text:
    James BOWIE, Appellant, v. The STATE of Texas, Appellee.
    No. 39536.
    Court of Criminal Appeals of Texas.
    April 27, 1966.

      Marks, Time & Aranson by James Keith Marks, E. Brice Cunningham, Levi Curl, Dallas, for appellant.
    Henry Wade, Dist. Atty., James B. Zim-mermann and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, enhanced under the provisions of Article 63, Vernon’s Ann.P.C., life imprisonment.

The building alleged to have been burgled was leased by Fame Fashions, Inc. for the manufacturing and shipping of dresses. The overhead door at the rear of this building was large enough to accommodate trucks, and opened into a foyer or loading dock about 10 feet deep, at the rear of which was a wall with a sliding door leading to the rest of the building.

There is no dispute that the outside overhead door to the building was open at the time of the alleged offense, and that entrance to the loading dock could be made without any “breaking.” It is the state’s theory that appellant broke into the interior shipping and storage department of the building by pushing open the sliding door leading from the loading dock.

Mr. Robert Newhouse testified that he and two other executives of the corporation were in the building at about 5:20 p. m. when he observed two men inside the shipping and storage area, and that they dropped a box of dresses they were carrying and ran through the sliding door, shutting it behind them. Mr. Newhouse followed and saw two men drive off in an automobile which had been backed up to the open overhead door. He positively identified appellant as one of the two men found inside the building. The automobile used in the “get-away” was shown to be registered in appellant’s name.

Mr. Jules Fine testified that he was an executive of the corporation and that, as such, he had care, custody, and control of the building and the property therein, and that appellant did not have permission to be in the building or to take the box of dresses.

Other testimony showed that the corporation’s employees quit work at 4:00 p. m. that day; that only the three executives mentioned above were in the building after 5:00 p. m.; that they were in offices at the front of the building; that the sliding door into the shipping and storage department was closed at about 5:00 p. m. when the manager of that department left work; and that this door would automatically return to a closed position after being opened.

The evidence that the front of the building was occupied by the three officers of the corporation; that appellant’s automobile was backed up to the back door of the building; and that the intruders immediately ran out the sliding door, closing it behind them, when they were discovered, is sufficient to support a conclusion that they gained entrance to the shipping and storage area through the sliding door, which was shown to be closed only minutes before the incident occurred. Such an entry is an entry by force and constitutes “breaking” as defined by Article 1394, Vernon’s Ann. P.C.; Warden v. State, Tex.Crim.App., 366 S.W.2d 786; Sparks v. State, 34 Tex.Cr.R. 86, 29 S.W. 264.

Appellant contends that the evidence shows that the building was entered through the open back door, and that he therefore could not have broken into the building. Entry through an open exterior door does not preclude a verdict of guilty where the evidence shows that an inner room or compartment of the building is broken into. Thomas v. State, 131 Tex.Cr.R. 269, 97 S.W.2d 955; Anderson v. State, 17 Tex.App. 305.

Appellant’s next contention is that his arrest was unlawful and that his conviction is therefore void. No timely objection was made to testimony concerning appellant’s arrest, however we fail to see that such testimony was harmful to appellant. No confession or other incriminatory evidence was elicited from appellant following his arrest.

The state introduced evidence of two prior convictions for enhancement purposes. Proof was made by introducing the indictments, judgments, and sentences of the two causes. The indictment in Cause No. D-4294 — IJ charged appellant with burglary of a private residence at night. The judgment in that cause bears the notation that, “On written motion of District Attorney reduced to burglary,” and shows that appellant was found guilty of “Burglary, as charged in the indictment.” The sentence indicates that appellant was adjudged guilty of burglary, as charged in the indictment, and sets punishment at three years in the penitentiary. Burglary as defined in Article 1389 and 1390, Vernon’s Ann.P.C., and burglary of a. private residence at night, as defined in Article 1391, Vernon’s Ann.P.C. are distinct and separate offenses. Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228. A conviction for burglary cannot be supported by an indictment charging burglary of a private residence at night. Robinson v. State, 82 Tex.Cr.R. 570, 200 S.W. 162, at 166. The trial court was without authority to change the charge to burglary. “Since the indictment is the result of grand jury action, the allegations of such indictment which charge the defendant with a crime, are matters of substance and cannot be amended (even by consent of the parties) * * Section 71, Erisman’s Manual of Reversible Errors. This prior conviction is- therefore void.

The remaining conviction is for the offense of theft over $50.00. Felony theft and burglary, committed with the intent to commit theft, are offenses of like character and of the same nature within the meaning of Article 62, Vernon’s Ann.P.C. Reynolds v. State, 311 S.W.2d 848. In accordance with the provisions of Article 62, supra, the judgment is reformed to provide that punishment be assessed at imprisonment for 12 years, the maximum punishment authorized for the offense of burglary. Article 1397, Vernon’s Ann.P.C.

As reformed, the judgment is affirmed.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    Kenneth Bruce MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39055.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied May 4, 1966.

      Robert B. Maloney, Dallas, Sam N. Vil-ches, Jr. (On Appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, William F. Alexander, John Vance and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, death.

The indictment alleged that appellant, with malice aforethought, voluntarily killed Janice Lee Strickland by shooting her with a gun.

The case was submitted to the jury a3 one of circumstantial evidence. The sufficiency of the evidence to sustain the conviction is not challenged.

The state’s evidence shows that the deceased and her husband, Linford I. Strickland, left their home in Duncanville, south of Grand Prairie, about 9:30 P.M. on Saturday May 16, 1964. When they failed to return the police were notified.

About noon the next day, Dallas Police Officer Roy L. Gross met a man named Troy Earls who directed him to a place in Dallas County, some half a mile off the highway reached by a winding trail along which were trees, tall grass and other vegetation, where he found the 1957 Chevrolet later identified as that used by Strickland and his father in their used car business.

Lying on the ground at the left side of the car were Janice Lee Strickland, the deceased, and her husband Linford I. Strickland. Both were dead, Mr. Strickland from a gunshot wound in the left temple and the deceased from two bullet wounds in the head.

Mr. Strickland was fully clothed. The body of the deceased was completely nude. There was a panty girdle and ladies hose near her head, turned wrong side out. A dress was found in the back seat of the car and there was a brassiere, some shoes and a white purse in the front seat. There was much blood and blood stains inside the car and a fingerprint and thumb print in blood, shown by expert testimony to be those of appellant, were lifted from the rear door of the car.

Two live .45 caliber automatic wad cutter cartridges were found on the ground 2 or 3 feet from the left front door of the car, and 2 such cartridges were found in the rear seat.

Two slugs or bullets were recovered from the head of the deceased during the autopsy and one from the head of Mr. Strickland.

A .45 caliber automatic pistol identified as that purchased by appellant at a gun-shop owned by A. D. Hodge on April 24, 1964, was shown by expert testimony to be the pistol from which the three slugs taken from the heads of the deceased and her husband had been fired.

The evidence shows that following appellant’s arrest the officers went to the motel room rented by him and found the pistol, two boxes of wad cutter ammunition minus several cartridges, and two extra clips under a trunk at the rear of the carport in some light brush or trees.

Testimony was also offered to the effect that at about 6 A.M. appellant was picked up as a hitch-hiker in Grand Prairie wearing white clothes inside out that were covered with blood from the neck down.

We find the evidence sufficient to sustain the conviction.

Appellant’s first claims of error were bottomed upon errors in the preparation of the transcript.

A supplemental transcript has been filed which shows that the indictment was returned on June 1, 1964, in Criminal District Court No. 2 of Dallas County and was transferred to the Criminal District Court of Dallas County on the same day. The proceedings appear to be regular and we overrule appellant’s propositions 1 and 2.

He next complains that the trial court erred in denying his request for continuance on the ground that one of his counsel was physically and mentally fatigued by his efforts in a capital case tried the previous week.

Appellant’s formal bill of exception filed March 13, 1965, was refused by the trial court on March 22, 1965. Appellant excepted to the court’s reason for refusing it but filed no bystander’s bill. The bill of exception cannot be considered. See Art. 760d Vernon’s Ann.C.C.P. and cases listed under Note 3.

For the same reason other formal bills of exception, including that relating to the overruling of appellant’s motion for change of venue, cannot be considered. The court refused them and appellant did not accept his reasons for refusing to approve them.

The claim of error in overruling of appellant’s motion for continuance is not before us by informal bill of exception under Art. 760e V.A.C.C.P., no exception having been reserved to the court’s action in overruling such motion. We note, however, that appellant appears to have been ably represented at his trial by his two court appointed counsel and no abuse of discretion on the part of the trial court in overruling the motion for continuance is shown. See Art. S40 V.A.C.C.P., Notes 46 and 47, and cases there cited.

Appellant’s complaint as to the overruling of his motion for change of venue is not before us by informal bill of exception under Art. 76Oe V.A.C.C.P. The record contains the motion, the state’s controverting affidavit and a statement of facts showing the evidence adduced and the court’s ruling “overrule the motion,” but there is no exception to the court’s ruling. See Art. 760e V.A.C.C.P. and cases listed under Note 1, including Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775.

In view of the maximum punishment having been assessed, we have examined the record relating to the motion for change of venue and the voir dire examination of the jury panel and find no abuse of discretion on the part of the trial judge, and no error which would warrant reversal.

The most serious question raised relates to the admission in evidence of the .45 caliber automatic pistol; the extra clips and the wad cutter ammunition found under a trunk at the rear of the carport.

The evidence reveals that the officers obtained a search warrant authorizing the search of Cabin 21, Angelus Tourist Lodge, alleged to be occupied by appellant, and went to the Lodge for the purpose of ex-(cuting such warrant.

The search warrant and affidavit therefor were introduced by appellant to the court and appear in the record. The search warrant was fatally defective under the holding of the Supreme Court in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The state recognized that the Aguilar decision had rendered the search warrant invalid and no evidence obtained as the result of a search of Cabin 21 was introduced before the jury.

The record does reflect that the police officers gained admittance to Cabin 21 by reason of the consent of Mrs. Mary Cox.

Mrs. Cox testified that she was a part-time employee and switchboard operator at Angelus Lodge, a motel. Appellant rented Cabin 21 and the carport some three months prior to May 19, 1964, the rental being $12.00 a week.

Officer L. C. Groves and other officers came to the motel on May 19, 1964. After talking to her, the officers left but returned and she gave them permission to search Cabin 21 and the surrounding territory.

Mrs. Cox further testified that there was an old trunk out back of the carport of Cabin 21 which trunk was not situated on any part of the premises that appellant had leased.

In the absence of the jury she testified that the trunk was entirely outside of the carport and was on property that did not belong to the Angelus Lodge; that it was an “old timey trunk that appellant brought there” and it belonged to him, as far as she knew; that it had been in the carport but had been moved to the back and that she told the officers about the trunk and they went outside and searched out there.

The undisputed evidence before the court shows that neither appellant nor the Ange-lus Lodge had any proprietary interest in the property where the pistol, clips and ammunition were found under the trunk.

We conclude that appellant has no standing to question the validity of the search of the area not rented to him, which he apparently chose as a hiding place for the pistol used in killing the deceased and her husband. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

The judgment is affirmed.


author: DICE, Commissioner. WOODLEY, Judge

text:
    Wesley SELLARS, Appellant, v. The STATE of Texas, Appellee.
    No. 39401.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 11, 1966.
    Ralph Chambers, Houston, Thomas D. White (on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary of a private residence at night; the punishment, enhanced by reason of a prior conviction for an offense of like character, ninety-nine years.

Trial was at the August, 1965, term of Criminal District Court No. 6 of Harris County, judgment being entered and sentence pronounced on October 8, 1965.

A purported statement of facts filed with the clerk of the trial court on December 30, 1965, consisting of 484 pages, accompanies the record. The instrument appears to be in three parts: pages 1 to 60, inclusive, pages 61 to 349, inclusive, and pages 350 to 452, inclusive. In addition, the exhibits are shown on pages 453 to 484. At page 60 there is a certificate by the official court reporter, Evelyn B. Friedman, which certifies that pages 1 through 59 comprise a true and correct transcript of all the testimony adduced and proceedings had upon the trial of the case that was reported and transcribed by her. Underneath the certificate is an agreement signed by counsel for the state and the defendant as to the correctness of the testimony and proceedings reported and transcribed by the court reporter. On page 349, there appears a certificate of Paul M. Rodriguez, Jr., a notary public in and for Harris County, which certifies that certain proceedings were reported by him which, as set out and transcribed, were true and correct. There is no agreement by counsel for the state and the appellant that such testimony and proceedings purportedly certified to by the notary were true and correct. On page 4S2 is found another certificate by Evelyn B. Friedman, the official court reporter, which certifies that pages 3S0 through 451 comprise a true and correct transcript of all the testimony adduced and proceedings had upon the trial that was reported and transcribed by her. Below this certificate is an agreement signed by the attorneys for the state and the appellant, certifying as to the correctness of the testimony and proceedings reported and transcribed by the court reporter.

The statement of facts is not approved by the trial judge.

As presented, only a portion of the statement of facts is certified to by the official court reporter and approved by counsel for the state and the appellant.

In the absence of a complete statement of facts, this court cannot pass upon the sufficiency of the evidence, questions relating to the court’s rulings on the admission of evidence, or the court’s charge. Stockman v. State, 164 Tex.Cr.R. 469, 303 S.W.2d 410; Sullivan v. State, Tex.Cr. App., 377 S.W.2d 952; Hankins v. State, 163 Tex.Cr.R. 553, 294 S.W.2d 850.

We overrule appellant’s contention that the trial court erred in not requiring the jury to assess the punishment in the case.

The indictment under which appellant was prosecuted and convicted alleged that he had been previously convicted of an offense of like character. Under Art. 62, Vernon’s Ann.P.C., the punishment upon appellant’s subsequent conviction for a felony offense of like character was the highest which is affixed to the commission of the primary offense of burglary.

While Art. 1391, V.A.P.C., fixes the punishment for burglary of a private residence at night at confinement in the penitentiary for any term of years not less than five, under the decisions of this court the trial court was authorized to assess appellant’s punishment under Art. 62, supra, at a term of ninety-nine years. Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187.

In the judgment entered by the court, appellant is adjudged guilty of the offense of nighttime burglary.- The same is ordered reformed so as to adjudge him guilty of nighttime burglary of a private residence as alleged in the indictment and found by the jury.

The judgment, as reformed, is affirmed..

Opinion approved by the court.

WOODLEY, Judge

(dissenting).

The writer is in full accord with that portion of appellant’s brief wherein his able counsel contends that the majority opinion in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330, and the opinion in Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842, “are so farfetched and so lacking in logic, that this Honorable Court should immediately correct the erroneous rule established by said decisions” and “said decisions constitute legislation by this Honorable Court and we can all agree that this Honorable Court is a judicial body, not a legislative body.”

If the punishment for a second or subsequent burglary of a private residence at night is “absolutely fixed by law to some particular penalty,” so as to render it unnecessary under Art. 693 C.C.P. that the jury assess the punishment, the law “absolutely fixing” such punishment at 99 years was not an act of the legislature but an incorrect decision of this Court.

If the majority insist upon reaffirming the rule in Brown v. State, they should no longer delay relief to those serving longer terms than 99 years which, under their rule, are excessive.

The writer’s views are expressed in his dissents in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330, and Madeley v. State, Tex.Cr. App., 388 S.W.2d 187, cited in the majority opinion.

I respectfully dissent.


author: DICE, Commissioner.

text:
    James E. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39348.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 11, 1966.
    William Goldapp, Houston, John R. Coe (on appeal only), Houston, for appellant.
    Carol Vance, Dist. Atty., Edward B. Mc-Donough, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder with malice; the punishment, fifty years.

The state’s testimony shows that the appellant and Alvin Green lived in a small house at 1012 Saulnier in the city of Houston. Appellant worked, and on the day of the killing, while he was away, Green and some others were drinking wine and beer at the house. Between four and five o’clock the deceased came by the house and, after having one drink, left. Shortly thereafter, the appellant returned home from work. He also had a drink and then went to bed. Around 10 p. m., the deceased returned to the house and knocked on the front door. After he identified himself, Green told him that everyone had gone to bed. The deceased replied that it did not make any difference and that he was coming in. Green continued to protest and the deceased lunged against the door, breaking the top hinges from the wall, and came into the room. At this juncture, the appellant got out of bed and said to the deceased, “ ‘Man, it looks like you are trying to run over us.’ ” Green testified that the appellant walked toward the deceased, who ran his hand in his pocket, but that the witness did not see any kind of weapon. Appellant then stated, “ ‘Well, I got a remedy for this/ ” and ran out the back door. Green stated that after he heard the cracking of a bottle outside, the deceased, who had been standing near the front door, “come back inside,” bleeding, and said, “ ‘Look, you know Jim cut me.’ ” Green then advised him to go to the hospital and the deceased left through the back door.

It was shown that when the officers arrived upon the scene, the deceased was lying partially in the street and the driveway in front of the premises and there was a trail of blood leading from the body to the back door of the house and on through the house, stopping in the front doorway. The broken portion of a bottle which had stains of blood on the inside of the neck, about one-half inch from the broken edge, was found on the porch.

Dr. Joseph Alexander Jachimczyk, chief medical examiner of Harris County, who performed the autopsy on the deceased, testified that he found an irregular stab wound in the left shoulder area which was three and one-half inches to the left of the midline and just above the left clavicle or collarbone. The doctor stated that the wound measured one and one-half inches in length and gaped three-quarters of an inch and extended into the left armpit area to a depth of three inches, severing the left axillary vein and artery. The doctor stated that the wound described was the cause of death of the deceased. He further stated that the bottle found on the porch, if used by a person of the same size and physical description of appellant, could have produced death and that the bottle could have broken off during the stabbing. He also testified that it would take considerable force to drive the jagged end of a bottle into a person like the deceased.

Testifying in his own behalf, appellant related that after the deceased forced his way into the house and there had been an exchange of words between them as to his entry, the deceased reached in his pocket and pulled out a knife; that the deceased then came toward him and he (appellant) ran out the back door. Appellant stated that when he got outside he picked up some pieces of glass in one hand and a soda water bottle in the other; that he ran through an alley and when he got to the front of the house the deceased was on the porch and reached out at him as if to cut him. Appellant stated that he then “ducked” and swung at the deceased and it felt “like I hit him in the shoulder.” Appellant swore that he had no intention to kill the deceased, and testified that when he jabbed at the deceased he was in fear of his life.

The court submitted to the jury the issue of appellant’s guilt of murder with and without malice and aggravated assault. The jury was further charged on the appellant’s right of self-defense and the defense of habitation.

The jury, by their verdict, rejected appellant’s defensive testimony.

Appellant’s sole contention on appeal is that the evidence is, as a matter of law, insufficient to support a finding that he acted with malice aforethought.

The court, in defining malice and malice aforethought in the charge — to which no objection was made by appellant — instructed the jury as follows:

“Malice aforethought is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
“Malice aforethought is the voluntary and intentional doing of an unlawful act with the intent, means and ability to accomplish the reasonable and probable consequences of the act done. It includes all those states of mind under which the killing of a person takes place without any cause which will in law justify or excuse the killing.
“Malice in its legal sense denotes a wrongful act done intentionally and without just cause or excuse.”

We are unable to agree that, under the definition given by the court, the evidence presented by the state is insufficient to support a finding that in killing the deceased the appellant was actuated with malice aforethought.

Malice does not require any specific length of time for its germination or growth but it may be formed immediately before the act is committed, and can arise instantly. Haynes v. State, 167 Tex.Cr.R. 68, 317 S.W.2d 945.

In Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529, it was held that murder with malice could be predicated upon the kicking of the deceased around the head by the feet of the defendant. In Haynes v. State, supra, a conviction for murder with malice, where the accused killed the deceased by stabbing him with a knife, was affirmed by this court.

While there was no proof of any previous ill-feeling between appellant and the deceased, the evidence is undisputed that appellant stabbed and cut the deceased with a glass bottle, or piece of a bottle, in the vicinity of the collarbone, which severed the left axillary vein and artery. That the act was intentional is not disputed. The jury had the right to reject appellant’s claim that he was acting in self-defense. The act was committed in such manner and under such circumstances that the death of the deceased did result.

We have examined the authorities cited by appellant and do not deem them here controlling, under the facts.

In Villareal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406, the jury’s verdict was, by necessity, based upon the testimony of a physician, which — though not objected to —-was inadmissible. Under such record, this court reversed the death penalty conviction.

In Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626, the accused, at the time of the killing, was under an illegal arrest by the deceased and had the right to extricate himself from such restraint.

In Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943, the accused did not testify, and it was shown by the state’s testimony that at the time of the shooting he was not in such condition that his mind was capable of cool reflection.

The judgment is affirmed.

Opinion approved by the court.


text:
    Jack COCKERHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 39540.
    Court of Criminal Appeals of Texas.
    April 27, 1966.

      Baker & Callahan, by Andrew Z. Baker, Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Albert G. Redmond and Ronald L. Wilson, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, six months in jail and a fine of $250.

The statement of facts was prepared by appellant’s counsel in narrative form and approved by the trial court.

The evidence shows without dispute that at the time he was pursued, overtaken and arrested, appellant was driving a 1952 Chevrolet automobile on a public highway between Alvin and Galveston.

The arresting officer testified that during his pursuit the 1952 Chevrolet was weaving from lane to lane; that appellant was “incoherent to a certain state” in his speech; that “he smelled of the odor of alcohol on his breath”; and expressed the opinion that appellant was intoxicated.

The officer further testified that appellant was taken to the LaMarque City Jail and a sample of his urine was taken, marked for identification and forwarded to the Department of Public Safety.

Texas Highway Patrolman Williams testified that he saw appellant at the jail; that he appeared to be intoxicated; that appellant had a “slurred manner, thick tongue and smelled of alcohol”; that he assisted Officer Gardner in administering a “leg test” and procuring a urine sample. Patrolman Williams testified that in his opinion appellant was intoxicated.

Henry Bowen, chemist and toxicologist for the Texas Department of Public Safety, testified that he received an initialled urine sample vial from the Hitchcock Police Department and made an analysis of the sample which revealed that appellant’s urine contained .21 percent alcohol content and in his opinion the person who gave the sample was intoxicated at the'time.

Chemist Bowen further testified on cross-examination that .21 percent alcohol content in the urine would indicate an alcohol content of .16 percent in the blood and that people with alcohol content of .20 percent in the urine or .10 percent in the blood would be intoxicated.

Appellant’s wife and one of the two other passengers riding with appellant testified that he was not intoxicated, as did appellant.

The jury resolved the issue against appellant and the evidence shown by the statement of facts is sufficient to sustain their verdict.

In his brief appellant complains of the court’s refusal to grant his motion for new trial and his motion for mistrial because the state was permitted to ask him, on cross-examination, if he had been convicted in Missouri in 1957 for the crime of felony assault on a minor female with intent to have carnal knowledge, and because of the overruling of his objection to questions propounded to appellant as to his conviction in 1959 for sodomy. Appellant also complains that the state was allowed to argue for eleven minutes longer than he was permitted to argue.

The matters complained of are not before us for review. There are no formal bills of exception and, the statement of facts being in narrative form, informal bills sought to be preserved therein may not be considered. Art. 759a Vernon’s Ann.C.C.P.; Owen v. State, 171 Tex.Cr.R. 361, 350 S.W. 2d 542; Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Joe Melton BEAVER, Appellant, v. The STATE of Texas, Appellee.
    No. 38802.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 16, 1966.
    Second Motion for Rehearing Denied April 27, 1966.
    R. R. (Bob) Hendricks, McKinney, Robert C. Benavides (On Appeal Only), Dallas, for appellant.
    Bill Boyd, County Atty., Ronald W. Chapman, Asst. County Atty., McKinney, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful sale of beer in a dry area; the punishment, a fine of $450.

The state moves that the appeal be dismissed for want of jurisdiction because notice of appeal was not given during the June 1965 term of court at which the conviction became final, as required by Art. 827 Vernon’s Ann.C.C.P.

Trial was had and judgment rendered on June 24, 1965. Motion for new trial was filed the same day.

On July 2, 1965, appellant’s first amended motion for new trial was filed. No further action having been taken, appellant’s first amended motion for new trial was overruled by operation of law 20 days after the amended motion was filed. Art. 755 V.A.C.C.P.

The June term of court expired on July 30, 1965, without any notice of appeal having been given.

The only notice of appeal shown by the record is that given on August 2, 1965, on which day an order was entered reciting that the defendant’s motion for new trial was overruled.

The contention that this court is without jurisdiction to entertain the appeal is supported by Morgan v. State, 378 S.W.2d 321, and Alter v. State, 171 Tex.Cr.R. 14, 344 S.W.2d 455, cited by the state.

Appellant cites Atkinson v. State, 154 Tex.Cr.R. 421, 299 S.W.2d 951. The Atkinson case is distinguished by the fact that there the amended motion for new trial overruled by the court was filed with leave of the court on the day it was overruled, whereas in the cases above cited, and in the case before us, the motion for new trial which the court attempted to overrule was filed more than 20 days prior to the adjournment of the previous term of court.

Appellant further contends that this appeal must be decided under the Code of Criminal Procedure which became effective on January 1, 1966, rather than the Code as it existed at the time the judgment was rendered and the time that he sought to invoke the jurisdiction of the Court of Criminal Appeals by giving notice of appeal on August 2, 1965, after the June term of court had adjourned. We do not agree.

As to such a judgment, the statute which became effective thereafter did not confer jurisdiction upon the Court of Criminal Appeals which it did not. have at the time the judgment was rendered and became final in the trial court.

The state’s motion is granted and the appeal is dismissed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant contends in his motion for rehearing that the opinion of the Court on original submission was in error in holding that the law by which his appeal is controlled is that in effect at the date the judgment was rendered and became final in the trial court. He cites the case of McKennon v. State, 42 Tex.Cr.R. 371, 60 S.W. 41, in support of his contention. That case involved the giving of retroactive effect to a statute which by its very terms applied “to all cases now pending in county courts and the courts of criminal appeals.” This Court there gave literal effect to the statute in a case which was then pending in this Court on appeal, thereby giving the appellant the benefit of the change in the law pending appeal. No such situation exists in the instant case.

Article 1.02, Vernon’s Ann.C.C.P. of 1965 reads as follows: “This Code shall take effect and be in force on and after January 1, 1966. The procedure herein prescribed shall govern all criminal proceedings instituted after the effective date of this Act and all proceedings pending upon the effective date hereof insofar as are applicable.”

Appellant urges that this Article requires that the provisions of the Code of Criminal Procedure of 1965 be applied to the manner by which he gave notice of appeal. We do not so construe the Article and adhere to our view that the applicable rule by which the appeal of this case is to be governed is that which was in effect both at the time the judgment was rendered and at the time appellant attempted to give notice of appeal. See Holdman v. State, Lugo v. State, Tex. Cr.App., 398 S.W.2d 769.

Article 44.08, V.A.C.C.P. of 1965 states that notice of appeal “shall be given and filed within ten days after sentence is pronounced.”

The record in the instant case contains no sentence, such not being provided for in misdemeanors until the effective date of the new code. See Article 42.02, V.A.C.C.P.

Remaining convinced that we correctly decided the case originally, the appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Roy Daniel BRAZIL, Appellant, v. The STATE of Texas, Appellee.
    No. 39585.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Kenneth W. Gentry, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, five years.

Prosecutrix, aged thirteen at the date of the offense charged, stated that she was preparing to watch a television program on the evening of August 21, 1965, when her step-father called her into the living room; after an exchange of words, he forced her down the hallway and, although she attempted to brace herself against the bedroom door, he was successful in getting her into the bedroom. There, according to her testimony, he placed her on the bed, pushed up her brassiere and removed her levis and panties. Prosecutrix further stated that the appellant then placed his sexual organ in her private part and that while all of the above was taking place, she attempted to fight the appellant’s advances. She testified without objection that she had sexual relations with appellant on four occasions prior to the date alleged and that she reported the instant incident to her mother on October 3, 1965.

Dr. Pittman, whose qualifications to testify as a medical expert were stipulated, testified that he examined the private parts of the prosecutrix on October 3, 1965, and found that the hymeneal ring had been destroyed indicating entrance into the vagina. He further testified that in his opinion the prosecutrix had a marital type vagina.

Appellant, testifying in his own behalf, denied that he had ever had sexual relations with his step-daughter. He admitted that he had been convicted for three prior felony offenses and stated that the prose-cutrix didn’t like the way he ran around and drank. He related that his arrest in the instant case took place at the Ramada Inn where he and a lady friend of his wife had retired after his wife had accosted them in a local tavern.

Appellant’s sole contention relates to the insufficiency of the evidence to support the conviction. Appellant relies on the language of Hindman v. State, Tex.Cr.App., 211 S.W.2d 182, a case involving the rape of a fifteen year old girl, where the Court said that although there is no rule requiring corroboration of the testimony of a prose-cutrix in a statutory rape case, “The law requires close scrutiny of convictions resting alone upon the uncorroborated testimony of a prosecutrix in a rape case who testifies to facts showing a rape by force and who makes no outcry.” The Court in affirming the conviction went on to say: “On the other hand, the jury are the exclusive judges of the facts proved and of the credibility of the witnesses, which the courts should be slow to overturn.”

After close scrutiny of the record, we conclude that the testimony of the prosecu-trix comports with human experience, and accordingly, we find the evidence sufficient to sustain the conviction.

The judgment is affirmed.


text:
    Danny Louis ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 39428.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 11, 1966.
    J. Harlan Fleming, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

Mrs. Richards testified that while alone at her duplex home on the night in question she heard a noise and that when she looked out her door into the hallway, she observed that the door to an adjoining vacant apartment was ajar. She further testified that shortly thereafter she -noticed a light at the back of the house which she left on at night was not burning and that someone tried to open the rear door to her apartment, whereupon she called the police. Upon their arrival an officer accompanied her into her vacant apartment and she observed that a screen had been removed, the window had been opened and the drawers to the dressers had been pulled out. She stated that she inspected the vacant apartment regularly and that all the above noted changes had occurred since she last closed and locked the apartment.

Officer Kirkpatrick testified that he was in the neighborhood of Mrs. Richards’ duplex at the time he received' the “prowler call” and that he arrived at the scene within a minute thereafter, where he found appellant standing outside Mrs. Richards’ window in the shrubbery.

Detective Hawkins testified that sometime later in the morning of the day in question he investigated the scene and removed the bulb from the socket at the rear of the house and delivered the same to Officer Fowler. He further stated that he found a fresh cut near the latch on the screen which had been removed from the window.

Officer Fowler testified that he compared a thumb print which he found on the bulb with known prints of appellant and that they were identical.

The prior convictions were established in the manner approved by this Court in Reyes v. State, 172 Tex.Cr.R. 82, 353 S.W.2d 450.

Only two contentions are urged by brief and in argument. His first claim is that the court erred in permitting the State to make proof of the prior convictions in the face of his offer to stipulate as to them in the absence of the jury. This Court in Crocker v. State, 385 S.W.2d 392, reexamined all the authorities on this question and decided the same adversely to appellant.

Appellant’s remaining claim relating to alleged argument of the prosecutor cannot be considered because the same is not brought forward to this Court in any manner provided by statute.

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


text:
    Jesse James MARSHALL, Appellant, v. The STATE of Texas, Appellee.
    No. 39590.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is indecent exposure (Art. 535c Vernon’s Ann.P.C.); the punishment, 5 years.

The record is before us without a statement of facts or bills of exception.

The transcript reveals that notice of appeal was entered as a part of the sentence. It also contains a motion to withdraw such notice of appeal filed thereafter which bears the endorsement of the trial court granting the motion.

The appeal is dismissed.


author: MOORE, Justice.

text:
    Luvada PICKITT, Appellant, v. H. E. PICKITT, Appellee.
    No. 208.
    Court of Civil Appeals of Texas. Tyler.
    March 31, 1966.
    Rehearing Denied April 28, 1966.
    Hollie G. McClain, Gilmer, for appellant.
    Woodrow Edwards, Mt. Vernon, for ap pellee.
   MOORE, Justice.

This is a divorce case in which the appeal is limited to the points relating to the settlement of the property rights of the parties.

Appellee, H. E. Pickitt, filed the suit seeking a divorce from Luvada Pickitt and a division of the community property. The ground for the divorce was seven years’ separation without cohabitation under the provisions of Section 4 of Article 4629, Vernon’s Ann.Tex.Ci-v.St.

The record reveals that the parties had been married since 1907 and now have two grown children. The parties separated in 1946 and thereafter lived separate and apart for a period of eighteen years before the filing of this suit. Since the separation, Mrs. Pickitt has lived with her daughter and has worked in a grocery store which is operated by her son in connection with a restaurant and motel owned by him. Mr. Pickitt has continued to live on the 98 acre farm owned by the parties.

Mr. Pickitt is 70 years of age and Mrs. Pickitt’s age is approximately the same. He testified at the trial, but she did not.

He testified that because of his limited eyesight and because of his age and physical condition, he was no longer able to perform or seek employment or care for his farm. He has had no employment for several years and has been drawing the old age pension.

He admits that at the time of the separation, he retained in his possession the following items of personal property: approximately $860.00 in cash; three (3) vendor’s lien notes in the amount of $500.00; eight (8) head of cattle and several items of household furniture. According to his testimony, most of the household furniture was taken by Mrs. Pickitt.

Since the date of the separation, he admits he has received the sum of $3,000.00 from oil and gas leases on the farm; $600.00 as a result of the condemnation of a portion of the farm; and $10.00 per month from the rent for several years on a small house situated on the farm. He admits that he collected the vendor’s lien notes in the amount of $500.00 and shortly before the trial sold all of the remaining cattle for the sum of $600.00.

It was stipulated that after the date of the separation, Mrs. Pickitt received the sum of $1,250.00 for joining in the oil and gas lease on the farm. As pointed out before, she did not testify. Neither did she offer any testimony showing whether or not she had received or collected any revenue which could be classified as community property, except that for the oil and gas lease. According to the testimony of her son, she worked for him continuously since the separation in his grocery store and although he furnished her with groceries, he paid her no salary.

According to the testimony of Ralph Byn-um, a real estate agent called by appellant, the farm, without any improvements, had a value of $125.00 per acre. He testified that the land had an average value of $125.00 an acre and that without the improvements, the south half thereof had the same value as the north half. All of the improvements are situated on the south half of the farm and according to his testimony, have a value of $1,750.00.

Mr. Pickitt testified at the time of the trial that he had the sum of $1,000.00 on deposit in the bank. In connection with the division of the land, he testified that Mrs. Pickitt had theretofore made numerous requests that she be awarded the north one-half of the land as her share of the community real estate which was agreeable with him.

Trial was before the court without a jury and at the conclusion thereof, the court rendered judgment granting the plaintiff a judgment of divorce and awarding appellant, Mrs. Luvada Pickitt, the north one-half of the land and H. E. Pickitt the south one-half with the improvements thereon and also allowed Mrs. Pickitt the sum of $100.00 cash. She excepted to the ruling of the trial court and by this appeal contends that the court’s division of the community property was not fair, just or equitable in that the property was not equally divided.

It is apparent from the evidence that the court did not require the appellee to account for all of the rents and revenue of the community estate during the long period of separation. It is likewise apparent that the court did not equally divide the community property on hand at the time of the divorce. The statute, however, does not require the court to make an equal division of the community. Article 4638, V.A.T.S.; Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002; Williams v. Williams, 160 Tex. 99, 325 S,W.2d 682.

The judgment of the trial court dividing the property of the parties was entered pursuant to Article 4638, supra, which provides that: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, * * * »

The statute clearly vests discretion in the trial court in determining the proper division of the community estate of the parties. Carle v. Carle, supra.

In the exercise of this discretion, the court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate and the relative abilities of the parties. Hudson v. Hudson, (Tex. Civ.App.) 308 S.W.2d 140; Duncan v. Duncan, (Tex.Civ.App.) 374 S.W.2d 800; Middlesworth v. Middlesworth, (Tex.Civ.App.) 380 S.W.2d 790.

Probable future need for support seems to be the most important factor. Vol. 13, Vernon’s Texas Civ.St., Sec. 12, page 48. The record leaves little doubt that the children of the marriage have been most understanding with their mother’s side of the controversy, and that they will in all probability take care of her future needs. Considering the size of the estate, the age and relative abilities of the parties, together with their relative need for support, and viewing the entire record in a light most favorable to the judgment, we cannot say that the division of the property was manifestly unfair or that the court abused its sound discretion in so partitioning it. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Clark v. Clark, (Tex.Civ.App.) 362 S.W.2d 655.

The judgment of the trial. court is affirmed.

SELLERS, J., concurs.

DUNAGAN, C. J., not participating.


author: CHADICK, Chief Judge.

text:
    FORD MOTOR CREDIT COMPANY, Appellant, v. A. J. DRAPER et ux., Appellees.
    No. 7727.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1966.

      Gordon H. Rowe, Jr., Leachman, Gar-dere, Akin, Porter & DeHay, Dallas, for appellant.
    Woodrow Edwards, Mt. Vernon, for ap-pellees.
   CHADICK, Chief Judge.

This is a venue case. Trial court judgment overruling a plea of privilege is affirmed.

The judgment rendered implies that the trial court held proof supported venue in Franklin County, under the provisions of either or both Subdivisions 9 and 23, Article 1995, Vernon’s Ann.Tex.Civ.St., of a suit for damages occasioned by the conversion of an automobile. The first two of the credit company’s four points of error denounce the admission of testimony of James Yates’ conversation, statements and conduct in the course of his effort to repossess an automobile belonging to A. J. Draper and wife, Bobbie, the appellees herein; the other two points question the judgment rendered on the grounds that the record contains no competent evidence to support findings that the company or its agent or representative committed a crime, offense or trespass, in Franklin County, or that a cause of action, or part thereof, against the company, arose in such county. The statement and argument under the points leave some venue facts out of dispute; so only the questioned elements will be discussed.

Officials of appellant Ford Motor Credit Company decided on or about December 7, 1964, to retake possession of the Drapers’ 1963 Galaxie four-door sedan. To execute the decision the credit company employed a firm known in the record as Allstate Adjusters. The automobile was repossessed and Allstate Adjusters reported to the credit company that an employee, Jim Yates, effected repossession. These facts were established by the credit company’s replies to the Drapers’ interrogatories propounded in accordance with the provisions of Rule 168, Vernon’s Ann.Tex.Rules.

In and as a part of the credit company’s response to the Drapers’ interrogatories the company denied that its agents or representatives repossessed the vehicle, and declared that Allstate Adjusters was an independent contractor with the company. The content of the contract between the company and Allstate Adjusters is not divulged in the company’s replies, nor are the terms of the contractual relationship between them otherwise produced. The Drapers’ brief treats the company’s replies to the interrogatories as though they were admissions made pursuant to request authorized by Rule 169. The problem this presents will be noticed next.

Present Rule 168 provides for interrogatories to be propounded by one party to other parties in a lawsuit, and authorizes the admission of evidence gathered thereby in the trial of the suit, subject to compliance with the general rules of evidence and the limitation that such admissible evidence “may be used only against the party answering the interrogatories”. Without attempting to detail the distinction it is apparent on comparison that interrogatories propounded and answers thereto under present Rule 168, which was adopted and became effective in 1962, are not intended to perform the function of, supplant, or have the effect of request and admissions in response thereto authorized by the much earlier Rule 169, which went into effect in 1941. The credit company’s replies to the Drapers’ interrogatories are not to be treated as admissions made pursuant to Rule 169. The probative effect of the company’s replies to interrogatories are to be determined by their character as admissible evidence and not as Rule 169 admissions, though as evidence the replies may embody admissions of fact and have effect as such.

The facts established by the credit company’s replies to interrogatories set out earlier in the opinion are sufficient to support the trial judge’s implied finding that Jim Yates was the agent of the company in repossessing the Drapers’ car. This conclusion stems from principles now to be mentioned. The credit company’s reply that Allstate Adjusters was employed to repossess the automobile creates a rebutta-ble presumption that the relationship of master and servant resulted from the employment. Ochoa v. Winerick Motor Sales Company, 127 Tex. 542, 94 S.W.2d 416, op. adpt. The burden of rebutting the master-servant presumption and of proving Allstate Adjusters an independent contractor was upon the credit company. Taylor, B. & H. R. Co. v. Warner, 88 Tex. 642 at 648, 32 S.W. 868 at 870. See also “Independent Contractors”, 30 T.J.2d 495, Sec. 14. No evidence was tendered on the issue and in the absence of proof establishing an independent contractor relationship claiming that status changes nothing. The Allstate Adjusters, as a firm, was employed to repossess the Draper automobile and as an employee was a representative of the company in that endeavor, and in a broad sense the company’s agent. See Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554, where it is said: “One who acts in my behalf, for my advantage, by my authority, is my agent.”

The company’s contention that the report it received from Allstate Adjusters that such firm’s employee, Yates, had repossessed the car was hearsay and without probative force is not sustained by the record. When the company conceded in its reply to an interrogatory that it had been advised that Yates, an Allstate Adjusters’ employee, repossessed the Draper car, the specific duty Allstate was employed to perform, such statement was admissible as primary evidence. See “Agency”, 2 T.J. 747, Sec. 276 ; 3 Am.Jur.2d 711, Sec. 354, 3 C.J.S. Agency § 322d, p. 281; 2 Restatement of the Law — Agency, Sec. 289, Comment b., p. 652.

In addition to the facts previously related, the record contains testimony that Yates called on Mrs. Draper, informed her that he had come to repossess the automobile, and asked for the keys. She declined to surrender them unless her husband, who was then in a hospital, consented. An understanding was reached that they would meet at the hospital and discuss release of the car with Mr. Draper. The hospital was at Mount Vernon in Franklin County. Yates was first to Draper’s hospital room, and informed him of his intention to repossess the automobile. Mr. Draper insisted that no payments were past due on his account with the company and Yates withdrew, professing to agree to go with Mrs. Draper and ascertain whether or not a check that Draper claimed to have tendered in payment of delinquent payments had been or would be accepted by the bank. Mrs. Draper arrived and parked the automobile on the hospital grounds and proceeded' to Draper’s hospital room without encountering Yates. She briefly discussed the repossession affair and left to find Yates and cooperate with him in investigating the check. She went outside the hospital and discovered the automobile had been removed from the hospital grounds. She failed to find Yates. The credit company’s brief states that, “Yates disappeared contemporaneously with the disappearance” of the automobile.

The hiatus in proof of facts necessary to sustain Subds. 9 and 23, Art. 1995, that the credit company argues under its two “no evidence” points is that there is no evidence that an agent or representative of the company repossessed the automobile in Franklin County. The evidence that Yates appeared at the Draper home in Franklin County and at Draper’s hospital room, advised the Drapers that he was there for the purpose of repossessing the car, together with the company’s statement that Yates did repossess the car, and the frank statement that Yates and the car simultaneously disappeared from the hospital within a few minutes of the time the car was parked is probative evidence supporting the trial judge’s implied finding that Yates did take the car in Franklin County, Texas.

The judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    O. E. MILLER, Appellant, v. John L. BURKE, Appellee.
    No. 4441.
    Court of Civil Appeals of Texas. Waco.
    March 10, 1966.
    Painter & Painter, James R. Roos, Houston, for appellant.
    Joe W. Steelman, Houston, for appellee.
   TIREY, Justice.

This is an appeal by defendant, Miller, from an order of the District Court of Harris County (non jury) overruling his plea of privilege to be sued in Cherokee County, the county of his residence.

The judgment is assailed on two points. They are to the effect that the Court erred:

(1) In overruling appellant’s plea of privilege because appellee failed to introduce any evidence concerning location and thereby failed to prove by a preponderance of the evidence that the event complained of occurred in Harris County, Texas.
(2) In overruling appellant’s plea of privilege in that the findings necessarily made to uphold this position are so against the overwhelming weight and preponderance of the evidence adduced at the trial as to be clearly erroneous.

We sustain each of the foregoing propositions for reasons hereinafter briefly stated.

Pertinent to this discussion, plaintiff, in his original petition, alleged:

“That on March 6, 1965, at 5000 Eastex Freeway, in Houston, Texas, defendant was guilty of negligence in that he failed to keep a proper lookout, failed to maintain control of his vehicle, failed to follow at a safe distance, and failed to operate his vehicle at a safe rate of speed, and that as a result of such acts, defendant drove into collision with plaintiff causing bodily injury to plaintiff and property damage to plaintiff’s vehicle.”

Defendant Miller seasonably filed his plea of privilege in statutory form to be sued in Cherokee County, the county of his residence. Plaintiff controverted the plea and in the controverting plea he denied the allegations in the defendant’s plea of privilege that no exception exists as to exclusive venue, and further alleged that the accident occurred in Houston, Harris County, Texas, 5000 Eastex Preeway. He attached a copy of his original petition to his controverting affidavit as Exhibit “A” and made it a part of the same and prayed that the court overrule defendant’s plea of privilege.

We have carefully read the statement of facts and we find no evidence whatsoever in the statement of facts stating that the accident occurred in Houston or in Harris County, Texas. As we understand appel-lee’s brief, he is relying on the conversation between him and the court shown in the statement of facts to sustain venue in Harris County.

“The Court: Do you have anything else ? Mr. Steelman: The only thing else is, of course, we are alleging that the defendant — the negligence was committed here in Harris County.
The Court: You have got that and I have heard your evidence.
Mr. Steelman: That’s all.”

This court, in Lynch v. Millican, 304 S.W.2d 410, made what we believe to be an accurate statement with reference to burden of proof in this type case. The Court said:

“It is well settled that with the venue challenged, under proper plea, by one sued without his county, the burden not only to allege, but to prove that the case is within one of the exceptions to the statute rests on plaintiff * * * and to defeat the plea of privilege, he must both plead and prove the facts relied on to bring the case within one of the exceptions. The issue made is tried in the ordinary way, and the truth as to the facts in issue is to be ascertained by the introduction and weighing of evidence offered by both sides. In short, a plaintiff seeking to maintain venue in another county must prove by a preponderance of the evidence the facts that bring his cause within one of the exceptions to Article 1995.”

Citing Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93, and many other cases. We think the foregoing statement of the rule is in accord with the doctrine announced in the Compton case, and our Supreme Court has not seen fit to change this rule.

As we have previously stated, there is an absence of testimony in the statement of facts showing that this accident occurred in Harris County, Texas.

Going back to the statement made by the court and assuming, without deciding, that the foregoing constituted a finding of fact by the trial court, it is not binding on the court here under the doctrine announced by our Supreme Court in Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, wherein the Supreme Court said:

“There is nothing in the rules which provides that in a case tried before the court without a jury the findings of fact are conclusive on appeal when a statement of facts appears in the record.”

Citing many cases. See also Tex.Digest, Appeal and Error, ©⅞65. That is the exact situation here. So far as we have been able to find the Supreme Court has not changed the foregoing rule.

There being no evidence whatsoever in the statement of facts that the accident occurred in Harris County, Texas, plaintiff has wholly failed to carry his burden, and the judgment of the trial court is accordingly reversed and rendered, and the cause is transferred to the District Court of Cherokee County. The Clerk of the District Court of Harris County is hereby directed to make a transcript of all the orders made in said cause and certify thereto officially under the seal of the court, and send it with the original papers in the cause to the Clerk of the District Court of Cherokee County. See Rule 89, Texas Rules of Civil Procedure.

All costs herein are taxed against plaintiff.

Reversed and rendered.


author: WILSON, Justice.

text:
    STATE of Texas, Appellant, v. T. M. WHITE et al., Appellees.
    No. 4469.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    Rehearing Denied April 14, 1966.
    Waggoner Carr, Atty. Gen., Robert D. McGee, Asst. Atty. Gen., Austin, for appellant.
    Martin & Martin, Hillsboro, McKool & McKool, Les King, Dallas, for appellees.
   WILSON, Justice.

In an eminent domain proceeding the condemnor contends the judgment is void because it was rendered out of term while the County Court was in vacation and recess. The trial commenced August 8, 1965 and concluded with a jury verdict on August 12th. The judgment in condemnation was rendered September 2, 1965 and the order overruling appellant’s motion for new trial is dated September 28th.

In January, 1947 the Commissioners Court entered an order fixing the terms of the County Court for transaction of civil business to be held on the third Monday in January, March, May, July, September and November, and to continue in session for six weeks. On July 12, 1965 an order was adopted reciting it was necessary to increase the length of County Court terms, and providing that they should begin on the first Monday of the same months previously fixed, and “remain in session until 12 o’clock of the Saturday night immediately preceding the first Monday of the succeeding term.”

The pertinent constitutional and statutory provisions are presented by Justice Norvell in Henn v. City of Amarillo, 157 Tex. 129, 301 S.W.2d 71, and will not be repeated here. The July 12th order had the effect, in our opinion, to fix, extend and defer termination of the July, 1965 term of the County Court to midnight, September 4, 1965. i. e., the Saturday before the first Monday in September.

Art. 1962, Vernon’s Ann.Civ.St, requires only that the order fixing the length of terms be entered “at a regular term” of the Commissioners Court. The 1965 order was so entered.

In fixing the terms of the County Court under authorization of Art. 5, Sec. 29 of the Texas Constitution, Vernon’s Ann.St. and Art. 1962, Vernon’s Ann.Civ. St., the Commissioners Court performs a legislative function and its order is subject to the rules of statutory construction. 2 Sutherland, Statutory Construction (3d ed.) Sec. 3905, p. 273; 1 Yokeley, Municipal Corporations (1956), Sec. 83, p. 211; 37 Am.Jur., Municipal Corporations, Sec. 187, p. 826.

In the absence of a provision deferring commencement of its operation, a legislative act or order of the Commissioners Court is effective as soon as it becomes law. A statute “speaks as of the time at which it takes effect.” Moorman v. Terrell, 109 Tex. 173, 202 S.W. 727 ; 2 McQuillin, Municipal Corporations (Rev. ed.) Sec. 702, p. 735; 1 Sutherland, Statutory Construction, Sec. 1604, p. 267.

When the 1965 order was adopted it immediately fixed the regular July term of the County Court and the court was then in session. The order authorized it to “remain in session” through the date on which judgment was rendered. We are not here concerned with retrospective effect of the order on proceedings which occurred prior to its effective date, but on a subsequent judgment. The proceedings under attack therefore took place during the term; not in vacation.

In our opinion the court properly overruled appellant’s motion for new trial raising this contention. We have considered, and overrule appellant’s other point concerning excessiveness of the verdict.

Affirmed.

      . In Reserve Life Insurance Co. v. Clary, Tex.Civ.App., 330 SW.2d 626, no writ, relied on by appellant, the new order was not adopted until after the judgment complained of was rendered. The case is not in point. In Doss v. Waggoner, 3 Tex. 616, the Act fixing the term became effective after the spring session “had already passed.” The portion of the opinion in Quinn v. Dickinson, Tex.Civ.App., 146 S.W. 993, no writ, relied on, is dictum. In that case the term fixed by the new law had completely expired before the judgment was rendered, and it was impossible for the judgment to have been rendered during the newly created term.


author: McDONALD, Chief Justice.

text:
    Bobby R. KEMP et ux., Appellants, v. Mildred A. MOORE et al., Appellees.
    No. 4437.
    Court of Civil Appeals of Texas. Waco.
    March 10, 1966.
    Billy E. Lee, Houston, for appellants.
    Cesare J. Galli, Jr., Joe H. Rojo, Houston, for appellees.
   McDONALD, Chief Justice.

This is an appeal by defendants from a judgment for plaintiffs in a breach of contract case. Plaintiffs alleged they entered into an oral contract with defendants under the terms of which they paid defendants $210 to furnish plaintiffs a complete course in cosmetology; that plaintiffs appeared at the time and place requested by defendant, ready to receive instruction, but defendants failed to give any instruction to plaintiffs’ damage of $210.

Defendants answered that plaintiffs, without justification, ceased taking instruction and demanded their money back; that defendant refused to refund the $210 but remained ready to complete the instruction.

Trial was before the court without a jury, which, after hearing, entered judgment for plaintiffs for $210.

Defendants appeal, contending the plaintiffs were not entitled to a refund of their $210 because plaintiffs themselves breached the contract.

The evidence reflects that plaintiff Mrs. Moore contracted orally with defendant Mrs. Kemp to give her niece and husband, plaintiffs Milligan, a complete course in cosmetology in the Kemp Beauty College for $210. The Milligans registered at the Beauty School and Mrs. Kemp represented that the school was operating and that there would be classes every day. The Milligans went to the school for 2 successive days and received no instructions, and “Mrs. Kemp had not as much as spoken to them.” The Milligans left the school after 2 days of doing nothing and receiving no instructions; and Mrs. Moore demanded a return of the $210, which demand was refused by Mrs. Kemp.

Mrs. Kemp testified as to the making of the contract; that the course of instruction at the Beauty School runs some 1000 hours and for a period of 6 months; that there is a “period of getting acquainted prior to getting into full sway,” and that the Milli-gans were “getting instruction and not realizing it”; and that “formal instruction usually begins on the third or fourth day.”

As noted, trial was before the Court without a jury, and the trial judge was the judge of the credibility of the witnesses, and the weight to be accorded their testimony. The contract to teach plaintiffs Milligan cosmetology for the $210 is undisputed Whether defendant breached the contract by giving the Milligans no instructions during the first 2 days, or whether the Milli-gans breached the contract by leaving the school at the end of the second day is the sole question for determination. From the record, we think the trial court had the right to conclude that defendant breached the contract. Defendants’ contentions are overruled. Affirmed.


author: DAVIS, Justice.

text:
    H. L. FLURRY, Appellant, v. HILLCREST STATE BANK OF UNIVERSITY PARK, Appellee.
    No. 7709.
    Court of Civil Appeals of Texas. Texarkana.
    April 5, 1966.
    Rehearing Denied April 26, 1966.
    Parker McVicker, McVicker & Evans, Lufkin, for appellant.
    Edward J. Drake, Brady, Drake & Wilson, Dallas, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, Hillcrest State Bank of University Park, sued defendant-appellant, H. L. Flurry, on the last of a series of five notes, alleging a balance still due of $6,-318.00, plus 10% interest and attorney fees. According to the evidence as offered by ap-pellee, there was only $6,311.00 due. Appellant filed a verified denial in which he alleged all the notes were usurious, and filed a cross-action. Appellant alleged that he had actually borrowed $49,002.00, and had paid back $51,948.00. He further alleged that because the notes were usurious, all the payments made should have been applied to the principal, and that appellee had been overpaid. The $49,002.00 received by appellant and the amount of $51,948.00 that he had paid to appellee on the notes were stipulated to in the trial of the case. Appellant sought judgment for the amount of $2,928.-00 as the excess amount that was paid on the notes, and credited as interest. Trial was to the court, without a jury, who rendered judgment for the appellee for the sum of $6,318.00, plus 10% interest and attorney’s fee. Appellant has perfected his appeal and brings forward 3 points of error.

History

On January 5, 1960, appellant borrowed $17,502.00 from the appellee, and was required to give a note in the principal sum of $20,652.00. $3,150.00 is supposed to represent interest on the note for 36 months. The appellant was required to open an Industrial Savings Account with the appellee, agreeing to pay certain consecutive monthly deposits in said account. In the Collateral Agreement he made an Assignment of the Industrial Savings Account purportedly as further security to pay the note. Appellant also executed a Chattel Mortgage on certain laundry equipment that was situated in the City of Dallas. Appellant was required to make monthly payments or deposits of $575.00 for 35 months, and $527.00 for the 36th month. Under the facts in the case, the Note was an amortized note. Figuring the interest at 10% on $17,502.00 on this Note, the monthly payments would amount to $564.69 per month. The payments that were required in the note were in excess of the 10% that can legally be charged.

All the other Notes, Collateral Agreement and Assignment, and Chattel Mortgages contained the exact similar requirements.

On January 12, 1961, appellant borrowed $18,000.00, and was required to give a Note for $21,540.00. The Note called for monthly payments or deposits of $598.00 for 35 months and a final payment of $610.00. The $3,540.00 that was added as interest exceeds 10% per annum that could be legally charged.

On April 17, 1962, appellant renewed Notes 1 and 2. After deducting the monthly payments on each Note, he executed a new Note for $21,223.00. This Note called for monthly payments or deposits of $590.-00 for 35 months, and a final payment or deposit of $573.00. The interest on this Note exceeded 10% per annum that could be legally charged.

On April 18, 1963, appellant borrowed $13,500.00. He was required to give a Note in the face amount of $16,335.00, payable in monthly payments or deposits of $452.00 for 35 months, and a final payment or deposit of $515.00. The $2,835.00 added to this Note as interest exceeded 10% per annum that could be legally charged.

In calculating the money that was paid back on the principal of the loans there was only $12,948.00 due on July 15, 1963. On July 15, 1963, appellant executed the fifth Note as a renewal of Notes Nos. 3 and 4 in the face amount of $29,826.00. The Note reads as follows:

“INSTALLMENT NOTE
Dallas, Texas
“Date 7-15-63 $29,826.00
Amount of Loan
Name H. L. Flurry
“-36 months after date, without grace, for value received, I, or we, jointly and severally, promise to pay to the order of THE HILLCREST STATE BANK at its office in University Park, Dallas County, Texas, * * * P. O. Dallas, Texas the sum of Twenty-nine thousand eight hundred twenty-six & No/100 Dollars ($29,826.00) with interest from maturity at the rate of 10% per annum. We, the makers, sureties, endorsers and guarantors of this note, hereby severally waive presentation for payment, notice of non payment, protest and notice of protest and diligence of bringing suit against any party hereto, and consent that the time of payment may be extended without notice hereof to any of the sureties on this note. It is expressly agreed that if this note is placed in the hands of an attorney for collection or suit brought on same, or if collection is effected through bankruptcy or probate court, then, and in that event, we agree to pay the owner or holder of this note 10% additional on the principal and interest as attorney’s fees.
The borrower having agreed to open an industrial savings account with the Hillcrest State Bank further agrees to make consecutive monthly deposits in said bank as follows:
DATE OF FIRST DEPOSIT: 8-17-1963 36 MONTHLY DEPOSITS of $828.50 EACH and a_.th and final deposit to be made on_, 19_, in the amount of $___Each monthly deposit set forth above shall be due on the —th day of each month until a fund sufficient to pay off the note shall be available. I, or we, expressly agree that upon default in making such deposits the balance of this note shall become due and payable.
If the Hillcrest State Bank elects to accept a deposit 15 or more days after its due date, then the undersigned agree (s) to pay said bank when such late deposit is made a late penalty charge of $3.50 for each monthly deposit 15 or more days past due, to defray the Bank’s extra expenses in handling such delayed deposit.
ADDRESS PHONE NAME
6408 Prestoncrest AD9-2204 /s/ H. L. Flurry”
Simultaneous with executing the above note, the appellant executed the following Collateral Agreement and Assignment:
“COLLATERAL AGREEMENT AND ASSIGNMENT
Date Name _$29,826.00
“Being desirous as are my sureties on the note mentioned hereinafter that a sinking fund be created to pay off said note at its maturity, I, the undersigned, in consideration of $1.00 cash in hand paid by the Hillcrest Stat Bank, University Park, P.O. Dallas, Texas, receipt of which is now acknowledged, and for the further consideration of said Bank’s making a loan to me of $29,826.00 for 36 months, and for the further consideration of the sureties on said note signing same, do hereby open an industrial savings account with the Hillcrest State Bank and agree to make the following number of consecutive monthly deposits in the same account as follows:
DATE OF FIRST DEPOSIT: 8-17-1963 36 MONTHLY DEPOSITS @ $828.50 and a_th and final deposit to be made on_, 19_, in the amount of $-Each monthly deposit set forth above shall be due on the. — th day of each month until a sufficient fund shall have been accumulated to pay said note in full at its maturity. I hereby transfer and assign to said Bank my industrial Pass Book and my industrial savings account represented by said Industrial Pass Book, as additional collateral for said loan, and hereby authorize said Bank or its assigns to apply said funds as a credit on my said note at any time I fail or refuse to continue to make said deposits as above described, and authorize said Bank or the holder of said note, to declare said note due, and when said savings account has accumulated to the amount sufficient to pay said note and the interest thereon, said Bank is authorized and directed to apply the proceeds of said industrial savings account to the payment of said note at its maturity.
BUSINESS ADDRESS_PHONE_NAME /s/ H. L. Flurry”
On July 18, 1963, the appellant executed a Chattel Mortgage which reads, in part, as follows:
“THE STATE OF TEXAS 1 KNOW ALL MEN BY THESE COUNTY OF DALLAS J PRESENTS:
“That I, H. L. Flurry, of Dallas County, Texas, hereinafter called the Mortgagor, in consideration of the sum of one dollar to me in hand paid by Hillcrest State Bank, a corporation hereinafter called bank, and for other valuable considerations, receipt of which is hereby acknowledged, have bargarined, sold and conveyed, and by these presents bargain, sell and convey unto said bank, its successors and assigns, the following described personal property, now located and situated in the County of Dallas, State of Texas, to-wit:
(Description of property omitted)
together with all of the increase of, from and to, the above described property, prior to the full payment of the indebtedness hereinafter referred to. * * *
i* ⅜ * *
“This conveyance, however, is intended as a mortgage to secure said bank, its successors, and assigns, in the payment of certain indebtedness due and owing by me evidenced by one certain promissory note, as follows: One note dated July 18, 1963 due in 36 equal monthly installments of $828.50. One note dated beginning August 17, 1963 for $29,826.00 and as well to secure the payment of all other indebtedness now owing said bank, and any and all indebtedness hereafter to become owing said bank, its successors, assigns or legal representative, whether evidenced by note, overdraft, or otherwise, which said indebtedness now or hereafter owing it is agreed shall be payable to the order of said bank at its office in Dallas, Texas, and bear interest at the rate of ten per cent per annum from date of accrual until paid, and the same shall stand secured by and payable under this mortgage with the other indebtedness herein mentioned. * * * ”

In carefully considering each and all of the Notes, Collateral Agreement and Assignments, and the Chattel Mortgages, we hold that the Notes were payable in monthly payments. All the Notes were amortized notes. On each of said Notes the interest that the appellee could collect exceeded 10 per cent. In the Note hereinabove copied, it says: “36 months AFTER DATE, without grace, * * * I, * * * promise to-pay to the order of the Hillcrest State Bank * * This would indicate that the Note was payable at the end of 36 months. As we look further into the Note it says: “The borrower having agreed to open an industrial savings account with the Hillcrest State Bank further agrees to make consecutive MONTHLY deposits in said bank as follows: * * ⅜.” The Note also provides that: “Each MONTHLY deposit set forth above shall be DUE on the -— day of each month until a fund sufficient to PAY OFF THE NOTE SHALL BE AVAILABLE. * * *. The Note also provides that: “I * * * expressly agree that upon DEFAULT OF MAKING SUCH DEPOSITS THE BALANCE OF THIS NOTE SHALL BECOME DUE AND PAYABLE.” (All emphasis added) •

By the Collateral Agreement and Assignment, the appellee required the appellant to create a sinking fund. He executed the agreement and assignment which actually required him to make the 36 monthly deposits, or payments, on said Note. Appellant assigned his Pass Book and all interest in the Industrial Savings Account to the appellee. The Collateral Agreement provides: “I hereby transfer and assign to said bank my Industrial Pass Book and my Industrial Savings Account represented by said Industrial Pass Book, as additional collateral for said loan, AND HEREBY AUTHORIZE SAID BANK OR ITS ASSIGNS TO APPLY SAID FUNDS AS A CREDIT ON MY SAID NOTE AT ANY TIME I FAIL OR REFUSE TO CONTINUE TO MAKE SAID DEPOSITS AS ABOVE DESCRIBED, AND AUTHORIZE SAID BANK OR THE HOLDER OF SAID NOTE TO DECLARE SAID NOTE DUE, * * (Emphasis added). These provisions clearly indicate that the Note was payable monthly.

Then we look at the Chattel Mortgage lien. When referring to the Note, the lien provides in part as follows: “This conveyance, however, is intended as a mortgage to secure said bank, * * ⅝ in the payment of certain indebtedness due and owing by me evidenced by ONE CERTAIN PROMISSORY NOTE as follows: One note dated July 18, 1963, DUE IN 36 EQUAL MONTHLY INSTALLMENTS OF $828.-50, ONE NOTE DATED BEGINNING AUGUST 17, 1963, for $29,826.00 * *.” (Emphasis added). By the actions of the appellee and the appellant, the Note was payable in monthly payments. The provision and requirements were contained in each and all of the Notes, Collateral Agreements and Assignments, and Chattel Mortgage liens.

Opinion

Appellant says the trial court erred in failing to find, as a matter of law, that the loan transactions violated the usury laws of the State of Texas, that the deposits to the industrial savings accounts were actual payments on said notes, and that judgment should be rendered for appellant for the amount in excess of the principal that was paid to the appellee by appellant.

In carefully considering the record, the interest charged on the Notes is in excess of the amounts allowed by law. Art. 5071, Vernon’s Ann.Tex.Civ.St. The maximum amount of interest that could be charged is not to exceed 10%. The interest charged on each of the series of notes was usurious. Art. 5069, V.A.T.C.S. These articles were in force and effect at the time the loans were made, and they have not been repealed. Community Finance & Thrift Corp. v. State of Texas (Tex.1961), 343 S.W.2d 232. All money paid on the Notes should have been credited to the principal, because the interest was illegal. The meaning of the Note, the Collateral Agreement and Chattel Mortgage are ambiguous, but by the action taken by the appellee and in consideration of these instruments, the Notes were payable monthly, and they all called for usurious interest. Davis v. Federal Mortgage Co. (1938), 131 Tex. 46, 111 S.W.2d 1066; State of Texas v. Community Finance & Thrift Corp. (CCA 1960) 334 S.W.2d 559, affirmed, 1961, 161 Tex. 619, 343 S.W.2d 232; Adleson v. B. F. Dittmer Co. (1935) 124 Tex. 564, 80 S.W.2d 939, Op. Adpt. by Sp.Ct., Moser v. John F. Buckner & Sons, (CCA 1956) 292 S.W.2d 668, W.R., N.R.E.; Federal Mortgage Co. v. Davis (CCA) 100 S.W.2d 717, affmd. 131 Tex. 46, 111 S.W.2d 1066; Kollman v. Hunnicutt (CCA 1964) 385 S.W.2d 600, N.W.H.; Federal Mtg. Co. v. State National Bank of Corsicana (CCA 1923) 254 S.W. 1002; 55 Am.Jur. 332 and 334, Secs. 14 and 15; 55 Am.J. 364, Sec. 55; 91 C.J.S. Usury § 40, p. 621; 58 T.J.2d 83, Sec. 15; 58 T.J.2d 122 and 123, Secs. 43 and 44.

We hold that all the Notes were usurious; that all money paid on the Notes should have been credited on the principal, and that the appellant is entitled to a judgment for $2,948.00. The points are sustained.

The judgment of the trial court is reversed and rendered.


author: SELLERS, Justice.

text:
    NATIONAL INSURANCE COMPANY OF AMERICA et al., Appellants, v. Jerry BROOME, Appellee.
    No. 205.
    Court of Civil Appeals of Texas. Tyler.
    March 31, 1966.
    Rehearing Denied April 28, 1966.
    Dean W. Turner, Bath & Turner, Henderson, for appellants.
    Vaughan O. Stewart, Wellborn & Houston, Henderson, for appellee.
   SELLERS, Justice.

The plaintiff, Jerry Broome, filed this case in the trial court on January 13, 1965 against the defendant National Insurance Company of America and Robert Beebe. Plaintiff, in his petition, alleges:

“1.
“Plaintiff is a resident of Gregg County, Texas. Defendant Beebe is a resident of Rusk County, Texas, and can be reached for service at his home at 616 Turner Street, Kilgore, Texas. Defendant National Insurance Company of America is either a Texas corporation or a foreign corporation licensed to do business in Texas and actually doing business in Texas.
“2.
“On or about October 26, 1964, defendant Beebe, acting on behalf of National Insurance Company of America and by its authority, employed plaintiff as an agent to solicit and sell life insurance for the defendant company. It was agreed between the parties, that plaintiff would work full time at acquiring purchasers for National’s insurance policies, that in consideration for this employment Plaintiff was guaranteed a salary of $500.00 per month for at least three months from the date of employment, that for the next three months following the expiration of the initial three months of employment plaintiff would be paid a salary of $500.-00 per month if commissions earned by him in the sale of life insurance had not reached an amount sufficient to establish a $500.00 monthly income for plaintiff. Stated in another way, defendant Beebe promised and guaranteed to plaintiff a minimum monthly income of $500.00 per month for the first six months of his employment for Beebe and the National Insurance Company of America.
“3.
“In reliance on these promises and assurances, and in consideration thereof, plaintiff terminated his then existing employment with Southland Corporation and began working for defendant Beebe and National Insurance Company of America. Plaintiff was drawing a monthly salary of $325.00 from Southland Corporation, plus a percentage commission on sales, at the time he terminated that employment and entered the employ of defendants. Plaintiff and defendants contracted with express reference to the promised salary hereinbefore mentioned in exchange for and in consideration of plaintiff’s full participation in the sales program of defendants.”

The defendants filed separate answers to this petition in which they both pled a general denial. The case was tried to a jury and resulted in a judgment against both defendants, jointly and severally, for the sum of $1,794.38. From this judgment, both defendants have prosecuted an appeal to this court. Both defendants filed motions for continuance of this case which were overruled by the trial court. The proceedings with reference to these motions, as stated in appellants’ brief, are as follows:

“ * * * This case was originally filed on January 13, 1965, at which time the six months period claimed by Plaintiff under his alleged contract with Defendants had not expired. The case was set for trial at the first term of Court after it was filed, such term beginning on the first Monday in March, 1965.
“Between the time he was served and the date of the trial, Defendant Beebe was arrested and given a jail sentence in Shreveport, Louisiana, for giving a hot check, and he was still in jail when the case was called for trial on April 5th. Defendants NICOA (this reference is to the defendant insurance company) and Beebe filed a joint motion for continuance on said date which was not controverted. The case was not reached for trial and was reset for April 26, which was during the same term of Court. On that date, NICOA filed a separate First Amended Motion for Continuance, alleging that Beebe was confined in the Cad-do Parish Jail in Shreveport, Louisiana, was not subject to subpoena, would not be able to respond to a subpoena to testify as a witness at said trial, and that he was the only person cognizant of numerous facts alleged by Plaintiff including the alleged employment of Plaintiff, the alleged salary, the alleged sales and activities of Plaintiff, the amount of damages, and numerous other facts and claims which the other Defendant in the case could not possibly anticipate before the trial, but which could be controverted by the testimony of Beebe.
“Defendant Beebe, in his separate First Amended Motion for Continuance filed on said date, set forth the same facts including the fact that Beebe would deny the allegations of Plaintiff. In said motion, Mr. Beebe’s counsel also stated that he had attempted to talk to his client regarding the facts of this case and had been denied the opportunity to do so by the jailer, and by the Deputy Sheriff of Caddo Parish, Louisiana. Attached to said motion was the sworn statement of the Sheriff of Caddo Parish, Louisiana, showing Beebe to be in jail and giving the date of the beginning of his sentence and the length of term. These motions were controverted by the Plaintiff.
“Upon hearing, Mr. Lapin, testified that he had made several attempts to get in touch with his client, Beebe, and was not even permitted to talk to him over the telephone.
“Defendants’ motions for continuance were overruled by the Court and the case proceeded to trial in the absence of Defendant, Beebe.”

The plaintiff’s contest to the motions for continuance is based largely upon the ground that defendants did not use diligence in securing the depositions of Beebe.

In view of the fact that this was an appearance case at this term of Court, that Beebe was a party defendant and had retained an attorney to represent him, that he was the only witness who could dispute the allegations of plaintiff’s petition as to the contract of employment, and that he was at the time beyond the jurisdiction of the Court and was imprisoned in jail in Shreveport, Louisiana, and was denied the privilege of communicating with his attorney, in our opinion the Court should have granted both applications for continuance.

We are of the opinion that any lack of diligence on the part of appellant was excused since appellant Beebe was beyond the jurisdiction of the Court and was denied the right to communicate with his counsel and prepare for the trial of this case. Low, Hudson & Gray Water Co. v. Hickson, 32 Tex.Civ.App. 457, 74 S.W. 781:

* * * The defendant Hudson was prevented from attending the trial by sickness. The fact of Hudson’s sickness and his inability to be present at the trial on that account, and also the materiality of his testimony, was shown to the trial court in an application for a continuance filed by the defendants when the case was called for trial, and by the affidavit of said Hudson and the certificate of his attending physician, filed with defendants’ motion for a new trial. No controverting affidavits were filed either to the motion for a continuance or the motion for a new trial. The motion for a continuance should have been granted, and the error of the trial court in refusing same requires a reversal of the judgment. The fact that the defendant Hudson did not reside in the county in which the case was tried, nor the further fact that he was temporarily out of the state on a business trip, when he was taken sick, and thereby prevented from carrying out his intention of attending the trial, did not require the defendants to have taken his deposition, and the failure to have said depositions did not show negligence or a lack of diligence on their part. * * * ”

The right of the defendant to be present and testify in his behalf before the jury is a valuable right which should not be denied when his presence at the trial is beyond his control. Stoneberger et al. v. Bishkin, Tex.Civ.App., 236 S.W. 782:

“ * * * Appellee urges that appellant failed to show any diligence to procure the testimony of the absent witness. The witness resided in Victoria, where the case was tried. She was a party defendant. She expected to attend the trial in person, but, according to the application, was prevented from doing so only because of her sudden illness. Under these facts appellants were not required to take her deposition, or subpoena her as a witness. It was shown in a qualification appended to the bill of exception that appellee offered to join appellants and go to the bedside of the witness, and there and in that way take her testimony, to be written down by the court stenographer, who would read it to the jury, and it may be said to appear that the court directed the parties to pursue this course, but appellants declined. They were clearly within their rights in so declining. They were entitled to the testimony of the witness, and to have it adduced in the presence of the jury, that the credibility of the witness and the weight to be given her testimony could more certainly be determined. This was true of her as a witness. As a party directly interested, she had an additional right to be present at the trial. We think the application for continuance should have been granted. * * * ”

It is true that the above cited case is one in which the defendant was sick and unable to come to court and we find no Texas case where a defendant who is confined in jail and unable to be present for that reason is entitled to a continuance of his case; but, in Volume 17 C.J.S. Continuances § 31, page 411, the rule in which imprisonment is stated is as follows:

“ * * * The court may grant a continuance where a party has been imprisoned outside the state, or where by reason of his confinement he has had no opportunity to instruct his counsel in his defense; * *

The Court of Criminal Appeals in this State, in the case of Turner et al. v. State, has held that where a defendant is in jail and denied the right to communicate with his attorney, he is entitled to a continuance where his liberty is at stake, and we are of the opinion that the rules should be applied when the defendant’s property rights are involved.

For the foregoing reasons, we are of the opinion that the judgment of the trial court should be reversed and the cause remanded for another trial. There are other assignments of error which we have not considered for the reason that same may not occur on another trial.

DUNAGAN, C. J., and MOORE, J., concur.


text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. William D. BOUNDS, Appellee.
    No. 4457.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    Rehearing Denied April 14, 1966.

      Oldham & Lorance, Tom Lorance, Jr., Houston, for appellant.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   WILSON, Justice.

Insurer’s position in this workmen’s compensation case is that there is no evidence to sustain the jury verdict of total permanent disability, or the findings are against the overwhelming preponderance of the evidence. We affirm.

Because claimant continued to work in his employment after the accident earning more money than before, according to the carrier’s interpretation of the evidence, and since he actually lost only a few days from work during the first four months following the accident, it is contended the incapacity will not meet the test prescribed by such decisions as Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001. Conceding the evidence may raise partial incapacity, appellant insists it will not legally or factually support the greater finding.

There is medical testimony that claimant was not qualified after the date of injury “to do the usual tasks of a working man involving manual labor”, or “to do any job where he has to put a stress or strain on that low back”; that he could not pass a pre-employment physical examination ; that the incapacity is permanent. There is evidence of work under economic compulsion. His ailment was diagnosed as a chronic lumbo-sacral strain, aggravated by activity accompanied by acute pain over a two-year period.

There is evidence which supports appellant’s argument. There is evidence sustaining the verdict. The parties are familiar with the record. We will render no service to the bar by recounting it. The points are overruled.

Complaint is made of refusal of a requested issue. The refusal is not assigned as error in appellant’s motion for new trial, as required by Rules 320 and 324, Texas Rules of Civil Procedure, and the point is waived. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

Affirmed.