author: CLAY, Commissioner. MOREMEN, C. J., and STEWART and MILLIKEN,. JJ.,

text:
    Steve ASHTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Certiorari Granted Jan. 17, 1966.
    See 86 S.Ct. 537.

      Dan Jack Combs; Pikeville, Ephraim London, New York City, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Tol-bert Combs, Commonwealth Atty. for Perry County, Hazard, for appellee.
   CLAY, Commissioner.

Appellant was convicted of the common law crime of criminal libel and his punishment fixed at six months in jail and a $3,000 fine. The principal ground urged for reversal is that the nature of the offense was so “vague” and “inclusive” that appellant’s conviction violated his constitutional rights of freedom of speech and due process. This raises a novel and serious question which we will dispose of first.

The charge in the indictment is as follows :

“On or about the 22nd day of March, 1963, in Perry County, Kentucky, the above named defendant committed the offense of criminal libel, by publishing a false and malicious publication which tends to degrade or injure Sam L. Luttrell, Charles E. Combs, Mr. and Mrs. W. P. Nolan, against the peace and dignity of the Commonwealth of Kentucky.”

Sam Luttrell was the chief of police of Hazard, Kentucky; Charles Combs was the sheriff; Mr. and Mrs. Nolan edited a local newspaper. The alleged defamatory matter appeared in a printed pamphlet entitled “Notes on a Mountain Strike”, which was written by the defendant. He was a college student from Ohio who had come to Hazard to help unemployed miners in that area. This was a time of serious unrest in Perfy County.

Although defendant raises some question about it, there is no doubt that the evidence proved “publication” of this pamphlet. The proof further establishes, and defendant admits, that certain statements therein, referring to the chief of police and the sheriff, were defamatory per se and were false. Though defendant contends the statements made about Mrs. Nolan (Mr. Nolan is not. involved) were true, there was sufficient evidence that the statements accusing her of a breach of trust in the distribution of certain funds were in essence false.

By instructions to the jury the trial court made a most commendable effort to identify the crime more fully than was done in the indictment. To convict, the jury was required to find the defendant “did unlawfully publish * * * certain libelous and defamatory matter” which was “false and libelous, and was so known to be false and libelous when published by the defendant, and was written and published by him solely and for the purpose of bringing (the complaining witnesses) into great contempt, scandal, infamy and disgrace, and for the purpose of injuring, scandalizing and vilifying the name and reputation (of the complaining witnesses) * * *.”

The court further instructed “that criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable”; and that “malice” was “an essential element of the offense”. The jury was also advised that truth of the statements was a complete defense. These instructions were in fact so comprehensive in detailing different aspects of the crime (although omitting a definition of “malice”) as to be somewhat confusing. However, defendant claims no specific error in the instructions.

The basic contention is that the case law of Kentucky does not adequately define the crime, and the trial court’s attempt to delineate its elements was so vague, multifarious, and indefinite, and so inclusive of innocent acts, that the law lacks certainty with respect to the conduct condemned. Therefore, it is argued the conviction of the defendant deprived him of both the right of free speech and due process of law.

We will assume, although as far as we can discover after exhaustive research no case as decided this particular point, that the same certainty required of a criminal statute applies to a common law crime. See Sullivan v. Brawner, 237 Ky. 730, 36 S.W.2d 364; Roberts v. United States, 6 Cir., 226 F.2d 464; Winters v. People of State of New York, 333 U. S. 507, 68 S.Ct. 665, 92 L.Ed. 840; American Communications Association, CIO v. Douds, 339 U. S. 382, 70 S.Ct. 674, 94 L.Ed. 1391.

It is true that the offense of criminal libel has been subjected to stress and strain through its long period of development since the existence of the Court of the Star Chamber in England around the year 1600. A distinction was then recognized between defamation of a private person and a public official (which has continued to this day). With respect to the former, the real offense was the tendency of defamatory words to incite a breach of the peace. Where a public official was involved, criminality consisted of the scandalous attack upon the government. This latter was seditious libel, a political offense, and most prosecutions for criminal libel in the United States seem to reflect shadows of this long since discredited ground of criminality.

It has been roundly questioned whether there ever was actually a common law crime of seditious criminal libel in England, or if so, whether it survived the first amendment to the federal constitution. In any event, it is certain that the English crime, as such, was not imported into the United States. This conclusion is inescapable when we consider the elements of the English crime, which constitutions, statutes and court decisions have substantially modified. One could be guilty of criminal libel under the English law without a showing of (1) malice, (2) falsity, or (3) publication, and (4), without a jury’s finding the published matter was libelous. That was the status of the so-called common law criminal libel of England when written constitutions were adopted in the United States. It was against this background that the right of freedom of speech was recognized.

The first amendment to the Constitution of the United States provides that: “Congress shall make no law * * * abridging the freedom of speech, or of the press; * *

Section 1 (subsection four) of the Kentucky Constitution recognizes as an inalienable right of all men: “The right of freely communicating their thoughts and opinions.”

Section 8, Kentucky Constitution, provides in part: “Every person may freely and fully speak, write and print on any •subject, being responsible for the abuse of that liberty.”

Section 9, Kentucky Constitution, provides: “In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

The above passages clearly show that both federal and state governments were attempting in some manner to escape the abuses of criminal libel prosecutions in England when they were written into American constitutional law. Also, with adoption of these provisions, emphasis shifted from the protection of political institutions to the protection of the individual’s right of free expression. As an original proposition it would have been neither difficult nor unreasonable for the courts of this country thereafter to conclude that the common law crime of criminal libel had not survived our federal and state constitutions. There is respectable authority for that view even today.

However, the fact remains that the crime of criminal libel is recognized and enforced throughout the United States. While many states have made the offense a statutory crime, the courts of those states which have not legislated on the subject have acknowledged the existence of the crime in its common law form. In the only two cases we have found where the question was squarely presented as to whether the common law crime survived in the United States, the answer, after careful consideration, was in the affirmative. Commonwealth v. Whitmarsh (Mass.1836), Thacher’s Criminal Cases (page 441), and Commonwealth v. Chapman, 54 Mass. (13 Metcalf) 68 (1847).

In Kentucky, as heretofore noted, section 9 of the Constitution refers to “indictments for libel”. Section 132 of the Criminal Code dealt with such indictments. In at least six Kentucky cases this Court has recognized the common law crime. Tracy v. Commonwealth, 87 Ky. 578, 9 S.W. 822 (1888); Smith v. Commonwealth, 98 Ky. 437, 33 S.W. 419, 17 Ky.Law Rep. 1010 (1895); Browning v. Commonwealth, 116 Ky. 282, 76 S.W. 19 (1903); Commonwealth v. Duncan, 127 Ky. 47, 104 S.W. 997 (1907) ; Yancey v. Commonwealth, 135 Ky. 207, 122 S.W. 123 (1909); Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907 (1927). It is significant that in none of those cases did the defendants question the nature of the crime or the certainty of the elements of which it consisted. While the same questions were not involved in each case, and while in none of them do we find a comprehensive definition of criminal libel, they jointly recognize its four basic elements: (1) written words which are defamatory per se, (2) publication, (3) falsity, and (4) malice.

Some of these cases made reference to another aspect of the crime which defendant contends contributed to the vagueness and uncertainty of the law. This was the tendency of the defamatory words to lead to a “breach of the peace”. In the Tracy case it was said “[t]he publication is, in effect a breach of the peace”. In the Duncan case it was said that the publication “was manifestly calculated to create a disturbance of the public peace”. In the Browning case it was said “the publication amounts to an indictable offense, inasmuch as it tends to provoke violence and disturb the peace of society”. In Provident Sav. Life Assur. Soc. v. Johnson, 115 Ky. 84, 72 S.W. 754 (1903), a civil suit for malicious prosecution for criminal libel, it was said “[a] criminal libel is committed by any writing calculated to create disturbance of the peace, corrupt the public morals, or lead to any act which, when done, is indictable”.

It is defendant’s contention that to define the crime in terms of its tendency to cause a “breach of the peace” or lead to an indictable act is too indefinite to identify criminal conduct. There are two answers to this argument.

In the first place, the quoted statements from our cases simply refer to the nature of the writing which would constitute the basis of the charge of criminal libel. In those cases it was assumed that words which were defamatory per se were sufficiently offensive to be criminally libelous, provided the other elements of the crime were established. In those cases, as in the one before us, there was no issue concerning the defamatory nature of the published matter. Consequently the possible uncertainty of the concepts of “breach of the peace” or “indictable offense”, as descriptive of the nature of defamatory matter, does not unstabilize the essential elements of the offense with which defendant was charged.

In the second place, in the development of the common law of criminal libel in the United States the offense is no longer founded, as it once was in England, upon the tendency of the defamatory words to cause a “breach of the peace” or to induce others to commit a public offense.

It has been observed:

“Whatever validity the former ground—keeping the peace—had historically was ‘rejected with finality (over) fifty years ago.’ Originally, criminal libel laws emphasized the state’s concern with the prevention of sedition and turbulence. Even later expansion to ordinary or nonpolitical defamation could be explained as an effort to provide a substitute for the self-help remedy of the duel. After the passing of the custom of dueling, the common-law development could no longer be justified in terms of the interest in preservation of peace. Once truth was recognized as a complete defense, at least in the civil action, it was perfectly clear that the interest being served was no longer keeping of the peace.”

The erosion of the “breach of the peace” justification for criminal libel laws was recognized in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. See also Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877, 924 (1963).

In fact the ancient broad common law concept of what constituted a “breach of the peace” is no longer a constitutional basis for imposing criminal liability. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 84 L.Ed. Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. See also Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed. 697; Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed. 471; Constitutionality of the Law of Criminal Libel, 52 Columbia Law Review 521, 528 (1952).

None of our Kentucky cases based the criminality of the act upon the tendency to cause a “breach of the peace” or the commission of an “indictable offense”. To the extent they defined the defamatory nature of the words in these terms, they are obsolete. In our latest case on the subject, Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907 (1927), which perhaps came closer to defining the crime than any of our other opinions, no mention is made of the possibility of public disturbance which might be incited by the publication.

We conclude, therefore, that defendant cannot fairly claim that an - outmoded aspect of the impact of the defamatory words made uncertain the kind of conduct for which he was prosecuted and convicted.

As we have heretofore indicated, the common law crime of criminal libel recognized in Kentucky is basically the publication of a defamatory statement about another which is false, with malice. There is no uncertainty in the law about what constitutes (1) publication, (2) defamatory words, or (3) falsity. There is a certain indefiniteness concerning the nature of malice but we find this difficulty with that term throughout the criminal law.

In Riley v. Lee, 86 Ky. 603, 11 S.W. 713, 11 Ky.Law Rep. 586, malice was defined as the intentional publication of defamatory matter “without justifiable cause”. This was a civil suit but it is a broad description of the mental state which constitutes actual malice in criminal libel. Wharton’s Criminal Law and Procedure (Anderson’s Edition), Vol. 2, section 879 (page 745); 33 Am.Jur., Libel and Slander, section 312 (page 249). The last cited authorities used the words “without legal (or lawful) justification or excuse”. The definition in these terms is not very helpful because it leads us into a vast field of what constitutes justification or excuse.

A more workable analysis appears in Smith v. Commonwealth, 98 Ky. 437, 33 S.W. 419 (1895). That case involved the question of whether the jury should be instructed to find “malice”. The Court held an instruction proper without use of this term when the jury was required to find that the publication was false and libelous and was “written and published by (defendant) solely and for the purpose of bringing the (prosecuting witness) into great contempt, scandal, infamy and disgrace”. (Our emphasis)

The United States Supreme Court has recently added an additional measure of malice in a criminal libel case where the defamatory words concern public officers and public affairs (which we have in the present case). In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed. 2d 125, it was held that the state could not impose criminal sanctions for criticism of official conduct of public officials, even though false, unless the defamatory words were published “with knowledge of their falsity or in reckless disregard of whether they are true or false”. This added another dimension to malice, although serious questions arise concerning its practical utility and proper application. There is still an area of inevitable uncertainty in pinpointing the evil intent within the scope of the term.

We may point out that defendant does not contend the element of “malice” is so vague, or uncertain, or inclusive as to make unconstitutional his prosecution or conviction for criminal libel. We have discussed this matter because it has given us some concern and because it is significant on the next contention made by defendant.

It is argued there was no evidence offered to show that defendant’s defamatory statements were made with “actual malice”. That is what New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 95 A.L.R.2d 1412, 11 L.Ed.2d 686, and Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L. Ed. 125, apparently require. However, neither of those cases required independent proof of malice. Obviously, unless the defendant had told someone of an evil motive or had voluntarily taken the stand and so testified, actual malice could be proved only as a state of mind made manifest by the nature of the defamatory words and the circumstances surrounding their publication. New York Times and Garrison do require the establishment of actual malice (i. e., a calculated falsehood), by proof rather than presumption, but they lay down no constitutional standards with respect to the sufficiency of proof (although New York Times considered the question of sufficiency).

As we have intimated, if the defendant has not stated his motives to another person or has not taken the stand as a witness (as here), it is a practical impossibility to prove his knowledge, or reckless disregard of the truth, or his intent, or his purpose (all of which are subjective) except as a permissible inference which may reasonably be drawn from his particular conduct. Malice may be proved by circumstantial evidence as any other fact. Combs v. Commonwealth, Ky., 356 S.W.2d 761.

In the present case the defendant was a stranger in the community. He was not acquainted with the prosecution witnesses. He had not personally confronted them with their claimed misconduct. Some of the statements made about them were clearly defamatory and they were false. This was a'period of strife between union and non-union miners, and the defendant and the prosecuting witnesses were in opposing camps. From all these facts a jury, not necessarily but reasonably, could conclude that the defendant was motivated by actual malice: that is, he knowingly or in reckless disregard of the truth published these false statements for the purpose of exposing the prosecuting witnesses to public degradation.

It may be noted that the trial judge by his instructions required the jury to find malice in substantially these terms. Actually the instructions were more favorable to the defendant than the law required. The jury was required to find the defamatory matter was “known to be false”, even though a reckless disregard of the truth would have carried the same imputation of wrongful conduct. The jury was also required to find that the defamatory matter was published “solely and for the purpose of” bringing the complaining witnesses into public degradation. This language was taken from Smith v. Commonwealth, 98 Ky. 437, 33 S.W. 419 (1895). It is not only ungrammatical but would seem to excuse the defendant if he could show some collateral purpose influencing his conduct. While we disapprove of the use of the word “solely” in the instruction, its inclusion favored the defendant. On this point we must conclude that the evidence, even though circumstantial, was sufficicient to support a jury finding of actual malice.

It is next contended the indictment was fatally defective in that it did not set forth facts sufficient to constitute a criminal offense. The indictment is quoted at the beginning of this opinion. From our discussion of other problems arising in this case, it is apparent this indictment in sub-tance sets forth all of the essential elements of criminal libel. It certainly conforms with the requirements of RCr 6.10(2).

Under RCr 6.22 defendant moved for a bill of particulars, which motion was denied. This was error. At least defendant was entitled to an accurate copy of the alleged libelous matter. Prior to the adoption of our new criminal rules, apparently this would have been an essential part of the indictment. Roberson’s New Kentucky Criminal Law and Procedure, 2d Ed., section 1186 (page 1404). However, the denial of this motion was not prejudicial. There is no suggestion defendant was not fully aware that he was being prosecuted for the libelous matter, concerning the specifically named prosecuting witnesses, which appeared in “Notes on a Mountain Strike”, or that he did not have a copy of this printed material. Defendant insists he was entitled to know “in what manner it was claimed publication was made” but this is quibbling over a relatively unimportant matter. We cannot find the denial of defendant’s motion in any way prejudiced his defense.

The final contention is that the verdict was concurred in by only 10 members of the jury and was void because in violation of RCr 9.82 and RCr 9.88, which require a “unanimous” verdict. It is admitted by defendant that he voluntarily consented to a majority verdict before it was rendered. It is claimed, however, that such consent or waiver violates the “ancient mode of trial by jury” (Section 7, Kentucky Constitution) and public policy.

The only answer of the Commonwealth to this argument, in its brief, is that since the record fails to show otherwise, we must presume the verdict was unanimous. We will assume, however, that only 10 of the 12 jurors agreed upon the verdict.

Clearly defendant would have been bound by an agreement to honor the verdict of a 10-man jury. KRS 29.015 specifically authorizes the parties in a misdemeanor case to agree on a trial by a lesser number of persons than 12. The offense with which defendant was charged was a misdemeanor (KRS 431.060).

At first blush it would seem that if a defendant “may agree to a trial by a lesser number of persons” than 12 (KRS 29.015), an agreement to accept a verdict of the majority of a panel of 12 conforms with the statute. It is contended, however, that regardless of the number of jurors, the verdict of that specific number must be unanimous, as RCr 9.82(1) and RCr 9.88 provide.

Such view was taken in Hibdon v. United States, 6 Cir., 204 F.2d 834, wherein the court followed two lines of reasoning. It was first held that because of the mandatory phrasing of Federal Criminal Rule 31(a), which is substantially the same as RCr 9.82, the requirement of unanimity could not be waived. We are not inclined to accept this conclusion. A vast number of both civil and criminal procedural rules are mandatory in form, but unless they are jurisdictional in nature, or noncompliance will adversely affect the administration of justice, no reason is apparent why a party cannot understandingly and voluntarily waive their requirements.

The second line of approach in Hibdon was that under the ancient common law the defendant’s guilt had to be proved beyond a reasonable doubt in order to overcome the presumption of innocence, and a verdict of only a majority of the jurors would not meet that requirement since a dissenting vote would demonstrate the existence of a reasonable doubt. It was suggested that unless the court upheld this high standard upon which a conviction could be based, the prosecutor would have a lesser burden of proof and there might result unjust convictions. Assuming these speculations have some validity, the risk is one which the defendant voluntarily accepts.

The substance of the Hibdon opinion relating to the sacredness of a jury trial was keyed to a “humanitarian concept” and “due process”. Emphasis was placed upon the historical background and the public interest in the protection of persons accused of crime. In our opinion the reasons making necessary extraordinary solicitation for the defendant’s rights have long since disappeared. It will be remembered that under the common law the accused could not testify in his own behalf, he had no right to counsel, and the penalties were extremely severe, usually death. In Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, it was pointed out the ancient doctrine that the accused could waive no rights was based upon those early conditions. Noting that they no longer exist, the United States Supreme Court decided the accused could waive a 12-man jury and properly agree to be tried by 11 jurors.

The Hibdon opinion sought to distinguish the Patton case and to distinguish between waiving the number of jurors and waiving unanimity. Accepting the latter distinction, we simply cannot find a persuasive reason for a different application of the waiver principle. We will take leave of Hibdon with the observation that the ultimate decision was based on an acceptable ground, i. e., the defendant was coerced into the agreement and therefore it was not voluntarily made. The preliminary conclusions in that opinion which we have discussed fall into the category of dictum. This does not condemn the reasoning but we are not inclined to follow it.

We think the time has come to abandon the romantic aspects of the ancient mode of trial by jury and consider the matter pragmatically. No one questions the right of a defendant in a criminal case to invoke the protection of any or all of his constitutional rights. On the other hand, we can find no sound reason to deny him the right of waiving procedural requirements which exist principally for his benefit. We have recognized that he can waive a jury completely by pleading guilty. He can waive the right to counsel, the right to freedom from self-incrimination, the right to have excluded evidence obtained by unreasonable search or seizure, and at least in misdemeanor cases, the right to a 12-man jury. On what logical basis is unanimity a more sacred right?

It is true this Court has heretofore adhered to the theory that in a felony case the defendant cannot waive a 12-man jury. Branham v. Commonwealth, 209 Ky. 734, 274 S.W. 489; Tackett v. Commonwealth, Ky., 320 S.W.2d 299. A serious question may be raised as to whether a valid distinction can be made between the waiver of defendant’s rights in felony cases on the one hand and misdemeanors on the other. See Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Waiver of Trial Jury in Felony Cases in Kentucky, 48 Ky.L.Journal 457. We do not have that question here and will not re-examine it.

It is our conviction that at least in misdemeanor cases the defendant may waive not only a 12-man jury but unanimity of the jurors in reaching their verdict, provided always that such waiver agreement is entered into understandingly and voluntarily, and provided of course the Commonwealth agrees and the trial court approves. Since no suggestion is made that the defendant in this case did not understandingly and voluntarily enter into the agreement to accept a majority verdict (and our solicitude for the rights of the defendant can be maintained by careful scrutiny of these two conditions), he was bound by his agreement. We find no error here.

We have considered carefully each of the six points raised in appellant’s brief and find no reversible error.

The judgment is affirmed.

MOREMEN, C. J., and STEWART and MILLIKEN,. JJ.,

dissent on the ground that since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.

      . Under the first and fourteenth amendments to the United States Constitution.

      . The historical background hereafter given was taken principally from an article entitled Constitutionality of the Law of Criminal Libel, 62 Columbia Law Review 621 (1952), and an article, Seditious Libel; Myth and Reality, by Ervin Brandt, 39 New York University Law Review 1 (1964). Other texts examined have been Odgers on Libel and Slander (6th Ed.), and Newell, Slander and Libel (4th Ed.).

      . See Plucknett, A Concise History of the Common Law (6th Ed.) page 489.

      . Seditious Libel; Myth and Reality, by Ervin Brandt, 39 New York University Law Review 1 (1964).

      . Mr. Justice Holmes, dissenting, in Abrams v. United States, 250 U.S. 616, 630; concurring opinions of Justices Douglas, Black and Goldberg in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877, 924 (1963).

      . This section of the Kentucky Constitution incorporated the two important provisions of Section 3 of the Federal Sedition Act of 1798, 1 U.S.Stat. 596, 597, which stemmed from the English Eox Libel Act of 1792, 32 Geo. 3, Ch. 60. The provision with respect to jury function did not effect any change in the mode of jury trial. Walston v. Commonwealth, Ky., 106 S.W. 224, 32 Ky.Law Rep. 535.

      . See the concurring opinions of Mr. Justices Douglas, Black and Goldberg in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Irvin Brandt, Seditious Libel; Myth and Reality, 30 New York University Law Review 1; Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877, 924.

      . Beauharnais v. People of State of Illinois, 343 U.S. 250, 265, 72 S.Ct. 725, 96 L.Ed. 919.

      . Libel and the First Amendment—A New Constitutional Privilege, by Arthur L. Berney, 61 Virginia Law Beview 1, 40 (1965).

      . Mens Rea, 45 Harvard Law Review 974.

      . New York Times Co. v. Sullivan — The Scope of a Privilege, 51 Virginia Law Review 106.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A. J. CARUBBI, Jr., Appellant, v. William J. CRAIG, Appellee.
    No. 7679.
    Court of Civil Appeals of Texas. Amarillo.
    Aug. 15, 1966.
    Ochsner, Nobles & Baughman, Amarillo, Frank J. Baughman, Amarillo, of counsel, for appellant.
    Carubbi, Warner & Jeter, Pampa, Will D. Davis, Austin, Ben Johnson, Tyler, Ray Pearson, El Paso, Brooks, Jones & Gordon, Tom Gordon, Abilene, appearing ami-cus curiae, for appellant.
    Folley, Snodgrass, Calhoun & Kolius, Amarillo, V. G. Kolius, Amarillo, of counsel, John Studer and Harold L. Comer, Pampa, Small, Small & Craig, Austin, for appellee.
   PER CURIAM.

This is a primary election contest filed under Article 13.30 of the Election Code, V.A.T.S. that concerns the invalidity or illegality of votes of certain persons who are alleged to have voted in the Republican Primary in Gray County on May 7, 1966, and then voted in the Second Democratic Primary for the office of County Judge on June 4, 1966.

In the Second Primary the incumbent county judge, the honorable William J. Craig, received 1785 votes and A. J. Carub-bi, Jr. received 1777 votes as shown by the canvass of the County Executive Committee. An answer with special exception was filed on June 13, 1966, to the original contest petition. Contestant Carubbi then filed his “First Amended Original Election Contest Petition” on the next day in which he named some seventy persons in nine separate precincts and seven absentee voters which he alleged had first voted in the Republican Primary Election held on May 7, 1966, and who subsequently voted in the Second Democratic Primary held on June 4, 1966, in violation of Article 240, Vernon’s Annotated Penal Code. He alleged all such votes were illegal and “ * * * that he has good reason and in fact does believe and alleges to be true that a sufficient majority of said illegal votes were cast for defendant, so that if such illegal votes are discarded as they should be, and not counted, plaintiff would be the winner of said election.” Mr. Carubbi also made affidavit that he had examined the polling lists of the respective elections and had found that more than fifty of the voters who voted in the Republican Primary also voted in the Second Democratic Primary.' He then alleged the necessity for the district judge ordering all ballot boxes and election records of the' May 7, 1966, Republican Primary Election held on that day and all ballot boxes and election records of the Second Democratic Primary Election held on June 4, 1966, being impounded, opened and those illegal votes being counted and the total subtracted from the total votes received by the respective candidates.

We find no exception in the transcript to the. amended petition but since the judgment shows the trial court on June 15, 1966, “ * * * having heard and considered defendant’s special exception to plaintiff’s pleadings and having heard and considered plaintiff’s objections to defendant’s special exception” held contestee’s special exception should be sustained and contestant’s objections thereto should be overruled, we assume it was considered by all the parties that the exception went to all the pleadings. The question thus presented is whether the ballots of the persons alleged to have voted in the Republican Primary of May 7, 1966, cast illegal ballots by then going into the Second Democratic Primary and voting in the county judge’s race on June 4, 1966.

All emphases herein are ours.

We hold the special exception to contestant’s First Amended Original Petition was not sufficient.

Section (7) of Article 13.30 of the Election Code provides the trial judge shall have wide discretion as to matters of pleadings but that the purpose of such section is to subserve the ends of justice, rather than strict compliance with technical rules of pleading.

Many years ago when the Supreme Court of Texas had jurisdiction in Primary Election Contests that court announced the distinctions between Primary Elections and General Elections and the purposes for primary elections. In Waples v. Marrast, 108 Tex. 5, 184 S.W. 180, L.R.A.1917A, 253, that court said:

“The authority of the Legislature to require the holding of a primary election by the political parties of the State for the purpose of enabling their members to vote their choice for party nominees for elective offices, whether State or National, and likewise express their preference in the selection of party delegates to party conventions, is undoubted.”

Then in discussing political parties Chief Justice Phillips speaking for the Court stated:

“According to the soundness of their principles and the wisdom of their policies they serve a great purpose in the life of a government. But the fact remains that the objects of political organizations are intimate to those who compose them. They do not concern the general public. They directly interest, both in their conduct and in their success, only so much of the public as are comprised in their membership, and then only as members of the particular organization. They perform no governmental function. They constitute no governmental agency. The purpose of their primary elections is merely to enable them to furnish their nominees as candidates for the popular suffrage. In the interest of fair methods and a fair expression by their members of their preference in the selection of their nominees, the State may regulate such elections by proper laws, * * * ”

Later in Koy v. Schneider, 110 Tex. 369, 221 S.W. 880, 905, the Texas Supreme Court said:

“Essential to the very existence and practical operation of any comprehensive and reasonable primary election law is a requirement that all the participants: therein shall be of the same political faith, as that only Democrats shall participate in democratic primary elections
******
“Under the view that our suffrage clause applies to primary elections and primary conventions as well as to ‘general elections,’ every man who is a qualified voter in a general election logically would have a constitutional privilege, regardless of party affiliations or party fealty, of voting in every primary election and in every primary convention in his general election precinct. That would, render futile all party organization involving the use of primary election or primary convention machinery. In practice it would destroy, utterly, primary elections and primary conventions, since without party fealty they cannot efectúate the purpose of their existence.”
The court then stated that:
“To prevent party disintegration resulting from participation of adherents of no party, or of another party, in a party primary, has been the declared purpose of primary election statutes in various states.”

In 1951 during the session of the 52nd Legislature of Texas that law-making body revised and recodified Title 50 of the Revised Civil Statutes of the State of Texas now generally contained in Volume 9 of Vernon’s Civil Statutes of Texas denominated by said publishing company as “Election Code” and announced in Section 1 of the legislative act to be hereafter known as the Election Code of the State of Texas.

Article 13.01 of the code defines the term “primary election” as one “ * * * held by the members of an organized political party for the purpose of nominating the candidates of such party to be voted for at a general or special election * * * ”

Article 13.01a(2) provides: “The election and convention procedure of the party shall include the primary held on the first Saturday in May in even-numbered years and the second primary held on the first Saturday in June in such years * * *”

(4) (a) of said article makes one a qualified member of the political party in whose primary he has voted.

The next paragraph of the article provides :

“Each voter shall present his poll tax receipt or exemption certificate, or an affidavit of its loss, to the election judge on the first time such voter participates in a primary election and the election judge shall stamp within the party affiliation space on the face of said poll tax receipt, exemption, or affidavit of loss, the words ‘Democrat’ or ‘Republican’ or other party primary vote connotation as the case may be and such stamped poll tax receipt, exemption, or affidavit of loss shall be the designation of a qualified member of that party; such qualified member of such party, having once voted within a party primary shall remain a qualifed member of that party for the duration of the poll tax period.”

In accepting the allegations of contestant as true, which we must for the purpose of considering the special exception, it then becomes obvious that the alleged illegal voters having become members of the Republican party for the 1966 election year then voted in the second primary of the Democratic party in direct contravention of the articles just quoted by which they had become members of the Republican party for the purpose of primary elections and conventions for 1966. The Election Code makes no provision for one to change parties during the primary voting and convention period. It was admitted by all parties in oral argument that Texas is not an “open” primary state. Additionally, by participating in the Second Democratic Primary after voting in the first primary of another party the same election year they committed a penal offense under the primary election code procedure.

As necessity has dictated the Election Code has been amended, revised and added to from time to time. Numerous revisions were made in the 58th Legislature, regular session, 1963, by S.B. 61, Chapter 24, p. 1017. Among those was Section 115 of S.B. 61 amending Article 240 of the Penal Code, which provided, as applicable to our case that:

“Whoever votes or offers to vote at a primary election * * * having voted at a primary election * * * of any other party during the same election year, shall be fined not less than one hundred dollars nor more than five hundred dollars. As used in this article, the term ‘election year’ means the period from the first day of February through the following thirty-first day of January.”

We, therefore, believe it would have to be said that such acts were illegal and the ballots cast thereby were thus illegal votes, for whomsoever they may have been cast. We believe any other holding would provide means whereby one party could destroy the other.

The Supreme Court of Texas in Oliphint v. Christy, 157 Tex. 1, 299 S.W.2d 933, has said: “ * * * the individual who votes illegally cannot be considered a ‘voter’ for any purpose. The ballot of the illegal voter is not to be counted and is not to be considered as a vote in any way. This vote becomes a nullity and it is necessary to deduct that vote from the total number of votes cast for the candidate who initially received it.”

The judgment of the trial court is reversed and remanded with instructions to impound the ballot boxes and election records of the May 7, 1966, Republican Primary Election and the ballot boxes and election records of the Second Democratic Primary Election held on June 4, 1966; that they be opened under the supervision and in the presence of the trial court, and that the illegal votes be counted and the total subtracted from the total legal votes received by the respective candidates. Upon determining who received the most legal votes after a hearing upon the merits, the trial court is directed to declare the duly elected nominee of the Democratic party for the office of County Judge of Gray County for 1966. The trial court -is further directed to notify the county clerk of Gray County of the result in order that the name of the nominee may be placed on the official ballot to be used in the General Election to be held in November of 1966.

In accordance with the authority of Article 13.30 of the Election Code and in the interest of time a motion for rehearing will not be entertained and the mandate of this court will issue forthwith.

The judgment of the trial court is reversed and remanded with instructions.

      . We use the word “generally” because some of the penal provisions are also eon-tained in Vernon’s Penal Code of the State of Texas.


author: ARCHER, Chief Justice.

text:
    Dr. Paul HARRIS, Appellant, v. The COLUMBIA BROADCASTING SYSTEM, INC., et al., Appellees.
    No. 11427.
    Court of Civil Appeals of Texas. Austin.
    July 6, 1966.
    Rehearing Denied Aug. 24, 1966.

      Joseph D. Jamail, John Gano, Don M. Barnett, Houston, for appellant.
    Clark, Thomas, Harris, Denius & Winters, John Coates, Mary Joe Carroll, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order of the trial court granting appellees’ motion for a summary judgment in a suit for damages sustained by appellant as a result of a tort in the nature of a libel and slander committed by the appellees in this State by means of the telecasting on May 22, 1963 of a program entitled “The Great Land Swindle” over various television stations throughout this State.

The suit was tried on Appellant’s Fourth Amended Original Petition.

The appellees filed their motion for summary judgment based on the controlling limitation statute, Article 5524, Vernon’s Ann. Civ.St., which is in part as follows:

“There shall be commenced and prosecuted within one year after the cause of action shall have accrued, and not afterward, all actions or suits in courts of the following description:
1. Actions for malicious prosecution or for injuries done to the character or reputation of another by libel or slander.”
Art. 5537 is as follows:
“If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person’s absence shall not be accounted or taken as a part of the time limited by any provision of this title.”

The appeal is based on four points and are to the effect that the District Court erred in rendering summary judgment because it appeared that appellee was without the limits of the State within the meaning of Article 5537 between May 22, 1963, when the tort was committed and March 8,1965 when the suit was filed, and is not barred by Article 5524, there being a genuine issue of fact thereon, in refusing to receive in evidence as admitted appellant’s requests for admissions Nos. 9, 10, 11, 12, 13, 17, 18 and 19, relating to Talent Associates-Paramount Limited and seven similar points directed to the granting of summary judgment to Talent Associates-Paramount Limited, seven points of a like content, except request for admissions Nos. 49 to 60, inclusive, directed to the summary judgment in favor of Columbia Broadcasting System Television Network.

As is noted, the broadcast occurred on May 22, 1963, and the suit was filed on March 8, 1965, more than 21 months after the broadcast of the alleged libel or slander.

The motion for summary judgment filed by appellees was based upon Article 5524, the one year statute of limitations controlling actions for libel or slander.

Appellees are foreign corporations and have never maintained a registered agent in Texas or applied for or possessed a certificate or permit to do business in Texas.

Appellant contends that the one year statute of limitations, Article 5524, did not operate as a bar to his action against these appellees because of the provisions of Article 5537, V.A.C.S., hereinabove set out.

Appellant’s position is that by the production and broadcast of the television program in New York on May 22, 1963, appel-lees committed in Texas what is alleged to be a tort in the nature of a libel and slander, and further asserts that appellees were doing business in the State, and were therefore, without the limits of Texas from the time of his alleged libel and slander at least until the filing of his suit on March 7, 1965.

Each of appellees continued to do what it was doing after May 22, 1963 as it was doing on that date in the production or broadcasting the program upon which appellant bases his cause of action, and subsequent programs were shown by Texas Television stations in the same manner that the program complained of was shown.

Appellees’ motion for summary judgment was supported by affidavits, one of which was by Wayne Kearl, who swore:

“2. That from May 22, 1963, to the present, he has been General Manager of Television Station KENS in San Antonio, Bexar County, Texas, and that from May 22, 1963, and to the present Television Station KENS has been affiliated with The Columbia Broadcasting System, Inc., pursuant to a standard network affiliation agreement.
3. That continuously from May 22, 1963, to the present, Television Station KENS has received television programs transmitted to KENS by The Columbia Broadcasting System, Inc., and KENS through its facilities at San Antonio caused said television programs received by it from The Columbia Broadcasting System, Inc. to be broadcast to the City of San Antonio and surrounding areas. From September 23, 1963 to September 14, 1964, on a regular weekly basis, Television Station KENS received a series of television programs transmitted to KENS from the Columbia Broadcasting System, Inc., entitled East Side, West Side, and KENS, through its facilities at San Antonio caused each program in the East Side, West Side series to be broadcast in the City of San Antonio and surrounding areas. The East Side, West Side television series which was broadcast by KENS on a weekly basis from September 23, 1963 to September 14, 1964, was produced by Talent Associates-Paramount, Limited.”

Jean Kennedy, assistant secretary of Talent, swore:

“3. Subsequent, as well as prior to May 22, 1963, Talent Associates-Paramount Ltd. has produced television programs actually telecast in Texas, there being no substantial change in the company’s business operations since the recited date except, of course, with reference to the particular television programs and series.
4. In reply to information requested by our attorneys, Columbia Broadcasting System, Inc., has furnished certain information confirming Texas telecasts subsequent to May 22, 1963, of specific programs produced by our company and carried over CBS facilities. A copy of the text of the CBS letter dated August 10, 1965, together with certain attachments thereto, is annexed to this affidavit as Exhibit ‘A,’ and made part hereof as if more fully set forth herein.” (here follows list).

It is apparent that appellees were as much within, or without the State after the broadcast as they were on the date of the program on which appellant bases his suit.

Appellees are unquestionably nonresident corporations.

In response to appellant’s request for admissions as to whether or not appellee, Talent, was or is not doing business in Texas, appellees answered as follows:

“As to Requests Numbers 9,10,11,12, 13, 17, 18 and 19, defendant, Talent Associates-Paramount, Limited, objects to Requests Number 9, 10, 11, 12, 13, 17, 18 and 19, on the grounds that such requests call for a legal conclusion but defendant, Talent Associates-Paramount, Limited, answers by saying that during the period inquired about, Talent Associates-Paramount, Limited produced television programs which were broadcast in the State of Texas in the same manner in which Talent Associates-Paramount, Limited, produced ‘The Great Land Swindle’ which was broadcast on May 22, 1963, in Texas by television station KTBC and other Texas television stations.”

What constitutes doing business in the State is a mixed question of law and fact. Chicago, Rock Island & Pacific Railway Company v. Neil P. Anderson & Company, Tex.Civ.App., 1910, 130 S.W. 182, 183, reversed on other grounds, 105 Tex. 1, 141 S.W. 513; International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Texas Business Corporation Act, Article 8.01, subd. B, V.A.T.S.; Hester v. Weaver, Tex.Civ.App., 252 S.W.2d 214, er. ref.; Gore v. Cunningham, Tex.Civ.App., 297 S.W.2d 287, er. ref., n. r. e.

It is true that Columbia Broadcasting System Television Network was doing business in this State during the period involved herein, but this is immaterial. Article 5524, V.A.C.S., is controlling. State ex rel. Columbia Broadcasting Company v. Superior Court for King County, 1 Wash.2d 379, 96 P.2d 248 (1939).

When reliance is placed upon the suspension statute, Article 5537, the burden of pleading and proving the defendant’s absence from the State is upon the plaintiff, and this was not done. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876.

The limitation statute, now 5537, became a part of the law of Texas in 1841, and was explained in Ayres, Administrator, v. Henderson, 9 Tex. 539, as having for its object the protection of domestic creditors, and when the return took place the creditor could claim the advantage intended by the section in suspending the operation of the statute. The word "return” was given a literal meaning. Wilson v. Daggett, 88 Tex. 375, 31 S.W. 618.

Appellant filed his suit against appellees and claims that because of the requirements of statute 2031b, V.A.C.S., the appellees appeared in this cause.

Article 2031b provides for service of process upon foreign corporations and nonresidents.

Appellant makes the contention that ap-pellees were not doing business in Texas and were without the limits of this State, within the meaning of the suspension statute.

In Article 2031b the definition of doing business in Texas is set out, and any nonresident person or foreign corporation which commits a libel or slander in whole or in part, in Texas, continues doing business in Texas for one year.

If appellees were doing business in Texas, appellant’s alleged cause of action is barred by limitations.

In this case none of the appellees was ever present physically in Texas and the program claimed to constitute a libel and slander was produced and broadcasted in the State of New York, and appellant must rely upon Article 2031b in alleging that appellees were present in Texas on the date of such broadcast, and appellees’ foreign corporations may plead the statute of limitations. Thompson v. Texas Land & Cattle Company, Tex.Civ.App., 24 S.W. 856, n.w.h.; Alley v. Bessemer Gas Engine Company, 262 F. 94 (5th Circuit, 1919).

If appellees were not doing business in Texas, appellant’s alleged cause is barred by limitations.

Admittedly the program complained of was produced in New York and there broadcast, and beyond dispute appellees are foreign corporations without agents in this State, and the cause of action asserted is barred by limitations. Wilson v. Daggett, supra; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226; Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932.

We have considered cases cited by appellant such as Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, Le Gate v. Panamolga, 221 F.2d 689 (2nd Circuit, 1955) and Gibson v. Nadel, 164 F.2d 970 (5th Circuit, 1947) and do not consider these to be controlling in this appeal because the fact situations were not the same as in this case. In Gibson v. Nadel, service was had under Article 2033b, not Article 2031b. The defendant was not in the State and limitations would run.

In the Le Gate case the plaintiff went to New York, the defendant’s State of residence, to file his suit.

The defendant had been physically present in the State of Texas at the inception of the cause of action.

Under the terms of Rule 169, Texas Rules of Civil Procedure, appellant as plaintiff made requests for admissions Nos. 9, 10, 11, 12 and 13 asking appellees to admit that between May 23, 1963 and March 7, 1965 Talent Associates-Paramount Limited did not do or transact any business within the State of Texas, claiming such to be fact admissions, and that no sworn statement either denying these matters or setting forth in detail the reasons why such could not either admit or deny same.

Request for admissions Nos. 17, 18 and 19 asked Talent to admit that between the dates of May 23, 1963 and March 7, 1965 that it was wholly without the State, and no such statement was filed under Rule 169.

Appellee Talent objected to Requests Numbered 9, 10, 11, 12, 13, 17, 18 and 19 on the grounds that such requests called for a legal conclusion, but that during the period inquired about it produced and broad-casted television programs in this State in the same manner in which The Great Land Swindle was broadcast on May 23, 1963.

In response to appellant’s request for admissions Nos. 49 through 60, inclusive, Columbia objected to all of such requests because Columbia Broadcasting System Television Network is a division of Columbia Broadcasting System, Inc.

We do not believe there was error in the action of the trial court in refusing to receive in evidence, as admitted, each of the appellant’s requests for admissions as above set out.

What constitutes doing business in the State is a mixed question of law and facts. Chicago, Rock Island & Pacific Railway Company v. Neil P. Anderson & Company, supra; Rule 169, T.R.C.P. provides for admissions of matters of fact; Hester v. Weaver, supra; Gore v. Cunningham, supra.

Whether or not Columbia was or was not doing business in Texas is immaterial in this case. Article 5524 is controlling.

A broadcasting system is doing business in the states where its programs are carried. State ex rel. Columbia Broadcasting Company v. Superior Court for King County, supra.

Associate Justice Hughes is of the opinion that appellees not being legal residents of or domiciled in the State of Texas, having no permit to do business therein and having had no agents within the State when the cause of action alleged by appellant accrued and during the year following appellees were at all such times “without the limits of this State” and appellant’s cause of action is barred under Art. 5524 and the running of such statute is not tolled under Art. 5537 as this statute is construed in Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, and, on this ground, he concurs herein.

The judgment of the trial court is affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    W. W. JAMISON et al., Appellants, v. Don K. SOCKWELL, Appellee.
    No. 16753.
    Court of Civil Appeals of Texas. Dallas.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Burt Barr, Dallas, for appellants.
    Woodruff, Hill, Bader & Kendall and Bill Cox, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a judgment in favor of appellee Don K. Sockwell for actual and exemplary damages alleged to have resulted from the sale by appellants to appellee of a stolen automobile, which sale was brought about by the fraudulent misrepresentations of appellants as to the ownership and history of the vehicle. Appellants are W. W. Jamison and W. W. Jamison, Jr., doing business as Truck Equipment Sales Company.

Appellee testified that while living in Greenville, Texas he saw an advertisement in a Dallas newspaper of a 1962 Thunderbird automobile offered for sale by appellants. After a telephone conversation W. W. Jamison, Jr. brought the car to Green-ville for appellee’s inspection. According to appellee Jamison, Jr. represented that he had bought the car brand new and had owned it ever since. Appellee liked the automobile and arranged to borrow the purchase price, $2,200, from his Credit Union. Thereafter, on November 18, 1964, he made a down payment of $200 plus $45 taxes and transfer costs. When asked for the title papers W. W. Jamison, Jr. said that he had left them at home.

About one month later appellee received a certificate of title from the State Highway Department showing Truck Equipment Sales Company to have been the previous owner and appellee as the present owner.

In March 1965 three men engaged in an investigation of a stolen car contacted ap-pellee. They were the Chief of Police of Greenville, Texas, Officer H. H. Sted-ham of the Dallas Police Department and Special Agent .Royce Calvert of the National Automobile Theft Bureau. Tapes were taken of the public and confidential numbers on the automobile. Officer Sted-ham had seen an automobile in Dallas in such badly burned and damaged condition that except for the front end assembly it could not be further used. The public patent plate on the burned car bore the same number as the public patent plate on appellee’s car, but the confidential numbers on the two vehicles did not coincide. Stedham and Calvert continued their investigation, some of their inquiries extending to Houston, Texas. Shortly thereafter the Police Department took the car away from appellee as a stolen vehicle.

Appellee further testified that he thereafter contacted W. W. Jamison, Jr., who told him that he, Jamison, Jr., was sorry that it had happened, that he was sorry it was a stolen car, and would try to work something out, maybe pay it out on a monthly basis, and that he had been taken in by the people from whom he had bought it.

Appellee testified that after talking to W. W. Jamison, Jr. many times over a period of about two and a half months he talked to W. W. Jamison, Sr., who said he knew all about the situation. However, nothing was ever done about it by appellants. Appellee at the time of the trial was still paying $84 per month to the Credit Union on his loan of the money with which he paid for the car.

The testimony of Officer Stedham and Special Agent Calvert as to their part in the case corroborates the testimony of appellee. Much of their proffered testimony in regard to the details of their investigation was excluded on the ground that it was hearsay. However, they were permitted to testify that in their opinion the car in question was a stolen car.

W. W. Jamison, Jr. testified as an adverse witness called by appellee. The substance of his testimony was that he sold the car to appellee for $2,200 and that so far as he knew his company received the money.

A jury found that (1) appellee failed to get good title because the automobile in question was a stolen car; (2) appellee paid $2,245 to appellants for the car; (3) appellant W. W. Jamison, Jr. represented that he had bought the car new and had owned it since; (4) the representation was false; (5) it was made to induce ap-pellee to buy the automobile; (6) appellee relied on the truth of the representation; (7) it was a material inducement; and (8) $3,000 was awarded to appellee as exemplary damages.

Appellants’ first three points on appeal complain of the court’s error in refusing to instruct a verdict and in rendering judgment for appellee when the undisputed evidence showed that appellee purchased the car from appellants without receiving a certificate of title, thereby violating Art. 1436-1 of the Penal Code of Texas, Vernon’s Ann.P.C.

Section 53 of Art. 1436-1 of the Penal Code is as follows :

“All sales made in violation of this Act shall be void and no title shall pass until the provisions of this Act have been complied with.” (Emphasis ours.)

The answer to appellants’ first three points is that appellee did comply with Section S3 of the statute. About a month after November 18, 1964 when he took possession of the car and paid the full purchase price to appellants appellee received a certificate of title from the State Highway Department. The certificate shows that it was issued by the Department on December 17, 1964, but it shows title from appellants to appellee as of November 18, 1964. Appellants’ first three points are overruled.

In their fourth and fifth points appellants say that the court erred in allowing Officer Stedham and Special Agent Calvert, over appellants’ objections, to give their opinions that the vehicle in question was a stolen car because it invaded the province of the jury.

Appellee insists that it was not error to admit the challenged testimony for three reasons: (1) appellants’ objection was too general and broad to be effective, citing Hooten v. Dunbar, Tex.Civ.App., 347 S.W.2d 775 (err. ref., n. r. e.); (2) the grounds of the obj ection are unsound, citing McCormick & Ray, “Texas Law of Evidence,” Section 1395; and (3) appellee’s uncontradicted testimony was that appellants admitted to him that the car was stolen and W. W. Jamison, Jr. even promised return of the money paid by appellee.

We shall not concern ourselves with the first and second reasons advanced by appellee for we are convinced that his third reason alone is sufficient to require us to hold that the admitting of the testimony was not reversible error.

The substance of appellee’s un-contradicted testimony is that appellants admitted in substance that the automobile was a stolen car and the representations as to title made by W. W. Jamison, Jr. were false. Ordinarily the uncorroborated testimony of an interested witness does no more than raise a fact question. But if such testimony by an interested witness is clear, direct, positive and free of contradiction and there are no circumstances that tend to cast suspicion on it, the testimony must be accepted as true as a matter of law and no issue of fact is created for the jury. This is especially so when the testimony is of a character that permits of ready disparagement if untrue and the adverse party offers no disparaging proof. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207 (Comm.App., opinion adopted). See also Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705 (ref., n. r. e.); Marion v. Hutton, Tex.Civ.App., 374 S.W.2d 284 (ref., n. r. e.); Armstrong v. West Texas Rig Co., Tex.Civ.App., 339 S.W.2d 69 (ref., n. r. e.); Bayou Drilling Co. v. Baillio, Tex.Civ.App., 312 S.W.2d 705 (ref., n. r. e.); and McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (Comm.App., opinion adopted); 24 Tex.Jur.2d 376.

In the instant case appellant W. W. Jamison, Jr. was present at the trial and appeared as a witness. But he did not deny or contradict appellee’s testimony as to his misrepresentations or appellee’s testimony that he in substance admitted that he had sold a stolen car to appellee; and he even indicated a willingness to make restitution. Under the circumstances ap-pellee’s testimony, though it comes from an interested witness, must be accepted as true. The opinion testimony of Stedham and Calvert, since it merely referred to an undisputed fact, would therefore have to be regarded as harmless error if we were to hold that it was error. Rule 434, Vernon’s Texas Rules of Civil Procedure. Appellants’ fourth and fifth points are overruled.

In their sixth and seventh points appellants assert that the court erred in submitting Special Issue No. 1 because it is a comment on the weight of the evidence and places a greater burden on appellants than required by law.

Special Issue No. 1 was as follows:

“Do you find from a preponderance of the evidence that plaintiff Don K. Sock-well failed to get good title to the Thunderbird automobile in question because it was a stolen car?”

Appellants argue that Special Issue No. 1 as drawn assumes that the car was stolen, which is a fact issue. Whatever may be the defects of the special issue as framed, they did not constitute reversible error under the circumstances disclosed by the evidence in this case. In overruling appellants’ fourth and fifth points we held that the evidence was undisputed and conclusive that the automobile was a stolen car. Therefore, it was not error for the court to assume that fact in submitting Issue No. 1. Applebaum v. Michaels, Tex.Civ.App., 384 S.W.2d 148 (ref., n. r. e.); Collier, et ux. v. Hill & Hill Exterminators, 322 S.W.2d 329, 73 A.L.R.2d 1141 (Tex.Civ.App., no writ hist.); De Kalb Hybrid Seed Co. v. Agee, Tex.Civ.App., 293 S.W.2d 64, 69 (ref., n. r. e.); Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, 420 (error ref.); 57 Tex.Jur. 2d 183. Certainly if appellee purchased a stolen car he failed as a matter of law to get a good title. Appellants’ sixth and seventh points are overruled.

In their eighth point appellants claim that the court erred in rendering judgment for exemplary damages because there was no proof of any inconvenience to appellee except that he had to get his pickup truck fixed.

There is no merit in appellants’ eighth point. In their motion for new trial appellants attack the award of exemplary damages only on the ground that “there was no proof as to any inconvenience due plaintiff except he had to get his pickup truck fixed.” This is not a sufficient ground to constitute error in awarding exemplary damages. Appellants’ eighth point is overruled.

Failing to find reversible error in the record, we affirm the judgment.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    CONTINENTAL OIL COMPANY et al., Appellants, v. George H. ANDERSON, Appellee.
    No. 4065.
    Court of Civil Appeals of Texas. Eastland.
    July 8, 1966.
    Rehearing Denied Aug. 12, 1966.

      Stubbeman, McRae, Sealy & Laughlin, Midland, George Wear, and Frank L. Merrill, James K. Smith and Tom B. Cuny, Jr., Ft. Worth, for appellants.
    Frank C. Collins, Jr., Edward D. Coulson, Donald W. Callahan, Houston, for appellee.
   GRISSOM, Chief Justice.

George H. Anderson sued Continental Oil Company and Pan American Petroleum Corporation in Harris County. He alleged that he owned a l/12th undivided interest in the minerals in two described sections of land in Crockett County; that defendants owned undivided interest therein and, as co-tenants in the severed mineral estate in said described land, they had drilled wells, in the jointly owned mineral estate, from which they produced oil, gas and other minerals, the exact amount being unknown to plaintiff but known to defendants and he sued for l/12th of the oil, gas and other minerals defendants produced from said jointly owned mineral estate. In the alternative, he sued for the value of l/12th of all the oil, gas and other minerals produced by defendants from said jointly owned mineral estate, less expenses. He sought an accounting for all minerals produced from said jointly owned mineral estate and money received therefor and expenses incurred in producing same and that he have judgment for l/12th of the value of the minerals produced, less l/12th of the expense. He prayed that defendants be required to account for all the minerals they produced from said jointly owned mineral estate and that they be required to pay him l/12th of the net recovery.

The defendants filed a plea of privilege to be sued in Crockett County, where the two sections of land, in which plaintiff claimed he owns a l/12th mineral interest, lie. Defendants alleged that plaintiff’s suit involved the title to land, to-wit, an undivided l/12th interest in the minerals in two sections of land in Crockett County, with plaintiff claiming and alleging that he was the owner of such interest and that the defendants were co-tenants therein; that defendants completed wells on the jointly owned mineral estate from which they produced minerals and that plaintiff had sued them for l/12th of the minerals so produced or, in the alternative, for the value thereof and for an accounting’. Defendants alleged that said land and the minerals therein, the title to which was put in.litigation by plaintiff, was not in Harris County, where the suit was filed, but in Crockett County, and that plaintiff’s suit was for realty situated in Crockett County.

Defendants alleged that, in 1963, plaintiff filed the same suit against the same defendants in Crockett County, claiming and pleading therein that he was the owner of the same l/12th of the minerals in the same land in Crockett County and that defendants were producing minerals therefrom and that plaintiff there prayed for judgment for such interest in said mineral estate and for an accounting. The defendants further alleged that they filed in said Crockett County suit a plea alleging a lack of necessary parties; that the court found that all persons holding by, through or under a deed purporting to convey the realty in issue from the plaintiff, George H. Anderson, to Charles F. Martin, by deed dated October 22, 1928, and recorded in the Deed Records of Crockett County, were necessary parties and ordered the cause abated until they were made parties; that plaintiff refused to amend or make additional parties and the court ordered the case dismissed and that said plaintiff excepted and gave notice of appeal but did not perfect an appeal.

The defendants further alleged that, in April, 1964, the plaintiff filed suit on the same alleged cause of action against the defendants in the United States District Court at San Angelo in which he made the same claims and the same allegations that he owned l/12th of the minerals in the same land in Crockett County; that minerals had been produced therefrom and sold by defendants for more than twenty years and that they were liable to him for his l/12th interest therein; that plaintiff prayed that defendants, as producers of such minerals, be required to file an accounting and that he recover l/12th of the minerals or its value. The defendants alleged, that they filed motions to dismiss that case; that the plaintiff announced he would no longer prosecute that case and it was dismissed; that plaintiff has continued harassing the defendants, raising the same questions of title and asking for an accounting of oil from said land in Crockett County.

Plaintiff filed a controverting plea adopting parts of defendants’ plea of privilege and venue, which were in substance plaintiff’s allegations in his present petition, including his allegation that he owned l/12th of the minerals in two sections of land in Crockett County and defendants owned an undivided interest in the severed mineral estate in said two sections and that, as co-tenants, defendants produced minerals therefrom and plaintiff sued for l/12th of the minerals produced by defendants from said jointly owned mineral estate or, in the alternative, for the value of l/12th of the minerals produced, less the expense. Plaintiff then alleged in his controverting affidavit that, as shown by the pleadings filed herein, this is a suit for an accounting, not an action to recover title to real estate. Plaintiff incorporated his petition in his controverting affidavit. He alleged that under exception 10, Article 1995, which provides venue of suits to recover “personal” property in the county where the defendant resides, that defendants had their principal offices in Harris County and his suit was also maintainable in Harris County under exception 23, Article 1995, which provides that suits against a private corporation may be brought in the county in which its principal office is situated.

The defendants’ plea of privilege was overruled and they have appealed. Appellants say that the question of law presented is whether this is a suit “for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands”, within the meaning of exception 14, Article 1995. They say that the court erred in overruling their plea of privilege because this suit comes within the purview of exception 14 because it is a suit to recover land and damages thereto and for waste and because plaintiff failed to demonstrate that there was no controversy as to title.

Appellants say the real purpose of the suit is shown in the first material allegation in appellee’s petition to the effect that he has been and is at this time the owner of an undivided l/12th interest in the severed mineral estate in two sections of land in Crockett County; that he would not have so pleaded had he not realized that he had to prove his title; that appellee also alleged that appellants were the owners of an undivided interest in the severed mineral estate and that they produced oil therefrom, and he sued them for l/12th of the minerals they produced from the alleged jointly owned mineral estate or, in the alternative, for its value. Appellee prayed that defendants be required to account for the minerals produced from the alleged jointly owned mineral estate and that he have judgment for l/12th of their net recovery.

Appellants further say that in their plea of privilege and venue, in addition to the general statutory plea that there was no exception to exclusive venue, they pleaded and proved that appellees suit involves the title to an undivided l/12th interest in land in Crockett County. They call attention to suits previously filed by appellee asserting the same cause of action in both Crockett and Tom Green Counties; that appellants had attached to their plea of privilege and venue their answer showing the true nature of appellee’s suit was a contest of appellants title; that, on the hearing of the plea of privilege, appellee, with his letters, title instruments and pleadings in other suits, was the only witness; that over appellants’ objection he was permitted to testify that he owned an undivided l/12th interest in the minerals in said land in Crockett County; that he wrote four letters to Continental, which were introduced in evidence and showed the nature of his claim. The first letter, dated February, 1963, advised Continental that it held under a forged deed from appellee to Chas. F. Martin, dated October, 1928; that appellee objected to introduction of any reference to said deed and revealed the real controversy by saying, “We are, in effect, saying there is no such deed”. The second letter was written in 1963; the third, in March, 1963, and the fourth in October, 1963. Each demanded an accounting, repeated his claim of title to l/12th of the minerals to two sections developed by appellants with the argument that the deed from appellee to Martin, of record in Crockett County, was a forgery and passed no title; that appellee’s petition filed in said case in Crockett County was introduced; that he attached to that petition a copy of his deed to Martin which he alleged to be forged and that he alleged in said former petitions that he was the owner of a l/12th interest in the minerals and entitled to a judgment declaring said deed from him to Martin to be a forgery and that he prayed for an accounting of minerals produced from land in Crockett County. Appellee testified that he asked for a declaratory judgment and an accounting for all the minerals produced from said two sections in Crockett County; that he had filed the same claim in the Federal Court asserting the same interest in said minerals and production and prayed for an accounting; that he still had a suit pending in the District. Court of Crockett County, wherein he claims the same interest in the same realty and seeks recovery by reason of appellants production of minerals therefrom. He testified that the reason he asked for an accounting of the production from the two sections of land in Crockett County was because he claimed that the deed purporting to convey his interest to Martin was a forgery and that appellants had refused to recognize that he had any title and that he employed counsel to establish that said deed was a forgery.

Exception 14, Article 1995, provides that suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, “must” be brought in the county in which the land may lie. This statute, while not jurisdictional in the sense that it can not be waived, is mandatory when any defendant properly and timely objects to a trial in any other county than that in which the land lies. South Texas Development Company v. Williams, 130 Tex. 217, 107 S.W.2d 378. Where it is shown by pleadings or evidence that the real purpose of a suit is to recover land, or an interest therein, a plaintiff cannot avoid the effect of exception 14 by suing, purportedly, for other relief. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774; Tide Water Oil Company v. Bond, 135 Tex. 334, 143 S. W.2d 751, 136 Tex. 127, 148 S.W.2d 193; Tide Water Oil Co. v. Bean, 138 Tex. 479, 160 S.W.2d 235; Case-Pomeroy Oil Corp. v. Pure Oil Company, Tex.Civ.App., 245 S.W.2d 763. In the Bean case plaintiffs petition was in the form of a statutory suit for partition. The defendant filed a plea of privilege and, in addition to the statutory form therefor, alleged that, in fact, the suit was for recovery of land, or title thereto, and that the real question was the extent of the interest owned by each party. The Supreme Court held that the court should look to both the statement of facts and pleadings to ascertain the true nature and purpose of the suit. In Case-Pomeroy Oil Corp. v. Pure Oil Company, 245 S.W.2d 763, 764, which was in the form of a suit for specific performance, it was held that despite said form the purpose of the suit was to determine ownership of certain royalty and therefore it must be tried where the land lay.

Anderson had the burden of proving that his suit did not come within exception 14, Article 1995. We are required to look at the pleadings and evidence to determine the true nature and purpose of his suit. It is evident from a consideration of both pleadings and evidence that appellee has not demonstrated that there is no controversy as to title, the burden of establishing which rested upon him. Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223, Tex. Civ.App., 142 S.W.2d 840; Herrington v. McDonald, 141 Tex. 441, 174 S.W.2d 307; Murtex Oil Company v. Murphy, Tex.Civ.App., 395 S.W.2d 853.

A suit wherein a plaintiff seeks an accounting and recovery for oil removed and to be removed from a mineral estate which he claims to own an interest in, is a suit for recovery of land, for damages thereto and for waste, within the meaning of exception 14, Article 1995. Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113; Tidal Oil Company v. Grays, Tex.Civ.App., 54 S.W.2d 1043, affirmed, Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113. In Shell Petroleum Corp. v. Grays, supra, our Supreme Court pointed out that the dominant purpose of the suit was to recover for oil removed from land in Gregg County; that the pleadings disclosed that plaintiff was seeking an accounting and recovery for oil already removed from land in Gregg County and, therefore, it was a suit for recovery of land and for damages thereto within exception 14 and that it must be tried in Gregg County, where such land lay. In Tidal Oil Company v. Grays, supra, the Court of Civil Appeals held that an unauthorized extraction of oil from land was ■“waste” within exception 14 and that a suit by reason thereof came within that exception. In Elder v. Miller, Tex.Civ.App., 116 S.W.2d 1171, it was held that a suit for accounting for the value of oil removed from a mineral estate alleged to be owned hy the plaintiff was a suit to recover damages to land within exception 14.

Anderson alleged that he owned a l/12th interest in the oil, gas and other minerals in said two sections of land in Crockett County and that he was entitled to l/12th of the minerals or the proceeds of minerals produced from the two sections. He claimed, and the record shows, that appellants denied that he owned such an interest. We think it is evident that if he is to recover that for which he has sued that he must show that the deed recorded in Crockett County, which purports to show a conveyance by him of his interest in said land to Martin, was a forgery. Unless Anderson makes such proof, how can he show that he owns the interest he asserts in said land and require appellants to account to him for the oil they produce therefrom. It is evident from this record that Anderson has not established that said deed is a forgery but that he has proved there is a controversy as to title. The real question is whether Anderson owns an interest in the minerals in said land in Crockett County and is therefore, entitled to receive from appellants part of the oil appellants produced from said land. If the plaintiff proves that he owns a l/12th interest in the lands, as he alleges and claims in his testimony, then it follows that he is entitled to that portion of the production. Unless he owns it he is not entitled to recover anything.

We’conclude that venue is controlled by exception 14, Article 1995, and, therefore, that it “must” be tried in Crockett County. The order overruling appellants’ plea of privilege and venue is reversed and the case is ordered transferred to Crockett County.