author: WOODLEY, Judge.

text:
    Katherine Yvonne TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 37405.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.

      Jack W. Knight, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Ruben Hope, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is child desertion; the punishment, three months in jail.

The complaint and information filed March 27, 1964, alleged that the appellant was the mother of “Infant son whose name is unknown to affiant,” and that on or about the 1st day of March, 1964, she “did then and there unlawfully and wilfully desert her said child, the said Infant son whose name is unknown to affiant.”

Trial was before the court on a plea of not guilty.

The evidence introduced by the state reveals the following:

On the morning of March 1, 1964, Paula Ann Herrera, an eleven year old school girl, and her younger sisters, Mary Ruth and Aurelia, were walking through an alley on their way to church when they heard a wee voice crying. Looking down, they saw a naked baby lying on a blanket on a pile of leaves or grass. The children ran for help.

Paula Ann returned to the scene with Mattie Jo Chesson and her sister and showed them the baby. Mattie Jo touched the baby and found it was cold and she told her sister to go get their daddy. She did so and he came and took off his shirt and put it on the baby.

Paula reported to her step-father and when he arrived at the scene the police had the baby in an ambulance ready to take it to the hospital.

Ten year old Mary Ruth Herrera testified that she noticed blood on the blanket but “there wasn’t any blood on the baby, but he was very dirty” and “the baby was blue.”

Mattie Jo Chesson testified that when she arrived and saw the baby “at first it was laying there on this little blanket and was all dirty, and I bent down and felt of his chest to see how cold it was and to see if it was breathing or anything, and he was real cold and he was turning blue around the mouth * *

J. W. Dunn, Accident Investigator for the City of Houston, who received an ambulance call, testified that it had been raining two or three days and the alley was muddy; that he was directed to “a little bundle over on a pile of leaves and I ran there and there was a new born baby in the bundle * * *. There was a shirt and blanket over it and a white blanket that had been under it * * ⅜ the weather was getting pretty bad, it had not started sprinkling yet, but it looked like it might any minute, and I picked the baby up and put him in the car until the ambulance arrived * * * approximately four or five minutes after I got the baby into the car.”

Mary Sue Jordan, employed by Harris County Probation Department, testified that while the baby was in custody and the Probation Department was attempting to find out who the mother was, she went to the neighborhood where the baby was found; talked to numerous persons and requested information. This was 13 days after the baby had been placed in their custody.

Later in the day she received information by telephone. She called the police department and met Officer Deere and Policewoman Bolin (or Berner) at 702 Cortland, which was about a block from the alley where the baby was found.

The appellant arrived a few minutes later and went into a room with Officer Bolin.

Appellant’s oral statement to Policewoman Bolin, admitted without objection, includes the following: “She told us she had had the baby there at the house, and she had the baby on the afternoon of February 29th, she delivered it herself and placed the baby in a box and then put it on the dresser, and that evening about seven o’clock when it got dark she took the baby out of the box and took it outside and placed it on a pile of leaves out by her house in the alley way, and she placed it there because she couldn’t take care of the baby and thought somebody would find it. * * * she told me she wrapped the baby up in a blanket.”

Appellant’s confession, which was voluntarily made and reduced to writing after proper warning, was introduced in evidence without objection and reads, in part:

“I have been divorced from my husband Williams Turner for three years. During our marriage we had three children. * * * On February 29th, 1964 I woke up in the morning and I knew I was in labor. My children got up for the day and I layed on the couch in the living room and they played outside all morning. I was on the couch so that I could watch them and about noon the pains started getting longer and harder and I called the children in the house and gave them some lunch and then I put them to bed and put some toys in bed with them. I got back on the couch and I had the baby by myself. I cut the cord with a pair of scissors and then I wrapped him in a white baby blanket. I think it was around two o’clock when I had him. I put the after birth in some newspaper and then wrapped it in brown garbage sacks and I put it out with the garbage. I cleaned everything up and I put the baby in a box that I had gotten groceries in and I put him on my dresser. I just hoped that the children wouldn’t hear him cry or anything. He just slept all day. That evening after it got dark I got the boys interested in watching television and I took the baby in the box as far as my kitchen door and then I picked the baby up and I placed him on a pile of leaves in an alley that was behind where I lived. I thought that somebody would find him, I didn’t think he would have to stay there all night. When I put him down I wrapped him up tight in the blanket but I didn’t cover his face. I know that I did wrong but I didn’t know what else to do. I didn’t want to hurt my family and I was afraid that my ex-husband would try to take my children. I didn’t want to hurt the baby but I knew I couldn’t keep him. I didn’t want anybody to know and I thought somebody would find him right away.”

Dr. Rankin, Pediatrics Resident Physician who examined the baby, testified:

“A. When the child arrived at the clinic at Ben Taub he was brought in in blankets and the child was quite cold, his skin was quite cold all over, blue and mottled; the child was breathing regularly, and did have a very weak cry and appeared to be suffering primarily from exposure at that time.
“Q. This was a male child, is that correct ?
“A. Yes sir.
“Q. White in color?
“A. Yes sir.
“Q. Could you tell approximately how old the child was, if you know?
“A. The child was apparently a new born in that it had this vernix caseosa or oily like material on his skin; his umbilical cord was still attached, it was approximately eight (8) to ten (10) inches long I believe, it had been cut, but was not tied, however there was no evidence of hemorrage; the child did appear to be new born. I would estimate a range from, anywhere from twelve to six (6) hours of age; it appeared to be more than just one hour; I couldn’t give you a specific time, no sir.”

We overrule the appellant’s contention that the information is null and void “for the reason that nowhere does it contain the qualifying language that the name of the child ‘cannot be ascertained by reasonable diligence’ or other language of like import.”

Art. 401 C.C.P. provides that when the name of the person necessary to be stated in the indictment is unknown to the grand jury, that fact shall be stated.

When the name of the injured party is unknown, it is sufficient to aver that fact. State v. Snow, 41 Tex. 596; Ranch v. State, 5 Tex.App. 363; Rutherford v. State, 13 Tex.App. 92.

Art. 402 Vernon’s Ann.C.C.P. contains a similar provision in regard to allegation of ownership. It provides that where the ownership of property is unknown to the grand jury, it shall be sufficient to allege that fact. Cases are cited under Note 15 holding that an allegation that the owner of the property is to the grand jury unknown is sufficient.

Appellant’s remaining claim of error is that “no proof whatsoever was adduced by the state through testimony of witnesses or by documents or otherwise that the name of the child was unknown to affiant (pleader).”

The diligence of Sharon Maher, upon whose affidavit the information was presented, was not put in issue. No evidence was introduced which showed or tended to show that the child had been given a name. In fact, the evidence shows that the advent of the unwanted child into the world was known only to the appellant prior to the time it was found in the alley.

The infant child was less than 12 hours old when it was taken to the alley and deserted.

That Sharon Maher failed to ask the appellant the name of the child shows no lack of diligence. Hicks v. State, 97 Tex.Cr.R. 373, 263 S.W. 291.

The evidence is sufficient to sustain the conviction and no error appears.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge. WOODLEY, Judge

license: Public Domain

text:
    Tomas SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37204.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Dec. 16, 1964.
    Second Motion for Rehearing Denied Jan. 20, 1965.

      Eugene Coffey, Corpus Christi (on appeal only), for appellant.
    Sam L. Jones, Jr., Dist. Atty., W. De-Witt Alsup, Douglas Tinker and Clifford L. Zarsky, Asst. Dist. Attys., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The conviction is for burglary with a prior conviction for an offense less than capital alleged for enhancement; the punishment, 12 years.

In view of our disposition of this cause, a recitation of the facts will not be deemed necessary other than to observe that the appellant and Rodriquez were seen walking down Carrizo Street about 11:20 p. m. by Officers Mathis and Roberts, and that when the officers saw them Rodriquez turned his back toward them and shifted the can he was carrying in his right hand to underneath his left arm. A search was made of the person of both men and the tomato crate and other food containers they carried and testimony was admitted and a part of the fruits of the search was introduced as an exhibit for the State. Appellant objected to any evidence secured by the .search on the ground that the arrest of appellant was illegal and without a warrant, which objection was overruled by the ■court

The appellant did not testify or offer any evidence.

This conviction stands or falls upon the legality of that arrest. If the officers were authorized to arrest the appellant, the search of his person was authorized as an incident of his arrest. If they were not authorized to make the arrest without a warrant, then the search of appellant was unlawful, and proof of the finding of the fruits of the burglary was not authorized.

We have concluded that appellant’s arrest and search by the officers without a warrant were, under the facts presented, not authorized by Articles 212 and 215 Vernon’s Ann.C.C.P., and since no city ordinance authorized by Article 214, VAC C.P., was introduced into evidence, the testimony concerning the fruits of the search should not have been admitted. Articles 212, 215 and 727a V.A.C.C.P.; Lott v. State, Tex.Cr.App., 372 S.W.2d 325, and cases cited therein.

This is a far stronger case than that before this Court in Lott v. State, supra. In that case the officers knew that a robbery had occurred and were waiting for Lott at his apartment, while in the case at bar the officers, at the time of the arrest, were not aware that any burglary had occurred.

For the error of the court in admitting the evidence illegally obtained, the judgment is reversed and the cause remanded.

ON STATE’S SECOND MOTION FOR REHEARING

Rehearing overruled.

WOODLEY, Judge

(dissenting).

The reversal of this conviction was predicated upon the conclusion that appellant’s arrest without a warrant, under the facts presented, was not authorized by Art. 212 and 215 C.C.P., and since no city ordinance authorized by Art. 214 was introduced in evidence, the testimony concerning the fruits of the search should not have been admitted.

The state urges that, apart from the ordinance, the officers had the right to detain appellant and his companion Rodriguez momentarily for routine interrogation, a right recognized by the Supreme Court in Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688, and Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, as necessary to meet the practical demands of criminal investigation.

The state further argues that there was no actual arrest until the officers had questioned the appellant in regard to the open carton or crate in his hand and discovered that he was lying about where he had procured the items it contained.

The state’s motion points out that the police officers were on routine patrol when they observed appellant and Rodriguez walking north on Carrizo, about 10:20 P.M. Appellant had a box or crate under one arm and a pan in his right hand. As the officers turned a corner Rodriguez recognized them as police and shifted the can he was carrying from his right hand to underneath his left arm where it was not in view. The officers backed the car beside the men and got out to talk to them.

Rodriguez was asked what he had in the can and he answered that he did not know as it belonged to appellant.

Appellant was asked where he was going and he said he was going to his home on Lake Street.

The officers knew that appellant could not be going to that place because there was a 7 foot hurricane fence blocking his path.

The tomato crate which appellant had in his hand contained two half gallons of milk, two oranges, two dozen eggs, two packages of hamburger buns and cold drinks. When asked where he got “the stuff” appellant replied that he got it at “Barney’s” on Port at about 8 P.M. The officers knew there was no such place.

The ordinance of the City of Corpus Christi not having been introduced, the admissibility of the evidence must be considered as though the incident occurred outside the limits of a city or town and the officers were peace officers other than city police.

The facts stated are deemed by the writer to be sufficient to show probable cause to search the appellant. Also, his arrest at this point was lawful under Art. 32S C.C.P. which provides:

“All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

The officers asked Rodriguez if he would open the can that he had and he did. In it were such items as frozen meat, frozen chickens, bacon, and a hunk of cheese.

The cheese was the only wrapped item in the can. On it was written “Nu-Way”.

Observing that some of the contents of the can were frozen and the cold drink bottles in the box were cold, the officers were satisfied that these items had not been obtained “about 8 o’clock,” some two and a half hours earlier.

Lott v. State, Tex.Cr.App., 372 S.W.2d 325, is readily distinguishable. The opinion in that case shows that there was no preliminary routine interrogation, but an immediate arrest and search without probable cause. The Court said:

“In the robbery, which occurred around 8:20 o’clock, p.m., two layaway tickets were taken, together with $2,207 in money. Later in the night, officers went to an apartment at 740 Woodrow Street around nine o’clock, which apartment was located some mile and a half from the scene of the robbery.
“While Officer Stewart and his partner were standing at the front door of the apartment, the appellant walked out and was immediately placed under arrest and searched. The sum of $380 in bills was found in his left front pants pocket.”
Art. 214 C.C.P. provides:
“The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

The majority opinion suggests, if it does not hold, that upon another trial at which the ordinance is introduced, the evidence obtained as a result of the arrest and search will be admissible.

The dire consequence of the holding where, under similar facts, the suspects are momentarily detained for routine interrogation by the sheriff or other peace officers beyond the limits of a city or town should be directed to the attention of the Legislature. Surely the elected sheriff and officers of the Texas Department of Public Safety should be given authority equal to that which Article 214 C.C.P. authorizes a town or city to bestow upon its police in regard to criminal investigation. Both must be consistent with the preservation of the constitutional protection against unlawful search and seizure.

Aside from the unidentifiable mone}'-found in appellant’s pockets following the interrogation, it appears that appellant is in no position to complain of the introduction of the testimony concerning the fruits of the search. •

Appellant’s companion, Rodriguez, opened the can he was carrying, allowing the officers to see its contents, which he told the officers belonged to appellant. He testified that appellant told him he was going to break into the Nu-Way Cafe and he saw him do so; that appellant brought out a can and a box and he helped him by carrying the can, and that he pleaded guilty and received a suspended sentence for the burglary.

The cheese wrapper upon which was written “Nu-Way” was identified by the arresting officer, Mathis, and was introduced as State’s Exhibit No. 2

John Alejos, operator of the Nu-Way restaurant, identified this exhibit as that he saw at the police station and testified, without objection, “this is what the cheese comes wrapped in with the address of the Nu-Way Cafe from the Hausman,” and that all of the other items such as the beef stew, milk, pork chops, fryers and cheese, and the pan, which were shown to him were the same or similar to his missing property.

The prior conviction alleged in the indictment was proved.

The majority conclude that the state’s second motion for rehearing should be overruled without written opinion, to which I dissent for the reasons stated.


author: BELCHER, Commissioner.

text:
    R. F. TOWNE, Appellant, v. The STATE of Texas, Appellee.
    No. 37484
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 3, 1965.

      No attorney of record on appeal.
    Sam Jones, Jr., Dist. Atty., Clifford L. Zarsky and Douglas Tinker, Asst. Dist, Attys., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for defrauding with a worthless check, with a prior conviction alleged for enhancement; the punishment, ten years.

The disposition of this case makes a summary of the facts unnecessary.

The indictment, in charging the primary offense, alleged that the appellant by the delivery of the check described in the indictment with the intent to defraud, obtained certain personal property of the ■value of $72.82 from the injured party. It further alleged that appellant fraudulently represented to the injured party that the check was good, which representation he knew was false; and that the injured party at the time of its acceptance believed it was good, and relied upon and was deceived by said pretenses and fraudulent representations, and by virtue thereof, parted with possession and title of said property.

In the charge, the court required the jury to find, as the indictment alleged, that appellant made the representation to the injured party that the check was good, that the injured party believed and relied upon said representations, and that by virtue thereof she parted with the possession and title of said property.

According to the evidence, the appellant made no representations to the injured party concerning the check, and there is no evidence that the injured party relied upon any representations made by the appellant to her at the time the check was delivered and accepted.

■ The evidence fqils t.o show, as alleged in the indictment, that false representations were mq.de by the appellant and relied upon by the injured party. Therefore the evidence is not sufficient to support the conviction. Goodwin v. State, 167 Tex.Cr.R. 485, 320 S.W.2d 852. See also Gutierrez v. State, 171 Tex.Cr.R. 493, 352 S.W.2d 124.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Sarilla Feglee BEARD, Appellant, v. The STATE of Texas, Appellee.
    No. 37233.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.

      Forrest F. Baird, Houston, for appellant
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the felony offense of driving while intoxicated; the punishment, fifteen months in jail.

Officer Plaster testified that when he arrived at the scene of a collision on a public street the appellant was seated behind the steering wheel of one of the automobiles involved, and that appellant told him she was driving the car at the time of the collision. He further testified that appellant had a strong odor of alcohol on her breath, that her speech was impaired and she staggered while walking, and he expressed the opinion that she was intoxicated. Two other witnesses for the state who observed the appellant at the scene expressed the opinion that she was intoxicated.

After the appellant gave her written consent, a blood specimen was taken from her by a physician. The testimony of a chemist who made an analysis of the blood specimen reveals that the specimen had an alcoholic content of .27 percent, and that such content was indicative of intoxication.

Testifying in her own behalf, the appellant admitted that she was driving the automobile, that she drank a cocktail at 11 P.M., and another at 11:45 P.M., before the collision at 12:30 A.M., but she denied that she was intoxicated.

The prior conviction as alleged was stipulated by the state, the appellant and her counsel; also, said conviction was admitted by the appellant while testifying.

Appellant contends that the trial court abused its discretion in refusing to permit Thomas Williams, Jr. to testify when he was called as a witness, by'sustaining the objection of the state that Williams had remained in the court room and heard the testimony in violation of the rule invoked as to witnesses.

There is no showing in the record of the nature of the testimony sought or expected to be elicited from the witness Williams. Whethér the trial court abused its discretion in excluding the testimony cannot be reviewed in the absence of such testimony. Until the contrary has been made to appear, it will be presumed on appeal that the discretion of the trial court was properly exercised. Therefore, the contention as presented reveals no error. Art 645, C.C.P.; 56 Tex.Jur.2d 381, Sec. 53; Harris v. State, 163 Tex.Cr.R. 183, 289 S.W.2d 605.

There are no formal bills of exception and no objections to the court’s charge.

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

Opinion approved by the Court


author: PER CURIAM.

text:
    Mack Allen ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 37422.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.
    H. R. Rolston, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is drunk driving; the punishment, 90 days in jail and a fine of $400.

The record contains no recognizance or bond on appeal in the form required by Art. 831, C.C.P.

The appeal is dismissed.

ON APPELLANT’S MOTION TO REINSTATE THE APPEAL

WOODLEY, Judge.

By supplemental transcript it is made to appear that appellant and his sureties entered into a proper recognizance on appeal. The appeal is re-instated.

The indictment alleged the felony offense of drunk driving but, the state having rested without proof of the prior misdemeanor conviction alleged, the case was submitted to the jury as a'first or misdemeanor offense of drunk driving.

There is no question hut that the evidence •is sufficient to sustain the jury’s verdict.

Billy McKnight, Lieutenant of the Lufkin Police, was the arresting officer. He testified that appellant was driving an automobile on a public street in Lufkin when he stopped Him, between 12:15 and 12:30 A.M.; that the car was traveling at 40 miles per hour in a 30 mile zone and was weaving back and forth over the center stripe; that appellant could not walk without staggering and his speech was slurred.

The officer further testified that he smelled the. odor of intoxicating beverage on appellant; that he formed the opinion that appellant was intoxicated, and that he found six bottles of beer on the floor board of the car.

The state’s evidence also shows that, at his request, appellant was taken to Memorial Hospital in Lufkin where a doctor of his choice took a specimen of his blood for analysis.

The blood specimen was tested by Chemist and Toxicologist Darryl S. Byrd, of the Texas Department of Public Safety, who testified that the result of the test showed that the blood specimen contained .18 percent alcohol by weight; that all persons would be intoxicated who had as much as .10 percent of alcohol in their blood and that there would be no question but what the person from whom the blood sample was taken was intoxicated at the time it was taken.

Appellant did not testify.

James Everett Kenner, called as a witness for the defense, testified that he saw the appellant at “The Blue Room” around 9:30 or 10 P.M. and last saw him “around twelve o’clock” when he came back to “The Blue Room” after it closed. Kenner testified that appellant was not intoxicated.

The sole ground upon which reversal is sought is the overruling of appellant’s motion for continuance based upon the absence of A. M. Blalock, and the overruling of appellant’s motion for new trial because of the overruling of such motion for continuance.

Appellant contends that the motion for continuance should be treated as a first motion, though it shows on its face to be a third motion. We overrule this contention.

In the absence of an affirmative showing that an application for continuance is the first, it is presumed that it is a subsequent application. Mitchell v. State, 87 Tex.Cr.R. 530, 222 S.W. 983.

A motion for continuance failing to state-that it is a first application therefor is regarded as a subsequent motion. McNeil v. State, 114 Tex.Cr.R. 514, 26 S.W.2d 217.

Appellant made several requests for the issuance of subpoenas for the witness-Blalock. Each gave his address as “Keltys,. Texas.” None of the subpoenas was served.

The request for subpoena for the appearance of A. M. Blalock on June 17, 1963 was-made June 6, 1963. Similar requests for subpoena returnable on previous dates were made on March 1, 1963 and February 3,. 1963.

The affidavit of the absent witness before a notary public dated July 6, 1963, attached to appellant’s motion for new trial shows that he moved from Keltys “the latter part of January,” since which time he resided in Lufkin on Scarbrough Street for a month; in Fort Worth for about a month; in Dallas for about two weeks; at 806 Sayers Street in Lufkin for two weeks, thereafter in the Burke Apartments on North First Street in Lufkin; that he had made no effort to conceal himself and, had he been subpoenaed or notified, he would have testified that from-his conversation and observation of his actions and his manner of operating his automobile just prior to his arrest, he was-“under the opinion that he (appellant) was not under the influence of intoxicated liquor.”

The absent witness did not testify at the hearing on the motion for new trial and his affidavit was not offered as evidence.

It is within the sound discretion of the trial court to overrule a subsequent application for continuance, and unless it is made to appear that the trial court abused his discretion with reference thereto, such ruling will not justify a reversal. Kincheloe v. State, 146 Tex.Cr. 414, 175 S.W.2d 593; Duncan v. State, 170 Tex.Cr.R. 132, 339 S.W.2d 220.

Whether a different result would likely have been reached had the absent witness testified is an important factor. Garcia v. State, 161 Tex.Cr.R. 249, 276 S.W.2d 527.

No abuse of discretion in the overruling ■of appellant’s motion for continuance is •shown.

The judgment is affirmed.


text:
    Jose Luis Pena SALAS, Appellant, v. The STATE of Texas, Appellee.
    No. 37588.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.
    Joseph L. Nanus, McAllen, for appellant
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary, with a prior conviction of burglary alleged for enhancement; the punishment, twelve years.

G. D. Swearingen, the owner and operator of a grocery store, closed the store building about 9 P.M., and retired to his residence approximately one hundred feet from the store. During the night Swearin-gen heard his and his neighbor’s dogs barking. When he opened the store about 7:15 A.M., he found that the building had been entered by pulling off the mesh wire covering a glass window in the front door, removing the glass, and reaching through and unlocking the door. It was determined that a hat, coat, shotgun, transistor radio, groceries, several cartons of cigarettes, and a pillow slip which had been taken from a pillow were missing from the store. Swear-ingen testified that he did not give his consent to the forcible entry of his store or to the taking of anything therefrom.

The investigation made by Swearingen and Officers Sanchez and Garza reveals that the shoe tracks of three persons were found back of the store, and that the shoe tracks were also found across the road in front of the store in an orchard which had been freshly plowed. They followed the tracks from the orchard, across fields and along and across a canal for a distance of about two miles to a small wooded (brushy) area of about one and a half acres. Along the way, they found some bread, a can of “Treet” with a portion of the meat gone, and cinnamon roll wrappers. In the brushy area they found three persons, one of whom was the appellant, and a part of the items taken from the store, which items were identified by the owner. Officer Garza saw the appellant and another person, described in the record only as a juvenile, sitting on the ground about forty or fifty feet away from a box containing canned food and some cookies. When Officer Garza approached them, the appellant, as he stood up, appeared to have a knife in his hand. The juvenile jumped up and said: “Well, let’s not make it any worse than it is. We have already got caught.” Then the appellant ran, and Officer Garza took the juvenile into custody. Officer Sanchez went to the other side of the brushy area where he apprehended the appellant as he ran out of the brush. A knife was found between the place where Officer Garza first saw the appellant and the place he was apprehended by Officer Sanchez. The shotgun was recovered in the brush and identified by Swearingen as being the same one taken from his Store the previous night. The third person was found in the same area hiding under a pile of brush.

The testimony shows that one set of the shoe tracks revealed three ridges across the heel on each shoe, which made a different print from those of the other two persons. The tracks revealing the three ridges were followed from the rear of the store, across the orchard and fields, and on into the brushy area. When apprehended, the appellant was wearing shoes which made tracks with three ridges across the heels. Officer Sanchez placed appellant’s shoe into the tracks with the distinctive heel prints and found that they were the same size and had the same ridge on the heel. Appellant and the other two persons were apprehended in the brushy area about 10:30 or 11 A.M.

Proof was introduced of the prior conviction as alleged and of the identity of appellant as the same person so convicted. Also, said conviction was admitted by the appellant, while testifying.

The appellant testified (through an official interpreter) that he lived in Saltillo, Coahuila, Mexico, and came across the river to McAllen and walked on toward Mission, and then north on a road toward a place where he had employment; that while walking he met a boy on the road about 6 A.M.; that he told the boy he was hungry and the boy gave him two small cans of food, which he ate. After walking further for about an hour Officer Sanchez picked him up and took him to a place where another officer had two boys, one of whom was the boy who gave him the canned food; and that he had never seen this boy before 6 A.M. when the boy gave him the two cans of food. The appellant denied entering or being at the store, and also denied threatening any officer with a knife and stated that he did n°t have a knife. He further testified that the shoes with the ridges on the heels were given to him while he was in jail by his cousin.

The court charged the jury upon the law as applicable to circumstantial evidence.

The facts and circumstances in evidence are sufficient to warrant the finding that the appellant participated in the commission of the burglary of the grocery store; and the evidence is sufficient to support the conviction.

Appellant contends that he was denied due process, that is, he was denied his constitutional right of being confronted by the witnesses against him. He insists for the first time, on appeal, that it was a violation of his constitutional right to fail to have interpreted for him the testimony of witnesses in English, as he was unable to read, write, or speak that language, and was thereby denied the right and privilege of cross-examination.

There was no request at any time that the testimony of any witness testifying against him in English be interpreted for him in Spanish. There was no testimony, although the appellant testified in his own behalf, that he was unable to understand English; and there was no testimony as to whether counsel representing the appellant could or could not make this interpretation for him.

The constitutional right of confrontation may be waived. Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574; Field v. State, 155 Tex.Cr.R. 137, 232 S.W.2d 717.

The contention urged, as presented under the record, reveals no error.

There are no formal bills of exception, no objections to the court’s charge, and no requested charges.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Malachi F. BULLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 37598.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.
    M. S. Morgan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, seven days in jail and a fine of $100.00.

Highway Patrolman Rogers testified that shortly after midnight on the night in question, while on patrol traveling at approximately 30 miles per hour, he observed an automobile approaching from his rear traveling at a high rate of speed, that he pulled off on the shoulder of the highway until the automobile passed and then gave pursuit and brought the automobile which appellant was driving to a halt, but only after appellant’s automobile had forced an automobile which he was meeting to drive into the ditch. He testified that appellant’s breath smelled strongly of alcohol, that appellant mumbled and slurred his words while speaking, had blood shot eyes, staggered and bumped up against the patrol car and expressed the opinion that appellant was intoxicated. On cross and redirect examination he testified that appellant told him he had been some place drinking two beers and at the Sportsman Drive Inn where he had drunk approximately six beers.

Appellant, testifying in his own behalf, admitted drinking three beers on the night in question and said, “I couldn’t of got more, it was closing time”, but denied that he was intoxicated. He testified that after he and Officer Rogers arrived at the Humble jail he was offered a urine test which he refused.

Highway Patrolman Curtis, who was at the Humble jail when Rogers arrived with appellant, testified that appellant spoke with a thick tongue, was very unsteady on his feet, smelled strongly of intoxicants and expressed the opinion that appellant was intoxicated.

The jury resolved the disputed issue of appellant’s intoxication against him, and we shall discuss the contentions advanced by brief and in argument.

He states that the State failed to establish “the place where the appellant was at the time of his arrest.” Officer Rogers testified that appellant’s automobile was being driven on a public highway in Harris County, which is all that was alleged in the Information. There was some discrepancy as to whether it was Airline Drive or Airline Road, but since under the holding of this Court in Pritchett v. State, 137 Tex.Cr.R. 423, 129 S.W.2d 676, it is only necessary to make the general allegation as we have here, that the driving took place on a public highway in a certain county, and nothing further was required to be proven.

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


author: CHADICK, Chief Justice.

text:
    L. L. COKER, Appellant, v. AUDAS, INC., Appellee.
    No. 7616.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 15, 1964.
    Rehearing Denied Dec. 31, 1964.

      J. K. Brim, Sulphur Springs, for appellant.
    Hardy Moore and Moore & Lipscomb, Paris, for appellee.
   CHADICK, Chief Justice.

This is a venue case. The judgment of the trial court sustaining the defendant’s plea of privilege is affirmed.

Disposition of appellant L. L. Coker’s first point of error calls for an examination of the sufficiency of the verification of a plea of privilege filed by the appellant, Audas, Inc. The vice in the affidavit to the plea is said to be in this sentence: “I am the President and the duly authorized agent of Audas, Inc., a corporation, the defendant named in the within and foregoing plea of privilege, and all the allegations and statements of fact in such plea contained are, within my knowledge, true and correct”. The appellant insists that the prepositional phrase “within my knowledge” qualifies the meaning of the last clause of the sentence, with the result that the affiant merely swears the allegations and statements of fact of which the affiant has knowledge, and none are particularized, are true and correct. The overall proposition is that the facts sworn to are indefinite.

Under common rules applicable to sentence structure, the position in the sentence of the phrase “within my knowledge” indicates the phrase is intended to be explanatory of the words “true” and “correct”. “Within” is a preposition having various shades of meaning, depending upon the context in which it is used. See 45 Words and Phrases p. 378 et seq. Generally it conveys a thought similar in meaning to that conveyed by the word “inside”. As “within” is used in it, the phrase conveys the idea that knowledge is possessed by the affiant of the truth and accuracy of the allegations and statements of fact contained in the plea of privilege. The affidavit is an effective verification of the plea.

The trial judge’s factual conclusions as declared or implied by the judgment on several acts or omissions charged as negligent are challenged as being against the great weight and preponderance of the evidence. Subdivision 9A, Art. 1995, Vernon’s Ann. Tex.St., is the statutory foundation supporting venue of Coker’s suit in Hopkins County. His brief acknowledges the burden was on him in the trial court to establish by a preponderance of evidence that one of the negligent acts or omissions he charged against Audas, Inc., had occurred in Hopkins County; the negligent act or omission was that of a servant, agent or representative of Audas, Inc., acting within the scope of his employment; and the negligent act or omission was a proximate cause of the injury Coker incurred.

As Plaintiff, the appellant Coker offered evidence that (1) paper cartons held in shape by metal staples were seen and found in the area where employees of Audas, Inc., conducted geophysical exploration on land under surface lease to Coker, and that Coker’s dairy cattle were observed in the area eating paper cartons having a similar appearance; (2) two open shot holes (holes bored deep into the earth) were left unfilled and uncovered at the completion of the geophysical work; and (3) one of Coker’s cows, following the exploration activities which included the use of a tractor, was “down with tractor tire tracks on her side and the skin off”. This recitation only indicates something of the nature of the evidence produced by Coker. A considerable amount of evidence amplifying and adding to this was introduced upon each of these subjects. Reproduction of the whole of the evidentiary record is impractical and would not add significantly to an understanding of the question decided. Appellant Coker was a principal witness, and no case upon either of the subjects mentioned would be proven without his testimony. His credibility as an interested witness is an issue in each instance.

So far as the settlement of the facts in a case are concerned, a plea of privilege proceeding is not different from procedures and rules ordinarily followed in other cases. Compton v. Elliott, Tex.Com.App.1935, 88 S.W.2d 91. The evidence in the record favorable to the appellant is not of such volume, nature and cogency, nor of such inherent verity, when balanced against all of the other proven facts, circumstances and reasonable inferences, as to justify a judgment that the great weight and preponderance of the evidence favored the appellant on the factual issues in question. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Accordingly, the judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    Elizabeth L. COX et al., Appellants, v. Leland DAVISON et al., Appellees. Jake L. HAMON et al., Appellants, v. Leland DAVISON et al., Appellees.
    Nos. 3939, 3940.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 27, 1964.
    Rehearing Denied Jan. 8, 1965.

      Stubbeman, McRae, Sealy & Laughlin, Tom B. Sealy and William B. Browder, Midland, for appellants.
    Garland Casebier, Frank Ashby, Midland, for appellees.
   GRISSOM, Chief Justice.

In both of the above cases the plaintiffs Leland Davison et al, sued the respective appellants for an accounting. The plaintiffs own 2⅜2 of 1¾6 leasehold working interest in certain land under an oil and gas lease from persons other than defendants and defendants own ⅜2 of the oil and gas produced from said land.

Plaintiffs wanted to drill for oil but defendants refused to participate. Plaintiffs drilled and obtained 16 producing oil and gas wells. The right of the plaintiffs to withhold from the defendants’ portion of the proceeds of the oil and gas produced the expenses incurred in drilling and producing it is not disputed. The only question is whether plaintiffs had the right to collect 6% interest on defendants’ proportionate part of the money advanced by plaintiffs to pay for producing and selling said minerals. The trial court held plaintiffs were entitled to recover interest as a part of the reasonable cost of producing and selling. The defendants in both cases have appealed.

We think the court correctly permitted recovery of interest. The general rule, which we think is applicable here, is stated in 27 A.L.R.2d 1274 as follows:

“Payment by a cotenant of land of some charge thereon, such as taxes, has been held to entitle such payor to contribution from the other cotenants to the extent of their proportionate share of the charge paid, together with interest on such share at the legal rate.”

Our conclusion is supported by the following authorities: Schluter v. Sell, Tex.Civ.App., 194 S.W.2d 125, 133; Norris v. Vaughn, Tex.Civ.App., 278 S.W.2d 582, 584; Gray v. Laketon Wheat Growers, Inc., Tex.Civ.App., 240 S.W.2d 353, 356; Knesek v. Muzny, 191 Okl. 332, 129 P.2d 853, 855; Winn v. Winn, 131 Neb. 650, 269 N.W. 376, 379; Reed v. Henson, 158 Miss. 224, 130 So. 108, 110; 51 A.L.R.2d 465.

Appellants and appellees were co-tenants. Appellees had the right to go upon the premises and drill for and produce oil without the joinder of appellants. Upon obtaining production they had the right to reimburse themselves from the part of the oil produced attributable to appellants’ interest the reasonable cost of its production. 5 A.L.R.2d 1386. Moody v. Wagner, 167 Okl. 99, 23 P.2d 633. Both reason and authority support the holding that appellees were entitled to interest at the legal rate on the money advanced by them to obtain the production and sale of appellants’ proportionate share of the oil, as a part of the cost thereof.

We also approve the holding that appellees’ right to collect interest only from the proceeds of oil attributable to appellants’ share was not barred by the statutes of limitation. Appellants were not personally liable therefor. They owed no debt within the meaning of the limitation statutes. The cost of production is to be recouped only out of the proceeds of oil attributable to defendants’ interest after its production. The judgment here so provides. Humble Oil & Refining Company v. Andrews, Tex.Civ.App., 285 S.W. 894, 896, (WR); Cockburn v. Irvin, Tex.Civ.App., 88 S.W.2d 747 (Dis.W.O.J.) ; Hartman v. Hartman, 135 Tex. 596, 138 S.W.2d 802, 803; Linkenhoger v. American Fidelity & Casualty Co., 152 Tex. 534, 260 S.W.2d 884, 885; Hansen v. Hidalgo and Cameron Counties Water Control and Improvement District Number Nine, Tex.Civ.App., 319 S.W.2d 765; Puretex Lemon Juice, Inc. v. S. Riekes & Sons, Tex.Civ.App., 351 S.W.2d 119, 121 (Ref.N.R.E.); 27 A.L.R.2d 1268 et seq.; 51 A.L.R.2d 465.

All of appellants’ points have been considered and are overruled. The judgments are affirmed.


author: LANGDON, Justice.

text:
    T. L. JAMES & COMPANY, Inc., et al., Appellants, v. Theta WALDREP et al., Appellees.
    No. 16579.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 8, 1965.

      Touchstone, Bernays & Johnston and Jim E. Cowles, Dallas, for appellant T. L. James & Co., Inc.
    Henderson & Bryant and James E. Henderson, Sherman, for appellant Harry Newton, Inc.
    King & Massey and Marion L. Massey, Fort Worth, for appellee Theta Waldrep.
    Cooper Blankenship, Dallas, for appellee Rose Ficke.
    Norman P. Hines, Jr., Dallas, for ap-pellee Estate of Otto Julius Seaton, deceased.
   LANGDON, Justice.

This appeal arises from three suits by ap-pellees, Theta Waldrep et al., Mrs. Rose Ficke et al., and Norman P. Hines, Jr., Temporary Administrator of the estate of Otto Julius Seaton, deceased, in the 16th Judicial District of Cooke County, Texas, against appellants, T. L. James & Company, Inc., of Ruston, Louisiana, a foreign corporation, and Harry Newton, Inc., a Texas corporation, as a result of alleged injuries and the deaths of Merle N. Waldrep, John M. Ficke and Otto Julius Seaton, resulting from a collision occurring on November 2, 1961. Appellants, T. L. James & Company, Inc., and Harry Newton, Inc., each filed pleas of privilege in the three suits to be sued in Dallas and Young Counties, Texas, respectively. The three suits were consolidated by agreement for the purpose of hearing the pleas of privilege and are, therefore, consolidated into one action before this court on appeal.

The appellees seek to maintain venue of their respective suits against the appellants in Cooke County under exceptions 9a, 23, 27 and 29a of Article 1995, Vernon’s Ann. Tex.St. in essence, they alleged that appellants were negligent in failing to provide adequate warning devices, signs and barricades to warn motorists of the repair work; to direct traffic into proper lanes and in causing north and southbound traffic to be routed over the two west lanes of that portion of the highway where the collision occurred without such warning signs, and that such negligence was a proximate cause.

No findings of fact or conclusions of law were filed by the trial judge. Since the order of the court overruling the pleas of privilege implies a finding that the appellants failed to erect proper barricades and warning signs directing the traveling public and that such negligence was a proximate cause, it is necessary to review carefully the evidence offered by appellees at the hearing on the pleas of privilege to determine whether the implied findings by the trial judge are supported by the evidence.

From our review of the record, we have concluded that the appellees failed to meet the burden imposed upon them to retain venue in Cooke County. We reverse and render.

The record contains the testimony of only three witnesses offered by and relied upon by appellees. The witnesses, all disinterested parties, were William R. Gardner, highway patrolman who investigated the accident, Joe Edward McCarroll, who witnessed the collision in his rear view mirror (portions of the depositions of these two witnesses were offered), and John C. Simpson, supervising resident engineer of the Texas Highway Department in Gainesville, who was previously resident engineer of the same Department in Cooke County and Gainesville. The latter appeared in person.

There are some discrepancies in the testimony of these witnesses as to the exact character, wording and location of the various signs and barricades because as they explained almost two and a half years had elapsed from the date of the collision to the date of the hearing on the pleas of privilege.

It is undisputed that the collision occurred in Cooke County on a portion of Highway 77 on which appellants, both road contractors, were jointly engaged, under contract, to convert from a two-lane into a modern four-lane expressway with the north and southbound lanes separated by a 45 foot median strip. The new highway is now designated as Interstate Highway 35. The highway designations of 35 and 77 will be used interchangeably in this opinion as was done in the trial court.

The topography in the area where the-entrance road leading from California Street enters Highway 77 and where appel-lees allege signs and barricades were inadequate is without dispute. The testimony as to this area together with other factors relating to the collision are summarized as follows:

California Street runs east and west in the City of Gainesville. It passes under the roadway now designated as Interstate Highway 35, which runs generally north and south. An automobile traveling west on California Street (as did the cars of Seaton and of the witness McCarroll), after passing under Highway 77, was required to turn left and proceed over the entrance road leading up to and entering Highway 77 at a point several hundred feet south of California Street A short distance south of this point of entrance was located a barricade on the left or east portion of the highway. This barricade had the purpose of 'squeezing southbound traffic to the right or west portion of Highway 77 as it proceeded south. It also served to divert northbound traffic to the right or east as it entered the City of Gainesville or continued north toward Oklahoma. At the time of the accident, all traffic, both northbound and southbound, from a point a few hundred feet south of where the entrance road from California Street entered Highway 77, traveled on the newly constructed concrete slab, which was 24 feet in width. These are the two west lanes referred to in appellees’’ pleadings. This slab was eventually to constitute the southbound lanes of Interstate Highway 35. The old two-lane highway which was eventually to constitute the two northbound lanes of traffic for Interstate 35 was closed because of additional work being done on it.

The witness McCarroll had passed under Highway 77 and turned left to gain access to Highway 77. As he proceeded up the entrance road, he noticed in his mirror the automobile driven by Otto Julius Seaton following him. A short distance after these two vehicles entered Highway 77, each passed a track. After passing the track McCarroll moved back to the right side of the roadway, hut Seaton continued on the left until he was in head-on collision with a pickup truck driven by Ficke, accompanied by Waldrep. This collision occurred in daylight on the 24 foot concrete slab which was divided into two lanes by a center stripe. No reason appears from this record as to why Seaton did not move back to his proper side of the road after passing the truck. The track he and McCarroll passed was on the right side when it was passed. McCarroll moved back to the right after passing the truck. Under the record there was nothing to prevent Seaton from moving over into the right-hand lane when Mc-Carroll did. Further, there is no evidence in the record that the absence or presence of any particular warning sign caused Seaton to continue in the left lane rather than to fall in line with the other vehicles in the right-hand lane.

Each of the witnesses testified as to several warning signs, barricades and similar warning devices located in the area in question. There is no direct testimony indicating the lack of any particular sign or barricade at any specific point.

Officer Gardner testified that there was a barricade, fence like, on each side of the highway at all new construction. There is evidence that such barricades were present at the site in question and no evidence refuting the presence of such barricades. There were two yellow signs, diamond shaped, 8 feet tall and about 4 feet in width, as you entered Highway 77. He could not recall the wording but thought it was “two way traffic ahead” on one and “slow” on the other. There were six signs on Highway 35, three of which could be observed by a person entering from California Street. Again unable to recall the exact wording of the signs, he stated they were to the same effect, “slow, divided highway ends”, and “two way traffic ahead”.

McCarroll testified that as he turned off California Street on to the service road there were several signs indicating the road was under construction, one or more of which had blinker lights on them. He thought some were “no passing” signs but was not sure about the speed limit signs referred to by the other witnesses. He stated that as he entered Highway 77 on the morning in question he had no trouble in determining that the road was under construction. There were several signs between the place he entered Highway 77 and the point of the collision. He could not recall the number of signs or precisely the language used in connection with the warnings given but by looking at the signs he knew it was clearly a two-way road.

John C. Simpson, resident engineer of the Highway Department, stated there were barricades and warning signs on the road leading from California Street to Interstate 35. That a barricade had a “slow” sign on it and that on entering Highway 77 a motorist would confront another sign which to the best of his recollection read, “Form single lane”. There was still another barricade south of the point where the entrance road came into Highway 77 which had the purpose of squeezing southbound traffic to the right. Both Simpson and Gardner referred to the “No passing” and “45 miles per hour speed limit” signs south of Gainesville on Highway 77 erected by the Highway Department which served as additional warnings that the roadway was restricted.

All warning signs required of the appellants under their contract with the State Highway Department were erected in the area involved. There was no complaint or testimony to the effect that the appellants had not fully complied with the contract in placing required warning signs. According to the witness Simpson, who represented the State Highway Department at all times pertinent hereto, the barricades and warnings were adequate. Otherwise he would have caused the appellants to change them.

The appellees, relying primarily upon subdivision 9a, place considerable emphasis upon the testimony of Officer Gardner concerning one other accident and “several near chances”, “probably a dozen”, which occurred during November of 1961. He stated that he stopped several people proceeding south, driving on the wrong side of the road. The officer related that he had a problem trying to enforce the warning signs. He stopped people and asked, “didn’t you know this was a 2-way roadway” and they would say, “no”, and in answer to the officer’s question as to whether they had seen the sign the persons would say, “What sign”, and the officer would turn and point to the backs of the signs passed and presumably ignored by such persons.

In our opinion this particular evidence serves only to bolster the contentions of the appellants that adequate warning signs confronted drivers proceeding south and served notice that they were proceeding on a 2-way roadway. Further, the testimony merely indicates that probably twelve other persons in addition to Seaton failed to observe or having observed failed to heed the signs. This testimony strongly negatives the contention of the appellees concerning the alleged negligence of the appellants. Further, since the collision in question occurred on November 2, 1961, the “near chances” referred to took place after such collision unless they occurred during the first two days of November, 1961.

The admissibility of the above testimony as to “near chances” and one other accident is not presented on this appeal. However, we feel it is incumbent upon us to state that in our opinion the testimony was not based upon a proper predicate and thus was inadmissible. See Reynolds & Huff v. White, 378 S.W.2d 923, 930-931, syl. 11 (Tyler Civ.App., 1964, no writ hist.) for full discussion and authorities on this question.

“The general venue statute provides that when an action is based on negligence per se, negligence at common law, or any form of negligence, active or passive, the venue facts necessary for the plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of the defendant’s residence are that an act or omission of negligence occurred in the county where suit was filed; that the act or omission was that of the defendant, in person, or that of his servant, agent, or representative acting within the scope of his employment; and that the negligence was a proximate cause of the plaintiff’s injuries. Depending on the sufficiency of the proof, a plea of privilege in an action for negligence may or may not be sustained.” 60 Tex.Jur.2d, p. 98, § 217, and authorities cited.

Although it is undisputed that the collision occurred in Cooke County and that the appellants were the contractors doing the work on the section of the road under construction, it was just as essential for the appellees to further prove negligence and proximate cause as a part of the venue facts. Lynch v. Millican, 304 S.W.2d 410 (Waco Civ.App., 1957, no writ hist.).

It is essential that the application of any exception relied upon must clearly appear, Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951).

Venue may not be established by implication. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948).

From our review of the evidence we have concluded that no specific act of negligence was proved on the part of either appellant.

In general, subdivision 23 of the venue, statute provides that a domestic corporation may be sued in the county of its principal office; or in the county in which the cause of action or part thereof arose; or in the county of the plaintiff’s residence provided the corporation has an agency or representative in such county at the time the cause of action or part thereof arose.

Subdivision 27 provides that a foreign corporation may be sued in any county where the cause of action or part thereof accrued, or in any county where such company may have an agency or representative or in the county of its principal office.

In Fireman’s Fund Ins. Co. v. McDaniel, 327 S.W.2d 358 (Beaumont Civ.App., 1959, no writ hist.), subdivision 27 was held to be unconstitutional to the extent it conflicts with the provisions of subdivision 23. The opinion made particular reference to the inequity of having to prove a cause of action by the preponderance of the evidence in a venue hearing involving a domestic corporation under subdivision 23, whereas under 27, involving a foreign corporation, no proof was required as to any cause of action at the venue hearing. Clark, Venue in Civil Actions in Texas, Chapters 23 (p. 121) and 27 (p. 154), and pocket parts; McDonald, Texas Civil Practice, Vol. 1, pp. 138-139, § 4.30 pocket parts. In Sugarland Industries, Inc., v. Falco, 348 S.W.2d 102 (Waco Civ.App., 1961, no writ hist.), the court detailed the venue facts the plaintiff has the burden of proving by a preponderance of the evidence to sustain venue under subdivision 27.

As previously stated, the only cause of action alleged against the appellants was based upon negligence and the ap-pellees failed to prove negligence or proximate cause as against either. Further, there is no evidence that either of the appellants had an agency or representative in Cooke County or a principal office. Therefore, venue may not be maintained under either subdivisions 23 or 27. For definition of the terms “agency” or “representative”, see Clark, Venue in Civil Actions in Texas, Chap. 23 (p. 121), § 3, and authorities cited; Brazos River Trans. Elec. Cooperative v. Vilbig, 244 S.W.2d 266, 268 (Dallas Civ.App., 1951, no writ hist.); Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194, 198 (1952); McDonald, Texas Civil Practice, Vol. 1, § 4.30 (pocket part); 60 Tex.Jur.2d p. 61, § 206.

‘‘The venue of actions against corporations is also governed by the statutes that' apply generally to individuals in so far as-such regulations are applicable, for here,, as elsewhere, the courts apply the familiar rule of construction that the word ‘person.’’ includes a corporation. * * * The general rule with respect to corporations, as well as individuals, is that a defendant is entitled to be sued in the county of his domicile, unless the case falls within one of the exceptions • specified in the general venue statute.” 59 Tex.Jur.2d p. 492, § 86.

Having determined that venue is not maintainable in Cooke County under subdivisions 9a, 23 and 27, the question remains as to whether 29a is • applicable.

“The statutory exception governing two or more defendants in a case * ⅜ * brought under subdivision 29a * * * is purely ancillary to the other exceptions in the general venue statute and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but that can be maintained there against one defendant under some other exception in the statute other than subdivision 4. The purpose and intent of subdivision 29a is to provide that in a case where a defendant is sued outside the county of his residence, and venue as to him is fixed by some subdivision of the statute other than subdivision 4, any other nonresident necessary party defendant can be brought into the suit.” 59 Tex.Jur.2d, p. 517, § 105. Continuing in the same text: “Where a suit is properly maintainable against one defendant in a county other than that of his residence, and the plaintiff therein joins another defendant and seeks to sustain venue as to him under the statutory exception regarding two or more defendants, the latter defendant is a necessary party under the statutory requirement if complete relief to which the plaintiff is entitled as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties. The necessary party must be one who is so vitally interested in the subject matter of the litigation that a valid decree cannot be rendered without his presence as a party. Merely being a proper party is not sufficient even though persons who are not proper parties to a suit cannot be necessary parties within the meaning of the statute.

“As against a plea of privilege, persons who are not necessary parties may not be sued away from the county of their residences unless some other exception to the general venue statute is applicable.” 59 Tex.jur.2d p. 519, § 106.

We have previously determined that venue is not properly maintainable against 'either of the appellants under the subdivisions discussed or otherwise under the record of this cause. Thus 29a is inapplicable unless the suit filed in Cooke County’ against Hines, Seaton's representative, •a'lsd'a nonresident who failed to file a plea 6f privilege, is effective to hold venue as tb appellants under 29a.

The appellees Waldrep et al. and Ficke et.'al. allege that Otto Julius Seaton was negligent in operating his automobile at an excessive rate of speed, failing to keep a proper lookout and in various other respects in their suit against Norman P. Hines, Jr., temporary administrator of Seaton. Under the facts a strong prima facie case was made out against Hines. He failed to file a plea of privilege although Seaton did not dive in Cooke County. Venue of an action against Seaton’s representative can be maintained in Cooke County only because the alleged negligence of Seaton occurred there; thus, subdivision 4 has no application.

Recovery against the appellants is predicated upon alleged negligence in connection with placing of warning signs and against .Seaton because of the manner in which he operated his automobile.

Obviously there was no concert of action as between Seaton and the appellants. They acted independently and were strangers to one another, each unaware of the other’s presence or action. Neither of appellants is a necessary party to a suit against Seaton or his representative. Ap-pellees could have full satisfaction in their suit by judgment and execution against Hines without the presence of either of the appellants.

Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 (1942) ; Coleman County Telephone Coop., Inc. v. Cunningham, 318 S.W.2d 461 (Eastland Civ.App., 1958, writ dism.); Leonard v. Abbott, 366 S.W.2d 925, 928 (Tex.Sup., 1963).

“Defendants who are jointly liable for a tort may be sued in the county of residence of one or more of the tortfeasors, provided the cause of action as to all the parties is the same. Similarly, in a proper case, tort-feasors may be jointly sued under subdivision 29a in any other county designated by an exception to the venue statute; but it must be shown that there was some concert of action or unity of design between the defendants so as to make them necessary parties, for if each acted independently of the other there is no community of liability.” 59 Tex.Jur.2d, p. 538, § 113; 60 Tex.Jur.2d, p. 120, § 221.

We find no application of subdivision 29a to the facts of this case and thus sustain all of appellants’ points of error pertaining thereto.

Since it is apparent from the record that the cases were fully developed in the trial court, we are of the opinion that the judgments overruling the pleas in each case should be reversed and rendered and the cases transferred to the proper forums rather than to remand for new trials on the venue issues.

Accordingly we reverse the judgment of the trial court in each of the three cases and herein render judgment sustaining the pleas of privilege of the nonresident defendants (appellants) Harry Newton, Inc., and T. L. James & Company, Inc. We order venue as to the former changed to a District Court of Young County, Texas, and as to the latter to a District Court of Dallas County, Texas.

Reversed and rendered with instructions.