the state’s motion to dismiss the portion of the indictment alleging prior convictions.

The Constitution of Texas, Art. 5, Sec. 11, Vernon’s Ann.St., provides that no judge shall sit in any case when he shall have been counsel in the case.

Art. 552 C.C.P. (now Art. 30.01) provides that no judge shall sit in any case where he has been of counsel for the state or the accused.

Construing these provisions of the Constitution and Statute we held, in Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569, that the judge who as district attorney prosecuted the case which resulted in the prior conviction alleged for enhancement, and who authorized the dismissal of the allegations as to such prior conviction, was disqualified to sit in the case.

Judge Doughty and District Attorney Crawford are to be commended for bringing to the attention of this Court the undisputed facts that uphold petitioner’s attack upon the conviction in Medina County and render it void under our holding in Pennington v. State, supra, because of Judge Doughty’s disqualification to sit as judge and try the case.

The action of these officers and their certification that in the event the Medina County conviction is held to be void the indictment against the petitioner will be dismissed render it proper for this Court to grant the prisoner’s petition for writ of habeas corpus as an original application to this Court and make it unnecessary that we order petitioner remanded to custody of the Sheriff of Medina County to answer the indictment.

The conviction in Cause No. 3781 styled The State of Texas v. Thomas Henry Hopkins being void because of the disqualification of Judge Doughty, the petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement in the Texas Department of Corrections thereunder.


author: McDONALD, Presiding Judge.

text:
    Hershel McKNIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 39270.
    Court of Criminal Appeals of Texas.
    March 2, 1966.

      Royce E. Ball, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is felony theft; the punishment, two years in the penitentiary.

Bill Riley, the complaining witness, testified that a $950 motor, used for irrigation purposes, was taken without his permission from his farm one night. This motor was found in a building allegedly rented by appellant, and it is this possession of recently stolen property, added to the testimony of an accomplice witness, which the state contends sustains appellant’s conviction.

James Firestone testified that he met appellant in the spring of 1962 while the latter was operating a small garage for servicing automobiles. After several discussions, the two agreed to open a larger garage specializing in automatic transmission repair and operating under the name of Mac’s Automatic Transmission Service. Firestone, not a mechanic, furnished most of the tools and equipment and leased the building, while appellant provided the “know-how”, and the profits were divided equally. On the evening of September 13, 1962, according to Firestone, he and appellant stole three irrigation motors from farms in the surrounding area, including one from the irrigation well of Mr. Riley, and took these motors to Mac’s Automatic Transmission Service. The next day the motors were stripped of accessories and then stored in a small building near the transmission shop. This building, according to Firestone, was owned by J. A. Mullins and rented by appellant. The witness stated that he fled to California when he saw officers investigating the theft near their business establishment, but that he had been arrested there and returned to Texas.

Firestone’s credibility was impeached by other evidence showing part of his testimony to be untrue, and by his admission that he had been previously convicted of. burglaries. It was also shown that while he was in jail after being returned from California he had sent letters to appellant demanding money, and he did not deny that these letters contained threats that appellant would be implicated in the theft if he did not satisfy Firestone’s demand.

Appellant testified that the small building in which he had operated his garage was owned by J. A. Mullins, and that after Firestone and appellant opened the larger shop, he no longer rented the small building, but that Firestone made some arrangement with Mullins to use it for storage. While the record is not clear on this point, this is presumably the same small building in which the stolen motors were found..

Appellant further testified that Firestone represented himself to be a farmer and that he financed their business, leased the building, and furnished all the equipment with the exception of appellant’s personal tools, and that the pair split the profits equally. His previous business had been called Mac’s Garage, and they agreed to leave his name in the firm name because of the good will he had acquired in the automotive repair business. On September 14, after they had been in business only a few months, appellant noticed three motors in the garage, and in response to his inquiry, Firestone explained that two of these came off his farm where he had used them for irrigation, and that he had purchased the other from a neighbor. He said he planned to strip them of their accessories and sell them. Appellant testified that he had little to do with the running of the business, and that after Firestone fled to California, Mrs. Firestone attended to the administrative part of the business and eventually replaced appellant with another man. He stated that Firestone had sent him two letters which stated that if appellant did not get him $1,000, Firestone would implicate appellant in the theft. Appellant turned these letters over to an attorney, who returned them to the jailer. It was shown that appellant had been twice convicted of theft, and was also convicted of aggravated assault, and that all three convictions occurred between 1958 and 1960.

The jailer verified the fact that appellant’s attorney gave him the two letters but stated that he no longer had them and that they were not available for appellant’s trial.

Mechanics who worked at the garage verified appellant’s contention that Firestone was the actual “boss” of the business, doing all the hiring, firing, paying, and bookkeeping; that appellant was the service manager; and that there was also a shop foreman who participated in the operation of the shop.

Kenneth Copeland testified that he had made arrangements to purchase one of the motors during the week after they were stolen, and that he had made a down payment on it. The witness stated that he did not know that the motor was stolen, and that Firestone told him that the motor came off Firestone’s farm. Copeland said he dealt only with Firestone and that appellant was not involved in the transaction in any way.

Deputy Sheriff Chester Sprague testified that tracks at the scene of the theft matched the tires of a pickup truck used by the transmission shop. He also testified, over the vigorous and timely objection of appellant, that he was told by an unidentified person that appellant operated a business in the small building in which the stolen property was found. On cross-examination, he stated that at the time the motors were found, the building was unoccupied and unlocked, and that the back door was open; that he had no personal knowledge of who occupied that building; that he did not know the name of his informer and had no reason to believe or disbelieve him; and that he made no further investigation concerning who was in charge of that building.

“Evidence is hearsay when its probative force depends in whole or in part on the competence or credibility of some person other than the person by whom it is sought to be produced.” Winn v. Federal Land Bank, Tex.Civ.App., 164 S.W.2d 864, 866, error refused. See also Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128; Lightfoot v. State, 123 Tex.Cr.R. 176, 58 S.W.2d 81.

The testimony of Deputy Sprague, concerning appellant’s connection with the building in which the motors were found, relied completely on the competence of the stranger who related these facts to the witness, and that person did not testify. Such testimony was .inadmissible as hearsay. 1 McCormick and Ray, Texas Law of Evidence, Sec. 781, and cases cited; See also Boyett v. State, Tex.Cr.App., 368 S.W.2d 769.

Absent this hearsay testimony, there is no evidence except the testimony of Firestone connecting appellant to the building, and nothing in the record to indicate that appellant was in possession of the stolen property when it was found.

The state contends that no reversible error is shown by the fact that the objectionable testimony was admitted into evidence because appellant took the stand and admitted that he operated the transmission repair service with Firestone, and that the evidence shows that the motors were housed, at least temporarily, in the garage; that it took more than one person to load the motor into the' pickup at the scene of the theft; and that the pickup used in the theft was shown to be under the control of appellant. The state contends that these circumstances corroborate the testimony of Firestone. We do not agree.

The evidence viewed in its most incriminatory aspect shows that Firestone, appellant, and the shop foreman all had access to the transmission shop and each participated in the operation of the business. The pickup allegedly used in the theft apparently belonged to Firestone, but it was used in the day-to-day operations of the business, and appellant had no more than joint control of its use. There is nothing to connect him with its use at the time of the offense. Only Firestone made any assertion of ownership of the stolen property. Only Firestone fled when the investigation focused upon a connection between the transmission shop and the stolen property.

“To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” 5 Branch’s Ann.P.C., Sec. 2650, and cases collected. See also Frazier v. State, 88 Tex.Cr.R. 411, 227 S.W. 324.

Discounting the accomplice witness’ testimony, there is no evidence that appellant had any connection with, control of, or possession of either the stolen property when it was found or the building in which it was found. The circumstantial evidence, viewed in the perspective most favorable to the state, shows only that appellant exercised joint control of the premises where the stolen property was temporarily stored, and there is no evidence that appellant asserted any control over the stolen property or that he was ever aware that the motor was stolen. If it was shown that Firestone could not do the job by himself, it was not shown that appellant was the one who helped him. We conclude that the evidence is insufficient to prove that appellant was in possession of recently stolen property. Enox v. State, 131 Tex.Cr.R. 551, 101 S.W.2d 243, 244; Prather v. State, 128 Tex.Cr.R. 342, 81 S.W.2d 528, 529; Duke v. State, 124 Tex.Cr.R. 454, 63 S.W.2d 552; Hamilton v. State, 122 Tex.Cr.R. 424, 55 S.W.2d 820.

Excluding the testimony of Firestone, we find no evidence tending to connect the accused with the commission of the offense, and find that the state has failed to sufficiently corroborate the testimony of the accomplice witness. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Alexander v. State, 160 Tex.Cr.R. 460, 274 S.W.2d 81.

The judgment is reversed and the cause remanded.