author: PALMORE, Judge.

text:
    Hershel YOUNG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    David Van Horn, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Hershel Young appeals from a judgment sentencing him to life imprisonment pursuant to a verdict finding him guilty of murder. KRS 435.010. His only ground for reversal is that the trial court committed prejudicial error in attempting to explain to the jury the word “feloniously” as it appeared in the instruction covering murder and voluntary manslaughter. The instruction was as follows:

“If the jury believe from the evidence in this case to the exclusion of every reasonable doubt that the defendant, Hershel Young, in Fayette County, Kentucky and before the finding of the indictment herein, did unlawfully, wilfully, fe-loniously and maliciously, and not in his necessary or apparently necessary self-defense, slay and kill Pat Bowden by shooting him and wounding him with a pistol, a deadly weapon, from which shooting and wounding the said Bow-den did shortly thereafter die, you should find the defendant guilty of murder if you so believe said shooting and wounding and slaying of said Bowden were done with malice aforethought, but guilty of voluntary manslaughter if you ber lieve said shooting and wounding and slaying of Bowden were done in sudden affray or in sudden heat of passion and without previous malice.
“The words ‘wilful’ and ‘wilfully’ as used in this instruction mean intentional, not accidentally or involuntary.
“The words ‘malice aforethought’ as used in this instruction mean a predetermination to do the unlawful act of killing or taking the life of another person without legal excuse, and it is immaterial how suddenly or recently before the killing such predetermination is formed.
“ ‘Feloniously’ means proceeding from an evil heart or purpose and done with the deliberate intention of committing a crime.”

The record shows the following proceedings with reference to the attempted explanation :

“Case submitted at 2:40 P.M. At 4:35 P.M. the jury reported, and the following transpired, after waive of call of the jury:
THE COURT: “Have you reached a verdict ?”
FOREMAN: “No, Your Honor, we have not. The jury respectfully asks interpretation here of a definition. Can this be given?”
THE COURT: “What definition?”
FOREMAN: “ ‘Feloniously’ means proceeding from an evil heart or purpose and done with the deliberate intention of committing a crime. Now, in this case ‘committing a crime,’ does this refer to the crime as stated in Instruction 1 ?”
THE COURT: “Of committing a crime, yes.”
JUROR: “Just any crime?”
THE COURT: “Let me put it this way, I don’t like to go too far in trying to embellish upon the instructions because the Court has always thought that they speak for themselves, but sometimes we have to — As that term is used, it is used in, I might say a generic term— generally, you see. That’s the definition of proceeding from an evil heart or purpose and with the intention of committing a crime, you are to look at it just from the general standpoint — not specifically in this instance, but that is the general interpretation of it.
“Do you see what I’m talking about? Not that it’s applicable — not in every case, where you’re proceeding from an evil heart, feloniously means proceeding from an evil heart and purpose with intention of committing a crime. That’s used just generally.”
“Jurors again retired: verdict received in open court at 5:10 P.M.”

Appellant contends that the effect of the trial court’s remarks was to give the jury the impression that if appellant had shot and killed the victim with a criminal intent he was guilty of murder, excluding the possibility of voluntary manslaughter. We are unable to get such a meaning from what the judge said. The instruction made it clear that if the appellant shot and killed the victim with a criminal intent, not in self-defense, he was guilty of murder if he did it with malice aforethought, but voluntary manslaughter if he did it in a sudden affray or in sudden heat of passion, without malice aforethought. The most that can be said of the court’s effort to explain the term “felonious” is that it probably failed to clear up whatever uncertainty prompted the jury’s request for elucidation; but it could hardly have created any additional confusion or misconception.

In the absence of something prejudicial in his remarks, the act of a trial judge in explaining or elaborating on the written instructions given to the jury does not warrant a reversal. Eaton v. Commonwealth, 230 Ky. 250, 19 S.W.2d 218, 226 (1929). Cf. RCr 9.24, 9.26.

It appears also that no objection was made or presented, either immediately after the court undertook to give the requested explanation or by way of a later motion for new trial. We think the principle stated in Hartsock v. Commonwealth, Ky., 382 S.W.2d 861 (1964), is applicable. If the trial judge has committed an error which is known to the defendant, he must be given a timely opportunity to correct it.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    E. Poe YOUNG and Howard Whitley, Movants, v. George O. BERTRAM, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.

    Thomas F. Marshall, Frankfort, for movants.
    Fred Faulkner, Jr., Barry Bertram, Jr., Charles Summers, Campbellsville, for respondent.
   CULLEN, Commissioner.

Petitioners herein are litigants in two actions in the Taylor Circuit Court, which were commenced, respectively, on June 27 and July 12, 1967. Judgments in those actions were reversed by this court, with directions for further proceedings, on October 17, 1967. Shreve, etc., et al. v. Taylor County Public Library Board et al., Ky., 419 S.W.2d 779. After the remand of the cases the petitioners herein filed motions, with supporting affidavits, asking that the trial judge vacate the bench and disqualify himself from further presiding in these cases. The motion was overruled, whereupon the petitioners filed the instant proceeding in this court seeking an order prohibiting the trial judge from further presiding in the cases.

The grounds of prejudice set forth in the motions and supporting affidavits all related to conduct of the judge which occurred, and was known to the petitioners, prior to the commencement of the actions. A motion on such grounds must be made before an appearance to the merits. See Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614, and the long line of cases abstracted in Kentucky Digest, Judges, The motions here were far too late.

The petition is denied.

All concur.


author: WILLIAM DIXON, Special Commissioner.

text:
    Carl E. OETH, Appellant, v. Rudy FELTY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    George E. Stigger, III, Perdue & Stigger, Henderson, for appellant.
    William L. Sullivan, Dorsey & Sullivan, Henry C. Neel, Henderson, Robert Matthews, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Dept, of Aeronautics, Frankfort, for appellees.
   WILLIAM DIXON, Special Commissioner.

This is an appeal from the judgment of the Henderson Circuit Court granting the defendant a summary judgment.

Prior to April 3, 1966, an application had been filed on behalf of the W. E. H. T., Inc., with the Henderson Zoning Board of Adjustment seeking permission for the erection of a 988 foot wireless transmitting television tower. Notice appeared in the Henderson Gleaner and Journal, the largest newspaper published in Henderson and Henderson County, on Sunday, April 3, stating that an application had been filed and a hearing would be held by the Zoning Board on April 13th to pass on the application. Plaintiff was a regular subscriber to the Gleaner-Journal at the time. No one appeared at the meeting to protest and permission was granted on April 19th. The Kentucky Department of Aeronautics, the Federal Communications Commission and the Federal Aviation Agencies had also approved the erection of the tower.

The Zoning Board’s action was followed by much publicity about the tower which was to replace an old one and was to be built within 30 feet of it. The place where the tower was being constructed was about 500 feet from the plaintiff’s residence and real property.

On August 16, 1966, more than four months after permission had been granted, plaintiff filed a motion with the Zoning Board for a rehearing on the application. At that time the foundation had been constructed and 300 feet of the tower had been erected. The defendants had also committed themselves to spend or had spent $100,000.00 on it. The Zoning Board refused to grant a rehearing and on October 15, 1966, suit was filed in circuit court asking a review of the Board’s action. The relief demanded was denied. At this time, the tower had been completed.

The plaintiff contends that the notice appearing in the newspaper on Sunday is not legal and that the Zoning Board did not acquire jurisdiction to act on the application under such circumstances and that any action taken by the Board adversely affecting his property would be taking property without due process of law.

The plaintiff, in support of his contention, cites Ormsby v. City of Louisville, 79 Ky.Rep. 197, where the court held that publication of a tax levying ordinance on Sunday was illegal. The plaintiff also cites KRS 454.130 which provides in substance that a notice may be served on Sunday only if the officer or person having the notice believes or the plaintiff or some other person makes an affidavit to the effect that the notice cannot be given or process cannot be executed after such Sunday or holiday.

It is to be observed that the case of Ormsby v. City of Louisville is an old case and that KRS 454.130 prior dates KRS 424.130 subsection (1) (b) which provides that notwithstanding any provision of existing law providing for a different time or period of publication of advertisements required by law to be made in newspapers shall be made as follows: When an advertisement is for the purpose of informing the public or the members of any class of persons that on or before a certain day they may or shall file a petition or exception or remonstrance or protest or objection, or resist the granting of an application or petition, or present or file a claim, or submit a bid, the advertisement shall be published at least once, but may be published two or more times, providing that one publication occurs not less than seven nor more than twenty one days before the occurrence of the act or event. In this case, the advertisement occurred ten days before the application was to be passed on by the Board.

This is a 1960 statute and was enacted subsequent to the statute and cases cited by the plaintiff. It is to be noted that Sundays or holidays were not excluded or excepted as days that notice could be given or served. The Legislature provided that this statute was to supersede all law in conflict with it.

In his complaint, plaintiff stated: “Other than the legal advertisement, the plaintiff was not apprised of the pendency of the hearing by registered letter, certified letter or otherwise.” So, it is definitely established that the plaintiff had actual notice of the application for the permission to erect the tower in addition to it being within' 500 feet of his residence and being a subject of much discussion and concern in the community where he lives.

He did not appear before the Zoning Board to protest the granting of permission, but waited more than four months and after the foundation had been erected and 300 feet of the tower constructed before asking for a rehearing before the Zoning Board. He waited until the tower had been completed before filing a suit.

We think the notice was adequate and sufficient under KRS 424.130 subsection (1) (b) to apprise the plaintiff of the proposed construction of the tower, and according to his own pleadings he had actual knowledge of its erection. He is estopped at this late hour to complain.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    Dallas G. HOWARD, Appellant, v. Betty Lynn HOWARD, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Charles R. Coy, John D. Sword, Richmond, for appellee.
   DAVIS, Commissioner.

The present controversy comes in the wake of an earlier one adjudicated by this court in Howard v. Howard, Ky., 412 S.W.2d 243. In that decision we directed that the judgment of the circuit court for alimony in the sum of $23,310 be modified by a judgment for alimony in the sum of $17,335. The judgment on appeal in the former case was affirmed in part and reversed in part, and our mandate was couched in this language:

“The Court being sufficiently advised, it seems to them the judgment herein is erroneous in part.
“It is therefore considered that said judgment is affirmed in part and reversed in part with direction to enter a judgment in conformity with this opinion, and that the appellees recover of the appellant ten percent damages on that part of the judgment affirming and superseded herein; which is ordered to be certified to said court.
“It is further considered that the appel-lees recover of the appellant their cost herein expended.”

Upon remand of the action to the Madison Circuit Court, judgment was entered there on June 26, 1967, awarding the present appellee alimony in the sum of $17,335 and further providing that the amount “ * * * is subject to the additional payment of the ten percent (10%) damages for which a Supersedeas Bond was heretofore executed herein on the 15th day of June, 1965.” The judgment further provided that the lump sum alimony award ■ “ * * * bears interest at the rate of Six percent (6%) per annum from the 21st day of June, 1965, until paid.”

The present appeal (prosecuted alternatively on a motion for appeal and as an appeal as a matter of right) attacks so much of the modified judgment as awards recovery of the ten percent damages on the su-persedeas bond and interest at six percent from the twenty-first day of June, 1965. The appellant calls attention to Shely v. Votaw, Ky., 272 S.W.2d 462, in which is reiterated the principle that the court’s mandate is the official directive of the court and its opinions are “ * * * merely advisory to the parties and explanatory of the mandate.” Id. 272 S.W.2d 463. We recognize the soundness of that authority, but we do not view it as supporting the contention of the appellant here. KRS 21.130 provides:

“Upon the affirmance of an appeal, or the dismissal of an appeal after it has been docketed in the Court of Appeals, where the appeal is from a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in the Rules of Civil Procedure, ten percent damages on the amount superseded shall be awarded against the appellant.”

CR 73.04, relating to supersedeas bonds, provides in part: “A supersedeas bond may be given to stay proceedings on a part of a judgment, and in such case the bond shall be varied so as to secure the part superseded.” In Beckman v. Time Finance Co., Ky., 334 S.W.2d 898, we dealt with a situation similar to the one at bar. There Beckman obtained a judgment aggregating $13,544.35. On appeal the judgment was reversed in part, with directions to enter a new judgment allowing a net recovery to Beckman of $438.58. See Time Finance Co. v. Beckman, Ky., 295 S.W.2d 346. In the second appeal reported in 334 S.W.2d 898, it was observed:

“Beckman further contends that he is entitled to recover a supersedeas penalty on his original judgment of $13,544.35. This contention is obviously fallacious because the original judgment was reversed except to the extent of $438.58. Therefore, Beckman was entitled to recover a supersedeas penalty on $438.58. KRS 21.-130.” Id. 334 S.W.2d 899.

It is our view that the trial court properly interpreted our mandate in allowing damages on the supersedeas bond to the extent of the net recovery.

As respects the matter of interest at six percent from June 21, 1965, it is our conclusion that the trial court was correct in making the allowance. Beckman v. Time Finance Co., Ky., 334 S.W.2d 898, dealt also with the matter of the allowance of interest in cases of this type. There we noted that the matters of allowing interest and fixing a starting date for its accrual are within the sound discretion of the trial court. We adhere to that principle and conclude that the trial court exercised a proper discretion in fixing the commencement date for interest as it did.

Without exploring the question as to whether the present controversy may be maintained by appeal as a matter of right or requires procedure by motion for appeal, we sustain the motion for appeal, consolidate it with the appeal as a matter of right, and dispose of both appeals in this opinion.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roy DALE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Richard H. Peek, Dept, of Highways, Frankfort, Mark Anderson, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for appel-lees.
   DAVIS, Commissioner.

The Department of Highways appeals from a judgment awarding the appellees $21,550 in this condemnation proceeding. Three bases for reversal are presented: (1) Some of the witnesses for appellees “price tagged” elements of damage and considered noncompensable factors in arriving at values; (2) witnesses for appel-lees lacked qualifications to offer expert testimony in the case; and (3) the verdict is excessive and unsupported by evidence of probative value.

The appellees own a farm which, before the taking, contained 159 acres situated on Kentucky Highway 335 with a dwelling house, two barns, and five or six outbuildings. The property lies about six miles south of Munfordville and approximately four miles north of Cave City. The land taken in this proceeding comprises 35.1 acres for the right-of-way and 4.3 acres for permanent easements. The highway for which the land is needed is Interstate Highway 65, a nonaccess road. An interchange complex is to be constructed upon the right-of-way being acquired in this action. After the taking, the farm will lie in four disconnected tracts, one of which is a 6.39-acre, landlocked tract. The other three tracts remaining will contain 61.24 acres, 36.55 acres, and 19.83 acres. All of the buildings except a tenant house are within the right-of-way and are taken by the Department.

The witnesses for the Department testified that before the taking the value of the entire tract was $30,000 to $32,650. The same witnesses expressed their opinions of after value as $60,000 to $63,800, reflecting a plus difference of $30,000 to $31,150 more after value than before value. These witnesses premised their opinions on the claimed adaptability of the remaining land for valuable commercial sites upon the interchange. They cited numerous transactions around interchanges which they spoke of as being valid, comparable sales.

For the landowners, five evaluation witnesses testified and related before values extending from $36,643.60 to $52,500. The range of the after values expressed by these witnesses was from $11,596.40 to $22,000. The difference in before and after values as stated by the landowners’ witnesses runs from $19,083.20 to $37,542.57.

The jury fixed the before value at $36,-258 and the after value at $14,708 in arriving at its verdict of $21,550.

The view we have of the case makes it unnecessary to consider in detail the first and third points relied upon for reversal by appellant. It is our conclusion that there is merit in the second point advanced as we shall undertake to demonstrate. It will be observed that there is an extreme disparity in the after values as given by the witnesses for the litigants. As noted, the Department presented evidence tending to prove that there is marked increase in after value because of the adaptability of the remaining land for interchange commercial sites. The witnesses for the landowners generally recognized that in some instances interchange property produces extraordinarily high prices, but most of them expressed the view that the amount of local traffic using the interchange would be too little to make the subject property attractive for the interchange market. Some of the witnesses for the landowners also expressed doubt that the remaining land would afford sufficient frontage to make it attractive as interchange property.

In looking to the qualifications of the landowners’ witnesses insofar as their expertise concerning interchange property is concerned, we find that the witnesses disclaimed knowledge sufficient to qualify themselves. Under pain of tedium we quote the following from the record.

Witness Bobby Dale:
“34 You may be right sir, but how much do you think it’s going to bring since the interstate went through?
A I don’t know.
35 You checked the prices along these interchanges ?
A No, sir.”
Witness Robert Johns:
“Q1 Are you acuqainted (sic) with how property is selling around these interchanges ?
A I don’t know a great deal about that other than what I heard. I don’t know too much for sale. I do know some in Munfordville here. That is about all.
2 You haven’t checked into any of that?
A I don’t have no reason to do so.”
Witness Earl Jones:
“6 You don’t think these oil companies in part depend on interstate traffic?
A They do for their profit. They want enough local traffic to pay expenses.
7 Let me ask you about the Munford-ville interchange. How many buildings have gone up there ?
A Four or five.
8 Do you think they depend on local traffic?
A No, they have that feeder off there.
9 How long is that going to last?
A I don’t know.
10 They will get all of it paid for in that length of time?
A Yes.
11 That is your opinion?
A Yes, sir.
12 You don’t think the Munfordville Interchange is depending on interstate traffic?
A It will get a percentage of interstate traffic.
13 All the interstate traffic comes off there now?
A Yes, sir.
14 Do you know about the Standard Oil sale of $99,000?
A No, sir.
15 Do you know about Humble Oil buying 200 foot lot for $66,000 ?
A. No, sir.”
Witness Paul Page:
“81 Have you made any study of any interchange property other than that at Cave City?
A I have done some appraising for some of the oil companies.
82 You have done some appraising for whom?
A Oil companies. No, not pertaining to interchanges. No, sir, I haven’t made any study of any other interchanges, •more than just merely knowing of two or three like I have these up above here that I told you I didn’t know anything about, except Cave City and Park City.
83 But you didn’t apply that to this interchange. You didn’t attempt to apply any commercial usage to this interchange at Horse Cave?
A No, sir.”
Witness George Lobb:
“71 Well, are you acquainted with the sale of property around these interchanges, Mr. Lobb?
A No, sir. I am not. I don’t know what land sells for around interchanges. I ain’t going to buy none.”

It is significant that the jury’s after value of $14,708 is lower than the after value fixed by any of the witnesses for appellees except witness Lobb, who fixed the after value at $11,596.40. It is patent from Mr. Lobb’s evidence that he lacked any background which would qualify him to testify as an expert respecting interchange property values. In Com., Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, we discussed the matter of prerequisite qualifications for an expert appraisal witness in real estate cases There we departed from the former rule which had permitted appraisal testimony from a property owner without reference to his general qualifications. It seems apparent that the appraisal witnesses for the landowners pointed out their own lack of appropriate qualifications insofar as the evaluation of interchange property is concerned. It follows that the verdict premised upon evidence heard from the lips of these unqualified witnesses and flying in the face of widely divergent evidence adduced through qualified witnesses may not stand. The evidence required to support the verdict does not possess the quantum of probative value for that purpose. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Com., Dept. of Highways v Williams, Ky., 383 S.W.2d 687.

As respects the assertion that some of the witnesses for appellees improperly “price tagged” in making their appraisements, we direct attention to Com., Dept. of Highways v. Staton, Ky., 396 S.W.2d 766, and authorities therein cited. Upon another trial care will be taken to apply the principles set out in Com., Dept. of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249; Com., Dept. of Highways v. Wireman, Ky., 388 S.W.2d 606; and Com., Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640. We reserve without decision whether any of the evidence given at the first trial should have been stricken for noncompliance with the rules under discussion, and we reserve without decision the claimed ex-cessiveness of the verdict.

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

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY and STEINFELD, JJ., concur.


author: WILLIAMS, Chief Justice.

text:
    Hugh PETTYJOHN, Petitioner, v. COMMONWEALTH of Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    John W. Murphy, Jr., Liberty, for petitioner.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., for respondent.
   WILLIAMS, Chief Justice.

Petitioner Hugh Pettyjohn has applied for bail pending appeal under RCr 12.82. Petitioner was convicted in the Marion Circuit Court of receiving stolen property and sentenced to one year in the State Reformatory. The circuit court denied a motion for bail pending appeal under RCr 12.78.

Respondent Commonwealth of Kentucky has moved to dismiss petitioner’s application for failure to present to this court a record upon which relief can be granted.

The record supplied us by petitioner includes only his application and photocopies of various motions he filed in circuit court, notice of appeal and an order of the circuit court ruling on his motions. These copies are not certified.

A party seeking an intermediate order of this court prior to certification of the record on appeal is required to have the clerk of the circuit court certify and transmit to this court such portion of the record as is needed for that purpose. RCr 12.62.

Inasmuch as petitioner has failed to have certified any part of the record in this proceeding, there is nothing upon which this court can base a consideration of his application under RCr 12.78.

The motion to dismiss petitioner’s application for relief pending appeal is sustained.

All concur.


author: STEINFELD, Judge.

text:
    Cona JUSTICE, Appellant, v. Ralph JUSTICE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.

      C. B. Creech, Stanley R. Hogg, Ashland, for appellant.
    John A. Keck, Grayson, for appellee.
   STEINFELD, Judge.

The appellee, Ralph Justice, sued appellant, Cona Justice, for an absolute divorce on the grounds of cruel and inhuman treatment for a period of more than six months. KRS 403.020(3) (b). Cona answered denying the allegations of the complaint but seeking separate maintenance. Later by amendment, she asked for an absolute divorce and based her claim on the same grounds as her husband had stated. She also demanded periodic and lump sum alimony and child support. The court granted Cona an absolute divorce and alimony in the lump sum of $17,433.00 payable in yearly installments of $2,000.00. It also awarded her $150.00 per month as additional alimony and support, but the judgment provided that upon Eddie Justice, a son of the parties, attaining the age of 18 the payments were to be reduced to $100.00 per month and upon the infant child of the parties, Phillip Allen Justice attaining the age of 18 years the payment should be reduced to $50.00 per month. She was also awarded an automobile, household furniture, court costs including $250.00 for the services of an expert witness and a fee for her attorney. Cona appeals from so much of the judgment as relates to the award of lump sum alimony and Ralph cross-appeals from that portion of the judgment which fails to give certain credits in fixing the lump sum of alimony and from the award of the fee for the expert witness. We affirm.

Cona and Ralph had been married for twenty years. The two sons who were born of this marriage and another son born of Cona’s previous marriage lived with Cona and Ralph. Ralph was engaged in the grocery business with his brother, William, and had been engaged in other business ventures. Cona complains that the court erroneously found that Ralph owned one-third interest in the grocery business, while the evidence showed that Ralph owned one-half. The controversy rages over whether Ralph’s mother was a partner in the business. There is conflicting testimony on this subject.

Ralph cites CR 52.01 which provides that “Findings of Fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” He also cites Buckner v. Buckner, 295 Ky. 410, 174 S.W.2d 695 (1943) and Gates v. Gates, Ky., 412 S.W.2d 223 (1967). The trial court had sufficient evidence to support its findings. It heard the evidence and saw the witnesses, therefore, was in a better position than this court to make the finding of fact. Gates v. Gates, supra. McCormick v. Lewis, Ky., 328 S.W.2d 415 (1959); Wells v. Wells, Ky., 412 S.W.2d 568 (1967). The finding of fact by the trial court may be set aside only if clearly erroneous. CR 52.01, 7 Kentucky Practice, Clay 103. The conclusion which the Chancellor reached is not against the weight of the evidence. Ingram v. Ingram, Ky., 385 S.W.2d 69 (1964). We are unwilling to substitute our decision for his judgment. Stanifer v. Stanifer, Ky., 242 S.W.2d 981 (1951); Hatfield v. Hatfield, Ky., 417 S.W.2d 218 (1967).

Cona contends that the trial court erred in valuing the farm at $35,000.00 because the purchase price was $30,000.00 and $27,000.00 had been expended in improvements. While one witness testified to a much greater value than the court found, another witness expressed a much lower value. With this conflicting evidénce before the Chancellor we cannot disturb his verdict. (See cases above cited.)

Another contention made by Cona is that the award of $17,433.00 alimony payable in annual installments of $2,000.00 is grossly inadequate. Based upon the findings of the Chancellor which we have not disturbed it is our opinion that the award was not erroneous. It is within the percentage range of awards which we have approved. Ralston v. Ralston, Ky., 396 S.W.2d 775 (1965); Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961); Howard v. Howard, Ky., 412 S.W.2d 243 (1967).

Cona claims that she was not awarded a “lump sum” because of the direction that Ralph should pay at the rate of $2,000.00 per year. The award was lump sum although the husband was required to pay it in annual installments. Ballard v. Ballard, Ky., 411 S.W.2d 330 (1967); 24 Am.Jur. 735, Section 614.

Ordering a husband to liquidate a lump sum award by making annual payments is within the sound discretion of the Chancellor. Howard v. Howard, supra. Wide discretion has been and should be allowed the trial court in determining how alimony should be paid in light of the particular facts, and the trial court’s decision will not be disturbed unless it is manifestly erroneous. Petrie v. Petrie, Ky., 262 S.W.2d 182 (1953); Ralston v. Ralston, supra; Ballard v. Ballard, supra; Long v. Long, Ky., 416 S.W.2d 353 (1967). We consider the circumstances here appropriate for such an arrangement. Ballard v. Ballard, supra; Hall v. Hall, Ky., 380 S.W.2d 231 (1964). The direction of the trial court that Ralph pay the lump sum alimony in yearly installments was not erroneous.

On the cross-appeal Ralph alleges that the court should have credited to the lump sum alimony award the value of the furniture and automobile. We have held that furniture, automobiles and other types of tangible property may be considered in fixing the amount of the award. Heustis v. Heustis, supra. We find nothing in the record to indicate that the Chancellor did not consider the value of the furniture and automobile in fixing the monetary award, therefore, there is no merit in this claim.

The other point asserted on the cross-appeal is that the ruling of the Chancellor was in error in taxing $250.00 as cost against Ralph because Cona had engaged an expert by the name of Robert Smith to appraise the property owned by Ralph. He claims that KRS 453.120 does not embrace the cost of an expert witness. In Walters v. Walters, Ky., 419 S.W.2d 750 (decided October 20, 1967) we held that a part of the expense of two qualified appraisers was properly taxed to the husband as cost. In 24 Am.Jur.2d 698 section 577 it is stated that “a divorce court may make an award to a wife for a variety of expenses connected with the trial or preparation of the case.”

We consider it much better practice for the wife to secure the permission of the court prior to incurring expenses which she will claim as costs, however, even without such permission we hold that within the sound reasonable discretion of the Chancellor expenses “connected with the trial or preparation of the case” may be allowed under KRS 453.120. We subscribe to the statement appearing in 27A C.J.S. Divorce § 216, p. 937 in which it is said “allowances for attorney’s fees and other expenses in divorce proceedings should be made cautiously and only when necessary, the court being under a duty to protect the husband from excessive expenses in litigation by the wife and also to secure to her the opportunity to have her case fully presented.” There is nothing to indicate that the expenses incurred in employing the witness in the case now before us were not reasonably necessary for the proper presentation of Cona’s case or that the amount of the allowance was unreasonable.

The judgment is affirmed.

All concur.


author: NORVELL, Justice.

text:
    Mrs. Ruby WALTON, a Feme Sole, Petitioner, v. The CITY OF HOUSTON, Texas, Respondent.
    No. B-56.
    Supreme Court of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 17, 1968.
    Patterson, McDaniel, Moore & Browder, Bennett B. Patterson and Thomas C. Primm, Houston, for appellant.
    William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for respondent.
   NORVELL, Justice.

The petitioner, Mrs. Ruby Walton, brought this suit to set aside certain paving assessments levied against her property under an ordinance adopted by the City Council of the City of Houston on January 27, 1965, which purported to levy paving assessments against petitioner-plaintiff’s property abutting the Monroe Road Extension connecting the Gulf Freeway with State Highway No. 3. The trial court denied all relief sought by Mrs. Walton and decreed that she take nothing against the respondent-defendant city. The Court of Civil Appeals affirmed. 409 S.W.2d 917. We reverse the judgments of the courts below and here render judgment in favor of Mrs. Walton and decree that the paving assessments levied against her property are invalid because of non-compliance with the mandatory requirements of Article 1105b, Vernon’s Ann.Tex.Civ.Stats.

The State of Texas and the City of Houston jointly undertook certain road and highway improvements in connection with Monroe Road (a city street) and Winkler Drive (State Highway No. 3). These improvements were made by the Century Construction Company under a contract with the State Highway Department and part of the costs allocated to the City of Houston under an agreement between the city and the highway department. Mrs. Walton owned property abutting on both the Monroe Road Extension and Winkler Drive, but only her Monroe Road property is involved here. It seems that after the Monroe Road Extension had been completed, it was also incorporated into the state highway system. The city proposed and intended that a part of the city’s share in the costs of the project would be eventually paid by the proceeds of the sale of assessment certificates issued against property abutting said Monroe Road Extension. As we see it, the controlling inquiry is not whether the State Highway Department made a good or favorable contract from the standpoint of the state and city, or whether the City Council acted in good faith in making the contract. The case turns upon the issue of whether or not the statutory procedures were followed by the city in its attempt to affix a valid assessment and lien against Mrs. Walton and her property. It is conceded that Article 1105b, Vernon’s Ann.Tex.Stats., and Article IV(b) of the Houston .City Charter (which in effect adopts the provisions of Article 1105b), provide the only legal method whereby a portion of the costs of paving a thoroughfare may be assessed against property abutting such roadway.

Article 1105b, §§ 3 and 4, provides:

“Sec. 3. That the governing body of any city shall have power to determine the necessity for, and to order, the improvement of any highway, highways, or parts thereof within such city, and to contract for the construction of such improvements in the name of the city, and to provide for the payment of the cost of such improvements by the city, partly by the city and partly by assessments as hereinafter provided.
“Sec. 4. That the cost of such improvements may be wholly paid by the city, or partly by the city and partly by property abutting upon the highway or portion thereof ordered to be improved, and the owners of such property, but if any part of the cost is to be paid by such abutting property and the owners, then before any such improvements are actually constructed, and before any hearing herein provided for is held, the governing body shall prepare, or cause to be prepared, an estimate of the cost of such improvements, and in no event shall more than all the cost of constructing, reconstructing, repairing and realigning curbs, gutters and sidewalks, and nine-tenths of the remaining cost of such improvements as shown on such estimate be assessed against such abutting property and owners thereof.” (Emphasis supplied.)

On December 5, 1962, the Houston City Council adopted an ordinance providing that such city and the State of Texas would jointly construct the road improvements above referred to. This ordinance contained the following paragraph:

“The City will contract with the State Highway Department for the construction of such improvements in the name of the City and will, in the first instance, pay to the State Highway Department, out of the available funds appropriated for the purpose, the entire amount becoming due under the terms of said contract.”

On December 12, 1962, the city and the State Highway Department entered into the agreement contemplated by the ordinance of December 5th. It provided that the proposed work should be contracted by the state and that the city would transmit to the state with the return of the agreement a city warrant payable to the State Treasurer for $166,700.00 “to be used in paying for the proposed work required by the City in the City of Houston.”

On February 5, 1964, the governing body of the city by ordinance approved and accepted the work on the Monroe Road Extension as completed under the contract with the state, which contract had been authorized by the ordinance of December 5, 1962.

On June 10, 1964, some four months after the work on the Monroe Road Extension had been accepted by the city, the governing body of Houston by ordinance approved estimates of the cost of permanent improvements constructed as a part of the Monroe Road Extension project and ordered “that a hearing be held and (notice) given to all owning or claiming any abutting property or any interest therein” as to the assessments which the city intended to levy against their property. July 1, 1964 was the date set for such hearing.

On January 27, 1965, the Houston City Council adopted an ordinance closing the hearing ordered by it on June 10, 1964 and assessed various amounts against abutting property owners, purportedly acting under and by virtue of Article 1105b, Vernon’s Ann.Tex.Stats., and Article IV(b) of the charter of the City of Houston. Mrs. Walton’s assessments on lands owned by her and abutting upon Monroe Road aggregated the principal sum of $16,106.96.

Under the scheme adopted by the city, the State Highway Department, for a stipulated price, was to construct street improvements for the city. In payment for such work and upon execution of a contract with the highway department, the city paid to the State of Texas the sum of $166,700.00, represented by vouchers drawn against its Storm Sewer Bond Fund and Street Improvement Bond Fund. It was after the city had paid the state its share of the costs of the street and highway improvements and long after the construction work had been completed, that the City Council “prepared or caused to be prepared an estimate of the cost of such improvements” and set a date for a hearing with reference thereto as provided for in Article 1105b, § 9. The ordinance of June 10, 1964 approves an estimate prepared by the Director of the Department of Public Works and Engineering, dated May 6, 1964, and the notice of hearing refers to this estimate.

From the above statement of the actions taken in regard to the levying of assessments against Mrs. Walton’s property, it is apparent that the mandatory provisions of Article 1105b, § 4, were not complied with. The statute prescribes that “before any such improvements are actually constructed * * the governing body (of the city) shall prepare, or cause to be prepared, an estimate of the cost of such improvements * * * ”

The estimates approved by the City Council and upon which the hearing under Article 1105b, § 9, was held were prepared after the completion of the work upon the Monroe Road Extension.

It may be that the method followed by the City of Houston in constructing the improvement upon the extension was a convenient, reasonable and expeditious procedure for securing such improvements, but the fact remains that the plan followed by the city was not in accordance with the applicable statute and charter provision which must be followed in order to fix a valid assessment.

In Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575 (1899), this Court said:

“In this character of proceeding, the purpose is to impose upon the owner and his property, without his actual participation or consent a pecuniary obligation and lien. In other words, when certain steps prescribed by the charter have been taken, the law imposes the obligation and lien. Therefore, each step is an essential element of this imposed obligation and lien, and the absence of any one is as fatal as is the absence of any of the essential elements of an ordinary contract in a suit upon a private agreement. * * * »

See also, Flewellin v. Proetzel, 80 Tex. 191, 15 S.W. 1043 (1891), Bolton v. Sparks, 362 S.W.2d 946, 1. c. 950 (Tex.Sup.1962).

Glenn v. City of Arlington, 365 S.W.2d 197 (Tex.Civ.App.1963, writ ref’d n. r. e.), is not in point here. It appears from the opinion of the Court of Civil Appeals that the regularity of the procedure by which the assessments were levied under Article 1105b was not passed upon by the court.

The judgments of the courts below are reversed and judgment here rendered for petitioner.

      . In connection with Article 1105b, § 9, see, City of Houston v. Fore, 412 S.W.2d 35 (Tex.Sup.1967).

      . A stipulation in the Glenn case contains the following paragraphs:
      “1. The only question raised by the appeal is the jurisdiction of the governing body of the City of Arlington to assess abutting property and its owners for any part of the cost of improving U.S. Highway 80 because such highway was improved in part with Federal aid.”
      “3. The procedure followed by the governing body of the City of Arlington in assessing abutting property and its owners at the rate of $1.58 per front foot of property abutting U.S. Highway 80 conformed in all respects to the procedure prescribed by article . 1105B V.A.T.C.S.”


author: WOODLEY, Presiding Judge.

text:
    Thomas Lee WHITAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40726.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 3, 1968.
    Sidney E. Dawson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Arch Pardue, Cecil Emerson, J. R. Ormesher and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, one year in jail and a fine of $250.00.

Trial was before a jury on a plea of not guilty and upon separate hearing the jury assessed the punishment.

The sufficiency of the evidence to sustain the conviction is not challenged.

Witnesses who observed appellant immediately after the collision testified that he had the odor of alcohol on his breath; that he had lost control of his faculties and was unable to walk without being assisted, and that in their opinion he was intoxicated.

Testifying as a witness in his own behalf appellant admitted having consumed two and a half bottles of beer just prior to driving his automobile away from a tavern on to a heavily traveled highway and colliding with other automobiles. His version was that he was sober; that the collision caused his car to stop so suddenly that his head hit the windshield and rear view mirror, breaking both of them; that the lick on the head addled him and caused him to lose the normal use of his bodily faculties.

Testimony was offered to corroborate appellant’s testimony that the windshield and rear view mirror were broken and that appellant had a skinned place and blood on his head.

Appellant’s first and second grounds of error relate to his requested charges which were refused.

There are no formal bills of exception.

The instrument consisting of the two requested charges does not itself reflect that such charges were presented before the court read his charge to the jury, as required by statute. See Art. 36.15 Vernon’s Ann.C.C.P., and cases listed under Note 47.

If the claimed error in the refusal of the requested charges is before us, we hold that the court’s ruling is supported by the case of McDonald v. State, 163 Tex.Cr. R. 244, 289 S.W.2d 939, and the Court did not err in refusing the requested charges which instructed an acquittal if the jury believed that appellant’s condition was caused by a lick on the head and he was not under the influence of intoxicating liquor.

Loftin v. State, Tex.Cr.App., 366 S.W.2d 940, cited by appellant, was distinguished in the opinion from McDonald v. State, supra, and other cases in which the evidence disclosed that the defendant had consumed alcoholic beverages.

The next three grounds of error relate to “have you heard” questions propounded to one of appellant’s character witnesses on cross-examination such as are authorized under the holding of this court in Adams v. State, 158 Tex.Cr.R. 306, 255 S.W.2d 513. Appellant is mistaken in assuming that the holding in the Adams case has been overruled. See Villarreal v. State, Tex.Cr.App., 384 S.W.2d 891.

The next four grounds of error relate to cross-examination of appellant wherein he was asked: “what symptoms do you display when you are drunk”—“do you get drunk and drive home and sleep it off” ■—-“do you think it affects your walk when you get drunk”—and “did you have a driver’s license with you.”

We are unable to agree with appellant’s contention that the propounding of these questions constitutes grounds for reversal because they imputed to appellant specific acts of misconduct not culminating in a prosecution and not available for impeachment.

We note in this connection that, at the hearing on punishment, appellant admitted a prior conviction for drunk driving, and at the trial testified that it took about 12 beers to make him drunk.

The remaining ground of error relates to the testimony of J. W. Foster, accident investigator for the Dallas Police Department, wherein he testified that the amount of damage to the ’60 model Pontiac (driven by appellant) was about $350.00, possibly more, and the ’59 Pontiac traveling east and the third car involved in the accident, a ’60 model Ford, were total losses.

The admission of such testimony, over the objection that the issues did not involve whose fault it was but whether the defendant was drunk, was not error. The evidence was admissible as a part of the transaction tending to shed light on the ultimate issue. Allen v. State, 149 Tex.Cr.R. 612, 197 S.W.2d 1013.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Don HESSBROOK, Appellant, v. The STATE of Texas, Appellee.
    No. 40672.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 3, 1968.
    Evans & Marshall, Claude R. Bailey, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the felony offense of giving a worthless check; and the punishment was assessed at five years.

It is urged as a ground for reversal that the record fails to reflect that the appellant had any specific intent to commit the offense charged.

The testimony of Oscar T. Walsh reveals that during his operation of a service station on April 23, 1966, he sold the appellant two automobile tires for $59.02 (including tax), and then the appellant said he was going to give him a check, which Walsh told him he did not want and the appellant showed him a bank book with some deposits entered in it, and his driver’s license, saying, “The check is as good as gold; you’ve got no worry about it” and relying upon appellant’s representations he accepted the $59.02 check; that the check was timely deposited and was returned unpaid, marked “Account Closed”; that he had never had any prior transactions with the appellant.

The cashier of the bank on which the check was drawn testified that the appellant opened an account for sixty dollars on February 15, 1966, which the bank closed that day by mailing the appellant a bank money order for sixty dollars; that on February 17, 1966, the appellant came to the bank wanting to know why the bank closed his account and he told him the reasons; that this is the only account he ever had with the bank; that the bank always gave those opening an account a check book containing about ten checks with the account number on the check pad and some deposit slips.

Testifying in his own behalf, the appellant stated that before he gave Walsh the check on April 23, 1966, he had previously bought parts from him at an auto parts store.

At this time a physician arrived who was a witness. The appellant was excused from the witness stand, and after the physician testified, the appellant was never recalled.

When the physician was asked if, during his examination of the appellant, he inquired into appellant’s dealings with the District Attorney’s office in the last fifteen years, the judge recessed the trial. After the recess, the appellant indicated his desire to waive a jury and plead guilty. His plea of guilty was made before the court and the jury was discharged.

The evidence is sufficient to show that the appellant committed the offense as alleged and supports the conviction.

The appellant relies upon the following grounds for reversal:

“1. That the Court erred in abandoning his discretion as it concerned this case and other cases of the Defendant by announcing to the Defendant that if he plead guilty his time would run concurrently whereas if he persisted in his not guilty plea the Court would have to run the sentences cumulatively.
“2. That the Court erred in misstating to Defendant the law as it applies to cumulatively or concurrent sentences as provided by Article 42.08, Texas Code of Criminal Procedure.
“3. That the Court erred in pronouncing sentence in that the Defendant had a reason to prevent sentence and he was precluded from announcing his good grounds for new trial by the trial Judge, as provided by Article 42.07.
4. That the Court erred m accepting Defendant’s plea of guilty contrary to Article 26.13.”

From an examination and consideration of the record, it is concluded that it fails to show that the appellant was influenced by or relied upon any announcements or statements made by the trial court to or in the presence of the appellant, which caused him to withdraw his plea of not guilty and enter a plea of guilty.

The record also fails to support appellant’s contention that either or all of the four grounds urged in his brief show reversible error. Said record does authorize the conclusion that all the proceedings are regular and in compliance with Arts. 1.13, 1.15, 26.13, 42.07, and 42.08, Vernon’s Ann. C.C.P., relating to pleas of guilty before the court in noncapital cases.

The judgment is affirmed.


text:
    Warren James HANFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 40764.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.
    Rehearing Denied Jan. 3, 1968.

      Herschel B. Cashin (on appeal only), Galveston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Thomas L. Douvry and Albert G. Redmond, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is rape; the punishment, 35 years.

The indictment alleged that appellant ravished and had carnal knowledge of the female named therein who was under the age of 18 years and not the wife of appellant.

Trial was on a plea of not guilty and, having returned a verdict finding appellant guilty, further evidence was introduced on the question of punishment to be assessed by the jury.

The- sufficiency of the evidence is not challenged.

The ground of error set forth in appellant’s brief relates to the argument of counsel for appellant at the hearing on punishment and the court’s ruling on the state’s objection, and is brought before us by formal bill of exception with the court’s qualification.

The record reflects that no request was made that the court reporter take shorthand notes of the arguments and such arguments are not shown in the record.

Recently, in Davis v. State, 400 S.W.2d 568, this court said:

“The entire argument is not brought forward in the record. The bill fails to certify that it contains all the argument on the question raised or that no other argument of the same or similar nature was made without objection. The bill does not present error.”

The argument referred to in appellant’s bill of exception was to the effect that the 15 year old girl was not afraid of appellant else she would have called out to a police officer they passed, or would have attempted to escape when appellant got out and went around the car.

The bill as qualified reflects that appellant’s counsel had made the same type of argument to the jury in arguing on the issue of guilt or innocence without objection from the state, and the state’s objection which was sustained came after the argument was repeated.

The trial court declined to certify that he instructed the jury to disregard the remarks of counsel for appellant.

If the claimed error of the trial court in sustaining the state’s objection is before us, it is not such error as would warrant reversal.

' On the issue of punishment, proof was offered of a number of prior felony-convictions and appellant admitted his identity as the defendant therein.

The judgment is affirmed.


author: DICE, Judge.

text:
    Maurice Garza JIMENEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40739.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 3, 1968.

      J. Evans Attwell, Joseph L. Bart, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

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

The record reflects that on the night in question Officer D. D. Collins, of the city of Houston police department narcotics division, received a telephone call at his home, around 8 p. m., from an informer who had proven to be reliable, in which call the informer stated that the appellant was driving in an automobile to a certain place in the city and that he would have heroin in his possession. In the conversation the officer was advised by the informant to “hurry up and get over there or he would be gone.” Officer Collins then enlisted the aid of Officer B. E. Majors and they met at 8:30 p. m. and proceeded to the location. At approximately 9:25 the officers observed appellant driving down the street with a companion in the car. They overtook appellant and pulled him to the curb. As appellant got out of the car on the driver’s side, Officer Collins grabbed him and Officer Majors approached from the pther side. As Officer Majors approached, he saw a Winston cigarette package fall to the ground approximately two or three feet from where appellant was standing and bounce over near a trash can. He picked up the package, that was shown to contain .98 grams of powder which, upon analysis, was found to be fifty-five per cent pure heroin. The officers then -searched the appellant, the automobile, and the other occupant in the car but found no contraband.

In his first two grounds of error, appellant insists that the court erred in denying his motion to suppress the evidence obtained by the officers and in admitting the same before the jury because, he contends, such evidence was illegally obtained as the result of an arrest and search without a warrant or probable cause, in violation of his rights under the Fourth Amendment to the Constitution of the United States and Art. 38.23 of the Vernon’s Ann.Code of Criminal Procedure of this State.

We overrule the two grounds of error, as the record reflects that the cigarette package containing the heroin which Officer Majors recovered from the ground was not obtained as the result of a search. Such evidence was admissible as against the contention that it was obtained as the result of an illegal search. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Nava v. State, 170 Tex.Cr.R. 355, 340 S.W.2d 955; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841; Ortega v. State, Tex.Cr.App., 414 S.W.2d 465. If the evidence, as contended by appellant, was obtained as the result of a search, such was legal as being incident to a lawful arrest. Clifton v. State, Tex.Cr.App., 399 S.W.2d 353; Gonzales v. State, Tex.Cr.App., 402 S.W.2d 763; Rosales v. State, Tex.Cr.App., 420 S.W.2d 717.

In his third ground of error, appellant insists that the court erred in denying his motion to require the state to disclose the identity of the informer and in sustaining the state’s objections to questions seeking to ascertain the identity and address of such person. The motion alleged, in substance, that the identity and address of the informer was necessary in determining whether probable cause existed for appellant’s arrest without a warrant.

The questions propounded were inquiries as to the name and address of the informer and further inquiry as to whether his name was “Sammy.”

Reliance is had by appellant upon the holding of the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 633, 1 L.Ed.2d 639, that in certain cases the name of the informer should be disclosed.

Recently, this court, in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, and Bosley v. State, Tex.Cr.App., 414 S.W.2d 468, pointed out that the name of the informer should be disclosed under the decision in Roviaro v. United States, supra, in only those cases where the informer “ ‘had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly’ committed the act.”

In the present case, the informer was not shown to have been present with appellant at the occurrence of the offense or in any manner to have taken a material part in bringing about his possession of the heroin. For such reason, the court did not err in refusing to require disclosure of the identity of the informer. Still another reason exists why the court did not err in denying appellant’s motion to require disclosure of the identity of the informer. As heretofore stated, the basis of the motion was for the purpose of determining whether probable cause existed for appellant’s arrest without a warrant.

In the recent case of McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, the Supreme Court of the United States held that an informer’s identity need not be disclosed in a preliminary hearing to determine probable cause for an arrest or search without warrant.

Our holding that the court did not err in refusing to require the state to disclose the identity and address of the informer disposes of appellant’s ground of error #4, wherein he complains of the court’s action in denying his application to take the written deposition of Officer Collins or any other officer of the Houston police department who could answer the interrogatories propounded relative to the prior criminal record of the informer. The ground of error is overruled. See: Thayer v. State, Tex.Cr.App., 397 S.W.2d 236.

By his fifth ground of error, appellant complains of certain jury argument of state’s counsel.

In his opening argument, counsel for the state remarked and the following transpired :

“MR. STILLEY: I am only asking for strict law enforcement for this reason. You, yourself, know why you have such a law to prohibit the possession of it. Because you possess it, and you are either going to use it of you are going to sell it and I submit to you that that defendant was—
“MR. ATTWELL: (interposing) I submit that he is bringing entirely unrelated matters in here and we object to it.
“THE COURT: Overruled.
“MR. ATTWELL: Exception.
“MR. STILLEY: I submit that this defendant had it for one of those two reasons out there. Don’t be misled by sympathy or anything else.
“If you are going to be sympathetic, think about the people that this law is designed to protect: You and I, the school children, all of the people must be protected from the circulation of narcotics, heroin, if you will, out there, such as was found in this case. Again, consider the value of it.
“I don’t know what they are going to say. If they are going to have the stuff just blowing the street, consider the value of it. Some $840 worth of stuff in the underworld, is it going to be just casually breezing down the street? Or is this something that this man got rid of when he was caught ?
“You know the answer to that and I don’t believe that you will be misled by what I am sure will be the very fine argument of defense counsel.
“Thank you.
“MR. ATTWELL: Your Honor, we are going to make a motion for mistrial, based on the objection that we made.
“THE COURT: Your motion for mistrial is denied.
“MR. ATTWELL: Note our exception.”

In his closing argument, counsel argued and the following transpired:

“This is the sort of thing that can even get into the hands of school children and I believe we all know that. I am not saying that that is what this particular—
“MR. ATTWELL: (interposing) We object to that, Your Honor. That is highly prejudicial and inflammatory. In fact, I move for a mistrial on the basis of that statement by Counsel.
“THE COURT: Overruled. It is his deduction from the evidence.
“MR. ATTWELL: Note our exception.”

It is appellant’s contention that such argument was prejudicial to him for two reasons : first, that he was being tried for possession of heroin and the argument was obviously intended to convince the jury that they should convict him to prevent the sale of narcotics, and, second, the argument which implied that narcotics might get into the hands of school children was without foundation and was damaging to him. Sparks v. State, 159 Tex.Cr.R. 111, 261 S.W.2d 571, is relied upon in support of such contention.

We do not agree that the argument presents reversible error. The statement by counsel that appellant had the heroin either to use or sell was a reasonable deduction from the evidence. There was no direct statement by state’s counsel that appellant wanted to sell the heroin to school children, as was made in Sparks v. State, supra.

In Ramirez v. State, 163 Tex.Cr.R. 491, 293 S.W.2d 653, this court held that state’s counsel did not commit reversible error in calling the jury’s attention to a matter of common knowledge that some marihuana finds its way into the possession of high school children. The ground of error is overruled.

In his sixth and last ground of error, appellant insists that the court erred in failing to grant a mistrial after certain hearsay testimony was given by Officers Collins and Majors before the jury while testifying relative to appellant’s arrest on the night in question. Appellant insists that a mistrial should have been ordered because the hearsay testimony related to probable cause, which was not an issue before the jury in the case.

The record reflects that on his direct examination, Officer Collins testified as follows:

“Q And you thought he [appellant] might have something that would be evidence in this case, is that correct? A Yes, sir, I had information to that effect.”

Appellant’s objection of hearsay was by the court sustained and the jury instructed to disregard the testimony.

Officer Majors, on his direct examination, testified that as soon as appellant was curbed he and Officer Collins jumped out of their car “trying to get to the subject, as we believed him to have heroin in his possession.”

Appellant’s general objection was sustained by the court and the jury was instructed to disregard the statement made by the officer.

While there was no issue of probable cause to be submitted to the jury, we do not agree that the court’s refusal to grant a mistrial presents reversible error. In each instance the court sustained appellant’s objection and instructed the jury to disregard the testimony. Such action by the court distinguishes the case from Rosales v. State, Tex.Cr.App., 399 S.W.2d 541, where the court overruled the objection, admitted the hearsay testimony in evidence, with a limitation placed on the jury’s consideration thereof, and there was no issue of probable cause to be submitted to it. The ground of error is overruled.

The judgment is affirmed.


text:
    Harry D. STOUT, Appellant, v. The STATE of Texas, Appellee.
    No. 40852.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Carl Raymond Crites, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the unlawful possession of a forged instrument in writing; the punishment, three years.

Trial was before the court upon appellant’s plea of guilty, a jury having been waived under the provisions of Art. 1.13 of the Vernon’s Ann.Code of Criminal Procedure.

At the trial, the appellant, while testifying as a witness, made a judicial confession to the offense charged and testified that on the date alleged he knowingly possessed the forged instrument in writing, being a check introduced in evidence as state’s exhibit #1, for the purpose of passing the same as true.

Evidence was also introduced by stipulation and affidavits, under the provisions of Art. 1.15, showing appellant’s guilt of the offense charged.

Three grounds of error are urged by appellant in his brief filed in the trial court.

In his first and third ground, appellant insists that he was illegally apprehended and forced to incriminate himself in violation of his constitutional rights, and that the check in question was obtained as the result of an illegal search and seizure.

No objection was made to the introduction in evidence of the instrument and it was not until appellant filed his motion for new trial that such contentions were made. It was incumbent upon appellant to have objected to the evidence when offered, and in the absence thereof his objection was waived. Erwin v. State, 171 Tex.Cr.App.199, 350 S.W.2d 199.

No question was raised by appellant upon the main trial relative to the legality of his arrest and no evidence was offered of any incriminating statements made by him.

Miranda v. State of Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, cited by appellant in his brief, has no application under the facts.

The grounds of error are overruled.

In his second ground of error, appellant insists:

“The indictment upon which conviction was obtained is fatally defective in that the charge is possession of a forged instrument, but in the body of the indictment itself, the allegation is that the defendant was in possession of a forged check, rather than a forged instrument, as elsewhere alleged.”

No motion to quash the indictment was filed by appellant in the cause. We have, however, examined the indictment and find that it follows the form set out in Will-son’s Texas Criminal Forms, Seventh Edition, #1259, at page 305, which this court held—in Verner v. State, 117 Tex.Cr.App. 112, 35 S.W.2d 428—sufficient to charge an offense under Art. 998, Vernon’s Ann.P.C.

The ground of error is overruled.

The judgment is affirmed.

ONION, J., not participating.


text:
    Venida A. BYRD, Appellant, v. The STATE of Texas, Appellee.
    No. 40738.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.

      Pena & McDonald, by L. Aron Pena, Edinburg, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is felony embezzlement; the punishment, two years.

The indictment alleged the embezzlement of $85.19 in money from Valley Transit Co. Inc., a corporation, by appellant, its agent and bailee.

The first ground of error is that the court erred in allowing admission of evidence and allusion to the commission by defendant of other crimes and transactions.

• Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P., requires that the defendant’s brief shall set forth separately each ground of error of which defendant desires to complain on appeal.

The brief fails to point out any particular evidence or allusion, or ruling of the court in regard to same. We note, however, that the evidence as to shortages in other similar transactions relating to money collected by appellant, as station agent at the Edinburg Bus Station, appears to have been admitted without objection and was limited in the court’s charge, to which there were no objections. Further, we agree with the state’s contention that the evidence so limited was admissible under Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, to show system, intent and knowledge.

The second ground is that the trial court committed material error in making comment on the weight of the evidence at various incidents of the trial. This assignment of error does not comply with the requirements of Art. 40.09, Sec. 9, supra, that the grounds of error be set forth separately.

We have examined the portion of the record indicated in connection with this ground of error and find no comment of the court to which objection was made or which violated Art. 38.05 V.A.C.C.P., which provides that the judge shall not comment upon the weight of the evidence or its bearing in the case, or make any remark calculated to convey to the jury his opinion of the case. A comment by the court not reasonably calculated to prejudice the rights of appellant is not ground for reversal. Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100; Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245; Collins v. State, Tex.Cr.App., 376 S.W.2d 354.

The third ground of error is that the court erred in considering other charges pending against appellant in assessing punishment.

This claim of error relates to a statement by the court at the time he passed on appellant’s application for probation. The jury had previously returned its verdict finding appellant guilty and, the defendant having elected to have the punishment assessed by the court, the court had assessed the minimum punishment.

We find no denial of due process of law in the court’s refusal to grant probation, based in part upon other charges pending against appellant.

The fourth ground of error is that the verdict of the jury and consequent judgment of the court where contrary to the law and the evidence.

This complaint relates to the variance between the total receipts from ticket sales shown by the State’s Exhibits and the amount alleged to have been embezzled.

State’s Exhibit No. 3, compiled by appellant, reflects that on February 25, 1966, the total receipts for tickets and express, less commission, was $100.04 which- — deducting $14.85 charged- — left a balance of $85.19 due and to be deposited to the account of the Corporation. The undisputed evidence shows that such sum was not deposited by appellant as required by her agency agreement.

The amount shown by the state’s evidence to have been embezzled being more than $50.00, any variance between the allegations and proof as to the amount embezzled would not be fatal.

The evidence in support of the allegation as to agency and the receipt of more than $50.00 by the appellant on February 25, 1966, which was not deposited in the bank in accordance with the agency agreement is not disputed. The jury rejected appellant’s testimony to the effect that she did not embezzle or appropriate any of the corporation’s money.

The evidence is deemed sufficient to sustain the jury’s verdict, and ground of error No. 4 is overruled.

The remaining ground for reversal is that appellant was not afforded effective and competent counsel. Appellant’s trial counsel as well as her counsel on appeal were of her own choosing. The brief concedes that trial counsel was “a man of tremendous experience in the practice of law.” Without questioning his general competency, the brief presents the contention that the entire record of the trial proceedings reflects that appellant was not adequately represented.

While the writer’s views are expressed in his dissenting opinion in Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61, the majority opinion therein does not support appellant’s ground of error.

The constitutional right to counsel does not mean errorless counsel, and whether counsel is employed or is court appointed, his competency or the adequacy of his representation of his client is not to be judged by hindsight. Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393.

The contention that appellant was denied her right to effective aid of counsel is overruled.

The judgment is affirmed.


text:
    Lawrence Ernest JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40703.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1967.
    Rehearing Denied Jan. 3, 1968.
    George S. McCarthy, Amarillo, (on appeal only), for appellant.
    Gene Compton, Dist. Atty., Thomas V. Priolo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, 10 years.

Trial was before a jury on a plea of not guilty. The sole defense was insanity.

The charge of the court was in two parts. The first presented the defense of insanity and submitted the issue of whether appellant was insane at the time the offense was alleged to have been committed. Part 2 of the charge was to he considered only in the event the jury found appellant sane at the time of the alleged offense.

The jury found appellant sane at such time and found him guilty of assault with intent to murder with malice and the court assessed the punishment.

In addition to assault with intent to murder with malice the court, in his charge, submitted assault with intent to murder without malice and aggravated assault.

The issue of insanity at the time of the trial was not raised by the evidence or submitted to the jury.

In his brief filed in the trial court appellant seeks to raise interesting questions predicated upon the separate submission of the defense of insanity.

There were no objections to the charge. Even so, it does not appear from the record that the separate submission of the defense of insanity was calculated to injure the rights of appellant or that it deprived him of a fair and impartial trial.

It follows that, though somewhat irregular, such separate submission did not constitute error for which the judgment should be reversed. Arts. 36.14 et seq. Vernon’s Ann.C.C.P.

The remaining grounds of error which are sufficiently set forth in appellant’s brief to require consideration relate to the sufficiency of the evidence.

Ground 2 is that the uncontradicted testimony was that at the time of the alleged assault appellant did not know that he was committing it.

Ground 3 is that there was “no evidence of malice expressed” and no evidence that the injuries were inflicted by a deadly weapon.

Ground 4 is that the record is devoid of any testimony of wilfullness and malice.

While appellant so testified, and the psychiatrist he called expressed the opinion that he did not know at the' time he was committing the assault, appellant testified at the trial that he then remembered committing it and fully corroborated the testimony of the assaulted party, and the psychiatrist called as a defense witness expressed the opinion that appellant was capable of knowing right from wrong and the nature and quality of his act, though his opinion was that appellant’s “ability to understand the nature of his act at the exact time was very definitely severely impaired.”

He further testified that he had not recommended that appellant be discharged from the Air Force because of mental derangement and did not think he should be.

The record reflects that Mrs. Gibbs, upon whom the assault was alleged to have been made, was at home talking over the telephone when appellant, an aircraft mechanic with whom she and her husband had friendly relations, came to her door asking for assistance because of some reported car trouble he was having. After he had been admitted to the house and had, in a short conversation, inquired as to when Mr. Gibbs would be home, appellant struck Mrs. Gibbs on the back of her head with a soft drink bottle with such force as to break and shatter it. He then grabbed Mrs. Gibbs, wrestled her to the floor and began stabbing her with her kitchen knife that she had just sharpened.

The knife is referred to in the testimony as “a butcher knife” and a “kitchen knife.” The size of the knife or length of the blade is not shown. However, the knife which was found after the assault bent in an “L” shape was introduced in evidence at the trial and is available upon request for inspection by this Court. Art. 40.09, Sec. 15, V.A.C.C.P.

The wounds inflicted by appellant on Mrs. Gibbs with the knife included seven stab wounds, in her chest close to the heart, and in her wrist, forearm, armpit and back respectively, and her finger was almost severed when she grabbed the knife to prevent further stabbing. As a result of such injuries, Mrs. Gibbs was in a state of shock when the doctor saw her in the emergency room. The wound in the chest required the insertion of a tube in the chest cavity for the purpose of expanding the lung and removing blood that had accumulated in the chest cavity and blood transfusions were required.

The chest wound near the heart, according to the medical testimony, was not superficial in nature and was capable of producing death.

Appellant testified that he did not remember what was in his mind when he hit Mrs. Gibbs with the bottle but his reason for stabbing her with the knife was that she started screaming and was clawing at him “to keep me from hitting her any more.”

Wounds inflicted on the injured party may be looked to in determining whether or not the knife used in the assault was a deadly weapon. Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679; 4 Branch’s Ann.P.C.2d 132, Sec. 1753; 4 Branch’s Ann.P.C.2d 175, Sec. 1815.

Malice may be inferred from all of the circumstances and this Court has held that a defendant who stabbed the deceased intentionally without justification or excuse with a broken bottle, inflicting the wound which ultimately produced death, acted with malice aforethought though there had been no previous encounter between the defendant and the deceased. Johnson v. State, Tex.Cr.App., 401 S.W.2d 837. See also Guillory v. State, Tex.Cr.App., 409 S.W.2d 402.

Other recent decisions which sustain our conclusion that the evidence is sufficient to sustain the jury’s finding that appellant made the assault with the specific intent to kill Mrs. Gibbs include Young v. State, Tex.Cr.App., 384 S.W.2d 710; Gipson v. State, Tex.Cr.App., 403 S.W.2d 794; Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219; and Richard v. State, No. 40,603, Tex.Cr.App., decided October 25, 1967. See also Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744.

We find the evidence sufficient to sustain the conviction.

There remains what appears to be an attack upon the conviction upon the theory that appellant was denied his right to effective aid of trial counsel.

While appellant’s brief refers to his employed attorney on appeal and his reluctance to criticize his court appointed trial attorney, we find nothing in the record to show that appellant was indigent or that his trial counsel was court appointed.

Be this as it may, the contention that proper representation by one in some degree experienced in criminal trial work would have prevented the unobjected to occurrences alleged to be error and prevented damaging conclusions that were not borne out by any testimony and were highly prejudicial to the rights of appellant before a jury, are not deemed such as to present the constitutional question. This is especially so in the absence of any showing that appellant’s trial counsel was inexperienced or incompetent or that appellant’s trial was a mockery.

The constitutional right to counsel does not mean errorless counsel and counsel is not to be judged ineffective by hindsight. Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393.

The judgment is affirmed.


author: PER CURIAM.

text:
    David CARRILLO, Relator, v. Hon. Lewis DICKSON et al., Respondents.
    No. 77.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 8, 1967.
    James C. Brady, Houston, for appellant.
    L. S. Carsey, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appel-lee.
   PER CURIAM.

Petitioner has filed its petition for writ of mandamus wherein it asks that we vacate an order entered by the Honorable Lewis Dickson as judge presiding over the 133rd District Court of Harris County, Texas. The order of the trial court of which complaint is here made was to the effect that relator be required, pursuant to Rule 167, Texas Rules of Civil Procedure, to produce for inspection and testing a valve which was to be used as physical evidence in a lawsuit in which relator is plaintiff.

Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, was a proceeding wherein the petitioner for writ of mandamus, in the Supreme Court of Texas, sought an order “to vacate, amend and revise” an order entered by the district judge in a discovery proceeding. In that case, the court said the following:

“The Court of Civil Appeals has no jurisdiction to grant the relief sought by relators in this proceeding. Its jurisdiction to grant a writ of mandamus is limited to the enforcement or protection of its jurisdiction, or to compel a district judge to proceed to trial and judgment. Article 1824, R.C.S.1925, Vernon’s Ann. Civ.St., art. 1824 ; 8 S.W. Law Journal, pp. 389, 393.”

On that authority, we hold that this court has no jurisdiction to grant the relief sought by petitioner. See also Lucas v. Wright, Tex.Civ.App., 370 S.W.2d 924.

The petition for writ of mandamus is dismissed.