author: TITUS, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Carl Buell HARRIS et al., Exceptions of Bert Shelton, John Fuller, and Opal Fuller, Defendants-Respondents.
    No. 8575.
    Springfield Court of Appeals. Missouri.
    May 17, 1967.
    Rehearing Denied June 9, 1967.
    Application to Transfer Denied July 10, 1967.

      Robert L. Hyder, Jefferson City, George Q. Dawes, Sikeston, for plaintiff-appellant.
    McHaney & Welman, Kennett, for defendant-respondent. W. C. McHaney, executor of Estate of Bert Shelton, deceased.
   TITUS, Judge.

The petition of plaintiff-appellant was filed in the Circuit Court of Dunklin County to condemn the interests and rights of Bert Shelton et al. in certain lands for a limited access highway. Condemnation was adjudged and the sufficiency thereof is not questioned. The commissioners’ award of $17,000 was paid to Bert Shelton on September 12, 1963. Exceptions filed by both sides have never been tried. Bert Shelton died August 4, 1964, and W. C. McHaney was appointed executor on August 17, 1964. Publication of Notice of Letters Testamentary Granted was commenced August 18, 1964, and completed September 8, 1964. The executor was never substituted as a party to the cause in the circuit court and hence no written notice of revival of the action was ever filed in the probate court. Likewise, no claim against the estate has been made. On December 3, 1965, the executor dismissed Bert Shelton’s exceptions and moved for dismissal of plaintiff’s exceptions to the commissioners’ award. The motion was sustained April 25, 1966, for plaintiff’s “failure to comply with Non-Claim Statute,” and plaintiff appealed.

Eminent domain proceedings are in rem (Millhouse v. Drainage Dist. No. 48 of Dunklin County, Mo.App., 304 S.W. 2d 54, 58 [3]), .but after a judgment of condemnation has been entered and payment of the commissioners’ award has been effected, the issues to be tried on exceptions are simply those of damages. The condemnor acquires the interest in the land condemned when it pays the award of the commissioners, and thereafter “the law is settled that the title to real estate is not involved.” City of St. Louis v. Franklin Bank, Mo., 98 S.W.2d 534(2) ; Kansas City v. Cain, Mo., 317 S.W.2d 331, 334(4). No disputed amount appears here of record and would not be ascertainable until the conclusion of a proceeding not had. The mere chance such an amount might exceed $15,-000 would not lodge an appeal in the Supreme Court. Consequently, we have jurisdiction.

The aggrievance encountered by a condemnor upon dismissal of the exceptions is the loss at a chance of obtaining a verdict or amount for a sum less than the .commissioners’ award and thereby secure a judgment permitting recoupment of a part of the money previously paid plus interest. When the commissioners’ award has been paid to the condemnee and “the amount of the award shall be superseded by a subsequent verdict or amount smaller than the award paid, then judgment shall be entered against said persons named to repay to con-demnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.” V.A.M.S. § 523.045.

Taking by condemnation is simply an involuntary sale of the property where the interest “sold” is fully acquired by the condemnor when the amount of the commissioners’ award is paid to the owner or into court for him. State ex rel. State Highway Commission v. Houchens, Mo.App., 235 S.W.2d 97, 101(2). When land is taken or injured during the lifetime of the owner “the right to the compensation is not considered an incident to the real estate” (Nichols on Eminent Domain, Vol. 2, § 5.5 [2], p. 95) but is treated as personal property of the condemnee. In re Jamaica Bay, 252 App.Div. 103, 297 N.Y.S. 415, 417-418(1); Hawthorne v. Hawthorne, 208 N.Y.S.2d 79, 81. Upon the death of the condemnee “the right to the compensation passes to his executor or administrator, and this right of the personal representative continues until distribution of the estate has been made.” 29A C.J.S. Eminent Domain § 203, p. 913. Westhues, 'C. J., in State ex rel. State Highway Commission v. Paul, Mo. (Banc.) 368 S.W.2d 419, 425 (who dissented for other cause), said: “The condemnee, and only the con-demnee, has the only control over the fund. He may withdraw it and do with it as Tie pleases. If he spends it or loses it in a poor investment, he has not thereby breached any obligation to the condemnor or anyone else.” The majority opinion, 1. c. 424(14), noted, “The words, ‘judgment,’ ‘payment’, and ‘repay’, as used in the statute [§ 523.045] indicate a debt and the relation of debtor and creditor. This fits in with the situation where the landowner has actually received the amount ’ of the commissioners’ award.” It seems of little significance whether a condemnation proceeding be viewed as one in rem throughout as urged by appellant or changes into an in personam action aftei transfer of and payment for the interest condemned as suggested in State ex rel. State Highway Commission v. Brown, 231 Mo.App. 56, 95 S.W.2d 661, for if the satisfied award is later determined to be an overpayment, condemnor’s only remedy in the case is a “judgment * * * against said persons named.” V.A.M.S. § 523.045, supra.

Quoting from its brief: “It is conceded by Appellant that the money paid to the deceased cannot be reached, if a refund is adjudged, without a revival within the statutory period naming the executor as a defendant, but it is Appellant’s contention that it may satisfy a refund adjudged from the remainder of the land, a part of which has been appropriated in condemnation.” Allegedly apropos the last half of this statement, appellant teds many pithy pronouncements of abstract law among its points and arguments but fails, so far as can be discovered, to bale them into recognizable authority for its assertion. We are nowhere advised how the trial court could acquire jurisdiction over real estate not directly and specifically included in the eminent domain action. While it is true, as appellant suggests, one who obtains an interest in land from a condemnee after commencement of a condemnation proceeding takes title subject to the outcome of such action (Millhouse v. Drainage Dist. No. 48 of Dunklin County, supra, 304 S.W.2d at 58 [4]), nevertheless, the doctrine of lis pendens applies only to the property which is described in and which is the specific subject matter of the litigation and does not affect other real estate owned by the condemnee. 54 C.J.S. Lis Pendens § 6, p. 575; see discussion in Missouri State Life Insurance Co. v. Russ, Mo., 214 S.W. 860, 863-865. Appellant directs us to no> opinion or law that entitles it to.a lien, right or interest in any lands once owned by decedent not subject to the condemnation. “The fact is there is not a decision in the books which holds that a claimant against an estate has a contingent or equitable interest in the real estate owned by a deceased at the time of his death.” Winn v. Maddox, Mo.App., 263 S.W.2d 470, 472.

Subject to the time limitations and formalities prescribed by statute (V.A. M.S. § 473.360 et seq.), demands against estates are perfected through claims filed and allowed in the probate court or by there filing judgments of other courts of record. Whether the demand be a direct claim allowed or a judgment, all are assigned to the applicable statutory category by the probate court and satisfied in the order thus classified. At the death of a person all claimants, including judgment creditors, are relegated to the procedure prescribed by the probate code for the collection of claims. Although V.A.M.S. § 511.350 renders judgments and decrees of courts of record (except those rendered by magistrate courts) “lien[s] on the real estate of the person against whom they are rendered,” this applies only “to judgments in personam against a living person and judgments allowing [or effective as] demands against an estate of a deceased person do not and could not come within the purview thereof.” Wahl v. Murphy, Mo., 99 S.W.2d 32, 36; Winn v. Maddox, supra, 263 S.W.2d at 472(3-6).

Respondent truthfully says, “It is always difficult to prove a negative,” and as appellant gives us no clue to its claim, we are not obliged to assume the insurmountable task of intoning every statute and reported case to demonstrate their inapplicability. When the amount of the commissioners’ award was paid to decedent the sum lost its identity as a fund in litigation under control of the circuit court and upon the death of condemnee it was necessary to substitute the executor to keep alive the condemnor’s chance at a refund. The action was rightly dismissed as to decedent and appellant admittedly is too late to substitute the executor, which was necessary in this case. Cf., St. Louis Housing Authority v. Barnes, supra, 375 S.W.2d 144, at 149-150 (10-12). Two antagonists, at a minimum, are necessary to wrestle an adversary proceeding to a judgment. By removing one and the attached issues, the lone remaining party becomes as an unhorsed Don Quixote jousting injusticiable windmills. There is no res or person remaining in the action (in so far as it once concerned Bert Shelton) against which or whom any judgment could be entered. We hasten, however, to note the obvious, i. e., our ruling and that of the trial court affects only the exceptions specifically relat-. ing to Bert Shelton and in no way concerns any exceptions applicable to other parties in the cause.

The judgment of the trial court was proper and is affirmed.

STONE, P. J., and HOGAN, J., concur.

      I.V.A.M.R. 52.12: “(a) If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties * * *. (e) If the death occurs prior to final judgment and before appeal and substitution or motion therefor is not made within nine months after the first published notice of letters testamentary * * * the action shall be dismissed as to the deceased party * * V.A.M.S. § 507.100, subd. 1(1) and subd. 1(3).
      V.A.M.S. § 473.360: “1. Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person [other than exceptions inapplicable here], whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters testamentary * * * are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent * * *. 2. Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets.”

      . V.A.M.R. 86.06; V.A.M.R. 86.08; V.A. M.S. § 523.050; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W. 2d 65, 69 (5); City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726, 728(2); State ex rel. State Highway Commission v. Day, 327 Mo. 122, 35 S.W. 2d 37, 38(2).

      . V.A.M.R. 86.06; V.A.M.S. § 523.040; St. Louis Housing Authority v. Barnes, Mo., 375 S.W.2d 144, 147(4); V.A.M.S. Const, art. I, § 26.

      . Holland v. City of St. Louis, Mo., 262 S. W.2d 1, 4(7) ; V.A.M.S. Const, art. V, §§ 3 and 13; V.A.M.S. § 477.040.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Charles M. SCHWARZ and Lloyd E. Bennett, Executors of the Estate of Edward Longinette and Carrie V. Longinette, Deceased, Plaintiffs-Respondents, v. Kent Allen GAGE, Defendant-Appellant.
    No. 32700.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.

      Armstrong, Teasdale, Kramer & Vaughan by John J. Cole and Fred Leicht, Jr., St. Louis, for appellant.

      Jerome T. Bollato and Burton H. Shostak, St. Louis, for respondent on respondent’s case.
    F. X. Cleary, Paul S. Brown and J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent on appellant’s counterclaim.
   CLEMENS, Commissioner.

This lawsuit arose from the collision of two automobiles approaching each other along the center line of the Grand Avenue overpass in St. Louis. The driver of the northbound car, Edward Longinette, was killed; the plaintiffs are his executors. By Count I they sue on behalf of his collateral heirs for pecuniary damages they claim to be the result of his wrongful death. (By Count II the plaintiffs sued for Mrs. Longinette’s wrongful death, but this count was voluntarily dismissed before trial.) By Count III the executors sue for damage to Mr. Longinette’s automobile. Defendant Kent Allen Gage, driver of the southbound car, was injured in the collision and he counterclaims.

The plaintiff executors got a verdict and judgment for $4,400 for Mr. Longinette’s wrongful death plus $600 for property damage to his car. The defendant appeals. (The verdict and judgment went against the defendant on his counterclaim, but he makes no complaint of that either in his after-trial motion or brief; so, our concern is limited to plaintiffs’ $5,000 judgment against defendant.)

Two issues determine this appeal. As to Count I for wrongful death under § 537.080 (4), V.A.M.S., the question is this: Did the plaintiffs establish the reasonable probability of pecuniary loss to the decedent’s heirs by merely showing that within the year before his death the decedent had occasionally bought groceries and made household repairs for his widowed sister? We think not. As to Count III for property damage, the question is this: Was it prejudicial error to admit parol testimony describing the contents of the certificate of ownership to the damaged automobile when the certificate’s absence was unexplained and there was no other evidence of ownership? We think so. These two issues in turn.

The only evidence of pecuniary loss by the Longinette heirs was the testimony of Mr. Longinette’s 79-year-old widowed sister, Violet Wernecke. She said that Mr. Longinette was 74 years old when he died and worked at the sheet metal trade. He was survived by Mrs. Wernecke, another sister and one brother. Mrs. Wernecke’s testimony on the issue of probable pecuniary loss follows:

“Q Within the year and a half prior or within the year prior to Mr. Longi-nette’s death, did he during that period furnish you or give you any financial assistance ?
“A Well, I run into him in the grocery store and he would pay my grocery bill every once in awhile, whenever I would run into him,he would pay my grocery bill because I was by myself.”
* * * * * *
“Q How often did this occur in that year prior to your brother’s death?
“A Oh, about four or five times.”
“Q State whether or not in that year prior to your brother’s death, had he given you or provided any labor or did anything on your premises to improve them?
******
“A He fixed my furnace, he put a new back in my furnace and put a pipe in and he fixed my plumbing and the boys in my neighborhood threw rocks and broke three windows and he got the glass and put them in and he fixed anything that was really needed.”
******
“Q You were not dependent upon him?
“A No, but he always thought it would help me out if he paid my grocery bill, if he paid for my groceries.”

She said nothing about the value of these groceries or repair services.

It is easy to state, but harder to apply, the test governing the right to recover under this part of our wrongful death statute, § 537.080(4), V.A.M.S. Plaintiffs’ cited case of Domijan v. Harp, Mo., 340 S.W.2d 728 [12], says: “The test of the right of recovery under our death statutes is the reasonable probability of pecuniary benefit from the continued life of the deceased, or a pecuniary injury from the death, — and not that of strict legal dependency.”

Tracing that statement back to its source in Missouri law, we note that the Domijan case relied on Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176 [6-9], which adopted the rule laid down in McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803 [5-8], where it was said: “The fact of pecuniary benefit does not require definite and exact proof; but wherever there exists a reasonable probability of pecuniary benefit to one from the continuing life of another, however arising, the untimely extinction of that life raises a presumption of pecuniary injury.” The McCullough case, in turn, relied on the earliest Missouri case on the question of pecuniary loss by heirs, Hickman v. Mo. Pac. Ry. Co., 22 Mo.App. 344, 1. c. 351. There the court adopted the law of Pennsylvania, saying: “It was said in North Pennsylvania Railway Company v. Kirk (90 Pa.St. 15), that ‘if there be reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence occasioning the death of the party from whom it arose will sustain the action.’ ”

Because the law of Pennsylvania is the source of our law on this point, it is enlightening to note the development of the principle there. In Gaydos v.. Domabyl (1930), 301 Pa. 523, 152 A. 549 [5,6], the principle is stated thus:

“Pecuniary loss has been defined to be a destruction of a reasonable expectation of pecuniary advantage from the deceased. It is not a matter of guess or conjecture, but must be grounded on reasonably continuous past acts or conduct of the deceased. P. R. R. [Pennsylvania R. Co.] v. Butler, 57 Pa. 335, 338; North Penna. Railroad v. Kirk, 90 Pa. 15; Schnatz v. Phila. & Reading Railroad, supra, [160 Pa. 602, 28 A. 952],
“The reasonable expectation of pecuniary advantage to one standing in the family relation may be shown in many ways, but more frequently through services, food, clothing, education, entertainment, and gifts bestowed. To be reasonable, the services and gifts must have been rendered with a frequency that begets an anticipation of their continuance; occasional gifts and services are not sufficient on which to ground a pecuniary loss. Schnatz v. Phila. & Reading Railroad, supra, [160 Pa. 602, 28 A. 952].”

We note that the last sentence distinguishes continuous and substantial contributions on the one hand from occasional gifts and services on the other. We particularly note that distinction because not one of the Missouri cases cited in the briefs here, or uncovered by our own research, is based on contributions remotely similar to the case now before us.

Thus, in the Wente case, supra, the deceased mother had rendered domestic services to her daughter. In the McCullough case, supra, the deceased adult son had lived with and helped support his family. In the Domijan case, supra, the deceased mother had given substantial sums of money regularly to each of three children. So, we are left with the test clearly stated, but applied in cases where the extent of the decedents’ contributions left no doubt about the reasonable probability of pecuniary loss to the heirs. Here, we do have such a doubt.

To apply the test to the facts here, we recall the basic principles of damages in wrongful death actions: Damages are limited to losses that can be measured in money. Where the plaintiff had been a lawful dependent of the deceased, the law implies damages. Not so where the action is for the benefit - of decedent’s collateral heirs to whom the decedent owed no duty for support; in such case the plaintiff has the burden of proving a pecuniary loss to the heirs. Acton v. Shields, Mo., 386 S.W.2d 363 [10]. The loss to the heirs need not be shown by definite and exact proof; it may be proved by circumstances showing a reasonable probability of pecuniary loss. McCullough v. W. H. Powell Lumber Co., supra.

Reverting to the plaintiffs’ evidence of damages, we have only the four or five instances where the decedent bought groceries for his sister when they happened to meet at the grocery store,’coupled with two or three acts of household repairs. Plaintiffs did not show the value of these gratuities. They rely on these circumstances alone to prove the probability of Mrs. Wernecke’s pecuniary loss by her brother’s death. That probability, of course, was not susceptible of direct proof. Still, plaintiffs had the burden of showing —with reasonable certainty and beyond speculation — factual circumstances leading to the conclusion that she would suffer her claimed pecuniary loss.

The rule for measuring circumstantial evidence is found in numerous cases collected in 12A Mo.Digest, Evidence,. It was stated clearly for this court by Judge Bennick in Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663 [9,10]:

“While it is not the rule in this state that for a conclusion to be supported by circumstantial evidence, the proof must rise to a degree of certainty which will actually exclude every other reasonable conclusion but the one desired, it is nevertheless held that the proof should have such a tendency, since the force and effect of circumstantial evidence depend upon its incapability of explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove. * * * if the facts proved by the party having the burden of proof give no more than an equal basis for two or more inconsistent conclusions as to the existence of an essential fact such party has in that event failed to remove the case beyond the realm of speculation and conjecture, and the facts essential to his recovery are not established by legitimate proof. [Citing cases.]”

Applying this principle to our case, we must deny the sufficiency of plaintiffs’ evidence. The decedent’s contributions to his sister did not rise above the level of occasional gratuities. ' The purchases of groceries were at best fortuitous. These, coupled with the vaguely described household repairs, were neither continuous nor substantial enough to show with reasonable certainty that there would be a future pecuniary loss to Mrs. Wernecke. A conclusion that she has sustained a pecuniary loss cannot be reached without guessing and speculating. The vital element of pecuniary loss was not proved by the evidence. This conclusion forces a decision as to disposition: reversal or remand.

It appears to us from the record that the plaintiffs’ evidence about the time, extent, nature and value of decedent’s contributions to Mrs. Wernecke was not as fully developed as it could have been. We believe the interests of justice will best be served by a remand of Count I for a new trial rather than by an outright reversal. Compare Green v. Ralston Purina Co., Mo., 376 S.W.2d 119 [15]; Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662 [9] ; Lynch v. St. Louis Public Service Co., Mo.App., 261 S.W.2d 521 [5]. That will be our ruling on Count I.

We are still faced with defendant’s point concerning the best evidence rule. This pertains to Count III, whereby the plaintiffs recovered $600 for damages to Edward Longinette’s automobile.

The plaintiffs pleaded that Edward Longinette owned the damaged automobile. By his answer the defendant denied this ownership. The plaintiffs sought to prove ownership by verbally relating the contents of the statutory certificate of ownership. (§§ 301.190 and 301.195, V.A.M.S.) They neither produced the certificate nor explained its absence. Over defendant’s repeated objections that the certificate itself was the best evidence of its contents, executor Schwarz was permitted to testify he had seen the certificate and that it named Edward and Carrie Longinette as the owners. The certificate was the best evidence of its contents. See Payne v. Strothkamp, Mo.App., 153 S.W. 2d 402, and State ex rel. and to Use of Johnson v. St. Louis-San Francisco Ry. Co., 315 Mo. 430, 286 S.W. 360 [11]. Absent a showing that the certificate was unavailable, it was error to permit parol testimony of its contents. Benton v. Craig, 2 Mo. 198, 1. c. 200; Baker v. Atkins, Mo.App., 258 S.W.2d 16 [6] ; Best v. Equitable Life Assur. Soc., Mo.App., 299 S.W. 118 [5],

Not all errors are prejudicial, but this one is. Under Count III seeking damages for destruction of the automobile, its ownership by Edward Longinette at the time of his death was a disputed, material element of plaintiffs’ case. Without the improperly admitted parol testimony about the contents of the certificate, there was no evidence whatever of ownership. It follows that the erroneous admission of the parol evidence was prejudicial. Schears v. Missouri Pacific R. R. Co., Mo., 355 S.W. 2d 314 [2], and Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W. 2d 922 [7]. So, Count III must be remanded for a new trial.

Since some of the issues raised at the first trial may recur on a new trial, we have examined the other points raised by defendant in his after-trial motion and brief. We find no other errors.

For the reasons stated, Counts I and III are remanded for a new trial; the judgment for the plaintiffs on defendant’s counterclaim should be held in abeyance pending disposition of plaintiffs’ Counts I and III.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, Counts I and III are remanded for a new trial; the judgment for the plaintiffs on defendant’s counterclaim is ordered held in abeyance pending disposition of plaintiffs’ Counts I and III.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: TOWNSEND, Commissioner.

text:
    Edith E. HARRISON, Plaintiff-Respondent, v. John E. HARRISON and the American Insurance Company, a corporation, Garnishee, Defendants, The American Insurance Company, a corporation, Garnishee, Defendant-Appellant.
    No. 32568.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.

      Moser, Marsalek, Carpenter, Cleary & Jaeckel, Morris E. Stokes, William L. Davis, St. Louis, for defendant-appellant.
    Robert C. Brinkman, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

Garnishment in pursuit of a surplus of collateral deposited with American Insurance Company upon its issuance of a super-sedeas bond.

In a court-tried case, plaintiff adduced evidence to the following effect:

1. Background. In 1958 plaintiff Edith Harrison caused the issuance of writs of execution for the purpose of procuring satisfaction of sums then due her from John Harrison for alimony and child support under a divorce decree rendered in 1953; writs of garnishment in aid of execution were addressed to two certain corporations in which defendant John Harrison had been a shareholder. In April 1956 the Harrison shares had been transferred into the single name of Louise Harrison, second wife of defendant John Harrison. In that garnishment proceeding the plaintiff charged that the transfer of shares to Louise Harrison constituted a fraud upon creditors; Louise Harrison interpleaded. In June 1959 the trial court ruled that such transfers were fraudulent, ordered that certificates for the shares be delivered to the sheriff and ordered the sheriff to sell them at public sale; judgment for $7421 was entered in favor of Edith Harrison. Louise Harrison appealed. The holding and judgment of the trial court were sustained in October 1960 by the St. Louis Court of Appeals, except that the amount of the judgment was reduced to $4400, 339 S.W.2d 509. In the meantime each of the garnishee corporations had sold substantially all its assets to American Marietta Company and General American Investors Company respectively and received in exchange shares in the latter companies which were ultimately distributed to shareholders in the respective selling companies. When the interpleader appealed from the judgment of the Circuit Court she posted a supersedeas bond on which the present garnishee was surety and thereupon the court released the shares. On July 29, 1959, John Harrison and Louise Harrison executed their receipt for two certificates representing respectively 75 and 37 shares of American Marietta and for three certificates, totalling 210 shares, of General American Investors Company, all registered in the name of Louise Harrison, together with seven checks of American Marietta Company totalling $196 payable to Louise Harrison and representing dividends of that company payable November 11, 1957 and thereafter, and one check of the predecessor of General American Investors Company for $1089 payable to Mrs. Louise E. Harrison, drawn on Mercantile Trust Company, St. Louis, and representing the total amount of dividends of the predecessor declared on shares “standing in the name of Mrs. Louise E. Harrison since December 20, 1956” , The receipt embodied also an agreement by Louise Harrison and John Harrison to indemnify each of the predecessor corporations to the extent of $5000 for any liability as garnishee in the then pending litigation.

2. The supersedeas bond. On July 29, 1959, Louise Harrison entered her order with Mercantile Trust Company of St. Louis for the purchase of one $10,000 United States Treasury note and two $1,000 treasury notes. The purchase price was $12,048.15. The records of the trust company show that the notes so purchased were delivered to American Insurance Company, garnishee herein, on August 6, 1959; such records show also that the notes were paid for by a check on Mercantile Trust Company for $3235.31, four checks on Indian River Citrus Bank of Vero Beach, Florida (one for $7561.01, and three for $340 each) and $231.83 cash. The records do not show the identity of the drawer or drawers of the checks. Mr. Heuerman, a local representative of a stock exchange firm with over forty-three years experience in the investment and brokerage business, testified that on July 29, 1959, both shares of American Marietta and General American Investors were traded in only on the over-the-counter market and that on that day they were quoted as follows:

American Marietta, 43 5/8 bid, 46 1/8 asked; General American Investors, 35 1/8 bid, 35 1/8 asked.

The underwriter of American Insurance Company testified that John Harrison, Louise Harrison, their attorney and he gathered at the Mercantile Trust Company on a date not specified solely for the purpose of turning “over the collateral to me so that we could effect immediate execution of the appeal bond”. At that meeting Louise Harrison signed the collateral pledge agreement identifying $12,000 face value of treasury notes and at that time the underwriter took delivery of the notes. The underwriter stated that at that meeting Louise Harrison took a checkbook from her pocketbook, wrote out a check and passed it to the person behind the bond counter at the bank — “there were papers passed back and forth”.

“Q. Did anybody hand out any checks or cash?
A. Not that I saw.
Q. Was any cash given by Mrs. Harrison to this teller?
A. Not that I saw.
Q. Just the one check? — A. Yes, sir.
******
A. And subsequent to that time, somebody gave her these treasury notes and. they were handed to you?
A. Right.”

By deposition taken on April 13, 1959, in the prior garnishment proceeding, Louise Harrison testified that she had no financial means before her marriage to John Harrison other than her earnings as switchboard-operator and receptionist, that after her marriage to John Harrison in April 1953 she had no earnings in St. Louis, that at the time of the deposition she was a part-time model for a dress shop in Florida and that the earnings therefrom were the only earnings which she had had since marriage, that she had no income from any source in 1955 and 1956.

3. Disposition of the Collateral. The writ of garnishment herein was served on American Insurance Company on November 9, 1960, by service upon the Superintendent of Insurance. On January 9, 1961, the attorney for Louise Harrison advised the American Insurance Company that the Supreme Court of Missouri had that day denied application to transfer the prior garnishment case to the Supreme Court and that the judgment against her for $4400 stood affirmed; he authorized and requested the insurance company to satisfy the judgment, a direction confirmed by letter of Louise Harrison to the insurance company under date of February 11, 1961. Under the January date the attorney requested the insurance company to pay over “the balance then remaining in your hands” to Louise Harrison at her Vero Beach, Florida, address. The judgment was not paid until February 16, 1961, when $5425.07 was paid to the use of Edith Harrison and $592.05 to the Clerk of the Circuit Court as costs. On February 20, 1961, the attorney for Louise Harrison renewed his request that the unused portion of the posted collateral be returned to her. The last request not having been complied with, the attorney advised the insurance company under date of February 28, 1961 that “we shall be required to hold your company personally liable for all costs, expenses and liabilities” resulting from failure to release to Louise Harrison the unused portion of the deposited securities. By registered mail, the attorney of the garnishor was notified by the insurance company’s attorney on March 24, 1961 that “any funds which we hold for Louise Harrison will be turned over to her within the next 48 hours unless a bond protecting us with reference to any losses or expenses we may suffer as a result of holding the funds of Louise Harrison.” [Sic] Garnishee’s pleading asserts that after payment of the judgment including costs the garnishee had in possession from the collateral deposited by Louise Harrison one $1000 treasury note and $4126.77 in cash. On April 14, 1961, Louise Harrison executed her receipt to the garnishee for “the collateral security described on the face” of the collateral pledge agreement and at the same time delivered to American Insurance Company an indemnity bond signed by herself as principal and by Florida Home Insurance Company of Miami, Florida, as surety, conditioned to hold American Insurance Company harmless for all loss arising out of the release to Louise Harrison of the collateral security.

John Harrison and Louise Harrison were duly summoned as witnesses to testify and make discovery at the taking of depositions at Vero Beach, Florida, on named dates in March 1963; both appeared and refused to testify. Thereafter the Circuit Court of St. Louis issued its order directing them to appear for the purpose of undergoing oral examination and making discovery touching the issues in this case; personal service of that order with subpoena duces tecum was had upon each and they were duly notified to attend and give answers in depositions at Vero Beach on a named date in October 1964. Neither appeared. Appellant was represented by counsel upon both deposition occasions.

On February 2, 1966, the Circuit Court gave judgment in favor of plaintiff Edith Harrison and against garnishee American Insurance Company for $5950 plus interest at the rate of 6% amounting to $1894, all totalling $7844.

That a garnishment proceeding is an appropriate forum in which to try an issue of fraudulent transfer of personalty has been well established in the appellate courts of this state. Graff v. Continental Auto Insurance Underwriters, 225 Mo.App. 85, 35 S.W.2d 926; Potter v. Whitten, 170 Mo.App. 108, 155 S.W. 80; McDaniel v. Bryan, 123 Mo.App. 640, 100 S.W. 1103. In Potter v. Whitten, the Court of Appeals stated: “The law seems to be well settled in this state that a judgment creditor may pursue the funds in the hands of a third person, who is a bailee or transferee or assignee, to try the question of a fraudulent transfer in a garnishment proceeding; and all the cases we have examined arising in Missouri, except the case of McDaniel v. Bryan, supra, are cases where the relation of debtor and creditor did not exist; the relation of bailee, assignee, custodian, etc., being the relation that existed in those cases. * * * we can see no difference * * * between the debtor who makes a contract to pay certain money and a bailee who makes a contract to return certain property. The contractual relation, so far as the debtor or bailee is concerned, is the same; one agreeing to pay money or to pay a debt, and the other to return specific articles. The courts have held that property in the hands of a bailee or a fraudulent transferee is subject to garnishment * * We perceive no reason why the principle so enunciated is not as well applicable to the bailee of a fraudulent grantee of a judgment debtor as to the bailee of the judgment debtor, so long as, and to the extent that, the bailee of the fraudulent grantee is not a bona fide purchaser for value. The former is the kind of case which the plaintiff has alleged in the present situation.

The only point made by appellant in its brief in this Court is that the Court erred in entering judgment for plaintiff which in its turn is based upon two propositions: (1) that plaintiff failed to show that when the garnishee returned the collateral it had been sufficiently advised of plaintiff’s claim that the funds belonged to someone other than Louise Harrison and (2) that the evidence failed to show that garnishee held property belonging to John Harrison at the time of, or subsequent to, service of the writ of garnishment.

Upon the appeal of a court-tried case it is the duty of this Court to review the whole case upon the law and the evidence as in suits of an equitable nature and hence this Court may make its own findings of fact. However the judgment shall not be set aside unless clearly erroneous. Section 73.01(d), Rules of Civil Procedure, V.A. M.R.

As to appellant’s first proposition: When the appellant executed the supersedeas bond in the prior garnishment proceeding appellant was fully apprised of the fact that the principal debtor was John Harrison, that the trial court had adjudged Louise Harrison to be the fraudulent transferee of John Harrison’s assets and that Louise was posting collateral in the hope of procuring a reversal of that judgment which would-leave such assets in her hands free of the taint of fraud. When the writ of garnishment in the present proceeding was served upon appellant in November 1960 it was well informed that the writ was issued in aid of execution upon a judgment against John Harrison. Knowledge of the real issue in this case, namely, that plaintiff was contending that the posted collateral was the property of John, may be inferred from appellant’s motions on February 1 and 10, 1961 to quash the execution against John Harrison; thereby it attacked the entire basis of the writ of garnishment served on it and so moved to the protection of John. If such a motion had been sustained no proceeding against either John or Louise would then have been pending and nothing would have stood in the way of immediate release of the surplus collateral to Louise. Why was the appellant not satisfied with merely answering the interrogatories propounded to it by plaintiff on January 25, 1961 ? All that is above described antedated the payment of the judgment and so antedated the release of the surplus collateral. Strong evidence that appellant knew that plaintiff-garnishor was claiming that the collateral belonged to John Harrison and not to Louise lies in the fact that appellant’s attorney wrote to the attorney of plaintiff-garnishor that appellant would turn over the surplus collateral to Louise within 48 hours unless a bond protecting appellant with reference to any losses resulting from withholding delivery of the surplus to Louise was posted. In that letter he stated: “This is a notice to you of our action. I would appreciate if you would advise us immediately.” It is difficult to conceive of such a letter being written by appellant to plaintiff if it were unaware that plaintiff was contending that the collateral belonged to John Harrison. Moreover the state of mind of those acting for appellant is indicated by the fact that they released the surplus to Louise only upon her furnishing of an indemnity bond with surety to hold appellant harmless in the matter of the release. If they had no information that another person was claiming that the collateral was not the property of Louise there certainly was no excuse for delay in delivering the surplus collateral to Louise and no point in requiring an indemnity bond relating to such delivery. Under such circumstances her receipt alone would have been all-sufficient.

Finally, at the trial of the case, objection was made to the introduction of the indemnity bond and in the course of argument between counsel, the plaintiff’s counsel inquired :

“Does the court believe that it [the indemnity bond] could tend to show that they had knowledge of the fact that we are claiming this property [the collateral] as John’s?”

Appellant’s counsel responded:

“Well, it is fairly obvious that the writ of garnishment would notify them that somebody is claiming this property is John Harrison’s.”

The Court is of opinion that appellant was well advised that the garnishor was claiming that the posted collateral was the property of John, and so finds.

In this connection appellant makes much of its contractual obligation (under the terms of the collateral pledge agreement) to return to pledgor Louise any surplus collateral remaining after payment of the judgment in the first garnishment proceeding. Of course, such contractual obligation adds nothing to the legal relationship which would exist between the parties if there were no express provision for return of the surplus. It is elementary law that where assets have been placed in the hands of á bailee for a stated purpose or purposes possession of them may not be retained for any other purpose. Hanover National Bank v. Suddath, 215 U.S. 110, 30 S.Ct. 58, 54 L.Ed. 115; Stone v. Guardian Trust Company, Ohio Mun.Ct., 4 Ohio Supp. 4, 1 Ohio Op. 529; Masonic Savings Bank v. Bangs’ Admr., 84 Ky. 135; American Surety Co. v. De Escalada, 47 Ariz. 457, 56 P.2d 665. Consequently any continued refusal to deliver such assets after the stated purpose had been served would subject the bailee to an action for conversion whether or not there was a contractual commitment for return. In the present case the appellant had ample opportunity to immunize itself from a charge of conversion by utilizing the time-honored equity suit in interpleader.

Appellant contends that it was estopped to deny the title of Louise Harrison as pledgor and to attempt to do so would have been at its peril. We do not find that the use of interpleader is a denial of anybody’s title; it merely asserts that the bailee or debtor has been placed in a position of peril by the contentions and claims of adverse parties and in his perplexity he asks the court to resolve his honest doubts. Referring to the trial court’s opinion that appellant could have used interpleader, appellant maintains that such conduct on its part “would require garnishee to breach its pledge agreement, and risk a suit by pledgor for conversion.” By what has heretofore been said, it is obvious that we do not agree with the conclusion so reached by appellant.

Adverting to appellant’s argument that it was bound by contract to return the surplus collateral to Louise Harrison, it will be found upon analysis that this amounts to a contention, in all its simplicity, that when a bailor bails assets to a bailee the institution of the bailment removes such assets from the possibility of being subjected to the demands of claimants adverse to the bailor. We do not conceive such to be the law. The superior interest of a third person cannot be extinguished by a contract between bailor and bailee extending into the future. However, it is well recognized that in the present case the bailee is the pledgee of presumed negotiable securities and as between itself and the bailor it has a pledgee’s lien for any amount which it paid under the terms of the supersedeas bond; to that extent it is a bona fide purchaser, so far as the evidence herein shows. After that amount has been paid from the pledged property, the contract right of the pledgor— or a pledgor’s right in the absence of express terms in the contract — to a return of the balance of the pledged assets may always be subjected and subordinated to the superior right of an adverse claimant. We do not find the contract between appellant and Louise Harrison to be an obstacle in the way of the plaintiff in establishing her superior right to the surplus collateral if by the evidence she can sustain the burden of showing such superior right.

Appellant’s delivery of the surplus was at its own risk, as far as the garnishor was concerned.

Turning now to appellant’s second proposition, namely, that the evidence fails to show that appellant held any property of the execution debtor at or after service of the writ of garnishment, we proceed to consider the evidence.

The decision of this court in Harrison v. Harrison, Mo.App., 339 S.W.2d 509, established conclusively that the share certificates and the checks for which John and Louise Harrison gave their receipt dated July 29, 1959, were assets of John Harrison, fraudulently conveyed to Louise. On that same date Louise Harrison entered her order with Mercantile Trust Company for the purchase of $12,000 face amount of United States Treasury notes. On August 6, 1959, Louise received delivery of $12,000 face amount of treasury notes from Mercantile Trust Company and immediately delivered them to the underwriter of the insurance company; she paid for the notes with five checks and a small amount of cash, as previously stated. The identity of the drawer or drawers of the checks is not disclosed by the trust company's record. The underwriter testified that he saw Louise write out and deliver only one check to the teller handling the transaction.

Three and one-half months prior to the order for the purchase of the treasury notes Louise had testified in the prior garnishment proceeding that she had no financial means when she married John in 1953 and that the only income which she had had since marriage was that derived from a then current employment as a part-time model in a Florida dress shop. The record discloses no evidence of any accession of wealth in the three and one-half months period, or, indeed, at any other time.

In the effort to show the connection between the assets of John (share certificates and checks) receipted for on July 29 and the expenditure of $12,048.14 for treasury notes on August 6, the plaintiff-garnishor utilizes the expert testimony of the broker’s representative. (1) By that testimony she shows that one of the share certificates of American Marietta (75 shares) would have had a net market value, after deducting broker’s commission and transfer tax, of about $3235.12. One of the checks delivered to Mercantile Trust Company was for $3235.31. (2) Next, the 37 share certificate of American Marietta and the 210 share certificate of General American Investors, both taken at the bid price, would have had a market value of $8990.37. From this she hypothesizes that an 84 per cent loan (apparently taken as a standard or conventional amount) on such certificates would have produced $7551.91. One of the checks given in payment of the treasury notes was for $7561.01. (3) The dividend checks, which, by the holding of this court, were the property of John, consisted of one check for $1089 and seven for $28 each. By utilizing the $1089 check and five of the $28 checks, plus the $14.88 check paid for one-half share of American Marietta, a total of $1248.88 would be produced. The three checks for $340 each used in paying for the treasury notes, plus $231.83 cash paid for that purpose, total $1251.83.

There is no direct evidence of any loan or deposit or sale of securities other than that herein above stated.

We note that in the present proceeding Louise Harrison when she learned of the garnishment, could have used the inter-pleader provisions of the garnishment statute. Section 525.090, RSMo 1949, V.A.M.S. See Baden Bank of St. Louis v. Trapp, Mo. App., 180 S.W.2d 755. By interpleading under that statute a determination of whether the surplus collateral was hers or John’s could have been had. She chose not to subject herself to that test, and so cast the burden upon the insurance company. This failure to interplead takes on particular significance in view of the fact that she invoked those very garnishment statute procedures upon the occasion of the first garnishment when the two corporations were made garnishees. Here she evinced no desire and made no move to promote a resolution of the principal problem involved although the means thereto was readily available to her. Similarly when a deposition was scheduled she appeared but sat mute when asked a series of questions relating to the source of the purchase price of the treasury notes, to her earnings and acquisitions, to the disposition of the share certificates, and to other relevant matters. Obviously she and her husband were the persons who had the means most readily available to establish the ownership of the treasury notes. She refused to participate in the slighest degree in any move to show the court that her title to the treasury notes was unimpeachable. The inferences to be drawn from such conduct are not favorable to the pledgor Louise.

The Court is well aware that there is no evidence as to the precise disposition of the share certificates and checks received by John and Louise Harrison under their receipt dated July 29, 1959, and no direct evidence of the source of the funds used to purchase the treasury notes. However the evidence leaves it impossible reasonably to conclude that Louise had independent personal funds with which to make that purchase. Her own sworn testimony negatives any such possibility. At the same time there were in her and her husband’s possession negotiable securities and checks which could readily be turned into cash; also these available instruments stood in her name, although all had been adjudged fraudulently conveyed to her in order to hinder and delay John’s judgment creditor. Such instruments had a ready market value substantially in excess of the purchase price of the treasury notes.

In a civil proceeding the facts necessary to a recovery may be proved by circumstantial evidence. Vinson v. East Texas Motor Freight Lines, Mo., 280 S.W. 2d 124. A case may be made by circumstantial evidence alone. Schneider v. Prentzler, Mo., 391 S.W. 307. As stated in Miller v. Sabinske, Mo.App., 322 S.W.2d 941, “Proof by circumstantial evidence, as the term is usually understood, merely means that the proof of some of the necessary and principal facts must come, if at all, from proof of surrounding conditions from which the existence of the principal fact may be reasonably deduced. The circumstantial evidence while not directly proving the existence of the fact must give rise to a logical inference that it exists.” The qualification that the evidence must exclude guesswork, conjecture and speculation as to the existence of the necessary facts means that the fact finder must not reach a conclusion “by theorizing upon assumed factual premises outside of and beyond the scope of the evidence.” Vinson v. East Texas Motor Freight Lines, supra.

Fraud may be established by circumstantial evidence. Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372; Shepherd v. Woodson, Mo., 328 S.W.2d 1; Harrison v. Harrison, supra.

To recapitulate: The evidence conclusively shows (1) that Louise Harrison bought the treasury notes; (2) that Louise had no personal funds with which to make such purchase; (3) that she had in her possession, standing in her name, negotiable securities and checks which were the property of John Harrison; (4) that Louise and John declined to explain either the source of the purchase price of the treasury notes or the disposition of John’s assets standing in the name of Louise. The inference that the treasury notes were purchased with the assets of John is irresistible. There is no other fact in evidence which is inconsistent with the latter inference, see Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511, or from which even an inconsistent inference may be drawn.

Judgment is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and THEODORE McMILLIAN, Special Judge, concur.

      . The receipt also included a cheek for $14.88 for one-half share of American Marietta to which presumably the appropriate shareholder would be entitled upon the distribution of American Marietta shares.

      . Further testimony of Louise Harrison upon that occasion follows: “Q Now, with your own earnings from your part-time employment, have you turned that into the common household fund? A Yes, I have. Q And in addition to the position that you now hold on a part-time basis with that dress company, have you had an income in the past? A No. Q You say he [John] has no bank account since 1956 when you moved down there. Are all the hills paid out of your bank account? A No, sir, I didn’t have that kind of income. Q Well, who pays the bills? A Mr. Harrison.”

      . The writer’s computation differs slightly but insignificantly from that made by plaintiff’s counsel.


author: SMITH, Justice.

text:
    Charlene Davis CRAIN, Petitioner, v. Vernon L. DAVIS et ux., Respondents.
    No. B-132.
    Supreme Court of Texas.

    June 28, 1967.
    Rehearing Denied July 19, 1967.
    Walter M. Sekaly, Beaumont, for petitioner.
    Sexton & Owens, Paul R. Owens, Orange, for respondents.
   SMITH, Justice.

This suit was brought in the nature of a bill of review by the Petitioner to set aside an agreed judgment awarding custody of her minor child to the paternal grandparents, Respondents herein. The Respondents filed an answer and subsequently filed motion for summary judgment. The motion for summary judgment was granted. On appeal by Petitioner, the Court of Civil Appeals affirmed, 411 S.W.2d 437. We reverse the judgment of both courts and remand the cause for trial for the reasons now to be stated.

The trial court’s .judgment contains a finding that the motion for summary judgment “was accompanied by affidavits and that an opposing affidavit had been served and was before the Court.” The judgment sustaining Respondents’ motion for summary judgment further recites:

“ * * * [T]he Court finds that the pleadings, depositions and admissions on file, together with such affidavits show an absence of genuine issue of any material fact, * * * and that this summary judgment should be rendered for Respondents.
“It is * * * decreed that this summary judgment should be rendered for * * * Vernon L. Davis, et ux, who are entitled thereto as a matter of law, and it is accordingly ordered, adjudged and decreed that Petitioner take nothing by reason of her petition for Bill of Review, that same is herewith in all things denied and dismissed, * * * to all of which Petitioner duly excepted and gave her notice of appeal to the Ninth Court of Civil Appeals, sitting at Beaumont, Texas.”

Although the judgment recites that “depositions and admissions” were on file, the record as it actually existed before the trial court, before the Court of Civil Appeals, and as it now exists before this Court, contains no depositions or admissions, but contains only the pleadings; the motion for summary judgment; and, the supporting and opposing affidavits.

This Court has for disposition two questions. First, do the pleadings of Petitioner state a meritorious defense ? Without detailing the pleadings, Petitioner alleged that she, through fraudulent representations, agreed to the entry of the judgment awarding the custody of her minor child to the Respondents. We simply hold that the Petitioner’s pleadings state a meritorious defense. Petitioner alleged in her petition for Bill of Review that she was a fit and proper person to have the care and custody of her minor child. Next, there are no affidavits which provide a basis for contending that her allegations relating to fraud are untrue or insufficient as a matter of law. Therefore, the summary judgment cannot be sustained upon the ground that the Petitioner’s Bill of Review pleadings fail to afford a basis for a proper defense.

We turn now to the sufficiency of Respondents’ motion for summary judgment and the supporting affidavits attached to such motion. It is self-evident that the affidavits which were filed in support of the motion for summary judgment do not meet the requirement of Rule 166-A, Texas Rules of Civil Procedure, that the affidavits shall set forth such facts as would be admissible in evidence. The statements contained in the affidavits are but mere conclusions of the affiants and, therefore, would not be admissible. The facts stated in an affidavit given in support of a motion for summary judgment must be so worded that if the testimony were given from the witness stand during the trial it would be admissible. Statements contained in affidavits offered to support a motion for summary judgment that are but mere conclusions are insufficient to warrant the entry of such a judgment. “In ruling on a motion for summary judgment only admissible testimony having probative force is to be considered.” See Box v. Bates; Sup.Ct. (1961), 162 Tex. 184, 346 S.W.2d 317, McDonald, Texas Civil Practice § 17.26.2; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956).

The judgments of the trial court and the Court of Civil Appeals are reversed and judgment is here rendered remanding the cause to the trial court for trial.

      I. The pertinent portion of the affidavits in support of the motion for summary judgment reads:
      “That we are the mother, brother and stepfather, respectively, of Charlene E. Kollenborn Davis Hickey Crain. Vernon Keith Davis, who is two and one-half (2½) years old, is the son of the said Charlene E. Kollenborn Davis Hickey Crain. Charlene has, since October of 1961, been married on at least one occasion and is presently living with another man named Ralph Monroe Crain, who she alleges to be her husband. Within each of our knowledge, Charlene’s conduct and morals, since October of 1961, including but not limited to her behavior and conduct in the presence of her minor son, has evidenced a complete disregard for morality, truthfulness and respectability, and it is each of our opinions that the welfare, training and education of Vernon Keith Davis is being disregarded by that child’s mother, and that the best interest and welfare of the child would be served if the child were placed in a respectable home where it could receive the care, affection, training and stability that a two-year old needs to be properly reared.
      “In this connection, we are all acquainted with Mr. and Mrs. Vernon L. Davis of Orange, Texas, who are the paternal grandparents of Vernon Keith Davis and we know them to have a stable home, and we know them to be of fine moral character and we know them to hold much love and affection for their grandchild, and we are of the opinion that they are the proper persons to have the care, custody and control of Vernon Keith Davis.
      “We have discussed with. Attorneys-at-Law, in detail the conduct of Charlene since the date of the death of her hucband, Glenn Davis,- and we make this affidavit voluntarily and of our own free will and accord, and we further state that in the event that it becomes necessary, we would be willing to testify in court to the facts contained in our oral statements to. [the attorneys for Respondents].” -


author: HAMILTON, Justice.

text:
    Bessie Mae DANNELLEY, Petitioner, v. Frank H. DANNELLEY, Respondent.
    No. A-11602.
    Supreme Court of Texas.
    June 28, 1967.
    Rehearing Denied July 19, 1967.

      Butler, Schraub & Gandy, Philip A. Schraub, Corpus Christi, for petitioner.
    J. Malcolm Robinson, Austin, for respondent.
   HAMILTON, Justice.

Bessie Mae Dannelley, Petitioner herein, filed a motion in the 53rd District Court of Travis County, Texas, in cause No. 123,703, seeking to set aside and vacate a previous order of such court entered on July 22, 1964, changing the custody of three minor children, Preston Dannelley, II, Sherrilee Dannelley, and David Leuin Dan-nelley, from that of Petitioner to Frank H. Dannelley, Respondent. The trial court entered judgment which in effect denied such relief and the Court of Civil Appeals has affirmed. 405 S.W.2d 141. We reverse the judgment of the Court of Civil Appeals and the Trial Court and render judgment vacating said order.

On the 8th day of December, 1961, Petitioner and Respondent were divorced by judgment of the 53rd District Court of Travis County, Texas, in cause No. 123,703, in which judgment the custody of the three minor children of said parties was awarded to the Petitioner Bessie Mae Dannelley. On July 22, 1964, Bessie Mae Dannelley was committed to the Austin State Hospital as a mentally ill patient, for observation or treatment for a period not exceeding ninety days, by judgment entered in cause No. 4452 in the County Court, Travis County, Texas. On the same date a petition was filed in the 53rd District Court of Travis County, Texas, in said cause No. 123,703, by Frank H. Dannelley requesting the court to change the custody to the Respondent because of the said commitment of the Petitioner to the Austin State Hospital. On the same day the court, without notice to Petitioner, heard the motion of Respondent, granted said motion and entered an order granting temporary care, custody and control of said minor children to Respondent, Frank H. Dannelley.

On October 14, 1964, the Petitioner, Bessie Mae Dannelley, was discharged from the Austin State Hospital as authorized by Article 5547-80, Vernon’s Ann.Civ.Stat. On July 1, 1965, the Petitioner filed a motion in said cause No. 123,703 in the 53rd District Court, Travis County, Texas, praying that the order entered on July 22, 1964, giving temporary custody of said children to the Respondent be in all things vacated and set aside on the ground that she had fully recovered from the illness for which she was hospitalized in July 1964.

On July 9, 1965, Petitioner filed an amended motion asking for substantially the same relief requested in the original motion on the ground that said order was entered without notice or citation, and the court did not have jurisdiction to enter an order affecting the custody of said children and that such order was void. Alternatively, she alleged that she had completely recovered from the illness of which she was hospitalized, thereby eliminating all reason for such temporary order remaining in effect.

A hearing was had on July 14, 1965, and a judgment was entered on July 25th. This judgment was subsequently set aside on motion of Petitioner, and the case was reset for hearing on September 3rd. At that time the hearing was held, both parties and their attorneys being present. After the hearing the court entered a judgment on September 13, 1965, the pertinent part of which is as follows:

* * * “[A]nd the Court finds that the Plaintiff, Bessie Mae Dannelley, was released from the Austin State Hospital under authority of Section 80 of the Mental Health Code on October 15, 1964, and instituted these proceedings July 1, 1965, and that during such time the Plaintiff either was unable to exercise legal custody or voluntarily surrendered the actual custody of the minor children; and the Court finds that such actual and physical possession of the minor children because of such commitment and the Plaintiff’s inability to exercise custody and/or the Plaintiffs voluntary surrender of such custody, by operation of law placed legal custody of the minor children in the father, Frank H. Dannelley; and the Court also finds that the relief prayed for by the Plaintiff, Bessie Mae Dannelley, if granted, would change the actual possession and custody of the minor children; it is therefore,
ORDERED, ADJUDGED AND DECREED by this Court that the legal custody of the minor children Preston Dan-nelley, II, Sherrilee Dannelley and David Leuin Dannelley, is in the father, Frank H. Dannelley, and has been in the father since July 22nd, 1964, and any action by the mother, Bessie Mae Dannelley, to alter that is and should be a new independent action for a change of custody; and, * * ‡ »

The above statement of the chronology of what happened in this case clearly presents the problem before us. Neither the Trial Court nor the Court of Civil Appeals has held that the order of July 22nd granting temporary custody of the minor children to Respondent is a valid and subsisting order, and further the Respondent does not so contend. What the Respondent contends and what both the Trial Court and Court of Civil Appeals have held is that the legal custody of said minor children has been changed from that granted the Petitioner in the divorce judgment to the Respondent by operation of law based upon certain facts; that is, commitment to the State Hospital for observation or treatment of mental illness from July 22, 1964, to October 14, 1964, or the failure of the Petitioner to seek actual physical possession of said minor children through court action until July 1, 1965.

In our opinion this conclusion of law is erroneous. The judgment entered by the court and the divorce case of 1961 remains in full force and effect until superseded by a subsequent judgment entered in a new and independent action for change of custody. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016(1940).

The Court of Civil Appeals in affirming the judgment of the Trial Court relies on two Courts of Civil Appeal’s cases, Thomas v. Thomas, 228 S.W.2d 548 (Tex.Civ.App. 1950, no writ); Spencer v. Spencer, 371 S. W.2d 898 (Tex.Civ.App.1963, no writ).

The Thomas case held in effect, that the day on which the divorced wife to whom custody of child had been granted by divorce decree, was adjudged to be of unsound mind, the divorced husband became under the law the legal custodian of the child. As authority for that holding the court cited Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551(1946). That case held that where a decree of the court made the child’s mother his lawful custodian, immediately upon her death, notwithstanding custody award, the right of the father to custody of the child was revived, and he became the child’s legal custodian. As authority for such holding the Court cited Article 4118 of revised Civil Statutes of 1925 which provided:

“If the parents live together, the father is the natural guardian of the person of the minor children of the marriage. If one parent is dead, the survivor is the natural guardian of the person of the minor children.”

The Spencer case involved the fact situation similar to what we have here. The wife was awarded custody of the minor children in the divorce decree. The wife was committed to a hospital for observation and treatment of mental illness. The children’s grandfather delivered possession of the children to their father. The mother was subsequently released from the hospital and she brought suit to regain possession of her children. The question of venue was raised and the Court of Civil Appeals held that legal custody of the children was in the father, and suit would have to be brought in the County of his residence.

The court there cited the Thomas case, and Peacock v. Bradshaw, supra. Neither case is authority for the holding of the Court of Civil Appeals. Peacock v. Bradshaw does not involve the transfer of legal custody from one having such custody to another by operation of law. In that case death dissolved the legal custody that was awarded the wife in the divorce decree, in which situation the right of the father to custody of the child was revived. The law announced in that case does not apply to the facts in the Spencer case. Neither is the holding in Thomas, whether correct or not, applicable to the facts of Spencer, or the instant case. We do not have here a case where one to whom legal custody was awarded has been declared of unsound mind. Consequently, we do not pass on that question here.

We hold that temporary commitment of Petitioner to a hospital for observation and treatment does not in, and of itself, operate to change the legal custody of the minor children to the Respondent. The holding in the Spencer case is disapproved.

We also hold that the fact that Petitioner voluntarily let the children remain with the father for some eight months after she was released from the hospital did not change the custody of said children by operation of law. Fowler v. Fowler, 292 S.W.2d 800 (Tex.Civ.App.1956, no writ). Also see Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966).

Under our holding that legal custody of said children remained at all times with Petitioner, it follows that an order vacating the court’s order entered on July 22, 1964, would not operate as a change of custody. We do not mean to hold that the Trial Court did not have the jurisdiction to enter a temporary order granting a change of custody without notice in a situation which it considered was an emergency. This Court recently held in the case of Page v. Sherrill, 415 S.W.2d 642 (June 3, 1967), as follows:

“Since the district courts are vested with general supervisory control of minors, they are charged with the profound responsibility of protecting their health and safety. Effective discharge of this responsibility under situations of emergency will sometime demand immediate action by the courts. Such action may, by necessity, consist of a temporary taking óf a child from the possession of its legal custodian, with or without notice, pending a full hearing. It follows that the district court’s power to enter such temporary orders is implied since it is necessarily incidental to the power of general control over minors granted to the district courts by Section 8 of Article V of the Texas Constitution.”

However, the court went further and said:

“The court’s order to take the children from relator’s custody, although without notice, is purely a temporary order; it does not purport to be a final adjudication of relator’s rights. Clearly the order contemplates only a temporary interruption of custody to be followed by proper notice, appropriate pleadings, and a full hearing in which the burden of proof will not be upon relator but upon the parties seeking a change of custody.”

Since the Petitioner in this case was never cited and no hearing was ever had on the question of change of custody, the trial court had no alternative but to grant Petitioner’s motion to vacate said order of July 22, 1964.

We reverse the judgments of the Court of Civil Appeals and the Trial Court and render judgment vacating the order of the trial court of July 22nd, 1964, giving temporary custody of the minor children to Respondent.


author: ONION, Judge.

text:
    Tommy WALL, Appellant, v. The STATE of Texas, Appellee.
    No. 40473.
    Court of Criminal Appeals of Texas.
    June 28, 1967.

      Blanchard, Clifford, Gilkerson & Smith, by George E. Gilkerson, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Rape; the punishment assessed by the jury, seven and one half (7½) years in the Texas Department of Corrections.

Appellant vigorously attacks the sufficiency of the evidence to sustain the conviction.

The record reflects that in the early morning hours of December 9, 1965, T___ W____, the eleven year old daughter of the appellant was the victim of an assault in the darkened bedroom of her unlocked home in the City of Shamrock.

In presenting its case in chief, the State called five witnesses. The testimony of the first two witnesses, a doctor and a laboratory technician, related to the physical examination of the prosecuting witness five or six hours after the alleged attack and the finding of male sperm in her vagina. The third State witness was the wife of the appellant who refused to testify after being compelled to take the witness stand in the presence of the jury to claim her privilege. Another witness was the County Attorney who identified a tape recording of his interview with the prosecutrix.

The alleged injured female was called as a witness for the prosecution. On voir dire examination, in the absence of the jury, as to her qualifications as a witness, T___W___, prior to the Court’s termination of such line of questioning, denied that appellant committed any type of offense against her on or about the 9th day of December, A.D., 1965.

Subsequently on direct examination, she was never questioned as to whether the appellant committed the act charged. The questioning was to the accusations she had made against the appellant within five or six hours following the alleged rape.

On cross-examination, she denied knowing who had committed the sexual act with her, and specifically denied it was the appellant.

She explained her earlier accusations against her father resulted from what she considered unfair or unequal treatment by him because she was made to baby sit and do the dishes, and felt that she was treated differently because her school grades were not as good as the other children. She freely admitted these accusations against her father had been made to her mother, the doctor who had examined her, the County Attorney who tape recorded her statements, and her siblings, but stated such accusations were not true.

On re-direct examination, she reiterated her emphatic denial that she knew who had attacked her. The State, over objection, was then improperly allowed to impeach its own witness. The prosecutor elicited from her the fact that she had taken a lie detector test in the State of Arizona and had been told by the operator that she was not being truthful in denying appellant’s guilt.

Upon re-calling the prosecutrix, the State again attempted to impeach her, over objection, by playing the tape recording of the details of her interview with the County Attorney shortly after the alleged attack. The record reflects that prior to the verdict such recording was played for the jury three times despite objections.

The impeachment was improper for several reasons and constituted reversible error regardless of the sufficiency of the evidence.

First, a party introducing a witness cannot attack his or her testimony unless the witness has stated facts injurious to such party. Article 38.28, Vernon’s Ann. C.C.P. Mims v. State, 159 Tex.Cr.R. 180, 261 S.W.2d 727. It is not sufficient that the witness merely fails to testify as expected or to remember facts favorable to the party calling the witness. Crandall v. State, 170 Tex.Cr.R. 229, 340 S.W.2d 36. If the State, as in the case at bar, has offered no evidence to prove a relevant fact, it cannot be said that its witness, who denies existence of that relevant fact has by that denial stated facts injurious to the State’s case. Baum v. State, 60 Tex.Cr.R. 638, 133 S.W. 271.

Further, foreknowledge of a witness’s testimony precludes impeachment though such testimony is decidedly adverse on a vital issue. Perrett v. State, 75 Tex. Cr.R. 94, 170 S.W. 316; Hollingsworth v. State, 78 Tex.Cr.R. 489, 182 S.W. 465; Scott v. State, Tex.Cr.App., 20 S.W. 549; 62 Tex.Jur.2d, 339, Sec. 323.

In the instant case, the State, at no time, claimed surprise nor laid any predicate to justify impeaching its own witness. In fact the record is replete with evidence that the District Attorney had been told sometime prior to the trial by the prosecuting witness- that she would deny that appellant had raped her and would claim her previous accusations were false.

In Ware v. State, Tex.Cr.App., 92 S.W. 1093, it was held that where the State’s witness admitted that he had made a contrary statement, but said he made it by mistake and before the trial had informed State’s counsel that he was mistaken such witness could not be impeached by such statement. See Barham v. State, 130 Tex.Cr.R. 233, 93 S.W.2d 741; Odneal v. State, 117 Tex. Cr.R. 412, 36 S.W.2d 1020.

Still further, it is well recognized that evidence of the results of a polygraph test is not admissible on behalf of either the State or the accused. Nichols v. State, Tex.Cr.App., 378 S.W.2d 335; Placker v. State, 171 Tex.Cr.R. 406, 350 S.W.2d 546. Despite the fact that the trial court’s attention was directed to these very two cases by appellant’s counsel such evidence was nevertheless admitted.

Appellant did not testify nor offer any witnesses in his behalf.

The Court in its charge limited the jury’s use of impeachment testimony to the weight, if any, to be given to the prosecuting witness’s testimony and her credibility and instructed the jury such testimony could not be considered as tending to establish the alleged guilt of the defendant. Such charge, however, did not cure the errors already observed. 1 Branch’s Anno.P.C.2d Ed., Sec. 186, p. 198.

While the record reflects some suspicious circumstances, we easily conclude that the evidence is clearly insufficient to support the jury’s verdict.

The State’s witness testified appellant was not the person committing the act and the State did not thereafter disprove by primary evidence such fact, thereby rendering the evidence insufficient to sustain the conviction; Mancil v. State, Tex.Cr. App., 391 S.W.2d 731.

It is well established that even properly admitted impeaching testimony cannot be used as primary evidence. La-whon v. State, Tex.Cr.App., 284 S.W.2d 730; Wells v. State, 154 Tex.Cr.R. 336, 227 S.W.2d 210; Hall v. State, 164 Tex.Cr.R. 142, 297 S.W.2d 685; Shivers v. State, Tex.Cr.App., 374 S.W.2d 672; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772. 1 Branch’s Anno.P.C.2d Ed., Sec. 186, pp. 196, 197.

In Skeen v. State, 51 Tex.Cr.R. 39, 100 S.W. 770, this Court, in finding the evidence insufficient, was confronted with a fact situation quite similar to the case at bar. In Skeen, the alleged injured female swore most emphatically that appellant had not had intercourse with her at any time. The prosecutor was then allowed to elicit from his own witness that she had made a different statement to him and before the grand jury. There this Court said:

“ * * * Without going into any detailed discussion of the grounds of exception, we hold this testimony, in regard to her statements to the county attorney and before the grand jury, was clearly inadmissible under the circumstances, and her impeachment, as it occurred, was clearly illegitimate. She had denied having intercourse with the defendant, and the fact that she had previously stated that she had had could only be used as impeachment, if such testimony was at all allowed; that is, it could not be used as original evidence, but in this particular case and under this state of case, however, it was not admissible at all; that this simply resulted in a failure to prove a fact, and such evidence could not be introduced to show that the fact had been previously stated. The failure to prove facts cannot be introduced in this manner as impeachment. See Dunagain v. State, 38 Tex.Cr.R. 616, 44 S.W. 148; Scott v. State (Tex.Cr.App.) 20 S.W. 549; Finley v. State (Tex.Cr.App.) 47 S.W. 1015; Erwin v. State, 24 S.W. 904, 32 Tex.Cr. R. 519; Bennett v. State, 24 Tex.App. 73, 5 S.W. 527, 5 Am.St.Rep. 875. ■ Nor was this error cured by the fact that the court limited the consideration of this evidence to impeachment in the written charge to the jury.”

See also Kern v. Cook, 155 Tex. 360, 287 S.W.2d 174.

In Doherty v. State, 84 Tex.Cr.R. 552, 208 S.W. 932, this Court said:

“The state had failed to make a case, and, whether this testimony be legitimate or not, it could be of no service to the state to prove a statement made by the girl by way of impeachment when she had directly sworn that no intercourse occurred. The state’s whole case was made by this character of testimony in the main. There were some circumstances detailed here and there that would throw suspicion upon the relations of appellant and his stepdaughter; but where the intercourse is positively denied by the prosecutrix, and there is no evidence, except remote circumstances that might tend to show a case of impeachment, it will not form the basis of a conviction. The jury may have believed the defendant guilty, but there must be proof of that fact.”

In the case at bar if the jury had followed the Court’s instructions limiting the impeachment testimony there could have been no conviction in light of the record.

A conviction based totally upon a lack of relevant evidence results in the denial of due process of law. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.

We further observe that the wife of the appellant should not have been called as a witness against him under the circumstances here presented.

Article 38.11, V.A.C.C.P., 1965 (former Article 714), relates to the competence of a husband or wife to testify against each other, provides in part:

“However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under sixteen years of age * *

This revision of former Article 714 was recently discussed in Ex parte Moreland, Tex.Cr.App., 415 S.W.2d 428, not yet reported, in upholding the right of a wife to refuse to testify before a grand jury against her husband.

The fact that the wife of the appellant at bar did not wish to voluntarily testify was brought to the Court’s and the prosecutor’s attention by a motion to suppress prior to her testimony. The said motion was overruled. At the time the “rule” was invoked and again when called as a State’s witness, the wife told the Court that she would not testify against her husband. Nevertheless, the Court and the prosecutor compelled her to take the witness stand in the presence of the jury and forced the appellant to object to her testimony and forced her to claim her privilege. It is clear from the record and the two questions asked and the answers elicited by the State that the only purpose of calling the witness was to have the jury use her refusal as a circumstancé of guilt against appellant. In forcing such prejudicial action to occur, the Court and the State were guilty of an injustice and committed reversible error. Garland v. State, 51 Tex.Cr.R. 643, 104 S.W. 898; McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099; Messenger v. State, 81 Tex.Cr.R. 465, 198 S.W. 330; Lackey v. State, 148 Tex.Cr.R. 623, 190 S.W.2d 364; Johnson v. State, 158 Tex.Cr.R. 6, 252 S. W.2d 462; Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119; Washburn v. State, 164 Tex.Cr.R. 448,299 S.W.2d 706.

We still further observe that prior to trial the appellant filed his motion to change venue drafted in compliance with Article 31.03, V.A.C.C.P. and supported by affidavits. The motion was overruled. The motion was uncontroverted by the State either in the form of an affidavit or by the presentation of any evidence justifying the denial of motion, and there was not a waiver by appellant of a controverting affidavit. Under such circumstances, the appellant was entitled to have the venue changed and the Court erred in failing to grant the motion. Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72; Ross v. State, 93 Tex.Cr.R. 531, 248 S.W. 685; Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1 Branch’s Anno.P.C.2d Ed. 356, Sec. 312.

Numerous other errors, both assigned and unassigned, appear supported by the record, but we do not feel that the jurisprudence of the State will be served by a discussion of them. They are not likely to re-occur in the event of a re-trial.

For errors observed, the judgment is reversed and remanded.


text:
    Glen Joseph JOHNNENE, Appellant, v. The STATE of Texas, Appellee.
    No. 40503.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    Walker Brents, Jr. (appointed counsel), Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., R. J. Adcock and Gordon .Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order revoking probation.

On January 17, 1966, appellant waived trial by jury and plead guilty to Burglary with Intent to Commit Theft and was assessed a punishment of five (5) years confinement in the Texas Department of Corrections. The imposition of the sentence was suspended and the appellant was granted probation subject to certain conditions among which was one that he “commit no offense against the laws of this State or any other State or the United States.”

On October 7, 1966, the State filed a motion to revoke appellant’s probation, alleging that the terms and conditions thereof had been violated in that he, on or about September 9, 1966, committed the theft of a lawnmower of the value of $169.00.

On November 21, 1966, the Court, after a hearing, entered an order finding that the appellant had during his probationary term committed the alleged theft and ordering the appellant sentenced in accordance with the law.

The sole question presented on appeal is whether the trial court abused its discretion in revoking probation, it being the appellant’s contention that the evidence is insufficient to establish his guilt of the theft of the lawnmower.

Joe Crothers, an employee of the White Auto Store No. 4 in the City of Fort Worth, testified that at approximately 4 P.M., on September 9, 1966, while seated in front of the store in a parked automobile with his wife, he observed appellant drive up to the store in a 1956 or 1957 red Chevrolet panel truck accompanied by three colored men; that appellant entered the store and one of the colored men approached Crothers and inquired of him (Crothers) if he would call “the law” if a nearby lawnmower belonging to the store was borrowed. After replying in the affirmative, Crothers immediately rushed into the store to relate what had occurred and when he did, appellant “busted and run out of the store” and back to the panel truck.

Mrs. Pearl Crothers corroborated her husband’s testimony. In addition, she revealed that she saw two of the colored men load the lawnmower into the panel truck and thereafter saw appellant run out of the store and drive off in the panel truck in great haste.

One of the salesmen at White’s attempted to follow appellant and his companions, but lost them in the heavy traffic.

Joe Heaton, manager of White’s Auto Store No. 4, testified that on September 9, 1966, he had control and possession of the riding lawnmower in question. He related that the lawnmower with a market value of $169.25 had been taken without his consent. While not present at the time of the taking, he returned to the store shortly thereafter and with Crothers and his wife began a search for appellant, his companions and the panel truck which they had observed. Within forty-five minutes, they located appellant and two colored men in the same panel truck at the intersection of Evans and Magnolia Streets, and recovered the stolen lawnmower from a drug store across the street.

D. M. Cook, a Fort Worth City Police Officer, testified he arrested appellant at the above described intersection in the company of two colored men and was present when the lawnmower was recovered.

J. C. Nolan, an employee of Stag’s Drug Store at the corner of Evans and Magnolia Streets, testified on September 9, 1966, that he loaned $20.00 on the riding lawnmower in question to an unidentified colored man shortly before it was recovered from him by someone from White’s Auto Store. He related that at the time of the transaction he did not see appellant or his panel truck, but did observe both outside his drug store after the recovery of the lawnmower.

Testifying in his own behalf, appellant denied the theft and claimed that at the time he was at his home where he conducted a business of selling used work clothes. He admitted that he had allowed some colored men whom he had employed that day to borrow his panel truck to go to lunch between 3 P.M. and 4 P.M., and that he was taking them home when he was arrested.

It is appellant’s contention that considering the evidence in the light most favorable to the State, it shows only appellant’s presence in the vicinity of the offense and is not sufficient to show he committed any offense.

We cannot agree. While it is true that mere presence alone will not constitute one a principal, we conclude that the facts are sufficient to make appellant a principal. Article 65, Vernon’s Ann.P.C.; Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046. .

In Everett v. State, Tex.Cr.App., 216 S.W. 281, this Court said:

“An agreement of parties to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.”

See also Mills v. State, Tex.Cr.App., 417 S.W.2d 69.

Finding the trial judge did not abuse his discretion, the judgment is affirmed.


author: DICE, Judge. MORRISON, Judge.

text:
    Carl BLUM, Appellant, v. The STATE of Texas, Appellee.
    No. 40423.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 535c, Vernon’s Ann. P.C., for the offense of indecent exposure to a child under the age of sixteen (16) years; the punishment, ten years in the Department of Corrections.

The prosecuting witness, a boy thirteen years of age, testified that on September 1, 1965, while riding his bicycle on a public street in the city of Austin, he saw appellant standing between his house and a bamboo bush. At such time, appellant had on no clothes, was naked, and looking in the direction of the witness. The witness testified that he saw appellant’s private parts, and then went home and told his mother. The witness further testified that, a week before, he had seen appellant standing in the same place without any clothes on except his underwear down around his ankles, and at the time he could see appellant’s private parts. He related that on still another occasion, as he and another boy were passing, they saw appellant standing between the house and the bamboo bush with his undershorts down around his ankles and at that time he saw appellant’s private parts.

Three other young boys, upon being called as witnesses by the state, testified that in the summer of 1965 they, also, saw appellant exposing himself while standing in the yard at his home.

One boy, twelve years of age, testified that on an occasion when he was passing appellant’s home he heard a “cat meow” and that he looked over and saw appellant standing by the bamboo bush with his trousers and shorts down, pointing toward his penis. He could see appellant’s private parts. He stated that on another occasion the same summer, he saw appellant standing in his yard with his trousers and shorts down, turning a flashlight on and off around his waist, and that his attention was directed to appellant’s private parts.

Another boy, thirteen years of age, testified that as he was walking by appellant’s house he heard someone call to him and that he looked and saw appellant in the yard with his pants and underwear down and that appellant turned and faced the witness and called to him.

The third boy, fourteen years of age, testified that he was with the prosecuting witness on an occasion when they saw appellant standing in his yard in the nude.

Appellant did not testify or offer any testimony on the issue of guilt or innocence.

Appellant’s sole ground of error in his brief filed in the trial court is that the court erred in admitting the evidence of extraneous offenses.

In oral argument before this court, counsel for appellant concedes that, under the record, evidence of extraneous offenses was admissible but that error was committed because of the number of extraneous offenses shown.

Appellant made no objection to the testimony of the prosecuting witness but did object to the testimony of the other three boys, on the ground that their testimony constituted proof of extraneous offenses.

The evidence of extraneous offenses was admitted by the court, under exceptions to the general rule, for the purpose of showing identity, intent, motive, or knowledge, of appellant in commission of the offense charged, and the jury’s consideration thereof was so limited by the court in his charge.

In O’Neal v. State, opinion this day delivered, not yet reported, this court held that evidence of unnatural acts by the accused with boys other than the complainant was admissible to show, among other things, the lascivious intent of the accused in a prosecution under Art. 535b, V.A.P.C., for unlawfully enticing a minor child for immoral purposes. Under the facts in the case, the evidence was held admissible under certain exceptions to the general rule prohibiting proof of extraneous offenses.

Under the facts of this case and decisions of this court, evidence of the extraneous offenses was admissible to show appellant’s lascivious intent in committing the offense charged against him.

The burden of proof was upon the state to prove such intent, and the evidence was properly admitted, as an exception to the general rule, for that purpose.

We know of no rule of law which would limit the introduction of evidence admissible to show such intent.

The ground of error is overruled.

The judgment is affirmed.

CONCURRING OPINION

MORRISON, Judge.

I agree to the affirmance of this conviction, but do not do so on authority of O’Neal v. State, No. 40,414, this day decided, as will he seen from my concurrence in that case.

In the case at bar appellant made no overt gesture within the view of the prosecuting witness, and the extraneous offenses in which overt gestures were made were admissible to demonstrate appellant’s intent when he exposed himself to the prosecuting witness.

Judge ONION joins in this concurrence.


author: BELCHER, Judge.

text:
    Charles Robert D. ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 40490.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the possession of marihuana; the punishment was assessed at forty years.

Trial was had after January 1, 1966.

After the jury found the appellant guilty, he elected to have the court assess the punishment, which was done.

No appellate brief has been filed by the appellant with the clerk of the trial court.

Appellant was represented by counsel at the trial and there is no showing that his counsel was appointed by the court or that the appellant was indigent.

The record contains nothing which should be considered as unassigned error under Art. 40.09, Sec. 13, C.C.P.

The judgment is affirmed.


author: DICE, Judge.

text:
    Lynn CHANDLER, Appellant, v. The STATE of Texas, Appellee.
    No. 40461.
    Court of Criminal Appeals of Texas.
    June 21, 1967.

      Russell A. Moran, James R. Horton, Dimmitt, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for forgery; the punishment, four years.

Trial was after January 1, 1966, under the alternate procedure provided by Art. 37.07 of the 1965 Code.

At the trial on the issue of guilt or innocence, the state, over appellant’s timely objection, was permitted to introduce in evidence, as state’s exhibits 3 to 8, certain commitment, turnkey, and release cards showing numerous convictions of appellant for passing worthless checks and for liquor law violations and his confinement in jail by the sheriff of Potter County.

Appellant objected to the exhibits and the testimony relating thereto on the ground that they constituted proof of extraneous offenses and could have no purpose in the case other than to inflame the minds of the jury.

The exhibits were admitted by the court on the question of identity, and the jury’s consideration thereof was so limited by the court in his charge.

The record reflects that appellant was positively identified at the trial as the person who forged the check in- question and no issue was made as to his identity. The exhibits and the testimony relative thereto, showing extraneous offenses, should not have been admitted. Hancock v. State, 123 Tex.Cr.R. 154, 58 S.W.2d 129; Williams v. State, 125 Tex.Cr.R. 410, 68 S.W.2d 501. Under the record, it cannot be said that the evidence was not prejudicial to appellant.

We sustain appellant’s ground of error # 3, and reverse for the error committed.

We observe that in his charge on punishment the court incorrectly instructed the jury that the punishment for forgery was not less than two nor more than five years and should have instructed the jury that the punishment was not less than two nor more than seven years’ confinement in the penitentiary.

Upon another trial the court should, if requested, define the term “another [person]” in his charge to the jury as such term is used and defined in the forgery statutes.

For the error pointed out, the judgment is reversed and the cause remanded.