text:
    Aubrey PHELPS et al., Appellants, v. James W. WADDLE et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Otis White, Morgantown, Marshall Funk, Bowling Green, for appellants.
    Walter Chyle, Jr., Morgantown, Woodward, Bartlett & McCarroll, Owensboro, for appellees.
   CULLEN, Commissioner.

The heirs of H. C. Phelps, deceased (his cousins), have appealed from a judgment upon a jury verdict upholding the probate of a lost will of the decedent which devised substantially all of his large estate to a step-son and the latter’s wife, the appellees.

Before the will was probated, administration proceedings were instituted and one Cecil Wilson was appointed administrator. He employed W. A. Moore as attorney. After the will was probated in the county court the decedent’s step-son qualified as executor and he likewise employed Mr. Moore. On the trial in circuit court Mr. Moore was permitted, over objection, to testify that he drew the will and to state its contents. The appellants contend that under KRS 421.210 as construed in Garnett v. Walton, Ky., 242 S.W.2d 107, Mr. Moore was disqualified by personal interest from testifying.

This Court has held that the potential fee from employment as attorney for the personal representative is not such monetary interest as will disqualify an attorney under KRS 421.210. See Reiter v. Harding, Ky., 290 S.W.2d 829; Cook v. Brown, Ky., 346 S.W.2d 725. Furthermore, in the instant case Mr. Moore did not stand to gain anything from the probating of the will and his employment as attorney for the executor, because he already had employment as attorney for the administrator. We conclude that Mr. Moore was not disqualified from testifying.

The appellants maintain that the trial court erred in permitting the step-son and his wife, who were the principal beneficiaries of the will, to testify that they had read the will and to state its contents. The testimony was objected to on the ground that the reading of the will was a transaction with the deceased concerning which the beneficiaries were disqualified by KRS 421.210 from testifying.

Had there been evidence that the reading of the will by the step-son and his wife was the result of the decedent’s having exhibited it to them for the purpose of their reading it, the witnesses would have been disqualified from testifying what they read because the reading and the exhibiting would have constituted one inseparable transaction with the decedent. Gibbs v. Terry, Ky., 281 S.W.2d 712. But the evidence did not show that the reading of the will was upon its exhibition by the decedent. As a matter of fact, when the attorney for the proponents of the will undertook to ask the step-son who showed the will to him, the attorney for the appellants objected and the question was not answered.

In the absence of a showing that the reading of the will was an incident of a transaction with the decedent the witnesses were not disqualified from testifying to the contents of the will as read by them. Ferguson v. Billups, 244 Ky. 85, 50 S.W.2d 35; Kendall v. Hillsboro & Poplar Plains Turnpike Road, 67 S.W. 376, 23 Ky.Law Rep. 2372.

The appellants contend that one of the attorneys for the step-son was disqualified under KRS 421.210 by personal interest from testifying as to various transactions with the decedent, and therefore objections to his testimony should have been sustained. The contention is not valid because the purpose of the testimony was only to show lack of mental capacity of the decedent; testimony for that purpose is not barred by the statute. See Gay v. Gay, 308 Ky. 539, 215 S.W.2d 92.

Since we hold that the testimony of Mr. Moore and of the beneficiaries of the will was competent, it is unnecessary for us to consider the appellants’ argument that the testimony of other witnesses, as to declarations made by the decedent concerning his will, was not sufficient to establish the contents of the will.

The appellants rather casually argue (without having mentioned the point in the statement of questions presented at the beginning of their brief) that there was insufficient evidence to overcome the presumption of revocation arising from the fact that the will was not found among the decedent’s papers after his death. There was evidence that during the last few years of his life the decedent was mentally incapable of revoking his will and that prior to and even extending into those years he frequently spoke of the will as being in existence. We think the evidence was sufficient to overcome the presumption of revocation.

The judgment is affirmed.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    C. N. SCOTT, Administrator of Estate of George Meissner, Deceased, Appellant, v. Clara PATTERSON, d/b/a Central Kentucky Gas Company and T. J. Hill, III, Administrator of Estate of Cordell Powers, Deceased, Appellees. C. N. SCOTT, Administrator with Will Annexed of Exia Campbell, Deceased, Appellant, v. Clara PATTERSON, d/b/a Central Kentucky Gas Company and T. J. Hill, III, Administrator of Estate of Cordell Powers, Deceased, Appellees. Lloyd MARTIN and Bettie Martin, Appellants, v. Clara PATTERSON, d/b/a Central Kentucky Gas Company and T. J. Hill, III, Administrator of Estate of Cordell Powers, Deceased, Appellees. Margaret MEISSNER, Appellant, v. Clara PATTERSON, d/b/a Central Kentucky Gas Company and T. J. Hill, III, Administrator of Estate of Cordell Powers, Deceased, Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Pat Rankin, Stanford, John L. Davis, Stoll, Keenon & Park, Lexington, Clarence L. Donovan, Bedford, Ind., Marvin Cornett, Stanford, for appellants.
    Pierce Lively, Danville, T. J. Hill, III, Stanford, for appellees.
   PALMORE, Judge.

On the morning of June 9, 1962, a gas explosion occurred in the home of Mrs. Exia Campbell at Crab Orchard, Kentucky, fatally injuring Mrs. Campbell, her son-in-law, George Meissner, and Cordell Powers, a service man employed by the appellee Clara Patterson, d/b/a Central Kentucky Gas Company. Also injured were Margaret Meissner (Mrs. Campbell’s daughter) and Mr. and Mrs. Lloyd Martin, occupants of an apartment in the Campbell house. Suits brought by the Martins, Mrs. Meissner, and the personal representative of the estates of Exia Campbell and George Meiss-ner against the gas company (Clara Patterson) and the estate of Cordell Powers were consolidated for trial and resulted in a unanimous verdict as follows:

“We do not have the evidence necessary to convince the jury that Ordinary Care was not used, therefore we find for defendants.”

The various plaintiffs appeal from a judgment of dismissal entered pursuant to the verdict. Their sole contention is that the trial court should have sustained their motions for a directed verdict and for a judgment n. o. v. on the issue of liability. So'the question before us is whether, in the light of all the evidence on both sides, the only reasonable conclusion to be drawn was that the accident was caused by the negligence of the defendants. Cf. Lee v. Tucker, Ky., 365 S.W.2d 849 (1963); Droppelmann v. Willingham, 293 Ky. 614, 169 S.W.2d 811, 814 (1943).

The only eyewitness who survived to testify was Mrs. Meissner. She and her husband had driven to Crab Orchard from their home in Bedford, Indiana, on Friday, June 8, 1962, to visit Mrs. Campbell. Shortly after arriving in the middle of the afternoon they smelled gas in the dining room, which was located directly over a small basement (about 12? x 12') in which a hot water heater was located. Access to the basement was provided by a stairway from the kitchen, which was adjacent to the dining room. There were three gas appliances in the house, the hot water heater in the basement, the kitchen stove, and ■ a bathroom heater on the upstairs or second floor, all of which were served by L-P gas from a tank battery located outside the house.

In response to a telephone call or calls from Mrs. Campbell the gas company sent Powers, its service man, to check the trouble. Powers had passed the required examination and was licensed by the Department of Public Safety for the handling of L-P gas. Cf. KRS 234.185. He arrived at about 8:30 in the morning. Meanwhile, on the previous evening Meissner had disconnected the gas tank. According to Mrs. Meissner, the first thing Powers did was to turn the gas back on and, after taking a quick look at the kitchen stove, he descended to the basement followed by the Meiss-ners. Mrs. Campbell remained in the kitchen. The basement was lighted, but poorly so, by a drop cord and bulb, with a switch at the head of the stairs. Powers did not have a flashlight. Despite the dimness of light, Mrs. Meissner was able to observe that Powers put a liquid substance on the gas pipe leading into the water heater and that it appeared to bubble. Meanwhile, there was present in the basement a rubberized extension cord of the type ordinarily used by garage mechanics, with a protective cage over the bulb. In order to provide better lighting Meissner proceeded to connect this extension cord by plugging it into a three-way receptacle to which the bulb at the end of the drop cord also was attached. Immediately the light was much brighter, and Mrs. Meissner recalls having thought to herself, “I was not wrong — I did see bubbles.” Just then she heard her husband scream, “Don’t light! ” and the explosion occurred. Though badly burned, she immediately ran upstairs and found her mother on the floor of the kitchen with her hair and clothing afire.

With respect to the interval between the time the extension light came on and the moment of the explosion, Mrs. Meissner had testified as follows in the course of a pretrial deposition taken while she was in the hospital:

Q— “How long was it after George got the light turned on before the explosion took place?”
A— “It seemed just an instant — did-n’t seem very long.”
Q— “When George got the bright light, was it after that you were able to see the soapy substance Powers put on?”
A— “No, I didn’t look after that. It seems like after he got the bright light it was so quick I didn’t see anything.”

Testifying at the trial she said, “There was time enough for me to see and to hear my husband scream. I couldn’t say how long that time was,”

Aside from Mrs. Meissner’s description of the events immediately prior to the accident there were two other items of evidence tending to prove that Powers caused the explosion by using a cigarette lighter. One of these was testimony by two physicians relating statements made by Powers while being treated by them, and the other was testimony by C. N. Scott (personal representative of the Exia Campbell and George Meissner estates) that on the next day (Sunday, June 10) after the explosion he found Powers’ cigarette lighter on the basement floor near the water heater.

Subject to minor discrepancies in their respective accounts of the matter, Drs. T. J. Wright and H. I. Frisbie, operators of a private hospital in Stanford to which Powers was taken shortly after the accident, testified that while they were administering emergency treatment to him Powers volunteered the information that “I struck a light and the explosion happened — I never should have done it.” Dr. Wright’s impression was “that they were ready to test and that either he struck a match or light or whatever to check their work * * *. They were going to check the repair work to see if it was adequate.” At the time, Powers was in a state of great shock and pain for which he had been given narcotics.

This case was tried twice, first in May of 1963 and then in March of 1964. For reasons not disclosed in the record, Drs. Wright and Frisbie did not testify at the first trial. Between the first and second trials a malpractice suit was brought against them, apparently in behalf of Powers’ estate. That litigation had been settled at the time of the second trial, and what we have said here is all the information the jury had on that subject. Powers lived some 2½ months after the explosion, and according to his mother and father “he said he didn’t know how it happened. He said it just happened so quick that he didn’t really know how it happened.” Ernest Murphy, a representative of the Gas Bureau of the Division of Fire Prevention of the Department of Public Safety, testified that in the course of an investigation conducted on the day of the explosion he interviewed Dr. Frisbie and that the doctor said “he felt that Mr. Powers didn’t know how the accident occurred, that he didn’t seem to know how it occurred.” This evidence was admitted for the purpose of impeaching Dr. Frisbie, who had testified to a contrary effect.

The witness Scott went to a Lexington hospital to see Mrs. Campbell and the Meis-sners on the evening of June 9, 1962. While there he was asked to go to the Campbell home to secure some money Mrs. Campbell had in the house and to see if he could find in the basement Mr. Meissner’s billfold containing $110. (Meissner’s nylon clothing had burned almost completely from his body.) Mr. Scott performed these errands on the next morning, June 10. The billfold was found in a broken jug under the staircase leading from the basement to the kitchen. In the process of searching for it, Mr. Scott says he discovered a cigarette lighter “in plain view” on the basement floor 12 to 18 inches from the water heater. He tested it and found it to be in working order. He kept it for about a week and then turned it over to the plaintiffs’ attorney, who sealed it in an envelope and put it in the bank for safekeeping. The lighter bore the initials “F C P” and was identified as belonging to Powers. A guard stationed outside the Campbell home testified that he heard Mr. Scott mention a lighter when he came out of the house after completing his mission there. On the other hand, the witness Murphy, who on June 9, the day before, had investigated the accident in behalf of the Department of Public Safety for the sole purpose of ascertaining, if possible, the source and cause of the explosion, testified that in the course of carefully examining the basement area and the water heater he did not see the lighter. Mr. Murphy also took several flashbulb photographs of the heater and surrounding floor, and these exhibits do not show a cigarette lighter. However, as there was a good deal of debris on the floor, including a mass of rock wool pellets from the insulation over the water tank, it was quite possible for such an object not to have been noticed or to have been caught by the camera, though Mr. Scott says it was “in plain view.”

• The witness Murphy qualified as an expert. Though conceding that the point of ignition “could have” been in the basement, he believed it was not. It was his opinion that the gas was ignited somewhere above ground, around the first floor of the house. He based this theory on a number of factors such as the direction of the explosion’s force as evidenced by the effect on the furniture and the damage to the house, and the location and volume of debris in the basement. Moreover, since the heaviest concentration of third degree burns sustained by Powers was on the back of his body and arms, it seemed likely that the intense heat and main force of the explosion moved toward him from the rear.

The gas line from the tank battery located outside the house led to a “T” connection in the basement, and another line or lines ran from this connection to the appliances upstairs. The point from which the gas escaped was not conclusively established. But wherever the leak was, the case for the plaintiffs is pitched on the theory that the point of ignition was in the basement and that Powers caused the explosion by using his cigarette lighter. No other basis of negligence being suggested, our analysis is confined to that hypothesis.

Assuming for purposes of the argument that the explosion did originate in the basement, the case narrows down to the question of whether reasonable men must of necessity agree that Powers was the culprit. This brings us to the rest of the Murphy testimony. He said, and there is little doubt of it, that L-P gas is so highly volatile that it can be ignited by the action of an ordinary light switch. It will be recalled in this connection that Meissner plugged the extension cord into a receptacle at the end of the drop cord in the basement. Assuming that this action did not provide the fatal spark, there was further testimony by Murphy that at the point where the drop cord entered the head of the light socket the two wires were twisted, and that with a slight movement of the line (for example, from a pull on the extension cord) they could be exposed. If the two wires came into contact in this manner an arc or spark would have resulted.

To us, the most eloquent piece of defensive evidence in the record is the clothing worn by Powers at the time of the mishap. He had on a shirt and trousers. The trousers do not show any marks of fire. The back of the shirt is badly scorched all over, and in places burned through, whereas the front is scorched only partially and to a much lesser degree. Taking this exhibit in conjunction with the Murphy testimony, and without further evidence of an explanatory nature, we cannot avoid a healthy doubt that the explosion emanated from a point in front of Powers rather than behind and probably above him.

We need not decide whether, in the absence of the defensive evidence, the testimony produced by the plaintiffs established a rebuttable presumption or merely a permissive inference (that is, a right to go to the jury). Assuming that a rebuttable presumption had. been created, entitling them to a directed verdict unless reduced to a less persuasive status, the question is whether the defensive evidence injected enough doubt that it would not have been unreasonable for a jury to remain unconvinced that Powers caused the explosion by igniting his cigarette lighter. Lee v. Tucker, Ky., 365 S.W.2d 849, 852 (1963). Without minimizing the closeness of the question, we think it did.

Mrs. Meissner was, of course, a party to the lawsuit and thus an interested witness. The jurors were not compelled to accept her version of the accident at full face value. And even if they did so accept it, and believed that Powers was about to strike his lighter when Meissner shouted “Don’t light,” it does not follow that Powers actually did strike it. It may be that he desisted, or that the explosion was sparked by the extension cord an instant before he was able to strike the lighter. Nor do we feel, under the rather peculiar and to some extent inadequately explained circumstances, that the jurors were compelled to believe the doctors. It must be remembered that the burden of persuasion remained with the plaintiffs at all times. A party not having the burden of proof is not required to adduce “substantial evidence” in support of his defense in order to avoid a directed verdict. It is only necessary that he muddy the water enough that it cannot be justly held that there is but one conclusion reasonable men could reach. Cf. Lee v. Tucker, supra.

The principle of “substantial evidence,” cf. Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S.W.2d 877 (1940), applies to the party having the burden of proof. To hold that a defendant must produce “substantial evidence” in a case where the plaintiff’s evidence, standing uncontradicted and unexplained, would entitle him to a directed verdict, would in effect shift the burden of proof, and we do not believe that is what this court intended to say in Haffler v. McKinney, 288 Ky. 782, 157 S.W.2d 92, 96 (1941), and Threlkeld v. Breaux Ballard, 296 Ky. 344, 177 S.W.2d 157, 161, 151 A.L.R. 708 (1944), cited by appellants in this case. As pointed out in Lee v. Tucker, supra, the burden never shifts. When, after the proof is all in, the plaintiff demands a directed verdict, the question becomes, “Could a reasonable man remain unconvinced?” In this case we must answer in the affirmative.

In closing, it should be mentioned that Powers’ administrator asserted a counterclaim against Mrs. Campbell’s estate for wrongful death on the theory that the accident was caused by Meissner while acting as Mrs. Campbell’s servant. This claim fell victim to a directed verdict at the close of the evidence on the ground, inter alia, that there was insufficient proof of a master-servant relationship. Powers’ administrator cross-appealed but did not submit a brief, so we assume the cross-appeal was abandoned. In any event, it seems obvious that the evidence was not sufficient to support the burden of proof that Meissner caused the accident.

The judgment is affirmed on the appeals and cross-appeal.


author: DAVIS, Commissioner.

text:
    Aaron Lee METCALFE et al., Appellants, v. Vernon HOPPER, Executor of C. B. Hopper Estate, et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      W. Earl Dean, Harrodsburg, for appellants.
    W. A. Wickliffe, Harrodsburg, James F. Clay, Danville, for appellees.
   DAVIS, Commissioner.

The questions for decision on this appeal arise from an automobile accident which occurred in October, 1963, at the intersection of Kirkwood Road and U. S. Highway 127 as the latter highway by-passes Salvisa. Three vehicles were involved in the accident: a passenger car driven by appellee’s decedent, C. B. Hopper; a passenger car driven by appellee Fred B. Ransdell, and a tractor-trailer unit driven by appellant Aaron Lee Metcalfe. C. B. Hopper was killed in the accident. Property damage was done to all three vehicles, and there was property damage to the cargo in the trailer. Appellant Metcalfe and appellee Ransdell sustained personal injuries in the collision.

The personal representative of C. B. Hopper sued Metcalfe, and other appellants, asserting a claim for damages for the wrongful death of C. B. Hopper and for property damage to decedent’s car. Met-calfe counterclaimed, seeking damages for personal injuries, medical expenses and loss of earnings. Other appellants sought recovery from the Hopper estate for alleged damages to the tractor-trailer and the cargo.

Appellee Ransdell, by intervening complaint, sought recovery for personal injuries and property damage against appellants and the Hopper Estate. Appellants and the Hopper Estate each asserted that the accident resulted from the sole negligence of the other, and sought indemnity or contribution, alternatively.

The jury rendered a verdict for Ransdell against appellants and the Hopper Estate, jointly, in the sum of $1,000. The opposing claims of the Hopper Estate and appellants were dismissed, upon the jury’s verdict that the accident was caused by the concurrent negligence of C. B. Hopper and appellant Metcalfe.

The appellants contend that the trial judge should have directed a verdict for them against the Hopper Estate, and that prejudicial error was committed by the trial court’s rejection of competent evidence offered by appellants.

For clarity, we shall refer to the operators of the three vehicles by their surnames : Hopper, Ransdell, and Metcalfe.

Metcalfe was operating the tractor-trailer northwardly on U. S. Highway 127, which is a four-lane highway, affording two lanes for north-bound traffic and two lanes for south-bound traffic; the north and south lanes are separated by a median strip about 25-30 feet in width. Hopper was driving his car eastwardly along Kirk-wood Road, which is an inferior road as it intersects U. S. 127 at the accident site. Ransdell was operating his car westwardly along Kirkwood Road, and was stopped at the stop sign on the east side of Kirk-wood Road, awaiting clearance of traffic on U. S. 127 before entering the intersection.

Hopper had stopped at the stop sign on the west side of U. S. 127 (according to the testimony of both Metcalfe and Ransdell). Hopper then proceeded to drive eastwardly across the two south-bound lanes of U. S. 127 (each lane was 12 feet wide), thence alongside the median strip (some 25-30 feet), and then across the inside northbound lane of U. S. 127 (another 12 feet), and partially across the outside, or right-hand, north-bound lane when his car was struck by the Metcalfe tractor-trailer unit. The officer who investigated the accident fixed the point of impact as 9' 8" east of the east edge of U. S. 127; according to the officer’s estimate, since Hopper’s car was 16' 9" in length, as much as seven feet of the right-hand, north-bound lane of U. S. 127 was occupied by Hopper’s car at the moment of impact. When Metcalfe’s unit collided with Hopper’s car, either or both of the vehicles then struck the Rans-dell car as it sat in its stopped position.

The day of the accident was clear; the road surface was dry. There was a slight down grade for Metcalfe. Sight distance was extremely good — Hopper and Metcalfe could have observed the vehicle of the other at least 3,500 feet away. Skid marks noted just after the accident reflected that the right wheels of Metcalfe’s unit had been pulled off the highway surface onto the right gravel shoulder about 60 feet south of the point of impact. These marks indicated that the Metcalfe unit had proceeded northwardly, at a slight angle away from the center line of the road, until the collision occurred. The marks then were visible to the point at which the Metcalfe unit came to rest, lying on its right side, about 100 feet north of the point of impact and some 30-40 feet east of the east edge of U. S. 127. The trooper’s measurements indicated that the Hopper car was knocked some 124 feet from the point of impact, and the Ransdell car was propelled about 12 feet from its standing position.

There was a wide variance in the evidence concerning the distance separating the Hopper car and the Metcalfe unit at the time Hopper proceeded to cross the northbound traffic lanes on U. S. 127. Metcalfe testified that he was approximately 150-170 feet away when Hopper started across the northbound lanes; a witness who observed the situation from his nearby porch deposed that Metcalfe was 800-900 feet away when Hopper drove into the northbound lanes; Ransdell estimated that Metcalfe was 450 feet (150 yards) away at the time Hopper entered the northbound lanes.

As to Metcalfe’s speed there was also some variance in the testimony. For example, Metcalfe estimated his speed at 50-55 mph; the “porch” witness put Met-calfe’s speed at 65-70 mph, and Ransdell testified that he judged Metcalfe’s speed as about 50-60 mph. It was admitted that the prevailing speed limit at the accident site was 50 mph.

There was evidence indicating that the left tires of Metcalfe’s unit had laid down “skip” skid marks on the concrete road surface. For Hopper it is urged that this circumstance • indicates defective brakes. However, Metcalfe explained that the gravel in which his right wheels were trav-elling permitted a locking of the right wheels, but the weight of the cargo prevented the locking of the wheels on the smooth highway surface. Metcalfe swore, without contradiction, that the brakes on the unit were in excellent working condition.

Metcalfe conceded that he did not sound his horn; he explained this by stating that although he was some 500-600 feet from the intersection when he observed Hopper stopped at the west side of U. S. 127, he was only 150-175 feet from the intersection when Hopper approached the northbound lanes, and assumed that Hopper would stop before crossing the latter lanes.

Appellants insist that our decisions in Chambliss v. Lewis, Ky., 382 S.W.2d 207, Couch v. Hensley, Ky., 305 S.W.2d 765, and Vaughn v. Jones, Ky., 257 S.W.2d 583, require that a directed verdict be accorded them, since Hopper’s negligence was the sole cause of the accident. The cases cited, and others of like import, are based on KRS 189.330(4), which directs drivers along inferior highways to yield the right of way to drivers along superior roads when the latter are approaching “so closely on the highway as to constitute an immediate hazard.” It should be noted that the cited statute concludes with the following wording:

“ * * * but the driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicle so proceeding into or across the through highway.”

Thus it is clear that whether the approaching vehicle on the superior highway is approaching so closely as to constitute an “immediate hazard” is the critical question when examining the negligence of the inferior road driver. In Chambliss, just cited, it was held that the negligence of the inferior road driver was the sole cause of the accident, under the particular facts of that case. We consider the present case distinguishable from Chambliss.

We are now measuring the situation with reference to Metcalfe’s right to recover from Hopper. (The recovery of the other appellants stands or falls with Metcalfe’s right of recovery). The jury’s verdict has established Hopper’s negligence —so it is plain that Hopper’s recovery is barred by Hopper’s contributory negligence. In measuring Metcalfe’s right of recovery we view his situation as if he were the plaintiff, and look to the question of whether the evidence created a jury issue as to Metcalfe’s contributory negligence. In so doing we must weigh the evidence in the most favorable aspect for Hopper.

We find evidence that Metcalfe was exceeding the speed limit—probably very slightly. To this must be added the evidence that Metcalfe could have seen Hopper undertaking to cross the northbound lanes when Metcalfe was yet 800 feet away. If it should be reasoned that the “porch” witness gave evidence so fantastic as to be incredible, we are left with the evidence of appellee Ransdell that Metcalfe was 450 feet from the collision point when Hopper pulled into the north lanes. It is true that Metcalfe had a right to assume that Hopper would yield the right of way—but that assumption vanished when he observed (or in the exercise of ordinary care should have observed) Hopper fail to yield. At that point Metcalfe was charged with affirmative knowledge that Hopper was not yielding. Did he then exercise ordinary care to avoid the accident? Is the evidence so one-sided on this as to preclude any other reasonable conclusion?

It is recalled that Metcalfe was driving on a road providing two full traffice lanes for northbound traffic. A slight deviation of his vehicle to the left, coupled with a release of acceleration—or even some braking of his unit—when he was yet 450 feet from the accident site may well have prevented the accident. At any rate, we are not able to say that the evidence, and the reasonable inferences flowing from it, prohibit a finding of contributory negligence against Metcalfe. For example, there was evidence offered that Metcalfe stated at the accident scene that he thought he could beat Hopper — i. e., that Metcalfe could successfully continue in the right lane before Hopper’s car came into it. The fact that the brakes were applied by Met-calfe when he was only 60 feet from the point of impact lends some credence to that idea. Without belaboring the point further, we conclude that the evidence warranted the court’s denial of appellants’ motions for directed verdict and judgment n. o. v.

Having this view of the case, it becomes unnecessary to decide whether the trial court erred in rejecting evidence tending to show Hopper’s intoxication at the time of the accident. Assuming the evidence to have been admissible, it would have tended to convict Hopper of negligence. The jury’s unchallenged verdict does that anyway, so no prejudice has occurred to appellants on this point.

The judgment is affirmed.

MONTGOMERY, J., dissenting.


author: GREENHILL, Justice.

text:
    W. Guy DRAPER et al., Petitioners, v. Max GOCHMAN, Respondent.
    No. A-10816.
    Supreme Court of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 6, 1966.
    Skelton, Bowmer, Courtney & Burleson, Temple, for petitioners.
    Maverick, Tynan & Gochman, San Antonio, Black & Stayton, Austin, for respondent.
   GREENHILL, Justice.

Under the terms of a lease, Max Goch-man was given the right to a “first refusal” to purchase the interest of his grantor if his grantor “desires to sell or dispose of his interest.” The grantor thereafter borrowed money and executed a deed of trust covering the property to secure the debt. The grantor defaulted, the interest of grantor was sold by the trustee under the deed of trust, and Guy Draper et al., petitioners here, purchased at the trustee’s sale. Goch-man later tendered the amount bid at the trustee’s sale. His offer was declined. So Gochman brought this suit against Draper et al. to establish his right or. title. The main question is whether the “first right of refusal” granted to Gochman in the event grantor “desired to sell” applies to a sale made upon the foreclosure of a mortgage or deed of trust. The trial court, sitting without a jury, decreed that Gochman take nothing. The reasoning of that court was that under the provisions of the lease, Goch-man did obtain a first right to purchase even though the sale was upon foreclosure, but that Gochman had waited an unreasonable time to exercise his right and was barred by laches from asserting his right. The Court of Civil Appeals sitting at Austin reversed. It held that Gochman had not lost his rights by laches, and it remanded the cause for further proceedings in accordance with its opinion. 389 S.W.2d 571.

The trial court made extensive findings of fact which are set out in the opinion of the Court of Civil Appeals referred to just above. In the interest of brevity, they will not be repeated; and we shall reduce the case to the following basic assumptions.

Baxter held a long-term lease on the property. In 1959, he executed a sublease to Gochman. Baxter there granted to Goch-man “a first refusal to purchase the interest” of Baxter in the property in the event that Baxter “during the initial term of this lease desires to sell or dispose of his interest” in the property. [Emphasis ours.] Gochman entered into possession under his sublease and is still in possession.

In November of 1959, Baxter borrowed $15,000 from the First National Bank of Temple, and assigned the rentals from the property to that bank. In January of 1960, Baxter borrowed an additional $15,000 from the Austin National Bank and executed a deed of trust to secure the loan. The deed of trust expressly provided that it was made subject to the sublease to Gochman and to the assignment of rentals provision of the loan from the Temple bank. The Austin National Bank sold its note to Petitioners Draper et al. (acting through a trustee), and the lien was transferred to the purchasers. All of the instruments were promptly recorded. The trial court found that Gochman had actual and constructive notice of Baxter’s debt to the Austin National Bank and of the deed of trust.

In the summer of 1960, Gochman offered Baxter $50,000 for Baxter’s interest. Baxter declined the offer. Petitioners point out that Baxter thus did not “desire to sell.” Gochman points out that this evidenced his interest to protect his possession. Thereafter Baxter disappeared and his whereabouts were unknown at the time of the foreclosure sale.

Baxter defaulted in his payments to the Austin National Bank. Under the provisions of the deed of trust, the owner of the indebtedness had a substitute trustee appointed and called upon him to sell the interest of Baxter to satisfy the debt. The substitute trustee duly posted the notices required under the deed of trust, but Goch-man had no actual knowledge of the sale. Baxter’s leasehold interest in the property was duly sold by the substitute trustee, subject to Gochman’s lease, for $15,000 (the amount of the original debt to the Austin National Bank), and Draper et al., petitioners here, were the purchasers at the sale. This sale occurred in December of 1960.

The trial court found that for the first time on or about January 2, 1962, Gochman made claim to the property and gave notice to Draper et al. that he wanted to exercise his right to purchase. He tendered $15,000 to them which was refused. This suit was brought on January 19, 1962. During this interval, from the sale in 1960 until January, 1962, Draper et al. borrowed $27,500 on the property, paid off the Temple National Bank, and did various other acts. Goch-man, being in possession all the while, had some knowledge of some of the changes that had occurred. Based on this knowledge and failure to act, the trial court held that Gochman lost his rights by laches.

Before the trial of this case, Baxter had returned and asserted a cause of action to set aside the foreclosure sale upon the ground that he did not know he was signing a deed of trust or mortgage to the Austin National Bank. He asserted that he thought he was signing an assignment of rents as he had done with the Temple bank. That cause of action was severed and is not before us. Petitioners contend that this action by Baxter shows that he did not “intend to sell.”

Petitioners Draper et al. further contend that in any event, the “first right of refusal” provision is invalid because it was only an agreement to make an agreement, and is unenforceable because it is completely indefinite as to price and other terms and conditions.

As above stated, Baxter gave Goch-man a right of first refusal to purchase if Baxter “desires to sell or dispose of his interest.” The words “desire to sell or dispose of his interest” are not words of art which have acquired a fixed meaning. They, as well as others such as “first refusal” and “first privilege to purchase,” are used in various contexts and have been given a variety of meanings. 1A Corbin, Contracts (1963) § 261A. It is our view that the words “desires to sell or dispose of” as used in the agreement of the parties here were intended to have, and should be given, their ordinary meaning.

Gochman does not here rely upon the words “dispose of” as giving him the result desired. He does not, for example, contend that his right to purchase would ripen into a present right if Baxter should give his property to his son or wife or convey it to them by will. It is assumed that such a gift or conveyance would be made subject to his right to purchase if the grantees or legatees desired thereafter to sell.

It is the words “desire to sell” which are emphasized here. Petitioners Draper et al. contend that “desire to sell” does not include an involuntary sale upon the foreclosure of a mortgage. Such a sale, they contend, is often made at a distressed price, and not because the owner “desires to sell” but because the mortgagee or trustee has the power and right to sell the property whether the owner desires to sell or not. They remind the Court that lenders for their own protection often will lend substantially less than the market value of the property.

Gochman, on the other hand, contends that Baxter, upon execution of the deed of trust, voluntarily granted to the trustee the power to sell; and that when the sale occurred, it was as a result of an act deliberately authorized by Baxter. It is argued that he voluntarily set in motion a chain of events which resulted in a sale; and Goch-man therefore should have a right of first refusal at the trustee’s sale. In this sense, Baxter “desired to sell.” The position of Gochman is supported in substance by Price v. Town of Ruston (1931), 171 La. 985, 132 So. 653. It is further contended that the trustee should not be authorized to sell free of the right of first refusal when Baxter himself could not do so. And in any event, Gochman contends, he was entitled to actual notice of the trustee’s sale so that he could be present to bid for Baxter’s interest. Gochman’s position is ably and logically presented by his counsel, and is certainly not without merit.

We are constrained to hold, however, that “desire to sell” as here used was intended to cover a voluntary act on the part of Baxter, covering either an offer on his part to sell, or the willingness on his part to accept an offer from a third person. There is no evidence that he ever expressed a willingness or desire to sell. He never fixed a price for which he was willing to sell. What he presumably did have was a desire to borrow money, rather than a desire to sell the property.

Gochman does not contend that at the time Baxter executed the deed of trust he had a “desire to sell” which would then ripen Gochman’s first right of refusal. To so hold would virtually prevent the mortgaging of property on which there was a right of first refusal if the grantor “desires to sell.” It is generally contemplated by both the lender and the borrower that the loan will be repaid. There is no evidence here that the loan transaction with its attendant mortgage or deed of trust was intended as a subterfuge or device to sell the property so as to defeat Gochman’s first right of refusal in the event Baxter desired to sell.

We agree with Gochman that the trustee should not be able to sell the property free of Gochman’s rights. The sale was made expressly subject to his lease. Draper et al. concede that they simply stepped into Baxter’s shoes and succeeded to his rights, and that if they “desired to sell,” Gochman will still have his first right of refusal. Gochman does not contend that the sale was invalid for want of proper notice.

While we find no Texas case which we regard as controlling, cases to which we have been cited convince us that our conclusions are correct. DeVitt v. Kaufman County (1901, writ refused), 27 Tex.Civ.App. 332, 66 S.W. 224; Mecom v. Gallagher (Tex.Civ.App.1947, no writ), 213 S.W.2d 304. Also persuasive is In re Rigby’s Estate (1946), 62 Wyo. 401, 167 P.2d 964.

Our holding is that the trustee’s sale here was not a voluntary sale so as to give Gochman a preferential right to purchase. The purchasers at that sale took the property burdened with Gochman’s right to purchase if they, during the term of Gochman’s rights, desire to sell.

This holding makes it unnecessary for us to pass upon the other points raised by the parties. The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Pablo FRANCO, Appellant, v. The STATE of Texas, Appellee.
    No. 38992.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied April 6, 1966.
    Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary; the punishment, three years.

Emilia Talamentez testified that in September, 1964, she was the owner and operator of a bar in which she sold beer and cigarettes, and that she closed the building about midnight by closing and locking the doors; that on closing she always left a light on in the building; that in September, 1964, the building was forcibly entered by breaking the lock on the door, and that she did not give anyone her consent to break and enter the building or to take any property therein.

Officer Lackey testified that he checked Emilia Talamentez’s bar building, in which a light was on, within a few minutes after it was closed; that while on patrol about 2:50 a. m., September 15, 1964, he noticed the light in the bar was out, and when he shined a light into a window he saw a man start out the door, and then shined the light on the man, who stopped and looked toward him, and he recognized that it was the appellant, whom he had known for some time; that the appellant ran around the rear of the building and escaped. He further testified that the cigarette machine in the bar had been broken into and its “change” box was empty, there was fresh damage to the juke box, and the ice box was open.

The appellant did not testify but offered testimony that he was in another town at the time of the burglary as alleged.

In rebuttal the state re-called Emilia Tal-amentez and she testified that she saw the appellant in front of her bar at 11:30 p. m., before the building was broken into later that night.

During the direct examination of Patrolman Lackey of Pecos, who testified that he saw the appellant in the bar, he was asked by state’s counsel and answered as follows:

“Q Had you ever seen this man before?
“A Yes, I’ve handled him numerous times previously.”

The answer of the witness, in part, was not responsive to the question. No motion or request was made to have the answer or any portion of it stricken. Appellant moved for a mistrial and excepted when it was overruled.

The court at its own instance then instructed the jury not to consider the answer of the witness for any purpose.

It is insisted that the statement of the patrolman was so prejudicial that it would not be removed by the instruction not to consider the answer and that a mistrial should have been granted.

In light of the facts here presented, it is concluded that no reversible error is shown. Monasco v. State, 172 Tex.Cr.R. 528, 361 S.W.2d 208; Campbell v. State, Tex.Cr.App., 373 S.W.2d 747.

It is contended that the trial court erred in admitting in evidence the complaint filed in justice court against him by Patrolman Lackey prior to indictment because it was hearsay; and that the trial court again erred in refusing his motion for a mistrial on admitting the testimony of the county attorney, that the complaint exhibited to him, was signed by Patrolman Lackey on September 15, 1964, charging the appellant with burglary, on the ground that it was hearsay and prejudicial.

The identification of the appellant as the person who committed the burglary as alleged rests solely upon the testimony of Patrolman Lackey. On cross-examination of Lackey, the appellant examined closely his ability to recognize him at the bar, and to positively identify him at the trial as the person he saw at the bar and who escaped. When first asked on cross-examination if he filed a complaint against appellant with burglary, was admissible as bear-next said he did not remember. Then appellant’s counsel asked Lackey if it was customary to file a complaint against a person when he was caught breaking into a building, and he answered “Yes,” and further said that he did not believe that he filed one in this case. Next, appellant asked Lackey if he could be mistaken in his identification of the appellant and he replied “No.”

The testimony of the county attorney that the complaint exhibited to him was verified by Lackey before him, and was dated September 15, 1964, charging appellant, Lackey said he believed he did, and ing on this issue, raised by the appellant, as to the identification of the appellant by Lackey. Further, there is no evidence that the complaint was read before the jury or that they saw its contents. No error is presented.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Willard NEAL, Jr., Harley Lee Moore, Appellant, v. The STATE of Texas, Appellee.
    Nos. 39460-39462.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Firmin A. Hickey, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Charles E. Bonney and Theodore P. Bosch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant, Willard Neal, Jr., also known as Harley Lee Moore, was charged by indictment in Causes Nos. 39,460 and 39,462 with the offense of felony theft and in Cause No. 39,461 with the offense of burglary.

On November 5, 1965, the three cases were called for trial, at which time appellant waived a trial by jury and entered a plea of guilty before the court in each case. Appellant was represented in each case by the same court-appointed attorney, Jack D. Bodiford, Esq., and evidence was presented to the court in the three cases at the same hearing. At the conclusion of the evidence, judgments were entered by the court, finding appellant guilty of the offenses charged and assessing his punishment in each case at confinement in the penitentiary for a term of two years.

Notice of appeal was given by appellant from the judgments of conviction.

The appeal in each case will be disposed of in one opinion.

It is insisted that the judgment of conviction in Cause No. 39,461 should be reversed because the attorney appointed to represent appellant did not waive the ten (10) days allowed to prepare for trial, as provided by Article 494 of Vernon’s Ann. C.C.P. of 1925, now Article 26.04 of the Code of Criminal Procedure of 1965. This contention is based upon the fact that the written waiver of the ten-day period filed in the cause was signed only by appellant and did not contain the signature of his court-appointed attorney.

The record reflects that written waivers were filed in all three cases on the same day and that the waivers filed in Causes Nos. 39,460 and 39,462 were signed by both appellant and his court-appointed counsel.

It is apparent that appellant and his counsel intended to waive the ten-day period allowed to prepare for trial in all of the cases tried at the same time and that the failure of counsel to sign the waiver filed in Cause No. 39,461 was merely an omission. In the absence of an affirmative showing that such was not their intention, no reversible error is presented. See: Hill v. State, Tex.Cr.App., 393 S.W.2d 901.

It is insisted that in Causes Nos. 39,460 and 39,461 the court erred in admitting appellant’s confession in evidence, although not objected to, because he was not adequately advised of his right to counsel before making the same and the confession did not conform to the requirements of Article 38.22 of the Code of Criminal Procedure of 1965.

The confession introduced in evidence contained the statutory warning prescribed by Art. 727, V.A.C.C.P., and, in addition, recited : “* * * That I have a right to consult with a lawyer, which right I hereby waive * *

Such confession was admissible under the law in force at the time of trial.

The contention is urged that, in each of the three cases, appellant was not sufficiently warned of the consequences of his plea of guilty because he was not required to put such plea in writing and under oath.

We find no logic or merit in the contention. The judgment in each case recites that appellant “was admonished by the Court of the consequences of his said plea.” This shows a compliance with the provisions of Art. 501, V.A.C.C.P., in effect at the time the plea was entered.

Art. 517, V.A.C.C.P., now Article 27.13, provides that a plea of guilty or a plea of nolo contendere in a felony case must be made in open court by the defendant in person. There is no statutory requirement that the plea be in writing and under oath.

We overrule appellant’s remaining contention that the court erred in finding him guilty of felony theft in Cause No. 39,462, notwithstanding his plea of guilty, for the reason that no evidence was introduced at the trial to sustain a finding of guilt. It was shown by the testimony stipulated in the cause that a truck of over the value of $50 was stolen from its owner.

The following day appellant was arrested while driving the truck. Such proof was sufficient to show appellant’s guilt and to support his plea of guilty, as required by Art. 12, V.A.C.C.P. MacKenna v. State, 164 Tex.Cr.R. 623, 301 S.W.2d 657; Mason v. State, 167 Tex.Cr.R. 516, 321 S.W.2d 591; Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641; Foster v. State, 170 Tex.Cr.R. 61, 338 S.W.2d 458; Morin v. State, 171 Tex.Cr.R. 138, 346 S.W.2d 327.

The judgments are affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge. MORRISON, Judge

text:
    Charlie Lee FOSTER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39160.
    Court of Criminal Appeals of Texas.
    March 23, 1966.

      Elmer McVey, William S. Thornton, Bryan, for appellant.
    D. Brooks Cofer, Jr., County Atty., William R. Vance, Asst. County Atty., Bryan, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The indictment charging appellant with the murder of Marion John Tremont was returned on March 25, 1965, at which time appellant was seventeen years of age.

The trial which resulted in the conviction of the appellant, with punishment assessed at confinement in the penitentiary for life, began on July 6,1965 and judgment having been rendered on the jury’s verdict and sentence pronounced, notice of appeal was given on August 4, 1965.

The offense for which appellant was tried and convicted was alleged and shown to have been committed on or about the 25th day of March, 1963, at which time the appellant was under 16 years of age.

The statement of facts reveals that the body of M. J. Tremont, the deceased, who had been reported missing, was found shortly after 9 A.M. on March 26, 1963, in a pasture just off of Wilcox Lane, in Brazos County, about 8 miles from Bryan. There was a cedar post lying across his body.

Appellant came to the Brazos County Jail about 7:10 o’clock the next morning and told Deputy Sheriff Fronterhouse that he was the one that had killed Mr. Tre-mont.

Sheriff Hamilton had visited the scene and had seen the body and a hat and other articles in the immediate area and had taken charge of the fence post. In response to Deputy Fronterhouse’s call, he went to his office and talked to appellant who confessed to him that he killed Mr. Tremont.

Appellant’s version of the facts and circumstances surrounding the killing is shown in the following testimony of Sheriff Hamilton :

“Q. What was the first thing that he told you, as best you recall?
“A. Well, he admitted to me this crime, this killing. He told me where Mr. Tremont had picked him up.
“Q. And where was that, sir?
“A. On 23rd and Sims, in Bryan. He then told me that where this happened was on out in the country, and he directed me every turn to the scene of this killing.
* * * * * *
“Q. And what did he say happened there at Wilcox Lane where the body was discovered?
“A. He said they parked the car there, I believe he said they crawled over the gate, and went down to the edge of the woods, and he went on ahead, or got behind Mr. Tremont, one way or the other, and as he came by he fired at him with this pistol.
* * * * * *
“Q. Now, Mr. Hamilton, did he tell you how he killed Mr. Tremont?
“A. He did.
“Q. Will you tell the jury what he told you?
“A. Yes, sir. He said after he had shot at him several times with the pistol, the pistol, he didn’t think would shoot him, and Mr. Tremont had started running back toward the car, and he caught him just before he got to the fence where there is a gate there near, and picked up a cedar post and hit him with it. He said he remembered that he hit him two or three times. He said he might have hit him more, but he did remember hitting him 2 or 3 times, and then he straightened the body out and left.
“Q. Did he tell you what time of day that was?
“A. He said it was shortly after he picked him up.
“Q. And did he tell you he took Mr. Tremont’s car keys?
“A. Yes, sir.
“Q. And did he tell you that he drove Mr. Tremont’s car back to town?
“A. Yes, sir.
“Q. All right, did he tell you how he came back to town?
“A. Yes.
“Q. Tell the jury whether or not he told you he stopped at Nuche’s Store, or a store on the way back?
“A. He told me he did and that he made a purchase there.
* * * * * *
“Q. Did he tell you he made any purchases at any store downtown?
“A. He said he did at the Guarantee Store.
“Q. Did he tell you what money he used to make these purchases?
“A. He did. He told me he had taken Thirty Dollars off of Mr. Tremont’s body, and that he had used part of this money to make these purchases with it.
* * * * * *
“Q. After he made the purchases at the Guarantee Store did he tell you whether or not he drove around town in Mr. Tremont’s car?
“A. Yes, sir, and he mentioned the fact that some boy hollered at him, and called this boy by name.
“Q. And did he tell you then what happened ?
“A. Yes, sir, he said that he drove the car behind the compress there, and he hit a tree with it.”

On cross-examination, Sheriff Hamilton testified:

“Q. In the statement that the boy made to you, did he tell you the reason that he carried Mr. Tremont down to the pasture, — or the reason that Mr. Tremont had asked him to carry him down there?
“A. Yes, sir.
“Q. And what was that statement?
“A. He said he had talked to him about some girls.
“Q. And had he talked to him on several occasions about that same subject matter ?
“A. He told me that when he approached Mr. Tremont he said, ‘Do you remember me? I’m the one that you were talking with about some girls a year or so ago,’ and that is the way that — it was just one other time that was mentioned by Charlie Lee.”

The Sheriff further testified that he found the pistol where appellant said he had thrown it, and found a billfold containing M. J. Tremont’s driver’s license and other cards bearing his name and address as a result of what appellant told him.

Dr. Joseph Jachimczyk, who conducted the autopsy, described two distinct blunt lacerations over the left temporal and parietal areas of the scalp of the deceased and a broken neck, either of which, he testified, could have caused his death. He further testified that the cedar post could have caused such injuries.

Testifying in his own behalf, appellant admitted being present when Mr. Tremont was attacked and admitted that he confessed to killing him, but testified that the deceased told him that he had to get him a girl and he told him no; after he went into the pasture, as the deceased told him to, the deceased came over there and hit him on the arm; that he pulled out the pistol which was loaded with blank cartridges and fired it about five times. Then a truck drove up and a man came over the gate, picked up the cedar post and began beating Mr. Tremont. After he got through beating him, the stranger got Mr. Tremont’s car keys and billfold and handed them to him (appellant) and told him to get in the car and go back to town and tell that he (appellant) did it or he would get him or kill his mother and daddy, and he did so through fear.

The jury rejected appellant’s explanation of the killing and the evidence is sufficient to sustain their verdict.

The trial court did not err in admitting appellant’s oral confession which led to the finding of the pistol, the billfold and its contents.

The fact that appellant was without counsel when he came to the Deputy Sheriff and confessed to him and to the Sheriff did not render his voluntary statement inadmissible. The portion of such confession made after his arrest was admissible under the portion of Art. 727 C.C.P. excepting from its provisions confessions in connection with which the defendant makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt. Riddle v. State, 150 Tex.Cr.R. 419, 201 S.W.2d 829; Angel v. State, 150 Tex.Cr.R. 183, 200 S.W.2d 169; Gage v. State, 159 Tex.Cr.R. 336, 263 S.W.2d 553.

Appellant’s next complaint relates to the following incident which occurred during the cross-examination of Sheriff Hamilton when he was asked: “Q. Did he tell you about Mr. Tremont bothering him about wanting him to get a colored girl to take her down there for sexual relations, did he tell you that?”

The statement of facts reflects:

“At this point in the proceedings the widow of the deceased, who was present as a spectator in the Courtroom, rose from her seat, and in a loud voice said: ‘That’s a lie. That’s a lie. He was trying to protect his skin when he said that God damn liar.’ The Court rapped for order, and asked Mrs. Tremont’s son-in-law, who accompanied her, if he could control the situation. He assured the Court he could, and escorted Mrs. Tremont, who was subdued by this time, out of the Courtroom.”

The cross-examination then continued to its conclusion, at which time the trial judge instructed the jury to disregard the comments and statements of the wife of the deceased, and court was recessed for the day. The following day in the court’s chambers appellant’s counsel moved for mistrial because of the incident.

Assuming that the complaint is properly before us, the court’s failure to grant the belated motion for mistrial was not reversible error.

The record reveals that on March 27, 1963, after Mr. Tremont was killed, petition was filed in the Juvenile Court alleging that appellant was a delinquent child under the law having “committed theft from a person,” and on April 1, 1963, he was found to be a delinquent child and committed to the care, custody and control of The Texas Youth Council in accordance with the provisions of Art. 5143d Vernon’s Ann.Civ.St. He was confined in the Mountain View School at Gatesville, an agency of The Texas Youth Council, until after he was indicted for murder when a bench warrant was issued and he was returned to Bryan.

Appellant contended in his motion for new trial that he was denied due process of law in that the state waited a period of two years before charging him and bringing him to trial.

Point 3 of appellant’s original brief reads in part:

“The Texas Constitution, under Art. 1, & 10, grants to an accused ‘a speedy’ public trial. This wording has been passed on many times when the question has been raised concerning what the term ‘speedy’ means. It is settled that it means no undue delay. Wood v. State, Tex.Cr.App. [171 Tex.Cr.R. 307], 349 S.W.2d 605; Elliott v. State, Tex.Cr.App. [168 Tex.Cr.R. 140], 324 S.W.2d 218; and others. It has been determined that a two month detóy is permissible when the offense was committed two months before the defendant reached his 17th birthday. Watson v. State, 90 Tex.Cr.R. 576, 237 S.W. 298.
“However, in the case at hand, the offense was committed when the Defendant was only 15 years and 3 months old. At that time, he was adjudged a juvenile delinquent and committed to Gatesville. After his 17th birthday, almost two years later, he was indicted for murder, and on July 6, 1965, was brought to trial and assessed a life sentence.
“In Hultin v. State, 171 Tex.Cr.R. 425, 435, 351 S.W.2d 248, Judge W. T. McDonald, in recognizing that an injustice could arise under the law as it stands states ‘that the power to prevent such occurrence is a legislative and not a judicial function.’
“It is Appellant’s contention that the delay involved in this case violates his Constitutional guarantee of a speedy trial, that the Constitution is the ultimate record of the Legislature, and anything to the contrary is ■ unconstitutional and therefore of no force and effect.
“As recognized by the Court in the Huitín case, there must be a limit somewhere. It is Appellant’s position that this limit has been reached under these circumstances.
■ “The record in this case affirmatively shows that this defendant did not receive a fair trial and was denied due process of law, and to permit the verdict and judgment in this case to stand would be a great injustice to him.”

The decisions of this Court, including those cited by appellant, construing the statutes in effect at the time appellant was indicted, tried, convicted and gave notice of appeal, are to the effect that it was not error to wait until a child is 17 years of age to prosecute him as an adult for a murder committed when he was under 15 years of age. The age of the defendant at the time of the trial and not at the time of the offense controls. Roberts v. State, 153 Tex.Cr.R. 308, 219 S.W.2d 1016; Wood v. State, 171 Tex.Cr.R. 309, 349 S.W.2d 605; Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929; Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248; Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106.

House Bill 444, enacted at the last legislature, amending certain sections of Art. 2338-1 V.C.S. (Acts 59th Leg.1965, p. 1256, Ch. 577) was approved June 17, 1965. It did not become effective until August 30, 1965, hence was not in effect at the time this case was tried and decided in the trial court.

The provisions added to Art. 2338-1 which concerned us to such extent that the case was re-submitted and re-argued are those which might be construed as barring the trial of any defendant as an adult under any conditions upon a showing that such defendant was under 16 years of age at the time the offense was committed. If this be so, the decisions of this Court in the cases above cited, as to such a defendant under 16 years of age at the time he committed the offense, have been overruled and neither this nor any future conviction of such a defendant without regard to his age at the time of his trial as an adult can stand.

One portion of Section 6 of Article 2338-1 as amended by House Bill 444, Acts 59th Legislature 1965, p. 1256, Ch. 577, provides for the certification of a child 16 years of age or older by the Juvenile Court for criminal proceedings with the provision that no child under 16 years of age at the time the offense is committed shall be so certified.

The Caption of the Act gave notice that it was “providing for transfers of certain cases in Juvenile Courts from the jurisdiction of Juvenile Courts to the jurisdiction of the other courts in this State” and was “providing that certain delinquent children shall be subject to the penal laws and criminal prosecution the same as if they were adults.”

The above portion of amended Section 6 conforms to the purpose and intent of the Legislature as expressed in the emergency clause: “The fact that the present law is inadequate to curb juvenile delinquency in this State creates an emergency * *

We find it difficult to understand the further provisions of Section 6 as amended which reads:

“[A]nd no child under sixteen (16) years of age at the time the offense is committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court, and all such offenses committed by children not so transferred shall be subject to disposition by the Juvenile Court only.”

If, under the rules of statutory construction, there is any way to construe these provisions so as to conform to the notice in the Caption, and to the purpose and intent of the Legislature as indicated by the Caption and the emergency clause, and leave a statute that is not contradictory, vague and uncertain, we have been unable to find it.

The Caption gave notice to the Legislature and the public that House Bill 444 would provide that certain delinquent children shall be subject to the penal laws and criminal prosecution the same as if they were adults, but no notice that the act would provide that male defendants over 17 and females over 18 years of age would no longer be subject to but would be exempt from such penal laws and criminal prosecution if they were under 16 years of age at the time they committed the crime.

That portion of the amendment of Section 6 of Art. 2338-1 which provides “no child under sixteen (16) years of age at the time the offense was committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court, and all such offenses committed by children not so transferred shall be subject to disposition by the Juvenile Court only,” is so indefinitely framed and of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, and must be regarded as wholly inoperative. Art. 6 P.C.; Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112.

Under the holding of this Court in Ex parte Meyer, 172 Tex.Cr.R. 403, 357 S.W.2d 754, and cases cited, such portion of the statute is likewise invalid because the Caption of the Act is misleading and fails to give notice that persons under 16 years of age at the time the offense was committed were to be exempted from penal laws and criminal prosecution.

Having decided that the prosecution of the appellant as an adult for the murder of M. J. Tremont is not barred by reason of House Bill 444, we next consider whether such prosecution is barred by reason of appellant’s having been placed and held in custody as a juvenile delinquent pursuant to his commitment by the Juvenile Court upon a finding that he was a delinquent child in that he “committed theft from a person.”

No contention has been advanced by appellant’s counsel that appellant’s prosecution as an adult is barred by reason of his commitment and custody in the Juvenile Court proceedings. In fact counsel for appellant argue that the items found as a result of appellant’s oral confession “may have connected him with the offense of 'theft from a person’ (for) which Defendant was originally ’ tried (in the Juvenile Court proceeding) but were in no wise involved in the murder.”

The supplemental transcript filed in this Court after the case had been set for resubmission contains a certification by the trial judge:

“ * * * that the defendant, then age 15, was committed to the Texas Youth Council on a charge of theft from the person under testimony admitted in the Juvenile Court, the evidence showing that $30.00 in cash and an automobile were taken from M. J. Tremont.
“The defendant remained at Gatesville under the control of the Texas Youth Council until shortly after he became 17 years of age when he was brought back by the order of this Judge to stand trial for the felony offense of murder with malice aforethought * * *.
“In this case and in Brazos County, Texas, the Judge of the 85th District Court and the Judge of the Juvenile Court are one and the same person, acting in both capacities.
* * * * * *
“The District Court of Brazos County never assumed any jurisdiction of the defendant until the defendant became 17 years of age, and the Juvenile Court of Brazos County, Texas never assumed any jurisdiction whatsoever of the defendant upon any charge of murder. If there was ever any charge of murder against the defendant prior to his reaching the age of 17 this Court was not aware of it, and such charge, if any, would have been against the express Orders of this Court, acting in both capacities.”

The evidence adduced at the trial of the appellant for murder and the facts certified by the District Judge who presided in the Juvenile Court proceedings and also at the murder trial distinguish this case from Garza v. State, Tex.Cr.App., 369 S.W.2d 36, and account for the fact that appellant’s able court appointed counsel have made no contention that he was deprived of due process under the 14th Amendment to the Constitution of the United States under the decision of this Court in Garza v. State, or under Sawyer v. Hauck, 245 F.Supp. 55, wherein the United States District Court for the Western District of Texas, in a post conviction proceeding, set aside the holding of this Court in Ex parte Sawyer, 386 S.W.2d 275, and found that Sawyer was denied due process.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

This underprivileged colored boy has been denied due process of law, and the record in this case affirmatively asserts it. What I say should in no wise discredit the conscientious and considerate trial judge who tried this case. This boy was fifteen years and three months old when the offense for which he presently stands convicted was committed. He was committed to Gatesville under evidence admitted before the juvenile court showing that he had taken $30.00 in cash and an automobile from M. J. Tremont, and was there confined until he was seventeen. He was then returned to Bryan, tried again and given a life sentence for killing M. J. Tremont at the time he took the $30.00 and the automobile.

In Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, (1936), this Court speaking through Presiding Judge Morrow in a well considered opinion said:

“In the present instance, the proof is conclusive that, in the appellant’s conviction for murder, he was convicted of the same transaction and upon the same evidence as that upon which he was previously convicted of the offense of robbery with firearms.”

The opinion of the majority is contrary to the rationale of this Court in Garza v. State, 369 S.W.2d 36, and the holding of the United States District Court for the Western District of Texas in Sawyer v. Hauck, 245 F.Supp. 55.

I dissent with vigor as I did in Ex parte Martinez, Tex.Cr.App., 386 S.W.2d 280, and Ex parte Sawyer, Tex.Cr.App., 386 S.W.2d 275.


author: McDONALD, Presiding Judge. DICE, Commissioner.

text:
    Calvin SELLARS, Appellant, v. The STATE of Texas, Appellee.
    No. 38620.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Feb. 23, 1966.
    Second Motion for Rehearing Denied March 30, 1966.

      Howard O. Lake, Rex Emerson, Court-appointed attorneys, S. John Odom (on rehearing only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is robbery with firearms; the punishment, death.

The appellant was jointly indicted with Sam Hoover, John Oscar Young, and Samuel Spivey. A severance was granted, and appellant was tried alone in this case. The defendant, Sam Hoover, was convicted on the second count of the same indictment as an accomplice to robbery with firearms, and was given a term of sixty years confinement in the Texas Department of Corrections. His case was affirmed by this Court in Hoover v. State, Tex.Cr.App., 390 S.W.2d 758. John Oscar Young’s case [Ex parte Young, Tex.Cr.App., 397 S.W.2d 74] is currently on appeal before this Court.

The record is voluminous, but the evidence regarding the robbery is substantially the same as that in the Hoover case. However, it is necessary for us to here recite it in detail because of some testimony by different witnesses and because different contentions are made in the two cases, and the two convictions were upon different counts of the indictment.

On the evening of the day named in the indictment, three masked men descended on the Schepps’ home on Memorial Drive in Houston. Outside the home they accosted Mrs. Tuck, an elderly governess employed by the Schepps, and knocked her unconscious. Two of the robbers, armed with a pistol and sawed-off shotgun, went into the main house to subdue Mr. and Mrs. Schepps and the third brought Mrs. Tuck into the house shortly thereafter. For some three hours Mr. and Mrs. Schepps and Mrs. Tuck were confined to a bedroom on the second floor of the Schepps home by the three intruders. The Schepps’ ten-month old infant was threatened, and a shot fired into the baby bed where the child lay. All three victims were bound, gagged and repeatedly struck and kicked. The masked men were in search of a large sum of money they believed to be on the premises, and set about to compel Mrs. Schepps to reveal its whereabouts. Mrs. Schepps was burned with a red-hot butcher knife across her upper abdomen; she was burned with cigars and cigarettes on her face and various parts of her body; an electric lamp cord was torn from the lamp, plugged into the wall, and she was repeatedly shocked with the loose end on her teeth, breast and private parts; as a result of a blow to her face, her jaw was broken and some of her teeth knocked out; a fireplace poker and one of the pistols were placed in her vagina; as the robbers were leaving, one of them, with no provocation whatever, shot her in the thigh with a .44 magnum pistol as she lay prostrate on the floor. She was taken to a hospital in a semi-conscious condition and remained there for sixteen days. Mr. Schepps was hospitalized for a like period of time as a result of broken ribs, a serious head and eye wound and other injuries. Mrs. Tuck’s physical injuries were not so serious, and she remained in the hospital a shorter period of time.

In the course of the robbery, some $3,900 in money, a man’s ring containing a round-cut diamond, a woman’s necklace with an emerald-cut diamond, and various other articles of jewelry were taken from the Schepps’ home. The stone in the diamond ring weighed 4.83 carats; the one in the necklace, 2.70 carats. State’s witness, Mrs. Marjorie Gibson, testified that she found articles of clothing in a garbage can in front of her home, some IS blocks from the home of this appellant, on the morning following the robbery. The articles included a pair of man’s slacks, a black shirt, a hat, a pair of gloves and rolls of adhesive tape. An examination of them revealed fibers identical with the carpet from the Schepps’ home, a human hair found to be identical with that later removed from appellant, and traces of human blood of the same type as Mr. Schepps’ blood.

The officers who recovered the articles of clothing recognized the trousers as similar to the ones they had seen appellant, Sel-lars, have on during a previous arrest.

On the afternoon of March 17th, after leaving the place where he worked, the appellant was arrested by two detectives of the Houston Police Department. The arrest occurred at approximately 4:00 p. m. The appellant, thereafter, made a written statement, confessing to his participation in the crime and implicating John Young and Samuel Spivey. This written statement was completed at approximately 10:00 p. m. on the 17th day of March, 1964. The statement was not signed at this time but officers, accompanied by the appellant, went to a place along the Gulf Freeway where the appellant had said that items taken in the robbery had been thrown. At approximately midnight on the same day, the appellant was taken to police headquarters where he signed the written confession he had already made. In the statement which 'he made, appellant related in detail some of the incidents that took place during the robbery, including his participation in the torture of the victims of the robbery and his taking of a portion of the money and jewelry obtained in the robbery. .

The evidence in this record also showed that spent bullets recovered from the victim’s home had been fired ■ from a gun which had been in the possession of John Oscar Young a short time after the robbery, which he had given to another party.

It was further shown that after the search of the co-defendant Sam Hoover’s home, certain loose diamonds were recovered which were identified by the victim, and by the j ewelers who had mounted them for the victim, as being those owned by the Schepps.

Another witness testified that he was in the office of Sam Hoover on March 12th; that the co-defendant John Oscar Young was there; that after Young had left, Hoover showed the witness a man’s ring containing a large diamond. Hoover also showed the witness a woman’s brooch or pin. The defendant Hoover gave this witness and his mother and family money to leave the State, and they did leave the State and were brought back only after diligent search by investigators who found them in Kentucky.

The record reflects that witnesses saw a ear, of similar model and color to that belonging to appellant, parked close to the Schepps’ residence at the time of the robbery.

A Houston Police Officer, C. V. Stone, testified that as a result of a conversation with Calvin Sellars on March 20th, he went to the home of the appellant’s mother; that the appellant helped him recover property and helped make an itemized list of some of the property taken in the robbery. The property consisted of a watch, several pairs of cuff links, and other jewelry. The appellant told the officer, in the same conversation in which he told him where the fruits of the crime could be recovered, that he, John Oscar Young, and Samuel Spivey had been involved in the robbery; that they went to the scene of the robbery in the appellant’s automobile, and further related to him some of the atrocities that had been committed upon the victims of the robbery. The appellant also related to the officer that Sam Hoover had sent them to the scene of the robbery and that while they were there, they received instructions from him.

The appellant took the stand and testified in his own behalf, denying any participation in the robbery, and testified that his confession was the result of coercion and duress.

The mother of the appellant testified that on the night that the robbery was committed, her son was present in her home with his wife and two babies.

Steve Young, who was also present at the mother’s house, testified that the appellant was there during the time he was present, which was from about 7:00 p. m. until 8:45 p. m.

The younger brother of the appellant, Lucky Sellars, also testified that Calvin was at his mother’s residence on the night in question.

The evidence is amply sufficient to support the jury’s verdict.

There were no formal bills of exception brought forward in the record, and there were no objections to the Court’s charge. No requested charges were presented to the Court.

We shall discuss appellant’s various contentions of error in the order that he urges them in his brief.

First, appellant contends that his written confession was inadmissible as a matter of law. He says that it was not admissible upon four grounds; namely, (1) it was involuntary ; (2) that it was the “fruit” of an unlawful arrest under the 4th and 14th amendments of the United States Constitution ; (3) that it was taken at a time when he was without counsel in violation of the 6th and 14th amendments to the United States Constitution. He here relies upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and other cases cited by him; (4) that a proper predicate had not been laid for the introduction of the written confession under Art. 727, Vernon’s Ann.C.C.P.

The examination out of the presence of the jury, on the voluntary nature of the confession, consumed some 350 pages of the lengthy statement of facts. At the conclusion of this examination, the trial judge held the confession admissible as a matter of law, finding that it was freely and voluntarily given. The careful trial judge entered an order and findings of facts on the separate hearing on the issue of the voluntary nature of the confession, in which the Court found the confession to have been voluntarily made. We find no error in the action of the trial court in admitting the confession and finding it to he admissible as a matter of law and that it was freely and voluntarily given. The appellant also testified and produced the same evidence in the presence of the jury, as to-his version that the confession had been coerced and involuntarily made. The state again rebutted this testimony by witnesses, as it had done out of the presence of the jury. Under proper instructions the jury resolved the issue against the appellant. We find no merit in his two contentions numbered (1) and (4) above.

It is apparent to us, from the record, that the officers who arrested the appellant had credible information that the Schepps robbery had been committed and evidence that led them to believe the appellant was implicated in it. It is further reflected from the record that these officers also were aware that a warrant had been issued for the arrest of the appellant as a parole violator; they knew that appellant’s wife had information that the officers were looking for appellant, and they felt that he might flee. The testimony shows that they did not have time to obtain, and could not obtain, the warrant which had been issued before his arrest. We hold that the arrest under these circumstances was a legal arrest. We held in Pennington v. State, Tex.Cr.App., 364 S.W.2d 376, under a similar set of facts to those in this case that the officers were authorized by statute to there arrest persons wanted for robbery without a warrant. We also held in Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133, certiorari denied, 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151, that the facts there adduced were sufficient to authorize an arrest without a warrant under the provisions of Art. 215, V.A.C.C.P. Without unduly extending the length of this opinion, we feel that the fact that a warrant had been issued for the arrest of appellant as a parole violator by the officers who had knowledge that the warrant had been issued, would remove any doubt as to the lawfulness of appellant’s arrest. However, we remain convinced that no warrant was necessary under the facts and conditions of this case. Accordingly, appellant’s foregoing contention (2) is overruled and is without merit.

We see no merit in appellant’s foregoing contention, numbered (3) above. Under the facts, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, is not applicable. Appellant did not request counsel. He was not denied the right to assistance of counsel. He was warned that he did not have to make any statement. Hinkley v. State, Tex.Cr.App., 389 S.W.2d 667. Also, see Corry v. State, Tex.Cr.App., 390 S.W.2d 763, and Miller v. State, Tex.Cr.App., 387 S.W.2d 401.

Appellant further complains of the action of the trial court in admitting into evidence State’s Exhibit #8, consisting of a jar of miscellaneous jewelry, and also of the court’s action in admitting into evidence the oral confession of appellant, admitting participation in the offense and leading officers to the alleged “fruits of the crime” on the grounds that the Exhibit was not shown to have been taken in the robbery. Officer Stone testified that he recovered these items at the direction of appellant and his oral confession of the offense. We find no merit in this contention and it is overruled.

Finally, appellant contends that the trial court erred in not permitting him to show that the co-defendant, Samuel Spivey, had been granted immunity, and that the case against him had been dismissed. We find nothing in this record reflecting any testimony being adduced from Samuel Spiv-ey. Spivey testified in the Sam Hoover ease, but not in this one. The disposition of the case against Spivey was immaterial as to this appellant.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that we were in error in overruling his contention that a proper predicate had not been laid for the introduction of his written confession in evidence, under Art. 727, V.A.C.C.P., because the record does not show that he was duly warned before signing the statement.

We have again examined the record in the light of such contention and find that Officer J. E. Hodges, the person to whom the confession was made, testified positively that before he took the statement from appellant (state’s exhibit #30), which was reduced to writing and signed by him, he gave appellant the legal warning printed therein. The contention is again overruled.

We also remain convinced, as stated in our original opinion, that Escobedo v. Illinois, supra, is not applicable under the facts.

Appellant further insists that we were in error in upholding the legality of his arrest and relies upon certain relatively recent federal cases, including Collins v. Beto, 348 F.2d 823 (5th Cir., 1965).

The fact that a warrant had been issued for appellant’s arrest as a parole violator distinguishes the case from those cited. Under the facts and circumstances shown, appellant’s arrest was lawful.

The contentions are also made by appellant that his conviction should be reversed because his constitutional right to counsel was violated and evidence was suppressed by the district attorney’s office.

While the record reflects that certain restrictions were imposed with reference to attorneys seeing appellant in jail, there is no showing that he was denied the right to see an attorney of his choice. The record does not support the contention that evidence was suppressed by the district attorney or any member of his staff. The contentions are overruled.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Ex parte Walter Bernard KORN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39557.
    Court of Criminal Appeals of Texas.
    March 23, 1966.

      Roy Q. Minton, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an Order of the 147th District Court of Travis County denying a reduction in bail.

The record reflects that petitioner was convicted in that Court and sentenced on July 15, 1965, to two years confinement in the Texas Department of Corrections for the felony offense of “Unlawful Possession of Marihuana”. Appeal was duly perfected to this Court and recognizance entered into in the sum of $5,000.00. On January 20, 1966, the District Attorney of Travis County filed with the 147th District Court of that County a Motion to Increase Bond, alleging in substance that petitioner had been convicted and currently had an appeal pending in this Court; that petitioner had been arrested by the FBI for the federal felony of Bank Robbery while this case is on appeal and that this petitioner was arrested (yesterday at the time the State’s Motion was filed) on January 19, 1966, in the commission of four burglaries of coin operated machines; that the petitioner has a long criminal record and is a known vagrant and that he will continue to violate the criminal laws of this state unless he is kept in jail until the mandate can issue from this Court, or until he can be tried on the recently committed felonies. The 147th District Court granted the foregoing motion of the state and set this recognizance bond in the sum of $100,000.-00, thus increasing the amount by $95,000.-00.

An alias capias was issued as a result of said Order and petitioner remanded to the County Jail of Travis County, where he still remains, in lieu of bond in said sum of $100,000.00.

Petitioner was indicted for the four felony offenses of burglarizing parking meters, alleged to have been committed on or about January 20, 1966, and his bond was set at $25,000.00 in each of these four cases. The record reflects that Travis Erwin, a co-principal, was granted bail in each of these four cases in the sum of $2,500.00 each.

It is apparent from the record that petitioner does have a long criminal record. The able District Attorney takes the position that it is inconceivable that such a person as petitioner, who has been convicted of the felony offense of possession of marihuana by a jury, while this case is on appeal, commits five additional felonies, one of them being the federal offense of burglarizing a bank, should be permitted to continue at large while he has a conviction which is on appeal. The record further reflects that the able trial judge made virtually this same observation about petitioner when he denied petitioner’s application for the Writ of Habeas Corpus and continued in effect the bonds aggregating $200,000.00. While the writer personally feels that there is merit in the observations of both the District Attorney and the Trial Judge, giving tangible effect to such observations is a function of another branch of the government and is not within the functions of this Court. The statutory law of this state does not provide for the denial of bail in such situations.

We are of the opinion that the learned trial judge fell into error in entering the Order of January 20, 1966, increasing the amount of bail under the recognizance bond from $5,000.00 to $100,000.00.

The holding of this Court in Williams v. State, 130 Tex.Cr.R. 124, 92 S.W.2d 1036, 1037, convinces us that the trial Court was without jurisdiction of this cause at a time when it was pending before this Court. Art. 828, Vernon’s Ann.C.C.P.; also, see Ray v. State, 154 Tex.Cr.R. 362, 227 S.W.2d 216; Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133, certiorari denied 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151. Further, we adopt the reasoning set forth as follows:

“A judgment granting bail is final, as to the state, and even to the accused, unless he should seek to reduce the amount of bail granted, by appeal or otherwise.” Augustine v. State, 33 Tex.Cr.R. 1, 23 S.W. 689; Jenkins v. State, 45 Tex.Cr.R. 253, 76 S.W. 464.

This part of the judgment is accordingly reversed and bail again fixed in that case in the sum of $5,000.00.

In setting bail,

“ ‘the nature of the offense and the circumstances under which it was committed are to be considered,’ as well as that it should be sufficiently high to give reasonable assurance that the undertaking will be complied with.” Merwin v. State, 171 Tex.Cr.R. 279, 347 S.W.2d 722.

Using this criterion, which we think to be a correct one, bail in the sum of $25,000.00 in each of the four cases for which petitioner stands indicted for burglarizing parking meters, is excessive. The judgment of the trial court is reversed and the petitioner granted bail in the sum of $5,000.00 in each of the four cases in question. Ex Parte Maynor, 156 Tex.Cr.R. 574, 244 S.W.2d 984; Ex Parte Rutherford, 133 Tex.Cr.R. 469, 112 S.W.2d 469.


author: MORRISON, Judge.

text:
    Ruby Lee TERRELL, alias Velma Hope Cardriche, Appellant, v. The STATE of Texas, Appellee.
    No. 39455.
    Court of Criminal Appeals of Texas.
    March 23, 1966.

      William B. Portis, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and James A. Mosley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault; the punishment assessed by the trial court without the intervention of a jury was 75 days in jail.

The State’s evidence reflects that while the prosecutrix was enjoying a soft drink in the company of two companions at the Weeping Turnip Cafe in Harris County, she overheard the curses and violent language of one Annie Lee Dawson, who owed prose-cutrix two dollars and who was sitting with appellant at a nearby table. The prosecutrix asked Annie Lee if she was talking about her, whereupon Annie Lee pulled a knife and started for her. At this juncture, another companion of appellant, Annette King, drew a pistol from her purse and snapped it at prosecutrix, without result. Prosecutrix then retreated into the kitchen of the cafe and pulled an unopened razor from her purse. The appellant followed with the gun she had taken from Annette and trained it on prosecutrix, ordering her to drop the unopened razor. Prosecutrix complied, and when she tried to escape, appellant picked up the razor, pursued her and cut her numerous times about the face and body.

Appellant, testifying in her own behalf, admitted the cutting, but stated that prose-cutrix cut her with the razor first and thereafter hit her in the head with a full bottle of beer. She further stated that she did not have a pistol.

Appellant contends that the record fails to show serious bodily injury, that it also fails to show that the weapon used was a deadly weapon, and that the State failed to show that the assault was committed with a premeditated design and by the use of means calculated to inflict great bodily injury. The information here charged that appellant “did then and there with a knife under circumstances not amounting to an intent to murder or maim, in and upon Ruby Zeno, commit an aggravated assault and did then by means aforesaid attempt to cut and did cut the said Ruby Zeno.”

Clearly the offense charged comes within the provisions of Article 1147(10) Vernon’s Ann.P.C. and constitutes circumstances making the assault aggravated.

The word “knife” being a generic term includes a razor such as that used by appellant. Harper v. State, 133 Tex.Cr.R. 255, 110 S.W.2d 67.

The court having found against the appellant on the issue of self-defense and the evidence being sufficient to support the conviction, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Ex parte Eugene K. SYKES, III.
    No. 39442.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Joseph Abraham, Jr., El Paso, for appell-lant.
    W. Barton Boling, Dist. Atty., Mike J. Thompson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody to be extradited to the State of Arizona.

The statement of facts agreed to be a true and correct statement of all the evidence introduced in the case consists only of the testimony of appellant elicited by his counsel.

The Executive Warrant of the Governor of Texas is not found in the record, though the order appealed from recites that it was considered. The same is true as to the Requisition of the Governor of Arizona, and supporting documents.

In the absence of the Executive Warrant or other evidence offered by the state, there was no showing that appellant was lawfully restrained.

The order remanding appellant for extradition is reversed and the cause remanded.